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Tort: wrongful act done to someone for which there is compensation; determines who bears cost of losses. Tort law compensates for injury; put in place were before tort.

I. DIRECT INTENTIONAL WRONGS

BATTERY

1. Majority (dual intent):

a. intending to cause a harmful or offensive contact,

i. Act w/ Purpose of causing harmful/offensive contact OR Knowledge that is substantially certain to occur (95% sure)

ii. and intend harmful or offensive contact

a. and when a harmful or offensive contact occurs.

Minority: Only intent to contact reqd( P/k to cause contact that later turns out to be harmful. (only use this test when the situation calls for it)

(Obj test): intent of causing contact that a reasonable person would find offensive or harmful. (adds an obj test to a subjective one)

Italian on bus hypo riding a bus and get pinched by an Italian, who thinks this a compliment and its not offensive. You are grossly offended can you sue him for battery.

4 Gen rule: cannot sue him b/c there was no purpose or knowledge to cause offensive contact.

5 But under the 2nd rule, you could sue him b/c it’s contact that later turns out to be offensive.

6 Obj: it’s one thing to hold an American liable, but what about the foreigner who has different cultural experiences.

1. Bodily integrity- protect against harmful; Bodily autonomy- against offensive

Fault (intent is form of fault): Van Camp v. McAfoos Supr Court of IA, 1968

3yr old Mark rides trycicle on sidewalk, runs into back of leg, injures plt, she needs surgery. Trial court says: no allegation of negligence, willful/wrongful actions. Burden of proof: on plt to reduce litigation. Only blameworthy if commit what fault is

Fault: dft acted intentionally or negligently (unreasonable)

Rule: P must allege fault (acted intentionally or negligently) in order to recover in tort for these injuries; no facts alleged that would support a finding of fault. D wins.

Harmful or offensive to bodily integrity and autonomy: Snyder v. Turk Ohio, 1993

Dft is surgeon doing gall bladder op; bad op; frustrated w/ scrub nurse. She gives him instrument he doesn’t like, grabs her, forces her near surgical opening, tells her what he needs. Prima facie case for battery (elements plt must prove to recover): Subject to liability for battery when he acts

1. intending to cause a harmful or offensive contact( Rule: reasonable minds could conclude Turk intended to commit offensive contact; offensive to reasonable sense of personal dignity (doesn’t have to be PI).

2. and when a harmful or offensive contact occurs.

Don’t have to touch actually; can send poison through mail, shoot someone.

Offensive: offend reasonable sense of personal dignity Cohen v. Smith IL, 1995

Patricia having baby, needs c-section. Allegedly tell hospital staff that religious beliefs prohibit seen unclothed by male. Assured would be respected. Allegedly male nurse observes and touches Cohen’s body during operation. Suit filed against nurse, hospital. Intent(Harmful/offensive contact (religious belief conveyed to dft). Assume acting for best of medical reasons, but made clear didn’t want to be touched. Battery protects from PI and individual autonomy over body.

Contact: must be physical in nature; sound waves no b/c courts want phs req

Leichtman v. WLW Jacor Communications, Inc. Court of App, OH 1994

L is antismoking advocate; goes on radio show on day of smokeout. Host, lit cigar, repeatedly blew smoke in L’s face. Battery is smoke blowing in his face, inhales it. Court finds sufficient contact. Cunningham (simply in room)(accomplice if helps tort along. Radio comp: employer’s liability, no b/c was int tort that doesn’t facilitate/ promote its business (quasi accurate).

Intent: Garratt v. Dailey Supr Court of WA 1955 5 yr old Brian visiting Naomi Garratt, plt Ruth’s sister. Don’t accept Naomi’s testimony that he pulled chair deliberately; accept Brian’s: Ruth comes into backyard; Brian picks up canvas chair; moves it sideways, sits in it; Ruth goes to sit where chair was, Brian quickly tries to put it back, but can’t. Plt fell to ground, fractured hip and other injuries. Ruth’s version: starts to sit down, Brian pulls chair away from her.

Meaning of intent: applies to all intentional torts. Restatement def of intent:

1. Act w/ Purpose of causing harmful/intentional contact OR

2. Knowledge that is substantially certain to occur

Infer from facts. Age: 5yr old act w/ purpose; also, to some degree can act w/ knowledge. Age affects intent based on how developed child is.

Court’s order: did he have knowledge that she was going to sit down, that harmful/off contact substantially certain to occur. Wrong issue: if knows she will sit down, may still be lacking requisite intent. Also, didn’t have to see R start to sit before moved chair(she could say “I think I’ll sit down.” If he did start to see her sit down, maybe doesn’t have knowledge that contact substantially certain to occur. More likely has intent if she starts to sit down. Affect of age on intent(Gen rule: child needs intent; ability varies w/ child

Mistake v. Transferred intent

1. Mistake: Intend action on person; gets object intended to strike, but mistaken about what it was. Effect lies upon dft. Mistake: Mortal enemy walks down street. Enraged at enemy (Barnum). Run up, tackle from behind, tackle to ground. Isn’t Barnum, is Bailey the lawyer! Bailey sues for battery. Liable for battery? Yes. Here, not like White. Tackle person aim to tackle, just made mistake. Have intent to hurt Bailey.

2. Transferred intent: Mistake is not as to what were aiming at, but as to intent. Intending to comit tort against A, comit tort against B, transfer intent to allow complete tort against B.

3. In both, dft has culpable state of mind. Not socially useful, intend to injure. Don’t care if outcome unforeseeable. If have intent, treated harshly by law.

4. Extended consequences: Requisite elements of int torts, liable for ext cons.

Transferred intent: Transferred intent is subset of doctrine of extended consequence; unforeseen event liable for. No social utility of int tort.

Davis v. White Va 1982 White shoots at Tipton on motorcycle; misses, hits Davis in the stomach. White fled scene. If have requisite intent directed at A, end up hitting B, transfer intent from A, transfer to B. Don’t have to know B is there.

Old case: sees kids playing on barn, throws at kid on roof. Misses kid on roof, hits someone on other side of barn (didn’t know guy was there). Use battery intent directed at A, transfer so B can use, harmful contact w/ B.

Insane can have tortious intent: Polmatier v. Russ CT 1988 Facts: Russ shoots and kills Polamatier. Found not guilty of murder by reason of insanity. Had requisite intent (of Garratt) b/c had purpose to cause harmful contact. Although has intent b/c is mentally ill, law doesn’t care why, as long as have it. Rule: insane people still liable for their torts.

DuPree: need voluntary act. A has epilepsy, suffers from catalytic state, unconscious of acts, in state strikes B, standing over him, no volitional act.

Must have purp/knowl to cause harmful contact and intend harmful or offensive contact White v Muniz CO 2000 W puts grandm in facility. M(Everly hits her in jaw. Everly has progressive dementia, degenerative of Alzheimer type. Last sentence of jury instruction: Can still act w/ intent if demented; if intended to do what did, even if reasons irrational, acted intentionally. But, must have appreciated offensiveness of conduct. Not enough intended to strike nurse, must show also that had purpose to cause harmful/offensive contact. Dual intent: Must have purpose or knowledge to cause harmful contact and intend harmful or offensive contact

Assault : An act by D that puts the P in apprehension of an imminent bodily touching that would be harmful or offensive

1. Intent (purpose to cause harmful contact)

2. Apprehension of harmful or offensive contact: Protect mental interest (protects mental tranquility). Apprehension is enough, don’t need fear; but,

3. contact threatened has to be imminent (If is future, intentional infliction emotional distress)

a. Dickens v. Puryear NC, 1981 Dfts lured plt intor rural area; point pistol at him; beat him; threaten w/ castration; handcuff; discuss whether should be killed or castrated; 2 hrs of beatings; tells him to go home and pack up or be killed. Telling to go home and pack up is not assault b/c is not imminent threat

4. Mere words not enough: some sort of act req’d.

Every battery does not include assault(Sleeping Beauty; wakes up, is repulsed. Can’t sue for assault b/c was no apprehension of offensive contact. Also, if swing and miss, only assault. Assault and battery: yell at student,

5. Words as negating intent: Graying Prof hypo: if it weren’t for your gray hair I would thrash you. Have apprehension that might hit you. Is saying WILL not hit, no intent. Male shakes finger in female face says would whip her ass anytime anywhere. Court thought it was jury question if was imminent.

6. Apparent ability: dft comes in, points gun at bank, hand over money. Capture 20 mins later, gun was unloaded. Assault? Yes, b/c had intent to cause apprehension, was imminent. If clear to all in building is toy gun, is clear does not have apparent ability to cause apprehension.

7. Improper conditional threat: Give me all your money now, if you give me your money, you will be fine. Still assault b/c had intent and apprehension; words do not negate the intent. Protect mental tranq, shouldn’t have to choose b/w life and $.

8. Transfer intent: Alteiri v. Colasso CT 1975 Richard playing in backyard; dft threw rock, into yard struck Richard in eye and as result suffered injuries. Intent to scare person other than plt: transfe intent of one tort to another and diff plaintiff. Use intent of assault to complete battery. Fulfill elements of int torts for plt when dft didn’t even know plt was around. Take one kind of intent to complete another tort b/c have culpable dft.

a. Hypo: Prof throws water bottle at Greg (ducks), hits someone sound asleep. Had intent to hit Greg, contact actual(has committed battery on Anahita. If had gone over Anahita’s ear. Intent to assault Greg, but use transferred intent to Anahita for assault.

b. Prosser’s Rule: Limiting Transferred Intent: only for(assault, battery, falsi imp, trespass on land, trespass to chattels. Can’t use for intentional infliction of emotional distress, conversion.

9. Doctrine of Extended Consequences: Throw book at Greg, think can’t hurt him, hits Greg’s nose, as result Greg’s nose turns inward. Committed battery, liable for all consequences. If tort complete, liable for all conseq, no matter how unforeseeable.

False Imprisonment (protects freedom to move around.

1. Intent (pur/know)

2. Actual confinement

3. Knowledge of confinement

4. Against Ps will (speaks to consent)

McCann v. Wal-Mart Stores, Inc. 1st Circuit, 2000. McC and 2 kids (16 girl, 12 boy) shop at WalMart. As leaving, two W employees block their exit (one may have put hand on cart). Tell McCs not allowed in store b/c caught stealing before (mistaken, wrong family). McC protets; they say have records, police being called, Mc has to go with them. Did not resist b/c thought she had to, police coming. Take them near store exit. Employee stands near Mcs while employee H purportedly goes to call police. McC tries to show T id, T refuses. Call sec officer who says are wrong people. Leave after 1 hr.

Single most important fact: Imprisoned for about an hour, but got about $20G. Have employee w/ family at all times, shows supervised, can’t leave; path gets blocked. No actual physical restraint req’d; mere threat of phys force or claim of lawful authority for confinement

Hypos

1. Western movie: detective goes to interview suspect, says don’t leave town.

a. Actual confinement( Freedom to leave town is infringement if need to leave town. Don’t leave state: Area has to be smaller.

2. Lack of access is not false imprisonment.

3. Duress of good: Legal writing due, must turn in at noon. During am, someone takes paper, D won’t give it back, walks out. P follows him, D won’t give back, then gives back. P can sue D for f impris; confinement was area near paper. To get property back, in essence confined.

4. Need VOLUNTARY ACT. If never made promise, no duty. Fighting neighbors: coming home, walk by front, hear HELP!, go to house, I’m locked in, my wife has blocked me in, huge couch opens outward, can’t move. You can’t get in, and can move couch, but decide not to help. Guy stuck all night, catches pneumonia, goes to hospital, they reconcile.

5. If there are reasonable means of escape, not imprisoned. Blocked door: dft really mad at plt, blocks only door very effectively, but is window. Apt on first floor. Intent to confine. Act confinement: window maybe unreas.

6. Prove knowledge of confinement(Show evid tried to get out, what reaction was. Nice police officer: drunk Memorial Day weekend, police get call, find 2 guys in alley, instead of arresting take to abandoned golf course outside of town, let them go. Action for false imprisonment, but don’t rem being in car.

a. At golf course near freeway, one hit when walks on to it. Injury from parkway becomes extended consequence of false imprisonment.

7. Exception to knowledge of confinement: if injured during confinement, can recover.

a. Baby in bank vault, too young to know, injured by lack of oxygen.

b. Also, if sleeping when confined and inhale smoke.

8. If have agreed to confinement, have right to end agreement, but if by ending it are backing out of original agreement that went along with,and some detriment to that person, can’t claim false imprisonment. Airplane ride: ask friend D to ride in airplane LA to SLO, get to SB, say let me out. Flies to SLO, lands and lets you out. Can sue if at time asked above SB, then imprisonment became against will? . If in car, decide want out. Then, much closer, b/c detriment to driver less.

9. Dilemma for shopkeeping merchants: think teenager is shoplifting. Options? Can let go, or stop. If stop and take to room, I saw you steal a cd, no, let me go, I want out of here. Can search kid to find cd stolen.

a. Defenses( right to recover chattel as complete defense to f impris

b. If search and does not have cd, then no CL right to detain

Trespass to land(right to exclude others from property

1. Intent: mere intent to enter property. If is not property thought it was, but was property of someone else, doesn’t matter. Strict rule: property rights highly esteemed. Still, tort itself not worth much.

a. Ride bike, accident, bike goes off onto prop next door, no intent to enter property w/ bike. Leave bike on prop after reas period(tres to land.

2. Entry

Rogers: Dept of Trans leases part of guy’s field to put snowfence on during winter, 6 month lease. 6 months pass, take fence off, but leave cement base. Spring comes, farmer on mower runs into base part of fence, has accident, killed. If leave something on property after right to do so has terminated, becomes trespass to land.

3. Extended consequence: death occurs b/c of intentional tort to land, was not totally unforeseeable. Some limits, but usually liable whether foreseeable.

4. Transferred intent

a. Diff tort, same person: take intent for trespass to land, transfer to suffice as intent for battery, then harmful contact as result. Will work. TRANS IN ALTIERI(WORKS FOR 5 TRADL INT TORT, INTENT FOR ONE TORT APPLIES TO OTHER.

b. Same tort, diff person: TRANSFERRED INTENT IN DAVIS (INTENDS TO HIT ONE, HITS OTHER)

Trespass to chattels and conversion: right to exclude others from possession.

1. Tresspass to chattels (slight harm to chattel(drive car for day):

a. Interference w/ chattels (personal property);

b. intent to intermeddle: Pick up soda can, is full, dent slightly

c. Get actual damages, actual harm req’d (loss of use for certain period of time)

i. If pat dog when told not to, no actual harm

ii. Very litigated re spam. Reading email not actionable interference. If disable system, is trespass to chattel.

2. Conversion (take and consume(take care and total it):

a. Intent to exercise substantial dominion.

i. Pick up soda can, drink it(Buy chattel

b. Dominion by controlling access. negotiat w/ car dealer, buying new car, sort of deal. Give us the keys to your old car, then deal breaks down, they refuse to give keys back, make guy wait for two hours. Obvious lawsuit: conversion of keys; but also convert car b/c can’t use key w/o car.

c. Conversion by theft: B steals from A, sells or gives to C. C doesn’t know is stolen, thinks B had right to sell to C. A can sue C, B for conversion. Had no right to chattel. B/c in good faith makes no difference.

i. Exception: instead of stealing computer, B defrauds A (trickery) of it. A has given up voluntarily, B sells to C, C not liable. Diff: did by fraud, but got some sort of title, had something to sell to innocent C. B has some right in it; if C gets it, and is in good faith, doesn’t know B fraudulently got it from A

3. To determine if trespass to chattels v. conversion:

a. extent and duration of control

b. dft’ intent to assert right

c. Dft’s Good faith

d. expense, inconvenience caused

4. Recover for emotional distress( Parasitic damages. Damages that attach to some other tort. Aunt dies, cremated, put in urn, stolen from your house. Chase after down street, drop urn, cracks, ashes blow everywhere. Have converted urn and contents of urn. Damages(what urn worth, remains of aunt worth little, but distressed. . If only damages are emotional distress, no chattels. Old CL(No tort emot dist damages only. Now, int infl em dist

Intentional Infliction of Emotional Distress: Risk e distress will occur not incidental to commission of other tort (must be intended, prim conseq of dft’s conduct)

a. Dft acted intentionally (or recklessly(Rst includes reckl behavior; acting w/ high probability of e distress, but doesn’t rise to level of p/k).

b. Conduct was extr/outrageous (repetition key, bill collector if do 15x)

i. Vulnerability/relationships (at work(captive victim) may make it more ext/out

ii. Insults not enough.

1. FL case: you stink to me to old woman, not enough

2. Exception: public utilities, common carries, innkeepers have to serve public, held to higher standard. Conductor says to passenger: you’re loony, go to insane asylum, would punch if weren’t on duty(insult enough for e/outr

iii. No protection against idiosyncratic reaction unless dft has knowledge of spec vulnerability and builds on it; hypsens checked.

c. Actions of dft caused plt emotional distress: Element of causation implicit in all torts (battery, assault); usually need not be articulated.

d. Resulting emot distress was severe

GTE Southwest, Inc. v. Bruce TX 1999 Employees of GTE worked under Shields. Over yrs, Shields grossly abusive, threatening, degrading conduct, vulgar, verbal threats, terrorized. Charge at them; yelled and screamed; pounded fists to get something done; called empl into office made stand for 30 mins; vacuum even though staff to do so.

Intent: he just wanted them to shape up (M’s version); if really thought was shaping them up, under White must have intent to cause emot distress. Knowledge prong easier to meet b/c people complained, were distressed.

Extreme and outrageous: more outrageous if do over and over again. If do once, is mistake. Also, relationship of parties worsens. If employer knows are vulnerable, makes conduct more extr and outrageous.

How know severe: convince jury(tears, did go see dr., external changes in behavior.

Taylor v. Metzger NJ 1998 Here, racial slur by sheriff to subordinate is not mere insult. Black fem officer in sheriff’s office; sheriff called her jungle bunny. Sher offered apology, but received phone calls, hostility at work. Good case for extr and outr. Also, is likely to affect plt in diff way. Many courts would say is not enough w/o repetition.

Rst(extreme/outrageous conduct aimed at 3rd party: (arbitrary limit on plt)

a. Plt must be present

b. dft must know that plts are present

c. dft must know will cause ed (causal connection conduct and ed)

Exceptions: Not majority( but most courts haven’t heard cases. Some crts unwilling to apply rst reqs. If emot distress real, dft some idea of it, then crts overlook reqs.

1. Allow recovery when parent brings action if child molested (person emot distress not present, dft doesn’t have knowledge, are molestation

2. Come upon corpses

Homer v. Long MD 1992 Plt and wife married, she goes to hospital for depression. While in hospital, therapist seduces her. Eventually divorce. Husband sues therapist for int inflic/reckls emot distress. Rule: Wasn’t present, therefore can’t recover. Didn’t see action. Distress no less real b/c couldn’t see them together; severe, may be worse. Just don’t want to extend 3rd party liab to all seducers.

II. Defenses to Intentional Torts

a. Privileges

i. Self Defense:

1. Use reasonable force as needed to respond to attack. Depends on circumstances of situation(proportional.

2. When deadly force used against you, or severe bodily harm, can respond w/ deadly force. Never reasonable 2 days later; only use when needed to respond to attack.

3. Some courts require retreat before deadly force. Only when reasonable, never have to retreat from own house. Southern states don’t like retreat.

4. If make reasonable mistake in self-defense, can still use privilege of self-defense even though have made mistake. Fight in bar, instigator leaves, you wait inside. Someone says guy is still outside. Go to car, as unlocking, someone behind you. Hit jaw, break jaw. Oops, was policeman. Self-defense over policeman’s claim of battery(imp right, allow even if make mistake.

ii. Defense of third persons:

1. Same rules as above.

2. Mistake: if defend when friend is actually attacker.

a. Privilege covers.

a. Liable for battery: But, is difference. Insert self into other’s altercation, not own. Mistake is on you.

iii. Arrest and Detention

1. Great Atlantic and Pacific Tea Co. v. Paul MD, 1970. Mr. P goes shopping, recovering from heart surgery. Leaves cart end of one aisle, examines items, returns to cart. Parker, assistant manager, concludes Paul put can of tick spray in coat w/ intent to steal. Parker confronts Paul. Forces Paul to march to manager’s office (grabs him), searched and no tick spray found. Word of incident spreads, heart condition aggravated, phsy ment pain, personal humiliation. Can store defend itself from shoplifters?

2. Common law privilege to recapture chattel: In order to have the right to detain, the person you detain must have stolen the property and have it in his possession. And you have to be in hot pursuit of the chattel.

a. Can’t use force to get back.

b. Also, if mistake, detain and don’t have chattel, then have no privilege.

3. Rst: Shopkeeper’s privilege (majority):

a. (1) Reasonable belief

b. (2) Reasonableinvestigation

c. A & P would not meet test. Unreasonable to detain b/c didn’t have any evidence. Must show manifest control, intent to steal; only unequivocal when leave store. Most store say don’t do anything until pass checkout stand. Cost benefit ratio-not worth it to approach until leave. Also, investigation problematic. Must conduct reasonable investigation. If hold 3 hrs, not reasonable.

4. Balance: what after, where after it. In real world, reasonable debatable. If security male, can’t open wom shirt, not reasonable (distress damages greater w/ opp sex).

iv. Defense and Repossession of Property

1. Defense of real property: Force to defend real property: must be reasonable.

a. If threatened with physical force on your property, then defense turns from defense of property to self-defense

b. Have warning if feasible

c. reasonable force to eject if don’t respond to warning; start gently

d. trespasser has no right to resist

e. Force to capture? Split:

i. No, go sue them, eject in unlawful detainer.

ii. Some courts say yes if reasonable under circumstance. Not deadly, see Katko.

1. Katko v. Briney. Iowa 1971. Dft inherits farm house; 10 yrs housebreaking, damage to property. Board up prop and post no trespass signs. Set up shotgun trap in one rooms; rigged to old bed, barrel pointed at door, wire from doorknob to trigger, pointed to hit legs of intruder. Plt goes to house (had been before), break in, start to enter rigged room. Gun goes off, much of right leg blow away. 40 days in hospital. Did not intend to injure. No warning of gun. Can’t use deadly/lethal force to defend property—life more valuable than property. Possessor of land cannot do indirectly and by a mechanical device that which were he present, he could not do immediately and in person. 20G compensatory, 10G punitive. Guy is a burglar, he gets punitive damage. Counter-claim of trespass to land, get to argue to jury that guy is trespasser. Maybe no punitive.

2. Brown v. Martinez Supr Court NM 1961 Son shot in leg when, w/ other boys, stealing watermelons on appellee’s property. 15 yr old boy and 2 others visit garden patch one night; return next night to steal. Two running to southwest end; one on southeast end; sees only two running at SW end, calls to get out, fires at SE end to scare. Strikes in back of leg, breaks bones. No intent to shoot kid that shoots. Transfer intent of assault (intent of purpose to cause apprehension); Contact w/ different person. Get battery on boy shot. In defense of property, privileged to put trespassers in apprehension of a harmful or offensive contact. Katko: can’t defend property w/ deadly force. Here no priv b/c transfer intent for assault that is permitted to complete battery. Should transfer? Question when have priviliege. Have purpose to cause apprehension, but not hit.

v. Discipline --Parents have priv to spank, w/in reasonable limits. Others have some privilege of discipline to maintain order. Teachers, school bus drivers. Teachers can’t use same as parents.

b. Consent: Negates harmful intent in prima facie case. Acts as complete defense: Plt is agreeing to have something happen; if so, then are saying isn’t harmful(if dft knows plt doesn’t find it harmful, probably don’t have harmful intent in infliction. But, dft may know plt didn’t find it harmful, but still intend harm (bully knows victim likes to fight, but will still beat up, doesn’t apply; sometimes if plt doesn’t think is harmful, dft not intending harm).

i. Entering into consent(how

1. Expressly: oral or written; yes I agree you may do whatever

2. Implied through actions: Lift arm up for innoculation.

3. Implied in law: emergency room situation. No express or action, simply assume would have consented.

4. Entitled to rely on reasonable appearance of what other does in circumstances. If A leans in, B starts to gag or says no, is no consent. Imply consent if reasonable(depends upon situation.

5. Relationship of Parties: Norberg(Weakness interferes w/ will; modify consent to reflect power relationship.

i. Scope of consent:

1. Geographic

a. Medical: Kennedy( assume consent unless say to contrary. Otherwise, have to go back in to take cysts out. Construe consent as general in nature. Drs give broader consent to begin with. Patient: broadly, doesn’t want to go under knife again.

b. Dr wants to operate on patient’s left ear, gives anesthetic, while under decides to operate on right ear. Holding: exceeded geo scope of consent.

2. Temporal: I agree you can do for such period of time. Cement base of fence allowed on property during winter; lease expired, no longer consent. Becomes trespass.

3. Conditional: May condition; family blood in operation. Ashcraft: Depends on own autonomy. Under battery, can put conditions on contact.

4. When you consent to the kiss, this consent covers unexpected consequence.

ii. Some reason to not recognize, is consent effective

1. Incapacity: must be able to understand what getting into.

2. Statute disallows: child labor laws

3. Fraud, misrepresentation, coercion

4. Herpes; consent must be informed

iii. Consent of minors: usually if serious, proportional to age.(8 yr olds can consent to contact football)

iv. Consent to crime: Illegal boxing match.

1. Majority: can’t consent to crime, consent not recognized, if engage, can still bring tort.

2. Minority: if participate in illegal activity, no tort actn.

v. Medical consent: negligence, not battery

Reavis v. Slominski Neb 1996 Reavis works for S at dental clinic. Sex b/w 73-75. 75-88 R not work for S. In 88 returns on condition he would leave her alone. No sex until after NYear’s party 1991. Both somewhat drunk.

a. REavis: S locks door, starts kissing her. Pushes him away, says no. S laughs, says “you know you want it.” R says Oh hell goes to S’s office down hall and throws sweater off. R thought could do nothing because S would laugh at her. R tells S shouldn’t be doing this. R thought that if didn’t, would lose job. Numbed mind, hurt badly.

b. S: intercourse consented to.

R argues no consent; if did, ineffective b/c abnormal inability to refuse sexual

intercourse, sexually abused as kid.

Consent not effective if lacks capacity to consent.

1. Adult incapacity only if condition substantially impairs capacity to understand and weigh harm and risks of harm against benefit flowing from proposed conduct

2. Plt’s incapacity does not render consent ineffective unless dft has knowledge of that incapacity. Unfair to hold Dr. to standards that plt incapacitated if not culpable. W/o knowledge takes action as consent. If knew of her incapacity, conclusion must be that there’s no consent, knows she can’t consent. If no capacity to consent, there is no consent.

3. If unconscious, can’t consent: can’t understand what consequences are, if what doing is good or bad. Coercion can invalidate consent. Debatable how much. If point gun, then no voluntary consent.

Ashcraft v. King: consent to only family blood for transfusion; given non-fam blood, gets HIV. Case for battery upheld, transfusion exceed consent given. Consent is conditional. Depends on own autonomy. Under battery, can put conditions on contact.

1. Bad accident, patient brought to emerg. hospital. No battery(consent implied.

2. tried to commit suicide, go to ER, dr tries to save life. Fiction to imply consent. Assume lack capacity to consent? In ER, usually assume want to be saved.

3. Bracelet says will not take blood transfusions under any circumstances. Clear no consent. Witnesses that is what person wanted. Difference b/w suicide: one more irrational, this is thought-out religious belief. Tough choice: try to stabilize and stay, may be battery, but no damages.

Kennedy v. Parrott NC 1956 Plt consents to appendectomy; Dr. Parrott finds enlarged cysts during surgery, punctures them. Plt develops phlebitis. Sues for battery: phleb prox caused by unauthorized incisions during appendectomy (cut blood vessel while punct cysts). Consent construed as general pre-surgery; surgeon may extend operation if patient can’t consent and no one else available, in sound judgment determines need to extend surgery. Exception: If knew/should have known that cysts found(should have mentioned it. W/o valid consent(battery. For valid consent, patient must be informed of all risks of medical procedure. Treated as negligent cases, covered by insurance.

Doe v. Johnson WD Mich 1993 Magic Johnson gives HIV to Jane Doe through consensual sexual contact. MJ knew/should have known had high risk of being infected w/ HIV b/c of promiscuity. Did not warn Doe of high risk, or tell her he did have HIV. Didn’t use condom. Doe has HIV, will get Aids. Conclusion: if has VD and knows, knows sexual partner does not know of infection(commits battery by having sex.

If knew infected, has knowledge of potential harmful contact. If act consensual, not consent b/c missing key piece of info that allows to assess risks, voluntarily agree to encounter risks. Have to inform of all info.

1. knew of infection, didn’t tell her, but she knew. She consents, already knows. Deal w/ societal norms. Might imply consent over circumstances.

2. Affair 1(He says I certainly don’t have Herpes when she asks, he lies. He cannot claim consent, is affirmative misrepresentation of fact, leads to consent. Affair 2(same facts, he doesn’t tell, she doesn’t ask. If consent valid? No, like in Johnson, has obligation to disclose, otherwise don’t have informed consent.

3. If know, have sex w/ condom, still knowledge of offensive contact w/ risk of having sex while protected though still have disease.

c. Privileges Not Based on Plt’s Conduct

i. Public necessity

1. Surocco v. Geary Supr Court CA, 1853 Fire destroys house and property. Geary says justified in blowing up house to stop progress of fire. When home destroyed, plts trying to remove property; could have if not stopped (deprived of prop, not house). Individual rights of property (right to sue for conversion) give way to laws of impending necessity. House near fire becomes nuisance; private rights yield to interests of society. Otherwise, one person could ruin whole city. If torn down w/o necessity, one party liable for trespass. Necessity must be proven.

2. Apparent necessity; if alcalde orders house blown up and fire sweeps towards where house was, fire goes elsewhere, fire wouldn’t have gone there, privilege still holds as long as was apparent necessity

3. Wegner v. Milwaukee Mutual Ins. Co MN 1991 Suspects have stolen narcotics, flee, hide in plt’s house. Swat team comes in. Fire tear gas to expel suspect, flash band grenades damage house. Condition on state’s right to take: must pay up! (when taken for public use(damage inflicted by police in course of capturing dangerous suspect was for public use). When innocent third party’s property damaged by police in course of apprehending suspect for public good (use), gets compensation. Citizens of city bear costs of benefit conferred. Shoot up(pay up. IF benefits accrue to public, someone whose property used shouldn’t bear costs.

4. Depends on how define public use;

a. Net effect: W rejects rule of public necessity of Sorocco; place cost on gov’t, not individual.

b. S rightly decided b/c diff than Wegner. if have raging fire, when fire gets to house, gathers momentum. In W, no possibility that situation gets worse b/c of house.

5. Geary CA 1995: police trail guys into 7-11, shoot tear gas in, finally capture. AS in Wegner, public benefiting, unfair to make one person pay if benefiting public. Tear gas destroyed all food, no takin , Geary still good law. How insurance play in? Whenever tort law doesn’t impose liability (as in Geary) loss falls on individual unless have insured. Sirocco says go get insurance.

6. Hypo: just graduate from law school, as present get new Porsche. Highspeed case down freeway, police total car, get to recover? Here, wasn’t intentional. If use Wegner, want cost to be deterrent.

7. Later case: court says can’t recover if involved in crim activity: Police do same thing as did in Wegner, destroy drug house. Get battering ram, destroy house w/ tear gas. Turns out house is owned by local drug lord, who wasn’t in house, can’t bring action under Wegner although destroyed his house for greater good. .

d. Private necessity (no pub interest involved, dft acts to protect own interest)

i. Ploof v. Putnam Vt 1908 Dfts owns island on lake. Plt sailing w/ family, violent tempest arose. To save boat and family, plt moored into dft’s dock. Dft through servant unmoored boat. Sloop destroyed, fam injured.

1. Plt says battery. Boat is extension of people inside it. Like snatching of plate out of hand, anything connected to person. Stretch, but principle is there. Defense? Dft sasy def of property. Right to do so, but can’t exceed scope of privilege by sending out to storm.

2. Dft v. Plt: trespass. Although Plt trespassed land, was privileged b/c of necessity, overcomes other privilege of defense of property, allowed to recover.

a. Defense triggered by independent force: Sirocco(fire; here, gale; Wegner argument is catching criminal. Something else intervenes.

b. Diff b/w saving self and saving property: if didn’t take proper care, perhaps less privileged for property, but life always more important than property (Katko).

c. HYPO: privilege of necessity; can save self and boat. If dft argued was little wind, no need for person to come and use my dock. If no necessity, no privilege to use property.

ii. Vincent v. Lake Erie Transportation Co. Mn 1910. Reynolds owned by dfts unloading at plt’s dock in Duluth; storm develops, boat stays at dock, causes $500 damage b/c yank dock. Imprudent to leave dock or let vessel drift away during storm.

1. Prima facie: Definitely trespass to land if owns dock as land (intent to enter land of another). Trespass to chattels: interfere, actual damages. Conversion: substantial dominion (well, not really, no intent to destroy, just to use). Requisite intent for trespass to land/chattel? Show had intent: kept replacing ropes. Purpose to substantially interfere w/ dock, remain on property (if not purpose, certainly knowledge).

2. Defense: private necessity. Weather reports irrelevant, didn’t do anything wrong. Necessity to stay there to save ship(Yes, can’t go out, no one else is out. Necessity clearly there, enough to go to jury. Party claiming private necessity bears loss, pays damages to dock. Saved money by not letting go. If was no damage to dock, complete defense, no recovery at all, usually need no actual damages. Can get $1 nominal damage; if had complete privilege as defense.

3. Damage: party claiming privilege bears loss. If don’t make boat cptn pay, otherwise unjustly enriched. Only holds up when have benefit secured, imposed risk on dock seeking benefit on themselves.

4. Imposed risk hoping to get benefit, then should pay whether get benefit or not: if boat makes it through storm, bashes dock in, boat cptn happy, when was bashing dock, boat sinks (leak). Destroyed. No enrichment,

III. Negligence. OWHolmes: CL; no liability w/o fault (fault(Intent & Negligence. First: apply prima facie to dft; then, defenses: Plt negligent as well.

a. General formula

i. Dft owed plt a duty

ii. Dft by by behaving negligently breached duty

iii. Dft’s negligence was actual cause of damage

iv. Dft’s negligence was proximate (legal cause) cause of damage

v. Plt suffered actual damages

1. Need actual, physical harm.

2. Legally cognizable harm: castrated dog not worth any less even though went in for grooming.

3. Origin: negl based on case, needed dam, no minor claims

4. PI: punitive damages only if actual damages first, then if dft has bad state of mind.

b. Breach: General duty of care in Rst(RPP: Duty to exercise care would be exercised by reasonable , prudent person under same/similar cir to avoid or minimize risk of harm to others. Care only about risks foreseeable to reas person, sufficiently great to require precaution. (if says duty, mean reasonable breach until say so)

i. Never vary standard of care; but, circumstances cause amount of care to vary. Want reasonable care under circumstances. Wake up, catch bottle. All do is put hand up. If water fell, could lose water, risk of loss. If throw baby, take extraordinary measures to catch child. If baby dropped, could hurt itself, die. Life worth more than property.

1. Probability harm will occur (danger plus risk): Bottle: likelihood if drop bottle will rupture. Baby: if drop baby, high chance baby will get hurt. Higher possibility baby will be hurt.

2. Damage will occur: Lose water, who cares v. baby hurt.

3. Danger plus risk(PROBABILITY OF HARM. When risk comes to fruition, injures, who had obligation to prevent injury. Did act reas/unrea, is there recovery?

ii. Jury determines what care a RPP would exercise

iii. RPP basic test is objective. Compare dft to RPP actions under circumstances. If conclude acted unreasonably under circumstances, concluding are at fault.

iv. Purtle: instruction must say ordinary care; counsel must argue that under circumstances, high degree of caution req’d (plt injured in hunting accident, asked for high degree of care com)

v. Stewart v. Mottis PA 1995 Plt offers to help repair car fuel tank. Car backfires, explosion, Plt suffers burns. Higher standard of extraord care for use of dangerous instrumentalists? Issue was proposed jury instruction(due to inflammability, very dangerous if not properly handled, follows high degree of care. Court says only one standard of care we apply in negligence; standard of care is reasonable person. No higher, lower degree of care. If exercise reasonable care, conclusion will then be that is no breach of duty, if act reasonably, have not breached duty. If determine acted unreasonably, conclusion is breached duty.

vi. Emergency doctrine: Lyons v. Midn Transp. Serv. In Alaska 1996. Esther killed when van driving struck by dft truck, owned by Midnight. Dft driving in right lane, she pulled out in front from parking lot. He braked, tried to steer around, crash, she was killed. Plt objected to sudden emergency doctrine instruction. When in emergency, don’t weigh as normally would. Missing time to reflect. Still held to standard of reasonable person in emergency. But, result of being in er situation, act as reas person in emergency would act. In emergency, act reasonably( broader range of permissible, reasonable, actions. Only circumstances change. Instruction here: redundant b/c RPP accounts for emergency. Instruction not inaccurate, but favors dft, want to emphasize was er, broader range of conduct reasonable than if had time.

vii. RPP act if if no possibility of risk, act w/o worries. Only deal w/ what can foresee.

viii. RPP accounts for disability as internal characteristics of actor

1. Shepherd v. Gardner Wholesale, Inc. Ala 1972. Facts: has cataracts, slips on concrete slab in front of dft’s business. Rule: Ordinary care is what reas person w/ like infirmity would have exercised. Evaluating RPP standard accounts that plt in case is blind; take physical characteristic, give to RPP. RPP is blind. (Give RPP physical characteristic, then apply test).

2. Roberts v. State of LA 1981. Plt is 75; run over by Burson, 25 yr old blind man. Went from concession stand to men’s bathroom w/o using cane (Plt claims negligent). Rule: Blind man entitled to live in world and to have allowance made by other for his disability, cannot be req’d to do impossible by conforming to physical standards which he cannot meet. Take precautions which ordinary reas blind man would take. B did not breach duty by relying on facial sense, not cane, for short trip to bathroom in familiar, crowded, place.

a. Hill v. Sparks MoApp 1976. Sparks is operator of earth moving machine; several seasons experience using it. Exhibit: tells sister to stand on ladder o top. Hits mound of dirt, sister thrown in front, killed. Knew of chance of fall. Give RPP experience dft has. Is fair to hold that dft to that knowledge, just like superior memory. If is capable of remembering, knows is sharp turn. If is accident, take superior memory and give to RPP.

b. RPP has certain level of intelligence, knowledge, memory. If dumb, too bad(dangerous not to impute.

c. City has raised sidewalk, must factor presence of disabled people into account.

ix. RPP is not drunk; is voluntary.

1. Has six beers at home; needs to go to hospital, no one else can drive. What is RPP like? Is diff than person driving home? We pick and choose from reality, depending upon moral judgment (and foreseeability of risk).

2. Conduct evaluated (outside of crim) as if were sober.

x. RPP and mental illness

1. Creasy v. Rusk. IN, 2000 R’s wife admits him to BHC, memory loss, confusion, she can’t care for him, diagnosed w/ Alz. 3yrs at BHC: anxious, confused; resisted restraints; aggressive, hit staff members when tried to care for him. Creasy and Davis (Nurs Ass) putting R to bed; knew he was agitatated: Davis holding wrists; hitting, kicking; kicked left knee, hip, lower back pops, yells in pain. By definition, disease takes judgment away. Assume judgmental capacity to act reasonably, can’t do it. General rule: even if insane, expect to act reasonably, even though can’t. Deem as if they can reason.

xi. Robinson v. Lindsay WA 1979 K. Robinson loses use of thumb on snowmobile accident (11 yrs) driven by B. (13 yrs). Minor driving snowmobile be held to adult standard of care?

1. Gen rule for kids: hold to standard of care of kid of age, intel, experience (makes more subjective than RPP).

2. Here, “adult” standard; b/c activity inherently dangerous. This activity is adult activity, but no illegal. Also: archery, flying plane, driving car. Most cases that hold to adult standard involve motorized vehicle.

xii. Judge(decides what law is, tells jury. Jury: Find facts, evaluate reasonableness of dfts conduct. Hypo: dispute as to alcohol at kid’s party. Witnesses do not testify as to presence of alcohol. If no proof that dft acted unreasonably, no one testifies light was red (allegation was that ran red light) no way jury can find that fact, can’t find dft negligent, court will direct verdict for nonsuit; usually done for dfts.

xiii. Negligence as Matter of Law: Generic rules (court thinks applies to every situation, rules of law bad): specify reasonable conduct, take from jury. Pattern is to discard rule of law.

1. Marshall v. Southern Railway Co. NC 1950 Plt driving on road of 30 ft wide at night. Dft’s railroad trestle above road on timbers narrows road to 15 ft. Plt comes to trestle, other car w/ bright lights, plt ran into supports. If don’t stop w/in range of lights, automatically negligent. Court made rule. Decides jury couldn’t come to other concl; rule applies to any case in which fact situation, somebody has to stop while driving at night. Court is declaring rule of law, applies in any case in which facts give rise to rule.

2. Chaffin v. Brame NC 1951 Plt driving 40mph at night, highway 18 ft wide; car approaches driven by Garland, doesn’t dim lights. Plt blinded, runs into truck left unlit blocking lane. Plt sues truckdriver; Dft says plt contributory negl b/c didn’t have enough stopping distance. Rule from Marshall would say was negligent. Once blinded, is reasonable to go forward at reduced speed. Rule from last case goes to shit. Makes sense in most cases, but in some case does not.

3. Holmes in Baltimore: contr negl not to stop, look, listen at railroad crossing; if vision impaired, get out and look to edge of track. Stop, looks, but doesn’t get out of car to see beyond blocked car. Court says: if has to get out of truck and creep around, time passes, may not be same circumstances. Get new fact situation, rule of law doesn’t look as good as did in beginning. Courts should be leery of rules of law b/c if have set of facts that couldn’t anticipate, jury can do justice where court bound by rule of law wouldn’t be able to.

4. Rule of law in WA: opthamologist has to give glaucoma test, everyone gets puff even in CA

xiv. Negligence per se (use violation of regulations and ordinances of local gov’t; administrative regulation as evidence of negligence). Legislation. Statutory determination of what negligent better than court; both sides give evidence as to issue

1. Martin v. Herzog NY 1920 Dft driving at night crossed over center line on curve, hits buggy, kills. Wrongful death, dft claims decedent negl b/c no lights when driving. Statute: req’d lights; if not, misdemeanor. Negligence in itself; juries must conclude that if violated statute, are negligent. Jury has no choice in manner. Jury must find: Was statute violated? Use facts(where lights on. If find lights were off, must find there was negligence.

2. Softening that violation is negligence (AVOID).

a. Interpret statute (torturted way): Tedla v. Ellman NY 1939. Anne Tedla, bro J. Bachek walking along highway, is already dark in evening.Hit by car, B killed (deafmute); both collect, sell junk, were walking along highway w/ baby carriages. Vehicle and Traffic Law: pedestrians keep to left of center line, cars pass on their right. Do not follow statute (stay on east side). If applied Martin, would be negligent, Plt’s case would end. Here, court looks to facts, victims made choice to go on safer side of road. If go to safer side of road, violate statute. Court reads into statute exception for this situation. Negligence: failure to exercise care req’d by law. Statute defines standard of care.

i. But, if statute no definite standard for all circumstances; or,

ii. Regulates conflicting rights, obligations, then(Cannot be inflexible command that if observed would cause accidents.

iii. Cannot assume legislature wanted to use center rule even if more dangerous

b. Children (might be different if child knew) Rudes v. Gottschalk TX 1959. Hit while crossing road; statute says can only cross at sidewalks. Kids don’t really know what law is. General rule: don’t apply statutes automatically to children. Ever use statute w/ child? Always look to specific child; if child knows of statute, than can apply to them. Maybe, older child may have it apply to them (16 yr old knows about statute like this one). Will have case by case resolution.

c. Excuses: Impson v. Structural Metals, Inc. TX 1972. Dft tries to pass w/in 100 ft of intersection; car turns left into intersection, struck by truck. Action for injury to people in car, death. Dft: says forgot about intersection, sign marking intersection was small; no lines to indicate no passing; was watching car ahead, not for intersection sign. Court says none are acceptable; may be some instances in which will allow excuses. Excuses that will work: MUST KNOW:

i. Dft incapacity

ii. Neither knows/should have known of occasion for compliance

iii. Unable after reas diligence to comply

iv. Confronted by emergency not due to own misconduct

v. Compliance is greater risk of harm to actor or others

d. Invalid statutes(technical defect that didn’t impair process by which thing enacted v. technical defect that does impair process. Assumption that if don’t use statute, will be unreasonable.

e. Licensing statutes(failure to procure license as viol of statute doesn’t say person was unable to do activity well; license expire but still drive as well.

3. Effect of violation of statute (three jdxs)

a. Majority: Conclusive presumption of negligence (Martin

b. Merely evidence of negligence, dft can claim plt contributory negl/ass risk

c. California rule: rebuttable presumption of negligence: Jury must presume that violation of statute= dft was negligent; unless dft has excuse. Is close to conclusive negligence.

4. How determine which statutes apply to individual case? Plt must be w/in class protected by statute (class of persons) and Injury must be of type statute intended to prevent (class of risks)

a. Most important case: Wright v. Brown CT 1975. Dog owned by dft Brown injured Plt. Less than 14 dys before, dog attacked aanother, quarantined by dog warden, released before end of q period under statutes(as result of release, in position to bite plt.

i. Plt must be w/in class protected by statute (class of persons). Court says class of persons are members of community. But, seems like protection is against those in contact w/ rabid dogs.

ii. Injury must be of type statute intended to prevent (class of risks). Risk: being bitten by dog w/ rabies.

iii. Class of persons: plt is member of community. Class of risks: not sure injury part of class of risks; not sure dog bit her, only know is injured and attacked. Statute meant to protect against rabies, is narrower than all injuries.

iv. Pen up livestock on boat. Didn’t, livestock washed overboard. Pen is not to prevent from being swept overboard, but to quarantine. Washing overboard not w/in purpose of statute.

b. Haver v. Hinson Miss 1980 Hinson drives to plt’s house; pulls over, parks on lefthand side of street, in front of Haver house. Mrs. H comes to chat w/ kid Elizabeth; Hinson drives off, drags E, injures. Havers: Hinson was negligent per se in driving and parking on wrong side of street, violated statute. No, violation of safety statute is negligence per se ony when

i. Plt is member of class sought to be protected by statute (Class is only pedestrians and drivers who rely on normal flow of traffic);and

ii. Resultant harm is of type tried to be prevented by passage of statute. Risk of accident no less likely if had rounded block, parked right way.

iii. If read statute broader, say all people make assumptions about what side people will park on. If statute doesn’t apply, just can’t use statute, but can still fall back on RPP. Not mutually exclusive arguments.

xv. Breach: determining Reasonableness Assume have reas standard, how know what reasonable conduct is, was not reasonable? Analysis of breach: probability of harm balance v. burden of precaution (social utility that would be lost). Is quintessentially jury function, only know factors. Reasonableness if analysis of probability of harm, alternatives.

1. Find duty

2. Set forth exactly what negligent act was; balance(

a. Obvious risk

b. Social utility

c. Cost of precautions

3. Factors to determine: consider risk, probability of harm; negligent action (or failure to act, never what thought) exposes plt to risk of harm, was it unreasonable to do that. Risk must result in injury (played odds and lost). Is it worth it to run risk depends on benefit. Someone is bleeding profusely in backseat, have reason to speed. Can arrange tort system that even if reasonable to run risk, still compensate injured. .

4. Indiana Insurance Co v. Mathew IN 1980. Indiana(3 claims of negligence; reasonable b/c risks of starting car very low, no reason not to b/c of alternatives (pushing out of garage). If did blow up, harm catastrophic, not unreasonable to choose face. M’s bro out of town for weekend; goes to garage where lawnmower stored. Puts gas in, goes across street for 20 mins. Comes back, sees flame in engine, turns engine off, tries to snuff out flame w/ towels, flames grow, gas spewing, calls fire dept, returns, garage afire. Testified: afraid to push out of garage, thought would explode in face. Ins Co: brother was negligent in

a. Filling gas tank(Testified very careful; but, may have spilled. Jury’s function to decide facts.

b. Starting mower in enclosed area(Risk is there, but low; alternative is to push car out of garage. Too big of penalty. Low risk of catching fire, when risk low, for all practical purposes don’t worry about it.

c. Failing to push flaming mower out of garage(Value life over property. Risk: probability of harm w/ pulling Toro out. Probability of harm of leaving Toro in there. Harm if explodes in his face(much higher

5. Halek: in some instances reasonable for dft to allow risk to occur b/c can rely on other person to avoid risk.

6. Relationship between probability, likelihood, and injuries( what it means to act reasonably. If harms are serious you are going to worry about them even if probability is low. P( H(. Part of probability and harm is costs of alternatives. (There’s an inverse relationship between probability and harm). Bernier v. Boston Edison Co. Mass 1980. Arthur, Patricia 2:30 go to ice cream on Mass Ave; car, knocks down Edison light pole. Pole hits plts who left ice cream parlor, then car hits them. When pole hit, fell from car to east, hit car, legs of bernier. Legs injured, K has skull fracture. Patricia and Arthur sue Ramsdell (Alice), Boirau (other driver) and Edison. Allege Edison negligently designed, selected, constructed and maintained pole. Did E fail, through negligence, to design pole accommodated reasonably to foresee car impacts, avoid pedestrian injuries, so that cont’d use of pole is unreasonable risk of such injuries?

a. Risks: will fall over; depends on type of pole, where is pole(by shopping area, highly populated, risk higher b/c more drivers, more people. More people, greater likelihood will fall and hit. Given risk, was incumbent upon them to redesign pole. Must account for chance will be hit, environment in which in. Must account for all foreseeable risks, including someone else’s negligence, can’t assume world acts w/o negligence.

b. Real argument made: poles should be more resistant. Weigh cost of utility v. injuries

i. Avoid injury to plt (presumably)(wouldn’t have fallen and Retain utility of light

ii. More expensive to put in hoops. What are alternatives? If don’t find negligent, say willing to assume cost (death).

1. impact resistance of pole improved w/ minor alterations, not too inconvenient

2. likelihood of accidents need not be high to warrant consideration of safety features. Nature of harm severe, probability need not be high to warrant higher costs.

c. If harm and probability high, clear unreasonable to do conduct. When probability really high, have intentional tort.

i. Factors: Risk balanced against utility of action; what are alternatives to conduct? Usually some cost(in Bernier cost is addl money for hoops; put pole up, save social utility from pole, and prevent injury.

d. NEGLIGENT IS CONDUCT (DOESN’T MATTER IF EDISON DIDN’T THINK ABOUT PEDS, IS WHAT DID)

7. Giant Food, Inc. v. Mitchell. 1994. Plt shopping in dft’s store. Dft’s employee sees apparent shoplifter, pursues, shoplifter knocks down plt in escape. Was store owner negligent b/c reasonably foreseeable shoplifter would run into customer? Depends: how crowded, who is thief. If chase, probability greater that will run someone over. Must weigh utility of action that imposes risk v. privilege protecting (property). Here, court says not unreasonable to recover own property (not $ of property, but that theft is what happened, by getting back deter, not measured by value)

Risk utility: B modified comparative fault. Jury decides amount of damages.

b. Wassell v. Adams 7th Circ 1989 Econ method of apportioning fault

Facts: Plt at hotel not warned by owners that dangerous; raped when opens door.

Appl: cheaper for plt to exercise care than dfts to hire security guards; compare respective costs to plt and dft in assessing comparative negligence. Posner: higher costs to avoid unreasonable conduct, percentage of negligence lesser. Cost higher to act non-negligently, more reasonable not to do it. Cost of avoidance to dft much higher than cost of avoidance to plt.

Doctrines after comparative fault/contributory negligence

1. Last clear chance: no need for doctrine, compare fault of plt and dft.

2. Rescue doctrine:

a. Contributory: Most courts say bar of contributory negligent does not apply to rescuer, dft could not raise defense. Only barred if rescuer’s conduct rose to level of recklessness/intetionality, then dft can say rescuer should not be able to recover.

b. Comparative: courts split; but, easy for rescuer to say acted reas under emergency doctrine

c. Oulette v. Carde RI 1992 Facts: pinned under car in garage, spills gas, calls friend. Friend arrives, spark, burned by electric garage opener(One who sees person in imminent danger cannot be charged w/ contributory negligence unless rescuer acts recklessly. Can’t consider rescue/plt’s fault in assessing damages.

d. Govich v. NAmer Systems, Inc 1991 Facts: D.G. hearing impaired, dog alerts to all noises, knocks. Home from dinner /w mother, sees smoke. Dog doesn’t answer calls, enters house to rescue dog. Mother enters to rescue him. Dog not saved. D and mom sue dfts(defective coffeemaker caused fire, claim emot dist, lost wages. Under rescue doctrine of wagner, dft owned duty of care to D and mom, both are rescuers. Leave comparative negligence plt/dft to jury.

3. D’s intentional/reckless conduct: if Plt contributorily negligent,

a. CL(plt’s negligence not bar to recovery. Theory: could not compare two diff things, should not. If Dft acted as such, fault on diff level then plt merely acting unreasonably.

b. After comparative fault, if dft has acted intentionally/recklessly, but plt also negligent: plt not watching, dft driving recklessly. Policy: discourage intentional torts.

c. Read statute carefully: if says compare fault, may have to compare intentional to negligent. If says negl/reck, then compary negl/reck but not intentional tort.

d. Courts: will probably not compare intentional tort to negligent plt if intentional tort causes physical harm. Practical effect? If rapist had money, jury would not allocate fault to plt (would compare).

4. Plt’s illegal activity, bars plt recovery: policy to discourage illegal activity. But, some activity nominally illegal. If engage in illegal activity and harmed, assume any injury by deciding to act illegally. If blatantly illegal criminal activity that is very serious, making pipe bomb, then that person cannot recover at CL, should not be allowed under comparative fault. Sweeps in too many action if is purely crim activity bars recovery.

5. Barker v. Kallash NY 1984 Facts: 15 yr old plt making pipe bomb from pipe filled w/ powerder from firecrackers sold by 9 yr old. Explodes, injured, sues 9 yr old. No recovery; When plts injury direct result of knowing and intentional crim activity, cannot seek compensation for loss if criminal act so serious offense as to warrant denial of recovery

6. Intervening cause: Breaks chain cause of causation, may act as superseding, intervening. If go w/ comparative fault, use intervning cause cautiously.

7. Res ipsa loquitor: But, when get to jury, have to compare plt to dft negligent (total 100%), w/ res ipsa, can’t compare. Also, at CL, if plt negligent, then would be no recovery: (1) plt contributorily negligent (2) if apply element 3 plt can’t contribute to injury. At CL plt barred anyway. Res ipsa not doctrine amenable to comparative fault. Another thing to compare what don’t know to what do. Instead, compare causation: how did dft’s action and plt’s action cause injury.

Apportionment among dfts

1. SETTLEMENT

a. One judgment rule: Plt’s claim fully satisfied only once.

b. Corresponding rule of release: dft pays, plt grants release from all liability for cause of action. CL: if released one dft, had effect of releasing all dfts. Extinguished cause of action. Bad: discourages settlement.

c. Instead of release, grant covenant not to sue. Written doc that doesn’t release from liability, but in return for payment I covenant not to sue you. K w/ good effect(doesn’t grant release to all dfts, and if want more $ afterwards can still sue. But, if breach by suing, then sue for breach of K. Damages: equal to what other party recovered in suit.

2. Contribution rules (issue in damages)

a. CL: can receive contribution from other dft, if two dfts, each dft pays 50%. Effect contribution, divided into how many #dfts.

b. No contribution in several liability.

c. Comparative fault:

i. Effect on plt: plt can recover where couldn’t before; but, most plt can recover is percentage of damages not responsible for. Dfts liability(If plt 25% negligent, two dfts 37.5% negligent. If no comparative fault (straight CL rule), plt gets nothing, b/c contributed. If go to comparative fault, plt can recover 75% of plt damages. 25% attributable to plt’s own fault. Jury says one D 37.5, other 37.5.

1. If retain j and s, can get 75 from either.

2. If don’t retain (go to several), plt must get 37.5 from D1, 37,5 from d2; dft cannot pay more than own % of fault, no contribution issue.

American Motorcycles v. Superior Court Cal 1978 Teenage boy injured in motorcycle race sponsored by AMA, sues them for negligence. AMA: wants to bring parents in on claim, should share in liability; also, not j and s, but comparative fault and own percentage of share, joint tortfeasors whose negligence results in single, indivisible injury. At CL AMA bring in parents as dfts when plt has chosen not to sue parents? B/c of j and s, is plt’s choice. AMA could bring parents in only for contribution if AMA paid full judgment, parents pay percentage of judgment(50% (pro rata).

Issue: abolish J and S in light of comparative fault? Here, AMA thinks can bring parents in as dft, wants to abolish j and s b/c have gone to comparative fault. Each 50% liable, we shouldn’t be any more than 50% liable to plt, if want full recovery, bring parents in, otherwise violate liability ought to be proportionate to fault. Court says no: will retain j and s.

1. Sometimes, one dft alone cause of entire harm w/ two dfts. Two dfts set fire, but each alone could have caused injury, there, should have j and s.

2. In other cases, is indivisible harm. Each caused entire injury.

3. Some ptls won’t be able to fully recover; plt only needs one solid dft to recover full amount. J and S determines who bears risk of loss when insolvent dft. If keep J and S, risk of loss on solvent dft. States are split. Some keep, some don’t.

3. Indemnity: Eg: D1 liable for another dft’s negligence.

a. Vicarious: Both j and s, but basis of Domino liability is as employer.

b. Retailer: if injured by product, sue store bought from and manufacturer, but man made product. If employer/retailer pay full judgment, will seek INDEMNITY not contribution (partial payment). Were initially liable for policy reasons. IF go to comparative fault, shouldn’t change rules

4. Settlement and trial w/ multiple dfts: J and S: one dft can pay all, and then ask for contribution. Trad’l forms of Settlement w/ one of several tortfeasors: settles w/ one, can pursue w/ other?

a. Plt’s claim is fully satisfied: if sues A separately, recovers judgment from A, no claim against B. Claim and settlement satisfied and extinguished.

b. Releases under CL rule: release of one tortfeasor was release of all j and s liable. Release extinguishes cause of action, NOT SETTLEMENT.

c. Covenants not to sue: not release of claim, but K of Plt not to sue A (indemnify A if held liable). Settle w/ one, sue other.

d. Modern: release of one is not of other unless provide as such.

e. Hypo: Plt 10% at fault. D1 45%, D2 45%. Damages 100,000. P settles with D1 for 10G. P get from D2 at trial? Jdx (If in s jdx, D2 only 45G. If in j and s, each liable for full amount. At CL, plt gets nothing b/c Butterfield, plt contributed negl, no recovery. If settled w/ D1 for 10G, then only 80G total from D2.

f. Hypo: D1 settles 10G; goes to trail v. D2 gets 80G. D2 pays 80, D1 pays 10. Jury allocated percentages at 45, 45. Now, D2 wants contribution. Sue D2? Have covenant for contribution b/w plt and D1. No contribution from D1 for D2 if D1 has covenant not to sue w/ plt; assume j s.

i. Rule in CA: for settlement to preclude contribution, has to be good faith settlement, w/in range of settlement that corresponds to factual situation.

5. Current CA Rule re J and S: J and S for econ loss (objectively verifiable(wages, medical), S for non-econ loss (mental suffering). AMA rule is not rule in CA; AMA retained J and S; CA statute passed and in part overrules AMA for nonecon damages (several).

6. Comparative fault effect on proximate cause: unaffected.

7. Comparative fault and adjustments Price v. Kitsap 1994 Plt already had whiplash, riding dft bus. 4 yr old engages emerg stop switch. Plt seriously injured. Boy so young can’t be negligent; solution: exclude boy, his 80% back on table, 80% does exist. Know that other 2 equally negligent, divide 80% b/w them, add up to 100%.

a. Diff if gov’t immune: treat gov’t like kid? No, still negligent, but can’t sue gov’t, won’t get full recovery.

b. Hypo: accident caused by 3 dfts. Plt in one of cars, injured. Car plt in driven by best friend. Friend says don’t sue me, plt says ok, lawsuit only against D2, D3, not D1. What about D1’s negligence in front of jury? Allocate fault according to faul. Can only recover 66%, account for 33% b/c plt chose not to include third negligent party. Allocate fault amongst all 3 to get to 100%, all have contributed some fault to accident.

8. One dft acted intentionally: Board of county Commissioners v. Bassett WY highway patrol pursued Ortega from Dubois at high speeds; O tries to cause crash to divert officers. C and B pass several officers; officer was briefing other,did not warn C of danger ahead. C and B injured, O arrested. B and C sue: jury finds 0 fault to C, 40 to Highway patrol, 20 to sheriff, 40 to national park service. Problem: party most at fault is intentional driver; Missing tortfeasor(driver not present. Include in calculation of fault?

1. Read statute

2. Argument for excluding as dft: policy reasons to exclude(difficult to compare, want to make negligent actors accountable for negligent actions, if don’t bring int in this action still get him for intentional tort.

3. Including intentional dft: if don’t include doesn’t have to pay

9. One acts intent, but sort of int tort should have foreseen: Turner v. Jordan PLt nurse, dft shrink work together. One of dft’s patients has known history of violence, but shrink doesn’t taken any steps to prevent attack. Patient beat nurse, severe head injury. Issue: compare dft J’s negligent to intentional act of patient (first opportunity)? Nature of negligent act of dft: the very negligent act is failing to warn/protect from intentional harm; then, if negligent act if failure to protect from intentional harm, failure to do that, should be liable for all of that. Intentional tortfeasor should not be factored in. Statutory interpretation: can answer question.

10. Bexiga v. Havir Manufacturing Corp John jr operating power punch press, minor. Right hand crushed by ram of machine, loss of fingers, hand deformity. Issue: is plt’s contributory negligence available defense? Plt’s action: repetitive; reached in to touch plate; would hurt himself; harm is high, probability of hurting self is high. Utility of action low, saves one piece of metal. Contributorily negligent? Yes. Should be barred at CL b/c pre-comparative fault. Not barred from recovery b/c people in charge have duty to protect from harming themselves. DEFENSE OF CONTRIBUTORY NEGLIGENCE UNAVAILABLE. Paternalistic? No, accident is almost inevitable, exact behavior should have prevented against.

11. McNamara v. Honeyman: mentally ill patient hangs self in state hospital, dies from injuries. If allow comparative fault, hospital no longer had duty to reasonably protect patient against self-harm. Will not apply compfault, failure of duty to protect from suicide, no fault from plt, Plt’s decedents full recovery.

Second defense: ASSUMPTION OF RISK (express or implied)

Express assumption of risk, contractually based; if oral, still has attributes of K

1. Has to be really clear in K before will uphold K b/c similar to consent, policy(bodily autonomy. Before agree, must be clear.

2. Read K. If not explicit, doesn’t cover.

3. If does cover risk, court may be induced for public policy reasons to override K. Tunkl. Overcome K: Read K finely, some ambiguity, won’t really get over it really outside of medical context.

4. Tunkl factors: is express agreement apply or not, balance

a. business suitable for public regulation,

b. service of great importance to public,

c. open to any member of public,

d. bargaining advantage: essential nature of service,

e. adhesion K,

f. P under control of D.

5. If overcome, usually in medical context.

Boyle v. Revici Z sick w/ cancer. Dr. R purports to treat, tells her not FDA approved, offers no guarantees. She understood, undergoes his therapy, dies quickly. Held: jury should have been instructed re express assumption of risk, bars recovery even w/o written doc. As though consented.

Tunkl v. Regents of Univ of CA, Cal 1963 Hospital negligent in care of plt. Plt admitted to hospital on condition execute release absolving dfts from liability for negl/wrongful acts. Held: Releasing party does not really acquiesce to contractual shifting of risk, no adequate consideration for transfer. Service is essent, assumption of risk is compulsory. Don’t accept immunity from careless failure to provide hospital service. Court disregards express assumption of risk. THIS CASE SAYS WHEN WILL DISREGARD.

Ciofalo v. Vic Tanney Gyms NY 1961 Plt slips at edge of pool at dft’s gym. Signed exculpatory clause. Upheld: must be express language, no special legal relationship, overriding public interest for court to discard K provision.

Jones v. Dressel Colo 1981 Signed exculpatory clause to use dft’s facilities for sky-diving. Suffers injury when planes crashes after take-off. Enforceable: Exculpatory doesn’t protect from willful/wanton negligence. Ordinary negligence? Yes, not affected against public interest, fairly entered into, unambiguously expressed parties’ intent

Concl: plt barred by clause; clear that accident that caused death w/in scope of K: yes

Easiest way to avoid defense of express assumption of risk is that doesn’t cover injury. Contractual defense. Videotape signing; can’t avoid K by making argument that signed w/ gun to head.

Implied: from facts, actions Dobbs, p. 277: most agreements tacit, not expressed.

a. Primary Assumption of Risk: Those risks that D owes P no duty. (The classic example is sports, trains, airplanes, amusement parks)

1. Under comparative fault, we don’t need primary assumption of the risk anymore b/c is just no duty.

2. Same conclusion ass of risk, comp fault.

b. Secondary Assumption of Risk: D owes P a duty and breached that duty. P either a) reasonably encounters the risk or b) unreasonably encounters the risk.

1. Unreasonably encounter

a. Contributory negligent at CL, no recovery don’t care if plt was reasonable, unreasonable.

b. Comparative fault: Chance of partial recovery. Yes, plt negligent, but not complete bar. Under implied assumption of risk(what do we do? Should modify doctrine of implied assumption of risk. Keep as complete defense even after going to comparative fault? Plt acted unreasonably, should be treated as comparatively negligent plt, not complete bar.

1. Reasonably encounter: 2 ways in which we can treat this P:

a. keep common law assumption of the risk and P is barred completely (cannot treat as comparative fault b/c P did so reasonably)

b. give P full recovery. Most courts say b/c P acted reasonably will give P full recovery.

Crews v. Hollenbach Hollenbach excavated land marked to indicate gas lines below; strikes buried natural gase line of Washington despite markers. No contacts made, natural gas leaks, resident notifies fire dept. Washington sends Crews to repair; gas ignites, Crews injured. Issue: assumed risk precludes recovery for plt? Plt argues negligence: striking buried gas line while digging.

Test to determine whether from his actions had assumed risk:

1. Knowledge or risk (assume w/in if have knowledge, necessarily appreciate): any kind of leak dangerous, working in 20 yrs. But, said didn’t know specific risk in this case.

a. Majority is gotta know what giving up, is subjective test of what know. Actual knowledge (like consent).

b. Minority view (in Crews) of constructive knowledge. If don’t have actual knowledge/appreciation, still assume. Becomes fictional assumption.

2. Voluntarily assume risk-if know risk and encounter, agree to accept consequences from risk coming to fruition. Assumed job of gas leak repair guy, is inherently dangerous.

(Approach based on K b/c offered and accepted job w/ inherent risk. Test based on reasonableness. Concl(SJ allowed

Sunday v. Stratton Vt 1978 Facts: Plt pays at dft ski resort. Dft’s ski slope has smooth novice trail. Ski struck small bush, concealed by snow. Injuries result in permanent quadriplegia, 1.5 mill verdict. Held: No risk assumed. Skiers fall, but not every fall inherent to sport. If dft has assumed risk/duty, not assumed by plt. Plt assumes nor risk of injury, but use or reasonable care by dft.

Defense(implied assumption of risk (secondary)

1. Knowledge/appreciation of risk: novice skier, know in skiing that will be injured, inherent in sport.

2. Voluntary: yeah, did it.

Inherent dangers of skiing: hitting tree, falling off lift, hit by other skiers. Court says risk of bush outside of what assumed. When buy ticket for day of skiing, tell resort owner that has to maintained. No bush in middle of ski trail. Say to operator I know there are certain risks, but buying ticket you don’t have to protect me from those risks. Don’t have duty to protect me, some implied assumption of risk can be reconfigured and thought of as lack of duty. Think of in prima facie case. If implied assumption of risk v. no duty(no difference in outcome, plt loses either way. Don’t need assumption of risk implied anymore? Get rid of it as defense. In those cases, effect of plt’s action is to relieve dft of duty.

Assumption of risk sports cases Duty analysis: which obligations is saying to dft don’t have to protect me against those risks. Sport: custom; what is dividing line? Not what’s illegal in sport. Lots of things illegal w/in risk agree to be protected against. Prox cause and duty: both decide which risks responsible for; In Prox cause had trouble finding dividing line re risk

1. Turcotte v. Fell NY 1986 Facts: Plt famous jockey, riding in race. Thrown from horse when clipped heels of other horse. Paraplegic. Suing Fell, broke rules, caused F horse to jostle T (negligent). Is Primary, no duty: know will not be protected against certain risks. Give consent beforehand to relieve dft of obligation of conduct, take chances of injury from known risk from what dft is to do. How know what sorts of actions w/in sport: Do not consent to reckless/intentional. But, Prof athlete more aware of dangers, more willing to accept, than amateur. T: admits rules re what horse can do malleable; knew of risks, relieved F of duty of reasonable care. Rule violation is inherent risk assumed when undertake sport. Concl(dismissed for Dft

2. Gauvin v. Clark Mass 1989 Facts: Opposing teams in hockey college game. PLt injured when dft buttended plt in abdomen violated safety rule. Held: Must be reckless diresgard for safety. Violation of safety rule, but not reckless. Could argue: may be outside of scope even of what’s customary.

3. Kahn v. East Side Union HS District Aug 2003 Plt broke neck while diving into 3.5 ft shallow pool. Coach negligent(failed to train, supervise, protect against diving accidents. Plt Diff: is coach, not co-participant

Dividing line: reckless, had to show outside of range of ordinary activity. V. co-participant(Coach is fully in control, is not participant, can fully and rationally think. Need dividing line to protect coach from liability b/c don’t want to change teaching, course of activity itself: don’t want to hinder encouraging competition, push athletes.

Unless can prove dft acted recklessly, no liability for all activities that result in negligence. Primary assumption of risk: not full duty owed, just what could have expected. Relationship had going in to swimming, what could do to plt that might be unreasonable except in sports context. Court concludes: here, plt could prevail b/c if didn’t teach how to properly dive

Trial procedure

1. Burden on plt to prove 5 elements of negligence

a. Preponderance of evidence: when weighed w/ opposed evidence has more convincing force, greater probability in favor of party on whom burden rests (plt)

b. Burden on dft when needs defenses

2. Equipose: If jury simply says can’t decide, dft wins. No preponderance of evidence.

3. As matter of law, plt cannot win.

a. At beginning of trial plt makes opening statement w/ facts intended to prove. Here is what evidence will show. In describing facts, plt may omit facts critical to showing one elements, dft: plt can’t win w/ what proven.

b. More likely: plt puts on case, rests. Move for nonsuit. Not enough evidence jury could reasonably conclude for ptl, nonsuit for dft. Entitled to directed verdict.

4. Types of proof:

a. Direct evidence(light red when entered intersection

b. Circumstancial evidence from which take fact, infer another; skid marks make inference

5. Jury: evaluates testimony, decides which testimony accepts. Evaluates conduct.

IV. STRICT LIABILITY FOR PHYSICAL HARMS

HISTORY: When tort surfaces, is SL. Crime and tort aligned. Tort keeps peace.

1. Indirect v. direct: Trespass: form of act, direct injury. Case: indirect injury (later develops). Hit someone w/ log: trespass; if drop log, plt trips: case

2. Anonymous(if do something, injure someone, pay. Other case: drunk, starts pounding on door w/ hathchet. Wife opens window “we’re closed.” He swipes w/ hatchet. Doesn’t hit her. Assault and damage although didn’t hit her. Assault for keeping the peace strong concept.

3. Original defenses to being SL: Weaver v Ward 1616. Weaver brings trespass action of assault battery v Ward. Ward: he and plt were soldiers screwing around, accidentally shoots plt. Felony: need intent. Trespass: for damages re hurt/loss, no intent. No excuse from trespass unless utterly not at fault. If someone grabbed his gun and did it, maybe not liable (no voluntary act). Also off hook if plt’s ran in front of gun when firing. Concl(SL trespass; you’re liable, don’t care re intent.

4. Brown v. Kendall Mass 1850 HISTORIC CASE Action of tress for assault and battery v K, died pending suit. K was beating 2 fighting dogs, trying to separate them. Backed into plt, hit plt in eye; Dft asks for jury instruction that if using ordinary care, plt not, plt no recovery. Court here: Shaw reconfigures tort law. To recover: Dft must be at fault. Plt must show: intention or negligence (dft at fault), RPP test. 1850 in SL; here, massive shift from SL to fault (intent/negl) to recover. Means: 1. continued dev of law of fault (have covered already); 2. Massive question: did any of SL that preceded Brown survive or is all gone? Concl (not SL

5. Trespassing animals and nuisance(Survive Brown.

a. Owner of cattle SL when cattle trespass on someone else’s property

b. That rule stayed in UK after Brown; modified in West

c. Nuisance law: if on property, can’t impair use and enjoyment of other individual’s property (usually adjacent). Prob: most are like int torts, meet knowledge prong of Garrett.

6. SL FOR CARRYING ON ACTIVITY ON PROPERTY

a. Rylands v Fletcher 1865, 66, 68 STILL CITED BY COURTS. Y (DOESN’T APPLY TO PRODUCT; draws fro pre-Brown, nuisance law). Plt operate mine, dft mill. Dft builds reservoir (ind Kor), over some shafts used for mining, floods those, seeps into plt’s horizontal shafts. Proc: Action by plt for damages caused by flooding. Not negligence( no breach: acted RPP. Sue dft? Dft owns pond, but ind Kor put pond in. Liable for torts of ind Kor? No, unless control over details (did not). Here brought on basis of SL. Defense: we don’t have SL; lowest court (Martin) says that, can’t recover w/o fault.

i. Appealed: Chamber reverses. THEME: IF WILL HAVE SL, WHEN (AS OPPOSED TO BASE LINE RULE OF FAULT) AND WHAT IS TEST.

ii. Two diff rules:

1. Middle: mischief. If escape, likely to cause mischief, keep on property at own peril. Cattle/CL fume/Privy. Cattle are not health hazard.

2. House of lords: natural v. nonnatural. Non natural use: built over abandoned mine; hmm, but made reservoir. Natural v. not more narrow rule: privy is not natural. Rationale for this distinction: (if bring on property, natural use, fine; if nonnatural and escapes(SL). Natural use: if accumulates, then escapes, no liability.

b. Will test stand up? Thomalen v. Marriott Corp D Mass 1994 Hotel hosts Murder Mystery Weekend; acto tries to eat fire, engulfed in flames; other actor knocks over can of lighter fluid, burns Belmont, guest near stage. Held: Marriott not SL b/c although adopt Rylands, no escape of dangerous instrumentality from property. NOnnatural use( fireeating. Dft: reads Ryland, SL when escapes, Rylands doesn’t apply.

c. Sullivan v. Dunham NY 1900 Annie H, 19, on public highway, hit and killed by stump blasted by dft. Held: when blasting throws rocks onto land of another(trespasser; same if to persons. If injury indirect, no trespass. If accidential not intentional, no liability But if direct and trespassory invasion of land/person, liability. SL b/c like trespass to person, but not int tort. Goes back to old test; distinguish b/w indirect and direct which is meaningless. Court did not follow Ryland. Most Am court rejected R at this pt.

d. Conceptual conundrum: Can accept Brown, but retain Rylands in coherent sense? Exner v. Sherman Power Construction co. 2nd C 1931. Dft blasting at development, 935 feet from plt dwelling/rest. Explosion shook house, threw Mrs. E from bed, damaged property. Statute not intended to protect plt but is case of absolute liability(in blasting cases, w/o regard to fault, absolute liability when actual invasion of property by rock/debris. Not issue of fault; if damage inflicted, liability if no excuse. Dft no fault, but stores dangerous explosive for use in business; no justification for relieving of liability; owner of business, not injured, should bear loss. Is not direct injury, no liability under Sullivan. But, court holds SL on ground that see above. Dangers that are ultra-hazardous.

e. Paradigm shift: Rst 1st, focus on ultra hazardous activity: one of high risk where can’t easily eliminate risk. Becomes original basis for SL in modern US

f. Modern Rule: Rst second MEMORIZE!!!! SL: Liability for abnormally dangerous activity on property that injures other off; Balance FACTORS(

1. existence of high degree of risk of harm

2. likelihood harm results from it will be great

3. inability to eliminate risk by using reas care

4. extent to which activity is not a matter of common usage (Rylands leftover)

5. activity’s inappropriateness to where it is carried on and

6. extent to which activity’s value to community outweighed by its dangerous attributes (otherwise shut down innovation)

g. Know activities gen subject per se to SL

i. Blasting/storing of explosives (some courts not sure on storage)

ii. Hazard waste sights (toxic substances ie radium)

iii. Poisons: crop dusting, pest control, fumigation

iv. Enormous force involved: Rocket testing

v. Ground damage from aircraft that crashes? Res ipsa to airplane crashes; therefore, likely is common and can make safe, probably no SL.

vi. HYPO: plts organic farmers. Use no insecticide, certified as organic. Neighbor farm uses insecticide, spray organic farm w/ helicopter, get decertified. Allege SL to helicopter. Make arguments why/why not activity is SL. Court: found SL.

7. Cause of action SL elements: No duty/breach. Actual cause: YES; only person causes injury pays. Damage: YES. Proximate cause: no, addressed in SL b/c is strict?

a. Use risk? SL only for charact that made activity/wild animal danger.

i. Mink: eat young subject to loud noises. Blasting, mink eats all kittens. Court: no SL; blasting dangerous b/c vibration, flying debris, not that will frighten mother mink.

ii. Wild animal in captivity, if injures, SL.

iii. Includes domestic if aware of viciousness. Fido bit postman once, SL second time. Pet rattlesnake liable for first bite.

iv. If wild boar gets loose, dangerous b/c will tear you up. If falls asleep on sidewalk, outside scope of risk (suggests do have pc).

b. Intervening causes: carry on abnormally dangerous activating, including animal, SL despite 3rd person even if unforeseeable.

i. Rst: no limitation re prox casue

ii. Case law: will cut off liability even though SL offense

1. Shoot at truck full of dynamite, blows up. Owner of truck (owns dynamite), SL? But, intentional intervening cause. Court says yes, cuts off liability.

2. Theives to cover tracks set off blast size of earthquake. Injured by explosion sue owner of dynamite, who say: but dynamite set off by intervening intentional cause, shouldn’t be liable. Court: you are liable. But, some evidence of prior break ins, argue was foreseeable risk.

3. Store dynamite, stolen, deliberately set off at plts house (vendetta). Son killed, sue company that owned dynamite from which stolen. SL: store dynamite; went off, you’re liable. But, went off 3 wks later, 100 miles away. Court says no( Termination of risk or Palsgraff problem.

8. CL SL Defenses (same as negli)

a. Contributory negligence (No)(CL: can’t be defense; will not recognize. If holding dft SL, if not based on negl doesn’t make sense to have defense based on negl (no mix and match). Minimize impact of contr negl (otherwise is complete bar)

b. Assumption of risk (Yes): plt barred even if dft engaged in activity subject to SL

c. To comparative fault: problem; how compare fault that is negligent (plt) to dft’s nonfault (SL). Sum total of fault must be 100%, but dft not at fault by definition; in products liability(what if plt misused product.

i. When move to comparative fault, contr negl can reduce recovery.

ii. W/ assumption of risk: treated same as negligence, see if primary/secondary.

V. LIABILITY FOR DEFECTIVE PRODUCTS

1. Liability of manufacturer/seller of product/supplier of goods for physical harm caused by defect in product. Can bring negligence but, hard to prove negligently manufactured. Bring negl or just SL or both.

2. Ultra hazardous activities subject to SL. Courts cut back on PL need fault.

3. Relationship w/ K law problem: injured by product, not in privity

a. Originally, if not in privity (Winterbottom, no recovery

b. But, most plts are not one that bought product, or manufacturers don’t sell

c. Losee v. Clute. 1873. Makes boiler negligently, sell to Saratoga paper. Injury to neighbor, neigh sues manufacturer. Court: no liability b/c K was w/ Saratoga; when boiler accepted, manufacturer resp ceased, no privity.

d. Exceptions to privity: If product inherently dangerous, manufacturer knows, can’t hide b/h privity. McPherson v. Buick Motor 1916: Buick at 8mph wheel collapses, plt injured; sues manufacturer under negl. Court: negl if nature of thing is such that reasonably certain to put life in peril when negl made and foreseeable risk of injury, privity not problem. Still, hard to prove large manu negl. Discovery not there like today.

4. Plts lawyers turn to warranty: Idea: can’t misrepresent product, like deceit/fraud. Cases: express misrep.

i. Baxter v. Ford 1932: buy Ford after reading lit that windshield shatterproof; breaks from pebble, hurts eye. Sues Ford for misrep, Ford says we don’t have K, is K cause of action. Goes to state S Ct(won’t allow privity to prevent such claim for express misrep. Shouldn’t have said won’t break. After this case, if are Ford: no express, implied, warrant for first x miles.

ii. Henningsen v. Bloomfield Motors: no express in small print, will only pay w/in short mileage. Driving after expiration of warranty, sues. No express, argues is implied warranty of merchantability(if sell car, imply will do basic things car does. For this plt, lots of probs: court must recognize implied warranty (does); but, not in privity (husband bought car)(court says implied warranty runs to anyone that would use car; K itself disclaimed express/implied warranty(unconscionable.

5. Now, 1963: Greenman v. Yuba Power. CA leading role. Plt using power saw wife bought him, popped loose and hit him. If product defective, doesn’t do what supposed to, injured, ought to be SL. Manufacturer SL in tort when put product on market that is defective. If in SL in tort, privity, nature of K not prob anymore. Influence of warranty still here: idea b/h warranty (product purports to be safe) translated into 1st test for SL products

6. SL? No b/c econ loss(not tort damage b/c suing for damage to product.Moorman Manufacturing Co. v. Natl Tank Co il 1982 Plt bought steel grain storage tank to use in feed processing plant; 10 yrs later, steel plate cracked. K claim, turn into tort law, SL? No b/c econ loss(not tort damage b/c suing for damage to product. Econ loss; if don’t like product, sue for breach of K. Tort covers PII. Econ loss: damages for cost of repair, replacement, loss of profits. Hypo: plane crashes b/c defective x in engine, causes engine to go out(SL or econ b/c plt escaped? Hard.

7. 5 types of loss for SL

a. Physical injury to user or property (property is other than the product)

b. Economic Loss From Defective Workmanship - not enough byitself.

c. Physical harm to P’s other property and to the product itself. Product just doesn’t work right but injures something and someone else( can be combined in 1 suit.

d. Physical harm only to the purchased product. What if the product itself is damaged b/c of the defect, but no one else is injured?

1. Some courts says Yes.

2. Some courts say no.

e. Destruction of a product constructed or repaired with use of component: What about a component product that it put into a larger product and it is a defective in such a way that it causes harm to the larger product? Under strict liability. Similar to having the defective product injured property.

8. Prima Facie Case for products liability

a. Defect in the product attributable to manufacturer

i. Manufacturing defect: don’t intend widget to turn out that way, just prob in manufacturing process, something goes wrong, hurt as result of defect.

ii. Design defect: all turn out the same way, defect is in design, harmed.

iii. Information defect (failure to warn): Make product, turns out just as designed, plt injured. Designed well, but to use safely, needed to know that if did x, would get hurt, you didn’t tell me. As result, your product has info defect.

b. Actual cause

c. Proximate cause

d. Actual Damage

MANUFACTURING DEFECTS

1. Lee v. Crookston Coca Cola bottling Minn 1971 Coke bottle explodes in waitress hands; not struck anything before, temperature extremes or mishandling. Manufacturing defect. Could be misdesign, but evidence shows that one bottle idiosyncratic. Easiest to prove: manufacturing, just compare broken to normal one. Doesn’t tell you test for defective product, but that is manufacturing defect(should have gone to jury on SL

2. Kerr v. Corning Glass 1969: took pyrex dish out of over, exploded. Not enough for defect b/c could have been b/c of subsequent damage.

3. Natural/nonnatural test: Like manufacturing, but special rule for food Mexicali Rose v. Superior CourtCal Plt swallowed one inch chicken bone in enchilada from restaurant; throat injury. Ca minority rule: Injury producing substance natural to preparation of food, reasonably expected by nature, food not unfit or defective for SL, implied warranty. Can still be negligent in preparing food. Diff to win negligence b/c if high volume.

4. Consumer expectation: Jackson v. Nestle Beich Ill 1992 Facts: plt broke tooth on hard pecan shell in Nestle candy. Nestle moved for SJ: natural to pecans. Held: foreign/natural doctrine gone! Use consumer expectation. Arises out of K law. Like warranty theory. Protect consumers from unexpected risks.

Design defects

1. consumer expectation test

a. Doesn’t work if bystander injured

b. Leichtamer v. Am Motors Coprt OH 1981 Plts: passengers in care driven by Vance; V overturns Jeep. Rollbar hits passengers: V and wife killed, Lechtamer legs twisted, paraplegic. Allege: design defect(Rollbar designed for if go over on side; but if go over back to front, displaced w horrendous consequences. Test: CONSUMER EXPECTATION TEST. Consumer expectation not met here b/c if car rolls, should be protected inside even if flip. Here, car rolled, not protected. Good argument. Consumer has expectation about roll bar b/c advertised as such. Consumer expectation: limited when can’t have knowledge, or if bystander. Need another test. Foreseeable people will drive negligently. Have to anticipate crashworthiness.

2. Risk utility: Majority rule

a. Knitz v Minster Machine Co OH 1982 DFft: made press w/ 60 tons of force. Originally: 2 hand button tripping device so no hands in danger area. Sold to Toledo, who busy optional foot pedal Plt: press operator, moves foot pedal, leand on die w/ hand, foot activates, amputates 2 fingers. Other safety device to push away hands not attached. These machines are repeat use. If no safeguard, sooner or later will injure. Consumer expectation test: when smash, doesn’t violate consumer expectation. Dangerous product can escape this test. Court’s separate test:

i. Reas expection of consumer or

ii. if benefits do not outweigh risk inherent in such design. Like Carroll Towing

1. riks

2. gravity of danger

3. feasibility of improving

iii. Purport to give SL test, but use risk/utility. What if product is new?

3. Risk utility w/shifting burden (CA)

a. Barker v. Lull Engineering Co Cal 1978 Plt is experienced operator of high lift industrial loader, lifts wood up, unsteady ground, shout at him to get out, does and hit. No protective canopy, no outriggers to steady. Product def in design if:

i. plt demonstrates that product failed to perform as safely as ordinary consumer would expect when used in intended or reasonably foreseeable manner or

ii. if plt proves product’s design proximately caused injury and

iii. (after burden shifts) dft fails to prove that on balance the benefits of challenged design outweigh risk of danger inherent in such design.

1. Diff from Carroll Towing: in negl plt has to prove that safer alternatives and that pole that exists causes injury and that alternative feasible to use for intended purpose and that cost-effective. PLT MUST SHOW ALL.

2. Here: Focus on product, not reasonable of dft behavior. For plt to get to jury, prove design caused injury. For pole in Bernier, under Barker test prove design of product caused injury; that’s all need to prove actual cause. Nonsuit overruled. Dft must show benefits outweigh risks; easier to get to jury

3. Bus rider: merely prove that absence of bar caused injury. Design of product caused injury. Because no bar, fell. Doesn’t win then, just goes to jury. GM must say that benefits v. risks, bring in econ experts, evidence why no bar.

4. If plt in CA using this test, do present evidence of alternative.

4. Hindsight negligence: Wilson v Piper Aircraft Corp OR 1978. PLt killed in airplane crash. Evidence: carsh occurred b/c used carburetor, not fuel injection, no carb heat gauge. Although FAA approved design, compliance w/ regs not complete defense. Test: whether reas prudent manufacturer would have so designed and sold article in question if knew of risk involved which injured plt.

a. Diff than risk utility? Burden back on plt, as in negl. Hindsight negligence test: when evaluate what risks foreseeable? Before, not after if negligence, when product manufactured. If unforeseeable down road, at time of manufacture, when conduct evaluated, acted reasonably. This test says take new info, impute backwards, say what would do then.

b. DON’T PUT ON TEST: NOT INFLUENTIAL(FAA that design was adequate against icing, plt did not produce sufficient evidence that reas prudent manufacturer aware of risks of icing would not have designed mode of aircraft like this, or that substitution was practical.

5. Negligence v. SL: turns on jury instructions.

a. Negligence: talk about RPP; was dft RPP under circumstances, risk v. utility.

b. Products that uses risk utility: not to evaluate dft conduct, but evaluate product itself. Not did dft act reasonably, but are risks of product greater than utility.

c. Diff from nelg: how instruct jury, if in CA (minority rule of Barker) change risk utility test that for products liability plt must show plt ‘s injury prox caused by design of product, that’s it. Then, dft has to show design such that uitility outweighed risk. More verdict for case.

6. Products that perform as designed: McCarthy v. Olin 1997. Ferguson kills 6, injures 19; used 9mm semiautomatic w/ Black Talon bullets. BT: performed as designed; splits into 6 talons that stretch, cut and tear tissue and bone as travel through victim. Defectively designed.

a. Enhanced injuries b/y ordinary bullets. No: expanding was intentional, functional element of design of product. Must be unreasonably dangerous for intended use, not reasonably contemplated by consumer. Here: performed as intended by manufacturer, CF

Negl: marketed to gen public. No spec relationship b/w Olin and Ferguson; can’t control sadistic action. If owe duty, limitless liability

WARNING DEFECTS

1. Drug: manufacture (rare) or only failure to warn. Prob for development drug liability theory (this is rx medication). Hypo: Treatment in which take chloroquinine for arthritis; known effects: temporary vision problems, but blinded. Products liability claiming defective.

a. Consumer expectation: probably good case? Expectation arose out of warnings, taking for arthritis, not expected to go blind from drug.

b. Risk utility: if apply, risks relatively small (few go blind). Benefit: huge. If jury concludes risk outweighs utility, stop making.

c. Brown won’t apply Barker to rx drugs re burden shifts.

d. Rst 402a: Some products can’t be made safe in normal, ordinary use; therefore, although vaccine commonly damaging consequences, w/o disease leads to death(product is not defective or unreasonably dangerous. Rabies vaccine. If properly prepared (no manufacturing defect) and accompanied by proper directions and warning, not defective.

e. Distinguish risks in drug situation:

1. Unknowable risk from drug; if unforeseeable, no liability: Can’t warn if don’t know what to warn about

2. Knowable danger: Know there’s risk of something happening, adverse side affects

3. Obligation to warn diff from normal product manufacturer to warn (saw: warn user). Have to warn learned intermediary.

4. govt tells manufacturer must warn product

5. mass vaccinations, must warn who ultimately gets vaccinations

2. Tests for failure to warn:

a. What is it that dft would have to warn under negligence? Need reasonable warning(warn against material risks, some judgment of when level of risk high enough to merit warning; give reas warning in reas place, language must be reas. Diff b/w negl cases: if say require more clarity, risks reas may not require to warn against, placement in place maybe not reas necessary. IS REASONABLENESS PLUS. But, hard to articulate diff b/w nelg and Sl claim for failure to warn. In risk utility, easy to conclude unreasonable b/c low cost.

b. Tests:

1. Presume warning followed

2. Shift in burden of proof (Liriano, not every state uses)

3. Other states: nothing, part of plt prima facie case; plt says if they’d have said that, would have read it. If plt can’t say, up to jury. Liriano is not universal rule that shift burden of proof.

c. BIG PROB W/ WARNING: how tell what user would have done w/ extra warning; also, common sense says no diff if add addl warning; but SL for products benefits consumer, courts find cuase by shifting burden, presumption, goes to jury when shouldn’t go to jury b/c plt didn’t look at manual. Lots of stretching.

d. need prox cause for failure to warn, b/c could say product is defective for failure to warn, but other risk caused injury. Y risk caused injury, but not warned about. Risk that made defective didn’t result in injury.

3. LIRIANO V. HOBART CORP. 1999. L injured on job when hand caught in meat grinder made by Hobart. Sold w/ safety guard, but removed, not on during accident. No warning on machine that should be used only w/ guard attached. Failure to warn v. Hobart. Obvious danger? If so, need to warn if obvious? Yes(

a. There is a danger(risks themselves

i. Just b/c obvious need to warn? Should be able to evaluate by knowing risk, why have to tell what already know? General: pointless to warn already have info would give.

ii. Obvious to some, not to others? Shallow swimming pool: if did put warning, may focus attention on risk. Warn people so focus on risk. Prob: more warning, less likely to read.

a. If aware of alternative, can choose not to take risk.

b. Foreseeable will take off: efficiency. Companies try to be more efficient, productive. Foreseeable misuse.

c. If failure to warn cause of action, elements: (no duty b/c if sell product, take on certain obligations; arises b/c product in stream of commerce).

i. No issue of duty and breach.

ii. Actual cause – need to show that the failure to give the warning led to the injury.

iii. Proximate cause – risk has to be the one what results in the injury

iv. Damages

v. P has the burden: says P didn’t meet it, since no evidence that a warning would have prevented it. That he would have read it and would have done something.

vi. Court says that he didn’t have to meet this element b/c in this kind of case the warning shifts the burden of proof of causation to D. Similar to Sommers v. Tice. Very rare. This carries P pass a nonsuit.

d. A jury can find warning them is suffici inexpensive that a reasonable manufacturer would inform them that safety guards exist….

4. Carruth v. Pittway CorpAla 1994. 7 family members die in house fire. 2 days before fire: dad installs smoke detector near ceiling wall junction. Smoke detector manufacturer sued. 7 pg pamphlet in small print along w/ device. Dead air spaced prevent smoke from reaching detector; Dead air info near lots of instructions, pictures(confusing. Not clear enough: important part not clear, buried. Diff bw failure to warn negl/SL(Reasonable: on product, is focus on warning itself, not dft actions. Level of detail reqd(adequate warning: Must have sufficient clarity and sufficient force and intensity to convey nature and extent of risks to reasonable person. Hypo: Polio Vaccine. Vaccine such that 1/million risk that take vaccine get polio. Warning not given; should have been? (keep to individualistic theory). Low level risks many if have to warn. When risk so low that don’t have to warn? Suggests that in products case obligation to warn w/ more clarity and force and less risky things than reas peson wouldn’t have to warn about in negl.

5. Design and warning interact(

a. Assume product has open and obvious danger, don’t have to warn about that danger. Should be able to bring design defect cause of action?

i. Even though obvious danger, still bring design cause of action saying obvious, but product could be made safer

ii. Hypo: Jeremy foot severed caught in garbage truck. Warning said do not insert object while compaction working, keep hands and feet away. Actual warning; can bring design defect cause of action? Yes b/c otherwise encourage manufacturers that is warning enough to preclude design, make dangerous. Rst 3rd: here, in this case, warning does not provent from brining design defect cause of action.

6. Defenses to Products SL

a. Minority: BOWLING V. HEIL CO. OH 1987. Heil: made dump hoist system installed on Rogers’ truck. Brashear borrows truck for person use; w/ Bowling, take gravel to Bowling residence, dump, but truck bed won’t go to down position after dumping. Bowling leans under up truck bed, Grabs control lever. Bed collapses on him, killed instantly. Effect of contributory fault in products strict liability.

1. Contributory negligence is not defense in products liability; in negl, fault is to assign blame; here, not assessing blame, but get away from evaluating fault to assigning responsibility. If not assigning blame, don’t reduce plt’s recovery for own blameworthiness. If made defective product, caused injury, should have to bear costs.

2. If go to comparative fault: will compare and reduce.

3. AFTER CASES RE RISK/UTIL(get defenses re how product used. Plt contributorily negligent(used negligently. Shouldn’t be defense, against purpose of products liability law to spread cost over entire injury, use CL defense to SL for abnormally dangerous.

b. Safeway Strores Inc v. Nest Kart CA 1978. Riate injured at Safeway when shopping cart breaks, falls on her foot, needs surgery. Plt sues(SL and negligence. Safeway as owner of cart that made available for use. Nest Kart: manufacturer. Safeway and Nest kart pay 80/20. Safeway moves for contribution: N to pay extra 30 to even it out. Trial court grants Safeway motion, order each to bear 50%loss. Issue: how apply comparative fault to SL?

1. NO contributory negl w/ plt; But, here comparing SL and fault AMONG dft, same as before.

1. Safeway: wants contribution from CL (pro rata)

2. Safeway wants contro of 50/50 b/c can’t figure out what to do; (80/20 makes no sense). Court holds 50/50 proper(allow allocate liability b/w negl/SL dft

c. DALY v. GM: ATTY GOING DOWN HARBOR FREEWAY. COMPARE PLT fault.

d. Assumption of risk. Either keep it or not.

1. Primary –no, already on market.

2. Secondary—(they put the product out and you have to deal with it)

1. Reasonable

2. Unreasonable: Usually unreasonable. Just reduce her recovery.

3. Abolish assumption of risk just as you do with negligence. Most courts don’t use assumption of risk.

e. Misuse

1. P negligently fails to discover the defect. Issue: reduce p’s recovery?

2. P voluntarily but unreasonably encounters risk: Comparative fault

3. P misuses the product(Test: is the misuse foreseeable?

1. if so: product is defective, reduce by P’s fault

2. if not: product is not defective

4. Hughes v. Magic Chef Inc Iowa 1980. Plaintiff Vincent E. Hughes was severely burned on March 9, 1976, when a stove manufactured by defendant Magic Chef, Inc., exploded in his mobile home. The propane gas tank which fueled the stove had run dry on March 7, 1976. After the propane tank was refilled that evening, two pilot lights on the top of the stove were re-lit but a third pilot light in the oven broiler cavity was not re-ignited. H. v. MC: stove unreasonably dangerous(design

1. Misuse is part of plt’s prima facie case (not aff defense):

a. IF MISUSE REAS FORESEEABLE(If don’t acct for misuse that is reas foreseeable, created PRODUCT IS DEFECTIVE as to that use.

i. WHEN SEE HOW PLT USED PRODUCT, CONSIDER ORDINARY USER KNOWLEDGE RE IF REAS FORESEEABLE. Personal knowledge only relevant if attributable to large group of people. For average buyer.

ii. Recovery options:

1. Full(ought to b/c misuse was foreseeable, no way to reduce recovery

2. Majority: partial (under Daly). Use comparative fault: contributed to own injury

b. IF MISUSE IS UNFORESEEABLE(PRODUCT NOT DEFECTIVE

5. Reid v. Spadone Machine Co. NH 1979. DFt makes guillotine like cutting machine for molded plastic. Push two buttons, blade goes down. mployer Davidson: knew of use, danger, didn’t stop; supervisors, 10% of time used by 2. Is superseding and intervening cause(employer lets them use by 2 people? Same way treated in negligence: treated as foreseeable/unforeseeable. Foreseeable intervention does not cut off liability.

6. Vaughn v. Nissan Motor Corp 4th Cir 1996. Dft makes Nissan Pulsar; Voltage regulator failed b/c bad design/construction. Excessive current heated battery, fumed enter car. Plt: says caused vocal chord dysfucntions, asthma. Dft: Plt creates illnesses w/ no basis. Like thin skull(even if idiosyncratic, treat injury as foreseeable whether or not was. Same here. Prerequisite: defective product.

7. Compliance w/ statute:

1. Rst 3rd(compliance to be considered, but does not preclude finding as mater of law that product was defective in particular cases.

2. General rule: mere compliance w/ fed safety regs not enough, plt can still argue can do more. But, fact that complied admissible evidence that acted way in which product not defective. Admissibility of evidence tat complied w/ defect is like custom.

3. Dft argues this is all ave to do b/c of statute; in general, mere compliance not good enough.

4. Ramirez v. Plough Cal 1993 Used Spanish language ads to reach Spanish language market, did not include warnings in Spainsh. Jorge Ram’s mother not fluent in English. Fda reqs warnings, but in Spanish only in PR. Held: NO duty to provide warning in Sp under CA statute

7. WHO ARE APPROPRIATE DFTS?

a. Chain of distribution can be sued: manufacturer to wholesaler to small store that sold. Wholesaler will indemnify.

b. Lessors of goods are liable: can sue if lease. Qualitative diff: lessor v. other dfts, didn’t sell, just leased. Try to buy chainsaw, rent one b/c too expensive. Arises out of warranties which reqd sales.

c. If sell used good: Car seller(cases are split, most say no SL.

1. But, if product sold as reconditioned, as good as new(better argument to treat seller as would new.

d. Seller of new house: heater blows up. Same prob w/ lessor, but here when buy house buy interest in real property, sale of land, house is appurtenance on land. SL for sellers of real property.

e. Lessors of real prop: landlords for a whle in CA did have SL. Becker p. 705: SL on landlords for premises defects; no more.

f. Newmark v. Gimbel’s NJ 1969 Plt goes to see stylist V. Candle Glow put on her head, hair starts falling out. Sues hair salon. In chain of distribution, ok. Dft argument: supply service, not product. Important if service or not product b/c if eg litigation over how well did will, don’t want SL for malpractice. Rationale for products liability doesn’t work for services. Hybrid transaction: as part of service, product used. Sold product, not directly. If sold product on shelf, can sue: in chain. If go, cut hair and put color in hair(can sue for SL if product hurts you? Test for service or product: Here, is sale of product b/c essence of function/transaction is to put product on the head. Court thinks is buying product.

g. United Blood Services v. Quintana Products liability for sale of blood? Court says use prof standard as custom evidence (extreme minority view). Dft can prove standard is unreasonable. But: diff re blood, essential

DAMAGES

1. Nominal damages: Sometimes, damage nil (Cohen), will recover $1.

a. Different scheme for negligence (must be actual, not nominal).

b. Only for int torts

2. Compensatory damages: all that would compensate for injury, put in same position were before tort occurred. Actual. (1,2, 4 are specifically provable; 3 is estimate)

a. medical

b. lost earning

c. pain and suffering(non econ

d. any other specifically identifiable harm: travel expenses for specific operation, room and board at hotel

e. No atty fees in Am system

3. Punitive damages: punish, not compensate. Available for some intentional torts; can try to get in reckless negl case. S Ct limits

Hypo: proving damages. 2 kids riding motorbike, strike sagging power line, damages permanent, lives destroyed . Plt has to prove

1. Medical(Past and future (expert estimates future pain)

2. Lost earning: can never work; have to prove how much would make. Teachers testify. How tell? Battle of experts. Use life expectancy.

3. Pain and suffering:

a. Testify to symptoms; CA: medical witnesses to everything kid does.

b. How prove: dollar amount at not moving neck injuries. Per diem argument, break down into timing increments.

c. Can’t say to jury put self in client’s shoes (no golden rule).

Timing problem:

1. Time to trial; cannot get interest from time of trial (CA: prej demand for settlement; if turned down, get interest b/c demand turned down)

2. Uncertainty over damages

a. Sue for 5 yrs now, after operation re-sue(Can’t bring case twice

3. Time value of money: discounting

a. Prob: damages lost wages 40 yrs in future; want $ now to put in bank

b. Only get one payment

i. In 40 yrs, amounts to dollar if damages accrue in future

ii. Want low discount rate b/c get more now(Discount rate by econ, future of econ

4. Inflation: diff than interest, how much lose over period of time b/c buying power eroded

5. Events after trial

a. Hypo: second marriage; before trial, J marries rich guy. Admissible at trial? Not relevant supported by someone else. View as were.

b. Auto accident, plt hurts knee, alleges permanent injury, can’t play bball. Can plt get damages for permanent disability or for state of knee after operation doesn’t want to have? Duty to mitigate damages. Objective test: no damages for what otherwise permanent injury if permanency could be avoided by surgery, and reas person would have had it.

6. Taxes: payment in lump sum for lost wages. Under fed law, taxes for income payment not taxable (if amount includes what taxes are, get windfall).

7. Insurance policy: not always admissible

8. Dying plt: before trial plt dies of injuries.

a. CL: cause of action died w/ plt

b. Same w/ dft

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