Table of Content

Intentional Tort....................................................................................2

Battery...............................................................................................2

Assault...............................................................................................3

Transferred Intent.............................................................................3

Defense to Battery or Assaut.............................................................4

Tresspass to Land..............................................................................5

Conversion.........................................................................................6

Trespass to Chattles...........................................................................6

Nuisance............................................................................................6

Negligence............................................................................................7

Injury.................................................................................................7

Duty...................................................................................................8

Relational Aspect (Palsgarf).........................................................8

Premise Liablity...........................................................................8

Breach...............................................................................................9

Resonable Person .......................................................................9

Hand Formula..............................................................................9

Negligence per se........................................................................9

Res Ipsa Loquitur.........................................................................9

Custom......................................................................................10

Defense to Breach...........................................................................10

Contributory Negligence............................................................10

Comparative Fault.....................................................................10

Assumption of Risk....................................................................10

Causation.........................................................................................11

Actual Cause..............................................................................11

Approximate Cause...................................................................11

Counter to Causation.................................................................12

Multiple Necessary Causes........................................................13

Multiple Sufficient Causes (substantial factor)..........................13

Toxic Tort...................................................................................13

Preempted Causes.....................................................................14

Mutiple Tortfeasors.........................................................................15

Alternative Liability....................................................................15

Act-in-Concert Liability..............................................................15

Market Share Liability................................................................16

Indivisiable Injury.......................................................................17

Apportionment..........................................................................17

Strict Liability......................................................................................18

Abnormally Dangerous Activities.....................................................18

Product Liability...............................................................................19

History of Product Liability and cases..............................................20

INTENTIONAL TORTSI Battery

1. Battery Elements (prima facie case):1) An act,2) intended to cause a contact of a type that is harmful or offensive

(objective standard),3) which causes such a contact

2. Consideration and counter:1) Contact

a. Objective standard: whether touching violates prevailing social standards of acceptable touching; NOT whether P actually takes it as offensive or harmful; Counter: certain contacts not normally considered offensive can be rendered so if D knows that P is usually averse to such contact (Paul).

b. Eggshell Skull Rule: D is liable to unforeseeable extent (not type) of injury

c. Physical contact d. Body or objects physically (for sure) or emotionally

(arguably)connected to body (Fisher snatching of plate from hands; beloved CD)

e. Indirect contact via D’s instruments: dogtrapcigar smokebullet

2) Intenta. Majority View – Intent to cause contact.

Policy: protect P, otherwise D not considering the contact to be harmful or offensive could do whatever he wants and not be held liable for battery. E.g. man flatters random woman with unpetitioned-for kisses

b. Goldberg Synthesis – Intent to cause contact of a type objectively deemed harmful or offensive

Defendant must act with intent to perform a kind of touching that tends to cause harm or is widely regarded as offensive

c. Minority View – intent to cause contact and harm/offend (dual intent)

d. Substantially Certain Knowledge- In some Jx, intent can be established by D’s substantially certain knowledge that contact will occur; Some Jx take knowledge as evidence of intent; subjective standard as to the individual person at issue. (boy pulling chair: Garratt )

e. “specific intent” is not required

Paul v Holbrook – coworker’s massaging of the shoulders (offensive)Rule: Offensive is determined on whether a reasonable person not unduly sensitive to personal indignity would find it offensive. If the plaintiff is found to be oversensitive, she may not be able to collect recovery, unless it can be proved that the defendant knows that she is oversensitive.

Fisher v Carrousel Motor Hotel – snatching of plate from hands; offensive contact with object connected to body

Bernadesky v Erie R. Co. – ordered dog to attack P; contact does not need to be flesh on fleshLeichtman v WLW Jacor Communications – blowing of cigar smoke in P’s face could be offensive contact

Vosburg v Putney – boy kicked another boy in the knee in classroom, exacerbated injury; intent to make contact so battery sustained, also eggshell skull rule: liable for all injuries even if unforeseen or unintendedCole v Hibberd – drunk D playfully kicked P in rear; battery because only intention to make contact matters, not whether D acted with intention to cause harmWagner v State (Utah) – mental patient attacks P; intent to cause contact is enough, D does not need to appreciate that act is harmful or offensive, unfortunately government immunity from intentional torts

Garratt v Dailey – boy pulls out chair from aunt; battery because substantially certain knowledge that aunt would fall

II Assault 1. Assault Elements (prima facie case):

1) An act,2) intended to cause the apprehension of an imminent harmful or

offensive contact (objective standard), 3) which causes reasonable apprehension of such a contact.

2. Consideration and counter:1) Apprehension

a. = “awareness”; Do not need to be “fear”b. Reasonable apprehension (objective standard) whether a

reasonable person would have such an apprehension (circumstances, gender, social status, number of people, size demeanor…)

2) Contacta. Has to be imminentb. Objective Standard: whether touching violates prevailing

social standards of acceptable touching; NOT whether P actually takes it as offensive or harmful; Counter: certain contacts not normally considered offensive can be rendered so if D knows that P is usually averse to such contact (Paul).

c. Physical contactd. Body or objects physically (for sure) or emotionally

(arguably)connected to body (snatching of plate from hands beloved CD)

e. Indirect contact via D’s instruments: dogtrapcigar smokebullet

III Transferred Intent1. Between torts

1) Intent element of battery satisfied even if D’s intent is only to cause apprehension of such imminent contact (Nelson)

2) Mix and match among other intentional tortsE.g. D intended to lock P in a room (false imprisonment) and crushed P’s fingers Battery

2. Between victims1) Unintended victims may sue for acts intended to injure someone

else (White)

Beach v Hancock – angrily pointed unloaded gun at P; ignorant as to whether loaded or not then caused reasonable apprehension

Vetter v Morgan – 3 guys shouted and made obscene gestures to woman in van at night; words together with circumstances caused reasonable apprehension of imminent harmful/offensive contactWestern Union Tel. Co. v Hill – larger man across counter caused reasonable apprehension in smaller lady PPhelps v Bross – Budweiser girl sexually assaulted and when awoke D was sitting in bed with her

Brooker v Silverthorne – switchboard operator verbally abused over phone; no imminent threat so NOT assault; not a reasonable apprehension

Paul v Holbrook – coworker’s massaging of the shoulders (offensive)Rule: Offensive is determined on whether a reasonable person not unduly sensitive to personal indignity would find it offensive. If the plaintiff is found to be oversensitive, she may not be able to collect recovery, unless it can be proved that the defendant knows that she is oversensitive.

Nelson v Carroll – accidentally shot P even though only intended to “scare” P battery

In re White – D shot at Tipton but missed and hit P; liable for battery when unexpectedly hits stranger instead of intended victim

IV Defense to Battery and Assault 1. Consent (considerations)

1) Can be either expressed consent or implied consent 2) Must be actual consent

a. no presumed consentb. no paternalistic justification

3) Subjective standard about the particular individual. But circumstances, behavior or language can be used to infer the person’s actual intent. (e.g. immunization doctor)

4) Scope of consent- what is actually or reasonably inferred or implied as consented (Koffman: but my scope of consent is to be tackled only by teammates).a. Medical consent forms – informed consent can extend scope

of consent to other treatment deemed advisable that may “arise in course of the original operation.”

5) Social norm – consent to jostling on crowed bus 6) Historical dealing – 2 man playfully shoved or punched one

another in the past7) Comparative fault has no place in intentional tort, but may be

relevant to the proof of affirmative defense.

2. Counter (no consent):1) Beyond the scope of the consent given

a. not “arise in course of original operation” left ear vs. right ear2) Tortfeasor can't benefit from consent defense if the consent was

obtained through action of fraud or coercion. 3) Tortfeasor can't benefit from consent defense if consent was given

under lack of capacity. Particularly, if,a. the victim lacks the ability or judgment necessary to give

meaningful consent (there is incapacity), andb. a reasonable person in the position of the tortfeasor would

perceive this lack of capacity (tortfeasor knew about it)c. counter: no incapacity because a reasonable person will find

other way out, instead of acquiescing (e.g. having sex with boss in fear of losing job is not sufficient for establishing incapacity)

4) Consent to illegal activities is void against public policy. Counter: 2nd Restatement:

Consented conduct constituting a crime is suffice to establish a consent defense to tort, unless the conduct in question was

rendered criminal by the legislature in part to protect the consenting person from his own choice.

3. Self-Defense or Defense of Others1) Must reasonably believe necessary to protect from imminent

harm, offensive touching, or confinement.2) When P provokes D D may self-defense unless P disengages first3) Stand Your Ground Lawno duty to retrieve if legal presence and

not using deadly force to self-defense.4) D’s perception of threat must be reasonable under the

circumstance5) D’s defense reaction must be proportional to the perceived threat6) Deadly force:

a. Generally only justified when actual and reasonable belief of imminent death or serious bodily injury

b. If safe retreat is an option should not use deadly force c. Conditional threat: deadly force privileged UNLESS actually

and reasonably believes could have secured personal safety by handing over money.

d. Counter: Castle Law – some Jx’s “irrebuttable presumption of apprehension” clause eliminate the reasonableness consideration)

4. Defense of Property1) has to be reasonable and proportional. Value of human life and

limb outweighs the interest of a possessor of land in excluding from it those whom he is not willing to admit hereto.

2) Recapture of property- must be peaceful

V Trespass to Land 1. Trespass to land elements (prima facie case)

1) A voluntary and intentional action2) That constitutes occupation or physical invasion of real property3) Where plaintiff enjoys a right to exclude.

2. Considerations 1) Strict liability2) On, below, and above surface of land (e.g. low-flying object)3) Any minimal invasion will suffice (case of the thorns; 电线)4) Inaction - failure to leave or remove when consent is withdrawn5) No requirement that invasion damages or render less value of P’s

property

3. Defense to trespass to land (counter)1) Necessity

a. Necessary is defense to trespass, applies with special force in preservation of human life (property too) (Ploof)

b. Partial counter: private necessity supplies an incomplete privilege to commit trespass – D is entitled to override land owner’s right to exclude, but is still liable for compensatory damages that result from his exercise of the privilege (Vincint).

c. Public necessity supplies complete privilege, whereby a citizen is entitled to use or destroy another’s property in order to avert a greater harm to the public without suffering any sanction.

i. Usually effective by government officialsii. May be subject to the 5th amendment to compensate

2) Inability to control (dog run; car crash; tripped and fall)3) Consent to entry

a. Can be expressed or impliedb. Scope of consent

Geographically/spatially; temporarilyPurpose (Copland: student recording not consented)

c. If mistaken belief of permission to enter induced by possessor of land no trespass liability

d. Consent must be knowing and voluntary

4. Eligible plaintiffsLand owners; Person lawfully in possession; Members of property owner’s household

5. Recoverable damages –1) Injury to person and property caused by trespass

a. Should still observe comparative faultb. Should still observe but-for and proximate cause c. Can recover if trespass was by private necessity (Vincent)

2) injunction granted for on-going trespass3) Reasonable self-help allowed

a. May run into risk of being unreasonableb. Long-permitted trespass may ban recover damages caused by

the trespass

Ploof v Putnam – D’s employee unmoors P’s boat from dock resulting in injuries and damage during big storm; necessity is defense to trespass, applies with special force in preservation of human life.

Vincent v Lake Erie – D stayed moored to P’s dock and damaged it during storm, D argued necessity; liable for damage to P’s dock for deliberately (but wisely) choosing to stay

o Pay restitution even though no wrong has been done?o Contract case as to court filling in missing term after consent

expired?o Most commonly analyzed as: Private necessity supplies an

incomplete privilege to commit trespass – entitled to override owner’s right to exclude but must pay compensatory damages

o Best cost avoider – who’s in best position to minimize costs, ship owner decided better to stay at P’s dock so he should be liable for whatever damages happen

o Ploof could have been resolved by saying D’s action is disproportionate to P’s trespass by putting lives at stake

VI Conversion 1. Conversion Elements

1) Intentional2) exercise of dominion or control over3) personal property owned by the plaintiff4) that completely or nearly completely deprives the plaintiff of the

property’s usefulness or economic value.

2. 2nd RestatementConversion is an intentional act of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.

VII Trespass To Chattels1. Trespass to Chattel elements

1) Intentional2) interference with the right of3) owner of personal property4) resulting in actual harm

of a lesser sort than in conversion, e.g., damage or short-term interference (key someone’s car; short-term possession) Thyroff v. Nationwide – D denied P access to his computer records; extend conversion to cover intangible property

VIII Common to Conversion and Trespass to Chattels1. Re: Intangible Property

1) Traditional “Merger Doctrine” – intangible property (such as shares of stock) are merged in tangible stock certificate. (p. 834 bottom)

2) Modern Rule: extend conversion to cover intangible property (Thyroff v. Nationwide – D denied P access to his computer records)

3) Plaintiff must show interference or harm has been resulted

2. Defense to Conversion and Trespass to Chattels (counter):1) reference defense to trespass to land2) Reasonable mistake is NO excuse (all that matters is the intention

to act and a harmful result; malicious intention is not required)e.g. shot someone’s dog thinking it’s a wolf; mistakenly took someone’s hat home

IX Nuisance1. Interference with the use and enjoyment of one’s land (physical

invasion not required)2. Must be a continuing, substantial and unreasonable interference.3. “Coming to the nuisance”- Plaintiff may still prevail even if D’s

nuisance activity was already underway when P acquired or improved his property.

4. Other factors considered including both parties’ interest5. Appropriate remedy should promote overall economic efficiency

- INJURY – Jury (陪审) QuestionI Injuries that count

1. Physical injury to person or property (tangible for sure intangible arguable)

2. Economic loss associated to the physical injury3. Non-economic

1) Pain and suffering flowing from physical injury for sure2) Stress unrelated to physical harm arguable (NIED-very limited; use

with care!!)4. Eggshell skull rule: A tortfeasor finds his victim as she is ( Extent not

type!!)

II Injury does not count (counter)1. Pure economic loss

1) Policy consideration: disproportional liability may discourage good activity Kinsman (drifted boat) (1965) p.325

2) Exception (Counter):a. Professional obligation(Lawyer/auditor/accountant vs.

clients’ pure economic loss)b. Other “special” relationships:

Foreseeability andPublic policy considerations (e.g., how much the plaintiff stands out from general public)

III Damage Calculation: To put plaintiff back into position as if accident hadn’t happened. (compensatory)

Kinsman (drifted boat) (1965) p.325: Rule: court declined to award pure economic damage, arguing the

damage was “too tenuous and remote.”

- DUTY – Judge (法官) QuestionI Unqualified/Presumptive Duty Situation

1. Everyone has unqualified duty to conduct oneself with reasonable care for person and property of others.

2. Counter (no duty):1) “foreseeable” standard:

i. Not a foreseeable plaintiff (Mussivand: dirty doctors)ii. Not a foreseeable injury (Palsgarf: firework papers)

The risk reasonably perceived defines the duty to be obeyed (Palsgarf).

2) “relational” aspect:i. Not the type of plaintiff (Palsgarf: firework papers):

If no hazard was apparent to the eye of ordinary vigilance, an act outward seemingly innocent and harmless with reference to the plaintiff does not take to itself the quality of a tort because it happened to be a wrong with reference to someone else.

One cannot build the plaintiff’s right upon the basis of a wrong to someone else. Plaintiff must show a “wrong” to herself.

3) Default rule – nonfeasance; a couch potato

TableInvitee Licensee Trespasser

Permission + economic benefit

Permission No permission;Own purpose

Reasonably safe premise

Warning of unobvious danger

No willful, wanton conduct

Modern Rules: Half of the states have eliminated invitee/licensee distinction A few states (e.g., CA) have eliminated the entire framework

II Qualified Duty Situation1. Premise liability –Dangerous conditions on real property

1) Invitee licensee trespasser2) Level of care: Table 3) Counter: activity (i.e., not condition) on premise caused accident

2. Special relationship1) common carrier-passenger innkeeper-guest business-

customerschool-student employer-employee landlord-tenantcustodian-ward

2) Level of care: reasonable care under the circumstancesa. Extraordinary care: one party in special relationship holds itself

out as competent/expert in ensuring safety (e.g. Jones common carrier owes a duty to exercise extraordinary care, what a reasonable prudent bus driver would do)

b. Tarasoff rule (3rd party): Psychotherapists have a duty to protect an identifiable potential victim of a patient’s violent conduct, where the psychotherapist has predicted or should have predicted that the patient presents a serious danger of violence to that potential victim.

3) Counter: the relationship ended when accident happen

3. Imperilment of another – If an actor’s own conduct caused the victim to be physically injured and at imminent risk of further injury, the actor needs to make reasonable efforts to prevent the victim from suffering further harm.

a. Counter: social policy let party holder off the hook for car accident after getting drunk at the party, expect some state statute holding commercial bar tenders liable.

4. Undertaking to help 1) Once a rescue is voluntarily undertaken, the rescuer owes a duty to

the victim to perform the rescue with reasonable care.2) Contractual promise of less formal undertaking

a. An actor who entered an agreement to ensure other’s safety owes a duty to the other (Wicker v. Harmony Corp.).

b. An actor who voluntarily circulated safety info owes a duty to update such info when necessary (Meneely v. S.R. Smith, Inc.).

3) Good Samaritan rule: Level of care is reasonable care to avoid gross negligence.

5. Reporting obligation - School teacher, medical practitioner has a duty to report suspected child abuse.

- BREACH- Jury (陪审) Question(五种方式Establish Breach; 三种方式Affirmative Defense)I The Reasonable Person – frequently used: how to frame the

question is the key1. Default objective standard:

Thoughtful prudentmoderateordinarycommoneveryday risk-averse but not paranoidasks what care is due to others appropriate behavior based on social norms.

2. Adjustment to the default standard (counter):1) Young children (state statute or common law)

“Tender years doctrine”: under 7 not held to any standard; 7-14 held to the standard of care of reasonable 8 or 12 year old, unless engaging in an adult activity.

2) Physical impairments A reasonably prudent blind person under the circumstance

3) Professionals – heightened standard A reasonably prudent doctor/lawyer under the circumstance

4) Rarely adjusted (minority rule at the best)Mental health the elderly

3. Reasonableness Considerations (argue points):1) Lawfulness of activity2) Precautions: availability and cost3) Foreseeability: salient (重要的) vs. unlikely eventualities4) Notice5) Custom (not decisive unless professional situation)6) Counter:

a. Ordinary caution does not involve forethought of extraordinary peril

b. Only extraordinary casualty, not fairly w/ the area of ordinary prevision, would make it a thing of danger (Adams)

II Formula – with certain facts (concrete numbers and chance of forethought)1. The Hand formula: Difference in B < Difference in P L2. Calabresi’s rule: Min (Cp + CI + CA)

1) Should make sure Cp < CI (cost minimization)2) Cp- cost of prevention (B)3) CI-cost of injury (P L)4) CA- cost of administration

III Negligence Per Se (majority rule) – if a statute applies1. Rule interpretation (have small n negligence):

3rd Restatement: An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect.

2. Counter (not big N Negligence):1) Reasonable excuse

a. Youth or physical incapacity of defendantb. Emergency: reasonable efforts by defendant to complyc. Justified ignorance by defendant as to the existence of facts

rendering the statute applicabled. Excessive vagueness or ambiguity in the statutory standarde. Compliance posing a greater danger to defendant or others

than non-compliance – reasonable alternative is not sufficient an excuse, has to be a safer alternative

2) Not the type of accidenta. Not the type of injury/interest b. The injury did not happen in the manner contemplated by

statute3) Not the class of victim

worker v. visitor4) No violation to the statute – fact question

a. regulation not recognized as statute for this purposeb. statute does not apply to defendant

5) No injury (injury analysis)6) No causation(causation analysis)7) Invoke minority rule – break of a statute is merely evidence that

supports the plaintiff’s argument on the breach element.

IV Res Ipsa Loquitur – rarely can be used 1. Rule interpretation:

1) An evidence rule 2) invoked only where the accident is unlikely to happen absence

negligence of the defendant, and when no direct evidence available regarding the cause of injury.

2. Prima Facie Case (consideration and counter)1) The type of event ordinarily does not occur in the absence of

someone else acting carelessly

2) The instrumentality of the harm must have been (注意非 always been) within the defendant’s exclusive control; and

3) Harm did not result from any conduct of plaintiff himself.3. Policy to invoke Res Ipsa Loquitur – force the bad guy out

1) Res Ipsa Loquitur may be invoked to establish careless of multiple defendants, when each stands to benefit from remaining silent Ybarra

V Custom- relevant but not determinative 1) The TJ Hooper Rule: custom is not determinative of reasonable

care. Custom is only relevant to carelessness as evidence2) Anti-TJ Hopper Rule (counter): professional negligence

a. Defendant must act in a manner consistent with the ways in which other qualified members of her profession act (in medical cases: proof of compliance reasonable care)

b. Exception to exception- informed consent: must provide info that a “prudent patient” would want to make a medical decision (instead of comply with “custom” among docs to decide how much info should give to patient).

VI Defense to Breach (三种方式)1. Contributory negligence (traditional view, some states still use today):

1) Any careless on part of P provided complete defense to big-N negligence.

2) Counter: a. Last Clear Chance rule: if D has last opportunity to prevent

accident resulting from careless acts of both D and P, then D cannot use contributory negligence as defense.

b. P’s careless act does not play a causal role to P’s injury

2. Comparative Responsibility/Fault (modern view)1) Modified comparative responsibility (majority rule)- bar recovery

if the plaintiff’s fault reaches a certain thresholda. Greater than D’s fault (P’s fault ≤ 50% can recover)b. Equal to D’s fault (P’s fault < 50% can recover; less common)

2) Pure comparative responsibility (minority rule) – P can be 99% at fault and still recover 1% of the damage.

3) Argument point: Identify all sources of fault indicate it is a jury question try to take a position re: the percentage build-up.

4) Counter: P’s careless act does not play a causal role to P’s injury

3. Assumption of (known) Risk1) Overall A [1] competent plaintiff who [2] adequately appreciates

the riskiness of a given activity, and who [3] voluntarily chooses to encounter those risks, cannot [4] if any of those risks is realized, seek redress from the defendant on [5] a claim that he breaches a duty owed to her by exposing her to those risks.

2) Implied assumption of risk- Plaintiff knew of a risk yet proceeded with an activity exposing her to that risk.a. Approach 1: assumption of risk is a complete defense – no

recoveryb. Approach 2: Is the plaintiff’s initial choice of participating in

the activity reasonable? If yes complete defense If no comparative fault analysis and possibly divide

c. Approach (3rd Restatement): abandon implied assumption of risk completely, and go for comparative fault analysis directly.

3) Expressed Assumption of Risk- Plaintiff formally ceded her right to redress (signed waivers). Counter: the waiver is void.a. Procedural unconscionability

i. Contract of adhesion – take it or leave itii. Form contract presentation

iii. Vulnerable group (class hypo: sell fridge to the poor): iv. Outrageously unfair terms suggest procedural problem

b. Substantive unconscionability v. Outcome: unfairly one-sided on its face

e.g. Exculpatory terms vi. Purpose: bad faith such as preventing ppl from suing

vii. Public policy: All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.

b. The intent of parties is not expressed in clear, unambiguous terms

- CAUSATION – Jury (陪审) QuestionI Actual Cause

1. Actual Cause/Cause-in-fact1) The “But-for Test” for a necessary cause. Would the injury have

occurred bur for the defendant’s careless conduct?2) The “Substantial Factor Test” for multiple sufficient causes.

2. The preponderance standard of proof (considerations):1) “more probable than not” (chance of causation >50%)

a. The proof must amount to a reasonable likelihood of probability rather than a possibility.

b. The hypothesis must be the most probable one and not equally possible or possible as alternative hypothesis.

c. The evidence need not negate all other possible causes, BUT MUST exclude other reasonable hypotheses with a fair amount of certainty.

2) Hypothesis should frame a logic sequence of events that lead to the injury.

3) Statistic data a. Jury may combine statistical and circumstantial evidence to

find that defendant’s carelessness would have made a difference to the plaintiff even though the relevant statistics by themselves would seem to suggest otherwise (Kallenberg v. Beth Israel Hosp. p. 238 note 3.)

b. Counter: i. admitted <50% chance

Overboard Sailor (Hypo) p. 237 note 3. Rule: A judge ought not to allow a jury to find a fact if

the plaintiff admits that the odds of its hypothesis on cause-in-fact are 50% or less.

Holding: No single plaintiff alleging negligent failure to maintain rescue equipment will recover under the preponderance standard.

(counter) If can prove one plaintiff is the 1 among 3 overboard sailors (i.e., best swimmer among the 3, closes location to the boat, etc), the outcome may be different.

ii. Increase the risk is not causation (Aldrige v. Goodyear Tire & Rubber Co. (tire company toxic soup) (1999) p. 251)

II Approximate Cause1. Modern View: Foreseeable Scope of The Risk (Majority)

1) Foreseeable harma. The harm must be foreseeable to a reasonably prudent person

at the time of the alleged breach.2) Scope of harm

a. The injury must be among the type of harm that the defendant risked by breaching a duty.

b. D could foresee one form of harm was not sufficient to hold it responsible for causing an entirely different sort of damage.

3) General foreseeability a. The precise manner how the injury occurred or

specificity/severity of the injury does not have to be foreseeable to find the defendant liable.

b. The foreseeability is not as to the particularities, but the genus.

2. Traditional View (minority or abandoned rule)1) The “Natural and Ordinary” Test (Ryan v. New York Central R.R. Co.

p 295 note 2)a. The court held that is it neither natural nor ordinary for fire to

spread further (“one-leap rule” re: fire)b. Policy consideration (Counter: no casualty):

i. Court worried about imposing disproportionate liability “quite beyond the offense committed.”

ii. Court wanted to avoid unduly suppressing useful activity by threat of massive liability

2) The “Directness” Test (Polemis 1921 p. 296)a. How directly did the injury result from defendant’s

carelessness? i. Not too much separation in time or spaceii. Not too many intervening acts (falling plank set the fire-

direct enough)iii. Whether or not damage is foreseeable is irrelevant (this is

too harsh on defendant, and let to modern formulations)

III Counters to Causation1. Cut The Causal Chain of Events (possible counters)

1) Time and spaces a. Lawyer-ing about the causal connections of facts to

reduce/increase the number of chainsb. Have disturbed waters become placid and normal again?c. Is the causal relationship between D’s breach and P’s injury

attenuated or fortuitous?2) Who actively contributed to the injury

a. P’s comparative fault?b. 3rd party actor?

3) D only furnishing the condition that makes the P’s injury possible?4) D did not actively contribute to the P’s injury except for putting her

at the particular position and time of the accident?

2. Preempted Causes for “Doomed” Plaintiff

3. Superseding Causes：Intervention of a 3rd partya. Change the nature or type of injurycreates a new danger

too dramatic to be foreseeable (故意撞车) intentionally bad enough for the court to cut the chain and let the prior offend off the hook completely.

b. 慎用 (counter)：only aggregate the situationcomparative fault is better; medical malpractice is not superseding causes (in many states) a foreseeable intervention

4. Tortious Aspect: The careless aspect of D’s conduct is not a “but-for” cause, although the conduct itself may be (e.g. boy crawling behind a car, even checking rear mirror would not find.)

IV Multiple necessary causes2. No A or No B No injury

Injury A and B3. A breach of an affirmative duty to protect or rescue can count as one

or two or more but-for causes of a victim’s injury.

V Substantial Factor Test (Multiple Sufficient Causes)4. 2 nd restatement of Tort defines two arms for substantial factor ():

1) Non-trivial necessary causes (proximate causes)2) One of ≥2 simultaneous sufficient causes (Anderson: 2 fire burn

down 1 house)5. 3rd restatement limits this test to the second use only.

VI Toxic Tort6. Plaintiff usually needs to provide evidence linking a particular,

identifiable chemical to their diseases. Cannot prove cause for a “random drop in a toxic soup.” (see Aldrige )

7. It is often difficult for individual toxic tort plaintiffs to establish actual causation (consideration and counter). 1) In the absence of a signature disease as a marker, medical studies

often only suggest – rather than establish as more likely than not – a general causal relationship between exposure to a particular substance and a generic disease

2) Plaintiff also must prove that her individual disease is an instance of that general causal linkage, even if established.

3) Group disease may provide circumstantial inferences to get above 50% (e.g., a group getting rare disease had only in common their exposure to a particular substance.)

McDonald v. Robinson (2 careless driver crash on a ped.) p. 248 Rule: If the acts of two or more persons concur in contributing to and

causing an accident, and but for such concurrence the accident would not have happened, the injured person may sue the actors jointly or severally, and recover against one or all, according to the proven or admitted facts of the case.

Restatement (2d) § 432 An actor’s carelessness must be a substantial factor in bring about an injury in order to be deemed a legal cause of that injury. Carelessness will be deemed a substantial factor in bringing about an injury only it constitutes:

(i) a non-trivial necessary condition for the occurrence of the plaintiff’s injury; or(ii) one of two or more simultaneously operating forces that is each sufficient to bring about harm to another.

Aldrige v. Goodyear Tire & Rubber Co. (tire company toxic soup) (1999) p. 251 Rule: If plaintiff fails to provide any evidence linking a particular,

identifiable chemical supplied by defendant to their diseases, the plaintiff has not proved that more probable than not defendant’s chemical causes of the disease.

Facts:o Tire work sued Goodyear for negligence because Goodyear

supplied their plant with some chemicals.o Goodyear supplied 10% of chemicals plaintiffs were exposed at

their plant.o 3/28 carcinogenic chemicals at the plant was supplied by

Goodyear.o Goodyear’s chemicals were not toxic until decompose in the hot

processes of the tire plant. Unique aspects of case:

o “toxic tort”o Expert testimony not admissible if not grounded with data.o Worker’s compensation bars negligence action against their own

employer. P 259, note 1.

VII Preempted Causes and “Doomed” Plaintiff (Counter; no cause)

Hypo 1: a 1st car ran over a pedestrian and killed him. 5 seconds later, a 2nd car ran over the dead body of the pedestrian. Suppose both drivers were negligent.

Rule: only the 1st driver is liable, because he passes the “but-for” test. The 2nd driver is not liable, because it can’t be said that he caused any injury to the dead body.

Hypo 2: a 1st fire burns a house and is sufficient to burn it down. 2 second fire joined 5 minutes later, and would have also been sufficient to burn the house down, should the 1st fire is not there.

Rule: the 1st fire pass the “but-for” test at the moment of the accident. Don’t count future event.

Alternatively, some court looks at if the 2nd fire is produced by a culpable cause (e.g., negligence of a person setting the fire up) or not (e.g., a natural fire). If the second fire is natural fire, the negligent person setting up the 1st fire may only be liable for the value of the house being intact for 5 more minutes.

Hypo 3: Patient X is dying of an untreatable, incurable disease that physician Y negligently fails to diagnose.

Rule: no cause of action on these facts.

Dillon v. Twin State Gas & Electric Co (falling boy) p267 note 8. Rule: If fact-finder found the boy would have probably died anyway in

falling from the bridge, the electricity company would not be liable for any damages except the extra pain for dying from electrocution compared to falling to death.

Fact: A young boy playing on the superstructure of a bridge lost his balance and was electrocuted when he sought to steady himself by grabbing a nearby high voltage wire maintained by the defendant.

- Multiple TortfeasorsI Alternative Liability:

1. When two or more persons by their acts are culpable as the sole cause of a harm or when two or more acts of the same person are culpable as the sole cause, burden is shifted to the defendants to prove that the other person, or his other act, was the sole cause of the harm.

2. Act-in-concert is not necessary to a finding for alternative liability. (In Summers v. Tice no act-in-concert argument was made)

3. Defendants will be held jointly and severally liable.4. Policy consideration:

1) Defendants could both escape liability if one escapes.2) Unfair to deprive the plaintiff his redress simply because he cannot

prove who caused the damage, or how much each tortfeasor contributes to it.

3) The defendants are probably in a better position to “sort it out.” 5. Restatement has extended this doctrine to more than 2 defendant

situation. (counter) However, in practice, court is hesitated to do so (less than 50% of each of the multiple “suspects”; not reasonable if not all “suspects” are grounded in a suit.)

II Act-in-Concert/Concert of Action Liability1. Multiple defendants’ separate acts of careless fused into a single

coordinated course of conduct that caused injury to Plaintiff. (Hypo: 2 speeding race cars hitting a pedestrian)

2. Does not require the existence of a plan or undertaking to injure the plaintiff but do require a tacit agreement (defendants have a tacit understanding among themselves of their concert of action)

3. Defendants will be held jointly and severally liable.

4.

Summers v. Tice (triangle shooters) p. 268 Rule: Where a group of persons are on a hunting party…and two of

them are negligent in firing in the direction of a third person, who is injured thereby, both of those so firing are liable for the injury suffered by the third person, although the negligence of only one of them could have caused the injury

Facts:o Plaintiff and 2 defendants went out in group hunting. o Three persons got into a triangle position. o 2 defendants shot almost simultaneously to the direction of the

plaintiff, and plaintiff was hurt.o Plaintiff could not prove which of the two actually shot him.

Holding: Both defendants are held jointly and severally liable for the whole damage.

Unique aspects of case: o Two suspects, each has 50% chance of causing the injury.

III Market Share Liability1. An extension of alternative liability: when the plaintiff joins in the

action the manufacturers of a substantial share of the market, burden is shifted to the defendant group to absolve themselves.

2. Has an element of apportionment in this causation test. Defendants are only severally liable.

3. Policy consideration: Defendants are better able to bear the cost of injury resulting from the manufacture of a defective product. The manufacturer is in the best position to discover and guard against defects in its products and to warn of harmful effects; provide incentive to product safety; consumers in medication are virtually helpless to protect themselves.

4. Although often used by litigators, but has not been used in other than DES cases, because the case has an unusual set of conditions (consideration and counter Mulaney slides):

Signature disease Decent market share data showing substantial share by the

defendant group Generic formula Fungible product Plaintiff has not fault for not being able to

prove causation Equally negligent plaintiffs

Sindell v. Abbott Labs (DES pills) p. 272 Rule: If plaintiff joins in the action the manufacturers of a substantial

share of the DES which her mother might have taken, shifting the burden of proof to the defendants to demonstrate that they could not have made the substance which injured plaintiff is not injustice.

Rule: Each defendant will be held liable for the proportion of the judgment represented by its share of that market, unless it can absolve itself somehow.

Facts:o Plaintiff’s mom took DES pill to prevent miscarriage when

pregnant, which pill is well known to cause cancer in daughters.o Plaintiff suffered cancer, and sued a group of DES manufactures for

negligence.o Plaintiff cannot prove which manufacture made the pill took by her

mother. Holding: The group of defendants holding substantial market share

were liable for plaintiff’s damage. Unique aspects of case:

o Court left open the question of apportionment.o Unusual set of conditions (Mulaney slides):

Signature disease Decent market share data showing substantial share by the

defendant group Generic formula Fungible product Plaintiff has not fault for not being able to

prove causation Equally negligent plaintiffs

IV Indivisible Injury1. Rule interpretation (Ravo)2. Default:

1) When two or more tortfeasors act concurrently or in concert to produce a single injury, they are considered “joint tortfeasors.”

2) When two or more tortfeasors neither act concurrently nor in concert, they are not “joint tortfeasors.” The wrong doings are independent and successive.

3. Exception (counter): 1) tortfeasors who neither act in concert nor concurrently may

nevertheless be considered jointly and severally liable, when injuries, because of their nature, are incapable of any reasonable or practicable division or allocation among multiple tortfeasors. a. E.g. 2 negligent drivers smashed one person to death in a

sequence. b. Ravo v. Rogatnick (twice-injured baby) p. 550

V Apportionment1. Jury’s decision2. Law is evolving:

1) Pro rata basis: multiple defendants split it even (e.g. 50-50).2) Comparative responsibility: jury decide a percentage division3) Law Evolution: If one defendant is insolvent, who should eat the

missing portion?a. The rest defendant (jointly and severally liable)b. The plaintiff (only severally liable)c. Comparably distributed to all party at fault (including at-fault

defendant)d. Hybrid: plaintiff can only collect 100% from the defendant

apportioned the bigger portion of damage

Ravo v. Rogatnick (twice-injured baby) p. 550 Rule: Two parties by their separate and independent acts of

negligence, cause a single, inseparable injury, each party is responsible for the entire injury.

Facts:o OB conducted 8 malpractices to the pregnant momo Pediatrician conducted 3 malpractices to the born babyo The baby suffered permanent, indivisible brain injury.

Holding: The two defendants were held jointly and severally liable. The Plaintiff may choose to recover 100% from either one of them.

- STRICT LIABILITYI Abnormally Dangerous Activities

1. Rule interpretation :The defendant engages in a lawful activity, takes responsible care in doing so, and is nonetheless liable for any injuries caused by the activity.

2. Elements (considerations):1) Injury (same analysis)2) Is this an ultrahazardous (abnormally dangerous) activity (under

the interplay of the following factors)?a. Existence of a high degree of riskb. Likelihood the harm will be greatc. Inability to eliminate the risk by due care (inherent risk; out

of control of technology reducible but not avoidable)d. Extent of common use (asymmetrical risk 独自利己害人; 超速行

车=reciprocal risk; 驾驶 vs. 乘坐飞机；燃放 vs. 观看焰火)e. Inappropriateness to the placef. Value to community vs. danger

3) Causationa. Actual: “but for”b. Proximate: Foreseeable scope of risk

3. Defense (counter):1) Comparative negligence2) Assumption or risk/consent to participate（空难地面伤亡 vs. 乘客伤

亡）3) 3rd party’s intervention is a superseding cause (but must show it is

not foreseeable intervention.)

II Product Liability1. Product Liability Elements:

1) The plaintiff suffered an injury;2) the defendant sold a product and is 3) a commercial seller of such products;4) the product was defective at the time of sale or marketing; and 5) the defect actually and proximately caused the plaintiff’s injury

2. Parties1) Who can sue – pretty much everybody (direct customer, indirect

customer, bystander) (MacPherson removed privity rule; Elmore extends to bystanders)

2) Who may be sued – manufacturer and retailer (Vendermark extends to retailers.)

3. Considerations and Counter:1) Product

a. Service is not productb. Real property is not productc. Reading material is not product

2) Defecta. Manufacturing defect

i. Product does not conform to manufacture’s own standard/specification

ii. Just compare to prototype and show it’s not the sameiii. Easy to prove and similar to strict liability

b. Design defecti. Every product manufactured is unreasonably

dangerous/not reasonable safe/defectii. Costumer expectation test – defective if design renders

product more dangerous than ordinary customer would expect it to be

o Does not matter if manufacture knows it or not, still defective (asbestos)

o Consumer expectation is a jury questionsiii. Risk Utility Test – defective if utility does not outweigh

inherent danger in producto Burden on plaintiff to prove there is reasonable

alternative design that is feasible, safer and affordable

iv. Defense (counter)

Comparative fault – Plaintiff carelessly used a defect product

Implied Assumption of Risk o Consciously assumed risk of using product that

plaintiff knew to be dangerouso Usually treated as comparative fault

Unforeseeable misuse by plaintiffo Prove no defect or link to comparative faulto Counter: foreseeable tempting misuse

Unforeseeable risk o Counter: minority court allow hindsight analysis of

risk

c. Failure to Warn Defect i. Inadequate info and/or omission of info makes product not

reasonably safeii. Warning about nature of danger

Must be adequate in both content and presentation Must cover foreseeable misues

iii. Instruction about safe use Must be specific enough for reasonably prudent

person to follow Must warn of consequence if not followed

iv. Pharmaceutical – Warning is important because if complied with governmental regulation standard, cannot bring suit under tort for design defect.

v. Counter: Learned Intermediary doctrine Unforeseeable risk does not need to be warned

o Counter: newly discovered risk need to be informed

Obvious risk does not need to be warned No Causation

o plaintiff would not have heededo “heeding presumption,” BUT a blind, illiterate,

irresponsible plaintiff. o plaintiff already had rich experience more than

provided warning or info

III Development of product liability historyMacPherson v. Buick Motor Co. 1916 Cardozo – remove privity rule

Rule: A manufacture is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human beings.

Rule: Liability of the manufacturer incurred by his warranty should not apply only to the immediate purchaser.

Escola v. Coca Cola Bottling Co. of Fresno (exploded cola bottle) 1944 p. 889 Policy Considerations for justifying defect-based liability:

o Manufactures owe to consumers a particularly demanding obligation to be vigilant of product safety

o Manufactures are best situated to take precautions, and should be given strong incentives to take such precautions

o Manufactures are best situated to spread the risk and costo Responsibility for injury stems from having marketed a product

that caused injuryo Victims’ entitlement to compensation should not depend on the

nature of the conduct that caused ito Disparities in power in litigation concerning evidence and

procedure

Henningsen 1960 p896 note 7 Rule: Cannot disclaim liability for personal injury b/c it is against

public policy.

Greenman v. Yuba Power Prods., Inc (broken parts of power tool) 1963 p.898 Rule: Strict liability is not assumed by agreement but imposed by law.

Manufactures should not be entitled to define the scope of its own responsibility for defective products.

Rule: Establish the manufacturer’s liability it was sufficient that plaintiff proved that he was injured while using the product in a way it was intended to be used as a result of a defect in design and manufacture of which plaintiff was not aware of.

Vendermark 1964 p. 902 note 4 – extends to retailer Rule: Strict liability on the manufacturer and retailer alike affords

maximum protection to the injured plaintiff and works no injustice to the defendants, as they can adjust the costs of such protection between them in the course of their continuing business relationship.

Considerations:o Marketing/distributing

o Insuring safetyo Only member of the enterprise that’s available to the plaintiffo Have power to spread the risk

Elmore 1969 p. 903 note 7 – Extend to bystanders Rule: Bystanders should be entitled to greater protection than the

consumer or user where injury to bystanders from the defects is reasonably foreseeable.

Considerations:o Foreseeable!o No chance to inspect; more helplesso Does not benefit from the purchased good