Torts Outline – Professor Turley

I. I. SSCHOOLSCHOOLS OFOF T THOUGHTHOUGHTA. Formalism

1. Code system, consisting of canons, case-made, judge-made rules2. Rules are “outcome determinative”; goal- prevent bias/ subjectivity of judges3. Fierce notion of judicial neutrality/deference; court should not engage in determining

what law should be rather than what it is; leave lawmaking to legislative branchB. Legal Realism - replaced Formalism in the Torts Revolution

1. Rejection of formalism; acceptance of the indeterminacy of the law2. Karl Llewellyn found judges selected canons and pre-determined outcome (hidden bias);

false neutralitya. Began policy goal of creating a stable rule; consider broader implicationsb. consider what reasonable person would have done and the goal of achievement

C. Normative 1. Goal- determine what is “norm of society”, what is morally right/wrong in society, usually

decided by juryD. Hobbes- Leviathan guarantees recourse/ remedy; corrective justice- law must make wrongs

right vs. efficiency of CLS (producing most efficient manner of achieving wealth maximization rather than righting of wrongs)

E. Lockean 1. Labor Theory: In beginning, all was held in common. Then evolved into private

property (mixing of sweat/labor = conversion of common property into private property)2. Gvmt does not create priv. property- God created private property; gvmt may not

redistribute wealth3. Locke’s Proviso: One must leave “as good and enough for others” (used by Rawls to

justify redistribution if extreme concentration of wealth occurs b/c it is defeating God’s plan of allowing man to produce through enterprise)

F. Utilitarianism 1. gvmt must protect individuals, not just market2. Bentham- goal of gvmt- achieve the greatest good for greatest number; invest in social

action tremendous productivity (industrial revolution); gvmt = engineer of societyG. Feminism

1. Katherine MacKinnon- law written by middle-aged white men- inherent patriarchal bias 2. Jurispathic v. jurisgenerative

a. Jurispathic- basis of law is combative, male model; lawyer is knight; zero sum game- only one person wins/ gains

b. Better Jurisgenerative- judges evaluate merit on both sides and shape an equitable decision

3. Bender- should have duty to perform low-cost rescues; Posner agrees, but from an efficiency standpoint

H. Critical Legal Studies 1. Goal- judges should actively work to break down class barriers; help marginalized2. Sometimes favored judicial activism, courts should be more socially active3. Duncan Kennedy- peeled onion of Blackstone’s Commentaries

a. Favored de-construction of ‘legal terms’b. Wealth re-distribution is important (Rawls)

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I. CLS counted by Judicial Restraint1. Goal- deference to the legislature; judges are not elected and are counter-majoritarian 2. Madisonian System:

a. Tri-part gvmt provides checks balancesb. Factions political pressure majority rule (elimination of factions)c. If left to judges- no faction pressure relief, too much control given to individual

3. Hart and Sachs- the system works best when courts leave it to legislature to fill gaps/ ambiguous legislation; Courts must stay in line w/the Madisonian system

J. But see- Public Choice Movementa. Hart and Sachs view is wrong; gvmt often favors minority opinions rather than majority

principles; deals/gaps = Congress making decisions to detriment of publicb. Mancur Olson

i. disagrees with Madison’s view- collective action: small groups are actually more powerful than big groups b/c small groups have concentrated interestii. vs. majority groups, that have dispersed interests and more free riders

c. Easterbrooki. Dealism - gaps in legislation are bought and sold like a market

ii. Court must apply laws exactly as written; do NOT gap fill: limited judicial roled. Jonathan Macey- agreed w/public choice criticism, but not the result

i. DO gap fill; take Congress at its word and enforce the “public-regarding purpose” of legislation; Congress can fix it if wrong

ii. Madisonian democracy works best when open and deliberative process; this is achieved by filling gaps to public regarding purpose, forcing Congress to amend out in open to continue deal-making

K. Hegel 1. Personality theory of property- the subjective value of an object to an individual is not

recognized by the law- disconnect 2. the only way to understand property is to understand its relationship to the person

L. Law and Economics School 1. Goal- efficiency, not morality2. Posner

a. morality is bad basis for law b/c of subjectivity ; it’s indeterminate; focus on economic efficiency instead, which is more tangible and will improve the living conditions

b. Negligence is the most effective system; strict liability forces cost-internalization, leaving it to the market to dispose of inefficient activities

3. 2 most common definitions of EFFICIENCY:a. Pareto Efficiency

i. Goal - get a pareto superior result- produces at least one winner and doesn’t make anyone worse off- making things more efficient

ii. Pareto optimality - point of optimal efficiency; point before first loser is producedb. Kador-Hicks Efficiency

i. Goal - wealth maximization; producing losers doesn’t matter as long as there is a net gain; no need to compensate losers

4. Externalities a. Rational actors try to externalize their cost to others (i.e. externalizing pollution)b. Hardin’s Tragedy of the commons- wealth maximizing farmers will continue to add

cows to shared land w/finite amt. of grass even if doing so will cause the land to stop producing food; result- everyone starves

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i. Solution? Introduce private property creates incentive to keep resource healthy5. Pigou

a. only legislate when the market fails by allowing something contrary to the long-term needs of society

b. Examples- stimulus package; force a discriminatory firm off market w/legislation6. Coase Theorum

a. Coase I - in a perfect market, the market determines the outcome of conflicts btw two uses – more valuable resource will ultimately prevail (farmer/ rancher ex.)i. redistribution/regulation not necessary- market will handle it

b. Coase II - there is no perfect market; must include transactional costs (cost of reaching an accord btw parties), which can cause the outcome to flip- less valuable activity can continue b/c of the high transaction cost of stopping the activity; fewer people affected = higher transactional costs (Turleyworks ex.)

II. II. IINTENTIONALNTENTIONAL H HARMARMA. Background

1. Intent a. Rest. § 1: Conduct is intentional if the actor:

i. desires the result/consequence (“purpose” intent); ORii. knows or believes the result is substantially certain to occur (“knowledge” intent)

little boy knew old lady would be hurt when he pulled chair out in Garret v. Daly Children may be held liable of intent

b. intent inferred from conduct, not motivec. Transferred intent - A hits C when intending to hit B; C claims transferred intent; 1st

you must establish original intent2. Traditional defense - consent3. Basic Types

a. Physical Harm: Trespass to person, land, and chattels i. Tresspass to person

Vosburg v. Putney o Rule Violation- Putney kicks Π in shin, lost use of lego held responsible, even for unforeseen damageso Rule- For intent, it is sufficient to show rule violation, the natural cause of

which is injuryii. Trespass to Land- intent to enter someone else’s land, even if by reasonably

mistake (i.e. because unaware it’s someone else’s property)iii. Trespass to Chattels- intentional dispossession of a thing; loss in valuable int’st

trespass to chattel (stolen but returnable) vs. conversion (destroyed, unreturnable) Rst. § 218, 19: Liable for direct/ indirect phys. contact causing impairment: of

condition, quality, value.o Intangible property: Intel v. Hamidi- trespass to chattels claim fails- emails

did not damage the computer systemb. Physical Harm: Conversion

i. Rst. § 222- intentional exercise of control over chattel, which seriously interferes w/Π’s right to control

ii. Moore v. Regents of Univ. Cal .- organ removed from body, used for science ($). Usually put in trash so NO conversion. RULE: custom of chattel disposal effects determination of conversion

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Possible Defenses:o slippery slopeo slippery slope- if you say removal of tissue is conversion, huge # of issueso bright light argument- say this is not priv. property or slippery slopeo floodgates- if tissue is priv. property, thousands of patients whose tissue was

used in researchc. Physical Harm: DEFENSES to Intentional Torts

i. CCONSENSUALONSENSUAL D DEFENSESEFENSES - consent vitiates intent Rst. § 892: consent when one is willing for conduct to occuro Need - Π’s subjective state of mind consento Don’t Need - communication to Δo Apparent consent - Π’s words or conduct is enough (i.e. implied consent in

the O’Brien case- stick out arm, stand in line, receive unwanted vaccination)o Mohr v. Williams - Dr. diagnoses left ear, while Π sedated, operates on other

ear civil assault and battery Rule : Need consent Issue: Patient’s awareness of consent, and to what

Emergency Rule- Dr.s are not required to get consent if a person is seriously injured (i.e. unconscious or severe pain) and time is of the essence

Proper, informed consent is required o Canterbury v. Spence - Π has back surgery, left unattended, not instruct to

stay still, falls off bed Issue: Duty to disclose risks in acquisition of consent? Rule: “Informed consent” is required

Rule: You can’t consent to something illegal o Hudson v. Craft - Π, minor, goes to carnival, injured in boxing match

Issue: Did consent to illegal activity negate Δ’s responsibility? Rule: If you are part of a protected class (i.e. minor), court may ignore

consent. Rule: Public policy can require consent- duty to disclose.o I.e. If you have an STD, you have a duty to disclose (or be held liable). If

you do disclose, even if transmission occurs, no liability.ii. IINSANITYNSANITY : Insane/estate usually held liable

McGuire v. Almy - Π, nurse caretaker, insane Δ hit nurse on head w/table lego Rule: Insane held liable for their intentional torts. o Court uses cheapest cost avoider to determine family is CCA. Turley-

nurse/hospital CCA b/c they can get insurance, and nurse knows the danger. iii. SSELFELF-D-DEFENSEEFENSE

RST § 63: Rule: May only use reasonable force against imminent harm. Rule: May only use commensurate force . o May not escalate the encounter by increasing the violence.

Rule : You do not have to retreat .o But may not retaliate once danger is passed. Battered women syndrome not

accepted- viewed as retaliation. Rule: Mistaken self-defense must be reasonable .

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o Courvoisier v. Raymond - Δ fending off intruders, confuses cop w/intruder and shoots Rule: Reasonable, mistaken belief of self defense is reasonable.

3rd party privilege to defend others under same conditions and by same means as one may defend self.

iv. DDEFENSEEFENSE OFOF P PROPERTYROPERTY RST § 77: Rule: May use reasonable force; MAY NOT use force calculated

to cause serious bodily injury or death in defense of property. Human life more sacred than property. May use molitor manus- laying gentle hands.

Curtilage- the area around a home that is protected Rule: May NOT have lethal devices that cannot distinguish btw friend/ foe . o Bird v. Holbrook - walled garden w/spring gun kills kido Rule: Human life worth more than property; lethal traps illegal.

Rule: Notice is necessary to prevent liability for use of non-lethal devices that can cause injury that are not patent (i.e. electric fence, hidden barbed wire). Patent (visible) barbed-wire is a warning itself.

Controversial: Castle Doctrine/ Make My Day- whenever someone intrudes your domicile, you may use the full range of self-protection (i.e. lethal force ok)

v. RRECAPTUREECAPTURE OFOF C CHATTELSHATTELS RST § 100: Limited self-help privilege- reasonable force requirement, recapture

must begin promptly Kirby v. Foster - Π has gained rightful possession of $, Δ fights for it backo Rule: Reasonable force may be used ONLY when dispossession was

unlawfulvi. NNECESSITYECESSITY

An otherwise trespass/conversion on Π allowed in preservation of life or property.

Ploof v. Putnam - Π, family sailing in storm, moor to Δ’s dock, dock’s owner unmoors boato Rule: There is a duty to allow acts of necessity in order to preserve

human life. Vincent v. Lake Erie Transportation Co .- Δ re-ties failed ropes of boat to dock

during storm, dock damaged by boato Rule: Privilege of private necessity does not negate duty to pay for

damages. o Turley: Reverse arg.- dock owner may be CCA (insurance, internalize

costs). Ability to sue for lost opportunity costs unclear. Public necessity- “champion of the common good”; if acting for public good,

may destroy public property and not be held liableo Gvmt may always use this argument, but gvmt has waived much of its

immunity i.e. U.S. gvmt compensates war-time victims

o Most states have restricted it to keep ppl from claiming itd. Emotional/Dignitary Harm: Assault

i. RST § 21: Assault- intent to cause reasonable apprehension of imminent battery Need: Intention + Act

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ii. Δ must have intent to cause offensive contact or imminent apprehension (Π’s awareness of threat)

iii. Rule: Mere words are not enough to constitute assault e. Emotional/Dignitary Harm: OFFENSIVE BATTERY

i. RST § 18: Battery: Intent to cause offensive contact + offensive contact ii. If no intention, then only negligent, reckless act, NOT offensive battery.

f. Emotional/Dignitary Harm: False Imprisonmenti. False Imprisonment - Δ intends to confine Π w/in boundaries fixed by Δ, and Π is

conscious of the confinement or harmed by it Intent is all that’s necessary; mistake is not a defense. False arrest = false imprisonment Future threats do not equal false imprisonment

ii. Bird v. Jones - Π disallowed to continue down blocked highway Rule: Effective confinement required for false imprisonment .

iii. Possible Scenarios: Acts of negligence (i.e. stuck on elevator/plane) do not equal false imprisonment. Confined in a room, but no restraint? Not false imprisonment Confined in a room, but a high window gives escape? False imprisonment

iv. Coblyn v. Kennedy’s - old man trapped in store after suspected shoplifting Rule: Short-term ‘imprisonment’ against shoplifters ok if reasonable (equivalent

to citizen’s arrest). Time/place/manner is critical to reasonableness. g. Emotional/Dignitary Harm: Intentional Infliction of Emotional Distress

i. Usually parasitic- attached to another claim; courts disfavor IIED w/o parasitic attachment

ii. Emotional Distress- when Δ intentionally inflicts through extreme/outrageous conduct w/a causal connection severe emotional distress

iii. 3rd parties difficulty RST- majority rule- Family members, if present, may recover; 3rd parties

can recover, but (slight) bodily injury/ physical contact is required.iv. Mishandling a corpse- subject to liability for IIED; only family members can

recover; punitive damages sometimes allowed; shared crim/civil liability; aggravating element- culture

v. Beckstrom’s Socio-Biological Theory- “last of the line” arguments should be allowed; judges leery b/c suggests some children worth more than others (i.e. adopted ones); courts should respect impulse of importance of replicating DNA

III. SSTRICTTRICT L LIABILITYIABILITY ANDAND N NEGLIGENCEEGLIGENCE1. Brown v. Kendall - man tries to separate fighting dogs, accidently hits Π w/stick

a. Rule: Negligence is deciding standard : If Δ was using “ordinary care”- no liability. 2. Fletcher v. Rylands 1 - Δ’s reservoir leaked, damaging Π’s coal mine

a. Rule: Δ is strictly liable regardless of intent/negligence. 3. Rylands 2 : Rule: Strict liability applies to damage caused by activities/items originating

from Δ’s property (i.e. cattle, privy, alkaline works, water reservoirs at the time)a. Posner: Negligence is the most effective system; strict liability forces cost-

internalization, leaving it to the market to dispose of inefficient activitiesb. Duncan Kennedy- here, class issue, courts are protecting the nobility

4. Rylands 3 : Rule: Rylands is strictly liable b/c non-natural use (creation of reservoir). If natural use (mine coal, water percolates through to mine below)- not liable.

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a. Defense only if act of god causes the damage b. U.S. quickly rejected having a dominant system of strict liability

5. Brown v. Collins - horse startles, breaks lamp posta. Rule- SL not applicable b/c horses common and Δ used reasonable careb. If U.S. had applied Rylands test during Indust. Rev. would have cut growth

dramatically6. Powell v. Fall - sparks from steam engine cause fire on Π’s property

a. Rule: When statute clearly states liability, common-law supplanted- NEGLIGENCE PER SE.

b. Most statutes set a minimum standard of care; compliance w/doesn’t mean you’re reasonable/ not liable. May be found negligent per se, but this doesn’t ensure liability. Must still find unreasonableness was legal cause of injury. However, reasonableness never plays a role in strict liability.

7. Holmes- p. 146, 77- importance of an objective standardB. Strict Liability and Negligence: Modern Times

1. Negligence (question of degree) vs. Strict Liability (Check social attitude toward conduct; then liable or not).

2. Stone v. Bolton 1 - Π Stone hit by cricket ball from cricket ground close to public road. Δ found negligent. a. Rule: One is negligent if there was a reasonably foreseeable risk of severe injury w/no

effort to mitigate.3. Bolton 2 : Δ prevails; Rule: In negligence, consider “question of degree”- 1. remoteness of

risk of injury and 2. seriousness of consequences. Liability based on negligence- reasonable standard of care. a. D. Kennedy would say law is favoring upper class.b. Proper rule for sports teams (negligence v. SL)? Turley- SL, stadiums are CCA (most

information, insurance, internalization of cost, gives business incentive to be safer, forces businesses to bear the cost of their activities or be forced out)

4. Hammontree v. Jenner - epileptic driver crashes into store, injuring Πa. Rule: No negligence if taking due care and suddenly overcome by medical condition.b. Rule: SL should apply to unforeseeable instances.

IV. NNEGLIGENCEEGLIGENCEA. Introduction

1. Turley : Determination of the ‘reasonable person’ standard is relative to the situation, culture, society, etc. NOT just duty.

2. Elements (§ 281):a. duty by Δ to act/refrain from actingb. breach of that duty by Δ’s failure to conform to required standardc. sufficient causal connection btw the negligent conduct and Π’s injuryd. Actual harm that is measureable/compensable e. and… w/in scope of liability

i. i.e. proximate cause- not necessary though3. RST § 282: Negligence- “conduct falling below the standard established by law for the

protection of others against unreasonable risk of harm”a. The test is objectiveb. Care must be reasonable, not perfect

B. The Reasonable Person1. Knowledge, Experience, and Perception

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a. Reasonable person consists of: Δ’s knowledge and observations, what average society would do (calculation of the risks), Δ’s possible superior intelligence in an extreme case

2. Knowledge Common to Community a. The conduct of a ‘prudent man’ is applied to negligence, which is an objective

standard.b. Vaughan v. Menlove - ‘dumb’ farmer, dangerous hay rick, burns neighbor’s propertyc. Rule: Sub-standard intelligence (subjective arg.) no excuse; must still meet

objective standard (or everyone would claim to be dumb). i. Holmes- the law uses an objective standard. The law sees you not as God sees you.

3. Activities Requiring Skill a. Performing a licensed/ special skill activity mitigates consideration of personal

attributes (age, impairments, etc.), holding the person to the standard of that class.b. Daniels v. Evans - 19 yr. Π old killed when driving a motorcycle

i. Rule: If participating in an adult activity, held to an adult standard of care. 4. Age

a. Children i. If adult activity, held to reasonable, adult standard (Daniels).

ii. Otherwise, children who commit negligent acts are held to a subjective standard, considering the age, maturity, and intelligence of the child. < 4 (no capacity for reasonability); 4 – 7/11 (presumption of no capacity); By 11, presumption of capacity; After 14, considered to have capacity.

b. Rule: Licensed Activity- MUST meet reasonable person standard. i. Roberts v. Ring - 77 yr. old man w/sight/hearing issues hits 7 yr. old

5. Physicians a. Majority- Reasonable person = customary practice of reasonably well-qualified

practitioner, licensed or not.b. Minority- reasonable person = “- - -” + local conditions

6. Physical Characteristics/ Disabilities a. Rule: Public areas must be made safe for all; foreseeability requires anticipation of

blindness, height differences, and even intoxication (public policy incentive).b. Fletcher v. City of Aberdeen - City leaves unfenced ditch by sidewalk, blind Π falls,

injured7. Mental Capacity

a. Rule: Insanity is a defense to negligence ONLY when sudden. b. Breunig v. American Family Ins .- Δ has history of mental illness, thinks God is

directing her car, crashes into Πc. Question to ask: should Δ have known or taken preventative steps?

C. Calculus of Risk 1. General:

a. Two levels:i. Commonsense version of negligence

ii. Economic version based on costs and benefits- ‘calculus’ of risk A reasonable person is not required to avoid all accidents or always pay liability In negligence, you may kill/hurt a person and not be liable; assumption that some

acts are reasonable

b. Risk-Utility Test: Hand Formula:8

If B < P x L liability for negligence i. B – the burden/cost of adequate provisions to avoid the accident

ii. P – the probability of the injuryiii. L – the loss/injury itselfiv. If B > PL no negligence liability

c. Theory :i. Posner- Hand formula maximizes efficiency b/c it allows people on the ground to

make the appropriate decision; applied on small and large levels wealth maximization

ii. Calabresi (SL is most efficient method)- Hand formula isn’t that efficient Does not consider contributory negligence (common law rule- where if you’re

1% negligent, you get 0); this factor alone kills its efficiency i.e., if Δ had a low B and high PL, but Π is 1% negligent- Π gets nothing

and Δ walks away Better : Hand w/a factor for mitigation of contributory negligence Also- Hand does not consider whether Π could have avoided the accident at the

lowest costo Suggests ‘reverse Hand formula’- look at it from the other party’s side, find

the cheapest cost avoider SL Ford Pinto case - calculated cost of projected deaths, BUT didn’t factor in

punitive damage, so Ford ended up losing a lot of $d. United States v. Carroll Towing - birth of Hand formula; Barge owner took

unreasonable risk by not staying in attendance of barge that got loose, sunk, could have saved cargoi. Rule: Π’s negligent acts DO factor into risk/negligence.

2. Determination of “PL” or Magnitude of Riska. Consider extent of damage, societal value, and probability (i.e. people more valuable

than property)b. Blyth v. Birmingham Water Works - coldest frost on record, valve pops, Π’s property

floodedi. Rule: No duty of care to mitigate exceptionally unforeseeable risks.

ii. Turley: Valve installer is CCA. c. But see Osbourne - driver opens door, clips handlebars of bike

i. Rule: Calculus of risk must take societal benefit into account; humans live in association, and duties/rights are relative.

3. Determination of B- Burden of Alternative Conduct a. Cooley v. Public Service Co .- wire falls, explosive sound, woman suffers neuroses

i. Rule: If no better option exists, Δ will not be held liable for choosing the safest option.

b. Andrews v. United Airlines - bag falls from overhead compartment, injuring Andrews. Court- injury was foreseeable, and United could have installed nets at a low cost. i. Rule: Common carriers are held to a higher standard, so they can be held

liable for less negligence. ii. Post Remedial Repair Rule: you cannot use the fact that Δ made a safety reform

against the Δ. But, you can say that other companies are using the safer design. 4. Conduct in Emergencies

a. Sudden Emergency- just act reasonably

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b. Danger invites rescue.i. Eckert v. Long Island R.R. - baby on tracks, man runs to save, injured by train

Rule: Cause of peril can be held liable if the person’s act is reasonable. Rule: Rescue of life, even if low probability of success, will not be punished.

D. Custom 1. Customary conduct NOT controlling .

a. TJ Hooper 1 - Tugboat operators step outside of customary precaution by not having cheap radios that would have warned them of the storm (prevented loss of cargo)i. Rule: Customary precaution is significant.

b. TJ Hooper 2 - Rule : Custom is not controlling proof of reasonableness. Better to apply the Hand Formula.i. Even if only one company has adopted the precaution, it may still be a reasonably

required action. 2. Professional/Medical Exception

a. Lama v. Borras - Π has back surgery, Dr. does not follow prudent procedure/custom.i. Rule- In professional misconduct, look at what the current standard

procedure- what a reasonable doctor would have done. b. Helling - Π, 32, not tested for glaucoma, which was industry custom for people under

40. Court rejected this arg., finding the entire industry unreasonable. c. Canterbury v. Spence - Δ, Dr., didn’t warn Π (receiving back surgery) of 1% danger of

paralysis b/c of industry custom. Reject by court.i. Rule: Reasonable standard of care (here informed consent) overrides custom if

custom is unreasonable. Exceptions made if patient incapable of consent of disclosure poses risk of harm.

d. Locality Rule- a Dr. could argue that his conduct is not considered malpractice in his locality; this defense is no longer allowed; doctors held to a national standard

E. Statutes and Regulations 1. General

a. Negligence per se- jury can skip calculus of risk by determining someone violated a standard of conduct (usually codified in municipal code or statute)i. Standard of conduct required for an activity (must have these

qualifications/training); if standard of care lacking negligence per seii. even if negligent per se, may still not be liable unless Π shows you were factual

cause of injury and there are no defensesiii. even if not negligent per se, not conclusive, as a ‘reasonable person’ may be

required to take greater precautionsiv. Allows bridge for jury to go straight to causation

b. Public Choice School- issues with statutes being gap-filled by judgesi. Feres Doctrine - military personnel are not allowed to sue the federal government for

damages for injury; this was created by the Sup. Ct. when it was gap-filling the FTCA Easterbrook- dealism- would sharply criticize Macy- do gap-fill; interpret w/the public regarded purpose

c. Martin v. Herzog - Π driving w/o headlights, crashes into Δ, Π killed.i. Rule: If negligence by statutory infraction is linked to the accident, it is admissible.

d. Brown v. Shyne - Brown practicing chiropracty w/o license paralyzes Shyne. i. Rule: If you hold yourself out to be licensed in that profession, you are held to

that profession’s standard of care. 10

e. Uhr - Π suing school system b/c school didn’t follow statutory req. of scoliosis checki. Rule- In some cases, statutes are meant to be a guide to help society. In that

instance, the institution is NOT to be held to negligence per se. 2. Dram Shop Statutes

a. Statues used statutes to change the common law rule (where previously you couldn’t be held liable for over-serving)

b. General Rule- you are legally liable if you continue to serve someone who you could tell was already intoxicated

c. Cases usually do not involve drunk suing the bar; Most involve a 3rd party injured by the drunk suing the bar

d. 2nd generation of dram shops- homeowners being sued (began as negligence per se, often involving serving of minors who then wrecked); also frats/sororities; stadiumsi. Also- company parties; avoid liability by: having cash bar, drink tix, taxi vouchers,

have boss there, and make hotel rooms availableF. Judge and Jury

1. Torts is a jury-driven field a. Decisions of fact by a jury get significant deference in court of appealsb. Findings of law (by the judge) are much easier to overturn- no deferencec. Mixed legal/factual questions

i. Most circuits give de novo review, treating them as questions of lawd. Restriction of evidence by the judge that the jury may hear- controversial

i. Socio-Biological School- jurors should be allowed to consider the loss of one’s DNA w/the death of a child

ii. Judges will not allow testimony that gives validation to prejudices (i.e. religious) 2. Jury Nullification

a. Judges scrutinize attorney instructions to ensure ‘jury nullification’ isn’t being arguedG. Proof of Negligence

1. Res Ipsa Loquitora. Res ipsa loquitor is NOT factual causationb. Standard : You must show that the accident:

i. wouldn’t ordinarily occur ii. caused by an instrumentality exclusively in control of Δ

iii. Not due to any voluntary action on part of Π2. Basic Exclusive Control

a. Byrne v. Boadle - Π struck by flour barrel being lowered on Δ’s premisesi. Rule: Presumption of RIL for torts arising out of Δ’s possession property.

3. Right or duty to control will satisfy “exclusive control.”4. Grenade w/short fuse- “exclusive control” was at the point of manufacture, RIL satisfied.

a. Just b/c a product has been in the stream of commerce for a long time does not mean it is not still in the exclusive control of the maker.

b. 1st element is the POE- there is no other explanation

5. Colmenares v. Sun Alliance Ins .- escalator malfunctions

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a. Rule: Immediate agents, common carriers, of public grounds are directly responsible for negligence of devices on their premises despite indirect control. Duty is non-delegable- this is the case in general in areas where public is allowed. i. Independent Contractor Doctrine- creation of sub-contractor co.s to shield liability

6. Ybarra v. Spanguard - Π, patient, injured while undergoing surgerya. Rule: You can apply RIL regardless of how many Δs there are.

i. Likely helpful where there is cohesion in the profession/situation- i.e. athletes, police.

b. Turley: Conspiracy of silence problem- doctors were covering up for each other. Using RIL forces someone to be honest.

V. CCAUSATIONAUSATIONA. Introduction: 2-Step Test

1. Cause in Fact (Factual Cause)- “BUT-FOR” TEST a. You must first show the act of unreasonableness was the factual cause of injury, and

later that it was the legal causeb. Similar to and often confused w/RIL; Differences:

i. someone may be unreasonable under RIL but not under causation i.e. argument that sponge left in abdomen caused cancer; may be successful

w/RIL, but not causation of cancerc. Usually straightforward, handled as a ‘But-For” test- the harm would not have

occurred absent/ but-for the conduct2. Proximate Cause (Legal Cause)

a. 2 Approaches:i. Forward Looking Approach

Was the chain of events foreseeable/ probable? Judgment made from standpoint of Δ at time of act Denies recovery of harms not w/in the risk

ii. Backward Looking Approach Superceding/ intervening cause ? Looking for any 3rd party/ natural event severing link btw Δ and Π

B. Cause in Fact/ Factual Cause1. The injury would not have occurred “but-for” Δ’s conduct. 2. Standard - Basic “but-for” proof must exist. Can’t be speculative/ unlinked to Δ.3. NY RR v. Grimstad - husband falls in water off boat, Π can’t find life vest, claims but-for

a. Rule: Speculative ‘but-for’ causation is not enough to show negligence .4. Zuchowicz v. United States - woman prescribed max 2x recommended dosage fatal

diseasea. Rule:

5. RST § 26: Burden of proof is on Π to show harm is attributable to Δ.a. Medical situations, consider: Daubert (majority), Frye (minority).

6. GE v. Joiner - Π, electrician has cancer; splashed w/carcinogenic coolant, but also smokera. 2 Standards :

i. Frye Standard- you can only use expert testimony that is “generally acceptable” (published, recognized) (higher bar than Daubert). Pro-jury.

ii. Daubert Standard- rules of evidence don’t require scrutiny of expert testimony, but judges should scrutinize testimony to prevent “bad science.” Court is the “gatekeeper,” determining if testimony is relevant and reliable. Pro-judge- allows judge ability to kill a case before getting to the jury.

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b. GE brought back a general Daubert standard, where judges play a more aggressive role, allows judge ability to make a legal and factual determination regarding GE’s standard of the expert’s theory. i. Madisonian- distrust judges, elitist counter-majoritarians

7. Herskovits v. Group Health - late diagnosis of lung cancer; Π’s survival chance reduceda. Rule- “lost chance reduction rule”- the test is “but-for” the act, there would be higher

survivability chance (stnd cause in fact Q). NOT “but-for” the act he would’ve survived.

b. Majority is- loss of any chance rule; Minority- 50% chance rule.8. Concurrent, indivisible injury – held jointly liable. If only one Δ found, 100%

responsible.a. Kingston v. Chicago RR - 2 fires joined, burning Π’s home.

i. Rule: In multiple causation cases, each act is regarded as a cause of harm. ii. Rule: If possible apportionment. If Δ’s acts could’ve been sufficient to cause the

tort, Δ can be wholly liable. 9. Concurrent, independent tortfeasors, one cause – jointly/equally liable. If only one Δ

found, 100 % responsible. a. Summers v. Tice - 2 hunters, on either side of Π, shoot Π, fault not divisible

i. Rule: When multiple parties are negligent and you can’t prove which caused the injury, the injured party can hold all negligent parties responsible.

ii. Turley: ‘Joint and several’ liability encourages responsibility of all culpable. 10. Industry Liability

a. Enterprise Liability – sector of industry responsible for tort is identified, and all neglected to mitigate injury knowingly.

b. Market Share Liability – Maker of fungible product (drugs) unidentifiable, so each co. is proportionally responsible, by their market share.i. 1st question- is the product fungible/identical

ii. Sindell case- DES caused birth defects- chemically identical product, imposs. to identify true Δ (no records)

iii. Skipworth v. Lead Indust .- child suffers lead poisoning, sue on market share liab. Sindell rule not met b/c liability occurred over 100 yrs.- too big of a class

C. Proximate (Legal) Cause- Physical Injury 1. General

a. Proximate Cause- choke point of causation. Was ‘duty’.i. But duty analysis still primary in common carriers, respondeat sup., no duty to

rescue rule. b. Ryan v. NY RR - Δ negligently sets fire to own property, number of other houses burned

i. Rule: Δ is liable for predictable damages, NOT responsible for remote damages.

Unforeeable/Remote/ Indirect Consequencesc. Risk Principle- Δ’s liability limited to: foreseeable consequences, persons w/in zone of

danger, risk to a class of which Π is member (not liable for harm to unanticipated class).i. Palsgraft v. Long Island RR - man tries to board leaving train, 2 employees help,

man drops package, which exploded, being full of fireworks13

Rule: When the harm is not foreseeable because it is too remote or is outside of the zone of danger, no liability. Cardozo- more limited basis for liability. o Andrews- dissent- wants wider lens w/ substantial impact test- everyone is in

the zone of danger if substantially impacted by the negligence. Zone of Danger Test: Is Π inside zone of danger as seen by Δ?

ii. Wagon Mound - ship spilled oil, carried by tide to Πs wharf, Π told not flammable, welding causes fire- damage to wharf Rule: Proximate cause needs reasonable and foreseeable injury . Overrules

Polemis; allows court tighter control over cases, throwing out more if unforeseeable

d. Direct Consequences Rule (minority- hindsight) i. As long as injury is not too remote and there is a direct causal link, even if

unforeseeable, Δ can be liable.ii. In re Polemis - charter boat hired negligent workers who started fire by dropping

board Rule: If direct causal link btw negligence and the tort, liable regardless of

lack of foreseeability. Turley- Polemis jurisdictions are expansive on proximate cause- more cases go

to jury, rather than allowing judge to dismiss on basis of unforeseeability. e. Wagon Mound jurisdictions vs. Polemis jurisdictions- even split in U.S.

i. Wagon Mound/ Cardozo jurisdictions - look at what is reasonably foreseeable, cutting off liability when you would not have reasonably foreseen cause of injury Narrower- Cardozo- must ask if it was w/in the zone of danger (reasonably

foreseeable)ii. Polemis/ Andrews jurisdictions - more liberal, is there a direct connection btw

act of negligence and the injury? Liable if you played a substantial role/ had causal connection to injury .

f. Rescuers i. Δ is liable if rescuer reacts to peril appearing imminent w/reasonable care.

ii. Wagner v. International Ry .- Wagner falls off train, Π goes searching for his cousin and is injured Rule: reasonably foreseeable someone would come to aid endangered

person; Δ held liable for proximate causation. iii. Note- profession rescuers fall under “firefighter rule”: limiting recovery when

injured in line of dutyg. Elasticity of “Foreseeable” and “Hazard”

i. Courts can contract/expand each to further policy or scope of liability ii. Continuum: Herbert Virden Polemis

iii. Virden v. Betts - Δ negligently installed ceiling, Π fell from ladder while repairing Rule: Π’s own acts can be superseding if his acts are not w/in the scope of the

hazard created by Δ. iv. Hebert v. Enos - Δ negligent leaves leaking toilet, Π waters plants, shocked

Rule: Injury not foreseeable; looser standard than Virden.h. Thin-skulled, eggshell

i. Δ is liable even if unaware of Π’s extreme susceptibility to harm2. Intervening Cause

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a. RSTi. NO intervening cause if: foreseeable. OR unforeseeable by type that Δ could

foresee as result of conduct.ii. YES intervening cause if:

Not foreseeable AND- type that Δ could not foresee as result of conduct

b. Foreseeable causes:i. Coincidence/ Ordinary Act of God

Berry v. Sugar Notch - Π driving train, tree falls, tree location violated statuteo Rule: Ordinary natural causes are not superseding and intervening.o Rule: Statutory violation doesn’t necessarily establish causal chain. o Turley- an intervening cause (i.e. act of God) doesn’t necessarily cut off

liability. It must be SUPERCEDING and intervening. ii. Criminal Conduct

Brower v. NY RR - train collided w/Π’s wagon, thieves stole Π’s goodso Current Rule: criminal acts are presumptively superseding/intervening .o Rule: if you leave someone disabled, you are responsible for foreseeable

consequencesc. Foreseeable Consequences

i. Marshall v. Nugent - Prince, Δ, drove other car off road, stopped to help, Π injured when 3rd party hit him Rule: When you create a situation of emergency, you are liable for the

injuries that result, even if there is an unforeseeable intervening cause. D. Proximate Cause- Emotional Distress

1. Old Rule: No emotional distress possible if indirect causal connection; Had to be a parasitic claim- “Impact Rule”a. Mitchell v. Rochester RR - pregnant woman miscarries after horse scare on sidewalk

2. Dillon Rule: Emotional Distress possible if:a. At scene of accidentb. Family member; 3rd party can recover if physical contact/impact

3. Dillon v. Legg - Mother and daughter see sister killed by car. Sister in zone of danger, so prevails, Mom does on appeal. a. Zone of danger test collapsed; impact not necessaryb. Artificial- live TV feed not considered near accident

VI. VI. AFFIRMATIVE DUTIESAFFIRMATIVE DUTIESA. Duty to Rescue

1. Generala. In U.S.- as long as you refrain from harming others, you cannot be liable for harm that

occurs; very individualisticb. FEMINISM : Leslie Bender- No duty to rescue rule- impact of male-dominated legal

system.i. super-individualistic; rejects an individual’s collective responsibility

ii. divorced from morality iii. Bender allied w/Richard Posner, who argued there should be a duty to rescue:

inefficient to have this rule b/c many low-cost rescue cases involve a fleeting wealth differential; problem- people don’t do low-cost rescues b/c the real value return of the rescue is only a potential

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Requiring rescue would be efficient for societyiv. Law does not distinguish costs, i.e. low-risk rescue cases

c. Yania v. Bigan - Bigan dares Yania to jump into a water-filled hole and then watches him drown; no duty to help/rescue

2. Buch v. Amory Manuf .- 8 yr. old trespasses into sewing mill, hand crusheda. Rule: In case of trespassing, owner only under requirement of notification, NOT

‘rescue’ or ‘forcible exit’.b. Exceptions: Enticement, setting traps, attractive nuisance, anticipated trespassers may

cause liability3. Hurley v. Eddingfield - Dr. refuses to give care arbitrarily, wife does

a. Rule: Doctors have no duty to rescue/ take patients .b. Bender- should have duty for low-cost rescue; Posner- more efficient to require rescue

4. But see Montgomery v. National Convoy - Δ trucks stalled, blocking road at bottom of icy hill, Π’s car collided, Π injureda. Rule: Unwarranted non-feasance can lead to liability; creation of danger can cause

responsibility to neutralize danger. 5. Good Samaritan Laws - give some protection against liability for coming to another’s aid,

but will not extend to extreme negligence. a. Liable if one (1) fails to exercise reasonable care or (2) discontinues care, leaving

person worse off than if left alone. B. Duties of Owners and Occupiers

1. Types of Visitors/ Respective Dutiesa. Invitee highest care (you’ve asked them to come to your property)

i. Rule: Duty to inspect/discover and make safe. b. Licensees medium care (social guests):

i. Rule: Duty to warn of any dangers not patent/obvious. ii. Fireman’s Rule- police/firefighters considered licensees; only duty to warn if

you are there (b/c you didn’t invite)c. Trespasser Minimum care

i. Generally- no duty to trespassers; no trespass intent requiredii. Exceptions :

Attractive Nuisance- if child trespasser, you have a complete duty to warn; Attractive Nuisance Test:o liable where one knows children likely to trespass, serious bodily injury

possible, risk children cannot appreciate, Hand Rule weighs against Δ Anticipated/Discovered Trespasserso some states- duty to warno allowing trespassers onto your property can increase your duty to them

Adverse Possession- if you fail to exclude others from your property (usual 14 yrs. +), they can claim ownership by adverse possession

Easement- letting people use your property for many years, they can develop a legal claim to the use

2. Spectrum : Undiscov. Tresp.s Discov. Tresp.s Attract. Nuis. Licensee’s Invitees

3. Robert Addie v. Dumbreck - child, habitual trespasser, injured on pulleya. Rule: Implicit permission to stay may negate ‘trespass’ status. Must take steps to

exclude people from a common area or easement.

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4. Common Standard: General Duty of Care to all but Trespassers a. Rowland v. Christian - Rowland, guest, injured using handle on water faucet, Δ did not

warni. Rule: Duty to warn licensees of non-patent dangers.

C. Bailment 1. Levels

a. Gratuitous bailment (for a friend, for free)- lowest dutyb. Bailment for hire- highest duty

2. Current trend- impose a duty or reasonable care3. Most common types: dry cleaning, parking garage, coat-check

D. Special Relationships 1. Employee, Business Actions

a. Respondeat Superior- most common special rel’ship- master/servant, employer/employee liability- form of vicarious liabilityi. Rule: When employee is acting w/in the “scope of employment”, employer

liable; if “frolic and detour”- not in scope of employment, employer not liableb. DJ Real Don Steele- promo event, encouraged teens to speed car accident

i. Rule: If promo event encourages dangerous conduct, business must take steps to mitigate risks (i.e. Filene’s Basement wedding dress sales).

ii. Rule: Duty can turn on the unique class targeted (teenagers).2. Landlord

a. Kline v. 1500 Mass .- woman assaulted in apt. bldg. common area, lack of securityi. Rule: There are some requirements of landlords (who had exclusive control) beyond

what is required in municipal code; if crime occurring, duty to make changes.ii. Standard: Liability if landlord knew or should have known.

iii. Argument against liability where no municipal code: Deference to legislature- judge should not graft onto municipal code when

decision better left to legislature.o Counter -

courts must protect marginalized citizens- i.e. the poor. D. Kennedy- court must protect lower income ppl b/c legislature does not.

Mancur Olson- Public Choice- landlords have more power in legislative system, will push legis. to further economic bottom line court intervene

Macey- rule on it to force legislature to change it Pigou- leave it to market?o Pareto Superior reached w/this decision? No, there is a loseo Kaldor/Hicks? Yes, society improved by decreasing breeding of crime

3. People w/Unique Info a. Tarasoff v. Regents of UC - grad student obsessed w/girl, tells therapist plans to kill

i. Rule : People in peculiar positions can have a duty to warn if obvious . Standard of care? (for Dr.- average doctor)

ii. In general, Tarasoff can extend to doctors, media, lawyers, but not religious figures.VII. VII. CCONTRIBUTORYONTRIBUTORY N NEGLIGENCEEGLIGENCE

A. Common law rule - “dirty hands”- barred from any recovery if even only 1% contributorily negligent

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B. Contributory negligence jurisdictions attempted to mediate the unfairness of the rule w/the “Last Clear Chance Doctrine:”1. Helpless peril- even if Π is contrib. neg., Δ is still responsible if they had a last clear

chance to prevent the peril b/c they should have known of Π’s helpless state2. Inattentive Π- common law requires Δ have actual knowledge that Π was in peril

C. Most states went to comparative negligence1. PURE COMPARATIVE NEGLIGENCE- requires jury to assign responsibility to

either party; take % assigned to Π and subtract it from the award2. PARTIAL COMPARATIVE NEGLIGENCE- draws the line at 50%; if you are over

50% at fault as Π, you cannot recover; if below 50%, you will lose the % assigned to you

3. Comparative defenses under negligence and strict liabilitya. Rule: Contibutory negligence is NOT defense to strict liability ! (impt. for exam)b. Contributory fault- reduction for fault of Π, even under strict liability (RST 3rd)

i. Controversial; some argue this is a backdoor way to reduce liability)c. Common Defenses :

i. Assumption of the risk; in intentional tort = consent; good defense in SLii. Express assumption of the risk

VIII. VIII. JJOINTOINT ANDAND S SEVERALEVERAL L LIABILITYIABILITYA. Definition- making one Δ responsible for the negligence of all those responsible for the

injury; that one Δ can track down the others, suing for contribution1. Must argue the individuals had a common purpose (often a financial one)2. Parallel doctrine- joint enterprise (usually financial too)

B. Vicarious liability1. Respondeat Superior2. Parents- not too common, particularly w/very young children; more common- holding

parents directly responsibleIX. IX. SSTRICTTRICT L LIABILITYIABILITY

A. Animals 1. General

a. Common law imposes SL for any wild animals in your possession.i. Wolves most common wild pet; illegal pet in all 50 states; wolf mix also illegal.

ii. Possession? “dominion and control” Does it have animus rivertendi? Definition of domesticated animal- habit of

return/ trained to come to you Oil/ gas often analogized to wild animal

iii. Certain breeds of dogs treated as vicious/ wild (even if kept as a pet) i.e. pitbulls, Doberman pinchers

b. 1 Free Bite Rule; NOT one free bite- negligence, unless one knows/ should know, then SL; even if 1st bite, owner held SL if there were indicators animal was vicious

c. Zoos- protected from SL- negligence standard in most statesd. Distress Damage Feasant- if domesticated animal does damage to your property (i.e.

cattle crushes crops), you may hold the animal until owner makes payment of restitution.

2. Gehrts v. Batteen - dog chained to pickup, Gertz asks to pet, dog bites her in facea. Rule: SL for ‘wild’ animals (wolves, monkeys, bears).

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b. Rule: Negligence (NOT SL) for common domesticated pets. Exception: Unless owner knows or has reason to know that the animal has abnormally dangerous propensities.

B. Ultra-Hazardous/ Abnormally Dangerous Activities 1. General

a. Abnormally Dangerous balancing factors : high deg. of risk, likelihood of harm, inability to eliminate risk w/care, extent to which it’s not a common usage, inappropriateness in surroundings, value to communityi. Ask: Foreseeable/ highly significant risk even w/reasonable care? Common

usage?b. Rylands

i. Original Rule: Conduct on land in “non-natural use” w/escaping threat held to SL.

ii. Modern Rule: No longer necessary that conducted on land or “escapes.” c. Spano v. Perini Corp .- Δs constructing tunnel in Brooklyn using dynamite, damage Π’s

car shop.i. Rule: Reasonability/ intrusion irrelevant: blasting is inherently risk, held to SL

standard. ii. Potential defense: social utility outweighs costs; hold to negligence standard.

d. Indiana Harbor RR v. American Cyanamid - Cyanamid ships toxic chemical, leak, RR charged for cleanupi. Rule: Due care from RR would have prevented spill, so negligence standard makes

more sense than SL. ii. Turley: Posner sounds like Calabresi here, arguing homes near RR tracks are CCA;

Turley disagrees: RR could charge more, double hulled cars, avoid certain rails. e. Intervention by 3rd persons, animals, forces of nature does not bar SL. f. No SL for harm caused to abnormally sensitive activity (i.e. mink farm). g. Defenses :

i. Π’s Assumption of the risk- bars recoveryii. Contrib. Negl.- NOT a defense to SL

BUT knowingly, unreasonably subjecting himself is a defense to SLC. NUISANCE

1. General a. Doesn’t fit well w/in SL- more stand-alone.b. Form of action for harms that can be based on intentional conduct, neglig., or SL.

2. Private Nuisance a. Private nuisance- thing/activity that substantially and unreasonably interferes w/Π’s

use and enjoyment of his land. b. Vogel v. Grant Electric - cows on milk farm not producing due to stray voltage

i. Rule: Nuisance may be either physical or non-trespassory interference. c. Fontainbleu Hotel - Δ hotel constructing addition whose shadow would block light/air

to Π’s property in South Beach, FL.i. Rule: Access to light/air is NOT a lawful right .

ii. Ancient lights concept unanimously repudiated in U.S.- idea that you do have some possession of light/access; idea of your property as a cylinder going up to god.

d. General Rule: you cannot claim aesthetics as a nuisance (i.e. hot pink house).e. Rule: Spite fences are a nuisance if wholly malicious (must serve no useful purpose).

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f. Takings clause - “gvmt cannot take your property w/o compensation” related to zoning laws (diminishing property value)i. Renquist majority- more than occupation/ eminent domain, should entail any

diminishment of value Takings revolution- massive zoning laws being struck down; stopped b/c

O’Connor starting refusing to accept cases Scalia- framers knew of nuisance but didn’t mention it when writing takings

clause; assumption you can prohibit a nuisance w/o compensationii. Environmentalists horrified; striking down zoning laws massive development in

fragile ecosystems g. Rogers v. Elliot - Δ rings church bell daily, sunstroked Π has convulsions, Δ refuses to

stop ringing bell after askedi. Rule: “Eggshell thin skull” rule does NOT apply in nuisance; measurement of

nuisance considers normal, reasonable person. ii. Regulation of church - must consider social value of the activity (mosques call).

h. Ensign v. Walls - Δ breeds dogs, town grows to surround him, barking/smells badi. Rule: Doesn’t matter how long Δ has been there if public policy requires removal.

i. Spur Industries - geriatric development next to cattle feed lot, smells; development has to pay for relocation- equitable remedy. Coasian problem.

j. Boomer v. Altantic Cement - neighbor landowners complain bad air quality/smoke/dirti. “Permanent damages” (or no damages) may be applied if economic/ social value of

nuisance is high enough.ii. Looks at CCA. Remedy options: 1. enjoin for period of time to give time to make

technological changes; 2. grant injunction for finite period, vacated upon receipt of perm. damages. Problem- Perm. damages bars future home-owners from seeking diff. redress.

Ultimate Coasian problem- 2 resources in conflict. Expansion of the universe: homeowners: others suffering from pollution; cement

plant- closure causes lost jobs, lost taxes, loss of needed cement, collateral businesses hurt

3. Public Nuisance a. Public nuisance- an unreasonable interference w/a right common to the general public.b. A private citizen may only seek remedy if the nuisance is:

i. Of a greater degree than to the community.ii. Anonymous - road from Π’s house to property is blocked

o Rule: Public nuisances are to be corrected by the stated. Exception: If Π suffers a special and elevated harm, he may bring a

nuisance claim. iii. Of a different kind than the community

532 Madison Ave. v. Finlandia Center - construction collapse causes commercial location and surrounding blocks closed for weekso Rule: For public nuisance to actionable, person must have suffered injury

beyond that suffered by the community at largeiv. Camden v. Beretta - County sues gun manufacturer claiming criminal use of the

guns is nuisance b/c of governmental costs Rule: Public nuisance does NOT apply to products distributed lawfully (even if

they have illegal ends).

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X. X. PPRODUCTSRODUCTS L LIABILITYIABILITYA. Introduction

1. Trend: Privity Hidden Dangers Escola defective design/ duty to warn rescission

B. Exposition 1. MacPherson Rule: Ordinary Negligence: Manufacturer liable when:

a. unsafe condition fraudulently concealedb. product is inherently dangerous to human life

2. MacPherson v. Buick - Π driving Buick, wheel collapses due to defecta. Rule: Products not “inherently dangerous” may be subject to SL if negligence in

manufacturing elevates the product to a potentially dangerous item. b. Rule: If product could foreseeably cause danger, duty to examine.

3. Escola v. Coca Cola - waitress unloading coke bottles, one explodesa. Rule: RIL used to apply SL to products .

i. Manufacturer is CCA; RIL- liability for foodstuffs/products even when no negligence.

ii. Takeaway- Adam Smith- hidden hand of the market used to get rid of unsafe products; manufacturer has incentive to make products safer

4. Present Day Threshold Issues :a. Was the product supplied by a commercial supplier in SOC (excludes casual sellers)?b. Must be a product, not a service

i. Ambiguous ex.- tainted blood; service or product? hosp. says service, but bills you for blood, which they received for free. Courts say “service.”

c. Has product been substantially altered, and does Π know about it?d. Design and warning defects take an initial application of negligence standard, applying

what is reasonably foreseeable. After that, SL kicks in. C. Product Defects

1. Generala. Products liability can come in negligence, strict liability, or warrantyb. 3 types of defect in product liability:

i. manufacturing (rarely go to court, unless “foreign object” defect)ii. design

iii. warning (reasonableness standard under both restatements)c. Note: Apply all 3 tests below on the exam!

d. RST § 402A- Majority Rule – ORDINARY “Consumer Expectations” – SLi. RST § 402A

One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, ifo the seller is engaged in the business of selling such a product, ANDo it is expected to and does reach the user or consumer w/o substantial change

in the condition in which it is sold The rule stated in Subsection (i) applies although

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o the seller has exercised all possible care in the preparation and sale of his product, and

o the user or consumer has not bought the product from or entered into any contractual relation w/the seller (absence of privity)

Goal- consumer protection purpose; anyone in SOC is potentially liable; cannot warn away a defect

ii. Standard = Ordinary “Consumer’s Expectations” Basic Requirements :o Applies to products only, not services

Grey areas: blood = service Airplanes:

-Transportation is a service, BUT-The manufacturer of the plane product

o Must have a commercial supplier, and all liable Manufacturers, retailers, assemblers, etc. NOT- garage sale person

o Product cannot be substantially altered Ex.: Re-working new car’s aesthetics but failure occurs not related to

changes not substantial alteration Exception: Substantial alteration may be held liable if:

an objectively forseeable modification, OR Δ consents to modification, OR modification per instructions

e. RST § 402 Hybrid Majority Rule – “Risk-Utility” Testi. “Risk-Utility” Test for Defective Design

expansion of “consumer expectation” Can be applied as an alternative to “consumer expectation” when the consumer

doesn’t know the expectation (high tech. products)f. Restatement 3rd § 2- Minority Rule

i. RTT § 2: Categories of Product Defects = Minority Categories of Product Defects: Manufacturing, Defective Design (if a

“reasonable alternative design” exists), and warning defecto RTT § 2(b) shifts attention, increases burden on Π; Π is forced to come up

w/an alternative design easy if there already is an alternative design out there; if not- can really

increase litigation costso Much more hostile standard- forces Π to come up w/ reas. alternative design

compared to RST § 402A, where Π just had to say current design itself dangerous

2. Manufacturing Defects a. RTT: Proof of specific defect not required when incident is (1) a kind that ordinarily

occurs b/c of defect; (2) when some portion of the injury can be traced to the defect.b. Issue: RIL can only be applied to a SL standard, and here the local rule is negligence,

so RIL is substituted w/”circumstantial evidence.”c. Speller v. Sears - house fire, Π argues caused by fridge, experts differ as to cause

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i. Rule: “Circumstantial evidence” is permitted when all other possible sources of the injury have been reasonably shown to not be the cause.

d. Warranty- when you sell something, it comes w/some kind of warrantyi. Implied warranty- minimum expectation as to the use/safety of the product

ii. Express warranty- what was expressly specified as to the capacity/use of the producte. Food: Consumer’s expectations approach, rather than “foreign object” vs. “natural”

3. Design Defects a. Standard: Determination of “alternative design:” production cost, effect on

maintenance/aesthetics, range of consumer choice added, risk/benefit analysisb. Campo v. Scofield - Rule: If machine is w/o latent defect and its functioning creates no

unknown danger, manufacturer is not liable.i. Rule: No requirement to warn against obvious dangers (hitting self w/hammer,

saw).ii. W/most design defects, the risk is not patent, so risk is more dangerous than

expectation of ordinary consumer. c. Volkswagon v. Young - Π killed when rear-ended and seat comes loose from car frame

i. Rule: Products must be designed for their foreseeable uses (car accidents foreseeable) manufacturers liable for defects in design which could have been reasonably foreseen to cause/enhance injuries.

d. Barker v. Lull Engineering - Π injured operating fork-lift on non-level ground, falls outi. 2 Pronged Test : Product design is defective if either:

Product failed to perform safely as an “ordinary consumer” would expect when used in an “intended/reasonably foreseeable” manner

The design proximately caused the injury & it can’t be shown that the benefit of the design outweighs the risk (“risk utility” test)

ii. RTT took the 2nd pong and made it its rule. 3 options for products liability: 402(a), 2-prongs, RTT

e. Subsequent “Product Modification” Rule- usually not admissible evidence unless a 3rd party made the modification or modification directly altered the item that failed

f. Linegar v. Armour - officer shot under arm, where bullet-proof vest didn’t coveri. Rule: Consumer expectation test- risk was open and obvious (not absolute defense);

can’t subject manufacturer to SL for reasonable design esp. when design chosen by Π.

g. Halliday v. Sturn , Ruger- 3 yr. old shot self in head w/father’s gun; father ignored safety warningsi. Rule: Absent legislative intent, a “consumer expectation” test will be applied to

normal handguns.4. Warning Defects

a. General/ Turley:i. Cannot warn away a defect

ii. Don’t have to warn every issue But do have to warn for the ‘worst reasonable person’ Easily intelligible, tailored to target audienceo Anticipate your audience (i.e. multiple languages)

iii. Excessively dangerous by nature- can’t be mitigated, must warn though iv. Foreseeable misuse

Must always warn against/ design against foreseeable misuses

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o i.e. if foreseeable misuse, don’t use easily removable guard, use immovable; or printing press hickey w/o a press guard

v. Advertisements - marketing is part of the product; may erroneously warnvi. Guideline for defects warnings:

Latent Warn Latent & Remote May still need to warn Patent Split Courts, some yes, some no

b. RTT § 6: “Learned Intermediary” Rule:i. Health care providers in a position to reduce risk should be given adequate

instructionsii. Patient should be given reasonable instructions if manufacturer knows/should know

health care providers will not be in a position to reduce risks of harm.c. Exceptions:

i. Pharmacists are not in a position of duty to warn.ii. Majority rule : Direct warning to consumer warranted when:

Physician has minimal effect of decision process , OR Product targeted directly to consumer

d. MacDonald v. Ortho Pharm - Π used the pill, had stroke, sues for failure of duty to warn b/c only warned of blood clot, not “stroke”i. Rule: Learned Intermediary (if legit use of learned intermediary, manufacturer

cannot be sued for lack of warning) applied, BUTii. Rule: Exception: Prescribed items where patient has a larger role in deciding to use

and doctor has more silent role (i.e. only annual check-ups).iii. Sub-Rule: FDA regulations are the floor, don’t exclude you from liability.iv. Turley: ‘Comment K’- No SL for products of great social value

Ex.- polio vaccine 2 Jurisdictions:o Majority : “my case is like a polio vaccine”

win look at negligence, comment k lose SL

o Minority : RTT- “drug not defective in design if reas. health provider would prescribe it for any class of patients”, i.e. negligence So if 1% aren’t harmed, no SL Problem- drugs often prescribed for off-label purposes

e. Vasallo v. Baxter - Π has silicone breast implants, injuredi. Rule: (Negligence Standard) No liability for failure to warn about risks that are:

Not reasonably foreseeable at time of sale, OR Not discoverable by reasonable testing.

f. Hood v. Ryobi - Π takes off saw guards despite warnings, injuredi. Rule: A product warning must be reasonable but does not need to warn of every

conceivable injury. ii. Rule: But, design against/ warn against foreseeable misuse.

g. Duty to warn of dangerous products by others- even if your product is safe, if you know during natural use will come into conduct w/3rd party’s product to make unsafe – duty to mitigate/warn.

h. Daly v. General Motors – Π drunk, speed, loses control, ejected from car, claims door lock defectively designed

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i. Issue: can comparative negligence apply in SL cases? ii. Rule: (outlier/ minority) Comparative negligence is possible in SL of products

liability.5. Federal Pre-Emption

a. Damages (part of state law, individual by state)i. Compensatory - for your costs (pain/suffering, loss of work, direct cost/harm)

ii. Punitive - if conduct so outrageous, damages to convey social judgment unbelievably rare, often reduced Sup. Ct.- Q: const. limitations on punitive damages (PD)? Yes, fed. violation if

state allows too many PD; PD > 10x compens. damages attract attn. of fed. cts.iii. Statutory- FDA statutes can sometimes preempt tort cases if tight warning

Traditional approach- statutes create floor, but you can still be held liableb. Geier v. American Honda Motor Co .- Π wants to sue for no airbags, Fed. law doesn’t

require airbags, but state law forces. State law preempted by federal legislation? Yes.XI. DDEFAMATIONEFAMATION

A. General 1. Definition: communication is defamatory if it tends to harm the reputation of another as

to lower him in the estimation of the community or to deter 3rd persons from associating or dealing w/him. a. Defamation requires: (1) falsity; (2) unprivileged communication (publication); (3)

fault; (4) damages. 2. Rule: Requires publication:

a. Intentional or negligent communication to a 3rd personb. Intentionally or unreasonably failing to remove defamatory material that he knows to

exhibited on his land/chattels3. Rules:

a. Truth is an absolute defense.b. Does not apply to deceased individuals.c. Corporations and businesses can be defamed.d. Large groups are generally not able to maintain defamation actions but small groups

may be successful (note Neiman-Marcus case). e. Opinion is protected when based on known or stated facts (however, can be actionable

when based on undisclosed or personally known facts). i. Parody and humor are protected as a form of opinion.

ii. Wilkow v. Forbes - Forbes publishes article about businessman, who ‘plays fast/loose’ Rule: Opinion not defamatory. Rule: You must show it has harmed your reputation.

iii. Auvil v. CBS (Product Disparagement Libel)- Π sued CBS for segment about a pesticide used by apple-growers linked by a report to cancer

o Rule: Where media is clearly reaching an opinion, editorial opinion is protected.

4. Book/ newspaper/ radio/ television broadcast = single publication.5. Intra-corporate communications are often not treated as “publications.” (variation)

(important defense against defamation; no publication- no defamation)a. Exception: If there is a showing of actual malice, you can lose the inter-corporate

privilege. (Doe v. Gonzaga)

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6. You are subject to defamation if you repeat/ re-publish a defamation7. Defamation per se- certain areas of defamation are patently defamatory:

a. criminal offensei. Muzikowski v. Paramount - movie based on Π’s story, adds felonious activities;

defamation per se upheldb. STDc. inability to perform public office dutiesd. fornication/adulterye. words prejudicing her trade/ profession

8. Watt v. Longsdon - (private libel) disparaging comments made about Π having an affair by administrators w/in the co. a. Rule: On privileged occasions, may state opinions. This privilege can be lost by:

i. going beyond the limits of the duty/ ordinary course of workii. showing of actual malice

9. Privilege a. Absolute privileges: judicial proceedings, legislative proceedings, executive

communications, communications Π has consented to, communications btw husband/wife, communications required by law to be publishedi. Kennedy - everything in court is privileged, but what is stated outside of court can be

defamatoryb. Fair Reporting Privilege

i. Jacobson case - Viceroy Tobacco Co. sued CBS for libel for a broadcast regarding the manufacturers supposed targeting of youth in ads. Used gvm’t report. Rule: Publication of the defamatory matter is privileged if the report is

summarized in fair abridgment10. NY Times v. Sullivan - elected officials in Alabama accused by NY Times for

discriminatory practicesa. Π, public official prohibited from recovering damages for a defamatory falsehood

related to his official conducti. Rule: unless proven that the statement was made w/actual malice (Actual Malice

Standard- if speaker had knowledge of the falsity or reckless disregard for the falsity)

ii. Higher defamation standard for public officialsiii. Turley: Why? free speech is a check on governmental abuse

prevents chilling effect on media; protests wide open debate public officials have a greater ability to defend themselves

b. Butts case - Sullivan extended to public figures11. Gertz - negligence standard, not SL, when suing media

B. Slander v. Libel 1. Libel- the publication of defamatory matter by written or printed words (or its

embodiment in physical form/ any other form…)2. Slander- the publication of defamatory matter by spoken words, transitory gestures or by

any form of communication other than those stated in Subsection (1).3. Rule: Radio/ Television = Libel

XII. PPRIVACYRIVACYA. Basic Privacy Torts:

1. Intrusion Upon Seclusion

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a. Definition: intrusion upon the solitude of another; Rules: must be non-public and highly offensive to a reasonable person, does not require publication

b. Nader case - GM’s PIs looking over Nader’s shoulder in bankc. Desnick case - investigative reporting; ABC went into Dr. Desnick’s office

i. Rule: Journalists have no special privilege to trespass. But, no violation here b/c where the journalists went was open to the public.

d. Food Lion case - allowed damages for trespass but not publication damages 2. Public Disclosure of Embarrassing Private Facts

a. Definition: Publicity of a private matter to a 3rd person is subject to liability for invasion of privacy if the matter:i. would be highly offensive to a reasonable person, and

ii. is not of legitimate concern to the public.b. Publicity- disclosure to 3rd persons so that a private fact becomes public knowledge c. Applies to true facts, not just false factual assertionsd. Media defense of newsworthy story

3. False Light a. Definition: one who gives publicity to a matter concerning another that places the other

before the public in a false lighti. must be highly offensive to a reasonable person and

ii. actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter/ false light

b. Info must be falsec. No exception for matters of legit. public interestd. Times v. Hill - showing of known falsity or reckless disregarding req.

4. Appropriation of Π’s Name/Likeness a. Can be brought by estates of the deadb. Many states require showing that appropriation done for business/ commercial purposec. Zucchini case - human cannonball; Held- 15 sec. clip of him on TV did amount to

stolen name/likeness

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