Torts

"Hammontree v. Jenner Epilepsy Car Accident"

Driver has epilepsy, takes medicine, complies with state requirements that he get approval from a doctor. Driver has an epileptic seizure while driving, injures Mrs. Hammontree. Court says that Driver is not negligent, and declines to use strict liability.

EXCEPTIONS to the Objective Reasonable Person Standard

" Exceptions to the objective reasonable person standard: - Blind people - Children - held to the standard of what a child of the same age would do BUT children doing adult activities (e.g. driving a car) held to adult standard - Physical injuries causing impaired abilities - e.g. Hammontree NOTE: In these situations, it is easy / not costly to establish that the person should be held to a subjective standard. "

Duty of Doctor to Warn about HIV - MAJORITY RULE

Majority Rule - Doctor has duty to tell the patient about HIV status in most jurisdictions, whether the doctor has a duty to third parties who might be infected by the plaintiff varies by jurisdiction

Parental Immunity - STATE VARIATION

Rule: Many states no longer recognize parental immunity - but still a valid defense in some states

Land Use Cases (Strict Liability)

Rylands v. Fletcher for example - bringing a dangerous instrumentality onto your land

Negligent Entrustment - General Rule

If you give someone an instrumentality and they hurt someone else with it, you are generally liable.

Qualified Immunity for Government

" Government is not liable for negligence when doing something that only governments do Government is not liable for discretionary functions of the job, only liable for obligatory functions (ministerial functions - required government tasks). Government is not liable when there is no duty to the individual, but rather a duty to the general public. NOTE: Discretionary functions are NOT just anything that requires judgement - discretionary functions are when a decision involves a policy judgement about some political, social, or economic, considerations. When judgements about safety involve budget considerations or policy, those decisions are immune from tort liability BUT budget alone is not enough to prove something is discretionary (Friedman) "

"Addis v. Steele: Hotel set on fire by arsonist, hotel failed to provide an escape path"

" Holding that a hotel was liable for negligent failure to provide an escape path in case of fire even though fire was caused by arsonist. Could not have foreseen arson, but could have foreseen fire. "

"United States v. Carroll Towing Co Boat was not secured well enough by Defendant, crashed into other vessels, damaging them, no bargee present at the time of the accident "

" Holding: Carroll Towing's liability was reduced because the Anna C was contributorily negligent Learned Hand's Economic Formula for Negligence: If probability of Damage x Cost of Damages > Burden of Precautions then there is negligence because the person did not take all reasonable precautions Applying the forumla: The cost of hiring a bargee is low and the cost of an accident, which can be prevented by hiring a bargee, is very high, thus not hiring one is negligent "

"B&O Goodman RR Co v. Goodman Plaintiff hit at a RR crossing, view impaired by a row of buildings -- leads to stop look and listen rule"

" Holding: Railroad not liable as a matter of law Institutes the "Stop, Look, and Listen Rule" - It is a person's responsibility to to make sure that a train is not coming before crossing the tracks. This is an intermediate rule defining what is reasonable when driving across a railroad track - makes the question of reasonableness in this situation a question of law (takes away from juries). Example of judges making intermediate rules and example of judge taking control away from juries (juries always decided against the RR). NOTE: This rule was overturned in Pokora. "

Negligent Infliction of Emotional Distress (NIED)

" NEID is a cause of action for a bystander. The person who is injured can recover for the physical harm and that pain and suffering - NEID allows a bystander to recover for the bystander's own emotional suffering "

"Anderson v. Minneapolis Two fires start separately and both arrive at the plaintiff's home and burns down the home."

" Court says that both parties are responsible even though neither fire was a "but-for" cause. Court employs a "substantial factor" test to hold both parties liable. "

"Berry v. Sugar Notch Borough Speeding tram hit by falling tree"

"Berry v. Sugar Notch Borough: Holds that proximate cause not met in a case where the speeding trolly car was hit by a falling tree. Speeding was a but-for cause (had it been going another speed, would not have hit), but the speeding does not increase the probability of a tree falling on a trolley. "

Tresspass Vi Et Armis (Tresspass with Arms)

" This writ was originally designed to deal with battery and assault - intentional harm. Over time, cases that didn't really fit the existing writs were adapted to fit the writs (there were no writs that applied to modern day torts). Trespass was originally created to deal with intentional battery, but judges wanted to expand jurisdiction, and also recognized a need for better justice for these types of cases. Judges allowed people to plead trespass with arms in torts cases where the action was unintentional → everyone knew the pleading (with regard to the force of arms part) was false. The reason for assuming this "force of arms" was jurisdictional - so the court could hear the case. "

Wrongful Birth Cases - MAJORITY RULE

""Wrongful Birth" - Action of the parent, I have a child I did not want to have as a result of your negligence Wrongful Birth of a child with congenital defects: Most states give medical costs and some give child rearing costs (discounted for government benefits). If the doctor was on notice that the reason that the couple didn't want to have children was because of a risk of a defect - can get child reading costs as well. Wrongful birth of a healthy child: Most states do not give child rearing costs Healthy Child: This is the hardest case, because when the child is healthy, we do not want to admit that raising a healthy child is more cost than benefit (damages subtract benefits so to get damages for a healthy child would need to admit that rearing a healthy child is a net-negative experience). Legal Fiction: In society, there is a problem of unwanted children (unplanned children used to be more common). In that sense, it is important to maintain a fiction that parenthood is so wonderful (for a healthy child) that the benefits outweigh the costs, even if unplanned. This fiction is very important for the unwanted child. "

Wrongful Life Cases - MAJORITY RULE

""Wrongful Life" - Action of the child, I have a life not worth living, and I was born as a result of your negligence, would rather not have been born (potential action for people who are born with deformities that are very costly) Majority Rule: Generally you cannot recover for wrongful life. Children cannot bring cases on the grounds that they should not have been conceived. Exception: Some courts will recognize that if you have disabilities and your life is harder than it would have been,you can recover for the medical costs associated with your disability Difficulties with wrongful life cases: We do not want to pass an objective judgement that some lives are not worth living - the Court does not want to say that someone's life has negative value - and give damages "

Systematic Bias Problem - Yellow Cab Problem

""Yellow Cab Problem" - Systematic Error Assignment If there are two cab companies, Red Cab Company has 40% of the cabs, and Yellow Cab Company has 60% of the cabs In any accident involving a cab, it is more likely than not that Yellow Cab Company was responsible - therefore there will be systematic bias in assignment of error to that defendant "

Calculating Loss of Chance

"% chance of survival when disease could have been diagnosed - % chance of survival when disease was actually diagnosed Multiply by total damages (wrongful death) Doctrine is that if you don't die, no recovery for loss of chance Majority rule - if loss of chance is greater than 50% and doctor misdiagnosed then the plaintiff recovers 100% of damages —> standard malpractice case - it was more likely than not that you would have survived but for the improper diagnosis "

Possible Levels of Recovery for Wrongful Birth Cases

"3 potential kinds of recovery: 1. Limited Recovery: Only allows for recovery for the medical costs of the pregnancy and potential emotional distress resulting from the pregnancy 2. Allowing as well for the cost of child rearing, balanced by the benefits of having a child. 3. Full Recovery: All costs - medical and child rearing, without discounting for "joy""

911 Cases - MAJORITY RULE

"911 Cases: generally 911 responses are part of ministerial functions, but if the dispatcher makes a mistake (clear negligence) then you can recover. New York goes further than most jurisdictions - they require that the police made a promise to you, and that you relied on the promise, and that this reliance was responsible for the injury. "

Learned Intermediary Doctrine - MAJORITY RULE

"Accepted in most states as a defense in prescription drug cases. If doctor has been warned, it is his responsibility to warn patient. Learned Intermediary Rule not accepted in RI and WV. Certain drugs are exempted from the learned intermediary rule e.g. contraception because there is so much consumer pressure. "

Proximate Cause

"An action is a proximate cause if it increased the chance of the type of harm that is reasonably expected to occur from that action. If your action was a proximate cause - you are responsible. Foreseeability is important because you cannot be responsible for something that is not foreseeable. Extent of harm is never foreseeable (because that depends on the specific victim), but the type of harm is foreseeable. In anticipating the type of harm and expected cost of accident, this includes the entire bell curve of possibel victims (including a very costly victim e.g. an eggshell plaintiff and warren buffett). But-for causation is not enough in a lot of scenarios for causation. But-for causation can be too attenuated to hold the person liable for that act Foreseeability is a very malleable concept: At a certain level of generality, everything is foreseeable depending on how you describe it. If you say "something bad is going to happen tomorrow" that is very likely "

"Barker v. Lull Engineering Co. High lift loader overturned and injured the driver "

"Barker used an analogy to manufacturers warranty - extended the warranty concept to injury. Coca Cola usually means that if a bottle explodes, they will give you a new bottle. Trainor said that Coca Cola should give her a new hand. Barker then says that this should also be extended to design defects (not just manufacturing defects). Manufacturer's liability is analogous to warranty. When you buy a product under warranty, the manufacturer accepts the risk of something going wrong. There was already a big body of law around the concept of warranty, and the law had developed an "implied warranty" doctrine. Anytime you sell a product to a consumer, you warrant that it will conform with a consumer's expectations that the product will function in accordance with its goal. Trainor saw that this was a model for tort liability - with respect to defects in the product, the manufacturer provides a warranty (insurance) and accepts the risk of something going wrong with the product. The manufacturer doesn't accept all risks, but accepts the risks that the product will conform with consumer expectations. Barker has 2 prongs: 1. Did the product fail to meet consumer expectations (was the manufacturer the cheapest cost avoider with regard tothe harm) - if yes, the manufacturer is liable —> no fault 2. Cost Benefit analysis - was it the best possible design in hindsight or did the design embody excessive potential danger? —> the manufacturer will be held liable if the product would be negligent today. NOTE: the second prong is only used when the product did not fail to meet the consumer expectations test. In the second prong, Barker modifies the law halfway back to negligence by asking whether the product was well designed, whether it was as safe as it should be —> once again, juries will be determining what the design should have been. BUT the hindsight element is strict liability - hindsight means that you can hold the manufacturer liable for a design that was not negligent at the time but would be negligent today "

Blasting Cases (Strict Liability)

"Blasting cases were one area of strict liability - If you are involved in blasting, even if you are justified in doing it, and then an accident occurs, you may not be negligent (you did something socially valuable as carefully as you could have) —> but you are strictly liable, proof of fault is not necessary. Sullivan v. Dunham - Defendant employed two men to blow up a 60-foot tree, causing a piece of wood to fly 412 feet onto a highway, killing a woman. Holding: Ones right to the lawful use of their property is not absolute but rather is limited by others' right to safety of their property or themselves. "

"Hymowitz v. Eli Lilly & Co. DES was a drug used for pregnant women that was found to cause cancer in the daughters of the women who took it - many years later. "

"But-For Causation Problem: Impossible to know which pharmaceutical company supplied the pills in each specific case, but we know all the companies imposed risks on the plaintiffs generally. Holding: Court uses probabilistic approach (risk imposition) to causation and assessed liability proportion of market share. Manufacturers were severally liable. Plaintiffs could only collect for market share of the defendants brought to trial, so some Plaintiffs could not collect 100%. Plaintiffs did not have to prove that a specific manufacturer was a but-for cause of their injury, but did have to prove that DES was a but-for cause of injury. NOTE: Court did not allow arguments against causation in each case e.g. we never sold to X pharmacy, we did not make red pills etc. Not interested in "but-for" causation in each case, held companies liable for the risk they imposed across the entire class of defendants. Departure from Matsuyama and Summers because they finally admit that they are abandoning but-for causation in this case. The Wrong was imposing the risk. "

"Summers v. Tice Defendants were hunting, both shot in the direction of the plaintiff. Plaintiff was hit in the eye and the lip. Both defendants were using the same gauge gun, same size shot, impossible to determine whose shot was the but-for cause of the eye injury and lip injury. Cannot determine that without one of them the injury would not have happened. "

"But-For Causation problem: Impossible to determine whose shot was the but-for cause of the eye injury and lip injury. Cannot determine that without one of them the injury would not have happened. Holding: since both parties were negligent, the burden shifts to them to prove that they were not the cause otherwise they are both liable. Both defendants jointly liable for 100% of the damages. NOTE: - Similar to Ybarra because they were held liable without proof of cause, but different from Ybarra because in Ybarra we knew one person was negligent and the others maybe weren't, whereas in this case both defendants were for sure negligent. - This logic cannot be applied if only one of the parties was negligent. Only works when two parties are acting negligently, both at fault, don't know that cause."

Categories of Duty for Landowners - STATE VARIATION

"CA - abolished all the categories, duty of reasonable care for all types of visitors. Many states have followed Heins and have eliminated the distinction between different types of lawful guests (the invitee / licensee distinction). Lawful / unlawful guest distinction remains. "

Cheapest Cost Avoider

"CCA = the person who is in the best position to do a cost-benefit analysis of precautions and in the best position to undertake the precautions that are worth taking If the strict liability system is well administered - then the cheapest cost avoider will pay for unavoidable accidents. NOTE: the cheapest cost avoider doesn't have to be the person who can avoid the accident TODAY, it is the person who is in the best position to prevent the accidents in the future For example, very hard for courts to know that car manufacturers were the cheapest cost avoider in the 1960's because at the time, they didn't have the ability to prevent drunk driving accidents. BUT they were the cheapest cost avoider (we can see this now in the future). If you put the incentives on the wrong person, then the costs will be very high - cars will be more expensive, won't be any safer, and the person who can do something about the accidents will not have the incentive " Manufacturing Defects (Strict Liability) "Manufacturing Defects: The product did not work as it should, it did not work according to its own design. This is independent of negligence, the design and manufacture was not negligent, might even have been state of the art. We still adhere to manufacturing defects as a pocket of strict liability —> if you show a manufacturing defect, then you do not have to prove fault. Manufacturing defect was very easy to adopt because it was very easy to apply. "

Pain and Suffering in Wrongful Death Actions

"Can family members in a wrongful death actions recover for their pain and suffering? Until recently, the rule in many states was that in wrongful death actions you could only recover pecuniary damages and not emotional harm. Many states still do not allow recovery for pain and suffering of the family members. In some jurisdictions, spouses can recover. Sometimes if a child has died, you can get some defacto emotional damages by translating this into pecuniary damages - e.g. you can say that in old age your child would have helped you and now you will need a nurse, and quantify this "

"McDougald v. Garber defendant's malpractice left plaintiff in a permanently comatose condition "

"Can you get pain and suffering recovery if you are unconscious? The Court holds that in order to get pain and suffering for the victim, the victim must be able to perceive the pain and suffering. There is a suffering even to being unconscious - there is a loss of the enjoyment of life. If lost wages of dead people are allowed, why would lost pleasure not be allowed? Loss of enjoyment of life - to the extent you aware of it, is a form of pain and suffering. Loss of enjoyment is a real loss to society - so it should be included in what the defendant has to pay. On the other hand, it doesn't have any compensatory significance because loss of enjoyment doesn't belong to anybody if someone is dead "

"Stubbs v. City of Rochester Stubbs contracts typhoid after drinking the city's contaminated water. Sues city. No one disputes that the city was negligent, but the question is whether the city's negligence caused Stubbs' typhoid "

"Causation Issue: there are many ways to contract typhoid (e.g from unwashed food, from other people) other than through water Holding: Proving cause in fact does not require the plaintiff to disprove all other possible causes - just need to show with "reasonable certainty" that the negligence was the cause. When but-for cause is disputed, statistics are the primary method for proving causation. Have to prove that it is more likely than not that you were injured by the defendant. Stubbs proves that there is a more than 50% chance that he contracted Typhoid from the contaminated water (as opposed to in some other way). Systematic bias problem - everyone can now collect for typhoid from the city, even though some contracted another way "

"Zuchowicz v. United States Zuchowicz was prescribed twice the maximum dose of Danocrine for a few months and soon after was diagnosed with a rare disease, PPH, which killed her. "

"Causation issue: Was it the improper prescription or the rare disease which killed the plaintiff? Court used the substantial factor test (used in CT) to determine that the overdose of the medication was a "substantial factor" in her death, and therefore the doctor who prescribed can be held liable. Negligent prescription of the medicine was a "substantial fact" in causing the plaintiff's injury - courts accept the "substantial fact" when there was more than one sufficient cause Rapa thinks the court doesn't care about cause in fact in this case, but comes up with ""substantial factor"" to avoid admitting that they have abandoned cause in fact. "

Child Abuse Statutes - MAJORITY RULE

"Child abuse statutes are prominent in providing the basis for an affirmative obligation to report by those who have knowledge of or reason to suspect child abuse - most states have a version of this "

"Strauss v. Belle Realty Co Strauss was injured during an electricity blackout - he fell in a common area of the building. "

"ConEd not liable to Strauss for his injury sustained when the power went out. Court held that ConEd did not have a duty to Strauss in the common area of the building because their contract was with the landlord. Rapa thinks that this case should be understood as a Governmental immunity case - because ConEd is so government regulated, essentially quasi-governmental. Court approaches through a sovereign immunity lens - ConEd has a duty to the public, not to any individual member of the community. Courts do not want the tort system to be used to govern the utility. "

Contributory Negligence

"Contributory negligence was a defense at common law (defendant had to prove it). Contributory negligence by the plaintiff was a total bar to recovery under common law (even a small amount of plaintiff's negligence barred recovery). Logic Behind this doctrine was that the plaintiff was jointly liable with the defendant - therefore the plaintiff was liable for 100% of the damages, nothing to recover. But for the plaintiff's negligence, the damage wouldn't have happened. This was logical, but not wise and was too harsh Developments in the doctrine to mitigate the harshness: - Juries would not find plaintiffs contributorily negligent when the plaintiffs negligence was small, would just lower the damages - If the defendant was reckless, Contributory negligence was not a bar to plaintiff's recovery - "Last Clear Chance" Doctrine - applies when defendant and plaintiff's negligence does not occur at the same time. If defendant could have prevented the accident, plaintiff could recover even plaintiff was negligent (e.g. plaintiff falls asleep on tracks, and defendant had chance to stop the train, but didn't). Example: Davies v. Mann: Defendant ran into a donkey that the plaintiff had negligently left in the roadway, but defendant had "last clear chance" to avoid the donkey so contributory negligence was not a defense "

Correct theory of warnings

"Correct Theory of Warnings: -Warnings transform a dangerous product for which the manufacturer is the cheapest cost avoider, into a product where the consumer is the cheapest cost avoider -Warnings must empower a consumer to prevent harm, not just alert them to the harm, because otherwise the warning does not shift the status of the cheapest cost avoider A warning is a preliminary step - it informs you about risk but it doesn't necessarily mean that you are the cheapest cost avoider for preventing an accident. Knowledge of the risk is not enough. Knowledge may be a first step to empowerment - Knowledge that empowers the consumer and shifts the quality of being the cheapest cost avoider to the consumer is a true warning. "

"Johnson v. Jamaica Hospital Child is kidnapped from hospital, and is found 4 months later. Parents sue the hospital for emotional distress. "

"Court held that the hospital had no liability to Johnson for her emotional distress after her daughter was taken from the hospital and only found 4 ½ months later. Court held that the hospital only had a duty to the baby, and not to the parents. NOTE: The child was not physically injured, and there was not a great case for the child's emotional distress (not clear the child knew what was going on). Significance: The Court was afraid of extending liability because they thought it would lead them to need to extend liability In all tort cases, because every time someone is injured, there would be relatives who could claim emotional damages. "

Plane Crash Emotional Distress Cases

"Courts have granted damages to the estates of plaintiffs who died in airplane crashes for the emotional distress that the plaintiffs suffered prior to the crash. —> Logic is that if the passengers had survived, they would have been able to recover for emotional distress —> so next of kin can also recover on their behalf. If the facts showed that the passenger likely knew he was going to die, then the passenger can recover for the emotional distress. Passengers can also recover for the fear of a plane crash - even if in the end there was no plane crash. "

Custom in Torts

"Custom = a business practice. Custom is strong evidence of reasonableness (becuase it represents aggregated knowledge in an industry of what is reasonable). If a defendant did not abide by custom, this is not dispositive, but burden shifts to defendant to prove why it was not negligent to deviate from custom. A custom does NOT have to be a universal or majority practice - just has to be an established practice among some significant portion of the profession. Abiding by custom is not a safe harbor - not proof of non-negligence. There can be a negligent custom (e.g. custom of not having fire escapes on a building). If custom were safe harbor, there would be no innovation. "

Damages as lump sum payments

"Damages are always paid in a lump sum upfront which creates problems because full damages are unknown at the time of the trial. Causes a lot of inaccuracy because you have to make future calculations Why do we have the lump sum system? - Lump sum payments incentivize people to recover as opposed to incentivizing people to continue being sick (miracles) - Administrative costs "

Wrongful Death v. Survival Action

"Damages when people die: Wrongful death is for the losses that the family incurred (generally only pecuniary). The action is brought by the family of the victim for the family member's own loss. Example: if a spouse in a family dies, the other spouse is damaged (missing wages, missing companionship) Survival Action - is the decedent's own action (brought in the name of the victim by the victim's estate on the victim's behalf) Can include pain and suffering for the person who died "

"Escola v. Coca Cola Bottling Co. of Fresno Escola was injured when a bottle of coke exploded suddenly in her hand"

"Decided as a res ipsa case but is famous for Traynor's concurrence suggesting that MacPherson be extended so that manufacturers are liable for any injury due to a defective product because consumers do not have the information necessary to protect themselves Manufacturing Defect: The coke bottle was not produced to the standards that is was designed to meet (bottles are not supposed to explode. Coke is the cheapest cost avoider - the way to avoid this accident is to make safer bottles and therefore making them liable (even though the accident was unavoidable at the time) would incentivize them to come up with better designs (which they did, cans) "

"State Farm Case Facts: A person is killed and another is very seriously injured in a car accident Only $136,000 in damages in the original lawsuit Wanted to settle for $50,000 because that was the insurance limit of the policy but the insurance company said no The defendant sued State Farm for bad faith because he wanted to settle for the $50,000 that insurance would have paid and now is responsible for the additional damages by going to trial Plaintiffs lawyers from the original case represent him as long as he will give 90% to the original plaintiffs Wins $146 million award- $1 million = compensatory, $145 million = punitive from the jury "

"Defendant in a car accident wanted to settle for 50,000. His insurance company said no - they wanted to take the case to trial. Defendant loses and the damages is $136,000. The Defendant sued State Farm for bad faith. —> it turned out that State Farm was doing this in hundreds of thousands of cases —> won $146 million dollar award. SCOTUS says that the punitive damages award is excessive - cannot justify more than a single digit multiplier of compensatory damages (no more than 9x the compensatory). Courts should look at: reprehensibility of the action, disparity between harm and damages, and disparity between criminal penalty and punitive damages in determining whether the punitive damages are acceptable. Rapa thinks this is wrong - brings it back to criminal law and reduces disincentive by tying punitive damages to compensatory damages. Rapa prefers the Posner approach (using punitive damages to deter bad business practices). This rule doesn't provide a proper disincentive against adopting these practices Tying punitive to compensatory damages doesn't make sense because when compensatory damages are high, you don't need punitive damages "

"Davenport v. Cotton Hope Plantation Horizontal Property Regime Davenport was renting a condo from Cotton Hope and had been asking for the lights in the stairwell to be fixed for 2 months but continued to use the dark stairs rather than the other stairs further from his apartment. One night he fell and injured himself. "

"Defendant landlord tried to use an assumption of risk defense - Plaintiff chose to use the darkened stairs rather than the light stairs. This is not true assumption of risk because Plaintiff didn't rationally choose to accept the risk because he was in a better position to protect himself (he did not have better skill in going down darkened stairs than the average joe). Plaintiff acted negligently / foolishly --> therefore it is not true assumption of risk. Because it is not true assumption of risk, assumption of risk is not a full defense and the plaintiff's negligence can be compared to the defendant's negligence. Secondary assumption of risk (foolish) is essentially just contributory negligence. "

"Brown v. Kendall Defendant broke up a fight between two dogs and hit the plaintiff in the eye with a stick while doing so"

"Defendant was not liable because he was not at fault (was not negligent), the harm was unintentional. Establishes the system of negligence and fault - defendant is only liable if he is at fault - fault should be determined by whether the defendant took ""ordinary care"" (the beginning of the ""reasonable person"" standard). - Signalled the move away from the old system, in which the defendant had the buden of proving that he was NOT at fault. After this case, burden is on the plaintiff to prove defendant's negligence, fault is necessary for negligence, and there is no more distinction between ""direct"" versus ""indirect"" harms. "

Design Defects (Negligence)

"Design Defects: The product was not designed correctly. The product produces accidents, AND the cheapest cost avoider is the manufacturer of the product, not the consumer. A design defect means that a manufacturer is the cheapest cost avoider and the best way to avoid the accident is to change the design Not that we know how a design is wrong but rather if there is a way of making the product safer, it would be by improving the design Design defect means that the manufacturer is in the best place to do something about an issue, if something can be done Almost like negligence in the future - That the time will come when an accident like this will be avoidable, and when it does, the manufacturer will be the most likely person to be able to fix it The question of whether there is a design difficult is at least as difficult as the question of negligence - as a result of this, over the course of the development of strict liability, we basically say that liability for defective design is essentially negligent design (wrongly defined, and became less distinguishable from negligence). What really confused judges in the early cases was that unlike a Manufacturing Defect (where a particular item did not meet a standard of non-negligent design), in design defects, the item met the design standard, but the designer did not design it correctly. If the design is defective - then you are saying that you should have had a different design. - Because of these difficulties, design defects are now analyzed with negligence framework - not strict liability "

Spreading Fire as Foreseeable Type of Injury or Extent of Injury - MAJORITY RULE

"Different jurisdictions handle this differently Majority Rule: Extent - defendant is liable for all damage caused by the spreading fire NY Rule: Different type of damage: defendant is only responsible for the original fire but not if it starts to spread too much "

Disclaimers Defense to Strict Liability

"Disclaimer - most states do not allow disclaimers to bar recovery for strict liability. Even if you sign a disclaimer against negligence, that doesn't bar you from suing under strict liability. Cannot sign away strict liability. "

"Fritts v. McKinne Fritts was badly injured when he drunkenly drove into a tree. He needed surgery to repair his facial fractures and Dr. McKinne accidentally punctured Fritts' artery, killing him three days later. "

"Dr. McKinne claimed comparative negligence as a defense because the injury that brought the plaintiff to the hospital was due to his own negligence. Plaintiff's own negligence was cause in fact (but-for cause) and proximate cause because drunk driving does increase the probability of dying due to negligence in surgery Holding: Not a defense because people injured negligently are entitled to non-negligent medical care. Doctor was not allowed to get contribution for the malpractice claims from the plaintiff."

Posner - Pure Economic Approach to Torts

"Economic theory of negligence - negligence = wasteful / inefficient. When the cost of accidents is higher than the cost of prevention, then this is wasteful and negligent. Rapa's Critique: Economics is all geared towards how to lower accidents in the future, it doesn't tell us much about what is owed to someone who is harmed). "

Respondeat Superior (Employees versus Independent Contractors)

"Employers are generally vicariously liable for the actions of their employees (via Respondeat Superior), but not for the actions of independent contractors. An employee is someone who is compensated by an employer and does what the employer tells him to do - respondeat superior for employees is a version of no-fault liability. Independent contractors are hired for a specific task and not monitored by the employer. "

Voluntarily Adopted Safety Rule and Tort Duty

"Everitt v. General Electric Co.: Holding that a voluntarily adopted safety rule does not create a private right of action because if it did, it would discourage people from instituting such rules. "

Res Ipsa rationales

"Evidentiary Rationale: In many cases we can make just as good of an inference from indirect as direct evidence Fairness Rationale: It would be unfair not to allow a plaintiff to use indirect evidence when the plaintiff does not have access to direct evidence "

Firefighter Rule

"Firefighter Rule - if you cause a fire by your negligence and the fireman is injured while putting out the fire, and sues you for negligence. The court will NOT allow the fireman to recover. The fireman works for the public, including for you. The fireman accepts the risk of fires including negligently created fires. This sounds like the old assumption of risk doctrine BUT in this case, the employee assumption of risk argument has a much better justification. Justified for two main reasons: 1) We want people to call the fire department even if they have negligently caused a fire. We don't want people not to call the police or the fire department because they are afraid of liability. E.g. policeman slips and falls and there wasn't really a crime, we still want people to report suspected crimes. 2) The police and firemen are actually compensated for the risk. They make way more than other public employees. It is not a fiction in the same way that it was for miners / factory workers. In this case the argument that they assume the risk holds. NOTE: this also applies to policemen and public employees who provide some service that has inherent dangers. "

Fletcher Critique of Economic Approach

"Fletcher thinks that the economic approach to torts (Posner) is not focused enough on fairness and justice. Fletcher thinks that negligence should be based on risk-imposition - if you impose non-reciprocal risk, then you should be liable. We all drive cars, impose risk on others and accept those risks. If you do not impose excessive risk while driving, you are not at fault for an accident - on the other hand, if you speed, you impose non-reciprocal risk and you should be strictly liable for an accident. Another example: Planes falling on houses - people in the houses did not impose any risk on the pilots, therefore pilots / planes should be strictly liable. NOTE: Rapa thinks that this theory does not hold - how do you figure out reciprocal risk in real life, how do you determine the ""risk community"" / who imposes risk on whom? Rapa thinks it is more important to understand that there is an alternate approach to the pure economic approach. "

Cuffy Factors (New York Law - when there is a relationship that requires the police to act)

"Four factors to determine when there is a relationship that requires the police to act (most police actions are discretionary) Assumption of an affirmative duty through a promise to act on behalf of the injured party Knowledge that inaction could lead to harm Direct contact between the municipality's agents and the injured party Justifiable reliance by the injured party on the municipality's promise to help "

Consumer Expectations Test

"From Barker - Develops out of warranty doctrine - when you sell a product to a consumer, there is an implied warranty that it will conform with consumer's expectations. What are consumer expectations? - Reasonable allocation of risks to the party best able to reduce the risks (the cheapest cost avoider) - Not an empirical claim about what consumers on average assume or what that particular consumer expected. - The test is if the educated consumer was sitting down with the manufacturer and bargaining over what risks each party should take on. - Those risks better placed on the manufacturer will be put on the manufacturer. " "Soule v. General Motors Corporation Soule's ankles were broken when the "toe pan" of his GM car crumpled in a crash, crushing them. Claimed strict liability under the consumer expectations test of Barker. " "Manufacturers picked this case because defining consumer expectations was very difficult - they wanted to move the law so that what is left of consumer expectations is essentially res ipsa negligence - basically moves everything to the second prong of Barker (which is just negligence) Footnote 3: ordinary consumers may and do expect that vehicles will not explode at stop lights, will not roll over and catch fire at 2 mph accidents —> shows how much consumer expectations is being limited by this case The court says that the consumer doesn't have expectations with respect to this issue (crumpling footbads) - have no idea which parties would adopt the risk "

Bystander Recovery for NEID - STATE VARIATION

"Generally, bystanders cannot collect if the bystander is a long-time partners, as opposed to a spouse (NJ and CA allows for long-time partners) New York adds an additional requirement to the Portee Factors - the plaintiff also has to have been in the zone of danger themselves. 1. Defendants negligence causes the death or serious injury of someone 2. Marital or close family relationship between the plaintiff and injured person 3. Plaintiff observed the death or injury at the scene 4. The experience causes severe emotional distress 5. PLUS: The plaintiff also has to be in the "zone of danger" - at risk themselves Minority rules: - Some jurisdictions allow recovery for observation shortly after the injury even if you did not observe the actual injury itself - Some jurisdictions see the factors as guidelines not strict requirements "

"State v. Karl Patient died after taking a drug produced by Janssen, proscribed by Doctor. Janssen claimed it was not liable as it had fulfilled its duty under the learned intermediary doctrine, by warning Doctor, and that it was Doctor's responsibility to warn Gellner. "

"Holding: The learned intermediary doctrine should not apply due to the changes in the pharmaceutical industry (advertising drugs on tv, etc.) NOTE: Learned intermediary doctrine is accepted in most states "

"Federal Tort Claims Act - Key Features Government Functions Respondeat Superior Procedural Restrictions Attorney Fees Preclusion "

"Government Functions: Federal government allows itself to be sued when it is performing functions that a private individual would perform / where a private entity could be held liable. Cannot sue the federal government for a function that only the government performs (voting, army, etc.) Respondeat Superior: Government is only liable for the actions of government employees if they were acting in the scope of their employment Procedural Restrictions: Must sue in federal court, cannot sue for strict liability, no juries, no punitive damages / interest, Attorney fees: 25% max Preclusion: If you sue the governemnt for the conduct of employees, you are precluded from suing the employees themselves Exceptions: Cannot sue the government for: 1) tortious effect of a statute (even if the statute is invalid), 2) post office related negligence, 3) operations of the Treasury, 4) combat injuries from wartime, 5) many intentional torts. "

"Cope v. Scott Cope was injured when his car skidded on the wet road that had very little traction and poor warning about the conditions. Cope sued the government for the poor road conditions and lack of warnings. "

"Government is liable for the lack of warning signs. Court held that decision to maintain the road / how to maintain the road was a discretionary function, but the lack of warning signs was not a policy decision (exempt from liability) but rather was a failure to execute an obligatory government function. This case has a two factor test to determine if a government decision is discretionary: 1. Whether there is a prescribed course of action from statute, policy or, regulation —> then not discretionary 2. Whether the decision involved an exercise of political, social, or economic judgement Not all discretionary decisions are exempt from liability - government officials are protected from liability for policy judgements "

Statutes of Limitations

"Griffin v. Unocal Corp: Establishing a discovery rule for accrual. Plaintiff who died of Leukemia 10 years after being exposed to toxic chemicals was not barred by 2 year statute of limitations because accrual of the statute starts when the injury manifests itself by signs or by being medically identifiable Grisham v. Phillip Morris U.S.A. Inc.: Accrual of statute of limitations for smokers begins when they are diagnosed with an illness Pooshs v. Phillip Morris U.S.A. Inc.: Plaintiff was allowed to sue when diagnosed with lung cancer even though he had previously been diagnosed with COPD. The statute of limitations is separate for separate diseases. "

Jury knowledge of comparative negligence

"H.E. Butt Grocery Co. v. Bilotto: Texas court voted 5-4 to inform juries of the legal consequences of their decisions (what the effect on recovery would be if they found the plaintiff 50% liable versus 49% liable. Most states have adopted this rule "

Tarasoff Variations (Doctor's Duty to Warn Third Parties)

"Hardee: Doctor had a duty to the third party injured by his patient when the doctor failed to warn his patient not to drive after dialysis. Court Held that the doctor did not have a duty to warn the third party, but did have a duty to the third party to warn the patient. Bellah: Defendant psychiatrist did not have a duty to warn the parents of patient who committed suicide. Courts held that defendants did not have to warn parents about self inflicted harm, Tarasoff limited to serious injury or death to a third party, not property damage or self-inflicted injury. Threlkel: Surgeon had a duty to warn patient's children that patient'y disease was genetically transferable. Court held that the physician has a duty to warn third parties when he knows of their existence. Hawkins v. Pizarro: Physician incorrectly told patient she had tested negative for Hep. C. Months later, she met and married her husband who later tested positive for Hep. C. Physician did not have a duty to warn the husband - because the physician did not know the husband existed. "

"Gammon v. Osteopathic Hospital of Maine, Inc. Plaintiff suffered emotional distress when instead of receiving his deceased father's personal effects from the Hospital, he received a severed leg."

"Holding that Gammon could collect damages for emotional distress incurred by receiving the leg. Allowed to collect for emotional distress even without physical injury because the emotional distress was foreseeable (it is foreseeable that someone who has just lost a loved one will be distressed by receiving a severed leg). Significance: Gammon is the quintessential case that says emotional damage is just like physical harm, and says that emotional distress without other damages can suffice. Opens the door for bad law (Hawaii cases) "

"Pruitt v. General Motors Corp. Consumer expectations and airbags "

"Holding that the lower court was right not to employ the "consumer expectations" test because safety standards for airbags is not something that is common knowledge to laypeople. - Furthers the destruction of the Consumer Expectations test "

"Heins v. Webster County Heins slipped on a patch of ice outside the hospital when he went to visit his daughter who was a nurse there. Heins was also coming to discuss playing Santa for the hospital Christmas party. "

"Holding: Abolished the distinction between licensee and invitee and instituted a duty of reasonable care to all non-trespassers. Reasoning: Majority of people who come to the hospital are invitees (there for a "business purpose") - therefore the hospital would have had a duty to almost anyone else, would not make sense for Heins to be held liable, when the hospital would be liable to almost anyone else who would have slipped and fallen on the ice. This case shows the limitation of the invitee / licensee distinction - why should there be a difference between someone who comes to visit his daughter at the hospital and someone who came to discuss being a Santa at the hospital. "

"Emerson v. Megadantz Plaintiff received a sterilization procedure from defendant doctor because she did not want to have more kids for financial reasons but became pregnant due to a botched procedure. "

"Holding: Allowed to recover but only for medical costs and emotional distress resulting from the pregnancy, but not child rearing costs (limited recovery). The child is healthy - if the child was unhealthy, could recover for additional medical expenses for the child. "

"Lauer v. City of NY Medical Examiner's mistake regarding cause of death for a child resulted in father being suspected as murderer"

"Municipality has no duty to a member of the public to disclose exculpatory information about the cause of death of a child, even though the medical examiner's omission lead to a 17 month murder investigation against the father. Medical examiner is not performing a function that only government could do (there are private medical examiners), and was performing a ministerial function / government obligation (he was required to perform the autopsy) BUT medical examiner's duty was to the public at large and not to the individual father "

"Vince v. Wilson Aunt buys the car for the defendant although she knew that he was an alcoholic and had failed driving test many times. Defendant injured plaintiff while driving. Plaintiff sues aunt for buying the car for the defendant, the dealer of the car, and the president of the dealershop. "

"Holding: Aunt, dealership and president of dealership are liable for ""negligent entrustment"" of the car to the defendant. Rapa: Extends negligent entrustment from being only cases of lending an instrumentality to cases involving sale and change of title. Generally you are liable if you give someone something and they hurt someone else with it, not if you have sold something to someone else and they hurt someone with it. Rapa does not think this was a good case. Are car dealers required to investigate your driving ability? Are banks liable for lending money? - Raises big questions. "

"Martin v. Herzog Plaintiff was killed when his buggy was struck by defendant's car at night. Plaintiff's buggy did not have lights on it as required by law. "

"Holding: Because the plaintiff didn't have lights as required by law, he was contributorily negligent and could not recover Rapa thinks that the legislature did not intend for the statute to be per se indicators of reasonableness / unreasonableness in all circumstances. Should just be evidence but not conclusive. "

"Carter v. Kinney Carter slipped on a patch of ice and broke his leg when he arrived at the Kinney's house for a bible study. "

"Holding: Carter was a licensee and Kinney satisfied his duty of care (only has to warn about known dangers, did not know about the ice) Issue in the case: Whether Carter was a licensee or an invitee Licensee: Kinney allowed "friends" to come for the bible study Invitee: Perhaps this bible study confers some sort of benefit on them and thus hosting it makes the guests invitees "

"Jones v. Ryobi Jones injured her hand in a printing press made by Ryobi at her job. Her company had removed the safety guard and the switch which was supposed to make the machine inoperable without the guard"

"Holding: Court held she could not recover from Ryobi because the defect did not exist at the time the machine was sold. Because they modified the machine, they assumed the risk and thus provided a full defense to strict liability Rapa thinks this was wrongly decided - manufacturer is still the cheapest cost avoider for this kind of accident. AND 98% of employers removed the guard - so could argue that it was foreseeable that people would remove the guard. "

"Doe v. Manheimer Doe was raped by an unidentified assailant who took her onto Manheimer's property and used the overgrown bushes to hide them from view of the street. "

"Holding: Court held that the overgrown hedges could have been a but-for cause of the rape, but not a proximate cause because a landowner could not foresee that not taking care of hedges would increase the risk of a criminal assault. Under Polemis, would be liable, but under the Wagon Mound Causal Link idea, overgrowing hedges negligently does not increase the chance of criminal assault (increases the chance of other things e.g. people tripping or being scratched by the hedges). "

"Pokora v. Wabash RR Co. Pokora was hit by a train while trying to cross four railroad tracks, the last of which was obscured by a line of boxcars.Overrules ""stop look and listen"" rule. "

"Holding: Overrules Goodman and gets rid of the "Stop, Look and Listen" Rule Decided that the "Stop, Look and Listen" rule was not viable because in this case it was not safer to go check the tracks because by the time you got back to your car, a train could be coming that you could not have seen when you checked and you could get hit anyway. Therefore reasonableness in RR crossing cases should be decided on the facts of each case, and not as a matter of law. Rapa: Holmes had a good idea but picked the wrong case to establish his rule because it basically didn't provide any incentive for the railroad companies to monitor safety. Overcorrected for jury bias - Plaintiffs are not the cheapest cost avoiders so making them strictly liable for RR crossing accidents did not make sense. RR's are the cheapest cost avoiders for these accidents - if they are liable, they invest in developing prevention mechanisms - crossing guards. "

"Broadbent v. Broadbent Child suffered severe brain damage from nearly drowning in pool. Father sues mother on behalf of the son. "

"Holding: Parental immunity usually prevents children from suing their parents, but should not apply in this particular case (because of the insurance). Holding confined to this case. Insurance: Key element in this case - the insurance company is really the target of the lawsuit here. Dad is suing the mom so that if she is found liable, the insurance company will pay. - This also creates a weird incentive - the mother wants to lose the suit. "

"Metro-North Commuter Railroad Company v. Buckley Buckley sued Metro North for emotional distress resulting from his exposure to asbestos nad knowledge that he now faces a higher risk of cancer."

"Holding: Plaintiff could not recover because he had no physical symptoms of asbestos and suffered no "impact" "

"Portee v. Jaffee Portee watched her son die while trapped between the elevator and elevator shaft in Jaffee's building. "

"Holding: Portee was able to recover for NIED, even though she herself had not been physically injured. Court laid out factors to restrict bystander NEID recovery: Rule: A bystander can recover for NIED if all four factors are met: 1. Defendants negligence causes the death or serious injury 2. A marital or close family relationship exists between the plaintiff and the injured person 3. The plaintiff observed the death or injury at the scene of the accident 4. This experience caused severe emotional distress "

"Ybarra v. Spangard Ybarra had an appendectomy. After the procedure he developed a pain in his arm that got worse until the muscles atrophied. The pain was due to trauma, probably caused by an injury that occurred from pressure on his neck during the surgery. "

"Holding: The court uses res ipsa reasoning to hold the surgeon liable. The Court limits the holding to operating room cases. This is a difficult case for the minor premise of Res Ipsa: there are several possible parties who could be said to have had "control" over the instrumentalities - the hospital, nurses, surgeon (independent contractor), multiple doctors, anesthesiologist. Therefore it is NOT the case that each of these individuals is more likely than not to have caused the accident. The court uses a Respondeat Superior argument to argue that the 6 people in the room were servants of the surgeon. BUT: The fairness rational is very strong because the defendant was unconscious during the surgery and getting information would be very difficult NOTE: This case is not followed by most jurisdictions - it is a famous case because it brings out the tension between the two rationales of res ipsa and the two elements - persuasive indirect evidence and a fairness element."

"Uhr v. East Greenbush School District Uhr got scoliosis and had to have surgery. School was required by statute to check her for scoliosis. School failed to conduct the test. Statute said that schools were not liable for messing up the test, but did not say whether schools were liable for failing to conduct the test alltogether. "

"Holding: The school did not have a duty that gives rise to tort liability - a statute only creates a tort duty if it is consistent with the legislative purpose and scheme of law. Statute specifically excepted tort duty when the test was done negligently. Rule: Statute only creates a tort duty when it is consistent with the intent of the law. Policy: if the school was liable for not doing the test or doing them wrong, there would be pressure not to do the tests at all / not to have the policy. Want to incentivize schools to do broad testing. "

"Hood v. Ryobi Hood removed the guard on his Ryobi saw despite many warnings saying that serious injury would occur. 20 minutes later, while using the saw the blade flew off, amputating his left thumb and cutting his leg. "

"Holding: The warnings were sufficient - no need for a more specific warning about the kind of injury that would occur Court makes the point that additional warnings are costly because if there are too many, no one will read them and thus they become ineffective Rapa: In the Hood case, the warning does not empower the consumer, because he does not become the cheapest cost avoider because of the warning. Hood did not know that removing the blade guard would result in the blade flying off - this was unexpected. With respect to this issue - the warning did not empower him. The only warning that would have been effective would have been one that said - don't remove the blade guard because the blade will fly off. "

"Benn v. Thomas Plaintiff was rear-ended by defendant (negligently) and bruised his chest. Plaintiff died 6 days later - his pre-existing heart condition was triggered by the accident. "

"Holding: Type of harm is foreseeable (injury in car accident) and extent was not (death) but it doesn't matter because of the eggshell plaintiff rule. Eggshell plaintiff rule: you take the plaintiff as you find them. As long as the type of accident is foreseeable you are responsible for whichever plaintiff (and their damages) you cause the injury to. There is enormous damage here - the defendant could not have foreseen the extent of the damages, but it was foreseeable that if you got in a car accident, it might injure someone. The type of harm is foreseeable therefore the defendant is liable "

"Tedla v. Ellman Plaintiffs were hit by a car when walking along the highway in the same direction as the cars. NY had a statute that required them to walk in the opposite direction of traffic. "

"Holding: Violating the law did NOT constitute negligence per se Judge in this case recognizes that there are circumstances where strict observance of the statute does not make sense - statutes govern usual circumstances, but violating a statute is not necessarily negligence "

"Anderson v. Nissei ASB Machine Co.: Guard had to be removed from machine in order to clear gunk from printing process out of the machine. Plaintiff injured her hand. "

"Holding: that the manufacturers could be held liable for a design defect on a modified product if the modification was foreseeable - the machine didn't function as sold, only functioned if the safety guard could be removed. "

"Polemis Defendant negligently knocks wood into the open hold of the boat. The wood hit something causing a spark, which lit the whole boat on fire. "

"Holding: you don't have to foresee the exact harm, if you can foresee some harm from your negligence then you are responsible for whatever happens. Significance: How not to view proximate cause - this type of accident was not foreseeable - dropping a plank is negligent, but would be expected to hit someone or dent the floor. Non-forseeable accident means no proximate cause Polemis is not good law. The fact that some harm is foreseeable does not mean that you are liable for any harm that occurs. Negligence is an arrow pointing to a harm, it is only negligence with regard to the harm, not with regard to any possible harm. What makes for proximate cause is foreseeability. "

"Kelly v. Stop and Shop Plaintiff was injured when she slipped on a piece of lettuce at the salad bar. "

"If a business practice creates a "continuous and foreseeable risk" then it is responsible for injuries that occur from it even without showing actual or constructive notice Much higher bar than in non-business practice related cases "

Recovery under design defect - countering the modification defense

"If the product is deliberately designed to be usable without the safety guard If the product is designed to be un-usable with the safety guard Forseeability can be established by showing that a guard is easily removed, difficult to replace, has to be removed for cleaning, or inhibits the task that the machine is supposed to perform "

Pain and Suffering in Survival Actions

"If the victim dies instantaneously, the victim does not get any pain and suffering The estate can recover pain and suffering for the period of time that the victim suffered before dying. "

Pro Rata versus Pro Tanto

"If you settle, you are free of your obligation to the plaintiff and to the other defendants. Under the UCFA, the other defendant's responsibilities are lowered by the % of the settling party's liability. (pro rata approach). If you are 30% liable and you settle (even for $5), that % liability is deducted from the total damages. This creates some problems: maybe plaintiff entices the defendant to settle for very little in return for defendant testifying against other defendants - illegal in some states. Alternate method not sanctioned by UCFA - pro tanto method - reduces damages after settlement dollar for dollar. Just subtract amount of money paid to the plaintiff from the overall amount. —> used by some states NY uses pro tanto or pro rata depending on which one gives the plaintiff more recovery "

Subrogation Clauses - Damages

"In many insurance contracts they have a subrogation clause so that the plaintiff doesn't get double recovery. Insurance company pays out (according to the policy) and sues on your behalf / takes control of the litigation - any damages recovered then go to the insurance company, If no contractual subrogation, sometimes implied subrogation "

Duty

"In the US, you do not have a duty to help someone / act in most circumstances. There are limited circumstances where you have a legal duty to act and to be reasonable: - Special relationship - Starting to help Special relationship is not a close / loving relationship - it is a relationship that implies a mutual undertaking of assisting one another / reasonable expectation of mutual aid → this is what generates the duty of care Duty is generally decided as a matter of law and Negligence (whether someone was reasonable) is usually a question of fact, decided by the jury. "

Sovereign Immunity

"In the modern context sovereign immunity means that you cannot sue the government unless it is a case in which they allow themselves to be sued / have created a cause of action (e.g. statute like the Federal Tort Claims Act) Sovereign immunity is a jurisdictional immunity - not something that a court can decide not to apply, the court cannot hear the case at all if this immunity applies Municipalities are not technically protected by sovereign immunity because they are not technical sovereigns - courts have expanded a judge-created version of sovereign immunity to municipalities in practice (but a judge could waive this). Generally you cannot sue a municipality for something you could not sue a state for. "

"Randi W v. Murdoc Unified School District Plaintiff was sexually assaulted by a teacher and sued school districts that had written letters of recommendations for the teacher, despite having known about past sexual misconduct. "

"Issue: Did the schools have a duty to the defendant in this case? This turns on the issue of whether writing the letter was action, or leaving out the allegations counted as inaction, because when you don't act, duty is a much more difficult question. If there was action, then the schools were clearly liable for not being reasonable in their action. If it is inaction, they are only liable if they have a special relationship. Holding: By writing the recommendation letters, the schools were deemed to have acted (affirmatively made a representation about the teacher's character) and thus had a duty not to omit relevant details that could have prevented harm NOTE: If the schools had simply refused to write a recommendation letter they would probably have been fine as then they would not have acted at all and would only be liable if they had a special relationship "

"Reynolds v. Hicks Hicks, a minor, got drunk at his aunt and uncles wedding and got into a car accident with Reynolds. Reynolds sues Hicks' aunt and uncle for serving him alcohol. "

"Issue: Did the statute prohibiting serving alcohol to minors give rise to a duty to third parties by social hosts who serve alcohol to minors? Holding: The statute preventing serving alcohol to minors does not create a tort duty. Rapa thinks that the legislature did intend to try to prevent underage drinking, that the legislature most likely was not looking to put massive tort liability on random people to be responsible for the action of those minors, doesn't want to interfere too much in private relationships. "

"Tarasoff v. Regents of the University of CA Psychologist was treating Poddar. Poddar told Psychologist that he was going to kill Tarasoff. Poddar killed Tarasoff. Tarasoff's family sues Psychologist claiming that he had a duty to warn Tarasoff. "

"Issue: This case is about what duty that doctors have to warn third parties. Holding: Moore had a duty to warn Tarasoff - not because he had a special relationship with Tarasoff, but because he had a relationship of control over Poddar and because Tarasoff was specifically named. Normally you do not have a duty to warn third parties, but the relationship of control over the patient creates that duty, NOTE: Court limited the decision to when someone is in danger of serious injury or loss of life. "

Joint Liability

"Joint Liability (aka "Joint and Several") - defendants are jointly liable. Negligence of both parties is a necessary condition that is a cause in fact of the injury. Each defendant is responsible for 100% of the damages because each is responsible for 100% of the accident (flows from but-for) Originally you could not collect from co-defendants for contribution, but now most jurisdictions allow it. Plaintiff can collect from either defendant - but cannot collect twice "

"Falls v. Superior Court Judicial / Prosecutorial Immunity Rule"

"Judicial immunity is absolute, and prosecutorial immunity is absolute so long as they are acting within their role as a prosecutor. People cannot sue judges for messing up their cases. "

"Kline v. 1500 Massachusetts Avenue Apartment Corp Defendant Landlord's duty to protect tenant's from crime"

"Landlord is liable for the robbery of a tenant in the common area of his buidling. Landlord had control over the building, was the best person to be able to prevent the crime (e.g. fixing locks). Shows that a duty to third parties can arise out of control of an instrumentality e.g. a building"

Comparative Negligence and Seatbelts

"Law v. Superior Court: AZ - Not wearing a seatbelt can fully reduce damages but defendant must show what part of damages was result of failure to use safety equipment - this is also the law in NY and CA "

Learned Intermediary Doctrine

"Learned Intermediary Doctrine - only applies to prescription drugs, NOT over the counter drugs. The Learned Intermediary Doctrine is an exception to the manufacturer's duty to warn patient about the side effects of prescription drugs if the doctor who will prescribe the drugs has been warned by the manufacturer. Arguments in favor of learned intermediary doctrine: -Patients rely on the judgement of physicians -Concern that direct warnings could interfere with doctor-patient relationships -Manufacturers aren't communicating directly with the patients -The doctor has an obligation to tell you about the risks (informed consent) - so why should the manufacturer tell you? Counter-arg: Manufacturers do communicate directly with consumers via advertising —> this undermines the argument that the manufacturers do not want to interfere with the doctor patient relationship. "

"Andrews v. United Airlines Andrews was hit by a briefcase which fell out of an overhead bin upon landing. "

"Lower court judge found for the airline on summary judgement. Court reversed - said that reasonableness of precautions taken for bags was a matter of fact for the jury to decide. Rapa thinks that this basically meant defacto strict liability for airlines re: overhead bins (especially in CA which had heightened standard for common carriers), but that this is ok because airlines probably are the cheapest cost avoiders / are in the best position to prevent the accidents that can be prevented or are worth preventing. "

"Cuffy v. City of New York The police promised to do something "first thing in the morning", and the plaintiffs were beaten up the following evening. "

"No liability because there was a lack of reliance, one plaintiff did not know about the promise, and the court said there was no reason for the others to rely on the promise once the police had not come in the morning. Example of how New York goes further than most jurisdictions. New York requires not only that the police make you a promise, but that you personally relied on the promise and this reliance was responsible for the injury. "

"Violation of Statutes MAJORITY RULE"

"MAJORITY RULE: Violation of a safety law in most jurisdictions is ipso facto negligence, and at minimum is an indication of prima facie negligence. BUT Compliance with a safety statute is NOT non-negligence / is not a safe harbor. Compliance is not evidence of non-negligence. E.g. the fact that you had a drivers license, this doesn't make you non-negligent. Statutes define the minimum floor of negligence - if you violate you are negligent " FDA Compliance Proves Non-Negligence "Congress specifically preempts State Law and Courts from finding that complying with an FDA determination is not enough for non-negligence - Congress wants compliance in this case to prove non-negligence. There are some statutes / regulations that create comprehensive safety schemes. When you comply with FDA regulations, this requires a high cost (testing, research, etc.) —> then the FDA will certify the drug as safe and effective. The FDA looks at all the side effects and determines that the benefits of the drug are "worth it." This is very different from a driver's license. This is not specifying a minimum floor for negligence. This is a body of experts deciding that something is safe. "

"Violation of Statutes MAJORITY RULE"

"MAJORITY RULE: Violation of a safety law in most jurisdictions is ipso facto negligence, and at minimum is an indication of prima facie negligence. Statutes define the minimum floor of negligence - if you violate you are negligent BUT Compliance with a safety statute is NOT non-negligence / is not a safe harbor. Compliance is not evidence of non-negligence. E.g. If you drive without a drivers license, you are per se negligent BUT the fact that you drove with a drivers license, doesn't make you non-negligent. "

Duty of Doctor to Warn 3rd Parties - MAJORITY RULE

"Majority Rule: Most states have accepted something similar to the Tarasoff rule that psychologists and doctors have a duty to third parties harmed by the people under their control (patients) and some have extended Tarasoff Limitations / Legislation: California legislature later limits Tarasoff further to there being a duty only if the patient threatens to harm an identifiable person, and does not allow duty to third party to be extended to self-inflicted harm or property damage "

"Lopez v. Precision Papers Plaintiff was injured due to the lack of guard on a forklift - the guard was easy to remove "

"Manufacturer can be held liable for defective design if the product was purposefully designed to be usable without the safety guard (would function without the safety guard). Forklift had a removable guard that was easy to remove. "

Malfunction Theory of Defect

"McCorvey v. Baxter Healthcare Corp.: Court held defendant strictly liable for the eruption of the Plaintiff's catheter (which they produced) even though plaintiff couldn't provide evidence of a defect Malfunction Theory of Defect: Plaintiff is entitled to the benefit of an inference of a defect when a product malfunctions during normal operation. "

Misuse and Modification Defenses

"Misuse - using a product for a purpose that it wasn't designed for. When the injury comes from the use of the product in a way that was unforeseeable, the manufacturer is not the cheapest cost avoider for that injury - e.g. someone using a knife as a toothpick. This has been stretched to mean that when the product is used negligently. Misuse sounds like negligence (using the product in the wrong way) BUT the real meaning of misuse as a defense is non-negligent assumption of risk. Misuse as a true defense does not mean improper use / wrongful use, it means an idiosyncratic, rational use, by a consumer. Modification - when someone has changed the product - manufacturers are not responsible for when people have fundamentally changed the product in a way that was unforeseeable - not the cheapest cost avoider from those harms. True modifications as a defense is also assumption of risk. There are some misuses and some modifications that are foreseeable - and in those cases, you could argue that the manufacturer is the cheapest cost avoider. "

Modified Comparative Negligence System

"Modified Comparative Negligence Systems: Bars plaintiff recovery in certain situations. Plaintiff has to be either not as negligent as defendant ("not as great as") or less negligent than the defendant ("no greater than") In both systems: If plaintiff contributes more than 50% to the accident, the plaintiff does not recover. If plaintiff contributes less than 50% to the accident, the plaintiff recovers Where the systems differ: If the plaintiff and defendant both contribute 50% —> the plaintiff cannot recover under the system where they must be "less negligent" than the defendant "

Contingency Fees

"Most Torts cases are done on a contingency fee basis - traditionally the lawyer takes 20-40% of the recovery amount. Rapa thinks it is closer to 40% Contingency fee is the dominant form of compensation in Torts, and is very rare in other areas Contingency fees are a good thing in some ways: -Most Tort victims do not have the means to pay lawyers —> this makes contingency fees a good thing because this is an important device that is the only way that those victims can recover -Lawyers provide a service that would otherwise be unavailable - but it is troubling that the lawyer is an entrepreneur or investor -The ROI for a lawyer is incredibly high - the lawyer will not take the case if there is no chance of winning and the overwhelming majority of cases end up settling -The contingency fee is an enormous cost - and when you divide it by hourly compensation, the rate is very high California is the only state that has capped contingency fees "

Calculation of Damages

"Most common damages: loss of wages, medical expenses How do you calculate them? Up until trial - just present bills Future loss of wages If the person died - calculate how long they would have worked for If they live, calculate difference in earnings due to the harm For both, include promotions, economic growth, taxation, retirement AND need to take into account present value discount "

Dram Shop Laws - MAJORITY RULE

"Most states have statutes imposing liability on commercial sellers of alcohol when they serve people to the point of intoxication or continue to serve an already intoxicated person. Some states cabin this rule by saying that you have to know that the person will soon be operating a motor vehicle. "

Res Ipsa MAJORITY RULE

"Most states understand res ipsa as an INFERENCE - it is sufficient evidence for the jury to find for the plaintiff, but the jury does not HAVE to find for the plaintiff. In some jurisdictions, it is a PRESUMPTION - it is the plaintiff's case, the defendant has to provide evidence rebutting the presumption, and if the defendant does not rebut, then the jury must find the defendant liable. "

Municipal Immunity

"Not a jurisdictional limitation (municipalities not technically sovereign) - the courts have the jurisdiction to try the cases, but have developed a doctrine similar to sovereign immunity For example, if the NYPD is doing something within its official function, or within its discretion —> you will lose on a tort claim arising out of that conduct. Courts feel very uncomfortable about treating municipalities as defendants in torts "

Objective Reasonable Person Standard

"Objective Standard RULE: The jury does not take into account your skill level / intelligence level in determining whether what you did was reasonable The standard is objective in that It's not acceptable to claim that you are dumb / careless and therefore you are not liable - you are supposed to take precautions to account for your own characteristics. Subjective standards make sense from an economic perspective but we apply the objective standard because it would be too costly to allow every person to argue that reasonableness is contingent on people's individual characteristics e.g. I am very stupid, therefore it was reasonable for me to do X. - and would be too much potential for error. We do not accept arguments at the personal characteristic level. The reasonable person is an "average joe" who knows that without special skills you shouldn't attempt specialized activities (e.g. flying a plane). You can make distinctions based on your general position e.g. did you do what would a reasonable truck driver would have done in that situation. "

Concerted Action Theory

"Orser v. Vierra Defendant fired gun at plaintiff along with two other defendants. One of the defendants guns could not have been the cause of the injury, but was that defendant was still held jointly liable with the other two. Concert of action - if you are helping others commit a tortious act, you will be held liable because of concert of action. "

Collateral Source Rule

"Other sources of payment are not taken into account in calculating damages - defendant should not benefit from things that the plaintiff paid for e.g. insurance. Insurance = return on investment. AND you don't want to lower the deterrence effect. If you have other forms of payment (insurance, job still paying you, etc.) these are not taken into account in calculating damages You could have an alternate system where these extra recoveries go to the state and not the plaintiff - but maybe you want the bounty effect NY Rule: Insurance is discounted from damages but defendant has to pay insurance premiums for 2 years "

"Byrne v. Boadle Plaintiff was injured when he was struck by a barrel of flour that fell out of the window of defendant's warehouse "

"Outcome: Defendant is held liable without any proof of fault Reasoning: Accidents like this do not occur without someone acting negligently, defendant is the kind of person whose negligence would have caused this accident, therefore the defendant was negligent. NOTE: High fairness rationale - plaintiff was knocked unconscious, was not able to observe what happened / whose negligence caused the accident. "

"Palsgraf v. Long Island Railroad Co. Man is carrying a package running after a train. Two guards are helping him on the train, and knock the package onto the tracks The package contained fireworks, which exploded, which knocked down scales onto Palsgraf. Palsgraf sues on the grounds that the railroad workers were negligent in knocking the package down. "

"Palsgraf's injury is not from a foreseeable type of accident. It was not foreseeable that knocking down a package would cause this type of accident (explosion —> scales falling). Type of accident that would have been foreseeable might have been destruction of property (the package) or the package itself injuring someone when it fell. There was negligence (knocking down the package) and there was but-for cause for the accident, but it is not clear that the but-for causation of the accident makes them responsible. Negligence and proximate cause are very closely linked because in order to be negligent, there must have been some precaution against foreseeable dangers that you did not take. Foreseeable dangers are proximate causes. Foreseeable Plaintiff: Establishes the rule that the type of harm must be foreseeable and the type of plaintiff must be foreseeable. Was the foreseeable type of accident creating risk to this type of plaintiff. The individual plaintiff is totally unforeseeable (extent), but type of plaintiff is part of the type of accident. "

Polio Vaccine Warning

"Paradigm example: Early polio vaccine. There was a design defect. 1 in a million kids get polio from the vaccine. There is no negligence in how the vaccine is made - no blame for the manufacturer, but perfect case for strict liability because if anyone is going to figure out how to prevent this in the future, it is the manufacturer. The manufacturer comes up with a test that turns red if you are the 1 in a million. Rather than investing in changing the vaccine to eliminate this 1 in a million chance, the manufacturer adds a warning that you should test before getting the vaccine to see if you are at risk of getting polio from the vaccine - the warning is an instruction for the consumer telling him how to cheaply avoid the risk. If the warning had just said "1 in a million people will get polio" that is not a true warning because the consumer is told about the risk but cannot do anything about the risk. —> Knowing about the risk doesn't mean that you release the person from liability. BUT if they give you the means to avoid the risk (e.g. a patch, or a blood test, or a pre-existing condition) then the vaccine becomes like butter - where the best person to avoid the side effects is the consumer. "

Pure Assumption of Risk - Defense to Design Defect

"Paradigmatic defense for a design defect is Pure Assumption of Risk: When the consumer is the cheapest cost avoider, as in pure assumption of risk, then there is no defect because a defect is defined by when a producer is the cheapest cost avoider "

"Falzone v. Busch Plaintiff's husband is struck by a car in front of her, she is almost hit herself and is very scared, and becomes ill afterwards. "

"Plaintiff can recover for emotional distress even though she was not physically injured / impacted. She can recover because she was in the ""zone of danger"" and because she had physical manifestations of her emotional distress (objective proof of emotional distress) Significance: gets rid of the barrier that only allows emotional injury when there is physical harm as well - this was the traditional limitation on emotional harm. Similar Case - Mitchell - a pregnant woman was scared when two runaway horses stopped right next to her, she was not touched, but she was frightened and she then miscarried. "

"Valdez v. City of New York Plaintiff was told to go back to her apartment and assured that her ex-boyfriend would be arrested immediately, and then was shot by the boyfriends when she left her apartment 28 hours later"

No Liability - court said that she could not have relied on the police's promise more than 24 hours later

"Camacho v. Honda Motor Co. Camacho's leg was crushed when he got in an accident on his Honda motorcycle. He claimed the design was defective because it didn't have crash bars to protect his legs."

"Plaintiff was driving a motorcycle and was hit by a car, and his leg was severely injured. He sued on the grounds that the motorcycle should have had a leg guard. Plaintiff recovered on defective design - but the biggest plaintiff's weapon (consumer expectation) was eliminated Rapa thinks that there is no safe motorcycle - and most motorcycle riders don't want safety features added. This is an ideal case for true assumption of risk that releases the other party from liability (via consumer expectations) "

"Rodriguez v. State Hawaii, handbuilt house destroyed"

"Plaintiff's hand built house was flooded - Defendant was found liable for emotional harm. Rapa thinks this goes too far with the extension of emotional harm"

"Wagon Mound defendants were loading their ship, the Wagon Mound, and spilled some furnace oil in the water. The water congregated around the plaintiff's boat and was lit on fire by a spark from the plaintiff's welding. The case was tried under the assumption that it was unforeseeable that the oil would burn in the water. "

"Plaintiffs thought that they could win under Polemis because spilling the oil is negligent and has expected harms (gunking up the dock) and therefore the Wagon Mound is liable for any damages caused by their act (if they could foresee some damages, they would be liable for all damages). Holding: Overturns Polemis. Defendant is not liable for any damages resulting from negligence, has to be the type of harm that is foreseeable from the negligence. The causal link has to be there. Because of the assumption that oil couldn't burn on water in Wagon Mound, the court held that the type of harm (fire) was not foreseeable - therefore no proximate cause. "

Police Cases - General Principles

"Policing is a governmental function, deciding what to respond to is discretionary. Police generally stand in the position of a Good Samaritan. No obligation to help individuals unless there is a special relationship (someone specifically depends on you for assistance) Must enter into a special relationship with private individuals, not the public generally —> logic is that you don't want every person who is the victim of a crime to sue the police for lack of protection. Police only have a duty when there is a special relationship —> even more limited in New York where there has to be a promise to protect that plaintiff relied on. If police promise to help you and do not help —> generally liable If the police choose not to help / make a judgement call not to respond —> generally not liable "

"Mathias v. Accor Economy Lodging, Inc Hotel ignored bed bug infestation"

"Posner is essentially changing punitive damages law in this decision Before Mathias, behavior that merited punitive damages were: Malice Oppression Fraud Punitive damages are good for a few reasons not previously protected: Posner says that punitive damages should apply when they add a deterrent against wilful illegal conduct that is incentivized by the low likelihood of criminal prosecution or low individual recovery - low incentive to sue. Minor crimes where the damages to individuals are too low to justify bringing a suit and not enough for criminal prosecution Punitive damages help to protect against wrongdoer adopting this bad behavior knowing they will not be caught or damages will be low. "

Primary versus Secondary Assumption of Risk

"Primary (True) - Reasonable/rational on plaintiff's part - Full defense, plaintiff cannot recover Secondary: - Unreasonable on plaintiff's part - Negligent - Allows for comparative fault "

"Matsuyama v. Birnbaum Matsuyama saw Dr. Birnbaum for complaining of stomach pain and displayed many signs that should have pointed to gastric cancer but it took 3 years before Birnbaum finally tested for and diagnosed the cancer. At that point he was in stage 4 with a 4% survival rate and died a year later. If he had been diagnosed properly he would have had a 37.5% chance of survival "

"Problem: If "but-for" causation is used, Birnbaum would not be liable because his actions did not "cause" Matsuyama's death as Matsuyama was more likely than not to die even if he had been diagnosed properly. Holding: Matsuyama could collect his "loss of chance" and receive the percentage of damages cause by the doctor's failure to diagnose him earlier. Matsuyama is not being compensated for dying - But rather he is being compensated for the fact that his chance of dying was elevated due to the doctor's negligence - Turns risk exposure into an item of damage for which you are compensated, rather than actual injury The Court makes a mistake because the Court gives him 37.5% of the damages but really they should have subtracted the 4% chance that he had even after the doctor's negligence, his chance of survival did not go down to zero. Loss of chance should have been 33.5%. The Court also says that they are allowing recovery for a new harm (loss of chance) but loss of chance is increased risk of harm, which is negligence. "

"Seffert v. Los Angeles Transit Lines Seffert was dragged by a bus, had to have multiple surgeries, was severely disabled "

"Question 1: was the pain and suffering amount excessive? ($53,000 pecuniary, $134,000 for pain and suffering). The $130,000 pain and suffering was calculated by $100/day until the trial and $2000/year for the future (this did double her salary) Rapa thinks that we have an entirely arbitrary way of assigning an amount that will make the victim feel better. To be more precise, you could try to put a cost on the suffering BUT this per-diem approach is not a good way to go"

"A.W. v. Lancaster County School District A.W., a kindergarten student, was sexually assaulted in the bathroom by Siems. Multiple teachers saw Siems walking around the school but they allowed him to get out of their sight. "

"Question: Whether the assault was foreseeable, and whether the school has a duty Holding: Schools have a duty to protect their students. The foreseeability of an injury does not go to the question of duty, but rather to the question of negligence and is therefore a question of fact to be decided by the jury. "

Express assumption of risk (contracts) - rules

"RULE: Courts never enforce contracts that release people from recklessness / gross negligence. Agreements that release people from negligence are only enforced if they are extremely clear - has to mention the word "negligence." "

"Jarrett v. Jones Plaintiff suffered emotional distress when he saw defendant's 2 year old child had died in car crash"

Plaintiff suffered minor injury in a car accident, suffered distress when he went to inspect the defendants car and saw defendants 2 year old child who had died. Defendant was liable for the additional emotional harm.

Res Ipsa Loquitor (Basic Concept)

"Res Ipsa Loquitur - the thing speaks for itself You can infer negligence from the very fact that it happened Res Ipsa follows a certain pattern of reasoning: 1. Major Premise (General Proposition) - accidents like that ordinarily don't happen without somebody having been negligent 2. Minor Premise (Particular to the case) - If anyone was negligent in this case, it was the defendant (defendant had "control" of the instrumentality) 3. Conclusion: therefore the defendant was liable 3rd Restatement: negligence can be inferred when a type of accident that ordinarily happens as a result of negligence of a class of actors of which the defendant is a relevant member. → Rapa thinks this is a better formulation, more accurate. To win a Res Ipsa argument, the probability of the major premise being true has to be high → where the thing really does speak for itself "

"Fletcher v. Rylands Defendant's Reservoir bursts and floods Plaintiff Neighbor's mine "

"Reservoir owner is strictly liable to the mine owner even though the reservoir owner was not negligent in constructing the reservoir on his property (no fault). He is held strictly liable because he used his land for an ""unnatural"" use - and is therefore exposed his neighbors to risk - therefore is strictly liable for the consequenes. Similar to ""ultra-hazardous activities"" or keeping an dangerous animal on your property. NOTE: Rapa thinks that this case is not really distinguishable from Hammontree v. Jenner - both cases involve a victim involved in buisiness activity and the perpetrator is engaged in a socially useful activity. Neither defendant is negligent, but in one case, the person is strictly liable (without fault) - Rylands, but in the other, the person is not (Hammontree). Rapa also thinks that the natural / unnatural use distinction is subjective and difficult to apply. "

Punitive Damages

"Seem like criminal punishments for non-criminal behavior without the protections of criminal law (burden of proof, 5th amendment) Supreme Court has limited punitive damages Now, for punitive damages, has to be something that is similar to a criminal offense and in line with the criminal penalties for that action Punitive damages cannot really be for punishment, because that is not the purpose of the tort system Punitive damages can also harm plaintiffs - because punitive damages voids insurance agreements making it more damaging for defendants - which might also make it harder for defendants to pay you - plaintiff gets nothing You can bring in evidence of the wealth of defendant for punitive damages Some states require that punitive damages go to the state "

Several Liability

"Several Liability - there are multiple negligent parties, but each is not a necessary condition for all of the injuries. Ex: A is injured by B. A is picked up in an ambulance and is injured in the ambulance by C. B and C are jointly liable for the ambulance accident, A would not have been in the ambulance accident but for the car accident with B and conduct of C. B is severally liable for the first accident. Severally liable = differentiates B's liability from C. B is responsible for 100% of the damages, C is only responsible for the damages from the second accident. "

"Hanks v. Powder Ridge Restaurant Corp. Plaintiff goes snow tubing at Defendant's snow tubing resort. Plaintiff had to sign a form promising not to hold resort owners liable for anything including their negligence (exculpatory agreement). Plaintiff then injures his foot snowtubing. "

"Significance: Paradigmatic case on invalidating exculpatory agreements Holding: The court in this case says that they will not allow contracts in which people agree to assume the risk of the other party's negligence. "

Future Disease Recovery Rules

"Simmons v. Pacor, Inc.: Holding that a plaintiff with a disease (i.e. asbestosis) can recover for that condition now but can only recover for the possibility of another disease (i.e. cancer) when that condition occurs. Can only recover for emotional distress related to potentially developing the more serious disease after that disease presents itself. Mauro v. Raymark Industries, Inc.: Majority allowed those with more than a 50% chance of contracting a future disease to sue for full future damages. "

Social Host Laws - STATE VARIATION

"Some states do hold social hosts responsible for those injured by people to whom they served alcohol In other states, courts have held that but the legislatures have given social hosts immunity "

Misuse and Modification Defenses - STATE VARIATION

"Some states, modification is only a defense if it is not foreseeable Others, modification is a defense 25% of states have adopted statutes protecting manufacturers from liability for modified products Both defenses have over time turned into something more like contributory negligence and courts have stopped trying to find the cheapest cost avoider (true assumption of risk) Hood and Jones are not universally accepted, but in the states where the courts did not accept it, laws were passed Manufacturing industry lobbied for legislation which has been passed in ⅓ of states - the law says that there is no cause of action if the victim made a modification that resulted in the accident "

State of the Art Defense

"State of the Art Defense: The product was state of the art at the time it was made, it was made according to safety standards at the time or was not known to be harmful at the time. Under a true strict liability system - the fact that something was state of the art at the time is not a defense, because the manufacturer is also liable for unpreventable accidents. Barker: Hindsight iea precludes the defense that defense you couldn't have known how to make it better at the time of production, if you know now that you could have made it better - then state of the art at the time is not a defense Today, state of the art means basically means defacto non-negligent design and is being allowed as a defense in strict liability cases State of the law in NJ: If you want to establish the state of the art defense, the burden is on the defendant (manufacturer) to show that the product was state of the art, and then this is a complete defense. "

Statutes of Repose

"Statutes of Repose: similar to statute of limitation but the time starts accruing at the time of sale or production of the product. E.g. Plaintiffs claim was dismissed because the CT statute of repose barred it (too much time had passed) "

Current SOL for Strict Liability

"Strict Liability for manufacturing defects Negligence for design defects - because courts are only applying the second step of the Barker test without the hindsight principle or burden of proof switching, just looking at whether the design embodies "excessive preventable danger" "

"Adams v. Bullock Plaintiff boy carrying a long wire is burned when the wire comes in contact with the electrical cables for a trolley company "

"The Court held that the trolley company was not liable because the trolley company taken reasonable precautions (was not negligent). There was no way to insulate the wires, and there was no special danger at that bridge / particular reason why the railroad would have a duty to take additional precautions at that crossing bridge. NOTE: Rapa thinks that it was foreseeable that this harm would occur, but that Cardozo is setting down a rule of law that will correct a systematic error - that juries will never find for companies in cases like this in which children have been harmed (juries are basically not obeying instructions and not acting within the system of negligence). "

Thompson v. County of Alameda - Violent offender released, kills child in the neighborhood

"The county released a violent juvenile offender, even though he had threatened to kill some unidentified child in the neighborhood. Within 24 hours, he had killed plaintiffs son, a boy in the neighborhood. Trial court dismissed the failure-to-warn claim because there was no identified potential victim. "

Minimizing [Ca+Cp] - Economic Analysis of Optimal Accident Prevention

"The goal of an ideal tort system is to prevent all accidents that are worth preventing. You want the combined cost of accidents (Ca) and cost of prevention (Cp) to be as low as possible. Ca = expected cost of accident (average cost of an accident x probability) Ca can be lowered by lowering the cost of accident (airbags) or the probability of an accident occurring (streetsigns) You should keep investing in prevention until marginal benefit of prevention < marginal cost of prevention - at that point, it is irrational to spend more on prevention. Under this theory, if someone is non-negligent, it means that this person spent a optimum amount on prevention - to spend more would have been irrational. "

Taxation of Damages

"The government does not tax pecuniary damages (lost wages and medical expenses) Most jurisdictions do not allow juries to be told about this - don't want juries to lower the damages by the tax amount, don't want to help the defendant by lowering damages This is a windfall for the victims - but don't want to undercharge the defendant. Emotional damages are taxable - unknown why (maybe b/c attorney fees) BUT emotional damages are not discounted by the future. "

"Cremeans v. Wilma Henderson Manufacturing Co Plaintiff employee drove a loader at Employer's plant. The loader was made by Wilma and its original design had a protective cage for the driver. Employer ordered it without the cage because otherwise it would not fit in their fertilizer room. Manufacturer disclaimed responsibility for injury due to the lack of guard in the bill of sale."

"The question was whether the person who was injured could sue the manufacturer even though employer had disclaimed liability. The court says that he can, because he was injured on the job therefore not barred from suing. Cremeans was not barred from his strict liability suit due to the disclaimer his employer signed or due to assumption of risk because he encountered the risk because it was required for his job. "

Contributory Negligence - MINORITY RULE

"There are 5 states that still adhere to contributory negligence, but most states have switched to comparative negligence AL, DC, MD, NC, VA In SD - if the plaintiff's negligence is very slight, the plaintiff can still recover. So they basically kept the contributory negligence system with this small modification. "

Government Cases - General Principles

"There is no principle that explains all these government entity cases - Protective orders make a difference - triggers special relationship - Being made a personal promise makes a difference - triggers special relationship (although in NY, the promise has to have been made to you and you have to rely on it) - You can only police the government with torts when it doesn't make a difference that they are the government (when they are acting as private parties) - There are obvious cases. Paradigmatic cases - car being driven by a government employee within the scope of his employment runs you over. - You can recover. "

"Ford Pinto Case Ford realized that if the Pinto was rear ended at a certain speed, the car would explode They did a cost benefit analysis over whether it made sense to redesign their car given the risks inherent in their design Used a government figure to put a value on life, which was used as the evidence of their malicious act "

"They were basically punished for what we want producers to do. They did an economic analysis on cost of accidents and cost of prevention, and chose not to take precautions. Human lives cannot be given infinite values - otherwise every single car would be defective. If human lives are infinitely valuable, there is no car where the value of precautions is less than the cost of accidents. These facts make it seem like punitive damages should not be given out for moral outrage "

HIV Emotional Distress Cases - MAJORITY RULE

"To recover for emotional distress of fear of contracting HIV from a dirty needle, most courts require that the plaintiff show that the needle was actually infected with HIV Some courts allow for recovery during the window between being exposed to the needle and finding out that the infection did not occur - Similarly, Courts allowed a mother to recover damages for the emotional distress that she suffered between receiving the x ray and finding out that her baby was fine. "

True Assumption of Risk (Primary)

"Traditional Criteria of True Assumption of Risk - reasonable assumption of risk 1. Plaintiff is explicitly aware of the risk 2. Plaintiff has to understand the risk 3. Plaintiff has to have voluntarily assumed the risk Assumption of risk can be reasonable when the person (not the defendant) is the cheapest cost avoider - either because of special skill or because of affinity for risk The traditional criteria do not capture the fact that you may be aware of the risk and understand it, but foolishly assume the risk. Some people are reasonable in assuming high risk, but many people are foolish in assuming the risk Assumption of risk has to be reasonable. Foolish assumption of risk is just a form of negligence. E.g. Russian roulette is foolish assumption of risk "

"Negri v. Stop and Shop Negri slipped on baby food that had allegedly broken and been left uncleaned for at least 50 minutes. "

Holding: The claim was allowed to go to the jury because the circumstantial evidence was sufficient to allege constructive notice. There was no direct evidence that the store knew about the baby food on the floor, but there was indirect (circumstantial) evidence that the store had constructive notice - meaning that the store knew or should have known of the danger - sound of glass breaking, dirty floor, food had been walked through, time elapsed, etc.

"Indiana Harbor Belt Railroad Co. v. American Cyanamid Co. American Cyanamid Co.'s tanker leaked toxic chemicals in the Indiana Harbor Belt Railroad Co.'s yard. "

"Train leaks poisonous chemical and contaminates area along the route. The plaintiffs say that because the chemical was ultrahazardous, the defendant should be strictly liable because it was an ultrahazardous activity Judge Posner disagrees - the substance is dangerous, but transporting dangerous substances is not more hazardous than transporting dangerous substances. Transporting is not an ultrahazardous activity (unlike blasting). The negligence standard works in this case, so strict liability should not be used. Posner gives a justification for why - a judge cannot determine whether it was "worth it" to transport the chemical through chicago (versus via another longer route).- Therefore this should be analyzed under negligence rather than under strict liability. Strict Liability can encourage a change in the level of activity based on whether the marginal level of activity is "worth it" —> Strict liability is better than negligence for regulating the level of activity in which a person engages "

Categories of Duty for Landowners (Trespasser, Licensee, Invitee)

"Trespasser: Definition: someone without permission to enter your land Duty: No duty except for not willfully or wantonly injuring them (no traps, no shooting them) Exception: Attractive nuisance to children - you have a duty to take reasonable measures to keep trespassing kids away from an attractive nuisance. Licensees: Definition: people allowed on your property, but no expectation of benefit to landowner Duty: Warn about known dangers refrain from affirmative negligence. What is good enough for your is good enough for the licensee, but they need to know what you know. NOTE: Social guests are licensees even though they are invited to your home. Invitees: Definition: people allowed on your property for the purpose of benefit to the landowner / business purpose Duty: Reasonable care (ordinary care). May involve a duty to warn of reasonable dangers as well as potentially a duty to make the premises reasonably safe / fix things. "

"Murphy v. Steeplechase Amusement Co. The Flopper case - plaintiff is injured when he falls on an amusement park ride whose purpose is to make people fall down"

"True assumption of risk (like in this case) eliminates the defendant's negligence. Rather than saying the defendant was negligent but the plaintiff knew, instead you are saying because of the assumption of risk, the defendant was not negligent at all. What is a true assumption of risk? Traditional Criteria Plaintiff is explicitly aware of the risk Plaintiff has to understand the risk Plaintiff has to have voluntarily assumed the risk "

Ultra-Hazardous Activities (Strict Liability)

"Ultrahazardous Activities are a historical area in which strict liability was the rule - the actual category is not as important as Posner's explanation of why strict liability is better in some circumstances Sometimes negligence does not provide the correct incentives because an accident cannot be prevented by taking the precautions required by the negligence system Strict liability provides incentives to people to figure out other ways to avoid accidents not incentivized by the negligence system There are certain kinds of negligence that the court cannot assess due to limited information (Level of activity) Example: Train leaking toxic chemicals - transporting chemicals is not ultrahazardous"

Why do manufacturers prefer negligence to strict liability

"Under strict liability, the manufacturers could theoretically just increase their prices, pass the cost of "insurance" to the consumer, and keep the same profits? Consumers are not totally rational - they are not going to pay more for a car just because the risk of accidents is built in to the price. They are going to buy the cheaper car because they don't think they will get into accidents - they undervalue the risk (we discount the probability of events that we don't like). → manufacturers think that demand will fall if they have to build in the cost under strict liability. "

Learned Hand Test

"United States v. Carroll Towing Co = Origin of the Learned Hand Test - Judge Hand determines that the absence of the bargee is negligence according to his formula (Hand Test). Having a bargee (the precaution) is less expensive than the gravity of the resulting damage + the probability of damage if you do not have a bargee onboard. LP > B → Negligent LP < B → Not Negligent L = gravity of resulting injury P = probability of accident B = burden of adequate preventions NOTE: Judge Hand had the right intuition, that we should look at costs and benefits, but the formula is wrong. This formula does work for a simple kind of case where there are only a few precautions you can take and if you take the precautions, it will definitely prevent the accident, and if you don't take the precaution, it will not prevent the accident. - His formula does not work for more complex situations, because the spending on prevention should continue until the marginal cost of prevention is less than the marginal reduction in the cost of accident (continue until the diminishing returns curve flattens out - When the $1 you spend on prevention gets you less than $1 in cost of accident reduction NOT when total cost of precautions = total cost of accidents. "

Loss of Consortium (Critique)

"Used to be an action that husbands had when wives were injured, but not vise versa Served a valuable purpose because at the time men worked and women did not. When men were injured, they were compensated by lost wages, and loss of consortium did the same when women were injured (to compensate for the economic harm for loss of the women's work). There was economic loss that courts wanted to compensate but they did not want to insinuate that a woman's value could be monetized / that she was a "servant" - this was therefore called loss of consortium. Once women started working, should have abolished this action, because wages could also compensate for women. Instead, jurisdictions expanded loss of consortium to husbands and gave it to parents who lost a child in some cases "

Duty to Rescue Statutes - MINORITY RULE

"Vermont Duty to Rescue Statute - Vermont adopted a statute in the mid-1960s that made it a crime not to rescue - this is not the majority rule. "

Danger invites rescue rule

"Wagner v. International Railway Co.: Holding that danger invites rescue and that a defendant whose negligence causes an injury is also liable for injury to someone trying to rescue the original person injured. "

Strict Liability v. Negligence (Differences)

"Who pays for unavoidable accidents Who makes the decisions about what precautions to take - the courts / juries (in negligence), versus the cheapest cost avoider in SL SL is better at: Changing the level of activity Incentivizing innovation - manufacturers will have constant incentive "

But-for Causation

"X is a "but-for" cause of Y if Y would not occur but-for the occurrence of X This is the way that we assign liability - links specific tort-feasors to specific victims. Alternative System 1: Measure the risk that everyone puts out, assign liability proportionally based on the amount of risk people put out. - Would impose liability of everyone creating risk, not just the people who actually injure others. Mediates the ""moral luck"" problem (only some people who put out more risk actually cause an accident with a victim) Alternative System 2: Could just allot the harm proportionally to tort-feasors, do not assign specific tort-feasors to specific victims (E.g. DES Case), mediates the ""systematic bias"" problem - if you are 80% responsible, you pay 80% of the damages "

Good Samaritan Statutes - MAJORITY RULE

Almost all states have a law that limits liability or provides immunity for someone who was aiding the victim in an emergency. (Could be seen as a "carrot" to get people to rescue, as opposed to the Vermont statute "stick")

Two Disease Rule

Common in asbestos cases - if you develop the first disease (asbestosis), you can recover for fear of the second disease (cancer) even if likelihood of getting cancer is less than 50% but you can't collect damages until you get the second disease / until the cancer manifests

"White v. Sabatino Designated Driver Duty to Third Persons"

Court held that a person who agrees to act as a designated driver has a duty to act reasonably towards third persons after the performance begins BUT a broken promise to be a designated driver cannot be the basis for duty.

Secondary Causes of Harm - rule

Defendants are jointly liable for secondary harms that flow from the initial harm. For example, you negligently hit someone with your car, and then the ambulence driver negligently injures them further - you are responsible for the full injuries (including the secondary causes of harm)

Preemption Rule

Federal regulation is found to preempt a state law, and is also found to preempt the state from applying strict liability. (Riegal)

"Sorichetti v. City of New York Police failed to protect a child from mistreatment by her father, despite the mother's warning and a previous court order giving the police discretionary powers to detain the father at the mother's petition."

Gov is liable because the protective order constituted a special relationship (an expectation that the police would aid). Special relationship generated by the protective order - the government promised to help this person individually as opposed to the public in general.

"Schuster v. City of New York Gov. solicits information about a criminal. Provider is threatened and then killed. Police fail to protect him. "

Gov is liable because they failed to do something that the affirmatively told someone that they would do something, and failed to execute (affirmative negligence). Special relationship, the police entered into a special relationship with the person who provided the information when they promised to protect him personally in exchange for information —> this generates tort liability.

"Riss v. City of NY A woman asks a number of times for police protection against a former boyfriend who threatens her. Police fail to provide any protection, and she is severely injured as a result of his attack"

Gov not liable because policing is a governmental function only, and it was discretionary because there is discretion as to where police are deployed. Court says that the police have a responsibility to the public in general, and not to any individual person.

"Friedman v. State of New York Collisions due to defects in road design "

Highway authority liable for collisions due to defects in road design that the Authority had recognized and failed to correct. Not liable for the design of the bridge (discretionary) but once they become aware of the defect, then repairs are a ministerial, obligatory function. At that point, delaying repairs is failing to perform a ministerial function and the government is liable.

"Potter v. Firestone Tire and Rubber Co. Workers had fear of developing cancer due to exposure to carcinogens at tire factory"

Holding that plaintiffs who had no physical symptoms could collect for emotional distress for fear of developing cancer due to exposure to toxic waste ONLY if the plaintiff could prove that it is more likely than not that they will develop cancer and if they have a serious fear of developing cancer. Could only get the emotional distress if it was more likely than not that the thing would happen.

"General Motors Corporation v. Sanchez Plaintiff thought he shifted the car into park, but due to a defect, it was in neutral and his car rolled backwards and crushed him to death. "

Holding: Court held that contributory negligence was a defense to design defect - makes sense since design defect is basically negligence now.This reflects the fact that the courts have basically abandoned strict liability, so therefore they allow this defense

"Bethel v. NYC Transit Authority Seat collapsed on NYC public bus causing injury to the plaintiff "

Holding: Gets rid of extraordinary care standard for common carriers in NYC. Common carriers (public transportation) should be subject to the same standard of care as anyone else (reasonable precautions). The universal law of torts (be reasonable) never changes, it just applies differently based on the facts, but the standard is the same.

"Gordon v. Natural History Museum Gordon slipped and fell on the steps of the museum. He claimed that he slipped on a napkin that had come from the concession stand on the steps "

Holding: Insufficient evidence to show constructive notice as he could not prove how long the napkin had been there - could not prove that the museum knew or should have known about the napkin - could have flown over in the instant before he stepped on it.

"Trimarco v. Klein Trimarco sued his landlord, Klein, after injuring himself by falling through the glass shower door. The door had been made out of regular, rather than tempered glass (which was customarily used at the time). "

Holding: Not abiding by custom is not dispositive proof of negligence - but custom can be used as evidence of negligence / non-negligence. Abiding by custom is strong evidence of what is reasonable.

Falling Brick Hypo

If a brick falls and injures someone, and it is determined that it came from one of the floors from 6 - 13, it is not "more likely than not"(50% plus chance) that any one of the floors was the source of the falling brick. Cannot make the inference that "bricks don't fall but for someone's negligence" and it is more likely than not that floor 6 was negligent.

"Yost v. Wabash College Duty of Care because of anti-hazing policy"

Plaintiff was injured in a hazing incident. The court found that the plaintiff's college did not owe him a duty of care based it's voluntarily adopted anti-hazing policy, because the court wanted to encourage, not discourage, colleges from having those policies.

"Campbell v. Animal Quarantine Station Hawaii, dog dies, owners told over the phone"

Plaintiffs told over the phone that their dog was killed in an accident. Defendant was found liable for emotional harm.

"Rule: A bystander can recover for NIED if all four factors are met: 1. Defendants negligence causes the death or serious injury 2. A marital or close family relationship exists between the plaintiff and the injured person 3. The plaintiff observed the death or injury at the scene of the accident 4. This experience caused severe emotional distress Scherr: Holding that the plaintiff did not meet the perception prong of the Portee test when she saw on TV that the hotel her husband was in was on fire, but did not see her husband. Barnhill : Holding that the serious injury prong of Portee is met so long as a reasonable person would believe that the person suffered a serious injury or death, even if it turns out that they did not. Doe Parents: Holding that parents of a child who had been molested could recover for emotional distress even though the child had not suffered a "physical injury" and they had not perceived the abuse"

Portee Factors for Bystander Recovery for NIED

"Posecai v. Wal-Mart Stores, Inc Defendant store's duty to Plaintiff robbed in parking lot"

Posecai was robbed at gunpoint in a Walmart parking lot. Court held that WalMart was not liable for not having security presence. It was not foreseeable that Posecai would get robbed, therefore it was not negligent not to hire security.

Pure Comparative Negligence System

Pure Comparative Negligence: You assign percentages of fault. If Plaintiff was 23% at fault and defendant was 78% at fault, then defendant pays 78% of damages. —> CA and NY use this system.

Common Carriers MAJORITY RULE

Reasonable care is the standard for common carriers (not extraordinary care / vigilance) BUT some jurisdictions still have heightened standard for common carriers

"Hoyem v. Manhattan City School District Truant student was run over by a car near the school during school hours"

School is liable for an accident occurring during school hours, even thought the victim was a truant and the accident occurred on the street (where the school would not have been held liable outside of school hours). School has a ministerial obligation to make sure that students stay on school grounds during school hours.

"Peter W. v. San Francisco Student who never learned to read in public school sues the government"

School not liable for educational malpractice to a student who failed to learn basic reading skills. School's decision on how to teach is discretionary.

"Pratt v. Robinson Student was run over by a car, had to walk further because of where the bus stops were located - sued the government over the placement of the bus stops"

School was not liable because the decision of where to put school bus stops is a discretionary function of government, not an obligation.

"Hoffman v. Board of Education Student mistakenly diagnosed as mentally handicapped. "

School was not liable to a student who was mistakenly diagnosed as mentally handicapped and kept in special classes for 12 years. School was not liable because deciding where to place students is discretionary.

"Vincent v. Lake Erie Defendant lashes boat to a dock during a storm, damages plaintiff's dock"

Ship's crew lashed the boat to a dock during a storm, this is an intentional torts case - the ship's crew knew that the boat would hit the dock and would likely damage the dock, and kept the boat there despite this knowledge (general intent). The victim in this case is clear (they will hit this specific dock, not just some dock). Shipowner is liable to the dockowner for the damage to the dock.

"Norfolk & Western Railway Co v. Ayers Workers developed asbestosis (more mild harm from exposure) and have a fear of developing cancer in the future "

Workers could collect for emotional distress of fear that they will develop cancer in the future, if they can show that the fear is "genuine and serious"