Torts

Tests for Standard of Care

"Reasonable and prudent" = objective test --more predictability. Standard of care doesn't change, but amount of care used adjusts to circumstances. Example: A helps B repair a fuel tank. While fixing it, A poured gas into the carburetor and then B started the ignition. The car exploded and A's upper body burned. A argued B had a higher standard of care because of the dangerous nature of the activity. The court said only one standard of care, but care is exercised under the circumstances. Stewart v. Motts, Pennsylvania 1995. Particularize the care in special circumstances (e.g. physical impairments, superior skills/abilities, children unless the activity is inherently dangerous). Example (Physical Impairments): Woman with impaired vision tripped on raised concrete in front of business, she only needed to exercise same standard of care of others with impaired vision. Shepherd v. Gardner Wholesale, Inc., Alabama 1972. Example (Superior Skills/Abilities): Brother was operating heavy machinery and allowed his sister to ride on the machine's attached ladder. They hit a bump, the sister fell off and was killed. Since he had many seasons experience driving the machine and was aware of the possible consequences, the court said he was required to exercise his superior skills. Hills v. Sparks, Missouri 1976. Example (Children): 14-year old allowed an 11-year old to operate his golf cart. The 11-year old hit a bystander. Since driving the cart does not require adult skills, the standard of care must be adjusted for children. Hudson-Connor v. Putney, Oregon 2004. Example (Children & Inherently Dangerous Activities): 13-year old driving with an 11-year old passenger on a snowmobile. They got in an accident and the passenger lost full use of his thumb. When the activity of a child engages in is inherently dangerous (typically operating motorized vehicles), the child should be held to an adult standard of care. This is to prevent immature individuals from engaging in inherently dangerous activity. Robinson v. Lindsay, Washington 1979. Generalize the care as default: Example (Mental Disabilities): Alzheimer patient at residential facility was often combative and partially restrained. He kicked the nurse and she was injured. Court said that a person with mental disabilities is under the same standard of care, regardless of whether he had capacity to understand the consequences of his actions. Creasy v. Rusk, Indiana 2000.

Coercion- Exception to Consent

(e.g. jailers/inmates and employers/employees): When a power balance exists between parties, the person with more power bears responsibility to ensure consent is given freely. Example: Jailer ordered a lockdown and then summoned an inmate who performed fellatio on him. The jailer was found guilty on criminal charges related to the sexual interaction, but then tried to defend the inmate's battery claim arguing that she consented. Because the inmate lacked autonomy, she could not give full and free consent. Robins v. Harris, Indiana 2002.

Exceeding Consent- Exception to Consent

(e.g. medical battery): Example #1: A woman went in for an MRI that required a painkiller injection. Woman told nurse she would only undergo the injection using certain drugs. The nurse agreed and told her she would not use any others. The nurse went ahead with an alternative drug and the woman suffered complications. The court found her general consent to the injection was not consent for any and all drugs. Duncan v. Scottsdale Medical Imaging, Ltd., Arizona 2003. Example #2: Woman consented to an operation on condition she would only receive family-donated blood, instead hospital gave her general supply that was infected with HIV. Ashcraft v. King, California 1991. **Unless there's an emergency** Example #1: During an appendectomy, a surgeon found ovarian cysts and tried to puncture them but ended up cutting her blood vessels, which may have resulted in her post-surgery phlebitis. She sued the doctor for performing additional surgery without her consent. Because the exact condition might not be known before the surgery, a physician should exercise professional judgment when the patient is incapable of giving consent and make the best decision on their behalf. Kennedy v. Parrott, North Carolina 1956. Example #2: Drunk driver got in a car crash and had internal bleeding. At the emergency room the drunk driver objected to the medical treatment. The hospital staff anesthetized him and performed the procedure. The drunk driver then sued for battery. The court found that doctors could act as if the patient consented when his intoxication made him unable to understand the nature of treatment. Miller v. Rhode Island Hospital, Rhode Island 1993.

Incapacity- Exception to Consent

(e.g. minors and incapacitated adults): In order for consent to be given freely, the person giving the consent must be able to understand the nature and character of the act to appreciate the consequences. Example (Minors): Two eight-year olds can consent to play football where touching is inevitable or 16-year old at emergency room with a broken arm can consent to medical attention. Example (Incapacitated adults): Mentally retarded employee had a sexual relationship with her manager for two months. The court found that she had an extremely limited ability to understand the consequences of her relationship, thus consent was at question. Saucier ex rel. Mallory v. McDonald's Rests. of Mont. Inc., Montana 2008.

RESPONSIBILITY APPORTIONMENT

Assessing responsibility with more than one actor (plaintiff and/or defendant): • Several Liability (most states) - apportion damages based on comparative fault. Example: A is found 80% liable, B is found 20% liable on $10,000 claim. A pays $8,000, B pays $2,000. • Joint & Several (some states) - if the harm is indivisible, regardless of comparative fault, each negligent actor can be wholly responsible for damages o Example: A is found 80% liable, B is found 20% liable on $10,000 claim. A might pay $10,000 or B might pay $10,000. • **But, if J&S with Contribution - If one party pays the whole claim, but there is comparative fault, that party can obtain the apportioned amount from the other. o Example: A is found 80% liable, B is found 20% liable on $10,000 claim. A pays full $10,000 and seeks $2,000 contribution from B. • Restatement (Third) of Torts suggests other possibilities: -Reallocation of percentages for several liability Example: If P is 40% liable and D1 is 20% liable and D2 is 40% liable, but D1 is insolvent, then rather than have P take on full burden of D1, P and D2 would split D1 liability, 10% each. The result would be P and D1 each get 50% liability. -Threshold percentage: J&S only when the D's have 50+% liability. - J&S for economic only, Several for non-economic

STATUTE OF LIMITATIONS

Commences when the cause of action is created. Example: Woman went into hospital for surgery on February 8, 1979, she alleged injuries that occurred on February 11. Her lawyer filed suit on February 15, 1982. The court held that the statute of limitations commences running from the date of the injury or the date of the alleged malpractice. The settlement negotiations could not delay the limitations for filing suit. Crumpton v. Humana, New Mexico 1983. **Note: Attorneys can be sanctioned for not submitting claims timely (shows carelessness and betrays trust of clients). Traditional Rule = SOL tolls as soon as elements for COA exist, even if unaware. Example: A woman had an operation and complained to her doctor of pain she experienced afterwards. The doctor assumed it was a normal part of recovery. However, nearly 18 months later without any improvement, an x-ray revealed a sponge was left in her abdomen. She underwent another surgery to remove the sponge. Even more complications arose from the surgery. She sued four years after the original surgery. The court held that the statute of limitations commences from the date of the injury, even if the symptoms didn't manifest until much later. Shearin v. Lloyd, North Carolina 1957. Discovery Rule = SOL tolls as soon as the plaintiff discovers or should have discovered COA. Example: Repressed memory of sexual abuse discovered by flashbacks in therapy. Policy Rationales: • Bars "stale" claims that will be unfair or costly because evidence is lost • Gives peace of mind to defendants to move on with life

Illegal Conduct- Exception to Consent

Consent to illegal activities makes the defense ineffective. Example: A and B agree to have an illegal boxing match, both are injured. Since the match was illegal, consent is not a defense. Both could have a claim for battery. Note: However, many courts do not allow cause of action based on illegal activity.

Custom (Proving Breach)

Custom/Community Standards: Statute can have a lower standard, but the custom might be evidence of what is reasonable care (§13). Example #1: An electric company was found liable after its electric pole was knocked over in a car accident and injured several nearby pedestrians. The electric company replaced hundreds each year from similar accidents and the poles could only withstand being hit by a car traveling at 6mph. The judgment was a reflection of the social acceptability (or lack thereof) of the design. Bernier v. Boston Edison Co., Massachusetts 1980. Example #2: Man injured when a step collapsed on stairwell. Expert testimony revealed that it was common practice to use pressure treated wood even though the building code didn't require that. The custom demonstrated the community standard. Duncan v. Corbetta, New York 1991. Non-Example: Barge sunk in a storm that it should have foreseen, but the operator didn't have a radio to receive weather forecasts. The radios were relatively cheap to purchase, even an individual could have afforded if his company didn't provide them. Even though the majority of tug boats had radios aboard their boats to use for emergencies, the court can impose a higher standard if the custom lags. The T.J. Hooper, 2nd Circuit 1932.

NEGLIGENCE DEFENSES

Defendant has burden of proof. • Contributory Negligence/Comparative Fault • Assumption of the Risk • Statute of Limitations • Preemption & Compliance with Statutes

Duty to protect others once the defendant has rendered aid (§§ 42 & 44)

Defendants provided minor girl with alcohol and challenged her to drink it all. She did but lost consciousness and vomited. The defendants chose not to call for medical services and instead took care of her until morning when they dropped her at a friend's house. She later died. The court held that the no-duty rule does not apply when the defendants voluntarily assumed the duty to take care of her but did so negligently by not calling medical services. Wakulick v. Mrax, Illinois 2001.

Direct v. Indirect Contact (§18)

Direct Contact = Body (e.g. fist to face) or anything held/attached to the actor (e.g. throwing glass of water in face or setting dog on someone) coming in contact. Example: A gets filth on a towel that he knows someone will wipe their face with, resulting in them smearing their face. A is liable. Indirect Contact Example: A patient did not consent to students participating in her surgery, but an anesthesiologist allowed an EMT student to perform intubation, resulting in lacerated esophagus. Since the EMT was under the authority of physicians and under no obligation to obtain consent herself, she could not have intended harm. The doctors were liable. Mullins v. Parkview Hospital, Inc., Indiana 2007.

Do doctors have a duty to disclose material risks that are part of the procedure?

Doctor's have a duty to disclose material risks that are part of the procedure. Example #1: Plaintiff had a surgery to remove a tumor in his neck, but during the procedure a nerve was severed resulting in loss of tongue function. The court held that a doctor has to disclose significant information, including risks, that will impact the patient's willingness to undergo the procedure. The procedure is the patient's prerogative, not the doctor's. Harnish v. Children's Hospital Medical Center, Massachusetts 1982. Example #2: Patient had a back surgery and the doctor inadvertently tore part of the tissue encasing the spinal cord. A tear of the type that happened was a normal risk of the surgery. The court held that a doctor is only required to disclose the risks that would be made by a reasonable medical practitioner. Further, in medical malpractice cases, the burden then shifts and the plaintiff must prove that a reasonable person, with all the available information, would have refused treatment. Woolley v. Henderson, Maine 1980. Example #3: Woman developed cervical cancer. She had previously been under the care of her doctor who advised her to get a pap-smear without telling her why it was important. She refused each time. The court held that a doctor has a duty to advise a patient of all material risks that a reasonable person would want to be informed of and that may result by refusing a medical procedure. Truman v. Thomas, California 1980. Non-Example #1: A boy suffered from kidney failure. After a doctor told him that the chances of success for a transplant were "good", the mother gave her kidney to her son. The kidney didn't take and the boy died. The family sued because they later found out that 5 out of 7 kidney transplants performed by the doctor failed. The court held that success rate was not a risk related to the medical procedure and the doctor had no duty to disclose. Wlosinksi v. Cohn, Michigan 2005. **Note: Even without the no duty rule, the success rates disclosure issue could become part of a proximate cause defense. Non-Example #2: A boy with cancer had some post-op procedures that the doctor knew would likely not increase the boy's chances of survival, due to the advanced stage of his cancer. The family sued for giving false hope and said the doctor should've informed the patient of its (un)likelihood of success. The court held that the likelihood of success is not a risk of the procedure, therefore there is no duty to disclose. Arato v. Avedon, California 1993. Policy Rationale: Doctors might be less willing to take on high-risk patients if their success rate was disclosed.

DUTIES TO THIRD PERSONS (§40)

Duty created by special relationship such as employer-employee, school-student, landlord-tenant, proprietor-invitee, landowner-invitee Example: Three female students alleged they suffered sexual abuse by teachers and sports coaches, they sued the school district. The court held that supervisory school employees stand in as proxies for parents and owe a duty to report sexual abuse of students carried out by other school personnel. Marquay v. Eno, New Hampshire 1995. Non-Example: Woman returned to her car after shopping in Sam's Club. A man was hidden under her car, attacked her, then robbed her jewelry. Over many years there were a variety of crimes, including three robberies on the property. However, none of the robberies occurred during store hours or were the result of random criminals. The court held that there were many factors that should be considered (similar to risk-utility balancing) to determine if the business had a duty to its customers, but there was no duty here. Posecai v. Wal-Mart Stores, Inc., Louisiana 1999.

DUTY

Duty is using reasonable care under the circumstances (both internal and external) to avoid (foreseeable) harm to physical safety of others (§7)

PRIVILEGES TO TRESPASS (§§ 196-197)

Element: • Private or public necessity Private or public necessity: Trespass allowed on private/public property when it will reasonably save human life. Example: Family was sailing a boat when a storm arose. The family moored to a private dock but then the dock owner's staff untied the boat. The boat was destroyed. The court found that personal property could be sacrificed to save human life. Ploof v. Putnam, Vermont 1908. • **But the trespasser is liable for damages caused by the trespass. Vincent v. Lake Erie Transportation, Minnesota 1910. (§77)

Elements of Intent (§§ 1 & 5) and what is Single vs. Dual Intent?

Elements: • Acting with purpose to produce a consequence, or • Acting with substantial certainty that a consequence will be created Purpose: Conscious objective or desire to cause harm • Singular Intent (most states) = Intent to make contact. Example: A throws rock at B from a 100-ft distance, suggesting she probably won't hit B, but does. Even though unlikely, A threw rock with purpose. • Dual Intent (some states) = Singular PLUS understand contact would be harmful. Example: Elderly woman with dementia hits her caretaker, not only needs to hit, but appreciate that a harm would result. White v. Muniz, Colorado 2000.

RES ISPA LOQUITOR = Let the fact of the accident speak for itself (§17)

Elements: • Event in question doesn't ordinarily occur in the absence of negligence • Negligence is within the scope of duty owed by defendant • Other causes (or actors) are sufficiently eliminated with evidence Event in question doesn't ordinarily occur in the absence of negligence Example: Barrel hits plaintiff while he is walking on the sidewalk. Witness testifies to it falling from adjacent shop, but the plaintiff was unaware of what caused the fall. Common sense approach employed that said an accident can't occur without some negligence (breach). When no one sees specifically or the defendant isn't forthcoming with information to explain how the harm occurred, it doesn't seem fair to let the plaintiff have to find evidence to prove negligence. Byrne v. Boadle, England 1863. Common knowledge question of probability, usually not data driven. Example (Probability, 51% likelihood): No "substantial, significant, or probably explanation" of power lines falling. Without interference, they shouldn't have fallen. Koch v. Norris, Nebraska 2001. Negligence within scope of duty owed by defendant: Object is within exclusive control of defendant, even when the plaintiff has comparative fault or used the object. Example: Elevator operator injured after the cables in the elevator malfunctioned. The elevator was exclusively maintained by a company other than the operator's. Res ispa loquitor can be used when the object is in the exclusive control of the defendant. Giles v. City of New Haven, Connecticut 1994. Example (Even without Object): Woman at nursing home for 5 days was transported to and from by an ambulance company, she left dehydrated and with a broken leg. Although there was more than one actor, res ispa loquitur applied because the nature of the injuries had to have been known by the defendant's. Collins v. Superior Air-Ground Ambulance Service, Arizona 1995. Other causes (or actor's) are sufficiently eliminated with evidence. Example: Ruptured gas lines do not ordinarily occur unless defect since they are buried under ground and not accessible by the public. Cosgrove, v. Commonwealth Edison Co., Illinois 2000. Non-Example: 6-year old is run over by front tire of care and died. No one checked the vehicle directly after the accident to see if the breaks were on, if the car was in gear, etc. There was no driver in the front seat, there were several kids in the back seat, all that was reported was a "click" noise. Court held that if a reasonable person might conclude there were other factors that may have contributed to the harm, then its too difficult to attribute negligence to the possessor. Warren v. Jeffries, North Carolina 1965. Rationales: • Implicit fault • Defendant's superior information • Bias (Conspiracy of Silence)

DEFENSE/REPOSSESSION OF PROPERTY

Elements: • Force must be reasonable and appropriate • Bodily injury or death only when there's an immediate threat to human life Use of force must be of a kind appropriate to the defense of property (§77). Example: Some teenage boys were stealing watermelons off someone else's property over multiple nights. On the last night, the property owner saw two of boys running off the property in one direction, so he fired off his rifle in the opposite direction to scare them. But he ended up shooting one of the teenagers. The property owner's force was unreasonable and he was liable. Brown v. Martinez, New Mexico 1961. Force that causes great bodily injury or death is only justified when the trespasser endangers human life (§84). Non-Example: A husband and wife boarded up an unoccupied farmhouse and posted no trespass signs, but eventually booby-trapped it with a spring gun because people kept breaking in. A burglar broke in to steal old bottles and jars but got shot in the leg by the gun. The use of force wasn't proportional to the unoccupied house. Human life is always more valuable than property. Katko v. Briney, Iowa 1971.

ASSAULT = "Promise to Harm" or "Touching of the Mind" (§21)

Elements: • Intent to cause apprehension of imminent harmful or offensive contact • Apprehension results Intent to cause apprehension of imminent harmful or offensive contact • Surrounded by display of force (words or action) • Apprehension is considered reasonable • Invasion of mental peace o Example: After visiting with a minor girl, a man was visited by her family and verbally confronted. The girl's father carried a gun strapped to his thigh. During the confrontation the father continually reached for the gun, but did not pull the gun from the holster. The father threatened to jump the man. In subsequent meeting, similar forceful actions occurred. Cullison v. Medley, Indiana 1991.

FALSE IMPRISONMENT (§35)

Elements: • Intent to confine with fixed boundaries • Actual confinement that the other is conscious of (or harmed by) Intent to confine with fixed boundaries: • Physical (§39) • Threats of physical force (explicit or implicit) (§40) • False assertion of legal authority (§41) Confinement (§36) • Actual fixed boundaries with no means of escape • Conscious of confinement (or harmed by it) Example: A mom and her two children were shopping at Walmart. After they paid, they were stopped and told not to leave by Walmart personnel who mistakenly thought her children were trespassers and prior shoplifters. Walmart personnel told the mom they were calling police when in fact they were calling the store security. The mom and her kids attempted to leave by proving identify but Walmart did not release them until other personnel identified her kids' mistaken identity. McCann v. Wal-Mart Stores, Inc., 1st Cir 2000.

TRESPASS TO PROPERTY = deprivation of owner's exclusive possession/enjoyment (§158)

Elements: • Intent to enter the land of another • Actual entrance onto land of another results Intent to enter the land of another • Enters by person or object. Person: Hang-glider lands on property after bullet rips hole in glider. Object: Neighbor throws shoe at cat on fence, misses cat, and shoe falls on other's property • Refuses to leave (even if unintentionally enters land) Example: Car goes out of control and unintentionally ends up on the property, but then refuses to leave

CONVERSION OF CHATTELS (§§ 222 & 229)

Elements: • Intent to exercise substantial dominion or control over chattel • Actual substantial dominion or control results Intent to exercise dominion or control over chattel • Conversion to own use. Example: A steals B's watch Non-Example: Doctor withdrew blood and then used cells to develop a cell-line as a commercial product, court said the patient lacked a property interest in cells after the withdrawal. Moore v. Regents of the Univ. of Cal., California 1990. • Conversion to another's use, including serial conversion. Example: Women was told embryos weren't suitable for implant or freezing, but then the university sold the eggs to other women and researchers. Unrah-Haxton v. Regents of Univ. of Cal., California 2008 • Substantial Dominion. Example: A burns B's book, even if by accident

TRESPASS TO CHATTELS (§217)

Elements: • Intent to use or interfere with chattel • Actual interference results Intent to use or interfere with chattel. Example: Former employee sent large volumes of porn and email to old employer, resulting in adverse affects on employer's computer system. School of Visual Arts v. Kuprewicz, New York 2003.

BATTERY

Elements: • Intention to cause harmful or offensive contact • Harmful or offensive contact results Intention to cause harmful or offensive contact: • If intent is to cause offense or apprehension, but causes harm = intent for battery. Example: Intending offense, A kicks B on the shins which normally wouldn't cause bodily harm, but because of B's leg condition, it results in permanent harm. • If intent is to offend or cause apprehension to A, but causes harm to B = intent for battery. Example: C doesn't see B trespasser. C throws a rock at a wall to hit A trespasser, but B pops up and gets hit. Harmful or offensive contact occurs: • Harm = physical • Offense = Unconsented to or offends reasonable sense of personal dignity (§19). Example (Offensive): Surgeon grabbed, pulled, and yelled at nurse for incorrect instrument. Surgeon argued no intent for physical harm, but offensive contact with actual harm satisfies intent for battery. Snyder v. Turk, Ohio Ct. App. 1993. Example (Unconsented): Patient informed doctor of religious beliefs that prohibited males from seeing her body. Doctor guaranteed her beliefs would be respected and he advised the rest of the hospital. A male nurse observed and touched her body. By engaging in unconsented content, the offender probably knew it would be offensive. Cohen v. Smith, Illinois App. Ct 1995. **Note: harm can occur whether or not the person is aware (§18, comment d)

CONSENT

Elements: • Outward agreement • Based on the circumstances Consent can negate the "intent" element in an intentional tort Consent is revoked when it's communicated to the defendant Exceptions: • Coercion • Incapacity • Exceeding consent - Unless in emergency • Fraud • Illegal Conduct

SHOPKEEPER'S PRIVILEGE

Elements: • Reasonable cause to suspect shoplifting • Detention for investigation or calling law enforcement • Reasonable manner/time of detention Privilege exists on shopkeeper's premises or in pursuit of an alleged shoplifter. Example: Two guards suspected shopper of stealing and approached him in the parking lot. When they asked him to return to the store to answer some questions, the suspect bolted. The guards pursued him off premises. While pursuing him, the shopper ran into a river and drowned. The court found the guards' pursuit was reasonable and privileged. Peters v. Menard, Wisconsin 1999.

SELF DEFENSE (§63)

Elements: • Reasonable person would have perceived threat of bodily harm • Response was reasonable and not excessive Privilege exists event if the actor could've retreated or complied with the tortfeasor's orders Provocation does not trigger the privilege

Duty to third-persons in cases of foreseeable criminal activity

Example #1: Minors went to a restaurant where they were served alcohol. They may have been drinking previously, but by the time they left they were visibly intoxicated. They got in a car accident. The victim sued the restaurant. The court held that a liquor establishment owed a duty to customers that it serves who are visibly intoxicated and third-parties who may create an unreasonable risk of harm to others. Brigance v. Velvet Dove Restaurant, Inc., Oklahoma 1986. **Note: This raises policy questions of deterrence vs. accountability. If we're focused on deterrence it makes sense to hold the bar liable, but if we want individuals to be accountable, it doesn't seem fair. Imposing liability on the bar might be bad for business (e.g. bar performs breathalyzers on patrons before serving them). Example #2: Defendant gave rx pills to his co-worker's girlfriend at their employer's holiday party. The girlfriend shared the pills with her boyfriend who was drinking that night, neither knew you couldn't taken them while drinking. The court held that a person prescribed drugs owed a duty of care, making them liable for negligence, when they improperly give their drugs to others and the state law specifically seeks to protect that class of person who was harmed. Gipson v. Kasey, Arizona 2007.

Notice & Opportunity to Cure (Proving Breach)

Example: A customer slipped on some water after dining at restaurant. While she dined, she didn't see anyone drop anything near the area. Another witness verified. The area she slipped was in a common aisle that was near the passage from kitchen to restaurant. Because only employees carried food and beverages through the area and due to the size of the water spill, the restaurant should've noticed the spill and exercised due diligence. Thomas v. Cracker Barrel Old Country Store, Inc., Florida 1995. Non-Example: Woman slipped on some liquid in Wal-Mart and argued that because the store didn't follow its own safety manual for clean up that it didn't meet the reasonable care standard. The court held a company can't create its own standard because narrower policies might be directed at other goals (although the standard could be used as evidence to show foreseeability or reliance on duty). Wal-Mart Stores, Inc. v. Wright, Indiana 2002. (§13, comment f)

Duty to protect because of a special or pre-existing relationship.

Example: Defendant was drunk driving and hit a cyclist on the road. Two of his friends were passengers in the car. Upon discovering the cyclist who was not moving the defendants did not call emergency services. The two friends disclaimed their responsibility. The court held that a special relationship could be created "contractually, relationally, or transactionally." The court held that even the passengers had a relationship with the victim and had a duty to render help. Public policy might help create a relationship, for example if the third-parties tried to prevent another from helping. Podias v. Mairs, New Jersey, 2007. Non-Example: Decedent was temporarily in state's custody but then returned to father on condition he would participate in home visits. On several occasions the state worker noticed signs of potential abuse. In later visits she didn't see the child at all. Eventually it was discovered the father beat the boy, necessitating the boy's institutionalization. The court held the state worker was under no duty to prevent harm to the boy unless he was in the state's custody. DeShaney v. Winnebago County Dept. of Social Services, Supreme Court 1989.

BREACH

Failure to use reasonable care under the circumstances to avoid harm. Distinguished from intentional torts by the intent to act versus the intent to harm. Example: Construction company used steel instead of concrete for cost savings, even though data showed 3x as many workers are killed on the when using the alternative material. During a collapse, an employee is paralyzed and delivery person gets a broken leg. Brown v. Stiel example. Non-Example: Man hired experienced roof repairman who fell off the roof during the job. Hired hand argues that the man provided him an unsafe working condition. Even though it was foreseeable someone might fall off the roof, the employer's liability ceased to be applicable when the employee's knowledge of the danger was equal or greater than the employers. Stinett v. Buchelle, Kentucky 1980. Foreseeable and precaution is worth avoiding the risk. Example #1: Teenage driver's passenger reached over, grabbed the steering wheel, and caused the truck to go on the side of the road. The passenger does it again, causing an accident and injury. Driver should've foreseen what was going to happen the second time and tried to avoid. Piper v. Parsell, Delaware 2007. Non-Example: Brother prepared to mow his brother's lawn by filling up the gas tank and starting the engine. When he did so, the engine erupted into fire. He attempted to put it out on his own, when that failed he left to call 911. While he was across the street making the call, the garage burst into flames. The insurance company tried to recover from him, arguing that he should've pushed the enflamed mower out of the garage, but the court valued his body over property. Indiana Consolidated Insurance Co. v. Matthew, Indiana 1980. Proving Breach: • Notice & Opportunity to Cure • Risk-Utility/BPL • Custom • Compliance w/Law (See NPS) Isolate a specific act that alleged to be negligent, an entire activity ≠ unreasonable. Non-Example: Girl brings claim against school bus company alleging she was injured when the bus got in an accident. She can't recall any details and the alleged accident wasn't documented in a police report. Court held she needed sufficient evidence that would show breach by school bus company/employee, not just rank speculation. Santiago v. First Student Inc., Rhode Island 2004. Factual inference based on circumstantial evidence can prove breach. Example: Car traveled beyond speed limit and got into car accident, excessive speed was determined using the testimony, skid mark measurements, and resulting impact. Forsyth v. Joseph, New Mexico 1968.

DUTIES OF CHARITIES (IMMUNITY)

Generally can't be sued unless acting reckless or for services/activities that are for profit or administrative in nature. Policy Rationale: Non-profits usually don't have the resources to provide their service and compensate victims, if we imposed a duty, how would society have to subsidize the charities. **Note: A reasonable care standard could lead to accountability, compensation, and more care.

NONFEASANCE & MISFEASANCE (§37)

Generally, there is not an affirmative duty for other's protection. Example #1: Plaintiff visited a strip-mining site and was cajoled by the defendant to jump into a pit where he drowned. The family alleged that the defendant owed a duty to rescue the decedent. The court held that without having created the risk, the defendant owed no duty to the decedent, especially since the decedent should have known the risk he was creating for himself. Yania v. Bigan, Pennsylvania 1959. Example #2: After a night of drinking, a frat boy jumped from a cliff into a river even though he didn't know how to swim. His friends were with him and his family sued for their failure to act. The court held that defendant owed no duty because taking the friend to the top of a cliff didn't create a risk. Rocha v. Falty, Texas 2002. Example #3: Woman who knocked on doors for help when she lost her boys in Hurricane Sandy, Queens woman got stabbed with 38 onlookers from apartment building, Massachusetts woman was gang-raped on a pool table at a bar. New York Times Article, 2012. Duty to protect others from a risk that the defendant has created (e.g. misfeasance). Example #1: Defendant was contracted to dig wells in the road. At night the contractor left the wells unlit and uncovered at night. A man's carriage fell into the unlit hole and he was injured. The court held that doing unlawfully what might have been done lawfully was misfeasance. Newton v. Ellis, England 1855. Example #2: A bicycle appears in front of a driver, he does not move his foot from the pedal and strikes the bicyclist. The focus is not on the foot, but the entire activity of his driving. The driver would be liable for misfeasance.

ACTUAL HARM & ACTUAL CAUSE

Harm is direct result from negligence. Actual Harm Non-Example: Driver admits to hitting plaintiff's car. Although he didn't report any injuries at the scene of the accident when they exchanged information, a few weeks later the plaintiff claims he suffered bodily injuries as a direct result from the accident. Court rules that recovery is only upon proof of causation. Right v. Breen, Connecticut 2006. Actual Cause (§26) • Inherently involves comparing events to hypothetical alternatives. • There can be more than one factual causation • But-for test: But for defendant's negligence, plaintiff wouldn't have suffered actual harm . Example: Woman walking on a sidewalk saw a bush obstructing sidewalk, went to walk on the street to avoid the bush, while looking for traffic, she tripped on a hole in the sidewalk and broke her hip. The bush and sidewalk hole were on different properties. Hale v. Ostrow, Tennessee 2005. But for D1's bush obstructing the sidewalk, P wouldn't have fell and broke her hip. But for D2's poorly maintained sidewalk, P wouldn't have fell and broke her hip. Non-Example: Woman didn't know she was pregnant when she went to get x-rays of her abdomen. The x-ray tech didn't inquire either. Later, she found out she was pregnant when she got her x-rays. Due to the x-ray exposure, her doctor urged her to get an abortion. When she underwent the abortion, it was discovered the fetus was already dead. She admitted that had the doctor asked her if she was pregnant at the time of x-ray that she would have said no. An actor cannot be found negligent without a known cause of harm. Salinetro v. Nystrom, Florida 1977. Multiple but-for causes (§27) • Divisible injuries --causal apportionment Example: D1 = arm, D2 = leg • Indivisible injury --fault-based apportionment --J&S or Several Example: Plaintiff's lake was stocked with fish that were killed after two defendant's flooded the lake with salt water, together the amount of salt was necessary to kill the fish. When two actors are responsible for the harm, but it cannot be determined which is responsible for the harm, then the actors are held jointly and severally liable. Landers v. E. Tex. Salt Water Disposal Co., Texas 1952. Example #2: D's property set fire and smoldered for several months until it reached P's property. Other fires occurred between D's fire point-of-origin and where the damage occurred. If the wrongdoing of one unites with another wrongdoers, then there is joint and several liability, even if either would've resulted in harm on its own. If two causes join to bring about an event, the substantial factor test is appropriate. Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Railway, Minnesota 1920.

Insurance Concerns- Medical Professionals

In response to rising insurance costs, states have enacted statutes that require the plaintiff to prove actual negligence, disallow malpractice based on contract, disregard the discovery rule for malpractice, limit standard of care to local/statewide not national, create absolute damage caps, and limit joint and several liability. Example: Diagi case, needed legislation to recover more than state damages cap

Fraud- Exception to Consent

Inducement by false information makes consent invalid. Example: Doe got HIV from unprotected sex with Magic Johnson, who did not warn her of his high risk due to his promiscuous lifestyle. The court found that by not disclosing he was positive for HIV/AIDS, he was liable for battery. Doe v. Johnson, Michigan 1993.

NEGLIGENCE AS A "MATTER OF LAW"

Judge decides negligence on the facts, meaning a reasonable person could not find otherwise. Example: Driver has duty to keep a reasonable lookout when driving at night to be able to stop within the range of his lights. Marshall v. Southern Railway Co., North Carolina 1950. Squarely juxtaposes the "reasonable care under the circumstances" standard in favor of categorical rule that prohibits exceptions.

Substantial Certainty

Knowledge that the act would produce the consequential harm, but doesn't have to be probable. Example: Boy moved a chair from under a woman resulting in her broken hip. He need not know she would break her hip, but have some knowledge that she would try to sit in the chair or could get hurt by his actions. Garrat v. Dailey, Washington 1955. Non-example: Doctor gives medication to patient, but confused it with another. The medication is certain to cause harm to patient and does, in fact. Because the doctor lacked knowledge of the result, she did not act with intent. R3§1 ex.5

DUTIES OF GOVERNMENT ENTITIES & OFFICERS (IMMUNITY)

Liability when they take private property for public purposes without compensation Liability if the tortious acts fit into Federal Tort Claims Act Example: Mine workers died and alleged negligence on behalf of federal mine inspectors. The plaintiffs argued that state and municipalities would be held liable, therefore the federal mine inspectors should be. But the court held that FTCA waives private immunity if a private person would be liable. Further, even though there are no private federal mine inspectors, the court can analogize the duty to like situations (e.g. lighthouse operators). Liability for off-duty employees whose job fosters a risk (e.g. takes government rifle off duty) No liability for dignitary and economic intentional torts like assault, battery, false imprisonment, abuse of power, libel, slander, misrepresentation No liability for injuries "incident to service" by active military. Example: Three consolidated cases of soldiers who were injured during service, including one where a military doctor left a 30-inch towel in the patient's abdomen. The court held that the injuries were "incident to service" and the immunity helped to protect the government-to-soldier relationship. Feres v. United States, Supreme Court 1950. **Note: The Feres rule doesn't apply to spouses and children, except when the injury was "incident to service" (e.g. soldier's inoculation results in birth defects to child). No liability for discretionary and policy-based actions. Example: Planning and design of procedure, not implementation. Non-Example: Employees at a naval base kitchen were exposed to mold and developed a variety of health problems. The court employed a two-part test, barring liability when the government exercised discretion or acted in the interest of policy. Although a statute required safety inspections, the naval base exercised discretion with how to meet the requirements. The court held that once the naval base developed a plan, it could not decide to be lax in implementing it and could thus be liable. Whisnant v. United States, 9th Circuit 2005. Policy Rationale: Discretionary immunity is designed to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy. **Note: Policy-based actions ask whether Congress meant to protect the type of action, they can't just be couched in allocation of resources, since that argument is always present. Example: Federal agency manufactured a live-virus polio vaccine. The agency required manufacturers to conform to safety regulations. A woman was exposed and became paraplegic when her son was inoculated. Since statute didn't mandate the agency had to ensure that each of the manufacturers followed the safety regulations that would've been discretion and the agency wasn't liable. Loge v. United States, 8th Circuit 1981.

Extended Liability

Liable for harms, even if unintended and unforeseen. Intent to cause offense, but causes harmful contact = Liability. Intent to cause harmful contact, but causes offense = Liability.

PROXIMATE CAUSE = SCOPE OF LIABILITY (§29)

Limits liability where all the other factors are met. Example: Doctor isn't liable for a child who commits arson, even though the child was a result of a poorly performed vasectomy. Confines liability to the risk that made the conduct negligent. • Sometimes its not clear where to draw the line for liability. Example: Car was leased that had a faulty trunk that would not shut. As plaintiff was trying to shut it, she was hit by a nearby parked car that hit her. Ventricelli v. Kinney System Rent A Car, Inc., New York 1978. • When it's particularly difficult where to draw the line, let the jury decide. Example: A was passenger in B's car that went off the road when it saw C's oncoming truck in its lane. C stopped to help B, but blocked part of the road in doing so. A went to the top of the hill to flag other approaching drivers but ended up getting hit herself. Although difficult for B to predict the variety of risks, it didn't limits his liability. Marshall v. Nugent, 1st Circuit 1955. Proving Foreseeability with risk standard/foreseeability: what harm would a reasonable person have foreseen (§29) • Risk that make the conduct tortious (What type of harm?) Example: Utility employees left a manhole unattended but covered with a tent and some kerosene lanterns. Two boys used the lanterns to go into the hole and then came back out. But while coming out, one lantern broke and the kerosene vaporized, ignited and caused a large explosion that burned the boy. The court found the explosion to be one variant of a foreseeable fire that could result from an unattended kerosene lantern and imposed liability. Hughes v. Lord Advocate, England 1963. Non-Example #1: Ambulance was unable to pick up a woman going into labor, so she drove to the hospital. While speeding, she drove through a red light and then was hit by a drunk driver. The woman lost her baby and sued. Court said the hospital couldn't reasonably anticipate a drunk driver hitting her on the way to the hospital. Abrams v. City of Chicago, Illinois 2004. Non-Example #2: Woman visited friend at apartment complex that used an intercom system to buzz people in. The intercom system malfunctioned and while waiting for her friend to physically let her in the complex, she was attacked by a man. Her attack is not of the same general nature as the harms the apartment complex could foresee as a result of the broken buzzer, therefore not liable. Medcalf v. Washington Heights Condominium Ass'n, Connecticut 2000. • For what class of persons? Example: A is carrying a package while trying to jump on a train, but almost falls. B tries to push him on to prevent the fall, which causes A to drop his package. The package contains fireworks that go off. The explosion causes some ceiling tiles/scales to fall some distance away and injure C. Court finds that the injury to C was not perceived as a risk of the package being tossed, even if it was done willfully. No negligence. Palsgraf v. Long Island Railroad Co., New York, 1929. Example (Rescuer): Railway company lets passengers cross between cars during motion. Passenger falls into a gorge and cousin gets hurt while trying to rescue him. Court held that "Danger invites rescue" and defendant who is negligent to passenger can be held liable for injury to the rescuer, as a matter of law. Wagner v. International Railway, New York 1921. • Result from those risks (What harm resulted from the risk?) Imposing liability with unforeseen results • "Thin Skull" --liability. Example: Diabetic guest had difficulty walking up and down stairs. He informed the hotel and requested first floor room, but they placed him on the second floor. The hotel was also experiencing a faulty fire alarm system that regularly went off. On the night of the diabetic guest's stay it did go off and while he was exiting on the stairs he fell. He twisted his ankle and blistered his toe. Both injuries were exacerbated by his diabetes and he got gangrene. The hotel was liable and had to "take him as he were." Hammerstein v. Jean Development, Nevada 1995. • Different manner of injury --liability. See also Hughes case. • Different type of risk--no liability. Example: A worker knocked some industrial material into a vat of molten liquid. A few minutes later, the industrial material chemically reacted with the molten liquid and produced an eruption that splashed the nearby plaintiff. Although a splash might have been anticipated, a splash from chemical reaction several minutes after the material was knocked into the vat was not. No liability for defendant. Doughty v. Turner Manufacturing, Canada 1963. • Different class of persons --no liability Intervening/Superseding Acts (§34) • Traditional torts would limit defendant's liability, modern allows for apportionment of fault --limited use of intervening/superseding causes Example: Liability found for construction company that was responsible for blocking road while sub-contractor was using 400 degree boiling liquid enamel to seal underground pipes. The company put up a wooden horse and had one flagger directing traffic from the area. An approaching driver had a seizure and crashed into the boiling liquid enamel. The sub-contractor was splashed and ignited into a fireball. Liability found because even though the seizure was unexpected, the road construction company was supposed to protect the worker from any kind of crash. Derdiarian v. Felix Contracting Corp., New York 1980. Non-Example: Unstable woman lived with police officer who kept a loaded gun unlocked in the house. Woman was depressed and high on crack cocaine when police officer kicked her out. She took his gun and shot at the windows but no bullets fired. She then shot herself. The defendant argued her attempted suicide was a superseding act, but "suicide" wasn't a foregone conclusion since she had reason to believe the gun wouldn't fire. Delaney v. Reynolds, Massachusetts 2005. **Today, attempted suicide or suicide is considered a superseding cause except when the defendant's conduct induces "uncontrollable impulses" for the plaintiff and when there's a special relationship that gives knowledge to the defendant that suicide is a potential risk. • Sometimes crimes and intentional torts can be foreseen. Example: Landlord leasing apartments to women and fails to control access to keys. Someone then used a key to gain access to one of the woman's apartments and raped her. Both the rapist and landlord could be liable. Tenney v. Atlantic Assoc., Iowa 1999. **Note: Scope of liability limits liability when its dependent on facts, the other alternative is for the court to impose no duty as a matter of law.

DUTIES FOR MUNICIPALITIES & STATES (IMMUNITY)

Most states have adopted FTCA-like liability. No liability for police to provide protection based on specific requests. Example: A woman was stalked and threatened by a man she didn't want to date. She repeatedly contacted police after each incident, asking for help. Police didn't respond. Finally, the man hired someone to throw lye on her face. She suffered blindness in one eye and scarring of her face. She sued the police for failing to protect her. The court held that the limited resources of the police prevented it from having a duty to protect particular seekers; it would be an improper allocation of state resources. Riss v. City of New York, New York 1968. Liability for police when they agree to respond to specific request. Example: A woman called 911 for help with an intruder. The dispatcher sent police to the wrong address. The mix-up led the police to consider the call a fake. In the meantime, the woman died from stab wounds. The court held that because the municipality did not refuse her request for assistance, the police were liable. DeLong v. County of Erie, New York 1983.

Do Medical Professionals have Potential Liability in Emergency Situations?

No liability in emergency situations. Example: A woman in labor became unresponsive and the hospital broadcast a "code blue." She died and her husband sued. The doctor's defense was that statutes provided civil immunity for him. The court held that medical professionals do not need to exercise reasonable care in emergency circumstances and that it was created to encourage aid without fear of liability. Hirpa v. IHC Hospitals, Inc., Utah 1997. **Note: Many states require medical professionals to exercise reasonable care in a hospital setting, but not outside of it. Reasonable care under the circumstances might cover these types of situations, but the statute gives more assurance to doctors without the concern of liability.

Transfer of Intent

Person A to Person B. Example: Teacher got punched by one of his students, although not deliberately (the student thought he was hitting another student) while he was breaking up the fight. Intention can be transferred. Stoshak v. East Baton Rouge Parish School, Louisiana Ct. App. 2007. Tort A to Tort B. Example: A fires a pistol in direction of B to scare, but the bullet hits B instead. A is liable for harm caused to B, even though it was not A's intent. Similar to watermelon farmer example. Brown v. Martinez, New Mexico 1961.

Policy Rationale behind Reasonable Care Standard

Policy Rationale: The reasonable care standard is preferred over specialized duty because it 1) provides a consistent standard, 2) focuses on care, 3) avoids problems of distinction (e.g. invitee/licensee/trespasser), and 4) maintains jury role. Although it may be more expensive. **Note: If the standard was less than reasonable care, it could lead to increased claims under the willful and wanton category. Everything that previously fell under standard negligence would be come willful and wanton.

PREEMPTION & COMPLIANCE WITH STATUTES (§16)

Preemption: Congress enacts law with clear and manifest purpose to preempt state law, making the state law unenforceable. Example: Federal government required airbags in all vehicles, even though states approved other safety measures, setting a national standard. Compliance with Statutes: evidence of reasonable care, although not always the standard. Example (R3 §16): Linda drove at 50 miles per hour, even though the speed limit was 55 miles per hour. A boy darted into the road and she hits him. He argues that had she been going 40 miles per hour, she would've been able to stop and prevent hitting him. Because the weather was fine and there weren't any special circumstances that would've suggested a special danger, the court would be justified in ruling she was not negligent as a matter of law. Non-Example: Hotels guests were injured in a hotel fire. They sued the hotel for being negligent by not installing fire alarms in the hotel rooms. The hotel argued that they were in compliance with state fire codes that did not require them. The court held that compliance with statute was not a complete defense to tort claims. Although a statute can set the floor for care, it is not conclusive evidence. Some circumstances may require more care. Miller v. Warren, West Virginia 1990.

DUTY BY CONTRACT

Promises normally don't create a tort liability, unless they create a separate duty distinct from breach of contract. Example #1: Two parties owned a boat together. Deas said he would purchase the insurance but never did and the boat was wrecked. Thorne sued for damages. The court held that a voluntary promise did not import a duty. Thorne v. Deas, New York 1809. Example #2: Elderly woman had a special monitor that she could use to summon emergency services. She did so, but the dispatcher sent emergency services to the wrong address. As a result, the woman sustained injuries, lost consciousness, and eventually died. The son sued the monitor company for negligence. The court held that the company could not be held liable since the duty was created by contract, not independently. Spengler v. ADT Security Services, Inc., 6th Circuit 2007. Promises that induce reliance create a duty (similar to special relationships) Example: Woman who noticed that there were police officers who controlled traffic on the walk to her son's school let her son go to school unattended thinking he'd be safe. On that particular day, the officer who performed traffic control called in sick and no replacement was sent, even though that was in the policy/protocol. Her son was injured. The woman sued. The court held that the actions of the police induced the woman's reliance and created a duty. A special relationship was created when the police identified a specific class of people they would protect within a certain context. Florence v. Goldberg, New York 1978. Non-Example: Woman was taken by a man from a drugstore parking lot. Two witnesses saw the incident and chased the vehicle until they came across a cop they could notify and provide information to. The cop promised to call in the details of the crime but never did. The woman was beat and sexually assaulted in the meantime. The court held that a promise made to a third-party could not induce reliance by the victim to create duty because the victim had no direct contact with police and no reason to believe they would assist her. Kircher v. City of Jameston, New York 1989. Contracts can create duty when the failure to perform creates greater risk. Example: Maintenance company was contracted by a hospital to maintain its facility. A wall-mounted fan fell on someone at the hospital. The plaintiff sued the maintenance company. The court held that a duty could be imported from a contract when it created a riskier setting for the promise. Here, the plaintiff might not have been harmed if the hospital maintained its own facilities. Palka v. Servicemaster Management Services Corp., New York 1994. Non-Example: City hired a contractor to install traffic lights. The contractor hired a sub, who hired another sub. After two years, the lights still weren't installed and then an accident occurred. The plaintiff sued the contractors. The court held that there was no duty when the risks were appreciably the same before and after the contract. Paz v. State of California, California 2000.

Proving Causation

Requires proof of very specific acts of negligence, but the hypotheticals demanded by the but-for test can only be applied to specific acts. Burden shifting in indivisible injury cases. Example: Two men out hunting shoot another person they were unaware was in the direction they shot. The plaintiff was injured by one bullet, but both are found liable. The court imposes liability on both, unless either could prove that he was not the cause. Summers v. Tice, California 1948. Note: Dobbs says they "despoil" the evidence by acting simultaneously and casting shadow on the causation factor. Non-Example: One or more truckers spilled hazardous substance when making deliveries. The state environmental agency proved one of them did and tried to impose liability on all seven. The court held Summer v. Tice didn't apply with numerous actors unless it could be shown their conduct resulted in quantitatively similar risks. State v. CTL Distribution, Florida 1998. Pre-existing conditions Causal apportionment, only liable for making matters worse. Example: Boy slipped off a bridge and was falling into a river where he would've been killed. As he's falling, he grabs onto an electrical wire that was uninsulated and is electrocuted. The electric company is only liable for value of the boy's life and prospects at the moment of electrocution. Dillon v. Twin State Gas & Electric Co., New Hampshire 1932. Lost Opportunity (usually physician-patient cases) Recovery is proportional to damages attributed to the defendant's negligence. Example #1: Hospital misdiagnosed a spinal cord injury that resulted in residual paralysis. Recovery is proportional to damages attributed to the defendant's negligence. Lord v. Lovette, New Hampshire 2001. Example #2: A mass was found in woman via x-ray but the doctor didn't follow-up. A few months later she found out that she had advanced cancer that metastasized. By not following the standard of care, the doctor diminished her chance of survival, although it was unknown by how much. Loss doesn't have to be substantial, because often its unquantifiable, there just has to be a probability the negligence affected her chances of survival. Alexander v. Schneid, Indiana 2000.

Risk-Utility/BPL (Proving Breach)

Risk-Utility Balancing:R-U evaluates breach by using economics • B = Burden of Adequate Precaution • P = Probability of Harm (Foreseeability) • L = Gravity of Injury (Severity/Seriousness of Risk) B < P X L = liability B > P X L = no liability Example: A boat carrying cargo went adrift from its mooring and got a leak from banging against the tug. The boat sunk and the cargo was lost. No one was on the boat at the time. Court said that because of weather and war conditions, it was likely something could happen and while someone could not be on the boat at all times (such as to take a break), that it was unattended for nearly 24 hours was too long. United States v. Carroll Towing Co., 2nd Circuit 1947. Example: See also Bernier. **Note: similarity to standard used to evaluate duty in attractive nuisance.

Open and Obvious Danger under Comparative Fault

Some traditional duty rules like "open and obvious danger" are no longer necessary under comparative fault. Example: A guest dived into a pool and hit his head, leading to hospitalization and temporary paralysis. He sued, arguing the pool was missing markings to indicate the shallow and deep ends of the pool. The guest admitted that he knew which end was shallow and was purposefully diving into the pool to try and avoid the entire shallow end. The court held that when there is an open and obvious danger, the defendant could assume the plaintiff would himself exercise reasonable care to avoid it. O'Sullivan v. Shaw, Massachusetts 2000.

WRONGFUL DEATH

Survivor Statutes Wrongful Death Survival Statutes • Statutory recovery for compensatory and punitive recovery of damages before death • Recovery for estate (can be used to pay off debts, etc.) • Claims can survive the plaintiff's or defendant's deaths Example: Man was killed by drunk driver. He had a daughter, but she died. Her mother, who was not his spouse, brought suit to recover on behalf of her daughter. The court held that the mother could not be considered an heir of the daughter, whether she was a "dependent" required a factual inquiry, and she could pursue a claim for her daughter. Chavez v. Carpenter, California 2001. Wrongful Death • Statutory authorization for pecuniary damages (i.e. lifetime earnings with maintenance deductions, sometimes allows loss of consortium) • Payments are made directly to beneficiaries who the action is meant to compensate. Example: Woman died in hospital after being put in a regular room even though she was in critical condition. Her children brought suit for wrongful death. The court held that Wrongful Death Act allowed recovery against a tortfeasor, the compensation could be for economic and non-economic loss, and that surviving children were eligible if there was no surviving spouse. Weigel v. Lee, North Dakota 2008. Defenses to Survivor Statutes/Wrongful Death • Contributory Negligence • Assumption of the Risk 9/11 Compensation Fund (Torts-Lite) • Legislative authorization for compensation for injuries and deaths related to the 9/11 terrorist attacks • Payments made directly to beneficiaries inclusive of pecuniary (i.e. projected lifetime earnings) and pain & suffering ($250K/$100K), less the collateral offset (i.e. life insurance) Critique: The system furthered the economic differentials that exist between various social groups/classes (e.g. men got more than women). But it also allowed for quicker payouts, increased predictability (e.g. NY times published chart that identified how to calculate award), and was "victim friendly." Wrongful Death Alternatives • 20x earnings for the jurisdiction (China), $2M flat rate (Posner), $250K living memorial (Florida), "Social Security" (Israel), X# camels based on religious affiliation/gender (Iran).

Landowner's Duty

The landowner's duty can change for each new circumstance in a series of transactionally related events. Example: Man purchased a ticket for the train and was jumped by two unknown males while waiting for his train. He eventually ended up on the train tracks where the attackers continued to beat him. As he was laid out over the tracks, a train approached. When the train operator saw a shoe and leg, she tried to stop the train. But the man was hit and sued the train company for negligent security and operation. The court held that sometimes trespassers are not foreseeable and therefore the duty is only not to be willful or wanton. But once there is reasonable foreseeability, the duty is for reasonable care, such as when the train operator saw the man. Gladon v. Greater Cleveland Reg. Transit Authority, Ohio 1996. Traditional rules specialized duty for landowners, but now the standard is reasonable care. Example #1: California led standard with Rowland v. Christian, California 1968, discarding the practice of making the standard of care turn on the plaintiff. Example #2: Teenage boy was electrocuted after crawling through a hole in the fence that was part of a city park. The court held that the only duty that was owed was reasonable care under the circumstances, which allows the jury to account for all factors, including the burden of prevention, the foreseeability, etc. Scurti v. City of New York, New York 1976. **Note: When private land is used for public recreation, no duty of care is owed by the landowner. Plus, flagrant trespassers are only owed no willful or wanton conduct.

DUTIES OF MEDICAL AND OTHER PROFESSIONALS

The medical standard does not rely on the reasonable and prudent person, instead it requires specialized care based on custom and medical specialty. Requires expert medical testimony to establish the medical standard of care. Example: Woman had surgery on her larynx. As a result of the doctor's approach, she consequently experienced paralysis of her vocal cords. She sued him, arguing the approach he used was not the standard. During trial, she had another doctor testify about how he would have performed the surgery differently. During cross examination the defense asked about how the surgery was being taught in medical school, but the plaintiff's expert said he could only attest to his own personal experience. The court held the medical standard of care is by expert testimony and that personal preference was not a standard. Walski v. Tiesenga, Illinois 1978. Standards are based on specialty, rather than locality. Example: A baby was permanently injured during delivery, the parents sued for malpractice. The parents argued that the national standard for the same situation that was presented during the baby's birth would've called for a c-section. The doctor argued that he performed the surgery based on the regional standard. The court held that because of advancements in technology and travel, doctors should perform standards based on their specialty, rather than locality. Vergara v. Doan, Indiana 1992. **Note: Arizona has a modified locality, requiring the same standard for the same class, with locality as a factor. Policy Rationale: Rural areas might end up with a lower standard and the code of silence amongst professionals might make it difficult to find an expert to testify to the customs of the community/region.

NEGLIGENCE PER SE = factual question of negligence in itself (§14)

Threshold: • Statute makes conduct illegal but doesn't specify civil liability. Example: Statute that sets speed limits that are accompanied by criminal penalties, but nothing about the liability of someone getting in a crash and injuring someone because of speeding. NPS is a discretionary decision by the courts, not required. Elements: Statute must clearly define the required standard of conduct. Example: Buggy didn't have lights, even though there was a statute saying anything with wheels had to use lights. The omission was considered negligence in itself because of the statute. Martin v. Herzog, New York 1920. Statute intended to prevent type of harm. Example: Child was killed while trespassing at the local landfill, which was not blocked off, as required by state law. Family of decent argued negligence per se. Fenced off landfills were meant to "[protect] human health and the environment..." which the court interpreted to include protection from falling/death/etc. Dissent argued that the elements must also satisfy the intent of the statute. O'Guinn v. Bingham County, Idaho 2005. Plaintiff must be in class of persons statute meant to protect. If it doesn't create a duty for an identifiable class, just public at-large ≠ NPS Replaces breach and duty for traditional negligence, leaving harm, actual cause, and scope of liability for the jury to decide. Policy reason for NPS: awkward for court to say something's reasonable that the legislature already found unreasonable. (§14, comment c)

CONTRIBUTORY/COMPARATIVE FAULT

Traditional Contributory Negligence = All-or-nothing (e.g. AL, NC, MD, VA, DC) • Any failure by plaintiff to use reasonable care for own safety barred recovery. Example: Man obstructed one side of the road, leaving free passage on the other side. A traveler going at full speed at night, hit the obstruction, and was injured. He sued. The court held that a defendant can't be found liable when the plaintiff does not exercise reasonable care under the circumstances. One person's fault does not dispense with another's use of ordinary care. Butterfield v. Forrester, England 1809. Pure Comparative Fault = apportionment (e.g. New York) • Recovery diminished in proportion to the plaintiff's negligence. Modified Comparative Fault (e.g. Wisconsin) • Same recovery as pure c.f., but only when the plaintiff's negligence is less than the person's that recovery is being sought against. Comparative Fault is a fact determination by the jury that is influenced by many factors. Example #1: Officer drove his police car into an intersection against the red light, then activated his overhead lights and maybe his siren. The police car was hit by another driver. The driver suffered injuries and sued. Jury assigned 100% of fault to the police officer and considered factors, like: 1) conduct resulted from an awareness of the danger, 2) the magnitude of the risk created, 3) purpose of the actor, 4) capacities of the actor, and 5) extenuating circumstances. Crownover v. City of Shreveport, Louisiana 2008. Example #2: Restatement (Third) apportions fault based on the following factors: 1) nature of risk, 2) awareness or indifference with respect to the risk, 3) intent with respect to harm created, and 4) proximate cause. **Note: Mental-state factors can also be considered, even though not an element. Comparative Fault can still yield all-or-nothing results in narrow circumstances: • No plaintiff negligence • Plaintiff negligence not the actual cause of injury • Plaintiff negligence not the proximate cause Comparative Fault Limitations (Policy and Justice) • Patients/Hospitals Example: Decedent hanged herself while at state hospital. The court held that contributory negligence could not be argued as a defense, otherwise it would render the duty of a hospital to act reasonably in protecting the patient against self-harm meaningless. McNamara v. Honeyman, Massachusetts 1989. • Students/Schools Example: 26-year old teacher had a sexual relationship with a 13-year old student. Parents sued the school's principal and district were negligent. The district argued that the 13-year old had a duty to protect herself from sexual abuse, instead she consented to the relationship. The court held schools have a special relationship with student and a duty to protect them from anticipated dangers. As a matter of public policy, children do not have a duty to protect themselves from sexual abuse by their teachers and they lack the capacity to consent to sexual relationship. Christensen v. Royal School District No. 160, Washington 2005. ** Note: Sexual abuse cases can be very difficult because you don't want to further traumatize the victim and have them testify in the civil process. • Property Owners Example: Railway was adjacent to the plaintiff's property. Plaintiff stacked his flax only 75-feet from the railway. The railway's sparks ignited and caused the flax to go up in flames. The railways argued contributory negligence on the part of the landowner for stacking his flax so close to the railway. The court held that an owner's property rights are not limited by the wrongful use of the land by another, instead the land owner is only responsible for using his land properly. Leroy Fibre Co. v. Chicago, Milwaukee & St. Paul Railway Co., Supreme Court 1914. **Note: property owner not responsible to shape conduct by other wrongdoers can extend to rape victims. Contributory Negligence Exceptions • The Rescue Doctrine Example: Woman went to open garage door that her friend was trapped under. When she activated the garage door, it ignited a fire and burned her. She sued her friend. The friend argued she was contributorily negligent. The court held that the rescue doctrine barred contributory negligence against the woman since she did not act recklessly in her attempt to rescue her friend from imminent danger. Ouellette v. Carde, Rhode Island 1992. • Last Clear Chance Doctrine Example: Man leaves his donkey in the road eating grass. The defendant runs over the animal with his wagon. The man sues the defendant who raises a contributory negligence defense. The court held that if the defendant discovered or should have discovered the plaintiff's peril and could have reasonably avoided it, then the plaintiff's negligence was not a bar to recovery. Davies v. Mann, England 1842. ASSUMPTION OF THE RISK • Express/Explicit • Implied Express/Explicit = All-or-nothing (e.g. Exculpatory Clauses) • Contractual limitation on liability that creates absolute bar to recovery Example: Woman diagnosed with cancer decided to use alternative treatment which she understood offered no guarantees. She died and her family sued on her behalf. On appeal, the court held that when the plaintiff expressly assumes the risk, even without a written document, that recovery is barred. Boyle v. Revici, 2nd Circuit 1992. • Heavily disfavored and subjected to close scrutiny, especially if it violates public policy, such as giving up rights without anything in return (no consideration because party seeking exculpation has decisive advantage in bargaining strength) Example: Man was admitted to the hospital on the condition that he sign a release to absolve the hospital of liability for any negligence by its employees. The court held that adequate consideration is required in order for an individual to assume the risk. In circumstances where an individual seeks essential services, such as emergency medical treatment, there is no consideration. Tunkl v. Regents of University of California, California 1963. **Note: AOR for intentional and reckless conduct is against public policy. • Scope of exculpation must have specific language regarding liability, if general negligence is not noted then the court can assume reasonable care (except for inherent dangers) Example: Woman purchased ATV and then took an optional safety course. The safety course required her to sign a waiver of liability before taking the class. She ended up getting hurt after her ATV hit a large rock obstructed by tall grass. She sued for negligence. The court held that although there were no public policy issues present, that the contract did not omit general negligence with "conspicuously and unequivocally expressed." It then evaluated whether risks the course presented were inherent or avoidable. Moore v. Hartley Motors, Alaska 2001. **Note: Reasonable care standard was created to reduce risk in general. Waivers would allow more risk. There is more incentive to use reasonable care if the courts will hold you liable. Implied = Awareness of a risk and voluntary undertaking (e.g. Prosser's Jaywalker) • Primary = defendant owes no duty (e.g. inherent risks like in sports) Example: Student played in a pre-season baseball game when the pitcher hit him in the head. The student was in pain but his manager told him to run to first base. When he landed on second, a player from the other team yelled for a pinch hitter. The student went to the dugout. He had unspecified injuries. The student sued the other school for negligence. The court held that the student gave primary assumption of the risk due to the inherent nature of the activity he was engaged in, meaning the defendant owed no duty. Avila v. Citrus Community College District, California 2006. • Secondary = comparative fault Example: Housekeeper tripped over some items left on the stairs and sued her employer for an unsafe work environment. The employer said her claim was barred because she assumed the risk. The court held that assumption of the risk is to be treated as comparative fault, therefore it is not a complete defense. Betts v. Crawford, Wyoming 1998.

Duties of Carriers, Host-Drivers, and Landowners

Traditional Duty Rules No Duty- Open and Obvious Dangers: O'Sullivan v. Shaw, Massachusetts 2000. Duty Not to be Willful/Wanton Guest Statutes: Ala. Code § 32-1-2. Trespassers/Licensees: Gladon v. Greater Cleveland Reg. Transit Authority, Ohio 1996. Reasonable Care Invitees High Degree of Care Common Carriers: Doser v. Interstate Power Co., Iowa 1970. Attractive Nuisance: Bennett v. Stanley, Ohio 2001. Strict Liability **Modern Duty Rule: Reasonable Care EXCEPT Children/Flagrant Trespassers (R3 §§ 51-2).

DUTIES OF FAMILY MEMBERS

Traditional Rule: No liability for family members, parents had immunity. Example: Three-year old child was locked up in a cabinet where she asphyxiated and died. The plaintiff sued for negligence. The court held that absent an intentional tort, parents can exercise discretion and that even severe conduct is protected by the parent-child immunity. Commerce Bank v. Augsburger, Illinois 1997. Non-Example: Foster child had a leg caught up in a tractor wheel while riding the "handle bars" of a tractor driven by his foster dad. The foster child sued and sought to recover from insurance. The court held that the immunity should be abrogated except in two special instances: 1) in parental exercises of authority, and 2) in ordinary parental discretion. Modern Rule: Parents must exercise reasonable care. Example: Father let his son use a hammer and nails. The nail cartridge was explosive and injured the son. The son sued. The court held that a parent could be held liable when the duty was created by the parent-child relationship, but rather owed to all persons. Hoppe v. Hoppe, New York 2001.

LIMITING AND EXPANDING THE DUTY OF CARE- traditional vs. modern

Traditional: Court protects defendant from liability despite risky behavior with limited/no duty rules and immunity, shift procedural burden on defendant to raise duty issue. Modern: Reasonable care is the preference.

Intentional Physical Harms = Objective (Reasonable Person Tests)

Umbrella Rule = If intent to create harm exists, there should be some form of liability. Liability even if the person is: -A minor, unless no knowledge/capacity of offensive/harmful consequences. -Mentally deficient, but must find intention of offensive/harmful consequences

VICARIOUS LIABILITY

Vicarious liability is not negligence or strict liability, it's somewhere in between • Employer is liable for its employee's negligent, willful, malicious or even criminal acts that occur during the employee's scope of employment. Example: Cook accidentally threw a knife in someone's eye causing blindness. The employer was held liable because the cook injured the plaintiff in the scope of employment and the cook was likely insolvent, but the employer had insurance that could help compensate the plaintiff. Riviello v. Waldron, New York 1979. • Scope of employment is defined as anything the employer requires for his benefit (e.g. business trip) or for the employer's benefit, borrowing from the master-servant doctrine Example: Insurance salesman went to an industry event. After the day's events were over he went to a bar to meet up with colleagues. Upon his return the hotel, he hit someone. The court held the employer was held liable since the employee was on a work trip and benefitted from the enterprise. Plus, insurance was readily available. Fruit v. Schreiner, Alaska 1972. **Note: Some jurisdictions clarify by asking if the employee was actually at work and then if his specific conduct was serving the employer. • Liable for intentional torts when the act is naturally incident to the business of the master Example: Intoxicated nurse's aide slapped an elderly resident suffering from Alzheimer's and known to be combative. The court held that the employer was liable since the act was incident to business, occurred while the employee was on duty, and out of impulse that arose from the attempt to complete the master's business. Rodebush v. Oklahoma Nursing Homes, Ltd., Oklahoma 1993. • Liability is a factual inquiry for the jury Example #1: Counselor sexually abused a girl in a group home. The court held that the jury should decide on vicarious liability. Fahrendorff v. North Homes, Inc., Minnesota 1999. Example (Traditional Rule Variation): If the counselor was motivated by his own desires, rather than the desire to serve his employer, then the employer was not liable. Example (Modern Rule Variation): If the risk was foreseeable and the employee was given an opportunity to engage in the risky behavior, the employer is liable. -Employers can be held liable for independent contractors if the duty is nondelegable, and the contractor didn't create a temporarily risky condition -Duty applies to employers for inherently dangerous activities and peculiar risks or through statutory requirements (e.g. door-to-door salesman with criminal record assaults a woman in her home or "scaffold law"). Policy Rationale: An employer's insurance will help assure compensation for injuries, as well as prevent injuries. It can also facilitate deterrence by forcing employer's to be more cautious about hires, as well as provide adequate supervision. There is also an equitable spreading of losses caused by an enterprise. **Note: Calabresi's enterprise liability theory argues that the price of a particular product or service should reflect its total costs, including accident costs. If it does, then the market will tend to favor the cheaper (and safer) product or service.

NEGLIGENCE

non-accidents that reasonable person would've foreseen/avoided (§3) Elements: • Duty or obligation • Breach • Actual harm • Actual cause • Proximate cause (scope of liability)

DAMAGES

• Compensatory • Punitive Compensatory • Often includes: lost wages/earning capacity, medical expenses, pain and suffering, specific incident harms, value of property, future damages if they are reasonably certain to occur. Example: Two teenage boys were injured by a sagging power line. The burns significantly impacted their ability to work and sued the government. The plaintiffs included testimony by local employers and vocational rehab specialists who testified as to what someone with the teenage boys' skills could make over their lifetime in the community. They recovered $1.6M and $1.2M for past and future medical expenses, loss of earnings, and pain and suffering. Martin v. United States, Arizona 1979. • Hedonic damages compensate surviving family for the loss of enjoyment of life in instances of death Critique: Jury awards lack consistency because there are so many factors to consider. Punitive • Serve a deterrence function for willful and malicious actions. Example: Man worked in industry that used asbestos product that was advertised as non-toxic, despite its knowledge that asbestos was a danger. He developed mesothelioma and sued. The jury awarded $1.8M in compensatory and $31M in punitive damages. Owens-Corning Fiberglass Corp. v. Ballard, Florida 1999. • Usually limited to 3x to 10x the compensatory damages Critique: Punitive damages are often controversial because there is a question as to whether they are supposed to help compensate victims for harm suffered or deter defendants for harm caused. Some argue that if the goal is deterrence, that the money should go to others (like state-managed funds). Damage Caps • Many states have caps on punitive damages to control excessive verdicts, but this often creates a ballooning effect, where the jury then awards larger compensatory damages • Some states allow special legislative action to allow compensation beyond the cap. Example: Special resolution for man who was injured while riding on the side of the road and fell into an uncovered culvert that the county was aware needed to be covered. Although a third-party was responsible for the culvert, the county was ultimately held liable because it didn't provide appropriate enforcement. The man was a paraplegic and the $200,000 cap in Florida was not sufficient to help cover his medical costs, resulting in the legislative authorization for amounts in excess of the cap for Diagi.

EMOTIONAL HARM (§45)

• Parasitic • Intentional Infliction of Emotional Distress • Negligent Infliction of Emotional Distress/Harm Parasitic • Emotional harm accompanying a physical tort claim Intentional Infliction of Emotional Distress: Recovery for extreme and outrageous conduct that causes severe emotional disturbance (§46) • Extreme and outrageous behavior goes beyond the bounds of human decency Example: Supervisor regularly used harsh and vulgar language with employees. He would physically charge at employees but stop short of physically contacting them, etc. The court held that his ongoing acts were considered extreme and outrageous, making the workplace intolerable. The severity and regularity made his conduct extreme and outrageous. GTE Southwest, Inc. v. Bruce, Texas 1999. **Note: Classifying conduct as extreme or outrageous is fact-sensitive and takes into account: 1) repetitiveness, 2) abuse of power, and 3) conduct directed at a person known to be especially vulnerable. Non-Example: Boss uses woman's pregnancy as excuse to conduct a performance evaluation. He tells her that her territory is being eliminated and she can transfer. She claims emotion distress, but the conduct is not extreme or outrageous • Requires intent or negligence • Severity occurs when a reasonable person couldn't adequately cope and must be supported by expert evidence Example: Cement truck driver collided with a car that killed the 16-year old driver. When he viewed her dead body, he claimed emotional distress and sued her family. The court held that the claim should be evaluated using the standard negligence elements and that the emotional distress had to be severe, meaning a reasonable person wouldn't be able to cope under similar circumstances as proven through expert medical or scientific proof. Camper v. Minor, Tennessee 1996. Negligent Infliction of Emotional Distress/Harm • Direct Victim • Bystander Direct Victim (Traditional) • No recovery unless a physical injury was suffered as a result of negligence. Example: Woman was on the street when a team of horses almost hit her. They didn't, but she was so shocked that she suffered a miscarriage. The court imposed the impact rule and held that she had to have been a direct victim of the negligent driving of the horses, with a physical injury, in order to recover. Shock or fright was not reason for stand-alone recovery. Mitchell v. Rochester Railway Co., New York 1896. **Note: This is similar to standard negligence, but recovery for emotional damages would be highly subjective, the evidence would need to show actual cause. Policy Rationale: A limit needed to be created, otherwise the courts would be open to a floodgate of claims without a subjective standard. Bystander (Modern) (§48) • Traditional: Recovery only in cases where the claimant fears for his own physical safety and is in the "Zone of Danger" Example: Railroad employee was driving the train when he collided with a car that was stuck on the railroad tracks. After the collision, he went to the aid of the two passengers in the vehicle, one of whom was dead on impact. He sued the railway company for emotional distress, but testified he was distraught about the victims, not himself. The court held that a third-party who witnesses the injuries of another is barred from recovery unless he also feared his safety. Grube v. Union Pacific Railroad, Kansas 1994. • Modern: Recovery allowed for those who are nearby, contemporaneously see the accident, experience emotional distress, and are close or related (depending on the jurisdiction) Non-Example #1: A woman and her younger sister saw a car hit another young girl, resulting in her death. The woman and minor sister sued the driver of the car for emotional distress. The court held that she could not recover since she was not related. Dillon v. Legg, California 1968. **Note: Dillon test emphasizes that the tortfeasor could foresee the emotional harm to third-parties and only evaluates the "closeness of the relationship" between the decedent and plaintiff. Non-Example #2: Woman hears her son was in a car accident and then rushed to the scene. She found her son's bloody body and thought he was dead. But she didn't see the actual accident. She sued for emotional distress. The court held that since she did not witness the accident, she could not recover. Thing v. La Chusa, California 1989. **Note: Thing test requires relation to victim by blood or marriage. Arizona's bystander test requires: 1) physical manifestation of emotional harm, 2) close relationship (Dillon test), and 3) "Zone of Danger" (Grube test) Example: Man was working with a jack hammer when he struck a power line and turned into a fireball. His co-worker put out the fire and later was unable to work. He sued his employer saying the emotional distress caused him an inability to work. The court held that it didn't meet the standard, since their employee-employee relationship was not considered a close relationship. Hislop case.

STRICT PRODUCTS LIABILITY (§402A)

• Strictly liable for physical injuries to persons or property • Privity is abolished • "Defective" products • Consumer's reasonable expectations define defective Strict Products Liability Elements • Product was in fact defective or unreasonably dangerous for its intended use. Example: Plaintiff broke tooth on a pecan shell while eating some chocolate pecan candy. The court held that the consumer's reasonable expectation is the test for defectiveness. Jackson v. Nestle-Beich, Inc., Illinois 1992. • Defect existed when the product left the manufacturer's control. Example: Coke bottle exploded while a waitress was holding it. She presented expert testimony about the likely causes of bottle failure. Two of the three were proved to not have occurred, the third used circumstantial evidence to prove that it could have been the cause of the defective product. The court held that in strict liability claims, the plaintiff is not required to prove specifically what defect caused the incident, but can rely on circumstantial evidence about the probable cause. Lee v. Crookston Coca-Cola Bottling Co., Minnesota 1971. • Defect was the proximate cause SPL Claims • Manufacturing Defects • Design Defects • Information Defects Manufacturing Defects Example: see Lee v. Crookston Coca-Cola Bottling Co. Design • Consumer Expectation Test Example: Passengers in an off-road jeep tour got into a roll-over accident (front to back). Two died, but the one survivor was a paraplegic. She sued for defective design. The court held that product liability could be imposed if the product failed to perform how an ordinary consumer expected when used in a reasonably foreseeable manner. Because the jeep manufacturer designed the car for side to roll-overs, not front to back, it was not liable. Leichtamer v. American Motors Co., Ohio 1981. **Note: Because consumer knowledge varies, their expectation can be proved through plaintiff's own expectations, jury's knowledge about safety, or expert testimony. Also, if the consumer expectations are lower than reasonable care, then the case is one of negligence • Risk-Utility Test/Reasonable Alternative Design (RAD) Example: A driver accidentally backed down a boat ramp and caused her car to flood. The passenger was able to escape, but the driver wasn't. The passenger heard the driver yelling for help saying she could not get her seatbelt undone. The woman's family sued, arguing defective design. They made their case by suggesting that the seatbelt system did not respond properly in emergency situations. The car company argued that in addition to proving the defective design, the plaintiffs had to prove a safer alternative that was both economically and technologically feasible, without reducing the product's utility. The court held that the burden for providing the alternative design was on the plaintiff. Honda of America Mfg., Inc. v. Norman, Texas 2003. • R3 gets rid of the consumer expectation test, hindsight test, and burden shifting to prove non-negligence, instead preferring RAD. Information Example: Teenage boy was injured when his hand got caught in a meat grinder at work. The machine came with no warnings about a safeguard that could or should have been put in place. He sued. The defendant argued that the meat grinder was obviously dangerous, creating no duty. The court held that a duty to warn isn't obviated because a danger is clear, rather it serves to alert users of alternatives or ways to avoid the foreseeable risk. Liriano v. Hobart Corp., 2nd Circuit 1999. **Note: Actual cause is then shifted to the defendant to prove that the plaintiff would not have changed her conduct even with a warning. Policy Rationale: SPL might be good for consumers because it can facilitate deterrence (e.g. Dryer components initially $2 vs. $5 with liability cost resulting in $10 vs. $6). Consumers need to be able to trust their products will work as they are supposed to because most consumers don't have information about products. Finally, SPL promotes a sense of fairness or reciprocity for consumers because manufacturer's get a benefit from their product going into the market, consumers shouldn't have to bear the cost of the harms that result. Critique: May not need SPL because there are other types of incentives, such as the market, that will dictate the level of safety in products. SPL can be criticized because it creates a tiny insurance policy for the product, although it would probably be preferable for consumers to purchase first party insurance because it's cheaper.