Torts-Rahdert

Property Classifications

licensee= duty to warn of non-obvious risks (has merged with invitee) Invitee= Affirmative duty of ordinary care to prevent foreseeable harm. Trespass- Duty not to take wanton or reckless actions that would result in harm.

Restatement 402A (Second) for Products Liability

-Seller owes a duty NOT TO SELL A DEFECTIVE PRODUCT. chain of sellers which starts from the creator, can sue anyone in chain. -Sellers of used goods don't qualify here. Nor do people who aren't in the business of selling. Like a person selling on ebay or a person who provides a service is not a seller. Has to be a seller of products. Building not a product. Breach is if you introduce unreasonably dangerous product to user. Still need causation and leaving person your suing's hand, unchanged. Defective product extends to intended use and Reasonably foreseeable use of product. LIke screwdriver for prying shit open is a foreseeable use even if not intended use. -No contributory negligence defense under 402A. No position on comparative negligence. No liability for obvious danger Types of defects under this. Mismanufacture- Fell beyond manufacturer's quality control standard. Design defect: Could have been put together better. Meets its own standard but something is wrong with its own standard. 3) Failure to warn: When using this, wear goggles. Inadequate warning inadequate instruction.

Proximate cause standards

1) Direct Consequences: it's direct because it has a short causal chain, no other cause is present, not that much time has elapsed, close in space (Polemis dropping plank example) 2) Foreseeability of type of harm: Wagon Mound. 3) Foreseeability of plaintiff. Think of it in terms of Who would I see as the likely individuals who could be harmed by my actions

Tarasoff factors

1) Foreseeability of harm 2) degree of certainty that harm will happen. 3)closeness of conduct and harm in causal relationship. 4) Moral blame of D's conduct 5) Policy of preventing future harm 6) relative burden. 7) Consequence to community on imposing burden. 8) availability of insurance

Battery

1) Intentional 2) unconsented act that 2) causes harmful/offensive contact 3) Don't need to foresee harm, just need the offensive contact. Substantial certainty of contact is enough, and can extend to physical extensions of the person (plate) or indirect contact (pill ingestion). Crowded world exception.

Munn factors for Duty

1) Relationship between P and D. 2) Nature of the Risk. 3) Did D have opportunity to provide care. 4) Public interest in imposing the duty.

Attractive nuisance

1) reason to know children likely to trespass 2) Unreasonable risk 3) wouldn't realize risk, 4) burden vs. danger 5) person failed to exercise reasonable care in light of this.

Proof of Negligence (RIL + Circumstantial)

1) thing doesn't ordinarily happen in absence of negligence. 2) instrumentality in exclusive control of D. 3) No interference from P with instrumentality. Circumstantial- think Banana peel sitting for a long time

Third Restatement on Product's liability

3RST Retreat from Strict Products Liability For mismanufacture, allows imputation of knowledge b/c these cases are like negligence (RIL) For design defects, applies negligence standard - was it reasonable for manufacturer to allow that design? For failure to warn, State of the Art defense instead of imputing knowledge to manufacturer. So manufacturer. only liable for risks which were foreseeable.

Duty

Action/Inaction, special relationship, property classifications, Tarasoff factors, contractual relationships, Munn factors, and Kubert factors

Negligence (Breach of Duty)

B<P*L, ORRP-Reasonable farmer, reasonably prudent pilot, reasonably prudent blind person, reasonably prudent lawyer. Can be molded to RP kid, unless engaged in adult/dangerous activities. Supposed to be objective standard that doesn't take into account own person's deficiencies except in other circumstances. Doctors: Don't have to be same kind of doctor to testify, but doctor has to behave like reasonably prudent doctor (average member in community). Lack of certification, not negligence per se. Constructive knowledge that you have aids and not disclosing it is negligent or reckless. -Custom can inform standard of care, but not be all end all.

Daly v. General Motors

Car accident because he was drunk. Ejected from the car. If he had worn a seatbelt, he would have survived. His estate claimed defective door locking and closing mechanism design defect. Issue: Can D raise evidence of P's negligence? Ruling: Apportionment of Li is superior to strict product liability. Court says there is a common means of comparison and apportionment of responsibility. What is being compared is degrees of causation. D's defect caused this much causation vs. this much causation. Dissent: Dangerous step bc the moment you let in issues regarding plaintiff's negligence, you are pushing a whole thing of negligent formulation, it'll shift toward focusing on defendant's conduct. Note: Dissent was right. 3rd Restatement says that Defendants in a products liability action should have a defense of P's negligent conduct.

Daubert

Causal testimony from expert must be scientific and relevant. Scientific method, has it been tested, has it been peer reviewed and published? General acceptance of theory in community can have a bearing, but not be all end all. Relevant: Will assist the trier of fact to understand or determine a fact in issue. Old technique resistant to scientific innovation now it makes judge the gatekeeper.

402A comments J and K on warning

Comment J: The seller may reasonably assume that those with common allergies, like eggs or strawberries will be aware of them, and he is not required to warn against them. If however, the product contains an ingredient which a substantial number are allergic, and the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product, the seller is required to give warning against it, if he has knowledge, or SHOULD HAVE KNOWN. Comment K (unavoidably unsafe products): Some products are incapable of being made safe for their intended and ordinary use. Like drugs. But we need this shit. Still needs to be properly prepared with adequate directions is not unreasonably dangerous or defective. Or just new drugs and stuff. The seller WITH THE QUALIFICATION THAT THEY ARE PROPERLY PREPARED AND MARKETED AND ADEQUATE WARNING GIVEN is not to be held to strict liability for unfortunate consequences attending their use just bc he gives a useful product attended with a known and reasonable risk.

3rd Restatement on Product Liability

Defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design and the omission of the alternative design renders the product not reasonably safe. Defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings . . . .

Patient Rule

Doctor is negligent if doesn't disclose 1) material risks unknown to the patient 2)that would lead a reasonable patient to contemplate rejecting in favor of another procedure. 3) patient suffers harm. Replete with exceptions.

Damages

Economic/Non-economic damages are provided. Court has power to add or subtract damages award an award. Factors that will lead SC to strike down punitive awards: 1) Degree of reprehenisibility of underlying conduct. (Does this effect egregious physical harm?) 2) Ratio of punitive and compensatory damages. (double digit ratio of punitive is constitutionally suspect. 3) Comparative to criminal or civil penalties.

Arguments for and against strict product liability

FOR: 1) Safety/Deterrence. 2) Puts pressure on manufacturers. 3) Cost of business is spread because they can treat as incurred cost of price. 4) Difficulties of proof for plaintiffs. 5) Not in a position to prove defects. Consumer reliance; Buyer's are not in a position to examine for themselves if products are dangerous or not. Against: 1) Is it really deterring if you're gonna make manu strictly liable if B> P*L? Gonna let accidents happen, still cheaper. 2) Cost spreading still shift the cost on the victim 3) products liability litigation is expensive for P. 4) We want consumer choice about safety, since Consumers are risk takers. Convertibles

Berberian v. Lynn

Facts: Alzheimer patient was known to be physically violent toward staff. Patient tried to leave through fire exit. A nurse tried to help him, but then he hit her. Then she left to get help. Then P approached him to help him and he pushed her causing her to fall and fracture her leg. Ruling: Generally under restatement a reasonable person standard applies to a mentally deficient person. Doesn't generalize and adopt restatement, but in this case, knows a mentally disabled patient who does not have the capacity to control his or her conduct, does not owe his or her caregiver a duty of care. He was committed to prevent this very type of injury. Plaintiff could readily control her behavior to deal with the foreseeable harm-- her job included preventing him from injuring himself and others, and

Taser case (Adopts 3rd Restatement FTW Standard)

Facts: As part of the course all officers had to be exposed to the taser. He got a compression fracture in his spine as a result of the tase. Issue: Whether hindsight test should be applied to strict liability products claim alleging FTW as a defect. Hindsight v. Foresight claims. Ruling: Nature of a design defect case is fundamentally different than an FTW case. Thus while a manufacturing or design defect can be evaluated without reference to the conduct of the manufacturer, the giving of a warning cannot. Follow state of the art defense. They needed to know or should/could have known.

Kubert v. Best (Duty to remote sender)

Facts: Best is driving his car, responds to a text whilst crossing center line and knocks into husband and wife motorcycling, causing the two to each lose a leg. Question is whether person texting from a remote location to the drive can be liable to persons injured because driver was distracted. Ruling: A person sending text messages has a duty not to text someone who is driving if the texter knows or has special reason to know that the recipient will view the text while driving. Even if she sent texts requiring responses, not enough. -Court cites other restatement section, duty not to interfere with the driver's operations akin to a passenger distracting driver by saying "Hey, look over here!". Passenger can be liable if conduct unreasonably risks harm, because the passenger knows or has reason to know that the driver will in fact be distracted and drive negligently as a result of the passenger's action. Idea of foreseeability of risk.

Li v. Yellow Cab

Facts: Car accident with cab where P was only slightly negligent, but guy was way worse. Ruling: Court gets rid of contributory negligence, and adopts PURE comparative instead. Apportion responsibility between P and defendant. Pure comparative negligence: If 100k, and you're ⅓ and D is ⅔, you can get 66k. Hybrid: Can recover unless and until until P's negligence hits or is over 50%. Then a complete defense. ⅔ of states do hybrid approach. Notes: Juries will theoretically either assign % based on causality, or degrees of negligence. Usually whims though. P's will want to name more defendants. If they'll split the numbers up, they'll want to assign something to everybody. What will defendants try to do? Try to prove a case on another defendant. Shift it

Spur v. Del Webb

Facts: Cattle feedlot opens up in an agricultural area, Webb develops an area as a retirement community. Land cost less than near phoenix. Spur expands feedlot operations. Webb keeps expanding. Webb files complaint of public nuisance bc odors and flies. Ruling: Small nuisance is usually remedied by money damages. Difference between private and public nuisance is degree. Private is one or few people being affected, while public it must affect a considerable number of people or an entire community or neighborhood. It met statutory definition of public nuisance, bc of disease transmitting flies in a populous area. A business which is not per se a public nuisance may become one by being carried on a place where health comfort is affected. Injunction ordered: Spur must move. -The residential landowner may not have relief if he knowingly came into a neighborhood reserved for industrial or agricultural endeavors and has been damaged (Coming to the Nuisance). If it was just Del Webb himself, we'd make him move, but whole community here.

Escola v. Coke

Facts: Coke's driver delivered cases of Coke to restaurant. Plaintiff picked up the case and started unloading the bottles one at a time into the fridge. The fourth bottle exploded in her hand and cut her deeply. Bottle remains thrown out so not produced at trial. Ruling: Res Ipsa Loquitur test (See card): Traynor Concurrence significance: Court should not rely on RIL, but recognize S/L COA for defective products. Why? 1) We want safety/Deterrence. Puts pressure on manufacturers. 2) Cost of business is spread. Treat as incurred cost of price. 3) Difficulties of proof for plaintiffs. Not in a position to prove defects. 4) Consumer reliance; Buyer's are not in a position to examine for themselves if products are dangerous or not. 5) Already exists for food.

Kinsman Transit (Applies all tests)

Facts: Current carrying ice and debris in Buffalo. Dislodged boat from dock, damage to a number of barges+ bridges. Ruling: Court looks to all three factors and Carroll towing: Plaintiffs were foreseeable and general kind of harm is foreseeable. First asks it is direct consequence? Yes, then general type of harm, then extent of harm. Orbit of danger is everybody downstream. A defendant whose negligent conduct breaches a duty of care creating a risk of a foreseeable type of injury will be liable for all unexpected consequences, even if the total loss is out of proportion to the defendant's actual fault.

Vincent v. Lake Erie

Facts: D tied steamship to plaintiff's dock. Ship was at D's dock to unload cargo. While the cargo was being unloaded a storm started to build, which was too violent for Lake Erie to leave. D's steamship remained tied to P's dock. If the steamship had been untied it would have drifted to sea, but the storm threw the steamship into P's dock causing property damage. Ruling: A party acting under private necessity is liable for damages incurred to the property of others. Public policy interest in allowing the trespass, but ensuring the dock owner is compensated. Cheapest cost-avoider is the shipowner. How often these storms come up, availability of insurance.

Hymnowitz

Facts: DES case. Legislature created statute by reviving statute of limitations on DES claims, bc birth defects are latent. Ruling: How to apportion liability when they don't know who made their specific pill? Market Share theory using a national market for determining liability. National market not based on causation showing. Can't get out for that. A Defendant can only get out of liability be if it did not participate in the marketing of DES for pregnancy use. Apportion liability so as to correspond to the overall culpability of each defendant measure by the amount of risk of injury each defendant created to the public at large. Several liability, not joint and several. More D's you find, more money you get. Note: In contrast to Summers v. Tice Alternative liability quail case bc. DES defendants are not in any better position than P's to identify the manufacturer of the DES ingested. Won't aid fact finding. That's why this is several, not J+S.

Harris v. Jones

Facts: Employee for GM claimed supervisor was mimicking his stuttering after being aware that he had an impediment was sensitive and insecure because of it. Nervousness worsened. Ruling: Maryland adopts this tort which was somewhat new at the time. Adopts 4 factors of IIED with cause (not proximate). Court found it was intentional, that making fun of someone 30 times and getting others to make fun of is outrageous when you know his condition. But evidence for 3 and 4 was weak at best: He saw a physician for which pills were described, which was the same treatment he had been receiving for 6 years, intensity and duration of emotional distress isn't reflected in the evidence.

Vaughn v. Menlove

Facts: Fire ignited on D's land and spread causing damage to plaintiffs' buildings. D had built a hay rick near border of his property and had been told rick was likely to ignite. Instead he put a chimney through it as a precaution (which made it worse). and damages P's cottages. Ruling: The care taken by a prudent man has always been the rule laid down. Not best of his own judgment (he was stupid). We ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe. Objective standard. A reasonable person in Menlove's position would likely have recognized the danger of fire from having a chimney so close to his haystack, and would have taken more precautions than those taken by Menlove to minimize this risk.

Tincher

Facts: Gas fireplace used flexible tubing to get gas in. Legal History: Tension of unreasonably dangerous and liability with all possible care. Unreasonably dangerous was determined by a judge as a matter of law. Question goes to jury if product lacks any element to make it safe or contains one that makes it unsafe. Problem isDanger doesn't equal defect though is the problem. Danger is vague or outside the ordinary consumer's contemplation. PA was applying azzarello and 3rd restatement in the circuit Third restatement imposes burden on P's to prove Reasonable Alternative Design (RAD) exists. It limits the applicability of the cause of action to certain products as to which that sort of evidence is available. New products with no alternative design would be impossible to prove. Ruling: PA overruled azzarello. Wrong about immunizing jury from unreasonably dangerous. Court wants to stick to 402A.PA instead requires proof of either consumer expectation OR Risk-utility. But Court takes no position on burden being shifted. Usually Lies with P. But leave to lower courts to decide on a case by case basis.

Geopfert (Assumption of Risk)

Facts: Goepfert as well as others were celebrating homecoming at SDSU. Friends in a car, he was in the front seat. Goephart jumps out of car hits his head then dies. Ruling: Three Elements of Assumption of Risk: 1) Had actual or constructive knowledge of the risk. 2) appreciated its character and 3) voluntarily accepted the risk, with the time, knowledge, and experience to make an intelligent choice. Court here found that he had assumed the risk. 1) Constructed knowledge will be imputed if the risk is so plainly observable that anyone of competent faculties charged with knowledge of it. 2)- An individual will be held to have appreciated the danger if it was a risk that no adult person of average intelligence can deny. 3) Nobody forced him to jump.

Ybarra v. Spangard

Facts: Guy had an appendicitis operation was given anesthesia and became paralyzed afterwards. A million doctors/nurses handled him. Rahdert thinks someone must have dropped him. Ruling: Meets all three RIL criterion. Without the doctrine a patient who received permanent injuries would be entirely unable to recover unless the doctors and nurses in attendance voluntarily chose to disclose the identity of the negligent person. -Where a plaintiff receives unusual injuries while unconscious in the course of medical treatment all those defendants who had any control over his body of the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct. All liable.

Tarasoff (see factors for addtl)

Facts: Guy tells therapist he's going to kill girl. He reports it to police and they briefly detained him, but released him when he appeared rational. Does he owe a duty of care to the girl? Ruling: Special relationship between Patient and doctor. Such a relationship may support affirmative duties for the benefit of third persons. A doctor must warn a patient if the P's condition renders certain conduct dangerous to others. Applies balancing test to determine whether to impose a duty. -Court says duty default: everybody owes a duty to everybody.

Barker

Facts: Guy was operating a loader at a construction site, he was filling in for the regular guy and didn't have as much experience. Trying to lift a load of wood to a second story building which was tough because of a sloped incline. Load tipped and he leapt out of the loader but was struck with a piece of fallen lumber. Didn't have mechanical arms, seatbelts, rollers. Crank was too sensitive. No park position. Ruling: Product is defective in design if 1) product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner (consumer expectations test. 2) OR If the benefits of the challenged design do not outweigh the risk of danger inherent in such design.

Marshall (Hog case)

Facts: Hog had escaped from D's farm and had been seen on P's land during several weeks before the day of the injury. Boar had charged him many times before the occurrence and had him prisoner in his outhouse. Left his house he looked for the boar, didn't see it and boar bit his hand severely. Ruling: Applying factors: 1) knowledge or should have known of the danger. Yeah. 2) Did he have a specific appreciation? Yeah. 3) Did he make a voluntary choice? Not voluntary. Shooting not an option. Only option is to remain in his house. Not fair force someone to stay in your house because of a danger. Recognizes AOR in strict liability actions, but rejects it in this case. Note: Law has distinction on Wild and domesticated animals. If you take control over a wild animal and it mauls someone you are strictly liable. With domestic- Liability provided that owner of domestic animal has knowledge of the propensity of the animal to create danger to others. "One bite rule."

Phillips

Facts: Injured while feeding fiberboard into a sanding machine during his employment. Guy fed sheets into the sander manually and a thin sheet of fiberboard which was mixed in with a thicker sheet was inserted and it spit out back at him hitting him in the chest. Claimed it didn't contain any guards, catches, shields, barricades, or similar devices to protect. Restatement has just come out. Ruling: Evidence showed a reasonably prudent manufacturer knowing the machine would be fed manually and having the constructive knowledge of its propensity to spit back out, machine as dangerously defective without warning. Applies Risk-Utility and Imputation of knowledge Imputation of knowledge: A dangerously defective article is one which a reasonable person would not put into the stream of commerce if he had knowledge of its harmful character. The test therefore is whether the seller would be negligent if he sold the article knowing of the risk involved. Constructive knowledge of the condition of the product. Imputation of knowledge/actual dangers approach. Risk-Utility: Was the risk greater than the utility of the device? How essential risks are to the purpose of product? Could it still do everything product does and avoids the risk? Is there an alternate feasible design? Does that design create new dangers? Is it economically feasible? Note: Article can have a degree of dangerousness which the law of S/L will not tolerate even if B<P*L.

Langan v. Valicopters

Facts: Langans own small farm and use no inorganic fertilizers. Valicopters was spraying a nearby farm and hit some of Langan crops, which caused Langan's certification to be revoked. Ruling: Though crop spraying is generally recoverable by negligence in most courts, people have been critical of this approach. Wash has adopted abnormally dangerous activity, strict liability, where even if you exercised utmost care, you're liable. This is a question of law to decide. Court: There can be an equitable balancing of social interests only if appellants are made to pay for the consequences of their acts. If spraying continues Langan's could be eliminated each year and Velo could still make money.

Carroll Towing

Facts: New York Harbor. Carroll Towing was trying to move a boat to another dock, but the maneuver failed and set loose all other boats at the dock, which hit the Anna C which was carrying the U.S's flour. Which sank and lost the cargo. U.S. sued Carroll Towing, but they claimed contributory negligence on the Anna C, bc bargee wasn't there to prevent injury. Bargee was expected to be there at all times, but wasn't there. Ruling: Owner's duty to provide against resulting injuries is a function of three variables, burden, probability of harm, and severity of harm.Cost-benefit calculation of negligence, it optimizes the cost of accident avoidance, by requiring to avoid the accident if it would have been efficient. Here: The likelihood of a barge breaking free is relatively high, in instances of severe weather. This likelihood is increased when the employee tasked with manning the barge is absent. The potential injury resulting from a barge breaking free is significant Thus, compared with the relatively high risk of injury multiplied by the gravity of the injury, the burden on Anna C to take precautions is relatively low. Connors is thus contributorily negligent.

Wagon Mound (Foreseeability of Type of Harm)

Facts: Oil spill in bay spreads everywhere. Hot piece of metal from welding operation leads to fire. Ruling: Court overrules Polemis. Foreseeability (one can anticipate that it COULD occur) is central to proximate cause. D must be in a position to foresee consequences. Looking at anticipating type of harm/injury here. Could a fire occur? It doesn't seem just or moral that an act of negligence however slight or venial which results in some trivial foreseeable damage the actor should be liable for all consequences however unforeseeable and however grave, so long as they can be said to be "direct."

Falcon (Lost opportunity for survival)

Facts: P gave birth to a baby but he had an embolism and died. Complication is rare, but survival rate is 37.5% if IV line is connected. IV line had not been established. Had Nesko done this, the patient would have had a 37.5 percent opportunity of surviving the medical accident that was the cause of her death. Ruling: Many courts followed that if you established that the patient would have had more than a 50% chance of not suffering harm had the D not acted negligently, you recover 100% but less than 50% barred. -Court says a 37.5% chance of survival is hardly the kind of opportunity that any of us would willingly allow our hc provider to ignore. This is a significant % (Rahdert said he had seen 20s recognized). -Must prove that the D reduced the opportunity of avoiding harm. 37.5% loss of a substantial opportunity for avoiding physical harm. 37.5% the damages recoverable for wrongful death is measure of damages.

Knight v. Jewett

Facts: P had asked D to stop being so rough in flag football game. Next play after promising he barrels her over. Ruling: Li has established comparative negligence. Any time D is negligent, AOR that corresponds to negligence has to be treated as comparative in the Li scheme. Primary implied assumption of risk is a standalone complete defense. Situations where D doesn't owe a duty of care. D did not owe P a duty of care with degree of play. Any person who participated in the game assumed the risk in the kinds of incidental contact and injury.

Polaris Case

Facts: P is injured a jetski accident. Force of the jets pushing water out back at hard pressure sprayed her internal organs. Claims that there was no obvious place where a passenger could hold on safely. Issue: Is AOR compatible with Product Liability? Ruling with respect to Driver: Driver didn't owe a duty with respect to the dangers of driving, the plaintiff assumed the risk of those dangers in the form of primary assumption of risk that is applicable, in Knight v. Jewett. Polaris wants this defense as well, but court says this primary AOR doesn't carry over to the enhanced danger from defective product. P assumed general risks of falling off, but did not assume the risks of falling off backwards and experiencing orifice injury. Note: Not wearing a wetsuit is a foreseeable misuse.

Palsgraf (Foreseeability Plaintiff)

Facts: P was standing on an opposite platform of D's railroad. Train stopped and two men ran forward to catch it. One made it through the train was already moving. Other man jumped aboard but seemed unsteady as if about to fall. A guard on the car who had held the door open reached to help him in and another guard on the platform pushed him from behind. Package dislodged and it turns out it contained explosives. Fireworks threw down a coin operated scale which struck the P causing injuries. Ruling: No duty of care to Palsgraf as injury to her was not a foreseeable harm from aiding a man with a package. Negligence is a relational concept, not existing "in the air" This is about duty. Look at relation between P and D needs to be in the zone of danger.. What would I see as the likely individuals who could be harmed by my actions. Foreseeability of plaintiff Dissent: Where there's an unreasonable act there is negligence whether damage does or does not result. Everybody owes to the world at large the duty to refrain from acts that may unreasonably threaten the safety of others. One does not only have a legal duty to protect those in a nearby "zone of danger" from harmful acts; rather, one has a duty to protect society at large. But in this case natural and continuous sequence between cause and effect, with few if any intervening causes. Uses lawyerly trick of starting chain of events midway, when package was knocked.

Strauss v. Belle Realty

Facts: Power outage caused by Con Edison's negligence. It provided electricity to Strauss and to the common area of the building under a separate agreement with his landlord. He wanted to get water but fell on the darkened defective basement stairs sustaining injury. Con Edison claimed no duty to non-customer. Ruling: No duty. Liabilities for injuries in a building's common areas should as a matter of PP be limited by the contractual relationship. Courts need to limit legal consequences of wrongs to a controllable degree. Slippery slope argument.

Polemis (Direct Consequences)

Facts: Servants carrying heavy plank fell and caused an explosion which set fire and destroyed the boat. A spark ignited the vapor.. This type of damage was not reasonably foreseeable, but some damage might have been anticipated. Ruling: The exact damage is irrelevant so long as the damage is directly traceable to the negligent act. Shits on foreseeability of type of harm. should be responsible for DIRECT CONSEQUENCES of D's behavior. We know it's direct because it has a short causal chain, no other cause is present, not that much time has elapsed, close in space.

Sternhagen (Keeps imputation of knowledge for FTW)

Facts: Sternhagen worked in a crop spraying business that used Herbicide 2,4-D. Diagnosed with cancer claims it's bc exposure. Ds claim neither they nor medical science knew or had reason to know of any alleged cancer causing properties during those years. Ruling: Defense relies on Comment J of R2D, which says seller is required to give warning if he has knowledge or by the application of reasonably developed human skill and foresight should have knowledge of the presence of the danger (State of the Art) Court accepts Imputation of knowledge doctrine not state of the art defense Language that D relies on has to do with an ingredient which the public is allergic to, not a cancer causing ingredient. Specific problem of a distinctive allergy to a small subject, just about allergies. Herbicide creates risk for general population at large.

Munn

Facts: Student of Hotchkiss school went on an educational trip to China and got a rare tick disease that paralyzed her and caused brain damage. Ruling: Test for duty is whether the specific harm alleged by plaintiff was foreseeable to the defendant. Harm of the general nature of that suffered was likely to result. Court decides to look to public policy to whether to extend a duty. 1) Normal expectations of participants in the activity. 2) public policy of encouraging participation in the activity 3) avoidance of increased litigation. 4) Look to other jurisdictions. Special relationship between schools and their students is recognized universally. -acts in the place of parents here. Burden is low. You just warn travelers and direct them to information. Cover your skin and use spray. Also a foreseeable risk. Imposing this won't have a chilling effect on school trips, very few instances like this

Patterson (See separate card for Knight)

Facts: Truck driving class. Hands on activity then teacher lets them do on his own. P falls off flatbed truck while pushing huge bleachers Ruling: Secondary assumption of risk here merges into comparative fault scheme. Reasoning: Instances where AOR embodies legal conclusion that there is no duty on the part of the D to protect from a particular risk (primary assumption of risk) Those where D does owe a duty but the P knowingly encounters a risk of injury caused by D's breach of that duty, are secondary assumption of risk. The reasonable or unreasonable distinction makes no difference. Turns on the nature of the activity or sport in which D is engaged and the relationship of the D and P in that activity or sport. Goes through AOR in sports, fireman's rule and in contexts of dangerous activities. Activities that are inherently dangerous. Truck activity not inherently dangerous, just because gravity is at play. This is a common everyday work activity. In primary where no duty is owed doctrine continues to operate as a complete bar. In secondary where D owes a duty but P proceeds to encounter a known risk imposed by D's breach of duty doctrine is merged into comparative fault.

Hoffman La Roche case

Facts: Used accutane for two months for chronic acne and developed ulcerative colitis Issue: Whether FDA approval effectively immunizes the manufacturer of a prescription drug from liability for design defect when the drug was properly prepared, packaged, and distributed and where the manufacturer's application to the FDA was truthful Arguments that you don't need strict p/l: Elaborate regulatory framework, claim it'd be deterrent to new products, and doctors are the check in between. Whether to apply R2D 402K or R3D? Prob is R2D 402K doesn't tell us what an adequate warning is. 402K if a drug is unavoidably unsafe the harm can't be reduced, but it has a great benefit on society (like Rabies), product will not be defective for design, but can be defective for mismanufacture and FTW. Restatement 3rd says: if there's any use for the drug that a reasonable doctor would prescribe, the drug is therefore not defective. But Freeman court says no case law on this, and it's bs. Appropriate extension to comment 402K is to apply the learned intermediary doctrine: Warning should be adequate to provide to a learned intermediary who interprets that warning for the benefit of the patient, that can be sufficient to establish the adequacy of a warning for prod. Liability. Adequacy of warnings on a case by case basis.

Rylands

Facts: Wanted reservoir for his mill, but mine shafts underneath the ground. Creates reservoir. D was not negligent, but water ends up in adjoining property worker's mine & damages it. Ruling: If you put something on your land that has a tendency to escape and will do damage if it escapes than you are the liable for the resulting damages. Whenever a non-natural use of land that contains a tendency to escape then D is strictly liable. Note: Later Texas case treated "natural" as common, while Rylands uses "artificial" creation. Drew a line between this case and intentional torts.Creates a trespass v. nuisance distinction. Trespass is intentional invasion, nuisance not intended to invade but it just happens.

Moch

Facts: Water Co made a contract with the city to supply water for years. Water was "to be furnished to private takers within the city at their homes and factories and other industries at reasonable rates." A building caught fire, which spread to P's warehouse and destroyed it. Company was notified of the fire, but neglected to supply adequate water pressure to put it out. Is there a duty? Ruling: No duty imposed. No intention in the contract that the promisor is to be answerable to individual members of the public. Liability would be unduly and indefinitely extended by this enlargement of the zone of duty. Privity decision. If actor voluntary takes action, there is a duty but if actor fails to take action, no duty. Cardozo is concerned with broadening the sphere of liability. He thinks Cardozo was wrong, because once you provide aid you have to continue duty.

Greenman v. Yuba (California first state to adopt Strict PL)

Facts: Wife got him Shopsmith for Christmas and wanted to make a goblet from lathing. Wood flew out of the machine and struck him on the forehead. Claimed design defect: Inadequate screws to hold parts of the machine together so normal vibration ducked it up. Ruling: No express warranty is needed. Manufacturer is strictly liable in tort when an article it places on the market knowing that it is to be used without inspection for defects proves to have a defect that causes injury to a human being. Extend this liability to variety of other products that create hazards if defective. Goal is to insure costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market. Representation that product is safe for intended use.

Pauscher

Facts: Woman gets infection/obstruction in urinary tract after having a baby. Urology specialist ordered IV, but nobody told her about the remote risk of death. Ruling: "Professional rule" allowed Doctor to decide what to tell patients the risks are. It essentially provides the info to the patient already apprehensive enough to ask but denies it to person lacking in anxiety that they are not motivated to inquire. Adopts "Patient Rule" See other card on patient rule steps. Exceptions: 1) detrimental effect on the physical or psychological well-being of the patient. 2) emergency situation. 3) risk is soo obvious. Application: We can't conclude that a jury could reasonably find the withheld info relating to the extremely remote risk of death would have been significant or affected Becky's willingness to undergo the IVP.

Alternative liability

If don't know who caused negligence, but know one of few people must have caused it. Court said to shift burden on both of the Defendants to exonerate themselves. Rebuttable presumption. Better position to offer negligence. There is practical unfairness of denying injured person redress.

Superseding v. Intervening

Intervening: A cause that happens at all after the original cause; Superseding: So independently powerful it breaks and supplants the original cause. Further away one fades into oblivion. Usually has to have independent human agency. If the defendant's conduct was such that it made the opportunity for the intervening cause possible, then the intervening cause is not truly superseding.

Trespass

Invasion affecting the exclusive possession of his property. Must show: 1) an intentional doing of the act which results in the invasion 2)reasonable foreseeability that the act could result in an invasion of plaintiff's possessory interest, 3) damage. This can apply to foreign polluting matter. Can be to chattels as well. Disturbance of possession of personal property. FOS does not immunize you, if Independent conduct.

Imputation of Knowledge vs. State of the Art

Knowledge of undiscovered or undiscoverable dangers should be imputed to the manufacturer vs. STATE OF THE ART: We did everything we could at the time with what we knew. Thus, we could not have possibly have warned or foreseen this. Problem is custom and is it really unknowable, or has no one invested enough in it?

IIED

Memo- you know it. Elevated standard for public figures (need actual malice) bc expected to have thicker skin

Private and Public Necessity

Necessity will justify entries upon land and interferences with personal property that would otherwise have been trespass. A party acting under private necessity is liable for damages incurred to the property of others.

Yania factors

No duty default, unless 1) special relationship, 2)where D has placed them in danger 3) isolated situation (only person who can help) 4) once you begin help you have to follow through, 5) interference with help. 6) No negligence for someone trained to assist medically who helps.

Fireman's rule

No duty to prevent injury if person is trained in emergencies and specifically is responding to emergency situations.

"Rescue Doctrine"

Once this kind of negligence occurs it's foreseeable that someone could run out to rescue. Danger invited the risk.- Rescue doctrine. Defendant is liable to rescuer bc it's foreseeable.

402A

One who sells any product in a defective condition unreasonably dangerous to the user or consumer, is liable if is a seller by trade, and article reaches consumer unchanged. This is even if exercised all possible care. Defective product is product in an unreasonably dangerous condition not contemplated by the ultimate consumer. Burden of proof on P to show defective condition. Don't have to have bought the product, can be given it by family and friends. No privity issue.

History of Product Liability as a tort

Originally in contract as breach of warranty, but struggled with privity issue. Luellen says should eliminate it being privity contract based. Not how goods are marketed and sold. Then moved RIL negligence. Traynor dissent in Escola. Then Strict products liability moved to food products. Then everything else.

Negligence by Statute

Questions to ask if negligence: 1) Was the statute violated, 2) was the statute meant for safety 3) Was P in the protected class? 4) Was injury proximately caused by violation? Statute violation will be taken as either, negligence per se, a rebuttable presumption of negligence, or evidence of negligence to avoid a non-suit (this is most common)

Daubert

See standard in other notecard. Facts: Birth defects from Bendectin. D's examined all literature on Bendectin and human birth defects and found nothing. P used animal studies and calculations from existing scientific literature & chemical composition. Lower court said evidence is only admissible if it has general acceptance in the field it belongs (epidemiology) Ruling: Remanded on instructions to adopt Daubert FRE 702 standard, rather than general acceptance of theory in community standard. -General acceptance can have a bearing but it is not a necessary precondition to the admissibility of scientific evidence under the FRE. -Old technique resistant to scientific innovation now it makes judge the gatekeeper. -Goal was to broaden the scope of admissible scientific evidence.

Restatement 520 "Abnormally Dangerous" Balancing Test

Standard espoused in Rylands and Valicopters. 1) High risk of harm 2) is harm severe? 3) inability to eliminate risk of harm by reasonable care. 4) Is activity in common usage? 5) Inappropriateness of activity for the place. 6) Value of activity to the community.

Emergency doctrine

Standard of care is lessened when you have a short time to react. Reasonably prudent in the emergency context.

Risk-Utility (Benefit) Test of PL

Utility < probability times harm= strictly liable. Cost and feasibility of redesign and impact of redesign on usefulness of product, would alternative design present its own risks. Lower cost of alternative design, higher chance you're gonna fail risk-utility. Dual standard of both CE and Risk-Utility assures plaintiff protection from products that fall below ordinary consumer expectations as to safety or are not as safely designed as they should be. But it also allows a manufacturer to demonstrate the complexity of design decisions and trade offs to justify their decision. (Imputation of knowledge)

Consumer Expectation Test of PL

What a reasonable consumer would expect from the product, was it foreseeable that the product would cause injury when used in intended or reasonably foreseeable way? Problem is consumer's have low expectations and consumer expectation is manipulable through advertising.

J+S Liability

When two or more tortious actors combine to proximate cause an indivisible injury. Each is J+S for whole amount. Concert of Action. Also J+S if actors contributing negligence to indivisible injury in unrelated but successive actions. In joint and several liability, if one D is judgment-proof, then other Ds must pick up their portion to compensate P fully

Consent

in Dr. setting, for procedure need consent for every single independent procedure except if emergency care. You can condition your consent on something, esp. in medical setting (familial blood for ex.) Sports settings are often privileged from negligence, because you consent to it. So need independent intentional, or reckless conduct (Did not consent to being tackled by coach). Consent can't be a defense to illegal action, like a fight. Use of force in tort conduct must be reasonable (like teachers acting corporally, or to repel invaders).

Conversion

intentional exercise of control over chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay full value. Degree and duration are important. Photocopying documents and returning them intact is not conversion, bc you don't diminish other person's use unless it's proprietary.

Assault

intentional threat to make harmful/offensive contact. Threat needs to be imminent, and person needs to have REASONABLE apprehension. Threat needs to be communicated.

NIED

physical manifestation, zone of danger, witnessing something happen to someone else, must be present, aware, and close relationally. Graveyard situation: reasonsably foreseeable that with vulnerable plaintiff and limited duty if you duck it up, you'll cause distress.

nuisance

unreasonable interference with a person's use and enjoyment of her property. Can be public- affecting alot of people, or private. Relief can be injunctive or damage based.