Torts20

Defamation

must prove actual malice w knowledge that statements made were false or reckless disregard of its truth of falsity

Phelps v. Bross

narrow application of aiding & abetting where a girl was coerced into being driven to someone's house where she was drugged & sexually assaulted by one & woke up to D lying next to her fully clothed, finding a jury could find that by D being the bed, he caused her to fear imminent and harmful or offensive contact when she woke

A touching for battery

need not be flesh-on-flesh, nor directly caused, to give rise to a claim of battery (eg. shooting or ordering an attack by dog); can include shock waves of energy or noxious gases

Non-customary practices

need to be relevant/aren't automatically admissible

declaratory relief

need to declare x,y,z

Condra v. Atlanta Orthopaedic Group

negligence in failing to conduct blood count monitoring, Granted certiorari on medical malpractice action on grounds to consider 1) whether plaintiffs were properly prohibited from questioning the personal practices of def expert witnesses w respect to medical treatment at issue & 2) whether the so-called "hindsight" jury instruction was appropriately given under the circumstances presented Principle: Johnson's verdict is reversed & evidence regarding an expert witness; personal practices, unless subject to exclusion on other evidentiary grounds, is admissible both as substantive evidence and to impeach the expert's opinion regarding SOC so how an expert would've conducted is admissible & dispositive

negligence per se

negligence law can sometimes incorporate standards of behavior contained in criminal or regulatory statutes that, on their face, say nothing about tort liability, Judge must ask if the elements are MET, not if a reasonable jury could find that it was met

Default rule for duty on pure economic loss

no duty to prevent pure economic harm in most jurisdictions to this day; Exceptions: special relationships (eg. attorney-client malpractice & accountants-clients), oil spill w/ fisherman

adhesion contract

one drafted unilaterally by a business enterpreside and forced upon an unwilling and often unknowing public for services that cannot readily be obtained elsewhere, generally not bargained for but imposed (must be a showing of great disparate bargaining power or that services couldn't be obtained elsewhere)

Q of duty

one for the court to decide

Trespasser

one who enters upon another's premises w.o license, invitation, or other right; only a duty to refrain from willfully or wantonly injuring them; NO duty except (eg. attractive nuisance, not to willfully or wantonly injure people, duties to known trespassers becomes either to exclude or warn)

Punitive/vindictive/exemplary damages

only avail to those who can demonstrate that they have been victims of certain "aggravated" forms of mistreatment involving "malice, insult, oppression, or wanton or willful violence"; are, even moreso in cases of negligence; Irrelevant that P gets the money

Market share liability

poses liability on all the D based on the share of the market they had at the time; usually court refuse to use outside of DES cases; collapses the causation issue and the approprtionment issue BUT it does not mean jointly liable (cannot collect market share damages of one from another) but severally liable (severally liable answer held in Brown)

Goals of assault offense

to allow each of us to feel secure against unlawful assaults, prevent fear of personal harm

Inherent risk statutes are more readily applied

to claims of negligence brought by one participant in a sport against another (that still bar recovery completely for inherently risky activities) (keep in mind that the claim is bt owner/operator & P)

punitive damages

to punish; usually require proof of willful or wanton misconduct

Loss of consortium

(in old days) husband can bring the claim if their wives were injured and couldn't fulfill their household duties; (in modern law) has evolved and can be brought by anyone as loss of companionship

Res ipsa loquitur cases' 3 features

1) The injury must happen in a way that ordinarily does not occur absent carelessness on someone's part; 2) The instrumentality causing the injury must have been in D's exclusive control; 3) The injury must not have arisen from acts or carelessness on part of P

Failure to Warn or Instruct

A product is defective for failure to warn when safety requires that the product be sold with a warning but the product is sold without a warning (or without an adequate warning); Eg. mislabeled products; Defect is the omission of the language

The Per Se Rule Vs. the Foreseeability Test

Abandoning the per se rule of Watson where any intervening wrongdoing that constituted a criminal offense was necessarily a superseding cause; Foreseeability test adopted: intervening wrongdoing is a superseding cause only if it is "utterly" or "completely" extraordinary

Intoxication & punitive damages

Drunken driving has often been deemed reckless enough for punitive damages

Reasons for collateral source rule

Ds can't benefit from good fortune of torting someone w insurance, to deduct insurance proceeds would be to deny P the benefit of having secured insurance, also helps counteract rule denying successful tort Ps attorney fees as part of comp damages; Most have abolished or modified rule in specific areas of tort, personal injury/medical malpractice

Camacho case

Ds want consumer expectations test & courts say this is a basic q here bc the average motorcycle rider does not want safety

Premises liability kind of duty

Duty is basically to anticipate that your land might cause a problem and take affirmative steps, ex-ante, to prevent it NEVERTHELESS it is not considered an affirmative duty (we are back to regular duty)

Affirmative duty

Duty issue will be at play here & court will be looking to the P for a showing as to why the D was obligated to take care w respect to the P's interests; this duty's scope only requires what's reasonable and courts usually construe narrowly (just seeking medical attention is enough), also if it poses a risk to yourself then court will most likely say this duty does not exist

Defense Elements

Duty to P's self (easy to prove: if you have a duty to others, you have a duty to yourself) -> Breach (P's breach their own duty) -> Causation (P's breach was a cause of their own injury and it was w.in the scope) -> no damages; Ds have the burden of proof by preponderance of the evidence under their affirmative defenses

Conditions for the Application of Negligence Per Se

Establishing a violation of a conduct-oriented statutory command is necessary to make out a claim for negligence per se but it is not sufficient; You also need to establish either that the P is in the protected class or that the P suffered from the right kind of accident to rely on the statutory violation to establish breach

Eggshell rule

It has always been the law of this country that a tortfeasor takes his victim as he finds him; Applies to injuries that are unexpectedly severe bc of a hidden vulnerability in the P; black letter law, dispositive

Workers comp systems & intentional torts

bar recovery for negligent employer conduct but allows for intentional torts by employer

Charitable immunity

barred tort actions against charitable orgs, albeit only for their negligent wrongs, most eroded but some state legislators have provided charities w other protections such as damages caps; Charitable immunities have now been abolished in most states, main significance is exposure to medical malpractice, victims of sexual abuse by priests/religious figures; To encourage volunteerism, some states have enacted statutes granting partial or complete immunities to individuals who accidentally injure others in the course of doing volunteer work for charities for negligence (exception: negligent driving)

Extended personality

battery can be established by contact w anything so connected w the body as to be customarily regarded as part of the other's person and therefore as partaking of its inviolability

police did not have an affirmative duty

bc they didn't have a special relationship -> so not using the foreseeability argument; also only affirmative duty if they've undertaken to warn the 3rd party

Pokora v. Wabash Ry. CO (Cardoza)

collision bt P's car and D's train Principle: Trial jury erred in issuing summary judgment/not sending it to the jury- that ordinary care for drivers, one should ask what is suitable for the traveler caught in a mesh where ordinary safeguards fail him is a judgment for the jury; undoes Holmes' "get out and reconniter" rule in Goodman & says it was dicta

Absolute liability

a stricter liability that says P only has to prove P actually was injured by a product, regardless of whether the product contained a defect; Traynor uses "strict" negatively to mean P should not have to prove carelessness but must prove that injuries were caused by defective product so not absolute liability

a threat as assault

a threat to commit an injury is sometimes a criminal offense, but is not actionable private wrong. The threat only promises future injury & usually gives ample opportunity to provide against it while an assault must be resisted on the instant; Principle of reluctance of the law to give a cause of action for mere words - words never constitute an assault; Sometimes in exceptional cases, special relationships exception applies (eg. common carriers) RARE

Tarasoff holding

a treating therapist need not be actually aware that the patient is contemplating an attack on someone, so long as the therapist reasonably should have known of the risk - some jurisdictions are split on this

Type of torts we're looking at in this class

non-contractual wrongs

Good Samaritan statutes

non-professional rescuers are shielded from liability for negligence unless reckless

Federal courts & compensatory damages

not allowed to violate 7th amendment Reexamination clause & can only review comp damages as abuse of discretion, applying state law

Dictum

not holding so doesn't need to be followed because it was not necessary to the decision

Public Policy & Stricy Liability

not sufficient alone to justify strict liability; Fairness weighs in favor of requiring the pyrotechs who present the display to bear the loss rather than the unfortunate spectators who suffer the injuries; Also, if it was another standard, it would be difficult for Ps to establish proof as abnormally dangerous activity accidents usually destroy all evidence

Walter v. Wal-Mart NIED

note the wrong of which Walter complained was not that Wal-Mart breached a duty owed to her to take care against causing her to be upset or distressed BUT a claim that Walmart breached duty to take care in dispensing medication, not inattentiveness to her well-being; Walter first needed to establish bodily harm and then the mental anguish could be recoverable as a predicate injury of bodily harm; Walter's bodily harm was the injury that rendered Walmart's conduct actionable in the first place

Two ways to make someone an invitee

1) if they're coming to do business that materially benefits you; 2) if you opened up your property to the public

non-contractual wrongs include

1) intentional (ex. False imprisonment, battery, etc.) , 2) unintentional (accident law)

Comparative negligence

portions of liability according to negligence

Judge addressing superseding cause

they ask whether a reasonable juror could find that a 3rd party's intervening wrongful act constitutes a superseding cause

2d Rstmt §908(2) on negligence & PD

a claim of negligence can support a punitive award if the P establishes that the D's unreasonable conduct demonstrates "reckless indifference to the rights of others"

An immunity

a complete defense to liability granted to certain entities, as well as to actors in certain relationships

3rd Rstmt on battery

"A person acts w the intent to product a consequence if: (a) the person acts w the purpose of producing that consequence; or (b) the person acts knowing that the consequence is substantially certain to result"

3rd Rstmt Reformulation of Negligence per se, Section 286

"An actor is carless if, w/o excuse, the actor violates a statute that is designed to protect against the type of accident the actor's conduct causes, and if the accident victim is w/in the class of persons the statute is designed to protect"

Byrne v. Boadle

A barrel of flour fell on P from the D's house Principle: A barrel cannot roll out by itself; If there are facts inconsistent with negligence, it is for the D to prove

Rstmt 2d §314 on Affirmative Duty

"The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action"

3rd Rstmt Reformulation of Res Ipsa

"The factfinder may infer that the D has been negligent when the accident causing the P's harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which the D is the relevant member"

Imminent Peril in 3rd Rstmt

"When an actor's prior conduct, even though not tortious, creates a continuing risk of physical harm of a type characteristic of the conduct, the actor has a duty to exercise reasonable care to prevent or minimize the harm" (§39)

In admiralty law

"divided damages rule"

Trespass Elements

"intentional" entry, onto another's property, w/o consent

Res ipsa loquitur

"the thing speaks for itself"- is not a distinct cause of action but an evidentiary doctrine applicable to certain tort causes of action like negligence; It permits jury to infer the P's injury was caused by D's carelessness even when P presents no evidence of acts or omission that might constitute carelessness, not dispositive; satisfies burden of production not persuasion; expert testimony is allowed if needed to prove 1; Res Ipsa can also serve to establish actual causation (e.g. Byrne, Kambat, & Ybarra); should this q get to the jury

Volenti non fit iniuria

"to one who is willing, no harm is done"

Exception under the Rstmt §314A. Special Relations Giving Rise to Duty to Aid or Protect

(1) A common carrier is under a duty to its passengers to take reasonable action: (a) to protect them against unreasonable risk of physical harm, and (b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others (2) An innkeeper is under a similar duty to his guests (3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation (4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other

3 diff rules Ryland judges come up with

(1) Non-natural (anything man-made or something out of ordinary for the area?) & (2) anything likely to do mischief (foreseeability?) & (3) anything that causes damage -> these seem like diff categories; No clear rule for what's ADA but the West courts did not like it for reservoirs in particular bc it put a burden on those performing an act that was necessary

3d Rstmt defines abnormally dangerous activities more sparingly than 2d Rstmt's §520:

(1) creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and (2) [is] not one of common usage; "Abnormal" really restricts what this could apply to, usually uncommon & very risky use of land including & esp the use of explosives for construction/other purposes

7 Wade factors to consider for risk-utility analysis (Denny)

(1) the product's utility to the public as a whole; (2) the product's utility to the individual user; (3) the likelihood that the product will cause injury; (4) the availability of a safer design; (5) the possibility of designing and manufacturing the product so that it is safer but remains functional and reasonably priced; (6) the degree of awareness of the product's potential danger that can reasonably be attributed to the injured user; and (7) the manufacturer's ability to spread the cost of any safety-related design changes

Consent is not a defense if

(1) the victim lacks the ability of judgment necessary to give meaningful consent, & (2) a reasonable person in the position of the tortfeasor would perceive this lack of capacity (may result from youth, mental incompetence, or some other condition/circumstance) OR if he secures the victim's consent by misrepresentation or other forms of deceit; fraud resulting in physical injury OR sometimes if the D had reason to know that the consent was not freely given

several justifications for strict liability w defective products

(a) a suggestion that manufacturers owe to consumers a particularly demanding obligation to be vigilant of product safety (an obligation-based rationale); (b) an argument that manufacturers are best situated to take precautions, and therefore should be given strong incentives to take such precautions (a deterrence rationale); (c) an argument that manufacturers are best situated to spread the cost of accidental injuries caused by their products (a compensation-insurance rationale); (d) an observation that responsibility for injury stems from having marketed a product that caused injury, regardless of negligence (a causation-strict liability rationale); (e) an argument of victims' entitlement to compensation should not depend on the nature of the conduct that caused it (a compensation-equality rationale); (f) an analysis of disparities in power and litigation concerning evidence and procedure (a litigation-structure rationale); (g) an assertion that, if two ways of structuring the law lead to the same result, the more open and direct structure is preferable (a judicial-candor rationale)

2d Rstmt test for what constitutes an abnormally dangerous activity

(a) existence of a high degree of risk of some harm to the person, land or of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; (f) extent to which its value to the community is outweighed by its dangerous attributes; Any one of these factors is not necessarily sufficient of itself in a particular case and ordinarily several of them will be required for strict liability; Finds (a) (b) & (c) make up an ultrahazardous activity

CL pockets of strict liability

1) ADA; 2) intrusion by livestocks (other animals, not pets); 3) wild animals; 4) AD animals (animal is unusually dangerous as compared to others of its breed - so previous behavior matters, having notice matters)

CA takes implied assumption of risk & says:

1) PRIMARY implied assumption becomes there's no duty or no breach, it's not an affirmative defense, no longer asymetrically w comparative fault bc the D is not at fault at all; Hand formula-like calc of what's lost and what's gained & 2) As done in Smollet, also makes secondary assumption of risk disappear into comparative fault, affirmative defense

Kircher special relationship test for public duty rule

1) an assumption by the municipality, thru promises or actions, of an affirmative duty to act on behalf of the party who was injured; 2) knowledged on the part of the municipality's agents that inaction could lead to harm; 3) some form of direct contract bt the municipality's agents and the injured party; AND 4) that party's justifiable reliance on the municipality's affirmative undertaking

Mississippi (Leffler) applies a 3 step process to determine premises liability

1) classify the status of the injured person as an invitee, licensee, or a trespasser, 2) following identification, the duty which was owed is determined, 3) determine whether the duty was breached by the landowner or business operator

Commentators often divide compensatory damages into 2 general categories

1) economic losses (eg. past & future medical bills, lost earnings, & repair costs); & 2) non economic losses (eg. the fact of having been victimized, pain, and suffering experienced as a result of the tort, depression, anxiety, loss of enjoyment of life)

The impact rule relies on 3 propositions

1) it is stated that since fright alone does not give rise to a cause of action, the consequences of fright will not give rise to a cause of action; 2) physical consequences of fright are too remote and that the requisite casual connection is unprovable (less so now w modern medicine); 3) primary argument nowadays- public policy and expediency demand that there be no recovery for the physical consequences of fright in the absence of contemporaneous physical injury, fright is a subjective state of mind & therefore hard to prove causation and Pandora's Box argument; Trivial bodily contact has been sufficient to support recovery (dust in eye, inhale of smoke)

Consumer expectations test failures

1) product of is a kind w which consumers lack familiarity and therefore arguably have no settled expectations as to its safety AND 2) good argument that product should have been designed more safely even tho the product's danger was relatively obvious & hence not more dangerous than ordinary consumers would expect

2-part test determines when the discretionary function exception applies

1) the conduct at issue must be discretionary, involving an element of judgment or choice; 2) the judgment at issue be of the kind that the discretionary function exception was designed to shield (designed to prevent judicial second-guessing of govt decisions based on public policy consderations, protects only those judgments grounded in social, economic, and political policy)

(Jones v. Dressel) In determining whether an exculpatory agreement is valid, consider 4 factors

1) the existence of a duty to the public (performs a practical necessity for the public); 2) the nature of the service performed (was the D acting as a common carrier?); 3) whether a contract was fairly entered into; and 4) whether the intention of the parties is expressed in clear and unambiguous lang

Special conditions of DES

1) the existence of systemic reasons, not bearing on the P's diligence for absence of evidence on tortfeasor identification, 2) the ability of the Ps to bring b4 the court a group of DS that were responsible for almost all sales of the product 3) the fact that the product in q was entirely generic and causing the same illness among differently situated victims & 4) the availability of at least some reliable data on market shares

Goals of 2nd rstmts use of "substantial factor" language in (§431 & 432)

1) to explain the result in a case involving multiple sufficient causes & 2) indirectly related to the isse of actual causation, to graft into the but-for test for actual causation a proximate cause restriction that would bar the assignment of responsibility to a D whose carelessness functions as a trivial but-for cause

Intervening cause 2 basic features

1) two wrongdoers are acting independently of one another; there is no concert of action or common plan bt them; 2) the wrongs are committed in a sequence where the initial wrongful act is more remote in time and space from the injury; Courts will sometimes treat the second wrongful act as a superseding cause (cause that precludes imposition of liability upon the remote wrongdoer even though the remote act was also a necessary condition of the victim's injury)

2 kinds of gatekeeping the appellate courts play w PD

1) what types of claims can have PD?; typically judges decide whether to give a PD instructions 2) CL rules about excessiveness (judges are authorized to propose remittitur to awards that shock the conscience); For negligence, recklessness & above count for PD; some gross reckless and above (has to go beyond impermissibility and into blameworthiness)

Kline v 1500 mass

1st case that held landlords liable for not preventing risk (keeping up the premises) to residents

Possible Negligent Manufacture for Abnormally Dangerous Activity as an Intervening Force

2d Rstmt says strict liability regardless of if innocent, negligent, or reckless conduct of a 3d person; Hold that 3d persons serve to relieve D from liability only if those acts were unforeseeable in relation to the extraordinary risk created by the activity; Rationale for holding is that it encourages those who conduct abnormally dangerous activities to anticipate and take precautions against the possible negligence of 3d persons; Not to say that D in a strict liability case could not pursue a claim against a 3d party & enforce a right of contribution to an extent proportionate to that party's fault

Risk-utility test (Voss case)

A defectively designed product is one which at the time it leaves the seller's hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use; If the "utility" does not outweigh the danger inherent in its introduction into the stream of commerce -> defectively designed

Review of damages difference

appellate courts review punitive damages de novo (unlike compensatory damages which are under abuse of discretion)

Ybarra

A man suffered from partial paralysis of the shoulder due to being placed the wrong way during operation by nurses & surgeon Principle: allowed P to use res ipsa even though all of the ppl in the room weren't liable, used it to smoke the hospital staff out; 6 diff D's and not all of them are employees of the same group, can't get to more likely than not for all 6 BUT jury still let them get to the jury

Customs

automatically admissible, usually national custom, not local, Sometimes called "majority practice" so that would be more than 50%

The 3d Rstmts Approach to premises liability

A variation of Rowland - first recognizes a general duty to take reasonable care to make premises safe for all persons on the premises, including adult trespassors BUT distinguishes "flagrant trespassers" to whom is owed only a duty to refrain from intentionally, willfully, or wantonly causing physical harm; Defines "flagrant" as "egregious or atrocious" and designed to covers persons in the course of committing serious crimes or who for no good reason violate owner's right to exclude

Strict liability pockets

ADA, animals, trespass, compliance error, vicarious liability, eggshell plaintiff rule, objective negligence standard

Medical malpractice w superseding cause

According to black letter law: ordinary medical malpractice committed in the course of treating injuries created by the negligence of a D is deemed a foreseeable consequence of that negligence

Brown (P) v. Kendall (D)

Action of trespass for assault and battery; As the def was backing up, he unknowingly hit the plaintiff in the eye with the stick causing severe injury. Principle: Ordinary care = the kind of care that prudent and cautious men would use; Disagreed with the initial judge that the burden of proof was on the defendant; Standard of care -> ordinary care; Procedural question -> burden of proof should be on the plaintiff important: cause moved to negligence standard

A prima facie case for assault

Actor A is subject to liability to other person P for assault if: 1. A acts, 2. Intending to cause in P the apprehension of an imminent harmful or offensive contact w P; and 3. A's act cause P reasonably to apprehend such a contact (as w battery, some jurisdictions treat lack of consent as an additional element)

Battery: Prima Facie Case

Actor A is subject to liability to other person P for batter if: 1) A acts, 2) intending to cause a contact w P; 3) the contact w P that A intends is of a harmful or offensive type; and; 4) A's acts causes P to suffer a contact that is harmful or offensive

Book-given elements of products liability claim

Actor A is subject to liability to person P in products liability if: 1. P has suffered an injury; 2. A sold a product; 3. A is commercial seller of such products; 4. At the time it was sold by A, the product was in a defective condition; and 5. The defect functioned as an actual and proximate cause of P's injury

Pure economic loss

Actors are generally obligated to take reasonable care not to cause foreseeable tangible property damage BUT they have no general obligation to avoid depriving persons of economic prospects, although they do incur the latter sort of duty in special situations

Defenses to ADA

Altho it's strict liability, SOL, govt immunity, & P-conduct-based defenses of comparative fault are defenses

3 Rstmt adoption of scope of risk §29

An actor's liability is limited to those harms that result from the risks that made the actor's conduct tortious

§41 - duties to 3rd parties based on special relationship w person posing risks affirmative duty

Another example - Tarasoff (relationship bt A-B-C creates a duty bt A and C); Special relationships include: parent/dependent children, custodian/those in its custody, employer/employee, mental-health professional/patient); Historically, common law did not have mental-health professional/patient on the list but Tarasoff adds it, includes whoever licensed to do mental health even social health worker

Philip Morris USA v. Williams (US SC 2007)

Arises out of the death of Jesse WIlliams, a heavy cigarette smoker; Holds the Due Process Clause forbids a state to use a punitive damages award to punish a D for injury that inflicts upon nonparties or those who they directly represent (eg. strangers to the litigation) (although it can go towards reprehensibility) AND prohibits a state from punishing an individual w.o 1st providing that individual w an opportunity to present every avail defense

Smollet v. Skayting Dev. Corp. (3d Circ. 1986)

Assumption of risk can still be applied to non-negligent conduct which constitutes waiver or consent but which involved no negligence- in such case the absolute bar to recovery remains; The evidence shows that P fully understood the risk of harm to herself and voluntarily chose to enter the area of risk- she therefore implicitly assumed the risk of injury; P argues she was not aware of the risk the combination of lack of guardrails, elevated skating area, & diff in coefficient of friction bt the skating surface & surrounding carpeted area would present; Court says to reach the rink she had to walk thru the carpet - she was aware

Spousal immunity today

At this point, spousal immunity has been abolished in all jurisdictions

Hand Formula

B < P x L -> negligence; 1) the probability that she will break away, 2) the gravity of the resulting injury, if she does, 3) the burden of adequate precautions, & If 3 is less than 2x3 = liable; not supposed to plug hard numbers and doesn't work for inadvertent negligence but the goal is to center attention upon which one of the factors may be determinative in any given situation; Juries are not instructed on the Hand formula, just judges and lawyers use this; use precedent first but if none can use this

Vandermark v. Ford Motor Co.

CA SC extended Greenman, applying defect-based liability to the retailer of a product, not simply the manufacturer; reasoning strict liability on the manufacturer AND retailer affords maximum protection to the injured P and works no injustice to the Ds as they can adjust costs of such protection bt them in the course of their continuing business relationship

Soule

CA court barred using consumer expectation test in cases involving complex product designs; D bears the burden of proof for knocking down the P's RAD; W risk-utility test, now there has to be a reasonable alternative design (RAD) for P to prevail

Elmore v. American Motors Corp

CA extended NY CoA's MacPherson decision, holding bystanders also have the protection, extending duty of care owed by car manufacturers as bystanders even less so have the opportunity to mitigate risks imposed by the defective product (Traynor approved of this opinion); jurisdictions that have to address this q overwhelmingly favor the bystander for the same reasons

Thing (CA, 1989) importance

CA has retreated and go back to rules, saying Dillon factors are not guidelines but things that NEED to be checked; all involving forms of proximity: 1) geographical proximity to decedent, 2) sensory proximity, whether they directly witness or heard the accident contemporanously, 3) relational proximity, whether this was someone who was a close loved one; NY & CA apply factors like Thing

Formula for punitive damages

CL -> is it a type of tort that should have PD? Is it excessive?; Constitutional -> Due process clause w 3 guideposts; ratio is the most imp one

Post CF for Apportioning Fault for Ds

Can allocated among Ds if they can allocate w P/D (pure) -> and some jurisdictions can allow for some Ds being joint & severally if over 50% or some Ds only severally liable if the D is less than 50% liable -> value that supports it is compensation (modified)

Mix Questions of Fact and Law:

Cause in fact -> question of pure fact; Duty -> question of pure law; Breach -> mix question of fact & law (TJ Hooper - is it a breach of care to not have radios on ships? -> involves elaboration of a standard and applying it to facts of a case); Proximate cause -> mix of question of fact & law

Heightened intent standard

Certain ordinary contacts that might otherwise be deemed inoffensive as a matter of law can be rendered actionable if the D both knows the P is unusually averse to being touched in a particular way & exploits that knowledge for the specific purpose of causing offense to the P -> must prove a specific primary intent to cause the P to suffer serious offense; ANOTHER CAVEAT: court can decide not to impose liabiity if it would violate public policy

What to do when you see premises liability q on an EXAM

Check the jurisdiction, if you don't have an indicator of jurisdiction, show the old school treatment (tripartite) or loosey-goosey system (reasonable care type situation depending on circumstances) - do both; usually doesn't make a difference one way or the other BUT if it does, spend some ink on it

Due process argument for capping PD

Comes down to proportionality and fair notice and basically says the CL limitations don't do enough

Intentional tort & comparative fault/apportionment of liability

Comparative fault is not even a partial defense to an intentional tort whereas apportionment bt an intentional tortfeasor and a negligent tortfeasor is appropriate

Defenses to Products liability claims

Comparative fault is widely recognized as an affirmative defense & implied assumption of risk in those jurisdictions that recognize it as a distinct defense; In a minority of jurisdictions, "product misuse" stands as a distinct defense unique to products liability law that serves as a complete bar to recovery (3d Rstmt frowns on this)

Liability for manufacturers

Concluded that a component part manufacturer generally is not liable unless the component part is defective or the component provided substantially participated in the design of the final product; Manufacturer of raw material or component part that is not dangerous in itself has no legal duty to prevent a buyer from incorporating the material or the part into another decide that is or may be dangerous & have no duty to prevent criminal misuse of their products which is entirely foreign to the purpose for which the product was intended (eg. gun manufacturers)

Once Rescue Has Begun Exception

once a rescue is voluntarily undertaken, the rescuer owes a duty to the victim to perform the rescue w reasonable care

The issue of adequacy of warning is normally for the jury

Court can factor content, comprehensibility, intensity of expression, and the characteristics of expected user groups; Having a warning about a risk might not be enough to relieve a manufacturer of liability for failure to warn theory, warning and instruction must be adequate to notify the consumer of the existence and nature of the hazard at issue

Thomas v. Winchester - NY highest court allowed P to proceed against a company that had carelessly mislabeled a bottle of poison as if it were medicine

Court concludes D was a dealer in poisonous drugs & the death or great bodily harm of some person was the natural and almost inevitable consequence of the sale of poision by means of the false label -> no such imminent danger existed in Winterbottom; Harm arises not from contract but from act of mislabeling

Vosburg v. Putney: an 11yr old playfully kicked a 14 yr old in a way that would have ordinarily cause damage but due to an underlying pre-existing vulnerability, the 14 yr old suffered permanent injury

Court held the D liable for the permenant injury

Clark v. EI Du Pont de Nemours Powder Co. - court affirmed the jury verdict for the P when a highly volatile explosive was left and a teenager picked it up after work fearing its danger, he then buried it and it stayed there for 2 years when the young Ps who found it were injured

Court says this is more of a case of concurrent negligence & that the teenager's intervening actions did not "break" the causal chain running from D's carelessness to the boys being injured, the power of doing mischief was inherent in the glycerine all the time, the accident was not only natural and probable but almost inevitable; Took possession, abandoned it, it's Du Pont's problem again

Dillon's proper guidelines can indicate the extent of liability for such future cases (foreseeability)

Court should take into account: 1) whether P was located near the scene of the accident as contrasted w one who was a distance away from it, 2) whether the shock resulted from a direct emotional impact upon the P from the sensory and contemporaneous observance of the accident, as contrasted w learning of the accident from others after its occurence, 3) whether the P and the victim were closely related, as contrasted w an absence of any relationship or the presence of only a distant relationship

Statistical knowledge

Courts are split over whether statistical knowledge (by virtue of D knowing to a certainty that w its ongoing conduct, someone sooner or later will be hurt) is sufficient to establish intent; Some say it can go towards negligence but not intentional knowledge bc it is very implausible to infer a purpose to cause a harmful touching from mere statistical knowledge

Property damage & NIED

Courts have been unwilling to treat negligent causation of tangible property damage as sufficient in itself to support a parasitic award of emotional distress damages to the property owner or possessor; Intentional causation of property damage however may sometimes permit parasitic recovery of NEID; The rule as to negligence might be diff if the property damaged by the D's carelessness has sentimental rather than commercial value (eg. dogs)

Bystander NIED

Courts have generally been cautious ab extending NIED theories outside of "zone of danger" and "undertaking" cases

What about injuries unrelated to the recreational activity on the D's premises?

Courts have held that some of these injuries are included in the waivers of liability (eg. slip & falls at pools); othes not (eg. mirror collapsed in gym on patron), distinguishing by reasoning that a patron could not be expected to contemplate the sort of injury suffered by the P

How to determine if a D is a seller

Courts will look to the underlying reality of the transaction & ask whether the D has placed the product in the stream of commerce

Vicarious liability & intentional torts

Courts will often treat employees' intentional torts as falling outside the scope of employment & hence as not providing a basis for employer vicarious liability (vicarious liability usually only applies to negligence claims)

Losee v. Clute (1873)

D amnufactured a steam boiler & mill owner tested and accepted the boiler, 3 months later, it exploded injuring adjacent property -> court concluded that care in manufacturing was not owed to owners of property adjacent to the mill

private necessity supplies an incomplete privilege to commit trespass

D is held to have been entitled to override the property owner's right to exclude BUT is still liable for compensatory damages the result from his use of property

People Express Airlines NJ case holding

D liable only for damages proximately caused and requiring that the D must have knowledge or special reason to know of the consequences of the tortious conduct in terms of the persons likely to be victimized and the nature of the damages likely to be suffered -> works w tort of private nuisance BUT most courts reject saying no duty to area businesses to take care in its operations to avoid causing others lost revenues; Using foreseeability and using whoever could possibly be foreseeably harmed, there's a duty -> more ad hoc application of pure economic harm duty

Ochoa holding

D operated a juvenile facility that was letting P's son deteriorate, refusing to let P treat him until he died, Supreme Court allowed for recovery although she did not receive shock of witnessing an accident causing instantaneous injury

Ploof v. Putnam decision

D owned an island w a dock, P was at sea when a storm hit and so he docked at D's island to save himself/family, D's employee unmoored the boat which resulted in injuries to P & family; denied motion for failure to state of claim by D bc doctrine of necessity applies w special force to the preservation of human life; every one ought to bear his loss to safeguard the life of a man; hand formula (B < P x L = dock < lives)

Dalal v. City of NY

D testified she wasn't wearing her prescription glasses although she was nearsighted during car collision Principle: It's well established that an unexcused violation of a statutory SOC, if unexplained, constitutes negligence per se; The statute speaks to actual operation and sets up a SOC, the unexcused violation of which is negligence per se

Adams v. Bullock (Cardozo)

D was running a trolley, the plaintiff got burned by trolley wire while playing. Rule: Def, using the overhead trolley, was in lawful exercise of its franchise -> negligence cannot be imputed because it used that system; Duty to adopt all reasonable precautions to minimize the resulting perils existed but no evidence to show that duty was breached; Ordinary care does not involve forethought of extraordinary peril

Appelhans v. McFall

D, 5 year old, drove straight into her from behind causing her to fall and fracture her hip and P moved for negligence of parents and D Holding: youth (according to Tender Years Doctrine) rendered him incapable of acting negligently & the plaintiff didn't provide enough specific facts that would have put his parents on notice that he might ride the bike negligently

Rowland v. Christian CA case

Destroy the tripartite; Reasonable care under the circumstances even w trespasser (seems like reasonable care w trespassers means minimal duties but turn it over to courts); Similar discussions occur w common carriers (NY basically says who cares and j call it reasonable care and consider the Ds being a common carrier)

Dead victim scenario (through a survival action brought on behalf of the victim themselves)

Economic harm (Past - healthcare, wages/salary, property damage, etc. & future - no future expenses BUT they could claim the value their estate minus how much they would've spent on themselves IF they lived); Non-economic harm (past: pain + suffering; future - none); 3rd parties can sue - Living scenario: can sue for loss of consortium (spouses, in some jurisdictions parents/child) & Dead vicitim scenario: wrongful death claim brought by a 3rd party (usually by their heir), claiming for economic (eg. if you relied on them financially) & in some jurisdictions, non-economic

Who can bring products liability claims

Elmore shows it can even be a bystander; "easy duty" negligence cases, requiring only that the P be w.in a class of persons foreseeably put at risk of physical harm by the defective product

Interrelation of Negligence Per Se and Common Law Negligence

Even if you cant establish negligence per se, you still have the chance to undertake the negligence analysis just have to prove breach still

2d Rstmt on Upholding Exculpatory agreements

Exculpatory agreement should be upheld if it is 1) freely and fairly made, 2) bt parties who are in an equal bargaining position, 3) there is no social interest w which it interferes; says except in certain cases, there is no categorical prohibition against enforcing such clauses: "A P who by contract or otherwise expressly agrees to accept a risk of harm arising from the D's negligent or reckless conduct cannot recover from such harm, unless the agreement is invalid as contrary to public policy"

Walter (respondent) v. Walmart Stores (appellant since they filed the appeal), Inc. Holding

Expert testimony is not needed if it is within the common knowledge of a lay person; Judgment of liability - a determination as a matter of law that Walmart had a duty to Walter which it breached; that breach caused Walter harm; and Walter was not negligent (or if she was her negligence could not exculpate Walmart)

Tort's values

Fairness value: what's the appropriate relationship bt the parties, Setting right, retrospective; Deterrence value: what sorts of principles will prevent harm in the future, Prospective (future-looking); Compensation value: what's important to hold so that the sufferer is compensated, But an inadequate complete picture of it, insurance companies do a way better job than the courts; "Loss-spreading" (ex. Wal-mart- deep pockets): how do we spread losses across society in a reasonable way

Fear & assault

For assault, P can make out a prima facie case w.o establishing that she was fearful, just has to be aware that such contact might occur -> lack of fear might affect compensatory damages tho

Determining if a contract is void for public policy

For the contract to be void for public policy, court must answer 1) whether the contract is an adhesion contract; and 2) the validity of the exculpatory provisions of the contract (recreational activities are valid)

Foreseeable Misuse of a Product

General rule is the manufacturer has the duty to anticipate reasonably foreseeable misuse of a product; Don't have to anticipate unreasonable or unforeseeable misuse -> eg. fertilizer case earlier, it wasn't reasonable misuse; Partly foreseeable, partly normative (someone unreasonably misused the product so you shouldn't be on the hook); No duty to warn against open & obvious risks

Pre-CF/Apportionment

Giving damages for multiple Ds -> jointly and severally liable

Spoliation of Evidence

If after an accident the D intentionally, (or in some cases negligently) destroys evidence tending to establish its carelensses as the cause to P's injury, the P may have a separate cause of action against the D for spoliation of evidence

Component parts for a product liability claim

If a component part is defective and because the defect the larger product of which it is a part injures the P, the seller and manufacturer of the component part will be liable unless the component manufacturer is able to demonstrate that there is nothing intrinsically defective in its product and the problem lies in the larger product not functioning optimally with the particular component; CAVEAT: if P is able to establish the D had an ongoing relationship with the manufacturer of the larger part and the defendant had adequate awareness of involvement with the design or manufacture of the product in which its part was being integrated

Manufacturing Defect

If it diverges from the manufacturers' own specifications for the product (eg. Escola - Coke bottles were designed not to explode); Even can apply if products are not mass-produced; The defect will be charged to the manufacturer so long as it emerges while the product is in its control or possession so even if defect developed after assembling

Determining ministerial or discretionary functions

If there is some degree of judgment that is informing the decision/there's no resolution on a specific issue then it's a discretionary function; if they are required to do it in a specific way -> no longer discretionary, now ministerial

Parasitic damages

If there was property or bodily injury, you can recover for economic loss as damages "parasitic" on the underlying "predicate" injury of property or bodily injury

Dram Shop Acts

Imposes liability on those whose acts contributed, although, remotely to produce; Today, used to hold premises who serve to underage drivers or those already visibly intoxicated and cause harm to victims of drunk driving; doesn't extend outside commercial sellers except potentially in the few cases listed above

Duties to Protect Persons from 3rd-Party Misconduct

In certain situations, courts have held that a person has a duty to take care to protect another from the threat of being injured by an intervening 3rd-party wrongdoer

Design Defect

Inhere in an entire line of products as opposed to manufacturing defects; Idea is there is a flaw in the plan or specifications for the product

Multiple sufficient causes

Instead 3rd Rstmt uses but for (§ 26 Factual Cause) and in multiple sufficient causes (§27) if each satisfy 26, each is liable; §27 - like concurring causation;it is not fair that by fortuity, one should be let off the hook & makes the P worse off due to multiple tortfeasors than would have been the case if only one of the tortfeasors existed; acts do not have to be simultaneous either;you have to have PPE that both negligence would have caused equivalent injuries

Fault-based liability

Judge Shaw's interpretation is what stands today rather than strict liability (Brown v. Kendall)

Limitations on express assumption of risk

Jurisdictions (like VT) say you can't contract out of negligence; Another limitation: Epstein example where one cannot contract out of medmal for cheaper care

Weaver v. Ward

King's Bench court held that the victim of an accidental shooting could sue the shooter under the writ of "trespass" notwithstanding the absence of any preexisting relationship bt them

Leffler v. Sharp (Miss. 2004 SC)

Leffler sought damages for injuries he received when he fell thru the roof of the premises immediately adjacent to the D's property Principle: Can't be invitee to roof bc Ds did not benefit from P being there; Leffler not a licensee bc no permission given; Neither parties also provided evidence that Inn employees were aware that some patrons had entered the roof area; P was a trespasser & an owner owes no duty to keep his premises in a safe condition for their use AND a lawndowner need not make it impossible for persons to trespass b4 he can treat intruders as trespassers

Physcians and duty to 3rd parties

Majority supposes physicians are under a duty to protect 3rd parties from physical lapses (stop them from driving if they know they have epilepsy) as well but some reject this duty (given the physician has no authority to take driver licenses away & epileptic patient knows they have epilepsy so no duty owed to 3rd parties); Some courts are willing to impose liability due to physician's failure to advise of the risks associated w an active course of treatment

Loss of consortium v. wrongful death

Loss of consortium -> non fatal injuries; wrongful death action -> death

MacPherson v. Buick

MacPherson was injured when a wheel on his car failed while driving it- Buick argued they didn't owe a duty to customers who bought from third parties, argument rejected by Courts

Governmental Immunities for Localities (subdivisons of the state)

Major distinction here is governmental v. proprietary activities; Eg. utilities, transportation - more proprietary, open to liability; Eg. law & rescue, firefighters - more governmental immunity bc these dept have to decide how they allocate their functions (more policy decisions)

Cincinnati, N.O. v. Marrs

Marrs was heavily intoxicated & disembarked from D's train late at night falling asleep on tracks, employee roused him and told him to leave & he fell back asleep & was killed -> says in these circumstances D cannot argue he was a trespasser and thus no duty, they had recognized him and encountered him twice and could have taken reasonable steps to avoid it, by waking him up, they made him worse off cause then he fell asleep on the actual tracks

Kambat v. St. Francis Hosp.

Medical malpractice action, a pad was found in P Principle: To use res ipsa, P need not conclusively eliminate the possibilities of all other causes of the injury, just need to show the greater probability lies at D's door; Submission of res ipsa merely permits the jury to infer negligence, doesn't compel

Careless v. Indifferent

Menlove - consciously careless; Mathias - consciously indifferent

Assumptions w dead victims & failure to warn

Most courts assume if the warning was there, the P would have heeded it in dead victim cases

1 Neglient Fire & 1 Natural Cause Fire

Most courts don't impose liability in this case

Difference in NESS and MSC test

NESS does not require each individual D's breach to be sufficient for the injury

Irreducibly unsafe products?

NJ court says is if it is irreducibly unsafe products (w/ no RAD), Ps prevail, sticking w SL (minority opinion, most jurisdictions don't do this)

NJ on failure to warn

NJ, minority, says what they care ab is the reasonability of the product, regardless of not being able to foresee an actual risk -> more strict liability

Eggshell P & objectively offensive touching

Needs to be objectively offensive, once you've reached the objective offensiveness (a jury could disagree) then eggshell P applies [no modified standard here, just pure objective]; Rstmt might be saying if a D has reason to know a P is an eggshell P so they might be easily offended then they could be on the hook

Negligence v. SL effect

Negligence focuses on safety levels, if there's something that's cost-justified that would make something, you should do it; SL focuses on activity levels, want to deter from doing the activity

Shortcuts!

Negligence per se and professional SOC, eggshell P rule

Other qualified-duty cases

Negligent infliction of emotional distress

Historical evolution of NEID rule

No recovery for NEID -> recovery if physical impact -> fear of victims own safety/zone of danger rule; Evolution: no duty w.o personal physical injury -> impact rule (1st softening, it's enough that, however minimal, there was an impact to bring the claim) -> zone of danger rule (p. 125 - Mitchell case) Mitchell case - two horses negligently were allowed to charge towards a pregnant woman and as a result of shock, she miscarries -> courts say change what injury is (fright induced injury BUT issues w proximate cause) but others, more fruitfully, said as long as the person was in the zone of danger they can recover

attractive nuisance doctrine

Not enough to say that he should not have been messing around with the boat; TJ made his ruling based on statutory provisions that defined the common duty of care to occupiers that also provided that children will be less careful than adults; Basically the occupier is under a duty to protect a child from danger caused by meddling w such an object

Where to address immunities

Not gonna obsess over if this is an affirmative defense or no duty/no breach (can do either)

Voluntary Undertakings Exception

Occurs when the D has volunteered to protect another from physical injury or property damage, or to rescue another from physical peril (Rstmt §42); Can arise from contractual promise or a less formal undertaking

Hunt v. Ohio Dept. of Rehabilitation & Correction (Ohio Court, 1997)

Ohio bars P recovery if they find a Ps fault was greater than 50 of his injuries than any acts of the D, not the case here (40%); Reduced her damages by 40%

Pure comparative fault

there's no cap, D must pay however responsible no matter how small (lots adopted this bc they didn't want to get out of their lane and breach policymaking w more than or less than 50%)

Easy Duty Cases

Ones in which the P's allegation is that the D carelessly engaged in conduct that directly caused the P physical harm

NOTE on tripartite today

Only CL distinguishes bt licensees and invitees anymore and only CA j does reasonable care to all in the circumstances

Victor (P) v. Hedges (D)

P and D were standing on the sidewalk when an inattentive motorist drove over the curb, seriously injuring P Principle: The section of the Vehicle Code the P is arguing D violated's purpose appears to be both to prevent vehicular obstruction of pedestrian traffic and to lessen the danger of vehicle-pedestrian collision; The section was not designed to prevent the type of occurrence that resulted in P's injury

Superseding Cause and Affirmative Duties

P can still argue that even though the injuring was the intervening actor's doing and not the D's doing, the D nonetheless breached an affirmative duty owed to P to protect or rescue from intervening wrongdoer's doing; In that case, superseding doctrine is rendered moot; must still argue duty & breach

Torgesen v. Schultz (1908)

P lost an eye after placing a carbonated water on ice & it exploded - Court held bottle of aerated water is an inherently dangerous instrument

Gross negligence

P must prove the D lacked even scant care or extreme departure from ordinary care)

Campbell v. Kovich

P party was struck in the eye by an object they believed came from D's lawn mower. Rule: Ashton was not required to exercise extraordinary care - > reasonable minds could not disagree that Ashton exercised due care so the trial court did not err in granting summary disposition to Ashton

Bayne v. Todd Shipyards Corp.

P sued for personal injuries sustained while unloading goods being delivered to D's premises Principle: administrative regulation was negligence per se & could be evidence

Causation & Abnormally Dangerous Activities

P suing for injuries allegedly ADA must demonstrate that the ADA was an actual and proximate cause of her injuries

Breakdown of exam answer

P v D - Duty, breach, causation (2 types: cause & fact), proximate cause, damages then do defenses for D W each P and D, same deal w each

US v. Reliable Transfer Co. (US SC 1975)

P was found 75% responsible while D was 25%; Hold that when two or more parties have contributed by their fault to cause property damage in a maritime collision or stranding, liability for such damage is to be allocated among the parties proportionately to the comparative degree of their fault; impose a pure comparative fault system but will default to divided damages if they are truly 50/50 or there's lack of evidence for fault; court decides it's a comparative fault defense

Jones v. Port Authority of Allegheny County

P was injured on a PAT bus. Principle: Trial court erred in jury instructions, in refusing to charge the jury that PAT, a common carrier, owes the "highest duty of care" to its passengers (higher than that of an ordinary person)

How to begin PD inquiry into constitutionality

PD may be properly imposed to further a State's legitimate interests in punishing unlawful conduct and deterring its repetition- the federal excessiveness inquiry appropriately begins w an identification of the state interests that a punitive award is designed to serve

Different jurisdictions names for non-economc harm can change the bar

Pain & suffering title might bar recovery for ppl who can no longer consciously acknowledge their injured situation whereas loss of enjoyment of life would take that into account

Devlin v. Smith (1882)

Painter's servants were killed by falling from carelessly erected scaffolding -> CoA reversed lower court's reliance on Winterbottom, upholding Thomas saying it was imminently dangerous to human life so manufacturer owed a duty to 3rd party

How is Palsgraf used?

Palsgraf is taken as a proximate cause rule and made to show that someone is an unforeseeable victim

Immunity for disciplining children

Parental immunity did not extend to willful and wanton mistreatments of children HOWEVER parents are permitted to intentionally use a certain amount of physical force or coercion to discipline the child for bad behavior (this is not recognized in law, moreso courts' recognition of privilege of reasonable parental discipline, lost if abused)

Martin v. Evans

Personal injury suit, Evans' tractor trailer backed into Appellee Martin Principle: Jury found Evans was not negligent & Court of Appeals found the trial court usurped the jury's responsibility by disregarding its findings that Evans was not negligent. Reversed & reinstate jury's verdict; Credibility determinations are within the sole province of the jury (they can decide what they want to believe in the facts of the case)

P's participation w res ipsa

Plaintiff's participation feature gets swallowed into 1st feature and is already taken into account with comparative/contributory already

Negligence judge/jury

Presumably it is for the court to determine if the excuse proffered by the statutory violation is of a type recognized by the law of negligence and for the jury to determine if the conditions necessary to establish the excuse have been met

Jones v. Dressel (Colo. 1981) - P (17) signed a contract w Free Flight, allowing P to use their recreational skydiving facilities including a covenant not to sue and a clause exempting Free Flight from liability for negligence

Principle: 1) Says as a matter of public policy, a minor can disaffirm or ratify contracts they entered into as minors after a reasonable time after they have entered into majority - court finds P ratified the contract by continuing to use the facility/benefits of the contract after he attained his majority, 2) the contract was not void for policy reasons; 3) the contract was valid due to 4 factor considerations

Aikens v. Debow (W. Va, 2000) - Debow, a truck driver, drove under a bridge and damaged it w his load resulting in the bridge being closed for 19 days for repairs; P owns a motel & restaurant that is most easily accessible thru the bridge but there are other alt routes

Principle: ; a claimant who has sustained purely economic loss as a result of an interruption in commerce caused by negligent injury may not recover damages absent privity or some other special relationship

McDonald v. Robinson - Two cars collided at an intersection and became interlocked

Principle: A common intent, purpose, & design on the part of the wrongdoers to do a particular wrong or injury (eg. conspiracy) is not always essential; Rule: If the acts of two or more persons concur in contributing to and causing an accident and but for such concurrence the accident would not have happened, the injured person may sue the actors jointly or severally, and recover against one or all; was the D's action "a" cause, not "the" cause (multiple necessary causes case)

Greenman v. Yuba Power Prods., Inc. (Cal. 1963) - P brought action against the retailer & manufacturer of a power tool; His wife bought one for him and he bought the necessary attachments

Principle: A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used w/o inspection for defects, proves to have a defect that causes injury to a human being; To establish the manufacturer's liability it was sufficient that P proved that he was injured while using the tool in a way it was intended to be used as a result of a defect in design and manufacture of which P was not aware that made the tool unsafe for its intended use

Ryan v. New York Central

Principle: A railway's engine catches and burns a nearby shed then went on to burn down the P's house; Court concludes no liability bc it's not direct liability (can't say it's natural to have spread over 1 degree of liability) [natural and ordinary def of proximate]

Garratt v. Dailey case (1955) - D pulled a chair out from under his aunt as she began to sit in it; she fell & broke her hip; D argued he had moved the chair b4 he realized his aunt was ab to sit then hurriedly tried to move it back unsuccessfully; judge ruled for aunt, holding D was "substantially certain" that his aunt would fall as a result of his moving the chair, decision affirmed

Principle: Altho Garratt has come to stand as a leading authority for the existence of a separate "knowledge" standard for battery liability, the facts of the case do not seem to have necessitated or even warranted application of that standard -> if P's claims that D acted as a prank then standard intent applies AND if D claims he did not know his aunt was going to sit then neither applies

Anderson v. Owens-Corning Fiberglas Corp. (CA 1991) - P exposed to asbestos while working as an electrician in the vicinity of others working w asbestos in shipyard & D sought to introduce state-of-the-art evidence

Principle: CA courts either expressly or by implication have to date required knowledge, actual or constructive, of potential risk or danger b4 imposing strict liability for a failure to warn so state of the art is relevant to q of knowability; Don't want to make a manufacturer the virtual insurer of its product's safe use (no absolute liability); how can someone warn of something that is unknowable?

Thing v. La Chusa (CA, 1989) - A minor struck by car, mother who was nearby neither saw nor heard the accident, she became aware when her daughter told her and she found him bleeding in road, believing he was dead

Principle: Conclude societal benefits of certainty in the law dictate limitation of bystander recovery of damages for emotional distress; In the absence of physical injury or impact to the P himself, damages for emotional distress should be recoverable only if the P: (1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in disinterested witness

Dillon v. Legg (California, 1968) - P watched child be hit by car and die and sustained great emotional disturbance and shock and injury to her nervous system which caused her great physical and mental pain and suffering & brings claim for other daughter for fear of sister standing nearby decedent during accident

Principle: Concludes the grounds offered for no duty even though foreseeable that harm to mother would result from harm to child are inadequate to justify the frustration to natural justice upon which the mother's claim rest; Mother can recover in this case; for second daughter bc she feared for her own life Says case illustrates the fallacy of the rule (zone of danger rule) that would deny recovery in one situation but not the other

Marshall v. Nugent - finds proximate cause for T's negligence in a situation where T drives M off the road and in an attempt to get him back on the road N hits M

Principle: Concludes though the particular act of negligence was over and done w when the truck pulled up alongside the stalled car w.o having actually collided w it, still the consequences of such past negligence were in the bosom of time, as yet unrevealed

Ford Motor Co. v. Boomer - asbestos case where it could have been from Ford & earlier shipyard job

Principle: Correct jury instruction language: D's actions would have been "sufficient to have caused the harm"

Baker v. Fenneman & Brown Properties, LLC - Taco Bell case

Principle: D had a duty to exercise reasonable care bc of its special relation of business-invitee; Rstmt says initial injury could be a result of natural causes

Brooker v. Silverthorne (S.C. 1919) - D appeals for P judgment for mental anguish and nervous shock allegedly caused by abusive and threatening lang addressed to the P by D over the telephone

Principle: D said "if i was there, I'd break your neck" -> no expression of an intention to injure in the future and therefore no threat; not civilly actionable

Chow v. Reckitt & Colman, Inc. (NY 2011): P could not read the instructions/English & learn how to use product by following examples of others; A splash back occurred & P lost vision/suffered burns

Principle: Dismiss failure to warn but reverse dismissal of design defect; A D moving for SJ in a defective design case must do more than state, in categorical lang in an attorney's affirmation, that is product is inherently dangerous and that its dangers are well known; A D must demonstrate that its product is reasonably safe for its intended use; that is, the utility of the product outweighs its inherent danger & D failed to make such a showing

Butts v. Weisz - Estate suing over death of husband after he tripped down the stairs in the dark while visiting D's home

Principle: Failed to establish a causal link bt the alleged breaches of duty and the accident (can't have an expert speculate to Glenn reaching for the light switch); Evidence establishing an increased risk of harm is not evidence that those conditions caused Glenn's fall; No evidence that their expertise could infer that; not enough for the jury to find for the P reasonably (P had not met the burden of production to get to jury)

Cole v. Hibberd (Ohio App. 1994) - P argues D negligently struck P in the lower lumbar area which caused her injuries while drunk & D laughed after and P's husband laughed as well

Principle: Filing was untimely but construing facts in P's favor, doesn't matter if D intended harm but she did intend kick and this resulted arguably in an offense to a reasonable sense of personal dignity

Vincent v. Lake Erie Transportation Co, puzzle - whether (and if so why) an actor can be held liable for invaidng another's property notwithstanding that the invasion was undertaken out of necessity

Principle: Here those in charge of the vessel deliberately and by their direct efforts held her in such a position that the damage to the dock resulted and having thus preserved the ship at the expense of the dock, it seems to us that her owners are responsible to the dock owners to the extent of the injury inflicted; Says public necessity in times of war or peace may require the taking of private property for public purposes; but under our system of jurisprudence compensation must be made; Dissent: If the boat was lawfully in position at the time the storm broke & the master could not, in the exercise of due care, have left that position w.o subjecting the vessel to the hazards of the storm then the damage to the dock caused by the pounding of the boat was the result of an inevitable accident; also deterrence - gives incentive for dock owners to allow boat owners to moor in times of emergency; puzzling, not a lot of situation bc regardless of cost-effectiveness/reasonable someone is paying; Sort of facilitates the bargaining of what might have occurred before the storm

MacPherson v. Buick Motor Co. (1916) - NY CoA's struggle w privity rule in negligence law was largely resolved in MacPherson decision where Buick sold a car to a retailer who sold to the victim

Principle: Hold that the principle of Thomas is not limited to poisons, explosives, and things of like nature; The presence of a known danger, attendant upon a known use, makes vigilance a duty, put aside the notion that the duty to safeguard life and limb when the consequences of negligence may be foreseen grows out of contract and nothing else, some duties arise out of law itself (to conduct in a reasonable way as to protect of life and limb); If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used w.o new tests, then irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully It must be probable to create danger if negligent manufactuered (Q for jury AND judge); Now all you have to ask is whether it was a foreseeable risk, probable danger; Put source of duty in the law, not getting the principles from contract anymore

Dalury v. S-K-I, Ltd (Vt, 1995) - P sustained serious injuries when he collided w a metal pole that formed part of the control maze for a ski lift line; P had purchased a midweek season pass and signed a form releasing the ski area from liability

Principle: Hold the exculpatory agreements which Ds require skiers to sign, releasing Ds from all liability resulting from negligence, are void as contrary to public policy; Conclude that ultimately the determination of what constitutes the public interest must be made considering the totality of the circumtances of any given case against the backdrop of current societal expectations; Court argues altho each sale of a ticket is a private matter, when a substantial number of sales take place -> public interest arises; Policy rationale is Ds, not recreational skiers, are in a better position to lower risks associated w premises; A recognition of the principles underlying premises liability (invitee's duty of care) makes clear the inadequacy of relying upon the essential public service factor in the analysis of public recreation cases, while essentiality of service should be taken into consideration, it does not represent the universe of activities that implicate public concerns; Also the emphasis of privately owned premises open to the public makes no difference

Escola v. Coca Cola Bottling Co. of Fresno (Cal. 1944) - P, a waitress, was injured when a bottle of Coca Cola broke in her hand; P utilized res ipsa

Principle: Holds as long as D had exclusive control (or at the time of injury the P had not changed the product/handled product carefully) and the injury/accident was not one that could occur w.out the negligence of the D, res ipsa applies; Concurrence: The manufacturer's liability should be defined in terms of the safety of the product in normal and proper use, & should not extend to injuries that cannot be traced to the product as it reached the market

Vetter v. Morgan (Kan. App. 1995) - At a stop light, D yelled and made obscene gestures, P then claims driver w D inside veered into her lane causing her to veer off & hit the curb and sustain injuries

Principle: Holds it is not necessary that the victim be placed in apprehension of instantaneous harm, sufficient if it appears there will be no significant delay; It is enough that P believed that D was capable of immediately inflicting the contact unless prevented by self-defense, flight, or intervention by others AND D could be responsible for driver's alleged swerving bc they were acting "in concert" w one another

Palsgraf v. Long Island Railroad Co. (NY, 1928), Cardozo - Mishap on train cause fireworks to drop and explode and hit P at the other end of the platform, many feet away

Principle: If the harm was not intended, P must show that the risk was so apparent as to entitle him to be protected against the doing of the unintentional harm; Dissent - Says relation def of duty is too narrow- negligence should be defined as an act or omission which unreasonably does or may affect the rights of others, or which unreasonably fails to protect oneself from the dangers resulting from such acts & goes back to Polemis, rejecting zone of danger idea; Palsgraf is more Wagonmound, sitting outside scope of the risk

Vosburg v. Putney (Wisconsin, 1891) - Action brought to recover damages for an assault & battery

Principle: If the intended act is unlawful, the intention to commit it must necessarily be unlawful; Had the kick occurred during recess, might be a diff story but it was during class -> unlawful

Strauss v. Belle Realty Co. (NY 1985) - Claim arises out of failure of D ConEd's power system leaving most of NYC in darkness & P fell down apt steps

Principle: In a case of a blackout of a metropolis of several million residents and visitors, each in some manner necessarily affected by a 25 hour power failure, liability for injuries in a building's common areas should, as a matter of public policy, be limited by the contractual relationship; great example of arbitrary line drawing for policy reasons

Smith v. Leech Brain & Co. Ltd. - Ironworker suffered wound never healed and he developed cancer which killed him

Principle: In this case, its a q of whether these employers could reasonably foresee the type of injury he suffered [the burn], not whether he developed cancer from the burn/dies & D is responsible for all damages until the P is compensated

Beach v. Hancock (NH, 1853) - P & D engaged in an angry altercation, D stepped into his office and brought out an unloaded gun which he aimed at P in an excited and threatening manner

Principle: It must be a reasonable fear for the P, it was reasonable & D is guilty

Cecarelli v. Maher (1943) - P was beaten up unprovoked by D and 2 others

Principle: Judgment entered for P in default for comp damages; strict liability

Waube v. Warrington (Wisconsin, 1935) - Waube was looking at the window watching her daughter Dolores cross the road when she witnessed D negligently run over and kill Dolores, dying 2 weeks later

Principle: No duty to mother watching her child be run over; Uses Palsgraf to hold Wisconsin law says it must be fear of personal injury, not fear of injury to his property or to another person; Concludes that they can neither justly nor expediently be extended to recovery for physical injuries sustained by one out of the range of ordinary physical peril as a result of the shock of witnessing another's danger

Tarasoff v. The Regents of the University of California (Cal. 1976) - Poddar killed Tarasoff and P, her parents, allege Poddar confided his intention to kill P to a psychologist employed by Cowell Memorial at UC Berkeley

Principle: P can state a cause of action against D Therapists for Negligent Failure to protect Tatiana, but immunity for failure to confine Poddar; says special relationship duty to protect 3rd parties; D therapists cannot escape liability merely bc Tatiana herself was not their patient, such relationship supports affirmative duties to 3rd parties; When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger or violence to one another, he incurs an obligation to use reasonable care to protect the intended victim against such danger -> this discharge of duty requires he take whatever steps reasonably necessary in the circumstances SO there is an argument against therapists; MOST IMP: foreseeability limiting Heaven's application of duty

Summers v. Tice - P's action was against both D for an injury to eye & face after being shot while quail hunting

Principle: P is not required to supply evidence for the apportionment of damages; D is liable for the whole damage whether they are deemed to be acting in concert or independently; Burden shifts to D to absolve themselves of their approprionate damage (like Ybarra)

Contingency fees for damages

these awards are not taxed but these awards are diminished by contingency fees to pay attorneys

The Wagon Mound (no. 1) - when workers carelessly released a large slick of oil into the harbor that was near another dock, Morts Dock, carrying another ship named the Corrimal, Supervisor of Morts Dock order its workers to allow activity and as a result Morts Dock and the Corrimal were destroyed

Principle: Polemis was no longer good law -> the test for proximate cause should be whether the type of harm suffered from the P was reasonably foreseeable to the Ds at the time they acted carelessly; So D not liable since they could have foreseen mucking up the dock w oil, but not it catching on fire; no liability bc outside the scope of risk

Pingaro v. Rossi (NJ App. Div. 1999) - Jury awarded damages to P, a meter reader, for injuries she sustained as a result of a dog bite she suffered from a dog by D

Principle: Satisfaction of the elements of the NJ "dog bite" statute imposes strict liability upon D for damages sustained to P; P need not prove scienter, that D knew of the dog's dangerous propensities

Mathias v. Accor Economy Lodging, Inc. (7th circ, 2003) - Ps were bitten by bed bugs in Accor's Red Roof Inn and argued Ds were guilty of willful and wanton conduct and this liable for punitive damages, jury awarded them punitive damages, Ds appealed on punitive damages

Principle: Says award, although arbitrary, can stand; Failure to either warn guests or take effective measures to eliminate the bedbugs amounted to fraud and probably to battery as well... there is sufficient evidence of "willful and wanton conduct" w.in the meaning of the IL courts to assign punitive damages; Says punitive damages should be proportional to the wrongfulness of the D's actions

Wyman v. Leavitt (Maine SC 1880) - Wyman's wife claims she suffered anxiety as the result of the careless blasting of rocks and the rocks being thrown upon the Wyman's property

Principle: Says cannot find any decided case which holds that mental suffering alone, unattended by an injury to the person caused by simple actionable negligence can sustain an action

Port Authority of NY & NJ v. Arcadian Corp.- building wants to sue fertilizer company after its materials were used to bomb the building & court finds failure to state a claim

Principle: Says the misuse in this case was not objectively foreseeable, industry-wide & not a matter for jury as it is clearly not objectively foreseeable & Finds the terrorists' actions were supersecding and intervening events breaking the chain of causation

Quisenberry v. Huntington Ingalls Inc. (Va, SC 2018) - Wrongful death suit, P alleged D negligently caused the death of his mother as an employer through allowing asbestos through laundering her husbands work clothes

Principle: Says there can be a duty, it's a q of evidentiary proof; Where no relationship exists, it is axiomatic that there is no duty YET the existence of a duty does not depend on proving a particular relationship but arises from the basic and necessary regulation of civilization which forbids any person bc of his own convenience, to recklessly, heedlessly or carelessly injure another; The pleadings support a recognizable risk of harm to a class of persons w/in a given area of danger of D's conduct including Wanda & ppl similarly situated

Osterlind v. Hill - Duty of the D to have a reasonable regard for the safety of the persons whom he let boats and canoes, giving a frail and dangerous boat to Osterlind & Ryan who were clearly intoxicated which led to Osterlind drowning

Principle: Seeing as Osterlind held on to boat for hours yelling, he was able to take steps to protect himself- the D thus violated no legal duty in renting a canoe to a man in the condition of Osterlind, there was no legal duty to act

Koffman v. Garnett (Va. 2003) - Asst. coach (D) ordered P to hold a football & stand upright and motionless so that D could explain the proper tackling technique to the defensive players; the force broke arm

Principle: Sufficient to establish gross negligence & battery as q of fact for jury as to whether P consented & reasonable ppl could disagree; Insufficient to establish an assault as no allegation made for apprehension & claims of P not having a warning of being tackled; P tried to argue apprehension when P was lifted off the ground but by that point battery had begun; Possibility for assault (it was turned into a battery) but it can make PD bigger

Pollard v. Oklahoma City Railway - railway left residue blasting powder carelessly, a boy took somehome w him, friend attempt to sue railway after injury and court dismissed the suit

Principle: The boy's intervention was of such a nature to block the imposition of liability on the railroad; The injury was not the natural or probably consequence of the railroad's negligence; Took possession of the powder, maintained it, and was present when the 3rd party was present

Paul v. Holbrook (FL App. 1997) - Holbrook allegedly sexually harassed, co-worker, Paul; Tried to massage her shoulders

Principle: The element of personal indignity involved always has been given considerable weight -> thus D is liable not only for contacts which do actual harm but also for those relatively trivial ones which are merely offensive and insulting; Test is what would be offensive to an ordinary person not unduly sensitive to personal dignity; no intention to cause harm is necessary

Union Pump Co. v. Allbritton - P tripped and injured herself while checking on something post D's pump catching on fire

Principle: The pump fire did no more than create the condition that made P's injuries possible; might be a but-for cause but not a proximate cause

Jolley v. Sutton London Borough Council - In a block of flats owned by D, P sustained serious spinal injuries due to a small abandoned boat falling on him as he lay underneath it to repair/paint it

Principle: What the P was engaged in was v diff from normal play; Even making full allowance for the unpredictbiltiy of children's behavior, court concluded that it was not reasonably foreseeable that an accident could occur as a result of the boys deciding to work under a propped up boat; "Important to not only consider the precise accident which occurred but the class of accident"

Robb v. Pennsylvania R.R. Co. (Delaware SC, 1965) - D negligently allowed a rut to form near train tracks and P got stuck in rut while trying to drive across the tracks, D's train almost hit her car but she got out in time, her car damaged; As a result, the fright and nervous shock resulted in physical injuries

Principle: Where negligence proximately caused fright, in one within the immediate area of physical danger from that negligence, which in turn produced physical consequences such as would be elements of damage if a bodily injury had been suffered, the injured party is entitled to recover under an application of the prevailing principles of law as to negligence and proximate causation; impact rule does not bar recovery

Muckler v. Buchl - P's decedent fell down a flight of stairs in her apt house and broke her hip in the fall

Principle: Working in the field of probability -> the line separating fact situations where an inference of causation is permissible from those in which it is not must, of necessity, reflect the general practical experience of the court callled upon to draw the line; It seems reasonable that one attempting to descend a stairway so dark that steps are barely discernible would be likely to fall bc of the darkness; Court thinks there is enough that the jury could find in favor of the P

Wilson Sporting Goods Co. v. Hickox (DC 2013) - P was injured while wearing a mask manufactured by D after ad assurances that it would protect from injury

Principle: adequate testimony, Simply showing that the plaintiff knew the general risks of baseball umpiring was inadequate; Combined w expert testimony that P would not have suffered the same injury if he had worn an alternative mask and expert testifying Wilson would have discovered the defect if it had conducted testing to measure the force exerted by the masks -> sufficient to establish proximate cause; safer alternatives existed; experts not required to perform any testing themselves

Polemis and Furness

Principle: appeal justices held bc D's employees' careless acts directly caused the explosion, D could not benefit from the clause of exemption, the unforeseeability was irrelevant; Even though it was not foreseeable at all the a board could fall and cause such catastrophic explosion; Breach is dropping the wood (someone could have been hurt)

Riley v. US (8th Cir. 2007) - Postmaster refused to remove mailboxes that hinder sight of traffic that caused incident, after accident mailboxes were moved, dismissed for immunity

Principle: court finds the provisions are guidelines/not mandatory and determines discretionary function exception applies

Cooper v. Takeda Pharmaceuticals America, Inc. - Numerous Ps have sued Takeda for a drug that make, Coopers were one of the Ps and they alleged that Jack developed bladder cancer from ingesting the drug

Principle: expert's testimony was admissible; standard of proof - don't have to exclude all other causes of the cancer (just has to provide evidence if it's more likely than not (but-for the drug, the cancer wouldn't have formed) that the D's breach caused the injury- if testimony goes to that, admissible!); Expert testified to general and specific causation (in this specific case, could it have been the cause?)

Farewell v. Keaton - friend beaten to death and is left w/o medical attention

Principle: friend-friend special relationship sufficed creating an affirmative duty

Klein v. Pyrodyne Corp. (Wash. 1991) - P were injured when an aerial shell at a public fireworks exhibition; D is the pyrotechnic company hired to set up & discharge the fireworks

Principle: hold that conducting public fireworks displays is an abnormally dangerous activity justifying the imposition of strict liability & that public policy and the statute support this finding

Rylands v. Fletcher (1868) - No one was aware of volatile circumstances underneath the reservoir, resulting in flooding of P's mine

Principle: if the Ds desired to use the land for any non-natural use purpose like introducing water, then the Ds were doing so at their own peril & Ds would be liable for any harm done; No matter how innocently he causes the damages, he should be the party to suffer; D can excuse himself of liable if he can show P's default but none here or that the flooding was an act of God

Sindell v. Abbott Labs - DES case

Principle: market share liability holding

National By-Products, Inc. v. Searchy House Moving Co. (Ark. 1987) - National's driver struck two bystanders, another tractor-trailer, and a house being transported on a trailer rig. The bystanders' estates filed wrongful death actions against the house movers and the corporation. A jury award punitive damages against National for Searchy property damage

Principle: punitive damages calls for evidence of wantonly acting in causing the injury or w such a conscious indifference to the consequences that malice may be inferred; It must appear that the negligent party knew or had reason to believe that his act of negligence was ab to inflict injury & that he continued in his course w a conscious indifference to the consequences from which malice is inferred; Here, there is proof of gross negligence, but not enough for punitive damages; No evidence that D intentionally acted in such a way that the natural and probable consequence was to damage P's property; court is a little worried that if this is PD, then there will be lots of automobile PD cases, not to say that there wasn't a case here but they're worried about future cases

Petitions of the Kinsman Transit Co. (2d Cir 1964, US SC 1965) - where negligence on boat owners and bridge operators lead to a flooding

Principle: the extent was unforeseeable - court holds however, foreseeability of danger is necessary to render conduct negligent; where as here the damage was caused by just those forces whose existence required the exercise of greater care than was taken- the current, the ice, and the physical amss of the Shiras, the incurring of consequences other and greater than foreseen does not make the conduct less culpable or provide a reasoned basis for insulation; Q is do they owe damages to the ones who got flooded out? Now, they are afraid of potentially collision damage (that's foreseeable) but says that's the same as flooding damages -> all property damage & harm w.in the risk; Says j bc there's a more salient risk doesn't mean that the more remote one is unforeseeable

Jacque v. Steenberg Homes case - D places mobile homes & wants permission to move thru their land to move the home & P says no but D does it anyways; No actually damages to P's land -> get $1 in CD & 100,000 in PD (pre-State Farm w 1 digit ratio); Court justified this & says it's the principle, flagrant trespasser

Principle: there's something at stake here that's more than j the actual compensatory damages, dignitary harm

Kenton v. Hyatt Hotels Corp. (Mo. 1985)

Rejects remittur; Says it does fall on the high side, but it is comparable to other cases & reasonable based on facts; Court finds the evidence was relevant, material, & appropriate, its probative value far outweighed any prejudicial effect it might have had on the jury, there was no error in admitting the evidence even though liability was already admitted; The jury was entitled to consider the intangibles of the evidence of P's past and future pain and suffering, the destruction of her previous lifestyle, along w the evidence of economic loss; there is no exact formula; each case should be considered on their own facts

application of the "public duty rule"

Riss example; normally does not create an immunity defense but instead provides a rule that negates the duty element; typically comes up w affirmative duties

Robb & Dillon cases

Robb was decided as a physical harm case, Dillon has been received by subsequent courts as a decision articulating the rules for NIED recovery

Mental disabilities

they are not exempt, except if its a random, one-time occurrence (i.e. a random episode akin to lack of liability of having a heart attack behind the wheel)

Pacific Mut. Life Ins. Co. v. Haslip

SC held Due Process Clause entails that states must afford Ds adequate procedural protections if they are going to permit the imposition of punitive damages

threats to fire employees

SPLIT on if those are sufficient to erode consent in an action for battery

lack of consent for intentional torts

SPLIT; some jurisdictions utilize as an element in the prima facie case OR consent as an affirmative defense

Gore's 4 factor test for fair notice on punitive damages

Says BMW did not received adequate notice of the magnitude of the sanction so 2 mil is grossly excessive under 3 guideposts: 1) degree of reprehensibility, 3) sanctions for comparable conduct, & 2) the ratio bt the harm/potential harm suffered & the punitive damages

Martin v. Herzog Principle

Says not having headlights is negligence per se in itself because lights are intended for the safety of the general public- shouldn't encourage the jury to think that one can ignore a breach of safety statutes

Burns Philp Food, Inc. v. Cavalea Cont'l Freight, Inc. (7th Cir. 1998)

Says state law trumps any notions of justice the trial court had; Cavalea is entitled to damages if it suffered monetary loss bc IL says trespass is strict liability; Don't have to give notice to trespassers that they are trespassing, can do whatever's legal to rectify (bodily harm - not legal)

Riss dissent

Says the fear of financial disaster of holding the city liable is a myth, says disaster did not ensue when lifting immunity in other scenarios; Argues if the police dept is in such a deplorable state that the city bc of insufficient manpower is truly unable to protect persons in P's position, then liablity not only should but MUST be imposed; Also argues not dealing w taking over policy decisions for the Police Commissioner- decision was due to plain negligence; Akins police protection to judicial decisions to govt medical malpractice or negligent sidewalks holding basically saying more money should have been allocated there to avoid the problem; Rationale: 1) impose vicarious liability; 2) ask police dept to either improve public admin or accept the cost of compensating injured persons

CA design defect test strategy

Says use risk-utility in situations that require expertise (not 100% true) & if can be describe in pretty laymen's terms so consumer expertise test

Guidelines for what qualifies as a Product

Services even when provided commercially are not products As an item comes more closely to taking the form of real property, it is unlikely to qualify as a product (but mass-produced homes can be considered products) Human body parts -> Not considered products Live animals -> not considered products but courts differ depending on the context in which the injury caused by the animal comes out (eg. dog the bites v. dog that carried a disease when sold) Textual materials -> not products BUT maps & charts can be considered products Intangibles reside on the margin (eg. electricity or x-rays) Used products are not normally subject to strict products liability altho detailed doctrine now exists that qualifies this rule Some jurisdictions deem a type of item a product but exempt it from products liability laws (eg. prescription drugs & vaccines)

Panagakos v. Walsh- friends not liable for friend who was killed walking home intoxicated after helping him illegally get into a bar

So friend-friend, imminent peril exception did not apply

How to treat duty, summarized

Some argue duty is not about whether the D was under an obligation to persons such as the P to be vigilant as to their physical well-being but instead calls for a multifactor inquiry that aims to determine whether society will in some aggregate sense be better off if liability is permitted or blocked

Liability of Property Owners for On-Premises Attacks

Some have held landlords are responsible to take reasonable security measures to protect tenants from attacks in common areas such as lobbies & hallways, same w motels/stores open to the public; Others employ a multi-factor test to determine whether and to what extent a duty is owed (if crime is high, if the person was dragged there, if it's a high crime area, etc.)

Breach & implied assumption of risk

Some instances implied assumption of risk rulings seem strongly to resemble no-breach-as-a-MOL rulings (eg. Cardozo's Murphy v. Steeplechase Amusement Co. case where P falls on an amusement park game that was designed to try to make players fall)

"reasonably prudent parent"

Some states j use a "reasonably prudent parent" standard (CA), others say parents can't be sued for injuries arising out of a decision that parents sincerely but unreasonably believed was part of a beneficial program for the child

Statutes & the common law of tort

Some supplant tort law (e.g. workers' compensation statutes), Others eliminate, partially block, or otherwise limit the operation of tort law w/out providing an alternative scheme of redress (e.g. abolition "amatory" torts)

Distribution Chains & Indemnification

The capacity for members of such a distributive chain to insure themselves, and to negotiate with one another over indemnification, is among the reasons that our system does not consider strict liability for sellers to be inherently inequitable

black letter doctrine on comp jury awards

Task of assigning judgment of damages is quintessentially one of judgment for the jury so black letter doctrine holds a trial judge should not second-guess a jury's award unless evidence that it shocks the conscience

"Duty" element and battery/assault

Tender years doctrine do not apply to intentional torts; So everyone is taken to have a duty not to conduct intentional torts

Test for what is offensive for battery

Test is what would be offensive to an ordinary person not unduly sensitive to personal dignity; the test for "offensiveness" is "objective" rather than "subjective"

BMW of North America, Inc. v. Gore (US SC, 1996)

The 2mil was grossly excessive and the judgment is reversed for not disclosing damage on car that was repaired based on nationwide policy; 1) harm inflicted was purely economic in nature, no evidence of a pattern of deliberate wrongdoing nationally; 2) says PD suggests the harm/potential harm to Gore was 500 CD, false & no evidence that anyone was threatened w any further harm; 3) says 2 mil sanction is substantially greater than the statutory fines avail in AL & elsewhere for similar misfeasance; 1st time in history that SC holds PD can be subject to Due Process and can cap PD

Failure to warn whom?

The consumer or those reasonably expected to use the product

"wrongful death claims"

The power to claim for certain losses they themselves experience as a result of the decedent's death

survival actions

The power to press tort claims the decedent could have brought had they survive

ADA & Patrons

The rules of strict liability for ADA are designed largely to protect innocent 3d parties or innocent bystanders, not passengers or patrons

Riss v. City of New York (NY 1968)

There is no warrant in judicial tradition or in the proper allocation of the powers of govt for the courts in the absence of legislation to carve out an area of tort liability for police protection to members of the public; diff w undertaking cases; Says to determine liability in these cases would inevitably determine how the limited police resources of the community should be allocated and w.o predictable limits; Says majority basically holds bc we owe a duty to everybody, we owe it to nobody; no duty holding

Two Negligent Fires

They drop the but-for test and add the multiple sufficient causes test so P can sue both and recover from both (jointly & severally liable - no over the asked-for damages)

How to establish affirmative duty

To determine whether a duty exists, we must balance 3 factors: (1) the relationship bt the parties; (2) the reasonable foreseeability of harm to the person injured, and (3) public policy concerns"

Superior ability and duty

To what extent does Tarasoff's holding rest on superior ability of professional psychiatrists and psychologists to assess accurately the intentions of their patients and warn those at risk? - CA SC has refused to extent Tarasoff to clergy & other members of society; Some says physicians have a duty to warn of contagious diseases; schools should protect students from student on student violence

Necessity defense to trespass

Tort doesn't tell us how far this limited license to trespass to protect from imminent danger goes

Falcon v. Memorial Hospital

Under loss of an opportunity approach, P must establish more-probable than not causation, he must prove, more probable than not, that the D reduced the opportunity of avoiding harm; Trier of fact should determine whether D's negligence was a substantial factor in reducing P's chances of obtaining a better result -> 37.5% times the damages recoverable for wrongful death is damages; Falcon holding was short-lived -> changed to must be over 50%

3d rstmt on mistaken consent

a reasonable but mistaken inference of consent suffices to establish a consent defense, regardless of whether the D's mistake consists of a reasonable misinterpretation of something the P does or says or instead consists of reasonably relying on mistaken info from an ind source

Harmful/offensive q

Usually tend to send the q to the jury -> whether P was placed in apprehension of bodily harm objectively/reasonably

Q of due process w punitive damages

W mass products liability torts w large corporations, punitive damages has raised the q of whether the award of such damages might sometimes violate the D's 14th amendment right not to be deprived of its property "without due process of law"; Due process clause of 14th amendment prohibits a state from imposing a "grossly excessive" punishment on a tortfeasor

Warnings dispositive?

Warnings are not a substitute for the provision of a reasonably safe design; A seller need not warn of every known or knowable danger that is not obvious -> only matters when a jury might decide the omission of adequate warnings renders a product not reasonably safe

US v. Carroll Towing Co.

Was Conners negligence for not having a bargee on board of Anna C.? Principle: Since there are occasions when every vessel will break from her moorings, and since, if she does, she becomes a menace to those around her; the owner's duty is to provide against resulting injuries as a function of 3 variables (Burden < Probability x risk -> negligence) 1) the probability that she will break away 2) the gravity of the resulting injury, if she does 3) the burden of adequate precautions If 3 is less than 2x3 = liable

Bivens case

Westfall Act does not apply to constitutional violations, allows you to sue federal officers BUT qualified immunity (whether the violation was clearly a violation of constitutional violation) applies

Rhode Island Hosp. Trust Nat'l Bank v. Zapata Corp.

Whether Zapata has shown that the system used by RIH for detecting forged checks, used by a majority of American banks, lacks the "ordinary care" that a bank must exercise under the UCC embodied in Rhode Island law Principle: An industry-wide practice that saves money without significantly increasing the number of forged checks that the banks erroneously pays is a practice that reflects at least "ordinary care"; To note: the Hand formula doesn't care if the burden and the loss falls on the same person

Winterbottom v. Wright - Wright built & maintained carriages, one of the drivers hired through a 3rd party was injured when carriage collapsed (not in contract w Wright)

Winterbottom's rule: that a P who is injured by carelessness on the part of a product manufacturer may not recover in tort absent contractual privity bt P and the manufacturer

Rule/the Tender Years Doctrine

a child is incapable of negligence if he is less than 7 years old

Other alternatives to NIED

Wrongful death (surviving family members may sue the D for at least monetary value of lost support & company) and loss of consortium (spouses can recover for D carelessly injuring spouse so as to deprive from companionship); Parents cannot recover under loss of consortium

P's best interests

a D cannot argue that he was privileged to commit what would otherwise be a battery of the P on the ground that the touching was in the P's best interests and therefore is one to which the P would have or should have consented, even though they did not (CAVEAT: if D actually and reasonably believed it necessary to save the P from imminent physical harm)

§27 NESS, expansion on MSC test in 3rd Rstmt

a D's careless conduct can count as an actual cause of a P's injury even if that conduct is neither necessary nor sufficient by itself to bring ab the P's illness so long as it is a necessary element of a set of conditions sufficient to generate the illness

Doctrine of consent

a P cannot prevail on her tort claim bc she has assented under appropriate conditions to endure a bodily contact or an apprehension of contact or a confinement that would otherwise be tortious; can be communicated expressly, through a written or spoken stmt, or it can be communicated implicitly thru conduct

Proof of Intent for battery

a battery P must rely on circumstantial evidence to establish that the D acted w the requisite intent; More typically, an intentional tort P will have to rely on evidence pertaining to the D's outward behavior to support an inference that the D acted w the requisite intent; Circumstantial evidence can also be used to identify the D as the perpetrator

Negligence

a failure to duty of care that results in injury to whom the duty is owed

CL doctrine of sovereign immunity

a jurisdictional doctrine holding courts have no authority to order the federal or state govts into court at the behest of a private citizen, not extended to local or municipal govts which were not regarded as "sovereigns"

3d Rstmt on consent & criminal acts

a majority of courts have adopted Wade's approach & maintained that consent to conduct constituting a crime should suffice to establish a defense to a tort claim unless the conduct in q was rendered criminal by the legislature in part to protect the consenting person from his own choices

Doctrine of implied assumption of risk

a negligent D will argue that the victim is barred from recovering bc she knew ab the risk created by the D's breach of duty to her, could have avoided the risk, and yet chose (freely) to encounter that risk; natural home in recreational activities; Industrial workplaces are ill-suited to support a notion of implied assumption of risk simply bc the employees' choices ab the conditions under which they must work are significantly constrained

Licensee

a person who enters upon the property of another for his own convenience, pleasure, or benefit pursuant to the license or implied permission of the owner; owed a duty to warn ab dangers they know/should know about; warn of hidden dangers you know/should know about; no affirmative steps to correct hidden dangers

Invitee

a person who goes upon the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage; owed a duty of reasonable care, keep the premises reasonable safe + warn of the dangerous conditions

Exceptions to Trespasser Rule

a possessor will sometimes owe a limited duty to take steps to warn adult trespassers of a risk of physical harm posed by "artificial" conditions on the land (eg. if ppl routinely trespass), minors also benefit from trespasser-no duty rule (attractive nuisance doctrine - 3d Rstmts no longer relies bc it largely rejects the no-duty rule for trespassers)

Consumer expectations test

a product is defective in design if aspects of its design render it more dangerous than an ordinary consumer would expect it to be -> fits well w both manufacturing and design defects; The concept of a flaw or a defect can be given content by comparing the actual product to a prototype in the mind of the ordinary consumer (like contracts in that concerns subjective piece of intent of the parties/consumer); Also liked how it allowed jury leeway; evidence of industry practice could be relevant

q of actions constituting an assault

a q of fact for jury

5 grounds for excuse of negligence per se violation

a) youth or physical incapacity of the D, b) reasonable efforts by the D to comply (eg. fake ID), c) justified ignorance by the D as to the existence of facts rendering the statute applicable, d) excessive vagueness or ambiguity in the statutory standard, e) compliance posing a greater danger to the D or others than non-compliance (walking against traffic)

Some states on child liability for negligence

any child will be found capable of negligence if the fact finder decides that the child failed to exercise a degree of care that is reasonable for similarly situated children

Rylands rule accepted by 2d Rstmt

any party carrying on an abnormally dangerous activity is strictly liable for ensuing damages

Elements of assault

action that intends, to create an apprehension of an imminent harmful/offensive contact [battery], and it results in such apprehension

Conspiracy

actors not acting independently but as part of a planned effort to injure, no need to shift the burden rule

Diff bt assault & battery

actual contact v. apprehension of contact

"Compliance error"

all of us at some point are careless

Trespass

all that matters is whether the actor set out to make or remain in contact w the land in q & whether the actor did in fact make or remain in such contact- liability may fall even on those who conduct themselves reasonably

Nichols case

allowed for an "act of God" defense that exempted from liability Ds whose stored water escaped in part bc of unprecedented rains

Stare Decisis (using precedent)

allows for consistency and predictability within the law

Federal Tort Claims Act

along w state statutory counterparts, makes govt liability complex, they have greater protection than private entities; states that the federal govt is subject to liability if a private person would be liable to the claimant in accordance w the law of the place where the act or omission occurred (NOTE: attaches liability to govt, not to employees who enjoy immunity from liability for torts committed on the job); basically renders US vicariously liable; the "private person" clause is whether general tort principles would call for the imposition of liability

Feres v. US

although rationale is no longer endorsed, it remains intact; found implicit in the FTCA a broad rule barring any suit by military servicemen against the govt for injuries arising out of or incident to their service; bars medical malpractice provided at military hospitals to active duty service members (arguing it is incidental to service); Even in situations where the govt is doing something that private ppl cannot do, held that immunity is held in these situations (FTCA only waived immunity only to where govt is like a private person) but SC reversed

A tort

an act that the law deems wrongful and injurious to another

3rd Rstmt rejects Moch

an actor can generate a duty to a 3rd party if the actor undertakes to perform a service and the 3rd party reasonably relies on the actor's performing the service w reasonable care

Negligent hiring claim

an attempt to hold employer directly liable rather than vicariously liable; basically at the time PMP hired D, it should have known or knew that he posed a danger to other employees and hence that its decision to hire him was careless as to the physical well-being of persons like P

Transferred intent

applies to all original intentional torts (battery, assault & false imprisonment); level of intent that would get you liable to person A but you accidentally do it to person B, it is sufficient to hold D liable for person B; Also works across torts, so intention to make battery but instead do a assault on is sufficient AND intent to cause battery to person A is sufficient for assault to person B

Superseding cause relevance

approportioned liability relative to D's degree of responsibility, is superseding cause even necessary anymore

"Comparative fault"

appropriate for cases in which the comparison at issue concerns the relative degree of carelessness chargeable to P and D

"Comparative responsibility"

appropriate for the rules that allocate responsibility & liability bt P and D (eg. strict product liabiltiy cases where D is not required to be at fault or negligent)

Recreational use statutes

are designed to immunize owners of properties that are used for recreational use (eg. biking, ice skating, hiking, fishing, etc.) from negligence liability

Greenman v. Yuba Power Products, Inc. (CA SC)

arguably the case that marked the emergence of products liability law as a distinct branch of tort law, allowed recovery on grounds that relied neither on negligence nor on warranty; strict liability in tort for a defective product

intermediate/intervening cause

argument for no proximate cause; Intervening Wrongdoing: Superseding Cause as a Special Case of Proximate Cause; reluctant to treat intervening wrongful conduct as a superseding cause but when they do, it usually involves intentional or reckless wrongdoing & sometimes for unintentional acts (careless- eg. drunk trainee or baby hot water scenario)

"Discoverable fact of nature" duty

as in Osterlind, seems like some courts just say no-duty, duty is not sacrosanct

Breach (retail)

asking about a specific untaken precaution, was it a breach of the duty to not take a specific precaution (Adams v. Bullock - says there might be a duty but no breach)

NIED

assert that the D committed the wrong of causing distress by failing to be sufficiently vigilant of the P's emotional well-being; In these cases, the emotional well-being can be the predicate to recover for bodily injury

Strict liability

attaches simply by virtue of a causal connection b/t the defendant's act and the plaintiff's injury

Loss of consortium

both spouses can be compensated for the tort victim for loss of economic and emotion support

the burden of persuasion

by preponderance of the evidence; the P must persuade the judge/jury that it is more likely than not that the D acted as P alleges

Guardian Casualty case

cab driver runs into building and debris hits a spectator (held liable due to foreseeability of the consequence of driving fast into a building)

Adverse possession

can acquire possession of a land by use of it openly & hostile for a long period of time

Proof that the D knew his act would cause a harmful or offensive touching is sufficient but not necessary to satisfy the intent element

can be met by P proving D acted for the purpose of causing such touching even if he did not know that his conduct would have that effect

Preempted causation

can't hold someone liable for running over a dead person; NESS test seems to do this

Warning away Design Defects

can't warn away design defects, need to take reasonable steps to prevent misuse; SO some things need to be designed away whereas some things need to be warned ab

Spivey

case where a coworker hugs another and causes facial paralysis due to P's unknown shyness, bc SOL ran up for battery, she was able to recover for negligence seeing as D could not have committed a battery bc he did not knowingly or intentionally cause Spivey's paralysis -> outlier, most operate under eggshell P (eg. Vosburg)

implied rights of action

certain statutes implicitly create a "protected class"- a group whose members are deemed by courts to be the beneficiaries of SOC contained in those statutes- thereby conferring on those groups the ability to obtain redress for violations/injuries

§41 Rstmt closest relatives w mental professional duty

closest relative are duties to other professionals (doctors & contagious disease patients, less common to say they have to warn the 3rd party themselves, j need to tell patient to tell others; cases where doctors give the patient a new med w side effects), it's limited by reg statutes that also many enunciate other affirmative duties

Statler v. Ray Mfg. Co.

coffee urn explosion injuries P, Thomas held

Baltimore & O.R. Co. v. Goodman (Holmes)

collision bt P's car and D's train Principle: Trial jury erred (this is breach as a matter of law), judge should've decided as a matter of law - declaring a rule for grade crossing cases specifying that drivers must at minimum stop and look for incoming trains; Holmes believes judges are experienced and that they've seen repeat cases so they should establish rules where possible because they'll know more than a jury

Dakter v. Cavallino

collision occurred bt a passenger automobile driven by Dakter (plaintiff) and a semi trailer truck driven by Cavallino (def). Holding: the instructions didn't ask for heightened standard of care just that of one a reasonable person who do had the special knowledge and skill possessed by professional semi-trailer truck drivers; Court point to Second Restatement that determines what constitutes a profession or trade including plumber, carpenter, etc. so not high specialized occupations

Reasonable care

combines "Ordinary" is not a purely descriptive term or purely normative (what God would do/one should do)

Common carriers

commercial and governmental operators of boats, buses, planes and trains

Modern rules of products liability apply to

commercial sellers of the products (retailers and manufacturers & others in the chain of distribution qualify)

Special Relationships Exception

common carriers, Business-customer, innkeeper-guest, School-student, employer-employee, hospital-patient, and prison-prisoner relationship can generate a duty to take steps to rescue, that duty is conditional on the D's either knowing or having reason to know of the P's peril; w trespassers, if they were initially invited then trespass then liable, if j trespassing, not liable; sometimes friendship to suffice to support a duty to rescue

Loss of consortium w kids/filial society

compensate parents for the disruption that results from caring for a seriously injured child and for being deprived of experiences that parents ordinarily can share w their children

"joint & several liability"

complex, entitles a "not-at-fault" P such as McDonald to recover up to 100% of her damages from any 1 of two or more D who is found liable for her injuries (McDonald was not allowed to recover over 100%)

Regulatory Compliance

compliance of a statute is not dispositive of the breach issue, Compliance is treated as evidence of ordinary care

Keegan (3d circ)

concluded that the statutory adoption of comparative fault eliminated the implied assumption of risk defense for any instance in which the P's conduct could plausibly be described as both unreasonable and a voluntary encountering of a known and discrete danger; If reasonable (precludes comparative fault) -> implied assumption of risk could apply; in contrast, many jurisdictions have ruled by statute or judicial decision that the adoption of comparative fault has completely eliminated implied assumption of risk as a distinct defense & proof of assumption of risk is factored into the jury's percentage of allocation of fault among D & P

wrongful death statutes

confer on surviving family members of a person who was tortiously killed two legal powers historically denied to them by common law

Privileges

consists of justifications as opposed to excuses so one was entitled to tort notwithstanding its apparent wrongfulness

Three elements of battery

contact, contact has to be intentional, contact has to be offensive/harmful

Connolly

convention was under control of hotel so the hotel was aware of the chaos so more circumstantial, no need for res ipsa, duty to mitigate known dangers, still don't have a duty to mitigate all risk

Smith v. Smith (1824)

court held that P could not recover from horse being injured from negligently placed wood in road; so long as carelessness on the part of the P is determined to have been a cause of the injury, he is totally responsible notwithstanding that the D also caused the injury

Mitchil v. Alestree

court held the owner of a horse could be sued under the writ of trespass on the case for carelessly arranging training in public park where horse ran down a stranger

Duty issue will be at play w qualified duty cases

court will be looking to the P for a showing as to why the D was obligated to take care w respect to the P's interests

Safety vs. Licensing and Other Statutes

courts often don't grant dispositive effects on licensing statutes that serve a function of recordkeeping, not setting a standard of conduct; can still serve as breach for ordinary negligence

contributory negligence w rescues?

courts tend to be more lenient for performance of rescues

Proximate cause rule for rescues

danger invites rescue, idea is part of what makes conduct negligent is that you are making a situation that might cause others to rescue and injure themselves too; Rescues are typically viewed as harm w.in the risk but again there are some lines

Breach questions

deciding what it actually takes for an actor to fulfill the duty of care identified

Reckless

defined as the net unjustified risk must be high (objective) and the def must know or have reason to know the risk & must proceed without concern for the safety of others (subjective)

Problems w compensatory calculation

deterrence and unpredictability of calculations

Damages & deterrence

deterrence is all a damages-game; cost-internalization allows D to learn their lesson

Proximate cause

did the actor's carelessness bring about the victim's injury in such a fortuitous manner that it is inapproporote to hold the actor responsible for the injury?; a normative piece where the court decides there's not a necessary relationship bt the action and the injury

Cause in fact (factual)

did the breach, in the world, contribute to the damages

The TJ Hooper (Learned Hand)

difficult question was whether the tug was seaworthy (by not having working radios); The radios were personal items to each master, neither furnished nor supervised by the owner of the tugs Principle: the tugs because had they been properly equipped, they would have got the Arlington report- injury was a direct consequence of the unseaworthiness; General custom is Admissible BUT not dispositive

discretionary functions v. ministerial/proprietary functions

discretionary functions still have immunity; Modern rationale: So why keep discretionary immunity? Essentially in policy qs so if we don't like how a policy decision is getting made, we have an avenue for dealing w that thru elections, no second-guessing decisions we collectively made thru elections; don't want tort system at odds w political system; separation of powers; Ministerial decisions can be held accountable if someone made a decision & a govt official did not follow it/screwed up

Questions you should ask if you want to deploy res ipsa

do you need res ipsa? You have a theory of how the D failed and more circumstantial evidence so no need for res ipsa & sometimes circumstantial evidence is not enough to prove breach and D walk free; Think 1st: what evidence do I have? If you're lacking, maybe res ipsa, Then 2nd: Is this the kind of thing I would say would usually happen if someone like the D was negligent

trespasser status determination

doesn't turn on the state of mind, j need intention to go to the place

§39 affirmative duty

duty based on prior conduct creating a risk of physical harm (risk creation, even if you didn't tort, you have a duty if it might risk someone else, you have a duty); This is where affirmative duty and regular duty conflates - in both situation, it's your conduct that is going to be what causes the harm (looks like §9 duty - duty of general care, Heaven rule)

§40 affirmative duty

duty based on special relationship w another (Farewell is an unusual case of imposing duty w relationship of friendship/symmetrical relationship)

4 elements of negligence

duty, breach, causation, & harm (injury)

Duty & foreseeability relationship

duty, in other words, is measured by the scope of the risk which negligent conduct foreseeably entails; DO need to restrict the limitless expansion of duty to mitigate consequences of hazy codes of conduct

Cardozo on Palsgraf

duty, slices duty thinly saying yes there's a duty to Palsgraf as a ticket holder but not to protect from this particular harm, no wrong as to her, duty has to be relational, there was a duty but the breach was not to her; Why is there no duty as to her? Type (this is an unforeseeable harm that one could not have mitigated) and person (she is an unforeseeable victim)

No modification for SOC

eg. Inferior abilities/judgment, Adult activity children, The elderly, Mental disabilities (unless it was a one-time occurrence), Race, ethnicity, culture, & Gender

Fisher case

employee snatches a plate out of patron of a buffet, claiming they don't serve African Americans, amounted to intentional touching for battery for comp & punitive damages

1983 actions

enables persons whose federal constitutional rights have been violated by state officials to obtain redress from the officials (& in rare cases, the depts that employ the officials); However, 1983 arguments against public duty rule haven't been successful and 1983 arguments against excessive force have been negated by "qualified immunity"

Torts

include battery, assault, conversion, defamation, defective product sales (products liability), false imprisonment, fraud, intentional infliction of emotional distress, intentional interference with contract or economic advantage, invasion of privacy, negligence, nuisance, and trespass to land or personal property.

The knowledge requirement for intentional torts

establishes a subjective rather than an objective standard -> a mere showing that harm is substantially certain to result from the actor's conduct is not sufficient to prove intent; it must also be shown that that actor is aware of this

Circumstantial evidence

evidence that permits juries to infer that something happened (e.g. slip & fall of apple sauce puddle in store w the same market logo -> market's negligence); All res ipsa cases are circumstantial evidence cases but not all res ipsa cases aren't circumstantial evidence

Westfall Act statute

exempts federal employees from being held individually liable for torts committed in the scope of their employment; does however contain an exception that permits the imposition of individual liability (but not govt liability) for violations of constitutional rights

3rd Rstmt on NIED

expands Thing, for person who bc of D's negligence, witness "contemporaneously" through sight or sound, a sudden serious bodily injury to a close family member, in notes encourages to look to social norms for what constitutes a family

Comparative fault requires a finding of

fault AND causation; as part of D's burden of proving the affirmative defense of comparative fault, D normally has to prove that but for P's fault the injury would not have happened (eg. Martin v. Herzog negligence per se case)

Edwards v. Honeywell

firefighter dies by falling through floor on burning house & sues fire alarm service for not calling more timely; court holds no liability bc the D was not in the best position to prevent the particular class of accident, service had no ability to know the house was high risk and has no ability to reduce the risk, and cannot know ab fire dept and its procedures/trainings

Proximate cause (retail)

focus on the outcome, is this the kind of harm that we were worried about; scope w.in the risk

Cotterill v. Starkey

foot passenger has a right to cross & that persons driving carriages along the road are liable if they do not take care

Brooker rule

for a threat to constitute an assault, it must be conveyed in a way that creates a reasonable belief in the hearer that the threatened contact is imminent; can take into account tone of voice, gestures, physical circumstances, relationship bt D & P, & differentials bt D & P such as size or gender

In VA, waivers of liability for personal injury

for future acts of negligence are unenforceable but could a written acknowledgement of risk be used as implication for implied assumption of risk (eg. medical consent forms that don't waive liability but inform of risks); Assumption of risks exists as a defense in personal injury cases so contractual agreements can serve as evidence

SOC question

for the judge

Comparative fault & intentional torts

for torts such as assault & battery, the longstanding black letter rule is that comparative fault doctrine has no place BUT some jurisdictions/courts/legislatures recognize it as a distinct defense to intentional tort claims OR may be offered as proof of a defense that is actually recognized (eg. consent)

3d Rstmt supports which test for products liability claims

forcefully asserted only the risk-utility test should be used

Smollet's (3d circuit) dissents primary and strict sense v. kind of carelessness or imprudence on part of the P assumption of risk

former being assumption as a doctrine of consent or waiver according to which the P is assumed to have "relieved" the D of any duty to take care not to injure the P; 1) inherent risk that the person consciously recognizes (affirmative defense), 2) the person negligently assumed the risk (comparative fault)

Modified comparative responsibility regime v. pure comparative regime system

former sets a bar on recovery (eg. P can't be more than 50% responsible) & a finding that the P's fault contributed to his injury thus today entails a reduction in recoverable damages that corresponds to the percentage fault assigned to him but in latter P could be 99% responsible & still recover on 1%

Loss chance doctrine

instead of attempting to prove that the D breached a duty to take care not to cause death or bodily harm, the P instead is complaining of a breach of a duty to take care not to reduce her chances for avoiding death or bodily harm; only happens in medical malpractice cases & most jurisdictions only exists where the P (patient) has died & doesn't exist everywhere; court redefines what constitutes an injury-> enough to show P loss a chance of survival; Limited to medical malpractice cases

Sovereign immunity

govt & state entities bound themselves by legislation to being held accountable for tortious injuries inflicted by their employees upon private parties but diff jurisdictions still allow immunity for intentional torts

Collateral source rule

holds that a tortfeasor is not entitled to present evidence at trial indicating that the victim has received, or stands to receive, compensation for her injuries from some other source

Doctrine of joint and severally liability

holds that any one of 2 or more at-fault Ds who cause a single indivisible injury can be held liable for 100% of Ps damages

compensatory damages

how much to right the wrong, to compensate

3 most imp immunities recognized in CL of tort

intra-family immunity; charitable immunity; & sovereign immunity

Exceptions 2d Rstmt black letter law for upholding express assumption of risk

in order for express agreement assuming risk to be effective, it must appear that the P has given his assent to the terms (P understood terms) OR contrary to public policy agreemnts (employer/employee, duty of public service, disparity in bargaining power) OR tort of strict products liability are nonwaivable

Last clear chance doctrine

if D had the last clear chance to avoid the accident, then he could not use the contributory negligence defense; it is the P's burden of bringing/proving the doctrine's applicability

Imminently Dangerous Products Rule

if D was a manufacturer of a thing that death or great bodily harm of some person is the natural and almost inevitable consequence of the sale then they can be held liable for not carefully manufacturing the product

Reporting Obligations

if a child has injuries and there are supsicions that it might be due to abuse or neglect, some individuals have a duty to report it, they're protecting if their accusations turn out to be wrong if they made them in good faith

Failure to warn defect (looks the most like negligence)

if not foreseeable then no liability but NJ minority sticks to SL

Contributory negligence explained

if the P's carelessness contributed to his injury, then as a MOL his conduct would be deemed the only legally relevant cause of the injury; The rule of contributory negligence did not extend to claims alleging recklessness or intentional wrongdoing on the part of the D (eg. battery or false imprisonment, same remains true to today)

contributory negligence

if the plaintiff was at all at fault/didn't act with ordinary care, bars recovery in its entirety

Multiple Neccesary Causes

if there's two D & they are both at fault, they are joint and separately liable, can't get more than the damages but can get it from one or both (sometimes the amount of damages allocated to each is left up to the jury); Each of them is a but-for cause of the injury bc the careless of each had to occur for the accident to occur; Allocation of damages is not the same thing as fault - to be held liable you have to had already proven by PPE fault being a causation of injury

Two diff views on what 3rd parties should affect on the Due Process clause on if it should apply to PD (Mathias v. Philip Morris & Philip wins bc SC)

if you see a damages that's higher than single digit, note that it's a due process/fair notice constitutionality issue

"good Samaritan" statutes

immunizes certain persons who undertake rescues from liability for negligence (some cases even gross negligence); Tend to be limited in application to "off-duty" professionals, not designed to shield emergency medical technicians or emergency room doctors/nurses from ordinary malpractice liability

Unholy trinity for defenses in CL

implied assumption of risk (bc it used to bar employee/employer recovery), contributory negligence, & fellow servant rule (barred P from using respondeat superior to recover when a fellow employee injured them on the job)

Learned Intermediary Doctrine

in cases involving prescription drugs, it is widely held that the duty to warn extends only to members of the medical profession and not to the consumer; based on the premise that as a medical expert the patient's prescribing or treating physician is in the best position to evaluate the often complex information provided by the manufacturer concerning the risks and benefits of the drug or product (Freeman); some cases, P bypass the learned intermediary doctrine & w the rise of direct-to-consumer advertising for prescription drugs ranging from antacids to antidepressants, many argue the doctrine's use has faded

2nd Rstmt's test

in deciding whether violation of a public law/regulation shall be considered in determining liability when the admin regulation's purpose is found to be exclusively or in part 1) To protect a class of persons which includes the one whose interest is invaded, and 2) To protect the particular interest which is invaded and 3) To protect that interest against the kind of harm which has resulted and 4) To protect that interest against the particular hazard from which the harm results

3d Rstmt risk-utility's exception

it leaves room for the possibility that a design defect P will be relieved of the burden of proving the existence of a reasonable alt design -> a res-ipsa like exception primarily designed for manufacturing defect claims (permits an inference of design defect from the mere causation of injury by a product albeit only if the incident in which the P is harmed is of a kind that ordinarily occurs as a result of a product defect

Actual causation & failure to warn

failure to warn claims pose issues of causation comparable to those encountered in connection w informed consent medical malpractice claims; Courts have been required to consider what sort of showing a P must make to permit the factfinder to conclude that an adequate warning that was not in fact given would have been noticed and heeded had it been given

Issue of how to define a design defect

is both political (a design that poses dangers to users) and theoretical (reflecting a significant gap by scholarship & judicial decisions)

Majority position on waiving liability for recklessness

is liability not only for recklessness, but gross negligence cannot be waived

Compensatory damages

is often described as that of "making the P whole" or "restoring the status quo ante" which some argue makes sense for economic losses, but not so much for noneconomic losses; jury are instructed to award what they deem fair & reasonable, not make-whole damages

The incomplete privilege of private necessity

is to be contrasted w the complete privilege of public necessity whereby a private citizen is entitled to use or destroy another's property in order to avert a greater harm to the public w.o suffering any sanction (usually used by govt. Officials but 5th amendment sort of suggests compensation for taking private property in some scenarios)

Assault is not attempt

it is a suit for a fully realized wrong, one that is completed when the requisite apprehension is generated in the victim

Some argue there is an intent element in trespass although it's strict liability

it is enough if (a) the D intentionally "invades" or occupies a swath of land and (b) the P owns or possesses the swath in q; On the other hand, a D who undertakes no voluntary or intentional act w respect to a piece of land cannot have committed a trespass

"Legal cause"/"causation element"

it requires the P to prove the D's carelessness actually caused P's injury & did so proximately

Trespass principle

it's a harm whether they harm your property or not

Premises liaiblity restrictions

it's a regular duty (not affirmative duty); addresses special duties in cases of dangerous conditions- not dangerous activites on premises; A person need not own the property to be a possessor for purposes of premises liability claims (i.e. tenants), also those who unlawfully occupy land, and those who are entitled to occupy but do not exercise entitlement

Duty raises questions of law

judge's province

In Exxon Shipping Co. v. Baker

jury found thru vicarious liability, Exxon liable for PD of 5 bil, reduced to 2bil but SC then put a cap on of 1:1 ratio as a fair upper limit on punitive awards, reasoning they had a greater leeway to fashion rules of federal common law than constitutional law, partially bc former can be changed by federal legislation (dealing w federal maritime law)

Negligence per se tipoffs

keep an eye out for hypos that include statutes/ordinances/doctrines

Failure to warn in PL/strict liability v. in negligence context

latter requires P to prove manufacturer or distributor did not warn of a particular risk that fell below the acceptable standard of care; former require a P prove only that D did not adequately warn of a particular risk that was known or knowable in light of state of the art evidence; reasonableness is irrelevant

Keeton's first type of fault (negligent conduct) v. second type (conditional fault)

latter where we are nonetheless prepared to treat as permissible if the actor who undertakes it stands ready to provide reasonable compensation to those injured by such conduct

"Scope of the risk" test/ "risk rule"

leading present day alternative to foreseeability formulations of proximate cause; A careless actor is subject to liability for harm actually caused by his careless conduct if the harm "is a result within the scope of the risks by reason of which the actor is found to be negligent"

Ornelas v. Randolph

leaves kids worse off than common law attractive nuisance doctrine bc all uninvited recreational use is covered, doesn't matter if land was meant for recreation

Most prominent exception involves the imposition of bystander liability

liability to certain persons who witness another being injured or killed by the carelessness of the D

Wanton

like recklessness but requires the subjective piece

How to determine a breach has occurred

look to isolate standard of conduct by which breach is determined

Products liability claims in the past

looked like a negligence claim of negligently made products or a breach of an express or implied warranty claim (a contractual promise that the product was safe for ordinary use)

US courts (including CA SC) have identified 3 diff categories of defect

manufacturing defects, design defects, and warning (or instructional) defects

Johnson v. Riverdale Anesthesia Associates

medical malpractice, Certiorari was granted in order to consider the Court of Appeals' ruling forbidding the plaintiff from cross-examining the def expert's witness as to how he personally would have treated the plaintiff's decedent Holding: Because the SOC in medical malpractice cases is that which is employed by the medical prof generally & not what one individual physician would do under the same/similar circumstances, how a testifying medical expert personally would have treated a plaintiff/decedent is not relevant to the issue of whether a def physician committed malpractice bc the D did not act counter to industry SOC; How a testifying medical expert personally would have treated a plaintiff/decedent cannot be used to impeach the expert's credibility

NY law for design defects

more risk utility

CL on punitive damages

most commonly awarded to victims of torts that involved abuses of power or insults to honor or dignity (eg. insult to P's good name) & common carrier mistreatment of passengers (forcing them to get off) & flagrant intrusions or willful destruction of property or deceit or fraud

products liability doctrine exceptions

much more reticent in recognizing claims for other sorts of injuries allegedly flowing from product defects, such as intangible economic loss; generally P cannot recover & can rely on protections he was able to obtain in the contract of sale via express or implied warranties (sometimes called "economic loss" rule); Tangible property damage caused by a product defect to property other than the product itself is ordinarily actionable in products liability

Multiple Actual causes (McDonalds case) is diff than alternative causation cases

multiple causes doctrine is when each of two or more careless acts by independent actors but-for causes of the injury to the P but only 1 actual but-for cause in alternative causation

A person or entity who sells a product does not automatically qualify as a "seller" of that product for purposes of products liability law

must also be in the business of selling (or marketing) such products; if the actor took steps to place the product on the market or figured in the distributional chain thru which the product is placed on the market -> a sale can occur even if the actor did not transfer legal title (cannot overcome products liability by leasing rather then selling)

Driver injures B, then walking out of hospital, B get injured for a second injury

no proximate cause for the driver 1 on driver 2's injuries; book was closed on chapter of injury; does being sent to hospital increase the chances that you might be hit by driver 2 (no relationship, not as likely), not a risk that's foreseeable increased; Court will prob still say no if driver 2 is an ambulance

Elden case

no recovery allowed as cohabitating w.o formal marriage did not result in close relationship and that foreseeability alone does not justify imposition

Bailment

occurs when one person hands over personal property to another for safekeeping (bailor - owner of property, bailee - temporary custodian); Bailees often try to exculpate themselves from negligence during bailment (eg. parking garage owners) -> most courts refuse to accept exculpation for public policy concerns; same for common carriers but bailees continue to put up signage maybe to argue for assumption of risk?

Martin v. Evans example

of breach issue completely separate from duty issue

Aikens v. Debow example

of duty issue completely separate from breach issue

Punitive damages critique evolution

old critics: punitive damages merge crime and tort, public & private law; new critics: destabilizes economy, extracting windfalls from corporate Ds

Older children & adult activities

older children are held to a standard of what other reasonable children their age would do except when doing adult activities (then they're treated like adults)

§165 of 2d Rstmt states that physical intrusion

onto another's land resulting from recklessness, negligence, or engaging in abnormally dangerous activities constitutes the tort of trespass to land; This section requires harm to land, possessor or to a thing or 3rd person in whose security the possessor has a legally protected interest which sort of takes these offenses out of the category of trespass that only requires physical entry or presence, not causation of personal injury or property damage

Affirmative defense

onus is on the defending party to raise, a failure to assert a defense usually constitutes a waiver of the defense; D also usually shoulders the burdens of production and persuasion

Bifurcation

order separate trials for diff elements in cases where the facts are so gruesome, it might prejudice the jury in favor of the specific P, Ps usually argue against it using judicial economy & jurors need a sense of the severity of a given P's injuries to be able to reason soundly ab issues such as duty & breach

Common carrier standard of care

owes the "highest duty of care" to its passengers (higher than that of an ordinary person); some states just use ordinary care in the circumstances as an umbrella term

Parent's liability for negligence

parents may be liable if they do not adequately control or supervise their child. A plaintiff must show 1) the parents were aware of the specific instances of prior conduct sufficient to put them on notice that act complained was likely to occur & 2) the parents had the opportunity to control the child; plaintiff must establish direct negligence, carelessness on part of parent [eg. negligent supervision, negligent entrustment (negligently giving a child access go dangerous instruments)]; Parents aren't vicariously liable for the child

Another situation w burden shifting w causation

products liability cases where causation issue hinges in part on whether the P would have heeded the warning that the manufacturer failed to provide -> some courts leave it up to the manufacturer to try to prove that the warning would not have been heeded

Rebuttable presumption

shifts the burden of proof to the D to provide burden of proof so jury finds for the P, P'll presumptively win unless D provides evidence to bring them back to jury however w permissible inference, D just goes through trial but P still has the burden

3rd Rstmt tightening of def of wanton disregard

proposes to apply it to inadvertence where the actor has "knowledge of facts that would make the danger obvious to anyone in the actor's situation"

Tort of private nuisance

protects the interest of a possessor of land in using its property free from unreasonable, intangible interferences by others

Proving Actual Causation

provide evidence and proof, the evidence can sometimes come in the form of circumstantial evidence (expert witness testimony to prove breach), res ipsa loquitur can also be used; P only needs to show their account is the more probable account; Only needs to show it is likelier than not that she would not have been injured had the D been careful

3 problems w "toxic torts"

proving general cause & specific cause, & source identification (difficulty in proving that her exposure to any one source actually caused her injury)

Andrews on Palsgraf

proximate cause, this is what 3rd rstmt would do, duty to both Palsgraf & the owner of package, there was a breach for not protecting property & it didn't have to be in respect to her which is not negligence in the air (you can be negligent even if no one gets injured), no proximate cause here (not a harm w.in the risk, not foreseeable) AND or she's an unforeseeable victim, & says the line drawing is public policy; Why? Expediency and foreseeability is a factor

2 diff types of comparative:

pure & modified comparative fault

Kinsman raises some difficult qs for the scope of the risk approach to proximate cause

q arises as to whether the manner of harm- as opposed to the type of harm- should ever be relevant to the inquiry

Battered spouses

raises diff qs of extending SOL for intentional torts and can tort claims be tried w divorce proceedings (that don't typically allow a jury) & if they are tried separately, how to no allow for double recovery scenarios

Nonfeasance

rather than misfeasance, sometimes equating w acting and omitting to act but be careful w that analogy bc failing to use the brakes while driving is consider nonfeasance (failure to protect) although one is acting

3d Rsmt §2(b) on diff bt recklessness & carelessness

reckless is distinguished from carelessness by the fact that "the precaution that would eliminate or reduce the risk involves burdens that are so slight relative to the magnitude of the risk" that the failure to take that precaution indicates "indifference to the risk"; Must not only impose the risk but be consciously indifferent to the risk or wanton in disregarding it

SOL for intentional torts

shorter for intentional torts than negligence torts

Perverse effects of failure to warn

reducing the efficacy of warnings as manufacturers warn ab everything and consumers end up not reading

Knight case (CA)

refers to "primary" assumption of risk - special rule of no duty, under which by virtue of P's decision to participate in a particular activity (risks inherent in activity) are owed no duty of reasonable care by other participants; "secondary" - refers to situations where the D owes a duty of care to the P but the P proceeds to encounter a known risk imposed by the D's breach of duty (CA & most other states fold the secondary assumption into comparative negligence)

Doctrine of express assumption of risk

relies not merely on the idea that the P accepted the risk of injury posed by the D's careless conduct, but that she voluntarily relinquished her right to sue for being injured by such negligence, requires D to prove P's "waiver" of legal right to sue for negligence

The duty element

requires a negligence P to establish that the D owed her ot a class of persons including her, an obligation to take care not to cause the type of injury that she has suffered; In some cases, there is a positive or affirmative duty to make reasonable efforts to protect or rescue another

2) the profession or trade principle

requires an actor engaged in a profession or trade to act as a reasonable member of such profession or trade would act under same/similar circumstances

1) superior knowledge principle

requires an actor with special knowledge or skill to act commensurate with that knowledge or skill

Defense of implied consent factors

requires judges and juries to make judgments turning on factors such as the age, gender, & sophistication of the parties, their relationship, if any, and various other circumstances associated w their interaction

injunctions

requires someone to perform an act

Admiralty divided damages traditional rule

responsibility shall be split evenly among all parties whose fault is found to have contributed to the P's injury

Majority of contemporary courts tend most frequently to deploy one particular test

risk-utility test

Fletcher's Concept if "non-reciprocal" risks

risks generated by unconventional activities, risks of harm that are unilaterally imposed by one actor upon others -> fairness requires strict liability

3d Rstmt on alternative designs

says the availability of an alternative design should count as a necessary element of the P's prima facie case

Henningsen (NJ) case

says warranty is the driver of contract law, not privity & warranties tend to be strict liability, they are the 1st court to apply SL in a products scenario on a contract theory of warranties

Causation

scope of liability: proximate cause & but-for cause (this accident wouldn't have occurred if she wasn't there)

3d Rstmt on standard of apprehension for assault

they lie in the minority apply an subjective standard of apprehension, holding it's best for the victim and other court limitations will prevent excessive liability

How to judge actual causation

should direct a verdict for the D in cases in which there were no eyewitnesses and the circumstantial evidence suggests that the D's exercise of reasonable care would have made no difference; D does not need to offer an alternative account but if they do, P does not need to demonstrate that the D's proposed account could not possibly have happened, P only needs to show their account is the more probable (more likely than not) account

Aikens v. Debow lesson

shows the widespread judicial rejection of a general, unqualified duty to conduct oneself w care not to cause "pure" economic loss to others

permissible inference

so they met production & COULD infer negligence/burden of persuasion but the jury doesn't have to rely on it, most jurisdictions do permissible

Additurs

some allow on appellate courts review de novo in some jurisdictions and as abuse of discretion in others

Defense of consent

some jurisdictions treat it as an element to the prima facie case (P has to prove absence of consent) or as an affirmative defense

Limits on comp damages

some set a cap (eg. VA has it at 2 mil, CA sets a cap on noneconomic losses, NY instructs judges to examine whether the award "deviates materially from what would constitute reasonable compensation", more searching than "shocks the conscience")

Modified objective standard/"subjective" standard

someone's age could modify this, Superior abilities, Physical disabilities & Temporary insanity/sudden incapacity

Product's age

sometimes legislative enacted statutes block liability based off product's age

Statutes & Strict Liability

sometimes statutory lang can be indicative of whether to enforce strict liability for abnormally dangerous activity

Intra-family immunity

specifically spousal and parental immunity, was designed to prevent family members from suing each other in tort, these broad immunities have by now eroded altho special rules limiting liability to other family members often still apply; Rationale behind recognizing immunity as to negligence claims for spouses were courts feared spouses might collude to defraud the insurer; By 70s, the majority had rejected arguments for spousal immunity but apply applicable doctrines such a defense of "consent", comparative negligence, & applying breach to limit liability

Berry v. Sugar Notch, Trolley case - trolley is speeding & tree falls on trolley & crushes it, D raises a contributory defense bc the trolley was speeding

speeding was not a proximate cause (this is not the reason we care about speeding, to stop trolleys from being hit by the tree); No proximate cause bc no relationship

Baseball Stadiums & Other Venues

stadiums disclaim liability using back of ticket waiver provisions; teams warn patrons of risks w signage & announcement; claims of negligence are usually rejected on grounds of implied assumption of risk or primary assumption of risk (HOWEVER on court held D liable for shooting hot dogs into crowd that hit a patron's eye)

Physical disabilities

standard of care of what that a person with their disability would have

Black letter failure-to-warn ab obvious risks law

states that the failure to warn of obvious dangers is not actionable (eg. don't need to warn ab risks of riding in the back of a pickup truck); Risk-utility test for design defect allows for recovery for when a product's design is relatively obvious (might support a finding for comparative fault tho)

Compliance w statutes & products liability

statutes that recognize a partial or complete defense to products liability claims based on proof of the D's compliance w relevant state or federal safety laws (some bar punitive, some make a rebuttal presumption)

Breach is an issue for

the jury but breach is considered a question of both a matter of law (judge) and fact (jury)

Standard of care spectrum

strict liability, extraordinary care, ordinary care, no liability

Ordinary care

the kind of care that prudent and cautious men would use; does not involve forethought of extraordinary peril

Calabrese, an economist, ideas

supports SL asking who is in the better position to avoid the accident, shift the default for who is to bear the risk on the defendant but is there a diff bt SL or negligence? Calabrese says NO, just put it on the cheapest cost avoider BUT D pays more often bc they'll pay when the burden is more expensive than the risk; it's expensive to calculate the risk ex-ante by Ds and post by the jury, it's difficult to do, w his strict liability theory, if you are the cheapest cost avoider, you are automatically liable & it's often the case that the D is the cheapest cost avoider, it can affect how many ppl will play in the market

Alternative causation

taking the onus w respect to proving causation off the P and placing it onto each D to disprove that his carelessness was a cause of P's injury; P is allowed to hold D jointly & severally liable

Black letter rule on punitive damages

that P is ineligible to receive punitive damages if she can establish only that the D wronged her by acting carelessly toward her; Certain subset of negligence, it is allowed (eg. gross & criminal negligence, wanton disregard of safety of others)

The Privity Rule

that a P who is injured by carelessness on the part of a product manufacturer may not recover in tort absent contractual privity bt P and the manufacturer

Heaven v. Pender (1883)

that an unqualified duty to take reasonable care not to cause physical harms is owed to another whenever a person "of ordinary sense" would at once recognize that careless conduct on his part would create "danger of injury to the person or property of the other", no need for contractual obligation

Fletcher's Concept of "reciprocal" risks

that persons are exposing each other to roughly similar risks (eg. driving)

Per se

that the average man cannot be held to a higher degree of skill than the fair average of his profession; applies to doctors, lawyers, & accountants

Principle in negligence of relationality

that wrong must be to P, not to someone else

The "professional standard"

the burden of proof for malpractice on a plaintiff for the physician being to disclose what a reasonable physician would disclose, enough to assess risk but not waste anyone's time, usually dsipostive; Administrative decisions on a physicians' part does not fall under rubric of medical malpractice

Objective Standard

the conduct of the def was reasonably careful & what an ordinary reasonable person would do, standard of reasonable care applies this

"Apportionment of liability"

the effect of each D's fault on the percentage of P's damages that each of the Ds must pay (sometimes used to discuss P-D and D-D portions of liability, 3d Rstmt does this)

Harmful or Offensive Touching

the infliction of a harmful or offensive contact by an actor upon another w the intent to cause such contact (3d Rstmt)

apportionment of responsibility is a q for

the jury

Vaughan v. Menlove

the question was whether the D had been guilty of gross negligence w reference to the standard of ordinary prudence by not removing hay that caused fire & damage Judge opinion: it's too vague to judge based on each individual's level of whether they acted to their best judgment -> Rule: better to judge by the degree of what a prudent person would do

the burden of production

the requirement of providing to the court some evidence in support of an alleged fact or set of facts that the party bearing the burden seeks to establish

Intentional wrongs & assumption defense

the role played by express and implied assumption of risk in negligence law is played by the related defense of express or implied consent

Several factors on whether a design is defective

the significance of the risks of physical injury posed by the particular design; how ordinary consumers would expect the product of function; and whether there is a feasible, safer, and affordable alternative design

Foreseeability

the test for proximate cause should be whether the type of harm suffered from the P was reasonably foreseeable to the Ds at the time they acted carelessly; considers class of action/what the breach is meant to prevent/scope of liability (like negligence per se)

Direct evidence

the thing itself evidence

If there's disputes about the facts that the violation for negligence per se

then it would be up to jury to decide if the fact did occur, then it constituted breach

Parental immunity rundown

tons of variation/it's a mess but book gives 2 dominant paradigms: 1) the Goller rule: abrogate parental immunity by imposing a reasonable care standard EXCEPT in 2 scenarios 1) activities involving exercise of parental authority - primarily discipline & 2) exercise to discretion of provision of ordinary basics (food, housing, etc. - don't want to allow lawsuits for whether more basics can be given & child neglect laws can step in here) AND 2) reasonably prudent parent (must take into account the circumstance that person is the parent) in all cases (CA way) Bc not many children are suing, not lots of incentives but this immunity arises bc of the advent of insurance as a loss spreading device, opens up only when the parent acts negligently triggering the auto-policy which raises immoral incentive issues - courts decide that it's better to allow & prevent moral hazard by working thru evidence closely & insurance co. own incentives against it Other variations: modified Goller reasonable care for gross negligence/worse only

Wrongdoer

tortfeasor

Exceptions to the public duty rule

track the CL exception rules on duties to rescue (special relationship/undertaking etc)

Trespass

transgression by one against another

Concert of action

treats two tortfeasors as acting jointly, doesn't require conspiracy however

FTCA does not allow

trial by jury, also allows for a narrower version of respondeat superior categorically excluding certain intentional wrongs from generating liability, also cannot obtain punitive damages against govt.; courts have tended to interpret the discretionary function exemption broadly

Myers v. Heritage Enters., Inc.

two CNAs at Heritage, dropped decedent while trying to transfer her from her wheelchair to bed causing injury. Principle: Plaintiff appealed arguing the trial court erred in giving the jury a professional negligence instruction for the standard of care of CNAs requiring expert testimony; Appropriate standard of care under the Act is ordinary negligence- does not require expert testimony; Nursing assistant position - not a professional position requiring the professional negligence instruction

Market share liability/alternative causation

two instances of doctrinal adjustments on the issue of proof of actual causation that respond to certain situations in which the P is unable to identify who among multiple potentially responsible parties injured her

Jury nullification

typically used to describe cases in which a criminal jury concludes that a D is guilty of a crime, yet acquits the D to avoid what it perceives to be an unjust application of the law; however, in civil proceedings although appellate courts are instructed to give deference to jury verdicts, they are subject to appeal

Largey v. Rothman

unauthorized battery on medical malpractice and failure to warn of side effects Principle: Switch from Kaplan (reasonable physician) to Canterbury (reasonable patient); Physicians should not be the decidors of scope, that's inconsistent with the patient's right to self-determinism, it's not up to the physician but the "reasonable patient"

Intentional infliction of emotional distress

usually requires at least recklessness; can be bring bought the person who wasn't injured but witnessed it

Products liability law creates causes of action against

various actors w.in a distributive chain, sellers, manufacturers

Workers' Compensation Benefits

vary but they typically limit the injured employee's compensation to medical expenses related to treatment of the workplace injury plus a fixed percentage of lost wages, cannot recover for intangible elements of damages, usually differs w temporary/permanent injuries, usually paid periodically rather than lump sum, also recovery for loss of loved ones is ususally limited to economic dependents, loss of consortium and emotional distress are not compensable

Loop v. Litchfield (1870) - D made a cast-iron wheel, sold to Collister who leased it to Loop who was injured

verdict overtuned by CoA for lack of duty under Winterbottom's rule

Slip & Falls

victim must show the dangerous substance was caused by D or they knew/should've known about its presence (had "constructive notice") by providing circumstantial evidence

Under §41 affirmative duty

w parents they have a duty to take reasonable steps if they know their children pose a threat or have special proclivities - STILL no vicarious liability

But-for test (aka "sine qua non"

w/o which not or counterfactual test): A D's negligence is [a] cause in fact of a P's damage where the fact finder concludes that, but for the D's negligence, the injury would not have occurred

"dangerous condition exception"

waiver to sovereign immunity if jurisdiction has accepted the exception bc the FTCA does not list it as one

Actual cause

was the victim's injury brought about by (among other things) the D's carelessness?

Moch case (Cardozo decided after MacPherson)

water works company failure to supply sufficient water pressure to the city's hydrants, limited recovery to privity; How do we explain Cardozo? It must be a difference w how we see city benefits today v. how Cardozo saw it then, the water was a benefit for citizens OR it could be policy concerns similar to Strauss

Duty (wholesale)

we're asking is there a duty to this class of persons, high level of generality, not asking about the specifics of the case

The ultimate test for compensatory damages

what fairly and reasonably compensates P for the injuries sustained, considerations are given to nature & extent of the injuries, diminished earning capacity, economic conditions, Ps age, & a comparison of the compensation awarded & permitted in cases of comparable injuries

Imminent Peril to P Caused by D Exception

when an actor knows or should know that he has by his own conduct caused the victim to be physically injured and at imminent risk of further injury or to be in imminent danger of physical harm; Under these circumstances, the actor has a duty to make reasonable efforts to prevent the victim from suffering further harm or to prevent the risk of harm from being realized; Rstmt also says the "imperilment" exception applies in some instances in which D innocently injures or imperils the P; "When an actor's prior conduct, even though not tortious, creates a continuing risk of physical harm of a type characteristic of the conduct, the actor has a duty to exercise reasonable care to prevent or minimize the harm" (§39); Is this an affirmative duty? It's giving regular duty, reminds us of MacPherson

"impact theory"

without impact, no recovery for mental sufferings

Restitution argument for Vincent majority

when one person confers a benefit onto another, the beneficiary owes it to the other to pay for the benefit - still q of measure of restitutionary damages

Three well-established categories of "qualified" or "limited" duty cases

where D is alleged to have 1) unreasonably failed to provide assistance or protection to the P (affirmative duty or duty-to-rescue cases); 2) permitted or maintained unreasonably dangerous conditions on property in his or her possession (premises liability cases); or 3) acted w.o reasonable care for the P's economic prospects (pure economic loss cases); not an exclusive list

Spier v. Barker

where a D hits a P who wasn't wearing a seatbelt & ejected from a car which drove over her- court held no evidence P's omission was a but-for cause of the accident; others disagree holding that if the factfinder reasonably concludes that the failure to wear a seatbelt was a but-for cause of P's injuries, a judge or jury can assign comparative fault to the P

Rice v. Paladin Enterprises

where a D published a manual that instructed hit man how to get away w murders & Ps were survivors of a decedent who was killed by someone who followed the manual- raises the q of does the publication of an instruction manual not directed to or at any particular person amount to the aiding and abetting of a battery committed in accordance with the manual's instructions?

State Farm Mutual Automobile Insurance Co. v. Campbell (2003)

where a P sued an insurer for willfully mishandling the defense of a negligence suit; court added to Gore guidepost, adding more limitations, single digit ratio rule; mostly dicta

CA's Tunkl factors

where a court struck down an exculpatory clause in the case where the doc needed to be signed to be admitted to a hospital; 1) it concerns a business of a type generally thought suitable for public regulation; 2) the party seeking exculpation is engaged in performing a service of great importance to the public which is often a matter of practical necessity for some members of the public; 3) the party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming w.in certain established standards; 4) As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services; 5) In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence; 6) Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller of his agents

Wang v. Whitetail Mt. Resort

where the P argued her injuries weren't ones she foresaw when she signed the waiver, the court held she was barred due to the waiver clause being in bigger font than the rest & in bold

Argument for treating foreseeability differently for duty, breach, & causation: breach

whether some harm to another person was a risk of the D's failure to exercise care that was reasonably foreseeable to the D, proximate cause - whether the harm to the P involved a reasonably foreseeable realization of the risk of harm contained in the D's failure to exercise care, duty - more general, to what extent can members of the class of persons to which D belongs reasaonably foresee harm to members of the class of persons to which the P belongs?

Respondeat superior ("let the master answer for the wrongs of the servant")

why Walter sued Walmart & not Lovin, even if Walmart & its policies in them themselves were not careless; a form of strict liability

Larson

why not res ipsa, why not circumstantial evidence? Hotel is not in exclusive control of acts of guests which is the most likely outcome for why P was hit by chair, No vicarious liability

Reasonable patient

would the risk of lymphedema influence a prudent patient in reaching a decision on whether to submit to the surgery?; Addressing causation, under "the prudent patient", one must show that the prudent person would have acted differently if adequately informed (Canterbury & Largey); applies to informed consent issues

Time frame for assessing conduct

you cannot make the argument that a person has a track record of being careful as evidence for why they were acting carefully during the incident

Mens rea of trespass

you have to have intended to enter into the area, acted volitionally to get to where you are OR remain after you have been asked to leave

3d Rstmt essentially reaffirms the idea that a commercial seller is subject to liability for causing injury thry the sale of a defective product

§ 1. Liability Of Commercial Seller Or Distributor For Harm Caused By Defective Products: One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect §2: lays out the 3 defects -> 1) departs from intended design [truly SL]; 2) defective in design... [more negligent-y, reasonably safe, foreseeability]; 3) inadequate instructions or warnings [more negligent-y, reasonably safe, foreseeability]