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Torts, Manaster Fall 2006 Purposes of tort law

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Torts, Manaster Fall 2006
Purposes of tort law:

  • Compensation

  • Justice

  • Change Behavior (deterrence)

Tort case alternatives: e.g. workers compensation. Renders person unable to sue employer and harm the economy, or 9/11 fund is another example

Intentional Torts

  1. Purposefully brings about the harm (desires it); or

  2. Knowingly (substantially certain to occur)

Proof of Harm is NOT needed for an intentional tort (usually awards nominal damages)

Types of Damages:

  1. Nominal (mostly just in intentional tort cases)

  2. Compensatory (includes pain and suffering)

  3. Punitive


Elements of Battery:

  1. Intentional and impermitted

  2. Contact

  3. Which is offensive or harmful

Possible Defenses to Battery:

  1. Consent- in the case of an emergency, consent is implied (legal fiction, we say it is implied, but really we do this for public policy reasons) n. Assumption of Risk – comes into play with sports

  2. Privilege

  3. Self Defense

  4. Self help

n. Insanity is not a defense– Only need intent to bring about the contact, not intent to inflict harm, motive is not important mcguire case

-Public Policy reasons= when we have two innocent people, the liability is placed on the one who caused the harm

Vosberg v. Putney- You take your victim as you find them, only need intent to make contact (kid kicked the other kid in school, major injury, first kid held liable even though he didn’t intend the result)

Defenses to Intentional Torts


Mutual combat: some states say no one can sue, some say you can both sue for all batteries committed
Policy reasons: the point of battery is to deter the victim from hitting back
self defense:


  1. Allowed if the reasonable person would have perceived danger

  2. Defense of others is allowed if reasonable person would perceive intervention necessary to protect the other person

  3. Reasonable force may be used to protect property

  4. May only use amount of force in absence that could be used if present

Corvoisier v. Raymond- Self defense is allowed if the reasonable person would have perceived danger (D makes a reasonable mistake, thinking that P is assaulting him. Court holds that self defense is legit, because it looked like assault from D’s perspective)
*Defending a third party: one can intervene if he/she perceives that the victim has a right to defend themselves and that an intervention is necessary to protect that party
Bird v. Holbrook- A person may use reasonable force to protect property, and spring guns are generally unreasonable (you can set one up but must give notice)-one can only exercise defense automatically in the same matter permitted in person, no gbi to protect property

self help

RST sec. 101 self help remedy is allowed when one person wrongfully obtains property by either force, fraud or without claim of right
Kirby v. Foster- (in this case there was a peaceful conversion with a claim of right, which means that D’s force used to retake the property was unlawful)
-if using force in self help, does it need to be prompt? Need to make a demand?


Ploof v. Putnam- Necessity creates a privilege (trespass and negligence case, during a storm P moored on a private dock of necessity, D untied rope and ship was destroyed, court held D was liable) (agency issue, vicarious liability)

-a landowner’s interest is subject to considerations of people trespassing for protection of life and property

Vincent v. Lake Erie Transportation Co.- liability for damage is not waived in cases of necessity (captain took action by necessity to keep ship moored to dock, causing damage to dock, he is held liable)
I. de S. and Wife v. W. de S.- first case that recognizes mental injury. Guy threw a hatchet at her, court finds assault


e.g. Case where bus driver drove to the police station to protect the kids from the other kids
p.71 addresses parents/teachers/care given discipline
legal authority e.g. citizen’s arrest


Restatement § 21

  1. Intent (either to cause contact or apprehension)

  2. Apprehension

  3. Imminent contact

False imprisonment:

  1. Intent

  2. Confinement

  3. By force or fear

Bird v. Jones- Three walls does not a prison make (road was closed off, guy attempted to go through and was blocked, not false imprisonment because he had reasonable venues of escape)
Coblyn v. Kennedy’s Inc.- Must have reasonable suspicion to detain under shopkeeper’s privilege (wrongly accused of stealing, has a heart attack, awarded 12k in damages, no reasonable suspicion although detained in a reasonable manner and for a reasonable length of time)

Intentional Infliction of Emotional Distress

Wilkinson v. Downton- guy plays a practical joke on woman and tells her her husband is seriously injured, she suffers emotional and physical trauma, court holds she can recover for this
2nd Restatement:

  1. Extreme and outrageous conduct

  2. Intentionally or recklessly (i.e. willful and wanton)

  3. Causes severe emotional distress to another

  4. Is subject to liability for the emotional distress or bodily harm where applicable

N. parasitic damages are another way of compensating for emotional distress, however you can’t have them in this case because intentional infliction is a separate tort


Elements of negligence:

  1. Duty

  2. Breach (apply BPL analysis in close cases to determine breach)

  3. Causation (actual and proximate)

  4. Harm

n. Common carriers have a duty of utmost care (public reliance and danger inherent)
Principles of negligence:

  1. Duty of care is owed to foreseeable victims

  2. Ordinary care is required to avoid negligence (common carriers have a duty of utmost care)

Palsgraf v. Long Island Railroad- Owe a duty to all foreseeable victims (guy running for train, employee helps him in but his package containing fire works gets dropped and causes an explosion, as a result P got injured by some falling scales)

Cardozo’s view (majority): Do not owe a duty to unforeseeable victims

Andrew’s view: When you act negligently, you owe a duty to anyone who is harmed
No negligence because employee could not have known that the package contained fireworks that would explode and injure P. There was in fact negligence with regard to the safety of train catching guy, but not with regard to P standing far away
Brown v. Kendall- Standard to avoid negligence is ordinary care (two dogs are fighting, one owner using a stick to separate them and hits the other owner. Court holds bad jury instruction because it requires extraordinary care in the commission of a lawful act, and we only require ordinary care to avoid negligence)
The Reasonable Person: (RP similarly situated)


  1. Reasonable person is one in the same circumstances similarly situated

  2. Stupidity doesn’t get you off

  3. Minors held to standard of a reasonable person of the same age

    1. Unless engaging in an adult activity

  4. Drunk people need protection too

  5. Knowledge of disability or infirmary factors in

Vaughan v. Menlove- Establishes reasonable prudent adult of ordinary intelligence standard (stacked hay caught fire and spread to P’s property, D argues reasonable person of his modest intelligence standard)
Roberts v. Ring- For purposes of contributory negligence when engaging in a non-adult activity, use reasonable 7 year old standard. Use reasonable adult similarly situated (with the same sight problems) standard, court says the reasonable 77 year old who can’t see wouldn’t be driving, so he’s liable (77 year old runs down 7 year old who darts in front of his car)
n. Drunk people need protection too (e.g. hole in the sidewalk)
Breunig v. American Family Insurance Co.- Reasonable person with evidence of a disability standard, court said knowing her tendency to have delusions she shouldn’t be driving and we hold her liable (woman has a delusion and thinks she can fly because batman does, but crashes into a truck)
Should wealth factor into torts? With respect to the assessment of punitive damages, sure, otherwise no. We have a minimum standard of care and no reason to make exception, also it’s unfair, also it would change the outcome of cases
Calculus of Risk/Duty of Care


  1. Risk involved must be unreasonably great and reasonably foreseeable

  2. P has burden of proving a safer way exists which does not violate duty to others

  3. Hand formula (i.e. cost/benefit)

  4. Common carrier has duty of utmost care

Eckert v. Long Island R.R.-To make conduct negligent, the risk involved must be unreasonably great (and reasonably foreseeable) p.167
Cooley v. Public Service Co.- Plaintiff has a burden of proving that some way exists to prevent foreseeable harm without violating duty of care to others. Duty of care requires preventative measures that are reasonable under all circumstances (wires and loud noise in the phone). A tortfeasor has a duty of care to all reasonably foreseeable victims.
United States v. Carroll Towing Co.- The hand formula for negligence: 1. P probability of event, 2. L gravity of resulting injury, and 3. B burden of adequate precautions. Basically, Hand uses a cost/benefit analysis to see if someone was being negligent (barge breaks free, gets hit and destroyed)

RTT § 3

An actor is negligent in engaging in conduct if the actor does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether conduct lacks reasonable care are the foreseeable likelihood that it will result in harm, the foreseeable severity of the harm that may ensue, and the burden that would be borne by the actor and others if the actor takes precautions that eliminate or reduce the possibility of harm.
Palsgraf says you don’t owe a duty to the whole world, you owe it to foreseeable plaintiffs
Carroll Towing Decision- BPL analysis (cost/benefit)
Andrews v. United Airlines (1994)- The common carrier has a duty of utmost care and vigilance, applying the hand formula (something fell from overhead bins and injured P, court remanded for jury to decide)
n. In a negligence case, evidence of subsequent repair is inadmissible


The T.J. Hooper (1931-32)- Evidence of custom is relevant and admissible, but not conclusive: “In most cases, reasonable prudence is in fact common prudence”, but not in this case (under the law of admiralty, ships didn’t have radios to get weather, lost cargo, no custom of having radio receiving sets)
n. For medical cases, usually following custom is good enough
Canterbury v. Spence- Rejects custom and implements an objective standard (should look at the patient and decide what they would want to know based on probability and potential consequences, doctor will be judged on whether or not he made a reasonable appraisal of what the patient is likely to need to know)

  • *Informed consent claim=negligence claim*

  • Duty of disclosure probably violated by doctor failing to inform of 1% risk, doctors must give reasonable disclosure, which is objective and not based on custom. Also it doesn’t matter whether or not person understood (spine problem, falls off bed and gets paralyzed)

  • Exception: if patient is likely to have an overly emotional/unreasonable reaction and decide against the necessary surgery

Statutes and Regulations

Osborne v. MsMasters (1889)- a statute that provides for a civil action merely fixes the standard of care in determining negligence, it does not allow for additional penalties or offer up a different cause of action (drug store employee dispenses poison w/o clearly labeling it, person sues under a statute asserting an implied civil action)
Negligence Per Se (irrebuttable presumption)

  1. Are you in the protected class, looking at legislative intent?

  2. Type of incident statute was made to prevent?

RTT §14 Statutory violations of negligence per se

An actor is negligent if, without 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 within the class of persons the statute is designed to protect.

  1. Negligence per se creates an irrebuttable presumption, and therefore directed verdict is appropriate

  2. Unexcused violation of a statutory requirement constitutes negligence

  3. State laws generally outline negligence per se, whereas ordinances are usually presented to the jury as evidence of negligence

  4. Must look to the type of problem the statute was meant to protect against

n. in this instance, the legislature has spoken as to the standard of care, and therefore a directed verdict is appropriate in negligence per se cases
Martin v. Herzog- Violation of a statutory requirement can be excused, but an unexcused violation is negligence (guy driving buggy w/o lights in violation of statute hits and kills someone driving another car)
n. Ordinances are usually presented to the jury as evidence that they may use in determining negligence, whereas state laws generally outline negligence per se
Brown v. Shyne- Must look to the action the statute was meant to protect against, in this example it was meant to protect against unskilled practice, and P failed to show that D was unskilled (D violated medical licensing statute and performed chiropractic treatment on P leaving her paralyzed, court held no civil action under statute because someone failing to obtain a license doesn’t necessarily make them negligent)

Proof of Negligence

-circumstantial evidence-shows some, but not all of what happened, tryer of fact can draw inferences about what else may have happened

Res Ipsa Loquitur

  1. Wouldn’t normally happen unless someone was negligent

  2. Exclusive control

  3. No voluntary act or contribution (more broad than contributory negligence)


  1. Generally applicable when circumstantial evidence is relied upon heavily

  2. Res ipsa raises a permissible inference, allowing the Q to reach the jury (directed verdict is not permissible)

  3. Applies to surgery w/ multiple Ds

-Approach to a case in which circumstantial evidence has to be relied on very heavily

n. Res ipsa is weaker than negligence per se, allows question to reach the jury, but definitely does not guarantee plaintiff victory (i.e. directed verdict is not permissible)
Bryne v. Boadle (1863)- establishment of res ipsa, the thing itself is evidence of negligence (flour bag dropped on P’s head, no evidence who dropped it, court says res ipsa loquitur)
Ybarra v. Spangard (19441)- Res ipsa applies in the instance of surgery with an unconscious plaintiff and multiple defendants, where plaintiff does not know who is responsible (Ybarra wakes up from surgery with neck pain and ends up with partial paralysis, uses res ipsa, D argues you can’t apply it when multiple defendants exist and we don’t know who did it, court says instrumentality doctrine)
n. Res ipsa only sometimes shifts burden of proof onto defendant, Res ipsa raises a permissive inference that there was negligence, meaning the jury shall evaluate the strength of the inference

Affirmative Duties

Buch v. Armory Manufacturing Co. (1897)- The age of a trespasser does not matter, you gain no affirmative duty to act (kid trespasses, is asked to leave, but not forcibly ejected, and gets his hand mangled in a machine)
Duties to:

  1. Licensee: ordinary care

  2. Invitee: make property safe or adequately warn

  3. Trespasser: not add dangers

Robert Addie & Sons, Ltd. V. Dumbreck (1929)- The child was a trespasser and therefore there was no affirmative duty. If landowner had been willful and wanton, it would have been different (kid is playing with coal thingy, gets injured, try to argue an affirmative duty of care)

Attractive nuisance doctrine

Exception to the rules of liability for landowners with regard to trespassers, says if a child is lured to the property by something that looks like fun, and the D has reason to know that something they have is attractive to children, then a duty of care is found and the child is treated as an invitee

Rowland v. Christian (1968)- California supreme court does away with the distinction between an invitee and a licensee and expands duty of ordinary care to trespassers (guy comes to girl’s apartment and cuts himself on a broken fixture, she wins on the basis that he is a licensee, but loses on appeal when they do away with it) New rule=invitee rule. Give warning of foreseeable harm?
-Court looks to Cal. Civil Code §1714, which says “you’re going to be liable for negligence”: Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself.

Special Relationships

Kline v. 1500 Massachusetts Avenue Apartment Co. (1970)- Generally, a private person does not have a duty to protect someone against a third party, however, in this case the landlord had a special relationship because he had exclusive control over the common areas, he was informed of the danger, and no one else could have acted to prevent the danger (girl gets assaulted and robbed in the common areas of her apartment building, which used to have security but they removed it)
n. no observable fact of nature qualifies as a special relationship. Special relationship is a conclusion, and only use it for this type of case (case that raises the issue of an affirmative duty for protection of the plaintiff from harm by a third party)
Tarasoff v. Regents of University of California (1976)- D’s are liable if they have a special relationship to either the perpetrator or the victim. Specifically, the court held that therapists have a duty to warn where they believe the person to be a threat and the victim is specified. In this case, the therapist knew who the victim was and that the guy was likely to kill her (guy tells therapist he’s going to kill girl, they fail to warn her, then he kills her)

Negligent infliction of emotional distress

Satisfies the proximate cause element

Tests for recovery under NIED:

  1. Physical Impact (contact but not injury)

  2. Zone of danger (no impact, near miss)

  3. “At Risk” (e.g. I took your cancer causing drug and now I’m distressed)

  4. Direct victim (e.g. doctor’s tell wife she has an std, marriage breaks up, husband sues, because husband was a foreseeable victim court allows)

  5. Corpse mishandling

  6. Bystander recovery (see e.g. Dillon)

Dillon v. Legg (1968)- 3 factors may in degree give rise to forseeability and therefore proximate cause. Court looks to 1. location of plaintiff, 2. shock results from sensory and contemporaneous observance, 3. whether victim and plaintiff were closely related (woman’s child was run over by a car, woman sued for NIED, lower court said no because while she was close at hand, she was not in “the zone of danger”, higher court reverses)
Mitchell v. Rochester Railway (1896)- miscarriage was not the proximate result of fright, given no contact or physical injury, her damages were too remote to be reasonably anticipated and within D’s control (guy driving horses negligently stops them right in plaintiff’s face, she becomes frightened/faints/has a miscarriage, no cause of action for negligent infliction of emotional distress)

Vicarious Liability

Vicarious liability arose out of the doctrine of respondeat superior. It allows a plaintiff to recover from one party for the torts of another. Applies to employer/employee relationship, a joint enterprise (partnership), and any other qualifying relationship.

  1. Doesn’t apply to intentional torts

  2. Doesn’t apply when acting outside the scope of employment

  3. Employer may seek indemnification from employee

  4. Foreseeable conduct is actionable even if not within the scope of employment

n. keep in mind, vicarious liability allows you to hold someone liable who did not act negligently
Ira S. Bushey & Sons, Inc. v. United States (1968)- An employer is liable for negligence of the employee where conduct was reasonably foreseeable, although the specific action does not have to be, court overturns Nelson which says the employer is liable for actions where the employee was engaging in the action to benefit the employer (sailor turns wheel thing on dock when he’s drunk, harms a ship, employer held liable)
Frolic and detour- a detour, meaning short personal errand, falls within the scope of employment, a frolic, for example seeing a movie in the middle of your workday, is not within the scope of employment

Contributory Negligence

Butterfield v. Forrester (1809)- Plaintiff cannot recover if he has not employed ordinary care (guy is riding his horse violently and crashes into something D put in the road, no recovery for contributory negligence)

Last clear chance: if the D has one last clear chance to prevent harm to P where he knows of P’s situation and realizes/has reason to realize the danger, then he can be held liable despite contributory negligence (e.g. case where old man rides his cart in front of a train and gets hit by the train)

imputed contributory negligence

Mills v. Armstrong (1888)- Negligence of a driver will not be imputed to the passenger in a usual collision case (P is riding in a boat that collides with another boat, where both boats were contributorily negligent. Lower court wants to impute negligence on the part of the passengers, but higher courts both overturn)

Comparative negligence

Multiple defendants, 2 ways to hold liable:

  1. Order judgments proportional to the amount they were negligent

  2. P can recover against either D for the full amount, then the two defendants sort out who was more responsible

Li v. Yellow Cab Co. of California (1975)- Overturns contributory negligence doctrine that says no recovery, and adopts comparative negligence, which says you’re liable for the percentage you were responsible (Li’s tries to cross 3 lanes of oncoming traffic in her car, gets hit by a cab running a yellow light)
n. In some states, if P is 50% or greater liable, they cannot recover. “pure” comparative negligence says liable for the percentage, period (Cali uses pure)
n. When two parties in an accident are at fault and injured, if they do not have insurance, the amounts cancel against each other and one cuts the other a check for the difference. If they have insurance, the insurance companies both pay the judgments according to fault
4 implications of adopting comparative contributory negligence:

  1. Doctrines of last clear chance (goes away completely because it would mean that the D was 100% responsible, and was only implemented because we don’t like all or nothing negligence) and assumption of risk (gets dissolved into % of contributory negligence)

  2. Strict liability (still apply comparative negligence)

  3. Administration of fact finding process (big problem, trial judges will figure it out, special verdicts become more important)

  4. Cases involving multiple parties (joint and several liability?)

Joint liability: each person responsible for the whole judgment
Several liability: each responsible only for their portion of harm
Liability according to fault: each responsible only for the harm they caused
Post judgment resolutions for joint defendants:

  1. Contribution statute (Ds settle it so they pay an equal share or whatever the statute says)

  2. Equitable indemnity (complete reimbursement of D who paid and was not at fault to D who did not)

  3. Proportional indemnity (can recover from either D, but D’s are liable to each other for their shares of fault)

American Motorcycle Association v. Superior court (1978)- . Court adopts partial indemnity and sets for rule for settlements. Decided not to do away with joint and several liability because if a defendant caused an indivisible injury, there’s no reason they shouldn’t be liable (kid gets injured in motorcycle race, AMA wants to file cross suit against his parents for failure to supervise)

release of joint tortfeasors

  1. Common law rule: release of one=release of all

  2. Under the third restatement: a release claiming to release all is not presumed to do so, and the burden of pleading is on the D to establish that the settlement releases him

  3. Under Cal. Civ. Code §§875-877: Where a judgment has been rendered jointly against Ds and one of them has paid either in full or more than his pro rata share, he will be entitled to contribution from the other D for the amount in excess of his pro rata share

    1. Pro rata share is determined by dividing judgment equally among Ds

    2. This rule shall not impair one D’s right to indemnity from another

    3. Contribution not available for intentional harms

  4. Under the American Motorcycle Association decision: nonsettling tortfeasors lose the right to payment from the settling tortfeasor, and the amount of the judgment will be diminished by the settlement amount (rather than the proportionate fault of the settler)

  5. Under Evangelatos v. Superior Court (1988): Same rule as AMA, except when one D is insolvent, the shortfall is evenly distributed between P and remaining D

  6. Under the third restatement §21: Same as Evangelatos, except the shortfall is distributed according to fault of the remaining parties (exceptions: intentional torts, Ds acting in concert, vicarious liability)

  7. Under Brown v. Keil (Kan 1978): Ds are only liable to P for their percentage of fault (plaintiff bear burden of insolvent D)

  8. In ’86, California switched to several liability, meaning judgments are entered separately for Ds

  9. 16 states do pure joint and several liability, 14 states do several only, 7 allocate losses of insolvent Ds to solvent Ds, 9 split it based on type of damages

n. A way around worker’s comp: Dole v. Dow, P sues a third party, who in turn sues the employer under comparative negligence theory (a new section was added in ’96 that said this is only allowed in cases of grave injury, meaning basically complete blindness/deafness, loss of limb, etc.)
McDermott, Inc. v. AmClyde & River Don Castings, ltd. (supreme court 1994): Pro tanto rule practically forces Ds to settle, but will likely lead to inequity, which is too high a cost. 3 ALI approaches to determining nonsettling D’s fate:
Settlement extinguishes claims that P has against the settling D, and:

  1. Nonsettling D pays the judgment less the settling amount, and retains right to seek contribution if more than fair share is paid (pro tanto approach)

    1. Discourages settlement and leads to ancillary litigation

  2. Nonsettling D pays the judgment less the settling amount and cannot seek contribution (pro tanto approach)

    1. Likely result in inequitable apportionment of liability, even when supplemented with good faith hearings

  3. Diminishes P’s claim against other Ds by the amount settling D is responsible for (proportionate share approach)

    1. Parties already have an incentive to settle, avoiding costs and uncertainty

n. Mary Carter agreements (FL): void as a matter of public policy. An agreement whereby one D “settles” and reduces his share of the damage award as codefendant’s share increased

Assumption of Risk

“one who has knowingly and voluntarily confronted a hazard cannot recover for injury sustained thereby”

-generally, no duty to make a situation any safer than it appears to be

Murphy v. Steeplechase Amusement Co. (1929)- a person assumes foreseeable risks when they engage is the activity (guy goes on some sort of walking/falling down ride, falls and busts his kneecap, court says assumption of risk)

Primary and secondary meaning of assumption of risk:

  1. Primary: baseball hits you in the head at a game

  2. Secondary: sitting behind home plate where there is a protective screen, but screen has a hold in it


  1. Actual causation:

    1. But for (sine qua non)

    2. Substantial factor (use this when lots of people pointing finger at other D’s)

    3. BOP shifted to defendant cases (where D would unjustly escape liability due to P’s inability by the nature of the thing to prove cause)

  2. Proximate or legal causation:

    1. Direct causation (look for words like “immediately” and “no intervening”)

    2. Reasonable forseeability

n. To have cause, must have both actual cause and legal cause

actual causation


  1. A substantial reduction in chance of survival meets actual causation requirement

  2. When uncertain and where negligence of either D could have caused harm, both are liable

  3. Where showing cause is inherently difficult, court may shift burden of proof

  4. Market share liability may be employed with fungible products

New York Central R.R. v. Grimstad (1920)- But for case, P must show that the event would not have occurred but for employer’s act or omission (captain falls overboard and drowns, boat had not been equipped with life buoys, court found having the buoys would not necessarily have saved him) BF
Herskovits v. Group Health Cooperative (1983)- A substantial reduction in a person’s chances of survival despite their eventual doom counts as cause (doctor failed to diagnose cancer correctly and because it was not diagnosed early patient who had less than 50% chance to live experienced a 39% decrease in chance of survival, court holds for P) SF
Kingston v. Chicago & N.W. Ry (1927)- Because either fire would have caused the harm independently, the RR can be held liable (sparks from railroad sparks a fire that runs into another fire and collectively destroys P’s property) SF
n. Case suggests p 419 that a natural fire merge would get D off the hook
Haft v. Lone Palm Hotel (1970)- Where showing cause is difficult because of the inherent nature of the issue, the court may shift burden to the D (father and son go swimming in a hotel pool without a lifeguard where the hotel had failed to post signs saying no lifeguard, very hard to show that a lifeguard would have prevented the harm) Misc burden shifting
Summers v. Tice (1948)- Where two D’s are independently negligent and showing cause is difficult/impossible, they cannot be absolved simply because of the difficulty of proof and therefore the burden is shifted (3 people are hunting, 2 of them shoot and both shots hit P, although one of the shots was more severe, no way to know which shot did it, but both were negligent) Misc burden shifting
Market share liability: Each D is liable for their market share. See the Sindell case where P took a medication that was harmful, but didn’t know which manufacturer made the particular pill she took. To avoid the injustice of all D’s being able to get out of liability due to lack of proof of causation, D must show that their product could not have caused this particular plaintiff’s harm.

proximate cause

  1. Direct result test

  2. Forseeability test

Ryan v. New York Central R.R. (1866)- Damages that are not the immediate, but the remote result of D’s negligence cannot be imposed on D (train sparks put shed on fire, fire spreads to P’s house, we have actual cause, legal cause?)-court look to foreseeable, accidental circumstances, no control
In re Polemis $ Furness, Withy $ co. (1921)- Direct result test, must be an unbroken sequence (transporting petrol, caught fire, court holds forseeability is only used to determine negligence, then applies direct result test)

-a man is responsible for consequences that are a direct result of negligence, whether reasonably foreseeable or not

Overseas Tankship (U.K.) ltd. V. Morts Dock & Engineering Co., ltd. (wagon mound no.1) (1961)- Applies forseeability test and trashes the Polemis opinion (ship carrying oil, some of it spills and catches fire)

severing causation

Pittsburgh Reduction Co. v. Horton- apparent condition of safety? (kid with the exploding cap)
Brower v. NY Central and Hudson RR- It was foreseeable in this case that stuff would get stolen shown by guards presence protecting RR’s stuff, therefore liable (train hits his car, stuff gets stolen)- 2 successive acts, only exposed to the second act because of the first
Watson v. Kentucky and Indiana RR- The intentional act of a third party can sever causation. (Other people’s negligence is always foreseeable and therefore we will not sever causation, but other people’s intentional torts are not foreseeable, therefore sever causation) (gas station spills some gas, disgruntled gasoline attendant flicks cigarette onto gas and blows up everything)

Strict Liability (What cause of action?)

Employed with:

  1. Abnormally dangerous activities

  2. Products liability

Rylands v. Fletcher (1865)- A person, who lawfully brings on his land something which though harmless, but will do mischief if it escape, must keep it at his peril, and if he does not, he is answerable for all the damage (constructing dam, water breaks through and floods mine)-particularly when it is an artificial/man made item being kept, and when it is done in an unusual or inappropriate location

second restatement § 519

  1. One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.

  2. This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous

abnormally dangerous activities

Established by following factors:

  1. Existence of a high degree of risk of some harm to the person, land or chattels of others;

  2. Likelihood that the harm that results from it will be great;

  3. Inability to eliminate the risk by the exercise of reasonable care;

  4. Extent to which it is not a matter of common usage (e.g. cars are common);

  5. Inappropriateness of the activity to the place where it is carried on, and;

  6. The extent to which its value to the community is outweighed by its dangerous attributes (controversial)

3rd restatement view: The third restatement imposes strict liability for activities that pose a high degree of risk of physical harm even when reasonable care is recognized, and the activity is not one of common usage

n. Even with abnormally dangerous activities, causation is still a factor
n. Protection is restricted to harm within the scope of the abnormal risk

Product Liability (not a cause of action, merely a way to identify the problem)

3 types of PL problems:

  1. Manufacturing (it didn’t come out the way it was supposed to, a “flaw” case)

  2. Design (the plan itself caused harm)

  3. Informational (warnings)


Winterbottom v. Wright (1842)- The right to recover for a breach of contract, or privity of contract, is confined to those who enter into the contract. No negligence, no recovery (postmaster general agrees to supply and maintain coaches for D, Atkinson co hired drivers, one of the drivers was hurt by defect in coach)
n. Economic loss due to dependence on someone who has suffered a loss is generally not actionable (e.g. fish hypo)
n. Duty owed to foreseeable plaintiffs
MacPherson v. Buick Motor Co. (1916)- A D is not absolved of a duty to inspect when bought from a reputable manufacturer (wooden wheel broke)

strict tort liability

The Greenman case: changes from negligence to strict liability in tort for products liability cases, in a majority opinion written by Traynor (says a manufacturer is liable when it places a product on the market it knows will be used without further inspection)
Escola v. Coca Cola Bottling Co. of Fresno (1944)- Proposes strict liability for products manufacturers, since we appear to be doing that anyway (cola bottle explodes and injures waitress, concurring opinion written by Traynor)
Who can be a defendant?

  1. Under Greenman: Manufacturer

  2. Under RST §402: Seller

Must show

  1. There is a defect in the product

    1. Manufacturing (deviation from the norm)

    2. Design (unreasonably dangerous for intended use)

      1. Consumer expectations test

      2. Risk utility test (gravity and probability of risk against benefit and utility of actual design, versus benefit and feasibility of an alternative design)

  2. The defect caused the harm

Unreasonably dangerous: more than that reasonably contemplated by the ordinary consumer

n. §402 a of the 2nd restatement still dominates the law, so don’t focus on third restatement
RST §402A. Special liability of seller of product for physical harm to user or consumer

    1. One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property if

      1. The seller is engaged in the business of selling such a product, and

      2. It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold

    2. The rule stated in subsection (1) applies although

      1. The seller has exercised all possible care in the preparation and sale of his product, and

      2. The user or consumer has not bought the product from or entered into any contractual relation with the seller

n. Bystander recovery: because person has no involvement with the product other than injury, no contributory negligence is possible
Casa Clara Condominium Association, Inc. v. Charlie Toppino & Sons, Inc. (1993)- In products liability, you cannot recover for injury by the product to the product itself (warranty issue). Only recovery for product causing injury to persons or property (concrete was poured incorrectly, homeowners are trying to sue, the question is whether the concrete is a severable product or if the concrete is merely part of the finished condo product)
Volkswagon of America, Inc. v. Young (1974)- (vw bug is hit from behind and the seat mechanisms broke away from the body of the car, while a manufacturer is not obligated to provide an accident-proof car, the question is whether the car design reflected reasonable care in designing for the purpose intended, which Maryland says includes crashes)
2 Tests for Design Defects:

  1. Consumer expectations test

  2. Risk utility test

n. apply either, unless in Cali in which case apply Barker
Barker v. Lull Engineering Co. (1978)- A product is defective in design if 1. The product fails to perform as safely as an ordinary consumer would expect, OR 2. If the benefits of the challenged design do not outweigh the risk of danger inherent to the design (injuries caused by a loader at a construction site at ucsc, claims unsafe design)

-consumer may not have any expectations, however there may be a problem with the product. But it does have some merit.

California two part Barker test:

  1. Consumer expectations test applies first, but if P cannot prevail under this test, apply

  2. Risk utility test (P has burden of proving design caused injury, if that can be proved then D has burden of showing utility, knowing what we know now, outweighs risk)

Duty to Warn:

Use consumer expectations test

Hood v. Ryobi American Corp. (1999)- A warning need not be specific, but only what is reasonable under the circumstances. Also, defective design claims are absolutely defeated by alternation of the product (guy buys saw, removes blade guards despite warnings on product and manual, gets his thumb partially amputated and lacerates his leg, court finds that warnings were sufficient and did not look into design defect because he altered the saw)
McDonald v. Ortho Pharmaceutical Corp. (1985)- A reasonable warning conveys both a fair indication of the nature of dangers involved, and the degree of intensity demanded by the nature of the risk (woman takes birth control pills and suffers stroke, alleges failure of duty to warn because it did not specifically say stroke, although did say death)
Vassello- MA case that says if a manufacturer should not have and could not have known of the dangers of the product, then they cannot be liable for failure to warn or alleged defect (will only hold manufacturer liable for negligence)
When Plaintiff’s conduct factors in:

  1. Unforeseeable use

  2. No causal link between “defect” and harm in this case

  3. Assumption of risk

  4. Contributory negligence (works the same as if we were suing under negligence)

Preemption: as in cigarette warning cases, we need not look to adequacy when it meets these criteria

1 Medical case with multiple defendants is a special circumstance, do not normally shift burden of proof or apply to multiple defendants

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