Sharmaine Heng

Torts – Fall 2003

PURPOSE OF TORTS

Tort Law –
• Tort – twisted, distorted
• No liability <Social Insurance < Negligence < Strict liability < Absolute liability
• Tort liability system, laws that decide whether losses should be shifted from an injury victim to an insurer
or some other source of compensation.
• Individualized justice: Tort system decides the individual claim of each plaintiff by considering
o Fault – but for cause, and legal cause
o Relationship of the parties – duty, standing, privity, special relationship
o Level of danger
o Intention
• Deals exclusively with civil redress, not criminal liability.

Goals of Tort Law:

• Compensate injuries fairly
• Fairness
• Deterrence: (the foreseeable) Prevent accidents in the future – if you continually hold people liable for their
carelessness they will hopefully adjust behavior. Create incentives for safety
• Efficiency: Keep administrative costs of system low

Challenges to the tort system:

• Non-physical – are these injuries foreseeable (duty)? Proof of negligence (breach)?
• Not immediate – what was the cause – unknown D? Proof? Unknown plaintiffs (i.e. disease)?
•

9/11 situation presents a situation where tort system fails:

• Costly system to parties – lawyers and trial
• Lack of deterrence
• Failure to delineate a defensible/coherent distinction btwn groups of victims
• Compensation
• Imposing liability results in ex ante effects of losing social benefit of company where liability might be
inevitable (i.e. child vaccines)

Plaintiffs:
• System protects ability to claim damages
o Minors sue through legal guardian
o Survival statutes – allow the estate of decedent to sue for any harm he would have sued for
o Wrongful death – allow dependents of decedent to sue for continued economic support
o Loss of consortium – allow spouse to sue for loss of companionship

Possible questions: toxic torts.

1. VICARIOUS LIABILITY
• Respondeat superior – doctrine holding an employer or principal liable for employee’s or agent’s wrongful
acts committed w/in scope of employment.
• Advantages:
o Method of loss sharing /risk spreading
o Helps deterrence b/c companies will hire people who act carefully
o Work policies - Keep people out of trouble while at work
o Helps compensation, companies are better able to pay.
• Method of loss sharing /risk spreading

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Christensen v. Swenson et al (UT, 1994)

- Security guard on her unscheduled paid break went to pick up lunch. Guard drove her car to meet the
strict time allowed for lunch. On return trip, she collided with P on motorcycle. P sues D and D’s
employer.
- 3 criteria to determine whether employee was w/in scope of employment
(1) Be of the general kind the employee is hired to perform
(2) Occur substantially w/in the hours and ordinary spatial boundaries of the employment
(3) Be motivated, at least in part, by the purpose of serving the employer’s interest
- In this case:
(1) Traveling short distance from work in uniform could be considered patrolling. Company could be
said to endorse getting lunch from only restaurant nearby b/c of short break for lunch.
(2) Yes, during employment hours. W/in close proximity of work.
(3) Employee breaks benefit the employer and employee.
- Decided for P. Reasonable minds could differ about whether w/in scope of employment –
Summary judgment should have been denied.

Baptist Memorial Hospital System v. Sampson (TX, 1998)

- P was negligently treated by doctor who was independent contractor for hospital. P sues hospital.
There were signs that indicated that doctors were independent contractors and contract she signed
indicated the same.
- Hospital did not do anything to make it appear that independent contractor was an employee.
- Restatement of Agency §267
(1) the principal, by its conduct
(2) caused him to reasonably believe that the putative agent was an employee or agent of the principal
(3) and, that he justifiably relied on the appearance of the agency.
- Note: Restatement of Torts §429 – P just needs reasonable belief that services are being rendered by
D.

2. INSURANCE
• The real parties in a lot of cases. Shadow in every case.
o Social Construction of Risk:
 Insurance is often front and center in a lawsuit. It is de facto cap on the case damages.
 First party insurance also influences the needs of the P.
 Causation is not inherent, not to be discovered. Causation is created by the attorneys in
the case. We construct the tort elements.
 Hypo: Pregnant couple. Child delivered by independent contractor. Child born with
severe brain damage. Child was deprived of oxygen.
• Two arguments: not negligent, doctor’s delivering is not the cause of the harm.
• We will probably not know the real cause of the harm. The attys for the
plaintiffs will figure out who to sue based on who has better insurance policy.
• The crucial element of the tort will likely be shaped by insurance coverage of D.

• Most states have fault based auto insurance.

• Investment where we do not want a return

1. Goals of torts?
a. Method of loss sharing/risk spreading
b. Compensation – more D found liable when insurance involved.
c. Compensation – insurance has developed to allow more chance the P will be compensated, by
increasing number of solvent defendants
(1) Specific statutes to increase the number of liable defendants and find solvent defendant
(family purpose, respondeat superior)

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(2) Move from indemnity insurance to liability insurance (insurance that only reimbursed up
to what you were capable of paying to policy cap.)
(3) Insurance provisions that cover other people under your insurance
• Omnibus clause – insurance covers people who drive your car with your
permission
• Drive-Other-Car clause – insured person is also insured if driving sb else’s car
with their permission
• Introduced moral hazard problem
• Voluntary, only mandatory after the first accident
(4) Mandatory insurance (1950’s).
i. Assigned risk pool – pool of insurers that have to accept driver’s and cover them
ii. Uninsured clause/under insured clause – first party insurance that covers in the
event that you get into an accident with someone who does not have adequate
insurance.

- Current: Highly regulated mandatory insurance system – developed to assure that victims are
somewhat compensated.
- Increasing legislation: financial responsibility laws etc.
- Increase in other non-auto liability insurance

2. Externalities
a. Moral Hazard – One who knows he has insurance coverage is less likely to act with care
b. Adverse Selection – self selection of insurance buyers. The average risk of those buying
insurance is greater than the average risk for the population.
3. Two types
a. First-party coverage – insurance for self-protection from undesired event (i.e. car damages from
vandalism)
b. Third-party coverage – insurance for protection against the economic impact of having to pay
damages to another person (sb else hurt from car accidents and you have to pay)
c. Uninsured motorist coverage

4. Contractual restrictions
a. Insurer covers “accidents” only, not injuries from intentional actions
- i.e. sexual abuse – insurance cannot cover injury from sexual abuse even though the offender
and victim agree that the offender did not intend for the child to get hurt
- Trickier when intent is compromised, i.e. insanity, under the influence of drugs, no subjective
intent
(1) Some say that insane people cannot act intentionally as a matter of law.
(2) Some say that insane people can understand the physical nature of the act and
consequences even if he is unable to understand difference btwn right and wrong.
- Also negligence cases related to third party intentional acts.
- Some say that insane people cannot act intentionally as a matter of law.
b. Covers liability for pollution if it is “sudden.”

5. Legal restrictions (Statutory)

a. Insurable interest – only certain people are allowed to take out life insurance for you, also fire
insurance. (i.e. Aunt who takes out policy on a child and then kills the child to collect. Court says
that insurance co liable for allowing Aunt to take out policy)
b. Intentional/Criminal conduct – against public policy to allow coverage of willful wrongs.
i. Punitive damages are not insurable. We do not want people to be able to protect
themselves from damages that result from intentional action (could simply prevent by not
acting). But if punitive damages are more widely applied and not connected with intent
then perhaps should be allowed.

6. Permissive exclusions

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a. Reluctance to cover intrafamily (within family) claims.

Frost v. Porter Leasing Corp. (1982)

- P was injured in a car accident and sued D (Insurer of the other driver?) for damages. In the mean time,
Union Labor, P’s first-party insurer, covered P’s medical expenses. Should first-party insurer have implied
right to subrogation (no explicit clause) in a recovery action by the insured.
- Subrogation – allows first-party insurer rights to damages to cover what it has already paid for P.
- Holding: In the absence of an explicit clause, group insurer does not have subrogation rights.
- Subrogation may be unfair to P. Actual loss in personal injury is intangible and tort damages might not
even compensate.
- Medical expenses might be good candidate for subrogation, but too complicated/costly to split from the rest
of the claim.

Lalomia v. Bankers & Shippers Ins Co (1970)

- Maddock was operating a motorized bicycle, that is, a modified bicycle that had a lawnmower engine
attached. Maddock got into an accident with Lalomia who was driving a car. Both parties were killed.
Lalomia files for declaratory judgment. Does Maddock’s insurance covered the accident involving a non-
standard/home made motorized bicycle?
- Court holds homeowner’s insurance covers negligent entrustment (minority view)
- Court gives declaratory judgment about which insurance will cover by running through terms of each plan.
- Injured party’s first-party insurance covered.

Pavia v. State Farm (1993)

- Facts: Rosato (insured) had a learner’s permit that did not allow him to drive at night. Rosato picked up P
and another youth in his mother’s car. The car was insured by the D for up to $100,000 liability limit.
They were involved in a car accident where P was seriously injured. P suggested settlement to D, but D did
not accept. D conducted an in depth investigation and later submitted a settlement to P. The settlement
was submitted after the deadline and P did not accept. Case went to trial and jury award once reduced was
3.8 million. Rosato and Pavia agreed to together bring this case against D for bad faith dealing.
- Issue: Whether insurer acted in bad faith.
- P argues that State Farm acted in bad faith in not submitting settlement before the deadline. Therefore
exposing the insured party to risk.
- Conflict of interest? - Bad faith is an issue because insurance company almost totally control
settlement negotiation and have to balance their incentive to reduce insurance payments, with
insured’s interest to avoid liability beyond the policy limit.
- Standard: To show bad faith, must show “gross disregard for the insured’s interests.”
- Evidence does not show bad faith because
a. Does not show that insurer lost opportunity to settle for policy limit, when liability of insured was
determined.
b. Investigation is reasonable.
c. Failure to respond on time is no more than ordinary negligence.

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BREACH OF DUTY/NEGLIGENCE

• Unintentional Torts/Negligence – actions that result from carelessness

• Negligence suggests that “fault” should decide where the losses should lie. Splits the difference between
the losses naturally falling to the P and absolute liability where the losses would be entirely on D.
o No liability <Social Insurance < Negligence < Strict liability < Absolute liability
• 4 Part Requirement for Negligence Cause of Action
2. Duty
3. Breach of Duty
4. Causation/Proximate Cause
5. Damages

Hammontree v. Jenner (CA, 1971)

- Example of the conflict btwn absolute liability and negligence. Frames the issue of whether “fault” is the
right dispositive factor in.
- P injured and property damage to store when D drives through wall of store b/c he became unconscious while
driving from epileptic seizure. D had a history of epilepsy, but did everything to control his condition and
ensure that he was safe to drive: DMV knew, he got regular check-ups, took medication, doctor said it was
okay for him to drive.
- D appeals b/c seeks jury instruction on absolute liability – change the current standard of negligence. Suggests
should be analogous to product liability – Jenner is in the best position to ensure safety.
- Court draws distinction between defendants – in product liability, defendants are businesses.
- Decided for D. Absolute liability is not applicable in this case. D was careful. Negligence is the
appropriate b/c:
o New absolute liability system is a decision for the legislature. Only they can put together complex
plan. For court to declare that absolute liability is appropriate in this case, would cause confusion in
the interim.
o Court not comfortable that defendants struck by sudden illness (no medical history) should be held
liable.

1. STANDARD OF CARE: INTODUCTION OF REASONABLENESS

Brown v. Kendall (MA, 1850)

- Parties dogs got in a fight. D took big stick to separate the dogs. Accidentally hit P on the upswing.
- Trial court decides based on a distinction of necessary or unnecessary action. TC decides that D’s action was
unnecessary and therefore he should have been extraordinarily careful.
- Court throws aside distinction between necessary actions and unnecessary actions, and just looks at
reasonable care. If you exercise reasonable care then you are not at fault.
- *From this point onwards courts look at fault – whether people were careful/careless

Adams v. Bullock (NY, 1919)

- P swung 8 ft piece of wire while walking across a bridge. Wire hit trolley wire and shocked and burned him.
- Decided for D. Accident was not foreseeable it is unclear what reasonable precaution the company could
have taken.

US v. Carroll Towing Co. (2nd Cir., 1947)

- P sued D for allowing boat to come loose. D says that while it was negligent, damages should be reduced b/c P
should have had bargee on its ship (bargee was absent for 21 hours).
- Court reduced damages b/c P should have manned the boat, b/c the burden of doing so was less than the
likely harm that would result.
- Learned Hand formula: B<P*L then negligent and liable.
- (sh) Criticism that people do not think like this. For this reason, B<PL works best in commercial and property
situations, where the variables are measurable. Also courts are more willing to use a strict formula on
companies that can spread loss and in general plan this way.

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2. REASONABLE PERSON
• “The reasonable person standard provides sufficient flexibility, and leeway, to permit due allowance to be
made…for all of the particular circumstances of the case which may reasonably affect the conduct
required.” (Restatement (2nd) of Torts Section 283, comment c)

• Reasonable person considers -

(1) Foreseeable risk
(2) Probability of risk
(3) Extent of the risk
(4) Presence of alternatives
(5) Utility of conduct
(6) Costs of preventing/reducing risk/ameliorating harm

• Does a cost benefit analysis and:

(1) Does not act
(2) Acts w/o trying to reduce the risk
(3) Acts while trying to reduce risk/ameliorate harm

Bethel v. NYC Transit Authority (NY, 1998)

- P incurred injuries from a defective seat on a bus. Bus had constructive notice of the defect. TC jury found for
P based on standard that common carriers have duty of utmost care.
- Circumstances determine what standard we use.
- Court applies reasonable care standard to common carriers (replaces “utmost care” standard) b/c public
transit is no longer especially dangerous.

• Generally reasonable person is measured by objective standard. What would a reasonable person do
given these circumstances?

• External circumstances may affect one’s standard of care, including:

A. Having to make a decision in an emergency;

B. Children held to standard of “reasonable person of like age, intelligence, and experience under like
circumstances”
• However, when engage in adult activities, they are held to adult standards (i.e. driving)
C. Physical disability – blind people held to reasonable blind person standard
• However mental disability, stupidity is NOT an allowable circumstance.
1. Vaughn v. Menlove – piled hay in the yard causing a fire hazard. He defended
by saying that he wasn’t very smart. Court would not make an exception.
2. Bashi v. Wodarz – “wigging out” is not a defense.
D. The customs of one’s trade or profession (generally only so far as they impose a higher standard of care);
E. Whether a statute dictates a certain standard of care;
F. Expertise in a given area. Note that this is the same standard of care: “make use of your relevant
knowledge.” But if that knowledge base is higher, it may consequently demand more care. Note that
knowledge may be treated differently than skills and abilities.
G. Facts of which a person may be aware, such as whether it’s raining, what someone knows and who they
work for, whether an animal, vehicle, etc. is safe to engage with, etc.

• Why an objective standard?

 Shows that we don’t only care about moral culpability.
 We are also wary of people’s ability to cheat/game the system, act stupid etc.
 In terms of goals of torts, we do not want people who are injured by stupid people to not
be compensated. We do not want stupid people to not be deterred.

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 Concern about the P and what people expect you to do.

 i.e. Chiropractor acting as a doctor is held to the ordinary care standard for doctors.
(assumed a risk)
 i.e. Children who drive cars are held to adult driving standard

A. ROLE OF JUDGE AND JURY

• (sh) Judges and juries look at external circumstances to judge reasonableness. These are tools to in some
cases identify accepted standards.

• When should decisions go to the jury:

o When no special knowledge is needed
o Changed circumstances – juries are better at evaluating new changes

• Arguments against juries: (Andrews v. United Airlines – baggage – jury allowed to decide)
(1) Unpredictable
(2) May consider irrelevant things that are then incorporated into law (i.e. comparative negligence)
(3) Inconsistent – goes to fairness

• Arguments against judges:

(1) Against system
(2) Juries allow for changed circumstances better than judges (Andrews)

Baltimore & Ohio RR v. Goodman (USSC 1927)

- Goodman (P) drove across RR tracks on a familiar intersection and was hit by a train. P died. P sues.
- Judge Holmes sets standard. Does not allow case to go to the jury.
- RR not liable. P should have followed standard conduct - stopped and looked to see if the train was
coming (get out of the car when necessary).

Pokora v. Wabash Railway Co. (USSC 1934)

- P drove across train tracks in daylight. There was a chain of boxcars on the track that restricted his view. P did
not hear a whistle so he attempted to cross the tracks and was hit by the train.
- It is unclear whether Goodman standard (stopping and looking etc.) would have been reasonable – other
dangerous things could have happened. Case should go to jury for them to judge reasonableness.

B. CUSTOM
• Good guide for reasonableness, but not conclusive.
o Exception: In medical malpractice, the medical custom sets the standard of care.
• Consider B<P*L here when considering whether custom is reasonable.

Andrews v. United Airlines. (9th Cir., 1994)

- P hit by baggage that fell from overhead compartment on the airplane. Flight attendant was not involved in the
accident. P claims that injury was foreseeable to D. TC granted summary judgment for the D. P wants it to go
to jury.
- D as a common carrier owes standard of “utmost care” (Compare Bethel)
- Custom is accepted and no special knowledge needed. Jury is in a good position to gauge and judge this.

Trimarco v. Klein (NY, 1982)

- P (tenant) sued D (landlord) for not replacing shower door w/ safety glass. Door was installed in 1953. Safety
glass installed in new showers and replacements at request after 1965.
- Consider B<P*L
- Custom may indicate that D’s actions were not reasonable or below standard. BUT it still must meet
reasonableness standard by jury. Custom is not a conclusive test.

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- “What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a
standard of reasonable prudence, whether it usually is complied with or not.” (Holmes)

TJ Hooper (2nd Cir.)

- Tug boat was pulling several barges. Tug boat did not have a radio, if it had then it would have known that
there was a storm and may not have lost cargo. Although some tug boats had radios, it was not the industry
custom to have radios on tug boats.
- Industry standard is not reasonable. Court looks at fact that some boats have radios.
- General practice does not set the standard in most industries (except medicine maybe others)
- Fact-finders must determine what is reasonable standard. (Probative – adhering to or violating custom tells us
something about the D. If the industry does not take the precautionary measure shows that – there may not be
adequate alternatives, D was not unreasonable, D may need to raise cost.)

C. STATUTE
• The “reasonable person” standard has been criticized as too vague to guide juries. The duty of care can be
narrowed legislatively via statutes legislating standards of conduct which establish negligence per se. Early
cases (Martin v. Herzog) suggested per se standard, but this was later relaxed (Tedla.) Statutes vary,
however, in the extent to which they establish duties of care. They may be (1) determinative, (2)
determinative unless X, (3) probative, (4) something a court can ignore. Based on statutory negligence,
a court may decide to take a case away from the jury.
o In general
 Statute more likely to be adopted as reasonable standard if statute matches the situation
presented (R§286)
 Statute often is not conclusive. Must still consider reasonableness.
 Statute is often a minimum, over which reasonableness still must be considered.
 Statute sometimes a presumption of negligence, where D has the burden to prove he was
not negligent.

• Statutes establish negligence per se when act causes the sort of harm (relevance) to the type of plaintiff
(population) considered (intended purpose) by the statute (causation still needs to be shown, but no need
to consider reasonableness)
• Restatement §286
o Legislative enactments or administrative regulations can be adopted as a standard of
reasonableness when the purpose of the standard/regulation is exclusively or in part: (all of the
following)
(a) to protect a class of persons which includes the one whose interest is invaded
(b) to protect the particular interest which is being invaded
(c) to protect that interest against the kind of harm which has resulted
(d) to protect that interest against the particular hazard from which the harm results

• Statutes set a minimum standard of due care. It does not follow that if one has not violated the statute, one
has necessarily exercised due care. Sometimes more than the minimum is required.
o Edwards v. Basel Pharmaceuticals
o Hubbard-Hall Chemical

• General arguments for and against equating violation of a statute with negligence:
o Pro: Reasonable people don’t violate the law; juries shouldn’t be allowed to nullify legislation.
o Con: Too rigid. Holmes: life of law is not logic, but experience; must account for circumstances.
• Pay attn to what defenses allowed.

Martin v. Herzog (NY, 1920)

- Violation of the statute is negligence per se.

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Tedla v.Ellman (NY, 1939)

- Distinguished from Martin , because intent of the statute in this case is not safety, but general orderliness. See
Restatement.
- Non-compliance with the statute should be considered in light of the circumstances.

DeHaen (NY, 1932)

- Statute requires a barrier built at construction site in order to stop workmen from falling down shaft.
- Because of the lack of barrier, radiator that is put at the edge of the shaft falls and kills plaintiff.
- Court applies statute violation to hold company that failed to put up barriers liable.

DiPonzio (NY, 1997)

- Statute requires that you turn off car engine at the gas station when filling gas.
- Because car engine was left on, the car rolled back and pinned P.
- Court does not apply statute, because it was intended for fire prevention.

LICENSING
• Performing licensed activity without a license is NOT negligence per se. Still need to prove reasonableness
etc.
• The reason to get licensed is not to avoid tort claims. Other reasons to get a license

Hypo: Driving w/o a license

- If you get into a car accident and you do not have a license, are you negligent?
- No, what matters is how you were driving, not licensing. Might be subject to fine, butt should not be negligent
for the accident per se.

Brown v. Shyne (NY, 1926)

- Chiropractor injured a patient while doing a procedure that only a licensed physician should do.
- Court ruled that D should be held to the standard of a physician and that jury should not be told that D was
unlicensed.
- We do not care what you are licensed for, but how you perform the procedure.
- 1971 statute – makes lack of medical license prima facie evidence of negligence, (sh – for more dangerous
activities we take licensing more seriously, or maybe for activities where people are more likely to defer to
your expertise we take licenses more seriously – b/c the P would have also)

ADMINISTRATIVE REGULATION
• Statutes set a minimum standard of due care. It does not follow that if one has not violated the statute, one
has necessarily exercised due care. Sometimes more than the minimum is required.
• Role of Agencies
o Currently agencies set the minimum, over which companies individually set up more specific rules
keeping in mind that they are liable in a lawsuit for faulty products.
 Companies know their products best.
 Companies have the incentive to be safe.
 FDA cannot manage all products.
o Argument that FDA should set the standard for reasonableness and that courts in cases below
undermine the agencies authority.
 FDA better than courts to set the standard.
 FDA is federal law. States could set their own laws to supplement (sh)

Edwards v. Basel Pharmaceuticals (OK, 1997)

- P died from a nicotine-induced heart attack after using 2 nicotine patches, and smoking. D argued that its
compliance with FDA requirements for warning on the package should protect it from liability. The court
stated that the D’s duty was not necessarily fulfilled by meeting FDA requirement and that duty was a matter of
state common law.

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Hubbard-Hall Chemical v. Silverman (1st Cir., 1965)

- Two migrant farm workers died from contact with commercial insecticide. D defended itself by saying that it
complied with minimum congressional requirements. Nonetheless, the jury found that D should have been able
to foresee that the product would be used by workers with limited reading ability and English skills. They
found the labels because they lacked skull and cross bones and other universal symbols (even though these are
not required by the rules) to be inadequate warning.

D. PROFESSIONAL STANDARDS/EXPERTISE: SPECIAL CASE OF MEDICAL MALPRACTICE

• Unique problems w/ medical malpractice
o Specialized knowledge and skill
o Expensive law suits – many experts needed
o Standard of care – used to be set by same/similar locality rule, but now abolished
o Custom
 Law allows doctors to set their own professional standard. More lenient than
reasonableness.
 Custom has a larger role in medical malpractice, because it is the standard for
reasonableness.
• Exception: Schools of thought
 Unlike TJ Hooper, juries do not have knowledge enough to evaluate whether the industry
standard is reasonable.
o Proof
 P must prove that D departed from recognized standard of care
 P must bring experts to educate the jury about the recognized standard of care. – unlike
other witnesses these witnesses are paid (biased?)
 Often P is unconscious – Res Ipsa
• 3 Issues
o Res Ipsa
o Standard of care – professional reasonableness standard (more lenient b/c set by peers)
 Reflected in use of experts in trial
 Schools of thought – doctors whose opinion is not reflective of majority opinion, but of a
“School of thought” are okay.
 Move away from locality rule increased the number of malpractice claims. Technology
and information is more fluid. No conspiracy of silence among doctors)
o Informed consent
o Lost chance – normal malpractice claim w/ different harm

Sheeley v. Memorial Hospita (RI, 1998): Standard of care

- Issue concerns whether certain expert is appropriate
- Present day medicine does not require locality considerations in the same way we used to
- RI court abolishes local standard rule in favor of national standard.
- Schools of thought - if there are two legit schools of thought, doctor is not negligent for following one
instead of the other (even if in the minority)

Connors v. University Associates in OB/GYN (2nd Cir., 1993): Res Ipsa

- P sues b/c leg left paralyzed after surgery.
- P may use res ipsa in a medical malpractice action even though P introduces expert testimony to prove
D’s specific negligence caused injury.
- Res ipsa useful here so that P does not have to show actual negligence, but negligence by inference.
- Issue is that res ipsa is grounded in the idea that jurors share a common experience that allows them to make
inference of negligence. If you have to bring in specialized experts to show negligence then inference isn’t as
strong.
- Courts are divided on this issue.

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- Res ipsa is not preferred.

Matthies v. Mastromonaco (NJ, 1999): Informed Consent

- P is an active senior. P broke her hip and consults D. Considering her pre-existing conditions and her age, D
advises bed rest. As a result of bed rest, Ps hip displaced and she is unable to walk.
- P must be told of the materiality of risks of the recommended procedure and other reasonable medical
alternatives that were not recommended by physician.
- Materiality of risk test: whether a reasonable patient in the patient’s position would have considered the
risk material
- Restatement §892d – in life threatening cases, consent is not needed.
- Substantial change in circumstance requires new informed consent decision
- Notes (sh):
o These cases are especially complicated, b/c not common knowledge. Have to depend on experts to
understand the custom.
o Physician standard: what doctor thinks he should say.
o Patient standard: what patient wants to know
o Court tries to draw the line at “risks that are material” – but this is an unclear category
(1) Fuzzy line of what reasonable alternatives includes.
(2) What probability of risk needs to be explained to the patient.
(3) There is some objective standard, but it is unclear.

Shine v. Vega
- P went to the hospital and was intubated against her will.
- Court held that competent adult may refuse life saving treatment.
- Only if patient is unconscious, incapable of giving consent and the doctor cannot for time/circumstances get the
consent of a family member, then okay to presume that the patient would consent to life-saving treatment.
- Strict standard - Doctor must not have reason to believe that patient would decline if he had the opportunity.

MEDICAL MALPRACTICE CRISIS

• Problem: Injured people are not being compensated, insurance increasing, too many cases
o Traditional locality rule decreased the number of cases, b/c local doctors did not want to testify
against each other. Also national standards, bring big city standards to local hospitals.
• If we think there are too many medical malpractice cases:
o Bring back locality rule
o Narrow use of res ipsa
o Narrow informed consent

3. PROOF OF NEGLIGENCE
• P has burden of proof. Burden may switch to D, where there is a presumption of negligence, or where D is
in a better position to prove (res ipsa)
• Types of evidence
o Real evidence – actual stuff
o Direct evidence – witnesses
o Documentary evidence – photos, film
o Circumstantial
• Fact intensive

ACTUAL/CONSTRUCTIVE NOTICE – FORESEEABILITY

• Can distinguish the following cases on 3 factors below, but notice is the most important.
o Exclusivity of control
o Foreseeability and prior knowledge - notice (constructive or actual)
o Nature of D: Commercial etc.

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• Constructive notice – A dangerous condition must be visible and apparent, must exist for a sufficient
length of time prior to the accident.
o Randall v. K-Mart – P slips on birdseed in K-Mart store. P applies “business practice rule” that
constructive notice isn’t necessary to show negligence when business practice creates foreseeable
risk (i.e. debris on the floor can be anticipated in self-service operation)

Negri v. Stop and Shop

- P may make out a prima facie case of negligence by presenting circumstantial evidence that D had constructive
notice of a dangerous condition which caused injury.
- Commercial D.

Gordon v. American Museum of Natural History

- Not enough evidence to constitute actual/constructive notice of dangerous condition, b/c pretzel wrapper was
not dirty – couldn’t tell how long it had been on the steps (no constructive notice) and no proof of actual notice.
- Also distinguish from Negri that steps are public, there is less exclusivity of control.

RES IPSA
• “the thing speaks for itself” – negligence can be inferred from the fact that the accident happened in the
first place.
• 3 Requirements
(1) The injury was probably the result of negligence
(2) D had exclusive control
(3) P was not at fault

• All P needs to do is not get the case dismissed.

• Often applicable to cases where: (i.e. medical malpractice, product liability)
o lack of consciousness/lack of awareness
o not enough other evidence
o Extraordinary cases – ones that could not happen w/o negligence
• Consider whether res ipsa or strict liability should apply.
• Goals of torts:
o Compensation – concern in res ipsa is to make sure that P can claim for injuries suffered.
o Deterrence – similar to strict liability, this is a harsher liability scheme and therefore probably
more deterrent.
 Question whether it is too much of a deterrent. Society wants competent doctors. If the
price is too high, doctors are not able to practice.
o Fairness – fair to P who could not claim for injuries otherwise.
o Efficiency – D has better access to evidence therefore makes the trial go faster, at the expense of
unfairness to D who is presumed negligent.

Byrne v. Boadle (1863)

- P was hit by a barrel of flour falling from above outside of flour dealer’s (D) store.
- Seminal case developing res ipsa
- Court holds that there is a presumption of negligence from the facts. Prima facie case of negligence, D
has the burden to rebut the presumption.

Larson v. St. Francis Hotel

- Pedestrian hit w/ a chair thrown out of the window of D’s hotel. P sues the hotel and proves that chair was
thrown out of the window of hotel.
- Court granted nonsuit.

McDougald v. Perry

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- P was driving behind D’s tractor trailer. Spare tire came loose from below the truck and fell to the road where
truck ran over it. Tire spun up and hit the windshield of P’s car. Spare tire was held to the truck by a chain. P
did a pre-trip inspection of the truck.
- P is not required to eliminate w/ certainty all other possible causes or inferences, just needs to show evidence
that reasonable people can say would on a whole be more likely than not to infer that the cause of the
accident was negligence.
- Res ipsa applicable.

Ybarra v. Spangard
- P went in for appendectomy and after surgery he loses ability to use his arm. He sues all people associated
with the surgery.
- P is not required to show that ONE defendant had exclusive control, when it is clear that a specific group
had exclusive control. Burden on D to show jury they were careful.
- Protects P. Since P was unconscious it is unfair to not allow him to sue simply because he cannot prove.
- Prosser – Inference of negligence on to D is key feature.
- Wigmore – Superior access to evidence is the key feature.
- Court more comfortable w/ this b/c all D are part of the same corporation – loss will be spread.

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DUTY

• General duty - we have an affirmative duty to exercise reasonable care so as not to by our actions injure
anyone. (Duty assumed unless there is an exception – helping a third party where you are in no way
involved is an exception)
⇒ Foreseeability reins in this general duty (i.e. Palsgraf), obligation to others
• Things to keep in mind:
- Difficulty of proof when relaxing a strict standard
- Difficulty of fraud
- Difficulty with incentives of strict liability
- What is the general problem – why is strict so objectionable
- Court drawing lines to limit claims

Affirmative duty – what duty do we have to other people to prevent dangerous things from happening to them? Has
to do with WHO?

PHYSICAL INJURY
I. OBLIGATION TO OTHERS
A. Rule: No affirmative duty to help someone in danger/prevent (not our action causing the harm -
nonfeasance), except with special relationship
⇒ Increasing number of special relationship exceptions makes us think that we want to see people have a duty if it
is of no great harm to the actor to have that duty.

TRADITIONAL: NO DUTY
1. Harper v. Herman: Boat owner and random social guest passenger. No duty. No duty to warn.

NON-NEGLIGENT DUTY
2. Non-negligent duty (motor car cases, Maldonado) – if you know you innocently cause harm then
you have a duty to prevent future harm/Tresmer v. Barke – dr. implants IUD and finds out later
that they are dangerous – he has to tell patient.
3. Non-negligent creation of risk – if you didn’t create the risk then no duty to prevent future risk
(taxi driver who takes guy away from scene of the accident where there is a disabled car.(Menu v.
Minor)

SPECIAL RELATIONSHIP

Farwell v. Keaton: Special relationship and assumption of duty once he started to help.
i. Nonfeasance v. misfeasance
ii. If you are a voluntary helper should you be held to the same standard of care? In general,
held to reasonable standard.
iii. Cannot prevent someone from providing aid – bartender in a bar who refuses to allow sb to
make a call.

PRIVITY
Moch – water company not held liable for providing water to home owner. As a result of lack of water, house burns
down. Seems like court is trying to protect utility company. But, court says that this is an instance of nonfeasance –
lack of water is just not providing a benefit. This and Strauss start to warn against expansion of the idea of duty.

Strauss v. Belle Realty Co.: Special relationship (arbitrariness of special relationship) – courts are reluctant to extend
liability to utilities and the way they limit it is by privity of contract.

STATUTORY DUTY

Uhr v. East Greenbush Central School District (scoliosis): Statutory violations are not necessarily duty, no duty:
• 3 part test: if statute has right of action:

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1.Whether P is the sort of plaintiff meant to benefit from statute? - yes

2.Whether recognition of the right of action would serve the legislative purpose?
• Objective of the statute: promoting health and avoiding hospitalization
• Yes.
3. Whether creation of right would be consistent w/ legislative scheme? – NO (statute
explicitly says that should not suffer liability from testing)
4. Duty to rescue – some states have statutorial duty is where it is easy for you
5. Exception: Good Samaritan – held to a broader standard of gross negligence (more lenient)
i. Public policy reasons

II. OBLIGATION TO THIRD PARTIES

A. Rule: no affirmative duty to help someone in danger/prevent harm, except with special relationship to one
of the parties (Tarasoff and Randi W)

⇒ Special relationship gets broader – do not need to have the relationship with the person harmed, just sb w/ the
ability to prevent the bad event – foresee the injury (i.e. the actor, the person who hired the actor - Randi). We
want to hold people more accountable.
⇒ Need to be able to foresee the injured party – know of the specific person

SPECIAL RELATIONSHIP TO THIRD PARTY

Tarasoff v. Regents of U of C: extend special relationship to indirect

i. If should have predicted the act
ii. 4 factors for determining duty: Consider the factors for varying from usual reasonable care
duty:
• foreseeability
• identifiability of the victim
• cost of warning (TJ HOOPER)
• degree of certainty that P suffered injury
• closeness of connection btwn D conduct and P injury
• moral blame attached to D’s conduct
• policy of preventing future harm
• extent of harm to the community from breach
• availability, cost, prevalence of insurance for the risk.
iii. §315 – restatement for special relationships. “a special relationship btwn the actor and the 3rd
person which imposes a duty upon the actor to control the 3rd person’s conduct.” Where the
3rd person – poddar, and actor is doctor.
Lego v. Schmidt – do not have to warn train driver if you are passenger, and driver is about to hit pedestrian he does
not see. No special relationship btwn train driver and passenger and pedestrian. (Similarly, proctoring doctor does
not have duty to intervene in surgery to stop doctors from negligence – he has no special relationship with this
patient)

2. Factors that matter:

(1) Special relationship w/ the actor
(2) Knowledge of the particular injured party – goes to foreseeable injury

Pamela L. v. Farmer – wife who invites children over and leaves them alone with sexual offender husband has a
special relationship duty to the children. She failed to warn,

Randi W. v. Muroc Joint Unified School District: extend special relationship/nonfeasance v. misfeasance – is the sth
that is done here, nothing or sth done wrong?
ii. Nonfeasance requires a special relationship to be wrong. (i.e. if you did nothing, but had a
special relationship, then you did sth wrong)

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iii. Misfeasance does not require special relationship. (i.e. if you did something wrong, it doesn’t
matter if you have a special relationship)
NEGLIGENT ENTRUSTMENT
⇒ Negligent entrustment (misfeasance) – in general there is no obligation to 3rd party (injured), but there is if you
have done something that was foreseeably dangerous. – entrusting someone w/ sth knowing they will use it
carelessly – as if endorsing negligence.

Vince v. Wilson: negligent entrustment – suppliers cannot assume items will be used carefully if they know or have
reason to know that the person is likely to use negligently.
iv. Does not extend to rental companies – not foreseeable.
3. Keys in ignition – some courts hold the owner of the car liable on negligent entrustment.
4. Inviting the kids to spend time alone with child molesting husband creates special relationship. (or
is this just misfeasance)
5. NJ Court
(1) Relationship w/ the parties
(2) Nature of the risk
(3) Opportunity to exercise care
(4) Public policy
Reynolds v. Hicks: negligent entrustment – look to the intent of statute about supplying children with alcohol. Social
host? Statute – legislative intent
ii. 2 issues:
a. statute – intended to protect child therefore not negligence per se.
b. statute meant for commercial vendors. There are enough differences btwn commercial
and social to worry about extending liability.
⇒ No duty to act affirmatively to prevent harm to other people (i.e. pulling the baby off the train tracks), BUT we
have a general duty to act with reasonable care to prevent injury (cannot do anything active to invite injury to
others). Factors determining whether there is a duty to prevent harm:
 The relationship of the parties
 The nature of the attendant risk
 The opportunity and ability to exercise care
 Public interest in the proposed solution
 CONSIDER: that should weigh with the goal of finding fair solution for the specific case
and a sensible rule for future cases.

III. OBLIGATION OF LANDOWNERS AND OCCUPIERS

A. Rule: special duty of landowner is subject to relationship with the person on property, trend towards
reasonable care?, based on foreseeability
1. Licensee – has permission. Duty to make safe dangers of which the possessor was aware.
2. Invitee – has permission. Duty to exercise reasonable care to protect against both known and
unknown dangers that would be revealed under inspection. (business reasons, public invitees)
3. Trespasser – cannot willfully or wantonly cause harm
⇒ Move to eliminate these categories in some states, suggest that we want to hold people more accountable.
Posecai (Sam’s Club) case shows that we expect landowners to be responsible for greater range of foreseeable
events, not just ones that they have notice of .

B. Rationale
C. Cases
1. Condition of the premises: Carter v. Kinney (bible study): As a member of bible study he is not an
invites b/c there is no material benefit and he was not invited as part of the public at large.
2. Activities on the premises: traditional rule that cannot recover for active negligence on the
premises when licensee or trespasser
3. Attractive Nuisance (Exercise 6)

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Heins v. Webster County Hospital: Abolishes distinction btwn invitee and licensee. Move towards breakdown of
categories, Should consider

For policy reasons, the distinction between licensees and invitees is abolished in favor of a duty of
reasonable care for all nontrespassers (Essentially, all are invitees). Courts in the future should
consider the following factors in evaluating whether reasonable care clause has been met:
1. Foreseeability and/or possibility of harm
2. Why the entrant is on the property
3. Time, manner, and circumstance surrounding the entrance.
4. The use to which the premises are put or are expected to be put.
5. Reasonableness of the inspection, warning, repair
6. the opportunity and ease of repair
7. the burden and cost of providing protection

Rowland (CA): collapses categories in favor of reasonable care to all people

Posecai v. Walmart: Foreseeability/Crime

i. Balancing test is appropriate for determining the factors considered for action to be
foreseeable.
ii. *Courts are split btwn the balancing test and totality of circumstances test.
iii. 4 approaches for determining foreseeability
a. Specific harm – landowner only owes a duty to protect patrons if he is aware of specific
or imminent harm (has notice) - narrow
b. Similar incidents test – gauge foreseeability of crime by the statistics of previous crimes
on or near the premises – this test is very subjective b/c diff standards for the number of
crimes and degree of similarity btwn crimes that necessitate duty.
c. *Totality of the circumstances – test takes account foreseeability and other factors. This
test is good b/c even if there have not been previous crimes in the area, the inherent
danger in the area (amount of light etc.) can be considered – can be said that it is too
broad, holds landowners too responsible.
d. *Balancing test – balances the foreseeability of harm against the burden of imposing duty
to protect against criminal acts to a third person. THe greater the foreseeability r, the
greater the duty. (Similar to B<P*L)

IV. OBLIGATION OF THOSE WITH IMMUNITY

• Rule: Defense. D claims that they have no duty because of who they are. In general, relaxed or abolished
this rule.
⇒ Relax immunity rule in order to better meet compensation, deterrence and fairness goals of torts, maybe at the
expense of an efficient system – family cases are harder to prove/more chances of fraud etc.
• We want to allow P to be compensated for their injuries, regardless of who the faulty party is.
• No reason why these parties should not be deterred from committing negligent acts.
• It is only fair to hold family/government responsible for things that we would hold private parties
responsible for.
• Intra-family claims are in large part motivated by collecting on insurance – compensation/loss-spreading.

A. INTRA-FAMILY
1. Rule: Traditionally, no duty because parent. Moving towards “reasonable parent standard”
2. Rationale:
i. Historically, there were few exceptions to parental immunity:
a. parents acting outside parental role in the scope of employment
b. parents acting willfully and wantonly or recklessly
c. if the child was not under parents care (emancipated)
d. if child or parent dies
e. if third party is responsible for the tort

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f. if tortfeasor is standing in loco parentis.

ii. Justifications for parental immunity:

a. Disturb domestic tranquility
b. Danger of fraud and collusion
c. Deplete family resources if award to the child
d. Awarding child could benefit parent if the child dies first
e. *Interfere with parental care, discipline, and control

Broadbent v. Broadbent: Traces move towards “reasonable parent test”

- Facts: Mother left 2 yr old in the pool while she went inside to answer the phone. Child suffered serious brain
damage. Father represents the child’s interests.
- Rationale:
(1) If parent’s action would usually be considered negligent if done by anyone else, it
does make sense to hold them responsible to their children. (Dog mauling cases).
(2) Insurance companies are the actual defendants, therefore claim makes it more likely
to help domestic tranquility and help family resources.
(3) There is danger of fraud in most cases, it is not good reason to not allow cases.
- Holding: Justifications for parental immunity do not Should use a reasonable parent standard

Christian Scientist parents – should they be held to the reasonable parent standard or the reasonable Christian
Scientist or the reasonable Christian Scientist Parent? Court held that reasonable parent standard supercedes
religious beliefs.

Harm to fetus: Should a fetus be able to sue for smoking related harm from third party? From mother? (Compare
with wrongful life)

3.
Questions:
i. The last justification is the most important, how much can government impose standards of
parental care?
B. GOVERNMENTAL
1. Rule: Sovereign immunity. Moving towards some liability as carved out by FTCA.
i. Sovereign immunity – from logic that since the king makes the laws, the laws cannot work
against him. Outdated.
ii. Federal Torts Claims Act (1946)
a. Federal government waives general tort immunity
b. (EXCEPT)§2680 – The Act should not apply to:
• *Claims based on a government employee acting/not acting in accordance with
a statute or a discretionary duty/function.
• Claims about postal matter
• Intentional torts
• Claims for damages caused by operation of the Treasury, regulation of the
monetary system
• Claims about combatant activities
• Claims arising in foreign countries

Riss v. City of NY: Sovereign Immunity

c. Facts: Riss repeatedly threatened by ex-boyfriend. She seeks help from the police on
multiple occasions, but they refuse to help or are dismissive. Riss is seriously injured by
someone hired by ex-boyfriend.
d. Holding: Cannot extend tort liability to police, this requires act of the legislature.

Cuffy v. City of NY: 4 factors for police special relationship (misfeasance/nonfeasance)

e. Police have to do something/or say they are going to do something
f. Police have to know that inaction will lead to harm

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g. Direct contact
h. Reliance from the injured party
School district cases – when is a child out of the care of the school? Emphasizes that the line is just some line to
limit school liability, while protecting children

Cope v. Scott: Federal Torts Claims Act

i. Facts: Scott hit Cope while driving on a slippery federal road. Cope sued Scott, but also
sued the US for negligent maintenance and poor signage.
j. Rationale:
(1) Two Step Test:
1. Whether and federal statute, regulation, or policy specifically prescribes course of
action. If there is specific prescription then there is no choice and discretionary
function exception does not apply. (if not discretionary, then gov’t can be held
immediately liable)
2. Whether the challenged discretionary acts involve the exercise of political social or
economic judgment. “The discretionary f(x) exception applies only where the
question is not negligence but social wisdom, not due care but political practicability,
not reasonableness but economic efficiency.”
k. Holding:
(1) Maintenance of the road is not prescribed, and it does require that the government
weigh the cost, benefit, allocation of funds, and risk to visitors, therefore it is
covered under the discretionary exception.
(2) Signage is not prescribed, but it does not require the government to balance
economic, social and political factors. Signage has to do with “engineering and
aesthetic concerns” and judgment about these concerns are not protected from suit
and therefore the government can be held liable.

SPECIAL TYPE OF HARM – Historically, used as a defense: there was no duty for non-physical harm. Is there a
special duty due because of the special type of harm? Arguably, non-physical harm is not any different – matter of
proof.

V. EMOTIONAL/NON-PHYSICAL (UNINTENTIONAL)

Approach:
1. Was there physical harm to you? If yes, can collect emotional damages that resulted
therewith.
2. Zone of danger test: (1) Physical contact, (2) Immediate harm. If yes, then emotional
damages are recoverable.
3. Falzone test: (1) Fear of immediate physical harm, (2) physical consequences resulting
from emotional harm (medical evidence is useful). Does not require physical impact, but
need to have possibility of physical impact.
Bystanders:
4. If no physical harm to you, did you watch sb get physically harm ed? If no physical harm,
then no claim.
5. If yes, Dillon Test:
a. Location – close to the accident
b. Shock resulting from sensory observation (Johnson v. Jamaica Hospital)
c. Close relationship with victim
d. (Portee adds)Serious injury or death
6. Injury to property – pets: depends on the extent of the distress and whether courts view
pets as simply “property.”
7. If none of the above, still possible if foreseeable under Gammon.
8. Some extensions (time) and limitations (courts seem to be saying that something other than
foreseeability is necessary) under Procreation section.

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A. Rule: Move from compensation for physical harm only to consideration of emotional harm.

⇒ Relax immunity rule in order to better meet compensation, deterrence and fairness goals of torts, maybe at the
expense of an efficient system – non-physical cases are harder to prove/more chances of fraud/hard to draw
lines etc.

• Traditionally, could only be compensated for physical harm and associated pain and suffering.
• Initially, need to show that there was some physical element to the harm. Increasingly, just the possibility
that could have been physically harmed, to the point where courts have been willing to award for emotional
harm distanced by time from the accident and just considering foreseeability (Gammon).
• Seems to turn on proof and foreseeability
o Degree of harm
o Evidence of physical injury
o Foreseeability

B. Rationale

Falzone v. Busch (1965): fear of immediate harm and physical manifestation of emotional harm
- Facts: P watches her husband get hit by a car. The car veers in her direction and she is so afraid that it will hit
her that she experiences serious physical harm. P sues the driver of the car.
- Rationale:
o Previous precedent (Ward) stated that emotional harm was not compensable because
(1) Public policy - Allowing emotional harm cases will allow a flood of cases.
(2) Have not given damages for emotional harm in the past, no precedent.
(3) A person who causes fright, would not reasonably foresee that fright could turn into physical
harm.
o This case overturns Ward, saying that
(1) Cases should be decided on merit, not on whether it will expand the number of cases coming
in.
(2) Lack of precedent does not mean that we should There have been cases awarding damages
for emotional harm, (i.e. Porter – woman who watches bridge collapse and gets emotional
harm damages because of slight physical contact (dust from bridge in her eyes).
(3) Whether physical harm results from emotional harm is a matter of fact not law.
(4) Increasing ability to medically link emotional and physical harm. In any case, tracing cause
with tenuous evidence is something true of all cases.

- Holding: If can show (1) fear of immediate personal physical injury, and (2) physical consequences of
emotional distress. Emotional distress w/o physical harm is not compensable.

Airline cases: Quill v. TWA – plaintiff claims damages for severe anxiety to fly after he was a passenger on a TWA
flight that almost crashed. Similar suits awarded more money for people who were afraid to fly at all after a similar
experience.

Emotional distress for the doomed – courts have awarded damages for the families of decedents for the emotional
harm from knowing they were going to die.

False positive HIV cases

Metro-North v. Buckley (1997): Zone of Danger

- Facts: P was exposed to asbestos regularly for three years as a RR worker. He attended an asbestos awareness
class, and experienced emotional distress about getting cancer from among other risk factors, asbestos exposure
(increased chances). P received regular medical check-ups and thus far has not exhibited symptoms of cancer
or other asbestos related disease.

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- Test: Zone of Danger Test (Gottshall): law permits recovery for emotional injury by those plaintiffs who
sustain a physical impact as a result of the defendant’s negligent conduct, or those who are placed in immediate
risk of physical harm by that conduct.”

- Holding: Upholds Gottshall. Cannot recover for employer negligence if emotional distress is not connected to
immediate danger of traumatic physical harm or emotional distress over a disease without some physical
symptoms of disease.
- Concurrence: There was physical impact, but there was not objective proof of emptional impact. P did ot
suffer sufficient amount of emotional distress.
- (sh) Damages for cost of monitoring system and additional medical expenses would directly address the harm.
Courts do not want to award these, b/c it requires work to monitor on the courts part.

Porter v. Delaware – Bridge collapses and P gets dust in her eyes. Minor physical contact is sufficient for courts
to award damages for emotional harm.

Needle pricks: Needle actually needs to carry HIV for claim for emotional distress about needle prick to be
successful.

BYSTANDERS

Portee v. Jaffee (NJ, 1980): Dillon Test

- P (mother) witnesses her son get caught btwn the elevator door and wall of the elevator shaft. Son dies after
long attempt to rescue him. After son’s death, P was depressed, tried to commit suicide, sought therapy. P sues
for emotional damages.
- Applies the Dillon test and adds that there must be great severity to the harm
- Dillon test
(1) Located near the scene
(2) Emotional impact as a result of sensory perception of the accident (not hearsay)
(3) Close relationship with the victim
(4) (Portee adds) Serious injury or death

Johnson v. Jamaica Hospital (NY, 1984)

- P (parents) sue for emotional distress as a result of their daughter being abducted from D’s hospital.
- Court does not award damages b/c they did not observe the abduction.
- P were not foreseeable. No duty.

Gammon v. Osteopathic hospital:

- Foreseeability – emotional harm should be treated under the standard of reasonable care, fewer and lesser
physical symptoms necessary
- Court concerned about “idiosyncratic plaintiff”

VI. PROCREATION/END OF LIFE (parental immunity)

A. Rules
1. Three Remedies
i. Limited recovery rule – expenses (mother and child), emotional distress, loss of consortium
ii. Full recovery rule – limited plus cost of rearing the child
iii. Full recovery with offset for benefits (mitigation) – limited plus cost of rearing child, less
emotional and economic benefit from having the child

⇒ Consider whether these are just medical malpractice. Is this really a harm above that of negligence.
⇒ Involves economic and emotional harm.
⇒ Tests the limits of foreseeability as the primary measure of liability. Parents of unhealthy children are
foreseeable.
⇒ Reaction to medical technology that allows us to control/monitor these processes and make choices about birth
(abortion)

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Emerson v. Magendantz: Could this just be medical malpractice

- P decide not to have children for financial reasons. P has tubal ligation. Negligently performed, P gets
pregnant. Child has congenital problems. Following birth, P gets another tubal ligation.
- Recover emotional distress for unwanted healthy child + economic and emotional distress for unwanted
unhealthy child (in excess of normal) + cost of raising – economic benefit from gov’t assistance.

Wrongful Birth: Parent sues for emotional distress b/c of birth of unhealthy child that should not have been born
- Ex: If genetic counselor negligently tells patient that the kid will be fine and the child is born with a birth
defect. Should damages be awarded?
o Yes:
(1) Economic: Mother could have aborted. There are now extra costs to raising the child.
(2) Emotional: Mother expected healthy child.
o No:
(1) Healthy v. unhealthy children make a judgment on the value of life.
(2) Maybe cost of raising child in excess of healthy child is max.

Wrongful Life: Child sues doctor, “I should not have been born.”
- No damages. Child is foreseeable victim, but did not have an alternative. Preventing the harm means not
being born, and could simply say that the benefits of being alive outweigh/counter the costs. Uncertain
damages.

Loss of Consortium:
- Move from economic and physical to more general
- Includes mother’s claim that when she was injured she loss consortium of children (Borer)
- Not extended to children’s claim over mother – line drawing, lack of money, awareness of loss (sh)

Babies not born:

- Patients counseled that children are likely to be born with genetic abnormalities choose not to have children.
- Courts have struggled with mitigating for benefits of having a child. Damages are uncertain.
- Acc to medical malpractice:
o Duty – special relationship
o Breach – negligent advice that was clear would have injury, we want to look at procedure doctor went
through
o Cause – if but for the doctor’s advice they would have had a child.
o Damages – compensatory ?? (cost of adoption?)
- Acc to procreation and end-of-life cases:
o Limited, full, full w/ offset for benefits
o Limited – expenses taken as a result of not having a child (loss of consortium?, emotional distress -
therapy etc.)
o Full and full with offset is unclear.
B. Questions
1. Is this a cause of action? What should the remedy be?
2. How is this different from medical malpractice? Would it be fair to just do that?

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CAUSATION
• Central idea of negligence that should only be liable for what you caused

I. ESTABLISHING ACTUAL CAUSE

1. “But for” – But for D’s negligent behavior, the harm would not have occurred.
o However, if harm would have happened anyway then “but for test” fails.
(1) i.e. driver failing to signal turning on a foggy day when no one would have seen it anyway
(2) i.e. P’s land floods after D negligently maintained RR embankment. If the storm, was severe
enough to have caused collapse of a reasonably maintained embankment then not actual
cause.

2. Alternative tests: When “but for” fails: - Burden shifts to D

a. Timing and ruling out other causes
i. Reasonable certainty (Stubbs)
ii. Causation by expert testimony (Zuchowitz)

b. Res ipsa – if more than one D and unclear who b/c of access to evidence, P can show negligence
by inference. Causal event is related to timing – post hoc ergo prompter hoc. Actual cause is
unclear.

c. Substantial factor – if two negligent D, but only one potentially caused the accident (unclear).
Then both D are liable.
i. But for test fails b/c either D could get off b/c it is not clear that but for his action the
accident would not have happened. i.e. other D could be responsible (see below)
ii. Both D must be negligent (Garcia v. Joseph Vince)

d. Concerted action – More than one D have a concerted plan to participate in committing a tortuous
act (i.e. drag racing). If so then all D are joint and severally liable.

e. Market Share liability – Many D are assumed negligent, but it is unclear which one actually
caused the injury. Court splits damages proportional to market share at the time of the injury.
i. Apply when negligent product is fungible.
ii. Question about whether to allow D to prove that they couldn’t have been part of the
negligent group for particular regions or P. Since all D are not present, each liable D
pays only for share of damages (does not sum to 100%).
iii. Question about whether to use national or regional market share.
iv. Statute of repose – some manufacturers may try to limit liability by imposing statute of
limitation from point when product is first released.

f. Loss of Chance – P sues for loss of opportunity. Damages vary. (Distinguish from emotional
harm)
i. Damages
1. If P lost more than 50% chance, then P awarded full damages. In these states if
you lost less than 50% chance then awarded that share of total damages.
2. P receives share of total damages proportional to % chance lost (regardless of
greater than 50% or less)

Stubbs v. City of Rochester (1919): cause should be shown to “reasonable certainty”

- P got typhoid and claims that is as a result of water pollution.
- Post hoc, ergo prompter hoc. Timing of the events suggested that one event was related to the other.
- Statistical evidence suggests that D is liable b/c there is “reasonable certainty” (51%).
- “If 2 or more possible causes exist, for only one of which a D may be liable, and a party injured establishes
facts from which it can be said w/ reasonable certainty that the direct cause of the injury was the one for which

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D was liable the party has complied w/ the spirit of the rule [Showing that D’s actions were wholly or partly
responsible]”

Zuchowitz v. United States: Danocrine – Establishing causation through experts

- D prescribed double dose of Danocrine to P. After taking over prescription for a month she was scaled down to
the FDA max dose. P developed PPH and died. P used 2 scientific experts to establish that PPH is rare, and
that Danocrine “more likely than not” and w/ “medically certainty” causes PPH. D questions admissibility of
experts and argues in the alternative that expert evidence still does not meet proof of causation.
- Expert admissibility – tests favor plaintiff b/c trial court judge has discretion and trial court judge discretion
about facts is only overruled if “manifestly erroneous.”
- 2 tests
o Frye test – (more rigid – not used in this case) reasonable scientist test – scientific evidence should be
based on techniques generally regarded as reliable in the scientific community. Most states
o Daubert test – (more lenient) This “flexible” test heavily favors the plaintiff. Preserves “gatekeeper”
role of judge to decide when scientific evidence should be used. (not exhaustive factor test)
(1) Determines relevance and reliability.
(1) Whether the theory can be (has been tested) acc to scientific method
(2) Whether theory/technique has been subjected to peer review/publication
(3) For scientific techniques, known/potential rare of error
(4) Whether theory is generally accepted
- Causation – violation of statute is presumption of cause, D needs to show that negligence was not a substantial
factor in causing (Martin v. Herzog)
(5) Negligent act was deemed wrongful b/c the act increased chances that a particular
type of accident would occur
(6) Accident of the sort happened, enough to support negligence as cause
(7) In these cases, D should have to prove that the negligence was not a substantial
factor in this particular case.
- D violated FDA regulation for max dose. Regulations trying to prevent the side effects of drugs from high
dose. Therefore P’s injury in line with the type of harm sought to avoid. Therefore, D should have to bring
proof.
- Increase in the number of cases that go to the jury.

MULTIPLE DEFENDANTS
A. JOINT AND SEVERAL LIABILITY
• Where the separate negligent acts of more than one defendant together caused the injury, and P would not
be injured “but for” the negligence of both , then both are liable. P can recover against either one (or both)
and the other can seek contribution from the other.
o Jointly engaged - Also applies to when one person inflicted the injury, but he is jointly engaged in
negligent conduct with multiple defendants.
o Successive tort – when one D causes injury to P, and it is aggravated by another D negligent act,
burden shifts to D to establish what portion each caused.

Summers v. Tice: Alternative liability

- P was in the forest. D1 and D2 were hunting. At the same moment D1 and D2 shot at a quail. Two shots hit P
instead causing him injury.
- Even though either D1 or D2 could be the negligent party that caused the injury, because each party
negligent and “substantial factor” in the injury, both are liable.
- Elements needed to switch burden:
o D has better access to evidence than P
o Limited number of wrongdoers
o All D are negligent
o High likelihood that one of D caused the injury – substantial factor
o All possible wrongdoers are before the court.

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Garcia v. Joseph Vince

- P was injured by a negligently manufactured fencing saber. P knew that only one of two manufacturers could
be liable. P sues D1 and D2.
- Decided for D. Since only one D is actually negligent, shifting the burden to D1 and D2 is too much
burden. (We will shift the burden when we know both D were negligent, but unwilling when breach of duty
cannot be shown for all)
- fencing, both were not negligent, unlike summers v tice

Ybarra v. Spangard (res ipsa)

- Court finds that D is in a better position to access evidence that will get to the negligent party.

B. MARKET SHARE LIABILITY

• Veers away from traditional tort concepts

Hymowitz v. Eli Lilly: DES

- Class action: P’s offspring injured by P taking DES. Composition of DES was identical across manufacturers
(small difference only in pill shape and market where sold). Harm from drug only shows up much later –
outside of statute of limitations. Legislature enacted statute for 1 year that allowed suits for latent effects of
this drug. P sues all remaining DES manufacturers (some have left the market). It is unclear which
manufacturer’s drug she took, but one of D is liable.
- Court
o Considers alternative liability (Summers) – Time lapse does not make D better access to evidence,
large number of wrongdoers, and all are not present, probability that any one D was liable is low.
o Considers concerted action frameworks (drag racers) – but DES manufacturers were not planning
anything together, just parallel action
o Uses market theory b/c above are not applicable.
(1) Practical
(2) Approximates overall culpability of each D to the public at large
(3) Unless any one D can prove not part of the market, he is liable
(4) Does NOT take into account pill shape or regional market defenses – companies are meant to
pay for overall risk (in the long run) that it injected into the market, not related to particular
plaintiff’s claim. This is standard of fairness in this case.
-
- Court makes each DES manufacturer pay damages proportional to their share of the market during the
period in question.
- Dissent: Should allow D to remove themselves from P’s claim based on pill shape or regional market.
Allowing these exceptions is more consistent with traditional intent of tort law. Majority is “judicial
legislating.”

LOSS OF CHANCE

Alberts v. Schultz (1999)

- P had a pre-existing condition of peripheral vascular disease. P consulted D about “rest pain.” While “rest
pain” is a sign of gangrene, D did not conduct any tests or conduct an arteriogram. P requested referral to
another doctor. D was slow to grant referral. Other doctor conducted arteriogram, and tried a few unsuccessful
procedures to save the leg, but it had to be amputated. P sued D for medical malpractice.
- P claims an increased risk of harm as a result of D’s negligence.
- Decided for D. Must show “reasonable degree of medical probability” that negligence caused and lost
chance. Damages should be determined in proportion to the percentage of lost chance.
- 2 Harms: (1) underlying harm, (2) the exacerbation of that harm =*Lost chance (Lost chance=Lost window of
time to have taken alternative measures)
- Damages= % of lost chance*value of life or limb.

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- As in any other negligence claim have to show: duty (dr-patient), breach (no arteriogram), injury (no leg shows
that must have lost the chance to prevent amputation), CAUSE (b/c P had pre-existing condition does not pass
but for test - unclear that D was responsible).

TOXIC HARMS
• Presents extreme problems of showing cause.
• Probability incorporation is inherently against the system of individualized justice.

Environmental Liability and the Tort System

- Tort system is inherently bad system to deal with toxic harms: 3 Problems linked by the difference in the harm:
Accident v. Disease
- Problems of Identification
o Not an immediate injury from a particular event – hard to identify what the harm is.
o Diseases are often resulting from background risks of living. Relies on technical evidence and
probability judgments.
o Future claimants
- Problems of Boundaries
o No particular causal event, but mass torts case.
o Unconfined liability b/c nature of the cause (i.e. accident/diseases distinction)
(1) Diseases need post exposure treatments
(2) Ex ante assessment of liability is open ended
- Problems of Source – unknown defendants
o B/c cannot be tied down to one event/one source, the responsible other party is hard to define in two
party system.
o Collective harm by many companies (i.e. CFC users)

Medical Monitoring
- Presents one solution that directly addresses the problem of exposure w/o harm
- Bower v. Westinghouse: Test for medical monitoring award:
- P must prove:
1. Significant exposure compared to the general population
2. Exposure is to a hazardous substance
3. Exposure is because of defendant’s tortuous conduct
4. Suffered increased risk of contracting serious latent disease as a result of exposure
5. Increased risk makes it reasonable necessary to undergo medical monitoring different from the regime that
would be prescribed w/o exposure
6. Monitoring procedures exist that make early detection possible

Breast Implants – Tort system failure where causation is never even shown

- Causation was never even shown. The damages were so high that it was just a matter of settlement.

- Role of tort system as signal to legislature

- Tort system has tendency to extreme damages
- Juries are irrational decisionmakers
- Ex ante effects of large class action on manufacturers – run the risk of not having valuable products on the
market at all.

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PROXIMATE CAUSE

I. PROXIMATE CAUSE
• Even if duty, breach, and actual Cause, should D be liable for what he “caused” what reasons are given
why he might not be?

Glannon from Columbia outline:

Proximate causation. Here, P has shown that D’s negligent conduct caused injury. But, D will say that
result is so unforeseeable as to bar liability. Proximate causation allows a jury to let a negligent
defendant who actually caused an injury off the hook based on lack of foreseeability.

Terminology – direct v. indirect cause. Direct cause – uninterrupted chain of events between the
negligent act and the injury. Indirect cause – after the first negligent act, but before the injury, there’s
an intervening affirmative act on the part of a third person, or an act of God.

Two basic rules of proximate causation: 1) if the result is unforeseeable, D isn’t liable. No
exceptions! 2) If result is foreseeable, D is liable. Exception: in an indirect cause case, if the
intervening act was an unforeseeable intentional tort or crime, then let the first D go, even though the
result was foreseeable. Railroad depot case: Making the woman walk home through Hobo’s Hollow
led to a foreseeable crime; letting her off at the wrong stop in a safe neighborhood would not likely
lead to liability.

In direct cause cases, the result is almost always foreseeable.

A. UNEXPECTED HARM – foreseeability and cause

Benn v. Thomas – (Eggshell plaintiff) D liable for all harm.

a. Steinhauser
2 Arguments:
Polemis (Andrews) – direct cause and negligence for foreseeable injury
Wagon Mound – type v. extent of harm – gumming up of boat
Wagon Mound 2
Smith v. Leech Brain & Co. – type v. extent. Liable for unforeseeable extent but not for unforeseeable type.
b. Link between negligence and harm

B. UNEXPECTED MANNER – intervening defendants cause the weird manner

McLaughlin v. Mine Safety Appliances Co. – company is not liable if a foreseeable result happens in an
unforeseeable manner.
Hines v. Garrett – girl gets raped. Injury was foreseeable harm.
Gibson v. Garcia – termites and the pole, foreseeable way in which it could happen.
Hines v. Morrow – what circumstances of the case do we care about

C. UNEXPECTED VICTIM/PLAINTIFF

Palsgraf v. Long Island Railroad: Case is more about duty

i. Cardozo: Only if foreseeable plaintiff, plaintiff who is not directly involved (Ex: Tarasoff
is a foreseeable plaintiff, Doctors have duty to warn children of parents with genetic
diseases, also partners of patients who have HIV)
ii. Andrews: Duty to anyone (factors?)

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iii. Compare with Randi W. v. Muroc – foreseeability of hurting a child in the school district
makes the injury foreseeable and therefore D held at fault.
iv. Distinguish: Compare Strauss v. Belle Realty – where he is a foreseeable plaintiff, but
not owed a duty, because fear of extending liability of public utility companies.
v. Distinguish: For the same reason of extending liability, duty owed to children suing for
wrongful life.
Firman v. Sacia
Kinsman cases
b. Are emotional harm victims (Falzone, wives, close relations (loss of consortium), needle pricks,
woman with the dust in her eyes) unexpected harm victims who are foreseeable acc to Cardozo, in
the zone of danger? Duty us called into question.
c. Procreation and end of life? In these cases, the harm is foreseeable. There is a duty and a breach
of duty because the procedure is performed negligently. There is a cause. But somehow we do
not want to hold doctor responsible for the extent of the harm?

Questions:
1. Crime v. Tort in Cardozo’s opinion in Palsgraf?

OTHER DEFENSES

II. CONTRIBUTORY NEGLIGENCE

• P’s negligence bars his recovery even if D is negligent

⇒ Largely replaced by comparative negligence (only few states), b/c juries ignored contributory negligence
rule that P’s negligence did not allow him to recover. Juries treated contributory negligence as
comparative. Courts followed.

⇒ NOT contributorily negligent if the accident would have happened if the P was being careful.

• Requirements
- Must be cause and proximate cause of the accident
o Ex: If standing on shaky platform, despite being told it was unsafe and might fall. If wall collapses as
a result of D’s negligence and knocks you off the platform, P’s action is cause, but not proximate
cause.
-
• Limitations to contributory negligence
- Children are not CN if crossing the road under watch from bus driver.
- Children not barred from CN entirely
- Recuers
- Recklessness – if D was reckless, CN of P is not considered
- Last clear chance – if D had last clear chance, even if P was CN, P can recover fully.
- No imputation of CN – might for child to parent, but not from driver to rental car company
- Punting cases to juries who will follow comparative negligence

III. COMPARATIVE NEGLIGENCE

• P’s recovery depends on P’s negligence relative to D’s negligence

Why move towards comparative negligence?

- Juries ignored contributory negligence
- Contributory negligence is too harsh
- Compensation - Too may car accident victims were not awarded damages b/c they were somehow involved
(trend towards no-fault car insurance)

• 3 Types:

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o Pure – P recovers % of damages for amount he was not negligent. If P was 90% negligent, he
recovers 10% of damages.
o Modified
 P recovers under pure rule if P’s negligence > D’s negligence
 P recovers under pure rule if P’s negligence>= D’s negligence
o Pure v. Modified?
 P does not recover under pure if he is more negligent than D
 If P is more negligent, P could end up paying more by having to pay for D’s injuries and
his own
 Modified is difficult w/ multiple parties. Can consider comparative btwn each D or btwn
all D.
• Limitations
o If P is reckless, then not compared to D’s negligence
o If P is negligent, and D reckless is compared in most states (pure version)
o If P violates the law then courts usually do not acknowledge claim.

• UCFA – Uniform Comparative Fault Act

- Pure comparative negligence
- Setting fault % should consider: (courts resist reassessing fact finder’s %)
o Mere inadvertence or awareness of danger involved
o Magnitude of risk created by conduct including potential extent of injury
o Significance of what the actor was seeking to obtain
o Actor’s superior and inferior capacities
o The particular circumstances (i.e. emergencies)
- Claim and counterclaims should not be “set off” against one another unless agreed by parties (b/c of insurance
– this would preclude either party from being compensated by insurance company)
- Contribution
o Multiple defendants can claim contribution from each other.
o If D1 settles and this gets rid of the law suit, then he can seek contribution from D2.
o If D1 settles and case against D2 continues. If D2 is found liable on the merits, then D2 cannot go to
D1 for contribution, but trial money may be reduced by settlement.
- Effect of insolvent defendants (3 systems)
o In most states, other D split the insolvent D share of damages.
o Several liability: Each D just pays the share he owes. Insolvent D is not compensated for.
o P and other D split the share of insolvent D in proportion to the % negligent.
-
Fritts v. McKinne (1996)
- P was drunk driving and got into an accident. P died as a result of a procedure that went wrong during surgery.
D claims that P’s artery was in an unexpected place, also claims that P was contributorily negligent, b/c he was
drunk driving when he received the injury.
- Court held that evidence of P’s substance abuse was only relevant for damages calculation about future
earnings.
- P’s contributory negligence unrelated to the medical procedure, doctors are responsible for medical
procedures no matter how patient got there.
- Compare Benn v. O;Conner

IV. AVOIDABLE CONSEQUENCES

• P’s damages recovery reduced by failure to exercise due care to mitigate the harm done (even if D is
completely negligent)
• Ex: P’s failure to get medical attn, P’s failure to follow medical advice
⇒ Reluctance to follow medical advice tricky when considered w/ some religious beliefs
- If P will not seek mitigating treatment, then similar to eggshell plaintiff

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• Make distinction between avoidable consequences and causation.

o Ex: Smoker who works for 35 years, and also works with Asbestos. D cannot claim avoidable
consequences, just multicausal.
o Ex: Person who is told cancer will become lung cancer if he smokes, and he smokes. Yes,
avoidable consequences.

• Make a distinction between avoidable consequences and contributory negligence.

o Ex: P does not wear a seat belt. D hits him. P’s not wearing a seat belt would probably not be
found by court to reduce damages. (avoidable consequences)

V. ASSUMPTION OF RISK
⇒ W/ comparative negligence, no longer an absolute bar to recovery
• P assumes the liability.
• 3 Types
o Express (i.e. contract for bungee jumping)
o Primary implied (i.e. amusement park ride)
o Secondary implied (*) – P knowingly encounters risk created by D’s negligence

Dalury v. SKI: Express assumption of risk

- Totality of the circumstances and societal expectations govern public policy

- Invitation to the public to utilize its facilities and services is a question that concerns public interest
- Premises should, aside from obvious dangers be “reasonably safe” for the purpose of the services rendered.
- D is least cost avoider
o In a better position to prevent the harm
o In a better position to insure against the risk
- It does not matter that skiing is not an essential service
- Distinguishes ski area risk from the risks of the sport of skiing.
- Duty to “warn of or correct dangers which in the exercise of reasonable prudence in the circumstances
could have been foreseen and corrected.”

⇒ Role of insurance – should P be allowed to take the risk if he has insurance?

- Yes
o Compensated for risk and this is what insurance is meant to do
- No
o We should deter people from dangerous behavior
o Adverse selection/moral hazard – Insurance companies will have to raise prices, causing people who
can’t afford insurance to go without it as a result of the people who want to ski.

Baseball Spectators
- Stadium not liable.
- For liability need to show: (alternative)
o D failed to erect screen providing adequate protection in the area behind home plate
o There were not sufficient seats behind home plate to accommodate the people who want to sit behind
the screen
- B>PL: There is a cost of enjoyment for screening the entire ball park
- Could address through negligence: Ball park has a duty to provide safe seats, no breach b/c they provided the
safe seats and the screen is not defective/they were not careless.
-
Murphy v. Steeplechase Amusement Co.: The Flopper (Primary implied assumption of risk)

- The willing are not injured – he accepted the risk, risks of the adventure is why you get on amusement park
ride.

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Davenport v. Cotton Hope Plantation: Secondary implied

- P lives in apartment bldg with 3 staircases. The middle staircase is the closest to his apartment. For 2 months,
he contacted mgmt about broken floodlights in the staircase, he continued to use the staircase. One night, he
fell down the stair case and was injured.
- Court held:
- Assumption of risk as a complete bar is incompatible w/ the purpose of apportioning fault in comparative
negligence.
- P’s conduct in assuming the risk can be considered in the comparative fault system/compared to D’s negligence
- Abolishing assumption of risk does not encourage people to take unnecessary risks.

Roberts v. Vaughn

- Firefighters rule: No duty owed to firefighters and safety officers to treat with duty of reasonable care. This
duty is replaced by tax supported compensation.
- Court does not extend this rule to voluntary rescuers b/c against public policy that we want to promote mutual
aid. Volunteer rescuers are not compensated.

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STRICT LIABILITY

- Another tool for P

- Trend towards negligence?
o Rylands – anything that escapes, to anything that is not natural/not customary?
o Sullivan – liability for public spaces
o Indiana Harbor Belt, where the factors balanced in §520 look like B>PL (i.e. commonness, riskiness,
probability of risk, appropriateness, availability of safer alternatives etc.)
o 2nd restatement – (see below) Carries on abnormally dangerous activity is subject to liability even
though he has exercised the utmost care to prevent the harm.
o Corrective justice (individually oriented) to collective justice (society)

Justifications for strict liability:

- Economic
o Deterrence- will give them incentives to not cause harm- to do these activities in safest way possible.
Or if they see certain products they make are dangerous, they will pull them off the market. Induce
them to behave in a way that will limit the amt of injuries that will result because they know they will
have to pay (Calabrisi)
o Risk spreading- if you impose SL on manufacturers they will have a way to spread out the cost- by
charging a little more – spreads out the cost to everyone
- Moral
o Reciprocity - Strict liability is morally justifiable because it embodies the imposition of non-
reciprocal risks (what they are doing is dangerous to us, but we are not dangerous to them)
o Causation- its just fair – if one party causes harm to another…between those two parties its more
morally justifiable to impose the costs on the party who causes the harm, than on the innocent victim
(cause privileged over fault)

Fletcher v. Rylands (English Case)

- P (Fletcher) land damaged when reservoir built on D’s (Ryland) land broke and flooded the coal mines below
making his property less valuable. D built reservoir filling up old coal mines with soil, not knowing of defect
in the soil. D was found non-negligent.
- Decided for P.
- Person who for his own purposes brings on his lands and collects and keeps there “anything likely to do
mischief if it escapes,” must keep it in at his own peril, and if he does not do so is prima facie answerable for
the natural consequences of its escape.
- In negligence cases, parties take risks by going out in public, but one’s own property has aura of safety
- Focus is on protecting ability to use private property.
- Appellate court:
o Still holds for P, but distinguishes btwn natural and artificial use. You don’t have to bring sth on your
land, just use it in a non-natural way. If natural use of D’s land  no strict liability. If artificial
strict liability applies. When D does something not natural he introduces the risk and does so at his
own peril.

⇒ American courts not enthusiastic about adopting brad principle of strict liability (Rylands). Perhaps has to do
w/ social framework. Natural is similar to customary.

- English are landed gentry. Americans have a different view of land, i.e. Texas is not England.

Turner v. Big Lake Oil – in arid land, reservoirs are considered natural and necessary for common use of land.

Losee v, Buchanan (American Case)

- D’s steam boiler explodes and is catapulted into P’s land.

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- Court held for D.

- D is not liable b/c in becoming a member of civilized society you give up natural rights.
- Court seems to make the argument that factories, machinery etc. are “natural” at the base of our civilization.

Sullivan v. Dunham
- D blasts a tree on his land w/ dynamite. Fragment of wood is hurled onto the public highway, where it strikes
and kills P. D was not negligent.
- Decided for P.
- D is strictly liable.
- Public policy – you should feel safe on public land.
- Distinguishes from Losee b/c there D did not do anything to allow the steam boiler to catapult. D in this case
should not be allowed to use his land in a way that causes injury w/o being liable for damages.

Previously 2 standards: (1) where when you do sth wrong you are liable, (2) always liable. Strict liability is beong
defined @ a different level. Sullivan – court looks at what was done w/ dynamite and says handling dynamite is so
serious that you are strictly liable.

Restatement 2nd § 520: If abnormally dangerous  Strict liability

- One “who carries on an abnormally dangerous activity is subject to liability for harm…resulting from the
activity, although he has exercised the utmost care to prevent the harm.” Lists six factors for consideration in
determining whether an activity is ‘abnormally dangerous’:
o Riskiness: Existence of a high degree of risk of some harm to the person, land or chattels of others;
o Probability of harm: Likelihood that the harm that results from it will be great;
o Cannot eliminate risk: Inability to eliminate the risk by the exercise of reasonable care;
o Commonness: Extent to which the activity is not a matter of common usage;
o Inappropriateness: Inappropriateness of the activity to the place where it is carried on; and
o Utility: Extent to which its value to the community is outweighed by its dangerous activities.

Indiana Harbor Belt RR c. American Cyanamid Co. (Posner,1990)

- D manufactures a dangerous chemical, and during transport there is a spill destroying stuff and causing
evacuation and clean up costs (1 mil). Lower court found D strictly liable.
- Decided for D.
- No strict liability. Strict liability should not be imposed against manufacturer, for accident during
transportation.
o §520 encourages use of alternative methods when possible. There are no better alternatives here. (i.e.
truck no better than train)
o Negligence regime is adequate for deterring RR spills
o D were not the shippers, they were not the actors in this action.

DEFENSES TO STRICT LIABILITY:

- Rstmt § 523: “л’s assumption of risk of harm from the activity ‘bars his recovery for the harm.’”
- Rstmt § 524: contributory negligence is not a defense to strict liability except when the л’s conduct involves
“knowingly and unreasonably subjecting himself to the risk of harm from the activity”
- The Rstmt was written before the popularity of comparative negligence though…should comparative
negligence be extended to strict liability?? This is discussed later (p.605) in context of product liability.

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PRODUCT LIABILITY – example showing tension between strict liability and negligence

I. PRODUCT LIABILITY--INTRODUCTION, 540-556

A. Keep in mind how relates to increasing industrialization, where (1) manufacturer and consumer are farther
apart, (2) products are increasingly complicated.
B. Early cases relied on contract law and required “privity” between the parties in order for the D to be liable.
Erosion of privity requirement (privity=duty):
C. No privity, if the product (1) imminently dangerous and (2) danger is foreseeable.

Thomas v. Winchester (1852)

- Manufacturer falsely labeled poison and sold it to a druggist. The druggist unknowingly sold the poison to a
customer. Customer was injured. Customer sued manufacturer.
- Holding: Privity is not important here. The manufacturer has a duty, because the poison is (1) “imminently
dangerous,” and (2) danger was foreseeable w/ this type of product. (i.e. guns, dynamite)

D. Privity is NOT required at all

MacPherson v. Buick Motor Co (1916) : Expansion of tort law application

- Facts: P driving a Buick car. The wheel (not made be Buick) of the car broke, and P was injured. P sued Buick
saying they should have checked. No privity btwn consumer (P) and manufacturer (D). (Cardozo opinion w/
sparse facts)
- Holding: Applies/expands Thomas, and effectively says that privity is not required. These cases will now be
tried under tort law.
o “If the nature of the thing is such that it is reasonably certain to place life/limb in peril when
negligently made then it is a thing of danger” – does not require privity.

⇒ Feldman suggests that P was negligent.

⇒ From now on, defense is not privity defense, but based on not breaching a duty (negligence). Tort prevails over
contract law.

E. Warranty Development – way of imposing strict liability through contract law. Privity not completely
obliterated.

Ryan v. Progressive Groceries

- P’s wife buys bread and P is injured when he swallows a pin embedded in the bread.
- Court holds that grocery store is liable.

F. Negligence is NOT necessary in product liability

Escola v. Coca-Cola : Stream of commerce case (Manu responsible for all consequences)
- Compare Rylands
- Facts: Escola injured handling a faulty coke bottle. The bottle shatters and cuts her. Escola sues Coca Cola
bottler under res ipsa.
- Holding: Based on res ipsa, court finds that negligence is inferred b/c the bottler had exclusive control over the
product.
- Traynor’s concurrence: Suggests that negligence should not matter, and that product liability should be
governed by strict liability.
a. Manufacturer in the best position to prevent the injury.
b. Manufacturer can spread risk through increasing prices to all
consumers.
c. Strict liability serves a better deterrent function.
d. Greenman v. Yuba – Traynor’s concurrence is now majority opinion.
Strict liability is better than warranty in product cases. Warranty

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system is irregular. Manufacturer should bear the cost when put

products on the market and know that people will use them w/o
inspection. (P’s wife bought a tool, P was hurt when using the toll a
piece of wood struck him in the forehead.)

⇒ Difference btwn absolute liability scheme and negligence is allocation of the burden.

G. Restatement 2nd of Torts §402A (1965)

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
a. The seller is engaged in the business of selling such a product, and
b. 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
a. The seller has exercised all possible care in the preparation and sale of his product,
and
b. The user or consumer has not bought the product from or entered into any
contractual relation with the seller
• P needs to demonstrate that the product causing the injury was defective
and unreasonably dangerous when it left the defendant’s possession.

H. Restatement Third: Products Liability (1998)

o Section 1: “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.”
o Section 2: For purposes of determining whether a product is defective, there are 3 types of
defects. A product
a. Contains a manufacturing defect when the product departs from its intended design even
though all possible care was exercised in the preparation and marketing of the product
(aberrant product)
b. Is defective in design when the foreseeable risks of harm posed by the product could have
been reduced or avoided by (1) the adoption of a reasonable alternative design (RAD)
by the seller or other distributor, or a predecessor in the commercial chain of distribution,
and (2) the omission of the alternative design renders the product not reasonably
safe (whole line is defective)
c. Is defective because of inadequate instructions or warnings when the foreseeable risks of
harm posed by the product could have been reduced or avoided by the provision of
reasonable instructions or warnings by the seller or other distributor, or a predecessor in
the commercial chain of distribution, and the omission of the instructions or warnings
render the product not reasonably safe.

• There are no bright lines between 3 categories , sometimes may be hard to figure
out which one it falls in, sometimes the issue may fall in all three

⇒ Why is it that in US, tort liability has come to enshrine notion of fault? Relationship btwn rules and social
context?
- Strict liability’s effect on the market
- Role of insurance companies
- Not showing fault, gives incentive for people to overclaim, be less careful
- Industrialization, amss production require us to consider absolute liability?

II. PRODUCT LIABILITY--MANUFACTURING/DESIGN DEFECTS, 556-81

A. Manufacturing – aberrant product (closest to strict liability)

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i. Strict liability applies regardless of whether the defendant introduced the defect. i.e.
Welge v. Planters Lifesavers – P successfully sued jar manufacturer, K-Mart and peanut
company for injuries from the jar shattering.

ii. However, defendants are not liable for defects where other factors outside of defendant
negligence can be ruled out. i.e. Price v. GM – where P sued for car swerving into utility
pole, but the car was inadvertently destroyed before investigation. Because P bought the
car second hand and had owned the car for a number of years before accident,
maintenance of car could have been a factor. Court holds for the defendant.

iii. Absence of evidence is not always dispositive, if account of the injury allows inference of
the defect.

iv. Often latent defect, not open and obvious. (Not detectable on the part of the consumer
therefore liable)

B. Design defect – whole line defect

i. Look at reasonable alternative design and (some states) unreasonable dangerousness of
the product.
ii. Treated similarly to manufacturing defect. In many states defect does not have to be
“unreasonably dangerous.” i.e. Cronin – bakery truck driver is hit in the back with trays
when the truck crashes. Court holds that defendants are liable because the plaintiff was
injured and it looked like there was some element of negligence.

Barker: High lift loader started to shake and scared he jumped out and the timber on the loader fell on him.
1. 2 part test to show design defect:
a. Consumer expectations test: When consumers have expectations use
this test. Product failed to perform as safely as ordinary consumer
would expect when uses it in an intended or reasonably foreseeable
manner. (Favors consumer, because our opinion is the base line)
i. Favors consumer
ii. Less costly to bring law suit.
iii. BUT there are adverse effects. i.e. Airbags. Consumers think
that airbags should be safe, but then there is a case where the
airbag injures sb and manu are liable. This causes prices of
cars to increase and limit on options.

b. Risk Utility test: If jury finds the risk of danger inherent in the
challenged design outweighs the benefits of such a design (look at
gravity of danger, likelihood of risk, alternative design potential, cost of
an alternative, other adverse costs of alternative).
i. D has burden to show jury that the design is not defective in
this 2nd prong (This is exception, most states do not shift the
burden).
ii. Focus is on the condition of the product itself, not the
reasonableness of the manufacturer’s conduct (i.e. not
going to the plant to see the people check the items)
iii. Manufacturer is responsible for foreseeable uses even if they
were not intended.

Soule v. GM: Applies Barker

- Facts: P in a car accident where the left front section of her car was smashed causing the floorboard to collapse
inward and fracture her ankles. P claims design defect. Court decided for P. D appeals.

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- Consumer expectation test alone was not appropriate b/c ordinary consumers do not know how an
automobile design should react under these complex circumstances.
- Consumer expectation is not appropriate, but it doesn’t affect the outcome of the case.
- Holding: Decided for P.

⇒ Use consumer expectations when – everyday experience of the product’s users permits a conclusion that the
product’s design violated minimum safety assumptions.
Camacho – 7 factor risk utility Ortho Test (similar to negligence but focus on the product)

⇒ Crashworthiness doctrine – manufacturer can be held liable for injuries where although manu and design
defects were not the cause of the accident, they enhanced the injury.
- Manu has duty to design a product that minimizes injury in a collision (b/c collision is foreseeable), by
including commonplace safety features.

- P bought new motorcycle w/o leg guards. P sues b/c suffered severe leg injuries. D claims that absence of leg
guards are open and obvious dangers and w/in the contemplation of the consumer.
- Issue: Should we allow consumers to sue manufacturer for a willing choice to use product w/ an open
and obvious danger?
- D claimed that motorcycles cannot be made perfectly crashworthy and therefore they should be exmpt from
liability. Court held that goal is to max dvpt of cost efficient safety features therefore not exempt.
- Open and obvious is not a defense to claim that product is unreasonably dangerous.
- Reversed/remanded. Consumer’s expectations is not relevant. The proper test for whether a product is
defective is whether the product is unreasonably dangerous when used in an intended manner. Whether this is
so is very fact/ case intensive (and therefore should have been sent to jury…not sum judgment) - requires
looking at 7 factors (Ortho).
- D has greater access to information necessary to make decision about efficacy of potential safety measures.
Should encourage use of this information to help avoid accidents.
(1) Utility: The usefulness and desirability of the product- its utility to the user and to the public
as a whole
(2) Probability of harm: The safety aspects of the product- the likelihood that it will cause injury
and the probable seriousness of the injury
(3) Safer RAD: The availability of a substitute product which could meet the same need and not
be as unsafe
(4) Safer RAD considering cost: The manufacturer’s ability to eliminate the unsafe character of
the product without impairing its usefulness or making it too expensive to maintain its utility
Consumer expectations:
(5) The user’s ability to avoid danger by the exercise of care in the use of the product
(6) The user’s anticipated awareness of the dangers inherent in the product and their avoidability
because of general public knowledge of the obvious condition of the product, or of the
existence of suitable warnings or instructions
(7) Risk spreading/insurance: The feasibility, on the part of the manufacturer, of spreading the
loss by setting the price of the product or carrying liability insurance
- Dissent: When a common consumer product is involved, the consumer expectation test is appropriate.

NO REASONABLE ALTERNATIVE DESIGN

o Л “must prove that a reasonably alternative design would have reduced the foreseeable risk of harm.”
o Part of risk utility test
o “a broad range of factors may be considered in determining whether an alternative design is reasonable and
whether its omission renders a product not reasonably safe.”
o These factors include “among others”
o The “magnitude and probability of the foreseeable risks of harm
o The instructions and warnings accompanying the product

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o And the nature and strength of consumer expectations regarding the product, including
expectations arising from product portrayal and marketing”
o Relative advantages and disadvantages of the product and its proposed alternative must be
considered
 These include:
 The impact on production costs
 Product longevity
 Maintenance
 Repair
 Aesthetics
 And the range of consumer choice among products

Volkswagon Microbus : Where consumer expectations test might have adverse effects

- P claims that microbus is defectively designed b/c passenger section is at the very front of the vehicle and
therefore more hazardous than usual American design.
- Decided for D. Court held that should take price/market into account.
- Court imposed design change may lead to increase in manu costs, w/o giving consideration to market purposes,
utility of the vehicle.
- Microbus designed to create economical vehicle that max cargo and passenger space. The passenger section at
the very front was obvious to consumers.
- Many factors involved in whether manu has used ordinary care, including
o Market purposes – target buyer
o Utility – SUV, storage
o Whether imposed unreasonable risk given “intended use.”

O’Brien: Above ground swimming pool

- No RAD
- Luxury product v. necessary product
- Although no RAD, jury should still be able to decide whether risks of the product are greater than
utility.

Baughn: Mini trail bikes

- No liability when there is no “practical and technically feasible alternative design that would have prevented
the harm w/o substantially impairing the reasonably anticipated or intended f(x) of the product”
- Only imposed liability if :
o Egregiously unsafe/ultrahazardous
o Ordinary consumer cannot reasonably expected to understand the risks
o The product has little or no usefulness.

III. PRODUCT LIABILITY--SAFETY INSTRUCTIONS/WARNINGS, 581-605

 FORESEEABILITY
 Balancing of risks in this category—not consumer expectations (whereas in design defects it can be either)
 Two roles can be played by instructions/ warnings
• alert consumers to the dangers of using the product in ways unintended by manufacturer/ instruct on
how to use it in ways to reduce chances of potential injury
• alert potential buyers to dangers in the product that cannot be avoided by consumers no matter how
careful they may be (ex. warnings on prescriptions)
 Threshold Issue: Common Knowledge and the duty to warn- the first issue in these cases is whether any words
at all are needed to address the risk in question.

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• There is NO duty to warn when the danger is obvious (ie. no notice required on alcohol to warn
against the dangers of drinking too much in short period of time)
 Adequacy of warning- another issue is if warnings on a product were adequate (this can be an issue whether л
did or did not read them)
• The intensity of the words of the warning
• The prominence of the display of the warning
• Compliance w/ regulation
• Foreseeability that warning

 Interplay of design and warning:

o In consumer expectations test: adequate warnings may get you get out of design defect issues,
because the consumer could not expect safety, because you warned them of the danger
o in risk/utility test: some courts could say that Δ gets out of design defects issue, because they
could not have predicted that the л would have ignored its adequate warnings…but most would
say that warnings should not absolve a manufacturer of the duty to design reasonable safeguards
 Misuse: injuries often result form “unintended” use of the product. As Hood, Camacho, and Soule make clear, this
not a complete defense if the “misuse” or “unintended use” was one that was reasonably foreseeable. Product
suppliers must anticipate uses that are “unintended but foreseeable.”

Hood v. Ryobi (Miter Saw)

- Δ’s saw had a bunch of warnings not to take off saw guard, but л took it off anyway…л gets injured, claims
that the warning were not adequate because they did not warn of the precise danger that could result (just said
danger—don’t take it off, л says they should have said the saw part would fly off)
- Holding: summary judgment for Δ. While a manufacturer may be liable for placing a product on the market
that bears inadequate warnings, here they had adequate warnings. A warning need only be reasonable under
the circumstances. The warnings on the saw were clear and very visible, (there were some on box, and some
on saw itself) and were adequate as a matter of law. The question of adequacy is generally one of fact, but
here it is so clear that it is a matter of law.

⇒ Could argue that b/c it is foreseeable that the saw could not cut through wood completely, that the manufacturer
should have foreseen that user would take off the guards (this had happened once before).
⇒ Marshmallow case – court held that jury should decide whether marshmallows need a warning about not feding
them to children.

Learned intermediary – Shields pharmaceutical companies from liability. Companies are only required to warn
doctors about drugs who then prescribes to the patient. Exception to manufacturer’s duty to consumers – do not have
to tell consumers directly.
- Two Exceptions:
 FDA mandates explicit safety warning (i.e. contraceptives, nicotine patch..)
 Mass immunization – b/c less contact with doctors.
• Now child vaccination is no fault.
- Current arguments that this rule should not exist because of the current relationships people have with doctors
(fragmented HMO and not family doctor) and effectiveness of commercials directly to consumers. BUT,
worry about endorsing consumers not talking to doctors.

⇒ Compare doctor cases.

Edwards v. Basel Pharmaceuticals: EXCEPTION learned intermediary rule

- FDA compliance for warning is minimum
- Warning stated, “overdose may cause you to faint.”
- л's husband died from nicotine overdose bc he wore two of Δ's nicotine patches. Thorough warning was given
to physicians prescribing the patch, but the insert intended for user not thorough.

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- This case falls within an exception of the learned intermediary doctrine, and therefore Δ is liable for
inadequately warning the л’s husband directly. (FDA mandates that a warning be given directly to the
consumer in nicotine patches – so falls in 2nd exception) The required warnings then must be adequate to
explain the possible dangers of the product regardless of whether they meet the statutory requirements of the
warning—Δ complied with the FDA requirement, but if the warning was not sufficient, Δ loses—they send
case back to trial ct to figure out if the warning was sufficient or not
- D is liable for not warning patient directly in explicit enough terms.

Vasallo v. Baxter Healthcare (Feldman Case ex ante approach ~Negligence)

- Manufacturer is held liable under implied warranty of merchantability for:
o Failure of duty to warn of risks reasonably foreseeable @ the time of sale or that could have been
discovered by way of reasonable testing prior to marketing.
o Failure of continued duty to warn of risks discovered following the sale of product
o Manufacturer held to standard of expert in the field

Beshada (ex post) & Feldman (ex ante)

Beshada (Ex post) – manu should be held liable by strict liability for injuries from asbestos in hindsight
- In keeping w/ goals of strict liability – focuses on the product, not the fault of the manufacturer
o Risk spreading
o Accident avoidance
o Reducing admin costs
- Imposing costs of failure to discover hazards , creates incentive for them to do safety research
- Manufacturers should not be able to escape liability b/c they did not know at the time

Feldman (Ex ante) – P’s teeth discolored after using product for a long time
- ~negligence
- Restricts Bashada to asbestos.
- Manu conduct should be measured by the knowledge @ the time of marketing. Court should ask
o When manu had actual/constructive notice of the danger
o Treat manu as expert in the field
o Expect that manu should keep informed/seek out information concerning the public’s use of his
product.
o Shifts the burden to D to give evidence on expert field.

IV. PRODUCT LIABILITY--DEFENSES, 605-614

GM v. Sanchez
- Issue: Does comparative responsibility apply to product liability?

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V. PRODUCT LIABILITY--WORK-RELATED INJURIES, 614-629

Jones v. Ryobi (work related design defect)

- P (employee) operates machine for business cards tomorrow (BCT). Employer removed plastic guard provided
by the manufacturer to increase production. The modification was common practice in the industry. P injured
hand when she caught it in the machine. P learned to operate the machine on the job. Distributor knew of the
modification. P sues manufacturer.
- When a 3rd party modification makes a safe product unsafe, the seller is relieved of liability even if the
modification is foreseeable.
- D claims that the danger was open and obvious.
- P needs to show that machine was faulty at the time it was sold.
- P claims that machine was dangerous with the guard.
- Since the machine could work without the modification, and the modification was done by employers then
should not be held liable.
- Customer expectations test.
- (sh) putting liability on the manufacturer might result in greater research into new machines.
- (sh) could argue that b/c they knew the printing industry was uniformly making these modifications that the use
was foreseeable.
- Court influenced by worker’s comp.
- Dissent: the modification may not have been for productivity, but for humidity etc. may indicate something is
wrong with the machine. Shouldn’t manu be liable for this.

Liriano v. Hobart (work related failure to warn)

- P injured while operating meat grinder in grocery store where the safety guard had been removed. P claims
that manu should have warned.
- Yes, not liable for design defect - follows Jones’ logic
- Failure to warn is different – focus on foreseeability, less of a burden.
- Manu has duty even after the product released.
- Where a danger is obvious no need to warn
- Safety guard may serve as constructive warning.
- (Calabrisi) Danger was open and obvious but warning gives employee way to ask employer of safety.
- New lines
- Foreseeable defects/foreseeable warnings
- This case gets rid of the line btwn foreseeable and unforeseeable modifications
Lopez – Forklift operator hit on the head, when safety feature is designed to be removable. Court says that up to the
fact finder to see if the product is not reasonably safe. Different from case where plastic guard is removed or cut.

VI. Product Liability--Beyond Products: 632-639

Royer v. Catholic Medical Center

- P sues hospital for defective knee replacement device. D claims that it is not a product, but a service.
- Court held that sale of product was ancillary to the service.

Hovan – suggests enterprise liability. Should be able to sue hospital b/c serves deterrence function and also passes
the loss to the channels of distribution.

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DAMAGES
I. General
1. Early individualized justice goal: Early tort law did not allow suits after death of plaintiff. At
first, survival statutes that allow family members to sue on decedents behalf, in addition to
wrongful death which accounts for the family members’ loss.
2. Reliance damages – compensate people so that they are in the position they would have been in
had the accident not happened.
3. Single-judgment approach – one time recovery for past and future damages.
i. Otherwise would create bad incentives for P to never recover (i.e. if P instead were to
submit bills to the court for reimbursement)
ii. Administratively efficient
iii. Do not want to hold D indefinitely
iv. Compensation=present value of total award.

II. Two Approaches: Individual Justice and Actuarial (similar to tension btwn tort and no-fault)
1. Individual Justice

Seffert v. Los Angeles Transit

1.
Facts: Bus door closed on P’s foot and hand as she attempted to board the bus.
P was dragged for a distance and sustained permanent life-altering injury.
2. Holding: Damages are not excessive. Appellate court should only reduce jury
award if it “shocks the conscience…and appears that passion and prejudice are
involved.”
3. Rationale: Court examines the particulars of her individual life (i.e. her change
in lifestyle, how she feels – similar to facts in Wry v. Dial). Determines that
although non-pecuniary damages look high, they do not supercede the
presumption for trusting the trial court that has seen the damages first hand, does
not “shock the conscience.”
4. Dissent: Traynor disagrees and thinks the court should have taken a more
actuarial perspective because similar cases with similar injuries have paid out
less in damages.
2. Actuarial Perspective – focus on

McDougald v. Garber
1. Facts: P is comatose as a result of D’s malpractice. Appeal concerns whether P
can recover for pain and suffering and loss of enjoyment, if he is no longer
capable of awareness/feeling.
2. Holding: Case remanded because need to consider ability to sense when
considering pain and suffering and loss of enjoyment damages.
3. Rationale: Court looks at theory of punitive damages as punishment for D as
opposed to level of P’s pain and suffering (Seffert). Concludes that since the
purpose is to compensate only to restore the P to pre-injury levels, if this is not
possible, then no point.
4. Dissent: Despite inability to sense, should compensate for loss of enjoyment, but
not for pain and suffering. It is clear that the P is not enjoying life. We can
examine the actual life to see this, it does not require that we look at his
subjective.
III. Two Types
1. Pecuniary (Compensatory) – compensate people so that they are in the position they would have
been in had the accident not happened. Includes medical expenses (past and future), lost wages.
Compensatory function.

2. Non-pecuniary (Punitive) – compensate for non-economic harms. Includes pain and suffering,
loss of enjoyment.

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i. Why?
1. Has deterrent function of punishing and making example of defendant.
2. Also may fill the gap of criminal system (Taylor).
a. There are gaps in the criminal system, (i.e. plea bargains and lower
fines)
b. Civil fines may be more humane than criminal punishment in some
cases. (i.e. first time offenders)
c. However, do not want to compensate twice for the same injury.
3. as

ii. However there are some problems:

1. Excessive. Juries tend to award a lot of damages. Punitive damages are
spiraling out of control. Especially a problem where punitive damages are not
under insurance acc to state law, because then punitive damages can be unjust
punishment or not effective.
2. Unjust enrichment
3. Double punishment: punishment is taken care of by the criminal system.
4. Makes defendant’s financial standing part of the presentation in the case. This is
relevant here, but not for other parts of the case.
5. Comparative negligence wants to protect injured wrongdoers, when their injury
is in part caused by the actions of the P. Punitive damages goes against the goal
of protecting these parties.
6. Punitive damages only have marginal deterrent effect when the conduct is a
crime or where the conduct will likely result in injury to the wrongdoer.

Taylor v. Superior Court

7. Issue: Whether intent is required for punitive damages.
8. Facts: Stile was driving drunk and got in an accident with Taylor. Stile had
history of alcoholism and multiple arrests and convictions for driving under the
influence. Taylor sued for punitive and compensatory damages. Trial court
dismissed the punitive damages because the action wasn’t intentional. Taylor
appealed.
9. Holding: Gross conscious disregard for safety of others is sufficient to
award punitive damages.
10. Dissent: Punitive damages problems above.

State Farm v. Campbell (2003)

11. Facts: Campbell was insured by State Farm. State Farm refused settlement for
policy cap (50k) and instead decided to contest liability of insured in court
despite advice otherwise, assuring the insured that his assets were safe. Court
decided that insured was at fault and damages for 185k. State Farm initially
refused to pay excess of cap. State Farm paid eventually, but Campbell sued
them for bad faith dealing. Trial court awarded 145 mil in punitive damages.
12. Holding: Punitive damages are excessive and suggests that punitive damages at
or near compensatory damages would be more appropriate (Close to 1 to 1
ratio).
13. Rationale:
a. BMW 3 Guidepost Test
i. Degree of reprehensible conduct
1. physical v. economic harm
2. intentional v. accident
3. repeated v. sole incident
4. recklessness

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ii. Ratio of compensatory and punitive

iii. Damages of comparable cases
14. Dissent (3): This is NOT a constitutional question. Federalism and separation of
powers worries. Concern that reducing the punitive damages award, is against
the state supreme court’s right to set their own standard. Also, reducing or
suggesting a cap level is something for legislative not judicial branch.

iii. Current solutions for punitive damages concerns

1. A few states have abolished punitive damages
2. A few states have kept punitive damages, and have required the P to share the
money with the state.
3. 12 states, cap punitive damages. Absolute cap or cap on ratio to compensatory
damages.
4. A few have raised the burden of proof for punitive damages.

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ALTERNATIVES TO TORTS

ARTICLE: September 11 Victim Compensation Fund (Rabin)

Issue: Whether the Fund approach offers a sensible alternative to tort for victims of terrorism or other acts of
violence?

Conclusions:
• Fairness considerations suggest that affording special status to victims of terrorism as no-fault
claimants/mass calamities is problematic

What else:
• Article focuses on the compensation goal of torts, remember the others deterrence, low admin costs,
fairness

Tort on 9/11

1. Torts Arguments
a. Airlines/Airline manufacturer
i. Proximate Cause
• Airlines would say that terrorists caused the accident not the airlines. Of course, this
is not a complete defense. Similar to keys in ignition.
ii. Foreseeability
• P would say that airlines should have seen the possibility of hijacking. This is a
good argument for plane victims, but not for the building victims.
b. Building designer
i. Foreseeability
• Perhaps past attacks evidence that building designer should have known that building
may be attacked and should have planned accordingly.
ii. Product liability - Design defect
• Was there a reasonable alternative design that would have withstood the airplane
impact.

2. Limitations
a. Insolvency
• Using purely torts framework, victims would sue the airline companies, airlines would go
bankrupt and victims would be poorly compensated.
• Insolvency is a central fairness and efficiency consideration more than doctrinal liability
issues.
b. Protracted litigation
• Torts cases are costly and take a long time. No-fault system is better able to quickly
compensate victims.
c. Floodgates of litigation
• Many victims means catastrophic financial consequences. Might think that statutory schemes
are better to protect solvency of big industry (i.e. CASE: Strauss v. Belle Realty - utility
companies)
• Draw the line between victims in the plane and victims in the building. Torts inherently looks
at the individual situation of each claim, it is perhaps ill fit to the mass community
catastrophe.
• In the highly publicized mass catastrophe of 9/11, separating out the victims would seem
arbitrary and harsh. In these situations, there is usually a larger call for no-fault compensation
plan.
d. Particular to 9/11

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• Symbolism and scale is larger than even small random localized terrorist attacks. In localized
attacks:
o Prior similar incidents test
o Totality of circumstances test
o Balancing test – does not offer random victims relief.
e. Policing
• In 9/11 policing may have been a target for litigation, but because public forces they are
subject to immunity.

No-Fault 9/11 Scheme

1. General
• Plain reading is consistent with other no-fault schemes in that it is motivated by concern to
overarching concern to compensate victims, BUT differs in that it is latent with individualized
compensation ideas of tort law. (i.e. includes compensation for non-economic harm that
would have to be individually assessed, similarly covers lost future wages)
• Implementation is oriented away from case-by-case assessment, but still retains tort concepts.
Non-economic harm and future economic harm are compensated for based on a schedule of
characteristics.
• Offsets for all collateral sources, which is harsher than most no-fault schemes.
• In general generous, but hard to understand outside of the specifics of 9/11.
2. Alternatives
• Israel – medical expenses and economic loss (but not non-economic loss)
• Northern Ireland – need based aid, supporting all unfortunate, innocent victims including terrorist
victims. Horizontal equity.
• State criminal – similar to Ireland, with cap on maximum amount of aid. Seeks to meet the
immediate basic needs of victims of crime.
3. Conclusion
• 9/11 scheme is okay, but it is hard to see how it will apply as precedent for future issues.
• It is unclear why terrorist victims should be treated differently from other innocent victims.
• There is a danger in separating out this special class of victims.

NEW ZEALAND COMPREHENSIVE NO-FAULT SYSTEM

1. Background
a. New Zealand small – 3 million
b. Common law perceived as a “lottery.” Why should workers be treated differently.

2. Unified scheme – for “personal injury by an accident”

a. 5 propositions
i. All citizens protected against income loss and permanent disability
ii. Compensation related to nature of the injury, not the cause
iii. Stress physical/vocational recovery along w/ compensation
iv. Benefits paid for duration of incapacity
v. Plan must be expeditious
3. Emphasis on accident prevention and rehabilitation, and compensation.
4. New 1992 scheme shies away from the more social insurance-like scheme in 1974:
5. 1974 Scheme
o “personal injury by accident” – result focused
o Earners scheme – companies pay for worker’s n and off the job
o Motor vehicles accidents paid by taxes on drivers
o Non workers paid out of general treasury
o Lump sum payments – (1) loss of limbs, (2) up to 10,000 for pain and suffering, loss of enjoyment,
disfigurement.
6. 1992 New Scheme – limits 1974 program

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 Sharmaine Heng
Torts – Fall 2003

o “Personal injury by an accident” – injury must be related to some separate cause (before injury was
compensable if the result of an act was accidental.)
o No mental distress compensation independent of physical injury
o Need proof of sth like negligence for medical misadventure claim
o No coverage off work – personal insurance instead
o “User pays – gasoline tax added to compensate motor vehicle accident victims
o Health providers give premium to cover medical misadventure compensation

Notes:
7. Franklin – Torts is a “lottery” system
o Different plaintiffs get different damages required for the same injury. Defendants get diff liabilities
for same wrongful act.
o 2 systems
(1) Compensation scheme – social insurance fund
(2) Deterrence scheme – uninsurable fines and enterprise reimbursements of the fund for injury-
creating activity.
8. Kalven – The problem w/ tort system is uninsured people/people in poverty.

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