I.

In General

A. Purposes of The Tort System

1. Deterrence
Private enforcement not central control Higher error and decision costs for central control

2. Compensation
Restore status quo (corrective justice)

3. Loss spreading
Assign liability to party most able to pay Raise social insurance costs

B. Key Considerations
1. Unlimited liability for intentional torts
Vosburg v Putney (battery, kick in school, L) White v University of Idaho (battery, piano teacher, L)

2. Background risks may reduce liability

Knight v Jewett (battery, touch football) Gambill v Stroud (malpractice, locality rule, NL)

3. Information forcing rules

Grabowski v Quigley (battery, ghost surgery, L) Brzoska v Olsen (battery, no-HIV preference, NL) Shop-Owner (FI, easy for cust. to prove innocence, NL) The Margharita (N, pain for sailors lost leg, N) Ybarra v Spangard (RIL, multiple docs + nurses, L)

Madsen (SL, blasting + minks, NL) Bushey (VL, sailor + navy, L) Konradi (VL, post office trucks, L)

4. Assign liability rules to minimize transaction costs

Desnick v ABC (undercover expose, default rule) Ploof v Putnam (ship + dock, identify trading partners) Rodi Yachts v National Marine (custom, bargaining towards due care, NL)

5. Ex ante bargains / Unified owner

Restaurant Critic (trespass, hidden identity, NL) Vincent v Lake Erie (private necessity, ship + dock, L)

6. Reciprocal risk
Pegg v Gray (trespass, pet dog, NL) Surocco v Geary (public necessity, fire, NL)

7. Identifying plaintiffs and allocating harm

Smith v New Eng. Aircraft Co (trespass, airpsace, NL) Lawson v Management Associates (NIED, plane, NL)

8. Recurring miss cases

Lubin v Iowa City (custom, water pipes + city, SL) Judson v Giant Powder Co (RIL, dynamite factory, N)

9. Rylands SL list
Common carrier freight (Rylands) Water in underground mines (Rylands) Poisonous plants (Crowhurst)

Wild animals that escape (Behrens) Blasting (Klein) Transporting gasoline by truck (Siegler) Ballooning over a city ()

II.

Intentional Torts

A. Intent
1. Mental State
Actor must know to a substantial certainty that the act will cause the intended result

See Vosburg v Putney (WI 1891 p1-3)

D kicked P in school, aggravated prior injury to Ps leg, D knew would hit Ps leg Actor is liable for all damages directly resulting from an intentional act

See Vosburg v Putney (WI 1891 p1-3)

D liable for amputation of Ps leg even though didnt reasonably foresee this result

See Restatement 162

Liability for all physical harm resulting from trespass Intent transfers from one person to another

See Keel v Hainline (Okla 1958 p8-9)

Ds threw erasers at each other in class, stray eraser hit P, Ds act intentional and unlawful since throwing erasers is out-of-bounds horseplay Intent transfers from one tort to another

See Bennight v Western Auto Supply (Tex. App. 1984 p68-69)

D made P work in room with bat; L for intentionally placing P in fear of being attacked by a bat L for P getting bitten and going blind

2. Voluntary Act
Insanity does not prevent an act from being voluntary as long as it manifests internal will

See Polmatier v Russ (Conn 1989 p5-6)

D, nuts, killed father in law thinking he was a spy; L since encourages those friends w/ crazy person to seek treatment for him A reflexive act is not voluntary

See Laidlaw v Sage (NY 1899 p6-8)

D gently moved P between D and bank robber w/dynamite; NL since no opportunity for deterrence in an immediate situation

But See Organ Harvesting Hypo

D has life threatening illness, harvests Ps organ; L since D has time to find other remedies

B. Consent
1. Consent bars recovery if act is lawful and P is in a position to consent
Consent is for a particular, specific act by a specific person

See Grabowski v Quigley (Pa. Super 1996 p16-17)

P consented to surgery by D, instead surgery performed by another; L for battery Idiosyncratic preferences are not considered unless expressed ex ante

See Brzoska v Olson (Del. 1995 p17-18)

Dentist had HIV, patients sued when they found out; NL for battery since act is what patients consented to; should have said no-HIV ex ante

See Cohen v Smith (Ill. App. 1995 p18-19)

D saw P nude during delivery of Ps baby even though P told Ds hospital no males could see her nude; L for battery since P expressed preference

Giving consent requires the capability to give consent

See Hollerud v Malamis (Mich. App. 1969 p27)

P, drunk, Indian wrestled bartender at Ds bar; L for battery if P was too drunk to give consent Duress can negative consent

See Cult Hypo

Cult slips drugs into food; L for FI because drugs negative consent

But See Peterson v Sorlien (Minn 1980 p57-59)

D kidnaps P, daughter, from cult, P spend 3 days in fetal position screaming; NL for FI since no capacity to exercise consent

2. Consent may be ineffective if fraud / mistake

Fraud the essential nature of the act negates consent

See Rains v Superior Court (Cal. App. 1984 p21-22)

P signs up for sluggo therapy; L for battery since beating w/sticks was nontherapeutic and intent was non-therapeutic

See Freedman Hypo

Same as Freedman v Superior Court but doctor tells P to take labor-inducing drug so D can make it to golf; L for battery since act is different Fraud on a collateral matter does not negate consent

See Freedman v Superior Court (Cal 1989 p22-23)

D, doctor, tells P, patient in labor, to take drug that speeds up labor BUT says is anti-infection; NL for battery since type of drug is collateral Deception does not negate consent if public benefits of deception >>> private benefit to D (ex ante bargain)

See Desnick v ABC (7th Cir 1995 p28-31)

D enters Ps office for undercover expose, pretends to be patient; L for trespass w/nominal damages since expose = lots of social benefits

See Prostitute Hypo

D pays P, prostitute, for sex with counterfeit money; NL re: battery since no public benefit and prostitute has a remedy for fraud

See Restaurant Critic Hypo

D, critic, goes to Ps restaurant has a meal and writes review without revealing they are a critic; NL for trespass since critic + restaurant win (ex ante bargain)

But See STD Hypo

D has sex with P, doesnt reveal STD; L for battery since no public benefit and no other remedies for P

But See Deli Hypo

D gets hired at Ps deli to do an undercover expose; L for trespass since deli costs = wages + training

3. Implied consent
Consent implied by fact bars recovery even if not actual consent

See Neal v Neal (Id 1994 p23)

P found D had an affair, sued for battery saying wouldnt have consented to sex; could be NL for battery since consent was apparent

See Drug Addict Hypo

P consents to rehab, changes mind; NL for FI if says upfront to ignore change of mind

But See Eilers v Coy (D Minn. 1984 p59)

D kidnapped P for cult deprogramming, P gave apparent consent, escaped at first opportunity; L for FI since reasonable person would think P was afraid or faking it to escape being tied to bed Consent implied by law bars recovery unless P withdraws consent ex ante

See Werth v Taylor (Mich. App. 1991 p19-20)

P said ex ante no transfusions (ambiguous re: life saving), D ordered transfusion

to save Ps life; NL for battery since P would have wanted to live

4. Consent to illegal acts

Consent to an illegal act does not bar recovery (+)

See McNeil v Mullin (Kan, 1905 p25)

P and D fight in an illegal brawl; L for battery to punish wrongdoer and prevent illegality

But See Restatement 892C (p26-27)

Consent to illegal acts bars recovery

But See Hart v Geysel (Wash. 1930 p24-25)

D killed P in illegal prizefight; NL for battery since P consented to fight D A mixed system across jurisdictions less deterrence

Sort so weak fighters go to majority states and strong ones to minority states, increasing demand for illegal acts in minority states

C. Torts
1. Battery
Liability for intending to cause a harmful or offensive contact (unlawful = harmful or offensive)

See 2nd Restatement 18 (p14)

Harmful or offensive contact is based on circumstances and a reasonable peson

See Vosburg v Putney (WI 1891 p1-3)

D kicked P in school after teacher had called class to order, L

See 2nd Restatement 19 (p15)

Bodily contact is offensive if it offends a reasonable sense of personal dignity

See White v University of Idaho (ID 1989 p4)

Piano teacher touched students back without invitation, liable for unforeseeable serious injury

But See Knight v Jewett (Cal 1992 p3-4)

During touch football game, D knocked P over and smashed her finger, NL Contact can be between a person and an object

See Chair Hypo

Child pulls chair out from under old lady, L

See Morgan v Loyacomo (Miss 1941 p12-13)

D, store manager, grabbed Ps bag; L since bag is an extension of self

See Leichtman v WLW (Ohio App. 1994p12)

D purposefully blew smoke in Ps face; L

But See Madden v DC Transit (D.C. 1973 p12)

P breathed smoke coming from Ds buses; NL since no intended act by Ds bus driver

2. Trespass
Liability for i) entering land in possession of another; ii) causing a thing to do so; iii) remaining on the land; iv) failing to remove a thing had a duty to remove

See Restatement 158 (p32) See Pegg v Gray (NC 1954 p32-33)
D sends (ii) dogs to Ps land as part of foxhunt; L since asymmetric damage L also for cow wandering since not reciprocal

See Edwards v Lee (Ky. App. 1929 p38-40)

D built path into cave underneath Ps land; L for trespass (i) since P owns land from heavens to center of the earth

But See Malouf v Dallas Athletic Country Club (Tex. App. 1992 p33-34)
Ds golfers hit balls onto Ps land (ii); NL since act was unintentional

But See Smith v New England Aircraft Co (Mass 1930 p40-41)

Ds plans flew above Ps land; NL for flights > 500 feet since cant identify Ps or determine concrete harm Trespass liability even if D mistakenly thought i) possessed the land; ii) had consent of possessor; iii) had other privilege to enter/remain on land

See Restatement 164 (p34)

No liability for accidental entry if behavior is !abnormally dangerous or entry is N (p34-35)

See Restatement 166 See Pegg v Gray v Pet Dog (NC 1954 p32-33)
Ds dog wanders onto Ps land; NL if pet dog wanders over since reciprocal risk Conditional or restricted consent creates a privilege to enter land but only if comply with condition

See Restatement 168 (p31) See Desnick v ABC (7th Cir 1995 p28-31)
D entered Ps office pretending to be patient but filmed for expose; L (although nominal damage) since consent only for treatment

3. False Imprisonment
False imprisonment requires wrongful intention, a voluntary act, and a result

See Restatement 35(1)(a) (b) (p56) See Shop-Owner Hypo

Shop-owner locks P in store for 10 minutes on suspicion of theft; L since only excused if good stolen (common law) OR not reasonable (statute)

See Shop-Owner 100 Customers Hypo

Blackout, jewels gone, shop-owner locks 100 Ps in store; L since harming many non-crooks

But See Shop-Owner Blackout Hypo

Blackout, when lights on P is whistling and jewelry is gone; NL since reasonable to believe P stole the goods

But See Shop-Owner 3 Customer Hypo

Blackout, jewels gone, C empties pockets to show no jewels; NL re: FI for A and B since cheap and easy to show innocence Confinement must be complete, but walls are unnecessary and confinement can be apparent

See Restatement 36(1) (p56) See Restatement 38 (p56-7) See Electric Bars Hypo
D imprisons P, says bars flowing with electricity, P stays in prison; L Means of escape is not a defense unless the other knows of it and can use it w/o significant injury

See Restatement 36(2) (p56) See Train Hypo

D pulls P onto train, train leaves station; L since P cannot get off train w/o injury

See Eilers v Coy (D. Minn 1984 p59))

D kidnapped P for cult deprogramming; P confined to bed; L since no means of escape No liability for intentionally preventing another from going in a direction, even if they have the right to do so

See Restatement 36(3) (p56) See Barrier Hypo

Barrier on road preventing access to school; NL No false imprisonment for acts intending to confine another unless it results in confinement

See Restatement 35(1)(b) (p56) See Train Luggage Hypo

D puts Ps luggage on train, P boards to get luggage, train leaves station; NL False imprisonment if a citizen arrests a non-criminal for a felony

See Bright v Ailshie (MI 2002 p59-60)

D, bounty hunter, takes wrong person into custody; L since MI statute doesnt allow reasonable belief disincents citizens as compared to prof. bounty hunters

But See Restatement 119(Illustration 2) (p61)

D, bounty hunter, takes wrong person into custody; NL if belief was reasonable

But See Deputy Hypo

D, deputized as police, takes wrong person into custody; NL since police have some immunity non-tort incentive to exercise caution

Cf. Misdemeanor Arrests (p61)

Some states allow misdemeanor arrests, others only if act is a breach of the peace

False imprisonment if a citizen induces the police to arrest someone and the arrest is wrongful

See Melton v LaCalmito (Ga. App. 1981 p63-4)

D called police and repeatedly insisted that P took his property; L since tried to persuade police

But See Baggett v National Bank & Trust Co (Ga. App. 1985 p62-3)
Ds employees called police about stek up note, police arrested P; NL since only gave facts to police encourage citizens to give info to cops

4. Conversion
Liability for trespass to chattel if one dispossesses another of their chattel

See Restatment 217 (p42) See Compuserve v Cyber Promotions (S.D. Ohio 1997 p54-5)
D sent spam on Ps network; NL for conversion since P could use computer systems; L for trespass to chattel since spam diminishes value Liability for conversion if one i) intentionally exercises dominion and control ii) over a chattel iii) which seriously interferes with right to control

See Restatement 222A(1) (2) (p42)

Seriousness of interference is based on i) extent and duration; ii) intent to assert a right in fact; iii) good faith; iv) harm done; v) inconvenience and expense

See Kremen v Cohen (9th Cir 2003 p53-4)

Domain name is a chattel since i) capable of precise definition; ii) under Ps exclusive possession or control; iii) P can establish legitimate claim to exclusivity

But See Moore v Regents of the University of California (Cal. 1990 p512)
P consented to removal of their spleen; D took spleen and turned into a valuable cell line without Ps consent; NL since no ownership of body parts

Gersen view: interest in spleen, but P can only sue for raw value, not improved value of cell-line Remedy for conversion is full value of the chattel at time of the conversion, for trespass to chattel is loss of use (like a rental fee)

See Car Hypo

B takes As car, value $500, adds $5K value; L only for $500 not $5500

See Joyride Hypo

B takes As car, drives it around; L for loss of use Conversion is SL for stolen goods but not goods lost through fraud

See UCC 2-403 (p49) See OKeefe v Snyder (NJ 1980 p47-8)
Painting stolen from A, A sees it in a gallery 5 years later; L even if gallery didnt know theft

See Phelps v McQuade (NY 1917 p48)

B goes to As house pretending to be a dealer, A sells jewels to B thinking will resell, B re-sells for to C but pockets $; NL for C since A should have done more due diligence Bona fide purchaser for value rule

But See Kremen v Cohen (9th Cir 2003 p53-4)

P bought sex.com, left with Network Solutions as bailment, D fraudulently acquired from NS; L for NS since they were only domain name registry and P had no opportunity for due diligence

5. Assault
Liability if i) act intending to cause harmful contact or imminent apprehension of and ii) other is put in imminent apprehension

See Restatement 21(1)(a) (b) (p65-6)

Imminent apprehension = immediate physical threat

See Brower v Ackerley (Wash. App. 1997 p67-8)

D made threatening phone calls to P; NL since no immediate physical threat

See Tuberville v Savage (K.B. 1669 p70)

D said if Judges not present, would hurt P; NL since Judges were present

See Unloaded Gun Hypo

D walks into bank, takes gun from guard, threatens P; NL if P knows gun is empty Intention to cause harmful contact or imminent apprehension is based on objective standard

See Restatement 21(2) (p66) See Langford v Shu (NC 1962 p69)
D put box labeled danger, mongoose on porch, Ds child released spring and P got scared, ran, got hurt; L since clear a child would spring trap

See Newell v Whitcher (VT 1880)

D snuck into Ps bedroom (blind teacher), made unwanted sexual advances; L since sneaking into bedroom is offensive

See Friendly Sneaking Hypo

Same as Newell, but Ds intention was friendly; L since sneaking into bedroom is offensive

6. IIED
Liability if by extreme and outrageous conduct, D intentionally or recklessly causes sever emotional distress to another

See Restatement 46(1) (p71) Outrage is good because of deterrence Outrage is bad since causation is hard to establish, could lead to a flood of litigation Outrage is bad since might chill Ds conduct
Conduct must go beyond bounds of decency

See Restatement 46(Comment d) (p71) See Muratore v M/S Scotia Prince (1st Cir 1988 76-77)
P told Ds photographer not to take her picture (particularly susceptible), D persisted; L since more outrageous if notice of special sensitivity

But See Murray v Schlosser (Conn. Sup. 1990 p84)

D insulted Ps wedding photo on the air; most likely NL since not outrageous Liability if P is in an actual position of vulnerability

See Greer v Medders (Ga. App. 1985 p75-6)

P calls Ds office to complain, D arrives at hospital and yells at P, P requires psychiatric treatment; L since P in special position of vulnerability to their doctor

But See Roberts v Saylor (Kan. 1981 p74-5)

Before surgery by C, D insults P, P testifies no harm; NL since D not current doctor and couldnt influence P Liability if D has private information about P

See Figueiredo-Torres v Nickel (Md. App. 1991 p78-9)

D, marriage counselor, started affair with Ps wife and used info from her to harm P

Liability to third parties if i) distress leads to bodily harm; or ii) immediate family members are present at the time

See Restatement 46(2) (p71)

Public benefit can excuse liability for IIED

See Pemberton v Bethlehem Steel Corp (Md. App. 1986 p77-8)

D, employer, send photos of affair by P, union organizer, to Ps wife and publicized an old mugshot of P; NL since new information

D. Defenses
1. Person and Property
Use of force privileged if in the home and use proportionate force

See Restatement 65 (p96) See Hannibal Lecter Hypo

Lecter comes to Ds house, D not home, Lecter shot in the leg by Ds spring gun; NL since if D was home he would have been privileged to shoot an attempted murderer

But See Katko v Briney (Iowa 1971 p85-8)

P came to Ds barn to steal goods, shot by Ds spring gun; L since i) deadly force not privileged for preventing theft of property; ii) no notice If not at home, actor must retreat or use non-deadly force

See Restatement 63 (Comment l) (p95)

Cannot reasonably believe force is necessary until exhausting all other reasonably safe means

See Restatement 63 (Comment m) (p95)

If not in home, can use non-deadly force even if possible to avoid harm by retreating

If attempting a lawful arrest and the suspect uses deadly force, no need to abandon the arrest

See Wright v Haffke (Neb 1972 p89-90)

P robbed Ds store, knocked D off balance, D shot P in the back as P ran away; NL since use of deadly force to stop a felony is justified No liability for a reasonable mistake in use of deadly force

See Crabtree v Dawson (Ky. App. 1904 p89)

D ejected A from dance hall, hit P in the face thinking P was A; NL since mistake No liability if potential Ps have notice

See Woodbridge v Marks (NY App 1897 p90-91)

P walks onto Ds property and his hurt by Ds dogs; NL since dogs purpose is to scare and P has notice (see dogs and hear barking)

But See Katko v Briney (Iowa 1971, p85-8)

Spring gun is not privileged since it is a dangerous device that provides no notice of its existence Can use deadly or non-deadly force to protect 3rd parties if circumstances justify force by the 3rd party

See Restatement 76 (p96)

If D is mistaken, must be actual and reasonable belief for privilege to remain

See Minority Rule

Intervener bears risk of mistake No liability when sacrificing property to save property if value of property saved > value of sacrifice

See Hill v Scruggs (Miss 1941 p91-2)

D shot Ps egg-sucking dog on Ds property; NL since unified owner theory chicken($) > dog($) and D tried to drive dog away + notify owner

See Kershaw v McKown (Ala. 1916 p92-3)

D, goat owner, shoots Ps dog; NL since dog not worth greatly more than goat reasonable to destroy cheap to save expensive

But See Innocent Dog Hypo

D leaves out poisoned dog treats, Ps dog wanders over and eats them; L since no distinguishing good v bad dogs

2. Private Necessity
Acute emergency creates a right to use someone elses property

See Ploof v Putnam (VT 1908 p97-9)

P in storm, tried to dock on Ds property, Ds servant unmoored ship; L for D since would be win-win under veil of ignorance

See Texas Midland v Geraldon (Tex 1910 103-4)

P missed train, D kicked P and Ps sick wife out into the rain; L since D knew emergency was short term Incomplete privilege allows actor to take from owner, but actor must pay compensation

See Vincent v Lake Erie (Minn 1910 p100-2)

Ds boat docked, storm arrives, captain uses dock to protect ship, dock damaged; L since unified owner principle No privilege if there are other options, even bad ones

See London Borough of Southwark v Williams (England 1971 p104-5)

D liable for trespass when squatted in council housing; had option to go thru official channels

3. Public Necessity
Complete privilege if the act is or is reasonably believed to be necessary for avoiding public disaster

See Restatement 262 (p109-10) See Mouses Case (KB 1609 p106-7)
Barge overloaded and sinking, D threw off Ps property; NL since saving other lives and baggage would have been destroyed by sinking anyway

But See General Average Contribution

Cargo weighed on ship, value is placed on it, all others pay for person whose cargo is tossed Public necessity is appropriate in cases where there is a collective action / free rider problem that would otherwise lead to a net social loss

See Surocco v Geary (Cal. 1853 p107-8)

City destroys house to create a fire lane; NL since house would have been destroyed by fire anyway and act saved lots of other houses No defense of reasonable mistake if public necessity = complete privilege since no internalization of costs

See Struve v Droge (NY Sup Ct 1881 p108-9)

D saw smoke from Ps chimney, broke in, found no fire; L since no reasonable belief of harm

See Wegner v Milwaukee Mut. Ins Co (Minn 1992 p110-1)

SWAT team fired grenades into Ps house to smoke out an armed suspect; L (govt taking) since cannot allocate public loss to one person

But See Customer Company v City of Sacramento (Cal 1995 p111)

SWAT team fired grenades into P corps building to smoke out suspect; NL (no taking) since corp can bear loss better (?)

III. Negligence A. Duties and Limitations B. Reasonable Person

1. Mental characteristics
Reasonable person is not insane

But See Williams v Hayes (NY 1899 p122-5)

D went insane after spending 48 hours on deck in a storm, crashed ship; NL since insanity resulted from reasonable persons exercise of care Reasonable person is not stupid

See Vaughan v Menlove (C.P. 1837 p125-6)

D built chimney near Ps haystack, hay caught fire; L or else avg person afraid to interact with stupid people; also hard to take precautions Reasonable person is not retarded (for D, maybe exception for P)

But See Lynch v Rosenthal (Kan. App. 1965 p126-27)

D asked P, retarded, to walk behind corn picker, P fell and lost arm; L since retardation is a defense to contributory negligence

2. Physical disabilities
Physical disabilities are an excuse if P/D acts as a reasonable person with a defect would

See Davis v Feinstein (Pa 1952 p134)

P, blind, used a cane to avoid falling in holes but still fell thru an open cellar door; L since P was using cane reasonable person

But See Kerr v CT Co (Conn 1928 p133-4)

P, deaf, walked next to trolley track and was hit by train; NL since reasonable deaf person wouldnt walk next to train tracks

Distinct defects excuse liability if all can recognize that it makes certain precautions impossible

See Holmes (p127-8)

Defects identifiable ex ante are excused since others can anticipate and change behavior

3. Upward deviations
People with upward deviations in skill are liable if the situation is analogous to an average person choosing not to use average skills

See Restatement 298 (p132-3) See Restatement 289 (Illustration 12) (p133)
D, doctor, has a child with fever; L if D does not use their medical knowledge

Cf. Lynch v Rosenthal (Kan. App. 1965 p126-27)

D knew P was retarded, asked P to walk behind machine; L since D(knowledge) > P(knowledge)

But See Fredericks v Castora (Pa. App. 1976 p132)

D, truck driver, hits P; NL since assumption is other drivers will meet baseline driving skill

But See Friedman v State (NY Cl. 1967 p130-1)

P, on chair-lift, jumps out due to moral compulsion not to spend night with a man Moral compulsion is not excuse, but ok for no contributory N

4. Age
Children are expected to behave with a reduced standard of care

See Roberts v Ring (Minn 1919 p137)

P, age 7, ran into street and hit by car; no contributory L since law wants children to be able to explore

Children undertaking adult activities are held to an adult standard of care

But See Purtle v Shelton (Ark 1971 p134-7)

D, 17, shot P, 16, while hunting; NL since hunting not an adult activity L for driving a car since adult activity and parents can control the activity Senior citizens are held to the same standard of care as other adults

See Roberts v Ring (Minn 1919 p137)

D, age 77, hit child in street; L since not everyone recognizes old person has a defect

C. Negligence v Strict Liability

1. Hand Formula
N if D failed to take a precaution when B < PL

See US v Carrol Towing (2d 1947 p140-1)

D negligently ties boat, did not have bargee on board for 21 hours, ropes broke; contributory N since bargee was cost-justified precaution

But See Bolton v Stone (HL 1951 p145-7)

P lived near cricket field, hit in face by ball that went over 7 fence; NL since building a higher fence was not cost justified (MR < MC)

But See The Margharita (5th Cir 1905 p150-2)

P, sailor, fell overboard and lost leg, captain continued 7K journey instead of putting in to port; NL since marginal B very high while marginal L low (leg already lost) Information eliciting since sailor knows true value of pain and suffering Soft version: D failed to take a cheap precaution that would save a lot of life

See Davis v Consolidated Rail Corp (7th Cir 1986 p154-5)

P, inspector, drove unmarked van and didnt use white flag; crew did not walk by

train cars or blow horn; L since cost to blow horn was very low and could prevent serious injury

See Grimshaw v Ford Motor Co (Cal. App. 1981 p156)

D used Hand Formula to decide not to strengthen gas tanks on Pinto, jury gave Ps huge verdict; cost per car was $9 and saved lots of life ALSO information eliciting rule re: risk of fire Grady: D failed to take a precaution that was or was very close to being cost justified

D knew or risk and i) did not do X; ii) did X badly; iii) didnt know of risk but would have if did Y; D shouldnt have used Z since Z inherently dangerous
Wright: D imposed an unreasonable risk on P

See Eckert v Long Island R Co (NY 1871 p148-9)

P jumped onto tracks to save child, hit by Ds train; no contributory N since laudable to attempt rescue as long as not totally crazy BUT aggregate utility!= take actions helping D more than hurting P

2. Coase Theorem
In a unilateral precaution case, the exact same precaution will be taken if the rule is N or SL

In N, plaintiffs bear residual accident costs In SL, defendants bear residual accident costs In Opp of SL world, P will bribe D for precaution
In a bilateral precaution case, N will encourage more precautions

In SL, P will not take precautions since D pays In N, P will take precautions re: residual risk
SL forces injurers to adjust activity levels

In N, no residual so lots of activity In SL, pay each residual so reduce activity

Contributory N is the same for both SL and N

In SL, victims will take cost-justified precautions In N, injurer will take cost-justified precautions and so will victims
Uncertainty will lead towards overprecautions for N

In SL, if injurer overestimates they pay cost, if underestimate, pay extra, so symmetric In N, if overestimate pay extra cost, if underestimate pay all damages N cliff

R ul e

Pr ec au tio n (v ict im )

Pr ec au tio n (i nj ur er ) Ze ro Ye s Ye s Ye s Ye s

N L S L N N + C N S L + C N

Ye s Ze ro Ye s Ye s Ye s

A c ti vi t y ( vi c ti m ) Y e s N o Y e s Y e s N o

A ct iv it y (i nj u r e r) N o Y e s Y e s N o Y e s

3. Rylands Strict Liability

When a person who (1) for his own purposes, (2) brings on his land and collects and keeps anything (3) likely to do mischief if it (4) escapes, he is (5) answerable for all damages caused by the escape

See Rylands v Fletcher (HL 1868 p404-7)

D built reservoir above old mines (but didnt know about them), water broke through and flooded Ps land; SL since i) likely to cause mischief if it escapes (Exch) OR ii) non-natural use (HL)

Similar to filth or tigers unsafe in context

But See Turner v Big Lake Oil Co (Tex 1936 p411-12)

D built water reservoir for oil well, water escaped; NL since expected by community

4. Heuristics for Strict Liability

Activity level by injurer Location of activity

See Musgrove v Pandelis (K.B. 1919 p409)

Car in garage, butler started fire by misusing it; SL since risk is unusual for houses ALSO maybe SL for starting fires

But See Lubin v Iowa City (Iowa 1964 p412-13)

City purposefully lets pipes fail; court rules SL since thinks political process is broken and wants to prevent city from screwing over minority Should be N since public benefit and not unusual to place pipes underground Activity that cannot be done safely even w/due care

See Crowhurst (Exch D 1878 p408)

Ds poisonous yew grew over cemetery boundary, Ps horse ate and died; SL since poisonous plant

But See Rickards v Lothian (P.C. Austrl 1913 p408-9)

Indoor plumbing leaked; N since can be exercised safely and reciprocal benefits Information-forcing, maybe reciprocity

But See Losee v Buchanan (NY 1873 p410-1)

Exploding boiler; N since public benefits of factory > private cost to P

D. Custom
1. Market Participants
Custom is evidence of due care, but it is not a shield from liability

See The T.J. Hooper (2nd Cir 1932 p158-9)

D did not provide radios to crew since custom was no radios, crew did not know about storm and damaged barges; L since otherwise custom will lag cost-justified precautions

But See RR Horn Hypo

D doesnt honk horn at RR crossing since not the custom; L since no bargaining possible Custom is more likely to be due care in a contractual setting since downstream and upstream providers will bargain to get best result for 3rd party

See Ellis v Lousiville & Nashville Ry (Ky. App. 1952 p159-60)

D did not provide P with mask, P got sick, D argued not custom to provide masks; NL since custom = due care when contractual setting

See Rodi Yachts v National Marine (7th Cir 1993 p161-3)

D sent barge to 3rd partys dock, 3rd party did not inspect, barge got loose, hit Ps yacht; NL if custom was not to inspect since D and 3rd party will bargain for best deal for customer

2. Malpractice
Custom of medical professions across the nation is the standard of due care

See Brune v Belinkoff (Mass 1968 p164-5)

D, doctor in regional city, must be evaluated re: doctors in major cities; L since otherwise fear local experts will collude with local doctors

But See Gambill v Stroud (Ark 1976 p166-7)

Standard of due care is doctors with similar medical facilities, practices, and

advantages; try to address big city (specialist) v small town (generalist) problem Custom of medical facilities in the locality is the standard of due care

See Johnson v Wills Memorial Hospital & Nursing Home (Ga. App. 1986 p167-8)
P, patient at Ds hospital, escaped through window; NL since cannot hold rural facility w/limited resources to standard of big city

E. Negligence Per Se
1. Torts v Fines
Torts if citizens can discover and sue for harm more easily than law enforcement can catch wrongdoers Fines if law enforcement is better than citizens at catching wrongdoers Expect torts + fines where system has gaps or misses certain harms

2. Extra Deterrence
Unexcused failure to follow a statute is N per Se if it causes the injury in question

See Martin v Herzog (NY 1920 p170-2)

D violated ordinance by driving on wrong side of the road, P violated by driving buggy w/o lights; contributory N since driving w/no lights meant D could not take precautions

See Lake Shore Drive Hypo

D takes truck on lake shore drive in violation of statute, hits P; N per Se even though statute clear purpose is protect roadway from damage Violation of a statute, where relevant, is a rebuttable presumption of N per Se

See Tedla v Ellman (NY 1939 p172-4)

P walked on wrong side of road, violating statute, but said did so since less traffic, hit by D; not contributory N since good reason to violate statute

Violation of a statute is N per Se if it is difficult to find the wrongdoer or establish N

See White v Levarn (VT 1918 p174-5)

D and P hunted in violation of statute, D shot P; N per Se since statute to protect non-hunters AND hunters might collude vs non-hunters

See Lights On Ship Hypo

Statute requires lights to be 30 up on ship, light placed too low, ship catches fire and sinks; N per Se since hard to catch wrongdoers

But See Tingle v Chicago Ry (Iowa 1882 p174)

D ran train in violation of no trains on Sunday law, hit Ps cow; no N per Se since purpose probably not to protect cows AND law enforcement can catch train at next station

But See Gorris v Scott (Exch 1874 p182)

D did not pen Ps sheep on board boat, violating statute, storm washed sheep overboard; no N per Se since market/ contract (P to charge D for loss) Violation of a statute is not N per Se if it doesnt add an independent risk

See Brown v Shyne (NY 1926 p180-2)

P went to D, chiropractor, 9 times, on 9th time D made mistake that paralyzed P; no N per Se since everyone knows chiropractor is a quack, statute violation != new risk

But See Ross v Hartman (D.C. Cir 1943 p182)

D left truck unlocked, keys in ignition, in violation of law, X stole truck and hit P; N per Se since increased chance X could steal car Intervening Act doesnt eliminate N per Se in fact purpose of statute is to ensure this

3. Judge Made Rules

N per Se will tack between judge made rules and jury questions based on cases presented by P

Compare Baltimore & Ohio RR v Goodman (S. Ct. 1927 p184-5) (Holmes)
P did not get out of car, look, and listen, hit by train; N per Se for P since clear rule that everyone should get out of car and look

With Pokora v Wabash Ry (S. Ct. 1934 p185-7) (Cardozo)

P did not get out of car to look since confusing intersection, hit by train; no N per Se since extraordinary situation needs fact-finding

F. Res Ipsa Loquitur

1. Doctrinal Tests
Accident causing Ps harm is a type that usually happens because of N of one of a class of actors to which D belongs (modern) Ordinarily doesnt occur i) in absence of N by ii) an agent or instrumentality under exclusive control of D where iii) there was no voluntary action of P

2. RIL is a Penalty-Default Information-Forcing Rule

If P has no info, RIL will force info from D

See Byrne v Boadle (Exch 1863 p190-1)

P hit by barrel falling from Ds factory; RIL since P cannot get info about accident barrel fell from nowhere to hit him

See Judson v Giant Powder Co (p199-201)

Ds dynamite factory explodes, killing everyone; RIL since all evidence destroyed by blast, else recurring miss Encourage factory to keep records off-site or invite regular inspections

See Ybarra v Spangard (p206-10)

P unconscious during knee operation, neck got hurt, 10 people in room; RIL or else Ds might collude to prevent P from proving case

3. Bayesian Framework
RIL cares about P of N given H (harm occurred) RIL is lower if P of N is very low

If unavoidable accident rate / negligent accident rate = 1, no RIL

Unavoidable rate = P(H without N) Negligent rate = P(H given N occurred)

If probability of N is very low, hard to show RIL

P(N given H occurred) < P(H without N) Even if P(H given N occurred) > P(H without N)

Compliance errors increase P(N)

P(H without N) decreases, so P(N) increases P(N) increases so P(N given H) increases

4. Compliance Errors
An accident is a strong case of RIL if due care requires the exercise of lots of precautions

See Nuclear Plant Hypo

If due care was exercised for a nuclear plant, assume that the chance of accident 0%; therefore an accident = N

See Connolly v Nicollet Hotel (Minn 1959 p194-5)

D held wild conference, P hit by mudlike substance on street; RIL because conference = chronic danger expect precautions errors

See Hassman v Pacific Alaska Air Express (Ak 1951 p202-3)

Ds plane crashes w/o bad weather; RIL since unavoidable accident rate is very small

See Construction Hypo

D drops wedge while hammering on top of building, hits P walking down street; RIL since cant make everyone wear a helmet on street

But See Larson v St Francis Hotel (Cal. App. 1948 p193-4)

P, walking down sidewalk, hit on head by armchair; no RIL since due care would not reduce accidents (only bolting chairs + guards)

But See Combustion Engineering v Hunsberger (Md. App. 1936 p192-3)

D drops wedge while hammering at worksite, hits P on the head; no RIL since high background accident rate, better to enforce hard-hats at site

G. Negligent Infliction of Emotional Distress

1. Near Miss
Old rule: recovery for emotional distress is ok if there was physical contact

See Mitchell v Rochester Ry (NY 1896 p292)

Ds car + horses didnt stop until horses heads on either side of P; P suffered miscarriage; NL since fright alone is not enough New rule: liability if P is in the zone of danger and a discrete set of Ps can be identified

See Robb v Penn RR Co (Del 1965 p289-91)

Railroad lets rut form at crossing, Ps car gets stuck, P is almost hit by a train but dives out of their car in time; N under new test

See Quill v TWA (Minn 1985 p295)

Plane drops, P gets scared; N since potential Ps are limited to the passengers on the plane

But See Lawson v Management Activities (Cal App 1999 p293-4)

Plane crashed near car dealership where P worked; NL since foreseeable 7 factor test Too large a class of potential Ps

2. Bystander
Old rule: bystander can recover, but only if bystander is in the zone of danger + in reasonable fear of injury New rule: bystander can recover if close to accident, saw it occur, and is closely related

See Dillon v Legg (Cal 1968 p301)

Factors are: closeness of relationship, spatial proximity, reasonableness of response

See Marzolf v Stone (Wash 1998 p301)

Father comes on accident where son is dying but did not see the accident; N since strong relationship

But See Gain v Carrol Mill Co (Wash 1990 p301-2)

Father watches son get hit on TV; NL since i) class of potential Ps too large AND ii) evidentiary re: if father actually watched + emotional hurt

But See Male-Female Hypo

Courts held that emotional distress is more reasonable for mother watching children get hurt, BUT also would declare not a real harm

3. Exposure
Liability for an exposure only if probability of harm is > 50% (PoE)

See Potter v Firestone (Cal 1993 p299-300)

D dumps chemicals into water, P drinks the water; NL since Ps did not develop cancer Reasonable = PoE or might divert money from people who actually get cancer

H. Strict Liability
1. Wild Animals
If an animal is wild, the owner is strictly liable for all harms it causes, except for harms that are not characteristic

See Behrens v Bertram Mills Circus (QB 1957 p394-7)

SL for elephant that was frightened by dog and trampled circus midget SL for wild animals even if they are safe since nonreciprocal risk and more likely than not to do harm if they escape

See Cage Hypo

If keeping a leopard is dangerous since it can escape, and part of the danger is children could nudge the cage open, SL for harm caused

But See Bostock-Ferrari Amusements v Brocksmith (Ind App 1905 p402-3)

Horse scared by seeing circus bear being walked down the street; no SL since circus told people they were in town and victim could have avoided behavior If an animal is wild but the victims conduct causes the injury, no strict liability

See Vaughan v Miller Bros 101 Ranch Wild West Show (WV 1930 p4012)
Ape bit the finger off a child who stuck it through the cage bars; no SL MAYBE because animal did not escape, so injury likely means contributory negligence

See Opelt v Al G Barnes Co (Cal App 1919 p403)

Boy snuck under rope, bringing him too close to the leopard cage, leopard scratched him; no SL Boy chose to put self in danger contributory N

If an animal is domestic, the owner is strictly liable for harm it causes if it already bit someone (one bite rule) and escapes from the owners property

See Gomes v Byrne (Cal 1959 p403-4)

P walked by yard, heard dog barking, opened gate, got bitten by dog; NL since notice + tame No SL for injury to a trespasser No SL for injury to an invitee / licensee as long as there is notice of the danger

See Banks v Maxwell (NC 1933 p400-1)

D told P to drive bull into pen, bull gored P; NL since no evidence that bull ever attacked before

But See Docherty v Sadler (Ill App 1997 p400)

State animal control statutes hold a dog owner SL for any bit a dog inflicts

2. Abnormally Dangerous Activities

Ds conduct will be SL if a) high degree of risk; b) likelihood that risk big harm; c) no way to reduce risk even if D exercises due care; d) not a common usage; e) location is particularly inappropriate; f) value to community vs dangerous attributes

See Restatement 520 See Klein v Pyrodyne Corp (Wash 1991 p425)
D, contractor, organized fireworks display, rocket hit P; SL = no way to eliminate risk + high risk

See Sullivan v Dunham (NY 1900 p426)

D used dynamite to remove tees, blast caused tree to hit P; SL for resulting harm SL will i) cause D to blast less OR ii) warn neighbors that blasting will occur

Harms resulting from abnormally dangerous activities are not SL if harm is to an eggshell plaintiff

See Madsen v East Jordan Irrigation Co (Utah 1942 p426-7)

Blasting causes minks to eat their young; No SL since mink-eating is idiosyncratic and farmer should have taken precautions (notify blaster) An activity is SL if it is easier for D to change their location than it is for the people affected by the activity

See Guille v Swan (NY 1822 p418)

Balloon crashes in NYC; SL for harms caused since ballooning is easier to move than houses

See Siegler v Kuhlman (Wash 1973 p424-5)

Gasoline truck crashed, exploded; SL for resulting harm since transporting gas cannot be done safely, even w/exercise of due care More precautions by train, P of non-N accidents is higher for trucks than trains Fire might destroy evidence

But See Indiana Harbor Belt Ry Co v American Cynamid Co (7th Cir 1990 p416-22)
Shipping hazardous chemicals near a populated area is not SL since i) nearby houses have this risk priced in; ii) easier to move houses than the hub-and-spoke train system; iii) no good substitute locations that reduce risk ALSO shouldnt hold mfg co SL for action of shipper since easy for shipper to take precautions If an activity is socially useful, albeit dangerous, it is not SL

See Restatement 520

Social utility is a proxy for reciprocal risk test (like risk reciprocal benefit) BUT Gilles general inquiry i.e. is it N to run hazardous materials through a populated area?

But See Restatement, 3d 20

Moves away from social utility test, but do not substitute a generalized N inquiry

3. Respondeat Superior
If the agent is an employee, principal or employer is liable for torts committed within the scope of employment

See Restatement, Agency 228

(1) Conduct is within scope of employment if (a) kind employed to perform (b) substantially within authorized time and space (c) actuated by purpose to serve master (d) if force intentionally used, that force is not unexpectable

See Restatement, Agency 265(1)

Principal subject to liability for tort which results from reliance upon or belief in agents apparent authority

See Roth v First Natl State Bank of NJ (NJ Ap 1979 p438-9)

Ds bank teller tipped off thief that P carried money, thief robbed P; no VL since i) no enhanced access due to job; ii) selfish; iii) VL wouldnt change activity levels

See Forster v Red Top Sedan Service (Fla App 1972 p439)
Driver runs Ps off highway, slaps them, says wont be stopped from getting to beach; VL since drivers purpose was employment-related

But See Reina v Metropolitan Dade County (Fla App 1973 p439)
P had far dispute with Ds driver, got off, gave finger, driver chased and beat P; NL since personal vendetta / hurt employers schedule

Tests for Scope of Employment:

See Nelson v American-West African Line (2d Cir 1936 p432) (Hand)
Purpose/motive test: drunk sailor who hit P might have thought he was acting in interest of ship

See Ira S Bushey & Sons v US (2d Cir 1968 p431-4) (Friendly)
Foreseeability/increased risk test: drunk Navy sailor who damaged ship could do so because Navy i) gave access to dock; ii) forced sailor to return there Test: i) could employer have foreseen the act and ii) is act related to nature of employment?

See Joel v Morison (Eng 1834 p435)

Frolic and detour test: employee who goes out of his away, against masters implied commands while on masters business VL

See Miller v Reiman-Wuerth (WY 1979 p434-5)

Frolic test: employee who asked permission to leave for an errand hit P with car; no VL for employee happiness policies

See Konradi v US (7th Cir 1990 p435-8) (Posner)

Elasticity of activity levels: employee who got into car accident VL since Post Office requires employees to use their own cars during work and take the most direct route to work Employer exercises control over how employees drive and can cause shifts in activity levels If the agent is an independent contractor, no VL unless the activity is non-delegable because of peculiar risk

See Restatement 416 (p444)

If employ a contractor to do work which employer should recognize creates risk of peculiar harm, then VL for failure to prevent that peculiar harm Requires special hazard relating to work done (information-forcing rule re: precautions)

See Yazoo & Mississippi Valley Railroad Co v Gordon (Miss 1939 p4434)
D hired agent to unload cattle, cow escaped and gored P; VL since keeping animals by railyard required special precautions

But See Wilton v City of Spokane (Wash 1913 p444-5)

D hired contractor to build street, contractors left dynamite underground, later exploded when P worked on street; no VL since dynamite left underground ! peculiar risk of road-building ALSO city is deterred since road blows up VL for harm caused by independent contract when services are accepted in reasonable belief that independent contractor is an employee

See Restatement 429 (Illustration 2) (p445-6)

A hails taxicab which is painted to look like Company B, even though independent contractor; if cab hits C, B is liable for harm to A but not C

See Hospital-Doctor Hypo

If P accepts services in reasonable belief that they are rendered by employer or servants VL An agent is a servant (not independent contactor) if i) agreement for close supervision; ii) non-specialized work; iii) employer supplies tools; iv) hour or monthly payment; v) regular hours long-term; vi) full time employment; vii) specific area or fixed route; viii) work is part of regular business of employer; ix) belief of master + servant relation; x) non-delegable

See Restatement, Agency 220 (p442-3) Se Miami Herald Publishing Co v Kendall

Newspaper boy signed contract with publisher saying independent contractor, hit P; no VL Contract + boys choice over how to deliver papers >>> de facto supervision by publisher

IV.

Duties

A. Affirmative Acts
1. Analytical Framework
No duty to rescue (common law)

See Restatement 314 (p218-9)

Fact that actor realizes or should realize that action is necessary to aid another != duty to take that action

See Epstein (p225-6)

Default is no duty since hard to determine who has the duty or when Ames = complete privilege, will dissuade rescuers from going where their skills might be needed Duty by A to rescue if B is about to suffer impending death or grievous bodily harm and little cost to A

See VT Statute (p219)

(a) Person who knows another is exposed to grave physical harm shall give reasonable assistance; and (b) isnt liable unless assistance = gross N

See Ames (p224-5)

Duty for low risk rescue, but not high risk rescue Moral account: if wont spend a little to help a lot then selfish; ex ante reciprocal bargain Economic account: forced rescue is Kalder-Hicks efficient socially useful Duty to rescue, but reward if you do

See Gersen Incomplete Privilege Rule

Will not dissuade rescuers, but might encourage over-rescue or moral hazard by potential rescuees

No duty to rescue, but compensation if you do

Cf Ploof v Putnam, Vincent v Lake Erie

Will encourage excessive precautions by potential rescuees or else will have to pay their rescuer

2. Rules for Affirmative Acts

If actor creates an unreasonable risk of causing harm to another, duty to prevent harm from happening

See Restatement 321 (p219)

Rule is true even if actor has no reason to believe act will create such a risk of physical harm Mere goading of an adult does not generate a duty

See Yania v Bigan (Pa 1959 p216-8)

D encourages P to jump in pool, P jumps, drowns; no duty to rescue since prior conduct was not dangerous A duty to rescue is created if prior conduct was dangerous, even if conduct was innocent

See Restatement 322 (p220)

Duty applies if act or instrumentality within actors control inflicts harm so that other is helpless and in danger Duty exists even if contributory N would prevent P from suing on the original conduct If an establishment is open to the public, it cannot refuse to let a stranger take a low cost action to save themselves from imminent danger

See Soldano v ODaniels

Bar prevented P from using phone to call police; duty to rescue since i) no risk of false intrusion and ii) low cost action doesnt infringe autonomy

3. Rescuers
No duty to offer care even if you are the only doctor

See Hurley v Eddingfield (Ind 1901 p27-8)

D, only available physician, reused to render aid to their long-time patient who died; NL since license != requirement to practice A duty to offer care is created if a doctor offers advice to a patient that induces reliance

See ONeill v Montefiore Hospital (NY App 1960 p228-9)

P took husband to hospital, Ds doctor said go home, husband went home, died; N since doctor undertook to examine and treat Ps husband A rescuer who botches a rescue and harms the victim is liable

See Restatement 323 (p231)

Undertaking to render services necessary for protection = liability for harm resulting from failure of care if (a) failure increased risk of harm or (b) harm is due to reliance on the undertaking

See Restatement 324 (p231)

Taking charge of helpless P liability for (a) failure to secure safety of P or (b) discontinuing aid creates worse condition than before

See US v Lawter (5th Cir 1955 p229)

Coast guard ship tries to rescue P, makes an error; N since want poorly skilled rescuers to defer to an expert

B. Special Relationship
1. Generally
Special relationship exists if i) asymmetric information or capability; ii) asymmetric risk concern; iii) identifiable P and D

2. Service Providers
Ship captain is liable for failing to rescue a sailor if the decision to rescue is cost-justified

See Trans-Pacific Fishing & Packing Co (W.D. Wash 1957 p234-5)

Men washed overboard, captain does not rescue; N since special relationship Identifiable rescuer, also NL for captain who goes back and ship crashes due to weather Airlines are liable to harm to passengers when passengers are on the airline and the airline is best placed to prevent the harm

See Brosnahan v Western Air Lines (8th Cir 1989 p235)

P, passenger, putting away luggage and bag drops on Ps head; N for airline since special relationship

But See Boyette v TWA (Mo App 1997 p235-6)

P, passenger, exits plane, gets drunk in airport, killed; NL since airline deposited passenger in a reasonably safe place

Cf. Common Carrier Duty

Common carrier is SL for damage to freight Teachers have a special relationship to students

See Law School DeFibrillator Hypo

Law school buys defibrillators and trains faculty; student collapses, faculty tries to save but defibrillator not charged; N since induced reliance + identifiable actor

Landlord has a duty to protect tenants if they have notice of crime and break-ins

See Kline v 1500 Mass Ave (D.C. Cir 1970 p245-6)

P, in building that had doorman when moved in, attacked; landlord knew about earlier crimes but stopped paying for doorman; N since i) landlord has exclusive power to take precautions, ii) bait-and-switch re: protections

But See Common Law Rule

Landlord has no duty to protect tenants since tenants can provide thru markets

3. Third persons
No duty to protect a third person unless there exists a) special relationship between actor and third person or b) actor and the person causing harm

See Restatement 315 (p239) See Tarasoff v Regents of U.C. (Cal 1976 p239-43)
Therapist knew patient wanted to kill victim, did not warn police or victim; N since i) identified third party ii) psychologist has better knowledge than lay person

But See Thompson v County of Alameda (Cal 1980 p244-5)

Juvenile offender released under parole program, had violent propensities re: children, killed 5-yr old neighbor; NL since i) high search cost to notify entire community and ii) diffuse warning so lower benefits to potential victims

4. Public duty
No liability for government actors since they do not have a duty of protection based on specific hazards

See Wanzer v D.C. (D.C. App 1990 p252-3)

P calls 911, says terrible headache, dispatcher says take aspirin, P suffers stroke and dies; NL since public duty no liability for N in the provision of emergency services

See Riis v City of NY (NY 1968 p249-50)

P warned police about stalker, police did nothing, stalker burnt her face; NL since emergency protection is a legislative / executive question

But See Schuster v City of NY (NY 1958 p251-2)

City publicized Ps role in arrest of national criminal, ignored threats on Ps life, P killed; N since city was active in calling on Ps assisstance If no public duty exception, cities might choose not to provide emergency services

C. Duty from Occupation of Land

1. Trespassers
Landowner owes no duty to an unknown trespasser

See Restatement 333 (p256)

No liability for failure to (a) put land in condition safe for trespasser or (b) carry on activities so as not to endanger trespassers

See Haskins v Grybko (Mass 1938 p253-4)

D shoots trespasser thinking he is a woodchuck; NL since didnt know about trespasser If landowner knows or should know of the trespasser, they must exercise due care for highly dangerous, hidden activities and conditions

See Restatement 334 (p356)

Liability for highly dangerous activities if know that trespassers constantly intrude

See Restatement 337 (p356)

Liability for hidden conditions if (a) know about trespassers and (b) condition will not be discovered by trespasser

See Herrick v Wixom (Mich 1899 p254)

P snuck into circus, got hit by firecracker in eye, N since precaution to protect

invitees / licensees = precaution to protect trespassers

See Ehret v Village of Scarsdale (NY 1935 p255-6)

Trespasser killed by gas in home; N since owner generated the hazard, even though action was offsite trespasser limitation is not a shield Landowner cannot willfully or recklessly harm trespasser Attractive nuisance duty applies if a dangerous condition is on the land that would encourage children to play with it

See Restatement 339 (p258)

N if i) owner knows children will trespass; ii) condition is very dangerous; iii) children wont recognize danger; iv) utility of condition and burden of limiting it are small re: risk; v) possessor fails to exercise reasonable care to eliminate the danger

See Keffe v Milwaukee & St Paul R Co (Minn 1875 p256-7)

Children climb onto exposed railroad equipment, get hurt by its movement; N since i) attractive to children and ii) danger is a hidden danger

But See Judge Holmes

Child injured swimming in unmarked pool filled with acid; NL since couldnt see pool from road

2. Licensees
Landowner owes a duty of reasonable care based on owners knowledge

See Restatement 330 (p260)

Licensee is someone privileged to enter or remain on land by virtue of possessors consent

See Restatement 341 (p260)

Owner is liable to licensees for activities if (a) he should expect they wont discover danger; (b) licensees dont know about activities + risk

See Restatement 342 (p261)

Owner liable to licensees for condition of land if (a) knows of condition and that licensee wont discover;(b) no warning;(c) licensees dont know

See Davies v McDowell National Bank (Pa 1962 p258-9)

Licensee killed by gas in home; NL since owner did not know about the latent condition

See Vacuum Cleaner Case

A, salesman, enters Bs land and is bit by dog; A is a licensee so B is not liable; ex ante salesman wants to be licensee or else fear owners will not allow him inside

3. Invitees
Landowner has a duty to make sure the place is safe and fix latent issues or tell the invitee about them

See Restatement 332 (p264)

(2) public invitee invited to enter or remain for reason land is held open to public (3) business invitee is invited to enter or remain on land for a purpose related to the business

See Restatement 341A (p264)

Owner is liable to invitees for activities if he should expect they wont discover danger

See Restatement 343 (p264)

Owner is liable to invitees for condition of land if (a) knows of condition; (b) expects licensee wont discover; (c) fails to exercise care

Hypo: Library
A is an invitee if the go to the library to borrow a book, but not if they go to take a nap

Firemans rule: no claims by fireman against people who negligently cause fires

4. Mixed Approach
Landowners must fix or warn about known, concealed hazards regardless of whether other is a trespasser, licensee, or an invitee (1/3 of states)

See Rowland v Christian (Cal. 1968 p265-6)

P and D go to Ds home, P cuts hand on a broken faucet that D knew about; D liable even though faucet was not a latent hazard Owners must tell others about known hazards, unless they are discoverable/obvious but trespasser/licensee can have some bearing Landowners owe the same duty of care to invitees and licensees (20 states)

V.

But-For Causation (PoE)

A. PoE and Probabilistic Recovery

1. PoE
Liability only if untaken precaution was 51% likely to prevent harm

2. Expected deterrence
Do not assign liability if the defendant will still take the precautions on their own

See New York Central R.R. v Grimstad (2d Cir 1920 p308)
Barge operator falls off ship and drowns since cannot swim; wife sues claiming N since no life buoy; NL Owner will install buoys on ship since there will be a future case where the buoy had > 51% of saving the barge operator

See Stacy v Knickerbocker Ice Co (Wis 1893 p309-10)

D failed to put warning signs by thin ice, Ps horses go crazy, dash onto ice, fall

through; NL P(barrier stopping horses) < 51%, BUT P(barrier stopping people) > 51% so expected deterrence Assign liability if the owner will never take the precaution on their own (recurring miss)

See Gardner v National Bulk Carriers (4th Cir 1962)

Seaman from big ship found missing, boat continues course; suit under Jones Act for N Recurring miss: P(precaution) always < 51%, BUT P(precaution) * $(harm) > $ (precaution)

3. Error minimization rules

Variables

P = probability precaution will prevent harm H = cost of harm

PoE: P * $0 + (1-P) * H No recovery: P * H + (1-P) * 0 Triple recovery: P * 2H + (1-P) * 3H Probabilistic recovery: 2P * (1 P)*H Random recovery: 2P*(1-P)*H Over-recovery (by x%): P * xH + (1-P) * (1+x)*H

4. Rodeo Promoter paradox

If X out of Y are wrongdoers and X/Y > 50%, then:

Moral hazard to allow recovery since P can sue Y Ds and each one will be PoE Moral hazard to not allow recovery since Y will all become wrongdoers knowing they are immune Impose best-evidence producer rule
IF X wrongdoers, P(Y-X) have tickets, P(Y-X) lost tickets, then:

Better solution: available tech. to reduce error Error (suit1): PY/(X+PY) Error (suit2): (PY-1)/(X + PY-1) Error (suitX): (PY-X)/(PY )
If have tickets, could also follow probabilistic rule:

X + PY all pay X/(PY+X) * H

B. Exceptions to PoE
1. Lost chance theory
If there is a high background rate of harm (>51%), use probabilistic recovery

See Herskovits v Group Health Cooperative of Puget Sound (Wash 1983 p317-21)
Ds failure to diagnose reduced chance of survival from 39% to 25%; since at no time was the chance of survival > 50% this is a recurring miss Ds damages = % of chance of life reduced Adopted only in IA, IL, IN, WA

See Haft v Lone Palm Hotel (Cal. 1970 p311-12)

Husband and son go swimming in pool, drown; no lifeguard or sign warning no lifeguard; BUT 1% that sign would have changed behavior Shift burden of proof to D No N per se even though no sign violated statute Only allow probabilistic recoveries if there are well-worked out mortality or probability tables

See Frye (S Ct)

Only generally accepted science is ok as expert testimony; followed by most states

Cf. Daubert (S Ct)

Judge can be gatekeeper of expert testimony as long as testimony helps understand a fact in issue; followed by fed govt

But See Daugert v Pappas (Wash 1985)

Legal malpractice for filing case 1 day late, even though chance client would win is < 51% Judges think they can assess merits of case so ok for probabilistic recovery

2. Fines
If there is a very low chance that taking a cost-justified precaution will prevent harm, state should enforce fines for not taking the precaution

Cf. Haft v Lone Palm Hotel (Cal. 1970)

No lifeguard sign is a violation of CA statute

But See N v SL Handout

If uncertainty in a full liability world, potential Ds will take too many precautions

D. Alternative Liability + 1/X Cases

1. Spectrum of liability
A kicks B = 10/10 Barrel falls on head (Byrne v Boadle p190) = 9/10 A uses Bs dock to save As life (Vincent v Lake Erie p100) = 8/10 1/4 elevator pickpocket, but other 3 saw it happen = 6 1/6 N doctor, but information forcing (Ybarra v Spangard p206-210) = 5 1/2 hunter shoots in face (Summers v Tice p332) = 5 1/4 elevator pickpocket = 4 1/6 N doctor = 3 2/19 brick hits head (Wolf v American Tract Society p211-12) = 3/10 1/5000 hit and run = 1/10

2. Alternative liability
Assign liability to D when they are at fault and there is an unknown wrongdoer to prevent D from colluding/covering up

See Kingston v Chicago N.W.RY Co. (Wis 1927)

Fire started by RR Co and fire of unknown origin converged at Ps yard; N Maybe also because fires are SL offense Court would not assign liability for RR Cos N fire + 1 fire of natural origin since PoE will catch up to RR Co

3. Market share liability

If recurring Ds who i) all produced the same product and ii) were all negligent, assign damages based on market share

See Sindell v Abbott Laboratories (Cal. 1980 p336-42)

Multiple mfg cos produced DES, which turned out to be N; P knew mother took DES, but unsure who produced it; damages = harm * % of CA mkt Error-minimizing if aggregated

See Restatement 433 Illustraion 3 (p333)

A owns 3 dogs, B owns 2, 5 dogs go to Cs farm and kill 10 sheep; damages = 60%/40%

But See Lead Poisoning Cases

30 lead paint mfg cos who made paint when they should have known lead was bad; no market share aggregation since 90% of companies went bankrupt

But See Sanderson v Intl Flavors and Fragrances (C.D.Cal 1996)

P sued 7-8 major perfume mfg cos producing over 16,000 allergens; NL since products are not fungible If recovery is based on market share liability, Ps cannot sue individual Ds unless some Ds are judgment proof

See Matching Hypo

If P knows which D sold DES, they must still sue all manufacturers unless it is possible to reduce Ds general market share damages Suit against specific D might be ok if impossible to collect from others

4. Joint and Several Liability

Assign liability to 2 Ds when only 1 is at fault if it is possible that Ds might collude

See Summers v Tice (Cal. 1948 p332-3)

Two hunters shoot P, companion, and one bullet hits Ps face; N even though P < 51%

JSL rules:

Joint liability: each D owes entire amount Several: each D owes a proportionate share JSL: joint, but contribution between Ds is ok
JSL under CN requires either i) parties to act in concert or ii) parties to be roughly equally at fault or iii) parties to be at least > 50% at fault (depending on state)

But See Gehres v City of Phoenix (Ariz. App. 1987, p346-7)

Drunk was 95% liable, club 3%, city 2% but because drunks estate was insolvent judge assigned JSL and P collected from club + city Under comparative negligence, JSL applies if one or more Ds are judgment-proof

See American Motorcycle Assoc (Cal. 1978)

B, bad motorcyclist, rode A, bad motorcycle, and hit V, pedestrian who jumped in front of driver; jury finds 1/3 liability for each B is judgment proof, so V can collect 66% from A discourages A from doing business w/risky Bs

But See CB p349

V collects 1/3 share from A and B; if B is judgment-proof, tough luck

But See Levmore Rule

V and A make up the difference, so V collects 1/3 + 1/6 from A

5. Contribution rules
No contribution: S sues T and V, chooses to collect only from T

See Merryweather v Nixan (Eng. Rep. 1799)

Wrongdoers cannot work out an equitable distribution of losses between themselves BUT tempts collusion between V and S

Contribution rule: S recovers entire judgment from T, T can sue V for contribution

See CB p348-9
If V and T are 50 responsible and S settles for 10 with V, S can sue T for 90, T can sue V for 45 contribution Contribution with a settlement bar: S recovers the entire judgment from T and V, but settlement reduces recovery 1:1

See Uniform Contribution Among Tortfeasors Act

If V and T are 50 responsible and S settles for 10 with V, S can collect 90 from T and T can sue V for 40 contribution Pro tanto rule, but with good faith requirement that S and V did not collude Encourages D to settle finality Pro rata no contribution rule: S recovers proportionately from T and V; settlement has no effect

See CB p348
If V and T are 50 responsible and S settles for 10 with V, S can only collect 50 from T = 60/100 If V and T are 50 responsible and S settles for 80 with V, S can collect 50 from T = 130/100 Discourages settlement Pro rata with contribution rule: S recovers proportionately from T and V, but settlement reduces recovery 1:1

See CB p348
If V and T are 15 responsible and S settles for 10 with V, S can collect 15 from T = 25 If V and T are 15 responsible and S settles for 40 with V, S can collect 0 from T = 40; V can sue T for 20 contribution

VI.

Proximate Cause A. Multiple Wrongdoers

1. One D and one P
Assign liability for all resulting harms defendant (eggshell plaintiff rule)

See In re Polemis (KB 1921, p351-2)

Worker drops plank into ships hold, causes spark that starts explosion; liability for entire ship

See Colonial Inn Motor Lodge v Gay (Ill. App. 1997, p360-1)
D backs car into A/C, causes explosion at hotel N since court only wants to deter 1 party

2. Two Ds and two Ps

Match one wrongdoer to each plaintiff to deter future bad behavior

See Wagon Mound cases (Privy Council 1961)

Case I: Welder pays for dock NL v oil spill Case II: Oil-spiller pays for ship N for oil spill

See House Fire Hypo

If A starts a fire and burns down the town, they only pay for 1 additional house since neighbors are quasi-wrongdoers for failing to take certain cost-justified precautions

3. Two Ds and one P

Assign liability to D least likely to be deterred by other statutes, rules, or behavior

See Pfalsgraf v Long Island R.R. Co (NY 1928 p377-85)

Railway authorizes employees to push people into car, push passenger carrying

fireworks, fireworks explode; NL for railway N for RR Co will not deter fireworks carrier RR Co is otherwise deterred: pushing people into car can cause direct harm to future passenger

See DiPonzio v Riordan (NY 1997, p361)

X leaves car running at as station, D fails to enforce policy re: running cars, P hit by car NL since want to deter person w/car, not the gas station Regulations are a good substitute for 2D:1P decisions if it is difficult to deter both Ds

See Ross v Hartman (D.C. Cir 1943, p182)

A left truck unlocked with keys in it, B jumped it and hit C; court can only deter A or B Govt regulation can fine A for keys while C sues B in tort; but then A can be sued for N per se so Legislature needs to limit As liability

B. Hines / Price distinction

1. Incremental risk analysis
Assign liability if Ds act increased the incremental risk of the harm that P suffered by 2X

See Hines
D skips Ps stop, lets her off in between stops, P walks back, is assaulted N since walking assault is more likely next to RR tracks alone than at home

See Central of Georgia Ry v Price (Ga. 1898 p362)

D skips Ps stop, lets her off at next stop, arranges for her to stay overnight; lamp catches fire NL since fire in hotel is less likely than at home

See Hospital Hypos

B hits A, doctor at hospital makes N mistake, A dies; B liable since hospital is a dangerous place B hits A, A goes to hospital, nurse murders A; NL since murder is not more likely in hospitals

Cf. Berry v Borough of Sugar Notch

P speeding down road, D negligently maintained tree, branch fell on P; no contributory N Speeding doesnt increase or decrease chance a branch will fall off tree and hit a driver Contr. N only fair if P who speeds and thereby avoids a falling branch can claim back money

C. Intervening wrongdoers
1. Incremental risk
Typical rule is no liability if an intervening wrongdoer

See Watson v Kentucky & Indiana Bridge & RR (Ky 1910 p369-70)
RR car derails and spills gas in town, purposeful arsonist flicks match and starts fire NL for RR since gasoline leakage doesnt increase risk of arson Court may also want witnesses to testify v arsonist and NL for RR will encourage this

See ConEd Blackout 1

N by power company leads to blackout > crime NL since shopkeepers could have taken better precautions

Assign liability to the wrongdoer whose N increased risk of harm happening by 2X

See Brauer v NY Central & HR R Co (NJ App 1918, p368-9)

RR crashes into wagon, bandits show up and steal goods N since RRs N was more likely than not the cause of theft (risk increased by 2X+)

See ConEd Blackout 2

N by power company leads to 2nd blackout and more crime; N for power company since shopkeepers already took precautions

2. Government preemption
Do not assign liability if the issue can be better handled by a regulatory agency

See ConEd Blackouts

N by power company for mismanaging grid, leads to spoiled meat and increase in crime N for spoiled meat but not crime since judge doesnt want to force ConEd to build backup system and raise electricity rates

D. Decision Chart
4. # of victims 5. # of wrongdoers 6. Can a victim be matched with each wrongdoer?
Yes: See Wagon Mound No: Can all wrongdoers be fully deterred?

YES: assign liability to wrongdoer whose N increased risk of harm, See Brauer No: assign liability to party who will not be deterred at all w/o liability, See Pfalsgraf

VII. Plaintiffs Behavior and Economic Losses A. Comparative Negligence

1. Contributory negligence
P does not recover if they are partially at fault

Some states followed > 0% contributory N Others required > 50% fault for no recovery
Even if P is contributorily negligent, D cannot refrain from action that D knows will save P

See Davies v Mann (Exch 1842)

Last clear chance doctrine makes D liable if could have saved P and didnt

2. Comparative negligence
It doesnt matter how liability is assigned as long as anyone who did not do their part of the cooperative solution pays

Requires a cooperative solution

IF A spends 10 AND B spends 15 no harm Better than A spends 100 OR B spends 100

Must make sure that at least one party will be liable

Doesnt matter what damages rule is used since parties will bargain to the proper solution

Fault and causation: the more precautions you failed to take, the more damages Causation if fault: the more you cause the injury, the more you pay Court allows jury or trial judge to compromise and spread damages around

B. Assumption of Risk
1. Express
Intelligent, well-informed people can sign a waiver if i) N will lead to damages for everybody who did not waive liability and ii) signer gets something extra for waiving their rights

See Manning v Brannon (Okla. App. 1997 p582-3)

P signed waiver, jumped 3 times, chutes failed Skydiving waiver is valid since i) company is generally deterred from making small errors and ii) liability would increase the cost of the activity BUT if no chute liability

See Anderson v Erie Ry Co (NY 1918, p583-4)

P bought reduced fare ticket that included liability waiver; waiver valid since got $ in exchange

But See Tunkl v Regents of the University of California (Cal 1963 p5846)
Blanket waiver of liability for malpractice signed by all patients is ineffective BUT would be ok if i) hospital let patients sign waivers in exchange for $ and didnt let doctors or nurses know who signed Legislature can create statutory waivers if it wants to protect a particular industry

See Skiing Waiver 2. Primary

No recovery if P was negligent chose to undertake activity knowing danger

See Rock Concert Hypo

P goes to loud rock concert; cannot collect for damage to hearing loss

See Baseball Hypo

P goes to baseball game, sits by 3rd base line and hit by errant ball; no recovery since common injury and fan WANTS to be by field

See Murphy v Steeplechase Amusement Co (NY 1929 590-92)

P saw others being thrown around on Ds ride, chose to get on; NL since clear from watching others that ride could cause injury No recovery for common injuries that P should clearly have expected

Primary assumption of the risk is like negative res ipsa loquitur

3. Secondary assumption of the risk

No recovery if both P and D are negligent and D is otherwise deterred

See Hennessey v Pyne (RI 1997 p600)

House next to golf course hit by 12 balls per day, one day golfer fails to yell fore and P is hit NL since next time neighbor will be alert and still get hurt (expected deterrence)

See Kennedy v Providence Hockey Club (RI 1977 p599-600)

P at hockey game, sits in row immediately behind where wall protects, is hit by a puck NL since court thinks height of wall was cost-justified THIS is a bad case of secondary assumption since D is not even negligent!

See Ice Skating Hypo

Parts of rink for little kids, pros, amateurs; pro section badly maintained, pro tells owner, continues skating and falls NL since owner deterred by danger of little kids being hurt by bad ice conditions Secondary assumption of the risk has essentially disappeared in states using comparative negligence

C. Economic Losses
1. Pure economic losses
No recovery for pure economic losses if i) no net social loss and ii) the wrongdoer is otherwise deterred

See Robins Dry Dock & Repair Co v Flint (S Ct 1927 p277-8)

D dropped propeller, no injury to boat-charter other than economic loss; NL since better to use contracts to apportion damages

See Moose-Jaw & Medicine Hat

Derailment causes $250K clean-up, $100K damage to business in Medicine Hat, $85K moves to Moose-Jaw; NL since small net social loss

See 532 Madison Avenue Gourmet Foods v Finlandia Center (NY 2001 p281-2)
N construction causes building to collapse and city to close off street, deli sues for lost $ NL since i) PoE that bricks will hit someone walking down the street and ii) no net social loss since other delis made $$

But See Carbone v Ursich (9th Cir 1953 p279)

Fishing nets fouled by N of another boat, leading to lost income; N for economic losses since no other source of deterrence re: nets

But See People Express Airlines v Consolidated Rail Corp (NJ 1985)
N gas spill at RR next to airport terminal, City forces evacuation of terminal N since leaked gas unlikely to cause an explosion and therefore no deterrence

2. Economic losses due to physical injury

Economic losses are recoverable if they are related to a physical harm

See Exam Review Q7

Es health harmed by Fs pollution, sells house for $100K loss to move away; E can sue F for economic loss since related to pollution source

VIII. Privity and Products Liability A. Privity

1. Limitation on liability
P must have a contractual relationship with D to sue on a breach of contract

See H.R. Moch v Rensselaer Water (NY 1928 p270-72)

Water company breached contract with city to provide water services; residents try to sue water company NL since residents are only in privy with city, not water company If no contractual relationship, P must demonstrate i) Ds intentional disregard of 3rd parties or ii) collusion

See Ultremares
Accounting firm hired by board of directors doesnt discover big fraud, shareholders cannot sue accountants for N since no privity IF conduct was criminal or gross N then liability, since this prevents collusion

See Glanzer
P goes to store to buy beans, store had a miscalibrated scale; P wants to sue scale certifier No privity, but problem is no other way to deter primary wrongdoer since i) might be collusion ii) store can get a new certifier instead of bargaining

2. Purposes of privity
Privity prevents wealth redistribution

See H.R. Moch v Rensselaer Water (NY 1928 p270-72)

Residents cannot sue water company since this will recover money largely for heavy water users (rich people) at the expense of higher rates overall

Privity focuses liability with the goal of encouraging bargaining

See Einhorn
Landlord hires locksmith, locksmith does a bad job, house is broken into Tenant cannot sue locksmith; instead landlord can sue or bargain with locksmith

3. Optimal problem solver approach

Assign liability for product failures to the single-best problem solver

See MacPherson v Buick Motor Co (NY 1916 p447-52)

D bought wheel from supplier, added to car which was sold to dealer who sold to P; P can sue D since they have most contractual avenues to solve the problem Optimal problem solver is liable even if non-N since they can bargain with all parties BUT doesnt immunize dealer from lawsuit! If no single best problem solver, use a comparative negligence approach to analyze untaken precautions

B. Strict Liability
1. Manufacturing defects
Seller of product that is unreasonably dangerous to user, consumer, or property is liable for physical harm if i) seller is in business of selling product and ii) product reaches consumer in condition in which sold

See Restatement 402A (p460-63)

Only applies to commercial sellers and mfg cos Product must cause harm to person or property No SL if user substantially modifies product

See Saloomey v Jeppesen (2d Cir 1983, p469-70)

D sold inaccurate navigational chart that contributed to plane crash; SL since want map-makers to be more cautious

But See Wikipedia Hypo

Wikipedia provides inaccurate map, P uses map and gets hurt; NL since Wikipedia is not commercial and cannot spread loss across buyers

But See Shopping Cart Hypo

A in shopping market, cart tips over; cart is not unreasonably dangerous since no mfg defect No strict liability for ideas and expressions

See Winter v G.P. Putnam & Sons (9th Cir 1991, p468-9)
D sold inaccurate mushroom field guide, Ps ate poisonous mushrooms; NL or else chill speech If no books, people would poison themselves even more, liability higher prices less books No strict liability for natural objects found in food

See Mexicali Rose v Superior Court (Cal 1992 p45-6)

P swallowed 1 bone in chicken enchilada; no SL since chicken bone is natural for chicken; SL only for foreign objects

2. Extent of liability
Everyone in the commercial chain is strictly liable to the user / consumer

See Welge v Planters Lifesavers Co (7th Cir 1994, p464-8)

Roommate bought peanut jar, removed label, jar shattered when P tried to put cap on; SL v K-Mart, Planters, and glass mfg co. If kind of accident that wont occur w/o defect and defect not introduced after sale, accident = evidence of defect

See Welge v Planters Lifesavers Co (7th Cir 1994, p464-8)

Peanut jar shattered when P put cap on, P was not unusually strong, so accident = evidence of mfg defect

A non-commercial seller is liable if consumers purchase from them due to their reputation for quality

See Nutting v Ford Motor (NY App Div 1992 p475)

P buys fleet car from HP, corp that uses cars and then resells them, car explodes when taken off lot SL since corp specializes in maintenance reputation so similar to commercial seller

But See Auctioneer Hypo

Farm auctioneer sells off farm equipment, equipment fails; NL since D is an intermediary, not a seller

Cf. Police Auctions

Police auctions would be SL except for statutory exemption to sell cars as-is

C. Design Defects
1. Negligence liability
If a better cost-justified design exists, then D is liable for using a worse design

See Dawson v Chrysler Corp (3d Cir 1980, p479-84)

Ps car slid off road, hit pole, wrapped around pole; P sued D arguing design defect, while D argued more rigid frame != cost-justified liability even though another jury might find rigid frame = defective design

2. Preemption
Meeting government design standards does not immunize seller from liability

See Dawson v Chrysler Corp (3d Cir 1980, p479-84)

P sued D for design defect in car, D argued car met govt standards; court held no shield

To be preemptive, a statute must explicitly deny recovery for Ps

Explicit preemption by statute If no explicit preemption, must analyze meaning of the statute itself
Courts are unwilling to assume presumption out of fear of i) mfg cos engaging in regulatory capture; ii) wrong standards; iii) destruction of market pressure

Preemption encourages interest groups to argue for rules that might not be socially optimal Standard might be over/under inclusive Creates incentives to lobby NOT innovate 3. Retroactivity
General rule is no retroactivity in design defects, but new products must use state of the art technology

See Bruce v Martin-Marietta Corp (10th Cir 1976 p486)

Plane built in 1952, crashes in 1970s, Ps claim should have used 1970s design standards NL since tech. was state of the art when sold BUT N if built to 1952 standards and sold in 1970 Retroactively applying state of the art encourages manufacturing cos to adopt standards sooner

See Landlord Glass Hypo

Landlord encouraged to replace glass with newer technology to prevent injuries OK for cost to run to consumer not producer

See Cigarette Hypo

Smokers argue cigarette cos should have anticipated health issues and addressed them ahead of government rules Encourages mfg cos to predict and implement safety innovations not defer them

D. Warnings
1. Failure to warn
Duty to disclose if UNI: i) uniquely situated to know the facts; ii) net social loss from non-disclosure; iii) incentives for innovation

See Termites Hypo

Seller must warn about termites in house to buyer since net social loss Net loss must increase if buyer is ignorant of facts

But See Water Pressure Hypo

Seller doesnt need to warn about low water pressure since this is only a wealth transfer

But See Consumer Reports Hypo

No requirement to disclose safety info since fear that this will chill 3rd parties Manufacturer is uniquely situated, so liability for failure to warn if i) net loss from non-disclosure and ii) no disincentive on innovation

Mfg co must be able to raise price or gain market share by disclosing safety info (quality argument) Heeding presumption that B will read warning, but NL if B admits to not reading it
Failure to warn can lead to over-disclosure and higher search costs

Over-disclosure likely for allergies, securities, other cases addressing small % of market or not a safety issue Unlikely for big safety issues since will scare Bs
No requirement to warn if the warning would i) increase costs substantially or ii) reduce consumer choices

See McMahon v Bunn-O-Matic (7th Cir 1998, p508-512)

P injured by hot coffee, argues failure to warn; NL since i) would cost $$ to make

coffee colder and ii) some people like hot coffee

2. Past purchasers
Manufacturer must warn past purchasers if it can still derive value from them, but does not have to pay for repairs

See American Tobacco Co v Grinnel (p493-8)

P smoked cigarettes, died, argued failure to warn re: addiction and cancer No idea whether anyone would have heeded warning when purchased cigarettes, but make a heeding presumption since no PoE Manufacturing company is not liable if it warns an intermediary

See Perez v Weyth Laboratories (NJ 1999, p507-508)

No liability for failure to warn Ps of danger re: prescription drug since D warned physicians who could notify patients

VII. Damages A. Compensatory Damages

1. Timeline of damages
Damages are calculated based on facts at the start of trial Damages are assessed once in most cases, although exceptions for divorce or antitrust

2. Opportunity cost
Damages for stay-at-home Ps are typically between the cost of a maid and potential lost wages

See Haddigan v Harkins (3d Cir 1970, p527)

Ps wife killed, P could recover damages = time spent on household chores * housekeeper

But See Opportunity Cost Discussion (CB p527-8)

Courts will not give opportunity cost since there might be unpleasant things about

a job that counterbalance the lost wages

3. Lost earnings
Lost earnings should include foregone promotions if statistical evidence is available

See Pescatore v Pan American World Airways (EDNY 1995)

P killed when Ds plane was blown up by terrorist bomb; P could recover for expected promotion Look to average career path + expert testimony Damage award must be reduced to present value of lost income stream

See OShea v Riverway Towing Co (7th Cir 1982 p531-2)

Discount earnings by real interest rate: nominal rate minus expected inflation Damages are typically not reduced by expected taxes, but some states allow a reduction

See IRS 104(a)(2) (p532)

Ps damages award is not taxable States argue if Ps recovery is not taxable, Ds payment should be reduced to reflect the taxes MAYBE underdeterrence, BUT maybe response to high jury verdicts

For professional people, courts are willing to award lost earnings for Ps on maternity leave

% of woman going back to work > PoE BUT this ignores subjective evidence re: attractiveness of work, so might not award 4. Interest
Courts uniformly award post-judgment interest between trial and appeal

Purpose is to prevent D from extending payment through a long appeals process

Common law rule was not to award prejudgment interest, but increasingly moving towards awarding it

Movement is 0%-8% of courts Often set by statute 5. Statutory rules

Some states set legislative caps on damages

These statutes survive Due Process claims

States prevent sale of claims, but allow borrowing against them

Non-recourse loan that P will pay back, where interest rate = equity right in claim greater than sale price by P 6. Contingency fees
Contingency fees of 30%-50% are ok

Over 50% not allowed since this is a sale of claims Not allowed in criminal law since fear that lawyer will be more unethical Not allowed for divorce for fear lawyer will avoid interests of children or family

7. Collateral source rule

Tortfeasor cannot take into account Ps insurance when setting damages

See Traditional Settlement Funds

Special masters followed collateral source rule for settlement funds

But See 9/11 Settlement Fund

Claimants settle and agree to waive lawsuit Special master agreed to allow higher recovery for higher wage earners, but reduced payout for life insurance

Insurance company can step into Ps shoes and subrogate

P gets all remaining damages after Ps insurance company collects reimbursement Lowers insurance premiums since no 2x-recovery Not included in life insurance contracts

B. American and British Rules

1. Different rules
Under American rule, each side pays their own costs, generally

Contingency fees allowed

Under British rule, loser pays both sides costs, generally

Costs may sometimes mean court costs Attorney fees = reasonable attorney fees and client pays the difference Contingency fees not allowed since would have to give up 8090% to compensate attorney for risk of losing and paying other sides fee 2. Effect of rules
If P has higher costs, British rule will benefit Ps who think they have a good case

P more likely to sue since can recover costs Cf. US statutes allowing reimbursement for successful SSA disability claims
British rule may discourage fishing expeditions since if it turns nothing up, P must reimburse D for costs

BUT British system encourages Ps to run up costs once they have invested

In cases where A < optimistic than B, settlement is more likely under the American rule

American rule: more risk for A British rule: less likely to settle since B wants to win and make A pay costs
Rule may not matter since A and B can bargain for the other rule

A and B can contract for preferred rule BUT contacting other party to bargain might be seen as a sign of weakness

C. No Fault Insurance
1. No fault rule
No fault insurance takes away the right to sue and gives $$$ based on a schedule of damages

Similar to workers compensation BUT states did not apply to the big accidents which are the big % of insurance payout $s People alleged injuries for every accident to get over no-fault $25K cap
No fault insurance is 1st party insurance since you buy coverage for yourself

Different from traditional 3rd party liability insurance Empirical evidence in Canada showed that 1st party insurance increases N driving 2. Uninsured motorist protection
Up to 33% of drivers do not have insurance in some states (CA, IL), so need protection

Worry is that persons in accidents are judgment-proof

Suggested solution is to add insurance to cost of gas or force purchases through a package/bundle

D. Punitive Damages
1. Gap filler between tort and criminal law
Punitive damages are common where D is a repeat wrongdoer or cannot be jailed

Look at willfulness, malice, wealth Associated with intent or recklessness

Naxal solis provides damages equal to the value of the property that caused the injury

2. Constitutional limitations
Due process provides a limitation to punitive damages in civil cases

See BMW v Gore

$4M punitive damages for $4K compensatory damages is too high

See Exxon-Valdez
Drunk captain crashed single hulled tanker, spills oil; jury finds $287M compensatory damages; COA adjusts $5B punitive 2.5B First case to use contingent valuations to determine existence of a species

3. Secret settlements
Secret settlements pre-trial by a portion of defendants will lead to a reduction in overall punitive damages

See Exxon-Valdez
Exxon settled with 7 seafood processors for $60M with agreement that they pay back any punitive damages they receive this resulted in refund of $750M; bad since sort of like buying claim

COA may have been ok since though overall award excessive

4. Good faith settlement rule for insurance

D can collect from insurer after the fact if insurer, in bad faith, prevented settlement in cases where expected value is near the settlement value

D wants to settle since expect to pay same amount if go to trial Insurance company wants to take risk since might win case and not have to pay

IX.

Nuisance

A. Nuisance In General
1. Trespass
Land-owner has the right to exclude others from entering

See Yard Hypo

A walks across Bs yard to get home; even though A is cost/benefit justified, act is intentional Property right forces bargaining between A and B

2. Nuisance
Land-owner may be able to prevent others from sending something across their property line

See Jost v Dairyland Power Cooperative (Wis 1970 p745-6)

Power plant emissions damage nearby farmers crops; N even though power plant is cost/benefit justified

But See Carpenter v Double R Cattle Company (ID 1985, p746-7)

Feedlot gives off noxious smells; NL since D shows social value of activity

3. Decision Process
First step is to determine whether Ds action is negligent

If N, D should take precautions or will pay P If not N, D will continue to pollute and accept damages as the price of the activity
Second step is to determine whether D will continue to produce the nuisance

If D continues activity, court will ratchet up penalty or apply punitive damages Repeat violations will turn liability rule property rule 4. Public nuisance
If the harmful activity has a wide enough reach, it becomes a public nuisance to be addressed by the legislature

See Adkins v Thomas Solvent Co (MI 1992, p755-6)

Ps alleged reduction in property value from fear of groundwater contamination even though no physical contamination; NL since negative publicity affects too many people

See Levmore Discussion

Remedy for public nuisance is to get the legislature to change the law

Most public nuisance issues are addressed by class action law, especially if all members of class had a similar injury

Allows privatization of the issue and the right to opt out of the action More difficult for land since damage to each parcel is unique 5. Common fund
To the extent that an actor benefits a group by getting an injunction or suing for $$, the actor might be able to collect a % from the group

See John P Dawson Article Also in trusts and estates, civil rights, anti-trust 6. Coase and bargaining
If B values X more than A, X will exist regardless of the legal rule

See Coase, Problem of Social Cost

Bargaining in a zero-transaction cost world means that the rule doesnt matter

7. Endowment effect
Victory in court increases the wealth of the winning party and makes bargaining more difficult

See Endowment Effect Handout

Offer-asking differential created if A wins in court since the legal rule makes A richer A values luxury goods more and doesnt want pollution/spoiled view/etc Offer-asking differential affects Hand formula since burden and loss are based on Ds wealth

See Endowment Effect Handout

Bigger impact if valuations are so far apart that no bargaining will occur Offer-asking price is closer for businesses since business i) are rational other than customers importing endowment effect and ii) businesses can tap outside liquidity to overcome differential

Endowment effect only makes the rule matter when the nuisance condition is first proposed or anticipated

See Endowment Effect Handout

Price paid for asset includes nuisance conditions Only when condition is first anticipated will prices change and Ps lose out

B. Coming to the Nuisance

1. General Rule
Courts are unsympathetic to those who come to the nuisance since they get a discount in their purchase price

See Rogers v Elliot (Mass 1888 p765-6)

Church present for 100 years, B moves next door, hates their sound; NL for church since church already disclosed sound by ringing bells

2. Double-recovery Rule
Court will not allow a coming to the nuisance defense if they very thing that makes D a nuisance also increases Ds property value

See Spur Industries v Del Webb Development (AZ 1972, p7823)

Feedlot in the middle of nowhere, developer builds houses closer and closer; no coming to the nuisance since housing is higher-value use Feedlot is nuisance due to development, but development increases land value for feedlot Damages should be pre-taking / nuisance

See 3rd Ave El (Cardozo)

NY took property to build an elevated line; unsure whether RR is built in optimal place, so might want post-taking value to internalize full cost BUT Cardozo says pre-taking to prevent double-recovery ($ from development + taking)

See Resumption Doctrine

Building a road through property is not a taking or else double recovery Resumption = govt reserves right to take back 15% of value, including right of way

C. Calabresi and Melamed Rules

1. Transaction costs v Assessment costs
Grant a liability rule (R2, R4) if high transaction costs prevent bargaining Grant a property rule (R1, R3) if high assessment costs make damages hard to calculate

2. Property rules
1: homeowner gets injunction v factory plus damages for past behavior, court allows for bargaining

Appropriate for recurring events No criminal sanction or other remedy available Hard to identify or catch wrongdoer
See Innkeeper rule See common carrier rule re: freight

Best rule for P since judge so confident the factory was bad that willing to assign injunction + $
1F: injunction but no damages for past behavior (forward-looking) 1P: partial injunction conditioned on some middle ground

E.g. factory must reduce pollution by x% People injured can still bring damage suits Mixes admin, liability, property rules Depends on certainty re: badness of wrongdoer
3: injunction for the factory allowing it to pollute

3. Liability rules
2N: homeowner gets compensated for past damages by showing factorys N 2SL: homeowner gets compensated for past damages upon showing of harm since factory is Rylands SL 2GAC: general average contribution pay more than 0 but less than total damages

Passengers self-insure, potential benefit or payout is based on selfassessment of cargos value Prevents passengers from getting on board boat to bribe captain
2E: give up unjust enrichment 2M: pay only for past injury and come back to court to assess new damages

Good if high assessment costs

2F: pay only for future injuries 2X: pay all money that homeowner could have extracted if court gave an injunction

Factory must pay out net profits

BUT moral hazard rush to move next to factory to claim their net profits
4: factory must stop operation, but homeowner must pay factory damages

Payment will often be low since the factory gets $$$ from the increase in property values 4. Option rules
5: R3 with the option to continue the status quo or take the precaution and collect homeowners claimed damages from the homeowner

Encourages homeowners not to bring false claims Factorys option is only effective if damages are large in relation to the value of the factory Effectively gives factory a subsidy to keep operating
6: R3 but factory must pay B the value of the factory

Discourages factory from over-stating the social value of the factory Unlike 2X, no moral hazard since factory will have an incentive not to overstate value of the factory Effectively taxes the factorys operations

D. Remedies
1. Impact of bargaining
R3 if the parties can clearly bargain with each other without going to court

See Amphitheaters v Portland Meadows (Or 1948, p766-7)

Racetrack and drive-in theater built in same place at same time (post-WWII growth in leisure activity) No nuisance since parties in same line of work and should have been able to bargain

If bargaining is possible but difficult, lower cost avoider is not dispositive

Cf. Poole v Lowell Dunn Co (Fla. App. 1991, p767-8)

Even though P is lower cost avoider, this is not reason to use R3 since court could award R1 and force D to buy out the injunction R1/R3 can overcome endowment effect since parties must bargain

See Sample Exam Q7

Court issues injunction to close factory to spur factory and workers to bargain with each other re: working conditions and pollution

2. Impact of legislative preemption

R3 if the local government has already approved uses of the same type as the alleged nuisance

See Fontainebleu Hotel Corp v Forty-Five Twenty-Five (Fla. App. 1959 p773-4)
Fontainebleau built hotel on beach, Eden Roc built next door, Fontainebleau built addition overshadowing Eden Roc pool No injunction since building must have had permit + zoning approval (defer to Legislature)

But See Rockenbach v Apostle (MI 1951 p753-5)

Funeral home gets permission from zoning board to open in residential neighborhood, neighbors sue for reduction in property values Injunction since fear that funeral home got improper spot-zoning exception

3. Impact of sensitive plaintiffs

R3 if i) P has an idiosyncratic requirement and ii) knew about that requirement before moving next to D

See Rogers v Elliot (Mass 1888 p765-6)

P moved next to church that regularly rang bell, argued nuisance since unduly sensitive

NL since i) P could more easily move and ii) unlikely to lose $ on sale of home

But See Exam Prep Q7

P moved next to factory, got sick, sold house for $100K less than purchased; N since P didnt know about health problem ahead of time and lost money on sale of home Eggshell rule only applies to calculation of damages, NOT finding of N

See Poole v Lowell Dunn Co (Fla. App. 1991 p767-8)

Family lived near quarry, blasting exacerbated marriage issues, family divorced; NL, but should not be based on whether hyper-sensitive

4. Impact of precautions
Use R1 if D could have easily taken precautions and failed to do so

See Whalen v Union Bag & Paper Co (NY 1913, p777-779)

Pulp mill upstream from someone who only had $100 damages; N(R1) since mill should have bargained ahead of time when it had the chance to build upstream or elsewhere Use R2 if D already took available precautions

But See Madison v Ducktown Sulphur, Copper & Iron (Tenn 1904, p776-7)
Small landowners near vast copper mines, smoke caused health problems, sued for R1; N(R2) since copper mine already spent $200K on precautions Use R2M if unclear whether new precautions will be available to D in the near future

See Boomer v Atlantic Cement Co (NY 1970, p780-81)

Huge cement factory near town spread dust and noise; homeowners sued for R1; N(R2M) with readjustment every 1.5 years since i) nervous about shutting down huge employer; ii) new filtering tech might be available in future Thing causing nuisance causes Ps homes to be worth more to cement company, so R2M means pay loss of value to P while R1 = 2x recovery

5. Eminent domain and zoning

Zoning statute disallowing alleged nuisance use is not a taking, so can be used to preempt private action

See Hyde Park Stables Hypo

Horses major industry in Hyde Park, as development begins residents win R1, legislature passes zoning rule preventing >4 horses / stable Not a taking since i) directed at whole industry; ii) stable benefits from increasing property values

See Nantucket Hypo

Development increases value of farms (sell for houses), but finally residents rezone farms for 18 construction (greenbelt); hold-out farmers lose all development value