TORTS
Northeastern University Hackney Outline Fall 1998

I.	Introduction to Tort Law	1
A.	Overview	1
1.	Intentional vs. Unintentional (Negligence/Strict Liability)	1
2.	Strict Liability vs Negligence	1
HAMMONTREE v. JENNER, 97 Cal.Rptr. 739 (1971)	1
3.	Fault-Based Liablilty vs. No-Fault Liability	3
WASCHECK v. DEPARTMENT OF MOTOR VEHICLES, 69 Cal.Rptr.2d 296 (1997)	3
4.	Goals	3
Franklin & Rabin, The Litigation Process, Torts Law 6th ed., 1996	3
5.	Legal Arguments	3
Hackney, J., Menu of Legal Arguments	3
6.	Insurance: Cost Spreading vs Injury Prevention	4
BIERMAN v. CITY OF NEW YORK, 302 N.Y.Supp. 2d 696 (1969)	4
BIERMAN v. CONSOLIDATED EDISON CO., 320 N.Y.Supp. 2d 331 (1970)	4
II.	Negligence	5
A.	Prima Facie Case of Negligence PFC	5
BROWN v. KENDALL, 6 Cush. (60 Mass.) 292 (1850)	5
Gregory, Tres. to Neg. to Abs. Liability, 37 Va.L.Rev. 359, 368 (1951)	5
B.	Standard of Care	5
1.	Duty of Care; Cardozo: Risk, Cost, Custom	5
ADAMS v. BULLOCK, 125 N.E. 93 (1919)	5
Hackney, J., Holding of Adams v. Bullock	6
2.	Social Status vs Natural Rights	6
LOSEE v. BUCHANAN, 51 N.Y. 476 (1873)	6
3.	Risk	6
BRAUN v. BUFFALO GEN. EL. CO., 200 N.Y. 484 (circ. 1905)	6
4.	Cardozo: Nature of Activity	6
GREENE v. SIBLEY, LINDSAY & CURR CO., 177 N.E. 416 (1931)	6
III.	Reasonable Care	6
A.	Reasonable Person	6
1.	Objective Rule; Blindness, Children, Insanity	6
Holmes, O.W., The Common Law, 108-110 (1881)	6
2.	Objective, Abstraction, Community Standards	7
Harper, James & Gray, The Law of Torts, 389-90, sec. 16.2 (2d ed. 1986)	7
3.	Ordinary Caution	7
California, BAJI 8th ed., 1994 sec. 3.10	7
4.	Intellect (Lesser Intellignece)	7
VAUGHAN v. MENLOVE, 132 Eng.Rep. 490 (1837)	7
5.	Stroke	7
ROBERTS v. RAMSBOTTOM, [1980] 1 All E.R. 7 (Q.B. 1979)	7
6.	Insanity	8
TURNER v. CALDWELL, 421 A.2d 876 (1980)	8
7.	Professional Standard	8
FREDERICKS v. CASTORA, 360 A.2d 696 (1976)	8
Restatement (Second) of Torts, sec. 298	8
8.	Jury Standard	8
Harper, James & Gray, The Law of Torts, sec. 16.3 (2d ed. 1986)	8
9.	Children "Same age" Standard	8
MASTLAND, INC. v. EVANS FURNITURE, INC., 498 N.W.2d 682 (Iowa 1993)	8
10.	Presumptions - Very young children	8
ELLIS v. D'ANGELO, 253 P.2d 675 (1953)	8
PRICE v. KITSAP TRANSIT, 886 P.2d 556 (1994)	9
11.	Presumptions	9
PINO v. SZUCH, 408 S.E.2d 55 (1991)	9
12.	Children - Adult Activities	9
DELLWO v. PEARSON, 107 N.W.2d 859 (1961)	9
GOSS v. ALLEN, 360 A.2d 388 (1976)	9
13.	Emergency Doctrine	9
CORDAS v. PEERLESS TRANSP. CO., 27 N.Y.S.2d 198 (1941)	9
RIVERA v. NEW YORK CITY TRANSIT AUTHORITY, 569 N.E.2d 432 (1991)	9
14.	Reasonable Man	9
Prosser, The Reasonable Man, Law of Torts (4th ed. 1971)	9
15.	Reasonable Woman-Child	10
HASSENEYER: MICH. CENT. R. CO. v. HASSENEYER, 12 N.W. 155 (1882)	10
16.	Reasonable Man vs Woman vs Person	10
Finley, Yale J. of L. and Feminism 41 (1989)	10
B.	Cost-Benefit Analysis C/B-A	11
1.	Learned Hand Formula B<P(L)	11
CARROLL TOWING: U.S. v. CARROLL TOWING CO., 159 F.2d 169 (1947)	11
KRAYENBUHL: CHICAGO, BURLINGTON & QUINCY R. CO. v. KRAYENBUHL, 91 n.w. 880 (1902)	11
Posner, A Theory of Negligence, 1 J.Legal Studies 29 (1972)	12
2.	Reasonable Person vs. C/B-A	12
MCCARTHY v. PHEASANT RUN, INC., 826 F.2d 1554 (7th Cir. 1987)	12
3.	Socially Beneficial Activity	13
BOLTON v. STONE, [1951] A.C. 850	13
4.	Rejection - Pinto	13
GRIMSHAW v. FORD MOTOR CO., 174 Cal.Rptr. 348 (1981)	13
5.	Market Deterrence Policy Analysis	13
Calabresi, The Cost of Accidents, 26-29,68-75 (1970)	13
6.	Cost Spreading Policy Analysis	14
Gregory, Trespass to Negligence to Absolute Liability, 37 Va.L.Rev. 359 (1951)	14
7.	Allocation vs. Distribution Policy Analysis	14
Hackney, J., Allocation vs Distribution	14
C.	Custom; Locality Rule	14
1.	Plaintiff Formulation	14
TRIMARCO v. KLEIN, 436 N.E.2d 502 (1982)	14
Morris, Custom and Negligence, 42 Colum.L.R. 1147	15
LEVINE v. RUSSELL BLAINE CO., 273 N.Y. 386,389	15
2.	Defendant Formulation	15
T.J. Hooper, 60 F.2d 737 (1932)	15
GARTHE v. RUPPERT, 264 N.Y. 290, 296	15
LA VALLEE v. VERMONT MOTOR INNS, INC., 569 A.2d 1073 (1989)	16
D.	Custom: Medical Malpractice	16
1.	General Formulation: Rule	16
ROBBINS v. FOOTER, 553 F.2d 123 (1977)	16
2.	General Formulation: Limitation	16
DI FRANCO v. KLEIN, 657 A.2d 145 (1995)	16
3.	Expert Defined	16
JONES v. O'YOUNG, 607 N.E.2d 224 (1992)	16
ROBBINS v. FOOTER, 553 F.2d 123 (1977)	17
4.	Expert Witness	17
SHEELEY v. MEMORIAL HOSPITAL, 710 A.2d 161 (1998)	17
5.	Problems	17
CONNORS v. UNIV. ASSOC. IN OB/GYN, INC., 4 F.3d 123 (1993)	17
6.	Disclosure to Patient; Informed Patient Consent	17
KORMAN v. MALLIN, 858 P.2d 1145 (1993)	17
7.	Probability	18
PAUSCHER v. IOWA METHODIST MED. CTR., 408 N.W.2d 355 (1987)	18
8.	Probability/Experimental Procedure	18
HENDERSON v. MILOBSKY, 595 F.2d 654 (1978)	18
9.	Patient Disregards Risk	18
TRUMAN v. THOMAS, 611 P.2d 902 (1980)	18
E.	Negligence Per Se NPS	18
Hackney, J., Negligence Per Se	18
2.	Basic Proposition	19
MARTIN v. HERZOG, 126 N.E. 814 (1920)	19
CLINKSCALES v. CARVER, 136 P.2d 777 (1943)	19
3.	Nexus; Statutory Purpose	19
Restatement 2d of Torts, sec. 286	19
PLATZ v. CITY OF COHOES, 89 N.Y. 219 (1882)	19
DE HAEN v. ROCKWOOD SPRINKLER CO., 179 N.E. 764 (1932)	19
RUSHINK v. GERSTHEIMER, 440 N.Y.S.2d 738 (1981)	20
GORRIS v. SCOTT, L.R. 9 Ex. 125 (1874)	20
4.	Legal Argument	20
Hackney, J., Legal Argument in Tedla	20
5.	Justification / Exception	20
TEDLA v. ELLMAN, 19 N.E.2d 987 (1939)	20
BASSEY v. MISTROUGH, 450 N.Y.S.2d 604 (1982)	21
BAUMAN v. CRAWFORD, 704 P.2d 1181 (1985)	21
CASEY v. RUSSELL, 188 Cal.Rptr. 18 (1982)	21
6.	Liscensed Professional	21
BROWN v. SHYNE, 151 N.E. 197 (1926)	21
7.	Legal Options	21
HERNANDEZ v. MARTIN CHEVROLET, INC., 649 N.E.2d 1215 (1995)	21
8.	Custom vs Statute	21
ROBINSON v. DISTRICT OF COLUMBIA, 580 A.2d 1255 (1990)	21
LANGER v. CAVINESS, 28 N.W.2d 421 (1947)	22
F.	Res Ipsa Loquitur RIL	22
1.	General Concept	22
BYRNE v. BOADLE, 159 Eng.Rep. 299 (1863)	22
BIERMAN v. CONSOLIDATED EDISON CO., 320 N.Y.Supp. 2d 331 (1970)	22
2.	Background	22
Hackney, J., Evidence and Proof in Civil Actions	22
Hackney, J., Res Ipsa Loquitur	22
3.	RIL PFC	22
Hackney, J., Evidentiary Effect of Proofs of Negligence	22
4.	Multiple Defendants / Unknown Instrument	22
YBARRA v. SPANGARD, 154 P.2d 687	22
5.	Rebuttal to Ybarra?	23
JUDSON v. GIANT POWDER CO., 107 Cal. 549 (1895)	23
6.	Limits to Ybarra; Hospital	23
BARRETT v. EMANUEL HOSPITAL, 669 P.2d 835; 675 P.2d 491 (1983)	23
7.	Limits to Ybarra; Hotel	23
FIREMAN'S FUND AMER. INS. CO. v. KNOBBE, 562 P.2d 825 (1977)	23
8.	Limits to Ybarra; Nursery	23
FOWLER v. SEATON, 394 P.2d 697 (1964)	23
HELTON v. FOREST PARK BAPTIST CHURCH, 589 S.W.2d 217 (1979)	23
IV.	Causation	23
A.	Causation-In-Fact CIF	23
1.	Negligence PFC	23
Hackney, J., Prima Facie Case of Negligence	23
2.	But-For Test; Conjecture	24
GRIMSTAD: N.Y. CTR. R.R. v. GRIMSTAD, 264 F.334 (1920)	24
3.	Basic Proof Issues	24
MITCHELL v. PEARSON ENTERPRISES, 697 P.2d 240 (1985)	24
WOLF v. KAUFMANN, 237 N.Y.S. 550 (1929)	24
HINMAN v. SOBOCIENSKI, 808 P.2d 820 (1991)	24
WILSON v. CIRCUS CIRCUS HOTELS, INC., 710 P.2d 77 (1985)	24
4.	Complex (Type II: Toxic Torts) Proof Issues	25
Hackney, J., Causation-In-Fact	25
STUBBS v. CITY OF ROCHESTER, 124 N.E. 137 (1919)	25
ALLEN v. U.S., 588 F.Supp 247 (1984)	25
5.	Resolution; Application	26
SUMMERS v. TICE, 199 P.2d 1 (1948)	26
YBARRA v. SPANGARD, 154 P.2d 687 (1944)	26
6.	Causal Uncertainty Categories	26
Hackney, J., Categories of Causal Uncertainty	26
B.	Causal Uncertainty	26
1.	Lost Opportunity	26
FALCON v. MEMORIAL HOSPITAL,	26
FENNEL v. SOUTHERN MARYLAND HOSPITAL CENTER, INC.,	26
2.	Lost Opportunity (Death)	26
KRAMER v. LEWISVILLE MEMORIAL HOSPITAL,	26
3.	Action alleging malpractice; burden of proof; Standard of Care	27
Michigan Compiled Laws Annotated sec. 600.2912a,	27
4.	No Lost Opportunity	27
WEYMERS v. KHERA,	27
5.	Enhanced Risk; Emotional Harm (Physical Injury)	27
MAURO v. RAYMARK INDUSTRIES, INC.,	27
6.	Enhanced Risk; Strict % basis	27
PETRIELLO v. KALMAN	27
7.	Enhanced Risk; Two disease approach	27
MARINARI v. ASBESTOS CORP.,	27
8.	Emotional Harm; Serious fear; Potter Test	28
POTTER v. FIRESTON TIRE AND RUBBER CO.,	28
9.	Medical Surveillance	28
THEER v. PHILIP CAREY CO.,	28
HANSEN v. MOUNTAIN FUEL SUPPLY CO.	28
10.	Expert Testimony	28
FRYE v. U.S.	28
DAUBERT v. MERRELL DOW PHARMACEUTICALS INC.,	28
11.	Joint and Several Liability (Type I: Multiple Defendants)	29
SUMMERS v. TICE, 199 P.2d 1 (1948)	29
12.	DES Cases (Type I: Multiple Defendants)	29
HYMOWITZ v. ELI LILLY & CO., 541 N.Y.S.2d 941 (1989)	29
BROWN v. SUPERIOR COURT (ABBOTT LABORATORIES), 751 P.2d 470 (1988)	30
13.	Market Share w/Asbestos (Type I: Multiple Defendants)	30
GOLDMAN v. JOHNS-MANVILLE SALES CORP. 514 N.E.2d 691 (1987)	30
14.	Market Share w/Vaccinations (Type I: Multiple Defendants)	30
SHACKIL v. LEDERLE LABORATORIES, 561 A.2d 511 (1989)	30
15.	Market Share w/Lead Paint (Type I: Multiple Defendants)	31
SANTIAGO v. SHERWIN WILLIAMS CO., 3 F.3d 546 (1993)	31
16.	Market Share w/Blood (Type I: Multiple Defendants)	31
SMITH v. CUTTER BIOLOGICAL, INC. 823 P.2d 717 (1991)	31
17.	Market Share w/Paint VOCs (Type I: Multiple Defendants)	31
SETLIFF v. E.I.DuPONT DE NEMOURS & CO., 38 Cal.Rptr.2d 763 (1995)	31
18.	Market Share w/Guns (Type I: Multiple Defendants)	31
HAMILTON v. ACCU-TEK, CV-95-0049 E.Dist. (New York Law Journal, May 3, 1996)	31
19.	Policy (Type I: Multiple Defendants)	31
Rabin, Robert L., Environmental Liability and the Tort System	31
Malone, Ruminations on Cause-In-Fact, 9 Standford Law Review 60 (1956)	32
C.	Proximate Cause	32
1.	Introduction	32
VENTRICELLI v. KINNEY SYSTEM RENT-A-CAR, 383 N.E.2d 1149 (1978)	32
2.	General Formulation	32
HARPSTER v. HETHERINGTON, 512 N.W. 2d 585 (1994)	32
BERRY v. SUGAR NOTCH BOROUGH, 43 A. 240 (1899)	32
3.	Direct Consequences	32
Polemis [1921] All.E.R. 40 (Ct.App.1921)	32
4.	Foreseeability View	32
WAGONMOUND: OVERSEAS TANKSHIP (UK) LTD. v. MORTS DOCK & ENGINEERING CO., LTD. [1961] A.C. 338	32
5.	Duty (Cardozo for Majority)	33
PALSGRAF v. LONG ISLAND RAILROAD CO., 162 N.E. 99 (1928)	33
6.	Duty (Andrews Dissent)	33
PALSGRAF v. LONG ISLAND RAILROAD CO., 162 N.E. 99 (1928)	33
7.	Negligence Per Se and Proximate Cause	34
LARRIMORE v. AMERICAN NATIONAL INSURANCE CO., 89 P.2d 340	34
8.	Rescue Fact Pattern	34
WAGNER v. INTERNATIONAL RAILWAY CO., 133 N.E. 437 (1921)	34
9.	Non-Emergency Fact Pattern	34
MOORE v. SHAH 458 N.Y.S.2d 33 (1982)	34
10.	Professional Rescuer Fact Pattern	34
MALTMAN v. SAUER, 530 P.2d 254 (1975)	34
11.	New York Fire Rule Fact Pattern	34
RYAN v. NEW YORK CENTRAL R. CO., 35 N.Y. 210 (1866)	34
12.	Criminal/Dangerous Conduct Fact Pattern	35
WEIRUM v. RKO GENERAL, INC., 539 P.2d 36	35
13.	Criminal/Dangerous Conduct (Third Parties)	35
OLIVIA N. v. NATIONAL BROADCASTING CO., 178 Cal.Rptr. 888 (1981)	35
HINES v. GARRETT, 108 S.E. 690 (1921)	35
14.	Suicide Fact Pattern	35
FULLER v. PREIS, 322 N.E.2d 263 (1974)	35
15.	Eggshell/Skull Rule Fact Pattern	36
Hackney, J., Eggshell Skull Rule or Thin Skull Rule	36
SMITH v. LEECH BRAIN & CO., [1962] 2 Q.B. 405	36
D.	Proximate Cause	36
1.	Kinsman Test	36
KINSMAN TRANSIT CO., 338 F.2d 708 (1964)	36
2.	Causation Menu	36
Hackney, J., Causation Analysis Steps	36
V.	Duty	36
A.	Introduction	36
1.	Negligence PFC	36
Hackney, J., Prima Facie Case of Negligence	36
2.	General Conception	37
HEAVEN v. PENDER, 11 Q.B.D. 503 (1883)	37
3.	Privity Doctrine	37
MAC PHERSON v. BUICK MOTOR CO., 111 N.E. 1050 (1916)	37
4.	Rescue Duty in General?	37
YANIA v. BIGAN, 155 A.2d 343 (1959)	37
5.	Rescue Duty in Medicine?	37
HURLEY v. EDDINGFIELD, 59 N.E. 1055 (1901)	37
CHILDS v. WEIS, 440 S.W.2d 104 (1969)	37
Hackney, J., Emergency Medical Treatment Act and "Patient-Dumping"	38
6.	Relationship (Social Guest)	38
HARPER v. HERMAN, 499 N.W.2d 472 (1993)	38
7.	Relationship (Social Co-Adventurer)	38
FARWELL v. KEATON, 240 N.W.2d 217 (1976)	38
RONALD M. v. WHITE (1980)	38
8.	Statutory Reform (Good Samaritan Act)	39
HARDINGHAM v. UNITED COUNSELLING SERVICE OF BENNINGTON, 667 A.2d 289 (1995)	39
Vermont Good Samaritan Act, Vt.Stat.Ann., tit. 12, sec. 519 (1973)	39
9.	Non-Negligent Injury	39
MALDONADO v. SOUTHERN PACIFIC TRANSPORT CO., 629 P.2d 1001 (1981)	39
10.	Non-Negligent Creation of Risk	39
SIMONSEN v. THORIN, 234 N.W. 628 (1931)	39
MENU v. MINOR 745 P.2d 680 (1987)	39
TRESEMER v. BARKE, 150 Cal.Rptr. 384 (1978)	39
11.	Conclusion	40
RENSSELAER: H.R. MOCH CO. v. RENSSELAER WATER CO. 159 N.E. 896 (1928)	40
B.	Special/Government Rescue	40
1.	State Police (General Rule)	40
RISS v. CITY OF NEW YORK, 240 N.E.2d 860 (1968)	40
2.	State Police (Exception)	41
SCHUSTER v. CITY OF NEW YORK, 5 N.Y.2d 75	41
SORICHETTI v. CITY OF NEW YORK, 482 N.E.2d 70 (1985)	41
FLORENCE v. GOLDBERG 375 N.E.2d 763 (1978)	41
3.	State Police (Exception) CUFFY TEST	41
CUFFY v. CITY OF NEW YORK, 505 N.E.2d 937 (1987)	41
DAVIDSON v. CITY OF WESTMINISTER, 649 P.2d 894 (1982)	42
4.	Public Transportation (General Rule)	42
WEINER v. METROPOLITAN TRANSPORTATION AUTHORITY, 433 N.E.2d 124 (1982)	42
CROSLAND v. NEW YORK CITY TRANSIT AUTHORITY, 498 N.E.2d 143 (1986)	42
CLINGER v. NEW YORK CITY TRANSIT AUTHORITY, 650 N.E.2d 855 (1995)	42
LOPEZ v. SOUTHERN CALIFORNIA RAPID TRANSIT DISTRICT, 710 P.2d 907 (1985)	42
5.	911 Call	43
DE LONG v. COUNTY OF ERIE, 457 N.E.2d 717 (1983)	43
MERCED v. CITY OF NEW YORK, 551 N.E.2d 589 (1990)	43
KIRCHER v. CITY OF JAMESTOWN, 543 N.E.2d 443 (1989)	43
6.	School	43
HOYEM v. MANHATTAN BEACH CITY SCHOOL, 585 P.2d 851 (1978)	43
PRATT v. ROBINSON, 349 N.E.2d 849 (1976)	43
MIRAND v. CITY OF NEW YORK, 637 N.E.2d 263 (1994)	43
C.	Federal Law of Rescue	44
1.	Police; Civil Rights 42 USC sec. 1983	44
THURMAN v. CITY OF TORRINGTON, 595 F.Supp 1521 (1984)	44
2.	Social Services	44
DE SHANEY v. WINNEBAGO COUNTY DEPARTMENT OF SOCIAL SERIVICES, 109 S. Ct. 998 (1989)	44
D.	Premises Liability	45
1.	General Condition: Trespassers; Licensees; Invitees	45
Hackney, J., Premises Liability (I)	45
2.	General Condition: Parties outside the land	45
Hackney, J., Premises Liability (II)	45
3.	General Condition (Traditional)	46
CARTER v. KINNEY (1995)	46
4.	General Condition (Modern)	46
ROWLAND v. CHRISTIAN (1968)	46
5.	Activity	46
BRITT v. ALLEN COUNTY COMMUNITY JUNIOR COLLEGE (1982)	46
BOWERS v. OTTENAD (1986)	46
6.	Child Trespassers	46
HOLLAND v. BALTIMORE & O.R. CO. (1981)	46
7.	Minority: Attractive Nuisance Doctrine	46
UNITED ZINC & CHEMICAL CO. v. BRITT (1922)	46
8.	Landlord and Tenant (General)	47
SARGENT v. ROSS (1973)	47
PUTNAM v. STOUT	47
9.	Crime	47
KLINE v. 1500 MASSACHUSETTS AVENUE APARTMENT CORP. 439 F.2d 477 (1970)	47
10.	Ice and Snow	47
SULLIVAN v. TOWN OF BROOKLINE (1994)	47
GAMERE v. 236 COMMONWEALTH AVENUE CONDOMINIUM ASS'N (1985)	47
VI.	Legal Injury	47
A.	Emotional Harm	47
1.	General (Touching)	47
MITCHELL v. ROCHESTER RY CO.	47
2.	Zone of Danger (ZOD); HIV Exposure	48
K.A.C. v. BENSON	48
BROZOSKA v. OLSON	48
HEINER v. MORETUZZO	48
SCHULMAN v. PRUDENTIAL INSURANCE	48
3.	Impending Death	48
CERRITOS: In Re Air Crash Disaster Near Cerritos, 973 F.2d 1490 (1992)	48
SHATKIN v. McDONNELL DOUGLAS CORP.	48
QUILL v. TRANS WORLD AIRLINES	48
4.	Solely Emotional	48
METRO NORTH COMMUTER v. BUCKLEY (1997)	48
GAMMON v. OSTEOPATHIC HOSPITAL OF MAINE, INC.	48
5.	Severe Distress	49
CHIZMAR v. MACKIE	49
RODRIGUES v. STATE	49
SULLIVAN v. BOSTON GAS CO.	49
Finley, Lucinda M., A Break in the Silence	49
B.	Indirect Infliction of Emotional Distress	49
1.	Direct vs. Indirect	49
CAREY v. LOVETT / BURGESS v. SUPERIOR COURT	49
HUGGINS v. LONGS DRUG STORES	49
2.	Zone of Danger	50
JOHNSON v. JAMAICA HOSP.	50
JACOBS v. HORTON MEMORIAL HOSP.	50
TOBIN v. GROSSMAN / BOVSUN v. SANPERI	50
3.	Majority	50
DILLON v. TWIN STATE GAS	50
PORTEE v. JAFFEE	50
THING v. LA CHUSA	50
4.	Proximity & Closeness	51
SCHERR v. LAS VEGAS HILTON	51
FERRITER v. DANIEL O'CONNELL'S SONS, INC.	51
STOCKDALE v. BIRD & SONS, INC.	51
CAMERON v. PEPIN	51
5.	Serious Injury (Direct Victim of Tort)	51
BARNHILL v. DAVIS	51
BARNES v. GEIGER	51
6.	Serious Injury (Emotional Injury)	51
SELL v. MARY LANNING MEMORIAL HOSP.	51
7.	Relationship	51
ELDEN v. SHELDON	51
DUNPHY v. GREGOR	52
8.	Relationship - Hawaii Standard	52
LEONG v. TAKASAKI	52
9.	Forseeability / Study Guide	52
Hawaii	52
VII.	Negligence: Affirmative Defenses	53
A.	Contributory Negligence	53
1.	PFC	53
2.	Exceptions - Rescuer	53
3.	Exceptions - Mental Illness	53
COWAN v. DOERING	53
4.	Exceptions - Statutes	53
5.	Exceptions - Recklessness	54
6.	Exceptions - Last Clear Chance	54
7.	Exceptions - Refusal to Impute	54
8.	Exceptions - Jury	54
B.	Comparative	54
1.	Pure	54
2.	Modified	54
3.	Implementation	55
Uniform Comparative Fault Act, 12 ULA 33 (1981)	55
C.	Assumption of Risk	55
1.	Definition - Express/Implied	55
2.	Express - Activity	55
DALURY v. S-K-I, LTD. (1995)	55
BARNES v. NEW HAMPSHIRE KARTING ASS'N, INC. (1986)	55
OKURA v. UNITED STATES CYCLING FEDERATION (1986)	56
3.	Express - Drafting	56
KRAZEK v. MOUNTAIN RIVER TOURS, INC. (1989)	56
KISSICK v. SCHMIERER (1991)	56
JOHNSON v. PARAPLANE CORP. (1995)	56
4.	Express - Intermediate Agreement	56
5.	Implied - Dangerous Activity	56
MURPHY v. STEEPLECHASE AMUSEMENT CO. (1929)	56
6.	Implied - Athlete	56
KNIGHT v. JEWETT (1992)	56
LESTINA v. WEST BEND MUT.INS.CO. (1993)	56
CRAWN v. CAMPO (1994)	56
FREEMAN v. HALE (1994)	57
CONNELLY v. MAMMOTH MOUNTAIN SKI AREA (1995)	57
TURCOTTE v. FELL (1986)	57
7.	Implied - Baseball Spectator	57
DAVIDOFF v. METROPOLITAN BASEBALL CLUB (1984)	57
NEINSTEIN v. LOS ANGELES DODGERS, INC. (1986)	57
Legislation	57
8.	Implied - Hockey Spectator	57
ROSA v. COUNTY OF NASSAU (1989)	57
THURMAN v. ICE PALACE (1939)	57
9.	Comparative Negligence	57
GONZALEZ v. GARCIA (1977)	57
Posner, A Theory of Negligence, 1 J.Legal Studies 29, 45 (1972)	57
VIII.	Intentional Torts	57
A.	Battery	57
1.	Battery PFC	57
Hackney, J., Prima Facie Case of Battery	57
2.	Assault; Battery; Intent	58
Hackney, J., Intent in the Law of Torts	58
VOSBERG v. PUTNEY	58
PICARD v. BARRY PONTIAC-BUICK, INC.	58
FISHER v. CARROUSEL MOTOR HOTEL, INC.	58
ALCORN v. MITCHELL	58
B.	Affirmative Defenses	59
1.	Consent; Medical Treatment	59
KENNEDY v. PARROTT	59
O'BRIEN v. CUNARD STEAMSHIP CO.	59
MOHR v. WILLIAMS	59
LLOYD v. KULL	59
2.	Consent; Sex	59
BARBARA A. v. JOHN G.	59
3.	Self-Defense; Limitation Battered Wife Syndrome	59
KELLY: STATE OF NEW JERSEY v. KELLY; Raymond; Goetz	59
C.	Intentional Infliction of Emotional Distress IIED	60
1.	Abusive Speech	60
AGIS v. HOWARD JOHNSON CO. (1976)	60
HARRIS v. JONES (1977)	60
WOMACK v. ELDRIDGE (1974)	60
2.	Racial Insults	61
WIGGS v. COURSHON (1973)	61
IRVING v. MARSH (1977)	61
3.	Sexual Orientation	61
LOGAN v. SEARS, ROEBUCK & CO. (1985)	61
Finley, Lucinda M., A Break in the Silence	61
4.	Public Figure	61
HUSTLER MAGAZINE, INC. v. FALWELL	61
ESPOSITO-HILDER v. SFX BROADCASTING INC. (1997)	61
IX.	Affirmative Defenses	61
A.	Immunities	61
1.	Governmental or Sovereign Immunity	61
Federal Torts Claim Act	61
X.	Traditional Strict Liability	63
A.	Ultrahazardous / Abnormally Dangerous Activities (ADA)	63
1.	Rylands Doctrine	63
FLETCHER v. RYLANDS (1866)	63
2.	American Nation Building Era	64
LOSEE v. BUCHANAN	64
TURNER v. BIG LAKE OIL CO.	64
SULLIVAN v. DUNHAM	64
3.	America Economic Limitations	64
CITIES SERVICES CO. v. STATE OF FLORIDA	64
VENTRON: STATE DEPT. OF ENVIRONMENTAL PROTECTION v. VENTRON CORP.	64
4.	Restatement 2d sec. 520	64
INDIANA HARBOR BELT R. CO. v. AMERICAN CYANAMID CO.	64
5.	Reject Restatement 2d sec. 520	65
YUKON EQUIPMENT, INC. v. FIREMAN'S FUND INS. CO.	65
XI.	Tresspass and Nuisance	65
A.	Tresspass	65
1.	Intentional	65
Hackney, J., Intent in the Law of Torts	65
2.	Intentional Trespass PFC	66
Hackney, J., Prima Facie Case of Intentional Trespass to Land	66
3.	Unintentional	66
Tresspass sec. 158; sec. 165	66
4.	Substance vs. Form	66
MARTIN v. REYNOLDS METALS CO. (1959)	66
5.	Limits	66
SHACK: STATE OF NEW JERSEY v. SHACK	66
B.	Nuisance	66
1.	Public vs. Private	66
Public Nuisance; Private Nuisance; Restatement 2d	66
2.	Private (Reasonable)	67
JOST v. DAIRYLAND POWER CO-OP	67
3.	Private (Personal Sensitivities)	67
ROGERS v. ELLIOT (1888)	67
4.	Private (Injuctive Bargaining)	68
BOOMER v. ATLANTIC CEMENT CO.	68
5.	Private (Zoning)	68
LITTLE JOSEPH REALTY, INC. v. TOWN OF BABYLON	68
6.	Defenses (Contributory Negligence / Coming to Nuisance)	68
LE ROY FIBRE CO. v. CHICAGO, MILWAUKEE & ST. PAUL RY. (1914)	68
7.	Law & Economics (Liability vs. Property)	68
SPUR INDUSTRIES, INC. v. DEL E. WEBB DEVELOPMENT CO.	68
8.	Law & Economics (Non-Reciprocal Risk)	68
FLETCHER v. RYLANDS	68
9.	Law & Economics (Reciprocal Cost)	68
Hackney, J., Coase Theorem	68
10.	Public Policy (Environmental Recision	68
XII.	Strict Product Liability SPL	68
A.	Establishment of Doctrine	68
ESCOLA v. COCA COLA BOTTLING CO. OF FRESNO	68
HENNINGSEN v. BLOOMFIELD MOTORS, INC.	69
GREENMAN v. YUBA POWER PRODUCTS, INC. (CA.)	69
VANDERMARK v. FORD MOTOR CO. (CA.)	69
2.	SPL PFC	69
Hackney, J., PFC Strict Products Liability Basic Framework	69
B.	Proper Plaintiffs/Defendants	69
1.	Retailers, Sellers, Dealers	69
VANDERMARK v. FORD MOTOR CO. (CA. 1964)	69
2.	Bystanders	69
ELMORE v. AMERICAN MOTORS CORP. (CA, 1969)	69
3.	Lessors and Bailors	70
PRICE v. SHELL OIL (CA. 1970)	70
STILES v. BATAVIA ATOMIC HORSESHOES, INC.	70
4.	Used Goods	70
TILLMAN v. VANCE EQUIPMENT CO. (OR. 1979)	70
5.	Landlords	70
BECKER v. IRM CORP.	70
PETERSON v. SUPERIOR COURT (PARIBUS)	70
6.	Financing Agencies	70
NATH v. NATIONAL EQUIPEMENT LEASING CORP. (PA, 1981)	70
7.	Franchisors	70
KOSTERS v. SEVEN-UP CO. (1979)	70
8.	Business Successors	70
RAY v. ALAD CORP.	70
GUZMAN v. MRM/ELGIN	71
9.	Contractor	71
MICHALCO v. COOKE COLOR AND CHEMICAL CORP.	71
BOYLE v. UNITED TECHNOLOGIES CORP.	71
C.	Restatement View	71
D.	Defect	71
1.	Manufacturer	71
WELGE v. PLANTERS LIFESAVERS CO.	71
PRICE v. SHELL OIL	72
2.	Design (Rejection of unreasonably dangerous)	72
CRONIN v. J.E.B. OLSON CORP.	72
3.	Design (Two-prong test)	72
BARKER v. LULL ENGINEERING CO.	72
4.	Limits	72
SOULE v. GENERAL MOTORS CORP.	72
CAMPBELL v. GENERAL MOTORS CORP.	73
MORTON v. OWENS CORNING FIBERGLAS CORP.	73
BRESNAHAN v. CHRYSLER CORP.	73
5.	Limits - Bystander	73
EWEN v. MC LEAN TRUCKING CO.	73
Restatement 3d	73
6.	Manufacturer	73
DANIELS v. GNB INC.	73
7.	Open & Obvious	73
CAMACHO v. HONDA (CO. 1987)	73
8.	Product Comparison	74
DYSON	74
DRIESENSTOK v. VOLKSWAGEN	74
BITNER	74
9.	Product Alteration -  Minority	74
JONES	74
10.	Product Alteration -  Majority	74
PIPER & SPURGEON	74
11.	Product Alteration -  Statutes	74
LA PLANTE	74
12.	Uniformity	74
DAWSON v. CHRYSLER CORP. (1980)	74
DENNY	75
13.	Uniformity - Reform	75
E.	Warnings	75
1.	Introduction  1. Comment; 2. Definition	75
2.	Risk Reduction - Jury Question	75
HAHN	75
3.	Risk Reduction -  Matter of Law	75
MACKOWICK	75
4.	Risk Reduction - Contents of Warning	75
PITTMAN	75
JOHNSON	75
5.	Risk Reduction - Contents (Information Limits)	75
COTTON	75
6.	Risk Reduction - Addressee	76
7.	Risk Reduction - Misuse	76
ELLSWORTH & LUGO	76
VENEZIA v. MILLER	76
F.	Warnings & Defenses	76
1.	Intrinsic Risk - General Formulation	76
BROWN v. FORMAN	76
HON v. STROH	76
EMERY	76
2.	Intrinsic Risk - Prescription Drugs	76
BROWN v. SUPERIOR COURT (DES) & Childhood Vaccination Act	76
3.	Intrinsic Risk - State of the Art	77
BESHEDA v. JOHNS-MANVILLE (NJ)	77
FELDMAN (NJ)	77
ANDERSON (CA)	77
CARLIN (CA)	77
G.	Defenses	77

I.	Introduction to Tort Law
A.	Overview
1.	Intentional vs. Unintentional (Negligence/Strict Liability)
Unintentional Torts i.e. Negligence or Strict Liability; Intentional Torts i.e. Assault & Battery; Compensation System
			Outline Section 01.A.00 98.09.08  pp. 7,12.SU

	Notes:	A. TORTS: Wrongful or unreasonable acts (or omissions) that cause harm to another person in some way; whether physical or financial.
		 INTENTIONAL vs. UNINTENTIONAL TORTS:
		Unintentional Torts include negligence and strict liability
		Distinguishing Characteristics: wrongs against individuals; no prior relationship necessary; most times no prior relationship.
		FACTS: Contracts can establish prior agreements. Tort law regulates and governs how we can act upon each other and the consequences of acting upon each other.
		Torts answers the question: Who bears the burden of the losses associated with the action/actor? i.e. There is a car accident and Frost hits Hammontree who looses $5,000. Who pays?
		Option # 1 Actor/Wrongdoer Pays - Have Frost pay.
		Option # 2 Victim Pays - If Frost is not negligent, then Hammontree pays.
		Option # 3 Remote Actor - Manufacturer of Frost’s car pays.
		Option # 4 Social Security - Government pays.
		MAIN QUESTION: How will losses be allocated? It could be a closed system, i.e. private law system - losses remain where and with whom they fall; or alternatively it could be a social insurance system - where everyone is compensated all the time. No liability is an untenable option because it conflicts with the interest of injury prevention and fairness.  A social insurance system is too expensive.  Thus Tort Law is the choice to help us fashion a system of determining allocation of losses in cases of unintentional harm.
		
		B.  TWO CATEGORIES OF UNINTENTIONAL TORTS: NEGLIGENCE AND STRICT LIABILITY (ultrahazardous products)
		How court doctrinally places case will determine how we think about the case.
		1. Fundamental issue in torts is whether to put a case in the Negligence box or the Strict Liability box.
		2. As to this issue, there have been big shifts historically as seen in HAMMONTREE and BIERMAN.
		MAIN GOALS OF TORT LAW:
		1. Compensation for harm/injury
		2. Preventing future harms of greater numbers and/or severity.
		3. Redistribution
		4. Dislocation
		5. Administrative Costs

2.	Strict Liability vs Negligence
	HAMMONTREE v. JENNER, 97 Cal.Rptr. 739 (1971)
Plaintiff sues Defendant when Defendant has an epileptic seizure and crashes into Plaintiff bike shop
			Outline Section 01.A.01 98.09.08  pp. 3.CB

	Facts:	Defendant became unconscious during epileptic seizure and crashed through wall of Plaintiff’s bike shop.  Defendant did not recall accident; had history of epilepsy but no seizure since 12 years; obeyed all doctor’s instructions, took medication, and was allowed to drive.
	Issues:	Is Defendant negligent in causing auto accident? Can strict liability be imposed upon a driver who causes injury when s/he is suddenly struck unconshious and loses control of vehicle?
	Rule:	1. Loss from accident must lie where it falls even if instrument of injury is person;
		2. Unless injury is foreseeable, injurer should not be held liable;
		3. No insurance to provide compensation for accidents, therefore state is not responsible, and individuals should pick up tab;
		4. Strict liability can not be imposed upon a driver when sudden illness renders automobile driver unconscious. Instead, courts look at possible negligence.
	Holding:	Defendant not negligent.  He used reasonable care to control seizures.
	Rationale:	STRICT LIABLILITY IS FOR MANUFACTURERS: Mfgs. can spread cost of preventing accidents. They are in the business of distributing goods public and are part of over-all producing and marketing enterprise that should bear the cost of injuries from defective parts. To impose Strict Liability on a driver without proper terms would cause chaos, let legislature do it if they wish.  You basically can not impose strict liability on a person because s/he has no ability to spread losses the way a manufacture can.  Manufacturers are engaged in profitable business and should therefore bear risk.
	Policy:	STRICT LIABLITY IS NOT FOR PERSONS BUT MANUFACTURERS: Courts want to protect drivers from strict liability box.  They do not want to make grand-sweeping  changes.  That would open the floodgates to litigation.
		Legislature can draw the line. Besides, if possibility of insurance would solve problem, it would also contribute to more confusion and would spread around argument. Nothing would get resolved and it would be tremendous societal effort.
		JUSTICE HOLMES: The public profits from action vs. inaction. Action cannot be avoided and tends to do good for the public. State interference is an evil, where it is not shown to be good. If actor's intentions are not good, he/she should pay. If he/she had no choice, then there is no sense in making them liable.
		Solution: If not foreseeable, then victim suffers.  Otherwise we discougage actors from acting for the benefit of all. Private insurance is O.K., but we do not need more beaurocracy or inefficiency.
		JUSTICE POSNER:
		1. Measuring damages against the cost to Defendant is a way of measuring the overall costs of accidents;
		2. When Defendant is found  negligent, there are overtones of moral disapproval;
		3. Cost Benefit Analysis - When cost of accident is greater than cost of preventing accident, there is occasion to condemn D for failure to take precaution.
	Notes:	Negligence Approach vs. Strict Liability:
		POSNER thinks that changes in victims activity leve is encouraged by negligence but discouraged by SL.  Strict liability encourages activity level changes by potential actors/injurers (because of the affimative defenses) but discourages activity level changes by potential victims.  Negligence encourages activty level changes by potential victims but discourages them by potential injurers.
		Stict liability works when changing of activity level by potential injurers appears to be the most effective way of accident prevention.
		Negligence works if Activity level changes by the vitims are most efficent method of accident prevention.
		The difference in trial (transaction costs) is that strict liability is simpler and has lower costs than the more costly and complex Negligence scheme.
		If accident rates drop under strict liability regime then SL is OK.
		If accident rates will not drop under strict liability regime then Negligence is preferred mechanism because SL claims would rise.
		Tort system a costly method of insurance

3.	Fault-Based Liablilty vs. No-Fault Liability
	WASCHECK v. DEPARTMENT OF MOTOR VEHICLES, 69 Cal.Rptr.2d 296 (1997)
Plaintiff struck by 96 year old driver w/ cataracts. Defendant DMV charged for passing driver on test
			Outline Section 01.A.02 98.09.08  pp. 379,638.SU

4.	Goals
	Franklin & Rabin, The Litigation Process, Torts Law 6th ed., 1996
1.Procedure; 2.Damages; 3.Attorneys & Fees; 4.Plaintiffs; 5.Defendants; 6.The Courts
			Outline Section 01.A.03 98.09.08  pp. 9.CB

5.	Legal Arguments
	Hackney, J., Menu of Legal Arguments
			Outline Section 01.A.05 98.09.08  pp. 7,2.SU

	Notes:	A. DETERANCE ARGUMENT:
		1. Tort Law should create a structure of incentives that dters unsafe/antisocial conduct and/or encourages safe and socially useful behaviour.
		2. Counter argument: over-deterance or proposed rule would not have any deterrent effect.
		B. COMPENSATION ARGUMENT:
		1. Not only is compensation the right thing, but it also has a utilitarian purpose. i.e. covering injured workers medical care will insure a prompt return to work and therefore increase productivity.
		2. Counterargument: Denies enhancement of social welfare, or claims defandant's rights are violated or that the process is inefficient.
		C. COST ALLOCATION: Tort Law should seek an appropriate assignment of the cost of inevitable accidents.
		 1. Notes on Fractioning: Spread losses as widely as possible (driving force behind products liablity because companies can distrbute loss to consumer).
		2. Notes on distribution: Tort Law should redistribute wealth.  Actors better off than victims should bear cost as they are able to absorb the loss.
		3. Economic efficiency: A certain rule is required to achieve the optimal level of safety at the cheapest cost.  Proponents argue that under certain institutional circumstances, the market will achieve this goal provided that Market Prices reflect true cost.
		   a. Liberal/Progressive view: Calabresi's market deterence.
		   b. Conservative View: Posner
		D. MORAL ARGUMENTS:
		1. Usually stated at a high level of generality, little attention to context.  Often come in mutually exclusive pairs.  As between tow innocents, on who caused harm should pay vs. Holmes "liability without fault offends the sense of justice."
		2. Other examples: Altruism vs. Self Reliance; Communal Values vs. Individual Liberties, Substance vs. Legal Formalities (Procedure).
		E. RIGHTS ARGUMENTS:
		1. Also come in opposed pairs at a high level of genrality, i.e. right to bodily security vs. right to freedom of action.
		2. No legal calculation for rights arguments, moral judgment required.
		F. SEPARARTION OF POWERS: (democratic accountability)
		Central assumption is that the legislature, courts, administrative agencies etc. all have different roles in the consitutional framework and they should not step on each others toes.
		 Judicial Restraint, etc. based on notion that the legislature is a truer representative of the people and the courts should defer to legislature on major controversies of social policy.
		G. INSTITUTIONAL COMPETENCY: (technical capabilities)
		1. Sounds like separation of powers but isn't because it is more focused on the ability of a governmental entity to make various decisions to make the appropriate decision. i.e. legislature might be better equipped to make an informed decision because they can hold hearings, call in expers, compromise, draft codes etc. whereas courts have limited access to data and information, cna't act comprehensively - can act only on the cases before them, can't engineer compromises.
		2. Counter argument is that litigants have  best legal tools to produce best evidence, whereas legislatures can become ineffective captives of special interests.
		H. ADMINISTRATION OF JUSTICE
		1. Examines the question of administrability of existing and proposed rules of law.  Rules are on a continuum from strict and formal to flexible and open ended.
		2. Counter argument to strict rules is that they will produce severe injustices close to the line.  Counter argument to flexible rules is that they will be used in service of the dominant values of society and to the disadvantage of less privileged groups.
		3. Other arguments are that a rule might open a court to speculative or fraudulent claims.  Counter argument is that this can be remedied by requiring genuineness of proof at trial and that courts can fully weed out fake claims.  This should not bar the honest claimant.
		I. THE SLIPPERY SLOPE / FLOODGATES ARGUMENT:
		1. Argument warns of "floodgates" or "boundless litigation" or "overwhelming the courts" etc.
		2. Counter argument is that just because a line must be drawn is no reason to draw it here.  Rules carefully drafted can guard against the slippery slope illusion.

6.	Insurance: Cost Spreading vs Injury Prevention
	BIERMAN v. CITY OF NEW YORK, 302 N.Y.Supp. 2d 696 (1969)
City water main broke and flooded woman's basement causing property damage
			Outline Section 01.A.06.a 98.09.08  pp. 114,300.SU

	Facts:	Water main ruptured in front of Plaintiff’s house and flooded her basement.
	Issues:	Could little old lady recover from city for flooding damage?
	Rule:	Importance of judicial decision making stability is stressed;  predictability of the law i.e. Stare Decisis.  Additionally a ruling of strict liability against city must be passed down from the legislature.
	Holding:	Courts found NYC negligent using res ipsa (thing that proves itself) to say, flooding proves negligence.  This accomplishes the same goal without strict liability.

	BIERMAN v. CONSOLIDATED EDISON CO., 320 N.Y.Supp. 2d 331 (1970)
City flooded woman's basement causing property damage
			Outline Section 01.A.06.b 98.09.08  pp. 116,302.SU

	History:	Lower court found that Plaintiff could recover damages without proof of negligence or fault. But on appeal, lower court’s decision to ignore precedent was reversed.  Application of strict liability to a case like this should be decided by the legislature.

	Holding:	Court found NYC negligent using Res Ipsa Loquitor thus accomplishing same goal via a different mechanism.
	Rationale:	Cost spreading: Social dislocation would otherwise result, city is in best position to spread cost.
		Injury prevention: Cost should be born by party who will move to take necessary precautions. Fairness. Justice. Prevention, Deterrence.

II.	Negligence
A.	Prima Facie Case of Negligence PFC
	BROWN v. KENDALL, 6 Cush. (60 Mass.) 292 (1850)
Gentleman pokes eye out of fellow when trying to separate fighting dogs w/ a stick
			Outline Section 02.A.01.a 98.09.09  pp. 26.CB

	Facts:	Plaintiff and Defendant’s dogs are fighting.  Attempting to separate them, Defendant struck Plaintiff (standing behind him) in eye with  stick.

	Rule:	Court says burden of proof is on Plaintiff to show injury was caused by Plaintiff’s lack or reasonable care, or ordinary care.

	Rationale:	Indicates a change to finding liability on part of Defendant only if Defendant is legally at fault. Plaintiff has burden of proving Defendant’s negligence, or fault. Gregory in "Trespass to Negligence to Absolute Liability" speculates one of JUDGE SHAW’s motives was desire to make risk-creating enterprises less hazardous to investors and entrepreneurs. Holmesian argument.

	Notes:	PRIMA FACIE CASE OF NEGLIGENCE:
		A. Introduction: The tort of negligence involves the creation of a negligent risk by act or omission of the defendant which in fact and “PROXIMATELY CAUSES LEGALLY COGNIZABLE HARM OR INJURY TO THE PLAINTIFF, WHERE DEFENDANT WAS UNDER A LEGAL DUTY TO AVOID CAUSING HARM TO PLAINTIFF THROUGH NEGLIGENT ACTS OR OMISSIONS.”
		B. Negligence: Creation of a negligent risk (known as the element of negligence, as distinct from the tort of negligence).
		
		PRIMA FACIE TORT OF NEGLIGENCE:
		1. REASONABLE ACT or ommission of an act;
		2. CAUSATION - Did Defendant's act cause Plaintiff's Injury/Harm;
		  a. CAUSE-IN-FACT: "but for" or actual causation
		  b. PROXIMATE CAUSE (Legal Causation)
		    - some cases require joint/multiple causation analysis
		3. DUTY: Defenant had a legal duty, which was breached by the unreasonable act or omission;
		4. INJURY/HARM: Plaintiff must suffer actual harm or injury of a legally cognizable kind.

	Gregory, Tres. to Neg. to Abs. Liability, 37 Va.L.Rev. 359, 368 (1951)
It is desirable to make risk-creating enterprises less hazardous to investors and entrepreneurs. Regulation stiffles industry.
			Outline Section 02.A.01.b 98.09.09  pp. 30.CB

B.	Standard of Care
1.	Duty of Care; Cardozo: Risk, Cost, Custom
	ADAMS v. BULLOCK, 125 N.E. 93 (1919)
Boy walking on trolley track overpass contacts 3rd rail with 8ft wire
			Outline Section 02.A.02.a 98.09.10  pp. 31.CB

	Issues:	Is harm foreseeable enabling prevention of injury to boy burned when wire he was swinging hit trolley electic rail from bridge?
	Rule:	Ordinarily no person could reach.
	Holding:	Defendant did not breach duty of reasonable care.
	Rationale:	JUDGE CARDOZO: Accident could not be foreseen since trolley line  could not have been made safer. It could only have been avoided at extraordinary and socially wasteful cost.

	Notes:	Cost Benefit Analysis -  Burden of protecting against harm far exceeded probability of loss.

	Hackney, J., Holding of Adams v. Bullock
			Outline Section 02.A.02.b 98.09.10  pp. 21,7.SU

2.	Social Status vs Natural Rights
	LOSEE v. BUCHANAN, 51 N.Y. 476 (1873)
Defendant steam boiler explodes and lands on Plaintiff buildings
			Outline Section 02.A.03 98.09.10  pp. 437.CB

	Facts:	Normally functioning and maintained boiler explodes an flies through air, destroys buildings on neighbour’s property.

	Holding:	Defendant not liable without fault.  Court uses social benefits arguments.
	Rationale:	Public good is served by machinery; living in industrial society involves risks; you give up some rights, but you are compensated by the general benefit to the public good. Defendant is not liable without fault. Gregory: Too much regulation stifles industry.
	Policy:	Property rights are not absolute but relative.

3.	Risk
	BRAUN v. BUFFALO GEN. EL. CO., 200 N.Y. 484 (circ. 1905)
Defendant strung electric wires 25ft above vacant lot
			Outline Section 02.A.04 98.09.10  pp. n2,32.CB

	Facts:	Electric wires strung over vacant city lot with inadequate insulation. 15 yrs. later, building is built in lot to the height of the electric wires and carpenter is electrocuted during construction.

	Rule:	1. Burden of insulating wires was not great;
		2. Development was foreseeable.
	Holding:	Defendant is liable.
	Rationale:	Cost to defendant to correct insulation of wiring is low; foreseeability of risk of subsequent construction is high.

	Notes:	Cost Benefit Analysis - Care of wires after lot was left should have proceeded after original construction

4.	Cardozo: Nature of Activity
	GREENE v. SIBLEY, LINDSAY & CURR CO., 177 N.E. 416 (1931)
Plaintiff tripped over cash register repair person.
			Outline Section 02.A.05 98.09.10  pp. n3,33.CB

	Facts:	Plaintiff sees Defendant’s employees fixing cash register.  Plaintiff turns to get change from sale. Employee kneels down, Plaintiff turns  right and trips over his foot.

	Rule:	Ordinary activity, no foreseeability, no recovery.
	Holding:	Defendant is not liable.
	Rationale:	JUDGE CARDOZO:  Ordinary care does not require employee to warn Plaintiff.  Informing the Plaintiff-shopper of movement would be extraordinary.

	Notes:	Cost Benefit Analysis - It's unreasonably burdensome to expect person to announce their next activity.  Worker could not announce where he was going to be next in time for customer.

III.	Reasonable Care
A.	Reasonable Person
1.	Objective Rule; Blindness, Children, Insanity
	Holmes, O.W., The Common Law, 108-110 (1881)
General Welfare; Social Good
			Outline Section 03.A.01.a 98.09.14  pp. 41.CB

	Notes:	1. General principal of law is that loss from an accidnet must lie where it falls even if the instrument of injury is a person.  As between two innocents, the victim must pay.
		2. Except in cases where there is intent or the harm is unintentional but foreseeable.
		3. State intervention is an evil, so victim must pay so as to reduce burdensome regulation.
		4. Acting is in the public interest and if we are too strict we will inhibit peopl's actions.
		5. We need a non-government system that allocates the losses between actor and victim in a way that still encourages action.
		REASONABLE PERSON STANDARD:
		The standard against which unreasonable conduct is measured is a hypothetical person; imaginary person; reasonable person.
		
		HOLMES: Law takes no account of the infinite varieties of  temperament, intellect and education which makes the internal character of a given act so different in different men.
		Exceptions: blindness, infancy, and real insanity.
		Holmes reasons that it is impossible to  measure persons by an objective measure because it is impossible to measure a man’s power and limitations.  Holmes’ second rationale is that justification is for the good of society; there are peculiar ways which lead to liability.

2.	Objective, Abstraction, Community Standards
	Harper, James & Gray, The Law of Torts, 389-90, sec. 16.2 (2d ed. 1986)
			Outline Section 03.A.01.b 98.09.14  pp. 40.CB

	Notes:	Reasonable person is external instead of subjective standard. Not infallible or perfect person. Embodies normal standard of community behavior. Standard by which all of us are judged.

3.	Ordinary Caution
	California, BAJI 8th ed., 1994 sec. 3.10
			Outline Section 03.A.02 98.09.14  pp. n5,34.CB

	Notes:	Negligence is doing something or  failing to do something which a reasonably prudent person would not do, under circumstances similar to those shown by evidence.

4.	Intellect (Lesser Intellignece)
	VAUGHAN v. MENLOVE, 132 Eng.Rep. 490 (1837)
Defendant piled hay in a way that created fire hazard.
			Outline Section 03.A.03 98.09.14  pp. n2,43.CB

	Issues:	Should Defendant's low intellect absolve him from liabiility?

	Holding:	Court held that standard is not whether person acted to best of their ability, but rather how reasonable person would act.
	Rationale:	PROSSER on Knowledge:  Points out that when a individual  who lacks experience common to a particular community, she can still be held liable as an individual must conform to the community rather than the community confoming to the person.

5.	Stroke
	ROBERTS v. RAMSBOTTOM, [1980] 1 All E.R. 7 (Q.B. 1979)
Driving while suffering from a stroke.
			Outline Section 03.A.04 98.09.14  pp. n3,43.CB

	Facts:	Defendant had a stroke, but drove car.  Even though his consciousness was impaired, it was not absent.

	Rule:	Nothing short of total loss of consciousness exculpates Defendant from liability.
	Holding:	Court held Defendant liable.

	Notes:	Suggests that elderly and infirmed be treated by the mean reasonable person standard.

6.	Insanity
	TURNER v. CALDWELL, 421 A.2d 876 (1980)
Defendant motorist “suddenly stricken by mental illness” was rendered unable to control her vehicle.
			Outline Section 03.A.05 98.09.14  pp. n4,44.CB

	Holding:	Court held insane person liable for acts of negligence.

	Policy:	Where two people are injured, even if culpable one is mentally ill, courts will compensate faultless person.  Faultless person should be compensated.
	Notes:	PROSSER: Mental Illness - generally still an objective standard though exceptions made in extreme circumstances, particularly in a contributory negligence where mental state prevented person from understading level of danger.

7.	Professional Standard
	FREDERICKS v. CASTORA, 360 A.2d 696 (1976)
Professional Truck Driver in accident.  Higher Standard? No.
			Outline Section 03.A.06 98.09.14  pp. n5,44.CB

	Facts:	Defendant, professional truck driver involved in accident.
	Issues:	Higher Standard for 'Professional Truck Driver'?
	Rule:	Highly trained professionals are held to higher standards.  But not truck drivers.
	Holding:	Court refused to hold Defendant to a higher standard.
	Rationale:	Too many people drive, too hard to hold different standards as to their respective experience.

	Notes:	In the alternative, Doctors, Lawyers, and other professionals are all held to heightened standards of professional care/conduct.

	Restatement (Second) of Torts, sec. 298
Actor must utilize with reasonable attention and caution as a reasonable man, but also those superior qualities and facilities which he himself has; cf. Fredericks.
			Outline Section 03.A.07 98.09.14  pp. 45.CB

8.	Jury Standard
	Harper, James & Gray, The Law of Torts, sec. 16.3 (2d ed. 1986)
cf. Fredericks
			Outline Section 03.A.08 98.09.14  pp. 45.CB

9.	Children "Same age" Standard
	MASTLAND, INC. v. EVANS FURNITURE, INC., 498 N.W.2d 682 (Iowa 1993)
Children are held responsible at a child's standard unless engaged in an adult activity.
			Outline Section 03.A.09 98.09.14  pp. n7,46.CB

	Rule:	Court determined that reasonable expectation of the capacity of a particular child is a question for a jury to decide.

10.	Presumptions - Very young children
	ELLIS v. D'ANGELO, 253 P.2d 675 (1953)
Court stated that children under four have not developed mental capacity for foreseeing possibilities of their conduct.
			Outline Section 03.A.10.a 98.09.14  pp. 47.CB

	PRICE v. KITSAP TRANSIT, 886 P.2d 556 (1994)
Children under 6 cannot be held negligent if it forces relatives to prove child’s stupidity with evidence.
			Outline Section 03.A.10.b 98.09.14  pp. 47.CB

11.	Presumptions
	PINO v. SZUCH, 408 S.E.2d 55 (1991)
			Outline Section 03.A.10.c 98.09.14  pp. 47.CB

12.	Children - Adult Activities
	DELLWO v. PEARSON, 107 N.W.2d 859 (1961)
12yr. old boat driver in accident is held to an adult standard while doing an adult activity i.e. driving.
			Outline Section 03.A.11.a 98.09.14  pp. 47.CB

	Holding:	Court held that child is liable as an adult.
	Rationale:	Child was engaged in adult activity - driving a boat.

	GOSS v. ALLEN, 360 A.2d 388 (1976)
Children in skiing accident.
			Outline Section 03.A.11.b 98.09.14  pp. 48.CB

	Issues:	Is skiing an adult activity such that if children are so engaged, they should be held to an adult standard?
	Rule:	REASONABLE CHILD STANDARD:
		1. Children are traditionally held to standard of conduct reasonable for persons of their actual age, intelligence, and experience;
		2. Children have been held  to objective standard when engaged in adult activities;
		3. Some children are too young to be capable of negligence.
	Holding:	Children who ski will not be held to an adult standard since skiing is an all ages activity
	Rationale:	Skiing is activity for persons of all ages

13.	Emergency Doctrine
	CORDAS v. PEERLESS TRANSP. CO., 27 N.Y.S.2d 198 (1941)
Cabby abandoned cab when gun waving bank robber jumps in.  Cab crashes into family
			Outline Section 03.A.12 98.09.14  pp. 118,303.SU

	Facts:	Defendant taxicab driver was threatened at gun point by a robber.  Cabby jumped from moving cab which then hit Plaintiff pedestrian family.
	Issues:	Given the circumstances of his own safety, is Defendant negligent?
	Rule:	Emergency Conditions
	Holding:	Court held Defendant not liable.
	Rationale:	Act or omission done or neglected under the influence of pressing danger was done or neglected involuntarily.

	RIVERA v. NEW YORK CITY TRANSIT AUTHORITY, 569 N.E.2d 432 (1991)
Person killed by subway when conductor did not stop within time given
			Outline Section 03.A.13 98.09.14  pp. 46.CB

	Facts:	Plaintiff fell in  front of a subway, conductor failed to stop train.

	Rule:	Reasonable Person Standard Nullified in an Emergency Context.
	Holding:	Court held Defendant is not liable.

	Policy:	Court maybe uses a subjective modification in conjunction with sovereign immunity i.e. don't hold city transit authority liable because it is the government.

14.	Reasonable Man
	Prosser, The Reasonable Man, Law of Torts (4th ed. 1971)
			Outline Section 03.A.14 98.09.14  pp. 122,307.SU

	Notes:	A. Jury instructions on determining Reasonable Man Standard:
		 i. lean towards excessive caution;
		ii. artificial and unreal.
		B. Physical Attributes:
		1. Identical with actor - cannot be asked to perform duties to standards that he cannot meet;
		2. Must be aware of limitations and avoid dangerous situations in light of differential capabilities.
		C. Mental Capacity:
		1. Limited Intelligence - must conform to community standards, or pay for what he breaks;
		2. Insanity - may prevent finding of negligence;
		3. Drunkenness - no excuse
		D. Children:
		1. General jury instruction - what is reasonable to expect of children of like age, intelligence, and  experience
		2. Exception - adult activity
		E. Knowledge - what is Reasonable Man required to know?
		1. Unless attention is reasonably distracted, must give surrounding necessary attention & use senses to determine what is reasonably apparent;
		2. General laws of universe; facts of earth, fire water, etc.;
		3. Individual must conform to community - may be negligent in failing to educate self;
		4. If providing service, must educate self to adequately protect customers - liable for remaining ignorant;
		5. Keep up with increasing scientific knowledge;
		6. Having superior knowledge - law demands conduct consistent with abilities.

15.	Reasonable Woman-Child
	HASSENEYER: MICH. CENT. R. CO. v. HASSENEYER, 12 N.W. 155 (1882)
13 yr. old girl was stuck and killed by a railroad car backing up. Woman-child held to same standard as man.
			Outline Section 03.A.15 98.09.14  pp. 127,311a.SU

	Rule:	Reasonable Child; Reasonable Woman; Reasonable Girl Standard. No.
		Only one reasonable person standard.
	Holding:	Negligence of decedant appellee girl is vacated for new trial.  "No case, so far as we know, has ever laid it down as a rule of law that less care is required of a woman than a man."
	Rationale:	Lower court submitted that decedent caused her own death by being on railroad company's property.  But decision was vacated for a new trial.  Judgment based on sex standard is error.

16.	Reasonable Man vs Woman vs Person
	Finley, Yale J. of L. and Feminism 41 (1989)
Reasonable man standard is unfair.  It refers to middle class white man but should take into account what reasonable female would do in her situation.
			Outline Section 03.A.16 98.09.14  pp. 128, 312.SU

	Notes:	HOLMES argues that we all give up something in order to have easy standards to apply.  Standards do not absolutely exclude variations.
		a. Traditional notion of reasonable man is based on gender stereotypes which requires either a new gender neutral standard or two separate standards.
		b. FINLEY believes in a reasonable person "so situated" thinks that to be objective a standard does not have to be stereotyped and it can consider context and individual's experiences in the evaluation without descending into subjectivity.

B.	Cost-Benefit Analysis C/B-A
1.	Learned Hand Formula B<P(L)
	CARROLL TOWING: U.S. v. CARROLL TOWING CO., 159 F.2d 169 (1947)
Bargee not on duty; Barge destroyed in crash; Cargo Lost
			Outline Section 03.B.01.a 98.09.16  pp. 35.CB

	Facts:	Harbormaster (Defendant) on tug boat negligently secures barge that later comes loose, smashes into (Plaintiff) barge,  causes it to sink and lose cargo of wheat.
	Issues:	Should the damages be reduced because Plaintiff's bargee was absent from the barge?
	Rule:	Apply Learned Hand’s formula B<P(L): If Burden of taking precautions to prevent accident is lower than Probability of loss due to accident then Defendant should be held liable.
		B<P(L) -> Liability
		B>P(L) -> No Liability.
		
	Holding:	Plaintiff held contributorily negligent.
	Rationale:	The Crowdedness of the harbor and the fact that Plaintiff’s bargee was absent increased Probability to the point where B<P(L), so barge owner Plaintiff was negligent.  Bargee Watch Custom was also considered.

	Notes:	INTRODUCTION TO COST-BENEFIT ANALYSIS:
		The purpose of using cost-benefit analysis is to help legal decision makers reach the decision that the Reasonable Person would likely make.
		LEARNED HAND FORMULATION: RP => B<P(L) -> Actor's Liability
		RP - Reasonable Person; B - Burden to respondent; P(L) - Probability of loss or damage.
		A Reasonable Person would rationalize that: If the Burden on the actor is less than the Probability of an accident occurring times the amount of Loss which may result, then the actor has a liability
		
PROBABILITY OF NEGLIGENCE CALCULATION:

NO ACTOR LIABILITY MODEL:__________________________________________
		  No Safety Incentive if B>P(L)  |  No Safety Incentive therefore
		  i.e. $100 repair > $75 accident|  No Liability
		                                 |  Allocation: Victim pays
		  Distrib.: Actor saves $25      |  Distrib.: Victim looses $100
		_________________________________|_________________________________
		
		ACTOR LIABILITY MODEL:_____________________________________________
		  Safety Incentive when B<P(L)   |  Yes! Actor improve safety!
		  i.e. $25 repair < $75 accident |  If no repair, Actor is liable
		                                 |  Allocation: Actor pays
		  Distrib.: Actor pays $25 but   |  Distrib: Actor pays $75 thus
		  saves $50 preventively         |  loosing $50 into liability.
		_________________________________|__________________________________
		High Liability in SL regime      |  Low Liability in Neg regime
		Calabresi - Market Deterance     |  Posner/Hand - Alloc. Efficency

		Chart assumes a highly valuable activity that is worthwhile for all parties to continue.  For purposs of this char, it is assumed that parites will not decrease the level of investment (market deterance), but attempt to increase the level of care (incentive structure)

	KRAYENBUHL: CHICAGO, BURLINGTON & QUINCY R. CO. v. KRAYENBUHL, 91 n.w. 880 (1902)
Children playing w/ unlocked RR turntable and one severs leg
			Outline Section 03.B.01.b 98.09.16  pp. n3,37.CB

	Facts:	Child was hurt while playing on unlocked railroad turntable.

	Rule:	C/B-A Learned Hand Formulation: B<P(L) -> A's Liability.
		If danger is small compared to benefits resulting from use of machinery, then economize with B<P(L). i.e.
	Holding:	Defendant was held liable because the burden of preventing the accident was small compared to the risk of leaving the turntable unlocked
	Rationale:	Burden of preventing the accident is small compared to the risk of leaving the turntable unlocked.
	Policy:	POSNER: Cold economic theory. Looks at economic standard of care.  Business wants to limit liability. Law and Ecomics movement i.e. Hand’s formula, can be used to shift balance: If curtailing risky action costs more than engaging in action (i.e. too much loss of revenue), then actor will continue risky action.  Punitive legal action shifts the balance to discourage the actor in favour of greatest social good.  Economically, it should not make $$ sense to forgo accident prevention. But if punitive legal action is too severe, it will also burden society overall by preventing growth, and by stifling the economy, etc.  Rational profit maximizing enterprise would rather have minor tort judgments than incur larger cost of preventing accidents.
	Notes:	RR Co. held liable because burden of altering equipment is small compared to loss to society.

	Posner, A Theory of Negligence, 1 J.Legal Studies 29 (1972)
Due Care re: Krayenbuhl (Unlocked RR Turntable severs leg)
			Outline Section 03.B.01.c 98.09.16  pp. n1,36.CB

	Rule:	"If the cost of safety measures or curtailment (of activty) - whichever is lower - exceeds the benefits of the accident avoidance, it is better (economically speaking) for society to forgo accident prevention."  No liability (overall economic value and welfare would be diminished rather than increased by incurring these higher costs).  But, if benefits of accident avoidance outweigh costs of prevention, society is better off if those costs are incurred and the accident is averted, so enterprise should be made liable.

	Notes:	1. We need a system to generate rules of liability that if followed will result in the efficent (cost justified) level of accidents and safety.
		2. Damages assessed against Defendant as a way of measuring the cost of accidents.
		3. Cost includes payment to Plaintiff and attorney as the price of enlisting their aid in the system.
		4. Judgment of negligence has moral overtones because it implies that a cheaper alternative to the accident wa available.
		5. No moral indigniation arrises when the cost of prevention would have exceeded the cost of the accident.
		Overall welfare and economic value; cold economics.  Economic standard of care; cost minimization.  If benefit to society of activity is great, leave well enough alone.

2.	Reasonable Person vs. C/B-A
	MCCARTHY v. PHEASANT RUN, INC., 826 F.2d 1554 (7th Cir. 1987)
Plaintiff assaulted by intruder who gained entry through a sliding door which had not been locked.
			Outline Section 03.B.02.a 98.09.16  pp. n4,38.CB

	History:	Jury finds for Defendant on Appeal.  Affirmed herein.

	Rule:	Reasonable Care Prevails over C/B-Analysis
	Holding:	Even though cost would have been small, jury found for hotel, which exercised due care.
	Rationale:	As long as jury decision is reasonable, trial judge should not interfer with their decision.

	Notes:	Posner commented that it is hard to apply the Hand Formula ,B<P(L), owing to its greater analytical than operational significance and since putting a price on personal injuries is difficult relative to calculating the cost of implementing preventative measures. He also realized that innkeepers are more knowledgeable about some dangers and in better position to guard against them.

3.	Socially Beneficial Activity
	BOLTON v. STONE, [1951] A.C. 850
Cricket ball hit out of pitch strikes the Plaintiff at porch of house.
			Outline Section 03.B.02.b 98.09.16  pp. n7,39.CB

	Facts:	Plaintiff was hit by a cricket ball which was hit out of the field. In 28 years, only six balls had gone out of the field, and no one had been hurt.

	Rule:	Modifided C/B-Analysis adapted to account for high social benefit of enjoyable activity - sport of cricket.

	Rationale:	Chance of accident so small, and cost of moving the field - or not playing  cricket - so high that Defendant need not have safeguarded against the possibility of someone being hit. Modified Hand formula b/c adds the formula of social value of activity.

4.	Rejection - Pinto
	GRIMSHAW v. FORD MOTOR CO., 174 Cal.Rptr. 348 (1981)
1972 Ford Pinto Gas Tank aerosol explosions burn victims. Ford uses C/B-A to rationalize.
			Outline Section 03.B.03 98.09.16  pp. 133,316.SU

	Facts:	Plaintiff was severely injured when his Ford Pinto was rear-ended, causing it to explode. Ford was aware of the difficulty with the gas tank and knew that the problem could be fixed for a minimum amount but chose not to fix it making a deliberate trade-off of savings vs. risk to drivers.
	Issues:	Should Fords implementation of the Learned Hand C/B-Analysis be supported since it makes economic sense?
	Rule:	Rejection of C/B-Analysis.
	Holding:	C/B-A of human life is morally repugnant.  Ford is liable.
	Rationale:	If the court accepted the government estimate of the value of a human life then by Hand’s Formula, Ford would not be liable for its actions since benefit would exceed cost.
	Policy:	Calculation of human lives vs. economic return outraged jury. Jury entered a total damage award against Ford of almost $128 million, $125 of which were for punitive damages. Damages were later reduced to $3.5 Million by court.
	Notes:	Damages were reduced in consideration of the value of the automotive industry and the possibility of future lawsuits.

5.	Market Deterrence Policy Analysis
	Calabresi, The Cost of Accidents, 26-29,68-75 (1970)
Market Deterrence
			Outline Section 03.B.04.a 98.09.17  pp. 454.CB

	Policy:	GOALS OF TORT LAW RE-EXAMINED:
		A. Reduce the number and severeity of accidents (primary purpose)
		   1. Specific: Forbid certain activities
		   2. General: make those activites more expnsive and thereby less attractive.
		B. Reduce the cost of accidents (secondary purpose)
		   1. Risk/Loss spreading
		   2. Going for the Deep Pockets
		C. Reduce the costs of avoiding accidents (Efficiency Goal)
	Notes:	MARKET DETERRENCE:
		a. If prices reflect accident costs (jack up prices of cigarettes), then people will likely shift to safer activities.  Good that dangerous activity is replaced by a safer one.  Why do this? (Allocation of resources) People generally know what is best for them, if they are infomed about alternatives.  By creating an incentive structure, individual will be more careful in choosing activity and will choose the safer one.
		b. Market deterrence creates incentives to engage in safer activities and also encourages people to develop ways to make activies safer.

6.	Cost Spreading Policy Analysis
	Gregory, Trespass to Negligence to Absolute Liability, 37 Va.L.Rev. 359 (1951)
Cost Spreading
			Outline Section 03.B.04.b 98.09.17  pp. 132, 315.SU

	Notes:	COST SPREADING/SOCIALIZATION:
		Basic idea is that companies are in the best position to spread the cost of accidents.  Companies should be liable for accidents and would then pass the burden on to the consuming public - achieving the disred socialization of loss bearing on the whole community.

7.	Allocation vs. Distribution Policy Analysis
	Hackney, J., Allocation vs Distribution
			Outline Section 03.B.04.c 98.09.17  pp. 22,10.SU

	Notes:	ALLOCATION vs. DISTRIBUTION:
		Concerns the channelling of social resources to various activities.  In Tort Law, key concern is to balance investment between risky but socially valuable activities and investment in accident prevention.  Someone's resources should be devoted to safety investment.  We want only cost effective safety measures.
		DISTRIBUTION/EQUITY: Concerns how wealth is or should be distributed among members of society.  In Torts, issues are which members of society should bear the cost of accidents and inevitably cased by risky but socially baluable activies and which should bear the cost of investment in accident prevention.  Who's resources?  How fairly are these costs spread within society?

C.	Custom; Locality Rule
1.	Plaintiff Formulation
	TRIMARCO v. KLEIN, 436 N.E.2d 502 (1982)
Old fashioned non-tempered bath tub glass shattered and injured tenant.  Replacement custome
			Outline Section 03.C.01.a 98.09.23  pp. 58.CB

	History:	Trial Court Jury awarded damages to Plaintiff. Appellate division reverses herein.
	Facts:	Defendant (landlord) did not use industry standard safety glass in Plaintiff's (tenant) shower.  Plaintiff was severely cut.

	Rule:	Custom is evidence of reasonable care but not the whole picture.
	Holding:	Court of Appeals reversed the trial court dismissal holding that when it is defined as customary in the business to minimize danger by replacing old outdated shower glass then failure to do so was negligent.
	Rationale:	Defendant had no forewarning of the danger.  Although the custom was not universal, it was well defined enough in the business that its expected that most people new it.

	Notes:	Custom is a yard stick tempered by reasonable conduct.  Another measure of determining reasonable care.  However, for example speeding may be customary but if it breaks the law unreasonably it can not be claimed as a custom.

	Morris, Custom and Negligence, 42 Colum.L.R. 1147
Rational justifies custom defense.  If industry adheres to a custom, court may acknowledge that it exists
			Outline Section 03.C.01.b 98.09.23  pp. n5,62.CB

	Notes:	Plaintiff may find it useful to prove that others in the industry found it feasible to engage in safer practice, that Defendant had time to learn of the alternative and that no greater social upheaval will occur if a judicial determination finds Defendant negligent.
		NOTE: Learned Hand says a whole industry may miss the boat on developing a custom of safety in a particular area but "THere are precautions so imperative that even their universal disregard will not excuse their omission."

	LEVINE v. RUSSELL BLAINE CO., 273 N.Y. 386,389
Low Cost Custom - Smooth rope dump waiter; Plaintiff cut/infected with rough rope.
			Outline Section 03.C.01.c 98.09.23  pp. n5,62.CB

	Facts:	Plaintiff cuts hand on a rough rope while operating dumbwaiter.  Defendant failed to use industry standard smooth ropes
	Issues:	Is smooth rope custom specifically intended to prevent this kind of injury?
	Rule:	Evidence of smooth rope custom is admissible.
	Holding:	Defendant is liable.
	Rationale:	Reason for smooth rope custom is to avoid just this type of injury.

	Notes:	For custom to be allowed as argument, it must be specifically applicable to the injury suffered.

2.	Defendant Formulation
	T.J. Hooper, 60 F.2d 737 (1932)
Tug sank off cost and lost cargo. Tug had no radio. cf. Morris
			Outline Section 03.C.01.d 98.09.23  pp. n2,60.CB

	Facts:	Tug Plying Atlantic coast sank in storm causing a loss of barges and cargoes in tow. Tug had no radio to receive storm warning.

	Rule:	Custom Alerts the Court to Three Main Points:
		a. If an industry adheres to a single way - court may be wary of Plaintiff asserting that safer alternatives are available and may put burden on Plaintiff of demonstrating the feasibility of the alternative way.
		b. The Fact that a safer alternative was not widely used can be shown as further evidence that it was not unreasonable for Defendant to be unaware of the possiblity.
		c. The Existence of a custom with high fixed costs, may warn the court of the social impact of a decision determining that custom to be unreasonable.

	Rationale:	Hand stated that there are precautions which are so imperative that even their universal regard will not excuse their omission. Holmes says custom must meet the test of reasonableness.

	GARTHE v. RUPPERT, 264 N.Y. 290, 296
High Cost - Cleaning the Beer Sludge
			Outline Section 03.C.01.e 98.09.23  pp. n6,62.CB

	Facts:	Plaintiff slipped on brewry floor.

	Holding:	Court held that one or two dry floor brewries do not constitute a custom. Defendant not liable.
	Rationale:	Plaintiff had argued that though most brewery floors are wet, one or two places had found ways to keep them dry or at least not slippery.

	Notes:	Holding represents threshold of a custom - Standard of an entire industry can not be measured by the techniques employed by one or two businesses.

	LA VALLEE v. VERMONT MOTOR INNS, INC., 569 A.2d 1073 (1989)
Low Cost - Hotel room safety lights
			Outline Section 03.C.01.f 98.09.23  pp. n4,61.CB

	Facts:	Power outage at Defendant's Motel.  No safety lights in rooms. Plaintiff fell in room during blackout and thought there should be safety lights in rooms.

	Rule:	Custom contradicts feasibility.
	Holding:	Defendant not liable; Defendant granted a directed verdict.
	Rationale:	No other hotel makes a custom of safety lights inside of the rooms.  Although it would be feasible, it is not customary.

	Notes:	Custom trumps cost.  Didn't cost much but it wasn't customary.
		In these cases, Plaintiff would have to argue either that the accepted custom was unreasonable or that given the particular facts of the case, custom did not apply.

D.	Custom: Medical Malpractice
1.	General Formulation: Rule
	ROBBINS v. FOOTER, 553 F.2d 123 (1977)
Medical profession has a national standard for membership in cetain specialties.  Rejects the locality standard.
			Outline Section 03.C.02 98.09.24  pp. 97.CB

	Notes:	Surgeons vs. Surgeons; OB/GYN vs. OB/GYN; Subjective.  Objective - takes aggregate beliefs of entire profession.  Doctors are held to similar standard of care by other professional

2.	General Formulation: Limitation
	DI FRANCO v. KLEIN, 657 A.2d 145 (1995)
Language of Judgement must remain Objective
			Outline Section 03.C.03 98.09.24  pp. 98.CB

	Holding:	Court held that trial judge confused jury by stating that Defendant was not liable “even if exercise of . . .good faith judgment she has made a mistake in the course of treatment taken and that a physician “is not liable for damages resulting from an honest mistake or error in judgment”

	Notes:	Limitation on Robbins.

3.	Expert Defined
	JONES v. O'YOUNG, 607 N.E.2d 224 (1992)
Parameters for qualification as an expert; Plaintiff's leg amputated
			Outline Section 03.C.04.a 98.09.24  pp. 98.CB

	History:	Trial court granted Defendant's motion to bar expert testimony on infectious diseases and appeals court reversed herein.
	Facts:	Plaintiff injured in car accident - broken leg.  While in the hospital, he developed "an infectious process in his broken leg."  Plaintiff eventually lost his leg as a result and brought suit against three doctor's involved in his care: a plastic surgeon, an orthopedic surgeon and a general surgeon.
	Issues:	Must Plaintiff's expert witness specialize in the same area as the Defendant's doctors?

	Holding:	No. "Whether the expert is qualified to testify or not is not dependent on whether she is in the same specialty or subspecialty but rather whether the allegations of negligence concern matters within her knowledge and observation."
	Rationale:	Trial court can determine whether or not the witness has sufficient familiarity with the standard of care and defendant has ample opportunity to challenge.

	Notes:	1. Liscensed: Expert in Relevant field;
		2. Methods: Familiar with relevant methods.
		However, if the expert muyst be specific, in his her background then the pool of available experts becomes too narrow i.e. fraternity among doctors bars expert testimony against a friend

	ROBBINS v. FOOTER, 553 F.2d 123 (1977)
Revisited
			Outline Section 03.C.04.b 98.09.24  pp. 97.CB

4.	Expert Witness
	SHEELEY v. MEMORIAL HOSPITAL, 710 A.2d 161 (1998)
Rectovaginal fistula - Demise of Strict Locality Rule -  Technology trumps
			Outline Section 03.C.04.c 98.09.24  pp. 384,643.SU

5.	Problems
	CONNORS v. UNIV. ASSOC. IN OB/GYN, INC., 4 F.3d 123 (1993)
Causal Uncertainty (Res Ipsa Loquitur). Unwilling Experts.
			Outline Section 03.C.05 98.09.24  pp. 103.CB

	Notes:	Expert bridges the gap between medical theory and jury common sense.  Unconscious patient lost feeling to her leg when she recovered from surgery.  Blood was cut off from area for 20 min. too long. Expert gave foundation for jury to explain outcome.

6.	Disclosure to Patient; Informed Patient Consent
	KORMAN v. MALLIN, 858 P.2d 1145 (1993)
Breast Reduction; Risk of Scarring to Smokers: Reasonable Informed Patient Rule - Locus of Necessary Information.  Pictures of Surgical Outcomes.
			Outline Section 03.C.06 98.09.24  pp. 108.CB

	History:	Patient Plaintiff Appealed from Summary Judgment for Defendant
	Facts:	Plaintiff went in for breast reduction surgerty. Initially she received much written and verbal information about the possibility of painful or unsightly scarring.  When she asked for more information the Doctor told her "not to worry, he'd done thousands of them and you will be happy with the results."  Plaintiff had surgery and had horrible scarring.  Plaintiff said Defendant did not clarify that smokers had a 50% or greater chance of scarring than baseline scarring for nonsmokers.  That scarring was more likely for smokers was in the material but it wasn't laid out in a clear manner (Non smokers scarring potential is 30% therefore smokers would be...) Plaintiff claims Defendant failed to receive 'informed' consent
	Issues:	Was there adequate disclosure to patient?

	Holding:	Court held that Defendant failed to satisfy his duty of disclosure.
	Rationale:	Scope of disclosure must be measured by what a reasonable patient would need to know in order to make an informed and intelligent decision about the proposed treatment.
		a. existence, nature and likelihood of the risk, in lay terms.
		b. is the probability of harm what a reasonable person would consider when deciding on a treatment? would there be significance attached to this type of risk?

	Notes:	Doctor has duty to provide patient with sufficient information to make an informed decision.  Subjective - Depends on patients needs.  Amount of information to be given to the patient is dependent on each patient.  Doctor's duty is to explain situation well enough so that patient understands.
		Caveats: Privilege Exception - patients have an absolute right to complete information.
		Emergency/Mentally Disabled/Infancy - can't get patient to a sufficiently informed state in time to act to aid the patient.

7.	Probability
	PAUSCHER v. IOWA METHODIST MED. CTR., 408 N.W.2d 355 (1987)
Patient developed post delivery problems; Mild risk of reaction to IV treatment; Doctor has no duty to explain low probability
			Outline Section 03.C.07.a 98.09.24  pp. n5,112.CB

	Holding:	Court held for hospital defendant?
	Rationale:	If the deadly risk is so slight and it's already life threatening, it's unlikely telling the patient of a 1 in 100,000 risk would have affected her decision.  And if the risk is so slight and hardly disabling, no prudent juror could conclude that the risk was material.

8.	Probability/Experimental Procedure
	HENDERSON v. MILOBSKY, 595 F.2d 654 (1978)
Doctors have no duty to render information based on experimental procedures. cf. Pauscher
			Outline Section 03.C.07.b 98.09.24  pp. n6,112.CB

9.	Patient Disregards Risk
	TRUMAN v. THOMAS, 611 P.2d 902 (1980)
Pap smear: Obligation to warn patients that if they don't follow procedure where a reasonable patient would they face heightened risk.  Patient declined diagnostic test.
			Outline Section 03.C.08 98.09.24  pp. n7,112.CB

	Facts:	Patient contracted cervical cancer and died.
	Issues:	Might physician be liable for not advising patient of the dangers inherent in declining the pap smear diagnostic procedure?

	Holding:	Court held that Defendant "is liable for any injury resulting from the patient's refusal to take the test if a reasonably prudent person in the Plaintiff's position would not have refused the test if she had been adequately informed of the significant perils."

	Notes:	Patient has been given the opportunity to make a reasonably informed decision.  If informed patient declined, then Doctor owes patient no further duty.

E.	Negligence Per Se NPS
	Hackney, J., Negligence Per Se
			Outline Section 03.D.01 98.09.28  pp. 25,12.SU

	Notes:	Basic Doctrine
		Elements of Negligence Per Se (sec. 283 of Restatement 2d)
		1. Defendant violated a statute or public regulation.
		2. The purpose of the statute is to prevent accidents (Platz).
		3. Plaintiff is a member of the class of people the statute was designed to protect.
		4. Injury was the type the statute was designed to protect (Gorris; De Haen).
		5. Defendant's violation was unexcused (Tedla).
		
		Negligence Per Se as Evidence
		1. Majority Rule: NPS is conclusive proof of element of negligence.
		2. California: NPS creates a presumption of negligence, Defendant must rebut.
		3. Some Courts: NPS provides Prima Facie Evidence of negligence, then goes to jury.
		4. Some Courts: NPS provides some evidence of negligence.
		- Plaintiff will still have to prove causation, etc. just because negligence is given, doesn't mean the case is won.

2.	Basic Proposition
	MARTIN v. HERZOG, 126 N.E. 814 (1920)
CARDOZO; Buggy turns corner and runs into a car.  No lights on buggy. Majority Rule NY. Violation of a statute is negligence in itself
			Outline Section 03.D.01.a 98.09.28  pp. 63.CB

	Facts:	Head on collision between buggy and car at a bend, the buggy had no lights on in violation of statutory law.

	Rule:	Violation of statute is unexecused.  Statute is designed to prevent such accidnets.  Thus NPS is established.

	Rationale:	"There may be times, when if jural niceties are to be preserved, the two wrongs, negligence and breach of statutory duty must be kept distinct in speech and thought."

	Notes:	Community Norms - We the people. Courts inforce legislative acts - Statutes.  Trial Judge erred in keeping information about time of day from jury.  If it had been evening then lights should have been on on buggy. Unexcused violation of statute, designed to prevent accidents thus establishing Negligence Per Se.

	CLINKSCALES v. CARVER, 136 P.2d 777 (1943)
TRAYNOR: Published Statute vs. Intention of Statute
			Outline Section 03.D.01.b 98.09.28  pp. n4,65.CB

	History:	Defendant had been cleared of previous criminal charge because of improper publication of statute
	Facts:	Defendant ran stop sign and hit Plaintiff.  Statute had not been propertly published so there was no criminal cause of action.

	Rule:	Court has choice to decide what civil remedy should be present considering a reasonable conduct standard.

	Rationale:	Traynor says the determination of negligence does not turn on Defendant's criminal liability.  A statute that provides for criminal proceeding only doesn't create a civil action.  If there is no remedy it is because the legislature didn't contemplate one.  Suit is based on common law tort and the statute or criminal statute only becomes a standard in civil liability because the court allows it to.

	Notes:	Statute was not properly published but that does not alter the social standard expounded by the statute.  The criminal charge failed but it does not skip civil standard of reasonable person.  Reasonable person would not have run the stop sign.

3.	Nexus; Statutory Purpose
	Restatement 2d of Torts, sec. 286
NEXUS: There must be an interesection between the intention of the statute and the nature of the injury.
			Outline Section 03.D.02.a 98.09.28  pp. n5,66.CB

	PLATZ v. CITY OF COHOES, 89 N.Y. 219 (1882)
Local ordinance not to ride on Sunday.
			Outline Section 03.D.02.b 98.09.28  pp. n8,70.CB

	Facts:	Plaintiff was hurt by road obstruction while riding on a Sunday.  Obstruction was negligently left in road by city.
	Issues:	City argued that there was no liability because Plaintiff was riding on a Sunday in violation of the Statute.

	Holding:	Court held that there was NO NEXUS between the intention of the statute and the injury suffered by the Plaintiff.  Statute was designed for PUBLIC ORDER NOT PUBLIC SAFETY  - Plaintiff prevailed.

	Notes:	No Nexus between purpose/intention of statute and injury sufferred

	DE HAEN v. ROCKWOOD SPRINKLER CO., 179 N.E. 764 (1932)
CARDOZO: Radiator placed near opening to a shaft fell down shaft and killed a worker.
			Outline Section 03.D.02.c 98.09.28  pp. n8,70.CB

	Facts:	Plaintiff was killed at a construction site because a radiator fell down an unprotected shaft.  Statute required a barrier be constructed around the shaft to protect passers by.
	Issues:	Defendant argued that the purpose of the statute was to protect people from falling down the shaft and not radiators.

	Holding:	Defendant is liable. Plaintiff recovers.
	Rationale:	Cardozo said that although the object of the statute was designed to protect workmen from falling; it can't be said that no other hazard was within the ZONE OF APPREHENSION (Comprehension).  Since no specific name was give to the injuries the statute was intended to protect against and given the facts of the case, the statute could also be fairly construed to intend to prevent objects as well as workers from falling down the shaft.

	Notes:	Cardozo: General Safety.  Although the object of the statute was designed to protect workmen from falling; it can't be said that no other hazard was within the zone of apprehension. Plaintiff recovered.
		
		Darmento v. Pacific Molasses Co. - Defendant truck was driving too closely behind Plaintiff's car.  Statute read that tailgating was prohibitted.  Plaintiff lost control but still recovered because act of Defendant fell into zone of apprehension of statute.

	RUSHINK v. GERSTHEIMER, 440 N.Y.S.2d 738 (1981)
Defendant left keys in ignition.  Plaintiff stole car and drove to death.
			Outline Section 03.D.02.d 98.09.28  pp. n9,72.CB

	Issues:	Is intention of statute to protect against theft or guard against loss of thieves life?
	Rule:	Statute said that you can't leave keys in the ignition.
	Holding:	No NPS NEXUS. No Recovery.

	GORRIS v. SCOTT, L.R. 9 Ex. 125 (1874)
Sheep overboard!
			Outline Section 03.D.02.e 98.09.28  pp. n10,72.CB

	Facts:	Defendant did not keep sheep penned up on deck of his ship.  Sheep were swept overboard and lost.
	Issues:	Is intention of statute such that Plaintiff can recover from  economic loss of sheep.
	Rule:	Contagious Disease Act said that animals must be penned up on ship deck to prevent against contagion.
	Holding:	No Nexus. No Recovery.

4.	Legal Argument
	Hackney, J., Legal Argument in Tedla
			Outline Section 03.D.03 98.09.28  pp. 26,12a.SU

5.	Justification / Exception
	TEDLA v. ELLMAN, 19 N.E.2d 987 (1939)
Brother and sister (Plaintiff's) were walking back to Long Island from NYC.
			Outline Section 03.D.03.a 98.09.28  pp. 68.CB

	Facts:	Plaintiff's were walking on wrong side of road according to statute.  They did so because there was less traffic there. They thought it would be safer to stay on the side with fewer cars.
	Issues:	Follow Statute vs. Common Sense?  Defendant tried to argue that they were contributorily negligent.
	Rule:	Technically they violated the statute which required them to walk on the other side of the road.
	Holding:	Court said statutes were superfluous because sometimes people don't act with enough due care.  But Tedla did because it was safer to walk where there were fewer cars.  That made it OK not to follow statute.  No contributory negligence of Plaintiffs.

	Notes:	Statutory intention is to encourage reasonable care.

	BASSEY v. MISTROUGH, 450 N.Y.S.2d 604 (1982)
Defendant's car stops on highway and electrical system dies, violates statute which says lights should be on.
			Outline Section 03.D.03.b 98.09.28  pp. n3,68.CB

	Holding:	Court found the driver had an excuse to violate the statute.

	BAUMAN v. CRAWFORD, 704 P.2d 1181 (1985)
Child violating statute held to a modified standard.
			Outline Section 03.D.03.c 98.09.28  pp. n4,68.CB

	Holding:	Court holds that evidence of violation may be presented to the jury.
	Rationale:	The jury should then be instructed that violations may be considered as evidence of negligence only if jury finds that a reasonable child of the same age, intelligence, maturiy and experience would not have violated the statute.

	CASEY v. RUSSELL, 188 Cal.Rptr. 18 (1982)
Head on collision.
			Outline Section 03.D.04 98.09.28  pp. n6,69.CB

	Facts:	Passenger in one car sued both drivers because they had not stayed to right of middle or blown horns - both required by statute.

	Rationale:	Judge instructed jury to find negligence unless Defendants prove by a perponderance of the evidence that he did what might reasonably be expected of a person of ordinary prudence acting under similar circumstances, who desired to comply with the law.  Charge rejected on appeal because it did not note that there may be exceptional circumstances - justifications for violating statute.

6.	Liscensed Professional
	BROWN v. SHYNE, 151 N.E. 197 (1926)
Defendant Chriopractor injured Plaintiff by doing something only a licensed physician should do.
			Outline Section 03.D.05 98.09.28  pp. n11,73.CB

	Holding:	License is a status issue and not releveant.  What is before the court is a negligence claim, status does not necessarily equal conduct.

	Notes:	Later reversed by statute which stated that in any action for personal injuries against a person not authorized to practice medicine, the fact that such person practiced medicine without a license is prima facie evidence of negligence.

7.	Legal Options
	HERNANDEZ v. MARTIN CHEVROLET, INC., 649 N.E.2d 1215 (1995)
Statute barred from use in civil case
			Outline Section 03.D.06 98.09.28  pp. n12,73.CB

8.	Custom vs Statute
	ROBINSON v. DISTRICT OF COLUMBIA, 580 A.2d 1255 (1990)
Plaintiff hit by a police van when crossing outside a marked crosswalk (customary, but) against statute. Statute prevails over custom.
			Outline Section 03.D.07.a 98.09.28  pp. n7,70.CB

	LANGER v. CAVINESS, 28 N.W.2d 421 (1947)
Defendant's full truck coming downhill collided with Plaintiff's empty truck going uphill.
			Outline Section 03.D.07.b 98.09.28  pp. n7,70.CB

	Facts:	Narrow point on a construction road.

	Holding:	Defendant admitted statutory violation could not be justified by trucking custom giving downhill trucks right of way in that situation.  But custom does support argument for Plaintiff's contributory negligence.
	Rationale:	Motorist who complies with statute is not necessarily using due care.

F.	Res Ipsa Loquitur RIL
1.	General Concept
	BYRNE v. BOADLE, 159 Eng.Rep. 299 (1863)
Flower Pot dropped on Plaintiff's head
			Outline Section 03.E.01.a 98.10.05  pp. 80.CB

	Notes:	RES IPSA LOQUITUR:
		Quacks like a duck.  Walks like a duck. Res Ipsa Loquitur: Its a duck.
		A. Accident would not have occured in the ordinary course of events  in the absence of Defendant's negligence.
		B. Accident caused by an agency or instumentality under the exclusive control of the Defendant.
		C. Accident was not the result of Plaintiff's contributorily fault.
		RIL Evidence:
		1. Majority rule: creates permissible inference of negligence, or establishes PFC evidence then to jury.
		2. Presumption of negligence, Defendant must rebut.
		3. Burden of Proof shifts to Defendant
		4. No where is it considered conclusive proof.
		RIL RARELY SUCCEEDS. ONLY USE AS A LAST RESORT.

	BIERMAN v. CONSOLIDATED EDISON CO., 320 N.Y.Supp. 2d 331 (1970)
Woman whose basement flooded because city water main broke.
			Outline Section 03.E.01.b 98.10.05  pp. 116,302.SU

	Notes:	Because water main is under exclusive control of the city, there is an inference that their negligence is the cause of the accident.  Absent proof to the contrary from the city, the city is liable.

2.	Background
	Hackney, J., Evidence and Proof in Civil Actions
			Outline Section 03.E.02 98.10.05  pp. 27,13.SU

	Hackney, J., Res Ipsa Loquitur
			Outline Section 03.E.03 98.10.05  pp. 31,15.SU

3.	RIL PFC
	Hackney, J., Evidentiary Effect of Proofs of Negligence
			Outline Section 03.E.04 98.10.05  pp. 36,19.SU

4.	Multiple Defendants / Unknown Instrument
	YBARRA v. SPANGARD, 154 P.2d 687
Surgery left Plaintiff paralysed in part.
			Outline Section 03.E.05 98.10.05  pp. 90.CB

	Facts:	Plaintiff underwent surgery for appendicitis.  Upon regaining consciousness he realized he had a shoulder paralysis.  Plaintiff sued the entire operating party.
	Issues:	Without knowing who specifically injured the patient with what specific instrumentality (2nd element of PFC) can there be liability?

	Holding:	Court held that where Plaintiff suffers an unusual injury while unconscious, all those Defendants who had any control over his body or instrumentalities that may have caused the injuries may propertly be called on to meet the inference of negligence by giving an explanation of their conduct.

	Policy:	Plaintiff can't possibly know who was at fault.  Burden should therefore fall on all potential Defendants.

5.	Rebuttal to Ybarra?
	JUDSON v. GIANT POWDER CO., 107 Cal. 549 (1895)
Nitrogen plant explodes killing all who could possibly know anything.
			Outline Section 03.E.06 98.10.05  pp. n7,97.CB

	Holding:	Court holds sufficent evidence present to withstand a nonsuit against Plaintiff suing for property damage.

6.	Limits to Ybarra; Hospital
	BARRETT v. EMANUEL HOSPITAL, 669 P.2d 835; 675 P.2d 491 (1983)
Rejects Ybarra.
			Outline Section 03.E.07.b 98.10.05  pp. n8,97.CB

	Holding:	RIL inference permitted only when Plaintiff can establish probability that a particular Defendant's conduct was cause of Plaintiff's harm.
	Rationale:	Special protection for unconscious Plaintiff's can be established in other ways i.e. Respondeat Superior or Strict Liability.

7.	Limits to Ybarra; Hotel
	FIREMAN'S FUND AMER. INS. CO. v. KNOBBE, 562 P.2d 825 (1977)
Two couples smoking in hotel room start a fire.
			Outline Section 03.E.07.c 98.10.05  pp. n5,96.CB

	Facts:	Hotel's insurance company sued four guest for fire damages.

	Holding:	No liability because it can't be determined who was negligent.  No extension of YBARRA.

	Policy:	No extension for lack of Policy concerns?

8.	Limits to Ybarra; Nursery
	FOWLER v. SEATON, 394 P.2d 697 (1964)
Four year old with concussion, bump on the head and cross eyed after a day at nursery.
			Outline Section 03.E.07.d 98.10.05  pp. n11,88.CB

	Holding:	Majority finds RIL
		DISSENT said Plaintiff had obligation to present facts to show that the accident more likely than not the result of inadequate supervision.

	HELTON v. FOREST PARK BAPTIST CHURCH, 589 S.W.2d 217 (1979)
Child at day care was poked in the eye.  Day care worker couldn't tell what caused it.
			Outline Section 03.E.07.e 98.10.05  pp. n11,88.CB

	Holding:	No causal agent no RIL.

IV.	Causation
A.	Causation-In-Fact CIF
1.	Negligence PFC
	Hackney, J., Prima Facie Case of Negligence
			Outline Section 04.A.01 98.10.08  pp. 20,6.SU

	Notes:	Defendant's negligent act or omission will be deemed a cause in fact of Plaintiff's injury if and only if the injury would not have occurred but for the Defendant's conduct.
		
		BASIC PROOF ISSUES (METHODS):
		1. Eye witness, expert, circumstantial evidence.
		2. Plaintiff has burden of proving causal relationship by a preponderance of the evidence.  Plaintiff must eliminate all other explanations for accident.

2.	But-For Test; Conjecture
	GRIMSTAD: N.Y. CTR. R.R. v. GRIMSTAD, 264 F.334 (1920)
Grimstad fell off boat and drowned.
			Outline Section 04.A.02 98.10.08  pp. 160,325.SU

	Facts:	Captain Grimstad who could not swim fell off the barge owned by RR and drowned.  His wife sued alleging negligence because there were no life buoys she could throw to him.
	Issues:	Was the lack of life buoys a case-in-fact?

	Holding:	Plaintiff can not succeed at suit because there were no buoys. Direct cause of death was falling into the water.  Irrespective of whether or not there had been a buoy, he would have died because she wouldn't have had time to reach one and throw to him.

	Policy:	Even if 'but-for' contingency doesn't exist you can argue for it on policy. Cause-in-fact is therefore subject to policy manipulation.  It's all in how you frame the issue.

3.	Basic Proof Issues
	MITCHELL v. PEARSON ENTERPRISES, 697 P.2d 240 (1985)
Guest in Defendant's hotel murdered.
			Outline Section 04.A.03.a 98.10.08  pp. n9,300.CB

	History:	Summary Judgment for Defendant.
	Facts:	No signs of forced entry. No witnesses.  Plaintiff sued for inadequate security/negligence.

	Holding:	Court affirmed summary judgment for Defendant because there is a lack of proof of causation.
	Rationale:	Killer's idntity or method of entry was pure speculation

	WOLF v. KAUFMANN, 237 N.Y.S. 550 (1929)
Court says any connection between the poorly lit stairs and the injury is speculative.
			Outline Section 04.A.03.b 98.10.08  pp. n5,298.CB

	HINMAN v. SOBOCIENSKI, 808 P.2d 820 (1991)
Court says there is a reasonable inference of cause-in-fact (inferred from common experience).
			Outline Section 04.A.03.c 98.10.08  pp. n5,298.CB

	Notes:	Basic Proof type cases are not amenable to expert testimony etc.

	WILSON v. CIRCUS CIRCUS HOTELS, INC., 710 P.2d 77 (1985)
Child gets food poisoning in Los Vegas.
			Outline Section 04.A.03.d 98.10.08  pp. n8,299.CB

	Facts:	After eating in hotel casino child gets food poisining.  Plaintiff calls on expert testimony (bacteriologist) who says 80% chance that boy got sick at Defendant's hotel.

	Holding:	Court finds Plaintiff sufficiently excluded other causes even though they did not have a direct line causal explanation.

4.	Complex (Type II: Toxic Torts) Proof Issues
	Hackney, J., Causation-In-Fact
II(A) Does agent cause disease; II(B) Was Plaintiff's injury caused by agent
			Outline Section 04.A.04.a 98.10.08  pp. 37,20.SU

	Notes:	PROOF ISSUE: The problem is proving the toxic agent actually caused the disease from which Plaintiff suffers.
		ANALYSIS:
		a. This agent causes this type of injury.
		b. This agent was under Defendant's control.

	STUBBS v. CITY OF ROCHESTER, 124 N.E. 137 (1919)
II(B) Long Delay - Fire/sewage water mixed with drinking/fresh water
			Outline Section 04.A.04.b 98.10.08  pp. 294.CB

	History:	Summary Judgment for City Defendant.  Appeal herein.
	Facts:	City had a water system for drinking and a water system for fire fighting.  The two systems became intermingled.  Plaintiff drank contaminated water and contracted Typhoid fever.  Blamed city for negligence.
	Issues:	City argued that there are many different ways to get typhoid fever and won SJ.

	Holding:	Appellate Court Reverses.
	Rationale:	Reasonable certainty is what is required to get past SJ to jury, not absolute certainty. Plaintiff had produced suffient evidence for a jury to hear the case.

	Notes:	This case shows that if court hung onto a rigid interpretation of Cause-In-Fact, no one would be able to recover.

	ALLEN v. U.S., 588 F.Supp 247 (1984)
II(B) Non Specific - Nuclear Testing Nevada
			Outline Section 04.A.04.c 98.10.08  pp. 183,353.SU

	Facts:	Plaintiff's got leukemia due to government's nuclear weapons testing fall out.
	Issues:	Plaintiff's allege that government policy was to do testing only on days when wind was blowing away from populated areas (upwind days).  Government did not warn those downwind or test radiation levels around them where they were living in sparsely populated regions.
		CAUSATION PROBLEMS: Government did not keep records.  Many types of cancer were reported some of high radiation risk, some low.  Latency period was very long (months to decades) and lack of a threshold dose of radiation.  ALL THESE COULD ALSO BE INTERVENING CAUSES

	Holding:	Original Court found Defendant government negligent and shifted burden to Defendant after Plaintiff showed the following:
		a. exposure to excess radiation;
		b. Plaintiff's injury is a type caused by radiation;
		c. Plaintiff lived in area at time of testing;
	Rationale:	Court considered statistical proof because it did not know what else to do.  Courts looked at precedent indicating CIF is not rigid, particulalry Ybarra, supra and Summers v. Tice, infra.
	Policy:	Policy Alternatives:
		a. Forget it.  There is no way to prove a thing.
		b. Provide recovery to anyone who can prove exposure (enhanced risk).
	Notes:	Latency period of years.  Plaintiff claimed to get leukemia from nuclear testing but could not succeed in claim.  Plaintiff's injury could only be proven to derive from Defendant's tests if test were shown to be a substantial factor of illness.

5.	Resolution; Application
	SUMMERS v. TICE, 199 P.2d 1 (1948)
Type I: CIF is not rigid: Scientific Proof. Rule Formulation. Two hunters shoot there friend
			Outline Section 04.A.05.a 98.10.08  pp. 325.CB

	YBARRA v. SPANGARD, 154 P.2d 687 (1944)
CIL is not rigid: Scientific Proof. Rule Formulation
			Outline Section 04.A.05.b 98.10.08  pp. 90.CB

6.	Causal Uncertainty Categories
	Hackney, J., Categories of Causal Uncertainty
			Outline Section 04.A.06 98.10.08  pp. 43,26.SU

B.	Causal Uncertainty
1.	Lost Opportunity
	FALCON v. MEMORIAL HOSPITAL,
Nena Falcon, 19, died in child birth of an Amniotic Fluid Embolism
			Outline Section 04.B.01.a 98.10.18  pp. 300.CB

	Facts:	Woman dies after giving birth from an unpreventable condition.  Expert testifies that it was negligent of Defendant not to have inserted an IV line that would have given mother a 37.5% better chance of survival.

	Holding:	Court said that had Defendant acted, fate would have determined her death.  Failure to act was a loss of her opportunity for living.
		DAMAGES were calculated as % of loss of opportunity.  If chance had been greater than 50%, then full recovery would have been granted.
	Rationale:	DISSENT (Formalist View)
		Lost opportunity theory lowers the threshold of proof and will undermine the truth seeking function of the system.  Says this will be a payout scheme based on % rather than on a compensatory system. This will increase the cost of preventative medicine.
	Policy:	Clear example of how causation is a tool for policy: Can be broadened to accomodate factual situations and deter negligent behaviour
	Notes:	LOSS OF OPPORTUNITY DEFINED: Injury has yet to occur or perhaps may never occur but probability of injury is increased.
		Damages determined on percentage of loss of opportunity.  Lower than 50% probability of cause results in no recovery for damages.

	FENNEL v. SOUTHERN MARYLAND HOSPITAL CENTER, INC.,
Defendant Hospital's Negligence deprived decedent of a 40% chance of survival
			Outline Section 04.B.01.b 98.10.18  pp. n6,308.CB

	Holding:	Court denied all recovery where Plaintiff had shown that Defendant's negligence had deprived decedent of a 40% chance of survival.
	Rationale:	They were concerned with the fairness to a Plaintiff with 49% loss recovering 49% vs. a Plaintiff with 51% loss recovering 100%.  Also conduct of trials unreliable and confusing (use of statistics that can be manipulated).  May increase cost of medical services.

2.	Lost Opportunity (Death)
	KRAMER v. LEWISVILLE MEMORIAL HOSPITAL,
All or Nothing; Either the survival statute or the wrongful death statute
			Outline Section 04.B.01.c 98.10.18  pp. n6,309.CB

	Holding:	(Follows Falcon Disent supra)  Court held that any claim must come under survival statute or wrongful death claim and both require a showing of causation.
	Rationale:	Courts feared being forced to award damages where chances of recovery are lowered but patient beats the odds.  Also feared extension to lawyers whose negligence would reduce a 40% chance of recocery to 15%.

3.	Action alleging malpractice; burden of proof; Standard of Care
	Michigan Compiled Laws Annotated sec. 600.2912a,
			Outline Section 04.B.02 98.10.18  pp. 142,324a.SU

4.	No Lost Opportunity
	WEYMERS v. KHERA,
Goodpasture's Syndrome; Kidney Biopsy
			Outline Section 04.B.03 98.10.18  pp. 143,324b.SU

5.	Enhanced Risk; Emotional Harm (Physical Injury)
	MAURO v. RAYMARK INDUSTRIES, INC.,
Enhanced Risk of Asbestos Related Cancer; Pleural Asbestosis and calcification of diaphragm
			Outline Section 04.B.04.a 98.10.18  pp. 311.CB

	Facts:	Plaintiff was exposed to asbestos and sued for increased risk of cancer, emotional distress (fear of cancer).  Expert said he was not testifying that it was probable that O would contract cancer, only that there was now a risk.

	Holding:	One can not collect for an enhanced risk because illness might never occur.
	Rationale:	Plaintiff must prove that disease is reasonably probable to occur.  Plaintiff can sue later if the illness actually develops (without prejudice).
		DISSENT: Plaintiff's enhanced risk should be considered an element of a present injury and be compensated now because causation might be harder to prove later.
	Policy:	Less compensation costs means asbestos industry continues in its ways. This undercuts deterrence.
	Notes:	Plaintiff could have recovered if he had an injury and an enhanced risk.

6.	Enhanced Risk; Strict % basis
	PETRIELLO v. KALMAN
Compensation for risk of future harm given Obstetrician's negligence in surgery
			Outline Section 04.B.04.b 98.10.18  pp. n4a,318.CB

	Facts:	Defendant obstetrician perfoms a negligent procedure on Plaintiff who suffered an immediate injury and a real (though only 8-16%) increased risk of a specific future injury.

	Holding:	Plaintiff was allowed to recover for emotional distress for the risk of future harm.
	Rationale:	Expert testimony had shown her anxiety to be reasonable.  Plaintiff was only allowed to recover because there was also a present and immediate injury.

7.	Enhanced Risk; Two disease approach
	MARINARI v. ASBESTOS CORP.,
Baring any recovery for enhanced risk until anticipated condition develops
			Outline Section 04.B.04.c 98.10.18  pp. n4d,319.CB

	Facts:	Plaintiff was exposed to asbestos and shows an immediate result of Pleural thickening of lung walls.

	Holding:	Court barred any recovery for enhanced risk until the anticipated condition exists using a two disease approach. (1. Asbestosis; 2. Cancer).  Court went beyond Mauro because it demanded 100% for condition to qualify for recovery.
	Rationale:	No cancer with pre-cancer damages is unfair; Cancer without pre-cancer damages is unfair.  Even if cancer and pre-cancer damages, its likely that an award will be granted because the jury had risk of cancer in mind not cancer.  Actual financial needs of the Plaintiff are better known later, if and when the disease actually manifests.

8.	Emotional Harm; Serious fear; Potter Test
	POTTER v. FIRESTON TIRE AND RUBBER CO.,
Potter Test: To recover on emotional damages without presenting any physical injury.
			Outline Section 04.B.05 98.10.18  pp. n6,320.CB

	Rule:	Plaintiff must show:
		1. As a result of Defendant's negligent breach of a duty to Plaintiff, Plaintiff was exposed to a toxic substance that threatens cancer;
		2. Plaintiff's fear stems from a knowledge corroborated by medical/scientific opinion that cancer is more likely than not to develop due to the exposure; and
		3. Fear that toxic exposure was of such a magnitude and proportion as to likely result in feared cancer.

	Policy:	In favour of strict test: We are all exposed to stuff all the time and a wider liability would have an unduly detrimental impacr on the medical health sciences as a whole.

9.	Medical Surveillance
	THEER v. PHILIP CAREY CO.,
Wife concerned for her own health after her husband dies of Asbestos related disease.
			Outline Section 04.B.06.a 98.10.18  pp. n5b,320.CB

	Facts:	Plaintiff's husband had died of an asbestos related disease.  She, a longtime smoker, claimed exposure to asbestos through laundering his clothes.
	Issues:	Wife seeks recovery for medical surveillance.
	Rule:	POTTER TEST: (In order to recover, Plaintiff must show...)
		a. Direct exposure;
		b. Injury resulting from that exposure; and
		c. No intervening causes.
	Holding:	Court denied claim for recovery based on a. and c. above.  Plaintiff suffered from indirect exposure at best and was also a smoker.

	HANSEN v. MOUNTAIN FUEL SUPPLY CO.
Added requirement for Potter Test.
			Outline Section 04.B.06.b 98.10.18  pp. n5c,320.CB

	Rule:	Plaintiff must also prove that "by reason of exposure to toxic substance, casued by Defendant's negligence, a reasonable physician would prescribe for him or her a monitoring regime different from one prescribed in the absence of such exposure"

10.	Expert Testimony
	FRYE v. U.S.
Expert must be firmly grounded in scientific field and must be directly related to the same scientific community.
			Outline Section 04.B.07.a 98.10.18  pp. n8,322.CB

	DAUBERT v. MERRELL DOW PHARMACEUTICALS INC.,
Relaxed view from Frye, supra. Expert does not have to be grounded in same scientific orthodoxy as long as expert is tenable.
			Outline Section 04.B.07.b 98.10.18  pp. n8,322.CB

11.	Joint and Several Liability (Type I: Multiple Defendants)
	SUMMERS v. TICE, 199 P.2d 1 (1948)
Two hunters are jointly and severely liable to their friend when they shoot him in the eye and lip with birdshot
			Outline Section 04.C.01 98.10.19  pp. 325.CB

	Facts:	Both Defendants shot at Plaintiff whil hunting.  Both were using same gauge shot gun pellets.

	Rule:	SUBSTANTIAL FACTOR TEST prevents multiple Defendans from escaping liability for their acts or omissions by changing the "but-for" criteria to whether or not the negligent actor's conduct was a material element and a substantial factor in bring about Plaintiff's injury.  ANYTHING WHICH IS NOT TRIVIAL IS SUBSTANTIAL.
	Holding:	Court ordered judgment against both for shooting Plaintiff.
	Rationale:	Importantly, the burden shifts to the Defendant because Plaintiff can't prove who did it).  Defendants are in a better position to prove who did or did not cause the harm.

	Notes:	MULTIPLE DEFENDANTS TYPE I UNCERTAINTY (Joint & Several Liability)
		In joint causation we are concerned with how to allocate legal responisbility between two or more known or identified causes.
		
		1. JOINT TORT/JOINT ACTION: when two or more individuals act in concert to commit a tort (conspiratorial intent not necessar).
		a. people who do this are called joint tortfeasors.  Usually each Joint Tortfeasor is "jointly and severally liable" for the entire damage done.  Both are liable for the entire amount; but Plaintiff can only collect once and must choose who to go after (usually the party which is solvent/has deep pockets)
		b. J&SL is also applicable in other kinds of situations.
		c. Used to be that one joint tortfeasor could not seek damages from the other but now the rule is that each one is liable for contribution to whichever one paid off the Plaintff.
		
		2. INDEPENDENT CONCURRING CAUSES ICC: More typical J&SL, when two or more Defendants act independently but actions combined to harm Plaintiff.
		a. J&SL is not applicable if specific injuries of Plaintiff can be tied to specific acts of Defendant.
		b. Another exception is that some Defendants are not liable if successive injuries are causally linked to the first Defendant.
		c. Yet another exception is the aggravated injury rule.  You hit me and injure my foot and then they drop me at a hospital and I break my hip.  You are liable for both.
		
		3. SINGLE INDIVISIBLE INJURY occurs then J&SL applies.
		a. coinciding causes: each cause was sufficient to bring about the injury itself -> J&SL
		b. combining causes: each cause is essential to the injury but not sufficient to bring about the injury all by itself -> J&SL
		
		4. ICC CASES are not the same as alternative liability like summers.  In alternative liability, it is proable or even certain that the two causes did not combine or coincide.  However practically alternative liability leads to J&SL.

12.	DES Cases (Type I: Multiple Defendants)
	HYMOWITZ v. ELI LILLY & CO., 541 N.Y.S.2d 941 (1989)
Mass Torts Litigation.  Diethylstilbestrol (estrogen analogue) abused in pregnancies left daughters sterile.
			Outline Section 04.C.02.a 98.10.19  pp. 329.CB

	Facts:	HISTORY:
		1. DES is a synthetic estrogen approved for limited usage at first.
		2. After FDA approval, usage expanded radically. Drug became general all purpose pregnancy pill.
		3. Given to pregnant women 15 years after research had shown it was not effective in preventing miscarriages.
		4. Rare forms of vaginal cancer restricted to elderly women started to appear in young women.  Eventually cause was linked to prenatal exposure to DES through moms.
		5. FDA banned DES in 1971.
		6.  Hormone supplements are still abused today and given to improve quality of live stalk in U.S.
		
		DES was given to mothers to make "normal pregnancies go more normally."
	Issues:	How does one identify the exact manufacturer of DES ingested in a particular instance.  Hundreds of companies were producing generic product at its peak.  All pills were the same.
	Rule:	Many claims were barred by the statute of limitations since daughters only realized they were victims and infertile 15-30 years after the fact.
		Courts conceived  the market share theory with limited application where:
		1. Producers acted in parallel manner;
		2. Generic product was fungible (the same) across producers; and
		3. A long latency period existed between exposure and manifestation of injury.
		
	Holding:	MARKET SHARE THEORY: Using the national market share of each manufacturer, that manufacturer's liability was calculated as a percentage of their output vs. total market production.
	Rationale:	Since no remedy was available via traditional mechanisms, courts decided to go outside of the torts context in the name of justice.

	BROWN v. SUPERIOR COURT (ABBOTT LABORATORIES), 751 P.2d 470 (1988)
Distinguishes Joint Liability from Several Liability
			Outline Section 04.C.02.b 98.10.19  pp. 534.CB

	Holding:	Several Liability.
	Rationale:	Courts goal is to achieve the closest approximation possible between each Defendant manufacturer and its idividual responsibility for the injuries caused.

	Notes:	Under Joint Liability, Defendants have to bear the cost of certain manufacturers who are not counted in the pool i.e. no longer exist.
		Under several liability, a Defendant is only liable for its portion of the market at the time of the action. This way, the Plaintiff (although compensated in some way) could be left without full compensation but the Defendant is only responsible for their portion of the injury.
		Thus the courts chose several liability

13.	Market Share w/Asbestos (Type I: Multiple Defendants)
	GOLDMAN v. JOHNS-MANVILLE SALES CORP. 514 N.E.2d 691 (1987)
No market share theory - not all asbestos has the same formula (lack of fungibility)
			Outline Section 04.C.03.a 98.10.19  pp. 339.CB

	Notes:	WHEELER: Market share extended because asbestos content in brake pads sufficiently fungible.

14.	Market Share w/Vaccinations (Type I: Multiple Defendants)
	SHACKIL v. LEDERLE LABORATORIES, 561 A.2d 511 (1989)
No Market Share
			Outline Section 04.C.03.b 98.10.19  pp. 340.CB

	Rationale:	a. Not a generic product
		b. Defect in production not design
		c. Not a long latency period
	Policy:	d. Vaccines are good.  We don't want to discourage their production generally.

15.	Market Share w/Lead Paint (Type I: Multiple Defendants)
	SANTIAGO v. SHERWIN WILLIAMS CO., 3 F.3d 546 (1993)
Type II causal uncertainty (toxic torts). No market share.
			Outline Section 04.C.03.c 98.10.19  pp. 340.CB

	Notes:	Some ambiguity about when the apartment was painted and pinpointing the manufacturers in busines at the time.  Also neighbourhood was highly contaminated

16.	Market Share w/Blood (Type I: Multiple Defendants)
	SMITH v. CUTTER BIOLOGICAL, INC. 823 P.2d 717 (1991)
National Market.
			Outline Section 04.C.03.d 98.10.19  pp. 340.CB

	Holding:	Court adopted a national market share analysis.
	Rationale:	This defied previous logic since blood plasma has no fungiblity.  Courts decision was based on safety insured by adherence to production standards.
	Policy:	Tort Law seeks to persuade manufacturers to tighten controls perhaps because of HIV fear.

17.	Market Share w/Paint VOCs (Type I: Multiple Defendants)
	SETLIFF v. E.I.DuPONT DE NEMOURS & CO., 38 Cal.Rptr.2d 763 (1995)
Volatile Organic Compounds (VOC) in a paintshop. Market share rejected - lack of fungibility.
			Outline Section 04.C.03.e 98.10.19  pp. 341.CB

	Notes:	Different brands of paints.  Different chemical compositions.  But generally all contained harmful things in them.  Nature of the industry.

18.	Market Share w/Guns (Type I: Multiple Defendants)
	HAMILTON v. ACCU-TEK, CV-95-0049 E.Dist. (New York Law Journal, May 3, 1996)
Gun manufacturers charged with responsiblity of allowing illegal guns to enter stream of commerce.
			Outline Section 04.C.03.f 98.10.19  pp. 180,349.SU

	Facts:	Plaintiffs want industry liability. Defendants say Cause-In-Fact hasn't been met.

	Holding:	Limited holding.  There is enough evidence present to pass Summary Judgment.

19.	Policy (Type I: Multiple Defendants)
	Rabin, Robert L., Environmental Liability and the Tort System
Three Common Problems in every case of harm from toxic or other pollutants.
			Outline Section 04.C.04.a 98.10.19  pp. 341.CB

	Policy:	1. Problems of identification - toxins of all sorts breed disease rather than cause immediate injury.  Technical assistance is necessary to define attribution.
		2. Problems of boundaries: post generational consequences.
		3. Problems of source: environmental harm is a consequence of the aggregate risk created by a considerable number of independantly acting enterprises.

	Malone, Ruminations on Cause-In-Fact, 9 Standford Law Review 60 (1956)
Politics
			Outline Section 04.C.04.b 98.10.19  pp. 161,326.SU

	Policy:	You can play on a jury's sympathies to achieve a just result regardless of instructions and legal definitions given to jury.

C.	Proximate Cause
1.	Introduction
	VENTRICELLI v. KINNEY SYSTEM RENT-A-CAR, 383 N.E.2d 1149 (1978)
Plaintiff pulls over into city parking space to fix defective trunk and is hit by a car
			Outline Section 04.D.01.a 98.10.21  pp. n11,358.CB

	Rule:	Meets "but-for" but not proximate causation"
	Holding:	Negligence of the car rental place merely furnished the occasion for an unrelated act to cause injuries don orinarily anticipated.

2.	General Formulation
	HARPSTER v. HETHERINGTON, 512 N.W. 2d 585 (1994)
Plaintiff is a dogsitter.  Dog escapes through fence and Plaintiff goes after it and slips on Defendant's icy front steps.
			Outline Section 04.D.01.b 98.10.21  pp. n11,359.CB

	Issues:	Plaintiff complains how "but-for" can bring in all types of causes.

	Holding:	Court finds no proximate cause.

	BERRY v. SUGAR NOTCH BOROUGH, 43 A. 240 (1899)
Speeding Trolley sideswiped by a tree.
			Outline Section 04.D.01.c 98.10.21  pp. n11,359.CB

	Facts:	Tree falls on a speeding trolley car injuring passengers.
	Issues:	Does the fact that the trolley was speeding make the Defendant contributorily negligent?

	Holding:	NO! Defendant was not the proximate cause because it was not foreseeable that speeding would result in a tree falling on the trolley.

3.	Direct Consequences
	Polemis [1921] All.E.R. 40 (Ct.App.1921)
Plank dropped into hold of ship set off a spark which ignited stored benzine.
			Outline Section 04.D.02 98.10.21  pp. 352.CB

	Facts:	Owners of ship sought to recover damages from Defendants who chartered a ship.  Defendant had dropped a plank that resulted in a spark which ignited benzine in the hold.  Fire destroyed the whole ship.

	Rule:	DIRECTNESS TEST: Defendant is liable for injuries directly traceable to Defendant's negligent acts.
	Holding:	Court found for Plaintiff.  Even though spark was not reasonably foreseeable.
	Rationale:	The initial conduct of dropping the board was negligent to begin with and therefore Defendant should be liable for all that results from that

4.	Foreseeability View
	WAGONMOUND: OVERSEAS TANKSHIP (UK) LTD. v. MORTS DOCK & ENGINEERING CO., LTD. [1961] A.C. 338
			Outline Section 04.D.03.a 98.10.21  pp. 353.CB

	Notes:	WAGONMOUND I:
		FACTS: The Wagonmound spilled oil in the harbour.  Plaintiffs were the owners of a ship repairing firm working in the same harbour.  Wagonmound made no effort to disperse the oil.  Plaintiff who was welding stopped all activity until it was determined that the welding would pose no threat due to the oil.  After repairs resumed, a spark caught a rag on fire which fell to the water and ignited the oil.
		ANALYSIS: But-for causation established that oil in water is negligence.  But there was no proximate cause because fire was not foreseeable.
		HOLDING: Defendant wins discrediting/overruling Polemis and sets up the REASONABLE FORESEEABILITY TEST
		
		WAGONMOUND II:
		FACTS: As above. Plaintiffs in this case were owners of a ship in the harbour who brought a separate action against Defendant.
		HODLING: Defendant liable.
		ANALYSIS: Court said that the Defendant might have foreseen fire.  This was reconciled with Wagonmound I because first Plaintiff didn't want to discuss foreseeability for fear that they would be found contributorily negligent.  But Plaintiff in this case could not have foreseen the fire.

5.	Duty (Cardozo for Majority)
	PALSGRAF v. LONG ISLAND RAILROAD CO., 162 N.E. 99 (1928)
Fireworks in a package fall and dislodge scales which fall on plaintiff at train station.
			Outline Section 04.D.03.b 98.10.21  pp. 366.CB

	History:	Trial court awarded damages.  Appeals court reverses herein.
	Facts:	Plaintiff woman was struck by falling scales on a train platform 25 feet from where a man was running to make a train with a package in hand.  The Defendant conductor attempted to help the man onto the train but negligently knocked a pagage from his hands which, unknown to anyone, contained fireworks.

	Holding:	CARDOZO reversed judgment of trial court.
	Rationale:	Cause In Fact was established but Proximate Cause was not.  In order to establish proximate casue for this unexpected event, Plaintiff must establish that a LEGAL DUTY was owed to her specifically and not merely to others.  Defendant owed no special duty of care.  Nothing in this situation gave notice that the falling package could cause harm to someone 25 feet away on the same platform.

6.	Duty (Andrews Dissent)
	PALSGRAF v. LONG ISLAND RAILROAD CO., 162 N.E. 99 (1928)
			Outline Section 04.D.03.c 98.10.21  pp. 370.CB

	Rationale:	DISSENT (ANDREWS): Polemis should be the case precedent here.  It has a broader view of duty and causation.  Everyone owes a duty to the world at large to refrain from those acts which might unreasonably threaten the safety of others.  Even those outside the zone of danger. "because of convenience, public policy or a rough sense of justice, the law arbitaririly declines to trace a series of events beyond a certain point.  This is not logic.  It is practical politics."

	Notes:	FULL DEFINITION OF PROXIMATE CAUSE:
		a. Cause-In-Fact: something without which the result would not have happened.
		b. Natural and Continuous Sequence? Substatnial Factor not too Attenuated?
		c. Was the result Foreseeable?
		
		According to Andrews, we don't have to do this duty analysis, we can have generalized duty and if we try hard enough we can make an appropriate determination of liability through the use of proximate cause.

7.	Negligence Per Se and Proximate Cause
	LARRIMORE v. AMERICAN NATIONAL INSURANCE CO., 89 P.2d 340
Rat poison explodes near cofee burner
			Outline Section 04.E.01 98.10.22  pp. 198,368.SU

	Facts:	Defendant Hotel keeper supplied rat poison to a tenant.  Tenant placed poison near a coffe burner and poison exploded.

	Rule:	Plaintiff (employee) relied on a statute that made it a misdemeanor to put poison in other than a safe place.
	Holding:	Court held for Defendant.  Defendant had no way of knowing the explosive nature of the rat poison.  Statute addresses risk, but explosion was not the kind of risk the statute was designed to address.
	Rationale:	No Nexus.  Foreseeability Everywhere.

	Notes:	Scope of the Risk:
		A negligent actor is legally responsible for the harm and only that harm which is:
		1. caused-in-fact by his or her negligent conduct AND
		2. is a result within the scope of the risks by virtue of which we deem his/her conduct to be negligent, a determination based on the foresight of a reasonably prudent person at the time and under the circumstances.

8.	Rescue Fact Pattern
	WAGNER v. INTERNATIONAL RAILWAY CO., 133 N.E. 437 (1921)
Plaintiff hurt while trying to rescue cousin who fell from train.
			Outline Section 04.E.02.a 98.10.22  pp. 375.CB

	History:	Trial judge said Defendant cousin was not liable unless s/he invited Wagner's rescue.  Appellate court reversed herein.

	Rationale:	CARDOZO: "Danger invites rescue.  The cry of distress is a summons to relief.  The law does not ignore these reactions of the mind in tracing conduct to its consequences.  It recognizes them as normal...  The wrongdoer may not have foreseen the coming of a delverer.  He is accountable as if he had."
	Policy:	Public policy wants to encourage rescues.
	Notes:	Inconsistent with Palsgraf where there can be NO PIGGY BACKING OF WRONGS!

9.	Non-Emergency Fact Pattern
	MOORE v. SHAH 458 N.Y.S.2d 33 (1982)
Not spontaneous. No recovery. Son donates kidney to father.
			Outline Section 04.E.02.b 98.10.22  pp. 376.CB

	Holding:	Court refused to grant the Rescue Doctrine to a son who donated his kidney to his father (who needed it due to the Defendant's negligence) because action was deliberate and reflective rather than an emergency.

10.	Professional Rescuer Fact Pattern
	MALTMAN v. SAUER, 530 P.2d 254 (1975)
No recovery for Helicopter Rescue Team.
			Outline Section 04.E.02.c 98.10.22  pp. 430.CB

	Holding:	Court did not extend rescue doctrine to a helicopter rescue team killed trying to save the Defendant who negligently injured himself.  Professional rescuers could not recover if they were injured by a hazard closely related to the particular rescue operation.
	Rationale:	Plaintiff rescuer failed to show that death was in the reasonalby foreseeable realm created by Defendant's original negligence.

11.	New York Fire Rule Fact Pattern
	RYAN v. NEW YORK CENTRAL R. CO., 35 N.Y. 210 (1866)
Minority View. Sparks from engine ignited shed fire.
			Outline Section 04.E.02.d 98.10.22  pp. 378.CB

	Facts:	Sparks from Defendant's negligently maintained engine ignited one of its sheds and the fire spread to other buildings including the Plaintiff's building.

	Holding:	Court denied Plaintiff of recovery.  It is neither necessary nor unusual result that a fire should spread and other buildings be consumed by it.
	Rationale:	There are accidental and varying circumstances, i.e. degree of heat, condition and materials of adjoining structures.
	Policy:	Court felt that the purpose of insurance is to protect against loss on is exposed to as a member of society.  To hold a neighbour liable for his loss as well as his neighbour's loss would be the destruction of all civilized society.

12.	Criminal/Dangerous Conduct Fact Pattern
	WEIRUM v. RKO GENERAL, INC., 539 P.2d 36
Driver dies trying to find the DJ around town.
			Outline Section 04.E.02.e 98.10.22  pp. 164.CB

	Facts:	Radio contest has listeners drive all over L.A. to find DJ to win.  One driver negligently forces another driver off the road which causes death.

	Holding:	Court found radio station to be proximate cause of the driver's death.
	Rationale:	Distinguished from Olivia N., infra, because its more inciting than passive media.

13.	Criminal/Dangerous Conduct (Third Parties)
	OLIVIA N. v. NATIONAL BROADCASTING CO., 178 Cal.Rptr. 888 (1981)
Child raped by a bottle. Copy cat crime. Liability
			Outline Section 04.E.02.f 98.10.22  pp. 165.CB

	Facts:	Network aired a show where a 15 year old girl was raped by a bottle. A 9 year old brought a suit alleging that neighbourhood boys attempted to reenact the scene with her.
	Issues:	Is NBC negligent in having aired the program?

	Holding:	First and Fourteenth Amendments override the negligence standard.

	Notes:	DANGEROUS CONDUCT: Third Party Plaintiffs can recover, despite intervening causes if 3PPlaintiff suffers foreseeable harm from Defendent's negligence.

	HINES v. GARRETT, 108 S.E. 690 (1921)
Dangerous Conduct of Third Parties
			Outline Section 04.E.02.g 98.10.22  pp. n4,364.CB

	Facts:	Train improperly took a woman past her stop.  The conductor told her to walk back to depot through what he knew to be a bad neighbourhood.  She was raped.

	Holding:	Court held that the intervening criminal conduct did not insulate the RR from liability.  Foreseeability was key.

14.	Suicide Fact Pattern
	FULLER v. PREIS, 322 N.E.2d 263 (1974)
Suicide
			Outline Section 04.E.02.h 98.10.22  pp. n5,350.CB

	Holding:	Plaintiff's estate recovers from negligent driver after accident victim kills himself.
	Rationale:	Death of wife, mother's cancer diagnosis and note saying he knew what he was doing were not taken to be intervening causes.

	Notes:	Courtshave recently moved toward allowing recovery where the Defendent's negligence has severely injured a person who later commits suicide.

15.	Eggshell/Skull Rule Fact Pattern
	Hackney, J., Eggshell Skull Rule or Thin Skull Rule
Defendant takes her victim as she finds him.
			Outline Section 04.E.02.i 98.10.22  pp. 44,29.SU

	SMITH v. LEECH BRAIN & CO., [1962] 2 Q.B. 405
Welding burn on lip.
			Outline Section 04.E.02.j 98.10.22  pp. 357.CB

	Facts:	Defendent negligently provided inadequate shielding.  Plaintiff worker is burnt on lip. Burn never heals but ulcerates and develops into metastatic cancer.  Plaintiff dies three years later.

	Holding:	Court held as in Wagonmound, supra, that all Defendant needed to foresee was the possiblity of a burn (type of injury). Recovery granted.

D.	Proximate Cause
1.	Kinsman Test
	KINSMAN TRANSIT CO., 338 F.2d 708 (1964)
Icejam on river results in runaway boats, broken bridge, and flooded river.
			Outline Section 04.E.02.k 98.10.22  pp. 378.CB

	Facts:	Kinsman's crew responded inadequately to two icejams floating down the river.  The Kinsman broke loose, crashed into another boat and knocked it from its moorings.  Careening down the river, the boats crashed into a bridge (City negligently had not raised the bridge) causing it to fall into the river.  The bridge and boats and ice created a dam that flooded up river.

	Holding:	City, dock owner, and Kinsman were all negligent.
	Rationale:	Eggshell skull rule applied in Proximate cause context:
		The unforeseeability of the exact developments and of the extent of the harm will not limit liablity wher the damages resulted from negligence with foreseeable consequences.  (Obviously two ships careening downstream are going to create mega problems)  What happens when the danger is great and other than that which is expected?
	Policy:	Cost spreading and lessening social dislocation.
	Notes:	KINSMAN II (cf. PALSGRAF ANDREW's DISSENT, supra)
		Same as above except now two businesses suffering economic harm are bring a suit as a result of the damages.  Link between Defendant's negligence and Plaintiff's harm was too tenouous and remote to permit recovery.  Public policy argument makes sure we don't get Polemis outcome.  Court attmepts to limit chain of causation, says we don't have to worry about doctinal categories, we just need to use a little common sense.

2.	Causation Menu
	Hackney, J., Causation Analysis Steps
			Outline Section 04.E.02.l 98.10.22  pp. 45,30.SU

V.	Duty
A.	Introduction
1.	Negligence PFC
	Hackney, J., Prima Facie Case of Negligence
Andrew's generalized duty wins out.  We have a genral duty to act reaonably toward each other.
			Outline Section 05.A.01.a 98.10.26  pp. 20,6.SU

2.	General Conception
	HEAVEN v. PENDER, 11 Q.B.D. 503 (1883)
As far back as 1883 the duty of reasonable care standard was recognized.
			Outline Section 05.A.01.c 98.10.26  pp. 116.CB

	Notes:	"whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sens who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstnaces he would cause danger of injury to the person or property of the other, a duty arises to use orinary care and skill to avoid such danger."

3.	Privity Doctrine
	MAC PHERSON v. BUICK MOTOR CO., 111 N.E. 1050 (1916)
Car Manufacturer Defendant argued that by privity it only owes duty of product waranty to original purchaser/dealer and not to third party consumer Plainfiff.
			Outline Section 05.A.02 98.10.28  pp. 473.CB

	Facts:	Car breaks down as a result of sudden collapse of broken wooden wheel.
	Issues:	Should a third person (car owner) injured by a car manufacture's negligence be permitted to sue the manufacturer in absence of privity (contractual relationship arrising from direct purchase vs. purchase through a dealer)?

	Holding:	CARDOZO: Yes! Cardozo broke down privity doctrine permitting customers to sue the manufacturer for negligence.
	Rationale:	"If something is known to be dangerous when negligently made, it is then a thing of danger.  If added to that we know that it will be used by person other than the buyer without new tests, then irrespective of privity, the manufacture is under a duty to make it carefully."
	Policy:	Historical Context: (1916) This is the industrial age and Cardozo attempts to insure that manufacturers of mass produced goods behave non-negligently toward an unwary public.
		Public Policy: Loss spreading to person who can best afford to pay - Manufacturer.

4.	Rescue Duty in General?
	YANIA v. BIGAN, 155 A.2d 343 (1959)
Strip miner Defendant inveigles neighbor Plaintiff to jump into flooded trench; Defendant had no duty to save drowning Plaintiff
			Outline Section 05.A.03.a 98.10.28  pp. 207,380.SU

	Facts:	Defendant entices Plaintiff to jump into a water filled trench.  Defendant did not warn of danger nor attempt to rescue.

	Holding:	Court stated that Defendant had no legal responsiblity for placing Plaintiff in danger and no duty to rescue.

5.	Rescue Duty in Medicine?
	HURLEY v. EDDINGFIELD, 59 N.E. 1055 (1901)
Plaintiff's family physician is the only doctor available but he refuses to see Plaintiff - Plaintiff dies; Defendant not liable.
			Outline Section 05.A.03.b1 98.10.28  pp. 199,372.SU

	Facts:	Messenger tells doctor of former patient's serious illness.  Doctor refuses to come.

	Holding:	No duty on the part of the doctor to help unless he is the current physician of the person in question.  Without doctor-patient relationship, the doctor doesn't have to accept employement.

	CHILDS v. WEIS, 440 S.W.2d 104 (1969)
Texan doctor Defendant advises that a pregnant woman with bleeding and labor pains to contact her own doctor; nurse relays message as 'go to see your own doctor'; Plaintiff's baby dies on the road; No duty to assist.
			Outline Section 05.A.03.b2 98.10.28  pp. 200,373.SU

	Facts:	Black woman in labour sent away from emergency room by nurse who conferred with doctor.  Some dispute about whether or not the doctor told the nurse to send the patient away, or whether he just said to call her own doctor for consultation first.

	Holding:	Doctor had no duty because there was no Doctor-Patient relationship at the time.

	Policy:	Definite racial overtones to Nurses choice of action.  Mother lost baby enroute to another hospital.

	Hackney, J., Emergency Medical Treatment Act and "Patient-Dumping"
No Medicare funded hospital may turn away a patient in need of assistance from its emergency ward without first stabalizing the patient (1985).
			Outline Section 05.A.03.b3 98.10.28  pp. 204,377.SU

	Notes:	Federal statute, Medical Treatment and Active Labor Act, prohibits Medicare funded hospitals/ERs from turning away or transfer patients in need of emergency assistance before they have been stabalized.

6.	Relationship (Social Guest)
	HARPER v. HERMAN, 499 N.W.2d 472 (1993)
Plaintiff Herman who jumped off Defendant Harper's boat into 3 feet of water severed his spine; Defendant had no duty to warn Plaintiff of risk.
			Outline Section 05.A.03.c2 98.10.28  pp. 116.CB

	Facts:	Group of people out boating.  They drop anchor to swim in a shallow area.  Without asking, one of the visitors dives in, hits his head and is paralyzed as a result.  Plaintiff quadrapelegic sued Defendant boat owner for failure to warn.

	Holding:	Here court held that mere knowledge of the danger was not enough to impose a duty on boat owner Defendant because it did not appear that Plaintiff Harper in any way showed reliance on Defendant.

7.	Relationship (Social Co-Adventurer)
	FARWELL v. KEATON, 240 N.W.2d 217 (1976)
Decedent Farwell was severely beaten by girls' boyfriends, when after drinking with a friend, Siegrist, he followed girls into a resturant; Siegrist left Farwell unconscious in car at grandparents' house.
			Outline Section 05.A.03.c3 98.10.28  pp. 125.CB

	Facts:	Two guys out drinking.  Fight ensues and one is badly hurt.  The other finds him, gives him an ice pack and continues to drive him around.  Unable to rouse him upon arriving at home, Defendant leaves his unconscious friend in the car.  Plaintiff dies.

	Holding:	Court said that when two companions are engaged in a social venture, there is a duty to rescue, particularly if the rescue has alredy begun (as for the ice pack, Defendant should have driven his friend to the hospital).

	RONALD M. v. WHITE (1980)
Two Mountain climbers. Two Prong Test:
		a. assistance factor - help already begun
		b. special relationship/co-adventurers.
			Outline Section 05.A.03.c4 98.10.28  pp. 129.CB

8.	Statutory Reform (Good Samaritan Act)
	HARDINGHAM v. UNITED COUNSELLING SERVICE OF BENNINGTON, 667 A.2d 289 (1995)
Plaintiff blinded himself by drinking windshield washer fluid when his co-workers attempted an alcohol abuse intervention at his apartment; Defendant co-workers didn't mention to emergency response team that Plaintiff drank poison.
			Outline Section 05.A.03.d1 98.10.28  pp. 392,651.SU

	Vermont Good Samaritan Act, Vt.Stat.Ann., tit. 12, sec. 519 (1973)
			Outline Section 05.A.03.d2 98.10.28  pp. n8,123.CB

	Notes:	GOOD SAMARITAN STATUTE: Vermont Statute makes it illegal not to assist people in need if you can do it without endangering yourself. $100 fine for failure to rescue.

9.	Non-Negligent Injury
	MALDONADO v. SOUTHERN PACIFIC TRANSPORT CO., 629 P.2d 1001 (1981)
Plaintiff's arm was severed when he attemped to board Defendant's freight train and the train jerked knocking him off.
			Outline Section 05.A.04.a 98.10.28  pp. n4,121.CB

	Facts:	Defendants apparently knew of Plaintiff's efforts to get on board but did nothing to help.

	Rule:	sec. 322 Restatement 2d:
		If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm.
	Holding:	Plaintiff sued on grounds of Aggrevation to injury and court imposed duty under Restatement.

10.	Non-Negligent Creation of Risk
	SIMONSEN v. THORIN, 234 N.W. 628 (1931)
Defendant motorist knocked down utility pole and drove on.
			Outline Section 05.A.04.b1 98.10.28  pp. n6,121.CB

	Holding:	Court held Defendant to an affirmative duty to remove or warn of utility pole knocked into street.

	MENU v. MINOR 745 P.2d 680 (1987)
Cabby picks up driver of diabled car on highway and doesn't mention car.
			Outline Section 05.A.04.b2 98.10.28  pp. n6,121.CB

	Facts:	Plaintiff crashes into disabled car left on highway.

	Holding:	Court hold no duty as knowledge alone is not enough to give rise to a duty.

	TRESEMER v. BARKE, 150 Cal.Rptr. 384 (1978)
Defendant fails to contact patient when new dangers of IUD are known.
			Outline Section 05.A.04.b3 98.10.28  pp. n6,122.CB

	Rule:	sec. 321 Restatement 2d:
		one who has done an act and "subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another," is under a duty to exercise due care to prevent the risk from occuring even though at the time the actor had no reason to believe that his act would create such a risk.
	Holding:	Court held that Plaintiff stated a cause of action under restatement.

11.	Conclusion
	RENSSELAER: H.R. MOCH CO. v. RENSSELAER WATER CO. 159 N.E. 896 (1928)
Contract to supply water for fire hydrants.
			Outline Section 05.A.05 98.10.28  pp. n9,131.CB

	Facts:	Defendant water works had a contract with the City of Rensselaer to supply water for hydrants etc.  Plaintiff's warehouse was destroyed by fire.  Plaintiff alleged inadequate supply of water.

	Holding:	CARDOZO held that there was no common law tort action available to users of the water supplied to a city.

	Notes:	If an act is framed as a greater social good benefit, then the Defendant may claim that there is no Duty to provide for the act. Subset of Sovereign Immunity.

B.	Special/Government Rescue
1.	State Police (General Rule)
	RISS v. CITY OF NEW YORK, 240 N.E.2d 860 (1968)
Because their resources are limited, police could not be expected to protect Plaintiff from her ex-boyfriend.
			Outline Section 05.B.01.a1 98.11.02  pp. 198.CB
	Claimant:	Linda Riss - stalked by ex-boyfriend
	Respondant:	City of New York NYPD

	Facts:	Plaintiff's ex-boyfriend stalked her and threatened to hurt her if she did not return to him.  Plaintiff was engaged to another man.  So ex-boyfriend hired a thug to throw lye in Plaintiff's face burning her and blinding her.  Plaintiff had asked for police protection and was refused.
	Issues:	Do the police have a duty to protect or provide protection to individuals who have been repeatedly threatened with serious harm?
	Rule:	Police generally have a duty to serve and protect the public but they can not serve as a private security force for every individual since police resources are limited.
		GENERAL RULE: Government can be held liable for private-type activities but it won't be held liable for government type activities.
	Holding:	No. Police do not owe duty to protect every individual from specific hazards, only to protect the public from general hazard.  However this is distinguishable from a situation where police undertake a responsiblity to protect a particular individual and expose them to injury which they suffer. See Schuster.
	Rationale:	Certain government activities are basically private services in nature i.e. transit, water, etc.  These services are subject to ordinary principles of tort liability.  Other services offered by government protect the public from general hazards i.e. police.  Under these circumstances, a call for protection does not guarantee a response since police services are in limited supply given the demand.  Police services are a scarce resources and can not be allocated freely.  The police resources are allocated by LEGISLATIVE ENACTMENT and not by the judiciary.  So sovereign immunity aside, courts can not stipulate that police must respond to every call with an answer in action only legislation can direct police action that way.

	Notes:	KEATING's dissent stated the city's position as "Because we owe a duty to everybody, we owe it to nobody."  Keating believes that there should be liability for the negligent failure to provide adequate police protection.  The argument of the majority ignores the credible scheme of the Tort of Negligence Mechanism.  Just by determining that police had a duty to Riss, it doesn't mean necessarily that Riss will succeed in a suit of negligence.  She must still demonstrate breach and causation.

2.	State Police (Exception)
	SCHUSTER v. CITY OF NEW YORK, 5 N.Y.2d 75
Police undertake responsibility to a particular member of public and expose him to injury which he suffers.
			Outline Section 05.B.01.a2 98.11.02  pp. n1,203.CB
	Claimant:	Schuster - Decedant
	Respondant:	City of New York NYPD

	Facts:	Schuster spotted a criminal from a poster.  He informed the police and shortly after his life was threatened and he was killed.
	Issues:	Did police have a duty to protect an informant?
	Rule:	Where the government calls forth individuals as informants, such informants may reasonably expect to receive protection.
	Holding:	Police owed a duty to protect the Plaintiff from recrimination for informing.

	SORICHETTI v. CITY OF NEW YORK, 482 N.E.2d 70 (1985)
Police did not protect child from father with visitation rights
			Outline Section 05.B.01.a3 98.11.02  pp. n2,203.CB

	Facts:	A protective order was issued against the plaintiff's father who had weekend visitation rights.  When visiting the child, the father threatened to kill the mother.  Mother called police for fear of the father who had a history of abuse towards the mother.  Police refused to intervene.  Father assaulted and mutilated daughter in a drunken rage.
	Issues:	Did police have a duty to protect the daughter when called?
	Rule:	Where a protective order has been issued, police should come to aid when called.
	Holding:	Police owed the daughter a duty of protection because of the protective order.

	Policy:	Distinguished from Riss because of protective order.

	FLORENCE v. GOLDBERG 375 N.E.2d 763 (1978)
Police did not stand in for school crossing guard and a child was hit by a car
			Outline Section 05.B.01.a4 98.11.02  pp. n6,206.CB

	Facts:	Mother let child go to school alone based on premise that a crossing guard or police officer would be on duty at the corner of a busy intersection.  School crossing guard or police officer was absent.
	Issues:	Did Police assume a duty to protect child at school crossing?
	Rule:	Where it is known to the police that a school crossing guard is not available and where they have agreed to stand in, the police owe a duty to protect children crossing at that intersection.
	Holding:	Police assumed a duty to protect children at cross walk in the place of the absent crossing guard.

3.	State Police (Exception) CUFFY TEST
	CUFFY v. CITY OF NEW YORK, 505 N.E.2d 937 (1987)
CUFFY TEST. Neighbours attack family and slash them with a knife
			Outline Section 05.B.01.a5 98.11.02  pp. n3,204.CB

	Facts:	The Cuffys had a number of run-ins with the Aitkins downstairs.  They called for police protection and were told that it would come in the morning.  The police did not come.  The following night, a visiting son was attacked and two resident family members were slashed.
	Issues:	Did police have a duty to protect given that they were called on to render assistance.
	Rule:	CUFFY TEST:
		Generally there is no tort duty to provide police protection except under cases of a 'special relationship to police'
		1. Assumption - Actor promised an affirmative duty to act
		2. Knowledge - Actor was aware but did not act.  Inaction lead to harm
		3. Direct Contact - 'Victim' requested police assistance
		4. Victim had justifiable reliance on actor
	Holding:	Visiting son did not qualify because he was unaware of any problem and had no special relationship.  Residents did not qualify because by the following evening they were no longer relying on police visit for that morning.

	DAVIDSON v. CITY OF WESTMINISTER, 649 P.2d 894 (1982)
Police allowed victim to suffer injury because they were waiting for a crime in order to arrest suspect
			Outline Section 05.B.01.a6 98.11.02  pp. n1,203.CB

	Facts:	Police were staking out a laundrymat where several women had been assaulted.  They had a suspect who returned to the laundrymat frequently.  The Plaintiff was attacked by the suspect and stabbed before the police made an arrest.
	Issues:	Did police have a duty to protect the Plaintiff from a suspected assailant.
	Rule:	Cuffy Test
	Holding:	No special relationship between Plaintiff and Defendant or Plaintiff and Attacker. No police duty.

	Notes:	STATUTORY EXCEPTIONS:
		There are statutory exceptions to the general no duty to protect rule on the part of police, particularly in the case of anti-stalking laws.

4.	Public Transportation (General Rule)
	WEINER v. METROPOLITAN TRANSPORTATION AUTHORITY, 433 N.E.2d 124 (1982)
New York Ruling: Public transit authority owes no duty to protect.
			Outline Section 05.B.01.b1 98.11.02  pp. n4,204.CB

	Rule:	New York Ruling:
		A public transportation authority "owes no duty to protect a person on its premises from assault by a third person, absent facts establishing a special relationship between the authority and the person assaulted.  That a nongovernmental common carrier would be liable under the same factual circumstances is not determinative of the authority's liability."

	CROSLAND v. NEW YORK CITY TRANSIT AUTHORITY, 498 N.E.2d 143 (1986)
Transit employee failed to call for help from a safe vantage point.
			Outline Section 05.B.01.b1a 98.11.02  pp. n4,205.CB

	Facts:	A group of children were chased and one was beaten to death by another group of children.  Transit Authority employee witnessed the attack on the Plaintiff and failed to summon assistance even though he could have done so without personal risk.

	CLINGER v. NEW YORK CITY TRANSIT AUTHORITY, 650 N.E.2d 855 (1995)
Plaintiff was raped in a subway walkway behind a metal construction plate.
			Outline Section 05.B.01.b1b 98.11.02  pp. n4,205.CB

	Facts:	Plaintiff was raped behind a large metal plate used in construction in pedestrian subway path.
	Issues:	Was the location of the metal plate conducive to the attack (proprietary) and/or was there a duty to close the tunnel or police it (governmental)?

	Holding:	Summary judgement for defendant.
	Rationale:	Basis of incident was overwhelmingly governmental

	LOPEZ v. SOUTHERN CALIFORNIA RAPID TRANSIT DISTRICT, 710 P.2d 907 (1985)
California Ruling: Bus driver failed to take action.
			Outline Section 05.B.01.b2 98.11.02  pp. n4,205.CB

	Facts:	Public transit bus driver failed to take action to assist Plaintiff in a fight on the bus.

	Rule:	California Ruling:
		No distinction between public and private carriers.  No resource allocation argument.  Statute requires "utmost care and diligence"

5.	911 Call
	DE LONG v. COUNTY OF ERIE, 457 N.E.2d 717 (1983)
Help is being sent "right away" constitutes a 911 assumption of duty.
			Outline Section 05.B.01.c1 98.11.02  pp. n5,205.CB

	Facts:	A Woman called 911 to report a burglar outside.

	Rule:	Two Prong Test:
		1. Direct Communication
		2. Reliance
	Holding:	Court held that the 911 operator's response that help was being sent "right away" constituted an assumption of duty to respond with due care.

	MERCED v. CITY OF NEW YORK, 551 N.E.2d 589 (1990)
Victim must be in direct contact with 911 operator.
			Outline Section 05.B.01.c1a 98.11.02  pp. n5,205.CB

	Facts:	Caller was not the victim.

	Holding:	The required relationship "cannot be established wihtout proof that the injured party had direct contact with the municipality's agents and justifiably relied to his or her detriment on the municipality's assurances that it would act on that party's behalf."

	KIRCHER v. CITY OF JAMESTOWN, 543 N.E.2d 443 (1989)
			Outline Section 05.B.01.c1b 98.11.02  pp. n5,205.CB

	Facts:	Victim is kidnapped and then a bystander who observed kidnapping tells a police officer who fails to report it.

	Holding:	No duty because there was no direct communication nor reliance.

6.	School
	HOYEM v. MANHATTAN BEACH CITY SCHOOL, 585 P.2d 851 (1978)
School is held negligent to truant student who is struck by a motor cycle.
			Outline Section 05.B.01.d1 98.11.02  pp. n7,206.CB

	Facts:	A 10 year old student skipped off from school and was struck by a motor cycle near by.

	Holding:	There is a duty to use due care to supervise students.
		DISSENT: This holding will turn schools into armed camps in pursuit of truancy proof buildings.

	PRATT v. ROBINSON, 349 N.E.2d 849 (1976)
No duty once a child has left the school bus.
			Outline Section 05.B.01.d2 98.11.02  pp. n8,206.CB

	Facts:	A 7 year old student was struck by a truck when getting off of the school bus five blocks from home.  The busy intersection was the closest stop to the student's house

	Holding:	Complaint dismissed. Duty to supervise terminated when student left the bus.

	MIRAND v. CITY OF NEW YORK, 637 N.E.2d 263 (1994)
Duty to supervise was breached by school despite showing of substantial security arrangements.
			Outline Section 05.B.01.d3 98.11.02  pp. n8,207.CB

C.	Federal Law of Rescue
1.	Police; Civil Rights 42 USC sec. 1983
	THURMAN v. CITY OF TORRINGTON, 595 F.Supp 1521 (1984)
Domestic violence not stopped by police.  Women seeks equal protection under the law.
			Outline Section 05.B.02.a 98.11.02  pp. 209,388.SU

	Facts:	Woman, who had given cops notice many times over, was beaten in front of her house while the police watched.
	Issues:	City claims a suit for equal protection under federal law is excessive use of a standard of prevention of discrimination based on race (sec. 1983).
	Rule:	sec. 1983. Civil Action for Deprivation of Rights
		Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia,  subjects, or causes to be subjected, any citizen of the United States or  other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws,  shall be liable to the party injured in an action at law, suit in  equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken  in such officer's judicial capacity, injunctive relief shall not be  granted unless a declaratory decree was violated or declaratory relief  was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
	Holding:	Court concludes that the city is liable for violation of the equal protection clause.
	Rationale:	Court says city is misreading the law.  The equal protection clause is not limited to racial issues.  There is an affirmative duty upon cops to distribute protection under the laws equally to everyone.
		Court concluded that the city had no good reason why they treated women with abusive husbands differently than they might treat two men in a fight.

2.	Social Services
	DE SHANEY v. WINNEBAGO COUNTY DEPARTMENT OF SOCIAL SERIVICES, 109 S. Ct. 998 (1989)
Plaintiff tries to convince the supreme court that social services agency had a duty with respect to a child who once received care.
			Outline Section 05.B.02.b 98.11.02  pp. 216,395.SU

	Facts:	Alleged violation of the 14th Amendment.  A young child ends up in a coma as a result of an abusive father.  He'd been in the hospital a number of times.  He'd even been taken away a few times.  But he was released into the capable and strong and evil and bloody hands of his father.

	Holding:	RHENQUIST (Majority): No affirmative duty exists under the 14th Amendment.  Distinguishes Youngberg and Estelle by saying that under certain circumstances, government does take on an affirmative duty (people in jail) because gov't has taken away their ability to care for themselves.  However, he says that although the 14th amendment says you can't be deprived of certain rights - the constitution does not mandate that any affirmative rights be granted. No Duty.
		
		BRENNAN: The state had begun an affirmative duty.  State had taken enough steps so that had someone who had wanted to intervene, they could not do so.  Once state begins an action, it should be held accountable.
		
		BLACKMUN: Inject a little humanity here, please.  Court takes too formalistic an approach.

D.	Premises Liability
1.	General Condition: Trespassers; Licensees; Invitees
	Hackney, J., Premises Liability (I)
			Outline Section 05.C.01 98.11.04  pp. 49,34.SU

	Notes:	   Generally, premises liability cases in most states are governed by a set of ancient rules originating under the British Common Law system.  Most states still use them, however some like California, have done away with them.  England blew them off in 1959.
		   This means that you end up arguing distinctions before you address the harm done.  However, you should bring up issues like RELIANCE, ACT CREATES THE PERIL, UNREASONABLY DNAGEROUS anyway, regardless of the distinction.
		   Under PREMISES LIABILITY, a possessor may be a landowner and/or also a land occupier i.e. someone renting an apartment.  The renter, not the landlord would be held liable for an injury (unless in common areas).
		
		1. TRESSPASSERS:
		
		   A. Possessors owe trespassers a duty to 1. Avoid wilfull or wanton or intentional injuries; 2. To avoid injuries from traps.
		
		   B. A TRAP: an artificially created, inherently dnagerous, deceptively innocent thing or condition.  Courts differ on the definition of a trap.  Also differ on how much protection they wish to afford a trespasser.
		
		   C. KNOWN TRESPASSERS have a different, less harsh standard.  Duty to warn of or make safe an artificial condition, and to conduct with reasonable care any activities that involve risk of harm.
		
		   D. ATTRACTIVE NUISANCE: Compels the trespassing of children.  A person who has a condition upon his own premises, which may reasonably be apprehended to be a source of danger to children, is under a duty to take such precautions as a reasonably prudent man would take to preven injury to children of tender years whom he knows may attract them to come and play there.
		
		2. LICENSEE:
		Someone who enters and remains with the permission of the possessor, but who is not an invitee i.e. social guests, door to door salesman, fire fighters, cops, business invitees who exceed their invitation (like a customer straying into the living quarters of a store owner).
		Possessors owe a duty to exercise a reasonable standard of care to warn of or to make safe dangerous activities or conditions which he knows or should know about - and that there are not obvious to the licensee.
		Possessors owe no duty to a licensee to inspect or to take reasonable efforts to discover hidden dangers. "Licensee takes the premises as the host finds it!"  But the host must tell the licensee what he knows.
		
		3. INVITEES:
		Includes people who enter a place by consent of and for the business purpose of the possessor.  If you make money off people, you've got to make the place safe! Heightened Duty here.  Make the  place safe and warn of all non-obvious dangers, inspection required.

2.	General Condition: Parties outside the land
	Hackney, J., Premises Liability (II)
			Outline Section 05.C.02 98.11.04  pp. 54,39.SU

	Notes:	Generally traditional notions apply here, but there have recently been new developments i.e. Kelly case where premises liability was stretched.
		1. Activities: A possessor owes a duty of reasonable care to those off his land.  Duty of care in construction, excavation, etc... supposedly also to people practicing archery in their backyard.
		2. Artificial Conditions: Generally no duty with respect to artificial conditions exists unless it somehow effects the land of a neighbour or a public way i.e. overhanging signs, non-native trees, flour barrels bursting through windows.  Then there exists a duty of reasonable care to inspect and maintain such conditions for the benefit of neighbours and members of the public.
		3. Natural Conditions: Generally, no duty of care with respect to natural things that become a hazard upon your land i.e. a landslide.  However, most courts make an exception in terms of trees that grow on to others land and create a hazard.
		NB: Modern trend is to get rid of these distinctions and go with standard negligence principles like reasonableness, foreseeability, etc.

3.	General Condition (Traditional)
	CARTER v. KINNEY (1995)
			Outline Section 05.C.03.a 98.11.04  pp. 165.CB

4.	General Condition (Modern)
	ROWLAND v. CHRISTIAN (1968)
Nine year old injured by a frieght train
			Outline Section 05.C.03.b 98.11.04  pp. 172.CB

	Rule:	A possessor of land is liable for the physical harm to a trespassing child caused by an artificial condition on the land if:
		   1. They have knowledge that the kids go there;
		   2. There is a big risk imposed by the conditions;
		   3. The child does not realize the risk;
		   4. Foreseeability;
		   5. General failure to exercise due care.
	Holding:	No Liability.  A moving train is enough for a kid to realize the risk of danger.

	Notes:	Special treatement of kids dates back to the Krayenbuhl (turntable) case.

5.	Activity
	BRITT v. ALLEN COUNTY COMMUNITY JUNIOR COLLEGE (1982)
			Outline Section 05.C.04.a 98.11.04  pp. 169.CB

	BOWERS v. OTTENAD (1986)
			Outline Section 05.C.04.b 98.11.04  pp. 170.CB

6.	Child Trespassers
	HOLLAND v. BALTIMORE & O.R. CO. (1981)
			Outline Section 05.C.05 98.11.04  pp. 170.CB

7.	Minority: Attractive Nuisance Doctrine
	UNITED ZINC & CHEMICAL CO. v. BRITT (1922)
			Outline Section 05.C.06 98.11.04  pp. 228,403.SU

	Facts:	Zinc mining tailings created poisons pool of water.
	Issues:	Attractive Nuisance?

	Holding:	Pool held not to be an attractive nuisance.
	Rationale:	HOLMES: Krayenbuhl (turntable) not controlling here.  Generally the existence of an attractive nuisance will purge the trespasser of trespasser status and entitle her to a higher standard of care.  Holmes said the pool was far enough off the beaten track despite its proximity to houses and roads so that it did not constitute an attractive nuisance.  No duty on the part of the landowner to keep his land safe from child trespassers. "A road is not an invitation."
		DISSENT: You can't get any more attractive than this.  Cites case where children who drowned in unpoisoned pool were held to be inticed.  Also Krayenbuhl.

8.	Landlord and Tenant (General)
	SARGENT v. ROSS (1973)
Child falls down stairs.
			Outline Section 05.C.07.a 98.11.04  pp. n6,178.CB

	Facts:	A child fell down an excessively steep stairway.

	Rule:	Traditionally a landlord is not liable.  Exceptions:
		   1. A hidden danger in the premises of which the landlord but not the tenant is aware.
		   2. Premises are leased for public use.
		   3. Are under the landlords control.
		   4. Negligent repair by landlord.
	Holding:	The stairway led only to Plaintiff's apartment and thus was not a common are, in the traditional sense.
	Rationale:	Court fits this into hidden danger i.e. there is a difference between what is apparent to a kid and what is apparent to an adult.

	PUTNAM v. STOUT
			Outline Section 05.C.07.b 98.11.04  pp. n6,178.CB

9.	Crime
	KLINE v. 1500 MASSACHUSETTS AVENUE APARTMENT CORP. 439 F.2d 477 (1970)
Increasing crime area.  Landlord discontinued security watchman.  Tenant assaulted in common area.
			Outline Section 05.C.08 98.11.04  pp. n7,179.CB

	Facts:	Crime had been occuring on the premises.  The owner had exclusive effective capacity to maintain common areas.  Tenant was assaulted in a common area.

	Rule:	Landlord has a duty to take reasonable precautions against REASONABLY FORESEEABLE THIRD PARTY CRIMINAL ACTS.
	Holding:	Landlord liable to Tenant.

10.	Ice and Snow
	SULLIVAN v. TOWN OF BROOKLINE (1994)
			Outline Section 05.C.09.a 98.11.04  pp. n10,171.CB

	GAMERE v. 236 COMMONWEALTH AVENUE CONDOMINIUM ASS'N (1985)
			Outline Section 05.C.09.b 98.11.04  pp. n10,171.CB

VI.	Legal Injury
A.	Emotional Harm
1.	General (Touching)
	MITCHELL v. ROCHESTER RY CO.
			Outline Section 06.A.01 98.11.12  pp. 234,418.SU

	Facts:	Horses almost touch person standing by roadside but they don't in fact.  She has a big fright and eventually has a miscarriage.

	Holding:	Court refuses to offer her recovery because she never experienced any physical injury in relation to the passing horses.
	Rationale:	Floodgates of Litigation argument.  Narrow doctrinal interpretation.

	Notes:	FALZONE (No Touching case) Woman almost hit by car.  Court rejects the physical injury requirement and says it should not bar meritorous claims.  Should make judicial machinery evaluate all claims fairly.

2.	Zone of Danger (ZOD); HIV Exposure
	K.A.C. v. BENSON
Actual Exposure ZONE OF DANGER Test
			Outline Section 06.A.02.a1 98.11.12  pp. 226.CB

	Facts:	Gynecologist causes plaintiff fright by performing procedure while he is HIV positive.  Court does not employ physical contact requirement.

	Rule:	Court applies ZONE OF DANGER TEST:
		   1. ZOD - physical impact;
		   2. Reasonably feared for safety;
		   3. Emotional distress with physical manifestation.
	Holding:	No recovery.

	BROZOSKA v. OLSON
Stem AIDS hysteria
			Outline Section 06.A.02.a2 98.11.12  pp. 231.CB

	Facts:	Dentist is HIV Positive.

	Holding:	Court refues to add to phobia of AIDS and uses the same policy arguent as in Benson.

	HEINER v. MORETUZZO
Plaintiff was repeatedly misdiagnosed with HIV; Court says there was never actual peril.  No recovery.
			Outline Section 06.A.02.b1 98.11.12  pp. 233.CB

	SCHULMAN v. PRUDENTIAL INSURANCE
			Outline Section 06.A.02.b2 98.11.12  pp. 236,418b.CB

3.	Impending Death
	CERRITOS: In Re Air Crash Disaster Near Cerritos, 973 F.2d 1490 (1992)
Airplane crashes 100 yards away.
			Outline Section 06.A.02.b3 98.11.12  pp. 233.CB

	Holding:	Court allowed recovery saying Plaintiff was "in path of negligent conduct and reasonable fear"

	SHATKIN v. McDONNELL DOUGLAS CORP.
Plaintiffs in plane crash who were seated on the right and couldn't see pending disaster didn't recover.  Left side seats recovered.
			Outline Section 06.A.03.a 98.11.12  pp. 232.CB

	QUILL v. TRANS WORLD AIRLINES
Horrible experience with turbulent flight.  Now plaintiff fears planes horribly.  Recovery granted.
			Outline Section 06.A.03.b 98.11.12  pp. 232.CB

4.	Solely Emotional
	METRO NORTH COMMUTER v. BUCKLEY (1997)
			Outline Section 06.A.04.a 98.11.12  pp. 235,418a.SU

	GAMMON v. OSTEOPATHIC HOSPITAL OF MAINE, INC.
Limb in a bag.
			Outline Section 06.A.04.b 98.11.12  pp. 234.CB

	Facts:	Hospital sent a limb to a man whos father had died.  Man was expecting personal effects of father.
	Issues:	Does this qualify as emotional injury?

	Holding:	Yes. Hospital should have foreseen the emotional injury caused by finding limb in bag that was supposed to have fathers personal effects.  Mental well being entitles Plaintiff to legal protection.
	Rationale:	Emotional Injury was reasonably foreseeable because Plaintiff was vulnerable.

5.	Severe Distress
	CHIZMAR v. MACKIE
			Outline Section 06.A.04.d1a 98.11.12  pp. 237.CB

	Notes:	Could apply Gammon. But very fact specific.  Both rely on special relationships (misdiagnosis).  Doctor-patient relationship falls under a heightened duty standard.

	RODRIGUES v. STATE
Defines severe emotional distress where reasonable man could not cope.
			Outline Section 06.A.04.d1b 98.11.12  pp. 238.CB

	SULLIVAN v. BOSTON GAS CO.
			Outline Section 06.A.04.d2 98.11.12  pp. n8,238.CB

	Facts:	House burnt down.  Both Plaintiffs met required standards - PTSD, diarhea, heart palpitations, sleeplessness, despair, weeping, upset stomach, nightmares, etc.

	Finley, Lucinda M., A Break in the Silence
Gender biases in granting recovery or not granting recovery.
			Outline Section 06.A.05 98.11.12  pp. 237,419.CB

	Notes:	1. Women's complaints of pain or injury often dismissed as emotional or hysterical complaints, while men's complaints of same ailment were more likely to be treated as serious physical harm.
		2. Within acknowledged categories of emotional injuries, it is easier for women to collect for nervous shock or intentional infliction of emotional distress, than it is for men.
		3. A formal equality solution can mean that women will be evaluated by male-based standards.
		   a. disfiguring injury more harmful to women based on society's values
		   b. men can experience injuries associated with reasonable woman
		   c. women's injuries are relegated to emotional category, blocking them from recovery.

B.	Indirect Infliction of Emotional Distress
1.	Direct vs. Indirect
	CAREY v. LOVETT / BURGESS v. SUPERIOR COURT
			Outline Section 06.B.01.a 98.11.13  pp. 255.CB

	Facts:	Mother is giving birth.
	Issues:	Is father a direct victim or a bystander?

	Holding:	CAREY: Bystander / BURGESS: ?

	HUGGINS v. LONGS DRUG STORES
			Outline Section 06.B.01.b 98.11.13  pp. 257.CB

	Facts:	Infant receives excessive dose of medicine but is OK.

	Holding:	Parents claim rejected.  They were not the direct vitims.  Medicine was for the baby.

2.	Zone of Danger
	JOHNSON v. JAMAICA HOSP.
Baby kidnapped from hospital.
			Outline Section 06.B.02.a 98.11.13  pp. 251.CB

	Facts:	Plaintiff's newborn baby was kidnapped from Defendant hospital.  Plaintiff brings suit for emotional distress caused by Defendant's negligence.
	Issues:	Is Defendant liable to Plaintiff for indirectly causing them emotional distress by their breach of duty to Plaintiff's daughter?
	Rule:	To recover from indirect "psychic injuries" Plaintiff must allege that they were within the ZONE OF DANGER and that their injuries resulted from observation of serious injury or death caused by Defendant's negligence.
	Holding:	The foreseeability of emotional distress that would be inflicted upon Plaintiff by the kidnapping of their daughter is not enough to establish a duty.  Therefore, Defenant is not liable to the Plaintiff.

	JACOBS v. HORTON MEMORIAL HOSP.
			Outline Section 06.B.02.a1 98.11.13  pp. 257.CB

	Facts:	Husband diagnosed with cancer.

	Holding:	Court does not allow wife to recover because a duty is owed only to those directly injured by the malpractice.

	TOBIN v. GROSSMAN / BOVSUN v. SANPERI
			Outline Section 06.B.02.a2 98.11.13  pp. 245.CB

	Rule:	BOVSUN: Defendant has a duty to Plaintiff only if Plaintiff is in the ZONE OF PHYSICAL DANGER while viewing the death or serious injury of an immediate family member.

	Rationale:	BOVSUN: Mitigates the possibility of unlimited recovery and restricts the liability rule found in Dillon.

	Notes:	TOBIN rejects Dillon (below) line drawn is too difficult.
		BOVSUN overrules Tobin's refusal and extends duty to members of immediate family in ZOD (unlike Dillon, it doesn't create a new Plaintiff the Defendant didn't expect)

3.	Majority
	DILLON v. TWIN STATE GAS
			Outline Section 06.B.03 98.11.13  pp. 245.CB

	PORTEE v. JAFFEE
Son dies in elevator shaft.
			Outline Section 06.B.03.a 98.11.13  pp. 238.CB

	Facts:	Plaintiff wated her son die a slow death while he was trapped in an elevator shaft.  She sued for emotional damage
	Issues:	Did Defendant owe a duty to Plaintiff that was violated when her child became trapped in the elevator?  Was it foreseeable that the mother would be observing the death of her young child?
	Rule:	Based on Dillon there are three factors which determine whether an emotional injury was foreseeable and therefore compensable:
		1. Whether Plaintiff was located NEAR THE SCENE;
		2. Did Plaintiff OBSERVE THE ACCIDENT;
		3. Whether Plaintiff and injured person were CLOSELY RELATED;
		and the court adds
		4. Resulting in SEVERE EMOTIONAL DISTRESS.
		Based on these factors Defendant is liable to Plaintiff.

	THING v. LA CHUSA
Revision of General Formulation
			Outline Section 06.B.03.a1 98.11.13  pp. 244.CB

	Facts:	Mother did not see acident but saw child's bloody body.

	Rule:	3 factors in Dillion were defining elements, not just guidelines.
	Holding:	No recovery.

4.	Proximity & Closeness
	SCHERR v. LAS VEGAS HILTON
Fire on TV
			Outline Section 06.B.03.b1 98.11.13  pp. 242.CB

	Facts:	1. Plaintiff saw husband's hotel on fire on TV.

	Holding:	2. Plaintiff not within sensory perception requirement (actually observable)

	FERRITER v. DANIEL O'CONNELL'S SONS, INC.
			Outline Section 06.B.03.b2 98.11.13  pp. 250.CB

	Facts:	Children arrive at hospital and see paralyzed father.

	Holding:	Although second factor of Dillon test is not met, the children are still allowed to recover.  Court looks to particular facts - dependency of children on parents.

	STOCKDALE v. BIRD & SONS, INC.
			Outline Section 06.B.03.b3 98.11.13  pp. 243.CB

	Facts:	Plaintiff learned of son's death 4 hrs later and saw body 24 hrs later.

	Holding:	Time delay blocked recovery.

	CAMERON v. PEPIN
Rejection of pure foreseeability limits liability to witnessing.  First sight is in hospital - No recovery.
			Outline Section 06.B.03.b4 98.11.13  pp. 245.CB

5.	Serious Injury (Direct Victim of Tort)
	BARNHILL v. DAVIS
Reasonable Person
			Outline Section 06.B.03.c1a 98.11.13  pp. 243.CB

	Facts:	Plaintiff driving in front of mom and saw her car get hit.  Plaintiff alleged serious emotional harm before he learned how slight mom's injury was.

	Rule:	Court says proper test is if reasonable person would believe she was injured by type of accident that occurred.

	BARNES v. GEIGER
Actual Harm
			Outline Section 06.B.03.c1b 98.11.13  pp. 243.CB

	Facts:	Mother reasonably, but mistakenly thought her child was hurt.

	Holding:	No recovery based on mistake.

6.	Serious Injury (Emotional Injury)
	SELL v. MARY LANNING MEMORIAL HOSP.
Plaintiff was mistaken about son's identity. Continued crying, trouble sleeping, etc. not enough.
			Outline Section 06.B.03.c2 98.11.13  pp. 243.CB

7.	Relationship
	ELDEN v. SHELDON
Cohabitating without marriage. No recovery.
			Outline Section 06.B.03.d1 98.11.13  pp. 246.CB

	Facts:	Emotional distress claim for watching live together partner (without marriage) die.

	Holding:	No Recovery.  Court policy favours marriage as clear cut line.

	DUNPHY v. GREGOR
Cohabitating without marriage. Recovery.
			Outline Section 06.B.03.d2 98.11.13  pp. 247.CB

	Facts:	Couple had been living together a long time economic dependecy, life insurance policies, etc.

	Holding:	Court rejected Elden.  Granted recovery.

8.	Relationship - Hawaii Standard
	LEONG v. TAKASAKI
Cultural emphasis transcends blood link requirement.
			Outline Section 06.B.03.d3 98.11.13  pp. 256.CB

	Rule:	Fact based determination.
		No blood relationship required because Hawaiian and Asian families have long maintained strong ties among extended families.
		No physical symptoms of emotional distress required.

9.	Forseeability / Study Guide
	Hawaii
			Outline Section 06.B.04 98.11.13  pp. 

	Rule:	HAWAII STATUTE: Bars recovery for emotional distress due to damage to property or material objects unless it results in physical injury or mental illness of a person.
	Holding:	CAMPBELL case: severe emotional distress due to the death of a dog - Recovery.
		RAMON case: No recovery for plaintiff who watched his/her dog get mangled by another dog.  Tried to use bystander analysis.

	Notes:	STUDY GUIDE ON NEGLIGENT INFLICTION OF EMOTIONAL INJURY:
		
		I. BACKGROUND
		a. Substantive Policy Issues:
		1. Fear of flood gates of litigation and unbounded liability.
		2. Fear of speculative claims.
		3. Fear of fraudulent claims or sincere but selective memory.
		Counterarguments:
		1. Fear exaggerated / Floods contained by fact specific rules/ Duty of courts to hear cases.
		2. Requiring genuineness of proof and evidence at trial.
		3. Danger of dishonest claims should not bar honest claims.  Courts and juries can sort out truth - impact rule encourages perjury.
		4. No empirical data for any issues/courts cite one concern or issue one day and reject it the next.
		b. The Form of Legal Rules eg: voting age.
		1. Flexible or situational sensitivity - anyone can vote if mature enough; discretionary standards.
		   a. costly to administer
		   b. open-ended rule invites abuse and bias
		   c. judges can subvert legislative intent
		2. Bright Line/Self-Executing/Per Se Test - must be 18 to vote.
		   a. easier to administer
		   b. inflexibility prevents situational justice
		3. General Standards - eg: reasonableness or good faith.
		4. Legal Formality to limit liability eg:
		   a. physical impact for emotional recovery
		   b. Plaintiff must have been exposed to risk of physical injury
		   c. Negligent handling of loved one's corpse
		   d. Negligent transmission of death notices
		   e. Zone of Danger Test
		c. Questions to Ponder:
		1. Should the law ever allow recovery for emotional injury?
		2. Do cases identify some or all of the relevant policy considerations?
		3. Do prevailing legal formalities draw the circle of liability in the right place?
		
		II ORGANIZING THE DOCTRINE
		a. Direct Injuries - evolution
		1. Physical impact rule -- MITCHELL
		2. Recovery in no-impact cases -- FERRARA
		3. Recovery for emotional injury occasioned by negligently mishandled loved one's corpse or transmission of death notices
		4. Risk of physical injury by Defendant's negligence.
		b. Indirect Injury - Witness or Bystander cases
		1. Witness of death or serious injury of a loved one
		2. Zone of Danger - recover for witnessing injury only if in danger -- BOVSUN and in most states if alleged victim suffers resulting in physical consequences.  If primary accident vicitm is contributorily negligent, then there is no recovery for witness either.
		3. In minority of states, DILLON/PORTEE states, Plaintiff may recover as a witness of an accident without having been in the zone of danger if emotional distress is reasonably foreseeable and results in physical consequences.  If no recovery for primary accident victim, no recovery to witness.
		c. Breakdown of the Direct/Indirect Distinction
		Emotional Injury is reasonably foreseeable and medically demonstrably serious.  Cross reference to intentional torts.

VII.	Negligence: Affirmative Defenses
A.	Contributory Negligence
1.	PFC
			Outline Section 07.A.01.a 98.11.18  pp. 382.CB

	Rule:	If Plaintiff was negligent and this negligence was a proximate cause of injury, Plaintiff CAN NOT RECOVER ANYTHING
		
		PRIMA FACIE CASE OF CONTRIBUTORY NEGLIGENCE (Minority Rule)
		1. DUTY to one-self;
		2. BREACH;
		3. CAUSE of own injury

2.	Exceptions - Rescuer
			Outline Section 07.A.01.b1a 98.11.18  pp. 383.CB

	Rule:	When professional resuers are hurt going to the aid of others in the line of their duties, the case is allowed to go to a jury because it involves issues on which reasonable people could differ.

3.	Exceptions - Mental Illness
	COWAN v. DOERING
			Outline Section 07.A.01.b1b 98.11.18  pp. 383.CB

	Facts:	Plaintiff committed suicide.

	Rule:	Court applied capacity based standard for mentally disturbed Plaintiffs.  Court refused to apply reasonable person standard.

4.	Exceptions - Statutes
			Outline Section 07.A.01.b2 98.11.18  pp. 384.CB

	Notes:	MINORITY - VAN GAASBECK - A boy is killed in front of a school bus as he crossed the street.  No contributory negligence. If s statute exists to protect a certain group/class, i.e. children or mentally ill, who are unable to protect themselves, and a member of that group acts in a contributorily negligent way, the doctrine will not be applicable because of statutory protection.
		
		MAJORITY - FEISTHAMEL - A 9 year old girl was cut when she tried to walk through the glass of a revolving glass door.  The state, which had violated a statute to mark revolving glass doors, claimed contributory negligence.
		HOLDING: Statutes are designed to protect people from conditions over which they have no control.

5.	Exceptions - Recklessness
If Defendant's behaviour was reckless, Plaintiff's behaviour must also have been reckless to be contributory.  Contributory negligence is irrelevant.
			Outline Section 07.A.01.b3 98.11.18  pp. 384.CB

6.	Exceptions - Last Clear Chance
Regardless of Plaintiff's contributory negligence, if Defendant had last clear chance and time to avoid injury then Defendant will be liable.
			Outline Section 07.A.01.b4 98.11.18  pp. 385.CB

	Notes:	1. HELPLESS Plaintiff: A Plaintiff who has negligently subjected herself to risk of harm from Defendant's subsequent negligence may recover if just before injury:
		   a. Plaintiff is unable to avoid injury by reasonable vigilance and care.
		   b. Defendant is negligent in failing to use reasonable care in avoiding the harm when he:
		      i.  knows of Plaintiff's situation or
		      ii. would discover situation by reasonable vigilance
		2. Inattentive Plaintiff: Plaintiff who, by exercise of reasonable vigilance could discover danger created by Defendant in time to avoid injury can recover if
		   a. Defendant knows of Plaintiff's situation, and
		   b. Realizes Plaintiff is inattentative, and
		   c. Fails to use opportunity to avoid harm.

7.	Exceptions - Refusal to Impute
			Outline Section 07.A.01.b5 98.11.18  pp. 385.CB

8.	Exceptions - Jury
Despite instructions to the contrary, a jury sometimes applies comparative negligence by lowering award to Plaintiff based on the amount of Plaintiff's negligence.
			Outline Section 07.A.01.b6 98.11.18  pp. 387.CB

B.	Comparative
1.	Pure
***NO COMPARATIVE NEGLIGENCE ON EXAM***
			Outline Section 07.A.02.a 98.11.18  pp. 387.CB

	Rule:	Defendant pays % of damages based on % of fault

2.	Modified
			Outline Section 07.A.02.b 98.11.18  pp. 388.CB

	Rule:	Two Rules:
		a. If Plaintiff's negligence was 50% or more, Plaintiff can't recover.
		b. If Plaintiff's negligence was 51% or more Plaintiff can't recover.

3.	Implementation
	Uniform Comparative Fault Act, 12 ULA 33 (1981)
			Outline Section 07.A.02.c 98.11.18  pp. 389.CB

	Notes:	Should liability be joint and several?
		WALT DISNEY WORLD CO. - Plaintiff injures fiance on bumper cars.  Plaintiff 14% negligent, fiance 85% and Defendant 1% negligent.
		Defendant liable for 100% of damages because of Joint and Several Liability.
		
		AVOIDABLE CONSEQUENCES: Plaintiff's recovery might be reduced by failure to mitigate harm done.
		1. Failure to get medical attention
		2. Failure to wear seatbelt - courts disagree.  In some states this rule is a bar to recovery. In others there is a rejection of reduction in damages.

C.	Assumption of Risk
1.	Definition - Express/Implied
			Outline Section 07.B.01 98.11.19  pp. 405.CB

	Notes:	PRIMA FACIE CASE OF ASSUMPTION OF RISK:
		1. Plaintiff has actual knowledge of specific risk
		2. Appreciates the magnitude of danger
		3. Voluntarily encounters it.
		
		EXPRESS: Where Plaintiff, in advance, gives consent to relieve Defendant of a legal duty and agrees to take her chances of injury from known risk i.e. written contract.
		
		IMPLIED:
		   i.  Plaintiff has knowledge Defendant will not protect her from voluntarily undertaken risk
		   ii. Plaintiff acts unreasonably in exposing herself to a risk created by Defenant's negligence.

2.	Express - Activity
	DALURY v. S-K-I, LTD. (1995)
			Outline Section 07.B.02.a1 98.11.19  pp. 406.CB

	Rule:	EXPRESS AGREEMENTS: Pose 2 questions for court -
		1. Whether written contract is clear
		2. Whether Defendant can be released from liability (some rights you may not waive).
		
		EXCULPATORY CLAUSES (TUNKL factors)
		Waiver which says that students who participate in sports assume the risk of participating is invalidated by TUNKL factors:
		1. Concerns a business thought suitable for public regulation?
		2. Defendant engaged in performing service of importance to public, often thought to be practical necessity for some members of public
		3. Defendant is willing to perform service for anyone who seeks it or meets established standards.
		4. Defenant possesses a decisive advantage of bargaining strength.
		5. Defenant makes no provision whereby purchaser may pay additional fees to obtain protection against negligence.
		6. As a result of transaction, purchaser placed under control of Defendant, subject to risk of carelessness by Defendant or her agents.

	BARNES v. NEW HAMPSHIRE KARTING ASS'N, INC. (1986)
			Outline Section 07.B.02.a2 98.11.19  pp. n6,411.CB

	Facts:	Plaintiff signed a release to be in karting race.

	Rule:	Court applied Tunkl factors
	Holding:	Upheld the release.  No disadvantage as to bargaining power existed, activity involved wasn't an essential one.

	Notes:	STATUTES: NY General Obligations Law says that efforts to contract out of liability for negligence are void for certain classes of individuals.

	OKURA v. UNITED STATES CYCLING FEDERATION (1986)
			Outline Section 07.B.02.a3 98.11.19  pp. n6,411.CB

3.	Express - Drafting
	KRAZEK v. MOUNTAIN RIVER TOURS, INC. (1989)
Release never used word 'negligence'. Yet release was held invalid.  Any ambiguities in release will be construed against drafter.
			Outline Section 07.B.02.b1 98.11.19  pp. n9,411.CB

	KISSICK v. SCHMIERER (1991)
			Outline Section 07.B.02.b2 98.11.19  pp. n9,412.CB

	JOHNSON v. PARAPLANE CORP. (1995)
			Outline Section 07.B.02.b3 98.11.19  pp. n9,412.CB

4.	Express - Intermediate Agreement
			Outline Section 07.B.02.c 98.11.19  pp. 

	Notes:	SIGN POSTS ON DEFENDANT'S LAND
		a. must be legible font size.
		b. In a place where Plaintiff will see it.
		c. In an expected place.

5.	Implied - Dangerous Activity
	MURPHY v. STEEPLECHASE AMUSEMENT CO. (1929)
Flopper ride
			Outline Section 07.B.03.a 98.11.19  pp. 413.CB

	Facts:	Plaintiff injured on the flopper ride.  Plaintiff observed ride and saw others falling.

	Holding:	Risk of falling was foreseen and voluntarily undertaken.  No recovery.

6.	Implied - Athlete
	KNIGHT v. JEWETT (1992)
Touch Football
			Outline Section 07.B.03.b1 98.11.23  pp. n6,416.CB

	Facts:	Friends playing co-ed tag football.  Defendant plays too rough and steps on Plaintiff's hand after Plaintiff asked Defendant to settle down.

	Holding:	Its a part of the game.

	LESTINA v. WEST BEND MUT.INS.CO. (1993)
Soccer
			Outline Section 07.B.03.b2 98.11.23  pp. n6,417.CB

	CRAWN v. CAMPO (1994)
Softball
			Outline Section 07.B.03.b3 98.11.23  pp. n6,417.CB

	FREEMAN v. HALE (1994)
Skiing Drunk
			Outline Section 07.B.03.b4 98.11.23  pp. n6,418.CB

	CONNELLY v. MAMMOTH MOUNTAIN SKI AREA (1995)
Ski tower
			Outline Section 07.B.03.b5 98.11.23  pp. n6,418.CB

	TURCOTTE v. FELL (1986)
Pro-Jockey
			Outline Section 07.B.03.b6 98.11.23  pp. n6,419.CB

	Facts:	Jockey hurt in racing incident and sues other jockeys for negligence.

	Holding:	Plaintiff dismissed.  Fine line between lawful and unlawful conduct on racing track.  Plaintiff concedes that other jockey's duty was merely to avoid reckless or intentionally harmful conduct.

7.	Implied - Baseball Spectator
	DAVIDOFF v. METROPOLITAN BASEBALL CLUB (1984)
			Outline Section 07.B.03.c1 98.11.23  pp. n7,419.CB

	NEINSTEIN v. LOS ANGELES DODGERS, INC. (1986)
			Outline Section 07.B.03.c2 98.11.23  pp. n7,420.CB

	Legislation
			Outline Section 07.B.03.c3 98.11.23  pp. n7,420.CB

8.	Implied - Hockey Spectator
	ROSA v. COUNTY OF NASSAU (1989)
			Outline Section 07.B.03.d1 98.11.23  pp. n10,421.CB

	THURMAN v. ICE PALACE (1939)
Community
			Outline Section 07.B.03.d2 98.11.23  pp. n10,421.CB

9.	Comparative Negligence
	GONZALEZ v. GARCIA (1977)
			Outline Section 07.B.04 98.11.23  pp. 421.CB

	Facts:	Plaintiff and Defendant went drinking after work.  Plaintiff tried to go home another way but ended up going with Defendant who was drunk.
	Issues:	Did the trial court err in charging the jury on comparative negligence and not assumption of risk (which would be a complete bar to recovery)?

	Holding:	Assumption of risk and contributory negligence merge into the concept of comparative negligence.  No error.

	Posner, A Theory of Negligence, 1 J.Legal Studies 29, 45 (1972)
			Outline Section 07.B.05 98.11.23  pp. n4,424.CB

VIII.	Intentional Torts
A.	Battery
1.	Battery PFC
	Hackney, J., Prima Facie Case of Battery
			Outline Section 08.A.01 98.11.23  pp. 59,65.SU

	Notes:	ELEMENTS:
		1. ACT by Defendant
		2. INTENT to bring about contact or imminent apprehension of contact with another's person
		3. Harmful or offensive CONTACT occurs
		4. With the PERSON of another
		5. CAUSED by Defendant's act
		6. Contact is UNCONSENTED.
		
		DEFINITION OF ELEMENTS:
		A. ACT must be affirmative, omission is not an act for battery.
		B. INTENT:
		   1. Restatement of Torts sec. 8A, "that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it." (or that he/she knows that the result will occur).
		   2. Intent is not whether a reasonable person would have known of the result (as in negligence), however, judges may look to what a reasonable person would have known as evidence of what the Defendant actually knew - and therefore what the intent was.
		   3. Intent to cause harm need not be exclusive to one individual, i.e. if you intended to hurt Peter and ended up hurting Liz because she happened to be close by, you will still be held liable.
		C. Non-offensive contac (pat on the back) is not battery, but actual bodily harm is not necessary.
		D. "Person" includes those things which are an extension of the body i.e. clothing, things held in hands etc.
		
		3. ASSAULT - threat of battery - no contact needed.

2.	Assault; Battery; Intent
	Hackney, J., Intent in the Law of Torts
			Outline Section 08.A.02 98.11.23  pp. 61,67.SU

	VOSBERG v. PUTNEY
Defendant kicked Plaintiff in the shin in school; kick activated latent infection.
			Outline Section 08.A.03.a 98.11.23  pp. 255,430.SU

	Facts:	Defendant kicks Plaintiff in the leg during school.  Plaintiff had previous leg injury which kick exacerbates, casing sever injuries.

	Holding:	Court finds battery.  Defendant intended to make contact and contact was offensive/harmful (Defendant did not need to intend the extent of the injury - EGGSHELL SKULL RULE.

	PICARD v. BARRY PONTIAC-BUICK, INC.
			Outline Section 08.A.03.b 98.11.23  pp. 811.CB

	FISHER v. CARROUSEL MOTOR HOTEL, INC.
Black Mathematician at rocket conference was refused service at cafeteria with co-attendants
			Outline Section 08.A.03.c 98.11.23  pp. 258,433.SU

	Facts:	Restaurant employee grabs Plaintiff's plate and shouts that they don't serve negroes.

	Holding:	Court holds that there was a battery because plate held in hand is part of person.

	ALCORN v. MITCHELL
			Outline Section 08.A.03.d 98.11.23  pp. 813.CB

B.	Affirmative Defenses
1.	Consent; Medical Treatment
	KENNEDY v. PARROTT
Removal of ovarian cyst during appendectomy is OK; Since it's otherwise invasive, consent is not required.
			Outline Section 08.B.01.a1 98.11.25  pp. 837.CB

	Facts:	Ovarian cyst removed during appendectomy.

	Holding:	Doctor not liable for battery despite lack of consent.  By doing simple correct procedure now, doctor avoided more invasive surgery later on.

	O'BRIEN v. CUNARD STEAMSHIP CO.
Implied Consent; Vaccination performed by oceanliner doctor.
			Outline Section 08.B.01.a2 98.11.25  pp. 260,435.SU

	Rule:	GENERAL RULE: "one who consents cannot receive an injury."  Consent is either IMPLIEDLY manifest by action or EXPLICITLY stated in words i.e. contract.
	Holding:	Court finds that Plaintiff immigrant on board of ship gave implied consent to doctor to receive vaccination.  Plaintiff's holding out her arm and not objecting to vaccination was implied consent.  No option for recovery from battery.

	MOHR v. WILLIAMS
Waxy left ear; punctured right eardrum; consented to surgery on right; surgery performed on left
			Outline Section 08.B.01.a3 98.11.25  pp. 261,436.su

	Facts:	Plaintiff gave doctor consent to operate on right ear.  while operating, Doctor decided that the left ear was in worse shape and operated there too.  Plaintiff lost hearing in left ear.

	Holding:	Court holds that doctor is liable for battery.  Not an emergency situation.  Distinguishable from Kennedy?
		1. Internal vs. External;
		2. Seriousness of procedure.

	LLOYD v. KULL
Removal of patient's leg mole during abdominal surgery w/o consent constitutes assault and battery
			Outline Section 08.B.01.a4 98.11.25  pp. 837.CB

2.	Consent; Sex
	BARBARA A. v. JOHN G.
Consent to sex premised on Defendant's infertility; Plaintiff got pregnant and sued.
			Outline Section 08.B.01.b 98.11.25  pp. 263,437a.SU

	Facts:	Plaintiff had sex with her lawyer.  He insured her that she couldn't possibly get pregnant by him (she inferred that he had a vasectomy) - so the consented.  She got pregnant.

	Holding:	Her consent is not a defense because her consent was limited to sex which would not result in pregnancy.

3.	Self-Defense; Limitation Battered Wife Syndrome
	KELLY: STATE OF NEW JERSEY v. KELLY; Raymond; Goetz
Battered wife syndrome as claim of self-defense in homocide.
			Outline Section 08.B.02.a 98.11.25  pp. 269,440.SU

	Facts:	Expert testimony on the battered woman's syndrome was allowed in case where woman killed her batterer and pleaded self-defense.

	Holding:	Court held that testimony could help jurors decide whether Defendant's belief in threat of imminent bodily harm was reasonable.
		(On retrial, testimony was allowed and Defendant was convicted anyway)

	Notes:	SELF DEFENSE:
		General Rule: Those who reasonably believe that they are unwarrantedly attacked have a priilege to protect themselves using only the force that a reasonable person would use under the circumstances.
		Defender may only use force appropriate to the force perpetrated against them.  In particular, they may only use deadly force if a.) reasonably fear sever bodily injury or death; and b.) no escape route available.
		Mistaken Self Defense: if one honestly and reasonably, but mistakenly believes that they are in imminent danger, or if reasonable person would believe that there is imminent danger, then foce is justified.
		
		Conflicting policy rationales behind the mistaken self-defense rule and the reasonableness requirement of the rule:
		1. Mistaken self defense rule, policy rationale:
		   a. Social Policy: Encourages people to defend themselves.
		   b. Rights: Defendant's right to freedom of action favoured over Plaintiff's right to bodily security.
		   c. Morality: No liability without fault.
		2. Reasonableness requirement rationale:
		   a. Social Policy: Discourages risky behaviour, encourages caution.
		   b. Rights: Respect for victim's bodily security, retrains Defendant's freedom of action.
		   c. Morality: Try to compensate innocent victims.

C.	Intentional Infliction of Emotional Distress IIED
1.	Abusive Speech
	AGIS v. HOWARD JOHNSON CO. (1976)
			Outline Section 08.C.01.a 98.11.09  pp. 282,460.SU

	Facts:	Waitress arbitrarily fire after boss accuses employees of stealing.  Plaintiff suffers anguish, distress and loss of wages.
	Issues:	Intentional Infliction of Emotional Distress without any accompanying bodily injury?
	Rule:	PRIMA FACIE CASE OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS:
		1. Defendant INTENDS to cause injury
		2. Defendant's conduct is EXTREME AND OUTRAGEOUS
		3. Defendant's conduct CAUSES emotional harm
		4. Causes SEVERE DISTRESS.
	Holding:	Court holds that it is for the jury to determine whether Defendant's conduct was extreme and outrageous and whether Plaintiff's injury was severe.

	HARRIS v. JONES (1977)
			Outline Section 08.C.01.b 98.11.09  pp. 286,465.SU

	Facts:	Employee has a stutter.  Supervisor constantly ridiculed him.

	Holding:	Court holds as a matter of law that there was not enough evidence to prove the severeity of the distress.
	Rationale:	Supervisors actions may have exacerbated a pre-existing condition but it did not itself cause the distress.

	WOMACK v. ELDRIDGE (1974)
			Outline Section 08.C.02 98.11.09  pp. 820.CB

	Facts:	Private Investigator working for a lawyer poses as a reporter and takes pictures of Plaintiff.  Plaintiff's picture is then brought into an investigation for child molestation (having nothing to do with Plaintiff).

	Holding:	Court's hold Defendant liable, intentional activity.  She should have known that emotional harm would result from Plaintiff being brought into case.

2.	Racial Insults
	WIGGS v. COURSHON (1973)
			Outline Section 08.C.03 98.11.09  pp. 289,468.CB

	Facts:	Plaintiff and family were insulted with racial slurs by a waitress at a hotel restaurant.  Unique case because there exists a statute dealing with common carriers i.e. Innkeepers, where it is actionable to insult a patron.

	Holding:	Court awards damages, but much reduced than those decided upon by the jury - which the court noted so "shocked" the conscience of the court.
	Rationale:	Court still operating on Floodgates argument.

	Notes:	Verdict propably would have been different if this were not a common carrier case.

	IRVING v. MARSH (1977)
Court finds for blatant racist act.  Too costly to solve every instance.
			Outline Section 08.C.04 98.11.09  pp. 294,473.cb

	Facts:	Plaintiff returns product and sales person writes on return slip, "Arrogant nigger refused exchange, says he doesn't like products"  Plaintiff had to sign slip to get money back.

	Holding:	Court finds for Defendant.  Conduct was not extreme and outrageous enough.
	Rationale:	It would be too costly to enforce ideals on an imperfect world.

3.	Sexual Orientation
	LOGAN v. SEARS, ROEBUCK & CO. (1985)
Condoned gay bashing.
			Outline Section 08.C.05 98.11.09  pp. 295,474.CB

	Holding:	Plaintiff can not recover for distress from a single anti-gay comment over the phone.  Conduct was not extreme and outrageous.  We as a society condone certain derogratory language.

	Finley, Lucinda M., A Break in the Silence
			Outline Section 08.C.06 98.11.09  pp. 298,477.CB

4.	Public Figure
	HUSTLER MAGAZINE, INC. v. FALWELL
			Outline Section 08.C.07 98.11.09  pp. 830.CB

	Facts:	Falwell may not recover for an offensive parody of himself in Hustler magazine.

	Holding:	Hustler has a 1st Amendment right to parody.  As a public figure the standard is different.  Falwell must be able to show that they published a factual untruth with the knowledge that it was false or with reckless disregard to whether it was false or not.

	ESPOSITO-HILDER v. SFX BROADCASTING INC. (1997)
			Outline Section 08.C.08 98.11.09  pp. 302,481.SU

IX.	Affirmative Defenses
A.	Immunities
1.	Governmental or Sovereign Immunity
	Federal Torts Claim Act
See p. 197.CB; 215.CB; 872.CB
			Outline Section 09.A 98.11.30  pp. 

	Notes:	GOVERNMENT IMMUNITY:
		HOLMES: "A sovereign is exempt from suit, not because of any formal conception or any obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends."
		
		Due to judicial abrogation and legislative refinement, sovereign immunity has become the exception rather than the rule.
		
		Duty limitations have been the principal technique for continued recognition of the special character of certain public functions.

		FEDERAL TORTS CLAIMS ACT
		
		Act waived federal government's general tort immunity in 1946
		sec. 1346(b): District court have exclusive jurisdiction of civil action against the USA for money damages for injury or loss caused by the negligent act or omission of any government employee acting within the scope of their employment if a private person would be liable to the claimant under similar circumstances.
		
		sec. 2674: Government liability is same as private individual but shall not be liable for interest prior to judgment or for punitive damages.
		
		sec. 2679(b): Remedy against the government shall be exclusive of any other civil action or proceeding by reason of the same subject matter against an employee or his estate.
		
		sec. 2680: lists exceptions for which government can't be sued:
		- Acts or omissions which exercise due care in the execution of statute or regulation, whether or not the statute be valid or based upon the exercise or performance or the failure to exercise or perform a DISCRETIONARY FUNCTION or DUTY.
		- loss, miscarriage or negligent transmittal of letters or POSTAL MATTERS.
		- claim for damages arising out of fiscal operation of the Treasury or by regulation of the MONETARY SYSTEM.
		- WAR TIME claims arising out of combat activities
		- INTENTIONAL TORTS will not apply for claims of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit or interference with contract rights unless it is the act of an investigative or law enforcement official - they will be liable under sec. 1346(b)

		ALLEN v. USA (1987) - Nuclear Test Program.
		 On Appeal, Government was held exempt under the DISCRETIONARY FUNCTION provision (FTCA, sec. 2680)
		Cites to VARIG case which held that FAA inspection decisions are exempt, "it is the NATURE OF THE CONDUCT, rather than the status of the actor, that governs whether discretionary function applies."
		
		*This discretionary function is supposed to distinguish the planning level from the operational level.  The planning level is policy oriented - discretionary and exempt.  The purpose of this exemption would be to insure that government was not prevented from instituting leadership and planning functions by tort suits attacking the manner in which it was done.
		
		BERKOVITZ v. US (1988)
		- Child develops polio from an oral polio caccine that the government licensed and approved.
		- Government raises discretionary function defense.
		- MARSHALL, J. says the claim should not be barred: "The rule is that the discretionary function exception applies only to conduct that involves th permissible exercise of policy judgment."
		- The DBS issued a license without examining the vaccine product.  The agency had no discretion to deviate from mandated procedure.  They were required to examine product and didn't.
		
		ARGUMENTS:
		*FOR LIABILITY IN DISCRETIONARY FUNCTION:
		1. This is a low level function
		2. No room for policy judgment and decision
		3. There was no discretion to deveiate from mandated procedure
		4. Says that there is no public policy involved - exception doesn't apply
		5. BERKOVITZ: FTCA wasn't meant to cover every act of the government
		6. collective citizenry should bear the cost of this
		
		*FOR NO LIABILITY IN DISCRETIONARY FUNCTION:
		1. even low level workers carry out policy functions
		2. the procedure allowed room for discretion
		3. it doesn't matter that the government should have made better regulations
		4. this is an area of public policy, purpose to prevent second guessing or agency judgment
		5. failure to recognize immunity will result in confusion.

X.	Traditional Strict Liability
A.	Ultrahazardous / Abnormally Dangerous Activities (ADA)
1.	Rylands Doctrine
	FLETCHER v. RYLANDS (1866)
Historical Perspective.  Reservoir floods neighbours mine shaft.
			Outline Section 10.A.01 98.11.30  pp. 431.CB

	Facts:	Defendant builds reservoir on his land which breaks and floods Plaintiff's mines.  Defendant had consulted engineers and claims he exercised due care.

	Holding:	Court says, "a person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes must keep it in at his own peril and if he does not do so is prima facie answerable for all the damage that is the natural consequence of its escape"  So Defendant must have control of what he brings on to his land.  Mischievous means something not naturally occuring there in the same manner as when it is brought.  Mischieviousness implies liability.
		Court also hints at two possible defenses for Strict Liability: Assumption of Risk & Contributory Negligence.
	Rationale:	Court also distinguishes between NATURAL and NON-NATURAL use.  If land use is Natural, Plaintiff must protect himself and has no cause of action.  Slight deviation from lower court's "not natuarlly there" rhetoric implying the presence of something vs. "Non-natural us" implying some activity.  See Turner - Lots of "Natural" uses that are things not "naturally there".

	Notes:	Remember Brennan: Court tried to switch from negligence to strict liability citing Calabresi: COST SPREADING, INJURY PREVENTION AND FAIRNESS
		Appeals court invoked Res Ipsa Loquitur instead (middle ground).  Policy reasons given - Floodgates.

2.	American Nation Building Era
	LOSEE v. BUCHANAN
Revisited. Boiler explosion destroys neighbours property. Rejection of Rylands.
			Outline Section 10.A.02.a1 98.11.30  pp. 437.CB

	Holding:	Defendant not held liable.

	Policy:	Industrial society needs to promote progress, growth and expansion.  Individual property rights are relative in industrialization era.  Everyone must give up something for the greater common good.

	TURNER v. BIG LAKE OIL CO.
Arid Texan value of Water Collection distinguished from Rylands in England.
			Outline Section 10.A.02.a2 98.11.30  pp. 438.CB

	Facts:	Defendant's water escapes from water tank.

	Holding:	Defendant tries a Rylands theory but the English idea can't work in Texas since water towers are commonly used (even though "non-natural") so it can't be framed as unnatural use.  Location impacts natural/Non-natural use.

	SULLIVAN v. DUNHAM
			Outline Section 10.A.02.b 98.11.30  pp. 439.CB

	Facts:	Defendant is blasting to build a canal.  Piece of wood flies from site and kills Plaintiff.

	Rule:	Court designs system where land use is circumscribed as strict liability (sometimes use of land is trumped by another's right).
	Holding:	Plaintiff's right to personal safety trumps Defendant's right to use/modify land.

	Policy:	Individuals safety on the highway is more important to the state than the improvement of one piece of land.

3.	America Economic Limitations
	CITIES SERVICES CO. v. STATE OF FLORIDA
			Outline Section 10.A.02.c1 98.11.30  pp. 439.CB

	Facts:	Defendant's dam full of phosphate slime broke and entered creek and river killing fish and causing other damage.

	Holding:	Defendant held strictly liable.  Ryland applies (must control whatever is on your land).  Modern complex society - non-negligent use can hurt you neighbour.

	VENTRON: STATE DEPT. OF ENVIRONMENTAL PROTECTION v. VENTRON CORP.
			Outline Section 10.A.02.c2 98.11.30  pp. 439.CB

	Holding:	Uses Rylands to curb mecury pollution.  court says landowners are responsible for Toxic Waste.  You must control what's on you land.

4.	Restatement 2d sec. 520
	INDIANA HARBOR BELT R. CO. v. AMERICAN CYANAMID CO.
Toxic chemical spill from train car required evacuation and soil dredging at RR hub.
			Outline Section 10.A.02.d1 98.11.30  pp. 444.CB

	Facts:	Dangerous chemical transported leaks from railroad car causing damage.

	Rule:	Restatement sec. 520 - In determining when an activity is abnormally dangerous, consider the following:
		1. Existence of a HIGH DEGREE OF RISK of some harm to the person/land/chattel of others;
		2. Likelihood that the HARM THAT RESULTS WILL BE GREAT;
		3. INABILITY TO ELIMINATE THE RISK BY THE EXERCISE OF REASONABLE CARE Yes-SL/No-Neg.
		4. EXTENT to which the activity is NOT A MATTER OF COMMON USAGE.
		5. INAPPROPRIATENESS OF THE ACTIVITY TO THE PLACE WHERE IT IS CARRIED OUT Inapp-SL/App-Neg
		6. Extent to which the ACTIVITIES VALUE TO THE COMMUNITY IS OUTWEIGHED BY ITS DANGEROUS ATTRIBUTES
		
		Posner reprioritizes sec. 520.  He suggests we begin with #3 - Inability to eliminate through due care.  Puts forth Guille as the better paradigmatic test.  Points out that SL gives actors incentives to experiment with methods of prventing accidents that don't include due care, but rather relocating, changing, or reducing the activity i.e. blasting - dangerous everywhere so must be careful where we do it).
		- If in applying #3 we find the exercise could have been avoided by due care this implies negligence.
		- If activity is common (driving) hazard probably isn't that large and there is technology to minimize the activity so not much of acase for SL (so Neg.)

	Notes:	Posner applies this line of thinking to Indiana Harbor Belt.  He thinks the accident could have been prevented by due care of tank car but could not have been prevented at reasonable cost by a change in the activity of transporting.  Therefore case is a negligence case.
		
		COASE'S THEOREM: RR imposes cost on residents and they on it.
		ECONOMIC EFFICIENCY: Land put to best highest use?
		Highest value should be taken (allocation)

5.	Reject Restatement 2d sec. 520
	YUKON EQUIPMENT, INC. v. FIREMAN'S FUND INS. CO.
			Outline Section 10.A.02.d2 98.11.30  pp. 450.CB

	Rule:	Rejects sec. 520 and imposes an automatic SL test for explosives
	Holding:	Says there's no great place for explosives to be stored.  Disregards the value of the activity as well should be no distinction because there is an absolute right to property.

	Notes:	DEFENSES TO STRICT LIABILITY:
		1. ASSUMPTION OF RISK: Must have actual knowledge of risk, can't just live near it.
		2. NOT CONTRIBUTORY NEGLIGENCE Unless Plaintiff's conduct involves knowingly and unreasonbly subjecting self to risk of harm
		
		LEGISLATIVE RESPONSE
		An attempt to solve problems and encourage investment in nuclear power provides
		1. Cap on liability
		2. Eliminate uncertainty
		3. Classifies payouts unders SL
		4. Still must prove causation.
		-- People who engage in industry must have private insurance contribute to common liability pool.
		
		GUNS:
		How about putting guns in SL box.  Courts don't don't think guns go here.  D.C. Statute.

XI.	Tresspass and Nuisance
A.	Tresspass
1.	Intentional
	Hackney, J., Intent in the Law of Torts
			Outline Section 11.A.01.a 98.12.02  pp. 61,67.SU

2.	Intentional Trespass PFC
	Hackney, J., Prima Facie Case of Intentional Trespass to Land
			Outline Section 11.A.01.b 98.12.02  pp. 68,87.CB

	Notes:	TRESPASS: Legally Protected Interest - Exclusive Possession
		
		PRIMA FACIE CASE OF INTENTIONAL TRESPASS
		1. Plaintiff's right of POSSESSION
		2. An ENTRY (of self or objects)
		3. By ACT of the Defendant
		4. WITH INTENT (intent to cause the entry, not an intent to trespass)
		(ACTUAL HARM IS NOT REQUIRED)

3.	Unintentional
	Tresspass sec. 158; sec. 165
			Outline Section 11.A.01.c 98.12.02  pp. 588.CB

	Notes:	PRIMA FACIE CASE OF UNINTENTIONAL TRESPASS (sec. 165 of Restatement)
		1. Plaintiff's right of POSSESSION
		2. ENTRY (of self or objects)
		3. By ACT of Defendant
		4. Arising from Defendant's
		   i. negligence, or
		   ii. recklesness, or
		   iii. abnormally dangerous activity (ADA)
		5. Resulting in HARM

4.	Substance vs. Form
	MARTIN v. REYNOLDS METALS CO. (1959)
			Outline Section 11.A.02.a 98.12.02  pp. 590.CB

	Facts:	Aluminum reduction plant produces aerosol flouride compounds.  These land on Plaintiff's property and cause harm to cattle and crops.
	Issues:	Does the aerosol constitute a trespass or nuisance?

	Holding:	Statute of Limitations has already run on Nuisance.  To distinguish between trespass and nuisance, court focuses not on type of invasion but on invaded interest.  If interest is possession of land, it is a trespass.  If interst is in use and enjoyment of land, it is a nuisance.  Court says that Plaintiff couldn't possess land for its intended purpose.  Basically that obliterates the ditinction between trespass and nuisance - on its face this is a nuisance case.

5.	Limits
	SHACK: STATE OF NEW JERSEY v. SHACK
			Outline Section 11.A.02.b 98.12.02  pp. 320,578.CB

	Holding:	Court holds that Defendant's right to possession was not violated when lawyer and medical worker enter the land to consult with a migrant worker.
	Rationale:	Property rights are not absolute, right of the migrant worker - to legal advice, and medical care, etc. - preempts those of the property owner.  Property rights may be curtailed for the promotion of the best intersts of society.

B.	Nuisance
1.	Public vs. Private
	Public Nuisance; Private Nuisance; Restatement 2d
			Outline Section 11.B.01 98.12.03  pp. 594.CB

	Notes:	PUBLIC NUISANCE:
		1. UNREASONABLE INTERFERENCE with a RIGHT COMMON TO THE GENERAL PUBLIC
		   Unreasonableness:
		   i. Defendant's significant interference with public health, safety, peace, comfort, or convenience
		   ii. Statute or ordinance prescribing Defendant's conduct
		   iii. Continuing or long-lasting conduct that Defendant knows or has reason to know has significant effect on the public right.
		2. A private individual may sue for public nuisance when they can demonstrate special harm, or if they represent a class of people harmed.

		PRIMA FACIE CASE OF PRIVATE NUISANCE
		1. SUBSTANTIAL
		2. INTERFERENCE
		3. By ACT/CONDUCT
		4. Where interference is:
		   a. INTENTIONAL and UNREASONABLE or
		   b. Arises from NEGLIGENT OR RECKLESS conduct or
		   c. Arises from an ABNORMALLY DANGEROUS ACTIVITY or condition
		
		Conduct is considered "UNREASONABLE" when:
		1. the gravity of the harm outweighs the utility of the actor's conduct or
		2. the harm caused by the conduct is serious and the financial burden of compensating for this and similar harms to others would not make the continuation of the conduct unfeasible.
		
		Factors involved with GRAVITY OF HARM:
		1. the extent of the harm involved
		2. the character of the harm involved
		3. the social value that the law attaches to the type of use or enjoyment invaded
		4. the suitability of the particular use or enjoyment invaded to the character of the locality
		5. the burden on the person harmed of avoiding the harm.
		
		Factors involved with UTILITY OF CONDUCT
		1. the social value that the law attaches to the primary purpose of the conduct
		2. the suitability of the conduct to the character of the locaility; and
		3. the impracticability of preventing or avoiding the invasion.

2.	Private (Reasonable)
	JOST v. DAIRYLAND POWER CO-OP
			Outline Section 11.B.02.a 98.12.03  pp. 605;608.CB

3.	Private (Personal Sensitivities)
	ROGERS v. ELLIOT (1888)
Church bells cause convulsions; neighbourhood consenus is that they should stop
			Outline Section 11.B.02.b 98.12.03  pp. 327,585.SU

	Facts:	Plaintiff is recupperating from sunstroke but ringing of the church bell causes him to go into convulsions.  Pastor was asked to stop ringing but refused.

	Holding:	Directed verdict for the Defendant because the bell would not be considered a nuisance to the reasonable person.
		Those who are hyper sensitive cannot collect.  It would "paralyze the social enterprises"

4.	Private (Injuctive Bargaining)
	BOOMER v. ATLANTIC CEMENT CO.
Plaintiff receives injunctive remedy against dusty cement producer and bargains for relief but allows quarry to continue to operate.
			Outline Section 11.B.02.c1 98.12.03  pp. 598.CB

5.	Private (Zoning)
	LITTLE JOSEPH REALTY, INC. v. TOWN OF BABYLON
			Outline Section 11.B.02.c2 98.12.03  pp. 606.CB

6.	Defenses (Contributory Negligence / Coming to Nuisance)
	LE ROY FIBRE CO. v. CHICAGO, MILWAUKEE & ST. PAUL RY. (1914)
			Outline Section 11.B.02.d1 98.12.03  pp. 329,587.SU

7.	Law & Economics (Liability vs. Property)
	SPUR INDUSTRIES, INC. v. DEL E. WEBB DEVELOPMENT CO.
			Outline Section 11.B.03.a 98.12.07  pp. 609.CB

8.	Law & Economics (Non-Reciprocal Risk)
	FLETCHER v. RYLANDS
			Outline Section 11.B.03.b 98.12.07  pp. 431.CB

9.	Law & Economics (Reciprocal Cost)
	Hackney, J., Coase Theorem
			Outline Section 11.B.03.c 98.12.07  pp. 73,91a.SU

10.	Public Policy (Environmental Recision
			Outline Section 11.B.04 98.12.07  pp. 

XII.	Strict Product Liability SPL
A.	Establishment of Doctrine
	ESCOLA v. COCA COLA BOTTLING CO. OF FRESNO
			Outline Section 12.A.01a 98.12.07  pp. 479.CB

	Holding:	TRAYNOR: Defendant found liable for injuries due to exploding soda bottle under Res Ipsa Loquitor.  Traynor's concurrence wants to change to Strict Liability.
		1. Put responsibility where it is likely to reduce hazards
		2. Defendant can anticipate hazards better than Plaintiff's
		3. Innocent Plaintiff's should be compensated even if Defendant used due care
		4. Defendant can insure against risk of injury and spread the costs; if burden on Plaintiff, then high social dislocation.
		5. If risk is general and constant then protection should be general and constant
		6. Complex society, consumer can't inspect everything.
		BASIC POLICY RATIONALES:
		- Cheapest cost avoider
		- Social Dislocation
		- Loss Spreading
		ARGUMENT AGAINST SUITS BASED ON WARRANTEES:
		- Backhanded
		- Wasteful
		- In Warranty not Tort
		OLD CATEGORIES OUTMODED / MASS PRODUCTION / MANUFACTURES KNOW MORE: Policy.

	HENNINGSEN v. BLOOMFIELD MOTORS, INC.
Finds Defendant liable for car defect stating that an implied warranty exists when the automobile is purchased (Contra-Traynor)
			Outline Section 12.A.01b 98.12.07  pp. 483.CB

	GREENMAN v. YUBA POWER PRODUCTS, INC. (CA.)
			Outline Section 12.A.01c 98.12.07  pp. 484.CB

	Holding:	TRAYNOR for unanimous court.  Plaintiff uses power tool as he should.  Wood detached from tool, flies up and hits him in the face.  Traynor moves outside warranty theory / contract law and holds manufacturer strictly liable in tort.  "Manufacturer is strictly liable in tort when an article he places on the market nowing it to be used without inspection for defects proves to have a defect that causes injury to a human being"  Manufacturers should bear the cost.

	VANDERMARK v. FORD MOTOR CO. (CA.)
			Outline Section 12.A.01d 98.12.07  pp. 484.CB

	Holding:	Proper Defendant can include retailers as well as manufacturers.  Retailers can put pressure on manufacturers and can pass costs of accidents onto consumers.  This disregards the limited obligations Defendant said it had by contract.  Held strictly liable

2.	SPL PFC
	Hackney, J., PFC Strict Products Liability Basic Framework
			Outline Section 12.A.01e 98.12.07  pp. 74,92.SU

	Notes:	PRIMA FACIE CASE OF STRICT PRODUCTS LIABILITY
		1. PROPER DEFENDANT
		2. PRODUCT
		3. DEFECT
		   A. Type:
		      1. Manufacturing defect
		      2. Design defect
		      3. Warning defect
		   B. Unreasonably Dangerous factor sec. 402A states
		   C. Unavoidably unsafe product (comment k)
		   D. Defect existed at time product left Defendant's hands
		4. CAUSATION: Cause in Fact/Proximate Cause/Joint Causation Analysis
		5. INJURY
		6. PROPER PLAINTIFF

B.	Proper Plaintiffs/Defendants
1.	Retailers, Sellers, Dealers
	VANDERMARK v. FORD MOTOR CO. (CA. 1964)
			Outline Section 12.A.02 98.12.07  pp. 

	Facts:	Plaintiff gets into accident because of defective brakes.
	Issues:	Can Plaintiff sue the dealer as well as the mfg. in strict liability.

	Holding:	YES! Court holds that dealer is vital link to mfg., one which the Plaintiff is most easily going to be able to sue.  In addition, they can loss-spread much better than Plaintiff and put pressure on the mfg. to supply quality goods i.e. deterrence.

2.	Bystanders
	ELMORE v. AMERICAN MOTORS CORP. (CA, 1969)
			Outline Section 12.A.02a 98.12.07  pp. 

	Facts:	Drive shaft falls out of car.  Car crashes into second car and the occupants of second car sue mfg. of first car.

	Holding:	Court holds that the mfg. (and dealer) should be liable to bystanders as well.
	Rationale:	They have even less control over product i.e. they had no choice as to which product to buy, they are in even greater need of protection.

3.	Lessors and Bailors
	PRICE v. SHELL OIL (CA. 1970)
			Outline Section 12.A.02b1 98.12.07  pp. 486.CB

	Facts:	Plaintiff was injured when a ladder on truck leased from Defendant collapsed.

	Holding:	Court held that there is no significant difference between a mfg. or a retailer who puts their product on the market via lease or sale.  Both should be strictly liable.

	STILES v. BATAVIA ATOMIC HORSESHOES, INC.
			Outline Section 12.A.02b2 98.12.07  pp. 486.CB

4.	Used Goods
	TILLMAN v. VANCE EQUIPMENT CO. (OR. 1979)
			Outline Section 12.A.02c 98.12.07  pp. 486.CB

	Holding:	Court refused to extend doctrine to the seller of used goods. 2 out of 3 elements of SPL are not satisfied:
		1. Spreading the risk - Yes
		2. Satisfy reasonable buyer expectations - No. Buyer buys as is and knows it
		3. Risk Reduction - No. Sellers in no position to put pressure on original mfg.

5.	Landlords
	BECKER v. IRM CORP.
			Outline Section 12.A.02d1 98.12.07  pp. 487.CB

	PETERSON v. SUPERIOR COURT (PARIBUS)
			Outline Section 12.A.02d2 98.12.07  pp. 487.CB

6.	Financing Agencies
	NATH v. NATIONAL EQUIPEMENT LEASING CORP. (PA, 1981)
			Outline Section 12.A.02e 98.12.07  pp. 487.CB

	Holding:	Court refused to apply strict liability in favour of a worker whose hand was injured in a machine his employer had leased to the institution that financed the lease - Finding in favour of Plaintiff would have catastrophic effects upon commerce.  Note: Sometimes those who finance commercial transactions become lessors.

7.	Franchisors
	KOSTERS v. SEVEN-UP CO. (1979)
			Outline Section 12.A.02f 98.12.07  pp. 488.CB

	Facts:	Defectively designed box made it easy for bottles to fall out, smashing and getting glass in Plaintiff's eye.

	Holding:	Franchisor held liable because their sponsorship, management and control of system of distributing product and its consent to defective packaging design which caused injury make it equivalent to a supplier and therefore liable.

8.	Business Successors
	RAY v. ALAD CORP.
			Outline Section 12.A.02g1 98.12.07  pp. 488.CB

	Holding:	Minority View: Successor business only liable if they continue the same product line (rejected in most jurisdictions).
	Rationale:	Otherwise may destroy the Plaintiff's only remedy.  They still act as a risk spreader, and they are the entity that benefitted from the original business' profit/goodwill.  NO CORPORATE SHAMS.

	GUZMAN v. MRM/ELGIN
			Outline Section 12.A.02g2 98.12.07  pp. 488.CB

9.	Contractor
	MICHALCO v. COOKE COLOR AND CHEMICAL CORP.
			Outline Section 12.A.02h1 98.12.07  pp. 488.CB

	Facts:	Plaintiff lost hand in machine rebuilt by Defendant pursuant to employer's specifications.  Rebuilder failed to install safety device or warn of danger.

	Holding:	Court holds they are strictly liable.  Rebuilders of machines should be held to same standard as mfg.

	Notes:	GOVERNMENT CONTRACTORS:
		Family of drowned military helicopter piolot sues government contracted mfg. under design defect theory.  Helicopter door opened out and piolot couldn't open it when he crashed into the sea.
		Court denies recovery because mfg. was acting according to gov't specifications.  Contractors avoid liability if
		1. US Approved precise specifications
		2. Contractor followed them
		3. Contractor warned of known dangers.

	BOYLE v. UNITED TECHNOLOGIES CORP.
			Outline Section 12.A.02h2 98.12.07  pp. 489.CB

C.	Restatement View
			Outline Section 12.A.03 98.12.07  pp. 

	Notes:	RESTATEMENT sec. 402A
		1. Seller of product in defective condition unreasonably dangerous to the user or consumer or his property is liable for physical harm to consumer, user or property if:
		   a. Seller is engaged in the business of selling such a product, or
		   b. It is expected to and does reach the consumer without substantial change in the condition in whichi it is sold.
		2. Rule applies even if:
		   a. seller used all possible care
		   b. User/Consumer did not buy product from seller or enter into a contract with them.
		NB: 'Unreasonably dangerous' smacks of negligence but notice it is focused on defect/product not on Defendant's conduct in designing product.

		DEFECT:
		a. consumer contemplation test (sounds like contract) - no experts
		b. unreasonably dangerous - considers risk/benefit of activity - need experts

D.	Defect
1.	Manufacturer
	WELGE v. PLANTERS LIFESAVERS CO.
			Outline Section 12.A.04a 98.12.07  pp. 492.CB

	Holding:	Defective Planters Peanuts Jar. Defendant responsible for defect without thought.

	Notes:	MANUFACTURING DEFECT (Ultimate product different from what design had contemplated)

	PRICE v. SHELL OIL
			Outline Section 12.A.04b 98.12.07  pp. 486.CB

	Holding:	Evidence destroyed. Summary Judgement for Defendant.  Shows must have evidence / must compare and/or know original design.

2.	Design (Rejection of unreasonably dangerous)
	CRONIN v. J.E.B. OLSON CORP.
			Outline Section 12.A.04b1 98.12.07  pp. 493.CB

	Facts:	Plaintiff injured while driving bakery truck.  Had an accident (not his fault) and was hit with pastry trays because of broken safty hatch.

	Rule:	Comment i - Article must be dangerous beyond which it would be contemplated by an ordinary consumer who purchases it with ordinary knowledge common to community as to its characteristics.  BURDEN OF PROOF IS ON PLAINTIFF TO SHOW IT WAS UNREASONABLY DANGEROUS.
		
	Holding:	Courts reject comment i because
		1. Rings of negligence
		2. Expectations of ordinary consumer may be different from Plaintiff's
		3. Its enough that Plaintiff must prove defect and causation.

3.	Design (Two-prong test)
	BARKER v. LULL ENGINEERING CO.
Two-Prong Test: 1. Consumer; 2. Excessive Preventable Danger w/Burden on Defendant
			Outline Section 12.A.04b2 98.12.07  pp. 494.CB

	Rule:	Court designs a two prong test to establish whether a product is defective
		1. Plaintiff must demonstrate that the product failed to perform as safely as ordinary consumer would expect when used as intended or in a reasonably foreseeable manner
		2. Even if product satisfies ordinary consumer expectations it may still be found defective in design if through hindsight jury finds risk of danger inherent in challenged design outweighs the benefit.
		FACTORS FOR BALANCING TESTS:
		a. Gravity of danger posed by design
		b. Likelihood of danger occurring
		c. Mechanical feasibility of safer design
		d. Cost of improved design
		e. Adverse results to consumer/product due to alternative design, once Plaintiff proves Defendant's product caused Plaintiff's harm, burden is on Defendant to show its not defective.
		FOCUS IS ON PRODUCT NOT ON DEFENDANT'S ACTIONS

4.	Limits
	SOULE v. GENERAL MOTORS CORP.
			Outline Section 12.A.04b3a 98.12.07  pp. 495.CB

	Rule:	Use consumer contemplation when everyday experience indicates the products design violated safty assumptions and is defective regardless of expert opinion about merits of the design.  If minimum safety in realm of lay juror understanding then fine (no experts needed).  If facts don't point to an inference that product violated minimum expectations then jury must balance risks and benefits according to 2nd prong of Baker Test.  If evidence is technical, instruct on risk/benefit.  If evidence is of expectation, instruct on ordinary consumer expectations.
		
		CRITIQUE OF CONSUMER EXPECTATION
		1. No definition
		2. Consumers lack knowledge
		3. Subjective
		4. Jury isolates incident
		5. Eliminates risk benefit balancing

	CAMPBELL v. GENERAL MOTORS CORP.
			Outline Section 12.A.04b3b 98.12.07  pp. 502.CB

	Facts:	Bus passenger falls when bus makes a sharp turn.  Passenger sues mfg. because there was nothing to grab onto.

	Holding:	On first prong of Baker Test, Plaintiff showed pictures of bus that might lead jury to conclude that bus did not meet ordinary consumer's expectation.  Alternatively on the second prong, Plaintiff gave evidence of cause, and burden shifted to Defendant to show design was not defective.

	Notes:	This is the Minority View.  In most states, Plaintiff has to put forward evidence of Cost/Benefit-Analysis.

	MORTON v. OWENS CORNING FIBERGLAS CORP.
			Outline Section 12.A.04b3b1 98.12.07  pp. 502.CB

	Rule:	Common sense elements help define elements that can use consumer contemplation test (safety with respect to installation qualifies as not complex or murky).

	BRESNAHAN v. CHRYSLER CORP.
			Outline Section 12.A.04b3b2 98.12.07  pp. 502.CB

5.	Limits - Bystander
	EWEN v. MC LEAN TRUCKING CO.
			Outline Section 12.A.04b3c 98.12.07  pp. 503.CB

	Issues:	Consumer contemplation extended to bystanders?

	Holding:	NO! Reminiscent of contract law.

	Restatement 3d
Goes beyond Soule and eliminates consumer contemplation - relies exclusively on risk benefit.
			Outline Section 12.A.04b3D 98.12.07  pp. 503.CB

6.	Manufacturer
	DANIELS v. GNB INC.
			Outline Section 12.A.04c 98.12.07  pp. 493.CB

7.	Open & Obvious
	CAMACHO v. HONDA (CO. 1987)
			Outline Section 12.A.05 98.12.09  pp. 

	Facts:	Plaintiff buys a motorcycle with no crash bars and gets into an accident and is injured in such a way that crash bars would have protected him.

	Rule:	Court looks at two tests: 1. Consumer Expectation Test (yields no compensation and is thus rejected by the court which notes that it would mean mfg.'s were exempt the more ostensibly dangerous the product was); 2. Instead court takes middle ground approach and uses C/B-A with Plaintiff having burden of proof.  Court looks at a 7 part test to determine usefulness of the product:
		1. Usefulness and desirability of the product - utility both to user and society as a whole
		2. Likelihood that it will cause injury/seriousness of that injury
		3. Availability of a substitute product
		4. Mfg.'s ability to eliminate unsafe characteristics without impairing usefullness or making it too expensive
		5. User's ability to avoid danger by exercising care
		6. User's anticipated awareness of danger - either because of general knowledge of obvious condition or because of warnings
		7. Feasibility of mfg. to spread loss

8.	Product Comparison
	DYSON
Court refuses to hold soft top car defective because it is less than a full sedan. cf. Dreisonstok
			Outline Section 12.A.06a 98.12.09  pp. 

	DRIESENSTOK v. VOLKSWAGEN
			Outline Section 12.A.06b 98.12.09  pp. 

	Facts:	VW Microbus passengers sue mfg. for injuries alleging design defect.

	Holding:	Court rejects risk-utility analysis because this particular car was built to be economical and that's why people bought it.  Can't compare a VW to a Volvo when doing safety analysis.

	BITNER
Can't successfully compare very differnt products/activities - apples vs. oranges.
			Outline Section 12.A.06c 98.12.09  pp. 

9.	Product Alteration -  Minority
	JONES
			Outline Section 12.A.07a 98.12.09  pp. 

	Notes:	Minority - Printing Press
		If alteration is not foreseeable this is strong defense. Jones Ct. takes hardline.  Holds defect must have been present at time of distribution even though maker well aware of foreseeable alterations
		
		DISSENT: What about when a product is easily altered - Defect should encompass not only static state of product but also foreseeable misuse

10.	Product Alteration -  Majority
	PIPER & SPURGEON
			Outline Section 12.A.07b1 98.12.09  pp. 

	Notes:	Measures foreseeable alteration by whether safety device is easily removed or hinders operation (is it well known practice)

11.	Product Alteration -  Statutes
	LA PLANTE
			Outline Section 12.A.07c 98.12.09  pp. 

	Notes:	Poorly maintained Honda ATV
		Plaintiff argued statute did not apply to inadequate maintenance only deliberate changes court did not agree

12.	Uniformity
	DAWSON v. CHRYSLER CORP. (1980)
			Outline Section 12.A.08a 98.12.09  pp. 

	Holding:	Plaintiff was awarded $2M for injuries suffered when his car skidded sideways and wrapped around a pole.  Firmer side frame would have lessened the injuries.  Even though the car's design complied with National set standards this did not excuse mfg. from liability.
	Rationale:	Court notes that this result in inconsistent verdicts across the country as different juries deliberate on similar facts.
		Different outcomes are neither "fair nor efficient"  Since it has been allowed by congress, just don't change it again.

	DENNY
			Outline Section 12.A.08b 98.12.09  pp. 

	Notes:	Holds that Bronco was not defective for Tort purposes but says warranty was breached - Traynor would hate this.  Puts SL in contract law again instead of Torts.

13.	Uniformity - Reform
Can't reintroduce contract law
			Outline Section 12.A.08c 98.12.09  pp. 

E.	Warnings
1.	Introduction  1. Comment; 2. Definition
			Outline Section 12.B.01 98.12.09  pp. 

	Notes:	Comment j - "Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous"

2.	Risk Reduction - Jury Question
	HAHN
Child ingests Campho-Phenique and suffers convulsions. Sufficient Warning on Label
			Outline Section 12.B.01a1 98.12.09  pp. 

	Notes:	Trial court found for Defendant.
		Reversed herein. "Whether a warning is adequate to give unsafe nature of product" should go to a jury.

3.	Risk Reduction -  Matter of Law
	MACKOWICK
			Outline Section 12.B.01a2 98.12.09  pp. 

	Notes:	Experienced electrician burned.  No warning. Whether or not a warning is defective is a matter of law

4.	Risk Reduction - Contents of Warning
	PITTMAN
			Outline Section 12.B.01b1 98.12.09  pp. 

	Notes:	a. Scope of danger
		b. Reasonably communicate serious nature of danger
		c. Physical aspect of warning must be reasonable to alert user
		d. Simple directive should be followed by consequences
		e. Means to convey must be adequate.

	JOHNSON
Will person actually read it?  Warning should be prominent
			Outline Section 12.B.01b2 98.12.09  pp. 525.CB

5.	Risk Reduction - Contents (Information Limits)
	COTTON
			Outline Section 12.B.01b3 98.12.09  pp. 

	Notes:	Of course if the list of danger is too long, no one will read it.  Also costs too much to mfg. Two tiered system: Warning on product and warning to employer.

6.	Risk Reduction - Addressee
General Rule: Warning addressed to a person who will actually use the product.
			Outline Section 12.B.01c1 98.12.09  pp. 

Exceptions: Learned Intermediary; Bulk Supplier
			Outline Section 12.B.01c2 98.12.09  pp. 

	Notes:	1. Children
		2. Learned Intermediaries: Must warn only them i.e. Doctors/Employers vs. Patients/Employees
		*This is particularly true of drug companies who we want to protect from needless liability.
		Except where drug/treatment isn't given in conjunction with doctor's consultation or relationship i.e. Mass Vaccines or Birth Control.

7.	Risk Reduction - Misuse
	ELLSWORTH & LUGO
Ellsworth (Nightgown) & Lugo (Voltron): Defendant liable if misuse is foreseeable
			Outline Section 12.B.01d1 98.12.09  pp. 531.CB

	VENEZIA v. MILLER
Kid throws beer bottle against telephone pole. Not foreseeable.
			Outline Section 12.B.01d3 98.12.09  pp. 

F.	Warnings & Defenses
1.	Intrinsic Risk - General Formulation
	BROWN v. FORMAN
No notice necessary on Tequilla Bottle warning of dangers of drinking too much too fast
			Outline Section 12.B.02a1 98.12.09  pp. 

	HON v. STROH
Not everyone knows moderate alcohol use can cause damage (if prolonged)
			Outline Section 12.B.02a2 98.12.09  pp. 

	EMERY
Marshmallow: Whether a warning is needed is a question for the jury
			Outline Section 12.B.02a3 98.12.09  pp. 

2.	Intrinsic Risk - Prescription Drugs
	BROWN v. SUPERIOR COURT (DES) & Childhood Vaccination Act
			Outline Section 12.B.02b2 98.12.09  pp. 535.CB

	Notes:	comment k: some products are incapable of being made safe (given present knowledge, such a product, properly prepared and accompanied by proper directions and warnings, is not defective nor unreasonably dangerous (goes onto address experimental drugs)
		
		BROWN v. SUPERIOR COURT:
		Chooses between Barker Test, comment k & Kearle Test
		Kearl Test (middle point)
		- product confer exceptionally important benefit?
		- risk substantial and unavoidable?
		- does interest in availability outweigh interest in promoting enhanced accountability through Strict Product Liability
		Court chooses comment k (big policy argument --> drugs are a good thing)
		
		NATIONAL CHILDHOOD VACCINE INJURY ACT
		Tries to alleviate crushing liability for vaccine mfg. Two tiered system offeres administrative review or tort relief.

3.	Intrinsic Risk - State of the Art
	BESHEDA v. JOHNS-MANVILLE (NJ)
			Outline Section 12.B.02c1 98.12.09  pp. 542.CB

	FELDMAN (NJ)
			Outline Section 12.B.02c2 98.12.09  pp. 542.CB

	ANDERSON (CA)
			Outline Section 12.B.02c3 98.12.09  pp. 

	CARLIN (CA)
			Outline Section 12.B.02c3 98.12.09  pp. 

Duty After Knowing
			Outline Section 12.B.02c4 98.12.09  pp. 

G.	Defenses
			Outline Section 12.B.02c5 98.12.09  pp. 

	Notes:	comment n: CONTRIBUTORY NEGLIGENCE IS NOT A BAR TO RECOVERY if it consists of a failure to discover defect or guard against possiblity of its existence.  Only bar if Plaintiff voluntarily unreasonably proceeds to encounter known danger
		
		ASSUMPTION OF RISK DOES BAR RECOVERY
		HAWK - Pilot doesn't do flight check; has no oil in his tank (not his fault) not held contributorily negligent.
		
		COMPARATIVE NEGLIGENCE REGIME
		DALY - says with move to comparative negligence we can refine fault disposition.  Can have Comparative Negligence and Strict Liability.