TORTS  OUTLINE

I.     Introduction:

 A.   Torts: wrongful or unreasonable acts (or omissions) that cause harm to another person in some way; 
        whether physical or financial.

•	2 kinds: intentional and unintentional (includes 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 regulate and governs how we can act upon each other and the consequences of acting upon each other.

•	Torts answers question: Who bears the burden of the losses associated with the action/actor?

•	Example: there is an accident between Frost and Hammontree, and bill is $5,000, who pays?
      Option # 1  Have Frost pay.
      Option # 2  If Frost is not negligent, then Hammontree pays.
      Option # 3  Manufacturer of Frost’s car pays.
      Option # 4  The government pays.  

•	Primary subject is How will losses be allocated?
      - could be a closed system, i.e. private law system or the alternative, social insurance

 B.  There are 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 in negligence box or Strict liability box. 
      2.) As to this issue, there have been big shifts historically as seen in Hammontree  and Bierman.

II. Hammontree v. Jenner (CB, 3) (negligence for auto accident where D became unconscious during epileptic    
     seizure and crashed through wall of P’s bike shop.  D did not recall accident; had history of epilepsy but no
     seizure since 12 years; obeyed al doctor’s rules, took medication, and was allowed to drive.)
     Rules: 1.)Loss from accident must lie where it falls even in instrument of injury is person. 2.)Unless injury is 
     foreseeable, injurer should opt 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. D not found negligent, he used reasonable care to control seizures.
      Rationale: Strict liability for manufacturers. Mfts. 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 SL on driver without proper 
     terms would cause chaos, let legislature do it if they wish.
     Policy: Court wants to protect drivers from strict liability box and it does not want to make grand-sweeping 
     changes-- would open up everything, no line. - the legislature can draw lines. 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.
     A.  Holmes’ view: The public profits from acting. 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. Actor should pay if he intended. If he
     had no choice, then it doe not make sense to hold him liable. Solution is if not 4-seeable, then victim suffers.  
     Actors would do less acting otherwise. Private insurance is O.K., but we do not need more beaurocracy and 
     inefficiency.
     B.  Posner’s View: Damages against D area way of measuring the costs of accidents. 2.) When D is found 
     negl., there are overtones of moral disapproval, 3.) when cost of preventing accident is greater than cost of 
     accident, there is occasion to condemn D for failure to take precautions. 

III Menu of Arguments:
      1.) precedent - used to guide judges 
      2.) deterrence - structuring legal rules to provide incentives to prevent accidents.
      3.) overdetterance- too many incentive and too much structuring.
      4.) compensation - accidents are bad, they lead to social dislocation, if we had a system that provided
            for social compensation,, people would be better off.
      5.) Administration of justice - courts do not like to implement rules that are hard to follow, like emotional I
           injury.
      6.) Moral arguments: she who caused the harm should pay; innocent victim should pay nothing.
      7.) distribution: tort law should be used to redistribute losses from those that are worse off to those who 
            are better off.
      8.) Spreading loss: Policy for products liability; entity has ability to raise prices and spread loss to  
           consumers.

IV.  Bierman v. Consolidated Edison Co. of NY & City of NY  (Supp, 300) 
       Water main ruptured in front of P’s house and flooded her basement.
       Rule: Lower court found that P could recover damages w/o proof of negligence or fault.
       But on appeal: Lower court’s decision to ignore precedent was mistaken- importance of stability, 
       predictability in law, in addition of rule of strict liability must be decided by legislature. Finds NYC 
       negligent using res ipsa - wants to accomplish same goals. 
       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.
 
I.  PFC. 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 D
        was under a legal duty to avoid causing harm to P 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).   
         1. Duty - D had a duty to avoid harm to P
         2. Breach - omission by D’s act
         3. Cause
               a.) cause in fact: “but for” or actual causation
               b.) proximate cause
         4. Harm

II. Establishing Principle
      Fault is failure to establish ordinary care.
  
 A. Brown v. Kendall 1850,  (CB, 26)
      P and D’s dogs are fighting.  Attempting to separate them, D struck P (standing behind him) in eye with 
      stick. Court holds burden of proof is on P to show injury was caused by P’s lack or reasonable care, 
      or ordinary care. 
      Importance: indicates a change to finding liability on part of D only if D is legally at fault.
      P has burden of proving D’s negligence, or fault. Gregory in Trespass to Negligence to Absolute Liability
      speculates one of Shaw’s (judge in case) motives was desire to make risk-creating enterprises less hazardous
      to investors and entrepreneurs. Holmesian argument.
 
 B. Losee v. Buchanan 1873, (CB, 437) 
      Normally functioning and maintained boiler explodes an flies through air, destroys buildings on neighbor’s 
      property.  Court uses social arguments to find for D. 
      Rationale: 1.) Public good is served by machinery; living in industrial society involves risks; you give up 
      some rights, but are compensated by the general benefit to the public good. D is not liable w/o fault.
      Gregory: Too much regulation stifles industry.
    
III. Standard of Care
 
 A. Adams v. Bullock 1919, (CB, 31)  foreseeability of harm vs. ability to prevent injury
      Boy burned b/c stick he was swinging hit trolley wire from bridge; ordinarily no person could reach     
      Rationale(Cardozo): D did not breach duty of reasonable care b/c it 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.
      
 B. Braun v. Buffalo (CB, 32)   burden very low, foreseeability high: d is liable
     Electric wires Strung over vacant city lot with inadequate insulation. 15 yr. later,
     building built to height of wires and carpenter is electrocuted. D is liable b/c 1.) burden of insulating wires 
     was not great and  2.) development was foreseeable.

 C. Green v. Sibley, Lindsay, & Curr Co.  (CB, 33)  ordinary activity, no foreseeability, no recovery
      P sees D’s employees fixing cash register.  P turns to get change from sale. Employee kneels down, P turns 
      right and trips over his foot.  D is not liable.
      Rule: ordinary care does not require employee to warn P.
      Cardozo: He believes that informing the shopper of movement would be extraordinary.
      
Reasonable Persons

I. Introduction
 the standard for unreasonable conduct is a hypothetical person; imaginary person

   A. 3 F. Harber, F. James, Jr. and O. Gray,  The Law of Torts, pp. 389-90 (2ed. 1986) (CB, 40)
        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.
   B. California Jury Instruction  Model (BAJI 8th Ed. 1994, 3.10) (CB, 34). 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.
   C. HOLMES, The Common Law, (1881) (CB 6-7) 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. He reasons that it is impossible to 
        measure persons by an objective measure because it is impossible to measure 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.   
   D. Turner v. Caldwell (CB, 44) (Ct, 1980)  (d, motorist “suddenly stricken by mental illness” which rendered
        her unable to control vehicle)  Court held insane person liable for acts of negligence. POLICY: where two
        people are injured , even if culpable one mentally ill, must compensate faultless person.

II. Cases of Exceptions:  Restatement (2nd) Torts  298 “actor must utilize with reasonable attention and
      caution as a reasonable man, but also those superior qualities and facilities which he himself has.”
    
   A. Intellect: Vaughan v. Menlove (CB, 43) (1837) - D piled hay in a way that created fire hazard.
        Rationale: Court held that standard is not whether person acted to best of their ability, but rather how 
        reasonable person would act.
   B. Prior stroke: Roberts v. Ramsbottom  (CB, 43-44)  (1979) - D had a stroke, but drove car, although 
        consciousness impaired was insufficient possession of faculties) Court held D liable as nothing short of 
        total loss of consciousness exculpates D from liability.
   C. “Insanity”: No, if foreseeable: Bruening v. American Family Insurance: D saw white light and thought 
        God took control of care and she would fly over approaching truck. Court rejected claim of insanity since 
        she has had prior hallucinations which should have forewarned her of such events.
   D. Professional (expertise):  Restatement 298 “The actor must utilize . . . also those superior qualities and 
        facilities which he himself has.”  Higher standard for professionals.  Exceptions Fredericks v. Castora 
        (CB, 44)  (1976) D, professional truck driver involved in accident. Court refused to hold D to a higher 
        standard as too many people drive, too hard to hold different standards as to their respective experience.
   E. Children: Kids held to be responsible kid standard, unless adult activity. In Mastland v. Evans (C/B< 46-
       47)  (1993) Court identified the role for jury in judging children should be what is capacity of particular 
       child.  Elllis v. D’Angelo (CB,) 47) (1953) - Court stated that children under four have not developed
       mental capacity for foreseeing possibilities of their conduct.  Price v. Kitsap Transit (CB, 47) (1994) -
       Children under 6 cannot be held negligent as would force relatives to prove child’s stupidity.  Dellwo v.
       Pearson (CB, 49-50)  12yr. old boat driver in accident. Court held that since adult activity, kid is liable
       as an adult.  Gross v. Allen  (CB, 48)  Skiing was activity for persons of all ages and did not qualify as 
       which minors should be held to adult standard.  (1) Children are traditionally held to standard of conduct
       reasonable for persons of their actual age, intelligence, and experience;  (2) recently children have been held 
       to objective standard when engaged in adult activities; and (3) some children too young to be capable of 
       negligence.
   F. Emergency Doctrine:  Yes, subjective modification.  Rivera v. NYC Transit Authority (CB, 46)  P fell in 
       front of a subway, conductor failed to stop train. Court held that D should be held to reasonable person 
       in emergency context standard.  Cordas v. Peerless Transp. (Supp, 303) a taxicab driver was held at 
       gun point jumps from moving cab which hits pedestrian and child. Court held that act or omission done or
       neglected under the influence of pressing danger was done or neglected involuntarily.  Laidlaw v. Sage 
       (Supp, 305) Reasoning: duties and responsibilities of a person confronted with such a danger are different
       and unlike those which follow his actions in performing the ordinary duties of life under the other 
       conditions is a well established principle of law. Rule: the law presumes that n act or omission one or 
       neglected under the influence of pressing danger was done or neglected involuntarily. Kolanka v. Erie 
       Railroad (Supp, 305) Conductor does not stop train fully and injures person as didn’t want to injure many 
       riders of the train.  Bot held to exercise mature judgment in emergencies even though had time for 
       deliberate action.
  G. Women: (not yet) Stewart v. Powers (Supp, 311a-b)  12 yr. old girl crossing RR trx is injured. Court did not
       like language meant to lower standard in jury instruction of “person like herself”  (Finley- reasonable 
      person so situated analysis Tucker v. Henniker (Supp, 311b)  Young girl driving carriage in accident. 
      Court applied reasonable man standard.  O’Brien v. Eli Lilly (Supp, 313)  (1989)  Woman failed to
      investigate cause of her diagnosis of cancer later determined to be DES.  P failed to act as a reasonable 
      person and do diligence to determine cause of cancer.  Court ignored emotional reaction to disclosure,
      typically “female” reaction.  Finley (Supp, 312)  Reasonable man standard can be unfair as refers to middle 
      class white man, should take into account what reasonable female girl would do in that situation. Holmes
      argues that we all give up something in order to have easy standards to apply, besides what is to 
      prevent from taking those things into account?

III. Prosser - The Reasonable Man
    
    A. Jury instructions on determining RM
         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 RM required to know?
          1. unless attention reasonably distracted, must give surrounding necessary attention & uses senses to 
              determine what is reasonably apparent.
          2. general 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. superior knowledge - law demands conduct consistent with abilities.

COST BENEFIT ANALYSIS: another approach to determine “reasonable care”

I    Introduction: The purpose of a cost benefit analysis is to asses legal decision makers to find this “abstract” 
     person.  RP  = B< PL            Reasonable person: When burden is less than Probability of accident 
     occurring times amount of Loss which may occur, then there is liability.

 A. U.S. v. Carroll Towing (CB, 35-37) 
      Harbormaster (D) on tug boat negligently secures barge that later comes loose, smashes into (P) barge, 
      causes it to sink and lose cargo. Damages were reduced since P’s bargee was absent from the barge.
      Apply Learned Hand’s formula: if B(taking precautions to prevent accident) is lower than P ( probability of
      accident) times L(amount of loss due to accident) then P held contributory negligent. Crowded harbor, and
      the fact that P’s bargee was absent increased Probability to the point where B<PL, so barge owner P was
      negligent.  Custom was also considered.

B.  Chicago, Burlington, &Quincy RR Co. v. Krayenbuhl (CB, 37) (1947) 
      Child was hurt while playing on unlocked railroad turntable. D’s held liable b/c burden of preventing the 
      accident is small compared to the risk of leaving the turntable unlocked.  Rule: If danger is small compared
      when weighed against benefits resulting from use of machinery, then use up until B>PL.
      Posner: cold economic theory: looks at economic std. of care, business, wants to limit liability.
      Law and Eco. movement - Hand’s formula: If cost of safety measures or curtailment - whichever lower -
      exceeds benefit in accident avoidance gained by incurring that loss, society is better off, economically, to 
      forgo accident prevention. Burden on society overall, prevents growth, stifles economy etc.  Rational profit
      maximizing enterprise would rather have tort judgments than incur larger cost of preventing accidents.

C.  Bolton v. Stone (CB, 39) - Modification of C/B analysis.
      P 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.  Chance of accident so small, and cost of moving the field - or not playing 
      cricket - so high that D need not have safeguarded against the possibility of someone being hit. Modified 
      Hand formula b/c adds the formula of social value of activity.

D.   McCarthy v. Pheasant Run Inc. (CB, 38) 
       P assaulted by intruder who gained entry through a sliding door which had not been locked. Even though 
       cost would have been small, jury found that hotel, which exercised due care. Posner coomented that hard 
       to apply B<PL as putting price on injuries may frustrate efforts to measure expected accident costs. He also
       realized that innkeepers are more knowledgeable about some dangers and in better position to guard against
       themselves.

E.   Grimshaw v. Ford Motor Co. -Rejection of C/B analysis
      P severely injured when his 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 cost for savings of risk to drivers.  If the court had accepted the govt. 
      estimation of the value of a human life then Ford’s actions would have fit into Hand formula, finding them 
      not liable.  Jury , however, was outraged at tradeoff made with human lives and 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. 

F.   Goals of Tort Law
       A. Reduce the # and severity of accidents by forbidding certain acts(regulation) or by making activities 
            expensive (Calabresi)
       B. Reduce societal costs of accidents costs.
            cost spreading (taxes, insurance pools, etc.) 
       C. Reduce the costs of avoiding accidents. Use C/B analysis to determine if cost is too high.

G.   Alternative Means to Achieving Goals:
        A. Calabresi - (Pro) Market Deterrence (preventative scheme):
            1. If the prices reflect accident costs (i.e. if cigarettes were to increase either the costs of health care 
                related to cancer) people will likely shift to a safer activity. This will reduce accident costs b/c a safer
                activity will to some degree have been substituted for a dangerous one. By creating an Incentive
                structure, the individual will be more careful in his/her own activities and choose the safer activity. 
                The primary mission is to make a safer society.
            2. Market deterrence creates incentives to engage in safer activity and encourages people to make the 
                activities safer.
       
        B. Gregory - Socialization/Cost Spreading
            1. Idea is that companies are in the best position to spread cost of accidents. Companies should be held
            liable for accidents, and would then pass the burden onto the consuming public-achieving the desired 
            socialization of loss bearing the whole community.

        C. In Athens, where you pay for insurance, you pick train instead of car, since market approach is used,
             encouraging you to engage in safer activities. But in Sparta, where insurance is paid already, you drive 
             your car, since risky behavior is not deterred.

        D. Allocation v. Distribution -
             1.) allocation - are the resources being channeled to appropriate uses?
              Balance between investment in risky socially valuable activities investment in preventing accidents
              (efficiency)
             2.) distribution - who should bear costs of accidents and prevention of? (Equity)
     
        E.  C/B Analysis Regime: where D negligent only it would have been cheaper to prevent accident
              1.) if cost of preventing accident is grater then cost of accident, D does not have to pay unless
                   strictly liable, since c/b does not deal with S.L., but only neg. analysis. Allocation is the same in
                   both: Injurer will not allocate money towards preventative measures, since there is no incentive to 
                   avoid accidents (Grimshaw). 
              2.) if cost of precaution is less than the cost of the accident, D does have to apply under negligence as 
                   well as strict liability (same distribution).  Allocation is same in both neg. or S.L., injurer (D) will
                   allocate money to preventative measures since he has incentive to do so.

CUSTOMS - another approach to determining what is “reasonable care”
  
Custom is some evidence for negligence, but is not conclusive. It is one factor in determining reasonable conduct- but custom must also be reasonable to jury.

    Texas & Pacific Ry. Co. v. Behymer (CB, 59-60) 
     Holmes “What usually is done may be evidence of what ought to be done, but what ought to be done is fixed 
     by a standard of reasonable prudence whether it is usually complied with or not.”
 
I.  Plaintiff favorable cases: 

   A. Morris, Custom and Negligence (CB, 59)  If D follows industry standard, be wary of P’s alternatives;
        little use can be evidence for D’s unreasonableness, if custom found unreasonable, might have too much 
        negative economic impact. 
        - Custom  alerts the courts to 3 main points 1.) if an industry adheres to a single way - the court may be 
       wary of P’s assertion that there are safer alternatives, puts burden on P.  2.) The fact that alternative was 
       was not widely used can be shown as evidence that it was not unreasonable for D to be unaware of 
       possibility.  3.) Custom, which, if found unreasonable, would involve high costs to change may warn the 
       court of the social impact of a court decision that determines the custom unreasonable.
    
   B. Trimarco v. Klein (CB, 58) 
        D, a LL, did not use industry standard shower stall glass and P was injured. Custom is evidence of 
        unreasonable care - it reflects community standards.  Shows wisdom, but is not conclusive, must look to all
        the circumstances. Dft. had no forewarning of danger, but movement t impose higher standard of care when 
        D knows of danger. 
  C.  Levine v. Russell Blaine (CB, 59)
        Plaintiff cut hand on rope when operating dumbwaiter. D was found liable b/c he failed to use industry 
        standard of smooth ropes. Evidence of custom was admissible.

  D.  T.J. Hooper (CB, 60) 
        Tug Flying Atlantic coast sank in storm causing a loss of barges and cargoes towing as had no radio to
        forewarn of storm.  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
  
  E.   POUND, Administrative Application of Legal Standards (CB, 59) 
        proof of a common practice aids in “formulating the general expectation of society as to how individuals 
        will act in course of their undertakings, and thus to guide in the common sense or expert intuition of a jury
        or commission when called on to judge conduct under particular circumstances.”

II.  Defendant Favorable Cases

  A. Morris, Custom and Negligence:  If an industry adheres to a single way, the court may be wary of P’s
       assertion that there are safer alternatives, and will pout burden on P to prove.

  B.  Garthe v. Ruppert (CB, 59) 
        P slipped on  a wet brewery floor. Court held that where only one brewery used process that kept floors 
        dry, no custom was made.
 
  C.  Bennet v. Long Is. R.R. Co. (CB, 59)
        Custom was not to lock switch on temporary railroad sliding during construction) Rule: when proof of 
        customary practice s coupled with a showing that it was ignored and that this departure was a proximate
        cause of the accident, it may serve to establish liability.

  D.   Lavelle v. Vermont Motor Inns (CB, 61) 
         P fell in room during power outage. Court found for D where shown that no other hotel had emergency 
         lighting in their rooms.

Note: In all of the above cases, P would have to argue either that the accepted custom was unreasonable or that the given particular facts of the case , the custom did not apply.

MALPRACTICE

I.    Introduction

  A. General Formulation - Robbins Rule (CB, 100): Doctors are held to the standard of care of physicians in 
       same or similar circumstances.  D must affirmatively prove “the relevant recognized standard of medical 
       care exercised by other physicians and that D departed from that standard. Expert witnesses are used in 
       most cases to present evidence of the accepted standard. Higher standard of care for doctors, but because of 
       specialized knowledge of physicians, courts allow medical communities to establish own standard of care. 
       Doctors judged by standards in their medical community and practice. So, P’s expert must show familiarity 
       with doctor’s community or a similar community.

  B.  Frazier v. Hurd (CB, 101) 
        Expert witness qualifications: (1) familiarity with standard of care for another specialty (similar), (2) more
        qualified experts who trained differently than D unqualified, and (3) if there are two schools of thought as to
        standard there is a complete defense.

  C.  Sinclair v. Block (CB, 101) 
        P claimed malpractice due to D’s uses of forceps in delivering baby.  The court noted that “two schools of 
        thought” doctrine provides a complete defense to a malpractice claim when the prescribed medical 
        treatment or procedure has been approved by one group of medical experts even though an alternative 
        group recommends another approach.

  D.  Whining v. Thomas (CB, 102)
        Malpractice after knee surgery. P called an expert witness not from the same state as the malpractice suit 
        was based. The locality rule requires that the local standard of care applies in malpractice suit; issue was 
        whether expert witness was qualified to testify to VA’s standard of care. Because the standards for 
        orthopedic surgery were the same in VA as elsewhere, he was allowed to testify. Rationale of using 
        outside experts is that local doctors often reluctant to testify against each other.

  E.   Leonard v. Watsinsville community Hospital (CB, 102-103)
         Instrument was left inside patient.  Court stated that even if D were trying to assert that there was a custom
         in the relevant community, that would not control the case as no special skill, just common knowledge,
         required in counting instruments.

  F.   DiFranco v. Klein  (CB, 98)
        Court held that trial judge confused jury by stating that D 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”
 
II. Expert Probability

  A. Jones v. O’Young (CB, 98)
       P’s husband hurt in auto accident and leg was amputated due to infection that developed; sued 2 gen. 
       surgeons; plastic surgeon and ortho surgeon but used intern. med. expert).  Cost of getting three specialized
       too prohibitive and P under no duty to. 
  
  B. Notes - Purtill v. Hess (CB, 99) 
       Qualifications for experts are (1) must be licensed member of the school of medicine which testifying on.
       (2) must be familiar with that community stds. or other communities similar to D’s (3) court has discretion 
       of finding competency.
       - Geography - limit standard of care to prevent small town Mds from being held to high-tech Md sdts.
       - School - modern education and postgraduate training has been nationalized so information flows freely
          among institutions throughout country.
       - For Hire - professional experts?
       - Common knowledge of what testifying about.

III. Consent

  A. Korman v. Miller (CB, 108) 
        Breast reduction in injury.  Surgery was not necessarily elective surgery so MD had “expanded” duty to 
        disclose risks when patients express concern.
        - look at Pederson case, supports shift to modern rule.
        - scope of disclosure says that MD has to tell everything a reasonable person would want to know.
        - Reasonable Patient rule has 2 caveats: 1.) Privilege is not to disclose information.  2.) Tell material info.,
          which includes a.) exist and likelihood of risk; b.) probability of risk, advantages to treatment.

        - Subjectivity, Risk Level, Recognized Therapy, Risk of Decline, Competence, Written 

IV.  News Clippings
     A. Malpractice Primer
     B. Crushed by My Own Reform

         -1st article shows that only a handful of doctors are sued for malpractice, and that there are doctors that are 
          recurrently sued.
         - 2nd article exposes the perception of malpractice: litigation has led to a host of reform - there are now        
         exploding health care costs.
         - social policy reasons to lower level of costs
         - tort law is a system that implements some law of vigilance
         - 2 ways a doctor can be policed: do it themselves, or lawyers could do it = deterrence

NEGLIGENCE PER SE

I.   Introduction

   1. Prima Facie Case (283 of the Second Restatement): courts can invoke NPS if:
          1.) D violated a statute or public regulation.
          2.) Purpose of the statute is to prevent accident which occurred.
          3.) P is a member of a protected class.
          4.) Injury was the type the statute was designed to protect.
          5.) D’s violation is unexcused.

        Evidence:
        1. Majority: NPS is conclusive proof of the element of negligence.
        2. California: NSP creates Presumption of negligence, D must rebut.
        3. Some courts: NSP provides PFC. evidence on negligence, then jury decides whether there is negligence.
        4. Some courts:  NSP provides some evidence of negligence.

  A. Martin v. Herzog (CB, 63)   Majority Rule case (in NY)      NPS = negligence
       Buggy collision where buggy did not have lights required by statute. Court found D liable as violation of
       statute unexcused and statute designed to prevent that type of accident.      
      
   B. Clinkscales v. Carver (CB, 65)  California   NPS not determinative
        D ran a stop sign and hit P. Statute not properly published, so no criminal coa. Decision as to what civil 
        remedy should be present still rests with the court, to be determined by a reasonable person standard. 
        Court says that this is to be drawn in part by the standard established by the legislature, i.e., the statute.        
II.  NEXUS is required between statute and injury.

   A. Platz v. City of Cohoes (CB, 70) 
        Local ordinance not to ride on Sunday. P hurt by city construction while riding on Sunday, city tried to 
        defend on grounds that P was violating a statute.  Court held that there was no nexus between. statute and
        injury, because statute designed for public order, not safety.  Therefore, P could recover.

  B. DeHaen v. Rockwood Sprinkler Co. (CB, 70)
       Statute required protective barrier but as statute could be constructed to protect objects, as well as
       workers, from falling into the shaft, P was allowed to recover. Cardozo says that statute has been designed
       to protect against injury which occurred. P was killed at construction site when radiator fell through
       shaft.
       Darmento v. Pacific Molasses Co. (CB, 72)
       D, truck driver following P too close in violation of statute and P became so nervous that P lost
       control of the car, D was liable. Court held that while a rear-end collision is the ,ms obvious type of accident
       statute designed to prevent, other accidents that may also occur.
  
  C. Rushink v. Gestheimer (CB, 72) 
       D left keys in the ignition of car, P stole car and drove to his death. Statute that said that you cannot levae
       keys in the ignition of unattended car intended to deter heft and injury to others, not to protect the thief 
       from harm to themselves.

  D. Gorris v. Scott (CB, 73)
       D afiled to keep in pens as designated by Contagious Diseases Act, sheep were swept overboard.
       Lost sheep not recoverable as no nexus between losing sheep and statute to prevent spread of disease.

III. Justification for Violation

  A. Tedla v. Ellman (CB, 66)
       2 people walking down side of road, although statute required that they walk in middle, injured. Court
       held that P had justified reasons for not obeying statute (safety) and P were not contributory negligent for
       violating statute.
 
  B. Bassey v. Mistrough (CB, 68) 
       P’s car stopped on highway and electrical system dies, violated statue which required lights to be on. Car
       hit from behind by D. Court found that driver had excuse to violate statute.

  C. Casey v. Russell (CB, 69)
       Limitation- head on collision in which one car violated statute by not staying to right of middle and blowing 
       horns. Court held that while there may be exceptional circumstances (justifications for violating statue) 
       nevertheless reasonable conduct alone is sufficient for “special circumstances.”

  D. Bauman v. Crawford (CB, 69)
       Child violating statute held to modifies standard.  No NPS because reasonable kid would do same

  E. Brown v. Shyne (CB, 73) 
      Truck driver held to higher standard for driving vehicles in general?  Application of nexus: status (as 
      license holder) v. conduct (as driver).
      CPLR 4504(d) Overruled Brown by providing that in any action for personal injuries against a 
      person not authorized to practice medicine “the fact that such a person practiced medicine without
      being authorized shall be deemed as prima facie evidence for negligence.
      Sherman v. Robinson (CB, 73) 
      P sought to introduce D’s violation of a company operating or safety manual to show negligence. Court held
      that violation of a manual was not only not NPS, but it was not even admissible as evidence of negligence
      if manual’s requirement exceeded the standard of due care.

IV.  Conclusion

  A. Liscencing

  B. Custom v. Statute - Robinson v. DC (CB, 70)
       P hit be police van when crossed street outside of marked cross walk. General custom to do so, but it was
       against statute, and statute prevails over custom.
  C. Chart

RES   IPSA    LOQUITUR
    
- weakest way to prove lack of reasonable standard of care

I. General Concept:
    a. Accident would not have occurred in the ordinary course of events in the absence of D’s negligence.
    b. Accident was caused by an agency or instrumentality under the exclusive control of D
    c. Accident was not the result of P’s contributory fault. D has burden to go forward and introduce
    evidence to overthrow inference.

RIL as evidence: 
1.) RIL used by P as a device to meet burdens of production and persuasion within the PFC. of negligence.
2.) varying degrees of evidentiary significance given to RIL:
     a.) Majority rule-creates permissible inference of negligence, or establishes PFC., evidence then goes to jury
     b.) Calif. and some others- RIL creates rebuttable presumption of negligence. D gets to rebut.
     c.) weakest- RIL rarely succeeds, only use as last resort- often when P has no hard evidence but negligence is
     “obvious”

  A. Byrne v. Boadle (CB, 80)
       P hit by barrel out of D’s window. Barrel falling from window is enough to establish PFC. that D’s barrel
       company was negligent. Policy to allow P to bring suit when have no hard evidence but negligence is 
       obvious as D has better access to evidence.
  
  B. Connors v. University Associates in Obstetrics Gynecology, Inc. (CB, 80)
       Unconscious patient injured during surgery and loses function in her leg.  Jury instruction was RIL in 
       medical malpractice suit. REASONING: P has no choice since not able to show actual negligence he must
       be able to show negligence through inference.  POLICY: Prevent Drs. overusing anesthesia to prevent  any
       medical malpractice claims. 
 
  C. Bierman v. Consolidated Edison (Appeal) (Supp, 382b)
       Woman whose basement flooded b/c the city’s water main broke. Because water main was under City’s 
       control, there is an inference that it was their negligence that caused the accident. Absent proof from the 
       city otherwise, city is found liable.
II. Multiple D’s /Institutions

  A. Ybarra v. Spangard (CB, 91-96)
       P undergoes surgery for appendicitis, awoke with injury. Dues all who has part in performing operation.
       Could not know who specifically injured him with what instrumentality (2nd element of PFC.).  HELD: 
       Where P suffers unusual injuries while unconscious, all those who have any control over his body or the
       instrumentalities which might have caused the injuries may properly be called on to meet the inference of
       negligence by giving an explanation of their conduct. Policy: P can not possibly know who was at fault,
       burden should therefore fall on potential D’s. Employer liable for negligence of employees, supervisor 
       responsible for all under him/her.
       Note: Judson v. Giant Powder Co. (CB, 97): fireworks factory exploded killing all witnesses to negligence,
       so RIL can still apply.  DISTINCTIONS: 1. victim unconscious, 2. supervisory role of DR.  3.) P put self
       in hands of DR.

  B. Ybarra Limits

      1. Fireman’s Fund Amer. Ins. Co. v. Knobbe (CB, 98)
          Hotel insurance company sues 4 guests for fire damages, two couples in connecting room and all four 
          were smoking. No way to determine which couple was negligent. Court refused to extend Ybarra
          doctrine to this case. Note: possible reason for rejection is that there are no compelling policy issues here.

      2.  Barrett v. Emanuel Hsp. (CB, 99)
           P awoke with injury, but not sure if D did something wrong or just one unknown risk. Rejecting Ybarra
           RIL established only when P can establish a probability that a particular D’s conduct caused P’s injury.
           Special protections for unconscious patients can be achieved through respondent superior or
           strict liability.  Also modern discovery casts doubt on Ybarra approach (e.g., videotapes)

     3.   Fowler v. Seaton (CB, 88) 
            P, 4 yr. old went to nursery school on morning in good health but returned with bump on 
            forehead, concussion, and crossed eyes.  Majority: Enough evidence for RIL.   Dissent: No as P
            has obligation to “present such facts as were available to show that accident was more probably than not 
            the result of the alleged inadequate supervision by D.”
            Helton v. Forest Park Baptist Church (CB,88)
            Kid left a day care center, gets eye injury and day care workers do not know what happened. RIL does
            not apply where instrumentality is unknown or not in exclusive control of D. 

CAUSATION     (must have both cause in fact and proximate cause)

A. Cause in Fact or “But For” Causation

D’s negligent act or omission will be deemed a cause-in-fact of P’s injury if and only if the injury would not 
 have occurred but for D’s conduct.

I. Framing Issue:  “But for” framing causal/relationship example
    - New York Central R.R. Grimstad (Supp, 325)  
       Grimstad fell off boat and drowned. Wife sues, alleges negligence b/c no life buoys nearby. App. Ct.:
       direct cause of death = falling into water.  He would have died anyway b/c she wouldn’t have had time
       to reach life buoy if there was one. NO BUT FOR causation.

II. Basic  Proof  Issue
    
     1.) connection between D’s negligent conduct and P’s harm (e.g., physical/scientific) (D can rebut, saying
      that there was no legal cause/no proximate cause
     2.) But for test: P’s injury would not have occurred but for D’s action (actual cause)
     3.) Substantial factor test: exception to “But For” test in cases with simultaneous sufficient causes.
      (D’s conduct is a material and substantial factor).
     4.) Methods: eyewitness; expert; circumstantial evidence
     5.) P has burden of  proving causal relationship by preponderance of evidence (more likely than not)
     6.) P must eliminate all other explanations for accident.

B. Cases
 
  1. Mitchell v. Pearson Enterprises (CB, 300)
      Guest murdered in D’s hotel where no signs of forced entry or witnesses. P sues for negligence (inadequate 
      security), but ct. affirms SJ. for D b/c proof of causation was lacking - killer’s identity or method of entrance
      is pure speculation

  2. Wolf v. Kaufman (CB, 298)
      Man fell down unlit stairs and died. Witnesses heard thus, but did not see fall. Court held that w/o further
      proof it is conjecture for jury to draw conclusion that deceased fell down the stairs b/c of absence of light.
      Hinman v. Sobocienski (CB, 298) 
      Tenant found injured at foot of flight of stairs proved only that the flight was “unreasonably dangerous and 
      that she was found injured at its bottom, but no evidence of causation. NO WITNESSES NO PROOF that
      negligence caused injury.
  3. Wilson v. Circus Circus Hotels (CB, 299)
       P had food poisoning after eating at D’s hotel. P’s proof: expert testimony: 80% chance that P got it from
       D. Showing of almost exclusive ingestion at hotel and negation of other causes is sufficient

III. Complex (Type II) Proof Issues of Causal Uncertainty
      Type one: Syndell/Hymowitz : multi-manufacturers make a generic product (fungible) that causes P’s 
      injury. Market share approach as solution. 
      Type Two: identifying toxic agent which caused P’s harm: Allen problem

  B. Stubbs v. City of Rochester (CB, 283)   reasonably certain that D’s negligence caused P’s injury is req.
       P drank contaminated water and contracted disease. D provided water for 2 systems, drinking and fire-
       fighting which became intermingled and contaminated.  Court held that P produced reasonable certainty
       required to get pass MSJ to jury, absolute certainty was not needed. 
       
       Allen v. United States (Supp, 353-366)  substantial factor test
        P got leukemia due to D’s nuclear weapon testing fall out away from population centers.
        Court held that too many problems with identifying Ds negligent as cause of  leukemia
        (no records, various types of cancer, latency period, no threshold dose, etc.). After D is negligent, Court 
        shifts burden of proof for causation to D, when P meets criteria of: (1) P’s injury type known to be caused
        by D’s negligence, (2) reasonably probable that P’s injury caused by D’s negligence  and (3) P lived in area
        of testing at time of testing.
        Rule: D’s negligence is a cause in fact of P’s injuries if it can be shown that the exposure to nuclear
        fallout proves to be a substantial factor (i.e., dosage exceeds that which is received from other 
        sources.)  D engaged in specific risk creating conduct, P’s injuries consistent with kind of harm
        seen/expected when such risks are created, begins to exclude other causes than D’s. 

I. Loss of  Opportunity

   A. Falcon v. Memorial Hosp. (CB, 300)
        Woman died after giving birth from amniotic fluid embolism; experts testify that if received precautionary
        intravenous line would have reduced risk 37.5%.  MAJORITY: held that more probable than not that D 
        reduced P’s opportunity for living. Damages determined on percentage of lost opportunity. If greater than
        50%, P would have full recovery. Causation is tool for policy and can be broadened to accommodate
        factual situations.  Had D acted, fate would have determined P’s death. Failure to act was a loss of her 
        opportunity for living.

   B. Falcon dissent: Formalist view - minority. Less than 50% , no recovery. Lost opportunity theory lowers
        threshold of proof and will undermine the truth-seeking functions of system. Will be a payout scheme 
        based on %ages rather than a compensatory system.  Increase Cost of preventive medicine. Lost chance =
        a raffle ticket destroyed by D’s negligence.

   C. Fennell v. So. MD Hosp. Ctr. (CB, 296)  (minority) - Follows Falcon dissent
        If P showed that D’s negligence deprived decedent of  less than 51% chance of survival, no recovery. 
        Concerned w/fairness of a P with a 51% loss of opportunity recovering 49% of value of life v. a P with a 
        51 % loss of opportunity recovering 100% (isn’t it unfair for the P to win either way?)  --given such a 
        small difference between 49 and 51?  Throws out statistics: unreliable, confusing. Effect on cost on 
        medical services.

   D. Kramer v. Lewisville Memorial Hospital (CB, 309)
        Any claim must come under either survival statute or wrongful death statute and both require a showing 
        of causation.
         
II. Enhanced Risk

   A. Mauro v. Raymark (CB, 311)  Majority
        P can not collect for increased risk - must be reasonably certain that disease will occur. P was exposed to 
        asbestos, sued for increased risk of cancer, emotional distress of fear of getting cancer. Expert said he could
        not predict cancer, but high probability of  increased risk of cancer. Held: P can’t collect for enhanced
        risk -- there’s a chance the illness will not occur. P must prove disease is reasonably probable to 
        occur.  P is allowed to sue later if cancer develops.
   
  B.  Mauro (dissent) (minority)
        P’s enhanced risk should be considered an element of a present injury and be compensated now. Causation
        may be harder to prove later:  Less evidence, memory, witness. Policy implication : less compensation
       will result in less asbestos removal - undercuts deterrence effect.
       Petriello v. Kalman (CB, 318)
       (minority) D, obstetrician, performed negligent procedure on P who suffered some immediate injury and 
       potential future harm.  Court held that P could recover on present injuries, and also recover for 8-15% inc.
       risk of specific future injury, and emotional distress for risk of future harm as anxiety was reasonable.
       Rejects all or nothing approach of  Mauro.  
   
C. Marinari v. Asbestos Corp.  (CB, 319)
       Must wait until cancer develops (two-disease approach bars any recovery for enhanced risk until anticipated
       condition develops as (1) speculative nature of prediction of damages and (2) inequitable awards are more
       likely to result from future damages action.  RECOVER NOW FOR INJURY AND LATER FOR 
       FUTURE INJURY.
   
III. EMOTIONAL HARM

  A. Mauro - Courts allow enhanced risk damages when physical injuries are present.

  B. Potter v. Firestone Tire and Rubber Co. (CB, 320)
       P exposed to carcinogens over a prolonged period due to D’s dumping of toxic wastes into landfill near 
       plant site. P suffered from current condition, but faced “enhanced risk”  TEST: (1) threat of cancer; 
       relationship between cancer and toxin, (2) more likely than not person will contract cancer (50% threshold)
      and (3) serious fear of contracting disease.

IV. Medical Surveillance

  A. Theer v. Phillip Carey Co. (CB, 320)
       P’s husband exposed to asbestos and P sues on basis that exposed to shirts whne laudering and requests 
       compensation for fear and medical surveillance.  Courts’ test: (1) direct exposure and (2) resulting in injury;
       and (3) non-intervening cause.

  B. Hansen v. Mountain Fuel Supply Co. (CB,320)
       Can’t collect on medical surveillance unless can prove that medical surveillance is over and above what
       you would have done without exposure.
  
V. Expert

  - Frye v. U.S. (CB, 322) 
    Experts can testify as to (1) proving that causal relationship and (2) statistical probability of getting injury.
    Battle of experts.
    Daubert v. Merrell Dow Pharmaceuticals, Inc. (CB, 322)    a lower standard
    Concept of judicial gatekeeper. Trier of fact can look at testimony and look beyond scientific orthodoxy
    in making determination.  Court sent back and said must be medical opinion not just legal paper, but in 
    medical journals.

Multiple Defendants  “Type I Uncertainty”

I. Joint and Several

  A. Memo. A and B are in concert, but B injures C. C may seek recovery from A and B, A or B for one sum.
       P friendly.
       Joint and several: Traditionally, each joint tort feaser is jointly and severally liable for the entire damage 
       done (any single D could pay for the whole, although that D can also seek contribution to the other D’s.)
       Several: Currently, court systems are moving towards holding each D liable for his Proportioante share of
       the responsibility for damage to P. 
  B. Summers v. Tice (CB, 325)  shift from burden on D based on POLICY and JUSTICE
       Both D’s shot P while hunting. Both were Joint and SEVERALLY laible/negligent for shooting in a 
       populated area.  Court awarded judgment against both, and the burden of proof switches to D’s b/c
       1.) D’s negligence, 2.) D’s in a better position than P to prove who is responsible, 3.) unfairness of no relief 
       to P.  Traynor concurs. Substantial factor test prevents multiple negligent Ds from escaping consequences
      of their acts or omissions no longer “But For”, now was conduct “material element and substantial factor”
      in causing injury.

II. DES Cases

  A. Background - 
       DES is a synthetic form of estrogen, approved for limited usage, expended after FDA approval, given to 
       pregnant women even after 15 years after studies showed it was ineffective in preventing miscarriages;
       rare forms of vaginal cancer appeared in young women - tied to prenatal exposure to DES through mothers.
      FDA banned DES in 1971

  B. Hymowitz v. Eli Lily & Co. (CB, 329)
       Daughters of DES mothers sued manufacturers (Type one: fungible) A Des P may recover against a DES 
       manufacturer when identifying the manufacturer of the DES ingested is impossible.  Justice approach. 
       Used market share Theory using a national market : each D’s liability Proportioante to amount of DES
       manufactured. Liability is severally only, not inflated for a single D.  Dissent: to insure  P’s full
       recovery, make it  joint and severally.  Test requirements:  (1) producers acted in a parallel manner,
       (2) generic product, and (3) long latency period.

  C. Brown v. Superior Court  (Supp, 338)  J + S
       P’s injured in utero when their mothers ingested DES.  Court held D only severally liable (not J + S)
       Each day D pays damages in proportion to it market share, in order to achieve closest approximation
        as possible between D’s liability and its individual responsibility for injuries caused.

III. Other Contexts  ( requirements not met of one or all of: generic, target market, same composition, uses.)
                                 The DES approach has not been extended to these cases:

  A. Asbestos: Goldman (CB, 339-340)
        Market share liability does not apply  b/c lacking essential element of fungibility all of the products made
        pursuant to a single formula. There are several varieties of asbestos fibers and are used in different 
        quantities - even in the same class of product, creating various risk a of harm. 
            Wheeler v. Raybestos Manhattan (CB, 340/Supp, 349) 
             Court extended market share approach to manufacturers of brake pads using asbestos fibers as pads
             sufficiently fungible and asbestos content similar.

   B. Lead Paint: Santiago v. Sherwin Williams (CB, 340)
        Child exposed to several layers of lead paint in house manufactured by different Ds. Not sufficiently
       precise for Ma to impose market share liability on this group of paint companies - some were not making
       lead paint during part of this period and other sources of lead were present in air, food, water, and soil.

  C. Vaccination: Shackil (CB, 340)
        P could not identify producer of dose of dyptheria-typhoid-pertussis vaccine which caused injury. Court
        refused to extend market share liability to all manufacturers. If could identify manufacturers still unlikely
        woul;d have been compensated as allowing market share liability for producers of vital vaccines against
        public policy of ridding population of disease.

  D. Blood: Smith v. Cutter Biological, Inc. (CB, 341)
       P contracted HIV through blood coagulant used to treat hemophilia. Court held that if all D negligent
       in acquisition and production methods, it’s appropriate to develop new rules of causation so do not
       leave P without remedy. Adopted national market. Policy goal to prevent spread of HIV.
  
  E. Paint shop: Setlif v. E.I. DU Pont de Nemours & Co. (CB, 341)
       P harmed by VOCs while working in a paint shop. Court rejected market share as no allegation that 
       products alleged to have caused harm were fungible in harmful capacity.

  F. Guns

IV. Conclusion/Policy

  A. Rabin, Environmental Liability (CB, 341-345)
       Liability in cases involving toxic torts stands apart because (1) identification (traditionally harm easy to
       identify, today toxic torts breed disease causing time lag),  (2) boundaries (assessment of liability open-
       ended as injuries could be travel down road figuratively (time) and literally (geography), and (3) source
       (never too hard to find, but toxic harm often results from aggregate risks, many idependantly acting 
       enterprises). 
  
  B. Malone, Politics (CB, 326)
      Concepts of politics of causation are malleable. Judges manipulate wording to apply finding for public
      policy.  Causation is not fulfilled unless proximate cause and cause-in-fact is satisfied.

PROXIMATE CAUSE

I. Introduction - Concepts malleable and judges manipulate wording to apply to finding for public policy  
    concerns.
 
  A. Ventricelli v. Kinney System Rent A Car (CB, 358)
       P’s rental car was defective, trunk lid flew up while driving and P pulled over into parking space and hit
       car while trying to fix it. Lessor not held liable.  Intervening act was divorced and not foreseeable risk 
       associated with original negligence and injuries different than what trunk defect would have caused.

  B. Betancourt v, Manhattan Ford Lincoln Mercury, Inc. (CB, 359)
       P defective car forced to pull over to busy highway. Manufacturer held liable.

  C. Harpster v. Hetherington (CB, 359)
       P slipped on ice developed after D left house when hole in fence allowed dog to escape. Duty was not
       breached, as for “But For” extended too far. (i.e. but for A, B, and C)
 
  D. Berry v. Sugar Notch Borough (CB, 359)
       Driver of trolley speeds trolley cart to point where tree falls on tack. D’s speeding did not cause the train
       to crash, cause\ing P’s injuries.  Accident would have happened anyway, “But for” test failed.

II. Direct Consequences
  ---- In re Polemis (CB, 352)
         D negligently dropped plank into hold f P’s vessel which sparked and ignited petrol vapors destroying
         vessel. Although exact damage was not foreseeable, some damage was foreseeable, therefore, D liable 
         so if liable for some damages, liable for all. Rule: Responsible for all regardless of foreseeability.

III. Foreseeability

  A. Wagon Mound I (CB, 353)
       D spiled oil in harbor , P ship was doing repairs and spark hits oil causing fire. Overruled Polemis.  Does
       not serve justice that D is held liable for injury extent and tpe of which could not have been foreseen. But
       for causation established (oil on water is negligent), bit no proximate caussation as not foreseeable. 
       Reaonable Foreseeability Test: Would reasonable person have foreseen same?
  
  B. Wagon Mound II (CB, 358)
       P, another ship, destoyed in resulting fire. Court held that D might have foreseen fire. Findinfg is reconciled
       w/ Wagon Mound I because the P in ist case did not want to discuss foreseeability for fear of being found
      contributorily negligent. But, P in this case could npt ahve foreseen the fire. (P is not contrib. negl.)

  C. Palsgraf v. Long Island RR. Co. (CB, 366)
       D’s train conductor helped push rider onto train and pkg dislodged causing explosion which causes scales
       to fall on P. Cardozo syas that P was outside the scope of reasonable risk and was not owed a duty.
       Andrews (dissenting)  says that it was proximate causation. always owe duty to others, but how remote 
       is injury from negligence with “but fors”? What is menat by “Proximate” is tnat because of conveience,
       public policy, of a rough sense of justice, the law arbitarily declines to trace a series of events beyond a 
       certain point; this is not logic. It is practical politics. Coomon sense, justice, policy.

  D. Factors that determine Proximate Cause:
       1.) Somthing wiyhout which event would not ahev happened.
       2.) Natural and continous sequence between cause and effect.
       3.) Substantial factor in prodiucing effect.
       4.) Direct connection without interveing causes
       5.) Efffect of cause too attenuated.
       6.) Foreseeability
       7.) Result too remote in time and space from the cause

MORE PROXIMATE CAUSE

I. Scope of Risk: A negligent actor is legally responsible for the ahrm, and only the harm, that is:
                        1.) caused in fact by his/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.

II. Negligence Per Se (with a proximate cause twist)
  
  A. Larrimore v. American National Ins. Co. (Supp, 368)
       D, hotel owner supplied rat poison to P who placed near coffee burner causing explosion. P relied on 
       statute that made it a misdemeanor to place poison in unsafe place. D won. Statute addressed type of  risk
       but not kind that ocurred.  No nexus between the risk and harm.  D had no way of knowing about explosive
       nature of rat poison.

III. Recurring Contexts

  A. Rescue

   1. Wagner v. Int’l Railway Co. (Cb, 375)
       (general) P injured while trying to rescue cousinn who fell from train due to D’s negligence. Cardozo
       says that danger invites rescue: non-professional mergency recuer entitled to recover due to D’s negligence.
       Rescue Doctrine: Wrong that imperils life is a wrong to the imperiled victim and wrong to his rescuer. D
       may not have foreseen rescuer, but is accountable as if he had. (inconsistent with Palsgraf due to public
       policy.) 

   2. Moore v. Shah (Cb, 376)
       P donated kidney to father who neeeded due to D’s alleged malpractice. Court did not impose duty on D as 
       P ‘s action was deliberate and reflective. ( not spontaneous)

   3. Maltman v. Sauer  (CB, 430)
       Rescuer helicopter crashed on the way to rescue negligent motorist. Court held that professional rescuers 
       would not recover if injured by hazard closely associated with aprticular rescue operation. Injury not
       reasoanbly foreseeable created by D’ original negligence. (Professional)

 B. N.Y. Fire Rule: Ryan v. NY Central R. Co. (CB, 378)  (NY, 1866)
      D’s negligently mainatined engine ignited sparks which hit one building and fire spread to P’s buildimg.
      Court held that Fire’s spread was not necesarry or usual result of D’ snegligence, but is accidenatl and 
      varying circumstance. Policy purpose of insurance is to protect against loss one is exposed to as a member
      of society. To hold owner liable for his loss and neighbor’s loss would be destructive to civilized society.
      (There is liability insurance now, though)
      
 C. Conduct of 3rd Party - P vcan recover, despie intervening cause, if P suffers foreseeable harm from D’s negl. 

   1. general rule: Weirum v. RKO General, Inc. (CB, 164)
       D’s radio station’s contest encouraged negligent driving in which caused death of P.  D found negligent
       as  proximate cause.
  
   2. constitutional issues:  Olivia N. v. NBC (CB, 165)
       D’s progarm caused boys to re-enact rape seen on TV resulting in Ps’ injury. D judged on negligence 
       standard stressed 1st and 14th amendments overriding  negligence standard on appeal.

   3. Criminal conduct: Hines v. Garrett (CB, 364)
       Train improperky took woman past her stop. Conductor tld her to walk back through what he knew was a 
       bad neighberhood. She was raped. Held: intervening conduct did not insulate RR from liability.  
       Foreseeability was key.

D. Suicide

   - Fuller v. Preis (CB, 350)
      P kiled himself after being sverely injured in accident, wife being paralyzed by polio and mother contracting 
      cancer. Court increasingly willing to allow recovery where D’s negligence so injures person they committ
      suicide.  Court held that “irressistibel impulse” does not necesarilly mean “sudden impulse”.

IV.   Special Rules

  A. The EGGSHELL SULL RULE (Supp, 29)  D takes P as he/she finds him/her, but injures P way
        beyond foreseeability, D is liable for all harm.
   - Smith v. Leech Brain Co. (CB, 357)
     P’s lip burned when welding due to D’s inadequte provison of protection of safety shields; lip becomes 
     ulcerous then cancerous and P dies.  Court uphels WAGGONMOUND test.  Was accident leading to 
      injury foreseeable?  D was held liable for P’s death. What the victim suffers as a result of the foreseeable act
      depends on the characteristics and constitution of the victim. In this case the victim had become predisposed
      to cancer before working for D. 

 B. Kinsman Doctrine (CB, 378) :
      Kinsman’s crew omission let ice jams hit his boat, Ship A, which turned loose and hit Ship B, tearing B 
      loose, both ships travelled down the river and crashed into bridge and forming ice jam causing flooding.) 
      City negligent (Closed bridge). Dock owner negligent for loose mooring. Kinsman negligent.  EHHSHELL 
      SKULL applied. Liability will not be limited by unforeseeability of exact developments and harm when
      damages result from negligence with foreseeable consequences. COST SPREADING., lessen social
      dislocation.  Dissent- bas, now anyone with deep pockets will e\be brought in. RULE: Cost spreading,
      practical.
      
      Kinsman II (CB, 380) :
      Other ships business interrupted due to jam and use for damages , TOO REMOTE(upheld Andrews dissent
       in Palsgraf.)  How far back can you go?  KINSMAN DOCTRINE: Duty vs Proximate Cause - some results
       are too tenous in relation to foreseeability

DUTY

I. Introduction:  
   General Duty Rule: All people have a general duty to act reasonably towards each other. Duty to injured 
   depends on relationship between parties and status of injured. Recall Adams v. Bullock, wire over lot case.

II. Privity

  A. MacPherson v. Buick  (CB, 473)
       D, manufacturer, sold auto to dealer who sold to P, who was injured due to defective wheel. Cardozo : in
       absence of privity, P can sue D as injury was foreseeable. Historically in industrial age, we want to insure
       that manufacturers of mass-produced goods do not act negligently toward unruly public.  Policy: loss
       spreading to person who can best afford to pay for social dislocation.  Manufacturers negligent and strictly 
       liable. 

  B. Thomas v. Winchester (CB, 474)
       D, manufacturer, mislabeled poison sold to druggist who resold and P injured.
       D was held liable as put human life in imminent danger.

  C. Loop v. Litchfield (CB, 474)
       D, manufactured saw with defect and sold it cheaply to P, lasted 5 yrs. then broke. Court held not laible
       as P assumed risk by buying cheaper product and no imminent danger as lasted give yrs.
  
  D. Losee v. Clute (CB, 474)
       D, manufactured defective steamboliler and  sold it. Buyer tested boiler, but defect caused P’s injury. D 
       not liable as risk of injury too remote and D knew test not final test.

  E. Devlin v. Smith (CB, 474)
       D, contractor, improperly built scaffold for painter whose servants injured D as owed duty to
       painter’s servants, even absent a direct contract, to build scaffold with care.

  F. Statler v. George A.Ray MFG Co. (CB, 474)
      Coffee urn manufactured by D installed at restaurant, heats and explodes injuring P.  D was laible b/c
      urn’s character inherently dangerous when applied for purpose designed for, would be great danger to may
      people if not carefully and properly constructed.
   
  RULE:
  1.) nature of things reasonable certain to put life in danger.
  2.) Knowledge that thing will be used by person other than purchaser /0 new tests, places duty on Manu. to 
       make it carefully.
   AS APPLIED BY CARDOZO (eliminates privity requirement)  
   1.) Unless wheels sound and strong, injury was almost certain
   2.) Knew care would be used by persons other than buyer.
   POLICY: Consumer protection through keeping Manu. accountable.

III Rescue

 A. General: Yania v. Bigan (Supp, 380)
      D taunts P to jump into 18 Ft. trench with 10 ft. water and P drowns. D is not liable as P’s act sole cause
      of accident as of own free will. D is not under obligation to rescue him legally, only morally.

B.  Medical

  1. Hurley v. Eddingfield (Supp, 372)
      D had previously been P’s family practitioner and refused to make house call on desperately ill P. D is 
      under no obligation to attend to P unless currently “employed” by him.  (no longer good law)
  
 2. Childs v. Weis (Supp, 373)
     Pregnant P rejected at hospital by RN who says ER MD wants P to call own MD; baby dies.
     No duty on part of ER MD to treat patient. Existence of duty must flow from relationship of patient
     and physician.

3.  Emergency Medical Treatment and Active Labor Act makes it illegal to make an inappropriate patient
     transfer. Only applies with Medicare funding.

C. Exception/Relationship

 1. Depue v. Flateau (Supp, 378)
     P goes on to farm to make business deal, requets to stay overnight, denied but stays for dinner. P faints, but
     revives and D puts him in carriage and sends him home.  The court established duty because D recognized 
     P’s inability to control horses and went out of the way to actively endanger him. Duty based on human and
    moral concerns. Knowledge gives rise to duty of reasonable care. (Business)

2. Harper v. Herman (CB, 116)
    D, driver of a private boat on a lake, did not warn guest, P, that water was too shallow for diving.
    D was not liable as D does not have custody of P under circumstances where P deprived of normal
   opportunities to protect himself.  (Invitee with more knowledge)
 
 3. Farwell v. Keaton (CB, 125)
     D was out drinking with P. Both were injured in a fight, P fell asleep and D left him in a car, P later died.
     D was liable cause had a special relationship with P by engaging in social adventure so had duty to assist   
     him. Test: (1) assistance factor/started to help, (2) relationship exists for social reason
    - implied obligation to help.  DISSENT: Court raising moral duty to legal duty. (SOCIAL)

 D. VT Statute: It is illegal not to assist people in need as long as you can do it without endangering yourself
       or interfering with important duties to others.

IV. Non-negligent
  
  A. Injury
  
     ---Maldonado v. Southern Pacific Transp. Co. (CB, 121)
          P, attempting to board D’s train which jerked/bumped and fell off severing arm. D was liable as if D’s
          negligence causes injury, D under duty to exercise reasonable care to prevent further harm.

  B. Risk

     - Simmonsen v. Thorin (CB, 121)
        D, motorist, hit utility pole in street and drove on. P then hit utility pole. D was liable as had affirmative
        duty to use due care to remove the hazard or to warn others of it even though not liable for creating hazard.
    
     - Menu v. Minor (CB, 121)
        Drive lost control of the car, hit median and came to rest, disabled, blocking lane of interstate highway.
        D, taxicab, picked up driver and later P crashed into disabled car.  D had no affirmative duty to stay at 
        scene, warn other drivers, remove car or call police. D had not voluntarily assumed a duty to P by acting 
        affirmatively to induce them to rely on him, nor had he created a peril or changed nature of existing risk
        to them.
     - Tresemer v. Barke (CB, 122)
        P injured from dalkon shield  D implanted. P never consulted D. The year after public info. released on
        danger and P suffered injury from delay.  D had a duty to warn P of newly-discovered dangers.

IV. Conclusion: H.R. Moch Co. v. Rensselaer Water Co. (CB, 131)
      D, water works company, supplied water to City, inadequately supplied water to fire hydrants, blg caught 
      fire and spread to P’s warehouse.  Cardozo: dismissed complaint as no common law tort action available
      to users of water supplied to city. Did D’s omission launch a force of harm or stop where inaction as refusal
      to become instrument of good. Mere negligent omission unaccompanied by malice or other aggravating
      elements. Held: D’s denial to supply water at most is denial of benefit. There was no relationship between
      supplier and users.
GOVERNMENT/DUTY

I.  Tort and State
  
  A. Police

  1. Riss v. City of NY (CB, 198)
      GENERAL RULE: 
      P who repeatedly requested that police protect her from ex-boyfriend injured by boy-friends hired thug.
      D was not laible as amount of protection can offer citizens is limited by police resources. Absent legislative
      action telling city how to allocate resources, unfair to extend tort liability as city might go broke
      Dissent: Police only need to act as a reasonable person would, had duty to investigate alleged threat.
      Rule: The government  can be held liable for private type actions, but no govt. action here.
      Gen Rule: Resources limited so no duty even if warned.

  2. Shuster v, City of N.Y (CB, 203) - exception
      P provided info to D to help catch FBI most wanted criminal and was killed after life was threatened.
      D was liable as made public use of private citizen D had special relationship duty to protect.
 
  3. Sorichetti v. City of NY (CB, 203) - exception
      P made repeated requests of D to get child back from visiting father who P has history of protective orders
      against, no response and child was badly mutilated by father. D was liable as had assumed duty when 
      assured that police action would be taken.

   4. Florence v. Goldgerg (CB, 206) - exception
       P knew that crossing guard or police at intersection so let child walk alone to school. Child was injured 
       when police did not fill in absent for crossing guard. D was liable as assumed duty and P relied on same.
   
  5. Cuffy v. City of New York (CB, 204) Cuffy test
      Ps requested police protection from violent neighbors, police promised to come that morning, didn’t
      and Ps injured by neighbors in the evening. D is not liable to Ps as no longer relying on police assistance
      in evening and not liable to Ps son as no special relationship.  CUFFY TEST : (1) assumed duty, (2) 
      possibility, (3) direct contact (b/w) police and citizen complaining, and (4) reliance on protection

  6. Davidson v. City of  Westminster (CB, 203)
      D had Laundromat under surveillance, watched suspect enter Laundromat where P was and waited to catch
      suspect in criminal act, P stabbed. D not liable as had no special relationship with woman to protect her. 
      Applied RISS 

  7. Statutory exceptions such as stalking laws impose duty on police.

B. Public Transportation 
 
  1. Weiner v. Metropolitan Transp. Auth. (CB, 204)
      P was assaulted by third party on D’s premises. D not liable as had no duty to protect against crime. 
      CONTRASTED with common carrier rule where they have heightened duty. POLICY: Allocation of 
      resources and legislative discretion.  FOLLOWED RISS
      Crossland v. New YORK Transit Auth.  (CB, 205)
      D’s employee witnesses attack on P and failed to get assistance which involved no personal risk.
      D liable as had special relationship after transit authority employee watched crime and could have acted
      but didn’t.  DISTINGUISHED WEINER.
      Clinger v. New York Transit Auth.  (CB, 205)
      P raped behind construction materials in Ds subway pedestrian tunnel.  D not liable as failure to close tunnel
      of police same was overwhelmingly governmental action.

  2. Lopez v. Southern California Rapid Transit Auth. (CB, 205)
      D’s bus driver failed to assist Ps when fight broke on bus. D liable as had heightened duty to insure safety
      of passengers. FAILED to distinguish between public common carriers and private ones. POLICY: Swept
      aside allocation considerations since precaution can be cheap. Now have transit police.

C.  911 Call

  1. De Long v. County of Erie (CB, 205)
      P called 911 to report a burglar outside, assured police would be there right away, but injured.  D liable
      as talked to dispatcher herself and relied on assistance.
      GENERAL RULE TEST: (1) direct communication; and (2) reliance.
       - Merced v. City of New York (CB, 205)
          Witness called 911 to assist P.  D not liable as no special relationship, no duty as caller was not victim
          and could not have relied on police.
       - Kircher v. City of Jamestown (CB, 205)
          Witness saw P being abducted; gave info to police officer who promised to report it. D is not liable as no
          special relationship to victim as no direct communication, victim was not relying on police.

 D. Public School Context

  1. Hoyem v. Manhatten Beach City School District (CB, 206)
      P slipped away from school during day and run over by motorcyclist. D liable as had duty of care in 
      supervising P. DISSENT: Schools shouldn’t be armed in pursuit of truancy-proof buildings.
  
  2. Pratt v. Robinson (CB, 206)
      P run over by truck while crossing street after being dropped off at school bus stop. D is not liable as
      duty terminated when kid was left at designated bus stop.

  3. Mirand v. City of New York (CB, 207)
      Ps injured in fight with hostile gang in school building. D liable b/c breached adequate supervision even
      though evidence presented of security measures taken at school.

II. Federal Law

 A. Thurman v. City of Torrington (Supp, 388)
      P gave police notice many times, but was beaten in front of her friends’ home by estranged husband while
      police watched. P sued under 1983 and 14th amendment demanding equal protection of the laws. D liable
      as equal protection not limited to racial issues. Polive have affirmative duty to distribute protection under
      laws equally to everyone. POLICE 
      Estelle (mental hospital)
      Youngberg (jail)

B. DeShaney v. Winnebago County Dept. of Social Services (Supp, 395) 
    P ends up in coma  as a result of abusive father even though previous social services intervention.
    P sued under 14th Amendment demanding due process. D not liable as no affirmative right to government 
    services, due process is limitation on government activities not a guarantee. 
    DISSENT: State had began affirmative duty. Social Services.

PREMISES LIABILITY

I. Introduction -Memorandum
   Generally, Premises Liability cases in most states are governed by a set of ancient rules that originated under
   the British Common Law system. Most states still use them, however some (Calif, Rowland) have done away
   with them. England blew them off in 1959. 
       This means taht you end up arguing distinctions before you address the harm done.  However, you should 
   bring up issues liek realiance on landowner/occupier to make safe, act creates the peril--contributory 
   negligence, unreasonably dangerous anyway, regarless of the distinction between liscensee/invitee/trespassor.
        Under Premises liability a posessor may be a landowner and also a land occupier, ie. someoen renting an
   apartment. The renter, not the landlord would be held liable for an injury (unless in common areas)

 1. Trespassers:
    
  A. Possesors owe trespassers a duty to 1) avoid willfull or wanton or intrentional injuries 2) to avoid injuries
       from traps.
  
  B. A trap: an artificially created, inherently dangerous, deceptively innocent thing or condition. Courts differ
       on the def.  Al;so differ on how much protection they wish to afford a tresspasser.

  C. Known trespassers have  a different, less harsh standard, duty to warn of or make any artificial condition,
       and to conduct with reasonable care any activities that involve risk of harm.

  D. Attractive Nuisance:
   
 2. Liscensee:
 
     Someone who enters and remains with the permission of the possessor, but who is not an invitee. 
     Examples are social guests, door to door salesmen, firefighters, cops, business invitees who exceed their
     invitation.

     Posessors owe a duty to exercise a reasonable standard of care to warn of or to make sfae dangerous 
     activities or conditions which he knows or should know about - and that are not obvious to the liscensee.
     Posessors owe no duty to a liscensee to inspect or to take reasoanble efforts to discover hidden dangers.
     “Liscence atkes premises as the host finds it!”

 3. Invitees
 
     Includes poeople who enter by consent  of and for the business purpose of the posessor. 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, inspectors required.

 A. Condition
 
  1. Carter v. Kinney (CB, 165)
      P had a bible study in home and church member slipped on ice and was injured.
      D was not liable as no duty to liscensee (Received no material benefit from P’s attendance and not open to
      public, but church members.  Traditional:  (1) Trespassers - all entrants to land without permission, no duty
      of care, (2) Liscensee- all entrants to law with permission, but no material benefit, duty to make safe dangers
      aware of, and (3) Invitee- all entrants with permission when owner has material benefit, duty to exercise 
      reasonable care to protect against known dangers.
  
  2. Rowland v. Christian (CB, 172)
      P severed tendons when porcelain handle D had requested LL to fix cracked in P’s hand.
      Overturned allowance of SJ as P really was invitee. (Dissent asks how far a LL reallt should go) 
      1714 of Civil Code: “responsible . . .for result of wilful acts . . .[and] want of ordinary care or skill . . .
      later has willfully or by want of ordinary care, brought injury upon himself.” Departures from Civil Code
      (1) foreseeability, (2) degree of certainity that injury suffered, (3) closeness between injury and conduct,
      (4) moral balme, (5) preventing future harm and (6) extent of burden.  
      MODERN: reasonable people do not vary their conduct depending on courts’ distinctions of invitee and
      liscensee.

  3. Carter v. Rowland
      Carter based on whether Tresspasser, liscensee, or invitee. Rowland tossed out distictions as reasonable 
      people don’t vary their conduct depending on distinctions and is contrary to our modern social mores and
     humanitarian values. Common law rules obscure rather than illuminate proper considerations which should
     govern detemination of question of duty. Cases should be dealt with on case by case basis. 

 B. Activity

   - Brit v. Allen: Liscencee gets ger foot run over by negligent moving of piano. Court held that she could not
     estalish wanton or willfull conduct.
   - Bowers v. Ottenad (CB, 170): Overrules Britt;  Social guest burned by host in preparation of Irish Coffee -
     Court held the host to a duty even though it is difficult to determine whether the alleged negligence falls
     outside the realm of willfull or wanton. Widens protection for licensee who previously would have had to 
    prove willfull or wanton.

 C. Open and Obvious
     
       - Tharpe v. Bunge Corp. (CB, 169)
         Govt. inspector whose work on D’s premises involved stepping from landing to sloping ground 29’ - 39’
         below is injured.  D liable as have duty if can anticipate harm despite knowledge of open and obvious
         nature of danger. POLICY: to discourage unreasonably dangerous conditions rather than fostering them
         in  their obvious form.

III.  CONTEXTS

  A. Children
     1. Holland v. Baltimore (CB, 170)
         9 yr. old injured by freight train. A posessor of land is subject to liability for physical harm to children
         trespassing by an artificial condition on the land if  1.) have knowledge that kids go there;  2.) Big risk
         imposed by conditions; 3.) child does not realize the risk. 4.) foreseeability; 5.) general failure to exercise
         due care.
    
     2. United Zinc & Chemical v. Britt (Supp, 403)
         P trespassing see clear pool of water and go swimming, but pool has poiusonous compounds in it/ Poison
         not open and obvious and children die. Holmes overturned verdict and held D not liable as pool not 
         attractive nuisance as children could not see pool before tresspassing, so no exception and children have 
         no greater right to treapass than do adults. Clarke’s dissent: Jury should determined whather pool in 
         vicinity that might be frequented by children and whether then D should have taken preacutions agaisnt
         injuries.
 
 B. Landlord/Tenant
     
   1. General
       - Sargent v. Ross (CB, 178)
          P, minor, was visting tennat in D’s building and fell to death from step stairway with inadequate
          railing which led only to tenant’s building (not common area). LL liable in tort only if injury is 
          arrtibutable to (1) hiden danger in premises of which LL, but not T, is aware, (2) premises leased for 
          public use, (3) premises retained under LL’s control or (4) premises negligently repaired by LL. 
         Liability likely if LL promised to reapair but failed to do so.
          - Putnam v. Stout (Cb, 178)
             Imposed duty where promise had been made
   2. Crime: Kline v. 1500 Mass Avenue Apartment Corp. (CB, 179)
                    P, tenant, assaulted in common hallway of D, LL’s building.  D was laible as best equipped to
                    guard against risk practicallky and economically as to tenant nad as to police.
 
 C. Ice and Snow:
      
       - Sullivan v. Town of Brookline (CB, 171)
          P slipped on icy ramp, where D shoveled and exposed ice underneath. P relied on cases where ice and     
          snow conditions were found to have become unnatural due to passage of time. Court rejecte and held D
          not liable for failure to calen ice and snow as natural accumulation of snow and ice not actionable 
          property defect.
       - Gamere v. 236 Common. Ave. Condiminium Ass’n (CB, 171)
          P slipped on sidewalk. D violated city odinance to remove ice and snow within ceratin time limits
          for benfit of govt. not having to do same. D not liable as ordinance for gov’t benefit not pedestrain’s
          protection  and ice was not shown to me more than natural accumulation.

EMOTIONAL INJURY:  DIRECT HARM

I .  General

    A. Mitchell v. Rochester RY Co. (Supp, 418)
         Pregnant P scared by horses rushing to stop at her feet and miscarried. D not liable as didn’t touch P. 
         POLICY: to prevent fraud and problems of proof and slippery slope. Must ahve physical contact even with
         physical manifestations. LATER OVERTURNED.  MUST  TOUCH.
     
    B. Falzone v. Busche (CB, 230)
         D’s car veered across highway and came so close to P.  P was frightened for fear of her own safety. D 
         may be liable if physical manifestations.  REASONS FOR MUST TOUCH RULE: (1) D can’t always
         anticipate that P will be injured (but leave to medical evidence) and (2) proof or disproof  of fear-induced
         physical suffering could lead to fraud (rules of evidence and juries will protect against.) DONT HAVE TO
         TOUCH. CREATION OF RISK OF PHYSICAL HARM SUFFICIENT TO SHOW NEGLIGENCE
          (widening scope of liability.)
 
II.  H. I. V.
 
   A. K.A.C. v. Benson (CB, 226)
        D performed gynecological procedures with Board required double gloves after infected with HIV but later
        additionally required to write to P and tell them minimal risk had still existed)  D not laible as P must 
        allege actual exposure to HIV.  POLICY: control unreasonable fear of HIV infected persons, prevent 
        compromise of medical assistance and prevent emptying pockets of D for later Ps who contracted HIV.
        ZONE OF DANGER TEST: (1) within zone of danger of physical impact (objective), (2) reasonably 
        feared for safety and (3) suffered sever emotional distress with attendant physical manifestations.

   B.  Brzoska v. Olson (CB, 231)
        D performed dental work on P after being diagnosed HIV Positive.  D not liable even though lack of
        informned consent as fail to show actual exposure. POLICY: control unreasonable fear that HIV is so 
        easily transmitted.

   C.  Heiner v. Moretuzzo (CB, 233)
         D laboratory incorrectly reported P as HIV positive twice and 2 months later negative.  D was not liable
         as P never in real physical peril, while P suffered emotionally, ot every wrong dereving of legal remedy.
          - Compare Air Crash Disaster Near Cerritos (CB, 233)
                            P heard loud crash followed by another when 2 airliners collided overhead and crashed 100
                            yards from their home)  D may be held liable as persons in path of negligent conduct who
                             reasonably fear for safety amy recover for resulting emotional distress.
                             DISSENT: noise alone is neither threatning nor dangerous.

III. Impending  Death

 - Shu-Tao Lin (CB, 232)
    P saw left engine and portion of wing break away from plane at beginning of flight which lasted 30
    seconds until crash. Court upheld jury’s judgement of $10, 000 for pre-impact fright, as question of fcat
    whether P witnessed same.
  - Quill (CB, 227, 232)
     P, passenger on a plane, which entered tailspin, plunged to earth; pilot regained and saved seconds before
     plane would have struck ground and took 40 minutes of shaky flying before landed safely. D liable as P
     within zone of danger.
   - Nelson v. Dolan (CB, 233)
      P, motorcyclist, collided with D’s car and pulled 268 feet before hit light post and killer.
      Court permitted pre-impact fright recover for five secinds betwen intila incident and death.

IV. Solely Emotional/ No Physical Threat

  A. Gammon v. Osteopathic Hospital of Maine,Inc.  (CB, 234)
       P found severed limb in deceased father’s personal affects bag from hospital.  D is liable as D could have 
       foreseen that P would suffer emotional injury.  Mental well-being entitled  to lega protection. Court had 
       previously found emotional injury in cases involving mishandling of corpses where grieving  Ps are
       vulnerable.  TEST:  (1) severe distress and (2) particularly vulnerable situations.
   
  B.  Gammon Appt. Notes 3-6 Courts recognizing actions where there is no physical danger may disagree
        about whether P must show some residual physical manifestations from distress.

 C.   Severe Distress
        1. Chizmar (CB, 237)
             D incorrectly informed P taht HIV positive causing P’s severe emtional distress.
             D liable due to special realtionship or trust.
             Nieman (CB, 237)
             Court upheld complaint in case where D negligently reported to P’s MD that P’s sperm count indicated
             sterility. 
             Holiday (CB, 237)
             Court upheld judgment of P whose attorney had acted incompetently and caused innocent P to be
             incarcerated for manslaughter as ahd special realtionship of trust.
             Rodrigues (CB, 238, 255)
             P’s house, built with own hands, damaged by water due to D’s negligence. STANDARD: that where 
             severe of serious emotional distress suffices, it is shown where a “reasonable man, normally constituted, 
             would be unable to adequately cope with the mental stress engeandered by the circumstances of the 
             case.”  DISSENT:  inappropriate to allow recovery as a result of harm to property, not persons.
 
        2. Sullivan v. Boston Gas Co. (CB, 238)
            Ps stood across the street as their house burned to ground. D liable as P able to prove physical 
            manifestations of emotional distress which included depression, sleeplessness, gastrointestinal 
            distress, upset stomach and nightmares.

V. Finley Excerpt
 
“INDIRECT”  EMOTIONAL INJURY

I.  Intro Direct/Indirect

    A. Carey v. Lovett (CB, 255)
         P giving birth not seen as direct victim as alleged malpractice on fetus, but not a bystander either has 
         action whether conscious at time or not.  Father would come under bystander approach.  POLICY:
         prevent increased use of anesthetic in deliveries.
         Burges v. Superior Court (CB, 255)
         Father would probably be treated as a bysatnder.
     
     B. Huggins v. Longs Drug Stores California (CB, 257)
          P ‘s parents followed incorrect label and gave infant excessive dose of medicine, child not permanently
          injured.  D is not liable to parents as parents “were no patients from whom D dispensed the prescibed 
          medication, theyu cannot recover as direct victims of D’s negligence.”  DISSENT:  P were direct victims
          as necessary parties to administartion of medicine.  DISSENT:  parents direct victim due to additional
         injury of guilt parents feel at being instruments of harm to child.

II. ZONE OF DANGER (Majority)

 A. Johnson v. Jamaica Hospital: (CB, 257)
      Ps daughter kept at birth in hoispital for treatment abducted from hospital and returned 4.5 months later.
      D is not liable as P were “bysatnders” to whom no direct duty was owed as OUTSIDE ZONE OF 
      DANGER. D owed no duty to refrain from negligentlyu causing such injury was to hold otherwise would
     invite the danger of “boundless liability for indirect emotional injury that [courts] have consistently rejected.
     Nor does foreseeability that child will have psychic injurie slater serve to establish duty running from D to P.
         1.  Jacobs (CB, 257)
              D negligently diagnose P’s husband as having pancreatic cancer and six months to live.  Court denied
              recovery as D only allowed duty to those directly injured by the act of malpractice.
         2.  Tobin (CB, 245) 
               REJECTED DILLON analysis as too difficult to draw lines so better not to recognize this tortat all
               rather than formulating problematic tests.  NO EMOTIONAL DISTRESS CLAIM PERIOD.
               BOVSUM v. Sanperi  (CB, 245)
               OVERRULED TOBIN’s total refusal to allow and action, but refused to adopt DILLON or PORTEE
               and instead extended duty to members to “immediate family” who were within ZONE OF DANGER.
               Based on traditional negligence concept that by unreasonably endangering P’s physica safety, D has 
               breached duty owed to him.
               NO DISTRESS CALIM WITHIN ZONE OF DANGER
 (
III.  DILLON v. Legg (CB, 240)
      (1) P near scene of accident, (2) did shock result from watching accident rather than just learningof it, and
      (3) relationship between P and victim. MINORITY, BUT INFULENTIAL. POLICY: witnessing injury but
      not within zone of danger is arbitrary bbarriers having absolutely no relation to basic emotional injury.
         A. Portee v. Jaffe (CB, 238)
               P’s son trapped in elevator shaft between wall and elevator, mother witnesses last few hours of failed
               rescue and son’s death.  D is liable and added to DILLON test equirement of severe physical injury
               causing emotional distress.  PORTEE Test:  (1) death or serious physical injury of another caused by
               D’e negligence. (2) marital or intimate family relationship between P and victim, (3) observation of
              death or injury at scne of accident, and (4) resulting severe emotional distress. MINORITY, BUT
              INFLUENTIAL 
                -- Thing (CB, 244) P neither heard nor saw accident killing child, but rusehd to scne of accident.
                D was liable. DILLON TEST REVISED, not hae\rd and fast rules, just guidelines.
    
         B. Proximity

            1. Scherr v. Las Vegas Hiton (CB, 242)
                P witnessed fire on TV of hotel where husband staying at, found ou later that husband was hurt in 
               fire.  Since P did not actually observe, no receovery.  Sensation perception requirement.
            
            2. Ferriter (CB, 250)
                Children arrived at hospital and see paralyzed dad. Although the 2nd test of  Dillon not met, 
                children are allowed to recover.  Courts look to particular facts such as dependency on parents
                by children.

            3. Stockdale (CB, 243) 
                P learned of death of son 4 hours after accident, and first saw body 24 hours later in funeral home.
                Time delay blocked P;s recovery for emotional distress.
            4. Cameron (CB, 245)
               P first saw fatally injured son in hospital “shortyly” after aacident and satyed with him for 6 days
               until he died.  Court adhered to distinction between “direct” and “indirect” victims and rejected P’s
               recovery.

   C. Serious Injury

       1. Victims of Tort
            - Barnhill (CB, 243)
               P saw accident involving mother’s car where belived that mother was severely injured, but really only
               slight injury. D was liable as proper test is wherther a reasonable would believe that victim would be 
               seriously injured by type of accident which occurred.
             - Barnes (CB, 243)
               P, mother that her child had been horribly injured in accident she witnessed, but was later found 
               to be another child who was injured, P died next day from trauma. D was not liable as  NO ACTUAL
               HARM. POLICY: unwillins to expand the circle of liability as to do so exapnds unreasonably the 
               class of person to whom the tortfeasor may be liable,
       2. Emotional Injury Claimant
             -Sell v.Mary Lanning Memorial Hospital (CB, 243)
               P was mother incoreectly informed that son was killed, begins funeral arrangements and finds out 2
               days later not her son. D is not liable even though jurisdiction broader approach than DILLon Portee
               as P’s reactions inasdequate, save taers for mother of real decedent.  DISSENT: no further evidence
              should be required where mother thought child was killed.

  D. Relationship

       1. Elden (CB, 246)
           P was hurt in auto accident which also killed longtime girlfriend.  D was not liable as did not meet
           immediate family reauirement. POLICY: (1) strong interest in marriage(ie. property rights, support 
           obligations), (2) difficukt burden of courts to review all cases to see if realtionships mat “stable and
           significant” criteria, and (3) need to limit the number of persons to whom negligent D owes duty of care.
           DISSENT: this would preclude alternative relationships where cannot chose to marry legally so will
           never be able to recover.
    
       2. Dunphy (CB, 247)
           P witnesses death of fiance (man) D ia liable under new test: (1) duration of relationship, (2) degree of
           mutual deoendencies, (3) extent of common contributions to life together, (4) extent of quality of shared
           experiences, (5) whethe members of smae household, (6) emotional realiance on each other, 
          (7) particulars of day to day realtionship, and (8) manner in which they realte to ecah other in attending
          to life’s mundane responsibilities.
  
      3. Leong (CB, 256)
           10 yr. old P was walking hand-in-hand with stepfather’s mother witnesses her death. No blood 
           realtionship required b/c Hawaiian and Asian families have long maintained strong family ties among
          extended family. No physical symptons of emotional distress requires required.

IV. Hawaii
      - Rodrigues v. State (CB, 255)
         P’s house, built with own tow hands, fdamaged by water due to D’s negligence.  STANDARD: that where
         severe serious emotional distress suffices, it is shown  where a “reasonable man” normally constitueted, 
         would be unable to adequately cope with the mental stress engeandered by the circumstances of the case.”
         DISSENT: inappropriate to allow recovery as aresult of harm to property, not persons.
      - Campbell  (CB, 256)
        P learned over phone that dog dies on same isladd due to D;s negligence. D was liable for $1,000.
      _ Roman (Cb, 256)
         P witnesses neighbor’s  dog dismember her poodle which dies two days later. D was not liable under
         bysatnder analysis as dog is “personal property” and “distress from witnessing injury to properyty did not
         give rise to action.
       - Masaki (CB, 256)
         P herad that son hurt in accident on same island and wenty immediately to hospital where told that son 
         will never walk again. D is liable even though that P didn’t witness accident as that element was merely
         factor indetermining degree of mental stress suffered.
        -Kelley (CB, 256)
         P in Ca telephoned that daughter and grandmother killed in auto accident in HA. D was not liable as scene
         of accident too remote for D to have reasonably forseen these consequences of theor conduct.
        - HAWAII LEGISLATURE stepped in with rules barring recovery of emotional distress arising from
          damage to property unless distress resulted in physical injury or menatl illness.

V. Finley, Gender Bias in Torts Standards
     1.  Women’s complaints of pain pr injury often dismises as emotional or hysterical complaint’s , while
           men’s comp,aints oif smae ailment were more likelly to be treated as serious physical harm.
     2. Within acknowledeged categories of emotional injuries, easier for women to collect for nervous shosck
          or intentional infliction of emotional distress, than for men.
     3. A formal equality solution can mean that woman will be evaluated by male-based standards.
          a. disfuguring injury more harmful to women based on society
          b. men can experience injuries associated w/ reasonable woman
          c. Womne’s injuries relegated to emotional category, blocking recovery.

CONTRIBUTORY AND COMPARATIVE NEGLIGENCE

I .  Contributory Negligence
 
  A. Rule - IF P was negligent and this negligence was proximate cause of injury, P cannot recover anything.
        PFC is (1) duty to self, (2) breach, and (3) cause of own injury.
  
  B.  Exceptions
 
      1. Activity- Rescuers who are hurt going to aid of others; cases can go to jury as involve issues reasonable
          people could differ upon.
          Status - Mental Illness - Cowen v, Doering (CB, 383) 
          P was suicidal patient jumped to death while under D’s care. No contributory negligence as not
          reasonable standard, but capacity of individual.

     2. Statutes
         Feisthamel v. State (CB, 384)
         P, 9 yr. old girl walked through glass drum that was wrapped around revolving door; state violated statute
         requiring demarcation of glass revolving doors.  Majority: D was not liable even though violated statute
         as statute was not enacted to protect person from hazard theycan avoid themselves. DISSENT: statute’s
         purpose was to protect users of glass doors from colliding with glass due to inability to perceive them as 
        such. MINORITY: several rules emerged over years to limit applicability of contibutory negluigence as
        defense of statute violations.
   
     3. Reackless Activity - If D ‘s behvaior was reckless, P’s behavior must also ave been recakledd to be
         contributory. Contributory bnegligece is irrelevant.

    4. Last Clear Chance
        Davis v. Mann (CB, 385)
       D ran into donkey that P had carelessly tied in roadway. RULE: Regarless of P;s contributory
       negligence, D had last clear cahnce and tiem to avoid injury than will be held liable. Two types
       of situations trigger last clear chance: (1) if P not self into position of helpless peril and no longer
       able to take protective steps than D negligent in not using reasonable care when he knew of P’s 
       situation or if using reasonable vigilance, should have known or (2) P was obvious to danger, but who 
       could, if behaving reasonably, become aware of it and avoid harm atr last minute then D negligent if 
       knew of P’s situation, realized P was inanttentive and failed to use oportunity to aviod harm.
       Ses Restatement (2d) Torts 479, 480
 
    5. RefusaL To Impute - see II Compenasatory Negligence (below)

    6. Jury- despie instructiosn to the contrary a jury sometiems applies comparative negligenbce by lowering
        award to P based on amount of P’s negligence.

II. Compensatory Negligence (Cb, 387)
 
   A. Pure - D pays percenatge of damages based on percenatage of D:s fault in realtion to P’s fault
   B. Modified - Two Types
       1. If P’s negligence over 50% or more, P cannot recover.
         2. If P’s negligence over 51% or more, P cannot recover.
   C. Implemented Uniform Comparative Act Fault, 12 ULA 33 (1981 Supp.) (Cb, 389) =Model act of 
        comparative fault approach.
   D. Imputation - Should liability be joint and several? If D;s negligence is 1%, P’s is 14%, and third party’s
        is 85%, D would be liable for 100% if joint and several.

II.  Avoidable Consequences doctrine (existing side by side with contributorty engligence) addressed the 
      measure of damages but not issues of liability. Even if accident was 100% faulkt. P’s recovery might be
      reduced by failue to exercise dfue care to jarm done.

IV. Assumption of Risk; express amd implied

      Immediate express agreements must (1) be legible, (2) be placed in location which will be notoceable by 
      otye parties, and (3) be attached to something that you’d assume this type of wauver o be a part of (ie, coat
      check can’t have waiver for drunken vehiculra accidents)
      - Krazek (CB, 411)
        P injured in rafting trip even though signed waiver which held D harmless  “From any and all liability
        actions . . .which may arise out of . . .trip or participation in any other activity.”  P’s disclaimer didn;t 
        say  “negligence waived”.   D was not liable as disclaimer need not be specific.
      - Kissick (CB, 412)
        P, pasenger on private plane who were killed signed waiver of claims for “any loss”, damage or injury
        to my person or my property.  D held liable as waiver did not realease D from, death.
      - Johnson v. Paraplane (CB, 412)
         P hurt when D’s flying powered parachute crashed had signed waiver releasing D from liability stating
         that activity had “unavoidable or unprecedented dangers involved . . .parachutes and engines do not 
         always work” nad releasing “hidden, latent or obvious defects” in equipment; P also watched video 
         explaining release. D was not liable as waiver was insufficient.
        
IMPLIED ASSUMPTION OF RISK

       - Murphy v. Steeplechase Amusement (CB, 413)
         P rode on the “Flopper” and was injured, but had precviously seen other riders being thrown
         to ground a spart of the ride.  D was not negligent as P knew what he was getting into and 
         agreed to be flopped. Violenti non fit injuiria  - ONE WHO TAKES PART IN SUCH A SPORT 
        ACCEPTS THE DANGERS THAT ARE INHEENT IN IT SO FAR AS THEY  ARE 
       ON\BVIOUS AND NECESARRY.
       - Tantillo v. Goldstein Bros. Amusement Co. (CB, 415)
          If dangers inherent in sport are obscure or unobserved or so serious as to justoify the 
          belief that precautiosn of smae kind must have been taken to avert them, then D must be liable.
       - Knight v. Jewett (CB, 416)
          Female P playing touch football with friends was injured by male D after telling him to be careful
          or would stop playing.  D was not alible would floe “only if participant intentionally injures another
          player or engages in conduct that is so reckless as to be totally outside range of ordinary activity
          involved in sport.” POLICY : encvourage vigorous partcipation in sports.
        -Lestina v. West Bend (CB, 417)
          (soccer injury)  Test for liability in sports. (1) Sport involved, (2) rules and regulations concerning
          sport, (3) generally accepted customs and practices, (4) risks inheent in game nad those outside the realm
         of expectation, (5) presence of protective equipment or uniforms, and (6) facts of case, including , age of
         participants, physical attributes of players, player’s respective skills, and playere’s knowledge of rules and
         customs.
       -Crawn v. Campo (CB, 417)
         Base runner in pick up softball game ran into/slid into catcher. D must onlly avoid intentional or reckless
         conduct for two policy reasons; (1) protection of vigorous participation, and (2) avoid flood of litigation.
       - Freeman v. Hale (CB, 418)
         P, skier injured in collision with D drunken skier. D ahd a duty to avoid increasing risk to other skiers.
       - Connely v. Mammoth Moutain Ski Area (CB, 418)
          P, advanced skier’s bindingd release and fell and slid down hill into large metal tower supporting ski lift.
          D not liable as INHERENT RISK in skiiing of hitting tower and just because padding too high, should
          bnot be held to higher standards then other ski areas which have no padding.
       - Turcotte v. Fell (CB, 419)
         P, professional hockey injured in racing accident. D was not liable as P had consented that “duty of care”
         owed him by D was no more than a dutuy to avoid recak;ess or intentionally harmful conduct. Every
         jockey trying to win, bumping happens, fine line between lawful and unlawful movement of horse.
         (Stuff happens)
        -Davidoff v. Metro. Baseball Club (CB, 419
          P was a minor hoit by foul ball at pro. baseball game. D was no liable even though evidnec of prior
         accifdents as could hsve chosen to but ticket in protected seat and need unobstructed views as some
         persons prefer them.

Employment Context (CB, 424) : this doctrine of assumed risk in employment activity was such an eefective bar
                     to emplotee tort suits that triggered worker’s compensation movement.  POSNER: if assumed risk
                     may not want to force liability on D as would increase prices.  RABIN: Can workers in inherently
                     dangerous jopbs effect tradeoff between safetyu and wages? Workers’ compensation good as
                    workers didn;t protest that this would inhibit feedom to contract own labor.
                    - Zanghi v. Niagara Frontir Transp. Commission (CB, 425)
                       P, police officer assigned to D;s bus terminal during bus driver slipped and fell on snow. Decided
                       in conjunctin with Raquet v. Braun (firefighters kiled and injured when wall of burning building
                       collapsed inward, not outward and Rucco v. New Yor City Tr. Auth. where 2 police officers
                       injured when rusghed dpwn flight pf stairs leading into subway in response to radio call for 
                       assistance from another officer. Ds not liablle under FIREFIGHTER RULE which precludes
                       firefighters and police officers from recovering from damages for injuries cayused by neglgence 
                       in very situatiosn that create the occasion for their services.
                      -Maltman v. Sauer (CB, 430) 
                       P, professional rescue helicopter crahed on way to scene of D’s negligent accident. D not liable.
                      -Black Ind. Inc. v. Emco helicopters, Inc. (CB, 430)
                        Public policy demands that recovery be barred whenever a person fullu aware of a hazar created 
                       by another’s negligence, volunatrily fronts the risk for compensation.

ASSAULT AND BATTERY

I.  Battery PFC:
      1. an act by D
      2. done with forbidden intent (which reasonable person knows to be harmful)
      3. harmful or offensive contact occurs
      4. with person of another(includes body, suit, objects held, etc.)
      5. the contact is unconsented.   
      6. unconsented contact 

     Assault PFC:
     1. an act by D
     2. done with forbiden intent (which a reasonable person knows to be harmful)
     3.  to bring about an imminent aprehension of contact
     4.  with the person of another
     5.  the contact is unconsented
     Traditioanlly, P must prove no consent to contact, but some courts say D must prove consent as
     affirmative defense. 
   
II. Definitions- 

    A. Battery - direct contact with a person
    B. Assault - intend to bring about fear or intention doesn not incliude words, must have ACTION
    C. Intent - (1) whn actor intends consequences or belives that consequences will result from act, (2) not
         dependent on whether reasonable person would have knoen of result, but on what D actually knew, and
         (3) need not be exclusive to injured party, if mant to hurt A, but hurt B intent is found.

III. Cases

   A. Vosberg v. Putney (Supp, 430)
        14 yr. old injured by 12 yr. old D when kicked in leg aggravated P; latent infectious injury resulting in P’s
        inability to use limb. D was found liable as violated P’s person w/o consent(if D on playground may be
        diff. outcome) If intende battery, reagrdless of extent intended harm, liable for all injuries resulting from
        battery.
  
  B. Picard (CB, 811)
       P was upset with gagrage, goes to reporter, and returns to garage with camera. Injured when D lunged at her
       and allegedlky swung her around. D was liable for assault, but P was contributorily negligent in
      situation so Court remanded excessive damage award for retrial. While D did not hurt P’s dignity, he put
      her life in danger. Policy: p’s expecattions.
   
 C. Fisher v. Caroussel Motor Hotel , Inc. (Supp, 433)
      D santched plate from P and shouts that they do not serve negroes. Court held that there was no battery b/c
      plate held in hands in person. D was only liable for assault. P was hurt and embarrassed. P admits taht he 
      was not touched, so no battery. Not necesarry to adopt a new tort of intentional interference with peace of 
     mind which permits recovery for mental suffering in absence of resulting physical injury or an A+B as 
     mental suffering is compensable in suits for willfull torts which are recognized as torts and actionable I
     independant and seperately from mental suffering and other injuries.  Award small but based on dignity
     and damaage awards, not punitive. POLICY: great deal of social upheaval at time so do not want to open
     floodgates, just send warning.
     Alcorn v. Mitchell (CB, 813)
     D spit on P after being disappointed in litigation. Court allowed nominal compensatory and fairly substantial
     ounitivedamages in subsequent action for tresspassory act.

CONSENT AND SELF-DEFENSE

I. General rule: “one who consents can not receive a tortious injury.”  Examples: (1) Strong and Wiry agree to 
   fight and Wiry throws Strong intentionally, but not with intent to injure, Strong injured. Neither guilty.

  A. Illegality - Example: Weak and Wary in weird fanatical sect which cuts off body part comitting sin, Weak
       steals watch and Warpt cuts off Weak’s hand. Warpt and Weak are both guilty.

       1. Fight cases even if by mutula consent, if fight in dead ernest it is different from boxing and unlawful
           consent is no consent.
       2. Reno v. D’Javid (CB, 843)
           P suffered post-abortion malpractice injuries. but abortion done one moth before her abortion would have
           been legal. No consent as illegal act. DISSENT only one month, give P a break. MAJORITY: laws 
          should be obeyed whatever content at given time regardless of how limited period of validity is.
          Seduction (CB, 838) Many people think sexual intercourse between consenting unmarried adults is a 
          private matter of no concern to the public, but this is inconsistent with viewing “seduction” as a tort, or
          consent as “particeps criminis.”

B.  Medical

     1. Kennedy v. Parott (CB, 837)
         P consents to surgery of appendectomy, gets ovarian cyst cut out too.
         D not liable as DR can justifiably perform that type of surgery becuase unanticipated, Once Dr. cuts you 
         open unreasonable to hold DR. to exact operation. especially in internal operations. POLICY: avoid 
         serious surgery later by simple pouncture now.
     2. Obrien v. Cunard Steamship (SUPP, 435)
         P immingrant teld Drs. that she had already had vaccinations already even though he arm was not marked.
         She was told By DR that if not vaccined, then quaranteened, P held up arm for shot. D is not liable cause
         consent can be circumstancial. By standing in line for vaccination and holding up arm, P under burden to
         assert refusal of consent.
    3.  Mohr v. Williams (CB, Supp, 436)
         P gives D consent to operate on right ear, but he finds that left is worse and operates on left.
         D ia liable for battery as not emergency. Distinguished from Kennedy cause 1) internal v. external and
         (2) seriousness of procedure.
    4.  Lloyd v. Kull (CB, 837)
         D saw mole on P’s leg and flicked it off during abdominal operation. D is laible for battery as mole
         was not emergent.

 C. SEX
      - Barbara A. v. John G. (Supp, 437a)
        P had sex with her lawyer who assured her that he could not get her pregnant, imlying sterility and she 
        consented to having sex only, not pregnancy. POLICY: special atty-client realtionship of trust. Fear of
        flood-gates  not god reason andcinvasion of privacy not good as already can invade privacy under civil
        and criminal torts. DISSENT: real argument not Battery or deceit, but seduction through lying about
        sterility.

II.  SElf-Defense: Those who reasoanble believe that they are unwarrantedly attacked have a privilege to
      protect themsleves with reasonable force. REQUIREMENTS: (1) reasoanbel belief with respect to
      endagerment, (2) reasonable force with respect to endangerment (all qaulified and afct specific depending
     on size of aggressor) and (3) if have possibility of retreat obligated to take it.

   A. Limitations
       1. State of NJ v. Kelly (supp, 440)
           Battered woman D stabbed husband in self-defense with scissors. Court allowed expert testimony
           on battered women’s syndrome as ir\t woudl help jurors decide whether D’s belief in threat of imminent 
           bodily harm was reasonable. (On re-trial testimony was allowed and D convicted anyway.)

   B. Mistake 
   
       1. Courvoisier v. Raymond (CB, 844)
            D goes downstairs to investiate noise at place of business. D threatened by goup of men and seeing  
            man coming toward him shot at P; P was police officer investigating disruption.
            Court reverses judgement in error in jury instructioin and holds that jury should be told that if  D’s
            mistake was reasoanble, it sheould decide for D. Police officer assumed the risk and D was in imminent
           danger.           
        2. Crabtree v. Dawson (CB, 844)
            D was threatened by man he ejected from party, shortly thereafter he sees P running toward him and 
            assumes that it was man who had previuosly threatened him so hits P. D had reasonable assumption that
            he was acting in self-defense.
       3. Defense for 3rd person. Restatement Second 76. one who defends a third person is entitled to use same
           means as though defending himself if he “correctly or resaonably believes that a.) the circumstances
           are such as to give the 3rd person a orivilege of self-defense, and (b) his intervention is necesarry for the
           protection of the third person.”
 
  C. Goetz excerpt

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

I. PFC: 
    1. intent of emotional distress
    2. extreme and dangerous conduct  
    3. D’s actions caused P’s distress
    4. emotional distress severe and no reasonable oerson could endure it.
 
2 and 4 are the biggest hurdles in terms of what they include.

Traditional view: Insults are part of everyday life, not actionable so can prevent floodgates and fraud.

Modern View: Fear must be involved; right to be free from bodily injury and right to emotional tranquility
 (TRAYNOR), but caveat in Traynor’s articulation was its right to be free from outrageous and/ or serious
 invasions (extended traditional view).

  State Rubbish Collectors Ass’n (CB, 820)
  D coerced by P to sign notes to pay for garbage collection contract he had signed with a customer even though
  D did not belong to P association.  D sued for nonpayment of notes and D cross-claimed that notes should 
  be cancelled because of duress. Jury found for D and awarded compensatory and punitive damages.   
  TRAYNOR  where mental suffering is major element of damages it is anomalous to deny recovery on
  grounds of no physical injury. Requirement for physical injury is to prevent fraud, but jury in better position
  to determine whether outrageous conduct results in mental distress than whether that distress in turn results
  in physical injury.

II. Non-Racial
 
 A. Agis Supp, (460)
      P fired from employment at D per ploicy of letting people go until guilty party steps forward.  Reversed
      lower courts dismissal of P’s complaint. POLICY: 1.) Justice and 2.) juries are good at getting rid of fraud.
 B. Harris v. Jones (Supp, 465)
      D, employer harrased P employee about his speech imoediment. D was not liable cause “in cases where the
      D is in a particular position to harrass P, and cause emotional distress, his conduct will be carefully
      scrutinized by the couts.”
 C. Wommack (CB, 821)
      D obtained photo of P, and her employer (an Atty) uses in child molestation trials and asks if P was
      perpetrator. D was liable, even absent bodily injury as acondcut was extreme and outrageous.

III. Racial
              
    A. Wiggs (Supp, 468)
         D hurled racial epithte at P when he inquired about dinner order.
         Uphled jury verdict for P, but found award excessive as neither A nor B
         46 extreme conduct (harder to prove geberally in employment) and 48 gross insult (inkeepers)
         1. Fisher (Supp, 433)
             D santched plate from P’s hand and refused service cause P was black.
             P was merely hurt and embarrased.
         FISHER v. WIGGS
         - Wiggs P unable to sustain A and B revealing artificialtity of finding snatched plate to be battery
         - Wiggs recognizes cause of action in 48
         - Wiggs allowed recovery for intentional infliction of emotional distress based on one incident
        
    B. Irving (Supp, 473)
         P attempting to return product at record store was asked to sign return slip which gave reason for
         return as arrogant N refused to exchange, says he doesn’t like products.
         P sued under 1L  Constitution Art. 20 “Communications that portray criminality, depravity or
         lack of virtue in, or that incite violenec, hatred, abuse, or hostility toward a person or group of 
         persons by reason of or by reference to any protected group are condemned.  D was not liable cause
         20 does not create cause of action and D’s conduct does not meet severe and outrageous conduct
         requirements, although conduct not condoned.
  
    C. Federal Title VII - Emploement Discrimination
         - Bolden v, PRC Inc. (CB, 826)
           P sued employee for racial discrimination under Title VII. for 2 racial remarks.  D was not liable
           for P was “sensitive and serous person in a shop filled with boorish churls.”
  
   D.  Delgado, “Words that Wound: A Tort Action for Racial Insults
         Fine lien between outrageous conduct and free expression has given rise to serious First Amendment 
         concerns.

IV. Sexual Orientation
      - Logan v. Sears, Roebuck &Co. (Supp, 474)
         P put on hold and was hears operator say that “this guy is as queer as a 3 dollar bill” to another co-worker
         Court allowed S.J.M. as mere insults will not qualify as extreme and outrageous under 46 which requires
         (1) intent and (2) recklessness.  Must be foreseeable that would cause mental suffering and shame and
         humiliation in person or ordinary sensibilities. Queer, has been used for a log time outside gay 
         community. No harm asking, banter and joking O.K. Egshell skull - will not protect conduct which would
         mereky be considered unacceptable by homosexuals.  P must be hardened to certain amount of rough
         language and to acts that are inconsiderate and unkind.

V. Sexual Harrasment - S. Court broadened TITLE VII standard to permit claims if dicreationary conduct
     created an “abusive working environment.”
      A. Russo v. White (Cb, 824)
           P received 340 hang-up calls in 2 month period from D. P’s complaint was dismissed as P had not 
           suffered any physical injurya s a result of stress and D had not spoken during calls. (Givelber’s 
           article: “term outrageous does not objectively describe an act or series of acts; rather, it represents
          an evaluation of behavior. The concept thus fails to provide clear guidance either to those whose
          conduct it purports to regulate, or to those who must evaluate that conduct.”
      B. Harris v. Forklift (CB, 827)
          D, employer asked P to remove coins from pants pockets and made comment “what did you do,
          promise  . . .(Client sex) Saturday night?”  Court denied that P had to show psychological injury
          to recover under Title VII but declined to adopt  “resoanble woman” std.  Jury was instructed to
          “weigh all circumstances, including the frequency and severity of the harasment, whether the harasment
          invoolved humiliation or physical intimidation, and whether it inteferes with employee’s work perf.
     C. Finley (Supp, 477)
          Despite use of “reasonable person” language, courts are evaluating a woman’s conduct according to
          a male standard, thus there should be a reasonable woman standard.  Focus on implications of Rabidou
          on sexual harassment, how has std. applied biased? Move from resaoanvle person to reasonable woman
         std. 
    
VI. Public Figure
      Hustler Magazine Inc. v. Fallwell (CB, 830)
      D published parody ad with P’s first time as being with his mother near outhouse (drinking). Ad had 
     disclaimer. P won, but D’s JNOV affirmed by 4th Cir. RENQUIST says that 1st Amend. not overriden
     as is recognition of fundamnetal importance of free flow of ideas and opinions on matters of public
     interest  and concern. HOLMES best test of truth is to test it in competition of market.
           FCC v. Pacifica Foundation (CB, 834)
           That speech is vulgar, offensive and shocking is not entitled to absloute const. ptotection under all circs.

FEDERAL IMMUNITY

I.  General Discovery

II. Feredal Torts Claim Act - prior to peole had absolutely no claims against law makers.
    In 28 USC  1346 (b), 2402, 2671, et seq., government waived its tort in certain cases
    1346(b)  - have civil action in district courts(prosrscibing right to venue-fed courts want to be
                     constituent and rule on its own violations
                   - loss injury or death caused by
                   - negligent or wrongful act or omission of agents acting within scope of employment
                   - if private person would be liable in accordance with law of place
    2402       - no jury claims (body granting rifghts has rights to circumscribe rights
    2674       - Us Liable as private indiv. would be liable, but not liable for interest prior to judgement or punitive
                      damages.
    2678       -  no atty fees in excess of 25% of judgement (To make attys better evaluate potentential calims 
                      against the US
    2679(b)   - any other action agisnt the govt. agent is precluded without regard.
    2680        - provision shall not apply to : (a) due care in performin job, (b) postal workers, (h) inten. torts
                      (i) treasuy Dept.  (j) combatatnt activities (war time)  (k) foreign countries
   2680(h)     -intentioanl torts shall not apply to assault, battery, false imprisonment, false arrest, maliciosu
                      prosecution, abuse of process, livel, slander, Etc.
   2680(a)     -any act or omission of govt. employee who is (1) exercising sue care in execution of statute
                     or regulation whether or not statute or regulation valid based upon (2) exercise of performance
                     or failure to exercise or perform a discretionary function or duty on part of fed agency or govt.
                     employer whether or not discretion involved abuse.

Analysis: 
   
    narrow interpretation

    Dalehite (1953) --->        Varig (1984)  ------>    Berkovitz (1988)
    Planning              ||||        limited Dalehite|||||       Room for hope
      vs.                         |||||                            ||||||
     operational               |||||                       |||||
                                              Allen

Dalehite 
 fertilizer handled improperly by govt., exploded. G not immune. Rule: discretionary function depends
 on bearocratic level of decision-making
Varig
FAA’s inspectionof planes. Courts refuse to second guess judgement of agency. Rule: Nature of conduct,not
statute of cator that determines whether dicretionary function applies in given case.

  A. Allen
       Atomic testing ordered by agency but local offoce organized. Tried to frame operation at low level where l
       less discretionary power, but G held immune.  PURPOSE: to insure that G was not prevented from 
       instituting leadership and planning funsctions by tort suits attacking themanner in which oit was done.

 B. Berkovitz (Cb, 216)
      P child was given oral vaccine against polo and contrcats same. G raised discretionary function defense.
      MARSHALL says claim should not be barred; Rule is that the discretionary function exception applies
     only to conduct that involves permissible exercise of policy judgement. DBS issues liscenec without
     examining the vaccine product. The agency has no discretion to deviate fro mnadated procedure.
     They were required to examine products and they did not.
  
C. Amendment - does away with Discretioanry functinexmeption in 2680, leaving only standard or reasonable
     care in execution of statute or regulation
  
D. Discretionary Function Arguments:
     For liability:                                       For no liability:
     1. This is low level function               1. even low level workers carry out policy functions
     2. no room for policy judg. and dec.   2. the procedure allowed room for discretion
     3. there was no discretion to deviate   3. it does not matter that the govt. should have made bette regulations
     4. Say that there is no pulic policy      4. this is an area of  public policy, purpose to prevent second guessing
                                                                     of agency judgement
     5. Berkovitz Ftca was not meant to     5. Failure to recognize immunity will result in confusion
     cover every act of G
     6. collective citizenry should bear cost of  this

TRADITIONAL STRICT LIABILITY

I. Historical - English

 RYLAND Doctrine: (1) one who brings onto his land anything likely to do mischief if it escapes keeps that
                                    thing at his peril and (2) is laiable to adjacent landwoners when D brings an artificial
                                    and unnatural device causes something to escape from the land and harm another’s 
                                    property.

  A. Ryland v. Fletcher (Cb, 431)
       P miner, D builds a reservoir that collapses and floods mines. D has hired professionals, so his acts were 
       reasonable. D is not liable. Control of what you bring on your land is essential. SL for what is naturally
       not there on property, but hardly anything is naturally there. Two potential defenses hinted to SL: 
       (1) contributory negligence and (2) assumption of risk.
  B. Rylands again: 
      D not liable. Court narrows holding by distinguishing natural vs. non-natural use of land. P does not 
     assume any risks on his land for actions that D takes on his own.   
       
II. Rejection of Rylands --- American style

     SL for abnormally dangerous activities. PFC:
     1.) whether the activity involves a high degree of risk
     2.) Whether the gravity of that risk is high.
     3.) whether the risk can be eliminated with reasonable care
     4.) Whether the activity is not a matter of common usage 
     5.) Whether the activity is appropriate to the place it is being carried out
     6.)  Whether the value to the community is outweighed by the danger.

  A. Nation Building
    
    A. Losse v. Buchanan (CB, 437)
         Boiler explodes and flies through air destroying neighbor’s property.
         D is not SL b/c we want to promote progress, growth, expansion. Victim should not stand in way.
         Rejects Rylands

   B.   Turner v. Big Lake Oil Co. (CB, 438)
         Water escaped from storage tank. Rylands does not apply. Storing water is a natural use in Texas as it
         is a dry area. Natural use depenmds on location. Policy: Water storage in nec. to support industry.

  B. Debris/Concussion
       Sullivan v. Dunham (CB, 439)
      D land owner blasted 60 ft. tree, debris flew 412 feet onto highway killing P. Losee was accidental.
      This case is intentioanl-wnated explosion to happen. When rights cpnflict, D should surrender a
      particular use of his land, so that the other should not be deprived of beneficila use of his property
      altogether. Land owners rights not absolute , but are qaulified and limited by highre right of others to
      lawful possession of their property. RULE: If doing it intentionally, can be SL.  POLICY: Public
      safety of travelers more important than improvement of 1 piece of property.

  C. Environment

    1. Cities Service Co. v. State (CB,  )
        P’s business collected phospahte slime, which, when damn broke, escaped into creek and caused 
        environmental nightmare. APPLIED RYLANDS.  When seeking to build nation, O.K., but now
       it is not. While many hazards are sovially desireable, it is reasonable that thay now pay their own
       way.” Ryland does  not apply.
    2. State Dept. of Environmental Protection (CB, 439)
        P sued D for cleanup or mercury costs emannating from labnd which Ds used to conduct mercury 
       processing fro 5o yrs. D liable Those who use, or permit others to use land for the conduct of abnoramlly 
       dangerous activities are S.L. for resultant damages. Rylands extended.

  D. Restatement 520 (six factors for consideration)

       1. existence of a high degree of risk of some harm to the person, land or chattels of others
       2. likelihood that the harm that results from it wiull be great
       3. inaability to eliminate the risk by the exercise of reasonable care
       4. extent to which thecativity is not a matter of comon usage
       5. inappropriateness of activity to pace where it is being acrried on, and
       6. Extent to which its value to the communitry is outweighed by its dangerous attributes.

   1. Indiana Harbor (CB,   )
       D produced and transported same on Ps railroad. Tanker leaked and P paid for claenup. P sued to recover
      costs. P won at SJ on SL claim., but reverse. POSNER says : Exercise of due care of D might have avoided
      accident. As sson as due care is an issue, it can be considered negligent instead of SL. Perhaps  commnuity
      benefited enough from activity that the harm create did not outweigh the benefit. Sl doesn’t apply in this 
      case as exercise of due care would ahve prevented it.
      Guille v. Swan (CB, 445)
      D, baloonist lands in P’s vegetable garden and his rescuers trample same. P won even though  D
      was not careless, just naturte of the activity to be dangerous ( no pin point landings)  SL test set out was
      520 test.

   2. Yukon Equipment Inc. (CB, 450)
       involving explosion of building which stored explosives. Court exposed Sl no matter how valuable
       activity might be to community even though no safer place to store dynamite b/c acitivity so dangerous.
       REJECTION

 E.  Defenses
       - 523 (CB, 452) P’s assumption of risk of harm from activity “bars hios recovery for the Harm”
       - 524 (CB, 452):CONTRIBUTORY NEGLIGENCE is not a defense to SL except when P’s conduct
                                  involves knowingly and unreasonably subjecting himself to the risk of harm from the
                                  activity.
 F. Legislation - Price Anderson Act 42 U.S.C. 2210 (Cb, 781) Basically a funding scheme. Liability would
     be financed through combination of private insurance and mandatory contributions to common funds
     setting up set limit on total liability. EFFECT: (1) provided a cap to liability (categorizing payouts under
     SL, and (2) SL except as to Allen exceptions (Smoking 3 packs/day). Policy: to encourage investment in
     nuclear power.
 
 G. Handguns - Not defective product, but marketing guns can be abnormally dangerous activity.
      Burkett v. Freedom Arms (CB, 453)
      P shot during jail break and sued manufacturer (D) of weapons used. SL for abnormally dangerous 
      activities does not extend to marketing of handguns.
      Kelley v. R.G. Industries, Inc. (CB, 453)
      P shot by grocery store robber and sues Manu. of weapon.
      After review of federal state gun control, legislation decided that it was entirely “consistent with public
      policy” to adopot a SL against a delimited category of handgun manufcaturers (Sat.nite Special)

      D.C. Statute (1991)  Any manufacturer or dealer of assault weapons or machine guns will be Sl in tort.

TRESPASS & NUISANCE

I  Trespass (Intentional)
  A. PFC:
     1.) p’s right of possession
     2.) entry
     3.) act of D
     4.) with intent - intent to cause entry, intent to do act which results in entry
     5.) no need for harm      
       
    Trespass (Unintentional)
    1.) P’s right of possession
    2.) entry
    3.) act of D
    4.) must create a unresaoanble risk of entry, reckless or abnormally destructive act
    5.) injury
    6.) proximate cause not needed, entry not injury, must be foreseeable

   Exception: Trespass willl not hold (1) when invited and (2) when as a matter of law should be right of entry.
   
 B. Cases  
 
   1. Martin (CB, 590)
       P’s cows are poisoned by factory emission of flouride particles. Issue is whether trespass or nuisnace.
       Court found particles constituted “direct” invasion, therefdore trespass as well as nuisance. trespass is an
       act interfering with possession. D’s conduct is an act interfering with possession. D’s conduct is
       immaterial.
     
   2. State v. Shack (Supp, 578)
       Landowner has no right to prevent migrnat workers living on the premises from receiving coomunications
       regarding their legal rights. Property rights serve human rights. Courts avoid constiturional questions
       and focuses on clash between interests of wonership and public interest in educating migrant workers.
 
 C. Theory - Cohen, “Prperty and Sovereignity”
      1. property is power - dominion over things is also dominion over people.
      2. ownership of land and machinery, with rights of drawing rent, determines future of distribution of goods,
      e.g. what share of goods individuals will acquire.

II. Nuisance (CB, 594)

UNINTENTIONAL NUISANCE   PFC:
 1. creation of unreasonable risk of entry
 2. act or mission
 3. a resulting entry
 4. caused in fcat by act or omission
 5. producing concrete pain

INTENTIONAL NUISNACE  PFC:
  1. substantial,
  2. interference with P’s use and enjoyment of the land,
  3. by act and/or conduct
  4. where the interference is
      1. intentional and unreasonable, or
          a. gravity of conducty putweighs its utility
          b. harm is substantial
          c. harm is serious and D could compensate without going bankrupt,
      2. arise from negligent or reckless conduct
      3. arises from an abnormanlly dangerous activity or condition.
 
  A. PUBLIC - Historical origins - criminal interferenbnces with crown

           821 (B)(1) public nuiscance is unreasonable interference with right cpoomon to general public
           821 (B)(2) incluydes - significant interference with public health, safety, paece, comfort, or convenience.
           821 (C)(1) special harm as prerequisite for recovery of damages in na individula action
           821 (C)(1) representative of class of folks
  
  B.  Private
          822   (a) must be an unreasonable intent, and (b) uniententional arising out of neglkigent or reckless 
                   conduct or abnormally dangerous activity.
          826   unreasonableness requirement (a) garvity of harm outweighs utility of actor’s conduct. (b) harm
                   caused is serious and financial burden or compensation for this and similar harms to others
                   wouldn’t make continuation of conduct unfeasible
         829(a)gravity of invasion outweighs its utility( and hence is unreasonable under 826) whenever harm is
                    both substantial and greater than P should be able to bear without compensation.
         827     Gravity of harm factors: (a) extent of harm, (b) character of harm, (c) social value of conduct.
                    (d) suitability of particular use or enjoyment invaded to character of locality, and (e) burden on
                    person harmed of avoiding the harm.
         828     Utility of conduct factors; (a) social value that law attaches to the primary purpose of conduct,
                    (b) suitability of the conduct to the caharcter of the locality, and (c) impracticability of 
                    preventing or avoiding the invasion.
  
   1. Rogers v. Elliot (Supp, 585)
       D, Psycho reverend bell ringer causes harm to abnormally sensitive P.
       Nuisance measured by what would be objectionable to reasonable person.

STRICT PRODUCTS LIABILITY

I. Establishing The Tort

   A. Escola v. Coca Cola Bottling Co. of Fresno (CB, 479)
        Plaintiff by injured exploding coke bottle in hand. Court held D liable taking products liability out of 
        negligence and into SL through res ipsa loquitur. MAJORITY: Bottles don't ususlly explode unless
        lack of due care by manufacturer so res ipsa loquitur as due care and exclusive control therefore strict
        liability regarless of res ipsa loquitur. Based on MacPherson v. Buick CARDOZO - negligence basic 
        idea was manufacturer liability so extend strict liability.  TEST: defect + injury + privity = strict liability.
        POLICY: (1) cheapest cost avoider (who can avoid accidents? manufacturers) (2)(\ deterrence, (3) loss 
        spread. REASONING: Social conditions have changed to such a degree that old categories of negligence,
        contract, etc, are outmoded. STRICT LIABILITY FOR FOOD CASES (stupid consumers)
    
        Why not res ipsa loquitur?  What of warranty doctrine as basis for strict laibility in tort? (Only in
        food cases until 1960)
           
   B. Henningsen v. Bloomfield Motor, Inc. (CB, 483)
        Defective steering mechanism causes car to spin out of control injuring driver. Court echoed TRAYNOR.
        D strictly liable as implied warranty that product reasonably suitable and safe for activity designed for.
        Warranty breach is really is really torts case, not contract. STRICT PRODUCT LIABILITY EXPANDED
        TO CARS

   C. Greenman v. Yuba Power Poducts, Inc. (CB, 484)
        P’s wife bought Shopsmith power tool product made by D, while using as lathe(with attachment) wood
        struck P in the head) TRAYNOR: Warranty notice requirements to tell manufacture within time period 
        don’t apply as no provity so P likely unaware of obligations under warranty.

   D. Vandermark v. Ford Motor Co. (CB, 484)
        P bought new Ford truck from retailer, brakes locked, causing car to pull to right and hit pole.
        TRAYNOR: Ford’s warranty and delegating final inspection to retailer doesn’t insulate manufacturer
        from liabilities arising from manufacturer defect.

II. Clarification (Proper Ps and Ds)

   A. Bystanders:  Elmore v. American Motors Corp. (CB, 485)
         P purchased Rambler manufactured by D1 and sold by D2, Rambler veered across the road and into 
         another car. RULE: bysatnders entitled to smae strict liability protection as immediate P. POLICY:
         Consumer has choice, but bysatender has no choice.

   B. Bailors and Lessors:
        Price v. Shell Oil Co. (CB, 486)
        D leased gasoline tank trunk with defective ladder to P who was injured when ladder collapsed.
        No diif, between mau or retailer who puts article in market and has bailor and lessor who accomplishes
        same result though lease.
        Stilles v. Batavia Atomia Horseshoes (CB, 484)
        No strict liability where D used punch press where D maked horeshoes not punch presses.
        RULE: Incidental transactions do not count.

   C. Used Goods: Tillman v. Vance Equipment Co. (CB, 486)
        POLICY: (1) spread risk, (2) staisfy buyer expectations(which are different with used goods dealers), and 
        3.) risk reduction. Courts less willing to impose strict liability on seller of used goods.

   D. Landlords:
        Becker v. IRM Corp. (CB, 487)
        T hurt by showed door which has defective at time D purchased building. CA extended strict liability to
        landlord who was laible for harm to T due to defective premises.
        Peterson v. Superior Court (CB, 487)
        Guest slipped in defective bathtub at hotel. No strict liability. OVERRULED Becker. REASONING:
        Defects may have ben created b others, manufacturer contractor. Strictly Liability against manufacturer.
        \Negligence against hotel owner and/or landowner.

   E. Financiers:
        Nath v. National Equipment Leasing Corp. (CB, 487)
        P worker’s hand injured in machine employer leased. MAJORITY: Those who finance commercial 
        transactions become “lessors”  POLICY: (1) party merely financing transaction so has no control over its
        manufacture , (2_ purchaser, not yet financier, slects goods, (3) negative impact on financial institutions
        (financiers lack continius realtionship with upstream suppliers and thus cannot influence their conduct.
        DISSENT: Spreading loss better through finaciers as there are deep pockets. POLICY: (1) shift burden to 
        those whose business it is to traffic commerce and (2) lack of control irrelevant as strict liability imposed
        without reference to whethr causation caution was exercised or disregarded.
  
   F. Franchisors:
       Kosters v. Seven-Up Co. (CB, 488)
       P brings up carton of 7 Up to counbter, carton breaks, bottle flew out and hit P’s eyes,
       RULE: Franchisors may be held liable liable for defects in their products under some circumstances
       when sold at franchisee as franchisee cannot cahnge design(of carton).

   G. Successor Liability:
         GENERAL RULE: No sucessor lliability for goods not sold by sucessor.
             Example: A sells X and then A is bought by B, B never sold X so cannot be liable for defects in X
             as can not avoid furtur defects.
             EXCEPTION: (1) is purchasing company expressly or implicitly agreed to accept liability, (2) if 
             sucessor co. resulted from de facto merger rather than sale of assets, (3) if purchaser merely 
             continuation of seller corporation, or (4) if trabnscation waqs farudelent attmept to escape liability.

       MINORITY VIEW:  Ray v. Alad (CB, 488)
       Strict Liability allowed as (1) if not it will destrou P’s chance of remedy, (2) sucessor better loss spreader
       and (3) bought as for good will, if get good will , get bad.

    H. Contractor Liability:
         Non-Government
         Michalko v. Cooke Color & Chemical Corp. (CB, 488)
         P’s employer A contarcting with D for D to redesign of D’s 35 ton presses according to D’s drawing
         and specs. D failed to install safety devices or warn of known danger and P lost hand. RULE: 
         Manufacturer strictly liable and same as contractors so SL. POLICY:  (1) without would leave safety 
         product and investment to private marketplace, and (2) where commercial  marketplace does not 
         generate safety stimulus, courts can contribute to that end.
         Government
          Boyle v. United Technologies (CB, 489)
          P drowned in marine helicopter crash . RULE: Private contarctor following govt. specs not strictly
          liable as long as requirements are met. SCALIA RULE: Liability is not imposed when (1) U.S. approved 
          reasonably precise specs, (2) equipment confirmed to U.S. specs. , (3) supplier warned U.S. about danger
          in use of equipment that were known to supplier but not U.S.

III. Restatement (Second) (design defect) (CB, 490)
      - consumer contemaplation
      - “unreasonably dangerous”

    402A
    1. one who sells product in defective condition unreasonably dangerous to uers or consumer if
        a. seller engaged in business of selling such products
        b. expected to recah consumer without cahnge
    2. rule applies although
        a. seller has exercised all possible care in preparation and sale product.
        b. user or consumer has not brought product from or entered into any contractual realtion with seller.

   Escola mixed contract-tort heriatge of SL product liability.

   Restateemnt (Second)’s defibition of defective
    g.) defective condition is one not contemplated by ultimate consumer will be unreasonably dangerous to him.
    I.)  article must be dangerous to an extent beyond that which would be contemplated by ordianry consumer
         who purchased it with ordinary knowledge.
   
   Resatement (Third): \Product liability
    1 suppliers of products are alible for harm caused by product defects
    2  three type sof defects:  (a) manufcaturing defect: product m,anufactured is not what planeed on design
        defect, (b) design defect: product come sout way you wnated but defective design, and (c) inadequate
        instruction: if design dangerous product on purpose, but don’t give proper safety instruction.

IV. Defect
  
    A. Maufacturing Defect (CB, 492-493) Dfangers almost always latent, when falw becomes apparent (at trial)
         manufacture then SL.
         -Welge v. Planters Lifesavers (CB, 492)
          P hurt when galss jarfull of paenuts smashed as P tried to re-fasten plastic lid. Coudn’t tell
          what defect was. D’s MSJ denied. RULE: Seller who is subject to Strict product liability is responsible 
          foe consequences of selling defective product even if defect was introduced without fault on his part
          or his supplier’s supplier.
         -Price v. General Motors Corp. (CB, 493)  
          P’s car swverved uncontrollably into pole and destroyed.  D’s MSJ not allowed. REASONING: P
          coudn’t rule oput problem was with maintenence of product, moreover not claer of parts in car were
          original parts.
         -Daniels v. GNB (CB, 493)
          P’s testimony about exploding auto battery and experts’ testimony was that description was consistent
          without product defect.
    
    B. Design Defect (CB, 493-495)

        1. Cronin v. J.B.E.Olson Corp. (CB, 493)
            Safety hasp in bakery truck broke during accident and threw P threw the windshield.  Appelaed 
            judgement for P on grounds Strict PROduct Liability requirements must be found “unreasonably
            dangerous.”  Whether CA would adapt “Unresoanbly dangerous” formulation of 402A.  Court held taht
            no “unresoanbly dangerous” language dropped as it rings of negligence. (TRAYNOR would be unhappy
            as logic in Escola did not want standard to ring of negligence because point was to move product 
            liability into strict liability out of negligence).

REJECTED UNRESAONABLY DANGEROUS

        2. Barker v. Lull Engineering Co. Inc. (CB, 494)
            P hurt when the high-lift loader he was operating overturned on a slope. Court reversed judgement for
            D as trial judge used “unreasonably dangerous language.”  Not negligence standard as jury’s focus is
            property directected to condition og roduct itself asnd not to reasonablensess of manufacturer’c conduct.
            D has burden of proving that it is not dangerous. Burden of oersuasion ids D’s (much like Escola’s
            presumption resting against D in negligence)
            TEST: (1) consumer contemplation and
                        (2) excessive preventable danger
                              a. gravity of danger (L)
                              b. likelihood danger would occur (P)
                              c. adverse cosequence resulting from alternative design (B)
            In CA use evudence under consumer sontemplation product use v. complexity of product and custom.
            Outside of everyday expectations.

        3. Soule v. General Motors Corp. (CB, 495)
            P injured when car collided with another vehicle due to defect in design allowing front wheel to
            smash through floorboard.  P argued any limitation on consumer expectations which contravenes
           Greenman’s purpose to aid hapless consumer.  Product Liability Advisory Council’s amicus brief 
           argues that needed to do away with consumer contemaplation test and as only need B>PL analysis for
           reasoning they argued that the consumer contemplation test (2) defies definition, (2) consumers
           have no knowledge; (3) allows injurie sto focus on individualP, (4) focuses on unstable subjectvie
           unreasonable opinion of consumer and (5) eliminates B>PL balancing. COURT held no as D 
          manufacturer, not insurer of products, but manufacturers are liable for defects in products when they
          cause injury. CALRIFYING Barker
        
        A. Burden: Risk benefit or Consumer Expectations
             Campbell v. General Motors Corp. (CB, 502)
             P thrown from bus seat as no grab bar.  Court: no need fpr expert. Ps couls show objective consditions
             os product and let jurors employ their own sense of whether product fullfills ordinary expectations as 
            to safety under the circumstances.
   
        B. Scope: 
             Morton v. Owens0Corning Fiberglass Corp.(Cb, 502)
             P insulation installer professional sued asbestos suppliers for injury.
             COURT: Consumer expectations test is apllicable as P working around asbestos and could form
             minimum expectations.

             Bresnahan v. Chrysler (CB, 502)
             P hurt when rear-ended by car at low speed. Ca offered both tests(Consumer expectations and B>PL)
             COURT held that P had a choice for tests as situation not complex amd murky as  was in Soule
 
        C. Bystander
             Ewen v. McLean Trucking Co. (CB, 503)
             P hit by truck where design of truck did not allow driver to see pedestrian. RULE: improper to
            extend consumer contemplation to bystander. POLICY: impoper to extend to everyone who
            might be affected by the product.

      4. Restatement (Third) (CB, 503)
          GOES beyond Soule and relies exclusively on risk benefit, eliminating consumer contemplation 
          (pro-bus slnat and economy) even though some states chose one, the other or both (CA chooses both)

     5. DESIGN DEFECT

         Camacho v. Honda Motor Co. (CB, 504)
         P in accident in motorcycle suffered severe leg injuries as no crash bars (tibis facture bars). D is not
         liable . RULE: Consumers should contemplate open and obvious defects in product, such as no crash 
         bars, when buying.  POLICY: even without consumer contemplation test thee is still contemplation w/ r
         respect to risk/benefit - open and obvious.
         Ortho Pharmaceutical Copr. v. Haeth (CB, 507)
         COST BENEFIT TEST:     
         1.) usefulness and desireability of product as a whole.
         2.) likelihood of injury
         3.) availability of substitute product that is more safe.
         4.) manufacturer’s ability to eliminate unsafe characteristics (B<PL)
         5.) user’s ability to avoid injury by using care.
         6.) user’s aniticipated awareness of dangers.
         7.) feasibility of loss spreading on manufacture’s part.

         Fitzpatrick v. Madonna (CB, 513)
         carelessly operated motor boat ran over swimmer. Court overturned jury verdict for P against manu.
         MAJORITY REASONS: to make motor safer would produce undesireable effects (reduced speed)
         or could produce graeter danger (Limbs wedged between protection and boat) and users would alter 
         making more dangerous just to get speed. DISSENT: Under risk/benefit, jury verdict should be
         upheld.

     6. Product Comparison

          A. Dyson v. General Motors Corp. (CB, 511)
               Court refused to hold hard top car defective as less protective than full frame sedan, but car should not
               be “appreciably less safe”.
         
          B. Dreisenstock (CB, 511)
               P passengers injured whne microbus carshed into tree,. design such that windshield hit tree and broke
               as small front end. Court held that while must compare similar products (Dyson), every automobile
               not need meet hihest standsatrds of the volvos or cadillacs. Diff. use of mircobus were the raesons it
               was les safe.
          C. Bittner v. American Honda Motor Co. (CB, 513)
               P hurt when 3 wheel all terrain vehicle overturned going around mowed grassy corner. COURT 
               COMPARE ATV with similar vehicles: snowmobiles, minibikes, trailbikes BUT NOT with
              similar activities: sky divingm skiing, scuba diving. EVIDENCE of high rate of injuery can show
              either (1) consumer knew danger of vehicle, or (2) higher rate of injury in product compared to others.
    
    7.  Alteration

       A. Minority View
            Jones v. Ryobi, Ltd. (CB, 516)
            P hurt in moving aprt of printing press. MAJORITY: product altered, saftey guard removed so fails
            under 402A. So D gets judgement as a matter of law. (Were alterations forseeable, does industry
            selling product have custom of manking modifications? DISSENT: Unresonably dangerous incorporates
            condition which aesirt to work if modified or very likely to modify on (1) needs of client base and (2)
            safety device hindered use of product.

      B. Majority View
           Piper v. Bear Medical Systems (CB, 520)
          P dies when relies on breathing vetilatory which is hooked up wrong as not easy to use modifications
          made to add bacterial filter. D admitted that economically feasible technology exist at the time that would
          have prevented harm, but argued that it need not adopt it because its machine was designed with parties
          that could not be misconnected so D’s knowledge about custom of modifications by client base irrelevant.
         Court disagreed. RULE: have duty if change is foreseeable. Majority View.

          Surgeon v. Julius Blum (CB, 521)
          Door hinginmg machine’s guard not on and injury results. COURT HELD modification was foreseeable
          as (1) easily removable safety device and (2) safet device hindered use of product.

       C.  Statutes
       
          - LaPlante v. American Honda Motor Co. (CB, 522)
            All terrain vehicle accident whne barkes faultu dues to overinfalted tires, and front brakes inoperable
            due to bent front forks. Lowe court refusal to let in D’s evidence of modifications causing problem under
            RI statute reversed. RI statute that D not liable for damages caused by substantial alterations to products
            to products held to apply to (1) deliberate cahnges and (2) inadequate maintenance.

     8. Uniformity
                            
        A. Dawson v. Chrysler Corp. (CB, 514)
             P crushed car when slid sideways off road and ito pole. Court ackwnoleges conflict between jury and
             Natioanl Trafiic and Motor Vehicle Safety Act design defect definitions. Court’s dicta noted that juries
             can not impose liability for defective design as unfair and inefecient ( wanted Congress to naote as the 
            Act had not overturned common law with staute).

       B.  Denny v. Ford Motor Co. (CB, 515)
             Bronco II rolled over. If want to get consumer contemplation instaed of risk/beenefit for SL from Tort
             into contrcat for breack of warranty of fitness ( as UCC focusing on consumer expectation was beyond
            judicial change.

       C. Tort Reform

Warning and Defects

 Introduction: A. Cooment J (Supp, 94): Court should take actual product as total pacakge.
                       B. Warning Types: (1) reducing risk (safety warnings); and (2) intrinsic (can’t reduce but give
                        notice). 
  
       I. Risk Reduction

            A. Jury

              1. Hahn v. Sterling Drug, Inc. (CB, 522)
                  P’s 4 yr. old ingested less