INTENTIONAL TORTS Battery Intent to contact or substantial certainty that the contact will result from the action

n o If there is no intent, must be near certainty that it will be occur to be liable o If there is intent, liable Contact occurs that is harmful or offensiveA Harmful = unconsented to Whether contact is or is not ordinarily to be expected under the circumstances (Vosburg v. Putney) Transferred intent: particular target of the defendants intentions is irrelevant

Issues: Cases

Protects physical security, personal autonomy and dignity Autonomy: Right to immunity from physical interference (Mohr)

Vosburg v. Puttney (kicking in classroom) Garratt v. Daily (pulling out chair) Mohr v. Williams (ear operation)

Assault Intent to cause a battery or threaten one Puts plaintiff in apprehension of an imminent harmful or offensive contact o Apprehension = anticipation of contact o Imminent Immediate in terms of time (not Ill do it later) Close in terms of space (not over the phone) Actual rather than potential (not if then) Not liable for extra-sensitive plaintiff if the making of the threats would not satisfy the demands of the tort of assault if made to a typical person

Intentional Infliction of Emotional Distress Issues Dont want to radically expand liability; invite fraudulent claims Difficultly of line drawing o Whats outrageous? Extreme outrageousness of the conduct Severity of the distress

 Cases:

In tension with free speech Law is not good tool for addressing this issue

Wilkinson v. Downton (falsely told woman that husband had been severely injured) Defenses Consent If there is consent, the conduct is not wrongful o Actual consent o Implied (in fact) o Would have consented o No chance/unable

Self Defense Issues Benefited defense cant be accepted o different perpsective of whats beneficial o only individual can say whats best for themselves o right to immunity from physical interference o slippery slope of taking action to help when unconsented Role of public policy o Hudson v. Craft protect young men from exploitation ct shouldnt undermine policy Purpose of SELF DEFENSE o Deterrence/harm prevention: might deter battery o Autonomy: shouldnt have to allow oneself to be hit o Natural instinct: law sometimes must recognize natural instinct o Implicit consent: attacker has implicitly consented to the risk Must reasonably believe that the use of physical force is necessary to prevent or repel an attack or imprisonment Objectively reasonable and honest mistake does excuse what would otherwise be tortious (Courvoisier thinks police is robber) Liable for injury caused by the use of unreasonable means or excessive force Equivalence Rule: D is privileged to defend himself with an equivalent amount of force Can use a certain amount of force to defend your property but not deadly (Bird v. Holbrook spring guns)

Cases

Hudson v. Craft: A promoter (3rd party) is liable where he conducts boxing matches or prize fights without a license and in violation of the statutory provisions regardless of the rights as between contestants. The consent of the combatants does not relieve him of that liability. Courvoisier v. Raymond: Self defense is justified when the circumstances are as to cause a reasonable man to believe that his life is in danger or that he is in danger of receiving great bodily harm and that it is necessary to use such force for protection Bird v. Holbrook: Unless adequate notices are posted, a spring gun cannot be used to protect property

Intentional Injury to Property Trespass to land Trespass to personal property Conversion (stealing) Issues Interference with right to possess and control property The way people live their lives may be influenced, sometimes even protected by, their property personal invasion Breach of someone elses real or personal property or interferes with right of possession Actionable without proof of actual damage

Defenses Necessity D has acted reasonably in damaging or destroying Ps property in order to avoid harm to himself or his property, but the risk of harm to P has not been created by the plaintiff

Private necessity Issues Sometimes you should be liable even if you did nothing wrong o Between two innocent parties, the one whom nature put at risk should bear the cost of saving himself or his property, rather than the owner of the property that does the saving Role of choice: if you intentionally choose to save your property at the expense of someone elses should you have to pay? YES Example of strict liability: disconnect between doing the right thing and still have to pay When there is a risk to one party or his property only and this party can reduce or eliminate that risk by damaging or destroying someone elses property Strict liability: you pay for the damage even though you did nothing wrong o D is liable to P for the damage done to Ps property Privilege is qualified/ conditional o Privilege is conditioned on the privileged partys later compensating the other party for using the latters property Should be proportionate to the need o Importance of the issue at stake

Cases

Fairness argument: Who should have to pay? o Person who benefited from destruction of others property o Person who chose to act Consequentialist: Discourages trespass unless necessary o Strict liability wont truly discourage someone from protecting their own more valuable property Incentive argument: Incentivize helping others without worry of loss of property Cost internalization: Balance cost of saved property vs. cost of damaged property o Incentive to compare the risk since you have to pay for whatever damage occurs o Threatening a party with liability gives that party the incentive to compare the cost of liability with the cost of alternatives that may avoid liability Puts burden on the party in the better position to compare the risk

Ploof v Putnam (D denied P use of safe mooring for his boat during a storm): Necessity justifies the entry upon the land of another Vincent v. Lake Erie (P sued for damages to its dock caused by D negligently keeping its boat tied to the dock): Public necessity may require the taking of private property for public purposes but our system of jurisprudence requires that compensation be made

Public necessity Strict liability should not apply o Privilege is absolute o Privilege of necessity is a compete defense to liability o D has the right to make use of Ps property without incurring liability for damage that results When there is a risk to the property of a sufficiently large number of people to make the risk public and that risk can be reduced or eliminated by damaging or destroying the property of P

INTENTIONAL INFLICTIONS OF EMOTIONAL DISTRESS Rule When a person suffered a physical harm that could be tied to emotional distress generally accepted as actionable When first step in the chain is emotional distress harder to find liability o Even harder if there is NO physical manifestation of the distress D has acted in a manner that intended to interfere with plaintiffs peace of mind Elements o Extremely outrageous conduct Beyond reasonable bounds of decency o Severity of Ps distress Duty not to risk emotional distress

Purpose/rational Very limited doctrine o Certain kind of harm that tort law wont help you with

Technical Aspects Issues Evolution of the rule Impact rule: required physical impact on Ps body o Mitchell v. Rochester (frightened by horses is not enough) Zone of danger rule: if P was in the zone in which physical injury was threatened, and feared for her own safety o Dulieu v. White & Sons Dillon rule: 3 factor guidelines to determine foreseeability of emotional harm o 3 factors proximity visibility relationship o Estalished in Dillon v. Legg Bright line rule o Thing v. La Chusa o Treats Dillon guidelines as test

Fear of future injury D has negligently exposed P to risk of suffering future injury (i.e. cancer) P is permitted under limited circumstances to recover damages resulting from fearing future injury o In most cases there is actual impact (drinking contaminated water)

 Cases

D could be liable for the actual injury that the P fears will occur in the future, when and if it occurs

Mitchell v. Rochester RR (pregnant P is frightened by horses pulling horse car, causing her to faint and ultimately to have a miscarriage): Proximate damages are ordinary and natural results of negligence charged and those that are usual, and may, therefore be expected Impact rule o Older case required actual contact/impact

Dulieiu v. White & Sons (P gave premature birth after being nearly run over): Rejected Mitchell and established zone of danger rule Rejection of impact requirement o Dont deny legitimate claims just bc there maybe false ones Job as ct is to sort out true from false o Emotional harm has physical component o Rule doesnt work b/c juries look for any slight physical harm to award for emotional distress Zone of danger rule o Actionable if distress/frightened by what you think is going to happen

Amaya (similar facts to Dillon v. Legg): Cant allow recovery outside zone of danger Too hard to draw a line Law cannot do this well so law should not do this

Dillon v. Legg (P saw her daughter get hit by Ds car): The zone of danger rule does not bar a recovery for negligent infliction of emotional distress where a close family member outside the zone views an accident causing an injury or death to another family member Facts of case show why zone of danger rule doesnt work. Although still accepted as rule in majority of jurisdictions Proximate cause argument: entirely foreseeable/natural/expected that mother will be distressed upon seeing child hit by car o Reason that speeding is negligent is trauma to witnesses/loved ones CT CAN draw lines: foreseeability guidelines Accepting legitimate claims is important Zone of danger rule is arbitrary and has no logic behind it o CONCERN: Cts guidelines in this case are more arbitrary Zone of danger is actually that you can recover for what happens to you not someone else

Thing v. La Chusa: Establishes bright line rule bc guidelines are useless

Rule o Closely related o Present at scene o Emotional distress

STRICT LIABILITY (History) Have to pay even if you were careful

Original Issues Fairness: innocent party shouldnt have to pay o Actor has chosen his conduct Deterrence Incentive

Formative Cases Thorns Case (trespass to recover thorn bushes): Even an innocent trespass on land is actionable Weaver v. Ward (militia and shooting practice): An actor is liable for injury directly caused by his act unless he can prove himself utterly without fault

NEGLIGENCE (evolution from strict liability) Response to strict liability Re: fairness what goes around comes around so just pay for your own damages o Kind of conduct thats fairly reciprocal o People are acting sensibly o as likely to cause as to suffer Re: deterrence dont want to deter people from doing whats necessary with care Encourage reasonable precautions Purpose of tort law is to encourage people to consider the risks and make smart decisions about safety If we hold people liable for random unforeseeable consequences then liability has no meaning Threatened liability for carelessness will make you be careful enough Cost internalization o Cost-benefit analysis Is action worth it? Role of risk

Cases Brown v. Kendall (separate dog fight and D accidentally struck P with a stick): If in the prosecution of a lawful act, the injury was unavoidable and the conduct of the defendant was free from blame, then no action can be supported for a resulting injury o Cant recover unless the person who injured you was not operating with due care negligent o Role of ordinary care Fletcher v. Rylands (Ps land was flooded when Ds reservoir leaked through an unknown abandoned mine) o Bramwell opinion: Where a partys actions unwittingly cause damage to the land of another he is liable regardless of negligence Right to be free from flooding WRONG: we dont want to hold people liable for random, unforeseeable consequences o Martin dissent: Injury to personal property is not actionable without fault/negligence o Blackburn: If a person brings anything onto his property which, if it escapes, might damage his neighbors property, he is responsible for all the damage that is the natural consequence of the escape Rule is strict liability when you bring something dangerous on your property that can be dangerous when it escapes and causes damage when that happens Limited strict liability

Should pay damages for probable/natural consequences Should anticipate and guard against take right precautions Holmes essay: advocate of negligence o Strict liability only makes sense in some cases o Cases of reciprocity negligence What goes around comes around o Positive externalities Dangerous but contributes to public good and not reciprocal in nature

NEGLIGENCE (roadmap) Negligence is the failure to exercise the care that would have been exercised by the reasonably prudent person under the circumstances Elements Duty: Duty to behave reasonably o Reasonable Person Test Standard does not take into account personal traits because would be too difficult to draw lines for each individual case, need for community expectations of reasonable behavior, role of reciprocity Limitations: children, handicapped, insane o Custom Standard of industry helps determine duty but not conclusive except in medical malpractice Standard not dispositive bc some cases where even standard is negligent not reasonable care under the circumstances In medical cases, jury is not in position to determine what standard should be o Negligence Per Se statute helps determine duty o Calculus of Risk whether to hold liable based on if the harm (likelihood of risk + magnitude of that risk) are greater than the cost of preventing the risk Way of determining reasonableness Breach: Breach of that duty o Res Ipsa Loquitur can prove negligence on circumstantial evidence when conduct would not have occurred unless there was negligence and you know who was in control of the instrumentalities Cause in fact o Must be but for cause, and if negligent but hard to prove causation judges still will go out of their way to get issue to jury. o Can be multiple causes that wrinkle but for like two negligent causes, or indefinite causes but usually assign joint and several liability Proximate cause o Proximate cause if causing that harm was a foreseeable result of negligent conduct Liable even if intervening causes when those are foreseeable/harm that makes you negligent Liable even if harm is worse than expected (thin skull) Liable for full consequences: same time/place o Connecting proximate cause and duty depends on the nature of the harm

Harm Damages

Defenses Assumption of Risk Contributory Negligence o Comparative negligence

Rule:

REASONABLE PERSON Behave reasonably according to the circumstances o Doesnt take into account personal faculty traits

Purpose/Rational Doesnt take into account personal incapacities or limitations BECAUSE o Administrative reasons: infinite level of gradations o Expectation: need for level of expectation from fellow man o Reciprocity: would undermine reciprocity Shared ability to come up to a standard o Risk of fraud and deception Incentive to mislead jury about strengths/weaknesses

Technical Aspects Children Held to adult standard for adult activities o Society expectations that participants in adult activities will be meeting adult standard for reasonable behavior

Issues Line drawing Might be hard to draw a line, but even harder to go case by case Cases Vaughan v. Menlove (haystack bursts into flames): The level of care is determined by what a reasonable, prudent person would do in the circumstances Reasonable person standard is a jury issue: one that jurors were likely to have had experience and a confident opinion

Roberts v. Ring (old man driving hits boy who he probably should have seen): If one by his acts or omissions cuases injury to others, his negligence is judged by the standard of care usually exercised by the ordinary prudent normal man Holding old man to reasonable person standard Different from child o Old person should know what he doesnt know

CALCULUS OF RISK Rule: When the cost of risking harm (probability)(magnitude) is greater than the cost of reducing the risk, the risky action is unreasonable. When the interest that must be sacrificed to reduce the risk (cost of safety precautions) is more than the risk of the harm (probability)(magnitude), then it is not unreasonable to take the risk o B(burden/risk)= P*L (probability of the harm of risk)(magnitude of harm) liability depends on whether the Burden (B) (cost of reducing or avoiding the risk) is less than P*L

Purpose To determine whether the conduct is justified based on societal demands, there must be balancing of social interest involved against the risk created by the conduct

Issues Economic dimension Economics curve The more you spend, the safer you become, but after a pt the increase in safety plateaus/becomes marginal Want everyone to take the right of level of care o Interested in lowering total societal cost not who pays Weakness of economic theory o Disregards the things that we cant count/measure If something has marginal social utility and marginal risk risk that negligence rule wont encourage you to take due care

Relation to strict liability Unlike negligence, in strict liability you care about who pays because the conduct/system is not reciprocal o Doing the harm intentionally Negligence and strict liability should BOTH lead to optimal behavior o Until you take due care strict liability o At point of due care no longer have to pay for risk, just the cost of precaution Utility curve (frequency of activity) o strict liability: only do a thing when its still useful o Negligence world: once you take precaution, you dont have to account for utility How to decide?

o Is it still dangerous even when youre careful? Untaken precaution Cooley v. Public Services Co. (electric lines case) Was there some precaution that was available, inexpensive and potentially effective?

Uncertainty of jury behavior Cases Blyth v. Birmingham Water Works (extraordinary frost causes pipes to freeze and flood Ps property): Negligence involves the creation of an unreasonable risk, by act or omission, which a reasonable and prudent man would not create Not negligence because risk was very unlikely Risk is a product of how likely + how big/bad Risk = P*L Will be too careful to ensure that youre past the line

Eckert v. Long Island RR (P saves child on rr tracks but dies in the process): It is not negligent to save the life of another unless attempt to do so is either rash or reckless Not negligent to jump in front of a train to save child o Comparing cost to risk

Osborne v. Montgomery (boy on bike hits car handle and is injured. Jury is instructed to take into account whether the social conduct justified the risk): To determine whether a risk is acceptable, the We do not want people to be as careful as possible in an absolute sense, we want people to balance the social interest involved against the risk created by the conduct

Cooley v. Public Service Co. (severe storm caused electrical wires to fall on telephone lines causing loud noise in Ps ear): Where danger of two classes of persons cannot be simultaneously guarded against, only the most immediate and injurious risk need be protected P says D should have taken precautionary measures D says that precaution would actually have caused worse harm to others

United States v. Carroll Towing (attendant of boat left it for 21 hrs, during which time the barge broke loose and sunk another boat): There is a duty of care to protect others from harm when the burden of taking adequate precautions is less than the product of probability of the resulting harm and the magnitude of the harm Learned Hand opinion

CUSTOM RULE Custom is some evidence but it is not conclusive (dispository) o Evidence that you have complied is some evidence for D o Evidence that you have fallen short of custom is strong evidence for P o But still NOT conclusive Issues What if company sets its own standards? o Challenges Company could adopt standard higher than custom, and ct wouldnt want to disincentivize by holding to higher standard in liability Could deter high standards if they could be used as evidence against you Why would a whole industry lag behind safety standards? o Industry might not have internal desire to change Monopoly no incentive o Might not know what could be done Epstein: Working relationship vs. no relationship o When there is a relationship between the parties, then defer to custom Parties likely to know what they right standard is Parties will work precautions into the deal to be most efficient Assuming relatively equal bargaining power Autonomy rule parties no best Consent arguemtn o When there it no a relationship dont defer to custom Parties did not negotiate the terms not in on the deal

Cases Titus v. Bradford (P was killed when broad-gauge boxcar that D had put on narrowgauge tracked tipped off its truck): Ordinary usage rule Custom = usual, custom way of doing business = due care (WRONG)

Mayhew v. Sullivan Mining Co. (D put hole in platform that P was working on in a mine. D argues that it should be allowed to present evidence regarding customary industry practices): Custom has no proper place in the definition of what constitutes ordinary care T.J. Hooper case (Tugboat lost its cargo after it failed to receive warnings of an approaching storm because it didnt have a radio.): Regardless of the custom of an industry or trade, D will be held liable if his actions fall beneath the standard of the average prudent man

Customary care CAN be due care, but it is NOT the test Pt is not whether its customary but whether its an efficient, cost-sensible precaution EXCEPTION: Medical Malpractice

RULE: Defer to what industry professionals say is standard of care Standard of care: what jury determines standard of care is based on expert testimony

PURPOSE/RATIONALE (why defer to drs?) Medical community has its own incentives to keep standards high Complex: jury would struggle to reason out medical evidence Plaintiff is a sympathetic party o Unfair to hold dr liable just because P is very sympathetic No one would want to or afford to be a dr Cost of seeing dr would be exponential Strict liability wouldnt work harm could or would have happened anyway o Holding liable when they didnt cause the harm o Problem with overdeterence defensive medicine

Technical Aspects Locality Rule o Cts used to hold that only a physical practicing in the community could provide testimony o Now increasing nationalization of medical standards o Two School doctrine/Respectable Minority Non-compliance with a standard rejected by much of the profession is not malpractice, as long as complied with a school of through or practice followed by a respectable minority

Cases Lama v. Borras (medical malpractice case): P alleged negligence on bases that D was negligient in failing to administer a conservative treatment program prior to surgery Helling v. Carey (dr didnt do glaucoma test on young patient) Decision rejected by medical community: o Not negligent because test leads to lots of false positives, requires additional testing expensive

CAUSE IN FACT Rule P has to prove cause in fact to have case o BUT FOR cause but for the negligence you wouldnt be suffering the harm for which you are suing P would not have been injured absent the tortious conduct of D o enough evidence for jury to reasonably find that conduct caused harm Substantial factor test: In cases where there is no way to know for certain what caused Ps injury o Requirement that it be more probable than not that but-for Ds negligence, the accident would not have occurred Framework of cause in fact o One negligently causes harm liable o Negligent but NOT but for cause not liable o Negligent and MIGHT have caused the harm in general P loses but some exceptions Herkovitz Can be complicated factual issue but not conceptual There can be lot of but for causes o Just has to be A but for cause

Purpose: Impossible to compensate everyone that is put at risk by others negligence conduct o Need causation requirement Expediency Pt is to deter unreasonable behavior and give potential injurers the incentive to compare the amount of liability that they anticipate they will incur from taking a particular risk with the cost of reducing that risk by taking safety precautions o Causation requirement communicates to D in advance the scope of liability it will face

Technical Aspects Multiple Causes 2 causes, each negligent, each sufficient but NOT each but for cause still both liable o Two negligently set fires reach house at same time (Kingston v. Chicago & NW Ry) Either alone would be sufficient to destroy house No but for cause but still both Ds are held liable Each was a substantial factor

Prefer overdeterrence to underdeterrence 2 causes but only one negligent liable o but for test not satisfied but still liable o Will slightly overdeter since it will give parties the incentive to take precautions against harms that will occasionally occur anyway because of a simultaneous non-negligent cause

Joint and Several Liability Definition o Each is liable to P as if he were the sole wrongdoer, responsible for the entirety of Ps damages o P is entitled to recover the full amount of his damages from either defendant Purpose o Protection against insolvent D o Places risk of any Ds insolvency on the other D rather than P o Preferable for Ds to bear the risk that one of their number cant pay its share 2+ Ds who are each negligent and each cause separate harm o each liable o apportionment o when you can sort out who caused what 2+ Ds who each act negligently with one indivisible harm confluence of 2 conducts caused the harm o Joint and several liability Several can sue either one Joint D can collect from other Ds for their portion o Although neither alone would have been but for cause, there is no way to pinpoint the extent of Ds causal responsibility for Ps harm so joint and severally liable 2+ Ds who act together negligently to cause harm joint and several liability o purposefully conspire/cooperate

Indeterminate Causes When P is clearly injured by tortious conduct but cant prove which of several possible Ds was more probably than not the actual cause of his or her injury Issues Fudging close cause in factually close causes get the case to jury o Why?

Even if negligence possibly didnt cause harm still seems more fair to charge party that was negligent instead of the innocent party Problems with finding liability without cause in fact o Overdeterence: If held liable for things you do even if you werent wrong deter people from doing useful things o Risk that people will take excess precaution risk we can live with Relation to burden of proof o Intersection of substantive law/procedure/evidence o What you have to show to prove your case When negligence causes more likelihood of harm Substantial Factor test o Reynolds v. Texas and Paciffic Ry Co (heavy woman falls while rushing up unlit stairs) Harm could have happened anyways, but court held that if P proves negligence greatly multiplied the chances of the accident causation Role of expert testimony o Daubert v. Merrell Dow Pharmaceutical

Cases New York Central RR v. Grimstand (man goes overboard who doesnt know how to swim, boat not equipped with life-preservers, man drowns): A negligent party is liable only for those damages, which were actually caused by his negligence Haft v. Lone Palm Hotel (P drowns in pool where there is no lifeguard and no warning sigh): D is liable bc lack of evidence is Ds fault failure to provide lifeguard Circumstances shift burden of proof on the issue of causation to D WRONG: shifting burden later rejected

Zuchowicz v. United States (P says overdose prescription of Danocrine caused her to develop primary pulmonary hypertension): Where a negligent act increases the chances that a particular type of accident would occur, and such an accident does in fact occur, a court may conclude that the negligent conduct was the cause of the injury Clear that drug caused disease but NOT clear that overdoes (negligent conduct) caused the illness Role of increasing chances o Increased the chances that a particular type of accident would occur and mishap of that very sort did happen enough to get the case to jury

o Kind of reasoning suggests that proving negligence tends to prove causation at least where an act is negligent precisely because it greatly increases the chance of causing harm Daubert v. Merrell Dow Pharmaceuticals (Bendectin alleged to cause birth defects): Rejected traditional Frye test allowing only expert testimony that had been generally accepted as reliable by the scientific community Issue of expert witnesses and standard of admissibility of expert testimony Ct specified the standards that the trial courts should employ to exercise their gatekeeping role in ruling on the admissibility of scientific expert testimony o Take into account not only general acceptance of theory but also whether the theory has been tested, peer reviewed, published

Kingston v. Chicago & NW Ry (sparks from a train united with a fire of unknown origin to destroy Ps property): A party causing a fire which unites with another man-made fire is liable for all damages caused by the united fires Distinguish from naturally caused fire (not negligence)

Herskovitz v. Group Health Cooperative (P dies of lung cancer after his chances of survival were reduced by Ds late diagnosis): Ds conduct that increases the risk of death by decreasing the chances of survival is sufficient to take the issue of proximate cause to the jury P was more likely than not to die regardless of delayed diagnosis Chances of survival are reduced by the negligent actions of D but already only 39% chance of survival Cant say that but for Ds negligence P would more probably than not have surived Ct still says there can be a recovery, liable for reduction in Ps chances of surviving Different from Zuchowitz because harm would have happened anyway Lost Chance Cases o Want damanages for loss of full life not just the shorter lifespan compared to early diagnosis Dont compensate for risk Issues o Deals with situtation where D is never liable because he is recurrently negligent but his negligence is never more probably than not the cause of Ps harm If no liability for drs whenever patient is more likely to die than not: No incentive to be careful with fatal patients Under-deterence for drs with patients less likely to surive

o Dr would get off all the time If liability anytime they reduce chance of survival overdeterrence Prefer a little overdeterrence to under-deterrence o Chance has value Sindell Case (daughters of women who took DDS while pregnant, got cancer in adult. Allege manufacturer of negligence for not manufacturing but dont know which manufacturer): Market share liability Market share liability o Pay percentage of damages corresponding to your share of the market o No individual P can identify which manufacturer produced the DES that her mother had taken Only works in very specfic type of cases o Has to be disease that could only be caused by this one drug (factor o Chemically identical substance produced by different Ds o Available market share data Concerns o Usually not possible to sue all possible defendants Some have gone out of business, etc o Wrong is not necessarily corrected by party who wrong the plaintiff o Not clear which is the relevant mark: national, state or local? Benefits o Deterrence: each D pays what it should

Summers v. Tice (2 hunters negligently shot in Ps direction and shot shot struck Ps eye, who sued both hunters): When two or more persons by their acts are possibly the sole cause of a harm, and P has introduced evidence that one of the 2 persons is responsible than D has the burden ofproving that the other person was the sole cause of the harm Each D was as probably as not the but-for case of injury but not more probably than not the cuase Ct: burden shifts to each of Ds to disprove that he had caused the harm

PROXIMATE CAUSE Rule Connecting proximate cause and duty depends on the nature of the harm o Palsgraf (foreseeability of the harm to the person actually injured duty to who matters)

Purpose To only impose liability in cases where it will meet the purpose of tort law: encourage caution and incentivize people to do the right o Liability at some point would just be pointless when harm is too remote Limitation on the scope of liability

Technical Aspects Intervening Causes subsequent acts of independent 3rd parties or forces are the immediate cuase of the harm that results from the original negligence of D Doesnt prevent liability if the intervening conduct that caused the harm was the type of conduct that made you negligent Role of foreseeability o Ps reaction to danger/negligence is foreseeable and actually the harm that negligence risked Wagerner v. International Ry (P tries to rescue cousin in train accident and is hurt) o Harm is foreseeable even though caused by 3rd party liable Brower v. New York Central (thieves steal from cart that train hits when P is too disoriented from crash to protect belongings) o If not foreseeable superseding cause not liable Role of intentionality o If 3rd party acts with intentional malicious and in an unforeseeable D not liable Watson v. Kentucky bridge (employee lighting gasoline leak) Cant reasonably anticipate malicious crime

Full consequences D if negligent, is liable for the FULL consequences of the negligent act o Marshall v. Nugent (P hit when directing traffic due to Ds accident) Unforeseeable manner of harm o Union Pipe v. Allbritton (factory fire case)

Foreseeability test

RULE: Proximate cuase of the harm if causing that harm was a foreseeable result of the conduct Ps reaction to danger/negligence is foreseeable and actually the harm that negligence risked o Wagerner v. International Ry (P tries to rescue cousin in train accident and is hurt) Harm is foreseeable even though caused by 3rd party liable o Brower v. New York Central (thieves steal from cart that train hits when P is too disoriented from crash to protect belongings) If harm is way worse than expected liable o In re Polemis (P drops plank which causes ship to sink) Spark could not reasonably have been anticipated from falling of the plank, though some damage to ship might reasonably have been anticipated o thin skull rule Purpose Practical concerns: P would have to prove what a normal amount of injury underthe circumstances would have been Desireable kind of strict liability: D should be taking into account thin-skulled P o Promote optimal deterence Unforeseeable plaintiffs: Whether the harm to a particular P or class of those in his position was a foreseeable result of Ds negligence o Palsgraf case Are these the type of risks we want D to take into account in deciding whether to undertake conduct

Coincidence v. Causation Not liable when harm is coincidental and not the type of harm that made conduct negligent o Berry v. Sugar Notch (speeding and tree falls) o Train misses station, P stays in hotel that catches on fire

Issues Why is remoteness/proximity a concern? Line-drawing problem: where do we draw the line Fairness argument Burdensome: No one could support liability for negligently burning down a whole city

Why we need to draw a line

Need to rule out unforeseeable harms o If really unforeseeable/outside control tort law no place in that context o Liability for unforeseeable harms wont encourage reasonablness or punish carelessness. Doesnt meet the purpose of tort law o People can more cheaply efficiently insure ourselves Stuff happens to everybody o Purpose of negligence liability is to do some good, encourage caution and incentivize people to do the right thing At some point liability would just be pointless when too remote

Cases Ryan v. New York Central RR (Ps house was destroyed by a fire which started when a spark from Ds train engine ignited a wood shed. The fire spread through several house before reaching Ps): Damages can be awarded only when the injury is immediate and not the remote result of Ds negligence Old case and holding is probably wrong Holding that only owner of shed could recover But addresses the concerns connecting liability and causation

Berry v. Sugar Notch Borough (While driving over the speed limit P was injured when a tree was blown down and feel on the roof. P argued D was negligent in not cutting down diseased tree.): A persons right to recover for injuries caused by the negligence of noather is not automatically precluded because he was violating some ordinance at the time he was injured. Distinction between causation and coincidence What is the relation between the negligence and the harm? o Falling trees is NOT the risk that speed limits are designed to protect drivers from o Speeding didng increase the risk of the accident

Cases where train leaves P in wrong place Train leaves P in wrong place and then P is sexually assaulted on walk home liable o The harm (risk of assault) is the reason why youre not supposed to leave passengers in the wrong place at night Train misses Ps stop and takes her to a hotel to spend the night which catches on fire from a kerosene fire NOT liable o Coincidence o Thats not the reason youre not supposed to leave people at the wrong station

Brower v. New York Central & HRR (Ds train hits Ps cart at a crossing. The stunned driver was unable to prevent bystanders from stealing items that the cart had been carrying.): A negligent party is liable for harm caused by the intervening acts of a third person if that persons acts should have been foreseen Intervening cause issue o Intervening cause is foreseeable and one of the harms that makes conduct negligent

Wagner v. International Ry. (Ps cousin was thrown from train car. P went searching for his cousins body and was himself injured.): A party whose negligence has caused harm or the risk thereof is liable to all persons who are injured in the course of reasonable rescue attempts. Rescue is the foreseeable conduct and injury to rescuer IS the harm Danger invites resuce

Watson v. Kentucky & Indiana Bridge (tank containing gasoline derailed, leaked gas, and disgruntled employee threw a match on it): If 3rd party acted maliciously then D is not liable D cant reasonably anticipate malicious crimes

In Re Polemis & Furness, Withy & Co (P dropped a plank into a hold where benzine was stored, causing the ship to burn entirely and sink.): Once the negligence of a party has been established, he may be held liable for all the consequences, foreseeable or not, of his conduct WRONG: foreseeability does not matter 2 right principles o Dont get off the hook just b/c harm is worse than you expect o Distinction between tort and contract

Palsgraf v. Long Island RR (P was waiting on train platform and injured when RR employee helped a passenger aboard a moving train, josting his package, cauting it to fall on the tracks. The package, containing fireworks, exploded causing a shock which tipped a scale on P.): The risk reasonably to be perceived defines the duty to be obeyed Cordozo opinion: Question is not proximate cause but duty/breach o Negligence is a term of relation negligent TO someone Subjecting someone to unreasonable risk Relationship must be based upon the foreseeability of harm to the person who is, in fact, injured o Not the kind of harm, the foreseeability of which makes the conduct negligent There must be a duty to the injured party that could have been averted or avoided by observance of the duty

The risk reasonably to be perceived defines the duty to be obeyed RR did owe duty to P to exercise reasonable care to avoid riskin foreseeable injury to her, but since as amatter of law no injury to her was foreseeable, that duty was not breached. Andrews opinion: Negligence is itself a wrong o Each person owes a duty of due care to society at large

Marshall v. Nugent (P was struck by a car as he was attempting to warn oncoming traffic that Ds truck was blocking traffic. P argues D is negligent and D argues that negligence was not the proximate cause of the injury): D remains liable for the full consequences of his negligent act when the intervening force is one which a reasonable man would have foreseen as likely to occur under the circumstances Foreseeability is a jury issue Full consequences: As long as P was injured at roughtly the same time and in roughly the same place as was foreseeable, it is not necessary that the precise manner in which injury took place have been foreseeable

Union Pipe Co. v. Allbritton (Fire in factory, and after extinguished P falls walking on pipe rack that was wet from fighting fire) Majority opinion says injuries are too remotely connected to fire Dissent: The forces generated by the fire in question had NOT come to rest o Emergency situation was contiuing

NEGLIGENCE PER SE Rule unexcused violation of a statute desgined to promote safety is negligence per se (negligence as matter of law) o Is this the calss of persons that statute protects? o Is the the kind of harm against which the statute was intended to protect/guard

Purpose Why defer to statute? o Issue has already been thought through (by legislative body) Use standard to establish appropriate standard of care NOT create claim Statute can determine that there IS legal duty o Factual question of how safe you have to be Highlights connection between duty, proximate cause and harm

Technical Elements Excuses Necessity (Telda v. Ellman) o Compliance with statute would involve a greater risk of harm than violation

Examples Leaving keys in car cases o Harm is real: when given opportunity thieves steal cars reckless driving cause injury o If harm that came about is the same harm that the statute intends to protect then lack of proximate cause is not a defense Dram shop cases (providers of alcohol) o Statute: bars shall not continue to sell alcohol to visibly inebriated clients o 3rd party injured by drunk driver and wants to argue that stuate helps case Argument for bartender: real cause is the drunk driver not bar Sets standard for shifting blame Encouraging litigiousness Symbolically bad Unfair: Difficult and burdensome on the bar Other tools to enforce the statute other than tort law Would overdue cost internalization: charging them for harm that would have happened anyways Argument for P: statute was designed for exactly this purpose

o All relates to legal duty: is this a good thing for tort law to deal with? Cases Telda v. Ellman (walking on far right hand side instead of left hand side required by statute) Statute which codified custom should be understood as including exception that was part of that custom Defense = compliance with statute is more dangerous than non-compliance Look to statute to establish standard if harm was the kind against which the statute was intended to guard against

Brown v. Shyne (P became paralyzed after chiropractic tratment by D, who was unlicensed): A licensing statute intended to protect the public against incompetent practitioners creates no liability against an unlicensed practitioner unless he is in fact shown to be incompetent) Not liable unless breach (failure to comply with standard) was the cause of the harm If breach is not getting license before practicing skilled chiropractory no action

RES IPSA LOQUITOR Rule Doctrine confirming that circumstantial of this particular sort will support a jury verdict that D was negligent in some undetermined way Requires: o Something happens that doesnt usually happen unless someone was negligent o Instrumentality was under the exclusive control of D (Colmenares Vivas v. Sun Alliance Insurance Co) Some evidence of who was negligent Short hand for simple rule of circumstantial evidence

Purpose Helps P deal with stonewalling (where P clearly doesnt know what happened an D probably does know anesthesia case) Helps P get to a D that they can find and indentify Forces D to speak up (although NOT technically shifting burden of production) o Incentivizes D to come up with explanations

Examples Hotel cases o Chair thrown out of window Accident does not equal evidence of negligence because hotel cant control guest behavior o Guests partying at hotel Accident is evidence because hotel is responsible for guests

Cases Byrne v Boadle (While P was walking along the street, passing Ds shop, a barrel fell from the shop window and struck P): When it is highly probable than injury is due to the negligence of D, and D has better access to the evidence concerning the injury, the doctrine of res ipsa loquitur creates an inferences that D was negligent and puts the burden on D to introduce contrary evidence Colmenares Vivas v. Sun Alliance Insurance Co. (P suffered injuries while riding an escalator insured by D): The control requirement of the doctrine of res ipsa loquitur is satisfied where the defendant is ultimately responsible for the agent or instrument causing the injury Issue of exclusive control o D tries defense that he was not the only one responsible for maintaince

Issue of respondant superior o Employer is responsible for negligence of employees Indepdent contractors: not liable except for non-delegable duties public holds you responsible for safety Because its their escalator in their building thats used by the public, D is in exclusive control and has duty to maintain

Ybarra v. Spangard (P is put under anthesia for surgery for appendicitis and awakens with shoulder pain developed paralysis. But P doesnt know who involved in the surgery is responsible): Res Ipsa should be treated as a simple rule of circumstantial evidence and can be applicable in this case

NEGLIGENCE DEFENSES Contributory Negligence Rule Failure of P to exercise reasonable care to protect himself or his property from the risk of harm D bears burden of pleading and proving the facts necessary to support the defense o Must prove that conduct was negligent and that such conduct was the cause-in-fact/proximate cause of the injury o Attempts to prove P breached a duty to himself

Purpose/Rationale Why does the rule make sense? Fairness: all or nothing because hard to divide up fault o Unfair to give all the fault to someone who wasnt entirely at fault o Misbehaving yourself, you shouldnt be abole to complain about someone else Encourages good behavior (deterrence, cost-effective precautions) o COUNTER: going to look out for yourself anyways Reciprocity implies social contract that others will be acting reasonably too

Cases

Butterfield v. Forrester (P was riding very fast on the road, did not see pole D had put up and ran into it): A plaintiff wil not be able to recover where his lack of due care contributed to the occurrence of the accident If P hadnt been speeding the harm probably could have been avoided speeding was a cause of the accident

Beems v. Chicago, Rock Island & Peoria, RR (P, a brakeman, died in accident when his signal to slow train down was disregarded. D argues that P was contributrily negligent in attempting to uncouple the cars while the train was moving at an usual rate of speed): The lack of contributory negligence on the part of the plaintiff renders the negligent defendant completely liable P had reasonable expectation that they would slow the train down on his signal o Cant be negligent right to expect people will behave reasonably

Gyerman v. U.S. Lines Co. (case of negligently stacked sacks. P injured while unloading sacks which he knows are unsafely stacked): Contributory negligence is conduct on the part of P which falls below the standard to which he should conform

for his own protection, and which is a legally contributing causal connection with the negeligence of D in bringing about Ps harm Judge finds P negligent in failing to stop work in the face of a known danger o WRONG: defense usually rejected for employee/employer because you cant expect employee to stop working No choice

Exceptions Safety Statute Many courts hold that when Ds negligence consisted of the breach of a statute designed specifically to protect a class of persons unable to protect themselves against Ds negligence contributory negligence of a member of the protected class is not a bar to recovery Scaffold Law cases Scaffold law designed to protect workmen who by their employment must use ladders and scaffolds Small piece of strict liability o Protected class of people o When theres a statute with the purpose to protect a class of people vulnerable to expoitation, were not going to let you off the hook for succeeding in exploiting them o Statute trying to solve a social problem ct shouldnt undermine Social problem: easy for employer to convince people to take dangerous jobs o This is the kind of harm the statute was designed to prevent

Custodial Care Cases Padula v. State (poisoned Tang case. Door negligently left unlocked to Rehabs printing room. Inmates mixed ditto fluid with Tang): Held that actions done under an irrestable impulse, even without specific proof of a mental disease, do not sever causal connection o Hesitancy to grant contributory negligenc defense in these cases Not negligent no control o If the very risk we decided made an action negligent happens no contributory negligence defense

Comparative Negligence Rule o Doctrine whereby the court in assessing the apprpriate measure of damages compares the relative fault of the parties and reduces the amount of damages to be collected by P in proportion to his degree of fault

Technical Aspects Three forms of comparative negligence o Pure system: Ps negligence is never a complete bar to recovery o Modified System System where injured party can only recover if his negligence is less than the tort feasors System where the injured party can only recover if his negligence is less than or equal to the tortfeasors Means that a small variation in the amount of negligence attributed to P can mean the difference between a substantial recovery and none at al Challenges/practical difficulties o Cases involving multiple parties o Problem of dividing fault difficult but not impossible Guidelines Special verdicts

Purpose/rational Fairness argument: necessary so that responsibility for damage be proportioned according to fault o No one should be allowed to escape liability for his negligence Juries were probably using under-the-table comparative negligence anyways

Cases Li v. Yellow Cab Co. of California (P was injured in an auto accident with cab driver, but denied any compensation for her injuries because of her own contributory negligence): In California, contributory negligence is replaced with a system of pure, comparative negligence liability for negligently caused damage is assigned in direct propertion to the amount of negligence of the involved parties o Necessary for fairness, justice old doctrine fails to distribute responsibility in propertion to fault o Chooses pure form of comparative negligence o Ct: alternatives just lowers the bar of contributory negligence and still has problems of unfair complete bar Assumption of Risk Rule Express assumption of Risk: individual contractually agrees in advance to waive his or her right to bring a tort action against a potential injurer o Exculpatory clauses

No duty of care breached by the defendant (NOT negligent) P always and necessarily assumes the risk that he will be non-negligently injured o Another way of saying that there is no liability if D did not breach a duty of care to P o Often the holding in these cases that D was not negligent turns on: Openness of the risk Voluntariness of Ps participation Reasonableness of the risks posed by the activity in light of its benefits Form of contributory negligence: o Ps conscience taking of an unreasonable risk defense to negligence claim Non-negligent risk taking (saving baby on train tracks) NOT a defense to negligence claim o P con

Purpose/Rationale Why a good rule? Sometimes youve already been compensated for that risk (employment) Autonomy: if you know the risk, individual is best able to decide whether to take it (weighing cost-benefit efficiency) o Responsibility on the person who decides to assume risk o Not for jury to decide reasonableness of every decision that has a raisk Sometimes P is in a better position than D to decide whether to risk being injured by Ds negligence of not to do so

Technical Aspects Warnings Makes it easier to point to knowing and willing assumption of rsik, but signs dont change the law

Waivers Defense of assumption of risk getting customers to sign waivers o Easier for D to argue that we agreed that the conduct is reasonable VALID when entered knowingly and voluntarily, although waivers that do not satisfy these requirements may be invalid. Tunkl v. Regents of University of California (definition of whether an exculpatory agreement violates public policy) o Signing of waiver might not really be knowing/voluntary Agreement to assume the risk of negligence doesnt make sense o Could mean: promise not to sue even if you are unreasonable and negligent against public policy

o Could mean: waiving suit to all reasonable accident occurances thats already the law If youre specific about each risk more likely to help D o But if agreement is too long, etc could be unenforceable (couldnt have been really knowing and voluntary) If what really matters is whether something is reasonable or not waiver doesnt make a difference o Assumption of risk relates to whether duty exists o Agreement ahead of time about the duty and standard

Issues Relation to comparative/contributory negligence Properly understood we dont need doctrine of assume of risk o Contributory negligent (secondary assumption of risk) o Person wasnt negligent to you (primary) No breach of duty Flopper case D wasnt negligent o Acted reasonably under the circumstances o Complete bar to recovery

Consent Cases Lamson v. American Axe & Tool Co. (hatchet painter case. P was employed to paint hatchets, and worked under hanging hatchets that were jarred frequently be nearby machinery. P complained to D who did nothing and was injured by a falling hatchet.): A person cannot recover for negligently inflicted injuries when he has acted to assume the risk of such injuries Court: If you knowingly and willingly accept risk for some reason of your own cant sue if the risk comes to fruition Role of employee/employer courts hesitate to grant assumption of risk defense o Not fully voluntary o Holmes: things done for motive of earning money dont always negate voluntariness Assumption of risk is the consent argument applied to negligence

Muurphy v. Steeplechase Amusement Co. (flopper case. P was injured when he fell while riding an amusemet ride The Flopper which was a moving belt that ran up an inclined plane and caused people to fall on padded walls and flooring): one who takes part in a sport accepts the dangers that inhere in it insofar as they are obvious

and necessary and they are not so serious as to justify the belief that precautions of some kind must have been taken to avert them. P knew what was going to happen and got on voluntarily knowingly and voluntarily assumed risk that transpired IF theres a malfunction/defect/accident didnt necessarily assume that risk

Exceptions Firemans rule The pay for the job is already the compensative for the danger it entails Risk premium

STRICT LIABILITY DOCTRINES (roadmap) Respondent superior employee is liable for negligence of employee o has to be in scope of employment detour v. frolic o Has to be employee (vs independent contractor) Someone employer has control over conduct o negligence not generally liable for intentional torts unless work environment is conducive to the risk/harm

Ultrahazardous Activities Animals: if know or should have known that animal was dangerous liable even if you took due care o Gehrts v. Betteen: not liable b/c took due care and no reason to know dog would bite Ultrahazardous activities o Restatement: Abnormally dangerous if the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised and the activity is not one of common usage o Role of appropriate location Want to incentivize putting activity where it will cause least harm o Role of positive externalities fireworks

Nuisance Nuisance is a substantial and unreasonable interference with the right of an owner or occupier of land to the use and enjoyment of the land o Substantial Ordinary person test: would this bother ordinary person Church bell case How severe? Kind of neighborhood? Statute? o Unreasonable Weighing the expected benefits of the conduct against their anticipated costs Intentional v unintentional o If you had notice and continue intentional and stricter liability Exception: aesthetic harms o Too subjective o Florida hotel case

Defenses o Coming to the nuisance Not determinative, just factor Dog breeding case o Duty to mitigate Have you tried to avoid the harm? Done all you can to mitigate the harm? o Public nuisance Affects Remedies o Injunction Economic disparity issue Cement company case o Damages

Vicarious Liability Respondent Superior Rule Employer is liable for the negligence of employee Liable only if conduct took place within scope of employment and actor is an employee

Purpose Incentive for employers to be careful? o Theyre liable even if theyre careful Cost internalization internalize cost/risk and decrease risky activity o Marginal utility o Spread the cost Fairness argument: innocent 3rd party shouldnt have to pay. o More fair for employer to pay o Employee is more likely to be insolvent o The one making the profit should pay o Deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities Incentivize incentive to come up with more precautions or take due care o Company in the better position to think/innovate o Incentivize innovation Reduce the proof burden on P where it is hard to know which employee was negligent Reciprocity doesnt necessarily apply in these cases o Kind of risk not typically imposed on other o Employment system where company makes the profit No positive externality o In some sense intentional Employer knows that risk is almost certain occur at the frequency behavior is conducted Knows the risk and decided to benefit liable

Technical Aspects Defining scope of employment o Why? Incentive effects of strict liability can operate through employers only so far At some pt the employers capacity to control the conduct of employees and consequently the strength of the argument for imposting strict liability, both diminish o Detour vs. Frolic Detour = liable

Frolic = not liable o What counts as conduct within the scope of employment will depend on how effectively imposing liability on the employer for injuries cause by that conduct will serve the purposes of strict liability Defining employee Employee vs. independent contractor o Employee: employer has right to control how work is performed vicarious liability Why? Only then is there a possibility that employer could do something better o Independent contractor no vicarious liability Why not? Does not have incentive and cost-spreading effects Exception for dangerous work on your property Dont want employers to just hire independent contractors for dangerous work to avoid liability

Issues Vicarious Liability for intentional torts? In general companies not liable for intentional tort (outside scope of employment), but cases liable in cases where can be argued that the conduct (intentional tort) is within the scope of employment o Employment provides opportunity o risk comes from the employment Harm comes from a risk that employment creates Risk attendent upon the circumstance Risk characteristic of your enterprise strict liability

Cases Irsa S. Bushey & Sons Inc. v. United States (when returning to his docked coast guard ship, drunk sailor opened the drydock valves causing both the ship and the drydock to sink): An employer is vicariously liable for the reasonably foreseeable conduct of its employees performed within the scope of employment, even when such conduct was not motivated by a purpose of serving the employer Ct rejected motive test New test: whether conduct is characteristic of employment activities o Premise that drunkennesness is characteristic of sailors o Reasoning for new rule Clearly administratable More stream-lined foreseeability if characteristic of activity then foreseeable consequences

Petrovich v. Share Health Plan of Illinois, Inc. (P brought suit against her drs and HMO on the basis that both were responsible for the negligent and late diagnosis of her tongue cancer): A HMO may be held vicariously liable for the negligence of its independent-contractor physicians under the doctrines of apparent and implied authority

ULTRAHAZARDOUS OR ABNORMALLY DANGEROUS ACTIVITIES Rule Strict liability for dangerous activities that present a risk of serious harm to the community that cannot be removed through any exercise of due care Limited to the kind of harm, the possibility of which makes the activity abnormally dangerous o Strict liability is not absolute liability for engaging in a particular activity, but only for those consequences that this form of liability is designed to address Restatement factors o High probability of risk of harm o Due care wont help o Inappropriateness to the place o Common usage

Purpose When being careful isnt enough, we want to incentivize reducing/moving activity by putting more on the cost side of the equation

Technical Aspects Animals Knew or should have known pet is dangerous liable o Gehrts v. Batteen Strict liability for wild animals & pets that have bitten

Appropriateness of activity to location Is this the sort of thing where we want people to think real hard about choosing location The more uncommon an activity is to a particular area, the more likely it is that the activity-level and research incentives created by the threat of strict liability will be most effective If uncommon to area, potential victims are less likely to be in position to do much to protect themselves against the risk the activity poses

Common usage If everybodys doing it reciprocal Juries less equipped to deal with uncommon activities in determining reasonable level of care Proxy for dangerousness

Social utility of the activity

 Issues

Positive externalities

Purpose of strict liability for wild animals/explosives If being careful isnt enough negligence is useless Reciprocity doesnt apply Quasi intentional since risk is so high Puts more on the cost side of the market system o Encourage change in practice

Second restatement vs. Third restatement Second restatement o High degree of risk of harm o Severity of harm o Inability to eliminate the risk by reasonable care o Not common usage o Inappropriateness to place o Value to the community Third restatement o Foreseeable and highly significant risk o Even when reasonable care is exercised o Not of common usage

Cases Gehrts v. Batteen (Ds dog bites P): Owner of a domesticated animal maybe liable for harm caused by his pet if owner knows or has reason to know that animal has abnormally dangerous propensities, regardless of amount of care exercised by owner If owner doesnt have actual knowledge, action can still survive if an ordinary prudent person should have foreseen the even that caused the injury and taken step to prevent the injury

Spano v. Perini Corp. (blasting by D on its own land wrecked Ps garage on nearby propery): One who sets off explosives is absolutely liable for damage caused without regard to trespass or fault Indiana Harbor Belt RR v. American Cyanamid Co. (D, manufacturer of dangerous chemical, was held strictly liable when a quantity of it spilled during transportation): Strict liability will not be imposed against the manufacturer of a toxic chemical for accidents occurring during transporation 6 factors for determining whether an activity is ultrahazardous o great probability of harm o potentially serious level of harm

o activity is not a matter of common usage o harm cannot be prevented by utmost care o activity is inappropriate for the location o social value of the activity is not sufficient to offset the risks Ct: in this case negligence regime is enough o No way you could do this any differently

NUISANCE Rule Nuisance is a substantial and unreasonable interference with the right of an owner or occupier of land to the use and enjoyment of the land

Purpose Way of recognizing that when it comes to your property you an recover for a type of harm (inchoate) that you cant recover for elsewhere

Technical Aspects Reasonableness Usually nuisance if activity is unreasonable o Reasonablness is determined by weighing the expected benefits of the conduct against their anticipated costs o More than we think is fair to make neighbor put up with under the circumstances

Serious/substantial intrusion Threshold for deciding that an activity has become a nuisance How do we decide whats serious/substantial o Nothing you can do to stop it/avoid the harm Extent to which you can help yourself Expense of the remedy o Who got there first? o How subjective is the harm? o Wilful/wanton misconduct o How harmful is the harm o What kind of neighborhood/area o Abnormally sensitive? o Was there knowledge? o Is there a statute? Violation of statute would be strong proof that youre negligent

Ordinary person test Is this an activity that would bother an ordinary person? o Church bell case (Rogers v. Elliot) Ringing a bell isnt a tort unless it bothers an ordinary person

Unintentional vs. intentional Unintentional

o Stop once youre warned and then youre only liable if youre acting negligently Intentional o Know youre intruding and kept it up o Higher standard than negligence more strict

Aesthetic harms Cts reluctant to deal with aesthetic infringements on use and enjoyment of property o Subjective Too difficult for courts to interpret/enforce Intrusion on expression & autonomy o Other ways to deal with the issue Buy surrounding land Negotiate Zoning laws o Fontainbleau Hotel case (no nuisance for building addition that blocked sun on other hotel)

Came to the nuisance defense Why shouldnt you be compensated if you came to the nuisance? o Already compensated with lower cost of buying property o Intrinsic fairness of early bird gets the worm Why shouldnt came to the nuisance be an absolute defense? o Cant have absolute rights just b/c you were first o Would encourage a rac to make active use of land even if such use was otherwise premature o Ensign v. Wells (dog breeding case)

Duty to mitigate Equivalent to comparative negligence Factor considered is how easy it would be to avoid the harm Take common sense steps to mitigate the harm

Remedies Injunction o Notion of equitable relief Money is usually all law has to offer but in nuisance case can do something for you o Concerns with injunctions Economic disparity Boomer v. Atlantic Cement (no injunction because of great harm to community) Bargaining range is too wide

Damages o What if paying dmanages put the company out of business? If business cant afford to fix harms then should be out of business EXCEPTION: positive externalities/public benefit If benefit outweighs harm and cant afford the harm then not going to call it a nuisance Has to create positive public benefits in order to not be a nuisance

o Hold problems where D would just pay off P but P has all the power of a granted injunction

Public Nuisance Issues Why can you recover for interference with enjoyment of land? Cases Vogel v. Grant-Lafayette Electric Cooperative (P sough recovery for injuries sustained by their cow herd as a result of stray voltage allegedly caused by negligence and private nuisance): Excessive stray voltage is actionalabe as a private nuisance if the trier of fact determines that such voltage unreasonably interferes with a persons interests in the private use and enjoyment of land Unreasonable requirement in nuisance laws Difficult to move o Unlike other inchoate harms its hard to avoid the harm Intrinsic property rights Reciprocal nature of property Role of property value Autonomy Definition o Interferes with the right of the public at large o You were specially and uniquely harmed by it Useful as a defense o Obstacle to claim Meaning this is the sort of thing better handled collectively Not a tort

Ensign v. Walls (P claimed that Ds dog-breeding business constituted a nuisance. D had operated the business for years before most of those protesting had move into the neighborhood): The fact that an alleged nuisance long before those objecting to it moved into the vicinity does not necessarily prevent a court from ordering it abated

Came to the nuisance defense o rarely prevails o majority: landowner enjoys a right to the use and cotnro lof his property, cant be deprived of that right by a neighbor whose unreasonableland use began long ago

Fontainebleu Hotel v. Forty-Five Twenty-Five, Inc (D began construction of a building addition which threatened to cast a shadow upon the sunbathing area of a hotel owned by 4525.): A landowner may make reasonable and lawful use of his own property as long as he does not interfere with the legal rights of high neighbors or create a nuisance No liability for light and air Hesitancy with liability that has to do with aesthetic displeasure o Too subjective

Rogers v. Elliot (D insisted upon ringing church bell despite noice from dr that noise from bell caused P to suffer physical harm): Whether or not a particular activity constitutes a nuisance depends upon the way it would affect a person of ordinary sensitivity and temperament Opposite of take the plaintiff as he finds him

Boomer v. Atlantic Cement Co (P property owners sued D-cement plant allenging that pollution emating from the plant had injured their lands. Court refused an injunction, but did authorize successive actions for damages.): Although a nuisance will be enjoined even when a marked disparity is shown in economic consequcne between the effect of the injuction and the effect of the nuisance, if the partial effect of the injunction will be to close a production plant, a court will condition on equitable grounds the continuance of the injunction on the payment of permanent damages Considerations in hether or not to grant injunction o Ct may consider the relative economic hardshp which will result to the aprties o Good faith or intentional misconduct of each o Interest of the general public in the continuation of Ds enterprise Ct: permanent damages o Forced P to take money

AFFIRMATIVE DUTY (roadmap) Rescue Generally NO Duty to rescue o Autonomy issues o Tort law not a good tool giant theoretical issue about when people should do more to help EXCEPTIONS o If you give rise to the harm Montgomery v. Natonal Convoy (trucks stall on icy highway and dont warn approaching drivers) o If you start to rescue someone you have to finish resuce reasonably

Owners/occupiers Categories o Invitee there for owners purposes duty of reasonable care o Licensee there for own purposes duty to warn against hidden dangers o Trespasser duty not to willfully/wantonly injur Attractive nuisance doctrine: exception for child trespassers who trespass bc of some particularly attractive condition duty of reasonable care Categories vs. negligence principles o Categories could be considered just a factor in whether conduct was reasonable o Rowland v. Christian holds categorization unacceptable

Gratuitous Undertakings Once you undertake duty o Not enough just to promise Reliance o Unreasonable to induce reliance and not follow through Reliance on precaution that is then reneged (watchman case, cat/rabies case) Taking away precaution leaves people worse off than before Have to be reasonable in stopping

Special Relationships Nature of relationship o Pre-existing or created out of some contract, invitation Foreseeability o Circumstances that put D on notice Reliance o Who is best position o Has P given up control in someway

Landlords/universities/businesses/mental health professionals

DUTY TO RESCUE Rule Generally NO duty to rescue. EXCEPTIONS (not really exceptions but examples of negligence) o If you give rise to the harm Montgomery v. Natonal Convoy (trucks stall on icy highway and dont warn approaching drivers0 o If you start to rescue someone you have to finish resuce reasonably

Purpose Issues Legal vs. moral duty Dont have affirmative duty to help people in danger Defining legal duty

Why generally no legal duty to act? Principle of autonomy: difference between limiting what people can do and forcing people to act Difference of causation: let happen vs. MAKE happen Arbitrary line drawing: how will jury decide whether the rescue was easy o Doesnt matter if risk to D is small or non-existant and danger to P is great Bigger picture of inaction: could always be doing something more to help/save people o Charity example Giant theoretical issues tort law is NOT the right tool to sort this out Might not want to incentivize non-professional/extra resuces o Could do more harm than good Dont need a law for something people do anyways

Why do exceptions make sense? Cases Buch v. Amory Manufacturing (8-yr-old wandered into Ds mill and injured his hand when it was crushed by machinery. One of Ds overseers had observed P, but had not forced P to leave the premises): A landower has no duty to warn a trespasser of No concern about line drawing narrowed the scope Causation issue isnt as much of a stretch Less severe intrusion on autonomy

the existence of a dangerous condition or object even if the trespasser is a mere child. No legal duty to rescue in these circumstances Mere ownership of the property is not basis for legal duty o Particularly no legal duty to trespassers would have to be same legal duty that would be assigned to a random bystander

Montgomery v. National Convoy & Trucking Co (d stalls on icy highway, blocking it completely. Because no wanring had been posted, P saw the trucks too late to avoid a collision): Duty to warn of an existing danger must be carried out in a manner reasonably caluculated to prevent harm Not suing for failure to rescue but for causing accident and not warning of danger

GRATUITOUS UNDERTAKINGS Rule Once you undertake, you have affirmative duty o i.e. Duty to rescue someone who you began to rescue

Purpose If conduct increases the risk of harm beyond that which existed without the undertaking liable o Worse off than if you had never undertaken the act

Technical Aspects Reliance Issues Role of consideration What kind of promises will the law enforce (contracts) o Those promises that include you getting something in return o EXCEPTION: promissory estoeppel when person has reasonably relied on the promise Pt of overlap between contract and tort It is unreasonable to induce reliance and not follow through Erie Railroad Co. v Stewart (watchman) - reliance by setting standard Marsalis v. LaSalle (cat/rabies) reliance by starting to do something

Tort v. Contract Reliance based on starting to do the thing = tort Realiance based on promising to do it = contract

Disadvantages/Advantages of rule Deter behavior that will help people for a time o RESPONSE: wont really help people if stopping conduct after starting it hurt more people Have to be reasonable in stopping give warning, etc

Cases Thorne v. Deas (D agrees but fails to insure ship): Court says no recovery because no misfeasance and not supported by consideration Clark: seems unreasonable not to find D liable

Erie Railroad Co. v Stewart (P was passenger in a vehicle that was struck by a train D customarily maintained a watchman at the site, but he had provided no warning until too late to prevent the accident): A party who voluntarily assumes a duty not imposed upon him by law maybe be deemed negligent if, without proper notice, he discontinues his performance of that duty If they had never put a watchman not negligent to not have one o No obligation to have a watchman Induced reliable o Those promises that include you getting something in return o EXCEPTION: promissory estoeppel when person has reasonably relied on the promise Pt of overlap between contract and tort

Marsalis v. LaSalle (D agreed to keep their cat under observation after it had bitten P): Once a party accepts a duty he is liable for negligently failing to fulfill it If you induce reliance by starting act liable

Moch Co. v Rensselaer Water Co (D-water company contracted to supply water to city of Rensselaer. Ps warehouse was destroyed by a fire which adequate water service could have prevented from spreading.): A party whose performance of a contract incidentally confers a benefit upon third parties does not owe any duty to continue to perform in a manner which is satisfactory to those parties. Stands for the proposition that the failure to perform a contract can result in tort liability only if the part claiming damages was in privity with the breaching party. Not gratuitous undertaking

OWNERS & OCCUPIERS Rule Duty about the way you maintain law and property

Purpose Technical Aspect Categories Invitee o Owe duty of reasonable care Must make premises as safe as possible o Business customer There for purpose of owner Licensee: Someone you let on to your property for their own benefit (social guests) o Hidden danger standard Must warn of hidden dangerous conditions, but need not eliminate these conditions o Someone you let on to your property There for their own benefit Trespasser o Willful/wanton Duty to refrain from wantonly and willfully injuring them

Implied Licensee Way that cts try to get sympathetic P to jury Implicitly allowed to be on the land

Attractive Nuisance Doctrine Elements o Place where condition exists I one upon which possessor knows or has reason to know that children are likely to trespass o Possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to children o Children because of their youth do not discover the condition or realize the risk involved in intermeddling with or in coming within the area made dangerous o Utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight compared with the risk to children involved

Foreseen child trespassers who trespass because of some particularly attractive, dangerous condition o Duty or freasonable care

Issues Why law shouldnt protect trespassers? Too burdensome to expect owners/occupiers to take precautions against unforeseeable Fairness argument: trespassers broke the law so not entitled to duty of care Assumption of risk: taking risk upon themselves

Invitee v. Licensee Licensee there for their own benefit o Relaxed duty of care is incentive to allow people on your property for no benefit of your own o Autonomy argument: how you maintain your property is a choice you make about the way you lead your life o Hidden danger rule makes sense under the principle Not an airtight distinction o Continuum rather than birght line o Extent to which visitor is on property for your purpose is one fo the factors in determining negligence

Cases Robert Addie & Sons v. Dumbreck (Despite warning to keep off Ds property, Ps 4yr-old son went onto Ds land and was killed by a whell which was part of a coal ash removal system): Although he may not deliberately harm him, a landowner has not duty to protect a trespasser from risks or dangers Old case reluctance today to apply harsh common law rule that no duty of care is owed to a respasser o Often circumvented by elevating the apparent trespasser to the status of the licensee or by holding that the trespasser had been discovered by the landowner, and thus was owed a duty of care

Rowland v. Christian (P, a licensee, in the apartment of D was injured by a broken water faucet handle about which D knew, but did not warn): When a land occupier is aware of a concealed condition involving, in the absence of precautions, an unreasonable risk of harm to those coming in contact with it, and is aware that a person is about to come in contact with it, the failture to warn or to repair the condition constitutes negligence California ct does away with the categories o Dont need them because we have negligence principles anyways

o Rules dont fit modern society (most people own property)

SPECIAL RELATIONSHIPS Rule Can be liability for harm foreseeably suffered because of misconduct of third parties o Tenants o Students o Customers Elements o Special relationship o Foreseeability If special relationship factors for negligence o Was duty breached o Was risk sufficiently probably o Potential harm sufficiently great o Cost of reducing the risk sufficiently small

Purpose Technical Aspects Foreseeability Often based on precedent argument o Has this sort of thing happened before circumstances put D on notice of the risk of harm

Special Relationship Issues Landlord affirmative duty Concerns o Too burdenson/costly o Other mechanisms better equipped to solve this issue Police should prevent crime o Difficult to determine foreseeability o Vague standard Response o Landlord is the best (if not only) person to provide security Only landlord is in position to make these changes Exclusive control of common areas o Foreseable is not difficult Preexisting relationship of some sort Relationship that arises out of contract or through invitation that P be on property

Things that might be reasonably likely Often based on precedent argument o P is relying on D Kline v. 1500 Mass

Psychologist affirmative duty Concerns o Gets in the way of confidentiality Patients might not seek help if they dont trust confidentiality privilege o Difficult to predict accurately o Internalize cost increasing cost of care Response o Profession already recognizes an exception to confidentiality in cases like this o Importance of public safety o Social/societal reliance on the profession to report dangers Elements o Specifically identified 3rd party whose safety is at risk

Cases

Weirum v. RKO General Inc (D-DJ staged a promotional contest where 1st person to reach location would win a prize. Drivers forced car off highway, killing driver): D does have duty of reasonable care to P Pt of contest was to encourage racing on public street Not a case of affirmative duty but misfeasance

Kline v. 1500 Mass. Ave. Apt. Corp. (P sued apt for damages after she was attacked in common area of the apartment building, contending it breached its duty to provide adequate security measures): A landlord is responsible for maintainingthe common areas of his property so as to minimize the risk that tenants may be exposed to an unreasonable risk of criminal attack. Tarasoff v. Regents of U. of Cal. (D a psychologist, failed to notify P that one of his patients threatened to kill her): Where a person bears a special relationship to a party or others who may be the victim of the conduct and it is reasonably foreseeable, a legally cognizable duty arises to protect or control the 3rd party Comes closest to saying that if youre uniquely positioned to help, you HAVe to help

PRODUCTS LIABILITY ROADMAP Products liability Strict liability o in the business of selling position to discover or fix defect o Liability on anyone in manufacturing chain Pass cost up to person in best position to correct issue o Purpose: put pressure on best person to minimize risk and/or internalize cost

Manufacturing Defect Strict liability where there was a defect in construction and that defect caused harm o Can be hard to show proximate cause Judges try to get case to jury bc makes sense that the negligent party should have to pay

Design Defect More like negligence o Consumer expectation test More dangerous than an ordinary consumer would expect? o Cost-utility test: whether risks outweigh benefit Inappropriate test when you chose product knowing risks because benefit is impossible without risk Actual choice (other options on the market) User made the choice Is there a feasible alternative?

Inadequate Warning Duty to provide adequate/reasonable warning under the circumstances o Cant warn yourself out of design defect More appropriate for items that cant be made safer: drugs, knives, guns, etc o Exception for drugs: dr in better position to provide warning than manufacturer Burden on P to prove warning inadequate Role of foreseeability o Cant be liable for not warning about unforeseeable harm No 20/20 hindsight test

Comparative Negligence

comparative negligence can diminish recovery even in case of strict liability Examples o Product Misuse o Product modification o NOT a defense if misuse/modification is foreseeable

PRODUCTS LIABILITY Rule Area of strict liability Anyone in the business of selling defective product can be liable o Not casual sale (neighbors, etc) Not people who didnt cause the defent and/or couldnt do anything about it

Purpose Put pressure on person in best position to minimize and/or internalize the cost o Incentivize correct behavior innovation o Cost internalization

Technical Aspects Manufacturing Defects Actual strict liability o Just have to prove that product departed from intended design and that the departure caused the injury Definition o Product departed from intended design and that departure caused injury o unreasonably dangerous for its intended use o departure from intended design, which makes it more dangerous and causes the harm still has to be the kind of harm that made the product more dangerous Why strict liability o Similar to ultrahazardous materials o Non-reciprocal o Encourage paying attention to when/where/how much o Quasi intention: knew harm will happen o Manufacturer in best position to conduct research or otherwise discover cost-effective ways of reducing the risk of harm resulting from manufacturing defects Issues o Proximate cause o Sometimes ct allow case to get to the jury even if theyre having a hard time figuring out exactly what was defective Analogous to res ipsa loquitor

Design Defect

More like negligence but still strict in the sense of vicarious liability Burden of proof: Plaintiff as to prove defect Open and obvious defense not liable if defect is open/obvious Definition o A defect that exists in a product regardless of the method of manufacture or amount of due care exercised by those in the commercial chain of distribution, but instead as the result of flaws in the products design Consumer Expectation test o Definition: Product is more dangerous than an ordinary consumer would expect o Purpose Assuming the risk if you get what you asked for Strict liability logic that consumer isnt in position to fix or know defect doesnt apply if design is what you expect Autonomy argument: consumer choice Maximize utility by letting consumer decide Risk-Benefit Test: Whether the risks posed by the design outweigh its benefits o Barker v. lull Engingeering (lift loader case) o Reasons why a product could be liable via cost-beneft analysis even if product is no more dangerous than a consumer would expect Market is imperfect Safety might not translate immediate sales Law has to help market Injured party might not have made the choice Consumers dont know how safe a product should be We want less injuries if safer product is feasible, you should do it o Reasonable person would say that if you could easily and cheaply take a precation to prevent the harm and dont negligent When not risk-benefit test doesnt make sense o Plaintiff is in best position to prevent harm Real answer is on P o The risk is really obvious o There were alternatives You really chose Dont want to ask ct to say you werent equipped to choose o The chooser picked the risk autonomy o Risk intrinsic to the benefit Cant give you what you want without the risk (i.e. convertible) o No malfunction Defenses o Showing feasible alternative

o Comparative negligence o Open and obvious o Preemption Not defective as a matter of law Halliday v. Sturn, Ruger & Co (boy shot with fathers gun) Duty to Warn Jury issue whether warning is adequate o Is warning reasonable under the circumstances? Definition: An obligation owed to inform of defects which may cause injury Negligent failure to warn o EXCEPTION: learned intermediary Manufacturing company of drugs usually not liable if gave warning to dr Why? o Burdensome o Dr is in better position to warn EXCEPTION: birth control case o Why? Less contact between dr and patient More voluntary Heightened participation of patients Less reliance on dr Advertised directly to the consumer duty to consumer o Plaintiffs must prove caustion prove that if an adequate warning had been given, he would not have used the product or not have used it in the way he did Cts err on the side of liability when know D is negligent but P is having a hard time proving proximatecuase Role of foreseeability o Duty to warn if by the application of reasonable, developed human skill and foresight should have knowledge of the danger Have to warn only about what you could have known about Not when harm is unforeseeable (breast implant case) Rejecting 20/20 hindsight test Purpose of warnings o To allow consumers to make cost-benefit decision o Protect autonomy Relationship between warning & design o Cant just warn yourself out of defective design When a reasonable alternative design can eliminate a product defect, then merely warning about those risks does nto insulate D from liability

o Goal: safer products o Sometimes all you can do is warn: saw, medicine, motorcycle Concern with extra long warnings o People wont read it Immunization Cases o Collective action problem Full information doesnt lead to better outcome because individually rational choices leads to collectively bad behavior o Solved by regulation

Comparative Negligence Rule: comparative negligence can diminish recovery even in case of strict liability Why does comparative negligence defense make sense? o Fairness: distributes responsibility in proportion to fault o Doesnt fundamentally change what P has to prove o Want to give P incentives as well Encourage to behave safely Not just on indivudal basis, but indirectly to create norms, set standards o Wont undercut incentive of manufacturers to be careful b/c cant count on Ps to be negligent Product misuse o Unintended use/misuse can be defense Just 1 way P can be comparatively negligent o EXCEPTION: product misuse is foreseeable Substantial modificaiont o If changed too much product isnt what D sold

Issues

Why strict liability for defective products? Manufacturers in better position to prevent harm Fairness: if theres an unavoidable cost with manufacturing this product manufacturer should pay it Modern manufacturing RELIANCE o P has little way of knowing how something was made, and have to rely on manufacturer o Advertising encourages us to trust manufacturer Cost internalization o Pass on the cost to consumer and market takes over from there No positive externalitites

Why liability for anyone in business of selling? Cost will ultimately get passed up the chain to whoever created the defect

o Hydraulic pressure Cases Thomas v. Winchester (poison case): Allowed a negligence action by a woman who was poisoned against a chemist who had sold the falsely label poison to the druggest immenently dangerous

Winterbottom v. Wright (P was injured while driving a defective mail coach which the govt had bought from D pursuant to supply-maintenance control): A contracting party, unless he has undertaken a public duty, has no liability to third parties who are injured as a result of a breach of the contract Old rule required privity for liability o Had to be party to contract o Little basis for recovery against anyone other than the immediate seller of the product

MacPherson v. Buick Motor Co (P bought a car for his wife who was injured when a defective wheel collapsed): A manufacturer will be strictly liable for injury caused by his product where, if negligently made, it will be dangerous to the life of any potential user. Formally rejects privity requirement where the product was likely to cause death or serious injury Explains poison case o Liable bc risk was foreseeable Rule: Something that if youre careless in making and its foreseeable that careless construction would cause harm = liability Rule: Awareness that its going to be someone other than original buyer liability beyond privity requirement o Made it possible for plaintiffs to sue manufactueres with whom they had no direct contractual relationship

Escola v. Coca Cola Bottling Co of Fresno (P- a waitress was injured when a Coke bottle exploded while being placed in a refrigerator): The manufacturer of a defective product should be help strictly liable for any injuries that result from the use of the product Concurring opinion from Justice Traynor Rationale for strict liability o Deterrence o Availability of insurance o Access to evidence

Barker v Lull Engineering (P sought to recover under a strict liability theory for injuries sustained while operating a machine manufactuered by D, claiming that

defective design of the machine proximately caused the injuries): Product defect Test A product is defectively designed o If it does not perform as safely as the orindary consumer would expect, when used in an intended or reasonably foreseeable manner OR o If the benefits of the products design are outweighed by the risk of danger inherent in such design

Halliday v. Sturn, Ruger & co. (Ps 3-yr-old son was killed when he shot himself playing with his fathers handgun which came with warning, instruction manual): Under the consumer expectation test, gun makers are only liable when their products malfunction Product did what it was designed to do

MacDonald v. Ortho Pharmaceutical Corp (P argues that D as amanufactuer of birth control, had a direct duty to the consumer to warn of inherent dangers): The manufacturer of birth control pills owes a direct duty to the consumer to warn her of the dangers inherent in the use of the pill Argument that warning is inadequate: manufacturer used a euphamism to try to avoid the scarier, more well-understood word

Vasallo v. Baxter Healthcare Corp (P brought suit for injuries sustained as a result of rupturing silicone breast implants on the basis that implants were negligently designed and that manufacturer failed to provide adequate warnings in breach of the implied warranty of merchantability. Hood v. Ryobi (P alleged that D failed to adequately warn of dangers of using a saw when blade guards is removed even though warning in several places to not remove blade guards): A manufacturer may be liable for placing a product on the market that bears inadequate instructions and warnings or that is defective in design Daly v. General Motors (P sues for fatal injuries when thrown by car manufacutered by D but D says P was ejected through his failure to use cars safety features): Ps negligent conduct will reduce his recovery in strict products liability by an amount proportionate to his fault

DEFAMATION Rule Definition: Defamatory communication which is false and an [unprivileged] publican in many (almost all) cases at least negligence as to falsehood. In some cases, proof of special dmanages o False o Unprivileged publication o At least negligent as to falsehood o Defamatory o Damages (sometimes) Includes libel and slander Harmful lies o harm to reputation Have to prove that statement could not have refered to someone else

Elements Must be published o Has to be communicated to others o Can be considered published even if internal (Doe v. Gonzaga) o Can be publication by default Can be liable for something that you allow to remain published in an area that you control Hellar v. Bianco (writing on the bathroom wall) False o P has to prove it was false o Cant be liable for matter in dispute neither true nor false (Auvil v. CBS 60 minutes) At least negligent o If intentional strict liability Dont want to allow harmful laws Defamatory o What counts as defamatory? Lowers you in estimation of others Deters others from dealing with you o Depends on the community you care about Has to be a substantial and respectable community Damages o Special v. general o Have to show that harm (damages) results from diminished reputation Proximate cuase o Wont grant injuntions/equitable relief offends free speech too much Retraction doesnt necessarily get D off the hook

Purpose/Rationale Protects Interest in reputation and good name Protects relationship with others in your community NOT to protect feelings (could be pushed to IIED but probably not)

Why does tort law deal with this? Tort law typically shies away from these inchoate harms but not in this case Recognizes that reputation is considered to be very important o Reputation should be something controlled by you based on who you act o Reputation is part of who you are o Reputation is how you choose to present yourself Not something that can otherwise be remedied o Hard to handle on your own Incentivize good behavior/deter bad behavior More analogous to intentional tort o Not a reciprocity issue Less concern about line-drawing, fake claims, slippery slop because falsehood provides a concrete boundary

Technical Aspects Slander Libel Written//recorded Spoken

Slander/liable per se Distinction in regards to damages o Per Se DONT have to prove special damages 4 categories committed crime unfit for trade loathsome disease sexual misconduct o NOT per se you do have to prove special damages Means proving damages more concretely/specifically

Per se can also refer to what is necessary in pleading o Per se = when you dont have to explain how a statement is defamatory = prima facie o Not per se would mean you do have to explain how statement is defamatory

Privilege Qualified/conditional privilege o You have an obligation (familial/professional) to tell someone, and you pass it on within the scope of relationship, and only communicate to people whom you had duty to tell and reason to believe it was true Can be qualified privilege for communications between coemployees, but that privilege may be lost if the employees are not acting in the ordinary course of their work when they communicate (Doe v. Gonzaga) Now that we have a negligence standard, non-negligence defense is unnecessary Watt v. Longsdon Absolute privilege o What you say cannot be actionable as defamation even if malicious/negligent i.e. legal proceedings, what you say in court o Why not liability for legal proceedings? Lots of other remedies besides defamation law suits Should potentially be privileged if this is a proceeding where other safetguards exist Rule 11 Professional obligations Perjury o Kennedy v. Cannon (lawyer for rape suspect)

Role of Opinion Opinions arent actionable as defamation o Wilkow v. Forbes (bankruptcy article) Matters whether communication is understood as opinion o In my opinion prefact isnt a defense o Depends on context Whether presenting facts or commenting on it Why? o Opinions arent really true or false o Readers wont be misled doesnt lead to harm of defamation o 1st amendment interests dont want to chill free speech

Of and concerning

Have to prove that statement could not have refered to someone else

Group Libel Can only sue for defamation if they say something about you, but can say something about you by saying something defamatory about a small group of which youre a part of understood as being about you Why not broader recognition of group libel? o Not taken literally o Not specific Not one victim Too hard to draw line to limit cases and determine who is actually harmed o General statements are more of abroad societal harm not tort law issue o Individual lawsuits would be a poor tool for dealing with the harm o Other remedies Speech against speech

Injurious falsehood Usually harmful lie is harmful because defamatory but possible for law to be harmful in other ways o i.e. someone claims youve moved your business out of town o Pecuniary loss if Intended to cause pecuniary harm Knows statement is false or acts in reckless disregard of falsohood/truth

Damages Special damages o Requirement of greater specificity Identify components of loss General damages o Damages presumed Jury allowed to make best judgment about amount Cases where it is usually hard to show exactly what damage lie has caused

Public Officials/Public figures Requires showing of actual malice = knowing falsehood or reckless disregard for the truth o Public officals Nytimes v. Sullivan o Public figures Curtis Publishing v. Butts Not strict liability, not even negligence Why actual malice test?

Best way to balance interest of free speech and interest in protecting reputation Breathing room want to facilitate/allow for vigorous, open conversation/debate Avoid chilling affect

Private Citizens Still entitled to constitutional protection (Gertz v. Robert Welch, Inc) o In suit against a media outlet o Matter of public concern

Issues Evolution of defamation Common law o Traditional body of law that was eager t ofind for P Relatively easier to sue for defamation Constiutional o Newer standard for defamation that is considered pro-Defendant First Amendment concerns Pro free speech Sharply limited traditional version

Truth as a defense Why not absolute defense? o People would never be able to be wrong about matters legimitately in dispute (Auvil v. CBS 60 Minutes)

Constitutional protection Why should first amendment protect false speech against public officials? o Necessary to protect some false statements to provide breathing space o Would otherwise chill free speech o Exact purpose of 1st amendment was to allow speech critical of public officials People speaking up and critizing govt is exactly what 1st amendment is about What about public figures? o First amendment is really about check on people with power not just govt officials o Public figure in better position to protect themselves Access to media and ability to respond o Voluntariness can be a factor of being a public figure/public official

o Do serve public purpose Conversations about how we want to be Interest in facilitating those types of conversations Cases Doe v. Gonzaga University (P sued D-university for defamation based on Ds sexual assault investigation of P): Defamation consists of falsity, an unprivileged communication, fault and damages. There is qualified privilege for communications made between co-workers but that privilege may be lost if the employees are not acting in the ordinary course of their work when they communicate

Wilkow v. Forbes (P sued D-Forbes after D published an artible about P critizing his filing for bankruptcy): A statement is not actionable for libel if the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise rather than claiming to be in possession of objectively verifiable facts. Opinions arent actionable as defamation

E. Hulton & Co. v Jones (P sued D for running an article implying that P was seen in Paris with his mistress, but D argued that they had used the name Artemus Jones as a fictitious name and didnt intend to defame Jones.): Libel is a tortuous act andconsists of using language which other, knowing the circumstances would reasonably think to be defamatory of the person complaining of it or injured by it. Example of traditional strict liability o If not true defamation

Ellsworth v. Martindale-Hubbell Law Directory, Inc. (P alleged special damages resulting from Ds failur to rate him in its Law Directory). Special damages may be established by showing a diminishment of business and that defamatory statements were likely to have caused the loss. Example of difficult line drawing between general/special

Terwilliger v. Wands (D said that P was having sex with Mrs. Fuller, a married woman): Words which claim that a man is having extramarital sex are not actionable without a demonstration of special damages since they do not disparage the mans character or reputation Another example of per se vs. not/general damages vs. special Accepting that claim needs special damanges, why dont his damages count? o Damages in case = lost job, physical illness NOT defamation damages Have to show harm results from diminished reputation (proximate cause)

Auvil v. CBS 60 Minutes (Washington state apple growers brought suit against CBS alleging product disparagment as a result of a broadcast in which CBS claimed that the growers utilized a known carinogen in the production of their apples). Rule: To establish a claim or product disparagement/trade libel, P must show that D published a knowingly false statement that was harmful to the interets of another with the intent to harm Ps pecuniary interest o Plaintiffs didnt prove statements were false no liability Ct: cant point to overall impression must have statement Matter is in dispute neither true nor false Why not liability? o Dont pt to specific statement o Didnt know it was false o We want discussion about matters in dispute

Burton v. Cromwell Publishing (embarrassing picture): Statement is defamatory only if it is false We dont want you to defame people but if true well grudgingly let you off the hook Social importance of truth

Hustler magazine v. Falwell (D published vicious parody of P) Ct: parody was intrinsically unbelievable and therefore undercut the libel claim o Deliberate parody is outside the scope of defamation o nthe ground that no one could believe it to be true Neither true or false o Nobody thought it was true o Wasnt meant to be taken as true

Watt v. Longsdon (P sued D for 3 separate defamatory publichations between D and one of Ps coworkers in which it was allged that P drank excessively and had affairs) Rule: Unless the defamation is a privileged communication, a person making defamatory statement which are false will incur liability for his statements

Kennedy v. Cannon (P- white alleged rape victim brought suit for slander against D, the attorney of the black alleged rapist after D issued a statement to the local paper that P had consented to the relation) Rule: Attorneys are privileged and protected to a certain extent, at least, for defamatory words spoken in a judicial proceeding

New York Times Co. v. Sullivan (D had published an ad critical of how Montgomery police controlled by P had responded to civil rights demonstrations)

RULE: A public official may not recover damages for a defamatory falsehood concerning his official conduct unless he can prove that the statement was made with actual malice

Curtis Publishing Co. v Butts (Butts-P, a coach, was accused of fixing a football game. Walker-P had allegedly led a charge against national guardsmen.) Extended actual malice test to public figures

Gertz v. Robert Welch Inc. (P, an attorney, was labeled Communist for his actions in connection with a civil action filed against a policeman). RULE: defamation of a party who is neither a bpucli figure nor an official is entitled to constituional protections Switches burden to plaintiff o P has to show false as element of claim o P has to prove at least negligence

Philadelphia Newspapers v. Hepps (Pennsylvania Supreme Court held that in a defamation suit by a private citizen against a newspaper, D had the burden of disproving falsity). RULE: In a defamation action by a private citizen against a news media outlet in a matter of public conern, P has the burden of proving falsity o Applies to media defendants and matters of public interest

PRIVACY

Purpose Why should tort law deal with Privacy? Warren & Brandeis article o Current necessity o Precdent evolving to make this natural next step/steady evolution Increased ability to recognize inchoate harms o Lowering of social standards and or morality belittles and perverts diminishes us as human beings o vicious cycle creating that sort of content creates demand which will incentivize more of that conduct

Issues Line-drawing: Brandeis article doesnt deal with logistical/administrative questions Prosser: 4 areas of law o Contracts: appropriation for Ds advantage of Ps name or likeness Should have to get permission/pay for that right Property right in your own likeness Why does that make sense? For famous people its part of their livelihood Like copyright/patentincentivize the production/ccreation o Analogous to incentivizing good behavior reputation Intrusion upon seclusion Public disclosure of private facts false light o publicly putting someone in a false light

INTRUSION UPON SECLUSION Rule One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another, or his private affairs or his concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person Reasonableness test o Courts focus on:

The mechanism/method used to gather info The more extreme the less likely cts are to protect it liability more likely Wiretaps/electronic surveillance equipment will generally constitute an intrusion into a private place (Nader v. General Motors) How personal was the info Nature of the info Privateness of the info o Would it be offensive to a reasonable person? o Did you have a reasonable expectation of privacy? Issues Problem of stalking/intrusions in public spaces o Even in public spaces, ones personal space may be offensively invaded by the repeated, harassming rpesence of D First amendment concerns tends to relate to undercover journalism Acquiring stolen information Cts surprisingly hesitatnt to hold the press liable for intrusion upon seclusion when they use info that was stolen or illegally obtained Cts conflate publication with the way it was acquired

Cases Desnick v. American Broadcasting Co (Drs from the Desnick Eye Center (P) filed suit against ABC (D) for sending reporters equipped with hidden video camera pretending to be patients to the eye clinic): No invasion of privacy or trespass occurs when an individual posing as a patient, for investigative purposes, visits a doctor and secretly videotapes the consultation o Question often tied to trespass In this case trespass is the same question of if there was invasion of seclusion If anything makes it a trespass it would be misrepresentation When does misrepresentation blend into unacceptable consent Posner: way to deal with whether a trespass is determining what interest was invaded

Public disclosure of private facts Rule Gives publicity to

o Must be publicized as opposed to being released to a few people Highly offensive to reasonable person Not of legitimate concern to the public o Seems like if public is interested than its of legitimate public concern o Painful, intimate details of someones life could be of legitimate public concern Balancing test o The right to be free from offensive public disclosures of private facts must at some point yield to the publics right to know about matters of public interest Legitimacy of the public interest in the information disclosed Extent to which the plaintiff has subjected himself to publicity in the past Character of the information disclosed Manner in which D came into possession of the information

Issues Why are courts so hesitant to recognize this cause of action? o Would be too many claims, flood the court system o Maybe not behavior that we want to punish Learning about peoples personal lives can be a vehicle for how we talk about larger things/issues We want people to talk about this stuff Learning from behavior of others Vehicle to talk about larger issue Public reporting of legal proceedings, public system, Includes things like rape cases o Free speech concerns o Line drawing concern Once we allow liability for truth, its hard to draw line At least with defamation we have bright line of falsehood o NyTimes and need for breathing space o Other mechanisms of dealing with this issue Institutional standards at newspapers, for example o Could disincentivize people to do good things if they dont want to be dragged through the mud of their past mistakes o Analogous to emotional distress Father of rape victim like zone of danger rule arbitrary line drawing What kind of harm are we talking about? Difficult line to draw and cts would be bad at it Why might we want this sort of thing protected?

o What about if something has been done to you (i.e. rape victim, child prodigy) o We want people to have the ability to move on, build a reputation Cases Sidis v. F-R Publishing Corp (The early life of a child genius was recounted in several articles appearing in the New Yorker): Intimate, embarrassing facts concerning the private life of a one-time public figure are not actionable unless they go beyond the bounds of decency o As long as the item is newsworthy (regardless of publication) it is unprotected o Explanation for protecting this sort of disclosure what happens to people who show genius early on is an example to people, says something about an issue we care about Cox Broadcasting Corp. v Cohn (a tv station owned by Cox Broadcasting informed the public as to the name of a deceased rape victim): Accurate reporting of information contained in public records is not actionable o Role of public records Zone of privacy does not extend to the reporting of judicial events which are deemed to be of general public interest Haynes v. Alfred A. Knopf (Haynes sued Knopf for invasion or privacy after it published a book that included an account of Ps young adulthood as a drunk, and adulterer and batterer): If a matter is of public interest, it is only actionable if the falsity was made with malice or in reckless disregard of the truth o Reason to protect personal story isnt just a personal story. Its a vehicle for telling broader story

FALSE LIGHT Rule Elements o Actual malice standard if issue is of public concern and everythings of public concern o Highly offensive If issue of public concern and everythings of public concern Highly offensive

Issues How is it any different from defamation o Maybe the gist? Not a specific lie but general understanding is false

Most things that are general arent easy to classify as strictly true or false o Maybe reaches a little more but with more limits o Clark: doesnt do any work Defamation covers everything false light covers o Conceivably a portrayal can be in a false light without injuring the plaintiffs reputation or otherwise defaming him Cases Time Inc v. Hill (Life Magazine published an article stating that new play was a recreation of a real incident which was suffered by Hill and his family): If matter is of public interest, it is only actionable if the falsity was made with malice or in reckless disregard of the truth