Professional Documents
Culture Documents
1.0 Introduction
1.1 Early History
A. Definition 1. Tort = civil or private wrong 2. French word B. Roots 1. Roots in Anglo-Saxon emendatorty system i. Payments for wrongs ii. Came from Norman felony cases
Page 2 C. Innovation in Torts Roberson v. Rochester Folding Box (N.Y. 1902): D takes picture of P and uses for advertising w/out P's permission. P seeks emotional damages and injunction on "right to privacy" doctrine. Court denies because of lack of precedent and fear of where precedent will go.
Page 3 D is negligent P is D wins on contributory negligence negligent rule: If P contributes to negligence, he gets nothing P is not negligent P wins: no problem Used until the 1970s E. Burden of Proof 1. Pleading burden: P has burden of pleading first i. D responds 2. If P makes complete case D has burden of going forward i. P then has burden and so on 3. Ultimate burden of persuasion: parties win or lose through perponderence of evidence D is not negligent D wins: no problem D wins: If P cant show negligent behavior or intent, there is no responsibility
Page 4 B. Beyond Traditional Intentional Torts Jackson v. Brantley (Ala. Civ. App. 1979): P sues D for damages to car after P hits unbridled horse D is leading back to land at night. AL statute makes owner of livestock liable for damages only if he knowingly or willfully put animal on public highway. Court finds D intentionally led unbridled horse. Beauchamp v. Dow Chemical Co. (Mich. 1986): P is exposed to agent orange, suffers damages. P alleges intentional injury to get out of worker's comp. for accidents and into common law. Court moves from true intentional tort to substantial certainty to deter employers from injuring or killing workers.
Page 5
2.4 Insanity
A. Case White v. Muniz (Colo. 2000): P, a nursing home patient, hits D while trying to change diaper. P is diagnosed with Alzheimer's. Court finds no battery because D did intend contact while appreciating the harm of offensiveness of contact. Rely heavily on R2 18 to create dual intent rule; jury must look into mind of D to determine intent to contact AND intent to harm or offend.
Page 6
2.7 Defenses
2.7.1 Consent Hellriegel v. Tholl (Wash. 1966): D tries to throw P into lake after P give invitation. D slips and falls on P's neck, injuring it. Court found battery occurred, but injury stemmed from horseplay that was consented to. Invitation of risky activity is acceptance of resulting injuries. Mulloy v. Hop Sang (Alberta, 1935): D hurts hand in car accident, asks D to look at it but not cut it off. P puts D under anesthetic, cuts off hand to save D; D won't pay so P sues to recover costs of surgery. Court finds that without consent cutting off hand was battery and P can't recover costs. P pays damages to D. 2.7.2 Self-Defense Lane v. Holloway (WLR App. Ct. 1967): Old P challenges young D to a fight and throws a punch at D's shoulder. D gives hard blow to the eye severely injuring P, hospitalizing him. Court finds that D was defending himself, his blow was out of proportion to fight and is liable to P for injury. Silas v. Bowen (D.S.C. 1967): P makes angry advance toward D while threatening and grabs him while reaching into pocket. D pulls out shotgun and fires at ground injuring P's foot. Court finds that P was trespassing on D's property, D did not have to back down. P's actions put D in apprehension of bodily harm and warning shot was reasonable use of force.
Page 7 2.7.3 Defense of Property Brown v. Martinez (N.M. 1961): P was stealing watermelon from D's land; D fired rifle to scare boys and bullet hit P's leg. Court found that using a deadly weapon to defend the property against the misdemeanor was excessive and found D's liable for his legal assault that resulted in P's battery through transferred intent.
2.8 Discipline
A. Scope 1. In special situations, law may give privilege of discipline i. Parent and child ii. Student and teacher iii. Soldier and military 2. Discipline limited by criminal code i. May not assault or batter or use excessive force
2.9 Necessity
A. General 1. Public necessity i. Destruction of property for greater good a. Prevent supplies from going to enemy b. Stopping fire by destroying property c. Apprehending or neutralizing criminals ii. Destruction or taking of private property is usually compensated a. Exception: Great public necessity 2. Private necessity i. May be used as affirmative defense to tortuous action a. Civilians destroying whiskey before falling into enemy hands B. Cases Ploof v. Putnam (Vt. 1906): P was out in boat when storm hits; anchors boat to private island dock belonging to D. D's servant unties boat during storm, causing P to wreck and sustain injuries. Court finds that doctrine of necessity excused trespass because of extraordinary circumstance, especially w/ life at stake; D's servant was negligent to untie boat. D is vicariously liable for servant's torts when they are within scope of employment. Vincent v. Lake Erie Transportation Co. (Minn. 1910): Steamship belonging to D at P's dock when storm hits. Ship cannot leave, so it ties down to dock and reties w/ stronger ropes. Movement of ship damages P's dock. Court finds D made intentional choice to preserve ship over dock; D is liable for P's damages.
Page 8
3.0 Negligence
3.1 Historical Development
A. Changes in Pleas 1. Difficult to determine plea of trespass or trespass on case i. Wrong plea led to dismissal 2. Ps carriage dilemma i. P doesnt know who was driving when he was ran over ii. If he brings T on master while servant driving, P lost iii. If he brings ToC on master with master driving, P lost 3. Ps responded by joining servant and master and brought ToC
Page 9
Delair v. McAdoo: (Pa. 1936): D passes P on highway, tire blows out, and D swerves into P. Evidence revealed that tire was worn. Court found that D had a duty to take precautions to make vehicle reasonably safe for use on road so as not subject others to unreasonable risk of operation. Ignorance of tire condition is not an excuse: knowledge of tire condition is part or reasonable standard of care. 3.3.2 Variations on Reasonable Person A. Cases Charbonneau v. MacRury (N.H. 1931): Minor D driving car hits and kills minor P. Court finds that absence of evidence to the contrary a minor should be held the standard of care his average peer would exercise. Adult standard would unfairly force child to exceed capabilities, reason, and intellect in an arbitrary and penalizing manner. Goss v. Allen (N.J. 1976): Minor D skis down bunny hill, and injures P at bottom of slope. Court finds that D will be held to standard of care exercised by reasonably prudent person his age. A minor will not be held to adult standard of care unless he was engaging in activity normally undertaken by adults. Going down bunny hill was not adult activity. Haley v. London Elec. Board (H. of Lords, 1964): Blind P trips over a trench dug by D while workers were away. Court found that D had a duty to protect to protect blind from injury and no detectable barrier was negligent. Although the chances of a person with P's disability coming along were, there were enough blind people in city that the risk was unacceptable. Reasonable person in D's position should have anticipated hazard and taken precautions.
Page 10 3.3.3 Calculus of Risk A. Cases Barker v. City of Philadelphia (E.D.P.A. 1955): D sees large piece of paper in the street; tries to avoid it thinking there could be something that could hurt tires. D misjudges distance, runs over paper, killing P underneath. Court finds that a person of reasonable prudence and caution may be negligent even though he considers consequences and exercises his best judgment. D was negligent and cannot escape liability for damage because he didn't foresee particular result of negligent act. United States v. Carroll Towing Co. (2nd Cir. 1947): D's barge breaks away while bargee was gone, allowing barge to break away and sink with P's cargo. Court finds duty if B<PL where B=burden of precautions, P=probability of accident, and L=injury. D should have had bargee present during day when risk of accident was higher: could have saved cargo. Pitre v. Employers Liab. Assurance Corp. (La. 1970): P is killed at when boy accidentally hits him while winding up to throw baseball at concession stand; P sues D, the fair. Court finds that D has a duty to take precautions against foreseeable and unreasonable risks of injuries. Facts and environmental circumstances point to risk of incident being very small. No negligence for reasonable person failing to use care to prevent every foreseeable injury if they are unusual or improbable. 3.3.4 Judge and Jury in Standard of Care A. Roles 1. Judges decide questions of law 2. Juries decide questions of fact 3. But who decides mixed questions of law and fact? B. Legal universe 1. Alpha facts: obvious facts 2. Aleph facts: what is standard of care? 3. Question of law
Page 11 C. Homes, Cardozo, and Traynor 1. Homes and Traynor i. Standard of care and negligence is a question for judges a. Judges should be better at determining w/ experience b. Judge could use jury to weigh in, but ignore c. Judge creates pigeon holes that narrow uncertainty d. Avoid prejudice or bias 2. Cardozo i. Standard of care and negligence should be left to jury a. Juries taking facts into account are better than pigeon holed justice b. Factual element to standard of care 3. Cardozo is used by most courts today 3.3.5 Legislative Standard of Care: Statutory Violation A. Cases Martin v. Herzog (N.Y. 1920): While P was rounding a curve in a buggy, D went into there side with a car, hitting P. D used defense that P was violating NY traffic law by not using a light required after dark. Court found failure to obey law negligence per se because it infers causal connection w/ accident. Violation should not have been ignored by jury because omitting safeguards to protect life is negligence. Brown v. Shyne (N.Y. 1926): Chiropractor D treats P for laryngitis without required N.Y. health license. P suffers paralysis and sues for injuries. Court found that failure to have license was not causal fact of P's injury; lack of direct causation make statutory violation irrelevant. Statutory violation is only negligence per se if it directly caused injury and injury was kind the legislature enacted the statute to guard against. D will, however be held to licensed doctor's standard of care. Telda v. Ellman (N.Y. 1939): P was walking down highway on right side of the road when a car driven by D comes from behind and hits P. D argues that by violating NY traffic law requiring pedestrians to keep to left side of road, P was negligent per se and couldn't recover. Court found that statute codified common law and had certain exceptions. A legislature would not intend a statute to intended to protect pedestrians to subject them to greater danger. Barnum v. Williams (Or. 1972): P was driving motorcycle up a hill and on a curve while D was going downhill in a care and around same curve. D saw P used breaks suddenly, slipping onto P's side. Court doesn't find D negligent per se, but find that violations of vehicle statutes create presumption of negligence. D must introduce evidence to show that they were acting as a reasonable person under the circumstances.
Page 12 3.3.6 Proof of Negligence A. General 1. Finding reasonable person standard and evaluating risks not always clear 2. Custom is helpful type of evidence i. Establishes prevailing practice in community or industry ii. Looks to trade rules or standard in industry 3. Expert witnesses familiar with practice can show less obvious custom i. Provide special knowledge or experience B. Usage 1. Judge reviews witness qualification and determines expertise 2. Jury may chose to accept or reject expert testimony i. Exception: medical malpractice C. Cases Dempsy v. Adison Crane Co. (D.D.C. 1965): Construction worker was helping move welding machine with a crane when jib broke free and fell on D, injuring him. Court found that industry standard is admissible on issue of negligence, but not conclusive; court makes final call on negligence. In this case, the minimal cost of modifications by closing hooks made failure to do so negligent given risk. Shilkret v. Annapolis Emergency Hosp. Ass'n (Md. 1975): Infant P had brain damage on delivery, parents sued. Lower court found D not negligent on "strict locality rule" or "similar locality rule" Court finds old rule outdated and that rule should be national standard for reasonable competent practitioner in the same specialization acting in the same or similar circumstances. Same rule applies to hospitals: standard of care is for reasonably competent hospital. Helling v. Carey (Wash. 1974): P had glaucoma, but ophthalmologist D didn't detect it for 5 years; didn't give eye pressure test because P was under 40 and disease was rare. Court found that standard practice is not always what ought to be standard of care. D was negligent despite practice standard. Test was simple and inexpensive and P is entitled to same protections a person over 40 enjoys. Miller v. Kennedy (Wash. Ct. App. 1974): P had heart problem, D gave kiddney biopsy to help diagnosis; but D did not tell P about risks or alternate treatments. D hits kidney and causes failure. Court finds that doctor has duty to disclose information on risks and alternatives to let patient make informed decision. Duty to disclose when there is: 1) material risk of injury; 2) feasible alternatives available; and 3) D can advise P without detriment. Exceptions are emergency and greater harm from disclosing. To win non-disclosure, P has to show reasonable person in his situation wouldn't take treatment leading to injury.
Page 13 3.3.7 Circumstantial Evidence: Res Ipsa Loquitur A. Cases Byrne v. Boadle (Ct Exchequer 1863): P is walking down highway under D's store when barrel of flour falls on him. Witnesses only see P hit by barrel, nothing else. Court finds that some cases may give rise to res ipsa loquitur when facts and injury lead to reasonable inference of injury. If P can show accident with prima facie evidence of negligence, burden may shift to D to refute. George Foltis Inc. v. City of New York (N.Y. 1941): D's water main broke causing P's restaurant to flood. P couldn't show negligence in pipes, invokes res ipsa loquitur. Court funds that res ipsa weakened by fact pipe was buried for nine years before break. Prima facie case of negligence made, but not enough to fully shift burden of proving damage was not negligence. P still must support inference of negligence w/ preponderance of evidence. Swiney v. Malone Freight Lines (Tenn. Ct. App. 1976): D's truck wheel became detached and hit P's car; court allowed case to go to jury under res ipsa loquitur. D provided evidence that tires were inspected and came off on bolt shearing. Court found that shearing happened, but negligent inference still fell on D given they drove with bad bolts. Ybarra v. Spangard (Cal. 1944): P went into surgery woke up with injured shoulder; sued hospital and doctors operating room. Court found res ipsa applicable when 1) accident does not normally occur w/out negligence; 2) caused by agency or instrumentality within control of D; and 3) no voluntary action or contribution by P. Also found that P did not need to point to single D as that would be unreasonable while unconscious.
Page 14
4.0 Causation
4.1 Cause in Fact: But For Test & Notion of Substantial Cause
A. General 1. Two-part test a. Was Ds conduct the cause-in-fact of Ps injuries? b. Was Ds conduct also the proximate cause of Ps injuries? 2. Cause is theoretical ability to recreate the event with what happened before 3. Sine que non test a. But for b. X caused Y: if X didnt happen, Y wouldnt happen 4. Cause-in-Fact Element a. Event can be described as part of a number of antecedent events which culminate in event under consideration b. Absence of particular antecedent event would diminish probability of consequent event 5. Logic of Causation a. Not looking for THE cause b. Looking for substantial cause or causes Kingston v. Chicago and Nw. R.R. (Wis. 1927): D caused one fire that joined up with a fire from a unknown source and burned down P's property. D raised defense that other fire would have burned property. Court found that concurring negligent acts that result in injury leave each actor individually responsible for full amount of injury. Test of causation is substantial factors. Kramer Service v. Wilkins (Miss. 1939): Defective transom fell on P while leaving room; two years later, P gets cancer in area of wound. P sues D for cancer. Court found from expert witnesses that chances of cancer from wound were remote. It is not enough that accident and injury coexisted; preponderance of evidence shows fallacy of post hoc ergo propter hoc. Daly v. Bergstedt (Minn. 1964): P trips on masonite in D's store and bruises breast; gets breast cancer 14 months later. Expert testified that trauma can cause cancer; 6 experts said no. Court found that legal causation takes into consideration a chain of events and allows inferences if natural and rational. Deference given to trier of fact. Daubert v. Merrell Dow Pharm. (1993): Trial court ruled evidence submitted by P was inadmissible under Frye standard because it was not "generally accepted" in its scientific community. Court found that the primary requirements are reliability and relevance to question tried. Reliability may be measured by testability, peer review, publication and acceptance.
Page 15 Summers v. Tice (Cal. 1948): Two hunters shot at quail at the same time and accidentally hit P; it couldn't be determined who actually hit P. Court found that if two or more parties commit a tort (negligence) in concert, both parties are the legally responsible for injuries on grounds that D was assisted in injury. When P shows multiple Ds have committed tort, burden falls to D to absolve himself. Matsuyama v. Birbaum (Mass. 2008): P had gastric cancer, but D failed to diagnose for 4 years; P went from low chance of survival to almost no chance. Court found that P could recover for loss of chance for recovery, even if odds of survival were less than even. Jury will take lost chance to recover and multiply by full damages to determine D's liability.
Page 16 In re Kinsman (2nd Cir. 1964): D's ship broke lose from dock with bad mooring and took another ship down river, hitting city draw bridge and causing flood. City, boat owner, and dock liable for the forces they unleash; found consequences of negligence foreseeable. Last clear chance may lead to some city liability, but boat owner and dock still liable for damage they caused. Wagon Mound II (Privy Council 1966): P was a ship at dock burned by D's oil discharge into the bay. Court found that although the risk was small, so much oil was discharged by engineer that he ought to have foreseen a minimal risk. A reasonable man would not have dismissed such a small risk because it was easy to prevent. A small risk may outweigh a trivial burden.
Page 17 Smithwick v. Hall & Upson Co. (Conn. 1890): P went onto part of the platform where D told him not to go; icehouse wall fell on him, causing him to fall from platform. Court found that D was liable because P was not contributorily negligent with respect to source of danger. D warned because there was no rail, not because of bad wall. Negligence from P must be proximate cause (added to probability) rather than condition (no alteration of event probability).
Page 18 B. Last Clear Chance Doctrine 1. Developed early in history of contributory negligence 2. Negligently caused injuries from a sequence of events 3. Courts give legal blame to last party who had chance to avoid injury a. Softened impact of contributory negligence b. Created confusion for the courts 4. R2 479: Last Clear Chance for Helpless P a. P subjecting self to risk of harm from Ds following negligence may recover from the harm if i. P unable to avoid by reasonable vigilance and care ii. D fails to utilize with reasonable care and competence the opportunity to avoid harm iii. Knows Ps situation and has reason to realize peril iv. Would Discover situation or have reason to realize the peril if he exercised dutiful vigilance 5. R2 480 Last Clear Chance for Inattentive P a. P could have discovered danger with reasonable vigilance may only recover if D i. Knows Ps situation ii. Realizes or has reason to know P is inattentive and will not discover peril in time to avoid harm iii. Is thereafter negligent by failing to use reasonable care and competence to avoid harm
Page 19 Auckenthaler v. Grundmeyer (Nev. 1994): P is kicked by D's horse during field exercise. Court found that assumption of risk theories have been subsumed by comparative negligence. Implied assumption focuses on D's lack of duty while comparative negligence analyzes conduct of actor, injured party, and standard of care.
Page 20
Wong-Leong v. Hawaiian Independent Refinery, Inc. (Haw. 1994): P sued D under vicarious liability when D's employee crashed into P's car coming home from company party. Court found that if D's employee was acting within scope of employment when tort was committed. If activity derives benefit for employer and risks are incidental to enterprise, scope of employment can be found. Jones v. Healthsouth Treasure Valley Hosp. (Idaho 2009): During surgery on P in D's hospital, transfusion technicians left pressure cuff on bag, causing fatal air embolism. Court found that contractor who performs services for D may render D liable if P reasonably accepts services with belief that they are rendered by D or employees. Apparent authority if D holds self out as agent and is accepted. 5.5.3 Indemnity A. Common Law 1. Party satisfying claim of P could recover entire amount that had been paid from the party against whom indemnity is granted 2. Vicarious liability makes sure that P gets paid 3. Indemnity promotes deterrent and punishment of person at fault 4. Covers situations where one D may be passively negligent and other actively negligent a. E.g. defective product from manufacturer that retailer sells 5. Comparative fault has modified 5.4.4 Imputed Contributory Comparative Negligence A. Both Ways Rule: Transferrable negligence 1. Negligence is imputed to Co-D when D was negligent 2. What about when P? a. courts usually rule it applies both ways 3. R3 5: Contributory negligence is imputed in most situations, but exception is carved out in automobile accident cases 5.5.5 Joint and Several Liability Walt Disney World Co. v. Wood (Fla. 1987): P injured at D's attraction; P 14% at fault, D 1% at fault, and P's fiance 85% at fault. Court found D jointly and severally liable, making D liable for 86% of costs. Joint liability makes D liable for fiance's amount because of spousal immunity. Interests of P keep joint liability despite adoption of comparative negligence.
Page 21 5.5.6 Contribution Among Joint Tortfeasors A. History 1. Used to be no right for contribution or partial payment 2. Most American Jurisdictions now allow
Page 22
Page 23 6.3.4 Exceptions to General Rule: Affirmative Duties Grimes v. Kennedy Krieger Institute, Inc. (Md. 2001): P was part of scientific study D conducted where children were put in houses with partial lead abatement to study impact on health; P was not informed of any danger. Court found that D had duty to P from special relationship as researcher and participant. With gap in information, P could not be solely responsible for protection from harm. Farwell v. Keaton (Mich. 1976): P injured in fight; friend D finds him under his car, gives him an icepack, tries to wake him up at grandparents, and abandons him. P dies in hospital 3 days later. Court found that D had special duty to P because they were on a joint social venture. D's attempts to rescue fell short because he did not seek medical help for P or let anyone know of his whereabouts. Maladonado v. S. Pac. Transp. Co. (Ariz. 1981): P tried to board D's train; employees caused jerking to keep P from boarding. P fell under, lost arm, broke leg; D did not call for help. Court found that if a person know or should know they caused harm, they have duty to prevent further harm. Duty includes aiding or averting harm if caused by D's instrumentality. Thompson v. County of Alameda (Cal. 1980): P's minor son was killed by juvenile released by D after juvenile made threat to kill a child if released. Court found that D had no duty to warn P because threat was not made against specific person. Lack of forseeable target meant warning to mother or neighborhood would have little value.
Page 24
Page 25
Page 26
Page 27 Indiana Harbor Belt v. American Cyanamid Co. (Ind. 1990): D's chemical spilled while on P's property, imposing cleanup costs. Court found D is not liable without negligence; chemicals may be dangerous, but risk is manageable to point strict liability is not needed. Cost-benefit analysis for risk prevention. Foster v. Preston Mill Co. (Wash. 1954): D's blasting caused P's minks to kill their young from sound and vibration. Court found that there was no strict liability because it was not a consequence within ordinary risk of dangerous activity. Harm must be the kind of harm that makes the activity abnormally dangerous. B. Restatements 1. R2 519: One who carries out abnormally dangerous activity is subject to strict liability, but limited to type of harm that makes activity dangerous 2. R2 520: Factors to consider if activity is abnormally dangerous i. High degree of risk ii. Likelihood that resulting harm would be great iii. Inability to eliminate risk by using reasonable care iv. Extent to which the activity is not a matter of common usage v. Inappropriateness of activity to place where conducted vi. Value to community in comparison to dangerous attributes 3. R3 20: Abnormally dangerous activity if i. Activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors ii. Activity is not a matter of common usage C. Coase Theorem 1. Parties reach efficient outcome regardless of liability rule 2. If rule is in favor in efficient, win 3. If rule is not efficient, pay other side to alter activity Minks Worth More Blasting Worth More Rule for Minks Mink owner sues and win Pay mink owner to blast Rule for Blaster Pay blaster not to blast Blaster sues and wins
Page 28 MacPherson v. Buick Motor Co. (N.Y. 1916): P injured when wheel spokes on D's car collapsed; defective wheel came from manufacturer who sold to D. Court found that if a product is reasonably expected to be dangerous if negligently made and product is known to be used by those other than the original purchaser, a duty to use reasonable care to prevent danger to them exists.
Page 29 C. Defect Definitions 1. R2 402A: At time the product leaves the sellers hands, it is not in a condition contemplated by ultimate consumer that will be unreasonably dangerous 2. R3: Manufacturing defect, design defect, warning defect
Page 30 B. Risk-Utility Factors 1. Usefulness and desirability of product 2. Safety aspects of product and likelihood of causing injury 3. Availability of substitute product that meets need and not unsafe 4. Ability to eliminate unsafe aspect without less utility or more expense 5. Ability of user to avoid danger by using care 6. Anticipated awareness of the dangers and obvious risk 7. Ability of manufacturer to increase price or get insurence
Page 31 C. Restatements 1. R3 18: Seller Disclaimers do not bar otherwise valid products liability claims 2. R3 14: one who sells or distributes a product as own is subject to liability Some commercial situations allow product liability (leasing) 3. R3 19(c): human parts are not subject to liability 4. R3 19: Usually restricted to tangible property
9.10 Defenses
A. 402A comment n misconduct 1. Failure to discover or guard against product defect 2. Assumption of risk 3. Negligent use of product 4. Comparative Responsibility B. R3 Products L. 17 1. Damages for harm may be reduced i. If conduct of P combines with product defect to cause harm ii. Ps conduct fails to conform to appropriate standards of care C. Case Bates v. Dow Agrosciences LLC (2005): P's crops were damaged by D's pesticide that they were told would be fine; D claimed preemption under FIFRA labeling standards. Court found that private remedy was an allowable and effects test for changing label didn't count.
Page 32 B. Presumptions 1. After certain time, rebuttable presumption that product was not defective B. Statutes 1. Consumer Products Safety Act: any person who sustains an injury can sue for violation of relevant consumer safety product rule i. If P can show violation and can sue in federal court, D can be made to pay attorney fees and expert witness costs 2. Tort reform statutes for: damages, lawyer fees, statute of repose, product defect definitions, joint and several liability, comparative negligence, compliance with statutes a defense, limiting suits in distribution network
Page 33 C. Cases Seffert v. Los Angeles Transit Lines (Cal. 1961): P crippled when bus shut door on her and dragged her; D appealed from damages they thought were too high. Court found no fixed standards to review damages, but should be upheld when possible. Damages may be adjusted if the amount shocks the conscience and gives rise to assumption that passion or prejudice influenced jurors. Wainwright v. Fontenot (La. 2000): P given the wrong dose of medication from D, causing him to go crazy on parents for 2 days; jury only awarded medical expenses, but no general damages. Court found that while jury may err by not awarding general damages for objective injury, no abuse of discretion was made because there was ample evidence that could lead jury to conclude that brief overdose was not a source of pain or suffering. McDougald v. Garber (N.Y. 1989): During surgery, P suffered oxygen deprivation while under anesthesia; sued D for malpractice. Jury awarded damages for pain and suffering and loss of enjoyment of life. Court found that cognitive awareness is a prerequisite to recovery loss of enjoyment of life and pain and suffering should encompass damages for loss of enjoyment of life.
Page 34