Torts II Outline

Preemption
Riegel v. Medtronic. page
Instant Facts: An injured patient sued a catheter manufacturer alleging state common law
claims, but the device maker argued that the claims were preempted by federal law.
Black Letter Rule: The Medical Device Amendments preempt state requirements that are
different from, or in addition to, any requirements applicable to a medical device under federal
law.
State common law claims against an FDAapproved medical device are preempted.
Preemption: The principle (derived from the Supremacy Clause) that a federal law can
supersede or supplant any inconsistent state law or regulation.
-A courts determination of a preemption claim in medical device cases generally breaks down
into three considerations:
(1) has the FDA established specific federal requirements that apply to the particular device;
(2) is there a particular state requirement with respect to the medical device; and
(3) does the state claim create requirements that are different from, or in addition to, the
specific federal requirements?
-A lack of specificity in either the federal or the state requirements may defeat a preemption
argument.
-There remains some conflict among the lower courts as to whether the FDAs premarket
approval process imposes specific federal requirements on a medical device, and whether
liability in a tort suit would impose specific state-law requirements.
-If enough specificity exists on both fronts, the court will scrutinize the plaintiffs claims to
determine whether successful litigation of any of them would establish or continue in effect a
different or addition[al] requirement.
-Dual Federalismwe recognize two set of sovereign (Federal & States).
States agree to give up part of their sovereign rights.
o Article 6 2, when state law conflicts with Federal Law, Federal Law trumps.
-Implied Preemptionthere is no express indication of preemption.
Courts first look for clear indication that this is what Congress had in mind.
Without express language, the courts look for clear evidence of intent to apply
preemption.
o You can look for intent in legislative history.
Wyeth Case
(1) FDA requires marketing labels of drugs to only include the language approved by the
FDA.
(2) Congress put FDA in charge of what labeling should include.

-In this case, the Supreme Court said:

That there is not any evidence that FDA would not change its labels to make drugs safer.
No intention that congress intended to bar state tort claims.
-In Riegel, MDA has express language about preemption (but only applies to devices).
-In Wyeth, state tort claim was allowed because this was about drugs and there was not an
express allowance of preemption.
Lohr Casehere the court said that there was no preemption of State tort claims.
-This was before 1976, (which was before the MDA was implemented).
-The device in this case grandfathered in because if the device was "substantial equivalent" to the
previously stringent approved products, then these similar products are not subject to the very
rigorous reviews to make it safe.
The device in this case there was no exacting review of its safety because it was
grandfathered in and so there is not preemption of state tort law.
State tort law should be allowed because these grandfathered devices need
the heavy scrutinity and these tort claims will provide so.
Supreme Court View on Preemption
-Supreme Court pretty clearly has a presumption not to find preemption.
If there is a clear indication of congressional intent for there to be preemption, the
Supreme Court's presumption not to find it will be overruled.
Even if they find preemption provision exists, the Supreme Court will pick the narrowest
construction of preemption. They want to keep the lowest possible conflict between
federal law and state law.
-The Medical Device Amendments will preempt any state law claims of those devices not
grandfathered in (this includes tort claims as well).

Statute of Limitations
-The Statute of Limitations is the time frame in which a tort claim of action must be brought in
-court.
-It serves two purposes:
(1) Encourage plaintiffs to bring tort claims pretty closely within the time of injury.
a. This is so that all evidence is still available, and the courts will be able to get an
accurate recollection of what truly happened.
(2) Period of Time after which a tortfeasor can have a sigh of relief that they can no longer be
sued for their tortious action.
a. If someone does try to bring a tort claim after the statute of limitations has run,
then this will be complete defense and thus bar the claim.
Exceptions to the Statute of Limitations:
Discovery Ruleif you cannot discover that a tort happened, the then SOL is tolled, and
it will start running when you discover or should have known of the tortious act.

 Tort Concealed by Fraudif a tortious act is concealed by fraud on behalf of the

negligent actor, then the SOL is tolled until P knows of the tort or until the fraud ends.

Strict Liability
Hammontree v. Jenner.
-Let the loss stay where it lands, unless there is a reason to shift the loss.
-This court said that legislature is the one to deal with strict liability.
Rylands v. Fletcher #1. Page 507.
-Instant Facts: The floor of the defendants reservoir, built on his land,
collapsed and flooded mine shafts on the plaintiffs land.
-Black Letter Rule: A person who, for his own purposes, keeps on his land
anything likely to do harm if it escapes must keep it in at his peril, and if he
does not do so, is prima facie liable for all the damages that are the natural
consequence of its escape.
-This is an ancient tension in tort law, where there is no proof of fault, but we
sill hold the defendant liable.
Res ispa allows you to prove fault indirectly instead of direct evidence.
o But in this case, the court finds liability by the conduct of the
defendant instead of the fault.
Rylands v. Fletcher #2. Page 512.
-Instant Facts: A cotton mill operator built a reservoir on land adjacent to
an underground mining operation. When the reservoir was filled, the water
escaped through some old mine shafts and into the operational mines.
-Black Letter Rule: A landowner is not responsible for damage to
neighboring land caused by the natural use of his land, but is strictly liable
for damage caused by the non-natural use of his land.
-Trespass and nuisance were not thought as a possibility for grounds as relief
on the claim.
-Usually there is no possibility to sue a principal for an independent
contractors work without some other reasoning/relationship.
-If one suffers personal injury, then these are not strict liability casesthere
has to be negligence on the part of the defendant.
Justice Blackburns view
When you go out into the world, you take on a certain amount of risk,
and when such risk matures into an accident, you have subjected
yourself to such injury.
o We leave this injury on the plaintiff.

o If we can show fault on part of the defendant (usually by

negligence) then we will shift the liability to the defendant.

Cairns View
If you make a non-natural use of the land (even if the materials were
naturally there) and it escapes, then you will be liable.
o It is possible that this non-natural use was probably referring to
ultra hazardous activity or uses of the land (like dynamite).
Three Types of Strict Liability Presented in the Rylands Case
1. Very broad rule of strict liability (Cranworth)If you bring something on
your land and if it escapes and causes damage, then you are going to
be responsible for the damages it causes.
2. Less so (Blackburn)if you bring rain water on your land that doesnt
naturally accumulate on your land, then you will be liable. But if it
accrues on its own, then no strict liability.
3. Very narrow (Cairns)only participating in ultra hazardous activity is
the only time that strict liability should be applied.
Note 3 (page 513)Availability of Insurance
-Exploding Water Boiler Case
In todays society, there are certain uses of the land that are beneficial
to the general welfare of society.
In these cases where something contained on one persons land
escapes to the other persons land and causes injury, sometimes there
is no fault of the landowner.
o You should have insurance companies to compensate injuries
where you cannot prove fault.
Note 5 (page 515)Englands View of Strict Liability
-England lets go of the rule set forth in Rylands v. Fletcher.
-It gives two justifications for it:
1. The availability of nuisance as a way out capturing outcome of the
Rylands case.
2. It might be a variation of trespass.
Sullivan v. Dunham. Page 516.
-Instant Facts: A woman was walking on a public road when she was struck
and killed by a piece of wood that was thrown by a landowner who was
blasting a tree that was on his land.
-Black Letter Rule: If a landowner cannot use his land in a particular way
without causing damage, he must either use his land in some other way or
be held responsible for the damage.

-This is a wrongful death cause of action.

In this case, we are looking for a wrongful act: neglect or default so
that we can bring a wrongful death suit.
-The court refers to the Hays Case:
We dont know how careful people were when they are blasting.
o If a person/property is injured, then strict liability is going to be
imposed.
What is the rationale behind this rule?
o The use of land in a lawful manner is not an absolute rightit is
limited by the higher rights of others to the lawful possession
(use and enjoyment) of their property.
**As a property owner, we have an unfettered right to use
our property.
-You do not have a legal right in a single activity that results in the wiping out
of anothers property totally.
It is better to limit the use by A instead of sacrificing the right to use by
B.
o Therefore, we are going to limit As act/prohibit this hazardous
act or make them liable for any damage at all that occurs.
-The injury must be direct and consequential.
Consequential means there must be a direct cause.
The injury must be a result as of the concussion.
Direct Causewe are looking for something physically present that causes
damage.
If it is a chunk of wood that causes damage then strict liability can be
imposed.
Without actual physical property that causes damage, then there must
be an act of negligence in order to impose liability.
o The court said that in cases of sound waves and vibrations that
cause damage, then there must be negligence in order to
recover.
****In most courts today, there is no difference between concussions that
cause injury and actual physical property like dust that causes injury.
Sic utere tuo ut alienum non laedasuse your property so as not to injure
the property of another.
This rule is expanded to include the person of another.
o It is not in of itself a principle of strict liabilitythere must be an
act or some amount of wrongfulness present.

*In blasting cases, the court isnt concerned about the carefulness of the
defendants.
This implies that there is some sort of wrongfulness present in the act
of blasting.
o Blasting is likely the type of activity itself where you have a
choice.
If there is a safer way to do something then you should do
it in that way.
Principle: We are asking party A to refrain from some acts
because of the rights of party B. if they still act and
cause injury, then we are going to impose liability, even if
A was careful.
Note 5 (page 519)Stored Dynamite
-Strict liability is imposed if the dynamite explodes, even when it is just
stored.
-But strict liability is not imposed in cases of slaughter houses, fumes, etc.
that have an impact on surrounding property.
Dynamite is much more inherently dangerous where the risk cannot be
reduced even by due care.
o It is abnormally dangerous or ultra-hazardous activity.
Note 6 (page 520) First Restatement & Strict Liabilitycovered
activity that was ultrahazardous (which was defined as involving a risk that
cannot be eliminated by the exercise of the utmost care and is not a matter
of common usage)
-The R.2d reframed the approach by providing that one who carries on an
abnormally dangerous activity is subject to liability for harm resulting from
the activity, although he has exercised the utmost care to prevent the harm.
R.2d 520In determining whether an activity is abnormally
dangerous, the following are factors for consideration:
a) existence of a high degree of risk of some harm to the person,
land, or chattels of others;
b) likelihood that the harm that results from it will be great;
c) inability to eliminate the risk by the exercise of reasonable care;
d) extent to which the activity is not a matter of common usage;
e) inappropriateness of the activity to the place where it is carried
on; and
f) extent to which its value to the community is outweighed by its
dangerous attributes.
-The R.3d, retains the abnormally dangerous from R.2d, but it omitted (e)
and (f) from above.
It left out:
o the location requirement

o value to the community consideration

Indiana Harbor Belt Railroad Co. v. American Cyanamid Co. US Court
of Appeals, 7th Cir., 1990. Page 520.
Instant Facts: American Cyanamid (D) loaded a railway car with toxic
chemicals. At
Indiana Harbors (P) railroad yard, these chemicals leaked, causing Indiana
Harbor (P) to incur cleanup charges.
Black Letter Rule: The manufacture and shipping (as opposed to
carrying) of toxic chemicals is not abnormally dangerous.

Issue: Is the shipper of a hazardous chemical by rail strictly liable for

the consequences of a spill or other accident to the shipment en route?
Holding: No, the shipper is not going to be held strictly liable for a spill
of hazardous chemical. It is possible that the shipper might have been
negligent, and thus, negligence charges may be brought instead.

-Accidents that are due to a lack of care can be prevented by taking care;
and when a lack of care can (unlike Siegler) be shown in court, such
accidents are adequately deterred by the threat of liability for negligence.
The manufacturer of a product is not considered to be engaged in an
abnormally dangerous activity merely because the product becomes
dangerous when it is handled or used in some way after it leaves his
premises, even if the danger is foreseeable.
-Justice Posner said that the point of strict liability is that sometimes
negligence is not going to be enough to transfer the costs of injury to the
person acting or negligence isnt sufficient enough to deter the dangerous
act.
But when negligence is sufficient to accomplish what we need it to,
then use negligence.
-Posner said that the shipper or railroad should be the ones that strict liability
should be imposed on, not the manufacturer.
But he says that this still isnt needed because negligence is adequate.
o The manufacturer put this product in the stream of commerce
they are the initiating force.
There might have been negligence on the part of the
manufacturer by picking a shipper that is not careful.
Either way, negligence works enough to cover both the act
and the harm.
Note 7 (page 529)Governments Liability for Strict Liability

-The court in Laird v. Nelms concluded that wrongful as used in 28 USC

1346(b) of the Federal Tort Claims Act did not permit recovery against the
government on a strict liability theory.
Although state law might recognize an action on a strict liability theory,
the statute does not permit imposition of such strict liability on the
government.
Note 9 (page 530)Contributory Negligence & Strict Liability
- Section 524 states that contributory negligence is not a defense to strict
liability except when the plaintiffs conduct involves knowingly and
unreasonably subjecting himself to the risk of harm from the activity.
An illustration to this is if a driver is so intent on passing the truck
ahead that the driver fails to see danger, dynamite plainly marked on
the truck, and collides with the truck causing an explosion, the driver is
not barred by contributory negligence.
The driver who has read the sign, however, is barred from recovery.
Comparative Negligence & Strict Liability
-An increasing number of cases support comparative negligence as an
appropriate partial defense in strict liability.
-The Restatement Third: Apportionment of Liability 7 provides:
Plaintiffs negligence that is a legal cause of an indivisible injury to the
plaintiff reduces the plaintiffs recovery in proportion to the share of
responsibility the fact finder assigns to the plaintiff (or other person for
whose negligence the plaintiff is responsible.)

Theoretical Perspective of Strict Liability

Nine justifications for vicarious liability:
A control theoryemphasizing responsibility for close personal
supervision over the work of an employee;
A retribution theoryan explanation offered by Holmes in the common
law based on vicarious liability as a form of payment in place of
forfeiting entitlement to the services of a wrongdoing servant;
An identification theorya somewhat mystical conception of the
master and servant as a single entity for legal purposes;
An evidentiary theoryserving as a kind of offshoot of res ispa loquitur
that emphasizes the masters superior ability to identify the wrongful
actor responsible for a victims injury;
A profit-based theoryturning on the fairness of linking the burdens of
a vagrant employees labors with the correlative benefits derived from
his services.

-Enterprise liability is as characterized by the twin notions that an enterprise

should bear the risks of accidents it produces because:
1. An enterprise has superior risk-bearing capacity compared to victims
who would otherwise bear the costs of accidents; and
2. An enterprise is generally better placed to respond to the safety
incentives created by liability rules than tis the party suffering harm.
-Another view of enterprise liability comes from the view in the Restatement
Third which is limited to a set of special casesliability that is, limited to
abnormally dangerous activities.
The distinctive modern form of strict liabilityenterprise liabilityis a
particular articulation of what it means to make agency the basis of
responsibility.
Two propositions form the core of enterprise liability.
o First, activities should bear their characteristic accident costs.
Fault liability pins the costs of the nonnegligent accidents
that are the long-run price of an activitys presence in the
world on the random victims of the activity.
Enterprise liability pins those accident costs on the activity
the enterprisewhich imposed the nonnegligent risks
responsible for the injuries at issue.
o Second, enterprise liability holds that an enterprises accident
costs should be distributed among the members of the
enterprise.
The costs of an injury should be shared by those who profit
from the activity responsible for the injury; they should not
be concentrated on the injured party, or be dispersed
across unrelated activities.
These two propositions are linked to a particular conception of
fairness.
o Fairness requires a just distribution of burdens and benefits.
o It therefore gives rise to a presumption that the costs of the
accidental physical injuries characteristic of an activity should be
borne by those who benefit from the activity, whether or not
they are culpably responsible for participating in the injuries at
issue.
These propositions are frequently linked to economic ideas
of allocative efficiency and loss-spreading.
Goals of Strict Liability
Loss Spreading
-A central goal of strict liability is to spread losses caused by accidental
injuries among a broad class of persons.

This helps to assure that the effects of otherwise devastating losses

are ameliorated by diffusing them among a broad array of appropriate
entities and individuals.

Loss Avoidance (or Risk Reduction)

-This goal, sometimes referred to as the primary reduction of accident
costs, aims at imposing liability in a way that reduces the number and
severity of accidents.
-This goal requires appraisal of the actors ability to systematically evaluate
the risks of his activities and make sound cost-benefit decisions about the
manner of operations as well as the level and location of the activity,
safeguards, and alternatives.
Loss Allocation (or Internalization)
-The objective for a loss to be initially borne (or internalized) by the
enterprise whose activities engendered it and whose activities are
sufficiently connected to the loss to make it appropriate to reflect the loss in
the cost of the enterprises services.
Administrative Efficiency
-Sometimes this goal is expressed in terms of reducing the tertiary costs of
accidents, meaning the systemic transaction costs involved in imposing
liability.
This tertiary goal tells us to question constantly whether an attempt
to reduce accident costs, either by reducing accidents themselves or
by reducing their secondary effects, costs more than it saves.
Fairness
-The dimensions of this goal are embodied in two paradigms:
Reciprocity
o This focuses on the relative magnitude and quality of the risks
created by the activities of the defendant and those of the
victim.
o A victim has a right to recover for injuries caused by a risk
greater in degree and different in order from those created by
the victim and imposed on the defendantin short, for injuries
resulting from non-reciprocal risks.
o This is a belief that between two innocent persons, the initiator
who benefits from the ultimately injurious activity should be
liable.
Reasonableness
Protection of Individual Autonomy

10

-This goal is occasionally mentioned by some writers as a goal of strict

liability.
**A strict liability regime stands side by side with negligence.
To determine this, you look to see if negligence would be sufficient to
fix or solve the problem.
-Writ of Trespassused to be all one had to show in order to recover for your
loss during an ultrahazardous activity.
-Economic Analysistraditionally, we assign the cost of doing the
ultrahazardous activity to the person who is obtaining the benefit from it.
Exp: Developer using dynamite
-Deterrencehow does this work in strict liability?
BPL analysis plays a part.
o We would expect a company to reduce the type of harmful
action/change method or quit doing such activity altogether.
B < P x L the possibility of a high loss/injury due to the
ultrahazardous activity, should deter the company from doing such
activity.
-BPL is used in negligence where you are only expected to pay for safety
to the extent where safety measures do not cost more than the injury.
Instead, under strict liability, they are expected to take any measures
possible to prevent the ultrahazardous activity.
o No matter how careful they are, they are going to be held liable.
This is because:
i. Spread the Lossthe cost of the accident can be spread
through slightly higher prices; the cost of the injury doesnt
stay with the injured party.
1. The riskier the behavior, the higher the cost of injury.
2. The presumably innocent party should not have to
pay this higher cost.
ii. Supply & Demand Notionif the high cost of avoiding this
accident is spread among the company, this cost will go
into the price of the goods. This will result in higher product
prices as prices increase, the demand will decrease.
1. The consumers will have some influence in the
companys incentive to take precautions to reduce
the risk so the cost of injury isnt so high.
-Judge Posner says despite their differences, it would be a mistake to
dichotomize negligence and strict liability.
He even says that negligence has some form of strict liability.
11

o An example of this is vicarious liability. this is a strict liability

notion.
No matter how careful the employer is, he is going to be
held liable if his employee harms another.
-Ultrahazardous activity brought about the principles of strict liability.
Without concern of fault, we are going to impose strict liability.
-This will eventually evolve into abnormally dangerous conditions where
things arent exactly ultrahazardous:
Exp: Exploding Coke bottle & Lawn Mower without Kill switch
o These two things arent ultrahazardous themselves alone, but
they create an abnormally dangerous condition.

Liability for Defective Products

-Originally, products liability law was created in the shadow of the privity
doctrine, which required a contractual relationship between the parties as
the basis for a duty of due care.
-The privity requirement was eventually undermined by a cluster of
categorical exceptions created in response to the growing influence of the
negligence principle.
-The judicial impulse to refashion the liability rules in this area was not
exhausted by consolidation of the negligence principle.
Instead, the courts later began to construct s system with elements of
strict liabilitya process that continues to lend a dynamic, and
controversial, character to product liability law.
MacPherson v. Buick Motor Co.. Court of Appeals of New York, 1916. Page
551.
Instant Facts: MacPherson (P), a purchaser of a car, was permitted to sue
the manufacturer for negligence in spite of the lack of privity of contract.
Black Letter Rule: A manufacturer owes a duty to the user of the
product even though the user did not purchase the product directly
from the manufacturer.
Issue: Did the defendant car manufacturer owe a duty of care and vigilance
to any one but the immediate purchaser?
--Did the defendant owe a duty of care and vigilance to anyone who would
use the car?
Holding: The defendant in this case as an automobile manufacturer
owed a duty to anyone that would reasonably foresee that it would use
the car. Even though D and the immediate purchaser were in privity of
contract, D knew that such automobile would then be resold to another
party and that party would rely on the safety of the car.

12

Note 1 (page 555)Privity of Contract & Foreseeable Users

Those plaintiffs that are foreseeable users of a product and within the
zone of danger, can bring a claim for a defective product even though
they were not in privity of contract with the manufacturer.
Thomas v. Winchesterthe falsely labeled poison case.
This case was an exception to the original privity requirement because
it is inherently dangerous to the point that it could harm human life.
Statler CaseCoffee Urn Case.
Cardozo said that this is the same type of case compared to the poison
case because there is the possibility of great danger.
**The MacPhearson case is the death of privity requirement.
Cardozo did not say that a car is inherently dangerous and apply that
exception like the above examples.
o Instead, he subtlety did away with the privity requirement and
said that if someone is harmed by a defective product, then they
are going to be able to recover and get over the hurdle of the
privity requirement.
-Why is Cardozo saying privity isnt required?
Buick did not manufacture the car just to sell it to the retailer.
The car was made that would be used by an end consumer that would
by it from the retailer.
Also, Cardozo says that the car can hold passengers and that they can
recover if theyre harmed.
-What about pedestrians? If they are injured, can they recover?
Are injuries to pedestrians foreseeable? Yes, it is foreseeable to see
that they would be injured.
o This doesnt allow unlimited liability because typically there are
going to only be so many people that can be injured in an
accident.
*If he is negligent, where danger is to be foreseen, there will be liability.
Note 9 (page 556)Warranty Development.
This is contract law.
This means that if the contact is breached down the way, there will be
liability.
At this time, warranty cases have limitations. By definition, it seems to
be limited only to the plaintiff who was in privity with the other person.
Warranties are going to limit the power/right of injured parties that
werent in privity.
MacPhearson is the case where tort law triumphs contract law.

13

Escola v. Coca Cola Bottling Co. of Fresno, Supreme Court of California,

1944. Page 557.
Instant Facts: Bottling Co. was sued for negligence by Escola (P) for injuries
sustained due to exploding bottle, and concurring opinion advocated strict
liability for manufacturer.
Black Letter Rule: A non-manufacturer bottling company, which has
exclusive control over bottles, can be held liable in negligence for an
exploding bottle, even though it is not clear why the bottle exploded,
based upon the doctrine of res ipsa loquitur.
-The harmed waitress here sued the Bottler under theory of negligence in the
bottling part.
There is expert testimony that the tests used to check the bottles are
pretty infallible, but there can still be defective products.
o Since the waitress wasnt there, she doesnt have to prove where
the breach of duty occurredso she can raise res ispa loquitur.
-The defendant here is not under exclusive control of the product, as
normally required by res ispa.
Because after the cokes are bottled, then they are shipped and moved
to the retailer. Then they sit at the retailers until used.
o There is a long time between when the defendant had exclusive
control and the plaintiff was injured.
Justice Traynor Showed Us a New Way of Products Liability
He said forget negligence, use strict liability.
o Because the plaintiff would have to be able to satisfy all the
negligence elements.
He said this is because manufacturers are:
1. Better equipped to pay for the injury because they can spread
the cost of the accident down the product line. Or they can get
insurance and pass the price to the consumers.
2. Better to prevent injuries. If they have a financial incentive to
have better product design, safety measures, this makes the
marketplace safer. we have to place the burden on them. This
makes it easier for the plaintiffs to recover.
3. The consumers are not in a position to be able to inspect the
products for defects and not understand how these complex
products work. The manufacturer is in a position to inspect the
products.
**Today, products are made around the country and we have no one to rely
on to insure the safety of the products except the manufacturer.
It is up to the manufacturers to make safe products.

14

-Traynor is not afraid to say that the socio-economic society has changed.
Traynor has to persuade us to let go of negligence and adopt strict
liability instead.
-Cardozo on the other hand, is afraid to do this.
He instead doesnt want us to think he is changing the law. He wants it
to appear that he was just applying an old rule to a new set of facts.
Traynors Reasons for Imposing Strict Liability
1. Deterrencepublic policy favoring that incentivize manufacturers to
not put defective products on the market.
2. Insurancespreading the cost of accidents on the manufacturers. Both
the social and economic costs are spread in the cost of the product.
3. Problems of Proofas a consumer, you may not be able to prove
where/how the negligence occurred or where the defect in the product
was at.
4. The key questions are for the jury. Jurors usually find liability
sometimes even when liability hasnt been proven. So this is even like
strict liability. Sometimes to solve this problem we can order a new
trial, but you cant always do it.
5. Fairnessthe innocent plaintiff should not bear the full cost of the
injury.
6. Strict liability already exists in this case as a matter of law in food
product cases.
a. Are we going to say that the risk in food products is really that
different from the products cases? No.
7. Social Change Argumentyou used to buy products from small
manufacturers, local people that you knew. Today, people are buying
stuff by huge international manufacturers.
-Warranty law lends itself to strict liability. if you impliedly or expressly
provide that a product is guaranteed for a specific use, then if someone is
harmed by it, you are going to be held liable.
Warranties are a combo of both contract and tort law.
You had to have privity originally for the warranty to cover/extend to
you.
o In Hennigsen v. Bloomfield Motors, we dont think privity is a
requirement in order for an injured party to sue for a defective
product.
Greenman v. Yuba Power Products, Inc. Page 562.
Judgment for P in a general verdict, so its not clear as to whether it was
found because of breach of warranty or negligence.
The Supreme Court said that this is the case where manufacturers are
going to be held strictly liable for its products.

15

o A manufacturer is strictly liable in tort when an article he places

on the market, knowing that it is to be used without inspection
for defects, proves to have a defect that causes injury to a
human being.
The purpose of such liability is to insure that the costs of
injuries resulting from defective products are borne by
manufacturers that put such products on the market rather
than the injured persons who are powerless to protect
themselves.
Vandermark v. Ford Motor Co. Page 562.
Defective brakes case.
All three nonsuits were reversed.
Ford was relying on disclaimers waiving their warranties ad the court
said this isnt going to work.
o The end user wouldnt know of these disclaimers and so they
cannot get away with this.
For the negligence claim, Ford passed the duty to inspect the cars
before they are sold to consumers upon the retailer.
o The court said that this is non-delegable duty and the
manufacturer is in the best position to do this.
The Supreme Court also said that the retailer is going to be held strictly
liable for their defective products they sell.
o The court does this because the retailers will then turn to the
manufacturers and have them indemnify the retailers from
liability.
This serves two purposes on the manufacturers:
1. Increase Insurance Policies
2. Design Better Products
R.2d 402A (page 568)this was the beginning of products liability cases.
We are going to hold a seller of a product strictly liable for a defective
product when it injures a party.
1) One who sells any product in a defective condition unreasonably
dangerous to the user or consumer or to his property is subject to
liability for physical harm thereby caused to the ultimate user or
consumer, or to his property if
a. the seller is engaged in the business of selling such a product,
and
b. it is expected to and does reach the user or consumer without
substantial change in the condition in which it is sold.
2) The rule stated in Subsection 1 applies although
a. the seller has exercised all possible care in the preparation and
sale of his product, and

16

b. the user or consumer has not bought the product from or entered
into any contractual relation with the seller.
R.3d (page 568)this simply codified the three types of defects that lead
to imposing strict liability.
1) One engaged in the business of selling or otherwise distributing
products who sells or distributes a defective product is subject to
liability for harm to persons or property caused by the defect.
2) For the purposes of determining whether a product is defective, there
are three types of defects. A product:
a. contains a manufacturing defect when the product departs from
its intended design even though all possible care was exercised
in the preparation and marketing of the product;
b. is defective in design when the foreseeable risks of harm posed
by the product could have been reduced or avoided by the
adoption of a reasonable alternative design by the seller or other
distributor, or a predecessor in the commercial chain of
distribution, and the omission of the alternative design renders
the product not reasonably safe;
c. is defective because of inadequate instructions or warning when
the foreseeable risks of harm posed by the product could have
been reduced or avoided by the provision of reasonable
instructions or warnings by the seller or other distributor, or a
predecessor in the commercial chain of distribution, and the
omission of the instructions or warnings render the product not
reasonably safe.
-What are the main difference between R.2d and R.3d?
1) R.3d drops the unreasonably dangerous condition from its statutes.
a. Some products are going to be unreasonably dangerous but this
sometimes resembles negligence and poses a tension if R.2d is
actually strict liability?
2) Ultimate user or consumer language is dropped in R.3d.
a. This means that bystanders can sue under strict liability for
injuries they suffer from the defective products.
**We have not dropped the requirement of the product must have a defect.
only defective products lead to recovery under strict liability.
This is not enterprise liability.
It may not be fault based but not exactly strict liability.
o It is strict in a way that even if manufacturers are completely
careful, they are still going to be held liable.
Manufacturing defectproducts come out of the manufacturing process
different than what the product was intended to be.

17

There was a departure in the manufacturing process that makes a

product that departs from the perfect design.

**When a product departs from the design norm, we are going to impose
strict liability.
Elmore v. American Motor Co. Page 563.
Injured bystanders should have equal opportunity to benefit from
recovery under strict liability.
Used Goods Sellers (page 564)sellers of used products, generally are
not going to be subject to strict liability.
You have to use negligence in order to recover from injury by a used
product.
Successors (page 564)a company is bought out by a new company.
Is this new company going to be strictly liable?
The Products Liability Restatement 12 adopts the traditional approach
to successor liability, imposing liability on the successor if the
acquisition:
a) Is accompanied by an agreement for the successor to assume
such liability; or
b) Results from a fraudulent conveyance to escape liability for the
debts or liabilities of the predecessor; or (if you transfer your
assets to another company so that you can get out of being
liable for the current lawsuits you are under, then we are going
to ignore the sale)
c) Constitutes a consolidation or merger with the predecessor;
d) Results in the successor becoming a continuation of the
predecessor.
a. These last two cover a lot of companies
Hypo: You lease a tiller from a leasing company can you hold liable the
leasing company under R.2d 402(A)?
Yes, because they put it in your hands even if it is a lease, then this is
going to be enough like a sale for it to cover this case.
Hypo: You buy a Tesla and sell it to a successor, and the car has problems
and injures the new owner. Can the new buyer sue you?
No because you are not in engaged in selling of such product.
Tesla can be sued.
-Comparison of R.2d & R.3dthe R.3d you might be under the business of
selling a product even though you dont normally sell such a product.
As the seller of the car under the R.3d, you might be held strictly liable.
18

Government Contractors & Product Defect Liability (page 566)

A private contractor who followed government specifications in making
a product could not be held liable for inadequacies in the design as
long as certain requirements were met.
The government cannot be sued when:
o the United States approved reasonably precise specifications;
o The equipment conformed to house specifications; and
o The supplier warned the United States about the dangers in the
use of the equipment that were known to the supplier but not to
the United States.
The last elements was necessary to remove any incentive
contractors might have to withhold such information since
conveying that knowledge might disrupt the contract but
withholding it would produce no liability.
Causation and proximate cause must still be proven in strict liability cases.
Emotional distress may be claimed under strict liability.
o In these case, the barriers to recovery for NIED did not apply in
products liability cases where plaintiff was not a bystander, but a
product user.
This implies that they might have to meet the original NIED
requirements if they were a bystander?
Strict Product Liability Requires the Selling of a Product
-Exp: You went to the movie and bought popcorn, ate it, but was food
poisoned.
Is this a product or service?
o This is probably a service because this is not something you get
to keep like a product.
o It is more about the experience of the movie theater.
Can you sue for product liability for the rancid popcorn?
o You could argue that the popcorn was a separate thing (making it
a product) that you dont have to watch the movie necessarily.
You could argue against this by saying the popcorn is a
part of the experience and thus not subject to products
strict liability.
-What predominates in this transaction? Is it the service or the product?
This is a standard that some courts follow in order to determine
whether products liability can be applied.
o The hybrid of many cases will allow one to sue for products
liability, but they have to persuade that this is a product
combined with a service.

19

Hairdresser Casethe court found that products liability

was applicable where a lady suffered chemical burns at the
hair salon. the hair product was charged for separately.
Movie Caseit is possible to argue that the popcorn was
separate purchase from movie ticket.
Manufacturing Defects

-These are generally hidden, latent defects that are not easily detectible.
Usually testing or inspection wont reveal these defects.
Manufacture Defectdefined as a departure from the manufacturing
specifications process.
This gives rise to the idea that this might be a fault-based theory of
liability even though we call it strict liability.
o It doesnt matter how careful the manufacturer was, but there
was still a departure but from the manufacturing process not
the standard of care.
Proof is usually difficult to proveplaintiff will have a difficult time
proving where the departure actually occurred.
-However, strict liability also poses the same problem because if the product
was destroyed or sent for repair, we cannot prove a defect of a particular
kind either.
How do we solve this problem?
o You have to show that ordinarily the injury from the product
doesnt occur except when the product has a defect.
This sounds a lot like res ispa loquitur as long as you can
show that the product/injury wouldnt occur unless there
was a defect.

Design Defects
-The characterization between design and manufacturing defects are
conceptually difficult to distinguish.
-The distinction is important because:
for a manufacturing defect youll look at the design and compare it to
the actual product based on departure from the defect and what the
product normally looks like when properly constructed.
design defectyour witnesses will testify to design of a class of
products, types of materials that could have been used, etc.

20

Cronin v. JBE Olson Corp. Page 571.

A bakery truck driver was injured in a crash when the trays came
forward and struck him in the back.
o Defendant appealed from a judgment for plaintiff on the ground
that the trial judges charge on strict liability omitted the
requirement that any defect in the product must be found to be
unreasonably dangerous as required by Restatement 204A.
The court disagreed.
The court rejected the unreasonably dangerous standard required by
the Restatement, and said this is not required to bring a claim.
o They felt like this would be too much like negligence. They want
it to be strict products liability case.
The court said that this could have been either a design defect case or
a manufacturing defect case.
o Depending on what theory you plan on recovering under, make
sure you call the right witnesses.
R.3d 2(b): defective designwhen the foreseeable risks of harm posed by
the products could have been avoided by a reasonable alternative design.
This incorporates theories of negligence.
R.3d 2(a): manufacturing defectsthere is no reasonableness test or
foreseeability test.
This is more like strict liability.
**R.3d is on page 12-13 of outline
Barker Case. Page 572.
The alleged design defects was that the high-loader was not equipped
with outriggers that would have provided additional stability as a load
was being lifted, increasing the center of gravity on a high-lift loader.
The Supreme Court said that a test to use whether P could recover
under Product Claim:
a. If product was used in intended manner; or
b. A reasonably foreseeable manner
The court said sometimes we use products in a way it wasnt designed
for
o Exp: Using a screwdriver to open a paint can.
Ordinary Consumer Expectations Testwhat does an ordinary consumer
expect for the product as to its safety?
In Barker, an ordinary consumer would be the guy who didnt show up
to work, the one who did, the company who needed the product.
-Do consumers ordinarily have expectations as to the safety of products?

21

In the real world, we usually dont think about safety expectations with
the respect to a design of a product.
**Different consumers might have different expectations.
Or they may have no expectations at all.
-What about the innocent by-standers who are injured? they probably
dont have an expectation as to the safety.
Risk Utility Test (also known as risk-benefit test)
1. Gravity of Danger of Challenged Designhow risky is the product
2. Likelihood of Danger B<P x L analysis
3. Mechanical Feasibility of Alternative Design
4. Financial Cost of an Improved Design
5. Adverse Consequences to Changing Product
**Problem is that if you change the design, then it may no longer be
the same product.
Soule v. General Motors Corporation. Supreme Court of California. Page
573.
Instant Facts: Soule (P) injured in car accident sued GM (D) for design
defect, and jury was erroneously instructed on consumer expectation test,
rather than risk-benefit test.
Black Letter Rule: Use of the consumer expectations test is not
appropriate where the evidence does not permit an inference that the
products performance did not meet the minimum safety expectations
of its ordinary users, and the jury should therefore be instructed on the
alternative risk-benefit test of design defect.
Issue: May a products design be found defective on grounds that the
products performance fell below the safety expectation of the ordinary
consumer if the question of how safely the product should have performed
cannot be answered by the common experience of its users?
Holding: Maybe, the safety expectation of the ordinary customer can
be sufficient to determine where a products design in some cases was
defective and thus resulting in injury to the user. However, in the
present case, the facts were so complex that the expert testimony
needed to be included in establishing whether there was a defect in
this cars design.

Ordinary Consumer Expectations charge that required plaintiff to

show:
1. The manufacturers product failed to perform as safely as an ordinary
consumer would expect,

22

2. The defect existed when the product left the manufacturers

possession,
3. The defect was a legal cause of plaintiffs enhanced injury, and
4. The product was used in a reasonably foreseeable manner.
-The purposes, behaviors, and dangers of certain products are commonly
understood by those who ordinarily use them.
Therefore, ordinary knowledge as to the products characteristics may
permit an inference that the product did not perform as safely as it
should.
o If the facts permit such a conclusion, and if the failure resulted
from the products design, a finding of defect is warranted
without any further proof.
The manufacturer may not defend a claim that a products
design failed to perform as safely as its ordinary
consumers would expect by presenting expert evidence of
the designs relative risks and benefits.
-An injured person is not foreclosed from proving a defect in the products
design simply because he cannot show that the reasonable minimum safety
expectations of its ordinary consumers were violated.
-The consumer expectation test is reserved for cases in which the everyday
experience of the products users permits a conclusion that the products
design violated minimum safety assumptions, and is thus defective
regardless of expert opinion about the merits of the design.
Where the minimum safety of a product is within the common
knowledge of lay jurors, expert witnesses may not be used to
demonstrate what an ordinary consumer would or should expect.
-Unless the facts actually permit an inference that the products performance
did not meet the minimum safety expectations of its ordinary users, the jury
must engage in the balancing of risks and benefits required by the second
prong of Baker.
The crucial question in each individual case is whether the circumstances
of the products failure permit an inference that the products design
performed below the legitimate, commonly accepted minimum safety
assumptions of its ordinary consumers.

A products design may perform so unsafely that the defect is apparent

to the common reason, experience, and understanding of its ordinary
consumers.
o In such cases, a lay jury is competent to make that
determination.

23

**The Consumer Expectation Test is more friendly to the plaintiff.

Because, even if the manufacturer made a risk-utility test, then this
evidence cannot be introduced if P has an expectation to the safety of
the product.
Reasonable Alternative Design
The R.3d adopted the Risk Utility Test.
o This requires the plaintiff to prove that a reasonable alternative
design would have reduced the foreseeable risk of harm.
o Even though products liability is a strict liability principle
requiring a reasonable alternative design incorporates
negligence principles into strict liability.
Factors Used to Determine Whether an Omission Renders a
Product Not Reasonably Safe:
1. Magnitude and Probability of the Foreseeable Risks of Harm
2. Instructions & Warnings Accompanying the Product
3. Nature & Strength of Consumer Expectations Regarding the
Products
4. Expectations Arising from Product Marketing and Portrayal
-In addition, the relative advantages and disadvantages of the product
and its proposed alternative must be considered. These include:
o Impact on Production Costs
o Product longevity, maintenance, repair, and aesthetics
o Range of consumer choice among products.
Note 7 (page 581)Limitations on Expert Testimony
Expert testimony is going to be limited by Daubert.
o The expert needs to have credentials in the field;
o Have support for his opinions by literature in the field;
o Be able to provide evidence of why the alternative design would
be safer.
Minority View: The risk-benefit/utility test puts the burden of proving that
the utility of the challenged design outweighs its dangers on the defendant
manufacturers.
But the reason that this design info is peculiarly within the control of
the defendant manufacturer, isnt exactly true, because through
discovery the plaintiff will now get access to the records.
Note 11 (page 583)Irreducible Risky Products
What do you do with the irreducible risky products? (you can only make
a gun so safe. There is no reasonable alternative design available)
24

o Even though the product was risky, this still needs to go to the
jury because the utility of the product may be difficult to
determine.
Exp: Some products are necessary, but also some products
are more of a luxury. But judgment as a matter of law can
still be ruled on this.
So those goods that are necessary and cant be made any
safer thats just part of it. But those goods that are luxuries
and cant be made any safer, imposing liability on them will
hopefully deter them from putting the product on the
market.
OBrian Caseno matter how dangerous the product is, and if there is
no reasonable alternative design and there was an adequate warning,
then the product should be free from product defect liability.
o This is a buyer/user beware situation.
o Also, with adequate warning, then consumer expectation must
be low.
**MANY COURTS FOLLOW THIS.

Camacho v. Honda Motor Co, Ltd.. Supreme Court of Colorado. Page 585.
Instant Facts: Camacho (P), injured while riding his motorcycle, sued Honda
(D) the manufacturer for design defect in not providing crash bars on the
motorcycle.
Black Letter Rule: Where the danger of the product is open and
obvious, the danger-utility test is the appropriate design defect test to
use rather than the consumer expectation test.
Issue: Is the consumer expectation test appropriate to determine whether a
product has a defective condition unreasonably dangerous to the user or
consumer?
Holding: No, in cases where there needs to be explanation and
evidence presented from experts about products that are technical,
then the consumer expectation is not appropriate because an average
consumer likely will not be able to have an expectation of the safety a
product should have.
Comment i to R.2d 402A:
The article sold must be dangerous to an extent beyond that which
would be contemplated by the ordinary consumer who purchases it,
with the ordinary knowledge common to the community as to its
characteristics.
o An obvious danger to a consumer does not make the defect
unreasonably dangerous the better the warning, then the
more unsafe the product can be.

25

This is very similar to negligences assumption of the risk

because you saw the danger, and decided to take the risk
anyway.

**Under this test, manufacturers can easily get out of liability by saying
that they gave a warning.
Crashworthiness Doctrinea motor vehicle manufacturer may be liable
in negligence or strict liability for injuries sustained in a motor vehicle
accident where a manufacturing or design defect, though not the cause of
the accident, caused or enhanced the injuries.
A manufacturers duty encompasses designing and building a product
reasonably fit and safe for its intended use, that automobiles are
intended for use on the roadways and that injury-producing collisions
are a frequent, foreseeable and statistically expectable result of such
normal use.
o The automobile manufacturer has a duty of reasonable care in
the design and manufacture of its product, including a duty to
use reasonable care to minimize the injurious effects of a
foreseeable collision by employing common sense safety
features.
The crashworthiness doctrine does not require a manufacturer to
provide absolute safety, but merely to provide some measure of
reasonable, cost effective safety in the foreseeable use of the product.
**This test looks to see whether there were alternatives or other ways
to design the product that could prevent reasonably foreseeable
accidents.
Question posed under the crashworthiness doctrine is not
whether the vehicle was obviously unsafe but rather whether the
degree of inherent dangerousness could or should have been
significantly reduced.
Ortho Factorswhether risk outweighs the benefit of product
-The following factors (set forth by the Ortho case) are of value in balancing
the attendant risks and benefits of a product to determine whether a product
design is unreasonably dangerous:
1. The usefulness and desirability of the productits utility to the user
and to the public as a whole.
2. The safety aspects of the productthe likelihood that it will cause
injury and the probable seriousness of the injury.
3. The availability of a substitute product which would meet the same
need and not be as unsafe.

26

4. The manufacturers ability to eliminate the unsafe character of the

product without impairing its usefulness or making it too expensive to
maintain.
5. The users ability to avoid danger by the exercise of care in the use of
the product.
6. The users anticipated awareness of the dangers inherent in the
product and their avoidability because of general public knowledge of
the obvious condition of the product, or of the existence of suitable
warnings or instructions.
7. The feasibility, on the part of the manufacturer, of spreading the loss
by setting the price of the product or carrying liability insurance.
Note 8 (page 607)Interplay Between Liability and Warning Labels
Where is a circumstance when comment i would work?
o When the utility of the product is so much greater than the
unavoidable risk.
this risk is an inherent part of the
product.
o Sometimes the dangerousness of the product cannot be reduced
any lower.
In these cases all we can really require is adequate warning to place
the users on notice of these unavoidable risks.
R.3d comment 1 of 2products should be designed to eliminate those risks
that the risk-utility tests said should be removed and all of the rest of those
risks, they will need warnings.
Misuse
Example: Car tire is grated for 50k miles. Not to be used longer than 6 years.
o Tire is 8 years old with tons of patches and repairs.
o Plaintiff has a high speed crash because of tires.
o Is this misuse?
The manufacturer would say that you were going to put it
on a car and use it only as long as it was intended.
-What is the legal effect of misuse?
Contributory negligence might would be argued but this is not
available to strict liability claims.
Product might not have been defective at all. it might be the
plaintiffs misuse of the product that caused the injury.
o Thus, there would be no defect.
Consequences of Misuse
1. The prima facie case for product liability is eliminated when
there is product misuse.
27

a. it gives the defendant the ability to move to dismiss

the claim because plaintiff has not yet pleaded a defect.
2. Even if the product is defective, that defect was not the
proximate cause of the injury. the misuse was a
superseding cause which is the ultimate cause of the injury.
3. Defendant gets to use misuse to reduce its liability in those
jurisdictions that allow comparative fault in strict liability
cases.
-Unforeseeable misusemisuse that is not reasonably foreseeable to the
manufacturer might give the manufacturer the chance to negate the
plaintiffs defect claim.
-Foreseeable misuse
Exp: Using a butter knife to help open a tight can and the blade snaps
and you cut an artery.
o D claims misuse but P argues that the manufacturer should know
that its knives are going to be used that way.
If such use was foreseeable, does it have to be designed
for those uses to prevent injury?
Car manufacturers are expected to design cars in a way
that can withstand a crash even though these crashes are
not an intended use, but it is foreseeable that a crash
would happen.
Foreseeability of a misuse does not always prove that the product is
defective.
o Exp: Chugging alcohol in 15 minutes and causes coma.
Superseding causemisuse or alteration of product.
o This provides a proximate cause argument for the manufacturer.
Those comparative fault jurisdictions (most, but not all) allow the
manufacturer to use misuse as a way to reduce the plaintiffs recovery.
Safety Instructions and Warnings
-There are some dangers that are so obvious that the common person will
know that the danger exists, thus, warning labels would not be needed
because the products risks are common knowledge.
Exp: knifes are sharp; alcohol if you drink it too fast; riding the back of
a pickup truck.
-Those things that are so commonly/obviously known to be dangerous, the
judge will decide.
In those cases that it is difficult to determine whether it was a
commonly known danger, then the jury needs to decide.

28

Hood v. Ryobi America Corp. United States Court of Appeals, Fourteenth

District, 1999.
Instant Facts: Hood (P), injured while using saw without a guard, argued
that manufacturers warnings were not specific enough concerning blade
detachment if used without guards.
Black Letter Rule: A manufacturer of a product need not warn the
user of every mishap or source of injury that could possibly flow from
the product; rather, the warning need only be one that is reasonable
under the circumstances.
Issue: Are warning labels enough in order to shield a manufacturers liability
when a plaintiff is injured by the product when they did not follow the safety
warnings and instructions?
Holding; Yes, warning labels are sufficient to protect a manufacturer
when a user is injured after not following such label warnings and
instructions.
-Question is: how much of a warning is needed?
Was it foreseeable in this case that someone might take the guards off
the saw?
o The location of the warning labels might show that the
manufacturer might foresee that someone might remove the
guards.
The product was designed that the saw might not be able to cut
through some wood and therefore might be foreseeable that someone
might remove the guards so that they can complete the cut.
Note 1 (page 603)Standard for Adequacy of Warning Labels
A reasonable warning not only conveys a fair indication of the dangers
involved, but also warns with the degree of intensity required by the nature
of the risk. Among the criteria for determining the adequacy of a warning
are:
1. the warning must adequately indicate the scope of the danger;
2. the warning must reasonably communicate the extent or seriousness
of the harm that could result from misuse of the product;
3. the physical aspects of the warning must be adequate to alert a
reasonably prudent person to the danger;
4. a simple directive warning may be inadequate when it fails to indicate
the consequences that might result from failure to follow it; and
5. the means to convey the warning must be adequate.
**Although the adequacy of a warning label has been a question of fact,
the courts have recognized it can become one of law.

29

Note 4 (page 605)Adequacy of the Communication of Warning

Label
The adequacy of a warning and its placement all are taken into
consideration.
Size of the print, color of the ink used.
Also pictograms should be used instead of just words.

Note 5 (page 606)Causation and the Occurrence of the Injury

If there is an inadequate warning, the burden shifts to the defendant to
prove that even if the warning location was different, the accident
would have still occurred anyway.
Note 6 (page 606)Person Addressed/Targeted by Warning Label
You have to aim the warning at the person that is foreseeable to be
harmed by the product.
In cigarette lighter cases, the warning should warn purchasers that it
poses a risk.
o You might argue that there are design defects in the lighter and
that they should have been made devilishly difficult for a kid to
be able to ignite it.
Note 7 (page 606)Sophisticated User Defense
A sophisticated user will be held to a higher standard as to whether a
reasonable person with their knowledge would have known better.
**There are some products that have built in dangers that cannot be
avoided. In these cases, an adequate warning of this risk might be enough to
defeat a design defect.
Note 10 (page 608)Products Dangerous for Another Exposed Class
Sometimes a product that is appropriate for one class of consumers is
dangerous for another group that is exposed to the product.
o Exp: Cigarette lighters in the hands of kids.
Usually do a risk-utility test to determine whether the warning needs to
be changed.
State v. Karl. Supreme Court of Appeals of West Virginia, 2007. Page 610.
Instant Facts: A drug manufacturer argued that it was not liable for failure
to warn about a drugs risks based on the learned intermediary doctrine.
Black Letter Rule: Manufacturers of prescription drugs are subject to
the same duty to warn consumers about the risks of their products as
other manufacturers.
30

Issue: Do drug manufacturers have a duty to inform consumers directly of

the potential side effects that might occur from taking a drug?
Holding: Yes, manufacturers must inform direct consumers of the risks
of a particular drug. Their liability is no loner waived merely because
they informed the doctor who was supposed to convey the side effects
to the patient.
Primary justifications that have been advanced for the learned
intermediary doctrine are:
1. The difficulty manufacturers would encounter in attempting to provide
warnings to the ultimate users of prescription drugs;
2. Patients reliance on their treating physicians judgment in selecting
appropriate prescription drugs;
3. The fact that it is physicians who exercise their professional judgment
in selecting appropriate drugs;
4. The belief that physicians are in the best position to provide
appropriate warnings to their patients; and
5. The concern that direct warnings to ultimate users would interfere with
doctor/patient relationships.
**The court said that there no longer is the need for the learned intermediary
doctrine, because of the development of direct-to-consumer advertising.
Argument for Direct-to-Consumer Advertising:
(1)if you can talk to the consumers for profit, then you also can provide
warnings.
(2)The reliance factor on doctors are less because patients are more
informed in todays society. But patients can even still rely and consult
with their doctors.
(4) There are not other sources of info that the consumers can research.
The different side effects of the drug are directly communicated in
media advertising.
(5) Advertising creates consumer wants and patients dont have to rely on
doctors to know their options of what medicines they can take.
(3) Advertising directly to consumers doesnt undercut this option. The
nature of informed consent has changed. Doctors dont spend that
much time with you anymore.
*The doctor needs to get the information about the drugs, but
patients also need to get the information.
**The FDA requires there to be consumer warnings in certain types of
products distributed.
R.3d 60adopts the learned intermediary rule but with exceptions

31

Justice Albright Dissentshe says that the rejection of the learned

intermediary doctrine is wrong because not all drugs are advertised the
same. There are some drugs that will not get information directly to the
consumers.
In addition, there are complex drugs that will need doctor expertise to
explain them.
Sometimes, even when warnings are in plain language, these may still
need to be explained to the patient.
o These plain language warnings may cause confusion and thus
given a reason to still need the learned intermediary doctrine.
**Argument against learned intermediary doctrine: it is unfair to leave all the
costs of the injury on the doctor when the manufacturer is making tons of
money.
Also if adopted, there would have to be exceptions which would make
it difficult to draw the line.
o This would place a burden on the courts because it would be a
very factually dependent exception.
A benefit of having a No Duty Rule, then you can move for
summary judgment before there is even a trial.
However, under this doctrine you might would still have to
go through discovery and through trial before we even
known whether the manufacturer will be held liable.

Note 5 (page 619)Pharmaceutical Design Defect Claims

o Drugs come with all kinds of dangers. Doctors can prescribe drugs for
any reasonit doesnt have to be for the label use.
o Drugs come with a label that provides its intended use as
approved by the FDA.
o However, doctors can prescribe drugs to be used for another
reason then what it was intended for.
o These warning labels are going to mainly warn of side effects of
its intended use.
o Can you maintain a design defect claim even when there are all of the
appropriate labels?
R.3d 6(c):
o If the foreseeable risks exceed the foreseeable therapeutic benefit to
the extent that a reasonable doctor would not prescribe the drug to
any class of patients, then there can be liability.
o This is a pro-defendant rule because even if there is only a small
group of people that the drug could be prescribed to, then they
can get off the hook.
32

Different Class of Patients

(1)Unusually susceptible to the side effects to the reset the balances.
(2)Condition for which the drug will be useful
(3)The therapeutic benefit is outweighed by the foreseeable risk.
a. Even further, children will be different than an adult.
**The R.2d 6 hasnt been implemented in many State Supreme Courts.
Vassallo v. Baxter Healthcare Corporation. Supreme Judicial Court of
Massachusetts, 1998. Page 620.
Instant Facts: Breast implant manufacturer, Baxter Healthcare Corporation
(D) challenged states law concerning the duty to warn even though the risk
was not known at the time of sale.
o Black Letter Rule: A manufacturer need only warn of risks that were
reasonably foreseeable when the product was sold, or that could have
been discovered through testing prior to marketing the product.
Issue: Under the implied warranty of merchantability, is a manufacturer
going to be liable for those injuries that occur that he failed to warn about
because the state of the art at that time could not predict or allow inference
that an accident reasonably foreseeable could occur?
o Holding: No, manufacturers are not required by law to provide
warnings or instructions for those accidents that was not reasonably
foreseeable at the time of sale or could not have been discovered by
way of reasonable testing prior to marketing the product.
**Most jurisdictions as well as R.2d & R.3d reject the idea of applying the
hindsight rule.
o This is because the types of risk that could occur cannot be warned
against but the risks themselves are unforeseeable.
o The purpose of a rule in tort law is to induce a certain type of
behavior. Therefore, making the manufacturer liable for not
providing a warning label would not support this goal.
Other Policy Reasons in Tort:
(1)Compensate Victim
(2)Risk Spreading (insurer)
(3)Avoidance of Injury (deterrence) motivate manufacturers to be more
careful
(4)Administrative costs of Trials (sometimes the costs of the trial
outweighs the benefits)
If the Hindsight Rule Was Kept:
(1)This would provide relief to P as compared to the hindsight rule.

33

(2)The risk spreading is better achieved because these costs of injuries

can be spread by the manufacturer to all consumers.
(3)This doesnt apply.
(4)If you have this rule, then it can give more predictability to the
outcome of cases.
**Under R.2d 402A, these strict liability claims have been converted more to
negligence claims because it can incorporate reasonableness and
foreseeability.
Note 2 (page 624)it seems like strict liability claims are actually
becoming more like negligence claims.
Note 7 (page 626)Subsequent Remedial Measures
o When a defendant repairs a front porch after someone has fallen
through, we normally cannot introduce this evidence to the jury
because they want to promote making repairs.
o When a defendant takes steps, after an accident, to make the
product safer, the rules of evidence prohibit the use of that
evidence to prove the product was defective or the manufacturer
negligent.
This is to promote people to fix defective products.

Defenses to Strict Liability

General Motors Corp. v. Sanchez. Supreme Court of Texas, 1999. Page
628.
Instant Facts: Manufacturer, General Motors Corp. (D), sought to defend
wrongful death action based upon deceaseds failure to properly park vehicle
in Park, which caused it to slip out of gear and crush him.
o Black Letter Rule: A consumer has no duty to discover or guard
against a product defect, but a consumers conduct other than the
mere failure to discover or guard against a product defect is subject to
comparative responsibility.
**Either some negligent failure or violating some legal standard will
be sufficient to reduce your recovery under strict liability.
Workplace Injuries to Employees
Types of Claims
o Defective Design
o Defective Manufacture
o Defective Warnings/Instruction

34

Can an employee sue his/her employer when a defective product

(purchased by employer) injures the employee?
o This would seem logical.
o There is a workers compensation statute that governs this:
o The provides the exclusive remedy for injuries that occur in
the workplace.
o It provides compensation for medical bills, loss wages, etc.
o This statute only permits an employee to sue a third party, but not
their employer.
o This means they usually will sue the manufacturer of the
product.
Jones v. Ryobi, Ltd. United States Court of Appeals, Eighth Circuit, 1994.
Page 637.
Instant Facts: Employee Jones (P) was denied recovery in product liability
action where the product was modified by a third party after it was sold.
o Black Letter Rule: When a third partys modification makes a safe
product unsafe, the seller is relieved of liability even if the modification
is foreseeable.
Issue: Is the seller of a product relieved of liability when a third partys
modification makes a safe product unsafe, even if the modification is
foreseeable?
o Holding: Yes. When a third partys modification makes a safe product
unsafe, the seller is relieved of liability even if the modification is
foreseeable.
*In the case where an employee is trying to sue the manufacturer for her
injuries under defect theory, the plaintiff has the burden of proof to show
that the defect in the product existed at the time of sale to the employer.
o Modification of the product waives the manufacturers liability even if
such modification was foreseeable.
Open & Obvious Dangersjust because the danger was open and obvious
doesnt mean that this should bar the claim.
o Test: Is this product in light of open & obvious dangers, unreasonably
dangerous?
-Court dont want to allow plaintiffs to easily recover from the
manufacturers because this will send a message to the industry that it
is okay to modify the product because the manufacturer will be held
liable.
-About of states have adopted statutes that state if there are
subsequent modifications, then there could possibly be judgment on
the pleadings for the manufacturer.

35

o This can take the question away from the jury.

o Some dont even take into consideration foreseeableness.
o It is almost a complete bar to the plaintiffs claim.
Liriano v. Hobart Corp. Court of Appeals of New York, 1998.
Instant Facts: Liriano (P) sued Hobart Corp. (D), the manufacturer of a meat
grinder, for failure to warn, although the grinder had been modified post-sale
by a third party who removed its safety guard.
o Black Letter Rule: Manufacturer liability for failure to warn may exist
in cases where the substantial modification defense would preclude
liability on a design defect theory.
Issue:
1. Can manufacturer liability exist under a failure to warn theory in cases
in which the substantial modification defense would preclude liability
under a design defect theory?
2. If so, is such manufacturer liability barred as a matter of law on the
facts of this case, viewed in the light most favorable to the plaintiff?
o Holding: Yes, manufacturer liability for failure to warn may exist
in cases where the substantial modification defense would
preclude liability on a design defect theory.
o The court doesnt answer the second question because it does
not have the facts of the case to determine.
-A manufacturer has a duty to warn against latent dangers resulting from
foreseeable uses of its product of which it knew or should have known.
A manufacturer also has a duty to warn of the danger of unintended
uses of a product provided these uses are reasonably foreseeable.
o Where a danger is readily apparent as a matter of common
sense, there should be no liability for failing to warn someone of
a risk or hazard which he or she appreciated to the same extent
as a warning would have provided.
Main Rule: The court here seems to be saying that even though a plaintiff
modifies a product (and thus cannot bring a defect claim) then they can
bring a claim if there is not a warning of the possible injuries that might arise
as a result of the modification.
Also, the foreseeable misuse doesnt necessarily serve as a complete
bar to the claim.
o It creates a question for the jury.
Note 5 (page 648)Bulk Supplier Exception to Products Liability
-Exception: When one company supplies a product in bulk to a large
enterprise where it be used by many workers.
Factors to be employed in determining whether the defense applies:
36

1. The likelihood of serious injury from a suppliers failure to

warn;
2. The burden on the supplier of giving a warning;
3. The feasibility and effectiveness of a suppliers warning;
4. The reliability of the employers to warn their own employees;
5. The existence and efficacy of other protections;
6. The social utility of requiring, or not requiring, suppliers to
warn.
**Courts hold that the burden of proof is on the supplier, in light of
above-listed factors, to establish that the warning demanded by the
plaintiff would not have been effective in preventing harm to the
individual users.
Note 6 (page 648)Waiver by Employerseller wants the purchaser to
sign a waiver that will release liability of the manufacturer then an
employee is injured, and will have to take the product as-is.
The employee will try to sue the manufacturer and they will claim that
the employer waived their right to hold the manufacturer liable and
this waiver extends for employees as well.
o Some courts follow this, and some dont.
Workers Compensation
Employer cant be sued by the employee.
Employee can sue the manufacturer.
o Can the manufacturer sue the employer on an indemnification
claim?
**Majority of sates dont allow this because the employer is
put into workers compensation and this covers the indirect
suit by an employees claim.
Plaintiffs arent really worried about who they can sue because
workers compensation is there for them to recover under.
o By eliminating employer as a third-party defendant, this helps
create a straight-forward products liability claim. this is
beneficial.
The gain is offset by the gap that reduces incentive of the
employers use or misuse of a product. this undermines
tort principle to want to undermine danger.

Beyond Products
Royer v. Catholic Medical Center. Supreme Court of New Hampshire,
1999. Page 655.

37

Instant Facts: Patient who received a defective prosthetic knee sued the
hospital for strict product design liability and hospital argued that it was not
engaged in the business of selling goods.
Black Letter Rule: A health care provider, who in the course of
rendering health care services supplies a prosthetic device to be
implanted into a patient, is not engaged in the business of selling
prostheses for purposes of strict products liability.
-One who sells any product in a defective condition unreasonably dangerous
to the user or consumer or to his property is subject to strict liability for
physical harm thereby caused, if the seller is engaged in the business of
selling such a product.
If the defendant merely provides a service, however, there is no
liability absent proof of a violation of a legal duty.
-When a contract involves both services and products, the court will look to
the essence of the transaction and try to determine what the dominant
purpose of the contract is.
It is possible that a product can be incidental to the transaction, not
the main focus.
Note 4&5 (page 658)Claims Against Professional Service Providers
Courts have closed the door on strict liability to professional service
providers.
Claims Against Pharmacists
In Murphy, court rejects strict liability against a pharmacist.
In this case, is the product ancillary to the service, or the service
ancillary to the product?
o When you go in, youre just after a drug, no so much as the
service.
o In the professional services arena, we treat these as negligence
claims and not strict liability.
Not all courts have followed this rule as to pharmacists.

Intersection of Tort & Contract

East River Steamship Corp. v. Transamerica Delaval Inc. US Supreme
Court, 1986. Page 661.
Instant Facts: East River (P) sued in tort to recover cost of repair and lost
income from defective turbine on supertanker.

38

Black Letter Rule: A cause of action in tort may not be stated when a
defective product purchased in a commercial transaction malfunctions,
injuring only the product itself and causing purely economic loss.
-The court doesnt allow the tort claim to happen because then the world of
contract law would drown in tort law.
In contract claims, you get to be made whole for the benefit of the
bargain.
o In tort, we want some reasonable limits on the amount of
damages awarded because tort law allows more damages.
If you go to tort law, you lose the benefit of the bargain.

Intentional Harm
Batteryan offensive or harmful touching with the requisite intent.
What kind of intent is needed?
1. Intent to harm/offend.
2. Intent to touch that will harm/offend
3. Intent to touch that in turn harms/offends
R.3d 1you act with the requisite intent if you act with the purpose of
inducing consequence or substantially certain injury would result.

Example 1: A intends to aim and John. Bullet hits John, he is harmed.

o This is battery. Why?
Harmful touching
Result of act by defendant
With knowledge she was going to produce that harm or
substantial likelihood it would occur.
Example 2: Abby shoots gun into crowd at sporting event. No intent.
o Yes, this is still battery because she knew it was substantially
certain someone would be harmed.
Example 3: Abby aims at John with the intent to hit him. She misses
and shot goes into sporting event crowd ands hits Larry.
o Battery?
If she knew sporting event was within range, then the
intent transfers to the victim that she did hit.

Garratt v. Daily. Supreme Court of Washington, 1955. Page 898.

Instant Facts: A woman brought suit against a young boy when she was
injured in a fall that resulted from his pulling a chair out from underneath her.
Black Letter Rule: When a person has knowledge to a substantial
certainty that harmful or offensive contact will result from a certain

39

action, a battery occurs if that action is taken, even if there is no intent

to cause harm to another.
Minor & BatteryAuthorities generally state that when a minor has
committed at tort with force, he is liable to be proceeded against as any
other person would be.
**If you knew there was a substantial likelihood that a harmful
conduct would occur, regardless to your intention, you will still be
liable.
Substantially Certain
o Exp 1: Abby fires into crowd with no specific intent to harm
anyone.
She committed a battery because it was substantially
certain that harm would occur.
o Exp 2: D pulls out chair so he can sit in it, he doesnt have any
intent at all.
Such behavior was reckless but still need more knowledge
that there is a highly likely outcome.
We have held that this type of substantially certain
is sufficient to establish intent.
However, if D did no know she was actually about to sit
down, there is no intent.
But he could have still been liable in negligence.
Note 4 (page 901)Eggshell Plaintiff & Intentional Torts
In Vosburg v. Putney, two kids are playing and one kicks the other
in the shin and the leg has to be amputated because there was a
previous injury there.
o Eggshell Plaintiff Rule applies to intentional tortsyou
take your plaintiff as you find them.
Note 7 (page 902)Punitive Damages are recoverable in
intentional torts.
Note 8 (page 903)Intent & Insanity
Insanity is no defense to intentional torts.
o The diagnosis of mental condition does not allow defense in
intentional torts.
Assaulta physical act of a threatening nature or an offer of corporal injury
which puts an individual in reasonable fear of imminent bodily harm.

40

Picard v. Barry Pontiac-Buick, Inc.. Supreme Court of Rhode Island, 1995.

Page 904.
Instant Facts: After Picard (P) took a picture of Barry Pontiac-Buick, Inc.s
(Barry Pontiac) (D) service worker inspecting her brakes, the service worker
(D) became angry, moved toward her, put his finger on the camera she was
holding, and said, Who gave you permission to take my picture?
Black Letter Rule: (1) An assault requires an act which puts a person
in reasonable fear of imminent bodily harm. (2) A battery occurs when
a person intentionally causes an offensive bodily contact with another
person, which includes contact with an object connected with that
person.
Issue:
1. Does an assault generally require a persons fear of imminent bodily
harm to be reasonable?
2. Can touching an object a person is holding satisfy the contact element
of battery?
Holding:
1. Yes. Assault and battery are separate acts, usually arising for the
same transaction, each having independent significance.
2. Yes. A battery is an act that a person intended to cause, and which did
cause, an offensive contact with or unconsented touching of another
person.
R.2d 18, comment c: Extension of Persona:
o Unpermitted and intentional contacts with anything so connected with
the body as to be customarily regarded as part of the others person
and therefore as partaking of its inviolability is actionable as offensive
contact with his person.
o There are some things such as clothing or cane or, indeed, anything
directly grasped by the hand which are so intimately connected with
ones body as to be universally regarded as part of the person.
Hypo: Suppose P is 250 lb. wrestler and D is 110 lb. and P says he
wasnt feared at all.
o This can still be an assault.
All you have to do is see it coming, and know offensive
touching is about to occurthis is apprehension.
FEAR IS NOT REQUIRED FOR AN ASSAULT.
Hypo 2: Suppose prankster is crouched behind person and then
changes his mind and leaves.
o No assault because there was no reasonable apprehension of
imminent harmful touching.

41

**You can have a battery without an assault.

Test for if theres a battery:
1. Act
2. Intent to Cause Contact
3. Contact Does Occur
4. Contact is Offensive/Harmful
5. Without Consent.
Note 2 (page 906)Conditional Threats
A threat to harm you a week from now is not imminent.
o Exp: Mobster says to another, get out of my building now or I will
kill you.
P can get out of the building to protect himself. (thus within
his control)
A conditional threat is not an assault because it is within your control
to get out of the situation.
o But it may be possible that a conditional threat may constitute
an assault.
Exp: If youre only given 10 secs.
Suppose you use a cocked, loaded gun and hold it to ones head and
tell them youre about to die so that that person will tell you info to
save their life.
o If you can retreat, then you dont have reasonable fear of
imminent harm.
Exp:

Suppose youre on a packed bus and arm touching someone.

Touching
Unconsented
Intended to touch a person?
o But you need intent.
o Plus, an ordinary, reasonable person wouldnt get offended
because it is momentary, indirect, and incidental touching.

Wishnatsky v. Huey. Court of Appeals of North Dakota, 1998. Page 907.

Instant Facts: While Huey (D) was conversing with attorney Crary in Crarys
office, Wishnatsky (P), Crarys paralegal, tried to enter without knocking, and
Huey (D) closed the door pushing Wishnatsky (P) back into the hall.
Black Letter Rule: A person commits an offensive contact battery if
he acts with an intent to cause a harmful or offensive contact with
another person, and his act directly or indirectly causes a contact with
another person which would offend a reasonable sense of personal
dignity.

42

-In this case Ws theory of battery is that battery is just offensive contact.
W is not claiming that the touching as harmful, but that the touching of
the door was offensive.
He said that it was offensive to his personal dignity.
What Constitutes Offensive Contact Under the Restatement?
What a reasonable person of reasonable dignity would find to be
offensive.
o You dont have to have harm.
o But you can have harmful touching that is offensive.
The two are independent of each other.
you can have harm without offense.
you can have offense without harm.
R.2d 18Battery: Offensive Contact:
1. An actor is subject to liability to another for battery if
a. he acts intending to cause a harmful or offensive contact
with the person of the other or a third person, or an
imminent apprehension of such a contact, and
b. an offensive contact with the person of the other directly or
indirectly results.
2. An act which is not done with the intention stated in Subsection
(1,a) does not make the actor liable to the other for a mere
offensive contact with the others person although the act
involves an unreasonable risk of inflicting it and, therefore, would
be negligent or reckless if the risk threatened bodily harm.
o Comment c to 18 notes that the contact need not be:
directly caused by some act of the actor and also
notes that the essence of the plaintiffs grievance
consists in the offense to the dignity involved in the
unpermitted and intentional invasion of the
inviolability of his person and not in any physical
harm done to his body.
R.2d 19What Constitutes Offensive Contact
A bodily contact is offensive if it offends a reasonable sense of
personal dignity.
o Comment a to 19 explains what kind of conduct offends a
reasonable sense of personal dignity:
In order that a contact be offensive to a reasonable
sense of personal dignity, it must be one which
would offend the ordinary person and as such one
not unduly sensitive as to his personal dignity.

43

It must therefore, be a contact which is

unwarranted by the social usages prevalent at
the time and place at which it is inflicted.

Momentary, Indirect, & Incidental

You can have momentary touching that is offensive.
You could probably have an indirect touching that is offensive.
Incidental can be offensive as well.
**Words CANNOT be a battery.
Note 3 (page 910)Battery & Medical Practice
In med-mal context, not getting informed consent before touching a
patient can be a battery.
o A consent to touching would be a valid defense for the doctor.
If there is no consent, then this is a battery.
Hypo: 2 doctors had consent to do surgery, and a third doctor did not
have consent.
Not harmful because the surgery was properly performed.
Is it offensive?
o No because they did not consent to this touching even though
the person is not awake, they cannot know.
How is this a battery?
o This is really like a med-mal negligence claim and you must
have consent of the patient.
It is more valuable claim to bring it as a battery because
you can get punitive damages.
More cases like this might actually have more
harm done when operating without consent.
However, it is difficult to call this a battery when
there is no harm, and so they only allow it as a
negligence claim.

False Imprisonment
False Imprisonmentunlawful restraint of an individuals personal liberty
or freedom of locomotion.
Imprisonmentdefined as any unlawful exercise or show of force by which
a person is compelled to remain where he does not wish to remain or to go
where he does not want to go.

44

In order for a false imprisonment to be present, there must be actual or

legal intent to restrain.
Unlawful restraint may be effected by words alone, by acts alone or
bothactual force is unnecessary to an action in false imprisonment.

Lopez v. Winchells Donut House. Illinois Appellate Court, 1984. Page

911.
Instant Facts: A donut shop clerk voluntarily joined two other employees in
a back room where they accused her of theft and questioned her.
Black Letter Rule: False imprisonment requires confinement against
a persons will, which may be effected by physical force, a threat of
force, or the assertion of authority, but not by moral pressure or a
threat of future action.
Issue: Is there false imprisonment when one is held in a room, but not
against his/her will?
Holding: No, absent evidence that shows that one is held against their
will, then he/she was not imprisoned or unlawfully detained.
-Restatement Second of Torts specifies ways in which an action may bring
about the confinement required as an element of false imprisonment
including:
1. Actual or apparent physical barriers;
2. Overpowering physical force, or by submission to physical force;
3. Threats of physical force;
4. Other duress; or
5. Asserted legal authority.
**Threats of a future action are not enough for false imprisonment.
Note 4 (page 915)False Arrest Compared to False Imprisonment
False arrestconstitutes a special case of false imprisonment and
applies in the situation in which a police officer or other person who
claims legal authority makes an arrest.
o Unless the defendant is legally entitled to make the arrest, she
would be subject to liability for the particular form of false
imprisonment known as false arrest.
Note 5 (page 915)Malicious Prosecution.
o False arrest cases do not reach claims in which, although the
warrant and legal forms were proper, no basis existed for the
arrest in the first place.

45

Malicious Prosecutionthe defendant in the original case claims that

the complainant began the prosecution without probable cause and for
improper purposes.
This action permits the original defendant, after exoneration, to
bring an action for expenses and humiliation sustained in the first
case.
-A more restricted form of this action lies in many states against persons
who wrongfully file civil actions.
Lack of Probable Causedefined as a case that any reasonable
attorney would agree is totally and completely without merit.
A court has held that an attorney may be held liable for malicious
prosecution for continuing to prosecute a lawsuit once it has been
discovered to lack probable cause.
*One court has held that the government cannot bring a malicious
prosecution action against an individual who had brought an unsuccessful
action against the government.

Shoplifting
-At common law, even a peace officer had no privilege to arrest for a
misdemeanor committed in the officers presenceunless the officer had a
warrantif the misdemeanor involved no breach of the peace.
-For a citizens arrest, most states require that the person arrested be guilty.
The shopkeeper must establish that a misdemeanor has indeed
occurred.
o Thus, if a suspect refuses to open packages or explain suspicious
conduct, traditional law presents the shopkeeper with the choice
of making a possible unlawful citizens arrest or letting the
suspect go.
o If, in fact, the suspect has obtained the goods legally, the
shopkeepers reasonable belief that they were stolen will not
protect against liability for battery if force is used to retrieve
goods.
If instead, the shopkeeper yells after this shoplifter to stop, and a
police officer makes the arrest, the shopkeeper will be deemed to have
instigated the arrest and will be subject to the standards of a citizens
arrestalthough the police officer may be protected as having made
the arrest on reasonable grounds.
o Reasonable grounds shall include, but not be limited to:
knowledge that a person has concealed possession of
unpurchased merchandise of a retail mercantile establishment.

46

o Reasonable time shall mean the time necessary to permit the

person detained to make a statement or to refuse to make a
statement, and the time necessary to examine employees and
records of the mercantile establishment relative to the ownership
of the merchandise.
**Stores often obtain waivers of claims from those alleged shoplifters that
they detain.
However, if the person is coerced into signing it, then a court might
hold that such waiver is not valid.
New York Shoplifter Statuteretailers or police officers are given a right
to detain an alleged shoplifter for a reasonable amount of time so that they
can recover the goods or determine if the person actually took the goods.
Under this statute, this is a defense to a claim against unlawful
detention, false imprisonment, etc. as long as the detention was
reasonable and for a reasonable amount of time.

Intentional Infliction of Emotional Distress

-Traditionally, courts were reluctant to recognize an action for intentional
infliction of emotional distress for two reasons:
The difficulties in assuring that actual harm had occurred.
The belief that a certain amount of verbal abuse is part of everyday
life.
-However, other courts started granting relief not only for intentional
infliction of emotional distress involving some physical injury, but also when
it caused emotional distress aloneat least where the actors behavior was
particularly offensive.
Justice Traynor said that a cause of action is established when it is
shown that one, in the absence of any privilege, intentionally subjects
another to the mental suffering incident to serious threats to his
physical well-being, whether or not the threats are made under such
circumstances as to constitute technical assault.
o In cases where mental suffering constitutes a major element of
damages it is anomalous to deny recovery because the
defendants intentional misconduct fell short of producing some
physical injury.
Womack v. Eldridge. Supreme Court of Virginia, 1974. Page 919.
Instant Facts: An investigator took Womacks (P) picture for an attorney to
use in a child molesting case, thus involving Womack (P) in the case and
causing him severe emotional distress.

47

Black Letter Rule: A person may recover for emotional distress

absent physical injury if the distress was severe and resulted from
conduct which was outrageous and intolerable and either intentional or
reckless.
Issue: Whether one who by extreme and outrageous conduct intentionally or
recklessly causes severe emotional distress to another is subject to liability
for such emotional distress absent any bodily injury?
Holding: Yes, one who suffers severe emotional distress can recover
for such damages even when there has not been any bodily injury.
R.2d 46 provides:
One who by extreme and outrageous conduction intentionally or
recklessly causes severe emotional distress to another is subject to
liability for such emotional distress, and if bodily harm to the other
results from it, for such bodily harm.
o Comment (i)expressly states that this rule also covers a
situation where the actor knows that distress is certain, or
substantially certain, to result from his conduct.
Gist of Rule: Under R.2d 46, as long as there is outrageous conduct, you
can recover for emotional harm and then can also recover if you happen to
have physical harm as well.
Thus, no physical harm is required in order to recover for IIED.
But, you must have suffered greatly in response to the outrageous
conduct.
-This creates a jury question: Whether something is sufficiently outrageous
and whether there was sufficient suffering.
This court adopts the view that a cause of action will lie for emotional
distress unaccompanied by physical injury, provided four elements are
shown:
1. The wrongdoers conduct was intentional or reckless.
a. This element is satisfied where the wrongdoer had the specific
purpose of inflicting emotional distress or where he intended his
specific conduct and knew or should have known that emotional
distress would likely result.
2. The conduct was outrageous and intolerable in that it offends against
the generally accepted standards of decency and morality.
a. This requirement is aimed at limiting frivolous suits and avoiding
litigation in situations where only bad manners and mere hurt
feelings are involved.
3. There was a causal connection between the wrongdoers conduct and
the emotional distress.
4. The emotional distress was severe.

48

-It is for the court to determine, in the first instance, whether the defendants
conduct may reasonably be regarded as so extreme and outrageous as to
permit recovery, or whether it is necessarily so.
Where reasonable men may differ, it is for the jury to determine
whether in the particular case, the conduct has been sufficiently
extreme and outrageous to result in liability.
Note 4 (page 922)Criticisms of Intentional Infliction of Emotional
Distress.
No clear definition of prohibited conductoutrageous is too squishy.
Does not actually give description for defendants conduct for courts to
follow.
-Offensive conduct and harmful is still subjective just like outrageousness.
-What can judges do if your concern of lack of clear guidance?
Judges consistently take that cases away from the jury and decide it for
themselves.
-The court in Russo, was skeptical if there was IIED because there was no
actual physical injury as a result of the stress.
Note 7 (page 923)Collection Agencies Harassing Debtors.
-Court ruled that the persistent calling 10-20 times per day and threatening
letters and threatening to embarrass the debtor in front of her employers
constituted IIED.
-The clinic over the medical bill was the one that got charged with IIED.
Why did this claim get put on the clinic?
o When the clinic hired the debt agency, they entered into a
contract to get them to make the calls. This is vicarious
liability.
But you have an independent contractor here. Even though
there might be an independent contractor, the collection
agency might have gone so far as to create a jury question
as to whether the agency went too far with the phone calls
and trying to recover the money.

Harassment Case
-All harassment cases that are applied under Title VII and other federal
statutes that fill the gaps of common law and provide plaintiffs a federal
forum on federal question.
-Statutoforificationa lot of the common law is being replaced by
statutes. It is the act of the common law being codified.

49

-The action for criminal conversation involved sexual intercourse of an

outsider with husband or wife, and is the tort action based on adultery.
Historically, the action was available only to the husband because of
the early property rights approach to the relationship between husband
and wife.
o In recent times some states have extended the action to wives
as well.
A majority of the states have abolished the action entirely
either legislatively or judicially.
-The second tort, for alienation of affections applies to behavior by which
outsiders through any means drive a wedge between family members.
Again, most states have abolished this action, through judicial decision
or by the enactment of heart balm statutes that prohibit suits based
on alienation grounds.
o In many states, these statutes also preclude actions based upon
breach of promise to marry and upon seduction.
**Both of these actions have been abolished in many jurisdictions.
McDermott v. Reynolds. Supreme Court of Virginia, 2000. Page 931.
INSTANT FACTS Reynolds (D) had an adulterous affair with McDermotts (P)
wife and continued to do so after McDermott (P) confronted him and asked
him to stop, causing him severe emotional distress.
Black Letter Rule: A statutory bar of actions for alienation of affection also
bars an action for intentional infliction of emotional distress where the
alleged conduct would support an action for alienation of affection.
Zwelling Casetherapist breaks up marriage and injured party brings
professional malpractice case and the court allowed this claim.
Only applies as to healthcare professional.
o But might be applied to other professionals as well.
Hustler Magazine v. Falwell. Supreme Court of the United States, 1988.
Page 932.
Instant Facts: Jerry Falwell (P) sued Hustler Magazine (D) for intentional
infliction of emotional distress for publishing a parody of Falwell (P) engaged
in incestuous acts with his mother.
Black Letter Rule: In order to recover for intentional infliction of
emotional distress, public figures must show that a false statement of
fact was made with actual malice.
-In a public figure case the defendant can only be held liable if the
statements were made knowingly false or with reckless disregard to their
falsity.
The plaintiff has to show actual malice.
50

*Slippery Slope Argumentscourt worries that political cartoonists and

satirists would be hindered because they all would be held liable for IIED.
Justice Renquisht said that they need First Amendment Protection.
Justice Falwell says that this is so over the top, that the First
Amendment shouldnt apply outrageousness.
o But the court doesnt accept this handrail because
outrageousness is a purely subjective test.
o Renquisht says that the First Amendemnt will not allow this
categorization.
Note 4 (page 937)Westboro Baptist Church Cases
Synder v. Phelps
Westboro Baptist Church was protesting funerals of fallen soldiers with
very harmful statements about the soldiers.
o The Supreme Court ruled in favor of the defendants because the
message was focused on matters of public concern exp: gay
rights.
o The Court said that this is public opinion/debate and even if it
was so outrageous, then it was protected speech by the First
Amendment.

Conversion and Trespass to Chattels

-Conversionan intentional act of dominion or control over a chattel which
so seriously interferes with the right of another to control it that the actor
may justly be required to pay the other full value of the chattel.

Hypo: You take neighbors wheelbarrow for a day and return it. What is
this?
o Conversion?No. Because it didnt so seriously interfere with the
neighbors exclusive right of dominion control. You interfered
with owners right to say, no you cant use it.
o Trespass to ChattelYes. What are the damages and how are
they measured?
You could rent a wheel barrow from Home Depot. This
would be the fair market value of a wheelbarrow for a day.
Hypo: What if you return it with no wheel, a whole, and a broken
handle?
o Here, this is conversion, and you owe the full value of the
wheelbarrow.
Hypo: You loan a wheelbarrow to someone and you cant find yours so
you take the neighbors who you thought you lent yours to.

51

o Trespass to Chattel?In the first example, you took it

intentionally knowing it belonged to the other person. Here, you
intentionally took it but subjectively thought it was your own
wheelbarrow.
The mistaken belief that something is yours and not theirs
is NOT a defense to trespass.
Thus, this example is still trespass to chattel.
**Trespass to Chattel & Conversion Actions can be brought for intangible
property.
Thyroff v. Nationwide Mutual Insurance Co.. Court of Appeals of New
York, 2007.
Instant Facts: Nationwide Mutual Insurance Co. (D) terminated Thyroffs (P)
contract as an insurance agent and then denied him access to his computer
files, and he brought a claim for conversion.
Black Letter Rule: Electronic records are subject to the tort of
conversion.
Issue: Does the law allow conversion of electronic data that has not been
put in a physical form of manifestation? (exp: printed out)
Holding: Yes, the difference between documents that are stored
electronically and tangible printed documents are so minimal and both
are equally as valuable.
-A variety of arguments have been made in support of expanding the scope
of conversion.
Some courts have decided that:
o A theft of intangible property is a violation of the criminal law
and should be civilly remediable;
o That virtual documents can be made tangible by the mere
expedient of a printing key function;
o That a writing is a document whether it is read on the computer
or printed on paper; and
o That the expense of creating intangible, computerized
information should be counterbalanced by the protection of an
effective civil action.
-Primary argument for retaining the traditional boundaries of the tort is:
That is seems preferable to fashion other remedies, such as unfair
competition, to protect people from having intangible values used and
appropriated in unfair ways.
o Advocates of this view readily concede that there is perhaps no
very valid and essential reason why there might not be
conversion of intangible property and that there is very little
52

practical importance whether the tort is called conversion, or a

similar tort with another name because in either case the
recovery is for full value of the intangible right so appropriated.
The lack of a compelling reason to prohibit conversion for
redress of a misappropriation of intangible property
underscores the need for reevaluating the appropriate
application of conversion.
Note 3 (page 944)Changing a Judges Draft Opinion.
Was this a conversion?
o Who owns the opinion?it could be argued that the Judge owns
it, but it might also be owned by the government. here, the
owner is the United States.
o Has the interference been so great to require payment of the full
value?since Judge can recover previous drafts, probably not
conversion.
o What is the damage value?
It might be how the delay affects the parties.
It might just be the value of the paper alone.
Note 7 (page 945)Moore v. Regents of University of California.
Here, the doctors take cells from a man without his permission and
these cells are used to develop a drug that becomes nationally
marketed to a $5B market.
Moore sued for conversion of property.Is there a claim for either cells
or DNA?
o The court says that a claim for conversion is not permitted
because if they allowed it, there would be a slump in human
research for fear of being liable in the future.
But the court said that you dont have property in yourself
when you are being treated for something that requires
the cells of your body removed.
Instead, Moore should have had a really good
informed consent claim, and the doctor should have
told Moore of how the cells were going to be used.

Defenses and Privileges

Consent
-Claims of express assumed risk by contractual disclosure and implied
assumed risk required the courts to decide issues that could be taken as
somewhat analogous to the claim, now to be considered in the context of
intentional harms, that plaintiff consented to the defendants invasive or
offensive contact.
53

Hart v. Geysel. Supreme Court of Washington, 1930. Page 946.

Instant Facts: Cartwright (P) died as a result of a blow he received in an
illegal prize fight he engaged in with Geysel (D).
Black Letter Rule: One who consents to particular conduct has no
right to recover damages for an injury he sustains when another acts
on that consent.
Issue: Does consent in a fight waive your right to bring an injury claim
against the defendant?
Holding: Yes, in this case it does.
There is a majority and minority rule to this question:
-Majority Rule:
Where the parties engage in mutual combat in anger, each is civilly
liable to the other for any physical injury inflicted by him during the
fight.
o The fact that the parties voluntarily engaged in the combat is no
defense to an action by either of them to recover damages for
personal injuries inflicted upon him by the other.
-Minority Rule:
Where parties engage in a mutual combat in anger, the act of each is
unlawful and relief will be denied them in a civil action; at least, in the
absence of showing the excessive force or malicious intent to do
serious injury upon the part of the defendant.
**This court does not take the minority or majority approach. Instead they
state:
If you consent to something and that action does occur, then you
cannot recover for those injuries.
Note 2 & 3 (page 948)Scope of Consent Limits the Defense.
In Vosburg v. Putney (page 32 above), if the kid had kicked the other in
the shin on the playground, the injury party would have been found to
have consented to the physical contact that occurred during a soccer
game.
o But what if D had intentionally tripped P in violation of soccer
rules?
The rules provide penalties for misconduct.
**It is hard to tell where/how far consent will take you in regards to a
defense to a battery claim.
**You can consent to touching, but that means you only consent to the
reasonably physical touching.

54

Exp: If you consent to an exam doesnt mean that the doctor can
do exploratory surgery.

Note 4 (page 948)Fraud & Consent.

Woman consented to have sex after the man told her that the couldnt
get anyone pregnant. (implying he was fertile). she ended up
pregnant and claimed battery.
The court said that she consented to sexual intercourse only.
o Two Reasons why Johns Consent Defense didnt work:
i. He obtained consent by fraud which negates consent
totally.
ii. Even if he had not contained consent by fraud, consent
was limited to scope of intercourse in a way she wouldnt
have gotten pregnant.
Self Defense
Courvoisier v. Raymond. Supreme Court of Colorado, 1896. Page 949.
Instant Facts: After being attacked by rioters and unsuccessfully trying to
scare them away, Courvoisier (D) saw Raymond (P) approach him,
mistakenly believed he was a rioter, and, fearing for his life, shot him.
Black Letter Rule: A person is privileged to act in self-defense if the
surrounding circumstances would lead a reasonable man to believe
that he was in danger of losing his life or of receiving great bodily
harm, and the person does so believe.
To Establish Justification of Necessary Using Self Defense, defendant
must prove:
1. Honesty in the (subjective) belief he needed to use self defense; and
2. Such belief was reasonable (objective standard)
**If you reasonably believed you didnt need to use self-defense
and you did it anyway and such act was unreasonable, then you
dont get to raise self defense.
-Sometimes, if you harm another person when trying to act in self defense,
then you may still be liable to that person in negligence.
Hypo: Suppose someones fixing to shoot you and you act in self
defense and put a bystander in front of you as a shield.
o The bystander can sue you because you have the dame duty to
everyone else to not cause injury to them.
Hypo: Suppose you shove a bystander to the ground to take cover from
a shot?

55

o If its a relatively trivial injury to that person in comparison to the

threat to your own life, you are privileged for pushing the other
person.
But the injuries must be minor.
Hypo: Suppose D is walking down the street and sees two other people
in a violent altercation. D tackles the person on top of the other and
breaks the guys arm.
o Does the guy with the broken arm have a suit against D? Can D
claim self defense?
Defense of Others Defenseif you could use that force
to get the other person off you, then a 3rd party can come
in and do such act on your behalf.
o What if D was mistaken, and they werent really fighting?
Who bears the burden of the mistake?
o If you put it on the rescuer, then they would be
deterred from rescuing.
R.2d 76the privilege continues even if rescuer was
mistaken as to need for providing assistance.
Other courts put the burden on those who are
participating in the fight.
o Courts are split on the issue.
Protection of Property
Katko v. Briney. Supreme Court of Iowa, 1971. Page 952.
Instant Facts: Briney (D) set a spring gun in his unoccupied farm house,
and the gun seriously injured Katko (P) when he broke into the house to steal
old bottles and fruit jars.
Black Letter Rule: An owner has a privilege to use reasonable force
to protect his property, but this privilege does not allow him to use a
deadly trap in an unoccupied building to protect his property against
trespassers and thieves.
-A person has no privilege to use force calculated to cause death or serious
bodily injury to defend land or chattels unless there is also a threat to his
personal safety which would justify his use of such force in self-defense.
-A landowner may only use such deadly devices when he would be privileged
to use deadly force if he were present, and a mere trespass against property
other than a dwelling does not justify the use of a deadly weapon in its
defense.
**You can use non-deadly force to defend your property though.

56

Exception: You can use deadly force if the trespasser was committing a
felony of violence or the trespasser was threatening the life of
someone.

-Question is: What circumstances would be reasonable to use deadly force to

protect your life?
Some courts say that any person that breaks into a house can be
assumed to pose injury to your life and thus, you can use self-defense.

Hypo: What if burglars are getting ready to leave and then you decide
to shoot?
o You have no privilege to shoot because you will be defending
your property.
Unless there is a statute that allows you to defend your
property no matter what.

Note 3 (page 956)Posners View on Deadly Force & Protection of

Property
Reasonableness Test to Determine Whether the Use of Deadly Force
is Justified to Protect Property Interests (consider the following factors):
1) The value of the property at stake measured against the costs of the
human life and limb;
2) The existence of an adequate legal remedy as an alternative to the use
of force;
3) The location of the property in terms of the difficulty of protecting it by
other means;
4) The kind of warning given;
5) The deadliness of the device used;
6) The character of the conflicting activities;
7) The cost of avoiding interference by other means.
*Posner held that the dominant purpose of the rules of liability is to channel
peoples conduct, and in such a way that the value of interfering activities is
maximized.
Private Necessity
Ploof v. Putnam. Page 957.
-Defendant cuts loose Ps boat from a dock. It was stored there so it would be
protected from the storm at sea.
The Boat Sinks and there are injuries.
-D raises the property defense that he has a right to protect his island and
dock.
He claimed he had a privilege to exclude others that comes from
your property.

57

o He said that this is what he was doing when he cut the ship
loose.
**You only have the right to create a harm when that harm is going to be
lesser than the other harm that would have occurred.
P has a right of preservation of life/limb & protection of their very own
property.
-The question to ask: Do you have a superior right or greater interest in
protecting your own property so that it is justified to violate the other
persons right?
Exp: Break into parking garage to save severe hail damage to your car.
you probably have a superior interest than the garage owner.
Vincent v. Lake Erie Transportation Co.. Supreme Court of Minnesota,
1910. Page 958.
Instant Facts: During a fierce storm, a steamship was repeatedly thrown
against a dock, causing damage to the dock.
Black Letter Rule: Damage caused to anothers property due to
necessity requires compensation for the actual harm caused.
**Court said that necessity may allow you to trespass on anothers property,
but justice requires you to compensate the damage you created.
The courts generally will only let the injured property owner recover
the cost to fix the physical damage, not things like lost rent, etc.
Note 7 (page 962)R.2d View of Private Necessity
Hypo: You throw someone else in harms way in order to save yourself.
o If it is a minor harm, then this can be a privilege because you
have a greater interest in protecting your own life when it only
causes minor injury.
But you cannot sacrifice anothers life to protect your own
life.
Hypo: A is Nobel Peace Prize Winner & 3 year old dies.
o No privilege here.
Hypo: But can you sacrifice the 3 year old to save 127 other people?
o The courts take the position that you cannot sacrifice anothers
life, but you can sacrifice their well being, convenience, or minor
injuries.
Can you be sued for the medical expenses that you caused
the other person by protecting yourself? Yes. This is just
like Vincent.
But they cannot sue you for the interference with
their right to have no one to interfere with their
bodily well being.
58

The duty to pay medical fees are also extended by the egg
shell plaintiff rule.

Note 9 (page 962)Public Necessity

You destroy a home in order to save the rest of the city from fire.
The homeowner loses.
o If the government has to pay when it exercises eminent domain,
why doesnt it have to pay here?
The court said that the house would have been destroyed
anyway.
Therefore, it is possible to argue that the value of the rest
of the city was more than the house and chattels in it.

Adjudicating Foreign Conduct in the United States

-Here, we are dealing with the satutorification of common law. they
provide a forum for people to recover for acts that occur in foreign property,
torts made by public officials.
-Government Immunities exist under these statues.
1983 doesnt have an immunity provision.
-In actions against State or Local Legislatures under 1983, there are two
types of immunity:
1) Absolute Immunityprosecutors, legislators, and judicial officers are
immune even if they have hateful intent no trial needed.
2) Qualified Immunityyou thought you were behaving in a proper/legal
way, but youre not. usually requires a trial.
a. Given to the Executive Branch (even includes police officers)
b. All you have to show is good faith.

Compensatory Damages
Pecuniary
Medical
Past

Future

Non-Pecuniary
(pain & suffering, etc)

Lost Earnings
Past

Past

Future

Future

-Money and compensation are goals of the tort system.

-Is money really sufficient to make you whole?
Cash is enough to pay medical bills, but the rest of it might be hard to
speculate.

59

-Judge Posner has said that damages for past pain and suffering has no
significance because its hard to put a value on your pain.
But, your pain and suffering might be reflected in your past lost
earning and medical expenses.
He said that past pain and suffering have no economic value alone.
o Even future pain and suffering might have no significance.
-There are methods in which the court can adjust the damage award after
the jury has allotted the amount.
In California, the only way an Appellate Court can reverse damages is if
it shocks the conscience.
Remitturtrial court knocks damages down.
Additurcourt increases damages.
Seffert v. Los Angeles Transit Lines. Supreme Court of California, 1961.
Page 711.
Instant Facts: A bus passenger who was permanently and severely injured
when the bus dragged her for several blocks while her arm and foot were
caught in the bus door was awarded a large amount for pain and suffering.
Black Letter Rule: A jurys award of damages for pain and suffering
will not be disturbed unless it is so large as to shock the conscience of
the court.
Issue: Was the amount of damages for pain and suffering, which was several
times greater than the pecuniary damages and was based on a
mathematical formula suggested by plaintiffs attorney, excessive?
Holding: No. It must be remembered that the jury fixed these
damages and that the trial judge denied a motion for a new trial.
-An appellate court can interfere and declare the judgment to be excessive
only if the verdict is so large that, at first blush, it shocks the conscience and
suggests passion, prejudice, or corruption on the part of the jury.
In making this determination, the appellate court may consider the
amounts awarded prior cases for similar injuries, but each case must
be decided on its own facts and circumstancesinjuries are seldom
identical and the amount of pain and suffering in each case will vary
greatly.
-Lost wages are calculated by your recent paystubs so that you can see what
the current pay is.
-How do you prove future medical expenses?
You get testimony from doctors as to what their predictions of what
future medical care/expenses will be.
60

o The jury gets to decide what they think the types of

injuries/treatments the plaintiff will need.
-Justice Traynor said that closing arguments should not be able to include
medical costs.
He says this is because the jury often times will take the figure
supplied by Ps attorney and might be misled.
Tax Status
-Some courts say that juries are allowed to adjust the amount of damages for
the effects of taxes.
-Some courts dont give any instruction at all.
-Traynor said that on closing argument for pain and suffering, attorneys
should not be able to give figures because there is no factual/concrete law to
support it.
This gives the jury the opportunity to just speculate on a number and
just select it.
-Why not give juries some sort of guidance to calculate damages?
Traynor said that the attorney cant do this because it is unsupported
by evidence.
**Some jurisdictions allow per diam (attorneys prediction of value of life).
Others dont.
Note 7 (page 724)Remittitur and Additur
If you as a judge think the jury awarded too much damages, you have
two options:
1. Order a New Trial
2. Remitt the damages and reduce the jurys award.
Under remittitur, the judge can name his damages X or pick a range.
-Hypo: As Ps attorney and the jury awards too much damages, the judge
gives you the option to take $500k or go to trial?
There is a possibility that the jury will not find for you.
Or the jury might come in at an amount that is much lower than $500k.
o You have to try and make the best decision.
*As an attorney, being paid on a contingency fee basis, you have a conflict of
interest because you want the higher pain and suffering awards.
However, you have a fiduciary obligation to put patients interest first.
o So you have to disclose the conflict of interest and tell the client
that this is 100% their decision.
-What if the jury comes in way too low?

61

As judge you can perform additurwhere you can add to the jury
award.
o Only some courts allow this. The federal courts arent allowed to
do this because it violates the 7th Amendment.
The theory behind this is that under remittitur, the jury
already approved those lower amounts so you can reduce
the award.
But with additur, you are adding to the award that the jury
wasnt willing to go that high.
But you can also make the same argument that
reducing the amount also forces an award that the
jury didnt want.

Note 11 (page 726)Cap on Non-Pecuniary Awards

Some states have set maximum amounts that may be awarded for
pain and suffering.
o This is very popular in medical malpractice cases.
Objectives of doing so:
1. Lower Medical Malpractice Premiums.
2. Plaintiffs Attorneys are paid on a contingency fee so their
payment is going to be lower so they stop taking cases.
a. In Texas, med mal cases ceased.
b. Also, lawyers started switching to products liability cases.
This also raises constitution questions: In Texas, there is an open
courts provision where the courts can undo any legislation that they
did not believe was good.
Note 13 (page 727)Caps on Total Awards
In some jurisdictions, there are statutory caps on total awards (both
economic and non-economic damages).
Note 14 (page 727)Contingent Fees
Some states have enforced a system where the percentage of the
awards an attorney can take depends on what stage the damages are
awarded in.
o The further in the case (i.e. after a trial) that damages are
awarded, then typically the more attorneys are going to be able
to keep.
Typically, the bigger the award, the less the percentage the attorney
can keep.
McDougald v. Garber. Court of Appeals of New York, 1989. Page 728.
Instant Facts: A doctors malpractice left the patient permanently
comatose, so the patient (through a representative) sued for the loss of
enjoyment of life as well as pain and suffering.
62

Black Letter Rule: The loss of enjoyment of life is an element of pain

and suffering and cannot be calculated separately.
Issue: Is the damage caused by loss of enjoyment of life a separate element
of damage that is distinct from the damage caused by pain and suffering?
Holding: No. An award of damages to a person injured by the
negligence of another is to compensate the victim, not to punish the
wrongdoer.
1st Issue: Can you recover for loss of enjoyment of life when there is
no awareness that youve lost it?
Judge Titone dissents and says regardless of the awareness, one still
just loses their life and should be compensated for this.
o The majority says that the purpose of damages is to make one
whole. So economic loss of earnings can be easily calculated.
o The majority also says that non-economic damages are a legal
fiction where all we can do is just throw money at the injured
party.
*We want our award damages to have meaning and utility.
Meaning
o The court says that you want the money to be able to give the
patient some sort of benefit of the scales of justice.
o This is all we can do to compensate them
Utility
o We want the money to be something that the person can use.
o So if the person is unconscious and is unaware of its even
existence, then the award serves no utility at that point.
**The court says that some level of awareness is going to be required in
order to recover the loss of enjoyment of life.
You get the maximum award when you are conscious and realize there
are things in life you can no longer do.
o But when they take all of the awareness away and you are
unconscious, you dont get to recover at all.
-Judge Titone says that this requirement of meaning and utility is not justified
as a matter of law.
He says this is so because the utility and meaning measures are very
subjective values and arent needed.
He said as long as harm is caused, even if youre not aware of it, the
you still should get to recover.
o He says the objective standard is sufficient.

63

2nd Issue: Whether Pain and Suffering Encompasses the Loss of

Enjoyment of Life?
The majority says it does because they dont want excessive awards
and the plaintiff will get double compensation.
-The target goal with compensatory damages is to make sure we dont have
duplicative and excessive awards.
The court here does this by combining the two categories of awards.
Plus, the court said that the error of this double compensation is even
more likely to happen.
-P responds that by packaging the two damages together, they are going to
be undercompensated.
But the court said that if they try to be more precise of the award
instructions, this misleads the jury to think there is some sort of way to
calculate it.
But the court mainly said that it is the trial attorneys duty to make
sure that jury keeps the two awards of pain and suffering and loss of
enjoyment of life separate so that they dont lost track of loss of
enjoyment of life.

Damages in the Event of Death

-In the event of death, two potential claims are provided: a survival action
and, when the tortious conduct is responsible for the victims death, a
wrongful death action.
Survival Action (damages one can recover for the time leading up to their
death)
-Survival cases provide for recovery of damages that the deceased could
have obtained before death.
-The measure of past lost income and medical expenses (that is, loss
suffered between the time of injury and the time of death) is similar to nondeath cases.
The survival action also typically allows recovery for pain and suffering
sustained by the decedent.
-Why does the decedent get to recover for pain and suffering even though
theyve deceased?
You still want to put the cost of the injury on the tortfeasor for
deterrence purposes.
The idea behind this action is that there are types of damages one
could have recovered had they not passed away.
-Furthermore, the decedent might have lived up until the day of the
judgment and then die.

64

The courts want the decedents estate to still get the value of what the
decedent should have gotten.

Pain & Sufferingseems to require that the decedent must have been
alive and conscious for at least some time.
o This includes emotional suffering, etc.
o Since this is highly subjective, it makes it very difficult to
calculate.

Wrongful Death Actions (the beneficiaries of the decedent are the ones
who bring the suit)
It compensates the survivors for the loss they experience because the
decedent died.
o Usually includes pecuniary and non pecuniary damages.
This claim is provided for by statute, and so they are narrowly
construed.
-Wrongful death and survival actions are often brought together.
-In wrongful death actions, the major item of damages traditionally has been
the economic loss to the beneficiaries, because in many states only
pecuniary loss is recoverable.
Since the beneficiaries are to recover only their loss, their damages are
not the decedents loss wages as such.
o From that lost income figure, the amount the decedent would
have spent personally for food, clothing, and other personal
consumption has to be deducted.
Hedonic LossLoss of the enjoyment of life.
Why does this even fit into survival actions?
o This awards looks at the life the person lost because of the
death.
This is a forward looking damage while survival actions are based on
the past.
**This is an odd fit in wrongful death action because the survivors are the
one getting the money.
Durham v. Marbery
Decedent was killed instantly. So should the estate be able to recover
the loss of life for her death?
o Did she need to be alive for some point in order to recover, or
does it not matter?
Two Parts to Hedonic Damages:
1. Loss of Lifethese are the actual years that they lost because they
were killed.
65

2. Loss of Enjoyment of Lifethere was at least some point of

consciousness so that you are aware you are losing the value of
enjoyment of life.
**This court said that the decedent didnt need to be conscious
or aware in order to recover for this hedonic damage.

Wrongful Death of a Child

Green v. Bittner
If we are going to award you damages for the value children are going
to have brought to the family up until the age of majority, then the cost
of raising the child is going to be subtracted from this.
o So, theres actually a net loss.
But the court said this is wrong, and so parents are going to be able to
recover for the loss of their child.
o The court said measure the non-pecuniary loss somehow so that
parents can be compensated.

The Collateral Source Rule

Arambula v. Wells. Court of Appeal of California, 1999. Page 742.
Instant Facts: Arambula (P) was injured in a car accident and unable to
work, but his employer (who was also his brother) continued to pay his
weekly salary.
Black Letter Rule: Payment of an element of tort damages (such as
lost wages) by an outside source (such as an employer) will not excuse
the tortfeasor from having to pay for those damages as well.
Issue: Is the plaintiff entitled to recover the lost wages even though he
continued to receive payment gratuitously from his employer?
Holding: Yes, under the collateral source rule, plaintiffs in personal
injury actions can still recover full damages even though they have
already have received compensation for their injuries from such
collateral sources as medical insurance.
Helfend Caseshould the jury find out about the compensation or offsetting
from the insurance company? No.
Why we have the collateral source rule:
o P has invested wisely insurance by thrift and foresight.
Because P did this, he should get the benefit of his bargain.
o If you let the jury find out this evidence, then the Defendant gets
a windfall because the defendant benefits from Ps thriftiness.

66

o The contingent fees taken by the attorney keeps the plaintiff

from fully recovering. This helps provide a closer
compensation of the plaintiffs actual loss.
5 Reasons Why the Collateral Source Rule Should Apply:
1. Case Lawprior law did not make the distinction between insurance
payments and gratuitous payments.
a. Also, if the court in Helfend meant to distinguish this so much
and abandon the collateral source rule, then they would have
done so in the opinion not a footnote.
2. Appellate Decision after Helfend
a. No other courts have held that gratuitous payments would not be
covered by the collateral source rule.
3. Precedentother jurisdictions as well as commentators are in accord
with following the collateral source rule.
4. Public Policywhen people are kind enough to give, we want to
encourage these private gratuitous gifts and the collateral source rule
does this.
a. If P couldnt still recover this, then D would still be benefitting by
diminishing how much he has to buy.
5. Courts Not Worried About Double Recovery:
a. P might have a motivation to pay it back to the donor.
b. P might pay it forward to someone else.
c. There cannot be double recovery because attorneys fees are
going to be taken out anyway.
6. There is no reason in case law or in policy to allow defendant to get a
windfall because he is benefitting from reducing his costs. (implied in
case)
7. If we were to read Helfend in the way D wants us to, we are going to
reduce deterrence for the defendant because their amount they have
to pay is reduced. (implied)
*The court said that double recovery can be reduced by a subrogation clause
in the insurance policy.
This means, any recovery the plaintiff gets, he has to pay back the
value of what the insurance company has paid on his behalf.
**Tort reform is trying to argue for introducing the payment by these
insurance companies in order to reduce damages awarded so that it will
reduce the amount insurance companies are receiving in order to lessen
their power.

Punitive Damages

67

-Punitive damages were awarded when the conduct was so outrageous or

intentional.
The conduct must strike the public as so outrageous as to deserve
different treatment.
o The harm may not be huge (compensatory damages), but the
conduct itself was so outrageous.
-What about when compensatory damages are huge? ($1 Billion)
One goal of damages (both compensatory and punitive) is still
deterrence.
If the conduct wasnt that reprehensible, then the huge compensatory
damages might be enough for deterrence.
However, if the conduct was very outrageous, then the court might
want more punitive damages for deterrence.
-We might also award punitives because there is an under deterrence when
the criminal law is under-enforced.
Sometimes conduct is both a tort and criminal law, and the police or
courts might not really focus on the criminal act.
o In these cases, the punitive damages might help deter these
criminal acts that dont really get must punishment under
criminal law.
Taylor v. Superior Court. Supreme Court of California, 1979. Page 750.
Instant Facts: An accident victim sued a drunk driver that caused the
accident for compensatory and punitive damages, but the court threw out
the claim for punitive damages.
Black Letter Rule: Drunk driving is well known to cause lethal
accidents and as such drunk drivers exhibit the kind of conscious
disregard for the safety of others upon which an award of punitive
damages may be based.
California Legal Standard on Punitive Damages: When D has been guilty of
oppression, fraud, or malice.
Malice in fact is required. NOT malice in law.
o Malice in Factthere must be circumstances of aggravation or
outrage, such as spite or malice, or a fraudulent or evil motive
on the part of the defendant, or such a conscious and deliberate
disregard of the interests of others that his conduct may be
called willful or wanton. (last part is an additional requirement)
Issue: Whether the intent to cause harm is required in support of a claim for
punitive damages?
No, it is not required.

68

o The court looks at the conduct of the defendant to see if there is

a conscious disregard of safety of others.
-Chief Justice Bird (concurrence)she says that whether punitive damages
should be imposed in drunk driving cases should be based on a case by case
basis. Where as the majority held that if it can be applied to any drunk
driving case.
She is also getting at that punitive damages have been awarded more
and more in cases and shes concerned that the use of this award is
getting applied too loosely.
-Chief Justice Clark (dissent)7 Policy Reasons to be Cautious in
Awarding Punitive Damages:
1. Plaintiff is fully compensated by compensatory damages.
a. Therefore, there is no rationale in throwing more money at P and
might result in a windfall for plaintiff.
i. But if not imposed on D, then D gets to avoid the penalty.
b. You could argue that since compensatory damages are taken out
by contingent fees, punitives make up for this.
c. Or the money could go to the state so D doesnt get a windfall.
2. Criminal Law
a. Criminal law is designed to punish wrongdoers, and the
legislature gets to enact the punishment for the criminal acts.
i. But the problem with enforcement still exists.
b. The defendant might get double punishment because getting
punished under both criminal law and civil law.
i. More than likely, this probably wont happen much. It is
possible though.
ii. The dissent is saying that a single penalty might be
enough.
3. By allowing punitive damages, the defendants financial status might
persuade the jury and sway their decision to impose significantly
higher imposition of punitive damages.
a. Best way to do this is to bifurcate the trial, so wealth doesnt
influence.
4. Punitive damages might not be needed to deter.
a. Exp: If the act is criminal and properly punished, then punitives
arent needed for assistance.
5. We all buy insurance to protect us, but insurance will not cover
intentional acts. Therefore, punitive damages might result in a
cancellation of the benefit of insurance.
a. Also, it might be possible that your conduct might not rise to the
point where insurance could cancel you.
b. The Legislature could just pass a statute saying that insurance
companies could not cancel unless conduct was intentional.

69

6. Imposing punitives during era where comparative fault allows their

liability to be reduced by the plaintiffs negligence/responsibility this
seems to go against this benefit when punitives can be imposed.
Note 4 (page 755)Definitions of Punitive Damage Criteria.
Malicemeans conduct which is intended by the defendant to cause
injury to the plaintiff or despicable conduct which is carried on by the
defendant with a willful and conscious disregard of the rights or safety
of others.
Oppressionmeans despicable conduct that subjects a person to cruel
and unjust hardship in conscious disregard of that persons rights.
Fraudmeans an intentional misrepresentation, deceit, or concealment
of a material fact known to the defendant with the intention on the
part of the defendant of thereby depriving a person of property or legal
rights or otherwise causing injury.
-Does it make sense to impose punitive damages when the conduct flows
from disease?
An alcoholic doesnt have to get in a car.
But the disease might impair your decisions.
Note 10 (page 759)Employer Liability for Punitive Damages
Through Vicarious Liability
Some states allow punitive damages to flow with vicarious liability.
Other states follow the Restatement View:
o Punitive damages can properly be awarded against a master or
other principal because of an act by an agent if, but only if,
a. the principal or managerial agent authorized the doing and
the manner of the act, or
b. the agent was unfit and the principal or a managerial agent
was reckless in employing or retaining him, (not really
vicarious liability) or
c. the agent was employed in a managerial capacity and was
acting in the scope of employment, or
d. the principal or a managerial agent of the principal ratified
or approved the act.
Note 11 (page 759)Liability for Punitive Damages When Tortfeasor
Dies.
The overwhelming majority of states will deny recovery of punitive
damages from the estate of a deceased tortfeasor.
o Rationale if you cant punish someone that is dead.
o You cant deter someone who is dead, but general deterrence
could still be achieved.

70

Also, the tortfeasor probably didnt anticipate that he

would die.
But if the victim dies, his estate can recover the punitive damages
from the defendant.

-The general thought is that damages should be awarded so that it reflects

the recovery that would be possible had the decedent survived.
This leads to disparity between damages imposed on a decedent
defendant.
Note 13 (page 760)Public entities generally do not waive their immunity
to punitive damages.
So you can get compensatory damages but not punitive damages
against a government.
State Farm v. Campbell. Supreme Court of the United States, 2003. Page
760.
Instant Facts: After State Farm (D) failed to settle claims against Campbell
(P) for its policy limits, Campbell obtained a judgment for $1 million in
compensatory damages and $145 million in punitive damages.
Black Letter Rule: In evaluating the appropriateness of a punitive
damages award, a court must weigh the reprehensibility of the
defendants conduct, the disparity between the actual harm caused
and the amount of the punitive damages awarded, and the difference
between the punitive damages awarded and the civil penalties
imposed under state law.
Compensatory damages are intended to redress the concrete loss that the
plaintiff has suffered by reason of the defendants wrongful conduct.
Punitive damages serve a broader functionthey are aimed at
deterrence and retribution
-The Due Process Clause of the 14th Amendment prohibits the imposition of
grossly excessive or arbitrary punishments on a tortfeasor.
The reason is that notions of fairness enshrined in our constitutional
jurisprudence dictate that a person receive fair notice not only of the
conduct that will subject him to punishment, but also of the severity of
the penalty that a State may impose.
o To the extent an award is grossly excessive, it furthers no
legitimate purpose and constitutes an arbitrary deprivation of
property.
**The threat of punitive damages are enough to make corporate America
scared that they quake in their boots.

71

This serves as a huge deterrence to avoid the most kind of risky

behavior.
This also deters social innovation for new development because it may
be too risky.

-The Utah Supreme Court said the ratio of 1:145 was okay because:
1. Reprehensibility of Conduct
2. Wealth of State Farm
3. State Farm is rarely punished
4. Ratio isnt unwarranted
5. Compared to civil liabilities & criminal penalties
6. The value of punitive damages were proportional.
**United States Supreme Court instructed courts reviewing punitive damages
to consider three Gore guideposts:
1. Degree of Reprehensibility of Defendants Misconduct
2. Ratio of compensatory damages and punitive damages
3. Difference between amount of punitive damages and the civil/criminal
penalties.
-The wealth of a defendant cannot be taken into consideration for awards of
punitive damages.
But they are often important because you want the damages to
actually hurt a little.
Factors To Determine Reprehensibility (guidepost) of a Defendant:
1. Type of Harmphysical or economic?
2. Does case raise health or safety concerns?
3. Were the financially vulnerable specifically targeted by defendant?
4. Is it an isolated event or repeated event?
5. Was it result of an accident or an intentional act?
Ratio Guidepost
There is no specific formula, but usual ratios should be in single digits.
o So 1:10 might be unconstitutional.
o But the ratio can be higher when the compensatory damages are
much lower.
Restatements view is that compensatory damages already include
some punitive aspects.
Note 4 (page 771)Harm to Others
A Supreme Court case said that consideration of harms to others
cannot be considered when awarding punitive damages (assessing the
amount of punitive damages to impose).
72

But the court said that you can use this evidence when determining
the reprehensibility of and ratio.
o The Court probably means that you can use this for
reprehensibility so a few occasions of bad behavior isnt as
reprehensible where continuous repeated occasion are more
deserving of punishment.
o As far as ratios, you cant use national conduct in setting a
punitive damages amount (number). But you can use this
evidence to determine whether the award the jury decided is in
line with the other cases.
The Supreme Court ruled that the due process clause barred
consideration of harm to others in awarding punitive damages.
o A jury may not punish a defendant for harm to others.
Rationale behind this is they dont want the defendant to
suffer double punishment when they are punished now,
and then another plaintiff comes along and sues them for
the same behavior later.

Insurance
-Insured are seeking protection against the financial consequences of the
occurrence of an undesired eventwithout regard to any legal rules of tort
liability.
First-Party Insuranceprotection of the insured or the insureds family
from the direct adverse economic effects of a particular event.
Third-Party Insuranceliability insurance taken out to protect the
insured against economic impact of having to pay damages to another
person.
o Here, the insurer pays a third person for a loss the insured has
caused.
-Insurance is pooling risk so that people are not wiped out by catastrophic
events that they cannot pay for.
-Insurance is an idea from when people used to co-op together to pay for
losses they might have suffered.
Difference between co-ops and insurance?
o Today, insurance has lots of overhead (advertising, etc.) that the
co-op didnt.
o Most of these insurance companies are publicly traded so there
are shareholders this results in profit motives.
While the co-op just raise what they could.
o Insurance companies want to be better and underwriting so that
they can deny their claims in order to make more profits.

73

*One way to avoid paying is saying that there is no coverage for this type of
event or specific exclusions. (Exp: Intentional Torts).
**There are some statutory guidelines regarding insurance that must be
followed like having to carry a certain amount of auto insurance.
-To carry insurance on something, you must have an insured interestthis
means that people must have some sort of interest in the property in order
to get an insurance coverage over it.
Intentional and Criminal Conduct are usually not covered by insurance.
Argument against punitive damages to be paid by insurance coverage?
The insurance company wont pay for intentional torts.
Punitives are given to deter but if your insurance pays, then there is no
deterrence.
o But, if we extend coverage of punitive damages to cover gross
negligence cases, then there is an argument to need insurance
as a way to police the too far extension of this award.
**Insurance contracts are contracts of adhesion.
You interpret the meaning against the drafter of the contract.
This means that you interpret in favor of the insured when at all
possible.
Subrogation
Frost v. Porter Leasing Corp.. Supreme Court of Massachusetts, 1982.
Page 785.
Instant Facts: An insurance company paid for some of the medical
expenses of an insured accident victim, and then the insurance company
tried to get repaid from the proceeds of the victims settlement with the
tortfeasor.
Black Letter Rule: Unless there is a specific contractual provision in
the insurance agreement, insurers do not have a right of subrogation
for medical expenses.
-Courts have readily implied rights of subrogation under policies covering
property damage.
-On the other hand, courts have not recognized implied rights of subrogation
in the area of personal insurance, a category that has included medical
expense benefits as well as life insurance and other forms of accident
insurance.
Personal insurance is said to be less a contract of indemnity than a
form of investment.
-Is medical insurance more like property insurance or personal insurance?

74

Like Property Insurance:

o Actual loss can easily be measured by bills, etc.
o Unfair to insurer. cost spreading to other insurers, which leads
to higher prices (this is a social policy that you want to keep
prices at an affordable rate)
o Cost spreading increases prices.
o Victim made whole already.
o Contract language indemnity clauses.
So, any money that you receive to offset the cost, will be
deducted from the amount of loss you incurred. (subtract
the money you receive from a collateral source)
This is similar to medical insurance because they can
compensate you for your actual loss, which would be
the costs of your medical bills.

Like Personal Insurance:

o An actual loss might be difficult to calculate because the
injured will lose more than costs of medical expenses. there
are intangible losses like pain and suffering.
o Also considered an investment because it is not required.
o Insurance covers/attaches to your body so we should treat it
differently from property.
The personal status as personhood is more valuable than
property.
o Incommensurable Lossits hard to calculate the value of your
pain and suffering.
o Double Recovery unlikely.
o Coverage gaps exist that the policies wont cover (like
preexisting conditions)
o There is noneconomic recovery that isnt going to reflect the
actual loss suffered by the patient.
o Plus the attorneys fees are going to be withheld from the
settlement.

Arguments Against Similarity to These:

Property insurance isnt like medical insurance because they dont
compensate for noneconomic damages.
Medical insurance isnt like life insurance because they dont pay you
just when something happens (whereas life insurance pays you when
you die).
Note 5 (page 790)How do you calculate what proportional
reduction should be made when subrogation is allowed?

75

o Settlements benefit insurance companies because they arent paying

as much as the policy limits.
o Insurer benefits from not incurring full cost of litigation.
o Hypo: You value a claim at $500k. So you come down $100k in
order to settle.
Insurer has greater incentive to litigate to save more
money.
While, insured has greater incentive to settle so they
recover their losses.
Moral Hazard & 1st Party Liability Insurance
The Government shouldnt be buying GM stock
o Otherwise we are buying into moral hazard.
Moral Hazardyoure less careful and will engage in risky behavior when
someones there to cover your losses.
Liability Insurance coverage can encourage you to not be as careful.
You will be less careful than the average person because insurance will
be there to compensate you.
o Argument Against This: not everyone will act recklessly because
they have insurance because the insurance will not necessarily
compensate you fully for your loss.
There might be sentimental values on your stuff that
cannot be replaced.
Plus, you will still be concerned about your reputation even
if you have insurance (from a business perspective).
The insurance company might also cancel your policy or
increase the premiums as a result of the risky behavior.
Adverse Selectionoccurs in insurance markets when people who are more
inclined to have claims will buy insurance.
The old people will buy health insurance and young people dont.
o This pushes premiums up. As a result, more people are less likely
then to buy insurance which again drives up prices.
Pre-existing Condition Exclusionsinsurance companies wont cover your
pre-existing conditions.
Actually, by waiving this rule with Obamacare, more people are going
to wait to get insurance until they get sick and need it.

The Impact of Insurance on Tort Litigation

76

Lalomia v. Bankers & Shippers Insurance Co. Supreme Court of New

York, Appellate Division, 1970. Page 803.
Instant Facts: A motor-driven bicycle collided with a car causing the death
of both drivers. The parties seek a declaratory judgment to determine which
of several insurance policies will cover the damage.
Black Letter Rule: Absent a specific provision to the contrary,
automobile insurance does not cover vehicles that cannot be properly
considered automobiles
Note 8 (page 808)Homeowners Insurance & Negligent
Entrustment
The majority of courts have not taken the stance that a homeowners
insurance policy would have covered the fathers negligent
entrustment of the motor vehicle to his son.
o The Lalomia case is a minority view.
**This case is representative that sometimes it can be very expensive to
bring insurance coverage claims to determine what, if any, of the partys
insurance would cover injuries.
Note 10 (page 810)Consent of the Insured to Settle
The settlement of many insurance claims depends on the
interpretation of the contract language.
Most insurance contracts have a term that allows the insurance
company to settle a claim without the approval of the insured.
But the insurance company has to act in good faith when representing
the insured, but they dont want to take on too much liability.
Professional Liability Insureds (like doctors)will often appeal and not settle
because they want to protect their professional reputation.
They want this liability off their record because:
o Reputation in the Community
o National Database where adverse events must be reported
o Some states have the practitioner database records.
Suing the Insurer
-The availability of a claim against an insurer for its settlement practices
when the insurer has a conflict with its insured because of coverage limits is
called bad faith refusal-to-settle claims.
Pavia v. State Farm Mutual Auto Insurance Co.. Court of Appeals of New
York, 1993. Page 812.
77

Instant Facts: An insured and his assignee sued the insurance company for
failing to settle a claim for the policy limits upon demand.
Black Letter Rule: When the insurers investigation into the merits of
a claim is not yet completed, the insurer by refusing to settle the claim
does not evidence bad faith, which requires a conscious and knowing
indifference to the probability that the insured will be held personally
accountable for a large judgment.
Issue: Does an insurance company act in bad faith when it refuses early
settlement of a claim that the insured is likely to lose if litigated?
Holding: No, an insurance company is entitled to finish investing the
facts of the case in order to determine liability and does not have to
accept a settlement agreement if it has not yet had the chance to do
so.
-Whenever an insurer is presented with a settlement offer within policy
limits, a conflict arises between the insurers interest in minimizing its
payments and the insureds interest in avoiding liability beyond the policy
limits.
-Precedent clearly bars a bad faith prosecution for conduct amounting to
ordinary negligence.
-In order to establish a prima facie case of bad faith, the plaintiff must
establish that the insurers conduct constituted a gross disregard of the
insureds interests.
That is, a deliberate or reckless failure to place on equal footing the
interests of its insured with its own interests when considering a
settlement offer.
o A bad faith plaintiff must establish that the defendant insurer
engaged in a pattern of behavior evincing a conscious or
knowing indifference to the probability that an insured would be
held personally accountable for a large judgment if a settlement
offer within the policy limits were not accepted.
-Bad faith is established only where the liability is clear and the potential
recovery far exceeds the insurance coverage.
The equation must include consideration of all facts and circumstances
relating to whether the insurers investigatory efforts prevented it from
making an informed evaluation of the risks of refusing settlement.
-In making this determination the courts must assess:
the plaintiffs likelihood of success on the liability issue in the
underlying action;

78

the potential magnitude of damages and the financial burden each

party may be exposed to as a result of a refusal to settle;
the insurers failure to properly investigate the claim and any potential
defenses thereto;
the information available to the insurer at the time the demand for
settlement is made;
any other evidence which tends to establish or negate the insurers
bad faith in refusing to settle; and
the insureds fault in delaying or ceasing settlement negotiations by
misrepresenting the facts.

**Policy reason behind this case is that we dont want to allow the plaintiffs
to set arbitrary deadlines that are unreasonable and hold that when an
insurance company fails to settle within that deadline, then they are going to
be held liable for bad faith refusal to settle.
Note 5 (page 817)Third Party Claim for Bad Faith Refusal to Settle
Does a third party bad faith to settle claim get the same entitlement as
the first party (who is the policy holder)?
o Courts from time to time have allowed this in common law.
So its a possibility that a third party can bring a claim
against Ds insurance company.
Note 7 (page 818)Whether Bad Faith Insurance Claim Extends to
Punitives?
Can you include the punitive damage award in your complaint for a
bad faith failure to settle?
o NY says that you cannot bring the punitives in your complaint
and try to recover them as well:
Given the punitive nature and condemnatory nature of
punitives, it would be against public policy to allow the
insured to sue the insurer for the punitives in bad faith
claims.
o California comes to the same conclusion.
Note 10 (page 819)Excess Coverage Obligations
There are layers of insurance that you can purchase.
o 1st Layercovers you up to a certain amount per person/
maximum per occurrence
o 2nd Layerkicks in once the policy limits have been exceeded
under the 1st layer. Usually covers x through y amount of
additional liability.
o 3rd Layerkicks in once the middle tier has been exhausted.

79

It is your duty as an attorney to inform a company and advise them on

carrying insurance and the different layers.
o You have to take into consideration:
Nature of the business.
Prior accidents/claims history
Is there anything different now that might
increase/decrease need for insurance?
New Court decision that would expose company to more
liability that insurance would be needed to cover?
Cost of insurance policy itself.
As you go up each tier, the dollar amount per dollar
of coverage gets cheaper.
**This layered coverage also created conflict between the primary insurer
and the excess carrier. (just like it does between the insured and his
insurance company in regards to settling.
Does the primary insurer have a duty to settle in order to reduce
liability on the part of the excess carrier?
o 5th Circuit said no because such action is rare.
The only way the excess carrier could succeed in a claim
against the primary insurer would be if there is a common
law right of subrogation against the primary insurer.

Trespass and Nuisance

-Trespass and nuisance are related doctrines that protect interests in,
respectively,
1. The exclusive possession, and
2. The use and enjoyment of land.
Trespass
-At early common law, every unauthorized entry by a person or object onto
anothers land that resulted from a voluntary act was subject to liability as a
trespass.
A person who non-negligently but incorrectly believed that particular
property was his own, or that he was authorized to go upon it, would
nonetheless be liable for trespass because he intended to enter the
property.
o Many courts required actual physical entry by a tangible object,
since the interest that plaintiff sought to protect was the
exclusive possession of his land.

80

o Because of the gist of the action was considered to be the

intrusion or breaking of he close, nominal damages could be
recovered even if no demonstrable harm could be shown.
-Modern trespass doctrine has largely obliterated the historical distinction
between direct and indirect trespassory invasions of land.
But a distinction of another kinddifferentiation between intentional
and unintentional trespasshas continuing validity.
-R.2d 165 states: unintended intrusionsthose resulting from reckless or
negligent conduct or from abnormally dangerous activitieswill be subjected
to liability only if the intrusion causes actual harm.
The requisite intent for trespass is the intent only to enter the land and
does not require intent to harm the others interest in exclusive
possession or even to invade anothers property.
o Thus, a mistaken, non-negligent entrya person innocently
mistaking a private pathway as a means of public access to
adjoining propertycan result in a finding of trespass, even if no
harm occurred.
-Trespass and nuisance can arise from an intentional act or by negligence,
recklessness, or abnormally dangerous behavior.
Negligence law will cover the negligence and recklessness trespass
and nuisance actions.
While strict liability principles will cover the abnormally dangerous
activities.
-Intention is required for these two torts:
Trespass---must have intent to enter the property.
o It doesnt matter if you were mistaken that it was your property.
as long as you intended to act, thats the only intent required.
Nuisanceas long as youre intending to behave in a way that
interferes with someones use of the land.
-Difference between trespass and nuisance:
Trespass is interfering with the property owners exclusive right to
exclude others from your property.
Nuisance is interfering with the owners right to enjoy the property and
the defendant is doing something that interferes with the enjoyment.
**You dont have to have a trespass for there to be a nuisance.
Martin v. Reynolds Metals Co. Supreme Court of Oregon, 1959. Page 676.
Instant Facts: A metals company is held liable for damages in trespass,
after their aluminum reduction plant emitted fluoride compounds, damaging
81

nearby farm land, despite the metal companys contention that the action
should have been brought under nuisance.
Black Letter Rule: A trespass is any intrusion which invades the
possessors protected interest in exclusive possession, whether that
intrusion is by visible or invisible pieces of matter or energy.
A trespassan actionable invasion of a possessors interest in the exclusive
possession of land.
A nuisancean actionable invasion of a possessors interest in the use and
enjoyment of his land.
-Liability for trespass has been recognized where the harm was produced by
the vibration of the soil or by the concussion of the air which is nothing more
than the movement of molecules.
We must look to the character of the instrumentality which is used in
making an intrusion upon anothers land, and emphasize the objects
energy or force rather than its size.
-The most important factor which describes the nature of the interest
protected under the law of trespass is nothing more than a feeling which a
possessor has with respect to land which he holds.
**The court in this case did not abandon the direct and indirect invasion
distinction.
But other courts might.
Note 5 (page 680)Intangible Invasions Sufficient to be Trespass
Electromagnetic waves and radiation can also result in a trespass and
they have no measureable mass.
o But they have energy and force.
Gases, fumes, and particulets can also result in trespass.
Nuisance
-Nuisanceis the unreasonable interference of the ability of the occupier of
land to enjoy the use of their land.
Nuisance can be from the intentional conduct of the defendant or
reckless/negligent conduct.
o However, if it exists/lasts for a really long time, then it will be
treated as an intentional invasion.
**If people come to the nuisance can they bring a claim for such nuisance?
Original viewno, it was a bar to a claim if you went to the nuisance.
Todays viewYou can bring the suit it is one of the factors to
consider however when deciding if its a nuisance or not.
82

**In this balance that we try to achieve between lawful use of defendants
property and the lawful use of plaintiffs property, we lean more toward
Plaintiffs favor.
Private Nuisance
-R.2d 822 states the general rule:
One is subject to liability for conduct that is a legal cause of an
invasion of anothers interest in the private use and enjoyment of land
if the invasion is either:
a) intentional and unreasonable, or
b) unintentional and arising out of negligent or reckless conduct or
abnormally dangerous
-Unintentional nuisancesis governed primarily by the rules relating to the
underlying negligence, recklessness, or abnormally dangerous activity on
which the nuisance is based, with the added requirement that the injury be
related to an invasion of interest in the use and enjoyment of land.
-An intentional invasion satisfies the unreasonableness requirement,
according to R.2d 826, if:
a) the gravity of the harm outweighs the utility of the actors conduct, or
b) the harm caused by the conduct is serious and the financial burden of
compensating for this and similar harm to others would not make the
continuation of the conduct not feasible
**this also can go the reverse way, so if compensating the victim
is causes less injury to the defendant than the harm that would
result from an injunction, then defendant will be entitled to
continue nuisance but must compensate the injured party.
**Also, your claim for a nuisance might fail under 826A, but it might sill be
a nuisance under 826B.
R.2d 827: Gravity of HarmFactors Involved
In defining the gravity of the harm from an intentional invasion of
anothers interest in the use and enjoyment of land, the following factors are
important:
a) the extent of the harm involved;
b) the character of the harm involved;
c) the social value that the law attaches to the type of use or enjoyment
invaded;
d) the suitability of the particular use or enjoyment invaded to the
character of the locality; and
e) the burden on the person harmed of avoiding the harm.
R.2d 828: Utility of the ConductFactors Involved

83

In determining the utility of the conduct that causes an intentional

invasion of anothers interest in the use and enjoyment of land, the following
factors are important:
a) the social value that the law attaches to the primary purpose of the
conduct;
b) the suitability of the conduct to the character of the locality; and
c) the impracticability of preventing or avoiding the invasion.
Coase Theory of Not Needing Liability Rules
Coase thinks that liability rules arent needed when you have an
efficient market.
o Hypo: Factory emits smoke. 10 single family homes nearby suffer
damage to their paint costing them $500 each ($5000 total).
For $3000 a year, the factory can get a new product to
reduce the amount of smoke.
If there is a liability rule forcing the factory to pay the
homeowners then the factory would install the
smoke reducer.
If theres no liability rule forcing the factory to pay:
the homeowners would pool money together and go
pay the $3000 for the smoke governor.
o Hypo #2: Suppose the Governor costs $8000 a year.
If Liability Rule: As a factory owner you will just pay the
$5000 each year to fix the houses.
If No Liability Rule: Then the people will just pay to fix their
houses.
Problems with Coase Theory:
The free-rider problem still exists.
Also tragedy of the commons.
Market doesnt take into consideration the transaction costs or
informational costs.
Litigation develops information while the market theory has to
assume perfect information is available (doesnt work this way).
*We have rules that tell us when to assign liability for an invasion in
someones property.
*We also have rules that tell us when the injured party can get an injunction
or money damages.
Reasonableness Factor May Mean:
Exotic uses of land might not get protected.
The eggshell plaintiff rule doesnt apply in nuisance or trespass law.

84

o The reasonable person standard is applied.

o But, if a jury concludes that a reasonable person would be
interfered with, then the unusually sensitive eggshell plaintiff will
be entitled to recover (probably only recover up to what injury a
reasonable person would be expected to suffer not the
unusual injuries the sensitive person would).
Boomer v. Atlantic Cement Co. Court of Appeals of New York, 1970. Page
683.
Instant Facts: A land owner sought an injunction and damages for the air
pollution emitted from a neighboring cement plant, and the trial court denied
the injunction while allowing continuing actions for damages.
Black Letter Rule: A continuing nuisance may be remedied by the
payment of permanent damages, allowing the interfering activity to
continue.
-Original New York Rule: If you have a substantial loss (greater than
$100), youre entitled to money damages and an injunction.

The New York Court of Appeals in this case held that you can impose a
temporary injunction until the defendant pays for the interference of
the land.
o Which means that as long as the defendant compensates the
inured party for their interference, then they can continue the
harmful use.

*Thus, in this case we did not depart from the NY rule technically, but in
actual life, we have departed from it, because as long as defendant pays, an
injunction wont be imposed.
Calculating Damages
Generally, you will get a real estate appraiser to determine what the
value of the property was before the interference and then how much
the value has decreased as a result of the interference.
How do you calculate periodic payments?
o You have to discount the present value over a period of time.
This period of time is usually the estimated useful life of
the property.
Policy Reasons to Want a Lump Sum Payment
As a land owner, you want to be fully compensated for the loss youve
taken in your land as a result of the interference.
o Cement Factory Perspective: They want periodic payments
because they can hopefully solve the nuisance problem and be
allowed to quit paying.

85

Societys view would be only to do periodic payment and pay as you go

until you fix the problem.

Note 5 (page 691)Does Nuisance Law Represent a form of Judicial

Zoning?
The law of private nuisance has occasionally been characterized as a
form of judicial zoning.
Like Zoningits an adjustment of the use land to get rid of
unreconcilable use of land out of society.
Unlike Zoningnot comprehensive imposed restrictions. its only
decided on a case by case basis.
o Zoning wants to permit highest and best use of the land across
all zones.
o Nuisance lacks the information that zoning provides.
Public Nuisance
-Suppose that a use does affect an entire city or substantial amount of
general public?
This raises public nuisance problem.
o Prosser said that public nuisance is like a criminal action brought
by the government on behalf of the public citizens in order to
abate the negative use.
Exp: gambling, prostitution.
-Can an individual land owner bring a suit for a public nuisance to abate the
use?
Special Harm Rulea private landowner can bring a suit to abate a
public nuisance so long as he suffered harm that is different than or
more intense than the harm of the general public.
o Dust would be a different harm.
o Noise Harm? if the noise is louder to you than to others in a
substantial way, then you will get to probably sue on it.
State of Rhode Island v. Lead Industries Association, Inc.. Supreme
Court of Rhode Island, 2008. Page 698.
Instant Facts: The State Attorney General (P) sued lead paint
manufacturers for creating a public nuisance causing harm to the states
children.
Black Letter Rule: A public nuisance is an unreasonable interference
with a right common to the general public by a person or persons with
control over the instrumentality alleged to have created the nuisance
when the damage occurred.

86

You must establish that the defendants were in control of the instrumentality
alleged to have caused the nuisance when the harm occurred.

87