Black Letter Law & Case

Argument

Policy

Elements / Doctrine

Policy / Rationale

INTRODUCTION: Theory of Tort Liability

Fault Required. If the plaintiff plead neither that the defendant was negligent, nor that
the action of the defendant was willful or wrongful, there is no basis for recovery. The
court will not impose liability without fault to childish acts. Without fault, there is no
cause of action. (Van Camp v. McAfoos)
[Facts] Defendant Mark, three years one month old, drove a tricycle into the rear of
the plaintiff. The plaintiff was injured.
[Argument by plaintiff] The invasion of one’s person is in itself a wrong. A
person has a right not to be injuriously touched or struck as she lawfully
uses a public sidewalk. No fault needed. (traditional strict liability)

Historical Strict Liability 13th-18th century, anyone who acted affirmatively and
directly might be held liable for harm done, even though he was not at fault. Form for
suing: Trespass. Form of Action: Trespass on the Case (vs. Case).

Notes:
 Intent is not relevant in contract, but matters a lot in tort.
 A tort is some kind of wrong, a breach of society norm/due. A “compensable”
injury is needed. A court shall decide how to limit these 2 concepts.
 Goals of Torts:
1. To compensate the injured.
2. To shift the law to deter misconducts.
3. To punish people for wrongdoings (punitive damage).
 The compensation is usually reliance. To restore the status quo.
 I. INTENTIONAL FAULT: INTENTIONAL TORTS

A. The Prima Facie Case

1. Battery
Elements
 A person is subject to liability for battery when he acts (1) intending to cause a
harmful or offensive contact (with the person of the other) (or an imminent
apprehension of such a contact), and when a (2) harmful (or offensive) contact
(with the person of the other) (directly or indirectly) results.
 Contact which is offensive to a reasonable sense of personal dignity is
offensive contact.
 There should be no consent. (Snyder v. Turk, Cohen v. Smith)
[Facts] Doctor was upset, grabbed the nurse’s shoulder and pulled her face down
toward the surgical opening, saying, “Can’t you see where I’m working? I’m
working in a hole. I need long instruments.” (Snyder v. Turk)
[Argument] no intent to inflict personal injury.

Contact
 Non-harmful offensive contact counts, because protecting personal integrity is an
important basis for battery. We also want to avoid duels. (Cohen v. Smith)
[Facts] Couple informed hospital that wife shouldn’t be seen naked by a male.
Hospital consented. A male nurse saw and touched wife during operation.
 Following the definition of offensive contact, “offensive” is defined to mean
“disagreeable or nauseating or painful because of outrage to taste and sensibilities or
affronting insultingness.” (Leichtman v. WLW Jacor Communications, Inc.)
[Facts] D. lit a cigar and repeatedly blew smoke in P.’s face.
 Tobacco smoke, as “particulate matter,” has the physical properties capable of
making contact. (Leichtman v. WLW Jacor Communications, Inc.)

Intent
 An actor must realize to a substantial certainty that a harmful or offensive contact
will be caused by his intentional conduct, for him to be liable for battery. (Garratt v.
Dailey)
[Facts] D. moved the chair when P. was sitting down. D. alleges that he was trying
to sit down, only found out that P. was sitting down after moving the chair, and
failed to put the chair back.
 The “substantial certainty” requirement is disjunctive with the “purpose” element.
Either will suffice a COA for battery.
 Transferred Intent: When the intent element is satisfied towards another but a
harmful or offensive contact to a third person resulted, the actor is liable to the actual
 victim. Emphatically, intent to put another in an imminent apprehension of such a
contact can also be transferred. (Hall v. McBryde)
[Facts] Defendant shoots towards a car, not intending to actually shoot the youth in
the car. Plaintiff who lived next door was shot. Held, intent element is satisfied. If
the bullet is fired by the defendant (contact element), the defendant is liable for
battery.
 Intent for assault can be transferred to a battery claim. When one intends an
assault towards another, causes a harmful or offensive contact with a third person,
the battery claim is actionable by the injured. (Hall v. McBryde)

*******

 At common law, one who is present and encourages or incites commission of a

battery by words can be equally liable as a principal. (Leichtman v. WLW Jacor
Communications, Inc.)
 The trial judge erred in requiring proof of medically diagnosable emotional injury.
Upon proof of battery or assault, the plaintiff is entitled to recover nominal
damages plus “compensatory damages for bodily pain, humiliation, mental anguish
and other injuries that occur as a necessary and natural consequence of the tortuous
conduct. There is no fixed measure or standard available to the trier of fact in
determining the measure of damages for pain and suffering. The measure of
damages is simply that which is fair and reasonable.” (A.R.B. v. Elkin)
[Facts] Children sue father for sexual abuse. No medical invoice.
 A minor’s age is of consequence only in determining what he knew. (Garratt v.
Dailey)
 Our society and our courts accept people’s right to have belief. A sound-minded
adult has the right to determine what shall be done with his own body; he has the
right to refuse medical treatment even in threat of death. A surgeon who performs an
unconsented-to operation commits an assault. (Cohen v. Smith)
 No matter how trivial the incident, a battery is actionable. Policy: “In civilized
society men must be able to assume that others will do them no intentional injury –
that other will commit no intentioned aggressions upon them.” (Leichtman v. WLW
Jacor Communications, Inc.)

Intent:
1. If the actor intended imminent apprehension of such contact. (Emanuel)
2. If the actor realizes that the act is substantially certain to result in such a contact.
(E&E)

2. Assault
 An act (1) intending (same in battery) to cause a harmful or offensive contact with
 the person of the other or an imminent apprehension of such contact, and that (2)
creates in that other person’s mind a reasonable apprehension of an imminent
battery. (Cullison v. Medley) (Koffman v. Garnett)
 “Mere words.” Not dispositive; the doctrine may mean that mere words usually
don’t create an apprehension of immediate/impending battery.
 Any act (that would normally) excite an apprehension of a battery (for a reasonable
person). (Cullison v. Medley)
 In this case, one tricky question common to battery and assault is raised: how to
determine that the actor “realized to a substantial certainty”? It’s usually a jury
question. Here the court says that assertion of foreseeability by P is not required,
and the following policy goal is important:
1. To protect the right to be free from the apprehension of a battery.
2. The tort is complete with the invasion of the plaintiff’s mental peace.
(Cullison v. Medley)

Cases:
Cullison v. Medley: D. brought gun and intimidated P. in his trailer home. Held. Although
D. didn’t remove his gun, nor is there proof that D. is “malicious callous, or willful,”
or that the apprehension was foreseeable, there is COA. Whether P.’s apprehension
of battery was normal and reasonable is a jury question.
Koffman v. Garnett: D., a football coach, lifted and slammed P. to the ground. Held. Since
P. alleges no warning before the contact, there was no apprehension. When P. was
lifted, he might have had apprehension, but the alleged battery was in progress.
Hence, no COA for assault.

3. False Imprisonment
 The actor (1) intended to and does in fact confine another within boundaries fixed
by the actor, and (2) that the victim is either conscious of the confinement or is
harmed by it. (McCann v. Wal-Mart Stores, Inc.)
 Confinement can be imposed by the following methods:
a) By physical barriers or physical force (but much less will do);
b) Mere threats of physical force;
c) Threats may be implicit as well as explicit;
d) Based on a false assertion of legal authority to confine;
e) Restatement: other unspecified means of duress.

Cases:
McCann v. Wal-Mart Stores, Inc.: employee of D. told P. that they had to come with
them, that they’re calling the police, and stood guard over P. while waiting for a
security guard to arrive. Held in favor of P.
4. Intentional Infliction of Emotional Distress
 (1) D. acted intentionally or recklessly; (2) the conduct was extreme and
outrageous; (3) the actions of the defendant caused the plaintiff emotional distress;
and (4) the resulting infliction of emotional distress cannot be maintained when the
risk that emotional distress will result is merely incidental to the commission of
some other tort. (GTE Southwest, Inc. v. Bruce)
 Reiterate (4): must be the intended or the primary consequence of the conduct.
(GTE Southwest, Inc. v. Bruce)
 (5) The emotional distress is severe. (Homer v. Long)
 What’s not extreme and outrageous: insensitive or rude behavior, mere insults,
indignities, threats, annoyances, petty oppressions, or other trivialities. (GTE
Southwest, Inc. v. Bruce)
 The present requirement: conduct directed at a third is E&O to another if the other
is present and:
1. For immediate family member, mere emotional distress will do;
2. For all others, must suffer bodily arm from such distress. (Homer v. Long)

Cases:
GTE Southwest, Inc. v. Bruce: P. works under D. D. engaged in a pattern of grossly
abusive, threatening, and degrading conduct, regularly used the harshest vulgarity,
verbally threatening and terrorizing P. Held. D.’s conduct is E&O because it’s not
only serious but also has become a regular pattern.
Taylor v. Metzger: African American referred to as “jungle bunny” by one supervisor in
front of another supervisor. Held, such workplace racial insults and indecencies
could be E&O; jury question.
Homer v. Long: D. therapist seduced P.’s wife. Held, P. wasn’t present. No liability.

B. Defenses
1. Consent
 Incapacity renders consent ineffective only if (1) P.’s condition substantially
impairs her capacity to understand and weigh the harm and risks of harm against
the benefits flowing from the proposed conduct and (2) D has knowledge of that
incapacity. (Reavis v. Slominski)
 Incapacity of adult is usually established only by showing that the adult did not
understand the nature and character of his act.
 Consent has limits. (Ashcraft v. King)
 During a medical operation, consent is construed as general if (1) there is no
evidence to the contrary; (2) patient is incapable of giving consent and no one with
authority to consent for him is immediately available and (3) surgeon exercises sound
professional judgment. The policy reason behind is:
  The law should encourage self-reliant, trustworthy surgeons, not men who may
shirk from duty for fear of lawsuit. (Kennedy v. Parrott)

Cases:
Ashcraft v. King: P. consented to operation on the condition that any blood transfusions
use only family donated blood. P. got HIV from blood from general supply. Held, no
defense since the transfusions exceeded the consent given.

2. Privilege
a) Defense
 Based on necessity, not actual reality. So defense could be mistaken yet still
reasonable.
 Only covers reasonably necessary defenses.
 Under Rest. 120A owner’s privilege, owner must show probable cause
(reasonable belief of shoplifting). (Great Atlantic & Pacific Tea Co v. Paul)
 Provocation such as insults and arguments are not sufficient.
 No deadly force against non-deadly force. No retaliation or continued
defense after fight is over.
 Owner is prohibited from intentionally injuring trespasser by deadly force or
force that inflicts great bodily injury, including setting out “spring guns” and
the like, unless trespasser was committing felony either of force or
punishable of death, or trespasser threatens human life. (Katko v. Briney)
 Policy: human safety is more important than property rights. (Brown v.
Martinez)
 No requirement for victim to retreat. Some states require reasonable retreat
before deadly force, unless in one’s dwelling.
 Assault and false imprisonment could be covered.
 Arrest/detention is privileged only when the arrester: (1) encounters a felony or
reasonably believes that arrestee committed a felony; or (2) encounters a
misdemeanor which amounts to a breach of the peace. Breach of the peace signifies
disorderly, dangerous conduct disruptive of public peace. Shoplifting is not one of
such misdemeanors. (Great Atlantic & Pacific Tea Co v. Paul)
 In general, one may defend others on the same basis that he may defend himself.

Cases:
Great Atlantic & Pacific Tea Co v. Paul: P. Customer forced into manager’s office and
searched. Held, shoplifting is not a misdemeanor that breaches the peace, hence no
privilege. Even under Rest. 120A, owner showed no probable cause. (There was no
reasonable investigation. In a self-service store, probable cause exists only when
customer attempts to leave without paying or manifests control over the property
such that his intention to steal is unequivocal.)
Katko v. Briney: D. home owner set up a shotgun trap for trespassers, seriously injured P.
P. was stealing bottles and fruit jars. Held in favor of P, act exceeds privilege.
Brown v. Martinez: P. was shot when stealing D.’s watermelon. Held, no privilege to
shoot (use force calculated to cause death or serious bodily injury) when mere
property is threatened.

b) Necessity
 Necessity is one of the privileges not dependant on P’s conduct, but created by court
for policy reasons. Other such privileges include officer’s privilege to search and
arrest, one’s privilege to enter public utility or common carrier, and one’s right to
enter land to reclaim one’s own goods.
 Necessity can be either public or private.
 Although it is difficult to decide who is to judge the necessity of the destruction of
property, and that hardships and unnecessary losses may rise therefrom, the difficulty
will not be obviated by holding the parties responsible in every case. (Surocco v.
Geary)
 Under Minn. Const., P. is entitled to compensation when his property is “taken”
for public use. The policy considerations here are fairness and justice.
 It’s not fair to allocate the entire risk of loss to an innocent homeowner for the
good for the public. The citizens of the city should all bear the cost of the benefit
conferred.
 Related parties (in this case police officers) acting in the public interest cannot
be individually held liable. (Wegner v. Milwaukee Mutual Ins. Co.)
 When D. “took” out of personal necessity, he should compensate P. for the losses.
Here D. deliberately renewed cables to preserve his ship at the expense of the dock.
There was direct intervention, thus not act of God.
 Analogize: (1) starving man takes food; should pay when able to; (2) to preserve
the ship, D. used a valuable cable on the dock, D. should pay for it.
 Distinguish: (1) P.’s property threatens life or property and is therefore
destroyed; (2) act of God, unavoidable accident, where D. cannot prevent the
damage; e.g. D.’s ship is disabled by the storm and thrown against the dock; D.’s
ship parted dock without negligence and damaged other ships.
 If public necessity requires the taking of private property, compensation must be
made. (Vincent v. Lake Erie Transportation Co.)

Cases:
Surocco v. Geary: D. alcalde destroyed P.’s house in city fire. Held, although the fire
wasn’t stopped, D. is not liable; public necessity is an affirmative defense.
Wegner v. Milwaukee Mutual Ins. Co.: P.’s house damaged during arrest of criminal, after
criminal escaped into P.’s house. Held, const. triumphs common law, hence defense
of public necessity is not available here, and P. is entitled to compensation under
 constitution & for fairness, because police action was for public good.
Vincent v. Lake Erie Transportation Co.: During storm, D. prudently and advisedly kept
his ship tied at the dock and prevented it from drifting away. P.’s dock was damaged
consequently. Held, D. should compensate.

II. UNINTENTIONAL FAULT: NEGLIGENCE

Policy goals:
1. Compensation.
2. Incentive/deterrence.
3. Fault.

A. The Prima Facie Case

1. Duty of Care
a) Reasonable Care
 Negligence as conduct that creates an unreasonable risk of harm to others.
 Five elements: (1) duty; (2) breach; (3) actual cause; (4) proximate cause; (5) injury.
 “Reasonable prudent person (under like circumstances)” standard; to take
reasonable precautions against reasonably foreseeable harm.
 The test of negligence in emergency situations is the same: reasonable prudent
person under like circumstances. Emergency is a relevant circumstance. The
court may issue a separate jury instruction on sudden emergency. (Wilson v.
Sibert)
 Children are usually held to the standard of care of a reasonably careful child
of the same age, intelligence, maturity, training and experience.
 However, when children engage in inherently dangerous activities normally
for adults only, they should be held to an adult standard of care. Policy
considerations include:
 Discourage immature individuals from engaging in inherently dangerous
activities. (This one is central. Others are derivative.)
 Prevent the hazards to the public if the rule were otherwise.
 Protect the need of children to be children.

 Examples include tractor, motorcycle, minibike and automobile. (Robinson

v. Lindsay)
 Driving a golf cart is not one of such activities; it doesn’t require adult skill
and there is no evidence that it’s primarily for adults. (Hudson-Connor v.
Putney)
 The general duty of care imposed on adults with mental disabilities is the same
as that for adults without mental disabilities. Policy considerations include:
 1. Allocate losses between two innocent parties to the one who cause or
occasioned the loss. Relatively at fault.
2. Provides incentive to those responsible for people with disabilities and
interested in their estates to prevent harm and “restrain” those who are
potentially dangerous.
3. Remove inducements / pervert incentive for alleged tortfeasors to fake a
mental disability in order to escape liability.
4. Avoid administrative problem in identifying and assessing mental
disabilities. The line between normal intelligence variations and true
disability is subtle, and accounting for that is too difficult.
5. When one’s disability is so serious that he threatens others in normal social
activities, his right to continue normal social life could be questioned, and
it’s fair to at least hold him liable for the damages. We want to compensate
reliance. We want to match right/benefit with responsibilities. (Creasy v.
Rusk)
 One employed to take care of patient known to be combative because of
Alzheimer’s disease has no complaint for injuries sustained in doing so. The duty of
care here is a one-way street. Patient has no duty. (Creasy v. Rusk)
 Sudden-medical-emergency is a complete defense. Burden is on defendant to prove
(1) sudden and (2) not reasonably foreseeable.
 Policy is that we should allow people with medical history to drive and engage
in social activities when reasonable.
 Central feature of negligence law is the requirement of unreasonable act. To
hold P. struck by unforeseeable medical emergency liable is strict liability.
(Roman v. Estate of Gobbo)
 Summary: for mental conditions, we use an objective standard of care; for children
and physical conditions, we use a subjective standard of care. (Notes!)

Cases:
Wilson v. Sibert 117: D. backed his car suddenly without warning/precaution when the
car in front of D. suddenly started backing up. D. struck P.’s car. Held, sudden
emergency is a relevant circumstance when judging negligence.
Robinson v. Lindsay 121: D., 13, drove a snowmobile and injured P. Trial court failed to
instruct the jury to hold D. to an adult standard of care. Verdict for D. New trial
ordered. Held, affirmed.
Creasy v. Rusk 125: D. suffers Alzheimer’s disease, is known to be combative. P. nurse
was injured by D. during daily care. Held, mental disability doesn’t affect standard
of care, but nurse has no claim.
Roman v. Estate of Gobbo 129: D., deceased, suffered heart attack while driving and
injured P. Doctor testified that heart attack was unforeseeable and there was no
reason to stop driving. Held, not liable.
b) Negligence Per Se
 To sustain a claim for negligence per se (statutory negligence), (1) plaintiff must be
within the class of persons protected by the statute; (2) the injury must be of the
type which the statute was intended to prevent. (Wright v. Brown)

Cases:
Wright v. Brown 141: D. released dog prior to statutory required date. Dog bit P. Held,
the statute intended to protect P., but didn’t intend to prevent the injury.

2. Breach of Duty
a) Unreasonable Risk
 When employee has more expertise, it is reasonable for employer to defer to
employee to facilitate or ask for safety precautions. (Stinnett v. Buchele)
 Duty is determined by three variables: B<PL. B is burden of precaution, P is
probability of injury, and L is extent/gravity of injury/loss. (US v. Carroll Towing
Co.)
 Objections to the B<PL principle:
1. In many things, like in marriage, reasonable persons don't do cost-benefit
analysis. Save the little girl or the factory?
2. When we do analysis, we need to do a lot of generalities. Depending on the
level of generality, it could go very wrong. Hard to value. (P163 Point 5)
3. There are commensurability problem. Sometimes it's hard to compare. Live
of a little girl, or jobs of the whole town? How to put them in numbers? Isn’t
it a little cold blooded?
4. When you want to do the whole analysis, there is information cost!
5. There are also cost distribution considerations.

Cases:
Stinnett v. Buchele 152: Employee fell while painting. Held, since the employee has
significantly more experience and expertise in relevant fields, it was reasonable for
the employer not to provide any safety precautions absent employee’s request. No
negligence.

US v. Carroll Towing Co. 160: Applying B<PL principle, the owner of the barge should
have had a bargee on board.

b) Proof of Breach
 Proof is complete by the greater weight of evidence (more probable than not,
probability exceeds one-half, preponderance).
 Circumstantial evidence is something that allows inference. Direct evidence is more
 persuasive.
 Jury determines the credibility (falsity or truth) and the weight (evaluate) of
evidence/testimony. Jury also determines which portion of the evidence/testimony to
accept. In absence of overwhelming weight, the court shall defer to the jury.
(Upchurch v. Rotenberry 170)
 Industry standard/custom could be good reference for, but is never the measure of the
proper standard of care. (The T.J. Hooper)
 Relevant arguments:
1. Does the plaintiff has knowledge of the custom? Does P. agree to bear the
risks of the custom?
2. Has the plaintiff impliedly accepted the custom as standard?

Cases:
The T.J. Hooper 185: Although coastwise carriers generally do not equip radio receivers,
because the cost is low and the receivers could offer great protection, the court held
that it was negligent not to have one.

c) Res Ipsa Loquitur (negligence based on circumstantial evidence)

 RIL doctrine is essentially nothing new. It says we could draw inference. It’s
important because it could give P a big advantage.
 In some cases, the mere fact of the accident having occurred is evidence of
negligence. (Byrne v. Boadle 187)
 Defendant’s negligence liability may be inferred if (1) the event is of a kind which
ordinarily does not occur in the absence of negligence; (2) other responsible
causes, including the conduct of the plaintiff and third persons, are sufficiently
eliminated by the evidence; and (3) the indicated negligence is within the scope of
the defendant’s duty to the plaintiff. (Valley Properties Ltd. V. Steadman’s Hardware,
Inc.)
 The RIL doctrine permits, but doesn’t mandate inference of negligence. Burden to
prove the three conditions is on plaintiff. (Eaton v. Eaton 190)

Cases:
Valley Properties Ltd. V. Steadman’s Hardware, Inc. 190: A fire stated in area exclusively
accessible by D. Held, fire could start without negligence, and other causes such as
malfunction in the electrical system are not eliminated, hence Res Ipsa Loquitur isn’t
applicable here.

3. Causation
a) Causation in Fact
 The “but-for” rule/test to establish the element of “cause in fact”: but for D.’s
conduct, P. would have avoided injury.
 The but-for rule is an extent to Van Camp fault principle. (Notes)
 Joint tortfeasors exception to but-for rule.
 When tort of two or more joined to produce an indivisible injury, that is, an
injury that cannot be apportioned with reasonable certainty from its nature, joint
and several liability apply. The two or more could be acting independently; no
concert or unity required. (Landers v. East Texas Salt Water Disposal Co.)
 How do you know when there is a "joint and several liability"?
 It's complex. The doctrinal answer is that when the defendant are joint
tortfeasors. They are joint tortfeasors if and only if the injury is indivisible.
 So if it's truly indivisible, how can the defendant's allocate their portion later?
 It's not really factually indivisible. It's just, from a policy point of view, unfair to
allocate the burden of allocating proportional damages to the plaintiff in some
cases.
 D. is liable when and only when his negligence is a material/substantial element
test in the injury. Even when the joining cause from a non-negligent source would
have resulted in the injury independently anyway, D. is still liable. (Anderson v.
Minneapolis, St. Paul & Sault Ste. Marie Railway)
 When both parties were negligent, but only one caused the injury, and it is difficult
to prove who did, the two would be jointly liable. P. has no duty to identify and
prove that one of them caused the injury. Each D. still has the right to absolve
himself or ask for compensation from the other later. However, burden of proof
would be on Ds. to identify the one causing the injury. (Summers v. Tice)
 Policy: If the rule were different, both Ds. could escape liability though both
were negligent and such negligence caused the injury. P. would be remediless. P
would have too heavy a burden of proof than usual. Ds. are usually in a better
position to prove who caused the injury. All these are not fair. Wrongdoers are
not in a position to complain of uncertainty.
 The rule and policy are the same where both Ds. cause the injury but
apportionment is difficult.
 When victim and D. jointly caused the injury, D. is only liable for the extra
damage caused. (Dillon v. Twin State Gas & Electric Co.)

Cases:
Landers v. East Texas Salt Water Disposal Co. 215: Two D. caused salt water to flow into
P.’s lake on the same day, killing many fish. There was no concert of act or unity of
design. Held, lost of fish is indivisible, hence two Ds. are jointly and severally liable.
Loss of grass is divisible.
Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Railway 216: D.’s fire joined with
other fires from non-negligent source and destroyed P.’s house. Either fire would
have destroyed P.’s house independently. Held, D.’s liable.
Dillon v. Twin State Gas & Electric Co. 221: P. climbs atop a bridge, lost balance and
 grabbed D.’s wire, which was negligently left exposed and charged. P. was
electrocuted. Held, if but for the current (the wire still there) P. would have fallen
and died, D. is only liable for P.’s suffer; if P. would have fallen and be seriously
injured, D. is liable for death where earning capacity would be calculated upon the
assumption of serious injury. Whether P. would have regained balance but for the
current is jury question.
Summers v. Tice 222: Both Ds. negligently shot towards P., P. was injured by one of
them. Held, P. does not need to identify and prove which one caused the injury. The
two are jointly liable.

b) Proximate Cause
 Creation of unreasonable and foreseeable risks is liable. Courts refuse to impose
liability when the harm actually resulting was not the kind of harm that led to a
finding of negligence in the first place.
 Substantial factor test: whether the harm which occurred was of the same general
nature as the foreseeable risk created by the defendant’s negligence. (Medcalf v.
Washington Heights Condominium Ass’n, Inc., Abrams v. City of Chicago 237)
 Recall that the test for negligence is B<PL. If a reasonable person cannot foresee
the risk, it wouldn’t be in the B<PL analysis.
 Unforeseeable Plaintiff: even if D might have been negligent towards A, he is not
liable for B’s injury so factually caused if B’s injury is not foreseeable. Injury must
be foreseeable in both type/general nature and class of person at risk. Cardozo
also used the term “scope of risk” created by the negligence. (Palsgraf v. Long Island
Railroad Co. 239)
 [Policy]
1. Liability must stop somewhere. But-for test would leave people with endless
liability.
2. Negligence is the fault, and the creation of an unforeseeable harm is not
negligence. To hold otherwise would be strict liability.
 In contrast, if you commit an intentional tort, at least at the doctrinal level, you are
liable for all the consequences that result, since causation is not an element of a
prima facie case for an intentional tort.
 The “rescue doctrine”: rescue is foreseeable or is foreseeable as a matter of law.
This rule includes cases in which the defendant negligently injures or endangers
himself and the plaintiff is injured in attempting a rescue. (Wagner v. International
Railway)
 A noticeable minority of jurisdictions use a “directness” test rather than a
“foreseeability” test for the proximate cause. No breaks in the chain of causation,
no superseding intervening causes, follows a natural and continuous sequence.
 Like the foreseeability test, the directness test is really just a term of art.
Reflects the same policy objectives/concerns as the foreseeability test.
  One difference is that the “directness” test depends more on the temporal aspect.
 “Thin skull” or “eggshell skull” rule. Once negligence or intentional fault is
established, the fact that the injury is much worse than foreseeable does not limit D’s
liability. (extent doesn’t matter) (McCahill v. New York Transportation Co.)
 Lid negligent put into hot fluid, didn’t splash, but unforeseeable chemical reaction
caused later explosion that injured the plaintiff. Not liable. 249 --- Railroad left grass
clippings by rail side and fire burned down P’s cottage after traveling 200 yards
across a stubble field, a hedge, and a road. Held, classic “thin skull” case. D would
otherwise qualify as proximate cause. 251 --- P was pulled over from a few blocks
away into a garage and sexually assaulted, all by a police officer. Held, although
crime in the garage is foreseeable, D is not liable because P was pulled from a few
blocks away. 251

Cases:
Medcalf v. Washington Heights Condominium Ass’n, Inc. 235: P attacked when locked
out by the failed electronic buzzer system. Held, as a matter of law, harm was not
reasonably foreseeable.
Abrams v. City of Chicago 237: D failed to send an ambulance when P’s contractions
were 10 minutes apart. P’s friend drove her through a red light when hit by a driver
who was using alcohol and cocaine and whose license has been suspended. Held,
incident not sufficiently foreseeable.
Palsgraf v. Long Island Railroad Co. 239: At D’s platform, one guard pushed a customer
from behind to help him get in. The customer dropped an unidentifiable pack of
fireworks. The fireworks exploded, and the shock threw down some scales at the
other end of the platform, injuring P. Held, although D’s employee might have been
negligent towards the customer, he wasn’t negligent towards P. There is no fault.
Wagner v. International Railway 246: One passenger fell of the train because of negligent
rules by D. P was injured when trying to rescue the passenger. Held, foreseeable.
McCahill v. New York Transportation Co. 251: D ran into P and broke P’s thigh. P
eventually died in hospital because of a pre-existing alcohol condition. Held, D is
liable for the death.

4. Injury
a) Physical and Economic Harms
 Two primary objectives: (1) shift the law to compensate the injured party, and (2)
restore P to the status had the tort not happened (indifferent).
 Remedies: damages remedy, injunction and restitution.
 Constitutional torts: must prove actual damages such as pecuniary loss or at
least actual mental distress to recover more than nominal damages ($1).
 Property torts:
1. Total dispossession of personalty: conversion action, full market value.
 2.Dispossession of real property: rental value of property during time of
dispossession.
3. Physical harm to tangible property & damage to chattels: diminished value
of the property.
a) May be substituted by cost of repair, especially when repair is not likely
to enhance the damaged property or make it more valuable.
4. Injunction: repeated trespasses, threat of irreparable harm, intangible
property, etc.
 Personal injury torts:
 Punitive damages may be warranted where malicious or wanton.
1. Reasonably incurred medical expenses.
2. Lost earning capacity or wage loss.
3. Pain and suffering including mental.
4. Cost of medical monitoring to intercept a prospective disease.
5. Other specifically identifiable harm resulting from the tort.

 Pain and suffering:

 The American rule: attorney’s fee is not recoverable. For lawyers to pursue the
claim with enough vigor, substantial pain and suffering award is necessary.
 Pain and suffering recovery includes mental or emotional distress from the
pain.
 Per diem or unit-of-time argument. P861
 Comparable awards as reference, pros and cons. P861
 Criticism and counters [related to MARTIN 857]:
 Pain and suffering is too arbitrary and unpredictable.
a) (1) Maybe we can never adequately compensate for personal injury, and we
can easily undercompensate. (2) If money just won’t restore him, then isn’t
this compensation totally arbitrary? Should we abolish it?
 Such compensation offers deterrence.
 In many cases, there is an amount that would make people indifferent.
 We must award something to account for attorney’s fee.
 Unlimited compensation is a burden to everyone and against social
utility; we should shift the undercompensated part to the whole society.
b) In general, there is gross undercompensation.
c) Unpredictability is bad for law.
d) The damage award itself may operate as a psychological factor that helps
cause the pain to continue.
 Even for future medical damages, the amount is highly subjective. (best doctor)
 When we apply the “reasonable under like circumstances” test, there is
always the question of what the circumstances are. When there is full
compensation however much you spend?
  The fundamental policy that we want to do law rather than equity.

 Lump sum v. Periodical

 Lump sum
a) Pro: D and P don’t have ongoing relationship; low administrative costs;
provides incentive for P to get well soon.
b) Con: discounting to present value is highly speculative.
 Periodic Payment
c) D less likely to go bankrupt
d) Less overcompensation
e) Reduces likelihood that P will squander money.

 In recent decades, courts and legislatures started to have compensation caps,

recognizing there is excessive liability. P871-877

 Duty to mitigate damages, the avoidable consequence or “mitigation” rule: one

who is injured by the negligence of another must use reasonable care to promote
recovery and prevent any aggravation or increase of the injuries. When one fails to
act like a reasonable prudent person will to mitigate his injury, that part of the
compensation will be deducted. (Keans v. Bottiarelli 877)
 Two ways of understanding: 1) you didn’t reasonably reduce the injury; 2) your
negligence proximately caused part of your injury (intervening/superseding
cause).
 Contributory/comparative negligence/fault reduces damages in proportion while
avoidable consequence reduces discrete identifiable items caused by P.
Distinction is important because comparative fault might bar P completely.

 Collateral source rule: all collateral sources of benefits to the injured party,
including insurance, salary, donations, must be ignored when the jury assesses
compensation.
 Sometimes the proceeds will go to such collateral sources.
 Criticism: incurs cost for shifting the loss, liability insurers are less efficient,
victim will still pay more premium, which would be shifted to the public
insureds at large.
 Half the states have abolished a limited this rule.
 Even if this rule is abolished, D shall pay for P’s premiums.
 Compensation is not taxable, resulting in jury overcompensation, but most states
see it as desirable.

b) Mental Harm
 The claim for negligent infliction of emotional distress is governed by federal
 common law under FELA. The Supreme Court applies the zone of danger test: a
worker within the zone of danger of physical impact will be able to recover for
emotional injury caused by fear of physical injury to him, whereas a worker outside
the zone will not. (Grube v. Union Pacific R.R. 573)
 An essential element of the test is fear for one’s safety expressed at or near the time
of the danger, an imminent apprehension of physical harm. Fear is the triggering
element here. If you felt fear, you’ll also get compensation for being upset. (Grube v.
Union Pacific R.R. 573)
 This area of tort law is still growing. Dillon v. Legg on page 575 is an example.

 The loss of consortium claim:

 Originated from master-apprentice  husband-wife relationship; firm economic
basis  non-economic losses such as loss of society and sexual relations.
 Includes loss of support, services, love, companionship, affection, society, sexual
relations, solace and more.
 Emotional distress emphasized an acute moment-shock or fright (a stab); loss of
consortium recognizes legal harm in a chronic, ongoing sense of loss (miserable
life).
 The Utah court rejected adoption of loss of consortium action for the serious injury
of an adult kid because: [Policy]
 This cause of action could greatly expand the liability of one negligent act, and
courts have failed to develop rational limits for it.
 This cause of action would affect the cost and availability of insurance.
 Utah legislature has acted in the opposite direction regarding spouses.
 It is now common to allow this cause of action for spouses. Remember to
compare.
 The fundamental argument is that it’s a “foreseeable” injury.
 Note: the development of this doctrine might be undoing all the limits we set for
NIED. On the other hand, it’s a real loss and might be in nature different from NIED.

c) Death
 In old common law, if either the plaintiff or the defendant dies, the cause of action
dies. Further, P’s dependants have no separate cause of action. The first has been
changed by “survival” statutes, the second by “wrongful death” statutes.
 Wrongful death action: compensatory, not punitive. Limited to pecuniary losses
only, includes contribution from the decedent, medical and funeral expenses.
 [Policy] Purpose is to compensate.
 Survival action: all personal causes of action that decedent would have had if he or
she had survived.
 Division of compensation:
 Before death, compensation is clear, all damages goes to the victim; other people
 recover emotional harm only, or they would have their own COA. Emotional
harm is governed by NIED and loss of consortium claim.
 After death, compensation going to the victim is further divided into two parts:
compensation that would have gone to beneficiaries, and money that the victim
would have kept for himself. First part is claimed under wrongful death action,
second part under survival action and will go to decedent’s estate.
 Therefore, if calculated correctly, there wouldn’t be double compensation.
 Attention! Lost wages recoverable only up to death for survival actions, but
recoverable for whole life under wrongful death action. [Policy] There is no one
there to experience the lost wages. Since out goal is to compensate, we shouldn’t
give lost wages for life.
 [Policy] Allowing survival actions avoids the original perverse incentive to:
 Kill people at all costs;
 Delay trial to wait for death of plaintiff/defendant.
a) We also accomplish loss-shifting.
 Under a wrongful death action for death of a child, the system just treats loss of
consortium of parents as a pecuniary damage.
 A negligently caused death constitutes a legally cognizable injury. When the other
elements of a survival claim have been established in a related wrongful death act, to
require an award to support a claim for punitive damages is superfluous. The
purpose of punitive damage is deterrence. (Smith v. Whitaker 612)

d) Pre-natal Injury
 Child has no claim against its mother for injuries negligently sustained before
birth. The court says the line is whether the child has been born. (Remy v.
MacDonald 599)
 However, the child would have a claim against a third person, or after its birth.
Restatement §869: one who tortiously causes harm to an unborn child is subject to
liability if the child is born alive. (Remy v. MacDonald 599)
 Also compare: Renslow v. Mennonite Hospital 604: P alleges that D’s negligent
blood transfusion to her mother before she was conceived caused various diseases of
hers. Held, there will be an end of liability, but D is liable here, because P can be
foreseeably harmed, even if he is unknown or is remote in time or place.
 [Policy] A strong reason not to hold the mother liable is the vulnerability of the child
during pregnancy. Recall that negligence is based on B<PL principle. (Remy v.
MacDonald 599, at 600)
 [Policy] Is compensation for “wrongful birth” actionable? P sues for the child-
rearing cost.
 Against:
a) Sanctity of human life would be undermined. We shouldn’t award
compensation for the birth of a normal child.
 b) Plaintiff has duty of mitigation, should exercise abortion or adoption. By not
mitigating, parents are accepting the responsibilities.
c) P is getting a wind-fall by receiving compensation and keeping the child.
 For:
a) Child-rearing expenses are a natural and probable consequence of the
healthcare provider’s breach.
b) Parent’s injury is not the birth of the child, but the invasion of her interest in
the financial security of her family and the attendant desire to limit her
family size, and the deprivation of her right to limit procreation.
c) Sanctity of life is more undermined by a parent financially unable to provide
necessities.
d) Abortion or adoption is serious harm to the parent. It’s unfair to ask the
parent to suffer such harm to mitigate future injuries caused by D.
e) Abortion or adoption is highly personal and deeply religious and moral.
f) Requiring “mitigation” by abortion or adoption will affront the USSC’s
protection of procreation decisions under the Constitutional right of privacy.
 Healthcare provider is entitled to present evidence to limit the amount of the
recovery of child-rearing damages by benefits resulting from the child’s birth.
(Chaffee v. Seslar 606)
 Courts generally reject such claims. The law generally views life a positive gain.
(genetic deformity)

Cases:
Remy v. MacDonald 599: Child (P) claims that her mother’s negligent claim cause her
early birth and subsequent breathing difficulties. Held, a pregnant mother owns no legal
duty to her unborn child to refrain from negligent acts. Duty element not satisfied.

e) Punitive Damages
 Only for misconduct couples with a bad state of mind.
 Purposes:
 Punishment or retribution
 Deterrence
 Assist in financing useful litigation
 Jury decides whether to award and if yes the amount.
 Jury is allowed to hear evidence about the defendant’s wealth, income, or profits as a
basis for determining amount.
 Sometimes require actual harm or actual recoverable damages as a basis. Now some
courts just read this rule as requiring to establish a cause of action.
 Insurers sometimes not liable for frustration of purposes.
 May be more than one.
B. Defenses
1. Contributory Negligence
 A complete, all-or-nothing defense. Failure of the plaintiff to exercise ordinary
care for her own safety would completely bar recovery, as long as D wasn’t
reckless or wanton. (If P used reasonable care, the injury would have been
avoided.) (Butterfield v. Forrester 272)
 Possible grounds/rationale:
 Fault
 Proximate cause
 Negligence

Cases:
Butterfield v. Forrester 272: D left a pole in the road. P was riding as fast as possible
through the streets. P rushed into the pole and was injured. At time of injury, light was
enough to discern the obstruction at 100 yards. Held, P failed to use ordinary care and is
therefore barred from compensation.

2. Comparative Fault
 Three types of comparative fault:
 Fully proportionate: compensation shall be diminished in the proportion which
the culpable conduct attributable to the claimant or decedent bears to the
culpable conduct which caused the damages. (New York)
 P≤D: If P’s negligence was not greater than D’s negligence, damages shall be
diminished in the proportion to the amount of negligence attributed to P.
(Wisconsin)
 P<D: P would be barred from recovery if P’s fault was “as great as the combined
fault of all other persons.” (North Dakota)
 a) is called pure comparative fault, b) & c) are called modified comparative
fault.
 Only Alabama, North Carolina, Maryland, Virginia, and DC have failed to
adopt comparative fault rules. (Sollin v. Wangler 274)
 When a 50-50 allocation of negligence would bar P from recovery, the jury should
be informed of the legal consequences of its special verdict answers through and
“ultimate outcome” instruction. (Sollin v. Wangler 274)
 Pros and Cons:
 Pro: consistent with joint and several liability.
 Con: too arbitrary.
 Assigning “responsibility” is the most accurate term.
 Factors to be considered when assigning responsibility:
 Nature of conduct, including awareness or indifference to the risks created, and
 intent to the harm.
 Strength of the causal connection.
 Res Ipsa Loquitur is hard to fit in the comparative fault doctrine. (1) One element
of the original res ipsa loquitur is that P did not cause the injury. Many courts say the
adoption of comparative fault just eliminated this element. (2) It is hard to attribute a
percentage of responsibility to D’s unknown negligence.

 Traditional Exceptions:
 Last clear chance or discovered peril: If D discovered or should have
discovered P’s peril, and could reasonably have avoided it, the plaintiff’s earlier
negligence would neither bar nor reduce compensation. P must have been
helpless.
 D’s reckless or intentional misconduct: not ordinary or even gross negligence,
but aggravated negligence. “Utter indifference or conscious disregard for the
safety of others.”
 P’s illegal activity.
 Certain statutory provision: e.g. worker’s compensation act.
 Causation and scope of risk issues:
 Superseding cause (P’s injury not within scope of risk created by D).
 The minimizing damages rule (duty to mitigate loss with reasonable care &
effort). In essence a combination of but-for cause and scope of risk rule.
 Applies to P, too. P would have full recovery if P’s fault is not cause in fact or
proximate cause, or P’s injury not within the scope of risk created by P’s
negligence.

 When the duty of care D broke was to prevent the precise injury that P suffered from
the precise negligence that P committed (when the nature of D’s negligence is
failure to guard against P’s foreseeable negligence), D cannot argue comparative
negligence. (Bexiga v. Havir Manufacturing Corp. 296)
 Where D’s duty of care includes preventing the self-abusive or self-destructive
acts that caused the injury, there can be no comparative negligence. (McNamara v.
Honeyman 297) (Here, it includes intentional self-harm.)
 Another rationale/exception is a non-reciprocal imposition of risk.

 One’s right to lawfully use his property is not subject to the duty of care to guard
against another’s negligence. (Leroy Fibre Co. v. Chicago, M. & St. P. RY. 299)
 Two distinctions from Bexiga that might matter here:
 There is a (property) right concerned here.
 D has a duty to guard against P’s negligence, but P doesn’t?

Cases:
Bexiga v. Havir Manufacturing Corp. 296: D failed to installed safety devices that could
prevent users from putting their hands in the machine while the machine is in
motion. P negligently put his hand in the machine and lost his hand. Held, the
defense of comparative negligence is not available.
McNamara v. Honeyman 297: Mentally ill patient hanged herself while in hospital.
Leroy Fibre Co. v. Chicago, M. & St. P. RY. 299: Owner negligently stored his flax on his
land near the railroad. Railroad negligently set fire to it. Held, RR cannot argue
contributory negligence.

3. Assumption of the Risk

 Should instruct jury that express assumption of the risk bars plaintiff from any
recovery even though there was no written document. (Boyle v. Revici)
 Even when there is a written, assumption of risk might be void because of void
contract for non-voluntariness, want of consideration, and necessity of
service. (Tunkl v. Regents of University of California)
 Assumption of risk may have scope. When P only released D of liability of ordinary
negligence, D could be liable for unreasonable danger.
 Unreasonable danger is defined as “the likelihood and gravity of the harm
threatened outweighed the utility of the conduct and the burden on D for
removing the danger.”
 Where the plaintiff is retained by, or for the specific purpose of aiding the
negligent defendant deal with a known danger, courts hold that the plaintiff has
contractually assumed the risk. (e.g. nurses for violent Alzheimer’s patients,
Creasy v. Rusk)
 The test for implied assumption of risk is:
1. had knowledge of the risk of danger
2. appreciated the risk
3. voluntarily exposed him/herself to that risk
 If a person was compelled to act and had no freedom of choice regarding
whether to act, we will not say, as a matter of law, that he or she acted
voluntarily. (Crews v. Hollenbach)

 By assumption of risk, courts mean:

1. P consented to the defendant’s conduct by valid contract, express or implied.
2. P was guilty of an “unreasonable” assumption of the risk which seemed
equivalent to contributory negligence.
3. D breached no duty to the plaintiff, either because of the consent or because
courts concluded on policy ground that the defendant was under no duty or that
he was not negligent.
 In Roman v. Estate of Gobbo, defendant drove a car under known risk of heart attack,
fainted, and incurred injury on the plaintiff. Court ruled that the risk should be big
enough for the defendant to be negligent. Defendant also assumed a know risk,
should he take all the consequences?
 The logic maybe that when A assumed a risk, it depends on who gets injured. If
A himself is injured, sorry, no recovery. If A assumed a risk to others and injured
another, it’s time to do BPL for A.
 Or maybe, it really depends on whether the risk assumed is reasonable or not.

Cases:
Boyle v. Revici (2d Cir., N.Y. law) Patient got non-mainstream doc to treat her cancer
against unanimous main-stream advice to have surgery. Was told that the medication
wasn’t approved by FDA and there is no guarantee. Died in one year.
Tunkl v. Regents of University of California (California) Plaintiff was admitted to the
hospital on condition that he executes a release, absolving all liability of the
defendants. Held, contract void.
Moore v. Hartley Motors (Alaska) For $50 rebate, plaintiff took part in a training course
and signed a release before it. Held, Contract binding!
Crews v. Hollenbach (Washington) Defendant negligently created a leak in the line.
Plaintiff, as one of the repairing staff, was injured when trying to repair the line.

C. Special Duties of Care

1. Nonfeasance
 One person owes another no duty to take active or affirmative steps for the other’s
protection. Maintaining an existing circumstance is lawful.
 Exception:
 If one was legally responsible, in whole or in part, for placing another in
the perilous position, he would have a duty to rescue. (Yania v. Bigan 484)
Even encouraging other to risk does not constitute such legal
responsibility when the other is a mentally efficient adult and there was
no physical impact. (Rocha 485)
 When one intentionally, negligently, or even innocently cause the harm
or created an unreasonable risk.
 Required by statute or ordinance.
 Rationale:
1. People should not count on nonprofessionals for rescue. A clumsy rescue could
also prevent real effective rescue.
2. Circle of potentially liable nonrescuers would be difficult to draw.
3. Altruism makes the problem small and will be discouraged otherwise. Better
incentive is provided by not holding people liable for nonfeasance.
 4. A clumsy rescue could give the rescuer legal liability.
5. We don’t want to force people into dangerous situations.
6. This is America. Personal autonomy.

2. Contractual Duties
 A lessor is liable for physical harm caused by a condition of disrepair if:
1. Contract requires the lessor to keep the land in repair, and
2. Disrepair creates and unreasonable risk preventable by performance of the K
and
3. Lessor didn’t use reasonable care in exercising the K. (Mobil Oil Corp. v.
Thorn 505)
 Contract could create a special relationship and attendant tort duties of care. (Grimes
506 Researchers & Families)
 Claims rising from contractual duties only extend to parties in the contract. Parties
in the contract have only public duty to third persons. (privity of contract required)
(Winterbottom v. Wright 507)
 This rule might be in dispute!

3. Duties Derived from Status

 Common carriers may owe a higher degree of care to passengers. (Just short of
insuring safety, would bear burden of proof that they are not negligent.) Some states
impose ordinary standard of care. (Doser 347)
 Rationale: (1) passenger is completely dependant on driver to keep safe; (2)
deeper pockets.
 For non-paying guests, the standard of care for owner, operator or person
responsible for operation of a motor vehicle seems to be lower: gross negligence or
even “willful or wanton” misconduct is required. (348)
 Rationale: to avoid insurance fraud.

 For landowners, the status of the person entering the land defines legal duty of the
landowner.
 Invitee: (1) at least in part for the pecuniary benefit of the landowner or (2) on
premises held open to the general public.
 The part of land within which he is an invitee is dependant on owner’s
consent. In Glandon, when P enters the railroad, he became a trespasser.
(Glandon v. Greater Cleveland Regional Transit Authority 349)
 Landowners owe invitees a duty of reasonable inspection to find hidden
dangers and to take affirmative action to remedy a dangerous condition.
 Licensee: person with owner’s consent but have no business purpose.
 Owner has no duty to inspect for unknown dangers; they do owe a duty to
warn licensees of known dangers. (Rowland v. Christian 368)
  Social guests are usually licensees rather than invitees.
 Trespasser: no legal right to enter the land, no consent.
 [Common to trespassers and licensees] A duty to refrain from willful,
wanton or reckless conduct. After a trespasser or licensee is discovered in
a position of peril, there is a duty to use ordinary care to avoid injuring
him.
 The “attractive nuisance” exception for children- even if the child is a trespasser,
the child gets treated like an invitee (D owes a duty of reasonable care).
 Over half of the jurisdictions have abandoned the categorical approach.

4. Special Relations
a) Relationship with Victim
 One who is required by law or who voluntarily takes the custody of another such
that the other is deprived of his normal opportunities for protection is under a duty
to the other. The duty is limited by reasonably foreseeable risks (by a parent or
ordinary prudence). Schools are therefore liable for foreseeable injuries
proximately caused by lack of adequate supervision.
 Existence of duty is thus limited to periods when (parental) protection is
compromised. Similarly, some courts held that school has no duty when it had
no custody.
 Persons liable are thus limited to school employees who have supervisory
responsibility, who thus have stepped into the role of parental proxy.
(Marquay v. Eno)
 The basis of such duty is the special relationship.
 Courts have generally refused to impose upon universities any duty to protect or
guide new students with respect to the pleasures and dangers of sex, alcohol, dugs, or
even overstudy. (537)
 Regarding landlord duties, courts divide: [Many Policies]
 In Funchess 538, the court refused to enforce a contractual duty because:
 Landlords owes no duty to protect others from third persons, they are in no
position to protect against criminal attack.
 Enforcing contractual duties would discourage landlords to write security
provisions in the contract, which would otherwise improve security.
 In Kline 539, the court held that landlords must use the standard of care which
this landlord himself would use had he been a resident because:
 Landlord’s control of the common passageways and the tenant’s lack of
power to protect themselves.
 Special character of the modern urban multiple-unit lease.
 Notice the landlord had.
 Many cases impose a duty of reasonable care on landlords to maintain common
areas in a reasonably safe condition for tenants.
b) Relationship with Tortfeasors
 Whenever one person is by circumstances placed in a position that if he did not use
ordinary care and skill in his own conduct, he would cause danger of injury to the
person or property of the other, a duty arises to use ordinary care and skill to avoid
such danger. (Tarasoff v. Regents of University of California 544)
 We only depart the fundamental principle upon balancing of several considerations:
a) Foreseeability of harm
b) Degree of certainty
c) Closeness of connection between D’s conduct and injury
d) Moral blame attached
e) Policy of preventing future harm
f) Extent of burden to D
g) Consequences to the community of imposing such duty
h) Availability, cost and prevalence of insurance. (Tarasoff v. Regents of University
of California 544)
 When preventing the injury would require D to control the conduct of another, or
to warn, liability is imposed only when there is a special relationship between D
and tortfeasors or victim. Therapist-patient relationship is such a special
relationship. (Tarasoff v. Regents of University of California 544)
 If a therapist determines or should have determined (has reasonable cause to
believe) that a patient poses a serious danger of violence to others, there is no
privilege and he has a duty to exercise reasonable care to protect the foreseeable
victim of that danger. Reasonable degree of skill, knowledge, and care ordinarily
possessed and exercised by member of that professional specialty under similar
circumstances. (Tarasoff v. Regents of University of California 544)

 One who sells intoxicating beverages for on the premises consumption has a duty to
exercise reasonable care not to sell liquor to a noticeably intoxicated person.
(Brigance v. Velvet Dove Restaurant, Inc. 553)
 For general rule, see 555, Restatement 2d §308. (under the control of the actor,
an unreasonable risk of harm to others)

D. Multiparty Problems
1. Contribution
 Joint and several liability:
a) P may enforce a judgment entirely against any one of the Ds who are jointly and
severally liable, or enforce her judgment in part against one and in part against
another.
b) If one defendant pays more than his share, he could obtain contribution from the
 other tortfeasors.
c) P cannot recover more than the total amount of her judgment.
 [Policy] Ensure compensation especially when one or more tortfeasors have
insufficient funds to pay the judgment.
 Joint and several liability applies in 4 situations:
a) Concerted action.
 True joint torts. E.g. A and B agree to race on the public highway during the
course of which A collides with the plaintiff.
b) Indivisible injury.
 (1) A’s and B’s tort alone would be sufficient to cause the same harm. (2) (1)
isn’t true but still indivisible.
c) A creates a risk of harm by B. A puts P in the risk of B’s negligent or
intentional harm.
d) Vicarious liability. E.g. employer is liable for employee’s tort committed in the
scope of employment. Employer would be jointly and severally liable.
***
 Causal apportionment could be infeasible or very difficult. Who should bear burden
of proof? Is it inherently desirable? We can use comparative fault apportionment
instead.
 Pro rata share rule: traditionally, and still true in contributory negligence
jurisdictions, if there is an indivisible injury, A & B each pay one-half.
 In comparative fault jurisdictions, share is divided by fault apportionment.
***
 Rule about satisfaction of the claim: P can only be fully compensated once. If P
sued A separately and receives a judgment, P cannot sue other tortfeasors anymore.
However, if P settles with A, it is possible to sue B if A did not pay the full damage.
In this case, a covenant not to sue is used.
 Releases under common law rule: release of one tortfeasors is a release of all those
jointly and severally liable. If P gives A a release upon paying settlement, B is also
considered released and P cannot sue B. Because of this rule, a covenant not to sue is
used instead of a release.
a) This rule has been changed in some states.
 Indemnity: if A is only technically liable and B is the only one at fault, A can
recover the full amount from B. E.g. employer can recover indemnity from
employee, retailer can recover indemnity from manufacturer.
***
 If A is to recover contribution from B, P must have an independent cause of action
against B. Since wife and child don’t have a cause of action against father for loss of
support, tavern cannot obtain contribution from father for compensation to wife and
child. (Ascheman v. Village of Hancock 818) [Policy]
a) To hold other wise would also frustrate the law’s remedial purpose.
 b) It would also weaken the deterrence towards the tavern.
c) Bexiga’s rule could also apply.
 Adoption of comparative fault did not abolish joint and several liabilities, which will
still ensure that P gets adequate compensation. (AMA v. Superior Court 821)

2. Market Share Liability

 Hymowitz v. Eli Lilly and Company, 825
 [Facts] DES, a drug widely used for years by pregnant women, turned out to cause
vaginal cancer and terrible complications when user’s daughters reached adult years.
It’s a genetic drug, not a patented property, so companies were free to join and leave
the market. Since it was many years ago, mothers usually cannot identify the
manufacturer. Here, several victims sue a number of manufacturers.
 Summers v. Tice rule: when causal connection is hard to prove, burden is on
Ds. Joint and several liability.
 Rationale:
1. Compensation
2. Encourage Ds to speak and identify the culpable party
 Requirement:
1. Ds have better access to information (No)
2. All possible tortfeasors are before the court (No)
3. Number is small, so probability is high, not unfair (No)
 Concerted action: joint and several liability
 Requirement: express or tacit understanding to participate in “a common
plan or design to commit a tortious act.” (No. Parallel activity is insufficient
to establish “agreement.”)
 Legislature consciously revived hundreds of DES cases. Fairness. Loss should
be born by the party comparatively at fault.
 Market share theory based on the national market:
 Why market share? (1) Over the run of cases, liability will approximate
over-all culpability measured by risk posed (actual harm caused). (2) If
market share is only one factor in determining “risk”, too burdensome.
Delay and inconsistency.
 Why national market? If litigants have to account for inter-state drugs, and
have to compile a different matrix in each case, too burdensome.
 Exculpation? If one didn’t sell to pregnant women, yes. If one didn’t
participate in a certain geographical sub-market, no. We’re using national!
 Because liability is measured by over-all culpability measured by risk
posed measured by national market share.
 Liability is several only, and no inflation.
 To correspond with the exculpation policy.
 Core policies: compensation, loss-shifting, comparatively at fault, avoid too much
 burden, avoid over-deterrence, avoid delay and inconsistency, rational and fair
distribution of liability.
 Core circumstance: causation is missing.

III. IMPUTED FAULT: VICARIOUS LIABILITY

A. Employers
 Respondeat Superior: scope of employment.
 Test: whether the act was done while the servant was doing his master’s work,
no matter how irregularly, or with what disregard of instructions. (Riviello 624)
Old test was whether employer could exercise close control over his employees
during the period of their service.
 An employer is not legally responsible for the intentional torts of its employees
that do not facilitate or promote its business. (Leichtman v. WLW Jacor
Communications, Inc.)
 [Policy]
1. Assurance of compensation
2. Employers are best able to prevent future injuries.
3. Employer is a better cost spreader (cost accounting, insurance, price of product)
(Riviello 624)
4. Equitable/fair spreading of losses caused by an enterprise (Lisa 624) (include in
the costs of operation inevitable losses to third persons incident to carrying on an
enterprise, thus distribute the burden among those benefited by the enterprise,
matching Fruit 625)
5. By forcing the enterprise to internalize the cost of accidents and reflect it in their
product price, the market will favor the cheaper (safer) product, thus giving
employers an incentive to improve safety.

 Exceptions will be made to the “going and coming” rule where the trip involves an
incidental benefit to the employer, not common to commute trips by ordinary
members of the work force.
 “Going and coming” rule says an employee going to and from work is
considered outside the scope of employment.
 Such a benefit is found when employers reach out to a labor market in another
area, thus increasing the risk of injury by requiring longer commute distance,
especially when employers find it beneficial to pay for employee’s travel time
and expenses in order to reach them. (Hinman v. Westinghouse Electric Co. 627)

B. Independent Contractors
 To apply respondeat superior doctrine, the tortfeasors must be P’s employee, not an
independent contractor. (master-servant or principal-agent relationship)
 To determine the existence of the relationship, use the following considerations:
1. Selection and engagement of the servant
2. Payment of wages
3. Power to discharge
4. Power to control the servant’s conduct
5. Whether the work is part of the regular business of the employer
 (4) is decisive. The right to control counts, not the actual exercise of control.
(DC v. Hampton 644)
 In Hampton, after making the distinction between right and actual exercise of
control, the court held that there is no master-servant relationship because there is no
actual control.
 By referring to the instrumental goals above, none except (2) might be
accomplished. If actual control is impossible despite the right, (2) fails as well.
The court’s reasoning therefore maybe: since actually controlling the foster
home’s day-to-day operation is probably infeasible and most likely undesirable,
we don’t want to apply respondeat superior doctrine here because:
1. None of the instrumental goals is accomplished here.
2. We want foster homes to take control, and holding otherwise would provide
the opposite incentive.

C. Enterprise Liability
[675-660]

D. Insurance
 Insurance reduces uncertainty; increases utility by reducing uncertainty caused
anxiety; and reduces risk according to the law of large numbers.

IV. NO FAULT: STRICT LIABILITY

A. Historic Foundations
 The person who for his own purposes, brings on his land, and collects and keeps
there anything likely to do mischief if it escapes, must keep it in at his peril, or he
will be prima facie answerable for the natural consequences of their escape.
 Two doctrinal requirements here: (Rylands v. Fletcher 676)
1. Unnatural use. Damage inflicted by force or breach of peace.
 D is not liable for natural use. Here for example, if the water
 accumulated itself and escaped by “the operation of the laws of nature.”
2. Will do mischief is escapes.
 Defenses and exceptions:
1. The escape was owing to P’s fault.
2. Act of God.
3. No liability for injury to the person of others by escaped cattle, unless he
knew that the beast has a vicious propensity to attack man.
 Court of Exchequer in Rylands argued that (1) D’s act was lawful and (2) D had
no reason to believe or suspect that any damage was likely to ensue.
 D is liable in a blasting case for damages caused by projection of rocks and
debris and by creation of a vacuum. (Exner 684)
 Generally, a trespass is an act that directly causes and injury.
 Elements:
1. Damage inflicted by force or breach of the peace.
2. Direct causal connection.
 Defenses:
1. Intervening events/superseding cause, chain of causation is broken, act of
God.
2. Contributory negligence.
 For trespassory torts, there will be extended liability.
 However, if directness is not proved, indirect consequential damages are
recoverable only when (1) D was wanton or negligent and (2) damages was not
unavoidable accident.

 Nuisance has two key points: (1) continuance; (2) some kind of unlawfulness or
wrongfulness. Nuisance is also a strict liability.

 When you have some intuitive feeling about how the case should come out, you
should translate that into some doctrinal ambiguity and argue that the ambiguity
should be resolved in your favor.

B. Contemporary Strict Liability

[687-694]

C. Product Liability
1. Developments
1. Privity Requirement
 Bases on negligence, a duty implicitly undertaken in a contract of sale.
 Must be “in privity of contract” (sell directly) to be liable.
  Losee v. Clute (p.696), even active negligence was protected by the privity
rule. (boiler explodes)
 Thomas v. Winchester (696), recognition of extreme cases: “where death or
great bodily harm would be “the natural and almost inevitable consequence
of the sale” under a false label, privity would not be required. (deadly poison
labeled “belladonna”)
2. Negligence
 MacPherson v. Buick Motor Co. (696), “[i]f the nature of a thing is such that
it is reasonably certain to place life and limb in peril when negligently made,
it is then a thing of danger . . . . If [the manufacturer] is negligent where
danger is to be foreseen, a liability will follow.” (wheel of car purchased
from dealer collapsed)
 Substituted foreseeability for contract or undertaking, applied general
negligence principles.
 Not strict liability.
 Limited, led to the introduction of other theories.
3. Misrepresentation
 Baxter v. Ford Motor Co. (696), a manufacturer would be liable for injuries
resulting from conditions of the product that were misrepresented, even
without privity. (windshield claimed “shatterproof” blinds one eye)
 Punitive damages: Williams v. Philip Morris Inc. (697), tobacco industry
statement about safety of smoking and industry research on safety, $79
million in punitive damages.
4. Warranty
 UCC 2-314: for any seller of goods, recognized an implied warranty that
goods are “fit for the ordinary purposes for which such goods are used”; and
that they are as good as the seller claims they are.
 Just like contract: liability for breach is strict, privity is required.
 Henningsen v. Bloomfield Motors, Inc. (697), car’s steering failed and
crashed, held, there was an implied warranty in addition to this express
warranty, ran to the ultimate purchaser not merely the retailer, disclaimer of
liability would be ineffective.
 “[E]volutionary dead-end, led to new developments.
5. (Present) Strict Liability
 Greenman v. Yuba (691), in the case of defective products, “the liability is
not one governed by the law of contract warranties but by the law of strict
liability in tort.” [Policy]: to insure that injuries from defective products are
compensated by manufacturer rather than injured persons who are powerless
to protect themselves.
 Greenman led to Restatement Second of Torts 402A: (1) seller strictly liable,
no fault required; (2) privity rules were abolished; (3) rationale is
 “unreasonable danger”; (4) the consumers’ reasonable expectations
defined what counted as a defective product.
2. Rationale (698-701) – All Arguments/Policies
1. Compensation is needed; more practical way to secure compensation.
2. Enterprise liability or “loss spreading.”
 More easily spread the costs; raising prices/purchasing insurance.
3. Practicality
 If retailer is liable, he would have indemnity from the manufacturer, so why
not let plaintiff directly sue manufacturer? It would save time and cost.
 Most products are defective because of negligence, so we should save the
legal system the time and cost to prove negligence.
4. Fairness
 Consumer Expectation: Manufacturers implicitly represent that the products
are safe and healthy. Consumers are justified to rely on it.
 The manufacturer benefits for sending products into commerce, should bear
risks of such activity.
 Injuries are statistically associated with manufacturing and selling, thus
liability should be a cost of doing business.
 Manufacturer imposes a “nonreciprocal risk” on the consumer. (No injured
person should be required to give up a claim against the defendant merely for
social benefit. Similarly, manufacturing shouldn’t be prohibited, but should
be “taxed” by tort liability.) The argument works against 2nd ar. for
practicality?
5. Incentives/Deterrence
 Manufacturer will make safer products:
1. Liability costs.
2. For liability, will have to raise price, thus lose market share.
 Consumers will turn away from unsafe products.
1. Price higher.
2. Price reflects the real cost/risk of operation. Some people will get the
message.
3. Encourage people to make the activity safer is they knew the real cost of
individual products (as opposed to blanket insurance).
 Manufacturer are better able to avoid the accidents and make the products
safer; they also do it at a lower cost.

3. Economic Loss [702-706]

4. The Prima Facie Case

a) Manufacturing Defects
 To recover under strict product liability rule, P must prove:
 1. The product was in fact in a defective condition, unreasonably dangerous for
its intended use.
 Consumer’s expectation test is used.
 Defined as a physical departure from a product’s intended design.
2. Such defect existed when the product left defendant’s control.
3. The defect was the proximate cause of the injury.
 1 and 2 combined is very close to negligence.
 According to 2, liability is not imposed when P hasn’t eliminated the probability
that improper handling by intermediate parties caused the injury.
 P is not required to point out and prove the specific defect.
 Circumstantial evidence is often sufficient, and may be the only available way.
(Lee v. Crookston Coca-Cola Bottling Co. 707) (Coke bottle exploded in P’s
hand without thermal-shock or impact. Held, circumstantial evidence is probably
enough; should submit the issue of strict liability to jury.)

b) Design Defects
 P must prove: an 1) unreasonably dangerous product design 2) proximately
caused or enhanced P’s injuries in the course of an 3) intended or reasonably
foreseeable use.
 Unreasonably dangerous/defective element by the following two tests:
1. Consumer expectation test: The product failed to perform as safely as an
ordinary consumer would expect when used in an intended or reasonably
foreseeable manner. (Leichtamer 712)
2. Risk/utility analysis test: If the risk of danger inherent in the challenged
design outweighs the benefits of such design. (excessive preventable danger)
Factors include:
 Likelihood that the product design will cause injury.
 Gravity of danger posed.
 Mechanical and economic feasibility of an improved design. (Knitz v.
Minster Machine Co. 714)
 To establish (2), P must show that there is a safe alternative available:
1. There was a safer alternative.
2. The safer alternative would have prevented or significantly reduced the
risk, without substantially impairing the product’s utility.
3. The safer alternative was both technologically and economically
feasible when the product left the control of the manufacturer.
(Honda of America Mfg., Inc. v. Norman 718)
 In the risk/utility analysis, the risk of injury to be balanced is not a risk
intended as the primary function of the product. If it is, the test will not be
applied. (McCarthy v. Olin Corp. 723) (P shot by criminal with extra
powerful bullet, sued bullet manufacturer.)
 Henderson: design problems are polycentric and cannot be appropriately litigated in
court. (Fault assumption, not everyone can play several positions, and some problems
are independent, such as that in Leichtamer (rollbar collapsed).
 Manufacture defect cases are governed by strict liability, while design defect cases
are governed by negligence. (730)

c) Information Defects
 A warning may serve two functions:
 State that a particular place, object, or activity is dangerous.
 Explain that people need not risk the danger posed. There is a safer alternative.
Assist the reader in making choices. (Here, to tell the reader there is a safety
device and the machine is meant to be used with it.)
 Therefore, that the place, object, or activity is obviously dangerous
doesn’t relieve D the duty to put up a warning. Reasonable standard is
used. (Liriano v. Hobart Corp. 731)
 Even if a safety device is installed when it left manufacturer’s hands, there is
a duty to warn against removal of safety devices. (Liriano v. Hobart Corp.
731)
 [Following the above reasoning] A product becomes defective when the product’s (1)
foreseeable risks of harm (2) could have been reduced or avoided by the
provision of a (3) reasonable warning, and the omission of such a warning renders
the product “not reasonably safe.”
 When D’s negligent act is deemed wrongful precisely because it has a strong
propensity to cause the type of injury that ensued, that very causal tendency is
evidence enough to establish a prima facie case of cause-in-fact. The burden the
shifts to the defendant to prove that its negligence was not such a but-for cause.
(Liriano v. Hobart Corp. 731)

 Civil conspiracy has two elements:

a) Agreement (concerted action)
b) Tortious conduct by one of the parties in the agreement in furtherance of the
agreement
 Under this rule, P doesn’t need to point out the specific conspirator that
caused the injury, as long as one of Ds did. (Lewis v. Lead Industries Ass’n
739)
 Most courts hold that when the manufacturer did not know about the danger, there
is no duty to warn.
 A duty to give prompt warning exists when a latent defect which makes the
product hazardous to life becomes known to the manufacturer shortly after the
product has been put on the market. (Comstock v. General Motors Corp. 742)
 Post-sale warning duties only exist when the product has a defect at the time of
 manufacture. (Gregory v. Cincinnati, Inc. 742 Safety device designed years after
sale. Held, no continuing duty to warn.)
 "Learned-intermediary defense"
 The pigment manufacturer could argue that they warned the paint manufacturer.
Another example: Drug Company and doctor, when doctor know the risk.
 The start of the argument is that, if it's the paint manufacturer that deals with the
consumers, why hold the pigment manufacturer liable?
 Pigment manufacturer match the instrumental objectives better.
 Under the 3d Restatement, the "learned-intermediary defense" is not viable if the
intermediary is not reliable.

Cases:
Liriano v. Hobart Corp. 731: No warning on meat grinders. There is a safety device
available. Held, should provide warning. No need to prove cause in fact.

d) Misuse
 Misuse of product is not an affirmative defense, but an element of P’s prima facie
case. Recall P must prove that the product is unreasonably dangerous in a reasonably
foreseeable use.
 A reasonably foreseeable use is not a reasonable use. The use could be negligent,
but as long as it is foreseeable, D would be liable.
 A separate misuse jury instruction could be erroneous in that it gives undue
emphasis to what P knew or should have known. (Hughes v. Magic Chef, Inc.
762 P used the stove when pilot lights were off.)
 Assumption of risk is when P “voluntarily and unreasonably proceeded to
encounter a known danger.”
 In an ordinary negligence case, it is to be included in the contributory
negligence instruction.
 In a products liability case, it is different from misuse. One can do one without
doing the other. (Hughes v. Magic Chef, Inc. 762)

 Cost-spreading, matching, incentives. (Three policy goals.)

5. Defenses
a) Comparative Fault
 Principles of comparative fault and comparative negligence do not apply to product
liability cases.
 The focus of product liability cases is the nature of the product, and consumer’s
reasonable expectations, not the conduct of the two parties. It’s not about
blameworthiness, but strict liability. (Bowling v. Heil Co. 756 P got under truck
bed when it wouldn’t move down; died of crash.)
 The manufacturer has no liability (a complete defense) if:
 P voluntarily and knowingly assumed the risk occasioned by the defect;
 P misused the product in an unforeseeable manner. (Bowling v. Heil Co. 756)
 All conducts in traditional comparative negligence could be put in 1 of 3 categories:
 Failure to discover the defect.
 Failure to guard against a possible defect.
 Voluntarily assumes the risk of a know defect.
 b) could include an “affirmative action.”
 It’s a clear cut. Under a) and b), D is liable; under c), D is not liable.
(Bowling v. Heil Co. 756)
 Reiteration of some policies:
 Manufacturer assumes and undertakes a special responsibility when marketing
the product. Since they market the product, they should bear the burden as a cost
of production. (matching theory)
 The can have insurance. (spreading cost) (Bowling v. Heil Co. 756)

b) Comparative Causation
 Comparative indemnity doctrine may be utilized to allocate liability between a
negligent and a strictly liable defendant because:
 The policy to allocate burden to a party more able to distribute the cost does not
require or even permit another negligent tortfeasors to escape liability.
 Although there is theoretically “no fault” in strict liability, the juries are perfectly
competent to allocate fault and burden in such cases.
 A contrary rule would ban a non-negligent manufacturer from sharing burden
but allow a negligent manufacturer to share cost, which is a bizarre and
irrational consequence. (Safeway Stores, Inc. v. Nest-Kart 822 P is both strictly
and negligently liable; D is only strictly liable.)

c) “Sellers” of “Products”
 This point deals with the scope of products liability. What classes of parties could be
liable?
 General rule: distributors and only distributors.
 Clear: commercial providers are distributors (you, not in car business, sold
your car). Unclear: (1) non-commercial providers could systematically provide
(charity provides defective drugs); (2) businesses operating out of it usual line -
one case termed it an “occasional seller,” not liable.
 Clear: wholesalers, retailers are distributors. Unclear: endorser, franchisor,
trademark licensor could be. Restatement: “distributes as its own a product
manufactured by another” is liable.
 Used goods business: cases are divided.
 Real estate: divided. Note: product liability traditionally doesn’t apply. Present
 stage, only builders are threatened.
 California held landlords and lessor not liable because they are not in a good
position to urge the manufacturer of the defect.
 Retailers and wholesalers have indemnity claims in its favor against the
manufacturer.
 Sale is not required (customer injured in shop by an exploded can has a claim).
“In the business of supplying goods.” So supplier and lessor could be covered.
 Animals? Are they products?

V. THE INSURANCE ALTERNATIVE

A. Problems with the Tort System

[901-912]

B. No-Fault Auto Insurance

[967-71; 973-77]

C. Worker Compensation Schemes

[914-21]

1. Job Relatedness [925-29]

2. Accidental Injury [930-36]

3. Exclusive Remedy [938-44]

D. Socialized Compensation
1. Social Security and the Problems of Bureaucracy
 Taxing Industry and Eliminating Its Tort Liability
 National Childhood Vaccine Injury Act, 42 U.S.C.A. § 300aa-1
 Pros: avoids tort law system’s (1) uncertain recoveries, (2) high cost of
litigation, (3) delays in obtaining compensation, and (4) the threat to the
stability of the vaccine supply posed by occasional large recoveries.
 Cons: (1) Tort law system provides important incentive for the safe
manufacture and distribution of vaccines. (This is solved by (1) transferring
the tort claim to the government and (2) giving victims either to accept
award or pursue tort claim.) (2) Determination of damage under the current
 system is too arbitrary, depends on specific “special master.”
 Since the government made vaccination obligatory, there is an argument that
the government has a responsibility to ensure compensation for these
inevitable injuries.
 Taxing the Public to Protect Industries and Provide Compensation to Victims
 Air Transportation Safety and System Stabilization Act, 49 U.S.C.A. § 40101

 Social Security Disability Benefits

 Applicant has a prima facie case when (1) disabled and (2) cannot perform
original job. Burden shifts to the agency. (See 960 note 2)
 Before 1978, the Secretary relied on vocational experts to establish disability,
which is defined as non-existence of suitable jobs in the national economy.
 Now uses the Medical Vocational Guidelines – The Grids
 Heckler v. Campbell 963
 Even where an agency’s enabling statute expressly requires it to hold a
hearing, the agency may rely on its rulemaking authority to determine
issues that do not require case-by-case consideration. (can use the Grid
even in a hearing)
a) As a counter, the whole point of a hearing is to individualize the
claim, rather than rely on the grids.
 Accuracy of the Grid has been tested fairly in rulemaking, thus
providing sufficient procedural protection. (cannot ask Secretary to
specify alternative available jobs in addition to decision by the Grid)
a) There could be a lot of problems. For example, P didn’t take part in
the initial hearing passing the Grid. Things have changed.
 This system provides uniformity, simplicity and efficiency.
 Point by Spann: Whenever there is a government sponsored system, there will be
bureaucracy.

2. Goals and Objectives

1) Judicial Process
 Does the tort law system systematically allow frauds?
 The fact that the judicial process judges each case on its own merits and
doesn’t label defendants or plaintiffs, that the rules of law take individual
characteristics and particular fact into consideration, promotes justice.
 How does other systems do?
2) Personal accountability and social responsibility – fairness or justice, are all
these pursuits lost in other systems?
3) Safety and deterrence
 The tort system (1) promote optimal risk-taking and (2) deter undesirable
risks. Is that lost.
  Other systems might do the same, say inspection, raising premiums. Are
these as effective?
4) Costs
 90% return rate by pure no-fault system, compared to around 50% by
liability insurance dollar.
 How do you compare social security and worker’s compensation? (key
difference is judgment, use of reliable data)
5) Delay in payment
6) What is the most important issue to you?