TORTS OUTLINE

PROFESSOR ABEL
SPRING 2007

I. INTRODUCTION – It takes two to tort (always look at other side)

Red = added during class
Blue = cases
Black = text from old outlines

>> HOW TO LOOK AT PROBLEMS

Cause in fact? But for?
Serious injury?
Are damages clear?
Misfeasance/ Nonfeasance?
Externalities if apply duty/proximate cause etc?

>> HOW TO LOOK AT A CASE

Damages? What would they be?
Negligence? Jury believe it?
Sympathetic
Fault? Emotional harm until pain…

>>WHAT TORTS CAN’T DO

At times, can’t have tort claim (don’t create duty) because don’t want torts to decide the system/efficiency of system. Other concerns weigh in such
as political conerns, policy, externalities that juries can’t factor in…etc. Don’t want to regulate system by rubric of torts

A. INTRODUCTION TO TORTS
A tort is conduct that amounts to a legal wrong, and causes harm for which courts will impose civil liability
• Three categories / possibilities for a tort system:
-Non-Liability
-Negligence (Yes / No) = A Fault-Based Scheme
-This is the scheme we have.
-We reject the logical extremities of the other two schemes
-Strict Liability

B. LEGAL FRAMEWORK- How Torts relates to other bodies of Law

1. Law of Persons:
• 19th century shift from evaluation of particular relationships/debts (alienation of affection was actionable) to anonymous, mass
society (identity of parties can still eliminate tort)
- Relationships Create a Duty
If it occurred between strangers then it would be an innocent act, but because of the nature of the relationship you can make a claim
about it
-Ex. Lifeguard (duty), parents-children (neglect), employer-employee (sexual remark)
- Relationships Negate a Duty
A injures B, but because of the relationship of the two, A cannot make a claim against B
-Ex. Boxing, plastic surgeon, state punishment, parent to child (grounding), soldier
2. Criminal:
• Overlap raises questions of which law to pursue
• Victimless crimes (drug use, tax evasion) => criminal only
• Assault => criminal and tort
• Products liability, ordinary torts => torts only
3. Contract:
• Can K out of tort liability
o Before tort => waiver, parking lot sign (not enforceable)
o After tort => settlement
• Can K into tort liability
o Before tort => insurance policy, if K provides for tort remedy
o After tort => can sign K to settle at higher cost to keep private and protect image (large corporation)
4. Morality-based torts:
• Morally objectionable behavior may or may not be tortious; often changing with values
• Sexual harassment and invasion of privacy became recognized as torts
5. Property
• Nuisance => tort from putting property to harmful use
6. Statutes/Constitutions/Treatises:
• Can give private cause of action; Ex. People claiming to be victims of violence in foreign countries

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B. GOALS

1. MORALITY
• Hold guilty party liable; liability reflects moral judgment about behavior that is negligent/ willful etc. (Holmes)
• Doesn’t like S/L, b/c if so then both parties would be guilty.
• State system should correct injustice with clear net benefit (shifting blame between innocent parties is inefficient)
2. SAFETY (deterrence)
• Cost of prevention must not exceed cost of accident, otherwise liability will not encourage safety. Efficiency = morality.
Compensate through money (Posner)
• Only impose liability where Δ would act differently, such as cost-effective redesign or warnings
3. COMPENSATION (spreading – but note spreading is not nec compensation)
• Socially undesirable to leave the loss on the victim (social dislocation, family strife, poverty)
• Res Judicata: Only get one chance to decide damages.
• π liability => spread through insurance (general public)
o Require drivers to buy insurance, more dangerous/risky to drive car (Hammontree)
• Δ liability => spread to consumers (product users)
o More desirable that losses be paid for by consumers engaging in the activity (Murphy)
4. ECONOMIC EFFICIENCY (hand formula)
- Want to impose incentive on D to make sure costs associated w/ activities do not outweight benefits from acitivites.
- Want to avoid situations where D gets benefits & 3rd parties bear costs (D speeding to meeting and hit pedestrian)
- Posner: damages tells D how much they were negligent and how much more careful they have to be – msg to D.
5. TYPES OF LIABILITY REGIMES:

Non liability regime Negligence regime.

Injury Result in Liability Some states use
Strict liability. causal agent is
Leave
1. When Shouldthings where
Unintended
-Fundamental issue
they fall. of tort liability comparative
for unintended injury is when losesfault injury victim&to held
should be shifted from an identified responsible
an injurer or other source of
compensation regime. “Pro tanto”
-These rules reflect a tension between two court-fashioned liability principles
-Strict liability and negligence
see p 6-7 for args in
favor of neg. regime
2. Hammontree, 1971: -Injury resulting from an accident occurring during the time of health failures rest on the principle of negligence, not
strict liability
o Facts: D had epileptic fit and drove car into Ps' shop. Seriously injured Ps and P's shop hurt. D knew he had medical history
of epilepsy but had seen doctors, had taken medication, and believed doctors when they said the medication would help
avoid seizures. Had no warning he was about to have a seizure. Followed procedure, no signs of negligence
o -Appellants use issue of product liability to claim that the driver with the physical condition can anticipate the hazards and
therefore should prove strict liability
o Ct reasoning: Declined to impose absolute liability b/c legislature should do it and it would be unfair to those that had
unexpected physical condition where no reason to believe might suffer
o Other concerns: Can’t spread costs, deepest pocket is insurance of shop owner, no guilt, no negligence – economic problem
b/c economic activity of driving to wherever you need to go is big. C/A: Driver best position to control, Insurance of driver
can pay, he caused accident. Here, no morality of efficiency goals fulfilled.
Holmes- Moral argument
-Against liability- Jenner did what his Drs. And DMV told him he could
-For liability- Jenner made enough of a choice by driving
Posner- Cost Benefit
-There is no morality but economic efficiency
-Jenner would have to not drive to prevent the liability
-Against liability- the cost of Jenner to not drive would be greater than the cost of the accident
• Vicarious Liability:
o Under the doctrine of Respondeat Superior employers are vicariously liable for torts committed by their
agents or employees acting within the scope of their employment.
 Underlying justification = incentive for employers to discipline, supervise employees
o Christensen v. Swensen et. al. (pg. 18) S.C. Utah, 1994 [Security guard lunch break case]
 Facts: The EE, Swenson, was a guard and called in her order. When driving back, she hit Π . Π
sued Swenson and her ER – vicarious liability. The ER moved for summary judgment on the
ground that EE was not acting within the scope of her employment.
 Summary judgment is inappropriate when reasonable minds could differ as to whether the
defendant was acting within or outside the scope of her employment when the accident occurred.

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 The Birkner test gives three criteria to determine whether an EE is working within the scope of

employment:
• EE’s conduct is of the general type EE is hired to perform
• EE’s conduct must occur substantially within the hours and spatial boundaries of
employment
• EE’s conduct must be motivated, at least in part, by the purpose of serving ER’s interest
o Baptist Memorial Hospital System v. Sampson (pg. 24) S.C. TX, 1998 [Independent contractor doctor
negligently treats a spider bite]
 Facts: A woman sued the hospital where she was negligently treated for a spider bite by a doctor
who was not an agent or employee of the hospital
 A hospital may be vicariously liable for the medical malpractice of independent contractor
physicians when the Π can establish the elements of an ostensible agency.
 Ostensible agency (based on notion of estoppel): (1) The principle, by its conduct, (2) caused Π
to reasonably believe that the putative agent was an agent or employee of the principal, and (3)
the Π justifiably relied on the appearance of agency
 Π signed consent forms that said the doctor was an independent contractor
 Π did not raise a genuine issue of material fact that the Δ was vicariously liable for negligence
under a theory of ostensible agency.

- Abel’s Tort Insurance Plan

o Pay certain amount each month/ year so that if we do get in a tort, insurance will pay damages.
o OR, people get taxed so we have tort fund to compensate victims
o Problems:
 P&S component?
• How to decide if richer ppl / poorer ppl deserve more or less?
• Per diem payment problems (arbitrary)
• Comparing similar cases hard b/c so factually specific
• Survey research doesn’t help b/c depend if ex post or ex ante.
• Should insurance consider age? Likeable? Parent? Single?
 If do this, then what about fund for disabilities?
3. Litigation Process
-Plaintiff files a complaint, alleging facts and making legal claims
-Defendant might move to dismiss (demurer), on purely legal grounds through unsound legal theory
-If the judge agrees, the D wins
-P files an answer, denying the facts, alleging other facts
-Discovery- gathering evidence from the other party (can go on for years)
-P and/or D files Motion for Summary Judgment (no reasonable jury can decide for the other party)
-If Judge agrees, P/D wins; if Judge does not agree- goes to trial
-At trial parties present their evidence with evidentiary decisions by the judge
-Plaintiff has the burden of proving essential facts
-Burden of production- sufficient evidence that the jury could find in her behalf
-Burden of persuasion- persuade the jury that her version is correct by a preponderance of evidence (not as strict as
beyond a reasonable doubt)
-P or D moves for directed verdict or judgment as a matter of law
-If Judge agrees, P/D wins
-P and D propose jury instructions
-Judge instructs jury, considering parties’ objections- jury is “charged” by judge
-jury returns verdict (often yes/no)- this is not reviewed
-P and D move for Judgment-not-withstanding the verdict
-If judge agrees, P/D wins; if not the judge issues a judgment according to the jury verdict
*Can be Appealed

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 - II. DAMAGES AND INSURANCE

• OVERVIEW

Goals
-Traditional goal of tort law is to restore her to the equivalent of her condition prior to the harm
• Efficiency: limits to “single judgment,” except in prison reform, on-going family cases, toxic exposure, WC
• π compensation: pain and suffering, punitive damages and collateral source payments cover attorney’s fees and ensure full π
compensation

Concerns
• Compensability: main goal is to return victim as closely as possible to pre-accident position (status quo ante)
• Commensurability: moral interest in awarding damages to compensate π and reflect Δ’s conduct, therefore should account for what
happens to victim before and after the award; however, tort assigns monetary value to victim’s experience and moral intuitions differ
about how much money can make up for an injury; victim’s negligence = discount award
• Measurement: difficult to quantify pain and suffering (non-pecuniary) in dollars
• Predictability: “final judgment rule” requires speculation about life expectancy, career changes; doesn’t account for changes in
condition (improvement, decline, death)
• Proportionality: per diem easier to calculate, but high risk of error when multiplied across life expectancy
• Equality: Values pain of higher-income people more than lower-income people, in turn, should higher-income pay higher premiums
because they will be paid more in tort liability; should life expectancy be adjusted based on demographic variables; 9/11 restaurant
workers vs. bankers chose not to compensate based on income
• Statistics: often abused or misleading
o Example: Taylor v. Superior Court: π introduced statistic that 50% of car accident fatalities are alcohol-related, however
Δ could counter by arguing that because that is a majority, we should have a lower standard of care, question the threshold
for “alcohol-related,” question efficacy of punitive damages in reducing drunk driving, because the stats do not show how
behavior would be curbed

Posner Approach – Economic Efficiency

• Goal is to properly allocate loss and hold Δ accountable for the magnitude of the tort
• If P was negligent, then award discounted b/c economic efficiency (incentive not to be negligent)
• Supports full pain and suffering compensation to comatose patients and wrongful death plaintiffs

B. CATEGORIES OF DAMAGES

1. Compensatory Damages
-The goal of damage awards in unintentional torts is to eturn the plaintiff to his or her condition before the accident
-Plaintiff generally may sue only once for all of the damage, and thus must make some predictions
-Drawbacks to the possibility of having a system where the plaintiffs sue every few years: concern that victims out of fear of loss of
payment may recover more slowly than necessary, administrative difficulty of handling periodic recoveries
Calculability- Seffert v. LA Times- problem regarding predictions about what will happen to plaintiff, what will happen to economy;
danger is that we will either over/under compensate
Commensurability- Wry v. Dial- experience of injury cannot be equated in a meaningful way to damages
Compensability- McDougal v. Garber

a. Pecuniary loss (special): economic losses and expenses

i. Past and future medical expenses
a. Expert testimony: establishes permanence/duration of injury
b. Based on life expectancy
c. Risk of collusion between lawyers/doctors based on incentive to inflate damages or contractual relationship
ii. Lost earnings
a. Based on past income history (past) and life expectancy (future)
b. Doesn’t account for intrinsic reward of working, joy of working!
iii. Attorneys Fees- Contingent fee system- the injured person pays a fee only if the case is concluded successfully and the fee is
previously set
b. Non-pecuniary loss (general): dangers inherent in the injury itself, legal fiction that $$ offers solace ease pain.
i. Pain and suffering (Posner says this should be allowed, deter b/c take into account all costs; Jaffe believe such award helps
victim’s sense of outrage and give value to noneconomic goods, Traynor says no – pain and suffering too arbitrary & too much
variance)
a. Fright and shock at the time of injury (Emotional suffering need physical manifestation; can be claimed by 3rd person under
NIED, Thing)
b. Loss of enjoyment due to humiliation and deprivation of activities (not about infliction of negative experience, loss of
positive experience)
• Cognitive awareness requirement: see (e)

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 • Counts as separate item from P&S in most jurisdictions (means larger recovery), but can be included in single P&S
award (NY: McDougald, single award b/c goal is not punishment, didn’t want to complicate more by making
graduations within arbitrary field)
c. Loss of consortium (claimed by 3rd party): see (f)
ii. Property damage
iii. Caps
a. P&S capped at $250,000 in CA medical malpractices cases
b. Non-economic damages capped at $350,000 in MD

• Must not shock the conscience

i. Must not be awarded on the basis of passion, prejudice, whim or caprice, or corruption on part of jury.
ii. Court must look at nature of the injury, level of P&S, defer to trial
iii. Example: Seffert (p680) – ct said $134,000 for P & S not too excessive , Allowed Per Diem Arg
1. Facts: π caught in bus door, more witnesses said she wasn’t negligent. Impute bus driver liability to employer.
2. Rule: to be valid, damage award must not be so high as to shock the conscience or give rise to the presumption that is was
the result of passion or prejudice by the jurors
3. Dissent- Justice Traynor dissents in his opinion that $134,000 for pain and suffering is so
excessive as to indicate it was prompted by passion, prejudice, whim, or caprice
-Ordinarily pain and suffering does not exceed the pecuniary loss award and that no other award has been so high in CA,
even for more serious injuries
-Hypothetical: why would P spend unnecessary money on medical expenses
• lawyer has interest in jacking up expenses as they get a %
• the award of money for pain and suffering has some proportionality. The increase of pecuniary then increases non-pecuniary
• cynical answer: lawyer finds doctors who perform unnecessary surgeries to increase medical bills lawyer bills

• Measurement problems in calculating future damages, usually allow comp just once (so that P isn’t indulgent, P gets $$ to pay
lawyer, child support, D might disappear later etc)
i. Future earnings: may be affected by changes in economy
1. Social change: if women are paid more in the future
2. Job market: technical advances could render job obsolete (bank tellers, gas pumps, travel agent)
3. Career path: π could have quit, been promoted, retired earlier/later
ii. Life expectancy: estimation based on condition and genetics, sometimes race, class, sex, age, lifestyle aspects
iii. Minors: if victim is a minor, requires generalizations about future potential based on intelligence, class background, gender, race,
geography
iv. Discounting/inflation: must estimate, without reflecting real economic trends
1. Discount (good for Δ): because Δ is paying all up front and otherwise would have been able to get interest (forces
speculation about interest rate)
2. Inflation (good for π): if court does not adjust for inflation, it will also not discount, assuming that these cancel each other
out
v. Location differences
vi. Taxation
1. Don’t tax compensatory damages (though would be appropriate to tax lost earnings)
2. Juries might shift awards up or down if know/don’t know award is being taxed (over/under compensation issues)
3. Don’t have to account for future shifts in tax brackets or tax policy regarding marriage, etc.
4. Sometimes takes into account interest rate if they invest it.
vii. Medical technology advances
1. Can’t foresee changes that might reduce medical costs or increase costs (new treatments), inflation
viii. Court adjusting jury awards
1. Remittitur: Ct thinks verdict too excessive. Conditional new trial unless P consents to reduction of damages
2. Additur: Ct believes damages are inadequate as matter of law. New trial ordered unless D agrees to adjustment upward in
amount of damages awarded. Less frequent and not done in federal court or supreme court

e. Solutions to help juries make calculations (Think: life expectancy? Compare with other cases? Circumstances of accident – fault,
MR, negligence, etc? Financial circumstances?)
i. Willingness to pay: consider what a normal person would pay to avoid the harm/ sell health (ex ante) (varies based on how
people value their lives & here ppl ask for more $$) v. how much person would accept to make whole (ex post) – which one is
better to give to juries to decide amount?
ii. Wage risk premium: based on labor market, identify premium offered for more risky jobs; however, often an inverse relationship
between risk and pay (immigrant workers)
iii. Utilis: compensate all unhappiness equally
iv. Pre-defined proportion: 1:1 ratio between pecuniary and non-pecuniary (Traynor dissent in Seffert)
v. Cap: limit based on past awards, compare with past cases
vi. Likeness: look at similar cases (do people experience loss similarly? Court usually don’t want people to compare)
vii. Per diem: reduction to units (day, hour, minute) for P & S.- may lead to inflated awards (not allowed)
1. Allowed in majority of jurisdictions
2. Pros: gives jury guidance

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 3. Cons: π could run up damages (but Δ can counterargue) by saying an arbitrary amount per day (how can you say you suffer
$100 a day?)
viii. Periodic payments (structured settlement)
1. Used more in medical malpractice
2. Terminates on death
3. Good for Δ: π heirs won’t get as much; Δ could go bankrupt; π can’t use lump sum for other purpose
4. Good for π: protected against inflation

f. Individualizing Recovery
i. Cognitive awareness requirement for non-pecuniary damages
1. Rule: Victim must be aware of her loss, to serve compensatory purpose
2. Example: McDougald v. Garber(p697)
a) Facts: ∆ ’s malpractice caused victim to suffer brain damage, left in “permanently comatose condition”
b) Rule: Cognitive awareness is a prerequisite for recovery for loss of enjoyment of life
-No separate samages for pain and suffering and loss of enjoyment of life
c) Dissent by Titone-- Pain and suffering is a subjective experience and it cannot exist except in
someone’s mind; loss of enjoyment is an objective fact and exists regardless of whether someone is aware of it
- What Posner might say: The victim is a convenience; making the Δ pay sends a message about the amount of care to take
and about what has been lost through his negligence
d) Hypo: McDougal is comatose and before the case is tried she recovers consciousness and her lawyer includes in the
amount a claim for “loss of enjoyment of the comatose period.” Should she get money for these damages?
-Yes because of loss of years in the past and reduced life expectancy
-Child is given severe diarrhea by negligence, is kept in the hospital for the first year; after the year the child is sent home;
psychologist tells us that we don’t know what the child went through; will giving the child money make up for past
experiences
-Child was given damages
3. Posner: Based on Bentham’s hedonistic principle, makes no sense to give money to unconscious person who cannot enjoy it
– no compensation if not conscious of it. However, this does not serve the deterrence goal, because Δ should pay for the
social cost of his behavior
4. Perversities:
a) Δ pays less for worse injury (brain damage victims can’t recover); isn’t loss of enjoyment worse?
b) Comatose victim gets no loss of enjoyment, but would get money for lost limb
c) Similarity: in survival suit, V’s estate cannot sue for lost years to V, b/c V can’t comprehend/use $
ii. Outstanding personal characteristics may lead to conclusion that loss of individual is catastrophic, and thus deserving of greater
compensation (Wry v. Dial)
-Joseph Dial was intelligent, creative hard working, athletic pre-accident; was involved in automobile accident, from which he
got brain damage and suffered from severe burns, it was later discovered he was a keloid scar former, which created
disfigurements; he cannot continue in the field of electrical engineering, where he could have been the best in his field

iii. Based on victim traits (discriminatory)

1. Age, gender, race, genetic makeup, class, lifestyle, beauty considered in calculating lost earnings, life expectancy and loss of
enjoyment, smoking, diet, etc
2. Equal protection challenge? How can Holmes say it’s about punishing the wrongdoing when so much of damages matters
about identitiy of victim?

Tort Death Life Expectancy

T1 T2 T3

--------------------Survival (Heirs Tort Claim)

Wrongful Death (decedent’s % of income)------------------
g. Death before judgment
i. Survival action: based on time between tort and death (victim’s loss)
1. Estate can bring any action that victim would have maintained (takes place as π)
a) Includes earnings, medical, p&s (in some jurisdictions), especially extreme pain
i) Posner: would grant p&s, to properly allocate loss and send message to Δ
2. However cannot recover for lost years to victim (because victim can’t use the money)
ii. Wrongful death action: based on time between death and estimated natural death (survivors’ loss)
-If the victim dies from THE TORT, the dependents have a wrongful death action for that portion of the decedent’s future income
stream they would have enjoyed (income less what the decedent would have spent on self) for the rest of the decedent’s life
expectancy
-Ex. Of 84 yr old woman; concluded that the family was better off financially because the decedent would have spent money;
awarded funeral expenses

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 -DeLong v. County of Erie- plaintiff underwent 12 minutes of terror before being stabbed by an intruder because of delay of 911
response; court approved use of economist to evaluate the damages that children should receive form death of mother
-Langan v. St Vincents-gay partner should not be able to bring wrongful death case since they are not married- does not violate
Equal Protection clause; likely to be appealed
1. Brought by victim’s economic dependents only (may overlap with heirs)
2. If no dependents, then no action
3. Includes wages that would have gone to dependents (gives pecuniary value of future loss); NY very strict b/c make it only
about pecuniary loss.
4. Recent trend to expand recovery in this area for lesbian & gay partners. Some states allow recovery for non pecuniary
damages
5. Child death: Can compensate for child even though they have no income. To not compensate would be to say child is
liability instead of asset. Limit $$ to child’s future advice, counsel for biz decisions, elderly care. Base on life expectancy,
avg work life, sometimes educational background of parents. Parents can bring in evidence showing child precocious or has
possibility of succeeding more than avg person (rebuttal presumption).
-Green v. Bittner- death of a high school senior returned no damages to parent but was reversed on appeal to award for
damages of loss of child’s companionship as they age
-Andrews v. Reynolds Memorial Hospital- $1.75 million in lost earnings for one-day-old baby based on average life
expectancy and average work-life

iii. Loss of consortium: loss of society, companionship, conjugal relationship expected from victim (survivors’ loss)
iv. If victim dies after personal injury judgment, most jurisdictions bar later wrongful death action (efficiency and Δ peace of mind =
one bite at the apple)
v. If victim die instantly, no P&S, no loss of enjoyment of life cuz need consciousness

h. Lost time
i. Ten year coma: victim comatose following tort; should be able to bring action for lost years if he awakens because he can now
benefit from the money (difficulty measuring value of lost years)
ii. Shortened life expectancy: victim’s LE reduced from 50 to 40; however, uncertain because based on statistics
iii. Infant hospitalized: spent first year in hospital; no credible knowledge of what infant experienced or whether it had a conscious
memory; similar to comatose patient; also, skepticism that money given at age 18 will make up for year 1

-A triangular pyramid with from top to bottom Tried; filed; settled; unclaimed
-90% of injuries are unclaimed
-Vast majority of claims are settled out of court
-Cases that are filed; majority resolved prior to trial
-Cases tried (2% of tort cases go to trial)

2. Punitive damages – Insurance doesn’t pay for punitive damages

-Almost all states conclude that sometimes damages can be awarded to punish the defendant or make an example to deter others
-Jury has discretion about whether to award punitive damages

Purpose: Penalize Δ for outrageous conduct and deter similar wrongdoers

Intentional, unjustified conduct, or where Δ is guilty of oppression, fraud or express or implied malice, proven by clear and convincing
evidence (CACC §3294) (p740). Actual INTENT not required if drunk driving.

Malice: conduct intended by Δ to cause injury to π or despicable conduct by Δ with a willful and conscious disregard of the rights and
safety of others – criminal indiff towards obligations to others. Indirecly implied or expressly done w/ evidence

a. Sufficient recklessness required

i. Prosser: requires something more than mere commission of tort (between negligence and knowing)
ii. Example: Taylor v. Superior Court (drunk driver employed as alcohol driver- got in accident, p718) – Drunk driving
sufficiently reckless.
1. Facts: Taylor sued Stille for compensatory and punitive damages - Stille hit Taylor with his car; he was intoxicated at the
time; he was aware that he was an alcoholic; he had caused a serious accident before while he was under the influence; Could
anyone else be liable? His employer- vicarious liability is strict liability
2. Rule: voluntary act of driving drunk shows sufficiently reckless attitude to support punitive damages. Just need to show
conscious disregard of safety of others.
3. Idea that driver should bear responsibility, alcohol direct proximate cause, more alcohol induced accidents (so drunk driving
threat to public safety and reason why such behavior needs more deterrence)
4. Clark Dissenting-punitive damage should be awarded with the “greatest caution” in accident cases
1-Π is fully compensated by compensatory damages, so punitive damages are unjust enrichments
2-The legislature should prescribe punishment, not jury
3-In punitive damages you can put in facts about defendants wealth
-Facts support that jury makes higher damages for those that are wealthier
4-How effective will punitive damages be in deterring

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 5- Insurance
iii. Example: Punitive damages against bar for serving intoxicated patrons

b. Guidelines for finding punitive damages (BMW v. Gore (cited in State Farm), SC acid rain damage) (p752)
i. Degree of reprehensibility of ∆ ’s conduct
1. Proportionate to severity of the offense (State Farm: ct said couldn’t use cases from outside state or conduct towards other
parties, but could argue that such conduct demonstrated evidence of malice and intent to cause harm)
2. More modest punishment could have satisfied the state’s objectives
ii. Ratio: Don’t want too much disparity between actual/potential harm suffered by P and punitive damages
1. Punitive damage award: actual harm (500:1 raised an eyebrow)
2. Due process/notice concern: company does not realize magnitude of omission (Gore holding)
3. Haslip: 4:1 ratio was proper
4. State Farm v. Campbell (State Farm policy of low-balling settlement offers, court said 145:1 ration of punitive to comp
was too high): single digit ratio preferred (9:1) was highest recognized; following Gore would suggest a 1:1 ratio.
Rule: Cannot give punitive awards when claim based on acts not related to harm done to P’s. In State Farm case, Ps bought
up wrongdoing committed out of state jurisdiction (against due process clause).
5. Consider factors such as physical v. economic harm, wrongful behavior caused by indifference, victim was financially
vulnerable, repeated/ isolated actions. Can NOT look at D’s wealth. If P’s comp damages a lot, then ratio should be lower
for punitive damages.
iii. Sanctions for comparable misconduct (Look at legislature, similar civil sanctions & money punishments)
1. Accord substantial deference to legislative judgments concerning the conduct
2. In Gore, Alabama had only minor criminal penalties or small fines (maximum civil penalty for violation of Deceptive Trade
Practices Act in all states was $10,000, compared with $2 million punitive jury gave) (In State Farm, could argue many
acts of fraud so 145 mil makes more sense for all deceitful acts)
3. No history of noncompliance with statutory requirements, so no reason to assume that modest sanction under the statute
would be insufficient
4. Notice: Need to give corporations & ppl notice of possible punitive damages – reason for looking at legislature
NOTE: Some courts do not follow these guidelines.
- Small Comp, Large Punitive: One ct said someone could do something incredibly dangerous and not hurt anyone
- Some cts say D’s wealth has bearing on punitive damages
- Some cts say State Farm only said 145:1 was wrong, but any other ratio below was fine. (Mathias v. Accor Economy Lodging:
Bedbugs in room, ratio was more than single digit, ct said it was to make up for money hotel earned from reprehensible
behavior and got away with)

c. Narrow application – limit or don’t award

i. Primarily occur more in commercial litigation (1/2 are B2B). Median award around 50,000.
ii. Highly uncommon (NY/CA: only 2% of products liability cases; Cook & SF Cty: 1-3 cases per year)
iii. Highly visible, because used politically to make case for abolishing punitive damages
iv. Product liability suits: where Δ knew about defect and made product anyway
1. Example: Fischer v. Johns-Manville (p726) asbestos company with letter as proof of knowledge that product caused lung
cancer
v. Not covered by insurance  !!
vi. If show D took lesser risk, then not awardable.
vii. Deny recovery if tortfeasor dies (b/c no more deterrence) unless tortfeasor committed suicide, then perhaps
viii. No punitive damages against government (esp in California) but depends on state to state. Reasons: can’t hurt/deter institution,
punitive damages would affect community b/c have to raise taxes, officials would prob get voted out so wouldn’t feel deterrence
effect… not predictable if deter. Can sue for comp but not usually punitive

d. Broad application – expand or award

i. Employer Liability for Punitive Damages (Respondeat Superior – Let the ER respond)
-For compensatory damages, don’t have to prove anything about the employer
1. Awarded when principal/ managerial agent authorized the doing/ manner of act
2. Awarded when principal/ managerial agent reckless in employing or retaining unfit agent
3. Award when agent employed in managerial capacity and acting in scope of employment
4. Award when principal/ managerial agent ratified/ approved act
5. California’s ER liability approach: Need that employer had (1) advance knowledge of unfitness of EE and employeed him
anyway OR (2) conscious disregard of rights/ safey of others
ii. When victim dies (P), $$ still goes to victim’s estate for deterrence factor.
-Most states deny recovery of punitive damages from the estate of the tortfeasor

e. Benefits of punitive damages

i. Emotional retribution: Respond to victim’s sense of outrage
ii. π compensation: makes up for attorney’s fees
iii. Deterrence: penalizes Δ and deters similar wrongdoers (only if Δ has money and outcome is publicized)

f. Objections (i-iii aired in Johns-Manville dissent)

8
 i. Double compensation: π already receives compensatory damages (C/A: not true if Δ was criminally prosecuted, also b/c of
attorney fees – contingent fees; could give overcompensation to state treasury)
1. Because punitive damages are seen as Vegas windfall, they are subject to taxation
ii. Not within scope of torts: covered by criminal law, so should leave to the legislature
1. Posner: double jeopardy if also criminally prosecuted; might be unconstitutional
iii. Introduces prejudice: Δ’s financial status made public (b/c assigned based on financial records), which might allow compensatory
award or liability determination to be influenced
iv. Could nullify recovery: Could nullify compensatory damages if Δ doesn’t have enough to pay all (C/A: could do % of D’s
money)
v. Punishes shareholders: companies pass costs to contemporary shareholders (those at time of suit) if it’s a business
vi. Deterrence effect: Questionable since already deter with criminal prosecution (MR = recklessness). Plus time lag for results to
even show up (might not show up till years later).

g. Available in strict liability

i. Available in failure to warn, strict products liability actions where manufacturer is aware of or culpably indifferent to an
unnecessary risk of injury, and refuses to take steps to reduce that danger to an acceptable level
ii. Consider factors:
1. Changing social values
2. Changes in personnel
3. Innocent punished
4. Size of compensatory award (might already serve punitive purpose)
5. Potentially catastrophic so future litigants would not be able to recover
iii. Example: Fischer v. Johns-Manville (p726) asbestos company with letter as proof of knowledge that product caused lung cancer

h. Cutting corners at expense of safety (line-drawing problem)

i. Example: Hillrichs v. Avco Corp. (p723)
1. Facts: Manufacturer chose not to install emergency stop switch on corn-picking machine, thinking it would be safer than
having farmers rely on it; farmer injured in machine
2. Issue: Entrepreneurs must cut corners in competitive economy and safety is expensive; cutting corner too closely might be
recklessness
3. Rule: Punitive damages inappropriate where there could be reasonable disagreement over the relative risks and utilities of
the conduct and device at issue
4. Holding: No punitive damages, because not clear that Δ disregarded highly probable risk of harm
ii. Example: BMW v. Gore (p726)
1. Facts: BMW did not notify customers of pre-delivery damage (acid rain damage not too serious), based on company policy
not to notify if cost of repair was less than 3% of car price
2. Rule: Harm was not safety-related, absurd ratio between punitive and actual damages (500:1); not especially reprehensible
to warrant punitive damages equal to severe criminal penalty (found violation of Δ’s 14th A due process rights)

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C. INSURANCE
You can only insure what you have an insurable interest in.
1. Non-liability and Liability Regimes
Restrictions: Intent/willful, malice behavior; assault & battery; continuous/repeated behavior; permissive exclusions through contract
(sometimes law won’t permit certain exclusions)
Non-liability
Insurance Loss insurance (victim pays)
Purpose Public and private insurance that protects against the expenses of
hospitalization, disruption of income as the result of accident,
illness or disability
Types Private, first party loss insurance (defensive, more expensive):
Renters/homeowners insurance, health insurance, disability
insurance, comprehensive and collision auto insurance
Public loss insurance (social insurance passed by legislature):
social security, welfare, unemployment, disaster relief funds
(9/11, mandatory vaccinations, natural disasters)
Drawbacks No deterrence: no penalty for Δ, sacrifices moral goal (Posner)
No proportionality (Holmes)
Disadvantages poor: cannot afford private insurance
Public funding shortage: when people cannot afford private loss
insurance, then residual is relegated to public sector, which is
poorly funded
Safety V has strong incentive of bodily integrity (not true for property);
loss insurance would be additional defense
Spreading
- Is there? Difficult to ensure that V will make extra expenditure
- How much? Covers property, but not pain and suffering
- To whom? Spread across people who benefit (other loss insured)
Autonomy Maximizes autonomy: More likely to have contract regime where Minimizes autonomy: mandatory insurance means that all
easier and cheaper to resolve contract disputes.
Transaction Efficient: make claims against insurance rather than get into
Costs tort/fault; insurer incentive to maintain business relationship, so
will respond quickly
Liability
Liability insurance (tortfeasor pays)
Protects insured against the economic impact of having to pay
a 3rd party for the consequences of their actions
Uninsured motorist, workers comp, manufacturers insurance,
Respondeat Superior, car owner
Diffuses deterrence: spreads cost (Posner)
Moral hazard: immunizes insured against wrongful act and
encourages irresponsible behavior (Holmes)
Enforcement problem: for every regulatory step, there is a
loophole
Charges community: higher premiums for certain class (i.e.:
higher density neighborhoods with higher crime rates)
Tortfeasor economic incentive to avoid causing injury, to
avoid higher premium
Much more common to carry
- Could try to make it mandatory
- >50% of bay area drivers insured
- Could require with registration (enforcement?)
- Could impose tax (only charges tax-payers)
- Pump tax (imposes on more frequent drivers)
Covers all accident cost
Tortfeasors pay (morally culpable, deterrence)
People with higher income recover more
Passed to general consumers
will pay to protect those without loss insurance
Costly: victim must deal with stranger/adversary and get into
fault ($1 transaction: $1 recovered), contingent fee to pay

ADDRESSES SOLVENCY ADDRESSES DETERRENCE AND SAFETY

Non-Liability Strict Liability

Collateral Π $ Δ $ Liability Insurance

Sources (ER, Car Owner)
Subrogation

Loss Insurance (1st party Insurance)

Social Insurance – government benefits
Family
Employer
Savings

Fault-Based Liability
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Introduction to Insurance:
“First Party” insurance- protection of the insured or the insured’s family from the direct adverse economic effects of a particular event
“Third Party” insurance- liability insurance taken out to protect the insured against the economic impact of having to pay damages to another person
Contractual Restrictions on coverage-
-Common insurer goal to cover only “accidents” and not intentional acts
-“An insane person cannot act intentionally as a matter of law”
Sexual Abuse-
-Allstate v. Mugavero-insured tried to show that the harm was not intentional and only the molestation was, but the court held that as long
as it was substantially certain to occur that was good enough and he was denied coverage
Assault and Battery-
US Underwriters Insurance v. Val-Blue- insurer declined to defend on grounds that policy excluded coverage under an “assault and batter
exclusion endorsement”
Sudden-
-Most insurance plans cover events that happen suddenly and not continuously over a long period of time
-Pollution exclusion exists, but does not apply if the exposure is sudden and accidental
-Autoerotic asphyxiation- first-party insurance; this practice is not covered because the insured is intentionally inflicting pain, which leads
to death, even if it is not intentional suicide

Legal Restrictions on insurance-

-Insurable interest limits what may be insured by whom; avoids the “moral hazard” that would exist if someone could harm another and get
the insurance money; moral hazard also describes the possibility that those who are insured will take less precaution to avoid the harm
-Deductibles and copayments exist to prevent this
Intentional and criminal conduct-
-Insurers commonly limit insurance to accidents; insurer is not liable for a ‘willful act of the insured’
Permissive exclusions- sometimes legislation authorizes insurers to write specific exclusions

-Universal governmental programs protect individuals against certain dangers

Liability Insurance
-“Family Purpose Doctrine”- owner of a car held liabile to strangers for torts of anyone using the car for a family purpose
-“Joint enterprise”- each member of the group is vicariously liable for torts of driver
-Liability insurance emerged with the automobile at beginning of 20th century
-Indemnity insurance at beginning where if the insured paid a victim for an accident, the insurer would reimburse the insured for that
amount
-Then became liability policies where the insurer was obligated to pay the victim up to the policy’s limits
-During early period of liability insurance it was completely voluntary
-Then judgment of liability in first accident rendered the party responsible for getting insurance
-Insurance became compulsory and added things such as “med pay” and financial protection against being injured by negligent uninsured
motorists
-Even after enticements and compulsion, nationwide, 14% of American motorists are uninsured
Non-auto liability insurance-
-Commercial general liability; special purpose coverage

2. Collateral source rule

a. Rule: π entitled to full recovery from Δ, without deducting for any benefits received from a collateral source, such as loss insurance
(non-λ regime) or liability insurance (strict λ regime)
i. Example: Arambula v. Wells (Victim’s brother (Employer) paid lost salary after car accident, p710)
1. Rule: gratuitous payment by employer does not preclude recovery of compensatory damages
ii. Example: in accident, kid became retarded. Ct said D still had to pay special ed fee even though free at school
iii. If no collateral source rule, P couldn’t sue the Δ, thus no subrogation, as loss insurer stands in the shoes of the P
• Hypo: victim in car accident suffers $1000 in pecuniary damages. Loss insurer pays under the policy. If victim then sues
tortfeasor, should they then get the $1000 again?
o Yes, b/c they are not actually made whole after all the insurance premium payments
b. Debate:
i. Holmes (pro): deterrence and morality goals; Δ should not benefit from π’s prudence; Δ still morally wrong regardless of other
payments
ii. Posner (con): inefficient to pay π twice (goal is status quo ante) (C/A: But the P is never fully compensated, transaction costs,

3. Subrogation

a. Rule: insurance benefits claimed are subrogated to the claims the victim may have against the Δ
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 i. Insurer acts on behalf of insured, so same defenses can be asserted against it
ii. Benefits insurance companies and lawyers
iii. Lower premiums if use subrogation because insurance gets the money back
b. Frost rule (p681): subrogation rights must be written into the insurance policy, because changes premium; group insurer which
provides medical & hospital expenses benefits to an insurer DOES NOT have a right of subrogation in recovery by insured
against a tort feasor for personal injuries when no express provision entitling insurere to subrogation rights.
c. Combined with Collateral Source Rule: collateral source rule sends message to Δ and fully compensates π, then subrogation makes
sure that Δ is not unduly charged

4. Workers Compensation – alternative to private insurance.

Non-Liab Negl Strict Liab
Work default
_________________________________________________________________
Auto default
_________________________________________________________________
Home default
_________________________________________________________________

TRADE-OFF: EEs get more compensation with greater certainty; ERs get more certainty and predictability

a. History
i. Up to 19th century: Strict liability with “unholy trinity” of defenses available (GONE NOW!)
1. Assumption of risk: claim barred if perceived the dangers of his risky job
2. Fellow-servant doctrine: claim barred if caused by negligence of a co-worker; no vicarious liability
3. Contributory negligence: claim barred if employee in any way contributed to his injury

b. Non-Liability vs. Strict Liability

i. Pro Non-Liability:
1. Acknowledge moral fault (Holmes): favors assumption of risk, because in strict λ the worker is not held morally responsible
2. Status quo ante: risk premium (workers paid more for riskier work); workers should buy loss insurance if they want to
spread the risk they’re paid for (c/a: however more efficient to collectivize insurance than buy separately)
ii. Pro Strict Liability – Modern view & Way it is now
1. Deterrence (Posner): worker in best place to control work environment and avoid cost
2. Acknowledge autonomy: workers don’t get to choose their work activities, so should put onus of responsibility on employer
3.
iii. Economic theory:
1. Doesn’t matter where you place the responsibility – either way, someone pays and compensates.

c. Benefits of Strict Liability

i. Spreading: Business should bear the financial burden of work-related accidents, much like any other cost of production
ii. Safety: creates incentive for ER to establish safe work environment (c/a: EEs have knowledge about the workplace; c/a/a: ERs
may deprive EEs of knowledge and autonomy)
iii. Efficiency: No fault provides greater efficiency and social justice at minimal administrative cost. Trying to trace causation
becomes expensive
iv. Promotes harmony: eliminates adversarial atmosphere surrounding litigation, thus improving EE/ER relations

• Limitations
i. Excludes certain categories of workers
1. FORCED OUT: agricultural workers, domestic workers, no system for them b/c spread out, mostly illegal immigrants, or
desperate & weak political power
2. OPTED OUT: maritime workers, RR workers, they have better system, well unionized, they get tort damages and comp
from a diff system
ii. Exclusive remedy: Employee signs away all rights to sue in tort (Although sometimes courts will step in ex: where company
doctors lied to workers saying asbestos didn’t cause harm)
iii. Excludes damages not related to work productivity:
1. No pain and suffering
a) NO Loss of consortium, disfigurement, loss of senses, bereavement, only compensate for labor power related
2. Covers all medical expensive and 2/3 of lost wages (tradeoff with no fault rule)
iv. No recovery for body parts not pre-determined on the list, but usually have chart (like NY) that show how much week’s comp per
member lost to make up for lost earning power.
v. Devalues life: wrong message about proper conduct and values life at substantially lower rate (Posner);
vi. Inconsistent with moral intuition: does not ensure that culpable actor (EE or ER) is held responsible because fault is not litigated

d. Boundary Problems: when is EE “on the job” (p808); = “arising out of” (harm came from work ER asked EE to do) and “in the
course of” (occur while employed on the job).
i. Hypo: EE injured in tub while in motel on business (Capizzi)

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 1. ER: taking bath not business
2. EE: would not be in motel but for business trip (but for cause)
3. ER: EE would not be compensated for bathing on an average day; extend liability too far for ER
4. EE: EE had to be clean for the business meeting, put in unfamiliar situation b/c of ER
5. Familiarity: EE traveling, unfamiliar with surroundings; exposed to heightened risk of fall and injury
ii. Hypo: EE roofer stole copper downspouts and was injured
1. EE: ER condoned work; hidden form of compensation known to ER (cheaper to replace copper than increase wages, and EE
doesn’t have to pay taxes)
2. Public policy problem: will not award workers comp for injury during illegal activity
iii. Hypo: EE shot by husband at work.
1. EE: b/c she was working, husband knew where to find EE.
2. ER: Harm did not arise out of employment
3. Arising out of problem: No harm came from actual work, 3rd party liability. Need to limit ER’s liability.
-Kish v. Nursing Home Care- nurse is killed in course of delivering a letter
-“Frolic and Detour”- workers comp no longer applies
iv. Sometimes want to opt in and say happened on job to get Worker’s Comp or try to say dind’t happen at work in order to opt out
and get higher damages through tort claim.
e. Going and Coming
-Price v. W.C.A.B.- arrived at work early and was waiting for it to open, was hit by a car; he had already arrived and was serving
the interests of employer by waiting to begin work early
-Santa Rosa Junior College v. W.C.A.B.- teacher was taking work home and killed in a car accident- decision to work home was
voluntary- not compensable
-Neacosia v. New York Power Authority- injuries were compensable after dropping off dry cleaning and involved in auto accident
f. -Second-hand smoking-related claims- exposure to second hand smoke is a form of occupational disease compensable
g. -Opting Out- modern worker is much more likely to succeed in a tort action if they are allowed to pursue it
-Worker outside the scope of employment at time of injury (water slide case)
-Prove the employer committed an intentional tort (waitress’s employer hit her)
-Non-disabling injuries are often not compensable (sex organs and senses)
h. Emotional Distress
i. In insurance, only place you can sue for emotional distress w/o physical manifestations. Why? You paid for peace of mind, for
less risk.

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III. CAUSE-IN-FACT

Cause in fact (Actual cause/”But for” cause):

But for test: π must show that it is probable that but for Δ’s negligent act, the injury would not have occurred
w/ proximate or legal causation question (enough relation where D has to compensate P for harm?)
About fairness & moral judgment; not about compensation or deterence

Probable cause approach: π shows that it is probable that but for Δ’s negligent act, the injury would not have occurred (like res ipsa,
because asks jury to consider what ordinarily happens in situations like this) (Zuchowicz)

Substantial factor approach: some courts merely require a finding that the Δ’s negligence was a major contributor

Exceptions:

Alternative liability (Summers v. Tice)

Enterprise liability (Hall v. EI du Pont de Nemours)
Market-share liability (Hymowitz v. Eli Lily)

-Cause is not usually a question in most cases because people would be much less likely to bring a torts case if there wasn’t cause
A. POLICY

1. Why require causation?

i. Moral: To ensure that Δ wronged π, for justice purposes, fairness, it is unjust to punish someone for damage they didn’t cause
2. Why require actual injury?
i. Criminal law imposes fines for exposure to risk even if no one is injured (contamination, speeding, DUI), because criminal law seeks
to control risk while tort law does not
ii. Efficiency: Do not want courts flooded with claims, especially in toxic-tort situations
iii. Compensation/spreading: π does not have immediate need for money
iv. Deterrence: without actual injury, Δs cannot predict severity of injury (L in the Hand Formula)

B. CAUSE IN FACT
Relaxations of this concept: Stubbs (not entirely certain mixing cause typhoid); Zuchowitz (not entirely sure excess dosage caused PPH);
Albertz (not entirely certain if doctor could have saved leg, loss chance theory); Summers (not sure which D shot P)

1. “BUT FOR” HYPOS

i. Dam Hypo: Δ negligently allowed dam to deteriorate. Unusually large amount of rainfall that would have broken any other dam
adequately made. Δ would not have fortified dam because cost was too high. Do we hold Δ liable for injuries suffered?
a. No cause in fact: the rainfall was the cause
b. Serves moral goal: unfair to hold Δ liable (Δ ends up benefiting from a one in a million occurrence). Efficient b/c encourage P
to protect against some risk but not all (which would be too expensive)
c. Does not enhance safety or compensate π

ii. Lifeboat Hypo: Statute requires all Great Lakes vessels to provide lifeboats. Steamship sent out without lifeboats, into storm so
heavy that even if there had been a lifeboat, it wouldn’t have been launched. Sailor falls overboard and drowns.
a. No cause in fact: Failure to provide lifeboats did not cause death; the rainstorm did.

iii. Working late at the office Hypo: π involved in nighttime automobile accident after working late at the office.
a. Cause in fact: But for working late, π would have not been at that location at that time
b. Shows broadness of “but for” test (would be weeded out at proximate cause inquiry)

2. USE OF STATISTICS (Toxic tort cases)

a. Example: Stubbs v. City of Rochester (typhoid fever, p342) – Don’t need to exclude all other causes. Just show cause was more
likely than not the bur-for cause of injuries.
i. Facts: City drinking water mixed with firefighting water; Residents got sick with typhoid fever, 9 diff ways to get it, guy lived
block from contaminated water, didn’t go anywhere else, increase large number of cases in area
ii. Causation can be shown with epidemiological evidence that Δ was more likely than not the but-for cause of injuries. No need to
rule out all other causes. “Reasonable certainty = more probable than not” Enough to get to jury if beyond reasonable doubt (not
really just 51% likely)
1) Essential in toxic torts, environmental, food, tobacco- cause is the key and statistics can’t really be used to determine
iv. Over-inclusive: because typhoid was also endemic to the region, some people would have gotten it without the water

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 b. Alternatives to tort liability for exposure cases – Goals are increase safety, moral judgment, compensate victims
1) Tax and Federal Fund: for black-lung disease, federal government created tax on coal (companies taxed based on the
chemical content of their coal); all sufferers are compensated from the fund
2) Proportional Liability: Could calculate that Δ increased probability of typhoid by 33%, so pay 33% of total award in class
action treatment of claims (many Ps), but would be under-inclusive, because truly deserving πs would only be 1/3
compensated and over enrichment to Ps that did not catch disease from water. However, would compensate Ds
proportionally overall.
3) Better than Even Chance: Some jurisdictions, can only recover if show better than even chance that disease will develop.
- Args for 100% comp early on: deterrence factor greater, proof might be harder 20 years later
- Args against: over comp, P might not get disease, deplete funds so other real P’s can’t get $$
4) Less than Even Chance: Some jurisdictions allow recovery when less than even that injury will occur (not reasonable
certain) but compensation would reflect low probability.
Ex: D’s left object in P during surgery. Show more risky to take out object than leave it in, but leaving it in gave 0-20%
chance of certain risk of injury. Ct allowed recovery but it was low to reflect % of risk.
5) Tortfeasor unknown: When tortfeasor unknown, if inferences from evidence show reasonable certainty that identity of
assailant, able to recover. If totally unknown, then more likely no proof of causation.
Ex: Burgos v. Aqueduct Realty Corp.- Tenant was assaulted and sued L. Evidence show tortfeasor more likely an intruder
that L should have guarded against (T knew all Ts in building, there was a negligent broken door where Ts saw instruder
escape etc); court thought it was enough if the jury could reasonably infer from the evidence that it was an intruder
-Mitchell v. Pearson Enterprises- guest in defendant’s hotel was murdered by an unknown person; no signs of forced entry; any
supposition as to the manner of entrance into the room would be speculation; could not prove negligence on the hotel owner

3. ADMISSIBILITY OF SCIENTIFIC EXPERTS/EVIDENCE

a. Narrowest test:
Frye Test: only allow generally accepted theories and if not generally accepted, then leave up to the jury to decide how much
weight to give expert testimony). States use this.
b. Middle approach (Federal courts use this, allow theory as long as scientific knowledge, can be minority, not published, but needs to
testable and or has been tested. However, if published and rejected by many, most likely excluded):
Daubert Rules: Fed Rules of Evidence permit opinion testimony by experts when (FEDERAL CASES)…
1. Witness is “qualified as an expert by knowledge, skill, experience, training or education
AND
2. If scientific, technical, or other specialized knowledge will help court understand evidence/ determine fact in dispute
Factors to assess Daubert Rules
1. Whether the theory can and has been tested
2. Whether the theory has been subject to peer review and publication
3. In the case of a particular scientific technique, the known or potential rate of error
4. Whether the theory is generally accepted
Example: Zuchowicz v. U.S. (PPH from Danocrine overdose, she was also pregnant, which exacerbates PPH p349)
1. PPH too rare of a disease (only 197 cases from 1980s-92) for testing
2. Not told, likely not satisfied
3. Irrelevant (no scientific technique here)
Rule: Highly deferential abuse of discretion standard – for trial courts when admit / reject expert testimony. Overturn only when
manifestly erroneous.
When a negative side effect demonstrated to be result of drug, and drug was wrongly prescribed in unapproved & excessive
dosage, P who is injured has generally shown enough to permit jury to conclude excessive dosage was substantial factor in
producing harm/ cause in fact
Outcome: Expert testimony essential to demonstrating that Danocrine could lead to PPH; however, experts do not appear to satisfy
Daubert rules (Dr. Matthay discussed his belief; Dr. Tackett discusses clinical evidence that was not tested on victim); however trial
court admitted experts so appellate court allows them.
Example: Kumho Tire Co. (p356) trial ct rejected expert, because he was the only scientist who used the test (it was named after him)
c. Benefits of experts: (1) can be essential for establishing causation, (2) jury cannot otherwise understand issue
d. Drawbacks of experts: (1) educated opinion only, (2) are extremely influential (trust juries to evaluate credibility), (3) difficult to draw
the line between reliability and persuasiveness of testimony

4. DOSAGES IN MEDICAL MALPRACTICE

a. Rule: When a negative side effect is demonstrated to be the result of a drug, and the drug was wrongly prescribed in excessive dosage
(hospital negligence acknowledged), the π has demonstrated causation.
i. Example: Zuchowicz v. U.S. (PPH from Danocrine overdose, p349)
ii. Conneticut Rule: P must show only that physician’s negligent actions/failure to act was “substantial factor.”
"Substantial factor in injury" if P shows:
1) D's negligent act/omission was a but for cause of injury
 PPH more likely than not, caused by Danocrine - not clearly erroneous

15
  Dr. Matthay excluded all causes of secondary pulmonary hypertension & all previously known
drug-related causes of PPH. Also said b/c of timing and progression of illness to timing of overdoes, decided
PPH was drug-induced to reasonable medical certainty
 Need to show with reasonable certainty that it was likely the cause, helps to eliminate other causes
2) Negligence causally linked to the harm
 Need to show this by preponderance of evidence that D's negligence was responsible for injury
 Need to show overdose was responsible more probably than not
 Test to show negligent behavior caused harm
• Negligent act wrongful b/c act increased chances of particular type of accident
would occur
AND
• Accident/illness did happen
 Negligent party must bring in evidence denying but for cause… must show not a substantial factor
• Ct gives example of car headlights when full moon not but for
3) D's negligent act/omission was proximate to the injury

C. MULTIPLE CAUSES (exceptions to “but for” test)

5. MULTIPLE POTENTIAL CAUSES (problem of evidence)

a. Example: Stubbs v. City of Rochester (typhoid fever, p342). Don’t have to rule all other causes out.
i. Facts: City drinking water mixed with firefighting water; Residents got sick with typhoid fever
ii. Rule: if there are 2 or more possible causes, π must show with reasonable certainty (more probable than not / but now it’s
reasonable possibility) that Δ (as opposed to other sources) was directly caused the harm

6. MULTIPLE SUFFICIENT CAUSES

a. Two Simultaneous Forces: Both Negligent
i. Hypo: Two negligently-set fires burning toward π’s house; reach house at same time and destroy it together
ii. Both liable: neither was “but for” but both were “substantial factor”
iii. Reasoning: courts choose multiple liability, to serve compensation and deterrence goal (despite overdeterrence)
b. Simultaneous Forces: One Negligent
i. Hypo: Two fires, only one negligently-set, reach π’s house at same time and destroy it together
ii. Negligent party liable: even though the house would have still been destroyed (most, but not all, courts)
c. Sequential Forces
i. Hypo: Negligently-set fire burns house; second negligently-set fire arrives shortly after
ii. First fire liable: first fired did the damage (not “but for”) and second fire merely risked harm
d. Acts of God
i. Hypo: Lightning strikes first then B’s man made fire comes along
ii. B has no liability if lightning first. Lightning would have struck and burned house anyway
iii. Hypo: B’s fire gets to house first, but lightning strikes it after.
iv. B pays diminished damages. Can’t give ideal moral judgment and ideal comp b/c lighting would have come anyway

D. INDETERMINATE DEFENDANTS

7. MULTIPLE DEFENDANTS
a. Alternative liability approach (multiple Δs with high probability of negligence that caused injury)
i. Two defendants: (50/50) each Δ as probably as not the but-for cause to π, but not more probably the cause
i. Example: Summers v. Tice (hunting accident, p374) alternative liability approach
1) Facts: two hunters shot in π’s direction; one bullet hit cheek
2) Not joint tortfeasors, which requires (1) concert of action (like dragrace, while hunting is solo), and (2) single indivisible
harm
3) Rule: where π cannot show whether Δ’s negligence (all must be negligent) was the actual cause of his injury, the burden of
proof shifts to each Δ to disprove that he caused the harm
i. Encourages the non-negligent party to come forward; puts compensation first
ii. -Oliver v. Miles- where a group is engaged in the use of firearms, and two are negligent in firing in the direction of a 3rd
party, both are liable for injury although the negligence of one could have caused the injury
-To hold otherwise would be to exonerate both from liability
4) Relaxes causation requirement by changing procedure (burden of proof) rather than substantive rule
5) Negligence without causation is still the basis for liability; Summers had hunters that were both negligent. Moral judgment
goal here too.
6) Justifications: (1) Δs have better access to information, (2) otherwise Δs would be exonerated (gives perverse incentive to lie
to insulate themselves)
7) What if increase # of hunters? How far are we willing to extend it b/c then more likely we will prosecute innocent person;
Doesn’t matter if all were working as a team or as strangers.
-Different from Garcia v Vince (fencing case unknown which blade was source of injury) b/c in that case, only one was negligent
and causal, in this case, both were negligent although only one causal
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 ii. Example: Ybarra v. Spangard (unconscious patient, p374) alternative liability approach
1) Facts: patient injured while unconscious on operating table
2) Holding: hospital liable even though π could not prove actual cause (could not identify party responsible)
3) Puts burden on non-negligent Δ to come forward and identify negligent party (acting in concert)
b. Enterprise liability approach (small group of manufacturers that follow standard set by them. If more likely than not one of manftrs,
then burden shifts to all Ds to disprove their product caused injury)
i. Example: Hall v. EI du Pont de Nemours (blasting caps, p387) enterprise liability approach
1) Enterprise liability: trade association established rules that all six manufacturers were operating by; held all industry
manufacturers joint and severally liable; approaches concert of action
2) Rule: if any of 13 πs can show that it was more likely than not that any of the six Δs made his blasting cap, then burden
shifts to all Δs to disprove that its cap did not cause that injury. Need industry wide cooperation by committee made up of
companies.
3) Policy: discourages group from being unsafe together, which impedes direct causation and could be shield from litigation
c. Market-share liability approach (large group of manufacturers, liability based on % of market share)
Apply where (1) products fungible (substitutable) (2) all made to single formula (3) unable to identify manufacturers (4) clear causal
relation between product & harm justified in imposing market share liability.
Examples: Lead paint; Blood clotting factors; Gasoline additives
If not fungible or doesn’t vary a lot, then cts usually don’t apply market share liability method.
Examples: asbestos (family of minerals, no similar risks or harm b/c varies); children vaccines (diff risk factor for diff vaccines)
i. Example: Hymowitz v. Eli Lily Co. (DES manufacturers, p379) national market share approach
1) Facts: Daughters developed cancer as result of mothers taking DES while pregnant; many DES manufacturers
2) Identification problem: can’t identify particular manufacturer for each mother
3) Rule: where a specific manufacturer cannot be identified, damages assigned by national market share of the product
4) Policy: Δs should not escape liability merely because πs cannot show which Δ injured which π;
a) Market-share acts as surrogate for the amount of harm each Δ caused
b) Moral: does not match π to culpable Δ, but approximates this and punishes for risk they created
c) Compensation: leaves π responsible for judgment-proof Δ’s market share
5) Δs can only exculpate if they demonstrate that they did not produce the product for the use in question (ex: didn’t market
drug or wasn’t part of market of DES sold for pregnancy use. Doesn’t matter if they can show their pill was memorable and P
didn’t use such a pill
Notes:
Conley v. Boyle Drug Co- market should be as narrowly defined as the evidence allows
Asbestos- Goldman case- essential condition for market share was fungibility- all products made pursuant to a single formula
- asbestos containing products were not fungible because there were several varieties
Lead Paint- child allegedly harmed by lead paint sued several manufacturers- market share liability applied
Childhood Vaccines- refused to extend market share liability because Π could not identify the producer of the particular dose
Blood Clotting Factors- blood coagulant used by hemophiliacs could give rise to market share liability- adopted a national
market
Gasoline Additives- product is fungible- Π s were unable to identify manufacturers & clear causal relation between product and
harmmarket share liability
Statute of Repose- legislation adopted to permit late filings; alleviate increasing cost burden by manufacturers and sellers seeking
to obtain product liability insurance; begins to run when the event takes place

6) Other potential solutions:

a) Alternative liability (Summers v. Tice): shifts burden of proof to Δs to disprove negligence; but would charge 299/300
non-λ manufacturers for each Δ (Used for small number of wrongfoers, d’s have better access to informaion; All
possible tortfeasors are before the court)- This is not the case here
b) Concert of action: but markets were not working together here (Not a private actor; FDA was impartial- no profit
motive)
c) Enterprise liability (Hall v. Du Pont): all mftrs operating by trade rules; rejected b/c 200 too great and mftrs didn’t
collaborate. Plus FDA in charge, not fair to say liable this way b/c follow industry standard
7) Choices in application: (selected approach in bold)
a) Several (moral goal, fairer to Δ) v. Joint & Several (compensation goal)
b) National market (compensation goal) v. Local market (moral goal, matches up πs and causal nexus)
c. Exculpation based on pill type (serves moral goal at expense of compensation)
-Local, Yes, and Several are mor favoriable to ∆ ’s; Dissent wants Yes, National, J&S
e. Fund approach
i. Could impose a tax on pharmaceutical manufacturers, creating a fund to pay out to victims; however would be imposing tax on
current consumers for tort that happened 20-30 years earlier
ii. National market share approach acts like a tax would

8. CAN’T SUE GOVERNMENT AGENCY

a. Example: Hymowitz v. Eli Lily Co. (DES manufacturers, p378)
i. Public choice theory v. Regulatory capture
ii. FDA as Δ: goes after all citizens, because will increase taxes to spread

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 iii. Drug mftr as Δ: disperses cost across drug consumers only, because will raise drug prices to spread

9. JOINT AND SEVERAL LIABILITY: ADDRESSES MULTIPLE DEFENDANTS PROBLEM

a. Traditional Rule: Each Δ liable to π for 100% (π can recover from either Δ). P’s harm is indivisible and cannot be split up into
separate events where D1 responsible for X and D2 responsible for Y (ex: if D1 shoots P’s arm and D2 shoots P’s leg but didn’t
decide to do it together, then since divisible to figure out damages for each limb, no J&S)
A Basic Alternative: Several
 If Δ1 and Δ2 are each 50% liable for the $10,000 loss, they each only pay $5,000
 This is a better approach under the Holmesian (moral judgment) point of view.
 Also a better approach under deterrence.

• Concurrent Causes: e.g. 2 car collision, evidence shows that both drivers are negligent, as a consequence, car hits pedestrian on the
pavement.
• Concert: e.g., 2 cars have a drag race. This requires that both cars participate. This verges on a higher mens rea than mere negligence,
which moves into terrain of intentional torts.
• Indivisible Injury: e.g. 2 car collision, both cars hit a 3rd car, the passenger is badly injured. Can’t figure out which of the 2 cars caused
what, so can’t separate out its parts.
• Successive and Independent: distinguished from the other 3; easy to separate the two actions, each Δ is liable for the injury they cause.
o Hypo: D1 injures P pedestrian. P requires medical care, but it is performed negligently. Hospital is now liable to P, but so is
initial driver
 Basic rule is that Δ driver (whose negligence exposed P to malpractice) is responsible for all injuries, hospital just for
its injuries
• Concurrent, Concert and Indivisible Injury is Joint and Several Liability.
o Means each Δ is liable for totality of P’s injuries.
• Successive and Independent are just Several Liability.
o Means each tortfeasor is liable only for injury that it causes
Hypo: trier of fact is required to assign responsibility for 2 Δs. Decides driver is 90% responsible, city is 10% responsible. Which of these
two better comports with goal of deterrence?
-the 90% figure can be determined in different ways. One can represent the fault of the Δ and the causal contribution of the Δ. Another can
just focus on causation.
-the driver is more important for deterrence, as they are the more culpable party, and thus the party whose behavior we want to change.
-from POV of deterrence, several liability is more important
-from POV of morality, driver is also more important for deterrence, thus several liability
-the reason for joint and several liability is the goal of compensation.
-Compromise idea of only holding people responsible for injuries they cause for the goal of compensation.
Q: 100$ in damages. Δ1 (city) is 10% fault, Δ2 (driver) is 90% fault. They are held jointly and severally liable. P can execute judgment
however they want (half and half, entirely against Δ1 or Δ2, whatever). The goal is to be made whole. P goes after Δ1 b/c it is rich, and
takes $100 from the city.
-is this appropriate? It should increase incentive for city to be made safe, but it is “overdeterrence”
-once Δ1 pays $100 to P, Δ1 has an action in contribution for the payment in excess of its share. Under several liability regime, city is only
responsible for paying $10, under joint and several, city can try and be recouped by Δ2.

i. Now, D’s share on basis of respective percentages of fault; before used to be 50/50; cts still say one D owes 100%
ii. Right of contribution: right to be reimbursed by other Δ for his fractional-share of the damages
iii. Applies same way to concurrent (independent) tortfeasors or joint (acted in concern) tortfeasors.
iv. Goals & concerns:
Compensation met: preferable to have negligent Δs bear risk of insolvency than innocent π
Deterrence problem: one Δ may go unpunished (either insolvent Δ, or π only sues one Δ)
Moral problem: unfair to hold one Δ fully liable
v. Because of introduction of comparative fault instead of contributory negligence, many states changed the traditional rule.
Usually states with contributory negligence rules have joint and several liability.
b. Hybrid joint and several liability w/ reallocation: All Ds jointy and severally liable but if one D is immune, ct reallocates damages
to all other parties (including P) in proportion to comparative fault.
c. Hybrid liability based on threshold %: If tortfeasor bears less than certain threshold or % of total responsibility, then only severally
liable. If above % then J&S liable. So if D1 is less than threshold %, then it turns out D2 is insolvent, D1 only has to pay his %
of fault.
d. Hybrid liability based on type of damages: liability remains J&S for “economic damages” but several for “non-economic damages.”
So if D1 owes 50% of non econ $$, then if turns out D2 can’t pay, D1 only owes 50% of non econ. CA does this.
e. Pure several liability: D, regardless of nature of case, is liable only for his/her share of total responsibility
f. Action in concert: If 2 D’s acted together to cause injuries, then use J&S even if harm divisible. Ex: drag car racing
g. Overlapping liability: No J& S in certain cases where D1 put plaintiff in greater harm and D2 negligently treated P. D1 will be liable
for full harm and D2 will just be liable for worsening condition. (ex: car accident and med mal)
h. Interplay of intent and negligence: D1 negligence combine w/ an intentional tort/crime to cause P’s harm.

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 Arguments against: intentional tort and negligence diff things, unfair to negligent D
Arguments for: Compensate victim when can’t find criminal.
Example: Veazey v. Elmwood (woman raped in apartment, sue L for failure to exercise due care for residents’ safety)
-A ∆ less than 50% fault is hointly and severally liable for only half of the damages; more than 50%= responsible for full damages
i. Ct ruled that L should not have to bear allocation of fault. Yes, can compare negligence and intentional tort but not here where it
would reduce safety incentives of L and the two are fundamentally different here.
ii. But what if the goal is to compensate the victim? Then what?  Abel’s view.
Example: Hutcherson v. City of Phoenix (911 operator, p371)
i. Facts: 911 operator assigned murder threat a low priority; killer committed double homicide; city and killer found jointly &
severally liable. Found 75% fault to city and 25% to killer.
ii. Combines intentional tort (murder) with unintentional tort (poor judgment)
iii. Several liability only would sacrifice full compensation, but J&S holds city fully accountable for killer’s action
iv. 911 given more fault b/c had notice, supposed to have responsibility and foresight
Example: Rstmt 3rd approach: D who is negligent b/c failure to protect P from risk of intentional tort is J&S liable.
Example: Summers v. Tice (hunting accident, p374), Ybarra v. Springfield (unconscious patient, p374)
i. Δs (hunters / hospital) held joint and severally liable, because non-negligent Δ can seek indemnification from negligent Δ (forces
Δs to identify culpable party, also they have best access to knowledge, burden on D, compensate injured P, unfair for guilty D to
escape liability because another negligent D around).
ii. If only ONE D was negligent, then can’t make J&S liable and can’t determine damages.
iii. From such cases, some cts say if can’t figure out % of fault, then best to just distribute damages equally because better to do that
than placing entire loss on one D.
h1. Absent Tortfeasors: Some states allow reduction of guilt (of neg D) when intentional tortfeasor found and identified.
h2. Immune Tortfeasors: Sometimes statutes give immunity for certain D’s. If so, other D’s spared from paying his share.
h3. Indemnifiction: D1 get $$ from real D (ex: In Seffret, P sue LAT, LAT get $$ from negligent driver)

E. INDETERMINATE PLAINTIFF (speculative injury, so don’t know whether π will have cause of action)

10. LOSS OF CHANCE (unique to medical practice) – Injury is the lost opportunity of better result, not harm of present injury
a. Rule: Must show that there was some chance that person would recover if correct procedure had been performed and that the
malpractice obliterated/reduced odds of recover. MUST show there was a chance in first place & an actual injury. If injury is
better by trial (leg/limb normal and healthy) then no more claim under loss of chance.
b. Damages - calculation
Award on a proportional basis; Determine by % value of patient's chance for a better outcome b4 negligence
= (Percentage of chance) x (total value of persons life/limb)
Ex: if 50 % chance survival, then damages is 50% of value of total life.
If chance reduced from 50 to 20%, then compensation is 30% value
If 20 % chance of saving limb, then compensation is 20% value of limb
Example: Alberts v. Schultz (leg amputation, p341) Negligent doctor, but couldn’t show causation. Need to show that there was
a lost opportunity.
i. Facts: Doctor found no signs of gangrene but did no tests; π referred to specialist 2 weeks later, who had to amputate his leg
ii. Issue: Whether doctor did not take appropriate steps so caused the loss of chance for π to save his leg
iii. Negligence established, but no cause in fact, because π failed to prove that non-negligent medical intervention would have saved
the leg
1) Incomplete medical records (perverse incentive for doctor not to complete paperwork); (note: if later find doctors did distort
evidence, then that guilt can transfer to crime of loss chance itself)
2) Doctors had to show “reasonable degree of medical certainty” (= more likely than not) that P had chance to save limb. Need
to show causal connection between negligence and resultant injury must be medically probable.
Rule- A Π in a lost chance cause of action must show, to a reasonable degree of medical probability, that the doctor’s negligence
caused a diminution in the chance of recovery
iv. Denied a benefit, rather than inflicting a wrong (Opposite of Stubbs); ct recognizes 2 injures: underlying injury and exacerbating
situation
1) Discounted recovery: if π had proven cause of fact, he would only get proportion loss (% loss times value of leg) vs.
Stubbs, where residents got full recovery, because Alberts is only denial of benefit (cts treat omission more lightly than
positive action)
2) No De minimis rule; no lower limit as to what % can be compensated.
v. Dissent: Could argue P showed 90% chance of success based on x-rays.
c. Example: Doll (note case pg. 366) Proportional liability to cases greater than 50% likelihood of loss. Not many courts follow this,
most just give full damages if greater than 50%.
c. Example: Hicks v. US (note case) >50% loss required
i. 4th Circuit court: if there is any substantial possibility of survival and the Δ has destroyed it, he is liable
ii. Does substantial possibility mean >50%?, a court did award full damages when only 40% loss
d. Example: Kallenberg (note case, p367) undiscounted recovery for 40% chance loss
i. NY court: π received full loss of life damages when he lost 40% chance of survival
e. Example: Falcon (victim died in childbirth, p366) if “substantial factor,” then give full recovery (death)
i. Michigan court overturned Falcon (minority view): if Δ’s actions were substantial factor, >50%, π may recover damages
proportionate to her loss of chance: Loss of chance for death cases overturned

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 f. Can’t sue for loss chance if the injury/ harm has not occurred. Need to show present injury

11. EXPOSURE / INCREASED RISK OF HARM (no symptoms yet)

a. Example: Mauro v. Raymark Industries (asbestos exposure, p347)
i. Facts: π exposed to asbestos with increased risk of developing lung cancer
ii. No cause of action where no present injury
1) Benefit: can sue later if develop cancer
2) Problem: may be difficult to gather proof later
b. (See POLICY in Overview above)
c. CHANGING VIEW: If present injury with small chance of future injury (<50%), courts vary as to future injury (flexibility b/c of
single judgment rule). Some will grant nothing, some will grant full recovery, some will grant discounted recovery.

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IV. NEGLIGENCE

A. HISTORICAL CONTEXT

1. Non-liability regime in 19th century: the state did not get involved. People were left uncompensated, but accident costs were low and
lawyers were not involved. Also had strict liability, for workers comp only.

2. Industrial Revolution: Strict liability would have made innovation more costly, while negligence or non-liability would encourage
economic growth, investment of capital and entrepreneurship. Industrialization led to more injuries by involving machinery
(pedestrian/pedestrian collision wouldn’t have caused damage) operating with new power.
Contemporary courts extolled the value of the fault principle in an industrializing society. In Krayenbuhl (children injured on
railroad turntable, p44), the court applied a balancing test, and elevated the public benefit of machinery (railroad) over the occasional threat
to public safety (loss of limb or life). In Losee v. Buchanan (steam boiler explosion, p504), the court said that people give up natural
rights and take on the risk of being injured for the general good of advanced civilization, and negligence is the safety net that compensates
for any damages.
Industrialization also saw the emergence of individual wealth, which led to liability insurance. Before, πs could not recover as much
money, but now people had a salaried income stream and more expensive personal property to protect. Also, improvements in medical
technology (ie: catscans) meant there would be a reason for suing, so led to emergence of healthcare.
Major technological, economic and social infrastructure changes forced a shift to a negligence regime. Critics saw this as a subsidy to
infant industry, by removing the threat of strict liability that might have hindered industrial development.
3. Abel states culture has a huge impact on standard of negligence. When culture sees acts as accidents, more likely to have negligence
standard. When see actions as all intent or part of higher will, tend to have strict liability. Depends on how we look at liability and who we
assign fault to. Negligence standard tends to help D and not P, basically chose this in order to help industry & economic growth
POLICY

Benefits:
1. Easily explained/understood (jury appeal)
2. Considers moral component
Drawbacks:
1. Vague (not much jury guidance)
2. Reflects what a community thinks should be done, not necessarily what is ordinarily done
3. May not individualize (by age, mental ability, disability), so π carries burden of any physical handicap

B. DEFINITION OF NEGLIGENCE

Negligence: Failure to exercise reasonable care a reasonable person would use under similar circumstances to avoid injury or damage to
another person or property; impose unreasonable risk upon another resulting in injury (objective, no mental state needed)
Related Concepts: Duty; Failure to conform; proximate cause; actual damage; freedom from contributory negligence

Reasonable care: Balances whether harm was foreseeability (objective) with Δ’s ability to prevent the harm (subjective)
Unreasonable: Balancing test, if risk of harm to another D is greater than utility of that conduct, risk is unreasonable.

1. Foundation of negligence law: Brown v. Kendall (stick in the eye from dog fight, p35)
i. Facts: Δ used stick break up dogs, and accidentally hit π in the eye
ii. Pre- Brown: burden on Δ to show that he had exercised extraordinary care
iii. Rules:
a. Burden of proof: shifts burden to π to show that Δ deviated from a reasonable standard of care
b. Negligence: Failure to exercise ordainary reasonable care to avoid injury or damage to another person or property
-Some form of fault, negligent or intentional, must form the basis of liability; If a pure accident arises, no action can be supported

2. Reasonable person standard:

i. Objective: trier of fact considers what a reasonable person would do; never considers D’s state of mind/intentions. (Why? Can’t
figure out ppl’s intentions, goal is to compensate & bring people to community norms, care about conduct)
ii. Subordinates moral purpose: moral goal would apply subjective standard (criminal law), which also invites fraud
iii. Particularize to certain situations/circumstances
1. Physical differences like 5 senses (blind, deaf) & mobility (in wheelchair), sometimes age.
2. Not about best to one’s mental capabilities
3. Cts don’t really like to make allowances for the elderly
4. Insanity/mental deficiency doesn’t excuse liability
5. Children: Sometimes use reasonable care of reasonable child. 3yro seen as too young to know anything, others say 4 or 6, or 7.
If child is doing adult activity (driving, sailing), then apply adult standards (Dellwo- 12 year old driving a motor boat; treated as
an adult activity). However, allowances when child is a beginner and taking a lesson at it (drivers lesson, skiing lesson etc)
6. Emergency situations: If sudden & unforeseeable occurrence b/c of shortness of time to react, can’t hold D to RP standard. Only
required to exhibit an honest exercise of judgment. Want to encourage rescurers.

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Do we modify “reasonable person” based on π’s unique characteristics?
Look at 3 goals: Morality, Deterrence, Compensation.
HYPO: π in wheelchair crossing street was struck by negligent car; if he could walk, he would not have been hit
• Rule: Particularize for major physical differences => Driver should pay
• Moral goal: should individualize standard of care, because π could not conform his behavior
• Deterrence: Can’t deter wheelchair guy from his slow behavior.
• Compensation (spreading): under generic standard of care, π would be comparatively negligent, so π’s damages would be reduced.
Costs would be borne by disabled πs. Doesn’t make sense because P shouldn’t have to pay for own injuries when not his fault
• C/A: Wheelchair people should pay their cost of travel
• C/C/A: Want to encourage mobility and place in society (Americans with Disabilities Act (ADA) expresses that we want
society to share the cost of individual differences)
HYPO: Old driver (π) hit farmers market in Santa Monica
• Rule: Do not modify by age (uniformly unsafe characteristic)
• Moral goal: Driver should have adequate facilities, and otherwise shouldn’t operate dangerous machinery
• Compensation (spreading): Old drivers will bear the cost
• Deterrence: Will discourage old, incapable drivers by increasing insurance premium

3. Foreseeability component: Adams v. Bullock (electric trolley with wire, p38) – No negligence if business took all reasonable
precautions to avoid predictable dangers.
i. Facts: 12-yr-old swings wire along trolley bridge; π shocked when wire hits trolley line. Cardozo said this was so unusual as to be
unforeseeable.
Abel: Bridge made for pedestrians, trolley owner knew people and children walked across it, trolley wire only 4 feet from bridge,
it’s below a bridge  facts that say it wasn’t that unforeseeable. Ct tries to argue and say too expensive for trolley to do anything
else, but Able says they could have put signs up or put the wire high above bridge.
ii. Rule: No negligence where Δ was in lawful exercise of its franchise and adopted all reasonable precautions to avoid predictable
dangers
Abel: However, greater the danger, the higher degree of vigilance needed
iii. Determining what is reasonable involves balancing of foreseeability with Δ’s ability to prevent the injury
iv. Contrast with Braun (wires above vacant lot, p39): standard of care should be higher where risk is reasonably foreseeable (urban area)
and easy precautions were available (signs, insulation), likely the lot would be developed.
v. Time: If the harm/danger left for less time, less foreseeable that risk would cause injury. (No liability where mechanic moved and
woman tripped over him because just minute before, she had looked and he was in diff position)
vi. Previous accidents: If D knew of previous similar accidents, then more foreseeable.

3. Extinguished “duty of extraordinary care”: Bethel v. New York City Transit Authority Bethel alleged NYC Transit Authority was
negligent when it failed to repair a wheelchair accessible seat on one of its buses and that common carriers such as public buses were to be
held to a higher standard of care
i. Duty of extraordinary care was imposed on transportation carriers in the 19th century
a. Danger (frequency and severity of injury)
b. Safety concern (threatened by “march of progress” at the expense of people)
c. Compensation (RRs seen as wealthy)
ii. Modern Rule: Common carriers are subject to the same duty of care as other tortfeasors - reasonable care under all of circumstances
of particular case
1. Some argue still should be extraordinary care standard because carriers have best control, more $$, incentive, cheaper technology
so easier to make safer.
2. However, more lax b/c standard is negligence and more lax b/c technology isn’t as dangerous as it used to be. Carriers can buy
off Ps instead of paying everybody $$ for safety precautions.
3. Use ordinary care standard if care more about economic growth

• HAND FORMULA (US v. Carroll Towing)

1. Economic standard: no negligence where cost of avoiding harm is unduly excessive compared to risk posed

HAND FORMULA

Liability if B<LxP

B = burden of adequate precautions (cost of learning about danger and taking precautions)
L = severity of resulting harm (loss)
P = probability of resulting harm

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 VS. Strict Liability: Once Hand Formula is met, strict liability will not get more safety (because Hand Formula means its cheaper to pay than to
spend any more money on safety)

Warning: don’t strictly rely on Hand formula. Abel likes to see moral conviction argument too. Sometimes not cost effective to take
precautions, but it should still be done (or other way round).

2. Example: US v. Carroll Towing (runaway barge left unwatched for 21 hours sunk, p41) B < L x P = negligence
i. Rule: Duty of care to protect others from harm when B < L x P (B- burden of taking adequate precations; L- magnitude of the harm;
P- probability of the resulting harm)
ii. Reasoning: Wartime activity, risk that mooring lines would come undone and danger to barge & other ships if they did was
sufficiently great that P should have borne burden of supplying a watchman (unless he had some excuse for his absence) during
working hours (the watchman did not have a good excuse)
3. WHO CALCULATES the Hand Formula:
i. Causal actor (Δ): calculates before accidents, based on all possible future accidents
ii. Trier of fact: calculates based on this particular π, through the “reasonable person” mechanism
iii. Insurance companies: in assessing risk for premiums
iv. Victim (π): overriding interest in bodily integrity, though non-liability regime also encourages caution
iii. Trier of fact calculates, based on “reasonable person” standard so Δ will try to pre-emptively guess what the trier of fact will do 
jury decision of what are reasonable precautions highly respected.
4. Benefits
i. Deterrence: places burden on Δ, who is in the best position to improve safety
ii. Safety: focuses on cost-effective safety measures (at expense of moral goal)
iii. Use more of as a guide
5. Drawbacks
i. For-profit Δs only: doesn’t work for individual actors or non-profits
ii. Solvent Δs only
iii. Insurance upsets the balance, because Δ could settle for increased premium rather than investing in safety
iv. Morally repugnant: (Holmes) does not necessarily punish when Δ knows the risk and is in the wrong
v. Can’t follow strictly because can never really know probability of harm

Necessary assumptions of deterrence theory:

1. Actor is profit maximizer (not government, charity)

2. Actor is not judgment proof (must be solvent)
3. Actor engages in planning (more true of collectivities than individuals)
4. The victim is not unique, identity unknown (contrast baby in the well)
5. All accident costs are internalized (100% of deserving victims claim and recover)
6. Actor (not insurance) bears the ultimate cost

D. Who is in the best position to decide question of negligence?

Trier of fact. Efforts to shortcut unique, individualized litigation (by appellate judges, customs, and statutes) have failed. SEE:

1. APPELLATE JUDGE – try to propose generalized rules

i. Judge decides based on experience:
Rule: A person who has failed to exercise reasonable care to avoid an accident is not entitled to recover damages from the
other party
Ex: Baltimore & Ohio Railroad Co. v. Goodman (driver killed at RR crossing, p58)
a. Facts: driver’s view was blocked and he did not get out to look for approaching train
c. Procedure: Judge determined fault as a matter of law (held that trier of fact would have to find comparative negligence because
the driver did not look, he did not exercise reasonable care to avoid an accident) => creates definitive rule across all cases
d. Pre-empts jury and claims that appellate judge should decide based on experience because has expertise, knows general
standards of community from time on bench and because Goodman’s failure to exercise reasonable care was so evident
Akins v Glens Falls City School District: woman hit by baseball at game. Sued b/c of lack of safety precautions, but lost b/c
reasonable care was taken. Dissent said should have gone to a jury.

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 Rule: Even a small risk of serious injury to passengers may form the basis of a common carrier’s liability if that risk could be
eliminated consistent with the practical operation of airline travel. Judge determined that common carrier owes duty of
utmost care and vigilance of very cautious person towards passengers. Required to do all that human care, vigilance, and
foresight reasonably can do under all circumstances.
Ex: Andrews v. United Airlines, Inc (Andrews injured from bag falling from overhead compartment, pg 66)
-P is low here but L is high
a. Facts: P claims airlines did not satisfy duty of care towards passengers. Airlines received 135 reports from stuff falling overhead,
D gave warnings during arrival.
b. Held: Ct held United Airlines liable. Increase standard of care b/c others had done so and not too expensive.
c. Determines standard of care in order for case to go to jury. Here, ct says P met burden and can overcome Summary Judgment.
Ct said common carriers must keep up with science, art, and modern improvements. Netting would not have been too expensive
and warnings weren’t enough (Hand formula!). If jury decided either way, it would be rational.
d. Note, basic negligence formulation is reasonable care. If airline personnel stored bag that dropped, then United would be charged
with just negligence.
ii. Jury evaluates based on specific facts: Unless reasonable minds could not differ on the point, standard of negligence is for jury
Pokora v. Wabash Railway Co. (driver killed at RR crossing, p60) – Judgement to jury unlike previous cases.
a. Facts: Similar to Goodman but crossing in busy area, many cars waiting behind P.
b. Under Goodman, should have been fault as a matter of law
c. Procedure: Judge gives case to jury because every case has a unique solution and there can be no general rule
d. Appellate courts not the appropriate place to determine fault
e. Rule: Only needs to take ordinary safeguards.; Failure to get out of a vehicle and look before crossing a railroad track is not
contributory negligence as a matter of law
iii. Motions for SJ and DV give case to the judge automatically
a. Example: Andre v. Pomeroy, (car accident while looking into handbag, p64)
b. Daughter sues mother for having an accident and injuring her; Mother was looking into her handbag
c. Insurance collusion scam: by moving for SJ, judge would decide and jury would not get to see collusion

2. CUSTOM – can define standard of care in industry, factor not bright line rule
i. Rule: Evidence of custom and usage by similar businesses can be used to determine what is reasonable conduct under all the
circumstances, which is the quintessential test of negligence; used as guideline only, not bright-line rule
Proof of customary practice + ignored + departure from custom was proximate cause of accident
=> Custom may serve to establish liability
ii. Example: Trimarco v. Klein (tenant fell through shower glass and attempted to show that glass no longer met accepted safety
standards, and use of shatterproof glass had become common, p67)
a. Custom that most apartments have plexiglass helps jury to understand the general expectation of society to serve as a guide to
common sense in determining whether Δ’s conduct was reasonable (not determinative)
b. If departure from customary practice was a proximate cause of the accident, may establish liability
c. Support for custom: => all showing that such precaution is reasonable
1) Reflects judgment, experience and conduct of many, doesn’t have to be universal.
2) Focuses on practicality/feasibility of precaution, shows it is cost effective & works (Hand formula)
3) Provides example of safety
d. Drawbacks:
1) May discourage improvements, if they can rely on a low industry standard
iii. Conformity of custom: Just because you can show you followed custom, doesn’t mean cts will say you were not negligent. Cts might
want to change standard for morality reasons, want them to improve.
iv. Abel argues that perhaps small, rural, poor businesses might have exceptions. Or should you argue for no exceptions?
-In malpractice cases- courts have been willing to let prevailing custom serve to define the standard of care

3. STATUTE (over-inclusive, under-inclusive)

Need to know (1) intent of statute – from legislative history, purpose part of legislative etc; (2) whether violation of statute was proximate
cause of injury – whether violation affected the negligence. If violation violates intent & was proximate cause, then D can use
violation of statute as a defense.
Note: Just because someone followed a statute, it can still be unreasonable depending on the circumstances
i. PER SE Rule: Failure to comply with statute constitutes negligence in itself, which can be prima facie evidence of contributory
negligence (rebuttable presumption allows for unavoidable accident). (Martin)
ii. Example: Martin v. Herzog (buggy accident, p63) statutory violation = negligence per se (broad)
a. Facts: π drove without headlights, violating a statute, and collided with ∆ ; claims that Δ drove in the middle of the road
b. Δ wants statutory violation to bar π, π’s statutory violation creates a prima facie case for contributory negligence that can be
overcome (rebuttable presumption); here, the statute’s goal was safety
iii. CASE-BY-CASE BASIS Rule: Without clear language to the contrary, statute that codifies common law rule or is intended to
promote public convenience/safety can be violated without being prima facie case of negligence (if it is safer not to follow statute).
Statute as guideline only, not bright-line rule. (Tedla)
iv. Example: Tedla v. Ellman (baby carriage on street, p76) particular case not negligent, despite statutory violation
a. Facts: 2 Junk collectors couldn’t walk on left side of road (as statutorily required) because of heavy traffic so they walked on the
left side of the road and were hit by Ellman

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 b. Holding: Statute was outlining convention, but want to encourage the optimal, safest behavior in the end. Πs were acting
reasonably under the particular circumstances, not negligent despite statutory violation. Violation of a statute is not
automatically considered negligence if there is a good reason to depart from it.
c. Violater must prove that it is more reasonable to violate the statute than to follow it
v. Compare Platz v. City of Cohoes (Sunday statute not safety-related, p80)
a. π injured while riding on Sunday due to negligently left roadblock; Statute no defense where it has nothing to do with safety
(designed to preserve public order on religious day)
vi. Compare Bassey v. Mistrough (emergency stop on the freeway and Π ’s car was hit (which hit him) while he was investigating, p80)
a. Following Tedla, it was more reasonable to violate the statute
v. Compare De Haen v. Rockwood Sprinkler Co. (radiator placed near edge fell down the shaft and killed a man, p82)
a. Holding: Statute must be intended to prevent the particular hazard
vii. Compare Robinson v. District of Columbia (hit by police van while walking outside of crosswalk, p80) negligent b/c of statute,
despite custom
a. π hit while walking outside of crosswalk, in violation of statute, claiming that it’s common practice there
b. Holding: π negligence because of statutory violation; statute intended for safety and common practice is dangerous
viii. Licensing statutes: not used to set standard of care, except in medicine
a. Automobile: lack of driver’s license is irrelevant to tort claim
b. Medical: in Brown v. Shyne (p83), chiropractor not licensed for treatment and hurt π (jury not informed of statutory violation)
1) CPLR § 4504(d): lack of license deemed negligence per se (passed after Brown)
Hypo
P's purpose to show D drove negligently & D is unlicensed. You're D's lawyer. How do you show violation of statue didn't affect
negligence.
Argue lack of license doesn't affect how you drive. Many people who are unlicensed are still just as good drivers. Licensing
statutes are diff from statutes describing courses of conduct. It just says this is the type of competence you must have, not this is
how you should drive

E. Methods of proof

Π bears burden of proof for negligence:

Documentary or real evidence => real or physical evidence- more convincing

Direct evidence => eyewitnesses

Circumstantial evidence => creates an inference of what occurred

1. Constructive Notice
i. Rule: Π can make out prima facie case of negligence by presenting circumstantial evidence that Δ had actual or constructive
notice of a dangerous condition which caused injuries and did not remedy the condition. Constructive notice is where D should
have known because of the circumstances
ii. Example: Negri v. Stop and Shop, Inc. (customer slipped on baby food at store)
a. Rule: π must show that danger existed long enough for a reasonable person to find and remedy it (constructive notice)
b. Constructive notice shown by fact that floor was “dirty and messy”  circumstantial evidence (made inference); evidence from
other witnesses showed that broken jars & baby food on floor for at least 50 min-2 hrs.
c. In Hand Formula, length of time was relevant:
1) P = longer the mess is on the ground, higher probability of injury
2) B = longer the mess is on the ground, the easier it would be to learn of the hazard
3) Therefore, higher level of negligence. If only 5 minutes, not reasonable to clean, but more reasonable to clean every 2 hrs
iii. Rule: To constitute constructive notice, defect must be visible and apparent and it must exist for a sufficient length of time so
that D's employees can discover and remedy it.
Example: Gordon v. American Museum of Natural History (Gordon allegedly fell on wax paper on Museum steps) No
constructive notice
a. π could not establish length of time that wax paper was on steps b/c only his own testimony.
iv. Business Practice doctrine: If you establish big retail establishment with self-service type of business, then need to anticipate
dangerous situations. If there are slips and falls, then burden is on D (the shop) to show they weren't negligent in causing injury.
Moving more towards strict liability.
How to restrict? Large establishments only or small and large etc?
Example: Randall v. K-Mart Corp. (customer slipped on birdseed, not considered self-service p89) Rejects business practices
strict liability
a. π tried to invoke VT business practices rule: that constructive notice is not required where “business practices” create a
reasonably foreseeable risk of harm (because K-Mart is a self-service store, should bear the risk of customer autonomy)
b. Rejected business practices because π did not prove how birdseed was sold, and could lead to slippery slope of imposing strict
liability on all retailers. Didn’t show it was “self-service”

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 v. Mode of operation rule: looks to business's choice of particular mode of operation and not events surrounding P's accident. Ps not
required to prove notice if proprietor could reasonably anticipate hazardous conditions. Whether choice of business made it so that
business could reasonably anticipate circumstances

2. Res Ipsa Loquitor: “the thing speaks for itself”

Res Ipsa: Provides an inference of negligence where direct proof is not available

Π must establish:
1. Instrumentality that caused the injury was under the exclusive control of the Δ
AKA: within the scope of the duty that Δ owed to π
2. The event is one that would not normally occur without someone’s negligence
Doesn’t have to eliminate all other causes, just needs to show >50% likely to be caused by negligence.
Base conclusions on general experience of jury or expert testimony for med mal cases
3. Neither π nor any other 3rd part contributed to the injury (not required in comparative fault)
4. Some courts say P must also show true explanation of events is more readily accessible to D than to P.
In which case, the burden shifts to the Δ to prove non-negligence

TWO JURISDICTIONS:
Permissible inference: res ipsa satisfies π’s burden of production, then Δ makes Directed Verdict motion and jury decides; burden of persuasion
remains on P.
Rebuttable presumption: res ipsa satisfies π’s burden of production and burden of production shifts to Δ to prove non-negligence

POLICY: motivated by π compensation & D has better access to information

i. Original case: Byrne v. Boadle (falling barrel of flour out of the window and hits Byrne, p91)- There are circumstances in which
the fact that an accident has occurred shows presumption of negligence which must be rebutted by ∆
a. Res ipsa: Allows jury to find for Π where Π cannot describe exactl how negligence occurred
Barrels don’t fall w/o negligence, and barrel was under Δ’s exclusive control.
b. Procedural change: shifts burden of proof to Δ, to show non-negligence, burden on D to rebut presumption of neg.
1) Access to evidence: transfer burden because Δ likely has better access to evidence
ii. Hotel cases (note 3, p94)
a. Res ipsa denied Larson where hotel had no idea that furniture might fall out of window, D won motion for non suit. Ct said
hotel did not have exlusive control over furniture
b. Res ipsa granted Connoly where hotel had prior incidents of falling furniture and took no precautions; hotel had prior notice and
did not increase vigilance (b/c π had sufficient evidence to show negligence)
iii. Distinguish between common accidents and negligently-caused accidents
a. Restmt 2nd §382D: Res ipsa does not apply to frequent accidents such as flat tires or falling on stairs that normally occur without
the fault of anyone. Liability would be too broad. Res ipsa does apply where negligence can be inferred, such as falling objects,
elevator crash, escape of gas/water, or derailed trains.
b. Example of Res Ipsa event: McDougald v. Perry (spare tire came loose from truck and struck McDougald’s car, p95)
1) Spare tire escaping is accident that would not occur without negligence, based on common experience and knowledge.
Based on evidence, reasonable persons can say that it was most likely that negligence cause act.
iv. Res Ipsa Loquitur Weight at Trial
Note: Burden of production – producing evidence, presents to judge to decide if should go to jury; Burden of proof – incantation
that is uttered to jury; Burden of Persuasion – persuade your side’s argument
1) Permissible Inference View: Satisfies burden of production for P, so now case can go to jury. D will bring evidence to rebut. In this
approach, possible that inference of negligence is so strong that judge will direct verdict for P if D does not bring any rebuttal evidence.
a. Example: Farina v. Pan American World Airlines, Inc. (passenger injured when plane went off runway while landing, pg. 99)
1) Evidence so convincing that the inference of negligence arising therefrom is inescapable if not rebutted by other evidence.
2) B/c no counter evidence offered by D, P entitlted to summary judgment on the question of liability
2) Rebuttable Presumption approach
b. Once Res ipsa applies, burden of production automatically shifts to D. Presumption that D was negligent and D has burden to
rebutt evidence or will be guilty. CA seems to follow this view. D allowed to totally rebut to DV.
Example: Leonard v. Watsonville (clamp left in abdomen after operation p101)
1) Res ipsa granted against 3 doctors, because clamps aren’t left in abdomen without negligence
2) Doctor 3 can show that he did not work in that area of the abdomen, so moves for DV and satisfies burden of production
(other doctors testify against themselves by supporting Doctor 3, so they must be believed)
v. What if there are multiple Δs and π does not know which one is culpable? (ELEMENT 1 not satisfied)
Conspiracy of silence problem
a. Example: Ybarra v. Spangard (appendicitis operation results in paralysis, p101) RIL granted
1) Instrumentality: unconscious π cannot point to specific Δ responsible (there were 4 people involved), definite negligence of
someone is high probability.
i) Problem of conspiracy of silence: no incentive for members of a joint enterprise to identify negligent Δ

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 ii) Compensation problem: Without res ipsa, π could not establish necessary proof
2) Res ipsa granted because don’t want to allow perverse incentive to cover-up
b. Contrast Fireman’s Fund Insurance v. Knobbe (four hotel guests smoking before fire, p109) RIL denied
1) Instrumentality: π (insurer) cannot point to particular guest responsible for the fire
2) Res ipsa denied because insurer is suing (not same goal of π compensation, as in Ybarra)

Ybarra vs. Summers: Which is greater departure from traditional tort law?
1. Summers: Cause-in-fact relaxed. Know that one hunter is negligent, but π does not have information to identify which.
2. Ybarra: Presumption of negligence through res ipsa. Don’t know whether any Δs are negligent/causal, and π does not have information to
establish negligence or which actor was negligent. However, does know that injury most likely caused by negligence. With 4 Δs, ¾ are
likely blameless. As number of Δs increases, courts become more reluctant to abandon tort principles (greater stretch).

3. Medical Malpractice

Focus on: standard of care, the role of custom, questions of proof, whether there was negligence
Custom is depository in area of medical malpractice

Measure standard of care by specialized knowledge and skill of D. Higher standard of care on doctors, but let profession as a group set own legal
standards of reasonable conduct.
Main question to ask: Did D act in conformity w/ common practice within his/her ability?

Always need expert testimony b/c need to tell when someone deviates from reasonable care in profession. Translate standard of reasonable care to
laymen.

ABEL QUESTIONS: why allow for doctors and not manufacturers?

3. Expert’s Role: Did medical expert act in conformity with practice? Can use expert testimony to infer negligence.
i. Higher standard of care in medicine, set by doctors’ standard based on a high level of expertise
ii. Expert testimony used: Doctors can be brought in to establish the standard of care, to help jury determine whether the doctor’s action
was negligent. If negligence so obvious or lay person could understand obligation, no need for expert testimony.
a) Drawback: Δ can bring in any minority opinion that supports his actions
b) Benefit: Current movement toward holding doctors to standards based on statistics (more objective, scientific) rather than expert
opinion.
c) If 2 schools of thought on procedure, as long as both recognized by reputable & respected # of medical experts (even if not
published) then that’s valid. Even if D is specialist, still needs a uniform standard of care.
iii. RULE: Standard of care for phsysician is NOT limited to local area. Reflected in qualifications for valid expert testimony
i. Policy reasons:
a) National standard to ensure uniformity for poorer & smaller communities
b) Circumvent “code of silence” problem in small communities
c) Because of internet, modern transportation, doctors can move about, need to rely on standard
d) Lots of opportunities (seminars, modern clinics, internet) to allow people to keep up with national std.
ii. Other things to think about on exam:
a) Should there be differences when areas have different access to education, different elevation & climate so affects
recovery, different equipment available b/c of area’s $$
b) What if doctor and lawyer work together to solve suits? What if doctor gets paid?
c) Apply same standard to other situations: buildings collapse, complex product defective.
Example: Sheeley v. Memorial Hospital (Sheeley alleged negligence during her episiotomy, but her expert witness was not allowed
to testify p101)
RULE: A physician is under a duty to use the degree of caution and skill expected of a reasonably competent practitioner in
the same class to which she belongs, acting under similar circumstances
a) Expert admitted, a retired OB/GYN specialist from different location (to minimize conspiracy of silence). Kept up with field
(attended conferences, read); D argue overqualified, outdated info, standard of care diff in RI.
1) Robbins court abolished locality rule (anachronistic) that required doctors to be from region
2) Court ignored Δ claim that Dr. was outdated (b/c still kept up with standards/practices)
3) Court ignored Δ claim that Dr. was overqualified (b/c basic procedure, board certification is nat’l stdard)
5) Regarding expert testimony: Any doctor w/ knowledge of or familiarity w/ procedure, acquired through experience,
observation, association, or education, is competent to testify concerning requisite standard of care.

iv. Compare Bulger (p116)

a) Hospitals may be negligent when fail to use reasonable care in keeping facilities safe by failing to select & retain only
competent physicians when they are needed (baby died b/c doctor didn't know how to do cesarean and hospital knew this)
v. Contrast Soares v. Vestal
b) Expert disqualified b/c he was testifying outside his area of expertise (internal medicine v. family practitioner emergency)
vi. Informed Consent – Diff claim from med mal claim. No med mal b/c treatment by doctor was customary.
a) Policy: Balance between π’s autonomy (respect right to choose) VS. doctor’s expertise (more efficient)

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 b) History: Used to be seen as battery (touch w/o consent), but didn’t work for when doctor withheld treatment. Now courts state
that lack of full disclosure constitutes professional negligence
c) Different standards for informed consent
1) NY: Has expert testimony for what conduct fell short of reasonable disclosure standard (care more about efficiency)
2) NJ: Objective standard. Has “reasonable” patient standard (Doc should provide info that reasonable patient should
want (care more about autonomy) (obj good b/c easier to measure damages)
3) PA & other states: Say informed consent is claim of battery. Can only claim Informed Consent when invasion, not
when Doc fails to perform treatment (can’t extend to injections)
4) Usually only need to disclose alternatives that are generally recognized and accepted by reasonable prudent physicians
(protects doc from liability if fail to mention treatment w/ low risk but rare type of treatment)
d) Consent can be withdrawn by patient at any time (then doctor has to start from square one again)
e) Misinfo: If doctor said did procedure 60 times but really 9, the misrepresentation is not part of informed consent
f) Don’t need consent if patient unconscious, incapable of consent, no family member
g) Harm = life: If treatment gives more life, more courts say can’t sue for informed consent. Some say patient has a right to make
decision to refuse treatment (ex: intibation) even if it is life saving (consistent w/ goal of autonomy)
Ex: Ct refused damages for D’s wrongful prolongation of P’s life. Harm from breach was benefit of life and cts repeatedly refuse
to compensate for that.
h) Controversial issues:
1) Should doctors offer birth control w/o parents consent?
2) Should doctors offer abortion as a choice?

CONSIDER:
Information: Who evaluates the information to make the decision?
1) Utilitarian (most efficient): Doctor, based on expertise
2) Non-utilitarian (deontological): Patient, based on her subjective desires
Causation: Who should make the decision?
1) Utilitarian: Doctor, based on expertise (objective)
2) Non-utilitarian: Patient, because she knows her own preferences (subjective)
Damages: How should a patient be compensated for medical negligence? (based on Matthies example)
1) Utilitarian: Loss of mobility, discounted by pre-existing condition
2) Non-utilitarian: Autonomy (how do you compensate for denial of control of her own body / dignity?)

Invasive v. Noninvasive procedures (Need consent?) – YES

Rule: To obtain a patient’s informed consent, doctor must explain reasonable invasive and noninvasive alternatives, even
when the chosen course is noninvasive.
Example: Matthies v. Mastromonaco (bed rest prescribed b/c doctor didn’t want her to suffer more pain through surgery, patient
preferred pain and autonomy than no pain and useless legs, p122)
1) Held: Physician liable even though he prescribed noninvasive procedure
2) Reasoning: Physicians have duty to evaluate relevant info & disclose all courses of treatment that are medically reasponable
under circumstances. Ultimate decision up to patient (patient has autonomy interest). Physicians may neither impose their
values on patients nor substitute level of risk aversion for that patient.
3) Factors that make it more important to give consent:
a) Alternatives mutually exclusive – if choose one, can’t do the other
b) Increases risk of other treatments
c) Have to change lifestyle or choose set of values over others.

4. Can Res Ipsa and Expert Testimony be used together to establish negligence?
i. Rule: Yes. Expert testimony can show the first part of Res Ipsa – whether such an injury would occur unless negligence.
a) Example: States v. Lourdes Hospital (pg 119 – P had cyst removed, expert showed later injuries result of negligence)
Held: Expert testimony can help "bridge gap" between common knowledge and specialized knowledge.
Res ipsa loquitur still put burden of proof on P. Just allows jury to infer negligence based on well founded understanding that
injury needs negligence… D needs to rebutt
b) Some courts unwilling to apply res ipsa when need expert testimony b/c lay ppl can't use common sense… and if need expert then
not really evident that negligence had to be there for it to happen
ii. Rule: Res ipsa and expert testimony can be conjoined, when no one can testify as to what actually happened (res ipsa needed)
and a medical expert must inform the jury about the higher industry standard of care (expert needed)
Example: Connors v. University Associates (leg paralysis after pregnancy surgery, p117)
a) Res ipsa required because π did not have any way to prove negligence
b) Expert required to describe proper use of retractor (to help determine whether negligence was involved)

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V. PROXIMATE CAUSE - Proximate Cause: The type of cause which in the natural and continuous sequence unbroken by any new
independent cause produces an event, and without which the injury would not have occurred

CAUSE IN FACT: = But for cause. W/o D’s conduct, injury would not have occurred. (some jurisdictions drop in favor for substantial factor test)
NEGLIGENCE: Did Δ unreasonably risk harming someone or something? (broad evaluation of Δ’s conduct)
PROXIMATE CAUSE: Was the harm to the particular plaintiff a foreseeable result of Δ’s conduct? (narrows to impact on this π)

First show negligence, injury, cause in fact, then proximate cause:

Foreseeability: injury must have been a reasonably foreseeable result of Δ’s negligence
Harm-within-the-risk: Δ must have exposed π to an increased risk (might be foreseeable, but not increase risk to π)

POLICY: Proportionality (fairness/morality)

- Judicial sense that Δ should not be automatically liable for all consequences (ex: Palsgraf: could not foresee fireworks exploding would cause scale
to fall and injure π)
- Uncomfortability with holding less culpable party liable
- Holmes: proximate cause springs from wanting to be fair
- Efficiency (economics) – want to encourage enough business growth

Typical proximate cause situation: Δ is not the most culpable actor but is the most solvent

A. Intervening and Superceding Cause

Arises when third-party or event are the immediate cause of harm, resulting from original negligence of Δ. Proximate cause satisfied if
intervention was foreseeable result of Δ’s negligence (= if the negligent action increased the risk of the injury).

1. Rule: Foreeseeable risk

Example: Key left in the ignition => foreseeable risk that thief will drive negligently (regarding statute about leaving keys to prevent theft)
Example: Bartender serves visibly intoxicated patron => foreseeable risk that Δ will drive drunk
2. Rule: Δ only liable if injury was a harm within the risk of Δ’s negligence
Example: Berry v. The Borough of Sugar Notch (tree fell on trolley, p415) (Berry v. Sugar)
i. Facts: Trolley driver was negligent in speeding. P passenger in trolly. Tree fell on trolley at certain space and time.
ii. But-for cause satisfied: but for the speeding, the trolley would not have been there
iii. Harm not within the risk: speeding did not increase the risk of falling trees => no prox cause
Example: Ventricelli v. Kinney System Rent A Car (trunk defect in rental car, p415)
i. Facts: Trunk opened on freeway due to negligent renter who failed to maintain; π pulled into parking space to fix trunk and was hit
ii. But-for cause satisfied: but for the trunk, π would not have gotten out there
iii. Harm not within the risk: Rental agency did not expose Δ to an enhanced risk of getting hit – not normal expectation from defective
trunk (unless you can show empirical evidence that if a trunk is open and blocks one’s view, that can increase the risk of
being hit – stretch)
3. Rule: If create injury through negligence increase probability of another injury, the held liable.
Example: Wagner v. Mittendorf: (D negligently broke P’s leg. While P recovering, thru no fault of his own, slipped on crutch & leg
broken again. Pg. 406)
i. Ct held D liable for aggravation. Broken leg increases probability of another broken leg
4. Rule: If negligent risk increases injury but intervening actor contributes to injury, still liable
Example: Gibson v. Garcia: LA transit allowed poles to decay negligently. P standing next to pole. Car crashes into pole and it falls on P.
Ct found D liable
• If pole just fall on P, then yes LA is liable
• If strong wind around that even non negligent pole fall, then LA not liable
POLICY: Adds another potential Δ (deep pocket) to ensure compensation, but attempts to limit adequately (morality)

6. RESCUE CASES (foreseeable because “danger invites rescue” - Wagner)

i. Rule: Foreseeable that a third party will be injured while attempting to rescue victim from consequences of Δ’s negligence; Harm to
rescuer is within the cluster of risks that makes Δ’s actions negligent
Example: Wagner v. International Railway Co. (π injured during rescue, pg. 434)
a. Facts: Δ negligently failed to close train car door; Π’s cousin was thrown out; π injured while attempting to rescue cousin. D
found liable to rescuer
b. Cardoza states that doesn’t matter if act of rescue was impulse or deliberately thought out; what matters is that a rescue is to be
reasonably expected from such negligence. Motive to encourage altruism
ii. Donating body parts to save life – No compensation usually
Contrast: Moore v. Shah (P had to donate kidney to father who had been hurt by D’s malpractice, pg. 435)
i. Ct stated, even tho reasonably foreseeable, donor’s actions not spontaneous but was deliberate & reflective & not made
under pressure of emergency situation.
ii. Also cts say this isn’t a rescue (most cts agree). Biggest reason: can’t buy a kidney. Can’t compensate someone for
something market doesn’t put value on (but what about workers comp w/ pricing body parts?)

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 iii. Time: Cases where SOL extended because disease might take years to develop (asbestos, DES, etc)

B. Foreseeability- foreseeability of the consequences of a D's actions depend on the balancing between the likelihood of risk and the
magnitude of damages flowing therefrom.
Generally, foreseeability required where π is foreseeable.
Δ often held liable where extent or manner of harm are unforeseeable.

SPECTRUM
Unforeseeable π ----------------------------------------------- Foreseeable π--------------------------------------------------Foreseeable π
But foreseeable harm to someone but unforeseeable type of harm with unforeseeable extent of harm

1. Unforeseeable Plaintiffs/ Unexpected Victims (often no proximate cause)

>>ZONE OF CARE Rule: A D owes a duty of care only to those P's who are in reasonably foreseeable zone of danger. Cases help us
decide what is in the zone. Majority of courts follow Cardoza & say there’s a foreseeable zone of care
i. Palsgraf (fireworks explode causing scale to fall and hit bystander, p419)
a. Facts: EE (Δ) helped passenger onto train, passenger dropped unidentified packages and fireworks exploded. Π was standing on
the platform and was injured by scales that fell off the wall.
a. Rule: if reasonable person would not have foreseen danger from Δ’s conduct, there is no duty owned if π is unexpectedly
hurt. Harm to π was not a foreseeable risk of Δ’s conduct.
b. Information cost (B) involved in detecting danger (fireworks in luggage) TOO HIGH; Δ would not take additional safety
precautions if held liable. Too hard to check all unidentified & unmarked packages.
c. Some courts follow Dissent (Andrews): Harm to π was remotely foreseeable, so proximate cause question should go to jury.
Once a Δ is negligent in some way, then can be liable for all resulting harm. General duty to protect others from unnecessary
harm & danger (duty to everyone & duty to refrain from acts which may unreasonably threaten safety of others)
Every plaintiff is a foreseeable plaintiff, regardless of how far or how near or how unforeseeable, entitled to recover for
damages resulting from D's negligent conduct.

>>SUBSTANTIAL FACTOR Rule: (where D1 create situation, and intentional D2 actually commits crime)
For a negligence claim, P must establish that D's conduct "legally caused" the injuries. Legal cause has 2 parts:
(1) Causation in fact: Test is to ask "would the injury have occurred were it not for the actor's conduct?"
(2) Proximate Cause: Test is to ask "whether D's conduct is a substantial factor in producing the P's injury
Substantial factor? "whether the harm occurred was of the same general nature as the foreseeable risk created by the D's negligence
Where a negligent defendant's conduct creates/increases the risk of harm & is substantial factor in causing that harm, the D is not
relieved from liability by intervention of another EXCEPT where harm intentionally caused by 3rd person AND is not within scope of
risk created by D's conduct
ii. Doe v. Manheimer (P was raped on property of D. P claimed that D's negligence for letting property become ungrown and hidden
from public view was cause for rape. Ct said D not liable. Pg 416)
a. Held: Overgrowth might have been “but for” cause, but it was NOT the proximate cause of the rape. Harm suffered by P not of
same general type (not in same scope of risk) that allegedly made D negligent.
b. Reasoning: not due to common sense (P needed to bring in expert on space layout etc). No previous exp of D to think violent
rape would occur b/c nothing violent had occurred outdoors on premises (but could argue it was a dangerous neighborhood &
violent events had occurred before)
iii. Under Rstatement of torts Section 442B: liable for reasonably foreseeable intervening misconduct. NOT ALL conduct that happens
from situation created by D. No more substantial factor test in R3d of torts. Abel hates it
iv. Abel’s alternatives to substantial factor test:
a. Limit Duty… say he had no duty b/c not foreseeable
b. Hand's formula (P - to say that little probability for it to occur so expensive to take so much precaution for little probability of
harm; Information cost, cost learning about it are high so too expensive to try to prevent)
iii. Compare Hines v. Garrett (plaintiff raped near RR tracks p423) intervening criminal actor, RR still liable
1) Facts: Train dropped π off past her stop, in dangerous area; Made her walk back, π was raped
2) Even though the intervening act was criminal conduct, the RR is still liable because FORESEEABLE.
If D has knowledge of danger and control of things to lessen danger  more likely that D liable.
3) Doe case does not say that D cannot reasonably foresee criminal acts.

2. Unforeseeable Extent of Harm (often find proximate cause)

a. Eggshell Plaintiff
i. Rule: Δ takes his victim as he finds him (unforeseeable weakness is no defense)
ii. Example: Benn v. Thomas (car accident victim died from pre-existing heart condition, car accident made heart condition worse,
6 days after accident he died of heart attack p401)
1) No foreseeability: Δ could not have known about π’s pre-existing condition
2) Seems unfair to Δ, however moral concerns don’t play a major role in tort law
NOT GOOD LAW ANYMORE – we take victims as they are in damages section (pay more if they earn more, etc)
iii. Policy:
1) Don’t want to require πs to detail all of their weaknesses, and to decide what is “normal” weakness versus unforeseeable
weakness

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 2) Deterrence: if Δ knows he is responsible for any injuries, he will be more careful because of risk of eggshell
iv. Idiosyncrasy: we are individualizing standard of care based on π’s unique characteristics => does not extend to property damage
v. Legal Hand calculation: look at this particular instance, where L actually occurred => P was very low
vi. Economic Hand calculation: look at all possible accidents prospectively, where L has not occurred => wide range of
ramifications after car accident so P is higher
Example: Smith v. Leech Brain (EE exposed to molten metal with pre-existing cancer susceptibility, p409)
1) ER could not foresee this particular EE’s susceptibility (legal view), but could have anticipated possibility across
thousands of EEs (economic view)
Contrast Steinhauser v. Hertz (Pre-existing schizophrenia that could be triggered by trauma, p402)
1) Jury should consider possibility that π would have been schizo without the trauma, and can reduce damages
2) Psychological problem more uncertain that heart condition according to ct.
ix. Chain of events: some courts allow recovery, others don’t
Bartolone: Chain of events after accident (mother died etc) where man who had predisposition for mental illness later became
schizo. Ct allow recovery b/c said D aggravated preexisting illness.
Compare: In Benn, only one act by D, volitional, and directly was straw on camel's back
In Bartolone, subsequent acts that contributed
In Fuller, the P later wanted to commit suicide because of accident. The court was sympathetic and said that the suicide was a
"disease" that stemmed from accident.

3. Unforeseeable Type of Harm (often find proximate cause)

a. Polemis Approach: Δ responsible for all consequences of negligence (p404)
i. Facts: Δ was unloading; planks jarred loose and fell into ship hold; fire broke out
ii. Issue: was defendant’s negligence a proximate cause of the unforeseeable harm
ii. Rule: if Δ is negligent, then he is responsible for all consequences of his actions; If the act might cause damage the fact that
the damage caused is not the exact kind of damage one would expect doesn’t matter ( NOT GOOD LAW ANYMORE)
iii. Compensation goal
b. Overseas Tankship (Wagon Mound) Approach: Δ only liable for foreseeable consequences (p405) Overrules Polemis
i. Facts: Δ was taking on oil, that spilled into water, then Δ sailed away; Π was working on welding nearby and fire broke out
ii. Δ would stress uniqueness of what happened to this ship (legal view, try to narrow); π would stress generality of fires happening
at shipyards (economic view, try to broaden)
iii. Rule: Even though injury may result from a negligent act, liability for that injury is lmited to the risk reasonably to be
foreseen Limited to what is “natural” and “probable” from negligent act.
iv. Majority view: must have limitation on foreseeability
c. Hand Formula Justification
i. B < P + L
ii. When unforeseeable, must consider burden of learning about the danger, which is extremely high
iii. Δ should not be held liable where unforeseeable, because he will not enhance safety or be deterred if liable (would not spend
extra money if high B)
iv. Eggshell π is distinguishable, because we treat physical integrity differently from property damage (inherent weakness of the
victim VS extent of the damage done)

4. Indirect causation because of intervening event or actor

a. Intervening Event/Actor makes outcome unforeseeable (Δ still negligence, but can’t attribute entire results to Δ)
i. Act of God, third party, animal; does not include:
1) π’s conduct: that is factored in under assumption of risk or contributory negligence (defenses)
2) Pre-existing condition: eggshell π
3) Third party’s failure to act
ii. Survival actions: Intervening event/actor proximate cause only if w/o it, person would have lived.
Example: Dillon v. Twin State Gas Electric (boy electrocuted before hitting ground, grapped wire that was negligently covered
p403) partial compensation
1) Only award for remaining life expectancy of 3 seconds (time between electrocution and impact) if find the boy would have
died if landed on ground w/o being electrocuted.
iii. Usually no recovery for suicide (esp if trying to get out of paying)
Example: Fuller v. Preis (π committed suicide following accident, p402)
1) No recovery, because of intervening human agency
iv. Hypos: Δ negligently hit pedestrian. Π treated and ends up with paralyzed leg.
Obviously P can sue D (cause in fact, even if might have been better result, doesn’t matter)
ON EXAM: ALWAYS TRY TO WORK IN NEED FOR EMPIRCAL EVIDENCE.
1) If doctor was negligent, Δ still liable (medical malpractice is foreseeable; can still sue doctor too)
2) If doctor was drunk, not foreseeable and doctor has higher culpability than negligence => doctor & D both still liable
3) If ambulance got into accident en route, Δ liable because Δ’s negligence exposed π to enhanced risk of ambulance ride (must
show that ambulance more likely to speed, go on other side of road)
4) If π kept walking and was hit by Δ2, Δ1 only liable if his action (ie: π was limping) contributed to second accident.
5) If lightening strike ambulance/hospital, initial D not liable b/c can’t JUST be “but for” cause. D did not expose P to greater
risk of lightening strike (b/c that is random). UNLESS, you can show lightening more likely to strike ambulance/hospital,
then could argue D liable.
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 6) If P had heart attack in ambulance, D most likely not liable b/c heart attacks random, unless P can show more likely to have
heart attack in ambulance than anywhere else (exposure to increased risk must be present)
7) Abel says doctor & ambulance negligence should be foreseeable by negligent driver.
vi. Compare Hines v. Garrett (plaintiff raped near RR tracks, p417) intervening criminal actor, RR still liable
1) Even though the intervening act was criminal conduct, the RR is still liable because FORESEEABLE.
If D has knowledge of danger and control of things to lessen danger  more likely that D liable.
vii. Compare Addis v. Steele case where guests at inn escaped fire by jumping out of window and L held liable b/c did not provide
lights/reasonable escape path. Didn’t matter if fire caused by 3rd person (arsonist) or act of god. Basic responsibility to
people staying at inn because foreseeable.
viii. Consider Comparitive negligence. What if P negligent? Can diminish role of superseding causes.
a. But if occurs w/in scope of risk that D should have, then comparative negligence most likely will not diminish D’s
liability.
vii. THE LAW: Restatement §§ 447 and 449:
1) §447: Intervening negligence of 3rd party does not absolve Δ if Δ’s negligence conduct was substantial factor in leading to
3rd party’s action, and Δ should have realized that 3rd party might act
2) §449: If the reasonable likelihood that a 3rd party may act is the hazard that makes the Δ negligent (in Hines, danger of area
was that π might be accosted), the Δ can be liable for harm caused thereby
Abel Speaks:
Abel doesn’t like proximate cause and doesn’t understand what the hell substantial factor is.
Real point of proximate cause is to take case away from the jury (Let judge take it).
Policy issues: Should we be comfortable holding less culpable defendant (property owner) liable? (Goal: compensation)

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VI. DUTY

A. OVERVIEW

1. HISTORY
In the mid-nineteenth century, duty existed out of a status or contractual relationship only. This was based in the law of persons. However,
we now have a generalized duty of reasonable care (established in MacPherson v. Buick), with exceptions.

2. SOCIOLOGY
i. What social conditions encourage/discourage rescue?
a. Cultural influence
b. Diffused over group (Kitty Genovese)
c. Cost-benefit analysis (self-preservation wins)
d. Victim’s innocence (children)
e. Identification with victim (commonality of plight in hurricanes, blizzards)
ii. Why don’t courts impose general Good Samaritan obligation?
a. Social good v. Autonomy interest (Epstein, p134-5) (autonomy is overriding theme in duty)

DUTY decision made by JUDGE, so Δ’s negligence would not be decided

Is there a duty (existence of a duty) => Judge question

Has that duty been violated (content of a duty - negligence) => Jury question
DUTY > Damages approach.

Seen as power grab by judges (normally, jury would decide question of whether “reasonable” to have duty)
>> Similar to how judges use proximate cause to take case out of jury’s hands

POLICY INTERESTS

- Respect Autonomy: no universal duty to rescue (motivates idea of “informed consent”)

- No autonomy interest where Δ is utility/corporation
- Respect Control; don’t have to help if not expected that D has control over risk (ex: if notice neighbor’s tree roots loose
from storm, no duty to do anything b/c not your property, no expectation of control over tree)
- Sacrifice Efficiency: want optimum amount of safety, which would mean universal duty
- Sacrifice Safety: by finding no duty, court never gets to the question of what could have been done differently (this happens during
negligence determination)
- Sacrifice Spreading: spread unlimited recovery across all consumers
- Sacrifice Fairness: Δ is not usually the most culpable party (Mine Safety, Randi W)

Hand Formula (failure to take safety precautions = B)

VS.
Autonomy (unfair to impose duty to take care of other people, interference) (Harper)

B. FAILURE TO ACT (when nonfeasance is misfeasance)

Rule: In general, failure to render assistance is nonfeasance (mere passive failure to take action) and P has no duty to act. However, P
assumes a duty where there is a special relationship or D is connected to P’s predicament:
Reasonable person standard: Cannot leave victim in worse off position if voluntarily try to help.
Friends, co-venturers, starting to aid, => Duty

1. SOCIAL HOST = no duty UNLESS special relationship/deny P opportunity to protect self

i. Rule: social host does not owe duty of care to guest unless π can prove that:
(1) a special relationship existed to place an affirmative duty on Δ to act (Common carrier/innkeeper, possessor of public land who
hold land open to public = Ask: financial gain by having P on premises?), or
(2) Δ denied π the normal opportunity to protect himself (Ask: P expect any protection from D? P pay D?) or
(3) D realized or should have realized action on his part was necessary for other’s aid/protection.
Example: Harper v. Herman (boat dive, p131)
a. Holding: No duty because π had opportunity to protect himself and Δ was not benefiting from Δ economically
b. Information asymmetry: P was inexperienced swimmer and D was frequent boater, but P was not a child, P could have found out
for himself. Dissent says information asymmetry enough to create duty.
c. Possible exceptions (not present here):
1) Particularly vulnerable π

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 - Children, infants, If d has greater control to make sure P isn’t worse off (ex: Herman has duty to make sure Harper
gets to shore after he’s injured)
2) Δ received economic gain from π’s presence (at issue in Carter v. Kinney; religious gathering)
- If D is innkeeper/airlines/common carrier = > duty to exercise care b/c invite public to place, public is in control of D
& public paying D so there’s expectation of protection (contractual duty almost)
3) π expected protection
- Ex: common carrier examples
4) Δ worsened π’s position
- Duty to help after cause harm: D harmed P (non-negligently) and now D has duty to help P b/c in best position to
help. Does not apply to bystanders who did not create risk of harm/cause harm
- Non negligent creation of risk: Tresemer v. Barke Doctor who puts device in P, then finds out that device might
cause injury or increase risk of injury. Doctor has duty to warn all patients w/ device (but how long does Doc have to
do this? Perhaps discourage docs from treating patients, how about overworked docs or poor paitents who don’t keep
in touch w/ doctor?)

2. CO-VENTURERS = When companions are engaged in a common undertaking there is a special relationship which implies that
one will render the other assistance if in peril and he can do so withouth endangering himself
i. Example: Farwell v. Keaton (two kids joyriding, p137) Duty if Friends in same activity
Held: Friends spending time together socially are required to come to each other's aid in an emergency
a. Rule: Duty where (1) D has voluntarily commenced to rescue P (cannot leave P worse off), or (2) where Δ and π are social
companions in same “adventure”
b. By commencing to act, Δ precludes others from helping π, therefore has duty to use reasonable care to proect the victim’s
interests. (C/A: arbitrary, because does not describe how much commenced action is enough to trigger duty). Here court got P
on 2 diff things (1) b/c he voluntarily tried to help by putting ice pack and dragging victim to diff location and (2) because they’re
friends in same social venture
c. Entering joint venture creates ongoing obligation (C/A: vague, because does not define what constitutes joint venture)
d. Dissent: Says that should be co-venturers not based on friendship.
ii. Participation in activity can help decide whether duty or not to help
Example: Haben v. Anderson (alcohol poisoning during club initiation, p142) Duty
a. π participated in intiation with twelve other members; passed out and placed on Δ’s floor
b. Duty found based on level of participation in injury-producing event (more participation, more likely to be liable)
iii. Contrast Ronald M (group of kids drinking and doing drugs, other kids weren’t, p141) No duty
a. πs sued members of group who were not drinking for failure to restrain driver before he negligently injured others
b. No duty because there were more people present (duty diffused) & because no duty to stop others. (C/A: by being there and
deciding to attend social event, that was an act which required duty to stop others from harming selves)
c. Sociological: duty more compelling when there is only one possible caregiver, as in Farwell

Principle of Utility- whenever you act, if you can act in such a way to maximize utility, you should do so- not
the law, just the principle
3. NEGLIGENT ENTRUSTMENT (Suppose parent/friend loans car to drunk)
Rule: Δ liable where he entrusted a dangerous instrumentality (auto) to a person whom the Δ knew or should have known would
operate it negligently. Extend to sellers, lessors, donors, lenders, bailors.
i. Example: Vince v. Wilson (aunt gave money to nephew to buy car, p179) Duty in giving car (for lessors/sellers, just knowing
person doesn’t have driver’s license is enough to create duty)
a. Facts: Grandaunt gave money to nephew to buy car, when she knew he didn’t pass driver’s test and had a history of substance
abuse (both dealer and aunt were aware of information, like in Randi W). Evidence showed nephew’s inexperience & lack of
training contributed to accident, which caused P’s injuries (proximate cause)
b. Rule: Δ who enables incompetent driver to puchase vehicle may be liable for negligent entrustment.
c. Duty question absolves aunt of liability (while comparative fault/AR would only reduce damages)
d. Contrast Peterson v. Halsted (p182): father co-signed with daughter, who got into accident three years later; court found no
duty because three years had elapsed and b/c co-signing not same as completely giving $$ (fairness)
e. Compare Kitchen v. K-Mart (p184): T was drunk when he purchased gun and couldn’t fill out application; clerk had
affirmative duty where Δ knows or has reason to know that the purchaser is likely to use it dangerously, as where he “belongs to
a class” notoriously incompetent to use chattel safety (discrimination against poor/scruffy?) or lacks training and experience
f. Compare: Can be held liable if give $$ for gas money to intoxicated driver who later gets into accident
g. Compare: Duty if know audience & promote behavior that’s risky esp when audience likely to be inexperienced (ex: radio host
held liable for race when it was risky and his audience was mostly young children)
h. Special knowledge: Parent gives gun to young son. Should there be duty? What if father knew son to be extremely precocious?
Such knowledge might just change jurors’ minds but still should be duty b/c firearms are dangerous (my opinion).
Rule: Commercial vendors have liability for 3rd persons and minors if they serve alcohol to minors. Social hosts do NOT have
same extent of liability to 3rd persons
iii. Example: Reynolds v. Hicks (Nephew drank at wedding reception, drunk nephew crashes car, p185) No duty in giving alcohol
a. Minor got drunk at wedding and then injured π in his sister’s car; sister would be liable for negligent entrustment (not sued b/c
insolvent); [Holding: social host not liable]

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 Reasoning: commercial vendors have more control over people they serve and have expected responsibility to monitor drinking,
plus they have $$ interest & profit motive. Social guests are a vague category and hard to determine (also social hosts aren’t used
to same responsibilities as commercial vendors).
b. Contrast Hansen v. Friend (p186): minor injured as result of intoxication has cause of action against social host
iv. Bartenders: Should bartender who serves alcohol to an obviously drunk patron may be liable to π? Some courts say only if bartender
knows P will drive. Others say that if there is a crime, then bar must show that even tho they served alcohol beyond point of
intoxication, they have burden to show that alcohol played no role in crime.
Same thing w/ sports stadiums. Liable if give alcohol when know person already intoxicated.
v. Unintentional Negligent Entrustment (keys in the ignition, then car is stolen)
a. Rule: Liability found in some jurisdictions
b. Statutory Intent: is statute intended to prevent car theft (liability) or to prevent waste of police resources

Π Commercial Vendor Social Host

Drunk Nephew Harmed
Third-party harmed by
nephew
NO DUTY DUTY (Hansen)
Not clear, but likely no duty, because drinker
shares culpability
DUTY NO DUTY (Reynolds)
Dramshot Acts make it illegal to serve alcohol Though stronger case b/c of innocent 3rd party
to minor (also profits)

4. ASSUMPTION OF DUTY by starting to aid - Issue: how much aid is starting to aid?
i. Rule: Once Δ voluntarily begins to render assistance, Δ must proceed with reasonable care, ie: must keep π safe, not discontinue aid
if doing so would leave the π in worse position than when Δ began assistance. (Restatement agrees w/ this too)
Example: Morgan v. County of Yuba (p137) = Duty based on oral promise
a. π relied on Δ’s promise to warn her before threatening man was released from jail; because π relied on the promise, Δ has
affirmative duty to warn
Example: If bystander walk past victim, victim groans, bystander asks if victim alright, then bystander will NOT be liable because not
enough of a “special relationship”
ii. Interfering with aid
a. Maldonado Rule: One who intentionally prevents a 3rd party from giving aid necessary to prevent physical harm is liable (RR
EEs attempted to dissuade would-be rescuers from helping trespasser run over by train, p142)
b. Followed in Barnes (co-worker trained in CPR ordered by supervisor not to help heart attack victim, p142)
c. If your performance of aid influences other bystanders not to help because they think you have it under control, then you will
likely be liable if you stop helping because you deterred other helpers by your behavior.
iii. Past Custom – Past custom of giving warning / assistance constitutes an undertaking, at least where P is aware of custom
Ex: Watchman usually gives signal whether train coming. P rely on watchman, watchman didn’t give signal b/c was occupied, P
then crossed tracks and was killed by train => duty

5. LANDLORDS/ PUBLIC STORES

5a. Tenants and customers are invitees.
a. Tenants: From efficiency view, makes more sense for tenants to have duty b/c they live there. BUT, landlord has incentive to
improve because they own the land long term. Not about positive externality
i. What happens is that landlord increases rent. Some say such a duty increases cost for Ts too much. But really, the cost of
security would be less than if no security. Hand formula. Negligence is only where cost of safety is less than the liability. The
problem is that the proactive costs are invisible.
ii. Concern: then wouldn’t tenants suffer because L would try to take $$ from rest of tenants when lose out on tort claims? Well,
free market would stop L from raising it too high… but think that if no tort duty, then worse for tenants not to even receive
compensation
i. Example: Kline v. 1500 Mass. Ave. Apartment Corp. (tenant assaulted in common area, p206) duty
a. Rule: Landlord has duty to protect tenants from foreseeable harm of misconduct of third parties
b. Pre-requisites:
1) Pre-existing relationship (contract or invitation)
2) Landlord has notice or should have realized risk of harm to tenants by third parties (past incidents)
3) Cost of safety lower than potential harm (locks, telephones, lighting)
c. POLICY
1) Autonomy: respect tenant autonomy
2) Efficiency: tenants could not otherwise take measures in common areas
3) Spreading: pass costs to tenants through rent. Need to battle “free ridership”  everyone help benefit
d. Duty, even where 3rd party acted criminally in assaulting π
ii. Example: Posecai v. Wal-Mart Stores (customer mugged in Sam’s Club parking lot alleges inadequate security, p206) no duty
a. Rule: Business oweners have duty to implement reasonable measures to protect patrons from criminal acts that are
foreseeable
Very high degree of foreseeability is required to impose duty to post security guards, but lower degree of foreseeability could
impose duty of lesser security measures (balance degree of foreseeability with cost)

35
 b. Holding: Δ did not have requisite foreseeability to impose duty to post security guards. Plus, the degree of foreseeability was not
sufficient to support duty to implement lesser security measures
1) Evidence: only 3 prior incidents in past 6.5 yrs, even though area high crime rate, open only day hours
c. FOUR TESTS FOR DETERMINING FORESEEABILITY:
1) Specific harm rule: owner is aware of specific, imminent harm (too narrow; CA in Tarasoff)
2) Prior similar incidents test: look at past history whether owner is on notice (how many is enough)
 look at nature, extent, recency, frequency, similarity to crimes in question (vague)
3) Totality of the circumstances (most common, very broad): look at prior incidents and foreseeability of future events
 look at nature, condition, location of land along w/ relevant factual circumstance pertaining to foreseeability
4) Balancing test: foreseeability/gravity of harm VS. cost of prevention *** court follows this approach
i) This is a form of the HAND FORMULA (B, P, L)
ii) Approach used in CA and Tennessee only
iii) This test needs high degree of foreseeability to impose duty to provide security
iii. Jury v. Judge power
a. Juries normally decide what constitutes reasonable care
b. Judges take over where public policy concerns arise and are of utmost importance
c. Why duty and not negligence in Posecai?
>> Depends if you say nonfeasance (didn’t have security guard – narrow interp) or misfeasance (put stores there and
caused such a crime to occur – broad interp)

iv. Resisting robbery & apprehending perpetrators

e. Majority of courts say shop owners owe no duty to comply with armed robber’s demand for money in order to avoid risk of harm
to patrons.
f. Many externalities (future hostages saved b/c of policy, the person who dies heirs can sue future hostages saved, store lose
money)
g. Why do you think court decides not to follow economic analysis? Think about what’s really going on here…
EX: Boyd v. Racine Currency Exchange: Ct held that even though teller refused to give money when robber threatened to shoot
customer and customer died, teller had no duty to acced to criminal demands
i) Policy concerns: if robbers know this, they will be more likely to rob.
ii) Robers unpredictable and ofter injure ppl even when no resistance
iii) Recognize right to defend property w/ reasonable force
Dissents: argue that reasonableness should be up to jury and owners should sacrifice some property for safety

6. PROFESSIONALS - Least support for duty, but cheapest cost of prevention (danger is known)
i. Rule: Because of special relationship between doctor and patient, Δ has duty to exercise reasonable care to warn/protect
foreseeable 3rd party victims, when Δ knows or should have known that patient posed a serious threat.
Example: Tarasoff v. Regents of the Univ. of California (psych predicted that Poddar would hurt π, p158)
a. Facts: Poddar threatened Tarasoff, picked up by campus police and was interviewed by Dr. Moore, Dr. determined P was not a
threat to himself or others; P murdered T. Doctor held liable b/c predicted that P would kill but negligently failed to warn
b. Factors to think about:
1) Must be foreseeable victim: no duty where Δ is unsure who to warn, b/c B too high (Thompson, p168)
>> Cts hold that genetic disease will affect born children, so yes, genetic disease = foreseeable.
2) Do not extend duty to warn where intervening would be more dangerous (Lego v. Schmidt, passenger failed to warn driver
of impending accident, p164)
3) Limitations narrow duty to limited actors, such as therapists with credentials
c. PRO-DUTY: special relationship (Harper, Farwell)
d. ANTI-DUTY:
1) Autonomy value (wouldn’t impose such a duty on public in general)
2) Danger of false positives (inconvenience, defamation)
3) Undermine trust of therapeutic relationship
4) Destroys/distorts value of therapy (avoid certain topics, over-warn, reject serious patients, keep no records)
5) Diminishes benefit to patient (thus to all members of public)
e. Depend on reasonable knowledge by doc, but now it’s actual knowledge that leads to duty.
ii. Contrast with CA courts
Bellah v. Greenson (patient committed suicide, p167)
a. California Courts: No duty to warn others where harm is self-inflicted harm or property damage
b. Abel disagrees with self-infliction harm part. Why can’t you sue for suicide but you can for murder?
Immunity to therapists when fail to warn except when (1) patient communicate serious threat, (2) physical violence (3) against
reasonably identifiable victim(s).
iii. Some Courts reject Tarasoff
Ex: One court ruled that physician didn’t necessariliy have duty to notify any person that patient has HIV. Just have to discuss matter
w/ patient and attempt to obtain voluntary consent for notification of his/her contacts.
iv. Contrast Clarke v. Hoek (senior doctor observed junior doctor, p165)
a. Senior doctor had no duty to patient, because was observing only and had no special relationship to patient
1) Could argue for duty based on opposite of Lego passenger, because senior doctor clearly had more experience (unlike car
passenger, where we assume driver has requisite experience)
v. Contagious Diseases & Duty to warn 3rd parties
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 Hawkins: Facts: D was negligently told she was negative for hepatitis C when she was positive. She later infected a man who became
her husband. Husband found out he had disease and sued doctor. Ct held that b/c husband was nonexistent and unidentified
at time of negligence, then no liability
>> ABEL disagrees. Says this is ridiculous b/c torts is all about unidentified victims
Reisner v. Regents of UC: Facts: 15 yro became HIV infected. Doctor didn't tell her about it. She became intimate w/ someone and
gave him HIV. He sued doctor saying that doctor should have told him. Ct held no duty to inform here because of privacy
interest. Cali law thinks privacy interest is more important than doctor's liability to 3rd persons. >> ABEL agrees with
reasoning here.
vi. Creating risk v. failing to prevent it
Ex: Some courts state liable if inject mixture of drugs and no liability if just treat with drugs (applies where mixture of drugs is not
recommended by medical society). Abel thinks this is ridiculous, still should have duty.
vii. Unborn children: Most courts say one does not owe a duty of care to unborn child (Conboy – doctor cannot take patient’s children
into account)
Exceptions:
> viability – if child can survive outside womb, then can be considered “person.” Also depends on state’s laws on how to
define “person.”
> DES cases: sometimes manufacturer held liable for drug that affects reproductive system.
> ABEL: Big arg over who’s interest is more important, mother or fetus? Should doctor be more loyal to mother/client than
other 3rd parties like unborn?

viii. RECOMMENDATIONS: Rule: Once Δ writes letter, Δ has affirmative duty to 3rd person (student) not to misrepresent the
facts if such misrepresentations would present a substantial, foreseeable risk of physical injury to the third persons
(Restmt 2nd §310-11)
Factors to consider if ct should impose liability:
1. Foreseeability & causality (but why foreseeability when this factor is considered in negligence by the jury
already? – Abel)
1. Moral blame
1. Availability of inusrance or alternative courses of conduct
1. Public policy considerations
Example: Randi W. v. Muroc Joint Unified School District (school failed to disclose teacher’s sexual misconduct in writing letter
of recommendation , p148) – Not about duty to warn, it’s about not making misrepresentations when might cause foreseeable
injury to 3rd party.
a. Facts: student molested by new Vice Principal, hired based on positive references from past schools; schools failed to disclose
prior sexual misconduct
b. PRO-DUTY:
1) Child welfare (over-riding concern)
2) Teachers were deceptive b/c made it seem like he was fit to interact w/ female students when he was NOT
c. ANTI-DUTY:
1) Discourages recommendation letters, increasing information cost (will have to do background research)
2) Difficult to move jobs based on burdened employment process
3) False positives: risk of over-disclosure and invasion of privacy
d. Applying factors
1. Cause = yes teachers could have reasoned that teacher would not have been hired except for their recs; foreseeable that
student would be hurt
2. Moral Blame: Teachers morally blameworthy
3. Liability insurance won’t cover all injury, and Ds could have protected selves from liability by saying “no comment” or
just state basics.
4. Public policy clearly recognizes importance of preventing future harm to children.
Externalities:
When deciding whether to impose duty, courts need to take into account externalities b/c juries can’t
Ex: In Randi case, teacher cannot sue in defamation suit if districts lie in rec b/c of qualified privilege. Courts should take this
into account.

7. FAMILY MEMBERS
i. Relatives of victim or offender have no duty to report crime
a. Deontological principles: uncomfortable requiring family to turn on each other (disrupt families and interfere with discipline)
ii. Parent / child litigation allowed: Andre v. Pomeroy; Also, child can sue for sexual abuse
iii. Spousal suits: With destruction of unity between HW, wives can sue over property and contract disputes. They can now sue each
other. Spousal immunity (can’t sue other b/c they are ur spouse) is abolished now.
iv. 3rd party cannot sue parent for negligence parent exhibited towards child. (as counterclaim to parents’ claim). Note 8 on pg.226.
Issue: costs don’t spread. Recovery to family will diminish. Cost of accident does not spread.
a. Cases … focus on (1) parental autonomy issues and (2) cultural differences and see if they are at issue.
>> Economic analysis doesn’t apply here because parents aren’t trying to maximize their profits
v. Duty of parents not to allow children to hurt others: accding to Restatement…
Parent is under duty to exercise reasonable care so to control minor child as to prevent it from intentionally harming others of
from so conducting itself as to create an unreasonable risk of bodily harm if parent
• Knows or has reason to know that he has ability to control his child
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 AND
• Knows or should know of necessity and opportuinty for exercising such control

v. Example: Broadbent v. Broadbent AZ (parent answers phone, child sinks in pool, p214) no parental immunity Imposes parental
duty (child welfare overrides parental autonomy). Summary judgment case, so said issue of fact there mother might be found to
not have acted as a reasonable & prudent parent in such situation.
h. General examples where parental immunity never has applied: parent acts willfully, wantonly, recklessly, child emancipated,
child or parent dies, those as guardians don’t have immunity
i. Rule: Reasonable Parent Test: parent’s conduct judged by whether that parent’s conduct comported w/ that of a reasonable and
prudent aprent in similar situation
d. Policy against this duty (want parental immunity)
1) Difference in parental style/culture should not be resolved in court (Ct says needs reasonable standard)
2) Danger of false positives: parent could become over-protected at expense of child’s freedom
3) Fraud and collusion (but ct says every law suit has that risk
4) Deplete resources (Ct says these suits only occur when injury happens)
>> No deterrence value here, no need for moral judgment. It’s all about using liability insurance to spread the loss cost onto the
insurance companies who have loss insurance
>> NOTE: we don’t allow cultural perceptions to influence hand formula, but we do here for reasonable parent test
>> Is this case about whether parents use correct parenting behavior? No
vi. Contrast Holodook v. Spencer (p218): No duty, because there is no cultural consensus on how to parent (autonomy interest). Says
not negligent entrustment (don’t owe slide or give child something dangerous). Protect parents where they just do something normal
that create risk but are just negligent in supervision.

Negligent enablement Negligent Supervision

Parent Duty of reasonable care Duty (Broadbent)
No duty (Holodook v. Spencer)
Stranger Duty of reasonable care No duty (nonfeasance)
- Becomes duty if Δ has undertaken care
vii. Notes on Family suits
a. Recognize there are certain actions inherent to parental role that would be torts to strangers (spanking, Time out)
b. Powerful concerns are burdensome liability & family stress when considering negligent supervision.
c. Harm to fetus: should we draw the line if we see the fetus as part of the mother?
d. Narrowing the “reasonable parent” – should we say “reasonable Christian Scientist parent”? Some courts do this, and others say
religious beliefs must yield to childs medical care.
e. Note the role of whether insurance available is an influencial factor in determining if there’s duty.

8. WHEN GOVERNMENTAL ENTITIES HAVE A DUTY

Abel: Should we apply hand’s formula analysis? Is there a persuasive reason not to?
Government has traditionally had immunity. Holmes’ view was that government had sovereign immunity because logically there can be no legal
right as against the authority that made the law on which the right depends. Courts do not to second-guess the discretionary and policy decisions
made by administrative officials.
Courts recognize 3 types of governmental action: (1) resource allocation (Riss: no duty), (2) discretionary acts (Friedman: duty), (3) ministerial acts
(Lauer: no duty). Duty is imposed where government is doing “proprietary activity” (discretionary act).
Government cases: look at whether action is proprietary or governmental activity.
Police and military is core government activity (state has exclusive power)
i. Resource Allocation: (Riss v. City of New York, p226) no duty (won’t infringe on resource allocation)
a. Facts: Woman went to police twice for help after ex-boyfriend’s threats; police refused to help; ex-boyfriend hired someone who
injured her with lye (blind, scarred etc…). Keep in mind, the threats were every night and w/ gun
b. Rule: Municipal had No duty because court has no power to determine police’s resource allocation. The public votes on how
resources are allocated and this is a political decision.
Would be unrealistic to require this type of duty when so much crime, too little money to do it.
c. Utility: not applicable, because not in a place to weigh the cost-benefit of public safety vs. public education
d. Distinguish: Police do have liability when they undertake responsibility to particular person/members and expose them, w/o
adequate protection, to risks which them become actual losses
e. Dissent: Fear of financial disaster is a myth. All negligence municipal cases is about resource allocation. Individual should not
bear burden of protection, city should. The needed limit would just be that police act as reasonable person under circumstances.
Should just put more money into improvement of administration.
f. CORE OF CASE: what’s the police’s responsibility to public at large?
ABEL: says he agrees that if the negligence to protect was because of resource allocation, then he would agree with the majority. It’s
a political decision where to put resources. He doesn’t think the tort system should be used to chance a truly political decision
(resource allocation).

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 • Major consequences for resource allocation, more likely for D to have governmental immunity; minor consequences
for resource allocation, more likely D will have liability.
• Cases with children that escape school during school hours and get hurt… does school have duty to make sure they
don’t escape and aren’t hurt? He thinks it’s a stretch. Could argue allocation of duty from parents to school etc
• Educational malpractice: Where someone wasn’t teaching well enough. Might say that cause in fact test would be
stringent. There are limiting conditions where if so extreme, still can have liability

>> Don’t want to apply mere efficiency analysis to governmental action. Using duty analysis is needed instead of efficiency, because don’t’ want
torts making governmental decisions. Separation of powers

** Difference between discretionary (conduct involving exercise of reasoned judgment cannot result in municipal’s liability even when
negligent) and ministerial (conduct requiring adherence to governing rule w/ compulsory result – can result in liability for negligence for
municipal) governmental acts.
ii. Discretionary Acts (Friedman v. State of New York, no median barrier, p244) duty, municipal held liable where State was made
aware of a dangerous highway condition
a. Facts: Driver injured due to lack of median barrier in the road; city had notice about the danger but had delay in building it (5
year delay)
b. Rule: If city makes investigation, then makes a reasonable decision (discretionary) after the investigation, it will be immune from
λ. However, if city fails to implement its plan within a reasonable time, will be liable. λ may result from failure to execute plan
with a reasonable amount of time.
c. NOTICE => Do nothing (Liable, P wins)
=> Investigate
=> Unreasonable decision (P wins)
=> Reasonable decision [discretionary]
=> Decide not to implement (must be reasonable, Cataldo where accident happened right after
study and previous study was incorrect and P loses). If unreasonable then gov’t would be liable
=> Decide to act
=> Implement (no liability to P)
=> Unreasonably fail to implement (liable, Friedman – 5 yrs delay, Muller – 3rs delay,
Cope) [ministerial]
If there was delay, municipal must show reason like funding problems, advice from experts etc.
iii. Ministerial Acts
RULE: If ministerial, then removes issue of governmental immunity, but ministerial negligence may not necessarily be tortuous. To
sustain liability against a municipality, duty breached mst be more than that owed the public generally
ex: (Lauer v. City of New York, reporting error, p237) no duty (implicates resource allocation but Abel says no)
NOTE: Abel feels that this case was wrongly decided. Yes, you have negligence, damages, etc. Nonfeasance? Probably not.
Misfeasance  most likely because they actively made wrong decision. He said the test here is foreseeability, and Abel says D
here knew that someone would be charged with homicide because listed cause of death was “foreseeability.” He says it’s silly
that identity of person who might be charged needs to be known, many torts don’t require someone to know identity of tort
victim for conduct to be a tort. He says the floodgates won’t be open ($$ wise) b/c it’s a very narrow set of facts, narrowly can
be applied)
a. Facts: Medical examiner recorded that child died of blunt injuries to neck and brain; later discovered it was an aneurism but did
not edit his report; father mistakenly investigated for murder for 17 months
b. Rule & Holding: No duty to father because not a foreseeable victim who could be affected by the error (c/a: examiner filed
homicide report, so knew that someone would be unfairly investigated; also disincentive to tell truth). Ct says no duty for agency
to impart objective info to authorities for homicide suspects
Father couldn’t point duty owed to him by Office of the Chief Medical Examiner, they only had to report to appropriate
district attorney. Ct said permitting duty would be rewriting the statute
RULE: Violation of a statute resulting in injury gives rise to a tort action only if the intent of the statute is to protect an individual
against an invasion of a property or personal interest.
Rule: Diff between protecting individual and having a duty to protect public as a whole.
c. View as nonfeasance: failure to correct mistake
d. View as misfeasance: made the mistake and set the process in motion
e. No duty in Lauer under special relationship analysis made by Cuffy (family relied on police protection after they called police
and police assured they would help (Factors for duty of police: affirmative promises, knowledge that inaction could lead to harm,
direct contact between municipal and injured party, Party’s justifiable reliance on municipality undertaking)
f. EXCEPTIONS to THIS RULE
1) Jean v. Common wealth: Ct held clerical error by D parole authority which caused police to release prisoner who
subsequently raped P was liable. Liable b/c said existing tort claims act inconsistent w/ broad “public duty” limitation on
recovery.
g. NOTES: Judges have absolute immunity (can still cause injury intentionally, maliciously, corruptly, and immune from civil suit);
prosecutors have absolute immunity in both state and federal states (as long as the are conducting integral part of judicial
process like interviewing); police have good faith defense, qualified immunity.

REVIEW of Sovereign Immunity

1) Governmental activity should be punished by tort system or not?

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 1. Propriety duty  normal negligence standard
2. Governmental? Then ask question of resource allocation or other.
a. Resource Allocation (Riss - question is whether police should allocate resources to this)… if so, then
Government cannot be held liable
b. Other? Then ask Discretionary or Ministerial Operational
i. Discretionary - doing what government wants them to do, but sometimes don’t make correct
decision (Friedman, Cope)  no liability, deference to government
ii. Ministerial Operational – violating or not following orders, decisions that contradicts statute’s
(Lauer, Cope)  Yes liability
iii. ADDITIONS TO THE MUNICIPAL LIABILITY RULE!
(Cuffy v. City of New York, p231) – still no duty b/c they were not relying on promise anymore, but this case creates factors where
could be liability for municipal.
a. NY Factors: There is a special relationship and duty is imposed where:
1) An assumption by the municipality, through promises or action / or an affirmative duty to act on behalf of the party who was
injured,
2) Knowledge on the part of the municipalities agents that inaction could lead to harm
3) Some form of direct contact between the municipality’s agents and the injured party (Bizarre b/c if 3rd person contact police
for unconscious person, then they are relying on police yet this doesn’t fulfill the factor)
4) Party’s justifiable reliance on the municipality’s undertaking

b. Schuster v. City of New York, p230 duty (increased risk to victim; reliance on police)
1) Police solicited public help: (1) benefited from information provided by the informant, (2) aware of increased risk to
informant (basically taddle teller was hurt after informing police. The police knew he was threatened)
2) Think diff between this and Riss is misfeasance here, and nonfeasance in Riss. Having made decision to put out posters, the
police made a decision to allocate resources here to the cause and therefore that created their duty to protect him
c. Davidson v. City of Westminster, p226 no duty (did not expose victim to increased danger)
1) Surveillance officers had no duty to warn people in Laundromat, because warning would impose too broad liability
(implicates resource allocation) and police did not increase risk of harm
d. Sorichetti v. City of New York, p230 duty (knowledge that inaction could lead to harm)
1) Police had issued protective order (has little to do w/ police enforcement), so were aware of high threat (knew of his violent
history), assured that at some pt they would take action
2) Same problem as Harper and Farwell; creates perverse incentive to do nothing in the first place
e. Weiner v. Metropolitan Transportation Authoirty, pg. 236 no duty
1) No duty to prevent assualt in the subway tunnel (although private entity would have had duty of reasonable care because
here the D is municipal, then more worried about impact upon utilization of transit authority’s resources). Followed Riss.
f. Florence v. Goldberg, p233 duty (reliance on guard)
1) Once school provided guard, it had duty to provide substitute guard (decision to have guard in the first place was resource
allocation, so would not have duty to provide guard in the first place)
iv. Federal Tort Claims Act (p249)
a. 2680(a): no liability where (1) act or omission was done in the execution of a statute or regulation, or (2) based
upon the exercise or performance, or failure to exercise or perform, a discretionary function
b. Abolishes immunity for negligence or wrongful acts or omissions by government employees, plus most intentional torts by
federal investigative or law enforcement officers
c. Difference between planning decisions (policy oriented) and operational decisions which are of nondiscretionary nature
d. TWO STEP RULE FOR WHETHER ACTION EXEMPT FROM SUIT UNDER STATUTE:
1) Any “federal statute, regulation, or policy specifically prescribes a course of action for an employee to
follow?
Yes => No liability, exempt from liability. EE had no “choice”
No => 2) Next question: “if the EE didn’t follow directive, if the discretionary acts of government
EE are of nature and quality that Congress intended to shield from tort liability?
Yes (falls within social, economic, political policies) => no liability
No => liability
EX: Cope v. Scott, p250 municipal inaction (omission under Fed Tort Claims Act)
1) Windy, two-lane road originally intended as parkway for pleasure driving, but became major commuter route carrying
20,000 cars daily
2) Failure to resurface road: policy decision, because involved allocation of funds, safety and inconvenience of repairs weighed
against safety hazard avoided by filling hole; city listed as low priority and court will not second-guess this discretionary
decision; (2) failure to post signs (viewed more critically than roads, because they are cheap and there are already signs
nearby, so can’t make natural preservation argument)
3) Failure to post warning signs: many signs up already, no aesthetic concern or that concern was not deemed by the court to be
major; not fraught with same public policy considerations
4) Contrast: cases where there is claim of historical beauty/integrity; in which case the duty question would counterpose
utility (what is reasonable care) with other incommensurable value (aesthetics, autonomy, etc)
In the end, ask what was the purpose of the statute and is it fulfilled (19th century looking gas lamps)

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C. DEFINED ZONE OF DUTY
D.

1. CONTRACT (defines “zone of duty”)

i. No Contract = No Relationship = No Duty
a. Main issue: foreseeability (zone of duty), public policy to keep rates down for public.
> Party injured must be identifiable group where injury must be direct and demonstrable, not collateral (ex: Palka where fan fell
on nurse… identifiable group = hospital employees, patiens & visitors)
b. UTILITIES CASES
1) No deterrence value b/c utilities have a monopoly
2) No spreading value, b/c individuals subsidize larger, high-risk corporations injuries through their fee hikes
ii. The Moch Case (warehouse burned due to lack of hydrant water pressure, p143) Limited zone of duty
a. Facts: π’s warehouse caught fire; claimed that water company’s failure to supply adequate water permitted spread of fire to the
warehouse.
b. Rule: Water co. had contract with city so had limited “zone of duty” to city only, not residents. Δ guilty of negligent omission
(nonfeasance = failure to act) because of denial of a benefit.
c. Contrast with 19th century rule: RRs were liable for damages caused by steam engines to any landowner immediate adjacent to
tracks (limited zone of duty)
d. Misfeasance argument: by contracting with city to provide water, water company prevented anyone else from providing water
(customer reliance). Abel agrees with this view.
iii. Strauss v. Belle Realty Co. (p144) Foreseeability requirement & contract requirement. Ct here more interested in limiting orbit
of duty to “limit the legal consequences of wrongs to a controllable degree”
a. Facts: After major blackout caused by negligence, π went to basement for water, fell on steps, and sues Con Ed for contract
failure. P was tenant in L’s apartment complex and L had contract with Con Ed.
b. Rule: Company does not owe a duty of care of a private individual who is not its customer
c. Foreseeability (fairness): Duty extends only to specifically foreseeable πs
d. Problem with duty: never-ending liability: if court expanded liability, there would be limitless πs and rates would go up for
everyone (spreading)
e. Misfeasance argument: by contracting with landlord, Con Ed excludes other from providing utility (customer reliance)
f. Irony: Contract creates duty to landlord, who would never be hurt Tenant has no choice of electric provider.
iv. Palka (lighting fixtures fell in hospital, p181) Maintenance D had duty to people in hospital
a. Facts: lighting fixtures fell and injured person in hospital; building maintenance co. claimed it had contract with hospital, not
patients.
b. Problem with no duty: hospital could never be injured. Can’t just be liable to hospital
c. PRO-DUTY:
1) Safety: sends message to Con Ed
2) Spreading: across customers, not π burden
d. ANTI-DUTY:
1) Spreading: increased duty means increased litigation, so would be paying money into legal system to redistribute money to
the same people
2) Spreading: People in lower risk area would subsidize people in higher risk area
3) Spreading: Individuals would subsidize corporations, who use the most utilities
v. Pulka (pedestrian hit by car driven by independent driver exiting parking garage, p181) - No duty if not employee that causes harm
and if entity cannot control people/independent drivers.
a. If Strict Liability: Garage would be encouraged to put up more signs, bells and whistles to signal exiting cars
b. By deciding no duty, never get to question of what could have been done differently (this happens in negligence determination)
c. Problem with duty: duty would expand garage liability to unforeseeable victims (unlimited zone of duty)

2. NO PRIVATE RIGHT OF ACTION

i. Rule: No private right of action where it would be inconsistent with statutory scheme
Policy: Keep in mind, sometimes statutory limitations on liability is to encourage/discourage certain behaviors. Ex: No med mal liability if
doctor volunteer to help someone in distress/emergency situation.
Example: Uhr v. East Greenbush Central School District (school failed to perform scoliosis exam accding to statute, p151)
a. Held: When statute silent on private right of action (civil liability), then use 3 part test to decide whether civil liability fairly
implied. Here, did not fulfil #3 requirement
b. CRITERIA FOR DETERMINING WHETHER PRIVATE RIGHT OF ACTION:
1) Is π one of the class who the statute is intended to benefit?
2) Would private right of action promote legislative purpose? (Legislative intent at time statute made & does private right
promote intent?)
3) Would private right be consistent or inconsistent with legislative scheme?
c. This case: #3 not satisfied
3) Statute has its own enforcement mechanism (Commissioner responsible for enforcement)
d. Purpose: legislature has effectively granted immunity to schools, to encourage them to perform exams without fear of liability
e. If duty, could use threat of misfeasance as incentive to do tests. Problem here is that the enforcement mechanism the statute
provided was ineffective. ABEL disagrees w/ reasoning here. Says could argue expression unius where b/c statute didn’t
mention misfeasance freedom from liability, then still could have private claim.

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 E. LANDOWNERS/ OCCUPIERS
Most courts still follow three-part categorization:
1. Invitees: business guests
a. Definition: (1) persons invited onto land to conduct business with the owner, (2) persons invited as members of the public, where
land is held open to the public
b. Duty: Landowner owes duty of reasonable inspection to find hidden dangers and to take reasonable efforts to fix a dangerous
condition
c. Policy: Business owner better able to carry and spread losses through business
2. Licensees: social guests
a. Definition: Person who has owner’s consent to be on property but does not have business purpose
b. Duty: Landowner has duty to warn the licensee of any danger that the owner knows of
c. Policy: Social guests assume risk of harm/injury (common understanding)
d. Exception: large, unoccupied land
i. CA withdrew duty to guests
ii. Justification: Want land to be accessible (hospitality) but don’t want to burden land owner who does not benefit (autonomy)
3. Trespassers
a. No duty: Landowner has no duty to trespasser to make land safe, warn of danger or protect trespasser.
Exceptions:
i. Children: Landowner owes duty of reasonable care to trespassing child in certain cases
1) Children can’t be expected to be aware of danger
2) There’s foreseeability question too where if know children likely to trespass, then you have duty.
Exceptions: Moving train and 9 year old. Ct says 9 yr old should have known of risk.
4. Exceptions:
a. No duty where person commits felony on property (moral interest trumps utility interest) (p203)
b. No duty to those on recreational public lands. Owners of land used for recreational puposes, the standard is only liable if
have willful misconduct.
4i Other distinctions with 3 categories
j. Open and obvious dangers reduced liability to landowners towards invitees
k. Active harm by landowner (active negligence doctrine) increases liability to landowners to licensees.
i. Why this difference? It’s not about creation of risk v. existent of risk. What is it about?!?!?!
4ii Problems/ Advantages of 3 categories
- Predictability: One can argue more predictable to D but at the same time, it’s dependant on subjective intent on invitee for public areas
(ex: to hospital/ store).
- Autonomy: Reason for keeping 3 categories. Don’t want to voluntarily have to use reasonable care for those where no owner-visitor
relationship.
- Efficiency of system: See notes after Carter. Idea of requiring material benefit if want reasonable care for guests… create efficient
system because now landowner has incentive etc.
4iii POLICY INFLUENCES
a. About how you think about land and landowner’s duty.
b. Compare w/ Norway, so little people that there’s no such thing as trespass! Can just camp on someone’s place.

5. Examples of Traditional 3 category view

a. Carter v. Kinney (slip and fall during bible study at home, p190) licensee v. invitee
i. Rule: Duty to licensee to warn of dangers the owners knows of
ii. Holding: Δ not aware of danger, so had no duty to warn
iii. π claimed to be invitee because owners were hosting bible study; However must be material gain from public invitees, and
benefit to reputation is not enough (unless perhaps increase benefit reputation for material gain). Spiritual gain not enough. To
argue for D, want to argue $$ or material gain like they were considering an economic enterprise from meeting or it was for
business networking. If D bought a donut… that’s a material benefit, but if no expectation that D would bring donuts, might not
count? count!!
iiii. Importance of material benefit: if impose duty of care on landowner when they don’t get material benefit, create positive
externality. Benefit to guests for free shared by everyone but landowner is only one that pays. Inefficient system.
b. Bennett v. Napolitano (walking dog at 2am when tree fell, p194) arbitrary categories
i. No duty because π was walking at 2am (trespasser), but was open to public until 9pm (would have been invitee)
6. CATEGORIES REJECTED IN Rowland v. Christian (p197)in favor of single “reasonable person” standard
i. Owner must act as reasonable person in view of the probability of injury to others; scope of duty is determined by FACTORS:
a. Foreseeability of harm to π (must be able to identify particular person in danger) [proximate cause]
b. Closeness of connection between Δ’s conduct and π’s harm [cause-in-fact]
c. Moral blame attached to π’s conduct [fairness]
d. Policy interest in preventing future harm [deterrence]
e. Available, cost and prevalence of insurance against the risk [spreading]
ii. Each of these factors is asked at another point, so duty determination is redundant
iii. ANTI-CATEGORY
a. Arbitrary to determine owner’s obligation by the guest’s status. Just trespassers are separate
b. Standard care: Idea that if can take effort for reasonable care to invitees (public), then no more effort to use care for licensee.
Remember… then need foreseeability if have this idea.

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 c. Example: Presho (p200): Customer’s status changed when she went to backroom to get box, with manager’s permission (became
licensee rather than invitee) arbitrary
iii. PRO-CATEGORY
a. Predictability/foreseeability
7. Categories condensed in Heins v. Webster County (Nebraska, p197)
i. NE collapses invitees/licensees and retains trespassers as separate category
Rule: Eliminate distinction between licensees and invitees by requiring a standard of reasonable care for all lawful visitors (not
trespassers)
Focus on foreseeability of injury instead of the status of person.
Factors for reasonable care to be decided by jury:
(1) foreseeability or possibility of harm
(2) purpose of entry
(3) time, manner, circumstances under which entrant entered place (if more public, then more liability)
(4) use to which premises are put or are expected to be put
(5) reasonableness of inspection, repair/ warning
(6) opportunity and ease of repair or correction or giving or warning
AND
(7) burden on land occupier and or community in terms of inconvenience or cost in providing adequate protection.

8. California Law
i. Protect land owner’s liability against tresspassers (ppl in middle of enumerated felonies & recreational use).

F. Pure Emotional Harm (Economic harm can be recoverable too from physical injury if show liability)
Rejects a duty of care to prevent infliction of emotional distress on another. Imposes duty to exercise due care not to subject others to a
foreseeable risk of physical injury, through physical impact or threat, that might foreseeably result in emotional distress and consequential
physical injuries to them.
ISSUES:
• hard to see connection between emotional harm and action (proximate cause)
• cultural values infused as to what we should be upset about.
• ABEL: Can believe a principled argument for no damages for emotional harm/ general damages. With Joe Dial, would give
medical expenses etc, but not general because those don’t help since he won’t be able to get better etc. Money won’t make
you stop thinking about emotional problem/uncureable injury
• ABEL: Negligence is not pigeon holed. Hates bright lined rule. Why pigeon hole here in emotional damages and no where
else? He likes duty of reasonable care owed to the rest of the world. He feels juries would be able to determine if
something is ridiculous or not. Why take it away from juries?
o Have floodgates opened? Studies show 10% of people of serious torts sue. Abel says no.
o Gatekeepers: Lawyers decide which cases to take, and they want the winning cases because then they’ll get paid.
Categories of Recovery – lack of sympathy/ idea of moving on in tension
1. Impact Rule
a. Impact => results in emotional distress
b. ED => results in physical harm
c. Reasonable fear/ immediate bodily injury (Falzone)
2. Zone of Danger
3. Present physical symptoms (Buckley: asbestos particles not enough) [Tension btw fraud claims & duty to grant deserving P’s chance at
trial]
Conflict over whether symptoms should be serious or medically diagnosable/objectifiable. Most cts say no
compensation for temporary fright, disappointment or regret. Cts in confusion about physical symptoms. Ex: periodic
panic attacks > transient symptoms such as vomiting (still arbitrary)
4. >50% probability (present symptoms, but only 49% chance of injury) => arbitrary line
5. Reasonable / severity requirements (Gammon) – says bright line rules are arbitrary and can look at it diff way. All other
cases creates new rules, but arbitrary rules
6. Dillon Rule
a. Awareness (visibility)
b. Proximity in time and space
c. Close relationship

Tension between brightline rules (need for standarization) vs. low predictive ability (mostly gray areas, difficult to draw lines)
Problems when allow ppl to recover for fear of cancer/asbestos etc:
- If compare to lost opportunity cases, if they try to get $$ where calculate increased risk, then problems where what if get cancer,
can they sue again and get rest of % of risk or what if they die, can the D sue to get money back if P didn’t get cancer.
Ex where can injure w/o tort: sports
Ex where can injure emotionally: breaking up romantic relationship

1. Impact Rule – we see courts willing to relax bright line rule… start pushing back either way (struggle of courts)
i. RULE: When negligence causes a reasonable fear of immediate personal injury and the fright results in

43
 substantial bodily injury or sickeness, the injured person may recover if such bodily injury or sickness would be
regarded as proper elements of damage had they occurred from an actual direct physical injury
EX: Falzone v. Busch (witnessed husband getting hit, p261) – also about damages (then should go to jury). Duty goes
to judge. So why is it duty question, where did they draw the line, and is it a defensible line?
Interp of Rule: Don’t require actual impact, but must be one of these situations:
(1) Impact (from negligent act) => resulting in emotional distress (Seffert, Dial)
(2) Emotional distress => resulting in physical harm
(3) All of the following:
(a) Reasonable fear (objective standard; Most ppl suffer fear = reasonable) : but why accept subjective
standard for physical pain? Easier to prove that than prove emotional injury
(b) Immediate (proximity in time)
(c) Fear of personal injury
(d) Subsequent bodily injury or sickness (easy to prove: dizziness, nausea)
(e) Substantial bodily injury or sickness (first threshold requirement, no minimum before this – in physical
injury, no minimum, anything small is compensable. HOWEVER, emotional injury has a minimum where
before that no $$)
b. POLICY for requiring physical impact:
(1) Moral: Δ only legally responsible for natural and proximate results of his negligent act. Previous courts are
trying to say that it’s unpredictable how much fear/physical symptoms someone would experience from incident.
(2) Excessive litigation: would open floodgates of litigation for all fear
(3) Fraud: could easily be faked (not an actual concern; this has not happened in other jurisdictions because
courts have mechanisms for detecting fraud)
c. Implications: Allows recovery without physical injury, but creates brightline rule with arbitrary criteria.
ii. Recovery:
Wooden v. Raveling: Recovery for emotional distress when D negligently drove car up to P’s property and nearly hit P
i. Posner: passengers should be able to recover after 30 second plunge
ii. Airplane cases that find duty: tortfeasor will spend more on safety (any increased cost is spread)
iii. Sometimes give recovery for emotional distress of victims who realize they are doomed no matter how short. Very
fact specific. Usually the victim is dead and estate claims for them. Contrast with air plane exmple.
iii. No Recovery:
Mitchell case: Woman denied recovery when suffer miscarriage (horses out of control, stop near her). OVERRULED.
Impact not really required nowadays.
RJ v. Humana of FL (π mistakenly thought he was HIV-positive for 18 months, p266)  rare instance where impact
needed
Lawson v. Management Activities (fear on airplane, p266)
a. Resisted expansion of liability from Falzone, because brief moments of fear are too frequent, too much tort liability
for airlines
b. No deterrence purpose: risk of death in air crash is already highly deterrent
c. No recovery because of lack of physical impact, even though this could destroy his life
>> Less likely to give recovery when no deterrence value (already have more safety precautions, eg: cars v.
planes). One could argue there’s nothing wrong with increasing liability and for compensating the victim. Also, there
are many safety precautions for other types of injuries, but still have tort law. It’s a question of who will bear costs of
tort. Should insurance rely on air craft or on passengers?
iv. No Recovery: Putting limits on emotional distress claims; impact case, but it’s not enough impact.
Metro-North Commuter RR Co. v. Buckley (asbestos exposure, p270)
a. Facts: didn’t go to high school or more ; π had 1-5% chance of developing cancer, and is suing for developing =
b. Issue: should asbestos hitting lungs count as physical impact (exposure = physical impact?)
c. No recovery because physical impact must be more than mere exposure. Must have physical contact that
caused immediate harm, not risk of future harm or physical symptoms
Need presence of symptoms, and increased probability of injury. You must be able to feel something
d. Would not work as loss of chance (ala Alberts), because there must be >50% of developing cancer
e. Concerns: Unsure where to draw the line between if increase chance of mortality to 20% - 23%. Where do you draw the line and
say increased risk of mortality is substantial enough? What if take $$ away from those that really do suffer the disease and want
to be compensated in the future?
a. Also, P didn’t seek medical help. Perhaps an idea that “real men don’t see shrinks” “real men should just deal with this
emotional distress” Also, what about $$? Class bias?
f. Concurring opinion, said needed objective/medical showing that he suffered severe emotional distress.
a. Compare with Potter v. Firestone Tire and Rubber
b. Here, they allow recovery for fear of cancer b/c of negligence of D regarding toxic waste. Needed (1) exposure to
cancer & (2) medical / scientific opinion said P more likely than not will develop cancer
c. He thinks this is crazy, why the discrepancy?
d. He says, you have to realize these bright line rules need to be explained/distinguished

2. Zone of Danger Rule

i. POLICY: intended to replace arbitrariness of impact rule; similar policy concerns of fraud and excessive litigation; both over-
inclusive (allows new claims within zone) and under-inclusive (emotional loss who happened to be outside of zone)

44
 ii. Geographic zone: what are the parameters of reasonable fear; should have precise criteria because is dichotomous
duty/no-duty decision
iii. Temporal zone: how soon is soon enough (DDS cases)
iv. Rule: Combination of proximity, time, nature of the threat

3. Reasonable (foreseeable) because of severity- Critical of bright line rules

i. Gammon v. Osteopathic Hospital of Maine (son receives bag of severed leg that was supposed to be father’s personal belongings,
p278). Can’t recover on Falzone (no immediate harm to him); can’t recover under Buckley (no increased risk of physical harm).
ADOPTS DAMAGES APPROACH; Follow mishandling of corpse case.
a. Rule: Duty is found where reasonable person would expect an ordinarily sensitive person to suffer severe emotional distress (Has
objective & minimus requirement)
b. Replaces impact rule with de minimus requirement (threshold of harm = “severe”)
c. No standard: this is highly fact-specific, case-by case. Here, it was reasonable for Ds to foreseen mental stress at finding severed
leg in decedent’s personal effects. Reasonable for jury to find that both Ds failed to exercise reasonable care to prevent such an
occurrence.
d. Examples of recover: funeral events, telegraphic mistakes (delivered to wrong person saying person dead), medical reports that
are incorrect (HIV positive, sterile)
e. Examples of NO recovery b/c no impact: person’s flesh sample negligently thawed so delayed testing (Dobran), church didn’t
protect kids from sexual abuse (ct said no special relationship to do so, Bryan),
f. Not extended to NEID claims

4. Bystander Recovery / NEID: Dillon Rule (Dillon, Thing – CALIFORNIA RULES)

i. Δ must be liable (at least negligent) for the victim’s injury for the bystander to recover
ii. π must establish:
a. Contemporaneous knowledge (visibility & aware of pain)
1) Aware: can’t just claim for believing someone in probably danger, has to KNOW for sure (Scherr)
b. Proximity (time and space)
c. Close relationship
iii. Contrast Portee v. Jaffee (NJ Rule, mother watched son die while trapped in elevator for four hours, p286)
Could sue for wrongful death (Damages wouldn’t be much since it’d be future economic benefit = small), survival action
(damages would be pain and suffering boy went through, but some jurisdiction don’t allow it; no medical $$ etc)
=> Other claims would not do much for this horrific event in terms of compensation.
a. Mother would not be able to recover under other Emotional Harm categories (no physical impact on her); allows recovery where
she was not within zone of danger. Holding: D’s duty of reasonable care to avoid physical harm to others extends to avoidance
of this type of mental and emotional harm
Here, no potential for personal injury (no risk or physical harm), but liable for distress from negligently
inflicted injuries of another
b. No proximity requirement (as opposed to Dillon, Thing). Need to see, be comtemporaneously aware.
c. NIED requires following elements:
1) death (accidental or serious) or serious physical injury of another caused by D’s negligence
Harm needs to be serious, But test could be whether RP would believe victim seriously injured in
such an accident (some states allow this, others don’t)
2) Marital/intimate familial relationship between P and injured person
3) observation of death/injury at scene of accident (physical proximity needed?
Abel says perhaps being more uncertain of the event but just having awareness is more sever pain
(he’s responding to Scherr and seems to think she should still recover)
4) severe emotional distress as result
d. Policy concerns here
1) Parent child relationship
2) Need to find rule so that juries can impose liability that isn’t too excessive and outside culpability of D’s
conduct
ABEL says under Thing, she probably would have lost because she wasn’t there at EXACT time of the accident, only saw aftermath.
iv. Negligent Emotional Infliction of Duress claims
a. Unwilling to extend where….
i. Mother reasonably but mistakenly believes child dead (ct said it’s tangible & predictable for children to be
injured; distress based on mistake changes and varies w/ each person
ii. If no discrete & identifiable traumatic event, then can have bystander recovery
iii. People not married (Elden: Did not allow recovery b/c couple who lived together was not married… ct said state
prefers married ppl, state wanted to limit burden on courts and D)
1. BUT, rejected by CA. Look at duration of relationship, mutual dependency etc. Allow for domestic
parterns
b. Abel & limiting # of persons to whom negligent D owes duty of care; Abel thoughts
i. Says it doesn’t make sense. We don’t do it anywhere else. No need to limit. D is liable to all that they
negligently hurt. We don’t limit anywhere else, why limit to people not married?
ii. He says it’s silly to say that you can uphold or increase amount of ppl who get married by limiting liability.
People don’t think about these things when getting married

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 c. Zone of Danger – Immediate family can claim only when in zone of physical danger
d. Broadening rule
i. Some states allow recovery even when family members arrive later on scene. Arbitrary tho
ii. Should it be allowed for those that view serious accident but aren’t closely related?

5. Recovery for 3rd party claim – If victim can only sue for direct harm, then what if they never come back? Can’t sue?
i. Example: Johnson v. Jamaica Hospital (NY rule, baby abducted from hospital and returned after 4 mths, p291)
Evidence of negligence, evidence of causation, now damages?
a. No recovery: Not fear for self (Falzone), not zone of danger, not NIED elements (Thing). Said duty to child, no direct duty of
hospital to care properly for child and that foreseeable to D that injury/abduction would cause mental stress.
b. They were at home when this occurred.
c. Dissent says correct view would have been hand formula, little effort to check whether baby abducted.
i. Contrast where hospital separated baby and mother for 43 years and people thought mother had committed adultery b/c
baby didn’t look like mother. Recovery b/c contractual relationship exist for services that carry w/ them deeply emotional
responses in event of breach. CONTRADICTS Johnson
d. Compare this case where hospital told X that their mother had died but it was a negligent mistake. Could argue this case is
stronger because you can expect and foresee parent dying but not your child.
ii. Example: Oresky (mother suffering dementia wandered away from nursing home never found, p295)
a. No recovery: no corpus delicti (mother is not around and no one knows what actually happened)
b. Loss of consortium only applies if mother is living, and no income stream for children to claim
iii. Example: typically recover for misinformation about death of a loved one and negligent treatment of a loved one’s corpse (higher
pain and suffering levels)
iv. Example: Carey: mother can claim emotional distress suffered by resulting harm to her child during labor and delivery. Father
sometimes claim as bystander. Yes, recovery
Mother: claimed as participant, Father: bystander  Abel doesn’t know why, uses this as evidence for why brightline rules
shouldn’t be used.
v. In parent and child cases, hard to decide if it’s a bystander case of direct injury case b/c parents are administers to medicine or aid etc
but they are the ones that don’t direcly suffer. (Huggins case)
vi. Usually no recovery for economic loss, unless it is foreseeable that such damage to property would cause severe emotional distress
(like someone built own house and then D negligently destroyed it)
vii. Pets: Some say no recovery (piece of property) and other say yes recovery because of emotional distress and sympathy to owners
viii. Religious practices: What if rabbi, priest etc doesn’t do job right (doesn’t marry correctly or funeral rites)? How would tort damages
work? Spiritual realm, how can money compensate?
** To claim contract (like parents paid hospital) breach, only get contract damages, not torts damages which is more.

6. Loss of Consortium – 2 problems: Bright line rule and evaluation problem. Do we want the law putting values here?
i. Most jurisdictions protect spousal relationships only. Not usually for siblings. Age would likely be relevant, so child injury might be
greater. Sometimes for parents when child died (not injured); not usually child for parent death (Abel says it’s worse for child to
live with death of parent)
PARENT – CHILD: doesn’t look at unique relationship, time spent, could be modified; love affection, annoying kid
When marriage is seen as harmonious, kids, marriage relations are good, good sex life => usually can recover more.
What about fiancée? What about friends? What about bf & gf?
ii. Dunphy v. Gregor (p290): no recovery for cohabitating couple, but would allow for separated married couple
iii. Borer v. American Airlines: Children couldn’t claim consortium for mother injured by D’s negligence. Ct reluctant b/c difficulty of
measuring damages, danger of imposing extended disproportionate liability
a. Contrast this with Ferriter v. Daniel O’connell which said there’s no reason to say children have less of a viable claim for
loss of parental society compared to husband’s claim for loss of spousal consortium. Just need to show children dependant
on parent $$ and emotionally.
iv. Are we paying ppl loss of consortium to increase their cost in the dating market? Usually after these accidents, people break up

Bright Lines Limiting Duty in Emotional Distress Cases

1. Impact (Ward, NJ, 1900)

2. Recoil leading to impact (Buchanan, NJ, 1890)
3. Slight impact (Porter, NJ, 1906)
4. Reasonable fear of immediate personal injury leading to substantial bodily injury or sickness (Falzone, NJ, 1965)
5. Fear of illness and either present symptoms or more likely than not to develop illness (Potter, Ca, 1993; Gottshall, USSC, 1994; Buckley,
USSC, 1997)
6. Death cases: injury to corpse, error about who died
7. Severe emotional distress, such that no reasonable man should be expected to endure it (Gammon)
8. Unmediated observation of negligence causing death or serious bodily injury to near relative (Dillon, Ca, 1968; Thing, Ca, 1989)
9. Same as (8) but leeway with respect to proximity in time and space and nature of relationship (Portee, NJ, 1980; Massachusetts and
Hawaii cases); mistakes about identity or severity (Barnhill, Iowa, 1981; Barnes, Mass, 1983) (compare these to early telegram cases);
requirement of severe emotional distress (Portee)
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10. Negligent performance of custodial duty (Kalina, NY; Johnson, NY, 1984; Oresky, NY, 1987)
11. Consortium for spouses but not cohabitants or parents and children

G. Pure Economic Loss

NOTE: Why are we giving $$ for impaired relationships and not economic loss?
RULE: In general, Δ will not be held liable for pure economic loss unless he knows that his actions will affect a particular π.

People Express establishes exception (dangerous chemical leaked requiring airplane evacuation, p313):

EXCEPTION: Δ owes duty of care to take reasonable measures to avoid risk of causing economic damages to πs comprising a particular class
whom Δ has reason to know are likely to suffer from its conduct

In terms of particular class of πs, Δ must know:

i. Type of persons or entities comprising the class
ii. Certainty or predictability of their presence
iii. Approximate numbers of those in the class
iv. Type of economic expectations disrupted
This is not just foreseeability, because it requires specific knowledge.

Policy: The physical harm requirement allows recovery along the path of physical destruction, but purely economic losses are borne by innocent
victims who may not be able to absorb their losses. However, we require specific knowledge of an identifiable class to limit liability fairly.

Role of Contract: Duty will not be found if K could do the same work as cheaply and effectively

1. People Express (dangerous chemical leaked requiring airplane evacuation, p313): establishes rule
2. DUTY FOR ECONOMIC HARM:
Glanzer (p315): Seller used 3rd party Bean Weigher who delivered beans to Buyer; Weigher made mistake, seller went bankrupt so B has
to go to weigher to get $$. Weigher owes duty of care to avoid causing economic damages to B, because he knew the identity of B (the
particular class) and knew that the aim of his transaction was to charge B accurately
a. If no duty, then seller would not involve weigher (no reason to include objective party); in which case, buyer would K with Weigher
himself to ensure accuracy. Can contract law take place? Yes it can, but tort law takes it into account.
b. Questions to ask: (1) does buyer have ability to protect himself (access to same information); (2) can this be done at same transaction
cost as weigher-duty route, (3) does buyer pay for cost of information (in duty, weigher would build risk exposure into the cost to
seller)

Standard of care lawyers have to clients (Not really duty, but has duty of standard of reasonable care)
Ex: Testator asks lawyer to make will to give to Beneficiary (B). Testator dies and lawyer’s will doesn’t work. Beneficiary can sue
lawyer. Lawyer has better info of risk exposure because knows who exactly he/she is liable to, doesn’t have to know beneficiary
exactly, but knows limited number of beneficiaries who will be hurt.

3. NO RECOVERY FOR ECONOMIC HARM

• Bishop opinion Pg. 317: Liability should be restricted when (a) info is of type that is valuable to many potential users, (b) the producer
of the info cannot capture in his prices the benefits flowing to all users of the info (discriminate costs depending on what users use
information for), and (c) the imposition of liability to all persons harmed would raise potential costs significantly enough to
discourage info production all together.
o Believes that person who buys stock due to info/reports in newspaper and loses lots of money should not be able to
claim economic harm. The newspaper ‘s price would then go up and we all would lose out (have to pay a lot where
loss of information is valuable.
 B part of Bishop analysis doesn’t work. Can’t discriminate buyers (those who use it for stock and us
that use it just for recreation)
 C part of Bishop analysis doesn’t work. It would cost too much so that all of us wouldn’t buy
Ultramares (p303): Borrower had report from Accountant; B entered K with Lender, showing A’s report; L sued A when B went bankrupt; no
duty where statement was produced for convenience and used incidentally (unforeseeable use) (c/a: A knew report would be used to prove
company solidity; similar to Glanzer yet Cardoza here doesn’t follow)
Indeterminate class: Abel disagrees. Says it’s not relevant because tort law is always between strangers
Indeterminate time: Abel doesn’t get it because we already have SOL
Indeterminate amount: He thinks this matters most. Accountant can’t bill the B the right amount of how much this information might
cost A in terms of liability. Accountants can’t know how deep they have to go into the paper trail until they know how risky the
information will be (liability varies). If you just put overall liability on them, then the problem is accountants wouldn’t know
how much to charge clients (charge too high most probably)
Nycal v. KPMG (p302): KPMG audited Gulf; Nycal relied on report by D’s accountant and purchased 35% of Gulf; Nycal sued KPMG for
mistaken report when Gulf went bankrupt 2 years later; no duty where liability is indeterminate amount, for indeterminate time, to
indeterminate class (b/c would make cost of transaction exorbitant)
a. Indeterminate class: should knowledge of π make a difference (tort is litigation between strangers); But here, ct says should be person
or limited class of people.
b. Indeterminate time: statute of limitations would guard against this

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 c. Indeterminate amount: KPMG can’t know its exposure (like Ultramares; unlike Glanzer where quantity weight was known); would
be very costly for KPMG to assess risk
Ct rejects Foreseeability test (b/c of Palsgraf) which says D liable to any person whom could reasonably have foreseen would obtain &
rely on accountant’s opinion, including known and unknown. Too broad
Ct rejects Near Privity test (b/c not analogous to case law) – have duty only with those you have contractual relationship with (like
Glanzer, you have something close to contractual relationship) – Too broad. Abel doesn’t really get this test
Ct uses test taken from 552 Restatement…
d. Restatement § 552 (p304): Professional misrepresentation
1) One who supplies others with false information for the guidance of others in their business transactions is subject to λ for
pecuniary loss caused by justifiable reliance upon information if he fails to exercise reasonable care or competence in obtaining
or communicating the information (need to know identity of people)
2) Important whether Δ knows that transaction will influence and who or group of people it will influence (Abel again thinks this is
wrong). The nature of transaction is critical, because Weighter/Acct needs to be able to measure risk exposure to know how
much time/effort to take in due diligence. However, in garden variety tort, Δ cannot predict magnitude of damages; based on
driver being lucky/unlucky, and depends on who he hits)
Case here says not limited group of peple, no actual knowledge at time it was published that sale was going on or that it was
influencing people, D didn’t prepare report for P, meant for Gulf’s controlling shareholdings.
e. Determine duty/non-duty by comparing tort and K avenues:
1) Ability to protect: Nycal could protect itself by K by hiring someone (needs access to Gulf’s books though)
2) Transaction costs: Without central auditor, investors and shareholders would have to repeat same due diligence; would make
K expensive so favor tort duty
3) Do beneficiaries pay (if so, goes against tort duty)
f. Reasons behind rule
1) NYCAL could have done own research.
2) Compare to beans case. It’s about Hand’s formula. Liability only to one person in beans case. Here, accountant doesn’t know
who it is liable to
Gutter v. Dow Jones (Professor Bishop; Abel likes this, p312): π purchased bonds relying on WSJ financial table that had error; Π suffered
loss based on incorrect information; no duty because would impose negative externality on most of readers when only a few consumers
would benefit (beneficiaries would pay)
a) Unfair spreading: Imposition of λ to all persons harmed would raise costs significantly for all consumers (negative externality)
enough to discourage information production altogether
532 Madison Ave Gourmet Foods, Inc. v. Finlandia Center, Inc (buildings not hit by construction but could not be accessed by customers
sued the construction company that caused the debris/obstruction)
a) Facts: businesses bring suit for lost profits, business when city closed streets due to construction & fallen building
b) Rule: A landowner may not recover for economic losses caused by an adjoining landowner’s construction defects absent personal
injury or property damages.
Economic Loss Rule: principle where P cannot sue in tort to recover for purely economic loss – as opposed to physical injury or
property damage – caused by the D. Many states recognize an exception to this rule when the D commits fraud/ negligent
misrepresentation or when a special relationship exists between the parties (like attorney – client)
c) Analysis: A landowner does have a duty to adjoining landowners to take reasonable precautions to aboid injuring their property
interest, this duty does not extend to protecting an entire neighborhood against economic loss. Large, indeterminate group =
possibly might extend liability limitlessly.
d) Goals: Draw lines between what is foreseeable and what is not, not about holding all tortfeasors accountable for their actions here.
e) Critics: Some say don’t need Economic Loss Rule, can just say causation and foreseeability protect tortfeasors from far reaching
liability (house 4 blocks away has no claim but house next door to injured one does)
6. Robins Dry Dock & Repair (ship owner rents to leasee and tortfeasor damages ship, p314) tort and contract claims
a) Owner has claim against tortfeasor for damage => must be tort claim
b) Leasee has claim against owner for lost rental time => must be contract claim
7. Stephenson and Byrd (Person severs utility line and hotel must shut down, p314)
a) Some jurisdictions would allow hotel to recover for lost business. Stephenson says that EEs would not be able to recover for lost
wages. Conclusion: allow market consequences to ramify outwards but not very far
8. Louisiana ex rel Guste (pollution, p318): Δ is responsible for ship collision that polluted river and affected local fishermen
Problems on pg. 312
Concerning Restatement 552…
1) Yes
2) No
3) No liability

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VII. DEFENSES
** ABEL: silly to think comparative fault is about deterrence because people don’t think that way. Helps spreading, morality/culpability
factor. He feels people are motivated more by own bodily interest.
A. Contributive/ Comparative Fault in general
ABEL: says doesn’t think duty belongs in realm where you hurt yourself. How can your hurt to self be equal to harm other causes?
1. Rationale: imposing moral judgment where π has put himself at risk – looks at proximate cause (not but for cause, usually put burden on D
to prove it)
2. Last clear chance: P behave carelessly and got into dangerous situation that led to injury. But P would argue that D had known and failed
to utilize las clear chance to avoid injury. D need notice of P’s danger in time to avoid harmd by exercise of due care. Ususally D has to
have capability to avoid harm. (D neg, P neg, then D neg again and P can get all damages even if P was negligent)
3. Respondeat Superior: Employee’s negligence imputed on employer.
4. Types of Comparative Fault (Introduced later after contributive; jury wouldn’t follow contributive standards, so create
contributive))
a. Pure: P who is 90% to blame for accident can recover 10% of damages from D who is 10% fault (an dD can get 90% damages
from P)
b. “not as great”: P at fault can recover as under pure system but only so long as negligence NOT AS GREAT as D’s
c. “no greater than”: same as above but instead, standard is “no greater than”
5. Limits to comparative negligence:
a. Rescue: allow certain level of reasonable foolhardiness in interest of rescue
b. Children: interest in safety because children can’t meet reasonableness standard. Doesn’t matter if they’re negligent b/c they don’t
know better.
c. Recklessness: where Δ is reckless, precludes contributory negligence, P can get everything.
d. Continuance: Δ’s continuing negligence might trump moral judgment of π’s negligence
5.a. Contributive negligence: used to not be eforced
3. Comparisons between contributory (absolute bar) and comparative (proportional bar):
a. Jury mindset: Under contributory negligence, π would be barred completely if negligent; Knowing this, juries might not find any fault
because didn’t want absolute bar; Shifting to comparative fault forced juries to assign %
b. Recklessness: Under contributory negligence, courts relaxed comparison when Δ was reckless; However in comparative fault, courts
are willing to compare negligent π against reckless Δ (but not intent)
c. Policy: Spreading & fairness (J&S liability) with comparative.
4. Example: Fritts v. McKinne (patient negligence for having accident, p452)
a. Doctor convicted for medical malpractice claimed that π was negligence for having the accident in the first place & for drug & alcohol
abuse history (so shorter life span), and should impose comparative fault
b. Rule: jury should not take into account the antecedent wrongful conduct of victim (doctor’s job to heal, so accident is expected).
Drug & alcohol abuse history relevant only for damages and not for contributory/comparative fault or deciding doctor’s liability.
c. Patient – Doctor: Contributory negligence when…patient doesn’t tell correct history, fails to follow doctor’s advice, delay to seek
further recommended medical attention…
Percentages come from policy.
B. Uniform Comparative Fault Act (handout)
1. Insolvent party: (Hypo b) reallocate share of insolvent party to all parties; emphasizes moral fault and frustrates spreading
2. Set-offs: (Hypo c) set-offs not allowed, because we want insurance to pay both A and C, rather than have their injuries cancel out and have
each pay for themselves; emphasizes spreading over moral fault
3. Settlements must be reasonable (Hypo d) must be reasonable, which guards against collusion; emphasizes fairness to all tortfeasors, at
cost of discouraging settlement; gives all tortfeasors a day in court
4. Settlement does not extinguish other claims (Hypo e) if victim signs release with T1, this does not settle claim with T2; T2 still allowed
day in court; interest in due process and efficiency (resolving claim quickly)
5. If don’t have this, then J&S liability rules used (so if one D insolvent, costs spread among rest of Ds or P bears cost/ UCFA doesn’t allow
this). UCFA does not permit apportioning negligence to non-parties.

C. Pure and Modified Comparative Fault

Allowe each employee allows this for this workpg 448 abnd 449.m
1. Pure comparative fault
i. Each party pays % fault
ii. Bears own loss because liability is 0 since each contributed negligence
2. Modified comparative fault
i. Is π guilty of more or less than 50% of fault?
a) If > 50%, then absolute bar
b) If < or equal 50%, then pure comparative fault
2. Policy: emphasis on moral judgment, interest in barring undeserving πs; however, modified can have unequal outcome
3. Example: Two car collision; each party suffers 10k in damages, with 20% and 80% fault
i. Pure: would each recover % fault (2k, 8k)
ii. Modified: A would recover 8k (10k-2k) and B recovers nothing (barred) {therefore B stuck with 18k loss b/c more than 50% liability}
iii. Contributory negligence: πs would be barred

Extra Considerations
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• Intent v. Negligence?
o If criminal hurt V on L’s property, let’s say criminal 99% and L is 1%. L is negligent and criminal had intent.
Can you compare fault?
o If J&S liability, V will only get 1% from L
o If comparative fault, V will get all 100% from L and L supposed to get 99% from crim (but prob wont’)
• Insolvency?
o Diff systems deal with this issue and how to spread (look at handout)
• Multiparty disputes where people don’t settle
• Imputed negligence?
o Car owner & driver lessee: Lessee’s negligence not imputed to owner if owner wants to claim money from
accident & damage done to car. Lesee has independent claim to tortfeasor. (ex: car owner leases to driver lessee.
That car struck and damaged by other driver where neg on both sides. Car owner sues other driver, should
lessee’s negligence be imputed to car owner? No)
o Loss of consortium: Impute negligence of one spouse onto other (Derivative action). Occurs b/c H and W seen as
one economic unit (so if one spouse can claim, then negligent spouse would take some of that too). Only one
spouse can make claim. But, thoughts: what if way to get one spouse’s assets only? What if divorce? More likely
parties would be able to bring separate law suits
o Wrongful death: Parent – child, no impute. If parent negligent, don’t impute onto child if child sue tortfeasor.
Parent doesn’t always have to contribute to tortfeasor because child and parent usually seen as economic unit.
o Bystander emotional distress: no impute from family member to others b/c distress not solely from negligence. If
it was about survival action / wrongful death, then negligence would be at issue. Other jurisdictions say it is an
issue no matter what b/c then they would receive greater proportion than injured party is supposed to receive
• Jurors usually told consequences of their verdicts, best not to let jurors speculate on misinformation and get verdict wrong.
• Res Ipsa Loquitur: If evidence clearly shows contributory negligence on P’s part, then jury can compare evidence of
negligence of P with inferred negligence of D. Res ipsa gets u to jury, but jury can decide how much P’s fault will impact
damages
• Rescue: Negligence doesn’t usually bar them from full recovery. Want to encourage rescuers,
• Drinking P: Can sue vendor for comparative fault for selling alcohol to him.
• Economic harm: If a duty can be found, comparative fault can apply to diff Ds. Usually P doesn’t have duty to read form
etc if rely on professional

Avoidable Consequences – Addresses measure of damages (not issue of liability)

When we spread costs to P, decrease deterrence on D while increasing moral judgment on P. Is this tradeoff worth it?
1) P’s duty to mitigate (moral judgment; efficiency – easiest for P to take care of it)
a. Less damages if fail to obtain medical attention/ follow medical advice. (Looked at as active choice of conduct)
Ex: If situation would be better if lose weight and didn’t lose weight
Ex: If situation (asbestos) would be less dangerous if quit smoking
C/A: But are these really choices people can make? Obesity can be genetic and smoking is highly addictive
However, ct held person under no duty to undergo surgery to mitigate damages caused by D’s negligence (autonomy interest; note in
informed consent doctrine, the idea is that people get to say no to certain procedures and if forced into some procedures, then get to
say no. In avoidable consequences, idea is that people’s choices have monetary consequences)
Religious beliefs: some cts say this is unreasonable reason not to undergo surgery, other courts hold P to “reasonable
believer” notion. Argument that person should not have to give up spirituality in order to be financially compensated.
b. Safety Measures
1) Seat belts / helmets – Depends on whether there is a statute/state law requiring the use of one.
Some cts say can reduce damages, some (CA & NY) allow failure to use safety devices to fully reduce recoverable damages, others
say it is not included in evidence (goal is to compensate and recognizes that such a law would not change # of ppl using safety
devices)

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 D. Assumption of Risk

Express (Dalury; Tunkl) => agreements not to sue (contract law)

2 question: (1) will courts enforce contract given type of activity? (2) contract sufficiently clear?
If pass scrutiny of contract law, then trumps tort law
Implied => no contract
- Primary (Knight v. Jewett; Murphy) => usually athletic/ recreational activity…no negligence, so no duty; focus on D’s general duty of
care – complete bar
- Secondary (Flopper) => True defense, have to show D negligent first.
- Reasonable taking of risk so P gets full compensation (Boddie) => rescue cases
- Unreasonable taking of risk
- Approach 1: recognize assumption or risk separately (Rhode Island) – use it as complete bar
- Approach 2: subsume assumption of risk into comparative fault question, consider when assigning percentages (not complete bar
depending on %)
- This approach compares π and Δ conduct
- Pure comparative fault regime – AR becomes form of comparative fault (Gonzalez) (California)
- Modified comparative fault regime (Davenport) (South Carolina)
- If π fault > 50% => absolute bar
- If π fault < 50% => pure comparative fault

CONSIDERATIONS – (ppl do tend to underestimate risks)

Ask these questions when deciding whether should use AR or negligence regime…
Safety
- Knowledge: is there any asymmetry of knowledge between parties
- Control: does one party have greater control over risk
Spreading
- How spread if π or Δ bears cost?
- Who will bear the cost of spreading?
Morality
- No morality argument (only over whose insurance should pay)
- Autonomy interest should embrace negligence (not AR)

Choice of two regimes:

Assumption of Risk => requires extreme due diligence by insurance companies to minimize fraud; invasion of privacy concern
Negligence => cheaper transaction cost (built into ticket)

Consider Flopper case:

Abel is a free market thinker. Says that people should be able to choose activity and informed by price that communities risk (influences
consumer behavior so that people won’t pay when the price includes cost of injury)
Assumption of Risk (non- liability almost s/l for D) Negligence (Abel prefers this category)
Cost Focus on ΔPL (issue for P) Focus on ΔB (issue for D)
Safety
Knowledge Δ has far superior knowledge of magnitude of risk (nurse knew of Should locate burden with party in better position to
serious injuries; they know exact #s and probabilities  this info not improve safety. Finding of negligence in the first place
communicated to P) shows that Δ will improve safety.
Δ has no incentive to communicate risk to π (bad advertising)
Π knows his risk tolerance (communicated through choice of
Volition whether to ride & through how much he pays to experience the risk)

Π controls decision to ride and cannot inform Δ of preference for

more/less risk

Control Δ can make ride less or more safe, but Π cannot do anything
Spreading Even if π had loss insurance, would not cover pain & suffering
Π would have to pay himself, covered by insurance pool
Spread over all consumers
Morality Debate over whose insurance should pay (no morality issue)
Π does not deserve to recover b/c he took risks
Conclusion Burden on π, who has less knowledge and more control.
Assumption of risk doesn’t really help here.
Strict liability: basically forces ppl to buy insurance. Puts cost of injury into ticket price.
Less control on which Ps ride the ride/ partake in
More likely that Δ carries liability (enterprise)
Δ can spread as cost of doing business
Δ spreads cost among similar risk-takers only (tickets)
Autonomy interest (only impose cost on risk-takers)
Accidents happen, all risk takers should bear risk
Burden on Δ, who has more knowledge and less control
RULE OF Flopper
Encourages optimum safety, spreads to appropriate pool

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1. Express: By contract, π agrees in advance to waive his right to bring a tort action
i. Dalury v. SKI (skied into a pole, p461) – P was not negligent here.
a) Skier signed agreement-not-to-sue
b) Valid if π entered knowingly, voluntarily and with appreciation of their significance
Rule: ski area owes customers same duty as any other business – to keep its premises reasonable safe because they have more
control, expertise, and foreseeability.
c) Court will not recognize agreement because it will not enhance safety (π has self-preservation motive) or spreading (would put
burden on π). If public policy is violated, then even if contract clear, can still be unenforceable. / c/a: Δ could argue that
agreement makes activity cheaper (thus more accessible) to all; actually more expensive to recognize agreement because
individual π bears all cost and Δ would take no safety precautions; reputation of the problem (ex: airplane crash) might be enough
to make activity safer and tort law not needed.
d) IF don’t allow skiers to sue, then would require skiers to pay for insurance. But would skiers buy insurance? Most likely no.
Now, if we make skiers bear own costs, then more unfavorable outcome: most likely health insurance would pay costs and so
society at large (even ppl that don’t ski) would be paying instead of skiers who must pay higher entrance fee because ski resort
sued.
e) When does autonomy of contract making trump spreading, compensation etc goals?
When there’s choice, the activity is not necessary, when contract making helps keep costs down for general public, etc.
ii. Tunkl criteria to judge whether or not to recognize agreement
a) Whether the business is suitable for public regulation (regulatory state v. freedom of K)
b) Whether activity is of great importance to the public (necessity to life)
c) Whether the activity is open to the public, invites general public
d) Whether there is unequal bargaining strength for one over the other
** other considerations: fairness, benefits of risk spreading; incentives to keep place safe, whether the P had a choice between making
the contract or not, whether the P had notice of the expressed condition, whether the risk was known/obvious in the activity
** Option to take ticket where waiver liability or ticket where you can sue but pay higher…
 more likely courts will say customer had choice (unless too expensive) and so more likely to be enforced
 note that ppl who don’t pay extra $$ will still benefit from overall incentive to increase safety for those that pay extra in order
to sue
 spreading issues.
iii. Minors are sometimes allowed recovery even when they sign or parent sign for them. We say children cannot contract, so parents
should not be able to contract liability away towards children.
Others do not allow recovery when there’s expressed signature to contract b/c it’s volunteer (want to encourage volunteer
organizations)  Abel disagrees. Wrong subsidize activity by putting cost on most vulnerable people and denying recovery.
iv. Gross negligence of recklessness is usually never allowed protection by contract
v. Drafting contract: How effective are they when the language is hard to understand for a layperson?

2. Implied: Conscious taking of an unreasonable risk – no contract.

Abel asks how is it that we allow EEs to contract away liability through workers comp while we allow victims in following cases to sue for
liability. Also, none of these cases are about contributory negligence. It’s about
i. Primary (no negligence)
a) Rescue cases (Boddie – try to save D by throwing pan of fire outside, was hurt in process, pg 487)
b) Knight v. Jewett (touch football game, changed CA law, p478)
1) π informed Δ he was playing rough, then Δ knocked π down and injured her
2) No negligence (often true of amateur sports). Liability only if intentional injury.
ii. Secondary
a) Murphy v. Steeplechase Amusement (“The Flopper,” p469)
1) If Sλ, and Δ would improve safety, then the cost of the accident is greater than benefit => impose liability
2) Rule: If π acts with knowledge of risks and volition, the π assumed risk and Δ has no duty (knowledge and visibility).
3) Δ burden: must show that dangers were obvious and necessary
4) Δ argument: π could see that falling was part of ride (knowledge + volition from name, etc); also, D says not many accidents
and none were serious, D’s own injury not too serious.
5) Ct notes that Flopper would be negligent if padding negligently maintained.
6) Hand Formula: If make it less probable that there would be injury, then diminished pleasure for users (B) so fewer people
would ride the ride.
** Abel compares this with actual sports like fencing, touch football, etc. Says that Flopper is more unequal in control,
information, spreading. Greater symmetry between individuals in fencing, touch ball etc. so higher argument for AR there
instead of Flopper case.
Compare with Baseball spectators cases
Subsidize liability of baseball stadium. Tort victims bear cost of injury. Idea is that people can choose between screened and
unscreened seats (Abel says this is bad because then not really a choice). Reasoning: want to make “great American pastime”
available to all. Say people know of dangers.
Effect of legislature: allowed to step in and decide that state’s interest is to limit or widen liability.
b) Davenport v. Cotton Hope Plantation (fell on steps due to lighting failure, p476) Assumption of risk not complete bar to
damages. One method of weighing AR with damages
1) Facts: π knew lighting had gone out, so Δ argues AR. Other available stairways but were further away. P had reported to
management that stairway floodlight not working past 2 months.

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 2) Safety: π has knowledge and control
3) Spreading: Δ is commercial entity, so favor spreading through rent (why should other tenants pay)
4) Fault: π knew about problem for 2 months and had complained; Δ was on notice for 2 months.
5) Holding: Jury could reasonably conclude that P’s negligence proceeding down stairway did not exceed Cotton Hope’s
negligence. Follow West Virgnia’s method and not RI’s.
c) Diving into shallow end of swimming pools – cts usually say no recovery b/c open and obvious danger
d) NY has no AR doctrine. Refers to it as contributory negligence.
e) Employment Context: Wasn’t appropriate here and barred many claims. Sometimes risks were not apparent and EEs were in less
powerful position, had to take jobs out of necessity.
3. Hand Formula
i. If AR, the ΔPL (cost of accident) falls on π, can compare w/ D’s negligence
a) We already know that B < PL because accident was caused by negligence
b) Because Δ is negligence, means that he will increase safety and increase ticket price
c) If this is mitigated by AR, then costs are more expensive (because borne by random victim)
d) Goal of tort is to internalize cost of inefficient accidents, so AR impedes on this

E. Firefighters Rule – only applies to landowners; strange that we took AR out of worker’s comp, but put it in this employmt.
1. Furstein v. Hill (in Levandoski v. Cone case, p490) – no negligence liability to firefighter/police man on property.
i. Rule: Landowner generally owes firefighter/police officer injured on his property “only the duty not to injure him willfully or
wantonly. Extended rule for firefighters (from Roberts v. Rosenblatt) to policemen.
ii. Policy: Want to encourage professional rescue + wage risk premium + taxpayers already pay. Policemen similar to firefighters
because similar roles, enter at unforeseeable times, int times of emergency, enter regardless of consent, assumption of risk, land
owners pay tax for both police and firefighters so want to avoid double taxation w/ tort $$.
2. Levandoski v. Cone (does not extend fire fighter rule to non landowners, pg 490)
i. Facts: D ran away from P when P (policeman) was chasing him. P fell on rocks and hurt self, then sued D for his negligence
Rule: No extension of Firefighter’s rule to non landowners & Reasonable foreseeable to D that P would have been injured in
pursuing fleeing D when dark, unlit, unknown terrain. Say they are in licensee (but bizarre because they are invited
sometimes, confer benefit)
ii. Reasoning: 3 reasons why apply to landowners only (1) premise liability rule b/c direcly applicable to issue of landowner liability,
more direct; (2) Assumption of risk - doesn’t apply b/c legislature here abolished it in negligence actions (CT); (3) double taxation
applies to landowners only because they are undoubtedly paying for police/firefighters. Not sure if D who isn’t a landowner is paying
taxes or not.
3. Volunteers: firefighter rule does not apply to volunteer firemen (b/c taxpayers aren’t paying public rescurers like firemen & police).

F. Statutory Preemption – Congressional statutes trump state law.

1. Common law: if statutory violation, that satisfies Δ’s burden of production for negligence and shifts burden of proof onto π to show that
noncompliance was safer; almost every court says the word “requirement” in pre-emption statutes include common law tort liability.
2. Federal statute: should fed statute mean automatic liability, or should judiciary still determine negligence?
Fed courts say there’s a disparity between common law and federal statutes; state courts say there isn’t  clear federalism where fed
courts want statutes to win out, state courts want common law to win.
3. Geier v. American Honda Motor Company (p497)
i. 1984 Federal Motor Vehicle Safety Standard explicitly preempts all standards, however later clause states that compliance does not
mean exemption from liability under state common law (conflicting). Ct interpret statute’s intent through language and aimed to fulfil
intent (so what it comes down to is what the judges feel like doing).
ii. Policy: Choice between => Statute v. common law; uniformity in design v. piecemeal advances; legislature v. courts
iii. Bedrock of liberal political theory is that democratically-responsive branches (executive, legislative) should make rules and judiciary
should react
iv. Conflict with tort law: courts and juries are better at protecting interests of ordinary people; juries are incorruptible while Congress is
not
4. Relationship between Common Law Negligence & Statutes
i. Common law standard of care below statute (Tedla v. Ellman) which says it’s possible to be violating a statute and not be negligent
(here, common law lower statute). But in this case, P’s were arguing that common law highers standard of safety.
ii. Common law standard of care above statute:
1) Where federal committee or federal statute mandates a level of care and state common law requires more
2) ex: FDA said warnings on nicotine patch: “overdose might cause you to faint” but Oklahoma common law required higher
standard of care (Edwards v. Basel Pharmaceuticals)
iii. Common law standard identical to statute: (Uhr v. East Greenbush Central School District) statute mandates that schools test for
scoliosis, NY courts inexpilicably refuses to hold school liabile for failing to perform test because ct interpreted statute as taking
liability away from schools  Abel strongly disagrees w/ ct’s interpretation.
iv. Common law standard above statute: (Geier v. American Honda) DOT does not mandate air bags, preempts common law attempt to
do so.

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VIII. STRICT LIABILITY

A. Doctrinal Development

Conflicting regimes:
Non-liability: duty, sovereign immunity, assumption of risk, contract
Strict liability: vicarious liability, workers comp

Examples of activities in each category (see B below)

Strict Liability Negligence
- Animal with known disposition (personal injury) - Any other animal (personal injury)
- Cattle trespass (property damage) - Bale of cotton falling
- Alkali privy - Highway accident (horses)
- Reservoir - Steam boilers
- Dynamite

1. Strict Liability Examples

Rule: You are strictly liable to your neighbors when you bring something unnatural on your land (like water/nuisance/cattle) and even
if it is harmless on your land, once it escapes, it will hurt your neighbor or his land.
i. Fletcher v. Rylands (dam broke, p506)
a. Facts: Δ’s engineers built dam, unaware of mine shaft underneath; engineers had discovered shaft but did not know the extent;
dam broke and flooded π’s land. Ct said D’s (owner of land) were free of guilt, but it was the engineers that were negligent
b. Rule: Strict liability when Δ lawfully brings/collects/keeps something on his land which, though harmless while it’s there, will
naturally do mischief if it escapes (Four elements: bring unnatural thing, onto land, mischievous, escapes). Hold D’s liable for
their employees’ fault b/c but-for cause (If D hadn’t bought unnatural thing there, then wouldn’t have caused harm to P).
c. Foundation of ultra-hazardous activity liability – apply to beasts (cattle), water, filth, or stenches. Don’t apply this rule to
situations where P should be aware of risk (like collisions in traffic etc). Here, P was just on land and could protect himself in no
reasonable way.
d. Cost imposed on causal actor
ii. Rylands II (p511)
a. Distinction between natural use (negligence) and non-natural use (strict liability). Agree with previous case.
b. Does this favor one economic activity over another? Distinguish between improved vs. unimproved? Evaluate adjacent
inconsistent uses?
Rule: But, this rule doesn’t extend to random people. Not strictly liable to random people’s property.
iii. Losee v. Buchanan (steam boiler, p512)
a. Facts: Steam boiler exploded and was catapulted onto π’s land, through his buildings
b. Rejected Rylands: such occurrences are the price of technological improvement (see Industrial Revolution section of
negligence); π receives compensation in the general benefit of technology and right to use land
c. Cost imposed on random victim to foster and encourage entrepreneurial activity. Stress foreseeability.
** Depends if it is “natural” or “unnatural” use of land; goal is to decide who should pay for costs.
iv. Turner v. Big Lake Oil (water storage, p513): Rejected Rylands, because storage of water is “natural use” & necessary in Texas
(little water, dry area).
v. Deptmt of Environmental Protection v. Ventron Corp (toxic waste, p514)
a. Can be liable for cost of cleanup & damage from toxic wastes that are stored on landowner’s property when it escapes. Damage
includes death of fresh water fish, pollution, etc.
vi. Cities Service p. 513- not subsidize entrepreneurial interest, make them pay to compensate Vs when slime escapes from mine made
for settling ponds.
Rule: However, if the landowner, while improving land, hurts a bystander on public highway, then landowner will be S/L liable.
vii. Sullivan v. Dunham p 514 1900 NY- Ct must reconcile Losee neg & blasting case SL
-Ct rules SL-intentionally did the blasting but w/o neg
-Reconcile w/ Losee- accidental explosion but damage to property.
- in both cases you want to control energy- not that one is an accident and one is intentional
-P in Sullivan on the highway (prior grouping doesn't matter)- doctrine not specifically giving solicitude to landowners- Where P
is ceases to be import and as does where the D is
-p 522 Ziegler & Pullman- truck overturns & causes fire- P's car catches on fire on hwy
-not about property ownership or locale (could be a rule about dynatmite)
P. 517- safety of prop generally is superior in rt to the improvement on one particular piece of property
-2 competing interests
-SL doesn't prevent anything
-makes human life safer by tending to prevent landowner from improving land in “unnatural ways”
-BUT this is what Neg is supposed to do, if reasonable to make safer should do so
-principle: use your own so as not to hurt others
-Lessens hardship by placing it on one who causes harm- NO just shifts it

2. Choice of strict liability

54
 i. Imposing strict liability is about allocating accident costs, not prohibiting activities. We favor activities that benefit the general public
(Losee) and disfavor special interest activities.

3. Compared to Res Ipsa

i. Escola: court preferred strict liability in products liability, over res ipsa

B. Ultra Hazardous Activity/ Abnormally Dangerous Activity

1. Restatement 1st: (p519)
i. Three elements – Ultra hazardous:
(1) Risk of serious harm,
(2) Cannot be eliminated by exercise of utmost care (which just precludes negligence),
(3) Not a matter of common usage
ii. Unhelpful in dam and blasting cases (both were common usage)
2. Restatement 2nd: (p519) – a,b, and c sound like the hand formula
i. Six factors – For one who carries an abnormally dangerous activity:
(a) High degree of risk (P)
(b) High degree of harm (L) – (both a and b: More about change/reduction of risk/ harm by reasonable care)
(c) Inability to eliminate by exercise of reasonable care (precludes negligence) ** important when decide to use S/L.
(d) Not a matter of common usage
(e) Appropriateness of activity depending on location (should this be up to court? – are there geographical factors?)
(f) Value of activity to the community (should this be up to court? – are there substitutions for this activity?)
ii. Factors means that can impose strict liability with either high P or high L.
iii. Factors e and f - Abel thinks judges should not make these decisions, the enterprise should decide this.
iv. Abel agrees that such a criteria perversely encourages more risk to poor people (b/c damages based on income).
v. Abel says that the criteria is messed up because maybe activity doesn’t fulfil a, b, c, but still arg for S/L thru e and f.
3. Indiana Harbor Belt RR v. American Cynamid (chemical leak, p512) (cross ref to 532 madison case w/ economic loss)
Negligence was ruled to take better care of this risk than S/L.
i. Facts: Highly flammable & dangerous chemical being shipped; sprung leak in Indiana shipping yard with $1 million in cleanup costs.
Similar to Res Ipsa Case.
Case compared to Guille – man who destroyed vegetable garden from his hot air balloon landing.
* Compare to cars (concerning factor d) – reciprocality of injury, benefits associated with cars, you can distinguish or analogize
to chemicals / airplane crashes. Rmmbr for test if it comes up
Goal: More likely activity cannot be controlled & causes great harm, more reason to require S/L so reduce activity / actor will
experiment w/ more safety measures. Ex: Dynamite,
ii. Common carriers can’t refuse to ship goods (problem imposing burden without negligence). Better to sue manufacturer or carrier?
This court said should sue carrier and not manufacturer, but see (iii)(e)(2). Courts split, depend on their goals or who has deeper
pocket.
iii. Rylands II, Restatement 1st unhelpful. Apply Restatement 2nd: Find negligence standard better than S/L. Goal is not to find the
deepest pocket but to find best liability regime that will control particular types of accidents.
(a) High risk: how high is high risk? Low P.
(b) High harm: $1 million is high, does this make up for lower P?
(c) Jury said no negligence, so inability to eliminate by exercise of reasonable care
(d) Common Usage: what is common? Also, case gives evidence that railroad hubs handle many cases of hazardous material
shipments in the nation (1/3 of total).
(e) Should not be in city, argument for S/L. But, all such stations are in cities.
(1) Posner: shipper should determine route and longer way would be higher risk of danger. Don’t want courts planning the rail
network. Want to locate decisional responsibility in shippers/carriers. Goal of Sλ is to use tort incentives to place onus on
parties who most cheaply make decision about accident avoidance. Question is whether there are accident reducing changes
that can be done?
(2) Coase theorem: Doesn’t matter if you impose cost on π or Δ; By contract, they will work it out between them and determine
who is cheaper accident avoider (higher cost or indemnity clause in K). Abel says no efficiency consequences (but what
about moral consequences?? Should it always just be about economic efficiency?)
A says it is appropriate to ship it on railroad. Abel is saying S/L would just tell enterprise to take risk reducing steps.
(f) Use market: are people prepared to pay the cost
4. Some courts reject Restatement 2nd or 1st approach:
i. Some insist that S/L should be imposed when possible harm would be high no matter how valuable activity might be to community
ii. Airplane crashes & damage to those below: Criteria of 2nd or 1st Rstmt don’t apply here because so common. Concern is to protect
helpless below.
iii. Government: No S/L for government actions.
5. Restatement 3rd
i. Takes d and e elements out, says first element is “foreseeable & highly significiant risk of physical harm even when reasonable care is
exercised by all actors.
6. Comparing what goes in S/L and what should have a negligence liability regime

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 Strict Liability Negligence
Cattle – no high risk, no S/L. Cattle – no high risk, most likely not S/L unless go on
Privies - no someone’s property next door and cause damage
Alkali Steam Boiler – if explode on random property, neg.
Reservoirs – cases are split Reservoirs – if necessary to have reservoirs, might not have
Explosives – Yes, S/L. S/L b/c so necessary.
Phosphate Tanker Cars
Mercury Air Planes – now in negligence regime b/c less risky
Hot Air Balloon – S/L b/c of case but Abel doesn’t agree
Tanker Trucks – L is high, could argue that law should
force such modes of transportation to be substituted (prob
is what are the substitutes?) – S/L
Airplanes – used to be when so risky in beginning

C. Vicarious Liability
1. Respondeat Superior: employer(ER) liable for employee’s (EE) torts committed within scope of employment. EE was in course of
employment – Acknowledges lack of authonomy.

2. Negligent hiring or retention: Based on ER’s fault and foreseeability for hiring someone that wasn’t competent.

D. Enterprise Liability

1. Policy articles (p529)

i. King – Abel disagrees
a. Loss - Spreading: less costly for society to take social dislocation and spread them widely instead of just center on P; make other
consumers pay more. Risky to rest Sλ on generalization that Δ is in better position to spread. Consumers typically less well-
placed to spread than producers. Workers Comp (and other legislative schemes) allow wide spreading but low recovery (out-of-
pocket loss only). Enterprises make externality a cost of the activity. With Sλ, only customers who choose to take risks bear
cost. Social insurance is the real solution for spreading. Problems include inhibiting economic/technological development.
b. Loss Avoidance – Risk Reduction (Safety): Should be accorded less weight than spreading (Abel disagrees: should be more
concerned with accident prevention than cleaning up afterwards). Enterprise has more knowledge and capability to reduce risk of
injury. We’re still unsure how well deterrence works (esp general det). S/L can help courts by helping them avoid having to
decide whether the level of care was reasonable.
c. Not about fairness necessarily. Just that P’s are defenseless and don’t have $$ to take care of injuries.
d. Administrative Costs: Less costs litigating fault/ other arg is that might increase costs b/c broaden # of tort claims (Abel disagrees
with King here. Abel says less certainty so more settlements).
ii. Calabresi: Three costs of accidents - agrees
a. Primary: cost of injury (can be reduced by safety)
b. Secondary: cost after injury (reduced by spreading)
c. Tertiary: transaction cost (cost of operating system, insurance, lawyers)
i. # of claims, in S/L # of claims will go up. However, cost of litigating will be reduced. Many more settlement which
are cheaper. Need to look at net transaction costs.
i. Opposed to legislative regulatory authority because too general; will be under and over inclusive
Assumptions
1) Rationality (not sure who would make worse decision)
2) Information (always imperfect information)
3) Perfect Market
4) Population of events
iii. Posner (p535) – If one way to reduce injuries is to lessen activity level,
a. Safety: Strict liability has same safety effect as negligence. If avoiding negligent actions already, then if negligent, will have to
pay off victim; when under S/L then will be cheaper to pay off victims when take all cost-effective precautions. S/L doesn’t
increase incentive to be more cautious. But, see following refinements by Abel for why have S/L:
a. Negligence’s false negatives (changes in activiy)
i. Victim fault: victim who have valid claims don’t make claim or settle cheaply b/c afraid might lose.
ii. Jury fault: where jury doesn’t return for victim b/c problems with proof (RIL, PL’s burden shift)
1. Abel talks about Perverse Incentives of entrepreneurs: Under negligence the E will try to avoid
liability; under S/L, the E will try to produce best outcome.
iii. Tortfeasor fault: Research and Development. Entrepreneur has incentive to always research extra safety
precautions
b. Activity location & level (changes of activity)
i. Functional equivalent: decrease level of hazardous activity
ii. Price elasticity of demand:
iii. Decisionmakers

56
 1. Producers
2. Consumers
c. Objections
i. Regressive spreading (but is this the way to subsidize? Think how cigarette smokers have to pay for all
lawsuits tobacco company experience. Poor ppl are the ones who really pay)
ii. Discourage innovation (Abel disagrees. He thinks research should be subsidized, through tax base, and
airplanes had S/L first and they became safer)
iii. International competition. (Abel disagrees. Foreign competitor in American market would still be sued. If
American product in foreign land, prob won’t be held liable. Abel doesn’t want a “race to the bottom”)
iv. Overdeterrence (Abel agrees with erroneous attribution of cause b/c sometimes courts say there’s negligence
based on weak causal link; overestimate of damage: how can we say this when jury’
v. Theory of second best: black markets might come up.
Following Hand formula, will not spend extra on safety when it is cheaper to pay accidents (B/c here, B<PL so cost less to pay
victims than on precautions)
(1) Negligence focuses on liability, not safety: negligence builds in perverse incentive for parties to focus on getting out of
liability. Deep-pocket Δ could establish reputation for stonewalling, so will not be a target (AAA). Incentive to create paper
record to avoid liability. Strict liability gets rid of perverse incentive. Might change focus to causation instead.
(2) Price-sensitive activities: Strict liability might move activity from dangerous place to less dangers place (criteria 5 in
Restatement 2nd). Increase in price might drive activity levels down, where purely discretionary spending (Flopper).
Should not impose Sλ on things that should not be price-sensitive (health care).
(3) Encourages safety innovation: Sλ keeps constant incentive to develop innovative technology to improve safety. This might
be inherent in Hand formula (interest in keeping B low).
(4) Marginal safety gain in moving from negligence to Sλ
b. Who should make Hand formula calculation
(1) Non-λ: victim
(2) Sλ: Δ
(3) Places decision about accidents on person who has capability of making it
c. Innovation: might discourage innovation, if company must pay when it causes accident (to encourage innovation, society must
subsidize accident costs => Industrial Revolution led to negligence). Might also make US less competitive on the international
market (US priced out internationally)
d. Black market: danger of generating black market with no λ (toughman boxing)
e. Costs: Administrative costs will go down w/ S/L because won’t have to litigate negligence. However, # of cases might go up if
activity of hazardous activity remains constant. So, if accident rate in some activity will fall dramatically if S/L imposed, b/c
accident costs exceed costs of avoiding them thru changes in level of activity, then fewer claims & so S/L worth it.
iv. Morality (Holmes)
a. Corrective justice: Tort λ is a form of moral culpability. Should not impose liability unless Δ did a bad thing. State has no right
to take their money.
Fletcher: general principle is that victim has right to recover for injuries caused by nonreciprocal risks.
b. Problem with this argument: insurance means that wrongdoer doesn’t pay (premium increase punishment). Makes sense to
impose Sλ where risks are non-reciprical (blasting cases). Also how to deal with workers comp?
v. Defenses
a. Non-tort incentives: Δ has market incentive; Π has bodily integrity incentive
b. Don’t look at π’s negligence if Δ is engaged in blasting

E. Products Liability
Three theories under which seller of chattel can be liable to one who is injured:
(1) Negligence
K not required. Victim need only be foreseeable
(2) Warranty
Express Warranties – breach made by false claim
Implied Warranties
Merchantability (fit for ordinary purposes)
Fitness for particular pupose (seller promised specific thing to P)
(3) Strict Liability
Apply if (1) product in defective condition that is (2) unreasonably dangerous to user/consumer.
Applies to retailers as well as manftrs; applies to products that have no warnings to non-obvious risks or incorrect use.
Doesn’t apply to unavoidably unsafe products

EVOLUTION OF Facts Actors Holding

CASES (p543-545)
Winterbottom (1842)
K required
Π riding in mail coach Mftr => owner => mail => P No liability, because viewed as K problem; no general duty
was injured when it of care to the public w/o K
broke No longer good law; overturned by MacPherson
Arg: P could sue mailer then mailer sue owner (sue

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 through K) but would be inefficient.
Thomas (1852) Faulty drugs poisoned π Mftr => pharmacist/druggist Finds for π: (1) foreseeable (sounds like negligence, so
Time variable => π redundant), (2) put life in imminent danger (time variable)
(immediate illness after
consumption) Reasoning: cheaper for Mftr to check drugs (more control)
Problems: difficult to define (how imminent)
Loop (1870) Circular saw defect Mftr => retailer => π No liability; No action against Manuftr; could sue lessor
Less dangerous, longer Less dangerous object than drugs?
time Perhaps b/c saw didn’t break for 5 years, didn’t meet
immanency
Losee (1873) Steam boiler Mftr => consultant => π No duty by Mftr.
Due Diligence P had tried to sue buyer Boiler was tested by manufacturer and buyer (due
in previous case, lost diligence done)
Devlin (1882) Employee hurt by Contractor => EE Ignore workers comp; owe duty to all product users,
Duty to all product users negligently built scaffold regardless of whether EE; ∆ has duty to build with
(built by contractor) reasonable care
Statler (1909) Exploding coffee urn in Mftr => restaurant => π Duty because product is inherently dangerous (language no
Inherent dangerousness restaurant due to mftr longer used) if not properly constructed.
considitions (if due to
use by P, then diff
outcome)
MacPherson (1916) Bad wheel – could have Component part mftr => car Liability, because car mftr is responsible for inspecting the
General duty of care to been discovered by mftr => retailer => π whole product, even if future π is unknown (foreseeability)
users, even those w/o reasonable inspection.
privity of contract Look at who can most
efficiently reduce danger
Smith (1935) Bottle Bottle mftr => bottler => Π sued mftr (following MacPherson)
Follows MacPherson retailer => π Δ could try proximate cause problem (flaw in bottling
rather than bottle) => multiple Δs, determine whether
superceding/intervening cause

1. NEGLIGENCE
i. No privity needed for liability (used to have to need K)
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.
Accepted by every state: If product will be unreasonably dangerous if defective and was proximate cause of P’s injury, P may sue in
negligence w/o privity. ABOUT NEGLIGENCE and increasing the scope of it for the manufacturer. Moved from “imminence” to
“foreseeability.”
Example- MacPherson v. Buick Motor Co MacPherson, a purchaser of a car, was permitted to sue the manufacturer for negligence
in spite of the lack of privity of contract
a. Reasoning: If wheels defective, then certain injury will occur. Based on 3 points: (1) D negligently failed to inspect, (2) it knew
that a defectively constructed automobile was a probable danger, and (3) it knew that its cars would be used by persons other than
the buyer (retailer).
b. Rule extended to following areas:
1) Property damage: Most courts allow negligence recovery if only property damage
2) Economic harm: Courts split on this
3) Bystanders: If bysteander can show they were a “foreseeable plaintiff” then can recover. (ex: pedestrian hit by car crash
where car negligent)

ii. Res Ipsa Loquitur & Products Liability (Cross between negligence & S/L)
Rule: A non manufacturer bottling company, which has exclusive control over bottles, can be liable in negligence for an
exploding bottle, even though it is not clear why the bottle exploded, based up on the doctrine of res ipsa loquitur
Example: Escola (shattered coke bottle, p546)
a. Actors: bottler => bottle manufacturer => retailer => π (EE)
b. Who to sue: π cannot sue retailer (ER), sues largest pocket (bottler)
c. Central problem: π can’t establish negligence (lack of information) or res ipsa (π cannot rebut Δ’s expert)
(1) Res Ipsa: π cannot refute Δ
(i) Exclusive control by Δ (not true, b/c of bottle mftr and retailer; π’s possible contribution)
(ii) Problem: place onus on Δ to show non-negligence, but then π won’t be able to refute Δ’s expert evidence
d. Traynor evaluation of sentence “it should now be recognized that a manufacturer incurs an absolute liability when an article
that he has placed on the market, knowing that it is to be used w/o inspection proves to have a defect that causes injury to human
beings.”
(1) Manufacturer: according to Restatement 2nd (p555), seller not engaged in business of selling such a product are excluded
(ex: used item, b/c Δ lacks control over item; c/a previous owner knows habits/quirks)
(2) Absolute λ: retailer is under “absolute λ” to customer because of warranty
Why not strict liability?
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 (3) Article: does not include services. Does it include house? Liability incurred on entitiy that offers article for promotion or
sample
(4) Used w/o inspection: borrows from MacPherson
(5) Defect: implies fault (sounds like negligence); unreasonable dangers sounds like negligence (Abel says the word defect
seems misplaced b/c it implies negligence. If not negligence, then what does it mean to have a defect that ‘s not negligent)
(6) Injury to human: pure property damage, economic loss or emotional distress might not be included
(7) Moral argument: Fact that manufacture manufactured is sufficient moral argument, they placed it in the market
e. Safety: public policy demands that responsibility be fixed where it will most “reduce hazards to life and health” Traynor feels
that if move to S/L then there’s a net safety gain b/c mftrs will make products safer. Traynor feels spreading is correct.
(1) Posner: Strict liability and negligence have same effect on safety
(2) Activity level change: Strict liability might persuade Δ to change bottles (negligence insufficient to get people to change
activities)
(3) Allows π case: π could not prove negligence or get res ipsa (would have false negatives and not punish Δ)
(4) Autonomy: against this type of spreading, because all people pay under Sλ

Escola Restatement 2d Restatement 3rd

Manufacturer (but really bottler)
Article
Placed on the market
Knowing it is to be used without
inspection
defect
Injury to human beings
Normal and proper use;
Product as it reached the market
Seller enaged in the business of
selling
Product
Defective condition unreasonably Foreseeable risks of harm... could
dangerous… have been reduced or avoided by the
although the seller has used all adoption of a reasonable alternative
possible care design…and the omission …renders
the product not reasonably safe
[Same with respect to warning]
Physical harm
Expected to and does reach user or
consumer without substantial change

iii. Who can be held liable under negligence theory for product liability?
a. Manuftr
b. Usually NOT retailer unless had reason to know of danger and did not warn customers
Some courts say that retailer has duty to make superficial examination (esp car dealers where defect could lead to severe
injuries).
c. Bailors of real property (rent a car companies), sellers & lessors of real estate.

2. WARRANTY

i. OVERVIEW & DEVELOPMENT: K used to be requirement. Cts play with definition of privity in order to extend
warranties to tort law. Important to note, that even w/o negligence, Seller will be liable w/ express or implied warranty.
Example: Ryan v. Progressive Grocery Stores (p555) K origins – woman bought loaf of bread, husband bit in it and there was a pin
in it. Ct said D liable for breaking warranty of merchantability (implied that someone will eat the bread, implied in sale that customer
will buy bread w/o pin in it)
a. Prior to products λ in Escola, had doctrine of 2 implied warranties:
(1) Merchantibility: Escola not involved in sale (not customer); sell something and say you get what you paid for.
(2) Fitness (type of warranty where try to sell something to get person a diff quality – “this computer will get you an A in
torts!): very rarely available, unless salesperson involved (promised for certain use)
b. Privity-based doctrines, so would have to be claimed against retailer directly (and store would have to sue wholesaler). Cardoza
resolved this problem by saying wife was agent of husband. Cts later get rid of privity based requirement. Escola got rid of need
for contract.
Later on… rule developed to get rid of K requirement
Rule: Cannot disclaim warranties by K; imposed strict liability for products liability (manftr cannot escape liability if 3rd person responsible
for inspecting product)
ii. Vandermark v. Ford Motor (CA Court, brakes failed, p561)
a. Facts: P bought car from retailer who was supposed to inspect cars by manuftr (Ford). P drove car, brakes failed, sued Ford and
retailer.
b. Like Greenman. Ct held that Ford could not escape liability b/c evidence suggested manufacturing negligence. Also, retailer
negligent for negligent inspection (didn’t catch the defect).
c. Policy: manftr should bear costs for introducing defective automobile, cost of business.
iii. Products liability vs. warranties (East River Steamship)
a. Consumers need protection from dangerous products, more than that afforded by warranty

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 b. Tort concern with safety is reduced when injury is to product only
c. Bargaining power: commercial parties can set terms through K and negotiate liability
d. Warranty has built-in limitation
e. Failure to perform and product damage only (no threat to people) => must claim in K warranty
iv. Rule: UCC extends to bystanders – they can sue under breach of warranty.
Usually limited to just people reasonably expected to use and be affected by defect in product.

i. Express Warranty – A seller my expressly represent that her goods have certain qualities. If the goods turn out not to have these
qualities, the purchaser (or, possibly, other affected persons) may sue for this breach of warranty.
a. Under UCC – express warranty need only be part of bargaining. P doesn’t have to show he actually relied on express warranty.
b. Privity –
- Some courts state that any other person who did not actually buy product from manftr may sue for breach of express
warranty. No need to show that P was even aware of express warranty.
- Other courts say if P not in privity with seller, P must be at least a member of a class that seller intended to reach w/
express warranty. Ex: if seller can show no expectation that product would be resold, 2nd buyer would not be protected

ii. Implied Warranty – The existence of a warranty as to the quality of the goods can also be implied from the fact that the seller has
offered the good for sale.
a. Warranty of Merchantability: UCC imposes this standard: “Fit for the ordinary purpose for which such goods are used.”
i. Used Goods: Most courts say NO liability for used goods under warranty. UNLESS, seller states used goods are as good as
new or “nearly new.” Then buyer is justified in believing risks would be no greater than if product was new (similar to S/L
theory, see below)
ii. Lessors: court might allow recovery on an implied warranty theory by analogy to UCC.
b. Warranty of Fitness: Warranty if seller sells goods for “particular purpose” and buyer relies on seller’s judgment and buys it
for that purpose.
i. At first, warranty doctrine limited liability of warrant of fitness to just food cases. Ct later got rid of privity requirement for
other situations that didn’t include food (ex: automobiles). Lack of K between ultimate purchaser and manftr is immaterial –
implied warranty applies because manftr put product in stream of trade and asks the public to purchase it.
Example: Henningsen v. Bloomfield Motors (pg. 560 – D produced car w/ defective steering wheel. P’s wife drove it and was
hurt when steering failed)
1) Held: Wife can recover from D under breach of implied warranty of merchantability even though she never contracted with
D directly. Ct applied standards of food cases (Ryan) to other cases where great potentiality for harm to driver, occupants,
and others.
o Cts hold that manftr’s warranty extends to remote purchasers further down line and once sold to final
purchaser, members of household reasonably expected to use product are covered by warranty
2) Also, disclaimer that D signed of all warranties was deemed inefective because seen as adhesion contract (gross inequality
of bargaining positions between maftr and consumer)
c. Summary of Implied Warranty
- Almost all states allow P who has actually purchased goods to recover on implied warranty, even though purchase made
from a dealer not manftr (actual D).
- Most states (by statute or case law) permit non-purchaser to recover personal injuries against manftr or someone on
distributive chain when P’s use of/presence near the product is foreseeable

iii. Warranty Defenses

a. Disclaimers: Usually don’t work (and cts say can’t disclaim implied warrantibility of merchantability), but might work if
disclaimer conspicuous and P given notice.
b. Limitations of consequential damages: Seller might try to limit remedies of defective product, but most courts will state that
this is unconscionable for personal injuries and if product sold for personal use.
Commercial: However, if loss from breach of warranty is commercial, limitation of damanes is not unconscionable (ex:
intangible economic loss in business setting)

v. Why sue under warranty instead of S/L?

a. Sometimes can get money under warranty when suffer only economic harm (might not work under S/L)
b. SOL: warranty actions have longer SOL than S/L. S/L in torts usually have 2 or 3 SOL. Warranty usually last around 4 years
under UCC.

3. STRICT LIABILITY – Policy reasons: spreading the risk, satisfying reasonable buyer expectations, & risk reduction.
i. Greenman v. Yuba Power Products (CA Court, p561) strict liability for product defects. No need for K.
a. Facts: wife bought shopsmith power tool from Retailer. P was hurt from piece of wood that flew up and hit P. P won judgment
against manufacturer based on negligence and express warranty claims (tool was defective which is reason why wood flew up).
b. Ct stated that manftr S/L in tort when article he places on market, knowing it is to be used w/o inspection for defects, proves to
have a defect that causes injury to human being.
c. Policy: Spreading to manftr.

ii. Restatement 2nd Section 402A: 2 years after Greenman, cts created S/L liability. Most courts follow this. Applies to manftr, retailer,
and any other person on distributive chain.

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 Special Liability of Seller of Product for Physical Harm to User or Consumer:
(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/consumer w/o substantial change in the condition in which it was sold.
(2) The rule above applies even if
a) the seller has exercised all possible care in the preparation & sale of his product, and
b) the user or consumer has not bought the product from or entered into any K relation w/ seller

iii. Extention of Strict Liability

i. Rule: Can apply to bystanders
Example: Elmore (pg. 562) – CA case – Extend liability to foreseeable bystanders
a. Held: Extend S/L, manftrs and retailers have a duty towards bystanders as well as customers (negligence not required, just
S/L to bystanders b/c reasonable)
b. Ct says there’s an asymmetry between knowledge. Bystander knows 0, mftr knows more. Bystanders can’t invoke
warranty law.
ii. Used Goods: Most courts say NO liability for used goods. UNLESS, seller states used goods are as good as new or “nearly
new.” Then buyer is justified in believing risks would be no greater than if product was new.
Tillman v. Vance Equipment Co. (pg 553) OR, 1979: Generally, sellers of used goods are exempt from SL
*Note the possibility of strange outcome: Dealer is strictly liable to lessee one day and then not to the buyer the next day.
(We do not know this for sure because there is no case on point – but it seems to be the result)
a) Policy: Only spreading risk applies. Would not satisfy reasonable buyer expectations b/c buyer knows product is used,
and no risk reduction possible by seller b/c seller has no direct relationship to manufactr.

iii. Lessors: Held by S/L. Ex: Car rental companies. However, lessor must be in business of leasing.
iv. Government contractors: usually not liable (same thing when private contractors follow government standards) because ct said
against public policy (contractors will decline to manufacture design specificed by gov’t or raise prices)
v. Causation: Factual cause and proximate cause issues just as important as negligent cases.
Ex: Stahlecker v. Ford Motor (pg. 566 – no liability b/c defective tire didn’t increase danger of murder, intervening force was
the intentional actor)
Facts: Tire was defective, car couldn’t move in remote area, P was killed and assaulted. P’s estate claim that tire caused crime
and tire company is liable under S/L.
Held: No liability because even tho tire defective which renedered car inoperable, the tire was not proximate cause. Stranger’s
acts negated proximate cause. ARGUABLE
vi. Emotional Distress: Cts are mixed. Usually allow recovery if person claiming damages was product user.
Example: Bray v. Marathon Corp (pg. 566 – P saw other EE crushed to death inside compactor when P pushed buttons to work
compactor)
Held: Ct allowed P to recover for NIED because P was not a bystander, but was a product user.

iii. Restatement 3rd: Created to cope w/ evolution of product liability. Not applied as much as 2nd restatement because it’s so new, but
it’s good to discuss it during the exam. 3rd doesn’t require “unreasonably dangerous” standard like 2nd.

(1) Liability of Commercial Seller or Distributor for Harm cause by defective products
One engaged in business of selling or otherwise distributing products who sells / distributes a defective product is subject to liability
for harm to persons or property caused by the defect

(2) Categories of Product Defect

A product is defective when at the time of sale/ distribution, it conatians a manufacturing defect, is defective in design, or is defective
because of inadequate instructions or warnings.
A product:
a) conatins a manufacturing defect when the product departs from its intended design even though all possible care was exercised
in preparation and marketing of 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 alternative design renders the product not reasonably safe.
c) is defective because of inadequate instructions or warnings 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 instructs/warnings renders the prdocut not reasonably
safe.

4. DEFECTS

TYPES OF DEFECTS
1. Manufacturing

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 A. Theory: design defect by production line, rather than product itself. The aberrational widget which is cause of injury = manftr is liable, no
excuses can be given. One-off defect, will generate few injuries. True Strict Liability = Absolute liable
2. Design (Soule, Camacho)- all objects in product line are badly designed
A. Theory: deliberate, affects more people. Implicates autonomy; π chose to buy product.
B. Barker Tests
(1) Reasonable customer expectations (CE) => S/L
(A) π seeks (Soule)
(B) Δ seeks (Camacho)
=> π can exclude experts (based on regular person)
=> Δ cannot offer evidence that too expensive/inefficient to meet CE (exceeds negligence)
** Compare to Warranty (S/L)
(2) Reasonable alternative design (RAD)
(A) Rule: whether through hindsight, design embodies excessive, preventable danger (Barker).
(A) Δ gets (Soule)
(B) π gets (Camacho)
=> Δ burden of proof, to show no RAD (like Hand = essentially negligence)
3. Warning

Crashworthiness test: car designer must design in anticipation of crashes and do whatever reasonable to protect car occupants
CRITIQUE: leads to inconsistencies across jurisdictions (mftr has hard time meeting all); strict liability solves that problem

i. Manufacturing Defects – One of a kind thing

a. RULE: True strict λ: product in line that is different from the rest, something went wrong with manufacturing process or after
manufacturing process; Δ cannot claim that it exercised reasonable care
1) Example: Welge v. Planters Lifesavers co. (Ct held manufacturer introduced defect, peanut glass jar shattered, pg. 568)
Facts: P able to show she did not increase or create defect in product.
Held: Ct held that company was liable. Immaterial that defect might have been introduced during manufacture by someone
else in production line other than D. Seller is subject to S/L for products is responsible for consequences of selling defective
produjct even if defect introduced w/o fault on seller’s part or his supplier, or his supplier’s supplier etc. HOWEVER, still
important that P didn’t create defect
2) Compare: Case where product more complicated and defect might have been introduced by P (no liability)
Rule: Need to be able to link defect from manufacturer and not solely from use.
Example: Price v. General Motors Corp (pg. 569) – Car has been driven a long time, had been sold to P and P had used it for
several thousand miles.
Held: Because no evidence that shows defect relating to maintenance & repair history prior to purchase, no way of knowing
whther mechanical parts were original => no manufacturer liability.
3) Policy: Encourage manftrs to make these safety changes. Don’t want courts making these decisions of what’s safest method
of production (Abel takes this from Greenman)

ii. Design Defects – Many products affected

This is where all of similar products manufactured by D are same and they all bear a feature whose design is deceptive / unreasonably
dangerous. Important to note a lot of negligence analysis here (manftr create product where he should have known it was
unreasonably dangerous to design it that way)
a. Rule: No need to show defect was inherently dangerous. By showing negligence and that defect was proximate cause of injuries
is enough.
i. Example: Cronin v. Olsen (bakery truck with metal rack that injures a driver involved in a crash, p569) CA says doesn’t
matter about defect inherently dangerous. Keep defect language
(1) Facts: bakery truck made sudden stop; trays secured by metal rack hit driver
(2) Difficult to determine whether manufacturer or design defect
Manufacturing defect: one-off, will generate few injuries
Design defect: more deliberate, affects more people; implicates autonomy interest (π chose product)
b. Rule: CA & NJ adopts this test when deciding whether design defect.
Apply either test: There will be a design defect if either
(1) the design does not perform as safely as a reasonable consumer would expect when used for an intended or reasonably
foreseeable purpose (Consumer Expectationat)
• Use only for cases where product is in everyday experience and so product users would be able to conclude that
design violates minimum safety assumptions. Must be within common knowledge. If need expert testimony, then
usually can’t use this test.
• Factors: (from Soule)
1. Product failed to perform as safely as ordinary consumer would expect
2. Defect existed when product left manufacturer’s possession
3. Defect was a “legal cause” of π ’s “enhanced injury.”
4. Product used in reasonably forseeable manner
or

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 (2) design’s dangers outweigh its utility (Reasonable Alternative Design)
• P able to show defective product if design has excessive preventable danger, unless benefits of design outweigh
risk of danger inherent in such design.
i. Example: Barker (EE crushed by high-lift loader after another EE expressed concern, Workers comp & products liability
interact, when should PL step in since WC gives low damages? p570) RAD
(1) Establishes two alternative tests: (1) reasonable Consumer Expectation or (2) reasonable alternative design
(2) Consumer Expectation not applicable b/c π is not a consumer; if foreseeable use, it’s a cost of manufacturing.
(3) RAD rule: whether through hindsight, design embodies excessive, preventable danger
(i) Balancing test: between risk and benefit sounds like Hand. P must prove there exists a RAD and that existing
design so unsafe that failure to use RAD renders product not reasonably safe. Don’t need actual prototype, just show
general idea of what could be improved.
o Helpful Factors: similar products from other manufacturers have alternative design; cost and utility of
RAD proposed by P; whether present design has specific value to soncumer choice and not all
consumers have to prefer RAD over present design.
Differences from Hand:
(a) Through hindsight means based on info at trial (whereas Hand asks what mftr would have done before trial)
(b) Δ has burden of production & proof (π has burden in negligence)
(ii) Res ipsa with a twist: in res ipsa, π satisfies burden of production, but here, also shifts burden of proof to Δ to show
the product was safe.
c. Rule regarding CE – inappropriate when product standards not within common knowledge of consumers
Example: Soule (toe panel crushed π’s foot, p559) CE inappropriate b/c ppl don’t know the product & don’t know what to
expect. Better test was “risk-benefit” test. Case shrinks applicability of CE in Barker case.
Facts: P injured in car accident b/c car frame collapsed in extreme way. P sued D for design defect and jury was wrongly told to
use CE test instead of Risk benefit test (RAD). P won in 1st trial, but ct here says the reasoning was wrong. However,
ct here upholds same ruling.
i. Crashworthiness doctrine: car designer must design in anticipation of crashes and do whatever reasonable to protect car
occupants. Manftr liable for not taking reasonable precautions to minimize injuries to passengers once accident occurs.
Industry custom can be a factor.
ii. π’s goal is to invoke CE, b/c Δ cannot rebut (looks at customer hopes only, not cost of making product)
(a) Must be widely accepted and a reasonable expectation (lay person knowledge)
(b) NO CE: customers do not have knowledge about toe pan design (shrinks CE applicability)
iii. Δ argument: information asymmetry between customers/manufacturers; customers don’t know how safe these complex
products can be made. Comes from contract law instead?
iv. Compare/contrast: Campbell (CE for no grab bars on buses); Pruitt (no CE as to whether air bag should deploy in low
impact b/c not in everyone’s common experience – not within common knowledge); Morton (CE for asbestos poisoning at
work, even though EEs are not customers b/c there are commonly accepted min safety assumptions for ordinary consumers)
v. Should CE just be for severe situations? (car blows up at stop light) Is it really res ipsa ^2?
d. NO CE in following cases: Customers can’t appreciate added risks of complex products: Here, compare products to similarly
designed products. Most products here not deemed defective either because 1) they are same quality as similar products for
intended use or 2) the design was intended and customers use product b/c of design
i. Dyson (p568): hard-top car for sporty look, compare only to other hard top cars, not to full-frame sedan
-Unrein v. Timesavers- Π injured by industrial sander when she reached into it; the expert did not prepare drawings to show
that the alternate design could be integrated
ii. Dreisonstok: microbus has larger carrying capacity and maneuverability, you can’t have them any other way b/c wouldn’t
be a microbus anymore => only negligence liability. Safer than other types of open buses, don’t compare just to a typical
automobile; Change in Design would add to the cost, add little to the safety and alter the unique feature of the vehicle
iii. Camacho: motorcycle without leg bar adds freedom
iv. Bittner v. American Honda Motor Co.-Π hurt when ATV overturned; Honda properly permitted to compare safety records
of this ATV with other products intended for similr purposes, but not to dissimilar products and activities
iv. Commonality: features are perceptible but added risk can’t be appreciated. Consumer cannot evaluate the safety or lack
thereof.
v. Contrast: cases where jury allowed to make inference of defect where there is a malfunction.
i. Example: Mc Corvey v. Baxter Healthcare (pg. 595 – catheter erupted & fragmented inside patient’s bladder during
usual condition for use; Held: P entitled to benefit of inference of a defect when product malfunctions during normal
operation. No need to prove other potential causes not responsible so long as product malfunctions during normal
operation.
ii. HOWEVER, the defect must be due to manftr and not by use of P. Might not apply to USED goods
Example: Ford Motor Co. v. Ridgway (pg. 595 – 2 year old truck w/ 54,000 miles caught on fire). Held: Ct did not
allow inference of defect b/c truck had been repaired multiple times and fuel system had been replaced which might be
cause of fire. Cts usually unwilling to extend inference of defect to used goods.
e. Rule regarding RAD: Some courts allow liability even when P show that there is no RAD. Because the product is not a
necessity, its risks of injury outweigh utility of product so that it is a defect = liability imposed- Irreducibly Unsafe Product
Example: O’Brien v. Muskin (above-ground pool dive, p582) – Not all courts follow this. Some say a warning is enough
i. Facts: Victim dove into 3ft pool that had small warning sign; you can see walls of it, it’s raised, rendered paraplegic. Floor
was slippery so when he dived and landed on his hands, he slipped.
ii. Three choices:

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 (a) Negligence: trier of fact decides whether warning/vinyl layer were negligent
(b) Strict λ: mftr has complete decision about safety (cost-benefit); π still has bodily integrity incentive
(c) Non-λ: diver has complete decision about safety (whether safe to dive); relieves Δ of tort incentive
iii. In products liability, case-by-case evaluation of what regime to follow, based on product involved. Held: Ct decided that
trial judge should have permitted jury to consider whether risks of injury outweigh utility of product so that it should be seen
as a defect.
-Baughn v. Honda Motor Co.- rejects O’Brien- held that manufacturer of mini-trail bikes couldn’t be liable for injuries suffered
when the bikes were used on public roads in disregard of explicit warnings against such usage
-Proximate Cause- supplier must anticipate uses that were not intended: Price v. Blaine Kern- Π entertainer had bought
oversized characiture mask of George Bush made by ∆ ; ∆ should have foreseen the possibility of some sort of violent
reaction ignited by the oversized charicature of prominent political figure
f. Rule: Where danger of product is open and obvious, the Danger Utility Test (= RAD) is the appropriate design defect test to
use rather than CE test.
Factors to determine whether product design is unreasonably dangerous: (Ortho Pharmaceutical Corp. v. Heath)
(1) usefulness & desirability of product (both to user and public as whole; (2) whether product likely to cause probable and
serious injury; (3) availability of substitute product which would meet same needs and not be as unsafe; (4) manftr’s ability to
eliminate unsafe quality w/o impairing usefulness or making product too expensive to maintain utility (5) user’s ability to avoid
danger by exercise of care in use of product; (6) user’s knowedge of dangers through common sense or warnings; (7) feasibility
of manftr of spreading loss by setting price of product or carrying liability insurance.
Example: Camacho (no leg guard, but competitor motorcycles had them) π gets RAD
i. Intended or anticipated (foreseeable) use: Δ argued that accident was not intended use; However it is a foreseeable use
(crashworthiness doctrine).
Ct Held: that summary judgement for D was error. Referred back to trial court for further consideration using RAD –
whether inherent dangerousness of motocycle could/should have been significantly reduced by leg protection device; Moral
Argument is that we want the motor cycle riders to pay for the accident costs and we can achieve this through strict liability
ii. Camacho: Δ seeks CE (obviously no leg guards); Π seeks RAD (should have been leg guards). Stronger argument against
Patent defect than Soule.
iii. Compare with Soule: π seeks CE (but consumers have no CE on toe pans); forced into RA
iv. DEFENSE: Patent Defect: A defect that is apparent to a normally observant person, especially a buyer on a reasonable
inspection.  CA rejects and so do most other jurisdictions
(a) Defect that is obvious by looking (so burden on π b/c of decision) (autonomy argument)
(b) NO DEFENSE here: Δ must argue AR (volition, subjective knowledge) or comparative fault (wouldn’t work, not
questioning the way π drove)
(c) Allowing this defense would say that π are best capable of making safety calculation. Also would allow manftrs to
create products that are obviously dangerous and would not encourage them to put safety devices on or make safer
products (b/c no liability)
g. Application to Bystanders.
i. Some courts focus on expectation of victim and other focus on expectation on buyer/user (Farmers who sued building owner
for the Oklahoma bombing could not recover b/c they bought explosive fertilizer so they should expect that an
explosion might occur)
h. Intersection of implied warranty & CE: If someone tries to resell product as capable of some other activity than what it was
originally intended, might still be liable even when under CE it passes for it’s original purpose.
i. Example: D advertise jeep as appropriate for city streets. However, the jeeps design which originally intended to make it
safe for off-road driving, made it dangerous on the streets. Ct grounded CE test in implied warranty of merchantability.
i. Criticisms: Case by case analysis denies product manftrs guidance of uniform standards

iii. Warnings (Abel: If warnings allowed, then could make dangerous product but it would be alright w/ just a warning. Or patent
warning if just looks dangerous and assumed consumer should realize danger)
a. Rule: No warning required where danger is apparent (but courts differ on what types of danger are “apparent” or part of
“common knowledge”)
Example: Brown Forman v. Brune (underage individual died from drinking too much tequila, p596)
i. Held; Ct held no notice required to warn P and would not have averted what happened
ii. Key problem with Strict λ: ends up penalizing non-abusers
iii. Key problem with Non λ: ends up penalizing non-users, everyone else pays instead of just drinkers of alcohol
Contrast: Emery v. Federated Foods (toddler choked on marshmallows, p596)
(1) Different from tequila: less consumption, restricted to one certain type of consumer (baby), so less knowledge. Courts were
unsure whether it was common knowledge that young children at risk w/ marshmellows
b. Rule: A manuftr 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. Warnings need only be reasonable
under the circumstances.
>> NOTE: many courts hold that adequacy of warning is question for jury.
> Example: Hood v. Ryobi America (Π removed blade guards and was injured. Warnings on manual said there might be
severe injury if remove guards, but didn’t say specifically that removing guards would cause blades to detach from saw
p596); Heeding Presumption- where the Π offers evidence of inadequacy of the warning (Breach); What is the cause? The
Π typically has the burden of proof and must show that inadequacy of warning caused the injury; However, this doctrine
shits the burden of proof to the ∆

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 i. Held: Multiple warnings in the owner’s manual and affixed to the product are adequate, even though there was no specific
warning advising how an injury can occur (doesn’t matter if didn’t say specifically saw would fly)
ii. Would strict liability have changed warning?
(a) Manufacturer might have used more terrifying words (cost to mftr of losing customers b/c of fear)
(b) Anti strict λ: knowledgeable users shouldn’t have to pay for abusers
(c) Anti non-λ: imposes cost on general public
(d) Classic problem: if spreading goal, want broad spreading through insurance. If safety goal, want localized spreading
through product cost.
iii. Policy: If have to list all types of injuries, then it would be too much information for customers. If too much, then it would
deter customers from reading manual and might be too technical to understand (Information cost: inundation of
warnings dilutes value). Also, not known that many people remove the guards (if so, then reasonable modification
argument).
iv. NOTE: C/A for P here b/c he believed only his clothes would be injured, not that saw would fly.
c. Adequacy of Warning
i. Pittman v. Upjohnn Co.- criteria for adequte warning 1) must adequately convey the scope of the danger; 2) Must reasonably
communicate the extent or seriousness of harm; 3) physically must be adequate to alert a reasonably aware person; 4)
simple directive may be inadequate when it fails to indicate consequences that may result; 5) means to convey must be
adequare
d. Safety Instructions
i. Moran v. Faberge- teenagers tried to make scented candle with cologne; ∆ negligent for failing to warn of flammability
ii. Ragans v. Miriam Collins- Palm Beach Laboratories- Π hairstylist accidrntally poured activator into neutralizer bottle;
exploded- presented to jury because words failed to warn of dangerous consequences
e. Heeding Presumption: would consumer have heeded different warning; burden on Δ to prove that π would not have heeded
warning (cause in fact argument)
f. Concerns with S/L through example of Disposable lighters:
(1) Would true strict λ produce warning?
(a) Might lead to design change
(b) Negative externalities: elderly people couldn’t use it
(2) Would warning change π behavior?
(3) Is it desirable to make all consumers of lighters pay accident costs?
g. Misues- product suppliers had to anticipate uses that were unintended by reasonably foreseeable
Ex. Binakonsky v. Ford Motor Co.- Π drunk driver killed when ran into a tree- death attributed to fire caused by ∆ ’s use of
plastic pipes- ∆ must anticipate a variety of ways in which their cars may be involved in collisions
Ex. Lugo v. LJN Toys- playmate threw detachable part of doll made by ∆ into eye of Π ; foreseeable because of extensive
coverage where Voltron (character of doll) did so
g. Learned intermediary doctrine Rule: Applies to prescription drugs and prosthetic implant cases. Serves as an exception to
manuftr’s duty to warn ultimate customer – they tell doctor all dangers of drug and lets doctor act as learned intermediary
between manftr and patient to decide how to prescribe drug
(Exception 2) When the FDA requires warnings be given directly to the patient with a prescribed drug, the manufacturer needs to
warn patient, not shielded by this doctrine.
> Example: Edwards v. Basel Pharmaceuticals (wife sued for H’s death after he died from smoking while wearing two
nicotine patches, p607) learned intermediary doctrine exception #2. Note that it’s foreseeable someone would smoke
with nicotine patch since they’re trying to quit smoking; You want to warn the consumer, but not scare away
i. Suits against doctor: failure to warn, negligent prescription, informed consent (problem with this is customs are controlling)
ii. Suits against tobacco company: precluded by Surgeon General’s warning
iii. Learned intermediary doctrine: where prescribing physician was given complete warnings, manufacturer is immune as
long as they warn the Dr. and trust the Dr. to pass on that warning
(a) Efficiency: want to send info via best available expert
(b) Exceptions:
(i) Mass immunization exception: to account for lack of doctor/patient relationship; slightly anachronistic, because
doctor/patient relationships are less common in general, but manufacturer needs to warn the patient
(ii) FDA mandate: policy is that courts don’t want to undermine FDA by allowing mftrs immunity when they were
given explicit instruction by FDA
(iii) Oral contraceptives: often prescribed by NP (not doctor); sold to mass audience (like immunizations) for
significant period of time (diffuses doctor’s warnings)
(iv) Patient-requested: wellness drugs: where patient initiates request or mftr directly advertises to consumers, doctor’s
role is more minor; purpose of mftr ad is to leap over doctor and get directly at consumer
(v) Where ∆ advertises prescription drugs directly to the consumer, must discuss risks in ads (Perez v. Wyeth)
h. More cases: Strict liability for duty to warn
(1) Beshada (asbestos, p614):
-Can’t sue his employer because of exclusivity
(a) Even though mftr could not have known about dangers of asbestos, it had a duty to warn => strict liability
(b) Goals of strict liability: risk-spreading, accident avoidance, reducing transaction costs (cheaper w/o negligence
question), safety (incentive to spend more on research)- this case meets the goals
(c) Morality: mftr has moral duty to research for dangers
(2) Feldman (antibiotics, p600)
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 (a) ∆ ’s teeth were discolored by respiratory infection medication
(b) Unlike Beshada, mftr had no duty to warn for dangers it could not know about
(c) Different from asbestos: more minor injury/risk; drugs already have high level of safety testing and regulations
(d) Burden on Δ to show it could not have known about dangers (close to strict λ)
(3) James: chemical and petroleum manufacturers sued for failing to warn workers that drums contained toxic products
rejects Beshada further; obligation to learn whenever anyone in community knows of risk/danger (competitive knowledge)
(4) Hayes (p598): follows Beshada (strict liability)
(a) Hindsight duty to warn (mftr held accountable for what he knows at time of trial)
(5) Limits on Duty to warn
State of the art defense allowed - Rule: Some courts hold that manufactr need only warn of risks that were reasonably
foreseeable when product was sold, or that could have been discovered through testing prior to marketing product.
Manufacturer held to the standard of an expert in the field. (Minority courts adopt hindsight analysis view of duty to warn
which presumes manftr fully informed of all risks associated w/ product regardless of state of art at time of sale)
a. D can also show that product was safest on market at time
However, such evidence is not dispositive. Trier of fact can still decide that product was still defective if P can show
RAD could have been practically adopted.
> Example: Vassallo v. Baxter (breast implants, p612): rejects Hayes; goal is to induce conduct that can be induced, not
hold manufacturer liable for what it couldn’t possibly know
i. Facts: P sues breast implant manufacturer because implants had negligent product warnings.
ii. Held: MA changes law so no longer must a manuftr warn about a product’s risks that were unknown at time of sale.
Manftr must still continue to warn purchasers of risks later discovered after sale.
i. Ongoing duty to warn
(1) Lovick (p603)
(a) Ongoing duty for seller to warn, if:
(i) Constructive or actual notice of risk (aware of past injuries and modified use by customers or med risk)
(ii) Can identify owners that would likely benefit and are likely unaware of risk
(iii) Warning can be effectively communicated and acted upon by recipients (minimal cost)
(iv) Risk of harm is sufficiently greater than burden of providing warning (harm > burden of warning)
j. For and Against Strict Liability
(1) Moral: if Δ didn’t do anything wrong, then shouldn’t be held liable (c/a: mftr is causal agent and is profiting)
(2) Necessity vs. luxury: put products on a continuum, so that discretionary choices are treated differently
(3) Encourage functional equivalents: strict liability could lead to product alternatives => should this be up to courts or
determined by the market?
k. Misrepresentations (Restmt 2nd, § 402 B)- true strict liability doctrine
(1) Seller is liable for physical harm to one who justifiably relies on material misrepresentation; Assert something about safety
that ends up being false; sounds more like K claim (there are no defenses) Hauter v. Zogarts- notice that ball will not hit
golfer on a golfing tool; this happened

l. Suitability for unintended uses

i. Unforeseeable misuse: If misuse of product is unforeseeable, courts generally agree manufacturer has no duty to design
product so as to protect against it.
ii. Foreseeable misuse: Most courts require manftr to take at least reasonable design precautions to guard against danger from
that use.
iii. Unreasonable use: Even if misuse is foreseeable, courts may say use is so unreasonable (and at times unusual) that mere
unreasonableness should result in a finding that seller had not duty to design against it.
iv. Warnings: Whether or not a re-design is required to avoid liability, a warning against the danger from the foreseeable misuse
will often be required.

5. DEFENSES

i. Comparative Fault
a. Rule: A consumer has no duty to discover or guard against a product defect, but a consumer’s conduct other than the mere failure
to discover or guard against aproduct defect is subject to comparative responsibility; Public policy facors reasonable
conduct by onsumers regardless of whether product is defective
Example: General Motors v. Sanchez (Texas: put car into neutral instead of park, p620)
i. Facts: π meant to put car into park but accidentally put it in mid-gear where it went into hydraulic neutral; Π got out of truck
and it rolled over him (Other factors are that person had done it so many times, time saving element for P)- If GM were
strictly liable here, maybe they would build a quitfail so that for instance when they opened the door the engine would shut
off- Reduce the incentive for the Π to re-design the car
ii. π’s claims: (i) Workers comp: if at work (we don’t know if he was here); (ii) Products liability: court finds mid-gear an
insoluble problem (Sλ would have put best design question on mftr); (iii) Survival Action- what he would have had but for
his death for the time between when he was pinned and when he died, (iv) Negligence (chosen here)
iii. Comparative Fault (622)
• 1987: Legislature enacts statute– damages diminished by P’s % of responsibility caused by negligent act or
omission or other conduct violating applicable legal standard (SL)

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 • 1988 (Keen): Follows 2nd restatement; holds that negligent failure to guard against defect not a defense; P has no
duty to discover defect
iv. Defenses to negligence claim
(i) Comparative responsibility (diminishes damages)
(ii) Assumption of risk (Δ could avoid liability altogether, however π didn’t have subjective knowledge)
v. FOUR approaches to defenses
(i) Keen / Rest 2nd §402A:
(a) Failure to discover is disregarded (comparative fault is unavailable, some plaintiff’s fault is not going to be
considered, closer to Sλ)
(b) Assumption of risk would be absolute bar b/c prior to comparative fault; no AR, b/c no knowledge (makes
products liability more like strict liability)
(ii) Rest 3rd:
(a) Reasonable failure to discover defect: no defense
(b) Unreasonable failure to discover: defense
(iii) 1987 Act (p607): Comparative responsibility, each party pays %; no defense that π did not inquire into dangers
(iv) Sanchez:
(a) Failure to discover: disregarded (Keen)
(b) Other negligence: Sanchez is guilty of other negligent behavior (reading and disregarding manual), which is
distinct from failure to discover => diminishes recovery
(c) Assumption of risk: would be absolute bar (Binakonsky v. Ford Motor)- Π drunk driver alleged fire from design
defect, not his crash killed him- not entitled to Assumption of Risk since Π unreasonably used product despite a
known risk of danger.
(5) Why not have comparative fault in workers comp
(i) Consequence of moving from Sλ (Escola) to negligence approach (Barker, Soule)
(ii) EE not autonomous
(iii) Trade-off between regimes (certainty of payout, but smaller)
b. Comparative Fault applied but confusion on how to decide percentages of fault.
EX: Daly v. General Motors Corp (pg. 625) –Comparative Fault applied on product liability case. Liability has potential to
redesign to make a product safer
Facts: Lawyer stay up late working, then while driving hit the guardrail. Design defect in designing car with the latch (button to
push from outside). However, he hadn't worn seatbelt & hadn't locked car (at that time that was normal). If he had
done those, prob wouldn't have been ejected and injured so seriuosly
Holding: Ct decided to apply comparative fault
Notes CA v. Texas: CA at the time adopts comparative fault to products liability. Diff from what Texas does.
If products liability is S/L, then how can you compare behavior of user with manftr?

5. Workplace Accidents
> Majority view: If modification is foreseeable, seller is liable. S/L gives manufacturers an incentive to make product safe.
i. Minority Rule: When a 3rd party’s modification makes a safe product unsafe, the seller is relieved of liability even if the modification
is foreseeable. (Hard to reconcile this view w/ general principle that manftr has duty to market reasonably safe product.)
> Example: Jones v. Ryobi (modified printing press, taught her to use it w/o guards and pressured her to use it w/o the guards plus
98% of users had modified press to be used w/o guards, p629) Damages from Workers Comp much lower than Tort damages
(income replacements 2/3s, death benefits really low, no comp for emotional distress, pain & suffering, consortium, cap on # of
weeks and max income etc)  about whether foreseeable.
This is a minority view  creates perverse incentive (cheaper to injure our employees than to protect them) to create machines w/o
safety measures which can be removed.

ii. Extention of duty to warn

Rule: No duty to redesign to prevent post sale modifications, but there is a duty to warn against foreseeable modifications, which are
not open and obvious before and after sale and that render product unsafe
No Duty to warn if so obvious to everyone that modification is dangerous => court can decide if no reasonable mind could
disagree.
Example: Liriano v. Hobart Corp. (meat grinder, took safety guards off, which amputated recent immigrant’s arm), ct found liability
to warn, p633)
a. Held: Manuftr liability for failure to warn may exist in cases where substantial modification defense would preclude liability on a
design defect theory. Manuftr has duty to warn of danger of unintended uses of a product if they are reasonably foreseeable.
Safety device is often most effective way to communicate operation of a product without the device is hazardous
b. No claim where product was substantially modified (Robinson) – but Robinson dind’t deal with duty to warn. Just can’t sue for
design defect.
c. Contradiction: recognize that modifications are unforeseeable (no λ) but require mftr to warn against these unknown
modifications. Plus, these warnings might not have much effect esp where worker is immigrant with little power and fears for his
or her job.
d. Heeding presumption: D could try to claim that π would have acted same way without warning (cause in fact)
e. Alternate: OSHA (extremely unlikely to be detected by OSHA officer)
iii. Manuftr might be liable under Design Defect when designed to have safety measures removed or safety issues not dealt with
by manftr.

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 Ease of modification/Frequency of modification changes liability
>> Questions to ask on exam: $$ to modify? Predictability? $$ to prevent removal of modification?
i. Example: Lopez (Pg. 638) Removeability subjects manftr to liability
Facts: D manuftrs forklift w/ cage but designed so cage can be taken off. ER takes off and Lopez injured
Held: Ct concludes that the design with cage is ok, but the fact that it can be removed was a defect. Although it was a substantial
modification, manftr still liable b/c allowed the modification to be easily made.
ii. Anderson v. Nissei (Pg. 638) EEs had to drill hole to alter it. Manual did not mention how to get rid of “drool” in machine.
Held: Ct state that machine was defective as marketed even with modification by 3rd party. Ct focused on ease of removal of
safety measures and D’s failure to warn/address issue of “drool.” Here, modification was essential to keep machine running and
removal of safety gates was common in industry => modification could be found foreseeable and product defective.

iv. Bulk supplier exception – Where one company supplies a product in bulk to large enterprise where used by many workers.
a. Analogous to learned intermediary doctrine. The defense allows the manftr to escape liability by saying they warned Employer
who now has liability to warn EEs. Consider 6 factors on whether to determine if defense should be applied (pg. 640):
(1) likelihood of serious injury from supplier’s failure to warn
(2) burden on supplier of giving a warning
(3) feasibility and effectiveness of supplier’s warning (Burden of proof on supplier)
(4) reliability of employers to warn their own employees
(5) existence and efficacy of other protections and
(6) social utility of requiring or not requiring suppliers to warn.
i. Example: Humble Sand & Gravel Inc. v. Gomez (pg. 640 – Former abrasive blasting worker was diagnosed with silicosis
and brough a proucts liability action against supplier of silica flint- Allowed Manftr to use Bulk supplier defense after
analyzing previous 6 factors)
ii. Contrast: Some courts deny this defense. Believe that manftr’s duty to warn should extend to EEs.
Example: McCullock v. H.B. Fuller Co (pg. 640 – Ct did not allow defense b/c stated manftr’s duty to warn not limited to
purchasers but extended to EEs of purchasers as well) This also reflected concern that manftrs should discontinue supplying
ERs that do not warn their EEs.
b. Policy: ER knows which EEs will use product and how they will use it. More knowledge than Manftr.
c. Less sensible than LID: Scarangella (employee of school bus company injured when one of the company’s buses built by ∆
backed into her- it was bought without optional back-up alarm) pg. 641- Externalities- annoyance (residents of surrounding
neighborhood); Without the signal- externalities- Injuries
(1) Knowledge about product: doctors are experts and ERs are not.
(2) Knowledge about user: patient/doctor involves medical history, ERs can’t know everything bout EE
(3) Incentives: Drs are healers, where ERs may place profit incentive above EE interest
(4) Sue-ability of intermediaries: EE cannot sue ER, this exception leaves EE with no one to sue
v. Indemnification of manftr’s fault by contract. – Cts disagree on this.
i. Some courts follow the disclaimer or K made between ER and manuftr.
Example: Buettner v. R.W. Martin & Sons (pg. 642 – Sales K between seller and Er & sales invoice specified that used ironer
was sold “as is”)
a. Held: K (disclaimer) manftr made with employer can be enforced against injured EE as well.
Other courts state that disclaimer or K does not extend to EEs
Example: Ferragamo v. MAssachussetts Bay Trans. Auth.- pg. 643 – worker killed by inhaling PVCs. ER had signed contract of
sale containing a comprehensive disclaiming saying buyer “solely responsible for all injuries to persons”)
a. Held: EE not held to be bound by disclaimer and ct decided it was irrelevant b/c action was based on S/L.
But, ct allows manftr to later sue the ER because of K.
v. Implied assumption of risk- Employer’s Behavior
i. Assumption of Risk not voluntary or unreasonable when EE does it because it’s his job
Cremeans v. Willmar Henderson- Π ’s job to load fertilizer, ER ordered loader without protective cage so ∆ insisted ER assume
any liability arising from removal; Cremeans operated it because it was his job; not barred from recovery based on strict liability
Where EEs voluntarily expose themselves to a risk
Carrel v. Allied Products Corp.- Carrel long time employee of Whirlpool voluntarily exposed himself to risk when electing to
use a defective product
vi. Four Approaches
(1) Workers comp: strict λ; Π’s conduct not considered b/c lack of autonomy, but low damages; most economical because it
avoids need to resolve dispute over liability and whether and to what extent employer was at fault.
(2) Negligence: filed b/c π would likely lose Consumer Expectations (visible lack of guards)
(i) Negligence is better than RAD: π altered machine, so RAD might be barred; However if modification was foreseeable
(P), then could still win on negligence
(3) Products liability:
(i) No CE b/c lack of guard was open and obvious (Camacho)
(ii) Would likely lose RAD b/c π altered the machine
(a) Minority rule: no claim where product was modified. Even a reasonably foreseeable modification is inconsistent
with a products λ claim
(b) Conflicts with Barker (mftr responsible for reasonably foreseeable use) and crashworthiness doctrine
(reasonably foreseeable that cars will be in crashes)
(iii) Manftr can make people sign contract saying if they remove guards, they waive manftr’s liability. Could have an
indemnification suit (but legally could be inefficient b/c more than one suit)
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 (4) True Strict Liability:
(i) Manufacturer could:
(a) Could encourage complete redesign (levers instead of rollers)
(b) Raise price
(c) Make it more difficult to remove safeties
1. Anderson (p638): droll plate attached with screws and not ribbons => invitation to modify
2. Robinson (p638): modification was to cut hole in safety guard => not susceptible to redesign if substantial
modification. Cannot sue for design defect
(d) Add warnings
(e) K Indemnification: mftr would give discount; probably can’t preclude ER from suing mftr
b. Morality and safety support ER liability
(1) Calabresi: ER in best place to make calculations about safety (observing/supervising machine use)
6. SERVICES – Who can be defendant?
ABEL: Can’t really call the whole category enterprise liability b/c law tries to keep it to just products and not services.
But he wants to know WHY?
Rule: Where services are rendered by health professional, usually doctor/pharmacist/ dentist, where professional is NOT in the business of
selling product, then not liable in either strict tort or warranty even if professional uses product which is defective.
Same rule applies to hospitals, contractors, architects b/c they are providing professional service
i. Example: Royer v. Catholic Medical Center (Prosthetic knee replacement was defective and used by health center, pg. 648)
a. Held: Found no duty b/c health care provider is rendering service and not engaged in business of selling. Prosthetic leg merely
incidental to service and patient entered hospital, not for prosthetics, but for service (billed for hospital room, x-rays, lab work, etc)
b. Policy concerns: No possibility of negligence for hospital b/c they wouldn’t be able to test/inspect if it’s defective. Also, if hold
health care providers S/L for defects, then result in higher health care for all patients. Unrealistic burden on hospitals to test
products.
c. ABEL: disagree that prosthetic leg is incidental b/c w/o it, there’s no surgery. He believes that policy concerns are more
important. Abel disagrees with the reasons because these are same concerns of other cases, why worry about these concerns here
and not in other product liability cases.
HYPO: What if P asked them if he could jog after surgery and doctor said yes? But Abel recognizes diff between service and
health care service.
d. Food for thought: Abel asks how do we apportion damages when sue both manufacturer and retailer? What if the defective
product should have been found by retailer during final check before delivery? Give more fault to retailer?
i. Distinctions between product & service
Rule: Product “incindental” when person did not receive service just for that product.
a. Example: Mexicali Rose v. Superior Ct ( pg. 654 – P injured when swallowed chicken bone while eating chicken enchilada at
D’s restaurant)
Held: Ct said no liability. If it was a piece of glass or wire, then yes liability. But because it was called chicken enchilada, then
should expect a bone in there. No alternative design available (chicken has to be in that type of food). But one could argue
consumer expectation that there won’t be any bones.
b. Contrast with Example: Shaffer v. Victoria Station (pg. 654 – shattered wine glass)
Held: Ct extended S/L for food to a defective wine glass that shattered in restaurant patron’s hand
i. Can’t sue manufacturer, b/c glass is old
ii. Restaurant not in the business of selling wine glasses
iii. π argues that he has leased the chattel (chattel leases have been subsumed into PL)
iv. Restmt 2nd §402A: must be “one who sells any product in a defective condition” (p555)

ii. Consider cases where actions considered as service or a product (Depends on whether luxury or essential, incidental product)
a. Example: Magrine (needle broke while injecting novocaine, p653) => no Strict Liability on dentist b/c it’s a service
b. Contrast Example: Newmark (court imposed strict liability on beauty salon where Π was burned by perm in beauty parlour, pg.
653) => PL
Distinguished from Magrine:
(1) Need vs. luxury
(2) Dentist furnishing professional skill/services, not commercial transaction
(3) Health so important to general welfare as to outweigh Sλ
(4) Free market for luxuries: want market to influence discretionary spending (through price)
(5) Necessities: don’t want price of medical services to influence decision to buy
Compare other NJ cases
a. Dixon v. Four Seasons bowling Alley – reject S/L when P fell while bowling and cut finger on chipped bowing ball. Bowling
ball was held to be incidental to use of D’s premises.
b. Ranalli v. Edro Motel Corp – reject S/L for motel guest when the frying pan supplied in the room caught fire while he was
cooking. Ct said unreasonable to expect hotel to correct all defects where they are unaware of and that can’t be discerned by
reasonable inspection

iv. S/L rejected against Pharmacists who fill prescripons for defective drugs (unless pharmacist offers to provide all appropriate
warnings, then they might have duty to warn)
Example: Murphy v. ER Squibb (pharmacists filling prescriptions, p652)
a. No Pλ b/c do not want to have pharamacists refusing to stock drugs that might carry a remote risk
b. Better for customer to sue retailer:
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 (1) More convenient for customer
(2) Retailer has good will incentive to satisfy customer
(3) Retailer not left holding the bag; could sign indemnity clause w/mftr
(4) Consumers will absorb cost either way
c. No support for products/services distinction
d. Negligence doctrine applies where pharmacists should provide all appropriate warnings when they undertake to provide some
warnings (Cottam v. CVS Pharmacy)

INTERSECTION OF TORT AND CONTRACT

Pure Economic Loss
Tort-Damage to person
Damage to other property
Contract-Failure of the product to perform (loss of value & consequential economic loss)
-Consequential Economic Loss- (Lost Profits)
2 other categories:
1) Claims in tort by Ps seeking to recover for economic harm
i. Example: East River Steamship (pg. 656) – defect causes product to injure itself- ∆ made turbines which disintegrated;
charterers make tort claims for cost of repairing ships and imcone loss (consider whole product as single unit even if D’s part was
small component of it). No duty under negligence or strict product liability theory to prevent product from injuring itself.
Admiralty law (which already has negligence liability). Negligent manfacture of product caused the product to damage itself.
Held: Majority: law of warranty precludes imposing tort liability if defective product causes purely monetary harm.
Minority: manufactr can be held liable under torts if product injures itself. Ct here says NO, such a case should be governed by
contract law because it’s about receiving a benefit (and then that benefit not being conferred).
Reasoning: customer does not need spcial protection, enough incentives for business to manufacture correctly (or then no more
customers), type of loss can be insured. Not really diff in bargaining power when such companies make K and law of warranty
should govern. Warranty has time limit, tort law has longer statute of limitations
-Posner-tort liability can extend to purely economic losses- suits against attorney or accountant for malpractice or negligent
misrepresentation that causes losses to the Π
ii. Jimenez v. Superior Court- Π homeowners sued manufacturers of windows in mass produced house; windows failed and caused
damage to Π ’s house; cold maintain strict liability against manuftr because windows were separate from house
iii. Grams v. Milk Products- Π s who raised calves purchased a milk replacer which was supposed to make calves thrive and instead
tripled the mortality rate; Π s limited to contract because their claims are result of disappointed expectations of bargained for
product
iv. Alloway v. General Marine Industries- economic loss claim based on a boat that because of defective seam sank; court rejected
tort regime because U.C.C. protects buyers from economic loss from defective product
v. Bocre Leasing Corp v. General Motors- Π bought helicopter from broker; heli. experienced power loss and sustained damage;
rejected tort claim despite fact that defect created serious risk of personal injury
UCC and Products claims
i. Paramount Aviation Corp. v. Augusta- Π management company agreed to manage helicopter, which crashed due to a defect;
sought to sue ∆ manufacturer, but was not in chain of distribution; UCC is applicable and controls only if Π is in chain of
distribution of the product
ii. Aas v. Superior Court- homeowners brough tort claims for construction defects against developer and contractors who had built
their homes; since no damage had occurred, no tort action existed
iii. Delta Air Lines, Inc. v. Douglas Aircraft- Delta claimed Douglas should be liable for negligence and breach of warranties after
plane ∆ had sold was damaged during landing; court held Douglas was insulated by exculpatory clause in contract
2) Claims in contract under UCC for personal injury
i. Implied Warranties- generally involve aberrationally defective products (manufacturing defects)
-Why might a Π prefer warranty theory over tort law?
-Code’s statute of limitations is four years from delivery of goods; tort is shorter
ii. Express Warranty- If manufactutrer makes express warranty about wuality of product, anyone hurt if this turns out false can
recover damages
-Product need not be defective
iii. Warranty Defences
-Code does not contemplate shared responsibility; once a buyer discovers a defect or reasonably should have, there is no longer
reasonable reliance on warranty and thus no recovery

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POLICY

I. WHO SUES

A. Engel Article: The Oven Bird’s Song: Insiders, Outsiders and Personal Injuries in an American Community

1. Examines differences in tort behavior across groups of people. Certain variables influence attitude toward litigation:
a. Size of community (kibbutz didn’t have legal system, and gossip was used to resolve disputes)
b. Homogenity (similar cultural values)
c. Unity/division (people excluded have no other recourse or are not afraid of social pressure/ostracism)
d. Frequency of interaction (greater chance of injury)
e. Relationship v. anonymity (in larger area, most often suing a stranger)
f. Autonomy v. dependence (value self-sufficiency, so don’t see people as “victims”)
g. Social distance (gender, race, class difference so that victim views tortfeasor as an “other” who can be blamed)
2. Where torts are underclaimed, contracts are overclaimed
a. Contract claim: seen as debtor wriggling out of debt (dominant challenges subordinate)
b. Tort claim: victim trying to get something for nothing (subordinate challenges dominant)
1) Based on fate (something happens and people deal with it)
3. Credit Cards
a. Lose sense that debt ought to be paid
4. View of money
a. Change from rural work (sweat) to lottery (get something for free)
5. Under privileged likelier to sue (don’t have 1st party loss insurance)
6. Repeat offender dynamics
a. Torts claims: One-Shot π v. Repeat-Player Δ
b. Contracts claims: Repeat-Player π v. One-Shot Δ
c. Lawyers most likely to be loyal to repeat players

One-shot Δ Repeat player Δ

One-shot π Divorce Torts
Repeat player π Contracts B2B disputes

II. INTENTIONAL TORTS

Baumgartner, Moriarty articles (READER)

(1) Why so little litigation about intentional torts?

• Socio-anthropological reasons (Baumgartner)
• Cost: Significant transactional cost to mobilize tort system
o Anecdote: Abel’s friend couldn’t find a lawyer for her claim, because the recovery wasn’t going to be high enough / have to be
over certain threshold to be able to get lawyer involved
• Criminal alternative: Criminal complaint as alternative avenue, in which state has assumed all cost and obligation. Contrast with Sander
County, in which residents called police to enforce debts.
o Most costly intentional torts are likely criminal, so would not have insurance to cover, plus criminals are insolvent
• Lower damages: Quantum of damages tends to be lower in intentional torts.
• Property alternative (nuisance law): difficult to quantify remedy, and doesn’t easily translate into compensatory damages
• Damage calculation problem: motional damages difficult to measure, and money doesn’t compensate for that
o Negligence: agree unilaterally that π has injured Δ, however in these vignettes, the tortfeasor might also have moral claim against
the π => counter assertion, so don’t have clarity about there being one agreed-upon wrong
o Community setting with built-in social cost and other repercussions; asserting complaint implicates the π in some way (ongoing
relationship, unlike negligence where there is no contact before or after)
• Lack of insurance: Insurance won’t cover intentional tort or punitive damages; want to use insurance to get around high transaction cost of
litigation, but can’t
o Therefore they turn into negligent torts, where someone else is asserted to have responsibility => Tarasoff (murder), spun against
deep pocket (University)
o Juries have trouble giving money for emotional experience/inconvenience; seems inappropriate for dignitary invasion
• Dignity/respect/interpersonal standing is important in more circumscribed areas; used to be that wealth and standing went hand in hand
• Fear of negative reciprocity => instead of getting money from people, can collect in the future with return nuisances
• Immunity: what falls into the area of intentional torts is actually competition in economical, political, sports spheres => what is said in
political campaigns is intentional torts, but is privileged under 1st Amendment => in economics, also privileged => in sports, intentional
torts are within the rules of the game
(2) What do those victims do?
• Moriarty article
o NY in 1970s, is it still true? NYers are quick to take offense, and this article runs counter to that

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 o Could argue that people are actually doing cost/benefit analysis (empty their pockets because it takes less time and effort than
arguing), and this is not negative passivity; why do we feel that cost of resistance is high; people retain control by making it their
own problem, not the other person’s problem, so swallow their own annoyance
o Heterogeneous culture: don’t know whether people around share your norms or will support you
o Will speak up when can reserve anonymity: road rage, movie theater
 Movie theater: also paid to get in so have higher stake
o Cutting in line: know you have support, because of people around you who were wronged; people object where they can count on
agreement from people around in the same situation
o Rapidly changing norms/technology: older people might reprimand for using cell phone on bus, because aren’t accustomed and
don’t have consensus on cell phones
o Strongly anti-paternalistic ethos: let people make their own decisions
• Baumgartner article
o Atomized, mass society that we don’t want to interact with, and we know the issue will pass and they will go away (ie: bus ride)
• What about people in authoritative roles?
o Encourages communication, but have to be subversive and non-confrontational in addressing issues; are more justified in
confronting problem (other person recognizes authority); also others tend to relegate duty to intervene to person in authority, and
won’t interfere
• Observations
o Primitive societies: mirror image of Western culture => where we would say that damage was caused by accident (gored by bull,
struck by lightning), are conceptualized as intentional => thought of as witchcraft (what just happens) and sorcery (manipulation
of fate by magic) => they take what we call accidents and transform it into intent
 Medium that counts to Western society is money

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