Big Outline of Torts Adam Watkins Interests Torts serve 1) broad utility (so big we subdivide) a.

Administrative efficiency b. Deterrence c. Loss distribution d. Compensation e. Morality 2) promotes private ordering (enable private parties to order their lives to let them maximize their individual utility -- like contracts) 3) morals a. fault continuum is really about morals: how wrong does it have to be before its wrong enough to achieve liability 4) rights 5) administrability The usual caveats: 1) People dont really know what the tort rules are, so they arent basing behavior on the rule SL=Negligence problems 1) Activity level analysis 2) People over-worried about reputation, etc. (e.g. doctors) 3) Transactions costs arent the same (hard to tell which way it cuts) Intentional Torts Intent (battery) o Vosburg doesnt need to be intent to harm; just unlawful touch (breach decorum of classroom) o Restatement 1) purpose and knowledge to make 2) an offensive touch o White (piano teacher) didnt follow restatement; unwanted touch Intent (generally) purpose or knowledge Consent (defense) o Sports (Vosburgs playground) Consent to rules/norms of the game o Mohr (wrong ear operation) battery must be nonconsensual (and non-emergency) [also against the restatement w.r.t. intent] o Hudson v. Craft (boxing promoter) breach of the peace view (consent doesnt matter) vs. using criminal law to inform analysis (deference to legislative intent, analysis of incentives) H: promoter is liable: 1) statute designed to protect boxer; 2) promoter is bigger wrongdoer Other defenses o Insanity: McGuire same rule as sane folks (liable if (1) you have the ability to entertain intent and (2) you in fact had the intent) o Self-defense: Courvoisier (shoots police officer he thought was attacker) only reasonable mistake is a defense [must pass subjective test AND was belief objectively reasonable] o Necessity

Ploof necessity gives a privilege to trespass Key question: when should necessity kick in?

Vincent necessity is incomplete privilege (ok to dock, but must pay for the damage) Exercise takeaways: 1) conduct rules screw up efficiency; 2) choice of liability rule should only affect allocation; 3) factors for rule choice: transaction costs, information, administrability, insurance, prediction Culpability: not followed 100% (McGuire, Courvoisier) o Problems with subjective standard: 1) administrability, 2) fraud, 3) comparative culpability (person more at fault should pay McGuire) Strict Liability vs. Negligence Key thought (related to activity level): Negligence doesnt account for the negative externalities caused by non-negligent people (e.g., drivers will inevitably cause some accidents, even if they drive non-negligently always) o In theory, it can be bargained away in SL, but not going to happen w/ strangers Old history o The Thorns Case laid out SL o Weaver v. Ward super-negligence standard (inevitable accident) o Brown v. Kendall (Mass, 1850, Shaw) waives a magic wand and reads precedents as negligence o Rylands (1868, England) Different readings: 1) Recast history as more SL-ish (response to judge Shaw) 2) Shot against industrialization (not widely believed anymore) 3) Having SL, but cabining it somehow (natural vs. non-natural, SL for known mischievous objects SL = tax on business o Brown v. Collins (1873) chooses negligence for economic reasons 1) Encourage development!; 2) SL = too much liability (morally and w.r.t. administrability); 3) Rylands not the real rule anyway o Powell v. Fall (1880, England) Bramwell defends SL

Unjust enrichment (Best SL defense): if enterprise is beneficial to society, it should be able to pay for the damage it causes (otherwise its bad for society) Its good for some businesses to fail if they are bad for society as a whole (Force actors to internalize negative externalities) Case for negligence o Transaction costs: hard to compare SL = more transactions, but easier to determine who pays Neg = fewer transactions, but more court time to assign liability Best is to let the loss lie where it falls o Want to encourage enterprise (everyone benefits, at least in the long run) o Moral case (Holmes): liability only where there is foreseeability Wants objective negligence (like Courvoisier) [vs. unjust enrichment (SL argument)]

NEGLIGENCE
Objective/Subjective/Individualized Standards Important w.r.t. 1) negligence; 2) CN; 3) expected conduct Fully objective reasonable care o Stupid person (Vaughan v. Menlove)

Reasons: fairness w.r.t. action, administrability, incentive to take care, fraud o Old people (Roberts v. Ring) o Kids doing adult activities (Daniels v. Evans) Cant tell that its a kid driving and take more care Individualized the reasonable _______ person (young, disabled, etc.) o Mental illness, sorta (Breunig Batman woman) No negligence where illness undermines understanding of care or ability to exercise it (AND no forewarning) H: had forewarning of condition; was liable o Physical Disability (Hammontree v. Jenner) if sudden onset and no advance warning [F: seizure while driving after 14 years of none] Shifts the time frame: when was last seizure, etc. o Fletcher v. City of Aberdeen only has obligation to proceed as reasonable blind person o Kids (Roberts v. Ring): only consider age for CN [typical] Unless doing adult activities Truly subjective true belief of the person o None Thoughts o James: objective standard bad b/c may be people liable for things they couldnt possibly prevent o Restatement: primary negligence is ENTIRELY objective No position on CN Reasonable Woman: can help OR hurt woman (expect less skill but more care) Objective pros o No moral hazard o Administrability o Fraud o Incentive to take care (even if its very difficult or even impossible for some people) Subjective pros o Fairness/justice Clumsy people: do the best you can! Extra-agile people: exceed an objective standard of care! o Making it objective wont change anyones behavior anyway o Not much harder to administer (we do it all the time in crim) o Efficiency: if your B is so high that it exceeds pL, we dont want you taking that precaution Restatement: physical disability = individualized o kids = individualized Same age, intelligence, experience under like circumstances Calculus of Risk: B < pL Negligence (Carroll Towing) B (burden of taking precaution) o Cooley consider alternative risks created by taking precaution o Osborne rejected jury instruction (liability for ANY foreseeable injury) failing to account for B pL (expected harm resulting from lack of precaution)

Immunity -----------------------------B=pL*************************** SL All rules between (B=pL) and (SL) should be socially efficient o will only take precautions that are worth taking Alternatives o SL o Osborne (lower court) ANY foreseeable injury o Andrews Utmost care (common carriers) Problems with Hand Formula 1) Information/error costs of tort system (trying to figure out B, p and L) exceed the benefits a. But it can still be good for a rough test/estimate 2) Variables are incommensurable (must somehow put B and L in a common metric probably $) a. Even Posner admits judges and juries must intuit a number, rather than calculate it b. Hand: should identify interests, then apply 3) Juries are not comfortable applying the rule (think about the GM memo comparing lives lost and cost of safety improvements) Least Cost Avoider (Calabresi) o Both SL and Neg suffer from this problem: o If can take care more cheaply than (and B<pL), inefficient result o Solve by making least cost avoider liable Coasian bargaining o Liability rule shouldnt matter (assuming no transaction costs) Even bargain around conduct rules o Should set rule to minimize transactions costs o Also, solves Least Cost Avoider problem One owner principle (if you were on both sides, would you take the precaution?) o Kantian objection: treat each person individually; they didnt consent Conduct rules: screws up the analysis (like Vincent) o Punitive damages convert liability rules into conduct rules Custom Pros: promotes private ordering, predictability, harness experience Cons: self-dealing (unequal info/bargaining power), market failure, homogeneity, stickiness: discourages innovation As a ceiling (custom is always a defense) Titus As a floor (per se negligent if you dont meet it) TJ Hooper (lower ct) Irrelevant Mayhew Relevant, but not dispositive TJ Hooper [This is the rule!] o Lose the major pro of using custom, predictability Mandated Safety Benefits o Tradeoff with wages o Pros Endowment Effect: value things more once you have them o Cons Liberty, perhaps not socially optimal o Issues: full info, full ability to process/act on info, bargaining power, collective action problem

 Medical Malpractice Custom as floor AND ceiling (Lama v. Boras) o National, not local, standard (Brune v. Belinkoff) o Non-custom case: CBA on glaucoma test (Helling v. Carey) eye doctors always do them now Why? 1)alternative institutions ensure good care; 2) tort law not accurate gauge of negligence (many bad outcomes, technical difficulties for jury) Informed consent: Custom does NOT control o Canterbury v. Spence: Duty: inform about whatever reasonable patient would want to know (pro-) Cause: Only liability if disclosure would have changed 's mind objectively (pro-) [did it cause the surgery?] Statutes Express or implied right of action just sue! Negligence per se using statute as a guideline for CL tort of negligence o Requirements

Purpose of statute is to prevent harm that happened (Gorris) Causation Thayer: negligence should follow 100% from breaking of law Otherwise, putting jurys opinions over the legislature

Also, statutes can be a ceiling (rare) or merely relevant evidence of minimum standard of care Restatement: (not widely adopted) rebuttable presumption, with defenses of reasonable care, necessity, emergency, or incapacity Cases Irrebuttable presumption o Osborne v. McMasters statute establishes duty Rebuttable presumption o Tedla (but she had a justification for walking on the wrong side) o Martin v. Herzog very narrow excuse permitted, but none given o Brown v. Shyne (dissent) Prima Facie Case (permissive inference) Relevant Evidence o Brown v. Shyne (trial ct): some evidence Irrelevant o Gorris v. Scott if harm statute seeks to prevent didnt happen o Brown v. Shyne (CoA) Judge and Jury Holmes: run some test cases (experiments) w/ juries, then set the rule (start using SJ after that) Goodman Cardozo: likes standards and juries more; rules sacrifice small differences o Pokora

Jewell v. CSX throw out on SJ when no genuine issue of material fact Judges and juries usually decide things similarly, despite some jury biases

Res Ipsa Either prima facie case or rebuttable presumption

 Prosser sets out the elements of res ipsa (R2T combines 2 and 3) o The event must be of a kind which ordinarily does not occur in the absence of someones negligence; AND o It must be caused by an agency or instrumentality within the exclusive control of the ; AND o It must not have been due to any voluntary action or contribution on the part of the Purposes: info-forcing, assigning the loss to the party more likely liable o Byrne v. Boadle (England, 1863) flour barrel o Imig v. Beck - hit in 's lane, but no other info rebuttable presumption Non-delegable duty satisfies #2 o Colmenares Vivas v. Sun Alliance Insurance Co. (escalator accident)

Info-forcing use Ybarra (hospital workers in operation gone bad) o Not as strict about applying res ipsa anymore
Contributory Negligence Basic doctrine 1) contributory negligence is a complete defense a. Butterfield v. Forrester (England, 1809) speeding horse = CN 2) contributory negligence only bars liability if it was a causal factor in the accident a. Geyerman v. US Lines (Cal., 1972) fishmeal stacks 3) Ordinarily, bears burden of pleading, production and proof re: contributory negligence Reasons: moral hazard (though Posner and 2x2 say we dont need it), more nuanced ones (sequential moves, least cost avoider) o Need CN for SL to work efficiently

LeRoy Fibre (US SC, 1914) RR sparks ignited flax o McKenna: no CN rule; farmer has right to use property as he se fits (risk of harm to his flax incentive enough) o Holmes: need a CN rule for a lot of reasons o Key: symmetry b/t Neg and CN arguments Last Clear Chance - s CN Sequential move (other side): when already knows is CN, incentivizes to take care Restatement: 2 categories Helpless and inattentive s Comparative Fault Started in the 1970s and now every state has it Li v. Yellow Cab (CA, 1975) Fault should govern liability; Comparative fault achieves that goal Pure: collects no matter what %age is Modified (impure): only collects if is >50% at fault (sometimes can collect if 50-50 split) Assumption of Risk 3 theories 1) No negligence (Primary AR)

2) Waiver (contracting out of tort liability) [merges with #1] o Lamson (Mass., 1900, Holmes) tippy axe rack at work assumed risk by showing up at work; case closed
o

3)
o o o o

Mandated safety benefit issue again Contributory Negligence (Secondary AR) Exceptions (from The Flopper) Trap for the unwary basically a bad contract where risk not known Too perilous to be endured public safety theory Effect on comparative fault Primary AR retained (means no negligence in the first place) Secondary AR folded into comparison

CAUSATION
Cause in Fact Key questions o 1- What is substantive standard? o 2- Who bears burden of proof o 3- How certainly must the facts be established? o 4- Whats the burden of production (merges 1 and 3) But-for causation o Grimstad (CCA2, 1920) no life preservers on the boat H: case thrown out because unclear if they WOULD have saved his life o Kirincich (CCA3, 1940) same as Grimstad, but case left up to jury o Haft (no lifeguard or sign) In order to effectuate legislative intent, need to post sign to take advantage of safe harbor Flips the burden of proof Enough to establish that negligence MIGHT have caused the harm Zuchowicz Increase in chance of injury in enough Herskovits o Uncertainty of increase in chance - Bendectin Cases

Overdetermined Harm Kingston Joint and several liability Uncertain o Summers v. Tice: Change of substantive standard to get the guilty party o DES cases: market share theory of liability o Proximate Cause Many Tests Foreseeability (Harm-within-the-risk): Berry v. Sugar Notch Necessary (monocausality): Ryan Natural and Probable: Brower Directness, substantial factor: Polemis (even if no foreseeability) Andrews dissent in Palsgraf o Rough sense of justice o Substantial factor test o Natural and continuous sequence o Direct connection without too many intervening causes

Foreseeability

Restatement (6 factors) following Andrews dissent in Palsgraf o Result is a harm different in kind [from what is foreseeable]
Operation appears extraordinary Independence of operation o Involvement of a third party o Liability of a third party o Culpability of a third party (Brower cart wrecks, liquor stolen) Cabining Liability Unforeseen : Cardozo in Palsgraf Unforeseeable Extent: anti-Vosburg Unforeseeable Type: Andrews in Palsgraf, anti-Polemis, Wagon Mound o o Emotional Distress Concerns: fraud, hypersensitive s, infinite causation IIED: Wilkinson v. Downton ( told husband was dead) o Intent: need foreseeability o Parasitic damages only

NIED: cabining liability (less and less over time) o Parasitic damages only Mitchell o Zone of danger test Dulieu o Reasonably foreseeable emotional victims Dillon v. Legg Restatement: intentionally or recklessly cause severe ED liability o Harm to 3rd party: 1) if immediate family member AND present, OR
2) if present AND experiences bodily harm Affirmative Duties Duty to Rescue No general duty, absent special relationship/circumstances Nonfeasance: inaction o Buch v. Amory Mfring no affirmative duty to trespassing kid o Mangan, Yania: no duty to rescue Misfeasance: bad action o Montgomery Trucker had duty to put up flare (because of his predicate action) o Tarasoff Special relationship with victim or offender (plus foreseeable danger) duty to warn o Kline LL has duty to maintain safety b/c 1) uniquely situated to fix problem; 2) least cost avoider (most efficient accident preventer) Occupiers of land Invitee: Reasonable care premises are safe Licensee: No hidden danger Trespasser: No intentional or reckless harm (spring guns) o Addie kid trespassed no duty (before attractive nuisance) o Attractive Nuisance: limited duty of reasonable care to trespassers Generally limited to kids, artificial conditions, plus R2T has more Rowland v. Christian (CA, 1968) tosses out categories

Reasonable care for all visitors

Traditional Strict Liability Vicarious Liability Scope of employment o v1 actuated at least in part by a purpose to serve the master Old version: frolic and detour applies when on the job o v2 Ira Bushey & Sons v. US (CCA2, 1968, Friendly) Accidents characteristic of the activities of the enterprise Other limits: fellow servant rule, not independent contractor Abnormally Dangerous Activities Something different about these guys (maybe unjust enrichment) What makes an activity abnormally dangerous? (R2T 520) o High risk o High hazard o Unavoidable risk o Uncommonness of activity o Inappropriateness of activity to locale o Small valued (to community) compared to danger

SL for blasting Spano American Cyanamid (CCA7, 1990, Posner) o Activity-level effect of SL: large gauge decisions
o Optimal social effects; utilitarian principles

PRODUCTS LIABILITY

o o o o

Old privity stuff: only original purchaser can sue (based on contract) Winterbottom v. Wight no recovery if not party to contract Huset privity requirements loosened MacPherson v. Buick (Cardozo) kills privity Escola (Traynor concurrence) the case for SL Prosser wrote this into the R2T 402(a), with limitations

Manufacturing Defects Departs from intended design SL for harms defect causes o Pouncey kind of an example of this

Why? SL ideals line up well in this arena o 1) Mfr gets to choose own norm (no second guessing of them like in design defects) o 2) Contract idea: they DO violate customer expectations o 3) Mfr has control over how many defective products they want (to some degree its really just a CBA) o 4) Hard to determine origin of defects easier to adjudicate Design Defects Problems o No obvious reference point to determine defectiveness o Injury caused equally by user and mfr (are knives too dangerous?) o Want to promote consumer choice (not everyone wants a Volvo) History o Open and Obvious test: only liability for hidden dangers

Campo (onion-topper), like Flopper case Reasoning: liberty o OaO test weakened (relevant only): Micallef Mfr must take into account all reasonably foreseeable uses Law: SL for any harm caused by defective product (2 tests for defectiveness) o Consumer Expectations: contract theory (user focused)

Linegar (bullet-proof vest) tradeoff of risk and function No liability: consumer knew the tradeoff Modified CE: Potter excessive vibration over time Give jury info on risk and utility, then would reasonable consumer consider the product unreasonably dangerous? o Risk Utility: Basically BPL (mfr focused)

Barker uses CE and RU tests (either one liability) The gravity of the danger posed by the challenged design. The likelihood that such danger would occur. The mechanical feasibility of a safer alternative design The financial cost of an improved design. The adverse consequences to the product and to the consumer that would result from an alternate design. R3T adopts objective risk utility test Failure to Warn Warnings good for: deterrence, autonomy, efficiency (individualized decisions, user may be Least cost avoider) When is warning owed? o R2T 402(a) comment j: unreasonably dangerous products Factors Risk/function tradeoff Risk/money tradeoff Warning effectiveness Effectiveness of alternatives Hazard / degree of harm (bruise vs. death) o R2T 402(a) comment k: unavoidably unsafe products

Davis v. Wyeth polio vaccine (b/c personal autonomy) What warning is owed? o Scope: understandable language (stroke, not blood clots) that allows user to take action if she wants McDonald v. Ortho rejects learned intermediary theory Learned intermediary theory: special knowledge of doctor means pharma co. only need inform her Ayers duty to warn re: inhalation of baby oil retardation o Problems: 1) label clutter reading none of the warnings; 2) dangerous product warnings look same as safe product ones o Only duty to warn of foreseeable risks at time of sale

Vassallo boob job silicone leak Like negligence (who knew what when?) Causation issues usually entitled to heeding presumption

Objective vs. subjective would user have heeded? Comparative fault: Daly extends comparative fault to products liability

Restatement on Products Liability R2T black letter law Requirements for SL: 1) Seller must be in the business of selling (not infrequent, isolated) 2) Defective condition when it leaves the sellers hands 3) Unreasonably dangerous (not reasonably contemplated) Restatement (3d) of Products Liability SL for defects (only question is whether there was a defect) o Mfr Defect if departs from intended design (care exercised doesnt matter) o Design Defect reasonable alternative design could have reduced foreseeable risks AND omission of alternative design renders the product not reasonably safe o Warning Defect Foreseeable risks of harm could have been reduced or avoided by the provision of reasonable instructions or warnings AND omission of instructions or warnings renders the product not reasonably safe