TORTS Outline I. INTRODUCTION A. Goals of tort law: compensation and deterrence B.

Burden of Proof: Preponderance of the Evidence (50%+) C. Negligence = 1) Duty 2) Breach 3) Causation 4) Injury II. VICARIOUS LIABILITY A. Respondeat Superior: Corp. can be held liable for tortious conduct of employees acting w/in scope of liability B. When is Employee w/in Scope of Employment? 1. Birkner Criteria, helpful NOT dispositive (Christensen v. Swenson security guard going to get lunch; still a jury question): a. conduct of general kind employee hired to perform b. conduct occurring substantially w/in hours and ordinary spatial boundaries of employment (time and space) c. motivated, at least in part, by purpose of serving employers interest 2. Restatement (Third) of Agency: Performing work assigned by employer or engaging in a course of conduct subject to employers control. Not w/in scope of employment when occurs w/in independent course of conduct not intended by employee to serve any purpose of employer. C. Justifications of V.L. 1. Employer controls employees conduct. 2. Deterrence If employers know they can be held liable for torts of employees, they are likely to exercise more care and take greater security measures. 3. Compensation help ensure plaintiffs get damages. 4. Employer gains/benefits from employees actions, he should shoulder burden of employees actions also. D. Indemnification: 1. Employer held liable cans seek indem. against negligent employee. 2. Employee held liable cannot seek indem. against employer. E. Independent Contractors 1. Employers generally not held liable for tortious acts of I.C.s even if in the scope of employment (I.C.s have their own businesses w/specialized skills or knowledge). 2. Exception = apparent authority a. Authority principal knowingly by actions or words holds out I.C. as possessing b. Restatement (Second) Section 429: One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by

the negligence of the contractor in supplying such services to the same extent as though the employer were supplying them himself or by his servants. c. Sections 416 & 17 Employer of an i.c. is v.l. for work that involves peculiar risk if contractor fails to take appropriate precautions in light of risk. III. DUTY (usually question of law for judges) A. FACTORS to CONSIDER for IMPOSING DUTY 1. Foreseeability of Injury 2. Availability of Insurance (or alternative courses of conduct) 3. Public Policy Considerations 4. Social Utility of Ds Conduct 5. Moral Reprehensibility of Ds Conduct 6. Relationship b/w Parties 7. Burden of Imposing Duty on D 8. Overall Public Interest 9. Legislative Intent B. PHYSICAL HARM 1. Generally No Affirmative Obligation to Act to Prevent Physical Harm to Another a. Justifications = individual autonomy, hard to define whats reasonable (is it reasonable to put yourself at risk, where does duty end?) b. Exceptions: i. Special Relationships: common carriers, innkeepers, landowners, custodial relationships where other person deprived of self-protection, D holds considerable power over pl.s welfare (D holds economic advantage). y Buddy Rule (only in Michigan): Farwell v. Keaton companions engaged in common undertaking; also voluntary undertaking S started to help Farwell and then left him ii. Voluntary Undertakings: y Restatement (Second) Torts 324: Person who under no duty to act, takes charge of another who is helpless can be held liable if: (a) actor fails to exercise reasonable care to secure safety of other while w/in actors charge or (b) actors discontinuance of aid or protection leaves other in worse position than when actor took charge of him. y See Morgan v. County of Yuba (Liability could be found against Sherriffs office that voluntarily undertook/promised to warn deced. before release of man arrested for threatening her; pl. killed by man after release; pl. had to show that deced. relied on promise and would have acted differently w/o it.) iii. Non-Negligent Injury: y Restatement (Second) 322

If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm. iv. Non-Negligent Creation of Risk: y Restatement (Second) 321 one who has done an act and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another is under a duty to exercise due care to prevent the risk from occurring even though at the time the actor had no reason to believe that his act would create such a risk. c. Good Samaritan statutes: almost every state has adopted some version that immunizes licensed physicians from civil liability for rendering emergency aid in good faith at scene of emergency. 2. Duties to 3rd Persons/Protect Against 3rd Persons a. Accurate Information: Restatement (Second) 311: (1) One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results (a) to the other, or (b) to such 3rd persons as the actor should reasonably expect to be put in peril by the action taken. (2) Such negligence may consist of failure to exercise reasonable care (a) in ascertaining the accuracy of the information, or (b) in the manner in which it is communicated. i. See Randi W. Did D have affirmative duty to warn pl. of former employees sexual misconduct w/students? Yes, nonfeasance okay (saying nothing), misfeasance not (saying positive things that werent true). b. Patient/Therapist: i. When avoidance of foreseeable harm requires a D to control the conduct of another person, or to warn of such conduct, the common law has traditionally imposed liability only if the D bears some special relationship to the dangerous person or to the potential victim. (Tarasoff D therapist had duty to warn victim of potential threat posed by patient whod told therapist about intent to kill victim.) ii. Relationship of D therapist to either victim or dangerous person suffices to establish duty of care. iii. Restatement (Second) 315 Duty of care may arise from (a) a special relationshipb/w actor and 3rd person which imposes duty upon actor to control 3rd persons conduct, or (b) special relationship b/w actor and other which gives other right of protection. iv. No duty imposed on therapists when harm is self-afflicted or property damage.

c. Custodial Relationship: E.g. Hospitals duty to exercise reasonable care to control behavior of a patient that may endanger other persons. d. Negligent Entrustment: i. Based on principle that supplier of chattel had control over dangerous instrumentality that imposes harm on pl. ii. Liabilityarises out of combined negligenceof one in entrusting the automobile to incompetent driver and of the other in its operation and entrustor knew or should have known some reason why entrusting the item to another was foolish or negligent. (Vince, ct. held grandmother who gave money to buy car, agent who sold car, and car salesman had duty to prevent harm to 3rd person caused by grandsons negligent driving, b/c they knew he had no license, failed drivers test many times, and abused substances; issue of breach to be decided by jury.) iii. Restatement (Second) of Torts 390: One who supplies directly or through a 3rd person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them. iv. But see Peterson v. Halsted ct. held it unwise and destructive of flexibility of analysis to classify suppliers of money or credit categorically as suppliers of chattels where D had cosigned for daughter to get car 3 yrs before accident and daughter had made all other car payments v. Osborn v. Hertz finding no duty of car rental co. to investigate driving record of sober customer who had valid drivers license. vi. West v. East Tenn. Pioneer Oil D owed duty to injured 3rd party based on conduct in assisting obviously intoxicated driver in purchase of gasoline and thereby creating risk of harm. vii. Negligent hiring, retention, or supervision related to idea of negligent entrustment (D had control of hiring process & knew or should have known of risk posed by employing smne). e. Social Hosts: Inherent differences b/w social hosts and commercial vendors make ct. reluctant to allow c.o.a. against social hosts (also a public policy consideration): i. commercial vendors have profit motives and therefore should be expected to exercise greater supervision ii. implications of imposing liability on social hosts are wide-sweeping and unpredictable, since it would affect most adults on a frequent basis iii. social hosts generally unaccustomed to pressures involved in taking responsibility for intoxication of guests iv. See Reynolds (was Ds wedding day) where ct. recognized c.o.a. by minor injured as a result of intoxication against social host who provided alcohol, based on WA statute, but does not allow c.o.a. by 3rd person against social host who provided minor alcohol for injuries caused by intoxicated minor.

f. Business Owners i. Specific Harm Rule: only duty to protect patrons from specific, imminent harmful acts of 3rd parties about to befall them; very restrictive ii. Prior Similar Incidents Test: Foreseeability established by evidence of previous similar crimes on or near premises; can lead to arbitrary approaches b/c of different standards iii. Totality of the Circumstances Test: (most common) Consider nature, condition, and location of land as well as crime in surrounding area; may be too broad/impose unqualified duty on landowners in areas w/significant criminal activity iv. Balancing Test: Balance foreseeability and gravity of harm against burden of imposing duty; greater the foreseeability and gravity of harm, greater the duty of care that will be imposed on the business v. Public Policy Considerations of Limiting Scope of Liability/Duty for Business Owners: cost of providing security, stopping crime usually job of police might even promote vigilantism, even police cant control all crime, why expect business owners to do it vi. Cts. usually hold that shopkeepers have no duty to patrons to comply with armed robbers demands for money g. Landowners & Occupiers i. Traditional Categories (many jurisdictions still use) - Public Invitee person invited to enter by way of invitation to general pubic; owed duty of reasonable care - Business Invitee person invited for purpose of material benefit to landowner; owed duty of reasonable care - Licensee enters premises w/ permission, but not an invitee (e.g. social guest); landowner owes duty to make safe dangers of which he is aware, possessor must have actual knowledge of dangerous condition - Trespasser unlawful entrant; no duty owed o exception: trespassers of whom possessor is aware constantly intrude on land - Possessor not required to make safe open and obvious dangers - Problematic b/c if invitee, licensee, and trespasser all injured in same scenario, can all have different judgments (even as a matter of law since duty is a legal question) based on diffnt. duties afforded each classification; causes confusion - Advantage: predictability of outcome ii. Revised View: Duty to exercise reasonable care for lawful visitors - Factors for determining whether landowner/occupier exercised reasonable care: (1) foreseeability of harm, (2) purpose for/circumstances under which entrant entered premises, (3) use or expected use of premises, (4) reasonableness of inspection, (5) ease of repair or correction, or (6) burden on land occupier or community iii. Landowner/Tenant: Reasonable care under the circumstances

Public policy interests favoring landowner duties: (1) Landlord agreed to keep premises in repair, (2) Landlords promise to make repairs will induce tenant to forego repair efforts, (3) Landlord retains reversionary interest in the land, (4) Tenant may be financially unable to make repairs, (5) Tenants possession is for a limited term less incentive to make repairs, (6) Landlord could be expected to assume certain obligations since he received pecuniary benefit from relationship, (7) Llord in better position to guard against intruders in bldg than police, (8) Llord can pass cost of security measures on to tenants. iv. Child Trespassers Restatement (Second) Section 339: A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if: (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children. 3. Intra-Family Duties: a. Many states used to protect parents from suits from children; many have since abrogated parental immunity b. Doctrines of Parental Immunity: i. Complete Immunity except if parent acting willfully, wantonly, or recklessly ii. Immunity for Acts of Parental Authority and Discretion provision of food, clothing, housing, medical and dental services, and other care iii. Reasonable Parent Test whether parents conduct comported with that of a reasonably prudent parent under like circumstances (parents always owe duty to minor child) iv. Duty to the world/duty to child c. Public Policy Considerations for and Against Immunity: i. Domestic Tranquility may be disturbed by allowing suits against parents, but probably already been disturbed by the tort itself

Danger of Fraud or Collusion might be exaggerated in family cases where family units might have shared interests, but a potential problem in all cases iii. Depletion of Family Resources Damages are often needed in cases where child needs expensive medical care iv. Parent Inheriting Money Recovered by Child issue for probate cts. and intestate succession laws v. Different Judgments Based on Relationship (like issue with old landowner classifications) three difft. kids injured in same scenario can recover difft. amts. based on traditional view of parental immunity d. Insurance i. Most states bar telling jury that insurance is involved in a case to prevent jury from awarding excessive amt. based on amt. of available insurance ii. When states allow intrafamily suits, insurance cos. frequently exclude coverage from policy iii. Some cts. permit insurers to exclude coverage of intrafamily claims in non-auto suits but refuse to allow it in auto suits especially where such insurance is compulsory or strongly encouraged. iv. If cause of action brought against insurance co., can implead parent if state allows c.of a. against parents. But, if state requires parental immunity, insurance co. will not be allowed to implead parent. 4. Government Entities a. States: most have abrogated immunities (via statutes), but still utilize duty factors to determine scope of govtl. liability: i. Ministerial v. Discretionary Acts Ministerial= requires adherence to a governing rule, may subject employer to liability for negligence Discretionary= exercise of reasoned judgment, may not result in municipalitys liability (courts less likely to impose liability b/c of policy reasons, Separation of Powers Issues govt. has limited resources and has right to decide how theyre allocated, in most cases not an issue for cts. to determine, e.g. police protection) ii. Govtl. vs. Proprietary Function iii. Traditionally Private Enterprise vs. Public Services/Facilities (hospitals, mass transit vs. public highways) Ct. might apply Friedman test for public highways (1- was study of traffic condition plainly inadequate or no reasonable basis for traffic plan; 2 liability may result from failure to effectuate plan within reasonable period of time) iv. Foreseeability of Injury v. Cost/Burden of Prevention vi. Public Interest (Crushing Burden of Liability) vii. No Affirmative Duty to Act (in Absence of Special Interest, Voluntary Undertaking, Non-Negligent Creation of Risk or Non-Negligent Injury)

ii.

See Riss where NY govt. had abrogated immunity, but ct. still didnt allow c.of a. against police because of no special relationship/voluntary undertaking and concerns over limitless liability/flood of litigation. But note also Morgan (Sheriffs office held liable for voluntarily undertaking to inform lady before releasing man who killed her). b. Federal Tort Claims Act (only applies to actions against fed. gvt., but since theres no fed. tort law, cts. still apply state substantive law in FTCA cases) 1346(b): distr. cts. have original jurisdiction when U.S. a defendant 2402: shall be tried by ct. w/o jury 2679(b): employees not liable, only govt. 2680: Exceptions to Abrogation Provisions shall not apply to: (1) Statutes Any claim based upon an act or omission of an employee of the Govt., exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid (Note: ordinary people dont get this freedom. Compliance to a statute or regulation may be helpful in determining breach of a duty, but is NOT dispositive.) (2) Discretion based upon exercise or performance or failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Govt., whether or not the discretion involved be abused. When is an act discretionary? a) does fed statute specifically prescribe course of action for employee to follow? If employee didnt follow, then govt. open to liability. b) does the decision require a choice? it is susceptible to policy judgment (not actual decision like in Friedman, b/c of language of FTCA, but whether nature of decision implicates policy analysis) c) involves political, social, and economic judgment (otherwise anything could be discretionary) fraught w/public policy considerations (note Cope v. Scott not putting up warning signs was discretionary, but not of the sort that FTCA seeks to protect) (3) Intentional Torts (almost never w/in scope of employment) c. Official Immunities for Judges and Prosecutors: Generally, when exercising judicial functions, judge who has a duty and breaches duty causing injury is immune from civil suit. Prosecutors perform quasi-judicial function, enjoy absolute immunity in fed. and state contexts. Immunity only shields prosecutor acting in official capacity. 5. No Duty - Policy Bases: a. Social Utility of Ds Business: i. It is the responsibility of cts., in fixing the orbit of duty, to limit the legal consequences of wrongs to a controllable degree and to protect against crushing exposure to liability. Strauss (in case of old man falling down the stairs during a black-out, finding duty only exists if someone has a

contract w/Con Ed and injured in a place that was covered by that contractual obligation.) y Note the magnitude of service provided by Con Ed. What would be consequence of allowing crushing liability against them? b. Fixing the Orb of Duty: See In re New York City Asbestos Litigation where wife of Port Authority employee contracted cancer from washing husbands dust-filled clothes. Ct. held D had no duty to pl. considering limitless liability to an indeterminate class of persons. C. NONPHYSICAL HARM 1. EMOTIONAL HARM a. Public policy issues with allowing recovery for stand-alone emotional harm: limitless floods of litigation, easily feigned injuries, damages resting on conjecture and speculation b. Was emotional harm foreseeable consequence of action? c. Proof of emotional harm whats sufficient (nightmares, going to see a psychiatrist, not being able to leave the house, nausea/vomiting)? Some cts. require severe emotional distress. d. Many cts. have allowed recovery where pl. was aware of pending death or injury even if period of awareness was very short. e. Some states bar recovery for intangible damages if victim is not alive at time of final judgment. f. Loss of Consortium loss of companionship, comfort, household services, sexual relationship, etc. b/c of a spouses injury (usually requires severe injury) Direct Victims of Emotional Distress 1) Limited Foreseeability Standard (Gammon) Indirect Victims of Emotional Distress 1) Limited Foreseeability (Dillon, Portee v. Jaffee) (cts. limit scope of liability/orbit of duty w/factors e.g. marital or familial relationship, death or serious physical injury of another caused by Ds negligence, observation of death or serious physical injury at the scene of the accident) 2) Zone of Danger immediate risk of physical harm (Gottshall, Falzone)

2) Zone of Danger (cts. might add on e.g. severe emotional distress)

See also Johnson v. Jamaica Hospital parents couldnt recover for kidnapping of baby for 4 days because they werent direct victims of injury. Could parents have recovered b/c of special relationship (hospital talked to parents not baby abt baby)? 2. ECONOMIC HARM a. General Rule No recovery for pure economic loss. Must have injury. i. Public policy issues easier to draw principled lines for emotional injury (e.g. familial relationship requirement), businesses usually have business

ii.

interruption insurance, imposition of liability for pure economic loss might deter socially useful behavior by imposing liability for these huge potential losses Accountants (liability to persons with whom they are not in near privity): - Foreseeability test (generally disfavored as too broad) acct. liable to any person whom acct. could reasonably have foreseen would obtain and rely on accts opinion (known and unknown investors) - Near-privity test (hard to prove all elements and restrictive) 1) reliance by third party on accts report, 2) accts knowledge that 3rd party intended to rely on report and 3) conduct by acct providing direct linkage to 3rd party - Restatement Section 553 Test liability limited to non-contractual 3rd parties who can demonstrate actual knowledge on part of accountants of limited group of potential 3rd parties that will rely on report and actual knowledge of particular financial transaction such information is designed to influence. Knowledge to be measured at moment report is published.

D. IMPLIED RIGHT OF ACTION: Where no common-law duty exists and a statute does not expressly authorize private right of action 1. Test (looks like negl. per se, but not b/c n.p.s. goes to breach not duty): (1) is pl. one of class for whose particular benefit statute was enacted? (2) would p. r. of a. promote legislative purpose/ (3) would private right of action be consistent with legislative scheme? 2. See Uhr v. East Greenbush p.r. of a. not consistent w/legsl. purpose/scheme b/c (1) enforcement mechanism was to cut school funding (would be inconsistent w/cause of action that could cost schools hundreds of thousands of dollars) and (2) statute included immunity for school districts from liability that might arise from scoliosis screening program (would be inconsistent to impose liability for nonfeasance if misfeasance was immune from liability). 3. Child-Abuse Reporting Statutes: a. Every state has adopted some form of law requiring reports from people who have knowledge or suspicions of a childs abuse. i. Justifications: child abuse done in secret, harder to discover, victims of child abuse often unable to articulate abuse, duty to report may infringe less on personal freedom than duty of easy rescue b. See Cuyler v. U.S. (Posner refusing to apply p.r. of a. in case of personnel at navy hospital violating Il statute by failing to report suspected child abuse; babysitter eventually fatally abused child) Imposing liability for negligently failing to report might make individuals feel like they always have to report and thereby put themselves at risk for being sued for defamation (even though IL statute immunized good faith reports) or to not report and risk being sued if abuse was genuine and repeated as to harm others.

IV.

BREACH (usually question of fact for jury) A. STANDARD OF CARE (determining breach of duty of reasonable care) 1. Factors: a. Foreseeability of Harm (Adams Ct.App.NY reverses trial ct. verdict for pl. b/c little boy being burned by touching wire w/ 8ft pole had was not foreseeable since no accident like that had happened before) b. Probability (Bolton no breach by club b/c cricket ball had only been hit over fence 6 times in 28 yrs) c. Cost of Prevention d. Feasibility of Preventative Measures (Greene kneeling mechanic trips store patron, solution would be constantly announcing that we are bending down or kneeling?) e. Magnitude of Harm Caused f. Public Utility of Ds Conduct (e.g. railroads using efficient methods that may be dangerous) 2. Learned Hand Formula: If B(urden) < P(robability)L(oss), then D is liable If B(urden) > P(robability)L(oss), then D is not liable i. Problems: loss not easily quantified; what abt cases where B only slightly less than PL, but L still significant B. REASONABLE PERSON 1. What would reasonably prudent person under like circumstances do? Restatement (Second) of Torts 283, comment c: R.P. standard provides sufficient flexibility, and leeway, to permit due allowance to be madefor all of the particular circumstances of the case which may reasonably affect the conduct required. 2. Disability: Restatement (Second) 283, c if actor ill or physically disabled, reasonable man under like disability. a. Exception: Mental Illness hard to identify/prove, easier to fake. (See Restatement 283B, Unless actor a child, insanity or other mental deficiency doesnt excuse actor from liability for conduct that doesnt conform to r.p. under like circumstances.) 3. Children: a. Reasonable child of like age, intelligence, experience b. Rebuttable/Irrebuttable Presumptions Based on Age: i. Younger than 7: Irrebuttably presumed incapable of negligence ii. 7 to 14: rebuttably presumed incapable of negligence (age, intelligence, experience of child relevant) iii. Older than 14: rebuttably presumed capable of negligence 4. Exception: Adult Activities (measured against adult ordinary standard of reasonable care) a. See Dellwo v. Pearson (12 yr. old driving motor boat): One cant know if operator of approaching automobile, airplane, or powerboat is minor or adult, and usually cant protect himself against youthful imprudence

5. Higher standard of care sometimes applicable, e.g. handguns (see Wood v. Groh pl. accidentally shot by Ds son w/Ds gun that son got out of locked cabin by opening w/screwdriver. Ct. found pl. owed highest degree of care in safekeeping handgun.) C. ROLE OF JUDGE AND JURY 1. Bright-Line Rules (Holmes, Goodman) vs. Flexible Standards (Cardozo, Pakora) 2. Bright-Line Rules a. Advantages: efficiency (easier to decide cases as matter of law); uniformity (different juries looking at same case will come to same conclusion); predictability (lawyers can predict with greater certainty outcome of a case) b. Disadvantages: (1) see Pakora following Goodman standard wouldve caused pl. to be hit by railway car; (2) provides no incentive for companies to take safety measures (remember deterrence goal of tort law) c. Goodman: If a driver cannot be sure otherwise whether a train is dangerously near he must stop and get out of his vehicle, although obviously he will not often be required to do more than to stop and look. 3. Flexible Standards a. Advantage: In torts facts always variable, difficult to come up with specific rules for torts problems. b. Adams, Greene: Cardozo has no problem reversing jury verdict, but not willing to take issue away from juries altogether by applying bright-line rule. D. CUSTOM 1. Helps evaluate what s. of c. should be. Relevant, not dispositive. 2. Evidence of industry custom shows: others in industry found other method feasible, D had ample opportunity to learn other methods, judicial decision on Ds negligence in failing to follow custom will not have great social impact. 3. Trimarco v. Klein: Ct.App.NY affirms jury verdict against landlord; finding negl. for failing to replace tenants bathroom door w/ shatterproof glass. 4. MedMal: Specialized knowledge and skill of doctors must be considered. Custom is standard; docs create own standard of care of reasonable care. Cases always require expert testimony. E. STATUTES 1. Help give context to standard of conduct. 2. Crim. law by their terms not applicable to civil cases. 3. 2-prong Test for Applicability of Statutes/Negligence Per Se: a. Intended to protect class of person including pl.? b. Intended to prevent type of harm/injury sustained in case at hand? c. Martin v. Herzog (Cardozo, Deced. driving w/o headlights, D crosses line): If violation of statute wholly unexcused, violation of statute is negligence. Not left to jurys discretion. i. to omit, willfullysafeguards prescribed by law for benefit of another that may be preserved in life or limb, is to fall short of standard of duty of reasonable care.

4. See Gorris v. Scott: Sheep washed overboard during voyage b/c shipowner didnt build pens on deck, but statute required pens to keep sheep separated to prevent contagious disease. Pl. denied cause of action b/c damage is of such a nature as was not contemplated at all by the statute, and as to which it was not intended to confer any benefit on pl. 5. Licensing Statutes: Doesnt usually prove negl. Protect public from actions performed by unskilled person, doesnt set s. of c. Pl. must prove D lacked requisite skill to prove negl. 6. Compliance: Compl. w/fed. reg. does NOT insulate D from common law tort liability. (see Edwards v. Basel Pharmaceut. manufacturers duty to warn consumer not necessarily satisfied by compliance w/FDA minimum warning requirements.) F. PROOF 1. Pl. has burden of proof that Ds conduct fell below standard of reas. care. 2. Actual Notice 3. Constructive Notice: Pl. must show D had notice of particular dangerous condition a. See Negri v. Stop and Shop, Inc. i. Circumstantial evidence: (1) pl. fell backward, but didnt come into contact w/shelves; (2) Witness in immediate vicinity hadnt heard jars breaking in previous 15 or 20 min; (3) Aisle hadnt been cleaned or inspected for at least 50 min. prior to accident. ii. Pl. made prima facie case (at first view/look, evidence sufficient to raise presumption of fact or establish fact in question unless rebutted) iii. Compare Gordon v. Natural History Museum (pl. couldnt prove that D had constructive notice of presence of particular piece of paper pl. slipped on b/c no evidence, not even circumst.) To constitute constr. notice, defect must be visible and apparent and exist for sufficient length of time prior to accident to permit Ds employees to discover and remedy it. b. Business Practice Rule: merchant that uses self-service method of sale must bear burden of showing what steps were taken to avoid foreseeable risk of harm. (See Randall v. K-Mart, ct. refused to apply self-service rule to K-Mart, b/c pl. failed to explain how K-Marts merchandising of birdseed posed hazard, no evidence showing how K-Mart sold birdseed, e.g. in paper plastic or burlap bags or canisters or loose or in bulk.) 4. Res Ipsa Loquitur: (1) Accident could have only occurred if there was a breach of duty/negligence, (2) Instrumentality was in Ds exclusive control (3) plaintiff did not contribute a. Byrne v. Boadle pl. injured when barrel of flour unexpectedly rolled out of upstairs window striking pl. Duty of people who keep barrels in warehouse to make sure barrels dont roll out. If barrel does roll out and injure someone, prima facie case of negligence. b. McDougald (tire bouncing out of cradle) Pl. not required to eliminate w/certainty all other possible causes; all thats needed is evidence from which reasonable persons can say that Ds negl. was more likely than not what caused injury.

c. Charging the Jury presumption vs. (assumption of fact resulting from a rule of law that requires fact to be assumed if some other fact is established) inference (involves relationship b/w facts, but not compulsory, permissible; jury may infer)

Pl. Proves Res Ipsa Proves Res Ipsa

D --------------------Presents Evidence

Results Jury may conclude that D did or did not breach duty Jury Decision for Pl. Jury Decision for Pl. or D

Inference

Presumption

V.

CAUSATION A. CAUSE IN FACT/ACTUAL CAUSE 1. But-For Causation Test: Was Ds breach necessary to injury? 2. Substantial Factor Test: a. When we dont know who or what exactly caused the harm. b. Multiple sufficient causes each of which was sufficient to cause injury was one cause at least a substantial factor? 3. Proving Causation (by prep. of the evidence) eliminate other possible causes (Zuchowicz, e.g. woman was totally healthy other than issues probably caused by Danochrine), expert testimony, statistical analysis (Stubbs), prove to a reasonable certainty that something caused injury B. ALTERNATIVE LIABILITY THEORIES (when we dont know who caused the injury, but know that it was caused by one of a group) 1. Action In Concert 2. Concurrent Contribution To Same Wrong 3. Indivisible Injury 4. Market-Share Liability: DES case all manufacturers caused harm by putting out defective product, so liability in this particular case where we dont know which manufacturer injured pl. allocated according to market share percentages 5. See Summers v. Tice, didnt know whose bullet injured pl., but know that both Ds were negligent in shooting in direction of pl. during hunting expedition.

6. Burden of proof probably shifts to Ds, since we still want pl. to recover even though they cant prove who exactly caused their injury. 7. Makes more since when there are only 2 Ds, because if theres a 50% chance a D caused the injury, more fair to hold them 50% liable for injury (or potentially 100% under rules of j&s liability). Not as fair when there are 10 Ds and only a 10% chance a D injured pl., but may be subject to 100% of damages under j&s liability. C. PROXIMATE CAUSE (limiting scope of liability) 1. Direct/Indirect Test (does it follow naturally & probably in time) a. Polemis ct. fire wasnt foreseeable consequence of dropping plank down hole, but was direct cause, so proximate cause 2. Foreseeability of Harm Test a. ensures that Ds responsibility is proportionate to liability, consistent w/notion of corrective justice (Doe should landowner be held liable for rape for breach of keeping unkempt premises). b. Wagon Mound ct. - foreseeable that allowing oil to spill and stay on water would damage slipways, but not that oil would burn on water causing damage. 3. Harm W/in the Risk Test (what risks were foreseeably created) a. Extent of Harm/Type of Harm i. extent of harm prob. doesnt matter for prox. cause (egg-shell pl. rule; D probably still fully liable for damage of valuable painting even if didnt know it was in the car) ii. unforeseeable type of harm might be impt. for prox. cause analysis (Wagon Mound), but unforeseeable manner of occurrence of foreseeable harm prob. doesnt matter for prox. cause (flaming rat case) b. see Darby breach was not telling Ds not to swim b/c of risk of contracting fatal Weils disease from rats peeing in lake; pl. died, but from drowning 4. Intervening Causes: new force that joins w/Ds breach to cause injury (no legal significance unless improbable or extraordinary, e.g. superseding case) 5. Superseding Causes: So improbable or extraordinary as to be unforeseeable, D probably not liable (often the case w/criminal misconduct, e.g. Doe v. Manheimer foreseeable that breach of leaving premises unkempt would lead to injury for patrons b/c of tripping or falling, not b/c of 3rd party dragging them into brush and raping them) 6. Egg-shell pl. rule D must compensate pl. for full injury, regardless of prior latent condition. 7. Note also Palsgraf unexpected victim (foreseeable that dropping nondescript package on railway would damage passengers property, not cause explosion injuring Palsgraf standing far away; Cardozo dismisses as no duty to person outside of range of apprehension). D. Loss of Chance (Injury for which one can recover in some jurisdictions) 1. Breach is of duty of reasonable care (Alberts delays in critical exams, surgery; but still couldnt recover b/c couldnt show that leg was salvageable anyway) 2. L.o.C. cases usually involve loss of life. Must at least be a severe injury.

3. If pl. can show 75% loss of chance by prep. of evidence (50%+), can probably recover for loss of leg, not loss of chance, because has essentially proven that negligence caused loss of leg to a reasonable certainty. VI. DEFENSES A. CONTRIBUTORY NEGLIGENCE (objective standard of what reasonable person under like circumstance would have done) 1. Requires same analysis as Ds negligence 2. True pure contributory negligence states bar recovery for pl. who has been contributorily negligent (only AL). Policy to harsh for pls. who were slightly at fault compared to Ds negligence not to be able to recover, so most states have abandoned as a complete defense. 3. Even states that still allow contr. negl., only a complete defense in cases of negl. If D acted recklessly or willfully, defense of contr. negligence will not apply. 4. If D had last clear chance to avoid injury, pl. might not be barred by contributory negligence. 5. Usually have to look to statute to see if state employs contr. negl. or comparative fault system. B. COMPARATIVE FAULT 1. Depends on Each States Statutes a. Note what is included in fault in the states statute. Will determine what will be compared in allocating fault (e.g. are intentional torts outside realm of fault to be compared in statute?) 2. Uniform Comparative Fault Act (Pure Comparative Fault) assesses against everyone percentage allocated by jury a. Fault includes negligence, recklessness, strict liability, breach of warranty, unreasonable assumption of risk except express consent , unreasonable failure to avoid injury or mitigate damages (carried over from common law) b. Proportion of fault of insolvent Ds reallocated among other parties, including claimant, according to respective percentages of fault c. Allows joint and several liability d. Allows contribution e. If one D settles, claimants damages from other parties reduced by amount of released persons equitable share of obligation 3. Iowa Statute (ex. of Modified Comparative Fault System) a. contr. negl. only bars recovery when pl.s fault is greater than combined percentage of Ds fault b. damages reduced by amt. of pl.s fault c. J&s liability only when a Ds fault is more than 50% of total fault assigned to Ds. 4. Some states employ pl. 50% at fault will recover, 51% at fault wont recover systems. Impt. if pl. and D equally at fault. 5. See Fritts Patients who may have negligently injured themselves (pl. either drove drunk or got in the car w/a drunk driver) are nevertheless entitled to subsequent

nonnegligent medical treatment (where doctors negligence in treating injury from car accident caused death of pl.). 6. Some states allow failure to use safety devices to fully reduce recoverable damages, although D is likely to bear burden of showing that pl.s harm was due to failure to sue safety equipment (e.g. helmets, vests, etc.). C. ASSUMPTION of RISK (only considered after pl. has made out prima facie case of negl., subjective standard of what pl. knew) 1. EXPRESS ASSUMPTION of RISK: contract entered into in advance of injury to pl. a. can contractual agreement release D from negligence? b. Restatement Section 496B, comment e: Agreement should be upheld if it is (1) freely and fairly made, (2) between parties who are in equal bargaining position, and (3) there is no social interest with which it intereferes. c. Public Policy bases for invalidation of express exculpatory agreement: (1) whether language is sufficiently clear to reflect parties intent (does agreement clearly release D from liability does it just say negligence, does it broadly state all fault?) (2) public policy considerations: Tunkl factors (give content to 3rd factor from Restatement, but note Tunkl was talking about public hospital that required potential patients to sign waivers) i. concerns business of type generally thought suitable for public regulation ii. party seeking exculpation performs service of great public importance/practical necessity (Vermont Ski case, skiing open to public; thousands by tickets/utilize premises everyday) iii. party holds itself out as willing to perform service iv. party possesses decisive advantage in bargaining strength against any member of public (but more likely to apply where service is something that people really need e.g. have to sign arbitration agreement to buy a car, but people need cars; not like Circle of Fear people dont need to play C of F) v. superior bargaining strength & standardized contract w/no provision for payment of additional reasonable fees to protect against partys negligence vi. as a result of transaction, person or property of purchaser placed under control of seller, subject to risk of carelessness by seller or sellers agents 2. IMPLIED ASSUMPTION of RISK a. Primary Pl. impliedly assumes risks inherent in a particular activity; D had no duty (not really true affirmative defense) b. Secondary (1) pl. has knowledge of risk created by Ds negl. and (2) knowingly encounters/ voluntary exposes himself to risk

i.

ii.

some jurisdictions find that assumption of risk defense is incompatible w/comparative fault system b/c goal is to allow pls. to recover (contrary to premise of comp. fault system to require pl. who is 50% or less at fault, to bear all of costs of injury). Comp. fault seeks to compare negl. of both pl. and D; goal would be thwarted by adherence to common-law defense of ass. of risk.

VII.

INTENTIONAL TORTS (note: actual cause still an issue in intentional torts, but not prox. cause since we dont really care about limiting liability of people whove committed intentional torts) A. INTENT: Contributory negligence or recklessness are not defenses to intentional torts. (a) acts w/purpose of producing consequence or (b) acts knowing that the consequence is substantially certain to result (5 yr old kid moving chair causing lady to fall and break hip) 1. Statute of limitations usually longer for intentional torts, b/c one of goals of statute of limitations is to allow Ds repose from threat of lawsuits and this is not as important for Ds who have committed intnl torts. B. RECKLESSNESS (Level of culpability, not intentional tort, higher than negligence, less than intentional) (a) knows of the risk of harm created by the conduct or knows facts that make the risk obvious to another in the persons situation, and (b) precaution that would eliminate or reduce the risk involves burdens that are so slight relative to the magnitude of the risk as to render the persons failure to adopt the precaution a demonstration of the persons indifference to the risk. C. ASSAULT: (Usually accompanies battery) Acts w/intention to cause a harmful or offensive contact to another person or a 3rd person, or an imminent apprehension of such contact and thereby puts the other in such imminent apprehension. 1. Puts someone in reasonable fear of imminent bodily harm. 2. Damages recoverable for assault are generally nominal damages. D. BATTERY: Intentional infliction of harmful or offensive bodily contact upon another. 1. Consent not usually a defense to battery, because lack of consent is part of prima facie battery claim. 2. Offensive contact with an object attached to pl.s body (camera, cane, etc.) constitutes a battery. Restatement Section 18, comment c:

Unpermitted and intentional contacts w/anything so connected with the body as to be customarily regarded as part of the others person is actionable as an offensive contact w/his person. 3. Intent to injure pl. unnecessary in a situation in which D willfully sets in motion a force that in its ordinary course causes the injury. 4. Offensive contact = reasonable sense of personal dignity. a. Would offend the ordinary person and not one unduly sensitive as to his personal dignity. (Restatement) Note: Wishnatsky D closed door opened by pl. causing pl. to be pushed back into the hall bodily contact was momentary and incidental and would not have offended an ordinary person. E. FALSE IMPRISONMENT: Unlawful restraint of an individual or their freedom of movement. Unjustified detention or confinement of someone. 1. Common applications: employment embezzlement and shoplifting 2. A person must be aware of the confinement or if they are unaware, have to be physically harmed by it. 3. Doesnt work in Lopez b/c pl. voluntarily accompanied employers to baking room to answer questions and door wasnt locked so she could leave at any time. Evidence must establish a restraint against the pl.s will. There was no evidence of pl. yielding to threat, express or implied, or physical force of any kind. F. INTENTIONAL INFLICTION of EMOTIONAL DISTRESS 1. Difficult to recover for this for same reasons difficult to recover for negligent infliction of emotional distress potential of fraud, limitless flood of liability, and certain amt. of verbal abuse a part of everyday life. 2. Conduct must be outrageous in most places. Could be a question for the jury, but cts. rarely find conduct is outrageous enough to send to a jury or permit recovery for intentional infliction of emotional distress (AL cases we heard about in class woman sexually harassed at work, surgeon throwing blood, etc. in face of nurse no recovery). 3. Womack test for recovery for int. e.d. (pl.s picture unjustifiably introduced in child molestation case ct. reinstates jury verdict, but the exception): (a) whether wrongdoers conduct was intentional or reckless (b) outrageous conduct (offends generally accepted standards of decency and morality) deals w/problem of everyday occurrence of some verbal abuse (c) causal connection b/w Ds conduct and e.d. (d) severe e.d. 4. Claims for harassment in the workplace are now covered by Title VII (total monetary awards for compensatory and punitive damages capped according to size of employer). G. DEFENSES to INTENTIONAL TORTS (D has burden of proof) 1. CONSENT: General principle is that one who has sufficiently expressed his willingness to suffer a particular invasion has no right to complaint if another acts upon his consent so given.

a. Policy Tort goals of ensuring personal rights to freedom and that no mall shall profit by his own wrongdoing (e.g. there was no contribution for joint tortfeasors at common-law) idea of clean hands, dont come before the court unless your own hands are clean. b. Test for whether one has consented is objective person allows doctor to use rubbing alcohol and give a shot, then says they didnt consent objectively reasonable person would say they had consented by allowing doctor to put on rubbing alcohol and give shot. c. Note Hart boxing case where deced. died as a result of blow received in a prize fight. WA supr ct. affirmed order of dismissal for D b/c pl. had consented to combat and should not recover for injuries sustained during that combat. d. See also football case where ct. considered general customs football (didnt include punching or striking others) 2. SELF-DEFENSE: Did D act honestly in using force? Were his fears reasonable under the circumstances? Were the means used in applying force reasonable? (Usually a jury question) a. May be determined by States statute. If someone shows up at my door with a razorblade and I can just shut the door to escape harm, Im probably not justified in shooting him. VIII. PROPERTY TORTS A. TRESPASS to PROPERTY: Knowingly entering another persons property without permission. Such action is held to infringe upon a property owners legal right to enjoy the benefits of ownership. 1. Policy protects exclusive possession to land 2. Can trespass even if you dont know youre trespassing, damage property, invited on land and then dont leave when asked to do so, throw something onto land, push someone else onto land. B. TRESPASS to CHATTEL: Conversion of personal property C. DEFENSES to PROPERTY TORTS 1. Protection of Property: One may use reasonable force in the protection of his property, but such right is subject to the qualification that one may not use such means of force as will take human life or inflict great bodily injury. a. Notes spring gun case, where couple wasnt justified in setting spring shotgun to protect property that severely injured Ds leg. (what if trespasser had been a child, prob. would have killed child). b. Law always places higher value on human safety than on property rights (different if threat is to landowner/pl.s personal safety as well, then may be case for justifiable use of force). c. See Posners economic argument for reasonableness test balancing value of property at stake measured against cost of human life and limb, looking at 2. Private Necessity: a defense that can be used against charges of trespass where a defendant interferes with a plaintiff's property in an emergency to protect an interest

of his own. See Ploof v. Putnam where D was not negligent in attaching boat to dock in middle of storm, but pl. brought c.o.a. for damages to dock. a. Disadvantages of not allowing recovery doesnt give deterrence for people to not cause unnecessary expensive damage, pl. benefited from using property to dock (saved their own property) 3. Public Necessity: Sometimes property destroyed for protection of general public (e.g. destruction of pl.s house to prevent spread of major fire).

IX.

DAMAGES A. Pl. generally can only sue once for harm suffered (administratively difficult to handle periodic recoveries) and statute of limitations puts time limit on when she can sue. Supports tort goal of compensation (trying to put people back in state they were in before being injured). 1. Tangible (Pecuniary/Economic) losses = already occurred or predictable (e.g. doctors bills, hospital bills, loss of income) & intangible (non-pecuniary/noneconomic) losses = e.g. pain and suffering. B. COMPENSATORY DAMAGES return victim to where she was before injury 1. How to determine loss of income? Question of fact for jury lifespan, possibility of promotion, medical costs, future medical costs, pain and suffering. 2. Cts. can overturn jury verdicts that shock the judicial conscious/were excessive based on passion and prejudice. 3. Remittitur Ct. will grant new trial unless pl. consents to reduction of damage award to amt. ct. believes is not excessive. 4. Additur never invoked in fed. ct. b/c Supr. Ct. decided that they violate 7th Am. right to jury trial. Ct. will grant new trial unless D consents to increase amt of damages awarded. C. PUNITIVE DAMAGES Punishes defendant for serious misconduct like fraud, malice, or oppression, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton (see Taylor case repeated drunk driving). 1. Usually standard of clear and convincing evidence. Doesnt align with traditional goals of tort law, compensation and deterrence. 2. Judges decide if punitive damages award should be given to jury. Some bifurcate proceeding requiring jury to determine liability and compensatory damages first based on limited evidence and then allows jury to hear evidence on punitive damages and determine if punitive damages should be awarded. 3. Malice = conduct intended by a D to cause injury to pl. or despicable conduct carried on by D with willful and conscious disregard of rights or safety of others.

4. Fraud = intentional misrepresentation, deceit, or concealment of a material fact known to D with intent to deprive person of property or legal rights or causing other injury. 5. Oppression = despicable conduct that subjects person to cruel and unjust hardship in consc. disregard of that persons rights. 6. Can sometimes be imposed on employers under theory of vicarious liability: Restatement Second 909: (a) employer or managerial agent authorized doing and manner of act (b) agent was unfit and principal was reckless in employing or retaining him (c) agent was employed in managerial capacity and acting in scope of employment or (d) principal or managerial agent of principal ratified or approved act. 7. Supr. Ct. in BMW highlighted three guideposts for applying punitive damages: a. degree of reprehensibility of Ds misconduct b. disparity b/w actual or potential harm suffered by pl. and punitive damages award c. difference b/w punitive damages award and civil penalties authorized or imposed in comparable cases (Also a violation of due process clause of 14th am. to allow excessive punitive damages notions of fairness in constitution dictate that person receive fair notice of conduct that will subject him to punishment and severity of penalty that State may impose, nor shall any state deprive any person of life, liberty, or property, w/o due process of law.) Ct. held that single-digit multipliers are more likely to comport with due process (but did not give states specific prescription). D. ALLOCATING DAMAGES 1. JOINT AND SEVERAL LIABILITY (Theory of allocating damages) a. Once joint tortfeasors found liable, any tortfeasor can be held fully responsible for damages (acting in concert, contributing concurrently to the same wrong, or indivisible injury). b. Policy: We want pls. to be able to recover for damages and this allows them to recover from any liable tortfeasor in the event that pl. knows one tortfeasor is insolvent. c. Contribution some jurisdictions allow Ds to recover from other Ds in proportion to their fault in the accident. 2. See also States Comparative Fault statute to determine how comparative fault affects damages awarded. E. Tort Reform: 1. Statutory caps on punitive damages (have been found unconstitutional in some jurisdictions) or requiring pl. to share any punitive award w/the state. 2. Some states have modified or done away with collateral-source rule (common-law rule that pl. could still recover even if pl. has received money from collateral sources, e.g. insurance payments) a. Note: common-law C.S. rule includes gratuitous payments, Arambula, barring recovery for receipt of gratuitous payments might discourage charitable giving and hurt help that govt. receives if others pay certain costs, like medical bills, etc.

b. Tortfeasors should not recover a windfall from the thrift and foresight of persons who have actually or constructively secured insurance, pension or disability benefits to provide for themselves and their families. F. Wrongful Death: statutory cause of action for losses incurred after victims death. Can only be brought if decedent could have brought action (so, in states that bar actions if pl. has been contributorily negl., wrongful death suit cant be brought if deced. was contr. negl). 1. Some states limit wrongful death recovery to pecuniary damages (but even some of those states might allow recovery for loss of companionship for children and base awards on life expectancy of children and earning potential). G. Survival Statutes: damages that deced. could have obtained prior to death, b/w time of injury and death (e.g. pain and suffering, medical bills, loss of income, some jurisdictions allow loss of enjoyment of life). X. STRICT LIABILITY A. ABNORMALLY DANGEROUS ACTIVITIES 1. Explosives, animals cts. have traditionally imposed strict liability 2. Restatement Section 520 (Indiana Harbor Belt R.R. Co. chemical spill couldve been dealt w/under theory of negligence, Posner writing): (a) existence of high degree of risk of some harm to person, land, or chattels of others (b) likelihood that harm results will be great (c) inability to eliminate the risk by the exercise of reasonable care (d) extent to which activity not a matter of common usage (e) inappropriateness of activity in place where it is carried on (f) value to community outweighed by dangerous attributes B. S.L. gives incentives to engage in different activities; Permits loss distribution; S.L. usually a question of law. C. Actual and Prox. Cause still have to be evaluated for S.L. claims. D. Defenses: Ass. of risk still a defense to S.L. (you walk up to explosion site to see whats going on and get hit w/debris, D could win on ass. of risk defense). Contr. negl. not a defense, we dont want to say pl. should have been aware of risk. XI. PRODUCTS LIABILITY A. INTRO 1. Combination of torts and contracts. UCC 2-314 merchantable goods (but contract remedies were insufficient for recovery in all situations, e.g. bodily injury) 2. Restatement 2nd 402A (1) One who sells any product in a defective condition unreasonably dangerous (reminiscent of negligence) to the user or consumer or to his property is subject to

liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product (reminiscent of strict liability), and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. 3. Liability may be imposed on everyone who sells defective product (manufacturer, distributor, seller, consumer) b/c everyone in the chain benefits from sale of product so all should pay cost and ensures that consumers have a cause of action B. MANUFACTURING DEFECTS: aberrational defect; product departs from its intended design even though all possible care was exercised in preparation and marketing of the product (e.g. coke bottle exploding in waitress hand or peanut jar cracking in pl.s hand) C. DESIGN DEFECTS: foreseeable risk of harm posed by the product could have been reduced or avoided by adoption of a reasonable alternative design by the seller or other distributor and omission of alternative design renders product not reasonably safe 1. Ordinary consumer expectations test: ordinary knowledge as to the products characteristics may permit an inference that the product did not perform as safely as it should 2. Risk-Benefit Analysis: balances risks and benefits of a design, when complex product causes injury in a way that is outside of ordinary consumers reasonable assumptions about product or knowledge of product; usually requires expert testimony (See Soule, where ct. found ordinary consumers instruction inappropriate since most consumers wouldnt be able to assess a cars improper wielding techniques). D. WARNING DEFECTS: inadequate instructions or warnings when foreseeable risks of harm posed by product could have been reduced or avoided by provision of reasonable instructions or warnings by seller other distributor, or predecessor in the commercial chain of distribution, and omission of instructions or warnings renders product not reasonably safe; warnings must reach the person who is likely to use the product. 1. Generally a question of fact, but in clear cases can be a question of law. 2. Still considering factors from negl. cost, foreseeability of harm, feasibility of prevention, gravity of harm. Issue of cost a little different costs almost nothing to put a warning on a product. 3. Note Hood Ct. held distr. ct. properly entered s.j. for D on grounds that Ds warnings not to operate saw w/o blade-guards in place were adequate. Maybe jury question at least? Person wouldnt necessarily understand that removing blade-guards would cause blade to fly off saw injuring him that way warnings may have been inadequate then. (Perm case warned not to mix liquids, but didnt warn that explosion might occur inadequate warning?)

4. What are implications of putting too many warnings? How should warnings be written? Bold letters? Skull and cross-bones? Consider that people dont usually pay attention to warnings anyway. 5. Lawyers generally script warnings and tell clients what to write to avoid liability. 6. Some jurisdictions require heeding presumptions, requiring party responsible for inadequate warning to show that use would not have heeded an adequate warning.