Torts Long Outline 1 Torts Long Outline, Fall 2005 I. Functions of tort law: A. Corrective Justice B.

. Optimal Deterrence C. Loss Distribution - **Prof. Ursins favorite! D. Compensation E. Redress of Social Grievances II. Intentional Torts A. Battery >> 1) intentional 2) voluntary act 3) offensive/harmful contact 4) w/out consent. 1. Intentional purpose of causing contact OR knowing w/ substantial certainty that contact will occur. i. Transferred intent applies. ii. Reflex acts can still have intent if it requires control over ones muscles. 2. Voluntary act actual physical movement by 3. Contact two pronged, does not need to be aware of the contact, an unwanted kiss while asleep is still battery. i. Harmful contact can occur in two ways: a) Direct b) Indirect s acts set harmful instrument in motion (Garratt) OR contact was made w/ instrument closely attached to s body (Picard.) ii. Offensive contact depends on the context of the situation. a) Some acts not considered offensive by the reasonable person could be considered offensive if knows of s special susceptibility. Howard Hughes. 4. Consent can be explicit or implied. i. Acts beyond the scope of consent are not consented to. 5. Battery is usually the consummation of assault. B. Assault >> 1) intentional 2) voluntary act 3) causing reasonable apprehension 4) of imminent physical harm or offensive contact. 1. Intentional for apprehension of offensive or harmful contact i. Transferred intent applies. 2. Voluntary act requires physical movement, not just words/threats. 3. Reasonable apprehension a well founded fear of contact, not just being afraid. i. To find assault, must be aware and feel apprehension. ii. An actual ability to commence the contact must exist, no assault b/c Prof. Ursin is behind the podium. a) Does not matter if assaulter is much smaller than target, as long as target is apprehensive of contact. iii. Apprehensions that are not normally reasonable can be so if the knows of the susceptibility. 4. Imminent immediate, threats of future action and conditional threats do not count. C. False Imprisonment >> 1) intentional 2) unlawful exercise 3) confines 4) w/out consent. 1. Intentional i. Transferred intent applies. 2. Unlawful exercise willful act of the .

Torts Long Outline 2 3. Confines restricts liberty of movement; is aware of confinement. i. Physical force to self or immediate family. a) Barriers to escape closing off the only exit(s). ii. Verbal threats imminent; to self or immediate family. iii. False authority by and submission by . iv. No FI if a reasonable means of escape that is aware of. 4. Unconsented if asks to leave and is permitted to, no FI. i. Feeling compelled to stay FI (Lopez.) 5. Exception employers are allowed to use reasonable means of interrogation when questioning their employees. D. Intentional Infliction of Emotional Distress >> 1) intentional act 2) extreme and outrageous in nature 3) causing severe emotional distress. 1. Intentional act caused by intentional and willful actions. 2. Extreme and outrageous goes beyond all bounds of decency i. Abuse of positions of authority. ii. s knowledge of s particular sensitiveness. 3. Emotional distress resulted from s actions; actual physical manifestations are not required to prove this element. E. Defenses 1. Consent >> i. Implied acts going beyond the scope of what is impliedly consented to are no longer consented to; touch football. ii. Express 2. Self-defense >> 1) using a reasonable means of force 2) because of an imminent fear of bodily harm/death i. Reasonable force measured based on the available options a) Liability can exist when self-defense over exceeds what is reasonable in the situation. ii. Imminent fear the use of force is based on a well-founded, immediate apprehension. a) Self-defense is applicable in cases of reasonable mistakes of the attacker (Courvoisier.) iii. Self-defense of self and others is a privilege b/c it is an allowance to cause normally tortious harm on another. III. Negligence >> failure to exercise a reasonable persons level of care. A. In negligence cases: 1. First, look if there was a duty of care required. 2. Next, examine negligent actions that breached that duty. 3. Next, examine causation. 4. Last, make sure there are no applicable defenses. B. History of negligence as a tort 1. The law changed to keep up with our industrialized society. 2. Led by J. Shaw, a shift from the standard of extraordinary care, strict liability, and the writ system (Brown.) i. Holmes supported strict liability.

Torts Long Outline 3 ii. Elimination of the difference between trespass and case (merely procedural.) C. Duty Requirement >> a duty has to exist before someones negligence can be a breach of duty. 1. Determining duty is a balancing act, (a way to prove negligence). i. [Generally] Risk > Benefit of the Risk = Negligence a) Magnitude of risk = severity of damage x probability. b) Benefit = utility; convenience of not taking precaution. 2. In addition to the general duty of ordinary care, there are special duty rules: i. Rescue Situations >> generally, no duty to rescue. a) Nonfeasance: the no duty rule; baby on RR tracks. 1) But once engaged in a rescue attempt, a duty of reasonable care is owed to avoid misfeasance/malfeasance; Clinton in Malibu. b) A duty does exist when: 1) Special situation: negligently places in a position of danger. 2) Special relationship: between a third party and the dangerous person or the potential victim (Tarasoff using Rowland factors.) i) Based on the foreseeability of harm. a. This gives more cases to juries. ii) *Duty on psychologists is a special case b/c of their special knowledge. iii) Note: there is no special relationship between police and the public. Examine the policy behind determining special relationships. ii. Landowners and Land Occupiers a) Two views: 1) Classification System (traditional, Carter.) Still used in ~ jurisdictions. i) Invitees: express/implied permission; host expects some material benefit. a. Duty against known dangers and those revealed by inspection, and to make those dangers safe. i. Sometimes a warning will suffice. b. An invitee who strays from the area he has permission to be on, he becomes a licensee. c. Public Invitee >> new sub-category. i. Business visitor: invited to enter/remain for purpose (in)directly related to business dealings w/ landowner. ii. Ex. customers, workers, garbage collectors. iii. Open invitation to the public. iv. But, entering a public place (i.e. park) public invitee. ii) Licensees: implied permission from owner. a. Duty to make safe the dangers the owner is aware of or to warn of dangers. i. No affirmative acts of negligence, active operations. b. Ex. social guest, door-to-door, charity solicitor, neighbor borrowing tools, bringing lunch to one at work, etc. iii) Trespassers: enters property w/out owners express or implied consent. a. No duty. b. Exceptions:

Torts Long Outline 4 i. Regular trespassers: duty not to wantonly or willfully harm (i.e. concealed trap.) Possible duty to warn of dangers; Ursin as a boy. ii. Attractive Nuisance Doctrine: if there is a possibly dangerous temptation for a child, ordinary care duty to prevent harm. iii. Ex. RR turntables, unattended cars, machinery, explosives, etc. iv. But, no-duty for ordinary risks (should know better): fire, body of water, falling from heights, etc. c. Torts Restatement 339 Artificial conditions dangerous to trespassing kids; 5 requirements: i. (Should) know(s) kids likely to trespass. ii. (Should) know(s) unreasonable risk of death or serious bodily harm to kids. iii. B/c youth, kids do not know risk of playing w/ attractive nuisance. iv. Risk > burden to maintain/eliminate risk. v. Failure of reasonable care to protect. Pros: predictability and judicial efficiency. 2) Modern Rowland View >> led by CA, late 1960s; ~ states use this. i) Heins court based liability on foreseeability but retained the rules for trespasser category. a. Child trespasser exceptions are probably not retained. ii) Pros: value of life & limbs, does not shield s of duties they probably owe another person anyway. iii) Policy: avoiding future harm, modern prevalence of liability insurance. b) Landlords >> traditional landowner rules apply but some additional duties. 1) Generally only have duties in few situations: i) To protect against criminal activity in the building. a. This duty does not require hiring security guards (too expensive; Kline v. 1500 Mass. Ave.) i. A high degree of foreseeability is required, not just that crime is present in the area, but that crime has happened on premises. ii) Fix negligent repairs, make repairs that are stipulated by the lease or K. iii) To discover and remedy (or at least warn) dangers before transferring property to lessee. iv) Public Use i.e. theater, common area (staircase), etc. 2) Note: most Rowland jurisdictions, like CA, have probably abolished duty rules to landlords. i) Look instead at if the landlord has exhibited reasonable care. c) Recreational Use of Land >> many states have regulating statutes. 1) Usually, owner has a duty to refrain from wanton/willful misconduct. i) CA expanded this liability to any land people may go to for recreational purposes, including construction sites. iii. Negligent Infliction of Emotional Distress (NIED). a) Traditionally, no duty for fear of a floodgate of litigation, fraud, etc. b) Broadly, three categories (traces development of NIED, which has relaxed over the years.)

Torts Long Outline 5 1) Fear of own safety >> almost getting hit by a car. i) Courts, generally very skeptical, rules evolved: a. Actual slight injury on impact slight impact no impact but physical manifestations of fear zone of danger: b. Zone of Danger: those threatened w/ bodily harm (by negligence) can recover for NIED. i. Liability expanded in NY from Tobin Bovsun. 2) Fear for anothers safety: is a direct victim of s negligence, i) Development: a. Corpse mishandling incorrect death telegram parent/child. ii) Physical manifestations are no longer required. iii) In some jurisdictions, courts require the NIED to be in the zone of danger for recovery. a. BUT not CA rejected zone of danger requirement in Dillon (decided the same year as Rowland.) iv) Gammon/expansive jurisdiction looks at: a. Foreseeability of harm. i. Ex. exceptional vulnerability of family of recently deceased. b. No physical manifestation requirement. i. NIED established through trial & witness testimony. 3) Bystander cases >> rules emerged out of cases where parents witnessed childs death. i) Dillon case was the first to allow for recovery based on foreseeability of risk. Expansive Dillon factors, refined by Portee and Thing: a. Direct, sensory and contemporaneous observance of accident (direct witness.) i. Hearing about the accident. b. Close relation of and victim. i. + victim relation, recovery c. s negligence causes actual and severe injury to victim AND causes s NIED. d. is aware that victim is physically suffering. c) Liability expanded for negligent interference w/ consortium: 1) Recoverable damages for loss of companionship for a family member of someone seriously injured. iv. Guest Statutes for Automobile Passengers >> non-paying passengers. a) Driver owes same duty as social guest to non-paying passenger = no full duty. b) Most Rowland jurisdictions have abolished this rule as unconstitutional. 1) Denies protection just b/c is a non-paying passenger. v. Economic Harm >> duty to avoid risk of causing $$ damages to identifiable classes (People Express Airlines, Inc.) a) 2 Categories: 1) Negligence causes economic loss. i) No physical injury requirement b/c the wronged should be compensated (tort law policy.) ii) i.e. malpractice by accountant, attorney, etc.

Torts Long Outline 6 iii) Courts are reluctant to provide rules b/c of interference w/ K law privity required. 2) Physical injury. i) i.e. property damage, but only if suffers economic loss. b) Emphasis on foreseeabilty based on: 1) Special relationship: identifiable classes of victims. i) But, identifiable foreseeable. ii) Ex. auditors, surveyors, termite inspectors, engineers, attorneys, notaries, architects, etc. 2) knew or should have known the consequences of negligence. 3) Private actions that are a public nuisance. c) Difficult to enforce calculating damages is very speculative. 3. After the Rowland case (1968), CA and other courts that adopted CAs view could impose liability where formerly there was no duty. i. The Rowland Factors: a) Foreseeability of harm to (most important.) b) Degree of certainty will suffer harm. c) Close connection between s conduct and s injury. d) Moral blame attached to s conduct. e) Policy of preventing future harm. f) Extent of burden to . g) Consequences to community of imposing a duty. h) Availability, cost, and prevalence of insurance for risk. 4. Immunities from Tort Liability >> work like no-duty rules, but immunities can be waived. i. Generally, rules protecting groups by immunity have been abolished. a) Charitable: charities no longer cloaked w/ unwarranted immunities. b) State and government: began in England, you cant sue your own king! 1) Now, a complex statutory scheme exists to obtain recovery. c) Intrafamilial: families no longer immune b/c losses are distributable through insurance policies. 1) But, what about fraud? D. Standard of Care 1. Ordinary/Reasonable Care i. Negligence exists when: a) Reasonable precautions w/ prudent foresight to avoid harm were not taken (Adams.) b) Foreseeability knew or reasonably should know of the risk of harm. 1) Risks are rarely completely unforeseeable. ii. Customs are taken into considered in determining negligence as being relevant but not conclusive (Trimarco). 2. Learned Hand Test balancing test used to determine negligence i. M: magnitude of loss ii. P: probability of the accident occurring iii. B: burden of taking precautions iv. If M x P > B, then there is negligence

Torts Long Outline 7 a) Still used by courts more for its analytic value than display of economics. 3. The Reasonable Person >> establishes an objective standard. i. In adults, examine the conduct (objective), not state of mind or intent (subjective.) a) Age and lack of experience or intelligence are not taken into consideration. b) Above average intelligence or skills are considered, but not below average. c) Contextual adults in emergency situations are held to standards of a reasonable person in that situation. 1) Adults with physical disabilities are measured against adults with similar disabilities (blind, deaf, etc.) d) Exceptions are generally not made for mentally retarded and voluntarily intoxicated adults. ii. Children. a) Subjective examination of experience, intelligence, age, etc. against another reasonable child of similar capacity. b) Children engaged in adult activities dangerous activity normally reserved for adults adult standard. 1) i.e. driving, operating personal watercraft, etc. 4. Utmost Care Standard of Common Carriers i. CA has an utmost care standard for common carriers, almost like strict liability (Andrews). a) NY does not. 5. Statutes i. Courts must decide if they want to use statutes in determining negligence. a) Statutes are not designed with tort liability in mind ii. Statutes only protect the groups originally designed for. iii. Complying w/ minimum regulation does not absolve liability; a) Hubbard-Hall Chemical Co. negligent b/c compliance w/ a poor industry standard does not justify the foreseeable consequences. iv. Violation of a statute is negligence per se (Martin, J. Cardozo). a) except when there is an excusable omission: 1) Emergency (electrical problem, car stops). 2) Rules of the road. i) Legislatures do not make laws intending more harm than good (Tedla). v. Violation of a life and limb statute is negligence. 6. Licensing Statutes i. Generally, not used to set a standard of care b/c they are designed to protect s from unskilled people. E. Causation 1. Cause in Fact >> establishes the actual cause of s harm. i. Established by: a) But for test: but for s negligence, P would not have suffered harm, (Stubbs.) 1) YES: can recover b/c s negligence is the cause in fact. 2) NO: cannot recover. b) Substantial factor test: s negligence was a substantial contributor to harm.

Torts Long Outline 8 1) Usually used when there are > 1 where s negligence is a substantial factor but not the but for cause so s cannot escape liability. ii. Shifting the Burden of Proof >> assigning liability/burden to the party in the better position to prove and distribute losses (tort policy.) a) Multiple Defendants >> each is liable for his share of negligence. 1) Concurrent Liability: conduct of and 3rd party(s) caused s harm; each is a substantial factor joint and several liability. i) Several tortfeasors: each acts independently. ii) Recall ex. of 2 fires each s negligence caused harm. 2) Joint Tortfeasors: acting in concert joint and several liability. 3) Alternative Liability: s injured by negligence of 1 of X possible s, not acting in concert. i) Both are actual causes though not a but for cause burden of proof for exculpation shifts to . ii) Note, particular liability of gun cases like Summers. 4) DES Cases: cannot prove which manufacturer produced specific pill injury exclusively from mothers ingestion of DES (like Summers but .) i) No concert of action, but cannot tell which caused the harm (a cause in fact problem.) a. So, if can bring in a substantial market share of manufacturers, can recover. ii) Market share theory >> s liable for damages proportionate to their market share of product. a. NY (Hymowitz): several liability; no exculpation b. CA (Sindell): several liability; (exculpation allowed by pill description.) b) Landowners 1) Stairway slip cases: expansion of landowner liability. i) Wolf found at bottom of dark stairs, no causation (1929). ii) Hinman proved stairs were unreasonably dangerous, common sense causation can be reasonably inferred (1991). 2) Haft case swimming pool drowning in absence of statutory requirement of warning sign or lifeguard. i) Court shifted burden of proof b/c is a commercial enterprise, better able to investigate and spread costs. 3) Premises cases generally no duty, (Saelzler not concerned w/ foreseeability, but proof that crime had happened prior in that same area.) i) Courts are reluctant to impose an unrealistic burden on property owners. ii) BUT, in Kline (D.C. 1970), the court ruled there is a duty better able to protect from harm. iii. Probabalistic causation a) Toxic dump types of cases (cancer risk.) 1) s liability for subjecting s to the enhanced risk of getting a disease. 2) proves through expert testimony more probably than not b) Loss-of-Chance >> medical malpractice. 1) If dr. was not negligent, then more probably than not have died/suffered. i) Recovery theories vary by jurisdictions:

Torts Long Outline 9 a. Death: recovery in more probably than not < 50%, prove that malpractice was a substantial factor. b. Chance of survival: recovers % amount of % chance of survival. 2. Proximate Cause >> a limitation of liability for policy reasons, even where was negligentyou have to draw the line somewhere (J. Friendly.) i. Direct causal link of s act and harm, (recall, remote result of the fire in Ryan.) a) Intervening cause: force that intervened between s negligence and s harm. 1) i.e. acts of God, acts of a 3rd person, act of an animal, etc. 2) Does not completely bar recovery, but intervening acts, likely to recover. i) Liability in the presence of intervening acts depends on the foreseeability of the act(s), Weirum car crash/chase. ii) Rule: no liability for intervening gross negligence. a. 3rd partys negligence > s negligence, McLaughlin fireman case. 3) Examples of non-intervening acts: preexisting conditions, force set in motion by s conduct, omissions to act. ii. Emphasis on foreseeability: a) Unforeseeable Type of Harm: foreseeable suffers an unexpected result. 1) Different viewpoints on liability: i) Polemis: liability for all direct consequences of negligence (Andrews.) ii) Wagon Mound: no liability for unforeseeable consequences (Cardozo.) 2) Regardless of jurisdiction, 2 rules have survived: i) Thin-skulled , unforeseeable extent of harm is not a defense. a. Injurers take the as they are; delicateness is a preexisting condition. ii) s can recover from for aggravation during medical treatment. b) Unforeseeable 1) Cardozo view: cannot recover b/c there was no duty of care breached. 2) Andrews view: unforeseeable should be able to recover as long as there is a direct, causal link (P/C.) i) The more commonly adopted view. iii. J. Andrews hints from Palsgraf to determine P/C. a) W/out the P/C, the event would not have happened (but for causation.) b) Natural and continuous sequence of cause and effect. c) Substantial factor. d) intervening causes. e) Effect of cause on result not too attenuated. f) Reasonable person standard would the cause likely produce the result? g) Foreseeability by prudent foresight. h) Remoteness of time and space. F. Judge and Jury 1. Cases go to juries when reasonable people could disagree about the issues resolution (Pokora complexities of fixed rules.) i. If a reasonable jury finds negligence, a reasonable judge will not overturn that decision.

Torts Long Outline 10 ii. When it is clear that a has met its duty or reasonable care, no need for jury determination (Akins.) a) But, courts should avoid making blanket rules like in Goodman b/c even modern rules can have exceptions or need to be relaxed. 1) Fact situations will vary! 2. Jury verdicts for the protection of elected judges. 3. J. Holmes view i. Judges are better at making decisions than juries. ii. Wants to avoid jury bias in favor of s sad story (Goodman.) G. Proof 1. has the burden of proof that s conduct did not meet standards. 2. Circumstantial Proof no direct evidence, the case must be established in other ways. i. Constructive Notice had timely notice and failed to remedy the injury causing situation. a) established circumstantially by the condition of the instrument causing instrument (Negri and Gordon). ii. Traditionally, courts do not find circumstantial proof to be sufficient. iii. Business Practices/Mode of Operations Rule a) Burden of proof shifts to 1) Negligence can be established thru a stores maintenance routine and merchandising method (Randall). 2) must prove they have met industry standard. b) The approach varies by courts. 3. Res Ipsa Loquitor the accident speaks for itself. i. 3 requirements: a) Accident could not occur in w/out negligence (Byrne). b) had exclusive control over the instrument that caused the accident (St. Francis Hotel). c) did not voluntarily act or contribute to the accident. ii. Common sense approach that allows for recovery w/ circumstantial evidence. iii. Res ipsa loquitor has been used in cases where a group of s may be reluctant to testify against one another (Ybarra). a) Courts hesitate to over extend this doctrine (Firemans Fund) and not all courts adopt Ybarra. H. Medical Malpractice 1. Doctors are held to the standard of ordinary care of all doctors knowledge. i. Deviation from the standard = negligence, malpractice. ii. Medical standards are usually established through expert witness testimony. a) The expert witness can be from anywhere in the nation, as long as they are knowledgeable and skilled in the field (Sheeley.) 1) Courts no longer go by the same locality rule (conspiracy of silence.) b) Common Knowledge Exception: when the error is obvious (sponges left inside a surgery patient.) 2. A s lack of informed consent of the full benefits and risks can be negligence by the doctor battery.

Torts Long Outline 11 i. must prove that w/ all relevant info he would not consent to procedure. I. Defenses >> was negligent, but so was . 1. Contributory Negligence s conduct was unreasonable and contributed to harm. i. If has any % of fault, no recovery ii. Beginning 1960s, most jurisdictions have dropped this doctrine. 2. Comparative Negligence recovery award in proportion to s % share of negligence s contributory negligence no longer bars recovery. i. 3 principle types: a) Pure comparative fault: s share of negligence deducted (CA in Li.) b) Modified (types 2 and 3): no recovery if s negligence exceeds s (unfair to obtain recovery where is more at fault than .) 1) Not as great: can recover up to 49% fault. 2) No greater than: can recover up to 50% fault. 3. Assumption of risk: (1) knowingly and (2) voluntarily accepts a risk. i. Express Agreement a) i.e. liability release waivers, release for hospitals, agreement not to sue (Dalury), etc. b) Enforceability: not enforced where the agreement is not freely bargained for, or if the had no other reasonable alternative, or for policy reasons. 1) Not all jurisdictions follow this. ii. Implied assumption: accepts by conduct. a) Primary Assumption of Risk: owes no duty of care (Knight.) 1) has failed to state a COA b/c never owed a duty. 2) The CA court in Knight essentially wiped out secondary assumption b/c it is subsumed by comparative negligence. i) Now ask: a. Did breach a duty of care? b) Secondary Assumption of Risk: knowingly took an unreasonable risk (the Flopper in Murphy.) 1) CA in Li abolishes this category b/c = comparative fault. c) took a reasonable risk: i.e. saving a life. iii. Note on sporting activities: courts are reluctant to impose liability b/c they do not want to chill the nature of vigorous sporting activity. 1) No liability: watching baseball game, co-participants in sports, coaches, manufacturers of sporting equipment. i) Expanded to cooperative not just competitive sports, like waterskiing. 2) Liability: sporting facility owner a) The only duty in active sports: not to intentionally injure and not to engage in reckless conduct totally outside the bounds of the sport. b) Future: limitation on liability could expand until ??? IV. Strict Liability >> recovery allowed simply b/c dangerous nature of activity w/out fault by this area of law developed largely on the concept of loss distribution. A. Ultrahazardous/Abnormally Dangerous Activity. 1. Historical Development i. Began in England w/ Rylands v. Fletcher.

Torts Long Outline 12 a) Initially rejected in the U.S., amid the RR-industry era. ii. 1st Restatement of Torts, SL for ultrahazardous activities. a) SL if (a) involves a risk of serious harm that cannot be eliminated by the exercise of utmost care and (b) is not a matter of common usage. iii. 2d Restatement of Torts, SL for abnormally dangerous activities. a) 6 part test: (a) a high degree of risk with (b) high gravity of harm (c) the risk cannot be eliminated w/ reasonable care (d) not a matter of common usage (e) the activity is inappropriate to the place carried on and (f) value to community. 1) Note, prongs 5 and 6 allow for some s to escape liability. 2. i.e. water storage, oil wells, storage of explosives, water lines bursting, blasting, fumigation, etc. 3. Res ipsa loquitor can be used in SL, Siegler (gasoline inferno on highway.) 4. Bottom line: a very narrow doctrine that varies by state where liability is imposed in categories of hazardous activities. i. Many times SL is applied b/c the large commercial enterprise is in a better position to spread the losses (tort policy.) B. Warranty >> developed from K law in Ryan (needle-in-loaf-of-bread.) 1. J. Traynor: should recognize breach of warranty K cases as a tort. i. Expanded liability from food cases to SL for defective products ~1940s. 2. Privity: warranty only extends to the purchaser. i. Generally, no longer followed after the Cardozo opinion in MacPherson v. Buick. C. Products Liability >> liability for damages to person or property by using a defective product. 1. Historical Development i. Timeline: a) (1960) Henningsen SL applied to defective product under K warranty law. b) (1963) Greenman/Traynor SL applies for products manufacturer puts on market, liability release notification requirement not enforced. c) (1964) Vandermark/Traynor car retailers held to SL. d) (1969) Elmore bystanders can recover. ii. The real expansion of PL began in CA 1960s and will continue to be argued in litigation for years. iii. Policy: a) Manufacturers are business enterprises and can spread the loss. b) Creation of incentive for safer products. 1) BUT note, for some s in PL and abnormally dangerous activities, it is worth the cost of liability rather than protecting from harms. 2. Defective Products i. Beginning w/ Traynors opinion in Escola, no more res ipsa loquitor stretching try these cases as products liability, duty is owed by virtue of s activity. a) No need for jury determination. ii. 3 types: a) Manufacturing Defects >> product leaves assembly line different from others. 1) All needs to prove is that the product departed from intended design. i) Can use res ipsa loquitor.

Torts Long Outline 13 2) Negligence approach: prove the product was defective and the defect was caused by negligence. b) Defective Design >> product poses an unreasonable risk to consumers. 1) SL applies if the defect is unreasonably dangerous. i) All has to do is show that DD caused injury burden of proof then is on to show that the design did not present excessive danger. 2) Approaches: i) Feasible Alternatives Test >> could remove the danger w/out adverse impact to the products utility/price. ii) Consumer Expectations Test >> product did not perform as an ordinary consumer would expect in an intended/foreseeable manner. a. Very subjectivea nebulous idea, after Soule, the applicability of this test shrinks. iii) Risk-Benefit Analysis >> Learned Hand/negligence-style analysis. a. Courts examine excessive risks. iv) Barker Two-Prong Test: a. With hindsight the jury determines the product contained excessive preventable danger. b. Shifting the burden of proof. v) Most jurisdictions use a combined approach. 3) If is aware of the products defect negligence. 4) Look at the condition of the product, not the conduct of the manufacturer. c) Inadequate Warning 3. Liability is extended to: i. Food cases ii. Manufacturers iii. Retailers iv. Suppliers v. Bystanders: all people w/in foreseeable scope of use deserve more protection b/c they are not the one who opted to use the product. vi. Hybrid sales/service, (Newmark perm solution.) a) puts trust in to use products that are reliable and trusts not to be injured. b) BUT no liability for exclusively service. vii. Leasors viii.Franchisors 4. For services negligence analysis. 5. Defenses: assumption of risk, unreasonable misuse of products. D. **Causation must be established. E. **Note, SL does not replace negligence imposed in addition to negligence. V. Vicarious Liability >> liability for injury caused by the conduct of another party. A. Respondeat superior, let the superior answer. B. Employers can be liable for the conduct of their employees (Seffert bus driver.) VI. Damages >> one time shot for compensation! A. Compensatory Damages [pecuniary] help make the plaintiff whole

Torts Long Outline 14 1. Tangible out of pocket losses current and future earnings, medical expenses, etc. 2. Recovery applies to intentional torts and negligence cases 3. Damages are adjusted for future value ( to prudently invest.) B. Punitive Damages [pain and suffering\P&S] 1. Intangible losses physical and emotional P&S, humiliation, etc. 2. Recovery applies generally only to intentional torts (optimal deterrence) but was allowed in Seffert (J. Peters and J. Traynor.) 3. P&S awards are decided by juries. i. Appellate courts cannot adjust the award unless it is so large that it shocks the conscienceresult of prejudice. 4. Mathematically difficult to compute not adjusted for future value. 5. In CA there is a $250k cap on P&S damages and a nationwide movement under Bush for a similar cap. 6. After award is granted, motion to or by additur or remittitur. VII. A. Notes on Judges Oliver Wendell Holmes, Jr. >> U.S. Supreme Court. 1. Author of The Common Law. 2. Did not believe in loss sharing, ~the cost of faul 3. Historical context of the law, the life of the law is not logic, it is history. 4. Did not want to give negligence cases to juries b/c of sympathy-bias. Judge Cardozo >> NY Court of Appeals and U.S. Supreme Court. 1. Eliminated privity requirement in PL/warranty cases. Judge Traynor >> CA Supreme Court. 1. **Loss distribution in a mechanized society! 2. Disagrees w/ pain and suffering damages in negligence cases. 3. Manufacturer incures absolute liability for products he places on the market. Judge Tobriner >> CA Supreme Court 1. In products liability cases, moving away from negligence but not all the way to absolute liability. 2. Tarasoff expanding the duty requirements to psychologists. 3. Led the body of CA cases where express agreements not to sue were not enforced for policy reasons, (Dalury, ski resort.)

B. C.

D.