Torts Wyman Spring 2008

TORTS OUTLINE
I. TORT LAW
1) TORT: To commit a tort is to act in a manner that is wrongful and injurious toward another. Tort law
articulates the legal responsibilities or duties that persons owe one another, and provides victims
of conduct breaching those duties with redress.
a) 3 kinds of torts:
i) Intentional Torts: Intentional invasion of person or propert. !ault " intent.
ii) Nonintentional Torts:
#1) Negligence: !ault.
#$) Strict Liability: %o fault.
2) FRAMEWOR
a) !ri"a #acie case: $as a %ri"a #acie case been "a&e #or t'e tort(
i) )ATTER*
#1) &'%T(&T: )olitional act
#$) I%T*%TI'%: Intending to cause harmful or offensive contact
#3) &'%+*%T: &ontact was non,consensual.
#-) &(.+(TI'%: The act actuall and pro/imatel causes the contact
ii) ASSAULT
#1) (&T
#$) I%T*%TI'%: Intending to cause another the apprehension of imminent harmful or
offensive contact
#3) &(.+(TI'%: The act reasonabl causes this apprehension in another
iii) NE+LI+EN,E
#1) I%0.12
#$) 3.T2
#3) 41*(&5
#-) &(.+(TI'%
i-) STRI,T LIA)ILIT*
-) !RO.U,TS LIA)ILIT*
#1) 6 must suffer an injur.
#$) 3 must be selling a product. #%'T sale of services)
#3) 3 must be a commercial seller.
#-) 7hen 3 sold the product, the product must have been defective.
#8) The defect must have been the actual and pro/imate cause of 69s injur.
b) /I# negligence) .e#enses: W'at &e#enses 0 12sti#ications can . raise(
i) &':6(1(TI)* 1*+6'%+I4I;IT2
ii) (++.:6TI'% '! 1I+<
c) .a"ages: W'at &a"ages are a%%licable(
i) %':I%(;
ii) &':6*%+(T'12
iii) 6.%ITI)*
1
II. INTENTIONAL TORTS
1) )ATTER*: Intentional in#liction o# 'ar"#2l bo&ily contact 2%on anot'er.
*lements of 4atter #6rima facie case)
1. )olitional act
2. I%T*%TI'%: Intending to cause
3. 5armful or offensive contact
4. &'%+*%T: &ontact was non,
consensual.
5. &(.+(TI'%: The act actuall and
pro/imatel causes the contact
a) 5armful or offensive contact
i) RS/2) 34. )attery: $ar"#2l ,ontact. (n actor is subject to liabilit to another for batter
if
#1) he acts intending to cause a harmful or offensive contact with the person of the other
or a third person, or an imminent apprehension of such a contact, and
#$) a harmful contact with the person of the other directl or indirectl results.
ii) RS/2) 35. )attery: O##ensi-e ,ontact. (n actor is subject to liabilit to another for batter
if
#1) he acts intending to cause a harmful or offensive contact with the person of the other
or a third person, or an imminent apprehension of such a contact, and
#$) an offensive contact with the person of the other directl or indirectl results.
#3) (n act which is not done with the intention stated in +ubsection #1, a) does not make
the actor liable to the other for a mere offensive contact with the other=s person
although the act involves an unreasonable risk of inflicting it and, therefore, would be
negligent or reckless if the risk threatened bodil harm.
iii) RS/2) 36. W'at ,onstit2tes O##ensi-e ,ontact.
#1) ( bodil contact is offensive if it offends a reasonable sense of personal dignit.
i-) Stan&ar& #or 7o##ensi-e898'ar"#2l8 contact : Reasonable %erson
#1) (ctors are assumed to know the prevailing standards and ma be liable even if the
meant no offense. 3oes not matter if 6 was offended, but whether a reasonable
person #not overl sensitive) would be offended b 39s conduct
#$) */ception: If 3 has reason to know of 69s particular sensitivit, he ma be liable even
if the touching would not normall be offensive.
v) ,ontact &e#ine&: Tobacco smoke, a bullet or a rock are e/tensions of the person blowing
smoke, pulling the trigger or holding the rock.
#1) Leichtman v. WLW Jacor Communications, Inc.: (n anti,smoking advocate brought
suit for batter against a radio talk,show host when the host intentionall blew cigar
smoke into his face. 5';3I%>: &ontact which is offensive to a reasonable sense of
personal dignit is offensive contact. The smoke particles were an e/tension of
!urman, and were therefore capable of being used to commit a batter.
#$) Madden v. D.C. Transit System, Inc.: 7hile standing in traffic, 6 alleged that he was
assaulted b fumes and offensive oil substances which 3 allowed to spew from $ of
its buses. 5';3I%>: &ourt held that assault claim was successful with regards to
offensive contact but deficient re: the re?uisite intent for batter. The fact that the bus
compan knew that the bproducts complained of were regularl discharged from the
2
buses does not satisf the re?uisite intentionalit because the bus compan did not
have substantial certaint that harm would occur to particular@identifiable person.
b) Intent
i) W'en a %erson 'as ;no<le&ge to a s2bstantial certainty t'at 'ar"#2l or o##ensi-e
contact <ill res2lt #ro" a certain action= a battery occ2rs i# t'at action is ta;en= e-en
i# t'ere is no intent to ca2se 'ar" to anot'er. AIf the actor knows that the
conse?uences are substantiall certain to result from his act, and still goes ahead, he is
treated b the law as if he had in fact desired to produce the result.B #&ontrast to
negligenceC)
#1) Vosburg v. Putney +choolbo kicks friend in shin in classroom. 3ue to prior injur, 6
left w@ even more serious injur. 3 found liable. The wrongdoer is liable for all injuries
resulting directl from the wrongful act, whether the could or could not have been
foreseen b him. #*ggshell skull rule.) &ourt also notes that kicking would have been
acceptable in the plaground, but in the present case, order had been called b the
teacher. .nder those circumstances, no implied license to do the act complained of
e/isted, and such act was a violation of the order and decorum of the school, and
necessaril unlawful.
#$) !arratt v. Dai"ey: ( woman brought suit against her 8 ear,old nephew, 4rian 3aile,
when she was injured in a fall that resulted from his pulling a chair out from beneath
her. The +upreme &ourt ultimatel held that 4rian was Asubstantiall certainB that his
aunt would fall as a result of his moving the chair, and therefore imposed liabilit.
#3) White v. #niversity o$ Idaho: 6iano professor touched 7hite9s back and
unintentionall caused her harmful injuries. 5';3I%>: &ourt held that 3 committed
batter despite lack of intent to bruise 6. The intent element of the tort of batter does
not re?uire a desire or purpose to bring about a specific result or injurD it is satisfied if
the actor9s affirmative act causes an intended contact which is not permitted and
harmful or offensive.
#-) %ee" v. &ain"ine: 3 threw an eraser at a fellow student and unintentionall hit her in
the ee, causing her to become partiall blind in that ee. 5';3I%>: The fact that an
act was done with a good intention, or without an unlawful intention, cannot change
that which, b reason of its unlawfulness, is essentiall an assault and batter into a
lawful act, thereb releasing the aggressor from liabilit.
ii) Trans#erre& intent
#1) */: ( intends to punch 4, but instead punches &  still liable.
#$) */: If ou intend to commit frighten ( b shooting near her #assault) but accidentall
shoot & standing nearb  have committed batter on &
iii) %ot necessar that 6 knows of contact at the time: if 3 kisses 6 while asleep, but does not
wake or harm her, 3 can still be held liable.
i-) An act or o"ission &one or neglecte& 2n&er t'e in#l2ence o# %ressing &anger is
consi&ere& in-ol2ntary.
#1) Laid"a' v. Sage: 6 claimed that 39s action of shifting their positions relative to each
other before a criminal e/plosion constituted batter, despite the fact that 3s action did
not contribute to an part of the injur which 6 suffered b reason of the e/plosion.
5';3I%>: 3 did not voluntaril interfere with the person of the plaintiff.
c) ,a2sation
i) (ct does not need to be the single cause of a harm, merel a but,for cause of the harm.
&) ,onsent: A battery consists o# a to2c'ing o# a s2bstantially &i##erent nat2re an&
c'aracter t'an t'at <'ic' t'e %atient consente&.
i) !rabo's(i v. )uig"ey: 6 injured his lower back, sought treatment from 3 #doctor), was
operated on but continued to have back pain and developed a AdragB foot as a result of the
surger. 6 later discovered that a different doctor had conducted a significant portion of
his surger and charged 3 with batter, for his never consented to the surger performed
b another doctor. 5';3I%>: In favor of 6. The consent of the patient is a prere?uisite to
3
a surgical operation b his doctor and an operation without the patient9s consent is a
technical assault. 6 alleged sufficient facts to establish a cause of action for batter
against 3.
ii) *r+os(a v. ,"son: 6s, a group of former patients of 3, sued estate of 3 under theories of
negligence, batter and misrepresentation after the found out that their dentist died from
(I3+. +ince patients had undergone teeth e/tractions when their gums bled, etc. the
doctor9s touching was deemed AoffensiveB and AunconsentedB, which later caused them a
fear of having contracted 5I). Euestion: 3id the performance of dental procedures b an
5I),infected dentist, standing alone, constitute offensive bodil contact for purposes of
batter, i.e. did such touching offend a reasonable sense of personal dignitF 5';3I%>:
%o. 6 suffered no injuries as a result of 39s touching. 6 alleged no injuries stemming from
their e/posure to 5I), but instead, allege AinjuriesB arising solel out of their fear that the
were e/posed to I). (s a matter of law, the incidental touching of a patient b an 5I),
infected dentist while performing ordinar, consented to dental procedures is insufficient to
sustain a batter claim in the absence of a channel for 5I) infection. +uch contact is
offensive '%;2 if it results in actual e/posure to the 5I) virus.
iii) Werth v. Tay"or: 6 sued doctor on theor of batter for authoriGing a blood transfusion to
save her life despite her previous refusal on account of her religion #she was a 0ehovah
7itness). 6 argued that the potentiall life,threatening situation did not alter 69s
conscious, deliberate, and une?uivocal refusal and therefore 39s decision to perform the
transfusion with knowledge of refusal resulted in a batter. 5';3I%>: %o batter. 69s
prior refusals had not been made when her life was hanging in the balance or when it
appeared that death might be a possibilit if a transfusion were not given. &learl, her
refusals were, therefore, not contemporaneous or informed. I! .%&'%+&I'.+,
&'%+*%T I+ I:6;I*3CCC
4) ASSAULT
*lements of (ssault
1. (&T
2. I%T*%TI'%: Intending to cause another the
apprehension of imminent harmful or offensive
contact
3. &(.+(TI'%: The act reasonabl causes this
apprehension in another
a) (ssault: 6rotects 69s interest freedom from apprehension of contact
i) RS/2) 23. Assa2lt. (n actor is subject to liabilit to another for assault if:
#1) he acts intending to cause a harmful or offensive contact with the person of the
other or a third person, or an imminent apprehension of such a contact, and
#$) the other is thereb put in such imminent apprehension.
ii) (n action which is not done with the intention stated in +ubsection #1, a) does not
make the actor liable to the other for an apprehension caused thereb although the
act involves an unreasonable risk of causing it and, therefore, would be negligent or
reckless if the risk threatened bodil harm.
iii) RS/2) 2>. W'at ,onstit2tes A%%re'ension
#1) In order that the other ma be put in the apprehension necessar to make the
actor liable for an assault, the other must believe that the act ma result in
imminent contact unless prevented from so resulting b the other=s self,defensive
action or b his flight or b the intervention of some outside force.
4
i-) O-er-ie<
/3) Assa2lt consists o# an act inten&e& to ca2se eit'er 'ar"#2l or o##ensi-e
contact <it' anot'er %erson or a%%re'ension o# s2c' contact= an& t'at
creates in t'at ot'er %erson?s "in& a reasonable a%%re'ension o# an
i""inent battery.
-) Intent
#1) 6 has the necessar intent if he intends to frighten the plaintiffD 6 does not need to
be capable of carring out the threat or intend an to cause 6 an harm.
#(:4IT.I2)
#a) Lang$ord v. Shu 3 aided and abetted her two oung sons in plaing a
practical joke against neighbor b releasing an A(frican :ongooseB #fo/ tail)
near the neighbor as she attempted to leave 39s home. 5';3I%>: 3 guilt of
assault. If an act is done with the intention of bringing about an apprehension
of harmful or offensive conduct on the part of another person, it is immaterial
that the actor is not inspired b an personal hostilit or the desire to injure the
other. %' 5'+TI;IT2 T'7(13+ 6 I+ 1*E.I1*3.
-i) Stan&ar& #or a%%re'ension : reasonable %erson
#1) %o$$man v. !arnett <offman, in his first ear of organiGed football, was placed
on the defensive team under the defensive coach, >arnett. To demonstrate the
proper tackling techni?ue, >arnett, without warning, thrust himself into <offman,
picking him up and throwing him to the ground, thereb breaking <offman9s arm.
<offman sued >arnett for assault. 5';3I%>: %o assault because an inference
of apprehension is negated b the fact that <offman had no prior warning of
>arnet9s actions. (n apprehension that occurred before <offman hit the ground
occurred after >arnett9s batter and does not amount to assault.
/2) E@ce%tion
#a) If 6 is particularl sensitive, but a reasonable person would have no
apprehension of imminent contact, %' assault. 'f course, if 3 has reason to
know of 69s particular sensitivit, he ma be liable even if action would not
normall be frightening.
-ii) I""inence
#1) Threat of future harm does not constitute assault #ma constitute II*3).
#$) To differentiate, courts usuall re?uire the threat of harm to be w@in a short period
for assault.
#3) 3 must appear to 6 to have the present abilit to commit the threatened act.
#a) *roo(er v. Si"verthorne: 3 threatened 6, a telephone operator, over the
phone for being unable to connect him. 3 not liable: &ourt finds that words do
not amount to assault, and there was no threat that caused 6 to believe that
bodil harm was imminent #3 was not there, and the words were said in the
heat of passion.)
-iii) Wor&s Alone r2le
#1) >enerall, words alone are not enough to constitute assault. The must be
accompanied b some overt act, however small, to add to the threatening
character of the words. +ome cases H +econd 1estatement suggest that words
H surrounding conte/t can constitute assault when the place reasonable
apprehension in 6 of imminent harm @ offensive contact. */: If (, a known
gangster, threatens 4 over the phoneD 4 comes around the corner H sees (, who
does nothing but sas, Aour time has comeB, ( has committed assault.
>) INTENTIONAL INFLI,TION OF EMOTIONAL .ISTRESS
*lements of II*3
5
1) */treme H outrageous conduct
2) 7hich is intended to cause, knew w@ substantial
certaint would cause, or is highl probable to
cause, and does cause #intentionall or
recklessl)
3) +evere emotional distress in another
a) RS/2) >A. O2trageo2s ,on&2ct ,a2sing Se-ere E"otional .istress
i) 'ne who b e/treme and outrageous conduct intentionall or recklessl causes
severe emotional distress to another is subject to liabilit for such emotional distress,
and if bodil harm to the other results from it, for such bodil harm.
ii) 7here such conduct is directed at a third person, the actor is subject to liabilit if he
intentionall or recklessl causes severe emotional distress
#1) to a member of such person=s immediate famil who is present at the time,
whether or not such distress results in bodil harm, or
#$) to an other person who is present at the time, if such distress results in bodil
harm.
b) O-er-ie<
i) Tort of II*3 is claimed often but rarel successful.
ii) II*3 v. assault: II*3 can cover threats that resemble assault for the indefinite future.
iii) ,ON.U,T: Stan&ar& o# o2trageo2sness
#1) The concept of e/treme and outrageous conduct defies general description, but
as a rough rule, it is probabl the case that judges are strongl disinclined to
deem conduct sufficientl abominable to meet the standard.
#$) &ourt considers particular characteristics of 6 and the relationship between 3 H6
to determine outrageous conduct.
#a) !reer v. Medders: 69s doctor departed on vacation, and 3, another doctor,
attended to him. 3 failed to visit 6 for several das and 6 and 69s wife
complained. 3 allegedl screamed and insulted 6 and wife in the hospital and
caused 6 to e/perience episodes of uncontrollable shaking, for which he
re?uired pschiatric treatment. 5';3I%>: 3 ma be responsible of II*3. !or
conduct which is of an outrageous or egregious nature or so terrifing or
insulting as to humiliate, embarrass or frighten the plaintiff, >eorgia
recogniGes the tort of intentional infliction of emotional distress. >iven the fact
that the alleged statements at issue in this case were made b a phsician to
a post,operative patient and his wife as the patient la in a hospital bed, we
cannot sa as a matter of law that the statements were insufficientl abusive
to support a recover for the tort of II*3.
i-) INTENT: $ig' bar
#1) */treme@outrageous conduct and emotional distress are core of II*3 tort.
5owever, 6 must also establish that 3 acted for the purpose of causing 6
emotional distress, or with knowledge that such distress was substantiall certain
to result. #II*3 differs from batter and assault in that liabilit also attaches for
reckless infliction of severe emotional distress through outrageous conduct.)
#a) Doe - v. .oman Catho"ic Diocese o$ /ashvi""e: */,priest molests 031 H
03$D both 03s and their mother #6s) claim II*3 from the &hurch. &ourt finds
that the 3oes failed to show the 3iocese had directed their conduct at 6s w@
the intent to cause severe emotional distress. 3iocese9s actions were reall
an omissionD historicall there has been a reluctance to impose liabilit for
omission. '% (66*(;, &(+* 7(+ 1*)*1+*3. 3 3'*+%9T 5()* T'
I%T*%3 T' &(.+* *:'TI'%(; 3I+T1*++ I% (%2 +6*&I!I& 6*1+'%,
6
0.+T 5()* ( 1*&<;*++ 3I+1*>(13 T5(T 3I+T1*++ &'.;3 '&&.1
I %' %**3 !'1 ( +6*&I!I& )I&TI:. 3I+1*>(13 ( +.4+T(%TI(; 1I+<.
-) EMOTIONAL .ISTRESS
#1) In addition to presenting evidence sufficient to establish intent@recklessness and
e/treme and outrageous conduct, an II*3 6 must also prove that the conduct
caused her severe emotional distress.
#a) .oberts v. Say"or: 6 was operated on successfull b 3D no bodil harm
resulted from conduct of 3. 3 allegedl said he Adidn9t likeB 6 for having
unsuccessfull sued a fellow doctor and himself. +he brought an action for
II*3. 5';3I%>: !or 3. ;iabilit for II*3 is onl found in those cases where
the conduct has been so outrageous in character, and so e/treme in degree,
as to go beond the bounds of decenc, and to be regarded as atrocious and
utterl intolerable in a civiliGed societ. It should be understood that liabilit
does not arise from mere insults, indignities, threats, annoances, pett
e/pressions or other trivialities. The law should not intervene when
someone9s feelings merel are hurt. (lso, 69s emotional distress must be
sufficientl severe, genuine and e/treme that no reasonable person should be
e/pected to endure it. The emotional distress must in fact e/ist, and it must be
severe. 5ere, there was no doctor,patient relationship e/isting between 6
and 3 at the time, and 6 did not need pschiatric or further medical treatment
after the incident.
#b) Litt"e$ie"d v. Mc!u$$ey: 6 sued for II*3 after landlord refused to rent to her
#because her bofriend was a different race), and continued to harass her.
5';3I%>: &ourt found II*3 I death threats are heinous and support a
finding of II*3. The one at issue was all the more so because it emploed the
most venomous and loathsome of racist epithets. +aid there was no
re?uirement of showing medicall significant, phsical manifestation of severe
emotional distress. %' 652+I&(; :(%I!*+T(TI'% '! *:'TI'%(;
3I+T1*++ %*&*++(12.
B) TRES!ASS
*lements of Trespass #6rima facie case)
1. I%T*%TI'%: 3id actor set out to make
&'%T(&T with the propertF
$. 3id actor in fact make such contactF
a) T1*+6(++: Tangible invasion b an actor of propert possessed b another, whether b
the actor herself, or b other persons, animals, mechaniGed devices, or natural or artificial
substances for which the actor is responsible.
i) Intent
#1) 39s interference must have been intentionall undertaken, but while the act itself
must have been intentional, there need not be an intention to do harm to the 6,
or to invade propert that the actor knows to be owned or possessed b someone
else, just as there need not be an unreasonable conduct. It is enough that a) 3
intentionall AinvadesB a swath of land #b walking on it, driving across it, throwing
things onto it, digging it up, flooding it, building on it, etc.), and 6 owns or possess
the swath in ?uestion.
ii) Nat2re o# ,ontact
#1) )er minimal interferences continue to be treated as actionable in trespass law.
(ccording to 1estatement +econd, a trespass ma be committed on, beneath or
above the surface of the earth.
7
#$) $ar": %o re?uirement that the invasion cause harm to the propert or loss of
economic value. #&ontrast to negligenceC)
#a) Jac0ue v. Steenberg &omes, Inc.: &ourt upheld an award that combined
nominal and compensator damages with J1KK,KKK in punitive damages
where 3, in the face of the 6s e/press refusal to consent, crossed 69s land
with heav e?uipment. ;and was covered in snow, so no adverse effects from
the trespass.
b) !ri-ileges: !ri-ate Necessity
i) !ri-ate necessity s2%%lies an inco"%lete %ri-ilege to co""it tres%ass. The
AprivilegeB refers to the fact that the 3 is held to be entitled to override the propert
owner9s right to e/clude I the owner lacks the authorit he would otherwise possess
to eject a trespasser. The privilege in AincompleteB because the 3 is still liable for
compensator damages that result from his e/ercise of the privilege.
ii) !ri-ate -s. !2blic necessity: The incomplete privilege of private necessit is to be
contrasted with the complete privilege of public necessit, whereb a private citiGen, is
entitled to use or destro another9s propert in order to avert a greater harm to the
public without suffering an sanction. 5owever, the destruction or harming of private
propert in the name of the public will tpicall be effected b government officials.
iii) .octrine o# necessity is a%%licable accor&ing to circ2"stance an& e-i&ence
%resente&.
#1) P"oo$ v. Putnam !amil moored boat to dock without owner9s permission in
order to save themselves and their boat from destruction or injur. 'wner9s
servant unmoored the boat, whereupon it was driven upon the shore b the
tempest and destroed, and the famil was injured. 5';3I%>: %o trespass.
*ntr upon the land of another ma be justified b necessit. The doctrine of
necessit applies with special force to the preservation of human life. It doesn9t
matter that there ma have been other natural objects to which the boat could
have been moored with e?ual safet.
#$) Vincent v. La(e 1rie: 39s ship was not unmoored from 69s dock after discharging
cargo due to bad weather conditions, and as a result, caused damage to dock.
5';3I%>: 3 was justified in not unmooring ship but is still liable for damage to
dock. 5aving preserved the ship at the e/pense of the dock, her owners are
responsible to the dock owners to the e/tent of the injur inflicted. %ecessit ma
re?uire the taking of private propert for public purposes, but compensation must
be made.
III. NE+LI+EN,E
Negligence !ri"a Facie ,ase
1) 6 has suffered an injur
$) 6 can establish that she was owed a dut of care
3) 6 can show that 3 breached that dut of care
-) &ausation: 39s actions caused 69s injur
a) &ause in fact and
b) 6ro/imate cause
3) INCUR*
a) 6 must show an adverse effect in order to recover:
i) 6hsical harm: bodil harms or harms to tangible propert
8
KEY:
Economic
approach to
duty blurs
distinction
between duty
& standard of
care—goes to
who is best
loss avoider
ii) *conomic harm:
iii) *motional distress:
2) .UT*
a) RS/4) D. .2ty
i) (n actor ordinaril has a dut to e/ercise reasonable care when the actor=s conduct
creates a risk of phsical harm.
ii) In e/ceptional cases, when an articulated co2nter-ailing %rinci%le or %olicy
warrants dening or limiting liabilit in a particular class of cases, a court ma decide
that the defendant has no dut or that the ordinar dut of reasonable care re?uires
modification.
b) O-er-ie<
i) E2estion #or CU.+E: W'o can s2e(
/a) .O,TRINAL TEST #or &2ty: *o2 "2st be a #oreseeable -icti" to be o<e& a
&2ty. #3id 3 know or should he have known that conduct posed a risk of harm to
6F !oreseeabilit often depends on how creative one is willing to be, so judges
determine foreseeabilit depending on polic.)
(i) !OLI,*: 3ut is not sacrosanct in itself, but onl an e/pression of the sum
total of those considerations of polic that lead the law to sa that the
particular plaintiff is entitled to protection. On balance= <o2l& it be goo& #or
society to i"%ose liability on t'e .( 3ut is not self,defining: courts must
articulate reasons to support their dut rulings on basis of aggregate social
welfare.
(ii) 3ut has been e/panded over the ears such that toda, there is a general
dut in the absence of a countervailing polic.
(iii) &ourts dealing with negligence cases tend to approach the dut element
differentl depending on the tpe of negligence claim before them. 'utside of
cases where 39s negligent actions caused another to suffer phsical harm,
courts often refuse to impose an un?ualified dut of reasonable care.
c) !re"ises Liability
i) >enerall, possessor owes the trespasser %' dut of careD the possessor owes the
licensee the dut to make safe dangers of which the possessor is awareD and the
possessor owes invitees the dut to e/ercise reasonable care to protect them against
4'T5 known dangers and those that would be revealed b inspection.
/3) E-ol2tion o# &octrine: 3issatisfaction with the licensee,invitee distinction has
caused roughl half the states to abolish it, so as to create a dut of reasonable
care to all those who enter propert b permission, while retaining the traditional
common law rules for trespassers.
ii) Three common law categories that courts invoke to determine whether a dut is owed:
/3) Invitee: e/pressl invited w@ possessor9s consent, must be on the land for a
materiall beneficial purpose for the possessor #customer in the store).
/a) +tandard of care owed: dut of reasonable care L must inspect premises
/b) 4 M 6 / ;: economicall efficient to impose dut
/2) ;icensee: one who has e/press or implied permission to enter propert. #*/:
guest who visits residence of another to attend a social function) 4asicall
licensee takes propert as it is #no dut of reasonable care), but possessor has
dut to warn licensee of an hidden dangers@traps that he knows about@should
know about, and that it9s not reasonable for that guest to figure out.
/a) 1isks that possessors know about: 4 M 6 / ;: therefore dut imposed
9
/b) 1isks that possessors do not know about: 4 N 6 / ;: no dut
/4) Trespasser: possessor does not give consentD no right or privilege. In general,
possessor does not owe a dut of care other than not to intentionall injure
trespasser.
/a) 4 N 6 / ;: not economicall efficient to impose dut for trespassers
/b) */ception: The general rule of no dut of care applies onl to adult
trespassers. 4 contrast, possessors of propert must take reasonable care to
avoid causing injuries to child trespassers who are not old enough to
appreciate a danger presented b the propert. 6ossessor has a dut not to
create an Aattractive nuisanceB that child, who ma not be able to perceive
dangers appropriatel, ma be attracted to.
iii) Liability to nonFentrants: 7hat about injuries caused b conditions on land to
persons not on the landF >eneral rule is that 3 is not liable to take care to protect
against harms caused b AnaturalB conditions, such as trees on the land. #.nless
there is relative fre?uent traffic, land is heavil wooded, acreage is small I 3 obligated
to take care to ensure that trees on propert do not injure travelers on public
roads.)The no,dut rule does not appl when the danger is posed b Aartificial
conditionsB #man,made structures) created b or known to possessor, as well as to
activities undertaken on the propert, such as the burning of leaves.
/3) Sa"aman v. City o$ Waterbury *state administrator sued cit for wrongful death
of decedent, who drowned in a cit reservoir where swimming was not permitted,
there were no lifeguards or lifesaving e?uipment. 5';3I%>: 3ut of cit depends
on whether 6 was a trespasser or licensee. &it9s dut to trespassers was to
refrain from causing them injur intentionall or b willful and reckless conduct.
&it did not intentionall injure 6, so onl wa to find dut is if 6 was a licensee. If
6 were a licensee #present on cit9s land with its permission or e/press or implied
invitation), cit was under dut to keep propert in a reasonabl safe condition and
provide warning as to hidden haGards upon the propert. .ltimatel, court held
for 3 I &it did not activel subject 6 to danger and was not under obligation to
warn about inherent dangers of swimming. *ven if 6 had been a licensee, a rule
re?uiring a propert owner to post warning signs about the dangers inherent in
swimming is unreasonable. There were no drop,offs, no currents, no underwater
debris, no waves, etc. in the reservoir.
/2) ,ettinger v. Ste'art 'ettinger, O1 rs, entered +tewart9s office to in?uire about
apartment availabilities. (fter business had ended and 'ettinger was leaving,
+tewart fell on and injured 'ettinger. 5';3I%>: 7hether 6 was a business
visitor #invitee) or licensee, 69s presence on the premises was known to 3 at time
of accident and accident resulted from action on part of 3, not defect condition of
premises. In that case, the standard of care is reasonable care.
/4) Carter v. %inney 6 slipped on ice at entrance of 39s home where 6 was to attend
a 4ible stud group. 5';3I%>: 6 was a licensee, so 3 had no dut to protect
him from unknown dangerous conditions.
i-) Inno-ation: +eneral &2ty o# care /,ali#ornia)
/3) 1owland v. &hristian: 1owland stopped b an apartment being rented b
&hristian. 5e asked to use the bathroom, and suffered a deep laceration when he
grabbed a faucet handle that contained a concealed, jagged crack. &hristian
knew about the crack. 5';3I%>: 1ather than bring &alifornia law in line with
that of most other states b imposing a dut to protect licensees against known
but hidden dangers, &alifornia court abolished common law categories. &reated
an un?ualified dut rule that would allow all premises liabilit cases to go to jur
on ?uestion of whether possessor failed to e/ercise reasonable care toward well,
being of anone injured b dangerous conditions on propert.
/a) A( man9s life or limb does not become less worth of protection b the law nor
a loss less worth of compensation under the law because he has come upon
10
the land of another without permission or with permission but without a
business purpose. 1easonable people do not ordinaril var their conduct
depending on such matters, and to focus upon the status of the injured part
to determine the ?uestion whether the landowner has a dut of care, is
contrar to our modern social more and humanitarian values.B
/b) NOTE: +ubse?uent to 1owland, the &alifornia legislature enacted statutes
that li"ite& t'e &ecision in 2 i"%ortant res%ects. !irst, it immuniGed
possessors from liabilit to trespassers injured on the premises in the course
of committing certain felonies. +econd, it created specific e/ceptions to the
dut of reasonable care for plaintiffs who are injured when on another9s
propert for Asport or recreationalB uses, such as ice skating on a private
pond.
&) A##ir"ati-e .2ties to Resc2e an& !rotect
i) RS/4) >3. .2ty To T'ir& !ersons )ase& On S%ecial Relations'i% Wit' !erson
!osing Ris;s
/3) (n actor in a special relationship with another owes a dut of reasonable care to
third persons with regard to risks posed b the other that arise within the scope of
the relationship.
/2) +pecial relationships giving rise to the dut provided in +ubsection #a) include:
/a) a parent with dependent children,
/b) a custodian with those in its custod,
/c) an emploer with emploees when the emploment facilitates the emploee=s
causing harm to third parties, and
/&) a mental,health professional with patients.
ii) O-er-ie<:
/3) Traditionall, the law 3'*+ %'T impose a general 3.T2 T' 1*+&.*. #+ome
states have enacted general statutes imposing a dut to rescue or render aid to
those in peril.) %egligent nonfeasance: !ailure of 3 to act in a situation where
action on his part would have prevented 69s injuries.
/a) 1(TI'%(;*
(i) 6rotect individual autonom I law is reluctant to impose positive
obligations on people.
(ii) 3ifficult of circumscribing dut to rescue within workable limits. 75'
would dut be imposed onF 'nl people three meters awa from
accident or witnesses broadl or famil membersFFF 7ho has the dut to
prevent a blind man from crossing a bus streetF
/b) ,ster"ind v. &i"" 3 rents canoe to drunk decedentD decedent goes out on
lake, capsiGes, and 3 does not come to his rescue even though he ells.
&ourt finds that 3 did not violate an legal right of decedent9s.
/2) ! "2st 2s2ally establis' s%ecial circ2"stances to %re-ail on negligent
non#easance:
/a) +pecial relationship with 3
/b) &ommon enterprise with 3
/c) 3 assumed a dut to protect 6 from peril@phsical injur or volunteered to
rescue
/&) 3 placed 6 at risk
(i) 7hen actor knows@should know that b his conduct, he has phsicall
injured or placed at risk for future harm someone, actor has dut to make
reasonable efforts to prevent victim from suffering further harm, or prevent
risk of harm from being realiGed. Includes situations when defendant
11
injures@imperils through a wrongful act, and also when through an
innocent act.
1. Theoba"d v. Do"cimasco"a: 3ecedent teen shot himself while plaing
1ussian roulette while his friends #3s) watched. &ourt finds that 3s
did not have a dut to decedentPno special relationship H thus no
dut to rescue.
/4) +oo& Sa"aritan i""2nities: ImmuniGe certain persons who undertake certain
rescues from liabilit for negligence #H sometimes gross negligence) in rescuing.
/a) .suall limited to Aoff,dutB professionalsD some also cover volunteer
firefighters, even Qla9 rescuers. In general, not understood to immuniGe *:Ts,
emergenc room doctors@nurses from ordinar malpractice liabilit.
iii) .2ty o# t'era%ists
/a) 'nce a therapist does in fact determine, or under applicable professional
standards reasonabl should have determined, that a patient poses serious
danger of violence to others, he bears a dut to e/ercise reasonable care to
protect the foreseeable victim of that danger.
(i) 1(TI'%(;*: 'n the one hand, the need to preserve patient confidence
recogniGes that effective diagnosis and treatment of a mental illness or an
emotional problem is severel undermined when a patient cannot be
assured that a statement made in the privac of his therapist9s office will
not be revealed. 'n the other hand, is the recognition that, under limited
circumstances, preserving a confidence is less important than protecting
the safet of someone whom the patient intends to harm.
(ii) Taraso$$ v. The .egents o$ the #niversity o$ Ca"i$ornia: ( murdered
woman9s parents sued the .niversit because therapists emploed there
failed to warn their daughter of death threats made towards her b a
patient. +pecial relationship here between patient H therapist satisfied H
supports finding of affirmative dut. &ourt balances: patient9s right of
confidentialit v. public9s right to safet  protective privilege ends when
peril beings.
(iii) 1'ing v. !o"dstein: 6arents of victim killed b a therapist9s patient sued
the therapist for wrongful death based on the therapist9s failure to warn
the victim after the therapist received a communication from patient9s
father that patient threatened to kill or cause serious phsical harm to the
victim. 5';3I%>: ( communication from a famil member to a therapist,
made for the purpose of advancing therap, is a Apatient communicationB
within the meaning of the statute. ( therapist9s dut to warn a victim arises
if the information communicated leads the therapist to believe or predict
that the patient poses a serious risk of grave bodil injur to another.
i-) Social 'ost liability: In most states, there is statutor liabilit for commercial
establishments that serve alcohol to obviousl into/icated @minors to persons injured
because those patrons were into/icated. .2ty o# social 'osts &e%en&s on
#oreseeability o# ris; create& an& %olicy conseG2ences o# &2ty #in&ing.
/3) 3id hosts know or should have known that guests were going to drive and hosts
continued to serve alcohol to them after the were clearl drunkF
/2) 6olic reasons for reluctance to impose liabilit on social guests v. licensed
alcohol vendors
/a) (ccess to insurance. 5ome owners normall would not be insured, whereas
vendors would.
/b) +ocial guests don9t have a financial motivation to encourage
drinking@dangerous behavior, and are not as trained@knowledgeable as
vendors to identif drunk people.
12
/4) Mc!uiggan v. /e' 1ng"and Te". 2 Te". Co. 6arents have graduation partD
son9s friend, not obviousl into/icated, drives awa. +on in car, is decapitated b
telephone pole when he leans out of car window. &ourt finds parents were not
liableD guest was not obviousl drunk when he left and the were not aware of his
into/ication. &ourt allows that it would recogniGe liabilit when there was a
showing that the social host knew @ should have known his guest was drunk H still
gave him alcohol. (cknowledges reluctance to impose liabilit for polic reasons:
social hosts #unlike vendors) are not alwas aware of who is drinking H how
much. (lso the social cooling that would result if liabilit imposed.
/>) Chi"ds v. Desormeau3: (t a 42'4 social house part, 6 brought and consumed
alcohol and became into/icated. 5e initiall e/pected to be offered a ride, ta/i or
overnight sta invitation b the hosts who had made these offers to 3 in the past.
(t the end of the part, 3 decided to drive himself home and en route caused a
car accident which resulted in catastrophic injuries to 6. 5';3I%>: !or 3, social
hosts.
/a) 6';I&2: The dut owed b commercial hosts to third parties where the are
injured b patrons who have been drinking does not appl to private hosts as
the dut is different. :onitoring b commercial hosts is easier to accomplish
as it is e/pected b both patrons and members of the communitD the sale
and consumption of alcohol is strictl regulated and commercial hosts are
e/pected to compl b strict rules b training staff to monitor age and
consumption of patrons and a contractual relationship e/ists between patrons
and commercial hosts.
/b) !'1*+**(4I;IT2: There was no pro/imit between 69s injuries and 39s
behavior therefore the hosts owed no dut of care to the 6. 39s drinking and
driving was not foreseeable on the facts of this case as a histor of
consumption and impaired driving does not make drunk driving and injur
reasonabl foreseeable. %o dut of care arose from 39s failure to act as their
actions did not fall into an applicable categor as holding a house part was
not an invitation to a dangerous activit, guests had autonom, and there was
no re?uirement to care for highwa users. 5osting a part where alcohol is
served does not, without more, establish the degree of pro/imit re?uired to
give rise to a dut of care on hosts to highwa users who ma be injured b
an into/icated guest.
/B) %e""y v. !'inne"" +ocial host enabled an adult guest at his home to become
drunk and continued to serve li?uor after guest was visibl into/icated. 6 later
got into a car accident. 5';3I%>: 5ost ma be liable. +ocial hosts have a dut
to the public not to create foreseeable, unreasonable risks b serving alcohol to
their guests. 7hen hosts serve alcohol to an adult social guest, knowing both that
the guest is into/icated and will thereafter drive, is liable for injuries inflicted on a
third part as a result of the negligent driving b the adult guest. 7e impose this
dut on the host because the polic considerations served far outweigh those
asserted in opposition.
e) Resc2ers
i) 3anger invites rescue doctrine: (pplies to all rescues that are reasonabl carried out
and contemporaneous with the carelessl created peril. #*/ception: 6rofessional
rescuers cannot recover from person the rescueP!irefighter9s 1ule.)
/a) 1escue 3octrine )(1I*+ the ordinar rules of negligence:
(i) 6ermits the rescuer to sue on the basis of 39s initial negligence toward
the part rescued, without the necessit of proving negligence toward the
rescuer.
13
(ii) 1estricts the availabilit of the defense of contributor negligence b
re?uiring 3 to prove that the rescuer acted rashl or recklessl under the
circumstances.
/2) Wagner v. Internationa" .ai"'ay Co. 6 H his cousin on train which, as it is
crossing a bridge, lurches so that cousin is thrown out. 6 goes to rescue and is
injured in his attempt. 3 railroad held to owe 6 a dut since #&ardoGo) Adanger
invites rescue,B even if conductor had not e/plicitl invited 6 to participate in a
dangerous rescue attempt. A3anger invites rescue. The cr of distress is the
summons to relief. The law does not ignore these reactions of the mind in tracing
conduct to its conse?uences. It recogniGes them as normalR The state that
leaves an opening in a bridge is liable to the child that falls into the stream, but
liable also to the parent who plunges to its aid.B
/4) So"gaard v. !uy 4. 5t(inson Co.: ;aborers were injured at a dam construction
site and 6, a doctor, was summoned at his home to assist. 3uring his rescue, 6
seriousl injured his back. &ourt held that 6 could recover because absent rash
or reckless conduct on their part, rescuers can recover from the person whose
negligence created the peril which necessitated the rescue.
#) Negligently In#licte& E"otional .istress
i) .e#a2lt r2le: No general &2ty to a-oi& t'e negligent in#liction o# e"otional
&istress.
/3) 6';I&2 0.+TI!I&(TI'%+
/a) 1ecogniGing man causes of action for emotional injuries when not related to
an phsical trauma could inundate resources with a flood of relativel trivial
claims, man of which could be imagined or falsified.
/b) %o necessar finite limits on the number of persons who might suffer
emotional injur as a result of a given negligent act.
/c) The incidence and severit of emotional injuries are also more difficult to
predict than those tpical phsical injuries because the depend on
pschological factors that ordinaril are not apparent to potential tortfeasors.
ii) E@ce%tions
/3) If emotional harm is connecte& to %'ysical 'ar", it is actionable. 7hen
emotional harm is parasitic on phsical harm, 6 can recover for the emotional
harm #pain and suffering damages).
/2) %I*3 is actionable in certain s%ecial relations'i%s. */: Telegraph compan that
messed up an important messageD also mortician9s mishandling of a corpse.
/4) Hone o# &anger: if 6 can establish that he was within the Gone of danger for
phsical injur, even if phsical injur did not occur, 6 can recover for emotional
distress. Three re?uirements to find liabilit:
/a) S%atial %ro@i"ity: 6 must be within the Gone of phsical danger of 39s
carelessness. 'bjective re?uirementD doesn9t matter if 6 thinks she9s w@in the
Gone.
/b) !'ysical "ani#estation o# &istress #miscarriages, heart attack). Toda,
some courts have gone further and do not re?uire an phsical smptoms.
/c) 69s fear of phsical injur must be the ca2se o# 'er e"otional &istress.
(i) Conso"idated .ai" Cor6 v. !ottsha"": 6 worked at a railroad and lost a
close friend to a heart attack arguabl due to harsh work conditions
#e/treme heat, no breaks, etc). 6 eventuall became e/tremel agitated
and distraught, worried that he would die under similar circumstances.
+upreme &ourt #Thomas) adopts the Gone of danger test. 1) Test is
consistent with common lawD $) Test is consistent with !*;(9s central
focus on phsical perils #problematic)D 3) Test consistent with need to limit
14
liabilit to protect against Ainfinite liabilitB to an Ainfinite number of
persons.B #main reason). >insburg in dissent sas that is ridiculousPthe
class of potential plaintiffs is not infinite.
/>) &alifornia9s %*7 +T(%3(13 for bstanders: 6 can claim 3 caused traumatic
injur if the ordinar man under such circumstances should reasonabl have
foreseen the accident and harm. &onsider these factors in evaluating
foreseeabilit:
/a) S%atial %ro@i"ity: 6 was at the scene of the injur
/b) Te"%oral %ro@i"ity: 6 was aware of what was happening and shock
resulted from a direct emotional impact upon 6 from sensor observance of
accident.
/c) Relational %ro@i"ity: 6 was a close relative of the victim of the phsical
injur.
(i) Di""on v. Legg :other sees her daughter run over b car. (t trial court
level, mother not allowed to recover #too far awa), but &ourt reverses
and allows her to recover for emotional distressD e/pansion of liabilitC
<e is foreseeabilit of third part9s injurD main test for recover is to
consider if it was reasonabl foreseeable the accident would cause
emotional distress in another.
1. (t first courts insisted that there be no recover for emotional trauma
at all. 1etreating from this position, the then gave relief for such
trauma onl if phsical impact occurred. %e/t the abandoned the
re?uirement for phsical impact but insisted that the victim fear for her
own safet, holding that mother can recover for fear for her children9s
safet if she simultaneousl entertained a personal fear for herself.
(%':(;2: *ssentiall, the victim9s sister, who observed the accident,
could recover because she was in the Gone of danger, but the mother,
not far distant, would be barred from recover.
$. The &ourt should not den recover upon a legitimate claim because
other fraudulent ones ma be urged.
3. The alleged definitions for recover on the different facts of future
cases does not justif the denial of recover on the specific facts of
the caseD in an case, proper guidelines can indicate the e/tent of
liabilit for future cases.
(ii) 3I++*%T: 5ow AcloseB must the relationship be between the 6 and the 3
rd
personF 7hat is the magic in the 6 being actuall presentF Is the shock
an less real if the mother does not know of the accident until her injured
child is brought into her homeF The liabilit imposed b such a doctrine is
out of proportion to the culpabilit of the negligent tortfeasor.
/&) Thing v. La Chusa: :other sues after son was hit b a car, but she is denied
recover because she was not at the scene of the accident. &ourt held that
guidelines set out in 3illon are rules governing whether 6 can recover for
%I*3. 1ejects complete rela/ation of rules set in 3illon and some
subse?uent cases followed but applies the 3illon factors.
(i) The case,b,case approach to development of the law has not onl
produced inconsistent rulings in the lower courts, but has provoked
considerable critical comment.
(ii) 1ecover should be limited to persons closel related b blood or
marriage.
(iii) In identifing those persons and the circumstances in which the defendant
will be held to redress the victim, it is appropriate to restrict recover to
those persons who will suffer an emotional impact beond the impact that
15
can be anticipated whenever one learns that relative is injured, or dies, or
the emotion felt b a AdisinterestedB witness.
(iv) T51** conditions:
1. &;'+*;2 1*;(T*3 T' )I&TI:
$. 61*+*%T (T +&*%* '! (&&I3*%T
3. (7(1* T5(T )I&TI: I+ 4*I%> I%0.1*3
-. (+ ( 1*+.;T +.!!*1+ *:'TI'%(; 3I+T1*++ 4*2'%3 T5*
I:6(&T T5(T &(% 4* (%TI&I6(T*3 '! ( 3I+I%T*1*+T*3
7IT%*++.
/B) Johnson v. Doug"as: 5usband and wife sued to recover for death of famil dog
run over b a speeding driver. The claimed to suffer from emotional distress due
to the witnessing of the death of their dog. &ourt held that the Gone of danger rule
is onl applicable to the observance of the death of serious injur of an immediate
famil member who is a person.
Po"icy 7 II1D
(rgument for allowing recover for %2re e"otional &istress: wrongdoers will be under deterred if
the do not have to pa for negligence. There cannot be an entire categor of wrongs that
businesses do not have to internaliGe.
g) !2re econo"ic loss
i) 6hsical damage to a proprietar interest is a prere?uisite to recover for economic
loss in cases of unintentional tort. 4urden is on 6 to show that court should recogniGe
dut of care running from 3 to 6.
/3) State o$ Louisiana v. M8V Testban(: &ollision of two ships caused pollution of a
river, and all the fishing, shrimping, and related activit were temporaril
suspended. &ommercial ostermen, fishermen, etc. brought claims for economic
loss unaccompanied b phsical damage to propert. 6s argued that the re? of
phsical injur to a proprietar interest was arbitrar, unfair and illogical, as it
denies recover for foreseeable injur caused b negligent acts. &ourt holds that
phsical damage is a prere? of to recover for economic loss.
/a) 7ithout this limitation foreseeabilit would lose much of its abilit to function
as a rule of law.
/b) 'therwise wave upon wave of successive economic conse?uences actions
would be brought I draw too man judicial resources.
/c) 6resent rule is candid and makes results more predictable. 3ening
recover for pure economic losses is a pragmatic limitation on the doctrine of
foreseeabilit.
ii) E@ce%tion to general no &2ty r2le #or %2re econo"ic loss /o2tlier caseIII)
/3) If there is a special relationship between tortfeasor and victim. 6eople */press
case suggests a general principle: plaintiffs can recover for pure economic loss
when defendant owes a dut to plaintiffs of an identifiable class. (ccountants and
auditors can be held liable for pure economic losses of third parties that relied on
their misrepresentations.
/a) Peo6"e 136ress 5ir"ines Inc. v. Conso"idated .ai" Cor6.: 6, an airline, was
forced to evacuate its premises and suffered an interruption of its business
operations with resultant economic loss. &ourt holds that 3 owes a dut of
care to take reasonable measures to avoid the risk of causing economic
damages, aside from phsical injur, to particular 6s comprising an
identifiable class with respect to whom 3 knows or has reason to know are
likel to suffer such damages from its conduct. ( 3 failing to adhere to this
16
dut of care ma be found liable for such economic damages pro/imatel
caused b its breach of dut. 6 still has to prove lost profits with high degree
of certaint.
(i) &ountervailing considerations of fairness and public polic have led courts
to discard the re?uirement of phsical harm as an element.
(ii) The answer to the allegation of unchecked liabilit is not the judicial
obstruction of a fairl grounded claim for redress. The asserted inabilit
to fi/ chrstalline formulae for recover on the differing facts of future
cases does not justif the wholesale rejection of recover in all cases.
The application of negligence doctrine advances the fundamental purpose
of tort law and does not unnecessaril foreclose redress based on
formalisms or technicalities.
Po"icy 7 Pure 1conomic Loss
(>(I%+T no recover for pure economic loss #:ar/ist view): onl people with propert who own
means of production are entitled to recover.
1ebuttal: If we allow recover for pure emotional distress or economic loss, then there might not
be enough mone in the pool of funds to compensate people for and protect people9s phsical
integrit. :ust prioritiGe phsical securitC
') !olicyFbase& .2ty E@e"%tions
i) In certain areas, special ?ualified dut rules appl instead of a general dut of care on
grounds of public polic. In such areas I premises liabilit, pure economic loss, etc I
the burden is on the 6 to e/plain wh the court ought to recogniGe a dut of care
running from the 3 to persons such as the 6.
/3) Stra2ss -. )elle Realty ,o.: 6 was injured on stairs during blackout that was
&on*d9s fault. &ourt refuses to impose liabilit to avoid Acrushing liabilitB for
&on*d. )er large class of potential negligence claimants. &ourt must limit the
legal conse?uences of wrongs to a controllable degree #economic considerations
H slipper slope arguments). (lso issues of intervening cause at issue here
#&on*d was not in charge of maintaining those stairs). 3I++*%T: 6erverse
conse?uence of ruling: the more persons injured trough a tortfeasor9s gross
negligence, the less the responsibilit for injuries incurred. 4urden should be on
&on*d to show that it owed 6 no dut of care or that it would suffer dire
conse?uences if held responsible to all foreseeable plaintiffs. %o deterrence
effectC 6ossible encouragement for companies to make ;(1>* mistakes rather
than small ones.
/2) .iss v. City o$ /e' 9or(: 1iss sued the &it for negligence due to the police
failing to provide protection from an attacker who had previousl threatened her
on numerous occasions. 5';3I%>: ( municipalit is not liable for failure to
provide special police protection to an individual member of the public who was
repeatedl threatened with personal harm and eventuall suffered injured for lack
of protection. ;iabilit for governmental activities onl attaches insofar as it is
related to the provision of services and facilities for the use of the general public
rather than particular members of the public. If we were to permit tort liabilit for
those who seek police protection based on specific haGards, it would cause a
determination as to how the limited resources of the communit should be
allocated and without predictable limits. There are no predictable limits to the
potential liabilit for failure to provide ade?uate police protection as compared to
other areas of municipal liabilit. 3I++*%T: A4ecause we owe a dut to
everbod, we owe it to nobod.B 5olding for 6 would induce public officials to
provide at least a minimall ade?uate number of police. +overeign immunit L
17
public dut. *ither improve public administration or accept the cost of
compensating injured personsC
Po"icy 7 &istorica" :usti$ications $or sovereign immunity
,It is inappropriate for courts to second,guess decisions of e/ecutive and legislative branches,
especiall when their decisions involved budgetar concerns. Those branches are more
democraticall accountable and should be responsible for budget decisions.
,5olding public service sectors@companies liable will be e/tremel e/pensive, burden the treasur.
,There are alternative was for individuals to seek redress from governments in a democrac,
such as appealing to legislators directl.
4) )REA,$
a) T'e Reasonable !erson
i) RS/4) 4. Negligence
/3) ( person acts negligentl if the person does not e/ercise reasonable care under
all the circumstances. 6rimar factors to consider in ascertaining whether the
person=s conduct lacks reasonable care are the foreseeable likelihood that the
person=s conduct will result in harm, the foreseeable severit of an harm that
ma ensue, and the burden of precautions to eliminate or reduce the risk of harm.
ii) RS/2) 254. ,on&2ct O# A Reasonable Man: T'e Stan&ar&
/3) .nless the actor is a child, the standard of conduct to which he must conform to
avoid being negligent is that of a reasonable man under like circumstances.
/2) &omments:
/a) This +ection is concerned onl with the standard of conduct re?uired of the
actor to avoid being negligent. It is not concerned with the ?uestion of when
he owes to another a dut to conform to that standard.
/b) Eualities of the Areasonable man.B The words Areasonable manB denote a
person e/ercising those ?ualities of attention, knowledge, intelligence, and
judgment which societ re?uires of its members for the protection of their own
interests and the interests of others. It enables those who are to determine
whether the actor=s conduct is such as to subject him to liabilit for harm
caused thereb, to e/press their judgment in terms of the conduct of a human
being. The fact that this judgment is personified in a AmanB calls attention to
the necessit of taking into account the fallibilit of human beings.
/c) +tandard of the Areasonable man.B %egligence is a departure from a standard
of conduct demanded b the communit for the protection of others against
unreasonable risk. The standard which the communit demands must be an
objective and e/ternal one, rather than that of the individual judgment, good or
bad, of the particular individual. It must be the same for all persons, since the
law can have no favoritesD and et allowance must be made for some of the
differences between individuals, the risk apparent to the actor, his capacit to
meet it, and the circumstances under which he must act.
In dealing with this problem the law has made use of the standard of a
hpothetical Areasonable man.B +ometimes this person is called a reasonable
man of ordinar prudence, or an ordinaril prudent man, or a man of average
prudence, or a man of reasonable sense e/ercising ordinar care. It is evident
that all such phrases are intended to mean ver much the same thing. The
actor is re?uired to do what this ideal individual would do in his place. The
reasonable man is a fictitious person, who is never negligent, and whose
conduct is alwas up to standard. 5e is not to be identified with an real
personD and in particular he is not to be identified with the members of the
jur, individuall or collectivel. It is therefore error to instruct the jur that the
18
conduct of a reasonable man is to be determined b what the would
themselves have done.
The chief advantage of this standard of the reasonable man is that it enables
the triers of fact who are to decide whether the actor=s conduct is such as to
subject him to liabilit for negligence, to look to a communit standard rather
than an individual one, and at the same time to e/press their judgment of
what that standard is in terms of the conduct of a human being. The standard
provides sufficient fle/ibilit, and leewa, to permit due allowance to be made
for such differences between individuals as the law permits to be taken into
account, and for all of the particular circumstances of the case which ma
reasonabl affect the conduct re?uired, and at the same time affords a
formula b which, so far as possible, a uniform standard ma be maintained.
iii) RS/2) 256. In#erior G2alities.
/3) &omment %. If the actor is a child, allowance is made for his inferior ?ualities of
mind and bod, and the standard becomes that of a reasonable man with such
?ualities, as stated in S $T3(. If the actor is ill or otherwise phsicall disabled,
allowance is made for such disabilit, as stated in S $T3&. */cept in such cases,
the actor is held to the standard of a reasonable man as to his attention,
perception, memor, knowledge of other pertinent matters, intelligence, and
judgment, even though he does not in fact have the ?ualities of a reasonable man.
The individual who is habituall wool,gathering and inattentive, absent,minded,
forgetful, ignorant or ine/perienced, slow,witted, stupid, or a fool, must conform to
the standards of the societ in which he lives, or if he cannot conform to them
must still make good the damage he does.
i-) RS/2) 265. Necessity t'at actor e"%loy co"%etence a-ailable.
/3) &omment 3. The actor must utiliGe with reasonable attention and caution not onl
those ?ualities and facilities which as a reasonable man he is re?uired to have,
but also those superior ?ualities and facilities which he himself has. Thus a
superior vision ma enable the actor, if he pas reasonable attention, to perceive
dangers which a man possessing onl normal vision would not perceive, or his
supernormal phsical strength ma enable him to avoid dangers which a man of
normal strength could not avoid.
(gain, if in preparing a particular instrumentalit for use the actor has taken
precautions which are in e/cess of those re?uired of him, he must e/ercise
reasonable attention and caution in using the instrumentalit so prepared, and will
be subject to liabilit for harm caused to others b his failure to do so, although
reasonable care in the use of a normall prepared instrumentalit would not have
prevented the harm.
-) RS/4) 33. .isability
/3) The conduct of an actor with phsical disabilit is negligent onl if it does not
conform to that of a reasonabl careful person with the same disabilit.
/2) The conduct of an actor during a period of sudden incapacitation or loss of
consciousness resulting from phsical illness is negligent onl if the sudden
incapacitation or loss of consciousness was reasonabl foreseeable to the actor.
/4) (n actor=s mental or emotional disabilit is not considered in determining whether
conduct is negligent, unless the actor is a child.
-i) RS/4) 32. no<le&ge An& S;ills
/3) If an actor has skills or knowledge that e/ceed those possessed b most others,
these skills or knowledge are circumstances to be taken into account in
determining whether the actor has behaved as a reasonabl careful person.
-ii) O-er-ie<
/3) E2estion #or CUR*: W'at is t'e stan&ar& o# care o<e&(
19
/a) ANSWER: Reasonableness. 3efault standard of care is that of a
7reasonable "an 2n&er t'e circ2"stances.8 #objective standard)
(i) )aughan v. :enlove: 3 dangerousl piles his ha in a rick. 3espite
repeated warnings, 3 does nothing #I9ll just chance itB) and ultimatel rick
catches on fire and causes 69s cottages H 39s stuff to burns down. &ourt
determined that reasonable man is an objective standard: care taken b a
prudent man.
/2) Lang2age9religion
/a) Weirs -. Cones ,o2nty: 0ones &ount condemned bridge, closed it off with
wire and signs in *nglish, but 7eirs crossed the bridge anwa and lost his
horses and wagon. Euestion: 7ould a person of reasonable care be notified
b the signs and wiresF 2es. &ourt held that actions b &ount were
sufficient for a reasonable person to be deterred from bridge.
/b) Frie&"an -. State: 0ewish 'rthodo/ girl stranded on ski lift with male friend
after U pm. +he jumped off the lift and injured herself. 5olding: +tate guilt of
negligence I state owed claimants dut to e/ercise reasonable care in the
operation of the chair lift. 1eligion
/4) !$*SI,AL &isabilities: Interpreted through the Aunder the circumstancesB
portion of the reasonable man standard.
/a) 6ermanent disabilities: +tandard for negligence is what a reasonable person
w@ such a disabilit would do.
/b) Temporar disabilities: If 3 didn9t know about the disabilit, %'T liableD
otherwise, liable.
/>) Mental9e"otional &isabilities
/a) >eneral rule: 1easonable man under the circumstances. %' ;'7*1I%> of
standard. Tort law does not take mental disabilit into accountD it does not
individualiGe reasonable person standard to include mental@emotional
disabilities. (fter all, between $ innocent persons, the loss much fall upon him
who caused it, rather than upon the other.
(i) E@ce%tion: %' liabilit for negligence I! the insanit arises from
reasonable behavior.
1. Willia"s -. $ays J2: +hip captain takes medicine onboard during a
storm and as a result loses the ship. &ourt rules: %' liabilit for
negligence I! the insanit arises from reasonable behavior.
6revious ruling establishes a doctrine abhorrent to all principles of
e?uit and justice.
/B) Age
/a) RS/4) 3K. ,'il&ren
(i) ( child=s conduct is negligent if it does not conform to that of a reasonabl
careful person of the same age, intelligence, and e/perience, e/cept as
provided in +ubsection #b) or #c).
(ii) ( child less than five ears of age is incapable of negligence.
(iii) The special rule in +ubsection #a) does not appl when the child is
engaging in a dangerous activit that is characteristicall undertaken b
adults.
/b) RULE: &hildren are held to standard of care of reasonabl careful children of
their +(:* age, .%;*++ the are engaging in a Adangerous activit that is
characteristicall undertaken b adults.B &ourts look to custom@societal norms
#6urtle majorit and 3ellwo) to determine which activities are dangerous and
ordinaril engaged in b adults. (nother approach is that of dissent in 6urtle:
rather than tring to decide what societal norms are and judging children9s
behavior against those, we should seek to do what is right. .se the law to
20
Hand Formula:
B=burden of
precaution
P=probability
of loss
L = loss
PxL=epected
loss
Hand Formula:
B=burden of
precaution
P=probability
of loss
L = loss
PxL=epected
loss
change societal behavior. In 6urtle, dissent emphasiGes that weaponr is
e/tremel dangerous, so the court@societ +5'.;3 be holding 1O ear olds
to adult standard of care.
1. .ell<o -. !earson: &hild operating motor boat snagged fishing line
from another boat which flew into 69s ee in the other boat. &ourt
held 3 guilt. In the operation of an automobile, airplane or
powerboat, a minor is to be held to the same standard of care as an
adult.
$. !2rtle -. S'elton: 1U ear old bo went hunting with friend and
accidentall shot a tree close to friend, causing him serious injur to
ees. 5olding: 3 not guilt because deer hunting is not an adult
activit. 1ule: If a minor is to be held to an adult standard of care he
must be engaging in an activit that is: a) dangerous to others and b)
normall engage din onl b adults. 3I++*%T: >uns and hunting L
e/tremel dangerous activities.
(ii) RULE: The law does not factor ';3 age into the reasonable person standard
I as long as one is an adult, one is held to the general Areasonable person
standard.B
1. Roberts -. Ring: OO ear old man ran over a O ear old bo with his
car when the bo darted across the street. 3 is on the hook because
6 is a child and therefore cannot be held to standard of care of
reasonable (3.;T when assessing contributor negligence. A( bo
of seven is not held to the same standard of care in self,protection. In
considering his contributor negligence the standard is the degree of
care commonl e/ercised b the ordinar bo of his age and
maturit.B
b) ,ost )ene#it Analysis o# reasonable care
/3) $an& For"2la
/a) &ompares dollar value of precaution v. dollar value of e/pected harm, for it is
wasteful for societ to take a precaution that is more e/pensive than the harm it is
meant to prevent. 3 has breached the standard of care is 4M6;, i.e. if the cost of
the added precaution is lower than the benefits of taking the precaution.
4 M 6 / ;  breach
4 N 6 / ;  no breach
(i) 4: the costs of taking the precaution #the costs could be pecuniar or
non,pecuniar)
(ii) 6: the probabilit of accident occurring with the precaution
(iii) ;: the loss if the accident occurs #also known as the gravit of the
harm)
(iv) 6 / ;: */pected loss #.+I%> T5* 61*&(.TI'%)
/b) 'T5*1 &'%+I3*1(TI'%+
(i) The relative safet@utilit of alternative conduct
(ii) The relative cost of safer conduct
(iii) The feasibilit of alternative safer conduct
(iv) The utilit of the conduct as a means of conducting the activit or reaching the
goal
(v) The importance or social value of which the actor9s conduct is a part #e/ a
rescuer)
/c) !ros: :a/imiGes aggregate social wealth b encouraging people to take cost,
efficient steps and brings rigor to process of finding negligence. .seful when
comparing things along a common metric.
21
/&) ,ons:
(i) 3istributional concerns
1. &ertain precautions ma not be efficient from a societal perspective,
but the might benefit certain groups we want to help #such as
children)
$. .sing the 5and !ormula could reinforce e/isting ine?ualities. !or
e/ample, a 4 might not be deemed necessar because the 6; is low
because the persons that would be harmed are poor and don9t have
man assets. This concern might be addressed, however, b
adjusting the valuation formula for the gravit of the harm.
#ii) Injustice
1. (lso, the 5and !ormula ma do social good without doing individual justice.
(n particular injured individual might suffer damages much less than the
defendant9s cost to avoid the arm but still recover because the average harm
would e/ceed that cost. (nd vice versa: the injured individual might suffer
much greater harm than the defendant9s cost of avoidance and et be denied
recover because the cost of avoidance was too high compared to the
average or probable overall harms.
#iii) Information costs
1. :ight be costl to get information about 4, 6, ;
$. :ight be easier to get information about 4 than 6;, which could mean that
more weight is given to 4 than 6; :ight be easier to get information about 4
than 6;, which could mean that more weight is given to 4 than 6;.
#iv) :orall offensive
1. (ppling 5and !ormula ma re?uiring attempting to put a price in mone on
items that we don9t want to price, such as human life and happiness, for
e/ample when the issue is whether a precaution should have been taken and
the 6; is a certain number of lives saved.
/e) #nited States v. Carro"" To'ing: 69s barge, docked at pier in :anhattan, broke
awa due to 39s negligence in shift its ropes 3 argued that 6 was contributoril
negligent b@c 69s bargee was not on boardD there was time enough that struck
barge could have been moved to shore H its contents saved, but bargee was
absent H barge sank. In admiralt, damages would be divided between 3 H 6
according to their respective degree of negligence. ;earned 5and emplos the
5and !ormula.
/#) .hode Is"and &os6. Trust /at;" *an( v. <a6ata Cor6.: *mploee of Vapata got
black checks and wrote herself a number of them. Vapata did not notice this for
about O mo. since it did not read its statements carefull. 4ank under .&& rules
has to pa Vapata for the checks that were cashed before statements came out.
V has to show that the bank did not e/ercise reasonable care or that the industr
standard that bank followed was unreasonable, arbitrar, or unfair. &ourt finds V
did not establish that 4ank failed to e/ercise reasonable care. 4ank e/ercised
ordinar practices for banking industr, which saved mone, did not result in fewer
forgeries checked, and was not arbitrar or unfair. 4urden of precaution e/ceeded
the benefit #6 / ;), therefore no liabilit for bank.
c) Lor& Rei& S2bstantial Ris; For"2la /NOT <i&ely 2se& in eit'er t'e US or Englan&)
i) 3on9t weigh 6; against 4 in determining negligence. %egligence determined b
degree of risk created. (ctors can be held liable even if the burden of precaution is
e/tremel high, or ma not be held liable at all even when the precaution could have
been taken rather cheapl.
/3) *o"ton v. Stone 7oman hit in head with cricket ball. 3 found negligent for he
created a substantial risk to another. 6 can recover if 6; is above a certain
unspecified threshold. A'ne must consider not onl how remote is the chance
that a person might be struck but also how serious the conse?uences are likel to
be if a person is struck.B
22
i) !ros: 1educes information costs H corresponds to common intuitions.
ii) ,ons: 'bscures basis of decision,makingD could lead to inefficient levels of
precaution #people could be led to take too much or too little precaution)Pnot
economicall rational. (lso, in cases on non,consensual risks, economical rational to
re?uire cost,benefit analsis, and invites distributional concerns.
&) Foreseeability Test
i) 5dams v. *u""oc( 1$ ear old bo was shocked and burned when a wire he was
plaing with on a bridge came in contact with a trolle wire below. &ourt held 3 not
responsible or negligent. Trolle compan had a dut to adopt all reasonable
precautions to minimiGe the resulting perils, and it fulfilled that dut. The trolle wire
was so placed that no one standing on the bridge or even bending over the parapet
could reach it. 'nl some e/traordinar casualt, not fairl within the area of ordinar
prevision, could make it a thing of danger. To hold 3 liable upon the facts in this record
would be to charge it as an insurer.
ii) Ca"iri v. /e' &am6shire De6t. o$ Trans6ortation: 3ecedent was killed when the car
she was in hit a patch of ice. 6 sued 3'T for failure to maintain the road in
furtherance of its dut. &ourt found that jur instructions were properD the instructions
6 suggested imposed a higher standard of care on the 3'T than was statutoril
given. ;iabilit is ordinaril imposed upon persons for injuries caused b their failure
to e/ercise reasonable care under all the circumstances. The test of due care is what
reasonable prudence would re?uire.
Po"icy
5and !ormula H the !oreseeabilit Test reflect two approaches to tort law more generall.
5and !ormula: 6urpose of tort law is to deter inefficient conduct #there can be a cost so high
that it justifies trade,off for rights.)
!oreseeabilit@+ubstabtial 1isk Test: &orrective justice. Individuals have rights, including
a particular right to safet, and when those rights are violated the are entitled to compensation,
regardless of the cost.
e) In&2stry an& !ro#essional ,2sto"
i) RS/4) 34. ,2sto"
/3) (n actor=s compliance with the custom of the communit, or of others in like
circumstances, is evidence that the actor=s conduct is not negligent but does not
preclude a finding of negligence.
/2) (n actor=s departure from the custom of the communit, or of others in like
circumstances, in a wa that increases risk is evidence of the actor=s negligence
but does not re?uire a finding of negligence.
ii) ,2sto" is rele-ant b2t not &eter"inati-e. %otwithstanding a custom of usage or
the lack thereof, there are precautions so imperative that even their universal
disregard will not e/cuse their omission.
/3) The TJ &oo6er: #;earned 5and) ;arge barge filled with coal and the tugboat
which was its tow were lost at sea during heav weather and partl due to lack of
radios onboard. 1adio usage was not customar. 5';3I%>: T0 5ooper liable.
AIn most cases, reasonable prudence is in fact common prudence. 4ut strictl, it
is never its measure. ( whole calling ma have undul lagged in the adoption of
new and available devices. )iolation of, or compliance with, custom is relevant
and admissible but not conclusive on re negligence determination.B
iii) !osner: &ustom should onl be determinative of the standard of care if plaintiff and
defendant are %'T in a contractual relationship, but should appl when parties are in
a relationship, because in principle the can bargain to adopt practices that provide
the appropriate level of care.
23
/3) .odi 9achts, Inc. v. /ationa" Marine Inc. (ccident occurred which could in
principle have been prevented b either the owner of the barge or the operator of
the dock. 6osner held that when the relative fault of parties cannot be
determined, 0udges should decide case based on each parties9
compliance@departure from the industr custom.
Po"icy
Arg2"ents against relying on c2sto" as a "etric #or reasonable care:
,Industr custom does not account for costs borne b parties '.T+I3* the industr #market
failure)
,*ven when market is working, une?ual bargaining power@informational ine?ualit between
companies and customers ma mean that the standard is unfair.
In #a-or o# reliance on in&2stry stan&ar&: &ompanies are in best position to judge e/ternal
benefits and costs of their actions and thus in the best position to make efficient decisions.
i-) Stan&ar& o# care #or &octors: in&2stry c2sto"
/3) Johnson v. .iverda"e 5nesthesia 5ssocs., P.C.: 6 suffered a severe adverse
reaction to anesthesia she received during surger, which caused her o/gen
suppl to be interrupted, resulting in massive brain trauma and death. 6 argued
that failure to pre,o/genate 6 before surger violated the applicable standard of
care. &ourt held that the standard of care in medical malpractice cases is that
which is emploed b the medical profession generall. 6revailing industr custom
is the standard of careD a doctor9s personal practices and preferences are
irrelevant to malpractice.
/2) !r2&ent %atient stan&ar& /&octrine o# in#or"e& consent): %*7 objective
standard for disclosure that re?uires all AmaterialB risks to be revealed. #*/ception
I unconscious patient.)
/a) &(.+(TI'% is re?uired
(i) Informed consent cases re?uire proof not onl that the phsician failed to
compl with the applicable standard for disclosure but also that ade?uate
disclosure would have ca2se& REASONAL* !ERSON to &ecline t'e
treat"ent because of the revelation of the kind of risk or danger that
resulted in harmF If so, causation is shown, but otherwise not.
(ii) ;arge v. 1othman: 3 #doctor) took biops of lumps in 69s breasts H
removed two lmph nodes w@o getting 69s consent beforehand or
apprising her of the potential side,effects. 6 later developed a disease as
a result of the removed lmph nodes, and sued for batter H med,mal. $
different standards can be emploed and court ultimatel chooses to
replace the traditional standard w@ the prudent patient standard.
1. Traditional reasonable doctor standard: 6hsician re?uired to make
disclosures according to the prevailing medical custom #same
standard as 0ohnson).
Po"icy
,2sto"
For: It is a safeguard for the patient that doctors be held to an e/ternal, objective, industr,wide
standard of care.
Against: !irst, it ma be hard to ascertain what the custom is. The burden is on 6 to produce a
doctor at trial to testif to prevailing custom against 3. +econd, since the 1WOK9s, incentives for
doctors have changed. 7hereas doctors used to have incentives to provide proper care, now the
24
are guided b parameters determined b insurance companies. 4esides, industr standard@status
?uo does not keep up with new research and new technologies.
Against %r2&ent %atient stan&ar&: 6laces the phsician in jeopard of the patient9s hindsight
and bitterness. It calls for a subjective determination solel on testimon of a patient,witness
shadowed b the occurrence of the undisclosed risk. 4esides, it is not clear that there is
consistenc among patientsD ma be hard to determine what a AreasonableB patient would decide.
Ne< stan&ar&: Reasonable %'ysician. ;ess deference is given to medical communit, emphasis
on costs and benefits of phsician9s actions. A1egardless of what medical communit is currentl
doing, the costs of such procedure outweigh its benefits.B 3octors following industr standard
could be held liable for inur.
E-ol2tion a<ay #ro" Locality R2le: ( phsician@lawer is onl held to the custom prevailing in
their own localit@communit. :ore common in medical malpractice cases
-) Stan&ar& o# care #or la<yers: reasonable %r2&ence o# la<yer in circ2"stances
/3) ;egal malpractice claims re?uire e/pert testimon to establish breach of the
relevant standard of care, e/cept in cases where the attorne9s alleged
carelessness is straightforward enough for a la person to assess.
/2) &(.+(TI'%: If 6 alleges that lawer ; was negligent in handling the litigation of
client &9s breach of contract claim, & is damaged onl insofar as the contract suit
was likel to succeed, either in the form of a favorable verdict or a settlement. In
other words, as a malpractice plaintiff, & is re?uired to establish that, 4.T,!'1
;9s malpractice, she would have prevailed on her underling contact claim. Thus,
in suing ;, she must prove Aa case within a caseB L formidable burden.
/a) Coo( v. Irion (ction for legal malpractice. 3 won. The general standard of
care for attornes is e/ercising knowledge and diligence that reasonabl
prudent lawers would in a similar situation. It is not enough to act in good
faith and in the best interests of client. AThere is no complaint that :r. Irion
did not in good faith and to the best of his abilit endeavor to recover on what
all parties concede is a difficult tpe of claim. The fact that this suit was
unsuccessful does not warrant the re,e/amination of his tactics or acts of
judgment which were undeniabl made in good faith.B
#) Negligence !er Se
i) RS/4) 3>. Stat2tory Liolations As Negligence !er Se
/3) (n actor is negligent if, without e/cuse, the actor violates a statute that is
designed to protect against the tpe of accident the actor=s conduct causes, and if
the accident victim is within the class of persons the statute is designed to protect.
ii) RS/4) 3B. E@c2se& Liolations. (n actor=s violation of a statute is e/cused and not
negligence if:
/3) the violation is reasonable in light of the actor=s childhood, phsical disabilit, or
phsical incapacitationD
/2) the actor e/ercises reasonable care in attempting to compl with the statuteD
/4) the actor neither knows nor should know of the factual circumstances that render
the statute applicableD
/>) the actor=s violation of the statute is due to the confusing wa in which the
re?uirements of the statute are presented to the publicD or
/B) the actor=s compliance with the statute would involve a greater risk of phsical
harm to the actor or to others than noncompliance.
iii) O-er-ie<
25
/3) Negligence !er Se: An 2ne@c2se& -iolation o# stan&ar&s o# be'a-ior
incor%orate& in cri"inal or reg2latory sc'e"es. %egligence per se permits a
6 to satisf the 41*(&5 element of her cause of action b proving that the 3
violated a statutor rule of conduct or a regulation issued b an admin agenc.
1elieves 6 of proving that 3 violated the common law9s reasonable person
standard. &ardoGo: AThe une/cused omission of the statutor signals is more than
some evidence of negligence. It is negligence itself.B
/2) 4 ele"ents:
/a) Liolation o# a stat2te #%'T administrative regulations that are for record,
keeping or other purel administrative matters)
(i) &ourts are divided as to whether administrative safet regulations are
evidence of %6+ or negligence.
/b) +tatute was meant to protect a class o# %ersons of which 6 was a member.
/c) +tatute meant to protect tpe of in12ry that 6 suffered.
/&) &(.+(TI'%
/4) Lali& E@c2ses:
/a) &hildren
/b) )iolating the statute most prudent thing to do
/c) Inabilit to compl with statute despite reasonable diligence
/&) +tatute obsolete #foolish or wholl obscure)
(i) Da"a" v. City o$ /e' 9or(: &ourt held 6 was entitled to new trial because
3 was not wearing her glasses in violation of )ehicle ;aw 8KW#3).
(ii) *ayne v. Todd Shi6yards Cor6. 3eliver man fell when unloading at
39s loading platform. 3 did not have a safet rail that was re?uired b
regulation. &ourt held that a violation of an administrative safet
regulation was %6+. 1egulation was not obscure and was not limited to
39s emploees onl. A7e perceive no reason wh such a regulation
should be of an less force, effect or significance than a municipal
ordinance.B 3I++*%T: A(dministrative agencies have a penchant for
spawning regulations without end. )iolation of administrative regulations
should be submitted to the trier of fact as evidence of negligence rather
than to be submitted as negligence as a matter of law.B 3istinction
between legal weight granted to legislative and regulator processes.
(iii) Victor v. &edges: 3 brought 6 to the rear of his car, which was parked on
the sidewalk, to show her his new &3 plaer. (t that time, 3 drove over
the curb and hit 6. &ourt found the statute in ?uestion #prohibiting parking
a car on the sidewalk) was not meant to prevent this kind of occurrence.
Po"icy 7 /eg"igence Per Se
,*ncourage respect for legislature and statutes and deter unlawful conduct
,;egislature ma be better at weighing costs and benefits of public policies
g) Res I%sa LoG2it2r: AThe facts speak for themselves.B

Ele"ents o# Res I%sa LoG2it2r
1. 3efendant had e@cl2si-e control of the thing
causing the injur
2. The accident is of such a nature that it
or&inarily <o2l& not occ2r in the absence
26
of negligence b 3
3. 6 not contrib2torily negligent
i) RS/4)3D. Res I%sa LoG2it2r
/3) The factfinder ma infer that the defendant has been negligent when the accident
causing the plaintiff=s phsical harm is a tpe of accident that ordinaril happens
as a result of the negligence of a class of actors of which the defendant is the
relevant member.
/2) MNOTEM: 1+ 1O moves awa from e/plicit <ambat test b eliminating $
nd
and 3
rd

conditions. */clusive control is too restrictiveC In %ew 2ork +tate, 3,part test of
<ambat still applies.
ii) O-er-ie<
/3) RIL is a reb2ttable %res2"%tion or in#erence t'at t'e &e#en&ant <as
negligent. ! only nee&s to s'o< t'at "ore li;ely t'an not in12ry <as a res2lt
o# .?s negligence. 1I; cases permit the jur to infer negligence without knowing
an particular misconduct at all. 1I; allow 6 to establish negligence
circumstantiall without establishing the particular acts of the defendant that
caused the harm.
/a) 4 ReG?s N to #in& t'at !?s in12ries <ere 7"ore li;ely t'an not8 #a2lt o# .?s
(i) *vent seldom occurs without negligenceD
(ii) Instrument causing injur was in 39s e/clusive controlD
(iii) 6laintiff not responsible, did not contribute to injur
/b) Rationale: In general, 6s bear the burden of proving the breach element and
produce enough evidence concerning the 39s conduct such that a judge or
jur can conclude that it is more likel than not that the alleged careless
conduct actuall occurred. 5owever, there are some situations where a 6 will
have onl circumstantial evidence of negligence on part of 3.
iii) *yrne v. *oad"e: 4arrel of flour fell on 6 as he walked b a flour shop. 3 was the
flour merchant. &ourt finds prima facie case of negligence #1I;) even though 6 did
not show e/actl how the barrel fell. AThe accident alone is prima facie evidence of
negligence.B
i-) %ambat v. St. 4rancis &os6ita": ( laparotom pad was discovered in decedent after
she had a hsterectom. 6 showed that similar pads were used in her surger and it
was impossible to swallow. &ourt found that this was a case of 1I;, which arises
upon proof that the instrumentalit causing injur was in the defendant9s e/clusive
control, the accident was one which ordinaril does not happen in the absence of
negligence, and the plaintiff did not contribute to his own injuries. 6 onl needs to
show that it is Amore likel than notB injur was caused b 39s negligence.
-) Combustion 1ngineering Co., Inc., v. 5unsberger:: &onstruction worker was struck
b a falling wedge in workplace. &ourt did not rule for 6 on 1I; theor. 4urden is on
the 6 to produce evidence from which one might reasonabl find negligence on 39s
part.
/3) This kind of accident could have occurred without negligence. A7ith workmen
handling loose tools continuall, the falling of some of them at times must be
e/pected despite all precautions. To presume otherwise would be to presume a
perfection in men9s work which we know does not e/ist.B
/2) &ost benefit analsis: The cost of making sure that no such accidents happened
#no falling wedges) outweighed the potential benefits.
-i) M2lti%le &e#en&ants: Wor;ing in&e%en&ently( NOT liable. Ot'er<ise= %ossible
liable.
27
/3) Wo"$ v. 5merican Tract Soc. ( brick fell on a subcontractor on the ground from
a building at a construction site. %o proof whatever to show from what part of the
building the brick came, or who dropped it or set it in motion. &ourt held that 1I;
re? of instrumentalit in e/clusive control of 3 %'T satisfied. A69s action must fail
for want of proof, or an and all contractors together ma be held responsible for
the injur. +uch a proposition cannot be defended.B 3I++*%T: It is contended
that, because there are man contractors, no presumption of negligence arises
against an one, and conse?uentl there is no liabilit unless the 6 can show who
the particular individual was who dropped the brick. Injuries of this kind are not
uncommon, but it is seldom that the injured part is able to show who the
negligent person was. The public has little protection from the dangers liable to
occur from the construction of high buildings. It was oweing to this difficult that
the rule of presumption of negligence was estbliahsed.
/2) 9barra v. S6angard: ( patient who suffered minor paralsis during an
appendectom sought to recover against ever doctor and nurse in whose care
he was placed during the surger, arguing that the doctrine of 1I; allowed an
inference of negligence against each defendant. &ourt held that where a plaintiff
receives unusual injuries while unconscious and in the course of medical
treatment, the doctrine of 1I; ma be used to infer negligence conduct on the part
of all those defendants that had control over him or the instrumentalities which
might have caused the injuries.
Po"icy 7 .IL
!or: 1I;: 5olding defendants liable despite failure of plaintiffs to show e/actl how the acted
negligentl increases deterrence.
(gainst 1I;: Information ine?ualit not as relevant toda since discover generall produces
incredible amount of information through depositions, etc.
>) ,AUSATION
a) 6 must show that 3 actuall caused 69s injuries, and that he did so pro/imatel #non,
fortuitousl) b a preponderance of the evidence. >enerall a ?uestion for the 0.12.
b) Fact2al ,a2sation
i) RS/4) 2A: Fact2al ca2se
/3) Tortious conduct must be a factual cause of phsical harm for liabilit to be
imposed. &onduct is a factual cause of harm when the harm would not have
occurred absent the conduct. Tortious conduct ma also be a factual cause of
harm under S $O.
/a) ,o""ent ): 7)2tF#or8 stan&ar& #or #act2al ca2se. The standard for factual
causation in this +ection is familiarl referred to as the Abut,forB test, as well as
a sine ?ua non test. 4oth e/press the same concept: an act is a factual cause
of an outcome if, in the absence of the act, the outcome would not have
occurred. 7ith recognition that there are multiple factual causes of an event,
see &omment c, a factual cause can also be described as a necessar
condition for the outcome. 4oth the first and +econd 1estatements of Torts
included this standard as an aspect of legal cause, but lowered its profile b
placing it in a clause in a &omment. +ection -31, &omment a #Athe harm
would not have occurred had the actor not been negligentB).
/b) ,o""ent E. ,o2nter#act2al inG2iry #or #act2al ca2se. The re?uirement
that the actor=s tortious conduct be necessar to the harm re?uires a
counterfactual in?uir. 'ne must ask what would have occurred if the actor
28
had not engaged in the tortious conduct. In some cases, in which the tortious
conduct consists of the entiret of an act, this in?uir ma not be difficult.
Thus, if a driver falls asleep and her car crashes into another=s home,
assessing what would have occurred if the actor had not fallen asleep poses
little difficult. In other cases, especiall those in which the tortious conduct
consisted of marginall more risk conduct than is acceptable or in which the
actor failed to take a precaution that would have reduced the risk to another,
such as b warning of a danger, the counterfactual in?uir ma pose difficult
problems of proof.
/c) ,o""ent C. S2bstantial #actor. The Asubstantial,factorB test as the routine
standard for factual cause originated in the 1estatement of Torts SS -31I-3$
and was replicated in the 1estatement +econd of Torts SS -31I-3$. Its
primar function was to permit the factfinder to decide that factual cause
e/isted when there were overdetermined causesPeach of two separate
causal chains sufficient to bring about the plaintiff=s harm, thereb rendering
neither a but,for cause. +ee S $O. The substantial,factor test has not,
however, withstood the test of time, as it has proved confusing and been
misused.
The Asubstantial factorB rubric is emploed alternatel to impose a more
rigorous standard for factual cause or to provide a more lenient standard.
Thus, for e/ample, comparative,responsibilit jurisdictions improperl emplo
the substantial,factor test to suggest to a jur that it should find the plaintiff=s
AsubstantialB contributor negligence, rather than the defendant=s tortious
conduct, to be AtheB cause of harm. &onversel, some courts have accepted
the proposition that, although the plaintiff cannot show the defendant=s tortious
conduct was a but,for cause of harm b a preponderance of the evidence, the
plaintiff ma still prevail b showing that the tortious conduct was a substantial
factor in causing the harm. That proposition is inconsistent with the
substantial,factor standard adopted in 1estatement +econd of Torts S -31,
&omment a, and is inconsistent with this +ection as well. To be sure, courts
ma decide, based on the availabilit of evidence and on polic grounds, to
modif or shift the burden of proof for factual cause, as the have when
multiple tortfeasors act negligentl toward another but onl one causes the
harm. +ee S $T#b). &ourts ma, for similar reasons, decide to permit recover
for unconventional tpes of harm, such as a lost opportunit to avoid an
adverse outcome. %evertheless, the substantial,factor rubric tends to
obscure, rather than to assist, e/planation and clarification of the basis of
these decisions. The element that must be established b whatever standard
of proof is the but,for or necessar,condition standard of this +ection. +ection
$O provides a rule for finding each of two acts that are elements of sufficient
competing causal sets to be factual causes without emploing the substantial,
factor language of the prior Torts 1estatements. There is no ?uestion of
degree for either of these concepts.
/&) ,o""ent N. Lost o%%ort2nity or lost c'ance as 'ar". ( number of courts
have recogniGed a lost opportunit #or lost chance) for cure of a medical
condition as a legall cogniGable harm. This new characteriGation of harm
permits recover when adherence to traditional categories of legall
cogniGable harm and rules of proof of causation would not. .nder the
preponderance,of,the,evidence standard, plaintiffs fail in their burden of proof
if the do not introduce evidence that proper care more likel than not would
have cured or otherwise improved their medical condition. Thus, courts
traditionall have re?uired that plaintiff show that the probabilit of a better
outcome was in e/cess of 8K percent. 6laintiffs who do provide such proof, of
course, recover the entiret of their damages.
&oncomitant with this reconceptualiGation of the harm for a plaintiff unable to
29
show a probabilit in e/cess of 8K percent is an adjustment of the damages to
which the plaintiff is entitled. 1ather than full damages for the adverse
outcome, the plaintiff is onl compensated for the lost opportunit. The lost
opportunit ma be thought of as the adverse outcome discounted b the
difference between the e/ ante probabilit of the outcome in light of the
defendant=s negligence and the probabilit of the outcome absent the
defendant=s negligence. These decisions are a response to inade?uate #and
unavailable) information specificall about what would have been the course
of a specific patient=s medical condition if negligence, tpicall in failing to
diagnose, refer, or otherwise provide proper treatment, had not occurred. ;ost
chance thus serves to ameliorate what would otherwise be insurmountable
problems of proof, i.e., proving what would have happened to the plaintiff or
plaintiff=s decedent if proper medical care had been provided. (mong courts
that are inclined to modif the law in this area in response to the difficulties of
proof, recogniGing lost opportunit as harm is preferable to emploing a
diluted substantial,factor or other factual,causation test, thereb leaving
recover to the unconstrained inclination of an given jur and providing some
fortunate plaintiffs with a full measure of damages for their phsical harm
while dening an recover to others. !or courts adopting lost opportunit,
however, 1estatement +econd, Torts S 3$3 does not suppl support for such
a reform, for the reasons e/plained in the 1eporters= %ote.
The lost,opportunit development has been halting, as courts have sought to
find appropriate limits for this reconceptualiGation of legall cogniGable harm.
7ithout limits, this reform is of potentiall enormous scope, implicating a large
swath of tortious conduct in which there is uncertaint about factual cause,
including failures to warn, provide rescue or safet e?uipment, and otherwise
take precautions to protect a person from a risk of harm that e/ists. To date,
the courts that have accepted lost opportunit as cogniGable harm have
almost universall limited its recognition to medical,malpractice cases. Three
features of that conte/t are significant: 1) a contractual relationship e/ists
between patient and phsician #or phsician=s emploer), in which the raison
d=Xtre of the contract is that the phsician will take ever reasonable measure
to obtain an optimal outcome for the patientD $) reasonabl good empirical
evidence is often available about the general statistical probabilit of the lost
opportunitD and 3) fre?uentl the conse?uences of the phsician=s negligence
will deprive the patient of a less,thanI8KIpercent chance for recover.
7hether there are appropriate areas beond the medical,malpractice area to
which lost opportunit might appropriatel be e/tended is a matter that the
Institute leaves to future development.
ii) )2tFFor Test: Was . t'e ca2seFinF#act o# !?s in12ries( More li;ely t'an not= b2t
#or .s con&2ct= <o2l& !?s in12ries 'a-e occ2rre&(
/3) /e' 9or( Centra" .... v. !rimstad: 7ife attempted to save ding husband who
fell in the ocean from barge but the barge did not have life,preservers onboard.
7ife sued. &ourt ruled for %2 &entral, for it is not clear that a life buo would
have saved the decedent from drowning. AThere is nothing to show that the
decedent was not drowned because he did not know how to swim, nor anthing to
show that, if there had been a life buo on board, the wife would have got in time,
that is, sooner than she got the small line, or if she had, that she would have
thrown it so that her husband could have seiGed itRB
/2) )2tF#or test is base& on %re%on&erance o# t'e e-i&ence /BKO c'ance).
/a) S(inner v. S0uare D Co. 3ecedent was electrocuted b his tumbler
machine. 6 alleged accident caused b defective switch produced b 3.
&ourt held that 6 did not show a genuine issue of factual causation, onl that
an accident took place. A( basis in onl slight evidence is not enough to show
causation in fact. %or is it sufficient to submit a causation theor that, while
30
factuall supported is, at best, just as possible as another theor. :ust
present substantial evidence from wich a jur ma conclude that :'1*
;I<*;2 T5(% %'T, but for 39s conduct, 69s injuries would not have
occurred.B
/b) <ucho'ic+ v. #.S. 3efendant negligentl prescribed an overdose of the drug
3anocrine, which allegedl caused plaintiff to develop primar pulmonar
hpertension, a fatal lung condition. &ourt held that causation ma be proved
b circumstantial evidence and that more probabl than not, 3anocrine
caused 69s illness.
(i) ;ower standard: AThe court can scarcel overlook the fact that the injur
which has in fact occurred is precisel the sort of ting that proper care on
the part of the 3 would be intended to prevent, and accordingl allow a
certain liberalit to the jur in drawing its conclusion.B
(ii) &ourt relied partl on +T(TI+TI&+ to support finding of causation.
iii) S2bstantial #actor test: rela/ing the burden of proof
/a) %'T >''3 61*&*3*%TCC I%(661'61I(T* .+* '! +.4+T(%TI(;
!(&T'1 T*+TCCC
/b) '%;2 (66;I&(4;* in conte/t of :.;TI6;* +.!!I&I*%T &(.+*+.
(i) *es'ic( v. City o$ Phi"ade"6hia 3ecedent collapsed in his home. W11
call was sent to private ambulance rather than cit9s medic unit. 3ela of
1Um1Us. 69s medical e/pert testified that this decreased the decedent9s
chances of survival. 6( adopts 1estatement9s position that negligentl
performing services necessar for protection of another9s person or things
imposes liabilit if actor9s failure to e/ercise reasonable care increases
the risk of harm. 6 is tring to prove a causal significance between 39s
failure to fulfill an affirmative dut to aid an alread imperiled victim.
i-) Lost o%%ort2nity
/3) ( few courts allow recover if 6 can show that it is more probable than not that 3
reduced 39s chance of avoiding harm. 2 triggers #or loss o# c'ance &octrine:
/a) 6laintiff must have diedD serious injuries are not enough.
/b) &ases of medical malpracticeD doctrine has not been e/tended beond
medical malpractice realm.
(i) 4a"con v. Memoria" &os6ita" 3ecedent died from a ver rare condition
after giving birth. &hances of surviving this condition would have been
3O.8Y if 3 doctor had inserted an I) line. &ourt finds that 6 can recover
for lost opportunitD loss of 3O.8 chance of survival was an injur in and of
itself. #1edefinition of injur not as death but as loss of chance for
survival.) !alcon court 1*+T1I&T+ ruling however I doesn9t sa that
depriving someone of chance of survival of less than 38Y would be
entitled to damages under loss of chance doctrine I '%;2 that above
38Y suffices. I! 2'. .+* ;'++ '! &5(%&* 3'&T1I%*, 3(:(>*+
L ;'++ '! &5(%&*.
Po"icy
(rguabl, lost opportunit doctrine over,deters and unjustifiabl leads to increase in malpractice
insurance.
-) M2lti%le Necessary9 S2##icient ,a2ses
/3) MULTI!LE SUFFI,IENT N NO )UTFFOR TEST : SU)STANTIAL FA,TOR TEST
/2) MULTI!LE NE,ESSAR* N T$ERE IS )UTFFOR ,AUSATIONII
/4) RS/4) 2D. M2lti%le S2##icient ,a2ses
31
/a) If multiple acts e/ist, each of which alone would have been a factual cause
under S $U of the phsical harm at the same time, each act is regarded as a
factual cause of the harm.
/>) O-er-ie<
/a) 39s carelessness does not have to be the onl conduct functioning as a but,
for cause for an accident for there to be liabilit in negligence. There ma be
cases where 39s carelessness was a but,for cause. 4ut,for each careless act
there would have been no accident and no injur to the 6.
1. %egligent omission: 'mitted precaution can be one of two but,for
causes of victim9s injuries.
(ii) 5nderson 3 negligentl generated a fire that merged with another fire of
unknown origin. The merged fires damaged 69s propert. The court held
that each fire was itself of sufficient magnitude to have damaged the
plaintiff9s I each fire was itself of sufficient magnitude to have reached the
69s propert and caused the damage. Thus each fire should be treated
as a cause of that injur, even though neither fire was a but,for cause of
the damage. 1ationale: 3 should not benefit from being luck enough to
have carelessl set a fire in the vicinit of another fire.
(iii) McDona"d v. .obinson Two cars collide and strike 6, who is injured.
&ourt found that but for such combined and concurrent negligent acts of
3s, injur would not have happened. Injur is deemed indivisibleD cannot
be distinguished which 3 caused which@?uantum of injur.
/b) To@ic torts: 'ften hard to prove causationD helps if there is a signature
illness.
(i) 5"dridge v. !oodyear Tire 2 .ubber Co: 6s were workers at tire
manufacturing plant where 3 supplied some of the chemicals used. 6s
allege 3 made to/ic chemicals that the were e/posed to, and that
e/posure caused or contributed to the diseases the developed. &ourt
found 6s failed to show that Aparticular, identifiable chemicalB from 3 was
legal cause of injuriesPcannot just show presence of such harmful
chemicals. >iven the presence of other chemicals interacting with each
other, effects of other factors contributing to 6s9 cancers and heart
diseases #genetics, lifestle, etc.), a reasonable fact finder could not find
39s chemicals definitel were the cause of 6s9 illnesses. 6 must show that
39s chemicals alone were sufficient to cause the harm. &5*:I&(;+
7*1* %'T (;'%* +.!!I&I*%T T' &(.+* T5* I%0.12 L !(I;+
+.4+T(%TI(; !(&T'1.
1. (rguments !'1 (;;'7I%> worker9s case to proceed:
a. 7e don9t want the workers to bear the burden
b. :oral culpabilit of 3efendant
c. 7e want to deter chemical suppliers from being negligent
d. >oodear might have been in position to provide information about its
chemicals
$. (rguments for the result, i.e. not holding >oodear liable:
a. 6ushing liabilit too far
b. Targeting of deep pockets as opposed to were culpabilit reall lies
c. 7orker9s compensation is available
d. 7eaker evidence of negligence and general causation evidence is
tenuous
-i) )2r&enFS'i#ting an& Alternati-e Liability
/3) RS/4) 25. )2r&en O# !roo#
32
/a) +ubject to +ubsection #b), the plaintiff has the burden to prove that the
defendant=s tortious conduct was a factual cause of the plaintiff=s phsical
harm.
/b) 7hen the plaintiff sues all of multiple actors and proves that each engaged in
tortuous conduct that e/posed the plaintiff to a risk of phsical harm and that
the tortious conduct of one or more of them caused the plaintiff=s harm but the
plaintiff cannot reasonabl be e/pected to prove which actor caused the harm,
the burden of proof, including both production and persuasion, on factual
causation is shifted to the defendants.
/2) O-er-ie<
/a) 7here two or more tortfeasors are negligent, but onl one could have caused
the harm to an injured third part, the tortfeasors are jointl and severall
liable even absent proof as to which one actuall caused the injur. +ummers
rule takes the onus with respect to proving actual causation off the 6 and
placing it onto each 3 to disprove that his carelessness was a cause of 69s
injur.
(i) REE:
1. !or plaintiff to rel on alternative causation, each of the possible
causers of injur must be joined as a part in the lawsuitD otherwise,
the person who actuall caused the harm might escape liabilit.
$. 39s have better access to information than 6.
3. %umber of 39s is limited.
(ii) Rationale: 7ithout this device, both defendants would be silent, and
plaintiffs would not recover. 7ith alternative liabilit, defendants will be
forced to speak and reveal the culpable part or face joint and several
liabilit. Thus, to use the alternative liabilit doctrine generall re?uires
that the defendants have better access to information than the plaintiff,
and that all possible tortfeasors be before the court. (lso, it is recogniGed
that alternative liabilit rests on the notion that, where there are few
possible wrongdoers, the likelihood that an one of them injured the
plaintiff is high, so it is fair to force them to e/onerate themselves.
(iii) .isting2is'e& from:
1. M2lti%le necessary ca2ses: $ or more careless are but,for causes of
69s injuries.
$. ,ons%iracy: 7hen two 3s plan to hurt 6D e/: one 3 shoots, the other
aides H abets.
3. ,oncert o# action: 7hen tortfeasors act jointl but does not re?uire a
plan to harm 6D separate acts of carelessness fused into single
course of conduct.
(iv) Summer v. Tice Two hunters, acting independentl of each other,
negligentl fired guns, onl one of which hit +ummers. &ourt holds both
hunters liable. A*ach is liable for the resulting injur t the bo, although no
one can sa definitel who actuall shot him. To hold otherwise would be
to e/onerate both from liabilit, although each was negligent, and the
injur resulted from such negligence.B
/4) Mar(et=share "iabi"ity Involving 3 or more defendants, esp. in products liabilit
cases. #%ot a robust doctrine I ver rarel successfull invokedC)
/a) Sinde"" v. 5bbott Laboratories 3s were manufacturers of 3*+, a generic,
defective drug that injured a large number of women while the were in utero.
4ecause the drug was generic, the victim usuall could not prove which of the
more than 18K manufacturers of the drug produced the pills that injured her.
&ourt held that even if the 6 did not join all the manufacturers in one suit, the
burden of proof was on each 3 to disprove that its drug caused the 69s injur.
33
(s to an 3 who could not disprove causation, the 6 could recover a Y share
of the relevant market for 3*+. national #rather than state) market share.
(i) :arket share liabilit re?s following factors:
1. (ll named 39s are potential tortfeasorsD
$. (ll 39s products are identical and share same defective ?ualities #Aare
fungibleB)D
3. 6 is unable to identif which 3 caused her injur through no fault of
her ownD
-. (ll possible 39s which created defective products during relevant time
are named.
/b) &ymo'it+ v. 1"i Li""y and Com6any In 1W-1, the !3( approved the anti,
miscarriage drug 3*+. The drug was generic and was sold b 3KK
companies, including 3. $K ears later, it was found 3*+ caused cancer in
users9 children. 7hen 3*+ victims, including 6 began suing, the had
difficult proving causation, since their mothers often did not know which
manufacturer9s 3*+ the had taken $K ears earlier. (t trial, 3 moved for
summar judgment, contending the true tortfeasor could not be identified.
5';3I%>: In 3*+ cases, an 3 manufactuer which participated in marketing
3*+ ma be held liable proportional to its market share of the national 3*+
market.
/c) S(i6'orth by Wi""iams v. Lead Industries 5ss;n, Inc Infant was
hospitaliGed for lead poisoning 3 times and house revealed presence of lead,
based paint. 6 could not identif the manufacturer of lead paintD onl when
the paint was made, sold or applied to home. &ourt did not find market,share
liabilit for $ reasons: 1) time period was far more e/tensive than the relevant
time period for 3*+ casesD $) 6aint not a fungible product #man different
formulae with varing ?uantities of lead).
Po"icy= Mar(et Share Liabi"ity
;ike most apportionment theories, market share liabilit is a compromise between full
compensation for victims and fairness for defendants, and is onl a partial success in both.
Arg2"ents in #a-or o# "ar;et s'are liability:
1) (ccident victims are entitled to redress regardless of whether the can establish who in a large
class of wrongdoers actuall is responsible for wrongdoingD
$) 3eterrence: allowing defendants to avoid liabilit could encourage the production of fungible
productsD
3) 7e should be striving to make tort law more collectivist. +ticking to strict causation logic is
actuall ver individualistic.
Arg2"ents against "ar;et s'are liability:
1) ( defendant manufacturer which is forced to a its percentage of market share, will, in the
aggregate, pa the fair amount. 5owever, this means that an one compan will often end of
paing partiall for injur actuall caused b another defendant9s 3*+. This result is necessar
under the sstem, because if defendant9s were allowed to disclaim liabilit in cases where the
could prove the plaintiff used another defendant9s 3*+, the would pa less than their market
share. 'n the other hand, victims are often under,compensated, since some manufacturers are
insolvent and the solvent manufacturers are not jointl and severall responsible for paing their
share.
$) 3emocratic pedigree: Imposing liabilit on all potential wrongdoers essentiall amounts to
ta/ing companies, which is the role of the ;egislature rather than the &ourts. &ourts do not have
the democratic authorit to distribute ta/es and are not well positioned to do so efficientl.
34
c) !ro@i"ate ,a2se
i) RS/4) 26 Li"itations on Liability For Tortio2s ,on&2ct
/3) (n actor=s liabilit is limited to those phsical harms that result from the ris;s that
made the actor=s conduct tortious.
ii) O-er-ie<
/3) ! "2st s'o< t'at t'e in12ry is so closely relate& to .?s careless con&2ct
t'at . s'o2l& be 'el& liable. ;iabilit will not attach unless the judge and jur
are satisfied that the breach caused the injur in a nonF#ort2ito2s "anner. Tests:
/a) Foreseeability9 Ris; R2le /LAW TO.A* N re#lecting RS/4) 26)
/b) 3irectness #rarel used)
iii) .irectness
/3) 3 liable for all conse?uences if his careless conduct is a direct cause of 69s injur
/a) In re (rbitration between 6olemis and !urness, 7ith H &. ;td.: +hip
chartered to 3. 7hen 39s crewmembers were unloading it, a plank was
dropped that caused a spark that led to a fire that burned down the ship.
*ven though the fire was not foreseeable, 3 held liable since the acted
negligentl b dropping the plank, which directl caused fire. That the
workers could not have foreseen that their carelessness in causing the plank
to fall would cause an e/plosion was deemed b the justice to be Airrelevant.B
#'verturned b 7agon :ound.)
i-) Foreseeability
/3) . is 'el& liable #or t'e conseG2ences o# 'is carelessness t'at co2l& be
reasonably #oreseen. ,ar&oPo: 7T'e ris; reasonably to be %ercei-e&
&e#ines t'e &2ty to be obeye&.8
/a) Wagon Mo2n& No.3: 39s ship #7agon :ound) spilled oil into the ba. 6
stopped H then resumed workD later a spark set oil on fire, burning down 69s
dock. &ourt found that no reasonable person could have foreseen that the
careless spilling of oil posed a risk of fire damage, so 3 was not liable.
/,ITE T$IS ,ASE FOR FORESEEA)ILIT* N !ROQIMATE ,AUSEII)
/b) !alsgra## -. Long Islan& Railroa& ,o.: ( passenger waiting for a train was
injured on a railroad platform after railwa emploees dislodged I from the
arm of another passenger whom the were negligentl helping to jump onto a
moving train I a package of fireworks. The fireworks e/ploded when the fell
on the tracks, and the shock from the e/plosion caused scales to fall on the 6.
&ardoGo for majorit analGes case in terms of dut and find 3 ;I1 has no
dut to her in this case. %egligence is not actionable unless it involves the
invasion of a legall protected interest, the violation of a right. The conduct of
the railwa official ma have been wrong to the man carring the package, but
was not a wrong in relation to 6.
>i? .octrinal test #or &2ty: *o2 "2st be a #oreseeable -icti" to be o<e&
a &2ty.
(ii) 3I++*%T: &ase turns not on issue of dut but on whether ;I1 pro/imatel
caused 69s injur. 69s damages were pro/imatel caused b actions of
the railroad9s emploees. &ourt should defer to the jur. (lso
acknowledges this is a polic decisionD there are few guidelines to go b
in a case like thisD so follow our common sense in looking at Aall things
consideredB.
/c) #nion Pum6 Co. v. 5""britton: 6ump catches fire at Te/aco station. (fter fire
is put out, 6 goes out to inspect something, slips on a pipe, and injures
herself. +he sues the pump compan for producing a defective pump. &ourt
rules for 3. There is no pro/imate cause when the careless act@omission has
run its course and finished: here, state of emergenc ended. A*ven if the
pump fire were in some sense a philosophic or but for cause of 69s injuries,
35
the forces generated b the fire had come to rest when 6 fell off the pipe
rack.B The circumstances surrounding 69s injuries are too remotel connected
with 39s conduct or pump to constitute a legal cause for her injuries.
-) Ris; R2le
/3) %egligent actor is legall responsible for harm that is #1) caused in fact b his
conduct, and #$) is a result w@in the scope of the risks b reason of which 3 is
found to be negligent. #1isk rule a more specific analsis: start b defining those
risks that made breach wrongful, then consider whether one of those risks has
been realiGed  narrow lens of in?uir. 6robabl find liabilit less often.)
/a) Petitions o$ the %insman Transit Co.: 4uffalo ship collisions. 0udge
!riendl holds that sometimes it is not unfair to assign liabilit for unforeseen
harms to 3 who has alread been found to have acted carelessl.
+pecificall: since 3 were alread subject to liabilit for lesser harms
foreseeabl caused b their negligence #like damaging the other ship that was
run into and ripped free so that it also floated downstream), it is perfectl
appropriate to add on liabilit for additional, highl improbable but potentiall
vast harms, like the propert damaged b the resultant flooding #after the
ships formed a kind of dam). *ssentiall, this argument sas that if an actor is
dut,bound to take precautions for the benefit of 6 against certain tpes of
harm, and his breach happens to cause other kind of harm, there is no reason
not to hold 3 liable for this other harm as well. +imilar to (ndrews in 6alsgraf,
!riendl suggests that pro/imate cause is at least partl dependent on polic
considerations.
/b) Metts v. !rig"a( >rehound, +6**3I%> passes in left lane swirling slush,
resulting in accident in right lane. 1isk rule: ( part that breaches a dut is
Aproperl liable onl with respect to those harms which proceeded from the
foreseeable risk or haGard that rendered its conduct negligent.B 3 not liable.
Throwing of slush not a harm within the risk foreseeabl created b
>rehound9s operation of bus at an e/cessive speed.
-i) S2%erse&ing ca2se
/3) Is 39s carelessness the pro/imate cause of 69s injur, even though between the
time of that carelessness and 69s injur there was wrongful conduct b a third
partF
/a) Test: if the third part9s actions were foreseeable, or the kind of harm 6
suffered was foreseeable  3 still liable, despite wrongful actions of a third
part.
(i) *ritton v. Wooten 6 lessor of building. 3 tenant who piled trash in the
back. !ire started in trash #arson not ruled out). &ourt #like 1estatement)
finds that the negligence of 3 is actionable as a contributing cause, even
if the immediate cause is the criminal #or careless) act of a third part. AIn
the present case whether the spark ignited in the trash accumulated ne/t
to the building was ignited negligentl, intentionall or even criminall, or if
it was trul accidental, is not the critical issue. The issue is whether the
movant can prove that the respondent caused or permitted trash to
accumulate ne/t to its building in a negligent manner which caused or
contributed to the spread of the fire and the destruction of the lessor9s
building. If so, the source of the spark that ignited the fire is not a
superseding cause under an reasonable application of modern tort law.B
-ii) !ro@i"ate ,a2se in a Stat2tory Setting
>-? *abbit v. S'eet &ome
/a) 0ustice +tevens9 view of pro/imate cause: !oreseeabilit.
/b) 0ustice '9&onnor #p.O): pro/imate cause is interchangeable with dut and is
related to fairness. A6ro/imate causation depends to a great e/tent on
considerations of the fairness of imposing liabilit for remote conse?uences.
36
B) .EFENSES
a) O-er-ie<
i) 7as that the law might deal with 69s negligence:
/3) Intentional torts: Ignore 69s negligence.
/2) ,ontrib2tory negligence: :ake 69s negligence a bar to 6 recovering.
(dvantages: efficienc, individualistic ethic, holding individuals responsible for
their own actions. %o resources to administer complicated apportionment of fault
and damages among parties. 6laintiff ma be the lowest cost avoider.
/4) A&"iralty r2le: *?uall divide responsibilit between 6 and 3 when both 6 and 3
are negligent, regardless of their degrees of fault.
/>) ,o"%arati-e res%onsibility: (llocate responsibilit between 6 and 3 based on
their relative degrees of fault. (dvantages: creates incentives for both plaintiffs
and defendants to avoid accidents jointl. (lso, people who are primaril
responsible for their own losses should be made to bear them.
ii) 5istoricall, the doctrine of contributor negligence barred negligent 6s from
recovering anthing from negligent 3s because the 6s also were negligent.
(ssumption of risk barred 6s from recovering when the had consented to the risks
that caused their injuries. +ince the 1WUKs, the doctrine of contributor negligence
has largel been replaced b comparative responsibilit, and this has had implications
for assumption of risk.
b) ,o"%arati-e Res%onsibility N Last "a1ority o# 12ris&ictions
i) 7hether 6 was negligent was determined using the same analsis used to assess
whether 3 was negligentD i.e. 3 must establish breach b 6, as well as actual and
pro/imate cause.
ii) 7hat is compared under comparative responsibilitF 7rongfulness of conductF
&ausationF
/3) 7hen there is onl one 3, 69s #a2lt clearl is compared onl to that 39s.
/2) In 5unt, the court holds that 69s negligence Aconstituted fort percent of the cause
of her injuriesB.
iii) 2 co"%arati-e res%onsibility regi"es
/3) !2re co"%arati-e res%onsibility regi"e: ( negligent 6 is allowed to recover
regardless of how much she is at,fault, although her recover is reduced to reflect
the degree to which she is at fault. !or instance, a 6 who is WWY at,fault can
recover 1Y of her damages from 3 #provided of course that 3 is negligent).
/2) Mo&i#ie& co"%arati-e res%onsibility: ( negligent 6 can recover onl if her
negligence does not e/ceed a certain threshold. +ome states prevent a 6 from
recovering if her negligence e?uals, or is greater than, 39s negligence. In these
states, 6 cannot recover is she is 8KY at,fault and 3 is 8KY at,fault. 'ther states
are more generous to negligent 6s and prevent them from recovering onl if their
negligence is greater than 39s. In these states, 6 can recover if she is 8KY at,
fault and 3 is 8KY at,fault, but not if 6 is 81Y at,fault and 3 is -WY at,fault. :ost
states have adopted modified comparative responsibilit.
/a) &omplications arise when there are multiple 3s, and the state has a modified
comparative responsibilit that prevents 6 from recovering if her fault reaches
a certain threshold. :ost modified comparative responsibilit states compare
69s fault to the combined fault of the 3s.
/b) !re-ention costs a la .odi 9achts (llocate responsibilit between 6 and 3
in inverse ratio their relative costs of prevention. In other words, the lower a
part9s prevention costs, the greater its share of responsibilit.
i-) #.S. v. .e"iab"e Trans$er: Tankers ran into sandbar and sued .+ for not having
sufficient lightsD .+ found $8Y liable H reliable found O8Y liable. &ourt refused to rel
37
on admiralt rule where parties divide damages, thus avoiding the e/pense and dela
of prolonged litigation and the concomitant burden on the courts. 7hile old rule is
easil applied, it ields ine?uitable results. ;iabilit should be allocated among the
parties proportionatel to the comparative degree of their fault.
-) &unt v. ,hio De6t. o$ .ehabi"itation 2 Correction: Inmate9s fingers were chopped
off in a snowblower machine. &ourt relied on 'hio9s modified comparative
responsibilit #between pure comparative responsibilit and contributor negligence):
6 is barred from recover if their actions were a greater cause of their injuries than
an acts of 3. 5ere 6 disregarded a potential haGard and failed to use common sense
when she inserted her hand in the chute of the snowblower I -KY responsible. 6
thus recovers UKY.
-i) *a"d'in v. City o$ ,maha: 6schotic episode of football plaer who decided not to
take his meds. Two cops who arrived didn9t follow procedure. 5e is shot and
paralGed. &ourt found that he is 88Y responsible and the are -8Y, so he cannot
recover. &ourt found that not taking his meds was his fault in this case.
-ii) S6ier v. *a(er 3 drove into 69s car, and since 6 was not wearing seatbelt, suffered
a broken leg. 3 argued that 6 would not have suffered serious injuries if she had work
seat belt. &ourt held that lack of seat belt was not a but,for cause of (&&I3*%T, onl
a but,for cause of I%0.12. 69s carelessness must contribute to bringing about the
accident that injured the 6 before it can be deemed comparative fault. #+ome courts
disagree I so long as 69s actions contributed to injur, the can be treated as
comparative fault.)
c) Ass2"%tion o# Ris;
i) (ssumption of risk is still available as a complete defense to a negligence claim but it has
been limited b the enactment of the comparative negligence statutes. 6 can assume risks
through words or b conduct.
/3) Rationale: 6s should not be able to recover when the are hurt b risks to which the
have consented. This contrasts with the basic intuition underling contributor
negligence and comparative responsibilit that a 69s own negligence should affect her
abilit to recover for injuries negligentl imposed on her.
ii) E@%ress Ass2"%tion o# Ris;
/3) 6 ma assume a risk b giving a release to 3, in writing or orall or through conduct.
/2) 7hen a 3 invokes a release given b a 6 as a defense, contract issues arise. !or
e/ample, 6 and 3 might argue about whether 6 freel consented to the release or
whether the release covered the risk that injured the 6. 6 also might argue that the
release is void as a matter of public polic.
/a) In determining whether a release is void for public polic, the underling issues
are whether the 6 made an informed choice to assume a risk. ( leading judicial
test for assessing whether a release is void against public polic is the multi,factor
test from Tunkl:
(i) 4usiness suitable for regulationF
(ii) 3 performing service that is of great importance to the public and often a
matter of practical necessit for some members of the publicF
(iii) 3 holds himself out as willing to serve an member of the public, or at least
an member meeting certain standardsF
(iv) 3ue to essential nature of the service, 3 has a decisive bargaining
advantageF
(v) 3 offers standardiGed adhesion contract and doesn9t allow people to bu
additional protection against negligenceF
(vi) 6urchaser puts himself or his propert under 39s controlF
38
/4) Jones v. Dresse". +kdiving case. 7aiver upheld, and 69s estate not allowed to
recover. 'ne consideration was certainl the fact the decedent had the option to pa
J8K instead of waiver his rights. !our factors considered in determining whether the
waiver was enforceable: #1) e/istence of a dut to the publicD #$) nature of the service
performedD #3) whether the contract was entered into fairlD #-) whether the intention of
the parties is e/pressed in clear and unambiguous language.
/>) Da"ury v. S=%=I, Ltd. +kiing accident case. 3 argues that skiing, like other
recreational sports, is not a necessit of life, so the sale of a lift ticket is a purel
private matter, implicating no public interest. 7aiver %'T upheld. 6ublic interest is
found #unlike skdiving case). A*/culpator agreements which defendants re?uire
skiers to sign, releasing defendants from all liabilit resulting from negligence, are void
as contrar to public polic.B
/a) 5igh number of salesD
/b) 39s are cheapest cost avoiders and in best place to keep accidents to the
minimum level possible. 39s have e/pertise and opportunit to foresee and
control haGardsD
/c) &reate incentive for 3 to maintain premises.
iii) I"%lie& Ass2"%tion o# Ris;
/3) 6rimar Implied (ssumption of 1isk
/a) 6s should not be able to recover because the assume risks inherent in an
activit. !or e/ample, a recreational soccer plaer should not be able to recover
from a fellow plaer for an accidental kick because such kicks are inherent in
plaing soccer.
(i) Mur6hy v. Stee6"echase 5musement Co:. 6 boarded a &one Island
amusement ride A!lopperB. 6 fell off and broke kneecap. &ardoGo held that
69s claim was barred because 6 had assumed the risk of being injured: A'ne
who takes part in such sport accepts the dangers that inhere in it so far as
the are obvious and necessar, just as a fencer accepts the risk of a thrust
b his antagonist or a spectator at a ball game the chance of contract with the
ball.B
(ii) Smo""ett v. S(ating Deve"o6ment Cor6. ( woman injured while ice skating
sued the operator of the rink, complaining that the lack of guardrails and the
carpeted floor surrounding the ice caused her injuries. &ourt held for the
+kating 3evelopment &orp. on basis that +mollett Afull understood the risk of
harm to herself and voluntaril chose to enter the area of risk. +he thereofre
implicitl assumed the risk of injur.
/2) +econdar Implied (ssumption of 1isk
/a) 6s should not be able recover even if the 3 is negligent because 6 has knowingl
assumed the risk of 39s negligence. .nlike in cases where primar implied
assumption of risk is invoked, the 3 usuall is negligent in secondar implied
assumption of risk cases.
/b) +econdar implied assumption of risk covers man of the same situations as
contributor negligence once did and comparative responsibilit does now.
/4) Mon( v. Virgin Is"ands Water 2 Po'er 5uth.: 3ecedent worked at construction site
and was electrocuted when beam touched e/posed wires that were known to all.
Euestion: In eliminating contributor negligence, did )irgin Islands eliminate implied
assumption of riskF &ourt holds that elimination of contributor negligence eliminated
secondar implied assumption of risk, %'T primar implied assumption of risk. +ince
:onk9s behavior constituted primar implied assumption of risk, he could not recover.
Po"icy
39
EQ!RESS ASSUMTION OF RIS: +hould people be allowed to contract out of negligence liabilit in
the first placeF In product liabilit, companies are not allowed to do so. +hould doctors be able to
contract out of medical malpracticeF 3octors should have incentive to take the utmost care, doctors
could under,invest in careC 6otential ine?ualit of information can determine decision. If people
contract out of medical malpractice liabilit and then get hurt I that burden could get passed on to the
stateC *thical issues related to creating a two,tier health,care sstemF
!OSNER: (ssumption of risk: keep e/press assumption of risk because of respect for freedom of
contract
!RIMAR* IM!LIE. ASSUM!TION OF RIS: 7hen a 3 successfull invokes primar implied
assumption of risk it is often possible to e/plain the outcome in the case in terms of other factors, for
e/ample on the grounds that 3 didn9t breach the re?uisite standard of care or didn9t owe 6 a dut. !or
instance we might conclude that 3 is not liable in the soccer e/ample because 3 didn9t breach the
standard of care e/pected of soccer plaers b accidentall kicking a fellow plaer. The possibilit of
e/plaining outcomes in primar implied assumption of risk cases in terms of a lack of negligence b 3
or no,dut raises the ?uestion of whether primar implied assumption of risk is a necessar doctrine.
IL. STRI,T LIA)ILIT*
T'e Roa& Not Us2ally Ta;en
Strict Liability
1) 39s action is the actual and pro/imate &(.+* of
69s harm.
2) 3efenses of comparative responsibilit and
assumption of risk !(I;.
3) O-er-ie<
a) T'e baseline co""on la< regi"e o# tort liability is negligence. %egligence predominates
in modern,da tort law but there are pockets of strict liabilit. 7hen it is a workable regime,
because the haGards of an activit can be avoided b being careful, there is no need to switch
to strict liabilit. +ometimes, however, a particular tpe of accident cannot be prevented b
taking care but can be avoided, or its conse?uences minimiGed, b shifting the activit in
which the accident occurs to another locale, where the risk or harm of an accident will be less,
or b reducing the scale of the activit in order to minimiGe the number of accidents caused b
it. 4 making the actor strictl liable I b dening him in other words an e/cuse based on his
inabilit to avoid accidents b being more careful I we give him an incentive, missing in a
negligence regime, to e/periment with other methods of achieving the same goal.
b) W'at is strict liability(
i) 7hile negligence re?uires showing 3 was at,fault, under strict liabilit 3 is liable without
fault. &onse?uentl, a 3 subject to strict liabilit often is said to act at his peril.
c) ELEMENTS
i) ,AUSATION: 39s action still must be the actual and pro/imate cause of 69s harm. In
addition, defenses such as assumption of risk also ma appl.
ii) A)NORMALL* .AN+EROUS A,TILIT* /RS/2) an& /4): (lthough 1lands provides a
rudimentar test for when strict liabilit should be imposed, toda when courts are
deciding whether or not to impose negligence@strict liabilit, the are likel to turn to test
stated in +econd 1estatement I abnormall dangerous activit.
#1) 2 ey G2estions: #8 of these U factors can be reduced to two factors)
40
#a) Is the activit highl dangerous L 3oes the activit create Aa foreseeable and
highl significant risk of phsical harm even when reasonable care is e/ercised b
all actorsBF,
#b) Is Athe activitB Anot one of common usageBF
#c) ,riticis" o# stan&ar&: 0ust because an activit is common does not mean it isn9t
risk. In fact, people tend to downpla risks that are present in their da,to,da.
&ommonalit should not necessaril be the deciding factor of whether or not to
regulate a risk. 3' 39s defenses failF
#d) RS/2) 2K )= . an& :. Abnor"ally .angero2s Acti-ities. U factors to be used in
deciding whether an activit is abnormall dangerous and therefore should be
subject to strict liabilit. This multi,factor balancing test is widel invoked,
including in Indiana 5arbor, +iegler, <lein and :iller. The U factors are:
#i) e/istence of a high degree of risk of some harm to the person, land or chattels
of othersD
#ii) likelihood that the harm that results from it will be greatD
#iii) inabilit to eliminate the risk b the e/ercise of reasonable careD
#iv) e/tent to which the activit is not a matter of common usage:
#v) inappropriateness of the activit to the place where it is carried onD and
#vi) e/tent to which its value to the communit is outweighed b its dangerous
attributes.
&) Rationale
i) .eterrence9costFinternaliPation: ( negligence standard will induce actors to take
reasonable care. +trict liabilit ma prompt them to do more. !or e/ample, in response to
strict liabilit, 3s ma reduce their dangerous activities, not just engage in them using
reasonable care.
ii) +reater co"%ensation #or acci&ent -icti"s:
#1) For: :ore accident victims probabl get compensated under strict liabilit than
negligence because victims of negligent and non,negligent 3s can get compensation
under strict liabilit. .nder a negligence standard, onl victims harmed b negligent
3s can recover. In fact, some argue that negligence became the prevailing standard
in tort law in the nineteenth centur when the ..+. was industrialiGing to shield
industr from lawsuits that might have hindered economic e/pansion.
#$) (ssuming the funds available for accident compensation are fi/ed, victims ma get
more under strict liabilit than negligence. 4ecause strict liabilit eliminates the need
to show negligence b 3, strict liabilit ma reduce the costs of administering
compensation and therefore increase the amount of mone available to compensate
accident victims.
#3) Against: 'n the other hand, strict liabilit might lead more accident victims to seek
compensation #because the face lower costs in getting compensation).
&onse?uentl, it might be necessar to spread the Afi/ed compensation fund pieB
among a larger number of accident victims, resulting in more individuals getting
compensated but each receiving something less than the smaller number of accident
victims compensated under negligence.
iii) Fairness: 3s engaged in highl dangerous activities ma be imposing non,reciprocal risks
on others from which onl 3s benefit. It is not fair to allow 3 engaged in these activities to
impose such non,reciprocal risks on others.
i-) LossFs%rea&ing: /In&iana $arbor= Siegler conc2rrence): 3s engaged in highl
dangerous activities ma be better,positioned than 6s to spread the costs of these
activities among the public at large #b passing on the costs of these activities to
consumers). 'f course, whether 3s engaged in highl dangerous activities are better,
positioned to spread the costs of their activities than their victims depends on the identit
of the 3s and the victims, and ma var from case to case.
41
-) !roble"s o# %roo#: /lein= Siegler): +trict liabilit ma be appropriate when it is
impossible for the 6 to establish negligence b 3 because the accident destroed relevant
evidence. Imposing strict liabilit when 6s face problems of proof ma increase the
compensation available to accident victims, and deter actors in situations where a
negligence standard might not.
e) W'en &oes strict liability a%%ly( T'res'ol& tests #or t'e a%%lication o# strict liability
i) .y"ands v. 4"etcher #&ontroversial *nglish case decided in 1TUU) 3 constructed a
reservoir on land separated from 69s collier b intervening land. :ines, under the site of
the reservoir and under part of the intervening land, ad been formerl workedD and the 6
had, b workings lawfull made in his own collier and in the intervening land, opened an
underground communication between his collier and the old working under the reservoir.
7hen 39s reservoir was filled, the water flowed b the underground communication into
69s mines. !acts did not satisf the technical re?uirements of either trespass or nuisance.
5';3I%>: . liable #or t'e &a"age beca2se one <'o= #or is o<n %2r%oses brings
2%on 'is lan&= anyt'ing li;ely to &o "isc'ie# i# it esca%es= "2st ;ee% it at 'is %eril=
an& i# 'e &oes not &o so= is %ri"a #acie ans<erable #or all t'e &a"age <'ic' is t'e
nat2ral conseG2ence o# its esca%e. ;ater the 5ouse of ;ords limited this broad
statement to Anon,naturalB uses of the land as distinguished from Aan purpose for which it
might in the ordinar course of enjoment of the and be used.B
ii) Losee v. Coe S. *uchanan 39s were trustees and agents in +aratoga 6aper &ompan,
whose steam boiler e/ploded without fault on their part, causing injur to buildings and
other personal propert of 6. 5';3I%>: 1efusal to follow 1lands based on public polic
argument. 39s not liable because the do not have an absolute dut to keep things upon
their land at their perilD rather the merel have a dut to take all reasonable and prudent
precautions in order to keep it in, but no more. 1.;*: No one can be "a&e liable #or
in12ries to t'e %erson or %ro%erty o# anot'er <it'o2t so"e #a2lt or negligence on
t'eir %art.
iii) Turner v. *ig La(e ,i" Co. 3 constructed large artificial earthen ponds into which the
ran the polluted waters from oil wells. 7ater escaped from these ponds and polluted
plaintiff9s grass lands. 5';3I%>: Negligence is a %rereG2isite to reco-ery. T'is case
is also &isting2is'e& #or" Fletc'er -. Rylan&s beca2se 2se o# lan& on .?s %art <as
7nat2ral8R i.e. or&inary an& necessary. 6ropert rights are not absolute, people are a
part of societ and propert rights include@allow others to use our propert in a wa.
%eighbors have a reciprocal relationship re propert.
i-) Lubin v. Io'a City 6 brought action against Iowa &it seeking damages for injuries
sustained when a cit water main broke, flooding the basement of 69s store and
damaging merchandise stored there. 5';3I%>: !olicy arg2"ent: ,ity is liable
beca2se it is neit'er 12st nor reasonable t'at t'e city engage& in a %ro%rietary
acti-ity can &eliberately lea-e a <ater "ain 2n&ergro2n& beyon& ins%ection an&
"aintenance 2ntil a brea; occ2rs. The risks from such a method should be borne b
the water supplier who is in a position to spread the cost among the consumers who are in
fact the true beneficiaries of this practice and of the resulting savings in inspection and
maintenance costs.
#) ,URRENT STAN.AR.: Abnor"ally .angero2s Acti-ities
i) !ro&2ct92se "2st be IN$ERENTL* .AN+EROUS : ,an ris; to %ersons or %ro%erty
be eli"inate& by t'e e@ercise o# reasonable care(( #also consider who is cheapest
cost avoider)
#1) Indiana &arbor *e"t .. Co. v, 5merican Cyanamid Co. 3 manufactured li?uid
acrlonitrile #flammable, highl to/ic and possibl carcenogenic) that was loaded into
a railroad tank car and transported to %ew 0erse. ( ?uarter of the acrlonitrile
leaked on the wa. 5';3I%>: %o compelling reason to move regime to strict liabilit.
0udge 6osner held that the accident was not caused b the inherent properties of
acrlonitrileD if a tank car is carefull maintained the danger of a spill of acrlonitrile is
negligible. (crlonitrile is far from being the most haGardous among haGardous
materials shipped in high volume. 4esides, liabilit does not hinge on who is better
42
able to absorb@distribute cost, (%3 3 was manufacturer not the shipping compan.
+hipping compan is cheapest cost avoider.
#a) 1ebuttal: In environmental law, liabilit is imposed on man plaers for
contaminated sites, and cost of recover of site. It could make sense to increase
risks for all plaers involved to provide more incentives address the harm.
#$) Mi""er v. Civi" Constructors, Inc. 6 was injured when a stra bullet ricocheted during
the course of firearm target practice in a nearb gravel pit and caused him to fall from
a truck. 5';3I%>: The discharge of firearms is not an ultra,haGardous activit which
would support strict liabilit. 7hF 1) The risk of harm to persons or propert, even
though great, can be eliminated b the e/ercise of reasonable care. $) .se of
firearms is a matter of common usage and the harm posed from their misuse rather
than from their inherent nature alone. 3) The target practice is of some social utilit to
the communit, the weighs against declaring it ultra,haGardous where the activit was
alleged to have been performed b law enforcement officers to improve their skills in
the handling of weapons.
ii) )UT
#1) Sieg"er v. %uh"man: Tank trailer carring thousands of gallons of gasoline
disengaged and catapulted off a freewa for unknown reasons. 1O,r old &arol 5ouse
died in the flames of a gasoline e/plosion when her car encountered a pool of spilled
gasoline. 5';3I%>: Transporting gasoline as freight b truck along the public
highwas involves a high degree of risk of harm and injurD it creates dangers that
cannot be eliminated b the e/ercise of reasonable care. Thus the activit of hauling
gasoline calls for the application of principles of strict liabilit.
iii) Inter-ening acts "2st 'a-e been 2n#oreseeable to ri& . o# liability.
#1) %"ein v. Pyrodyne Cor6.: 69s were injured when an aerial shell at a public fireworks
e/hibition went astra and e/ploded near them. 5';3I%> 1: 3 strictl liable for
injuries because fireworks displas are abnormall dangerous as defined in the
1estatement: the are not activities of Acommon usageB, create a high risk of personal
injur or propert and no matter how much care protechnicians e/ercise, the cannot
entirel eliminate the high risk inherent in setting off powerful e/plosives such as
fireworks near crowds. 5';3I%> $: Inter-ening acts o# t'ir& %arties ser-e to
relie-e t'e &e#en&ant #ro" strict liability #or abnor"ally &angero2s acti-ities
only i# t'ose acts <ere 2n#oreseeable in relation to t'e e@traor&inary ris;
create& by t'e acti-ity. #1ationale: encourage those who conduct abnormall
dangerous activities to anticipate and take precautions against the possible
negligence of third persons. )
Po"icy 7 Products Strict Liabi"ity
Ric'ar& !osner: unlikel that 6osner would favor a significant e/pansion of strict liabilit in the law.
%egligence law is more efficient and should predominateD re?uires that liabilit onl be imposed when
benefits e/ceed the costs. #Indiana 5arbor case I strict liabilit should be limited to cases where
negligence is insufficient to control the risks).
Mats2&a: more likel to impose strict liabilit in broader range of circumstances. 6eople should take
more care generall, and this would facilitate recover for accidents.
7ho would win and who would lose with e/pansion of strict liabilitFF (ccident victims could benefit
due to lower burden of proof and elimination of some administrative costs of providing relief to 6, but
onl to the e/tent that manufacturers did not pass on cost of e/panded negligence standard to
consumers.
7hat would further the rationales of strict liabilit #outline) more I administrative action or strict liabilit
through tortF 3o we want juries to judge how risk a product is or would that determination be better at
43
the hands of administrative agenciesF 0uries could be too influenced b plaintiffs who have been
injured and lose sight of people who benefit from product, whereas agencies ma be better positioned
to weigh the costs and benefits of particular products.
IL. !RO.U,TS LIA)ILIT*
1) OLERLIEW
Ele"ents o# !ro&2ct Liability
1. 6 must suffer an injur.
$. 3 must be selling a product. #%'T sale of
services)
3. 3 must be a commercial seller.
-. The defect must have been the actual and
pro/imate cause of 69s injur.
8. 7hen 3 sold the product, the product must
have been defective.
a. :anufacturing: 6roduct is alleged to have
deviated from the manufacturer9s
specifications.
b. 3esign
i. %ew 0erse: 3efect must be
unreasonabl dangerous #&epeda).
ii. &alifornia: 3efect judged b consumer
e/pectations or risk utilit #+oule).
ZZ6rima facie case of strict products liabilit: includes intended or foreseeable use of productF
a) 2 categories o# clai"s
i) Man2#act2ring &e#ect: 6roduct is alleged to have deviated from the manufacturer9s
specifications.
ii) .esign &e#ect: &epeda unreasonable danger test or +oule9s consumer e/pectation@risk
utilit alternative.
b) Rationale /Escola)
i) :anufacturers owe consumers a particularl demanding obligation to be vigilant of
product safet
ii) :anufacturers are in best situated to take precautions, and therefore should be given
strong incentives to take such precautions #deterrence rationale)
iii) :anufacturers are best situated to spread the costs of accidental injuries caused b their
products #compensation,insurance rationale)
i-) 1esponsibilit for injur stems from having marketed a product that caused injur,
regardless of negligence #causationLstrict liabilit rationale)
-) )ictims9 entitlement to compensation should not depend on the nature of the conduct that
caused it #compensation e?ualit rationale)
-i) 3isparities in power in litigation concerning evidence and procedure #litigation,structure
rationale)
-ii) If two was of structuring the law lead to the same result, the more open and direct
structure is preferable #judicial candor rationale)
c) .e#enses
44
i) &omparative responsibilit
ii) (ssumption of risk
iii) 6roduct misuse #in some jurisdictions).
i-) 6re,emption
#1) *fforts b 3s #such as medical device manufacturers and drug makers) to argue that
products liabilit and other state tort law claims against them are pre,empted b
federal legislation@regulation. In !ebruar $KKT, the +upreme &ourt held T,1 that such
claims are pre,empted against medical device makers for devices for which the !3(
has granted pre,market approval. The &ourt9s decision was based on the pre,emption
clause in the :edical 3evice (mendments of 1WOU.
&) E-ol2tion o# strict %ro&2cts liability
i) MacPherson v. *uic( Motor Co. #%ew 2ork 1W1U): 'vercame the rule of contractual
privit as a limit on dut, but 6 was suing in negligence. 3efendant was a manufacturer of
carsD sold a car to a retail dealer, who then sold the car to 6. 7hen 6 was in car, it
suddenl collapsed and caused injur to 6, due to a defective wheel. 3 had not inspected
the car so 6 charged 3 with negligence. 5';3I%>: In favor of 6. The presence of a
known danger, attendant upon a known use, makes vigilance a dut. 7e have put aside
the notion that the dut to safeguard life and limb, when the conse?uences of negligence
ma be foreseen, grows out of contract and nothing else. %'T*: 5';3I%> is limited to
the liabilit of manufacturers of finished products, who put products on the market to be
used without inspection b their customers. (lso, there must be actual knowledge of a
danger, not merel possible, but probable.
ii) 1sco"a v. Coca Co"a *ott"ing Co. #&alifornia 1W--): Tranor9s concurrence established
the foundations for strict products liabilit but the majorit found for 6 based on negligence
using res ipsa. 6 was injured when a bottle of &oca &ola broke in her hand. :ajorit held
that although it was not clear whether the e/plosion was caused b an e/cessive charge
or a defect in the glass there was a sufficient showing that neither cause would ordinaril
have been present if due care had been used. !urther, 3 had e/clusive control over both
the charging and inspection of the bottles. +o, all the re?uirements necessar to entitle 6
to rel on the doctrine of res ipsa lo?uitur to suppl an inference of negligence were
deemed present.
#1) 1ebuttal: &oke didn9t have e/clusive control over bottle I for last 3U hours before
accident, bottle was in restaurant. (lso, there is a probabilit that accident could have
happened without negligence on the part of &oke. (ccident could be result of
defective glass. .nclear whether accident could onl have occurred due to 3s
negligence.
iii) !reenman v. 9uba Po'er Prods., Inc. #&alifornia 1WU3): 6 was seriousl injured b
when a power tool I the A+hopsmithB I malfunctioned. &alifornia +upreme &ourt held
manufacturer strictl liable on a theor of liabilit that relied neither on proof of fault nor on
warrant, enshrining Tranor9s concurrence in *scola law. Tranor held that manufacturers
are strictl liable in tort when an article the place on the market, knowing that it is to be
used without inspection for defects, proves to have a defect that causes injur to a human
being.
i-) Cronin v. J.*.1. ,"son Cor6. #&alifornia I later ?ualified b 4arkerCC): ( baker salesman
was driving a bread deliver truck when he had an accident. The impact broke an
aluminum safet hasp which was located just behind the driver9s seat and designated to
hold the bread tras in place. The bread tras struck 6 in the back and hurled him through
the windshield. <e ?uestion: does 6 have to establish 4'T5 a defect and that the defect
was unreasonabl dangerousF 5';3I%>: %o. &ourt determines that collisions are
reasonabl foreseeable so hasp should have been designed to withstand them. 1e?uiring
proof of a product9s unreasonable danger would impose too great a burden on consumers.
#+trateg to characteriGe AdefectB I do not assess reasonableness of manufacturer9s
choice of design.) :aking strict product liabilit more like negligence would undermine
45
protection afforded to consumers. There should not be manufacturing defects that are not
dangerous enough to warrant compensation.
Po"icy 7 1vo"ution o$ Products Liabi"ity
Mac%'erson: 'ld privit rule was ultimatel deemed to be based on a harshl individualistic
conception of law that privileged the right of business owners to use contracts to limit their potential
obligations to those the might injure, particularl consumers and emploees. 4 elevating freedom of
contract to a paramount virtue, the critics maintained, courts enabled businesses to avoid
responsibilit for the mounting toll of injuries associated with the industrial revolution. %ew
:ac6herson holding was hailed b critics as an enlightened decision that recogniGed changing
economic and political realities, including the fact that manufacturers and users of products
increasingl interacted with one another through intermediaries.
Escola: (s handicrafts have been replaced b mass production, the close relationship between the
producer and consumer of a product has changed. :anufacturing processes, fre?uentl valuable
secrets, are ordinaril either inaccessible to or beond the ken of the general public. The consumer no
longer has means enough to investigate for himself the soundess of a product, even when it is not
contained in a sealed package, while manufacturers build confidence b advertising and marketing
devises. The manufacturer9s obligation to the consumer must keep pace with the changing
relationship between themD it cannot be escaped because the marketing of a product has become so
complicated as to re?uire one or more intermediaries. &ertainl there is greater reason to impose
liabilit on the manufacturer than on the retailer who is but a conduit for a product that he is not himself
able to test.
2) .ESI+N .EFE,T ,LAIMS
a) Ce6eda v. Cumber"and 1ng;g Co. #%ew 0erse): 7orkman operating a palletiGing machine
without its guard lost four fingers in the course of operating the machine. 6 argued that the
machine was defectivel designed from a safet standpoint, in that the guard was re?uired to
be removed fre?uentl in the normal course of the operation of the machine and should have
been e?uipped with an electronic interlock mechanism. 3 emphasiGed that guard could onl
be removed with tools, there were safet trainings, manuals , here was negligence on user9s
end I &epeda was trained, etc. 5';3I%>: %ew trial I overturns previous ruling 69s favor.
&epeda rejects approach in &ronin and adopts the approach of 1+ -K$( I 6 must show that
product was unreasonabl dangerous. (lso, contributor negligence is a defense to product
liabilit claims. %ew 0erse uses risk utilit testCCC 3ean 7adeFF
i) ,E!E.A STILL +OO. NC la< on t'e test #or &esign &e#ect= b2t not <it' res%ect to
&e#enses to strict liability. %ew 0erse +upreme &ourt subse?uentl converted the
defense of contributor negligence into comparative negligence and held that comparative
negligence is not a defense to a products liabilit claim when Aan emploee in an
Qindustrial setting9 is injured while using in a foreseeable manner an evidentl dangerous
products supplied b his emploerB.
ii) E*: If foreseeable misuse is negligent, one can show defective design (%3 contributor
negligenceCCC
iii) RS/2) >K2A. S%ecial Liability o# seller o# %ro&2ct #or %'ysical 'ar" to 2ser or
cons2"er #1WU8)
#1) 'ne who sells an product in a defective condition unreasonabl dangerous to the
user or consumer or to his propert is subject to liabilit for phsical harm thereb
caused to the ultimate user or consumer, or to his propert I!
#a) The seller is engaged in the business of selling such a product, and
#b) It is e/pected to and does reach the user or consumer without substantial change
in the condition in which it is sold.
#$) The rule stated in +ubsection 1 applies although
#a) The seller has e/ercised all possible care in the preparation and sale of his
product and
46
#b) The user or consumer has not bought the product from or entered into an
contractual relation with the seller.
b) *ar(er v. Lu"" 1ng;g Co. #&alifornia): 6 was injured at a construction site while operating a
high,lift loader manufactured b 3. 6 claimed that his injuries were pro/imatel caused b the
alleged defective design of the loader. 5';3I%>: !irst, there is be liabilit for both a roduct9s
intended and reasonably foreseeable uses. ( product ma be found defective in design, so as
to subject a manufacturer to strict liabilit for resulting injuries, under either of t<o alternati-e
tests:
i) ,ons2"er e@%ectations: !irst, a product ma be found defective in design if the plaintiff
establishes that the product failed to perform as safel as an ordinar consumer would
e/pect when used in an intended or reasonabl foreseeable manner.
ii) Ris; 2tility: +econd, a product ma alternativel be found defective in design if the
plaintiff demonstrates that the product9s design pro/imatel caused his injur and the
defendant fails to establish, in light of the relevant factors, that, on balance the benefits of
the challenged design outweigh the risks of danger inherent in such design.
iii) S2""ary: There is no Aunreasonabl dangerousB re?uirement, but there are certain
hurdles that 6 must overcome. Barker departs from spirit of Cronin without departing from
letter of &ronin, b creating obstacles to recover for strict products liabilit.
#1) 6ro 3: 6 must prove a defect, and then 3 can defend the defect. There is ambiguit
as to how strenuous this initial burden actuall is.
#$) 6rof 6: 4arker test is slightl pro,plaintiff, however, b giving a fair amount of latitude
to 6 as far as which strateg is more beneficial to their case. +econd test of 4arker
recogniGes the limited knowledge of 6, and thus gives 6 the advantage.
c) Sou"e v. !enera" Motors Cor6. #&alifornia) &ar accident. 6 alleged both a manufacturing
(%3 a design defect #placement of bracket and frame was defectivel designed.) ;egal issue:
7as it an error to use ordinar consumer e/pectations testF 5';3I%>: AThe consumer
e/pectations test is reserved for cases in which the everda e/perience of the product9s
users permits a conclusion that the product9s design violated minimum safet assumptions,
and is thus defective regardless of e/pert opinion about the merits of the designB #TTT). 0ur
should onl be given choice of using consumer e/pectations test in cases where technical
knowledge is re?uired and consumers reall don9t have an e/pectation.
i) FOR So2le test: +oule arguabl crafts an admirable compromise position, under which
most design defect cases will be adjudicated under a risk,utilit standard while the
consumer e/pectations test will be available in a small share of cases. &onsumer
e/pectation test is actuall pro,plaintiff because plaintiffs generall have low e/pectations
I and are thus precluded from suing
ii) Against So2le test: This limitation of consumer e/pectations test necessaril favors 3 I
more resources to hire e/perts, more knowledge of products, etc.
d) ,;*rien v. Mus(in Cor6. 5';3I%>: (bove ground swimming pools are inherentl risk, so
the should not e/ist at all. 0udicial precedent in the case of e/tremel dangerous products
where there ma not be a safer alternative design I for a judge or jur to declare that the
product is of so little utilit that it cannot be sold at all.
i) 1ebuttal: If there is an active market@constituenc for a product, there ma be a strong
case for not prohibiting product.
e) LITI+ATION STRATE+*
i) ,onsi&er cons2"er e@%ectation= ris; 2tility AN. inten&e&9#oreseeable 2se
Po"icy 7 Tests $or Products Liabi"ity
W'at b2r&en s'o2l& ! bear to %ro-e &esign &e#ect: cons2"er e@%ectation test= ris;F2tility test=
or bot'(
Cons2"er e@%ectations test
47
(dvantages #based on warranties in contract): *asier to administer because relies on jur9s intuitions,
cheaper to litigate, no ine?ualit in knowledge between parties. 7eaknesses: 69s don9t alwas know
what e/pectation to have, alternative designs, in man scenarios, 69s simpl don9t have an
e/pectation. Test is e/tremel amorphous, unstableD its hard to define what a consumer e/pectation
is. &onsumer e/pectations test eliminates balancing of risks and benefits that is critical to design,
leading 39s to overemphasiGe risks than benefits.
Ris; Utility test
(dvantages: ( cost benefit analsis forces a more disciplined decision,making process.
3isadvantages: Test ma ignore some ver important risks or benefits that are not monitiGable
#underrepresented risks and benefits). (lso, analsis can ignore distributional concerns I who will
have access to productF
IL. .AMA+ES
1) 6 must prove her damages, in addition to proving
liabilit.
2) Thin skull rule applicable to all torts: I! T26* of injur
was foreseeable, 3 is liable no matter the *[T*%T of
the injur
1) E++SELL SULL RULE: Tort#easor ta;es 'is -icti" as 'e #in&s 'i"
a) T'in s;ill r2le: A7hen the tortfeasor has alread injured another through his careless
conduct, he cannot complain that the amount of damage he has caused 6 is greater than what
would reasonabl have been e/pected because 6 had a hidden vulnerabilit.B (t a minimum,
the eggshell skull rule prohibits the defendant from arguing that the jur is barred from
awarding compensation for the unforeseeable portion of plaintiff9s damages. This prohibition is
in keeping with the wide discretion traditionall granted jurors in setting damages awards.
i) Smith v. Leech *rain 2 Co. Ltd Iron,worker ma have been careless and was
accidentall burned with molten iron, which eventuall caused cancer and death. 3 is
liable for the tpe of injur that is foreseeable. &ourt held that Athe test is not whether
these emploers could reasonabl have foreseen that a burn would cause cancer nd that
he would die. The ?uestion is whether these emploers could reasonabl foresee the tpe
of injur he suffered, namel, the burn.B
2) STAN.AR. OF RELIEW
a) (wards are onl reviewed for e/cessiveness, based on whether the verdict Ashocks the
conscienceB or results from Apassion, prejudice or other improper motiveB. &ourts ma
compare jur awards to awards in other similar cases. These standards are meant to set a
high barrier against judicial second,guessing of jur awards. +uch deference is grounded in
the notion that, apart from readil ?uantifiable out,of,pocket items such as medical bills and
repair bills, the task of assigning a dollar value to a given plaintiff9s injuries is ?uintessentiall
one of judgment.
i) %enton v. &yatt &ote"s Cor6: 5otel sk walks crash, severel injuring $;. ( ppellate
court upheld the jur verdict on damages. +eemed to be e/amining whether the trial court
abused its discretion. AThere is no e/act formula to determine whether a verdict is
e/cessiveR The ultimate test is what fairl and reasonabl compensates 6 for the injuries
sustained. In making this determination consideration is given to the nature and e/tent of
the injuries, diminishing earning capacit, economic conditions, plaintiff9s age, and a
comparison of the compensation awarded permitted in cases of comparable injuries.B
ii) A6unitive damages ma properl be imposed to further a +tate9s legitimate interest in
punishing unlawful conduct and deterring its repetition. In our federal sstem, +tates
necessaril have considerable fle/ibilit in determining the level of punitive damages that
48
the will allow in different cases. :ost +tates that authoriGe e/emplar damages afford
the jur similar latitude, re?uiring onl that the damages awarded be reasonabl
necessar to vindicate the +tate9s legitimate interests in punishment and deterrence. 'nl
when an award can be characteriGed as grossl e/cessive in relation to these interests
does it enter the Gone of arbitrariness that violates the 3ue 6rocess &lause of the 1-
th

(mendment. !or that reason, the federal e/cessiveness in?uir appropriatel begins with
an identification of the state interests that a punitive award is designed to serve. 7e
therefore focus our attention first on the scope of [ +tate9s interests in punishing [ and
deterring it from future misconduct.B
4) NOMINAL .AMA+ES
a) .suall specified b law as J1 I +erve as an acknowledgement of the tort, notwithstanding
the absence of an compensable loss flowing from it.
i) Jac0ue v. Steenberg &omes *ven though 6 had denied him permission, 3 took mobile
home over 69s land. 69s land was not damaged because it was covered with snow. 6 was
awarded J1 nominal compensator damages and J1KK,KKK punitive damagesD damage
award was upheld on appeal.
>) ,OM!ENSATOR* .AMA+ES
a) !2r%ose: 1estore 6 to status ?uo ante. 0uries often are instructed to award Ajust and
reasonable compensationB in light of their findings as to the injuries 6 has suffered and will
suffer because of 39s tortious conduct.
i) Econo"ic &a"ages:
#1) 6ast and future loss of income
#$) 6ast and future medical e/penses
#3) 6ast and future homemaking assistance etc.
ii) NonFecono"ic &a"ages /%ain an& s2##ering):
#1) &ompensate for intangible harms of injur #controversial). :ost sstems distinguish
between temporar and permanent disabilities.
#a) Temporar disabilities: *ntitle 6 to reimbursement for medical e/penses and a
percentage of lost wages for the period of recover.
#b) 6artial permanent disabilities: &an be treated differentl, depending on whether 6
suffers loss of a discrete bod part.
#c) Total permanent disabilities: 6 can recover a percentage of lost wages #often $@3)
for the length of the disabilit. 4ecause worker9s compensation benefits are paid
out se?uentiall, rather than in a lump sum, there is usuall no need to project
future lost income, as is the case in the award of tort damages.
iii) $o< &o yo2 %ro-e co"%ensatory &a"ages(
#1) E@%erts: economist on past earnings and e/pected future earnings, 6rofessor sas
she cannot finish law school, 3octor sas this is what future costs are likel to be for
med care, pschologist, etc. 1eceipts , these are m bills so far.
B) !UNITILE .AMA+ES
a) 7E@e"%lary8 &a"ages: "eant to &eter an& %2nis'. (warded in addition to compensator
damages when 3 acted with wanton disregard or conscious@deliberate indifference #3oes not
re?uire actual malice, but need more than carelessness.)
i) RS /2) BKK: (ll forms of reckless indifference are distinguished from mere carelessness b
the fact that the acts in ?uestion not onl pose an unreasonable risk of phsical harm to
another, Abut also that such risk is substantiall greater than that which is necessar to
make his conduct \careless.]B
49
ii) 7anton disregard: ;ower threshold: 6 has to show that 39s conduct posed a grave danger
of harm to others and a reasonable person would know the danger posed.
iii) &onscious@deliberate indifference: 3 is aware: #1) his conduct creates a risk of harm to
othersD and #$) risks of his conduct are substantiall greater than necessar to make it
carelessness.
iv) &ollateral source rule: Traditionall, jur was not informed as to whether 6 was also
compensated b a third part #like insurance) or was likel to be compensated b another
part. This has changed in some jurisdictions, especiall for med,mal cases.
#1) /ationa" *y=Products, Inc. v. Searcy &ouse Moving Co. Truck crashes into mobile
home and two cars. 5olding: (n award of punitive damages is justified '%;2 where
the evidence indicates that the defendant acted wantonl in causing the injur or with
such conscious indifference to the conse?uences. :alice ma be I%!*11*3.
b) No brig't line r2les= only +UI.ELINES
i? State 4arm v. Cam6be""
#1) %o bright line rules I AThe precise award in an case must be based upon the facts
and circumstances of the defendant9s conduct and the harm to the plaintiff.B
#$) 4.T >uidelines for award of punitive damages:
#a) 1eprehensibilit of the defendant9s conduct
#i) 3id it cause economic or phsical harm, phsical being worseF
#ii) 3id conduct evidence a wanton disregard for health H safet
#iii) 3id conduct target people who were financiall vulnerableF
#b) 1atio: compensator @ punitive damages
#i) +ingle,digit multipliers more in line with due process protections. 4ut
depends on facts of the casePma be appropriate for egregious conduct.
0ustice <enned: A!ew award e/ceeding a single,digit ratio between punitive
and compensator damages, to a significant degree, will satisf due
processR ( -,to,1 ratio often will be close to the line of constitutional
improprietR 5igher rations ma be appropriate when a particularl
egregious act has resulted in onl a small amount of economic damages,
where an injur is hard to detect or where the monetar value on non,
economic harm might have been difficult to determineB
#c) &ompare award to awards given b other juries, other courts, and civil fines
ii) Mattias v. 5ccor 1conomy Lodging: 4edbugs case. &ourt held that the damage award
was %'T e/cessive and did not deprive 39s of due process of law because there was
sufficient evidence of Awillful and wanton conductB within the meaning that the Illinois
courts assign to the term. &onstitutional limits take the form of general AguidepostsB rather
than fi/ed amounts. 7hile the 1(TI' harm to plaintiff@award is 3O.8, under State Farm, if
underling injur is hard to detect '1 if behavior is egregious but economic harms are
minimal, ratio can be greater. The application of such guideposts for determining whether
an award of punitive damages is unconstitutionall large re?uires lower court judges to
consider a given award in light of the reasons for which punitive damages are awarded in
the first place:
#1) +tandard principle of penal theor that punishment should fit the crimeD
#$) 3efendant should have reasonabl notice of the sanction for unlawful actsD
#3) +anctions should be based on the wrong done rather than on the status of the
defendant I a person is punished for what he does, not for who he is.
#-) 7eak but plausible argument for 3 in :attias: 6unishing hotel for harms to other
customers not before the court, when man of them are from other states, essentiall
imposes sanction for behavior relevant in other states, which is contrar to 4:7
ruleR 4ut on the other hand, conduct being punished is entirel within the state.
0udgment forces hotel to change its behavior within the state.
50
c) ,onstit2tional Li"its on !2niti-e .a"ages: +ubstantive #+tate !arm, :attias, 4:7) and
procedural #:orris)
#1) *MW o$ /orth 5merica v. !ore: Euestion: 3id the $ million punitive damages award
to 6 e/ceed the constitutional limitF 2es. It is fine to consider other people harmed
7IT5I% the state but not outside state.
#a) 3egree of reprehensibilit of the nondisclosure not to level of $ million
#i) 6urel economic harm is less reprehensible than reckless disregard for the
health and safet of others.
#b) 3isparit between the harm or potential harm suffered and punitive damages
award
#i) */emplar damages must bear a Areasonable relationshipB to compensator
damages.
#ii) &onstitutional line is not marked b a simple mathematical formula. ( higher
ratio of compensator@punitive damages ma be supported if a particularl
egregious act has resulted in onl a small amount of economic damagesD '1
in cases in which the injur is hard to detect or the monetar value of non,
economic harm might have been difficult to determine.
#c) 3ifference between this remed and the civil penalties authoriGed or imposed in
comparable cases.
ii) Phi"i6 Morris Euestion: 3oes the &onstitution9s 3ue 6rocess &lause permit a jur to
base a punitive damage award in part upon its desire to punish the defendant for harming
persons who are not before the court #i.e. victims whom the parties do not represent).
5olding: %o. +uch an award would amount to a taking of ApropertB from the defendant
without due process. #&ontrar to 4:7 ruling.)
#1) The 3ue 6rocess &lause prohibits a +tate from punishing an individual without first
providing that individual with Aan opportunit to present ever available defense.B 2et a
defendant threatened with punishment for injuring a nonpart victim has no
opportunit to defend against the charge.
#$) To permit punishment for injuring a nonpart victim would add a near standardless
dimension to the punitive damages e?uation. 5ow man such victims are thereF 5ow
seriousl were the injuredF
#3) *vidence of harm to other victims is onl relevant to a different part of the damages
e?uation I reprehensibilit.
#-) .ISSENT: #7man agrees) :ajorit relies on weak distinction between taking 3
rd

part harm into account in order to assess the reprehensibilit of the defendant9s
conduct I which is permitted I from doing so in order to punish the defendant
AdirectlB I which is forbidden. 7hen a jur increases a punitive damages award
because injuries to 3
rd
parties enhanced the reprehensibilit of 39s conduct, the jur is
b definition punishing t$ main rationales:
#8) Morris restricts bot' #2nctions o# %2niti-e &a"ages:
#a) 3eterrence: :orris restricts circumstances where damages can serve as
deterrence. +pecific and general deterrence. 5arder for punitive damages to
serve a >*%*1(; deterrence function. 'ne could argue that :orris is a
procedural decision, onl relevant for jur instructions. It does seem though that
:orris cuts back on punitive damages. 3efendant is onl deterred from repeating
wrongful act towards the 6 again, not towards other potential 69s.
#b) 6unishment: 5arder to effectuate after :orris. &ase sas ou can9t punish for
harm to non,parties, onl for harm to plaintiffs in case.
A) !OLI,* ,ONSI.ERATIONS RE .AMA+ES
a) ,o"%ensation #or !SS /intangible 'ar"s)
51
i) !'1: 4ut there is a strong argument that not, or inade?uatel, compensating for non,
economic damages will not full internaliGe accident costs onto wrongdoers and leave
plaintiffs without an solace for the pain accidents cause them. 3efenders also argue that
there has been no such increase and that the jur is the appropriate institution to assign
values to intangible injuries.
ii) (>(I%+T: &ritics of current sstem argue that the impossibilit of translating pain and
suffering into dollar amounts gives jurors carte blanche to award an amount the feel is
appropriate in light of their smpath for the plaintiff and antipath for the defendant. #(s a
result damages are too large and arbitrar.) The also claim that such awards have risen
substantiall over the last $K ears, despite the fact that a couple of states have capped
pain and suffering damages.
b) In&i-i&2aliPe& I"%le"entation Met'o&
i) !'1: 3amage awards are calculated on an individual basis. This individualiGed method
of assessing them has advantages since it allows damages to be tailored to individual
circumstances and injuries.
ii) (>(I%+T: 4ut individualiGed damage awards also lead to the arbitrariness,
unpredictabilit, and discrimination in damage awards. Tort law should emplo damage
schedules in which damages would be based on specific criteria #such as the age of the
victim etc). (nother alternative is to standardiGe damages b giving ever person with the
same injur the same award, regardless of individual circumstances. +etting a national
standard for punitive damages would alleviate forum,shopping, reduce interstate
e/ternalities #everone paing for e/cessive punitive award in one state).
c) C2ry 'as e@cessi-e &iscretion N "a;es %olicy
i) &ritics of punitive damages argue that the flout the boundaries separating crime from tort,
public law from private law, and punishment from compensation. 7hen jurors award
enormous punitive damages, the are acting like legislators or judge, for in realit the are
creating and appling public polic.
&) .es%ite relati-ely rare a%%lication= S$A.OW EFFE,T
i) 6unitive damages are onl warded in perhaps -,WY of cases. 7hen awarded, punitive
damages tend to be given to plaintiffs asserting claims for intentional wrongs that toda
would fall under the headings of assault, batter, etc. 5'7*)*1, to sa that punitive
damages are rare is not necessaril to sa that the are unimportant. Indeed, even a
handful of punitive awards I particularl awards of enormous magnitude I can have the
potential to affect the trial and settlement of man other cases.
e) Wealt' o# . is consi&ere& in setting &a"age a<ar& N &eterrenceI
i) &ourts have uniforml deemed evidence of a defendant9s wealth to be relevant to the
jur9s determination of the siGe of an punitive ward. (s e/plained in :athias, this is not
because wealth persons deserve greater punishment, but because an actor9s wealth
ma have factored into its decision to behave as it did, and because a larger award ma
be necessar to send a meaningful AmessageB to a wealth individual or entit. &oncern is
that well to do persons or entities will happil treat compensator damages as the price to
be paid for securing the ArightB to injure others.
f) S'o2l& <e 'a-e %2niti-e &a"ages at all since <e alrea&y 'a-e cri"inal an&
a&"inistrati-e la<( 3o we still need this mechanism for deterring and punishing potential
offendersF
i) .seful additional mechanism for where regulator@prosecutorial mechanisms fail.
ii) 7aste of societal resources.
g) W'o s'o2l& get %2niti-e &a"ages( Licti" or state(
i) )ictims: :ust give incentive to victims to bring the case
ii) +tate: ( large portion of punitive damages should go to +tate.
D) WRON+FUL .EAT$ A,TS
52
a) S2r-i-al clai"s9action
i) 4rought b estate administrator against 3 or 39s estate for claims accident victim might
have brought if the victim had lived.
ii) &ompensates estate for an harm victim suffered up to the moment of death due to 39s
wrong #such as medical e/penses, loss of income, and pain and suffering including
Aconscious pre,fatal injur fear and apprehension of impending deathB.)
b) Wrong#2l &eat' clai"s
i) S%eci#ie& bene#iciaries /#a"ily "e"bers) sue for harms the suffer from wrongful killing
of decedent, based on wrong done to decedent. The famil members inherit the defenses
that would bear claims b the deceased.
ii) 1ecover was limited to pecuniar losses #such as loss of income support from decedent)
although pecuniar losses might include loss of guidance, care and companionships L
Aloss of societB. There is no compensation paid to estate for decedent9s loss of life itself.
3 does not have to internaliGe costs of depriving people of jo of living.
#1) /e"son 3amages ma be recovered for loss of service and companionship where
the have a monetar value, while damages for mental suffering or bereavement of
ne/t of kin are not recoverable. #4eneficiaries who don9t suffer man pecuniar losses
can9t recover much.)
iii) If a <or;er is killed on the job, surviving famil members are not automaticall ?ualified for
compensation. 1ather the ma receive benefits onl if the are economic dependents of
the deceased. Eualified dependents are usuall entitled to regular paments e?ual to a
fi/ed percentage of the deceased9s lost wages until the period of dependenc ends. ;oss
of consortium and emotional distress are not compensable. In the absence of an
economic dependents, the emploer is often liable onl for funeral e/penses.
i-) !olicy concern: Re%ro&2cing ineG2ality
#1) */perts who testif as to lost future earnings generall rel on statistics as to how
much a person with the same education, background, and traits could have e/pected
to earn before and after suffering the injuries in ?uestion.
#a) !(I1%*++F +o two careless drivers, each of whom causes identical injuries to
his victim, ma end up paing ver different damage awards depending on the
economic prospects of the victim.
#b) I%*E.(;IT2F To the e/tent certain groups have been subject to past
discrimination in hiring and pa, these stats reproduce the effects of that
discrimination. Thus, for e/ample, if women have historicall been paid less for
doing e?uivalent work to men because of discrimination, statistical evidence of
what a particular female plaintiff would have earned will reflect the lower rate of
pa. 6erhaps courts should attempt to adjust for biases in statistics b re?uiring
the presentation of data on the future earning of all workers in a given field,
regardless of race, gender or other characteristicsF
T) LI,ARIOUS LIA)ILIT* #form of strict liabilit)
a) 'ne person held liable for another9s negligence. .suall an emploer, but can also be:
someone lends their car outD partner in a partnership.
#1) 6arents are usuall not vicariousl liable for the actions of their children, but can
themselves be liable for carelessness in supervision of the child. #e/ception for
parents who allow kids to drive)
b) Rationale: )icarious liabilit ensures +':*'%* to take responsibilit and be careful.
c) Res%on&eat S2%erior
i) If an emploee commits a tort while acting within the scope of his emploment, emploer
ma also be held liable. #(pplies to all torts.)
#1) *mploer ma be both directl liable for its own negligence #hiring an emploee the
should have checked out, improperl supervising, etc.) and vicariousl liable for the
53
emploee9s negligence  emploer is jointl and severall liable to 6 with the
tortfeasor emploee
#$) 1ationale: *mploer more likel to be able to compensate victim. *mploer ma be
better positioned to get insurance.
ii) RS Ele"ents:
#1) Is the tortfeasor an emploeeF
#a) Is the emploee subject to the control of the emploer #as compared to an
independent contractor)F +hould be more than control over the general manner
of the work carried out.
#$) 7as the activit within the scope of emplomentF
#a) *mploer liable for intentional torts of emploee if the were foreseeable or
AcharacteristicB of the emploment.
#i) Ira S. *ushey 2 Sons v. #nited States: &oast >uard sailor on break
screwing around with the drdock of 6 after on,shore leave and lots of
drinking. .+> also held liable because the activit was characteristic.
#ii) Taber v. Maine: 3rinking %av serviceman on weekend leave crashes into
another car. .+> found liable because such drinking was characteristic of the
emploment.
#b) 'ld test for Ascope of emplomentB , 3oes activit further the emploer9s
businessF
#i) 3etour: slight deviation from the e/pected course or route an emploee would
take in the course of doing his job. *mploer will likel be liable for thisP
reasonabl foreseeable that this would happen is ke ?uestion.
#ii) !rolic: emploee deviates so far from his emploment obligations that he is
deemed to be on his own business, and is outside the scope of his
emploment.
#3) 1+ not applicable to in&e%en&ent contractors. 7hen distinguishing between
emploees and independent contractors, look to nature of the emploer,emploee
relationship, and the degree of control that emploer had over the worker. (lso, if the
emploer was itself negligent in dealing with the independent contractor, that ma give
rise to emploer liabilit.
6) COINT LIA)ILIT* AN. ,ONTRI)UTION
a) If 39s are held jointl and severall liable, 6 can collect damages awarded from either one or
both in the proportion that 6 chooses. If 3 ultimatel pas more than his allotted percent of
fault, he ma bring a claim for restitution against the other 3 #action for contribution).
b) 0H+; liabilit is invoked in 2 classic scenarios:
i) Indivisible harm: Impossible to apportion the amount of harm between 3s
ii) 39s acted in concert
c) 4oth 0H+; and res ipsa are in#or"ationF#orcing: 3 is in the best position to find who is trul
#or most) at fault, so 0H+; pressures 3 to do this.
d) 7hat to do with orphan sharesF 3ifferent was to allocate them:
i) 6 is limited to recovering from 3 onl amount for which 3 is liable.
ii) 3s can be held 0+ liable and re?uire remaining 3 to pa all the damages.
iii) If 6 is -KY at fault, 31 is -KY at fault and orphan share of insolvent 3$ is $KY. +o 6 and
3 must +5(1* the orphan share.
#1) .avo v. .ogatnic(: :ed,mal case for brain damage to 6 #bab). '4,>2% negligent
in bab9s deliver, and pediatrician misdiagnosed after birth. Injur deemed
indivisible, but apportioned fault between two doctors TK,$K. 3 #pediatrician) argues
that he should not have to pa more than $KY of damages because jur found him to
be responsible onl for $KY of injur. ;egal argument: TK,$KY allocation of fault
means that the injur 7(+ divisibleCC If jur could allocate fault, how can one sa that
54
the child9s injuries are indivisibleF &ourt responds that there are $ separate issues
being decided. 7hen allocating fault, the jur was onl judging the moral
reprehensibilit of each doctor9s actions, rather than an assessing of who9s acts
caused more or less damage to child. Injur is still indivisible.
#$) *encivenga v. J.5.M.M., Inc. 6 is punched b unknown person in 39s nightclub. 3
found liable. &ourt also found that cannot apportion harm to unknown or unnamed
part. 3 was in the best position to find the unknown assailant, and cannot now tr to
weasel out of damages because of someone else.
#a) +ome jurisdictions, unlike in 4encivenga, cannot collect damages that are
considered to be the responsibilit of some unknown defendant.
IL. !OLI,*
1) Ai"s o# tort la<: The torts process is a human institution designed to accomplish certain social
objectives.
a) ,o"%ensation9 correcti-e 12stice: 'ne objective is to ensure that innocent victims have
avenues of legal redress, absent a contrar, overriding public polic. This reflects an
overarching purpose of tort law: that wronged persons should be compensated for their
injuries and that those responsible for the wrong should bear the cost of their tortious conduct.
i) ,riticis": There is arguabl little to be >(I%*3 in man torts actions. &ivil liabilit is
different from restitution in contract, where law prevents 3 from benefiting from wrong
committed. ;ikewise it is not clear that damages can make the injured part AwholeB again.
This is an ade?uate metaphor for out,of,pocket costs, but not for notoriousl hard to
?uantif and profound losses like loss of enjoment of life. !urther, juries are told to give
what is ^just and reasonable^, not that which will make whole
b) Retrib2tion:
i) 6unish people for wrongs committed.
c) .eterrence:
i) 3issuade vigilantism.
ii) 3eter unwanted conducts b encouraging efforts to avoid particular harms and take
reasonable precautions.
d) .istrib2ti-e 12stice:
i) :ost sa that tort law should not be used to promote distributive justice. 'n the other
hand, the premise of tort law is that resources are distributed fairl in societ.
e) Tort law also has an e"%o<ering9&e"ocratic function and &i&actic9e@%ressi-e #2nction I
whereb individuals get societal recognition of certain values and vindicate moral rights,
personal dignit etc.
#) Reg2lation o# be'a-ior
i) Ot'er "ec'anis"s o# reg2lating con&2ct
#1) >overnment #administrative) regulation
#$) 7orker9s compensation
#3) +ubsidies
#-) %orms
g) Establis'ing social nor"s
2) A&-antages9 &isa&-antages o# tort
a) It is not clear that the tort sstem is more effective to regulate behavior than other
mechanisms. !or e/ample, with regards to efforts to limit greenhouse gas emissions,
government regulation is b far the preferable tool.
55
b) E##iciency: large chunk of JJ compensation goes to attorne9s fees. Torts sstem is actuall
an e/tremel e/pensive, inefficient sstem to compensate people.
c) .iscri"inatory stan&ar&s: 7ho is the Areasonable personB in tort lawF 1aceF >enderF
1eligionF ;anguageF (geF 7hat are the characteristics of the reasonable personF To what
e/tent are individual9s personal characteristics factored into an e/amination of their standard
of careF
i) Toda9s reasonable person standard historicall was stated as the Areasonable manB
standard. >ender and culture specific standards are not used because the would
encourage discrimination in the law. *ven if people of different genders@races@cultures
have different refle/es and behaviors, everone is served b recognition of a uniform
reasonable person standard. %egligence law should not recogniGe a culturall or gender
relative standard of care.
4) Negligence -s. strict liability
a) 7h is negligence the predominant standardF +hould strict liabilit be imposed more oftenF
7hich standard forces people to take responsibilit for their situationF
i) FOR negligence: %egligence standard based on idea that we must make choices about
who to compensate and what risks are reasonable I encourage efficienc and
responsibilit. 4esides, holding everone strictl liable for conse?uences of their actions
would turn everone into a mutual insurance compan and also discourage people from
opening businesses and being entrepreneurial #would overl inhibit activit).
ii) FOR strict liability: %egligence standard means some injured parties are not going to be
able to recover for failing to prove negligence.
>) !olicy c'ange reco""en&ations
• (bilit to spread the cost I should not factor into determination of liabilit 4.T should be
considered when assessing damages.
• .eat' clai"s &a"ages r2les re%ro&2ce ineG2ality
Tort re#or" refers to the idea of changing the rules applicable to the law of tort. Tort deals with
compensation for wrongs and harm done b one part to another=s person, propert or other protected
interests #e.g. reputation, under libel and slander laws). The most contentious area of tort, and the
area on which tort reform advocates focus is personal injur. The levels of compensation for accidents
var greatl between different jurisdictions, but there has been a general upward trend in the awards
for compensation. The ideas for reform var greatl between different jurisdictions also, and inevitabl
depend on the rules and practices of the countr.
In the .nited +tates tort reform has become a contentious political issue. This is particularl true in the
medical malpractice arena, where it has been argued that the high costs of compensation awards are
passed through to health care consumers. .+ reform advocates have proposed, among other things,
limiting the number of claims, and capping the awards of damages. In &ommonwealth countries, the
tort reform debate has taken a ver different track. In 1WO$ %ew Vealand introduced the first universal
no,fault insurance scheme for all accident victims. This is based on the principle that anone suffering
personal injur, regardless of whether the can point to a negligent part who caused their loss, ma
receive state benefits from the government run (ccident &ompensation &orporation. The goal is to
achieve full e?ualit in compensation, while reducing costs b removing the process from courts where
litigation is hugel e/pensive. In the 1WOKs (ustralia \1] and the .nited <ingdom drew up similar
proposals for similar no,fault schemes.\$] 4ut the efforts and recommendations amounted to little, and
with changes of government the reform agenda were abandoned.
Salient iss2es
( number of recurrent issues can be identified in the debates about tort reform, though in man cases,
these issues are particular to the .nited +tates. To understand wh tort ma need reform, it is first
necessar to understand how tort works. Tort seeks out those responsible for harm to others, usuall
56
on the basis of some fault. !or instance, a supermarket ma not have been safe enough for its
customers to shop in b failing to mop up a spillage of oghurt on the floor.\3] (n emploer ma have
failed to properl fence off some dangerous machiner, which e/poses workers to risk of injur.\-] (
manufacturer of ginger beer ma have allowed a bottle it sells to have become contaminated, which
has made a consumer ill.\8] (nd so on. &riticisms of the tort sstem are usuall that it costs too much.
This ma either be the cost of compensation paments themselves, or that, granted that compensation
is a worth goal for the injured, litigation is an inefficient method of giving compensation. In 4ritain, for
instance, it has been argued that T8p is spent on litigation for ever _1 of compensation paid #although
this figure is disputed, as there is no eas method for accounting for transaction costs particularl
when pre,litigation settlements are considered). In contrast, the social securit sstem costs Tp or 1$p
for ever _1 delivered.\U]
T'e co"%ensation %rinci%le
The starting point, is that the classical purpose of tort is to provide full compensation for harm, where a
good case can be made. This is known under the ;atin phrase restitutio in integrum #restoration to
original state). In other words, the idea underpinning the law of tort is that if someone harms someone
else, the should make up for it. &ompensation should be, in the words of ;ord 4lackburn in
Livingstone v. Rawyards Coal Co,\O]
^that sum of mone which will put the part who has been injured in the same position as he would
have been if he had not sustained the wrong for which he is now getting his compensation or
reparation.^
The trouble is, that where people=s bod parts and minds are concerned, where somebod loses a leg
in a workplace accident, or suffers nervous shock in a road traffic collision, it is difficult to ?uantif the
injur that the suffer. There is no market for severed legs or sanit of mind, and so there is no price
which a court can readil appl in compensation for the wrong, as the can in cases concerning
damage to propert or economic loss. +o what happens instead is that courts develop a scale of
damages awards, benchmarks for compensation, which relate to the severit of the injur. !or
instance, in the .nited <ingdom, for the loss of a thumb, one will get _1T,KKK, for an arm _O$,KKK, for
two arms _18K,KKK, and so on.\T] In addition, claimants ma win awards of damages for the pain and
suffering the endured as a conse?uence of the injur. 4ut while a scale ma be consistent, the award
itself is argued b some to be arbitrar. 6rofessor (tiah has written that one could halve, or double, or
triple all the awards and it would still make just as much sense as it does now.\W] 3amages ma be
awarded to compensate for the loss of future income. ( tpist who loses an arm suffers a loss to his
future job prospects and in the case of fatal accidents, financiall dependent relatives ma be
compensated for the loss of mone that their loved one would have provided.\1K] These heads of the
award can be ade?uatel predicted in mone terms, and #outside the .nited +tates) the most often
constitute the largest element of the award. There is however also a case to sa that people should
not receive such full compensation for income losses, because it could be said entrench an e/isting
and ine?uitable distribution of wealth in societ.\11]
!2niti-e a<ar&s an& 12ries
( trial b jur is unusual in almost all countries for non,criminal cases
(nother head of damages that can be awarded is called ^punitive damages^, or sometimes ^e/emplar
damages^. The word ^punitive^ means punishment and the word ^e/emplar^ implies that damages
should ^make an e/ample^ of the wrongdoer. The purpose of such damages are twofold: to deter
wrongful conduct b other actors, and to serve a normative function of e/pressing social shock or
outrage at the defendant=s actions.
In most jurisdictions, punitive damages are not available. The are considered contrar to public polic,
because the civil justice sstem in man countries does not have the same procedural protections as
the comparable criminal justice sstem. Therefore, allowing punitive damages would have the effect of
punishing actors for wrongful conduct without allowing them the ordinar procedural protections that
are present in a criminal trial. The fear is that punitive damages encourage a vindictive, revenge
seeking state of mind in the claimant and societ more generall. In the .<, Rookes v. Barnard \1$]
limited the situations in which punitive damages can be won in tort actions to where the are e/pressl
57
authorised b a statute, where a defendant=s action is calculated to make profit, or where an official of
the state has acted arbitraril, oppressivel or unconstitutionall.
In the .nited +tates, punitive damages are available, although awards of punitive damages remain
e/traordinaril rare in tort cases. 5owever, when punitive damages are awarded, the sums can
sometimes be ?uite staggering. !or instance, in !illip "orris #S$ v. Boeken\13] the .+ +upreme
&ourt refused to overturn a J8K million award in damages to the famil of a smoker who died of
cancer. 4ut originall, before the appeals court had limited it, the jur in the trial had awarded a
whopping J3 billion in punitive damages.\1-]
It is argued b some that e/traordinar damage awards in the .nited +tates are a result of the jur
sstem. 5owever, multi,million dollar punitive damage awards have also been awarded b judges in
man cases where the defendant=s conduct was particularl egregious. In federal courts in the .nited
+tates, the right to a jur trial is protected in most civil cases b the +eventh (mendment of the .nited
+tates &onstitution. :an state constitutions have similar counterparts that protect the right to a jur
trial in state court proceedings. In man countries, particularl in continental *urope, juries are not
used at all, even in criminal cases, because of the cost of protracted trials necessitated with a jur
present and confidence in judicial impartialit. In the .nited <ingdom, juries are available in criminal
cases, and for tort cases involving defamation, false imprisonment and malicious prosecution. *ven in
these three limited areas of tort there have been growing concerns about juries= role. In particular the
disparit between awards in defamation cases #which invariabl concern celebrities, politicians and the
rich) and awards for personal injuries has been growing. 7h should the vindication of reputation of a
famous person, it is argued, be given a higher value than the loss of somebod=s arm who is not
famousF Inevitabl, the awards climb, in a wa that a fi/ed sstem of damages under judicial scrutin
does not allow. :oreover juries are unseasoned with a dail e/posure to tragic accidents in tort
litigation. 7hen confronted with their first case the ma be shocked and outraged, which inspires a
willingness to teach the wrongdoer #through a big damages award) that ^tort does not pa^.\18] 7hen
the problem is viewed from a social and economic perspective, it could be argued that juries are not a
good polic option.
'n the other hand, most federal judges in the .nited +tates, for instance, come from a ver narrow
segment of societ. The are all lawers b trade, the all earn in e/cess of J1KK,KKK per ear, and
the tend to have been educated at elite colleges and universities. The majorit of federal judges are
also white, male, and over the age of fift. Therefore, their abilit to mold damages awards to evolving
norms of social conduct ma be weaker than that of a jur. !or instance, multi,million dollar punitive
damage awards against tobacco companies could be said to reflect an evolving societal attitude
towards corporate wrongdoing, which la,jurors appl in their decisions. 0udges ma not share those
evolving corporate attitudes, but rather e/ist within an isolated social subclass which is itself drawn
from the ranks of (merica=s societal elite.
,o"%ensation c2lt2re
(nother issue which arises is whether the courts are the appropriate forum for seeking redress for
personal injuries. In the .nited <ingdom, those who see the tort sstem as encouraging frivolous
claims often use the slogan ^compensation culture^ to deride the state of law which encourages
people to ^have a go^ at filing a law suit, so that the might win lots of mone. In fact, most personal
injuries cases never reach court. The are settled between insurance companies. This is especiall so
for road accidents #where no fault compensation schemes operate, and drivers mostl have third part
insurance), and workplace injuries #where emploers are usuall re?uired to have insurance, and will
get compensation on the injured worker=s behalf), the fora which account for the majorit of personal
injuries. +ettlements are made ^in the shadow of the law^, so the amounts paid will usuall approach
or appro/imate what would be an e/pected award in court, if a credible threat from a claimant=s
solicitor is seen to e/ist. 4ut in cases, for instance, involving product liabilit, occupiers= liabilit or
medical negligence, where the claimant must !imself get the mone out of the opposing corporation,
including perhaps his 5ealth :aintenance 'rganisation #^5:'^, in the .+), the personal e/pense,
time and an/iet of making a claim and seeing it through can be daunting.
The flip side is that if cases do in fact reach the point of trial, the costs are likel to be large. 'n top of
paing e/pensive legal fees, the court process comes from public funds. 0udges, their staff and the
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court administrators must be paid for through ta/ation.
There are also concerns about the use of class actions. This is where a group of claimants band
together to bring similar kinds of claims all at once. These do not e/ist in most countries, and what will
usuall happen is that one case will be funded as a ^test case^, and if judgment falls in the claimants=
favour the tortfeasor will settle remaining claims.\1U] . &lass actions are justified on the basis that the
ensure e?ual treatment of similarl situated victims, avoid the risk of conflicting judgments on similar
issues, and allow an efficient resolution of a large number of claims.
4ut in the ..+., class actions have been used #and b some views abused) in order to overcome the
differences in tort laws applicable in different states. +o if one claimant lives in +tate [, where tort laws
are unfavourable to their claim, but another claimant lives in +tate 2, where tort laws are favourable,
the ma bring a class action together in +tate 2. +trictl speaking, +tate 2 must not adjudicate the
claim unless it is found that the applicable law is similar or identical in both states, but as a practical
matter this rule is often disregarded in favor of efficient resolution of claims. \1O] (nother measure
particular to the ..+. is the introduction of ^proportionate liabilit^, in place of joint and several liabilit.
Econo"ic e##ects
Three possible charges can be levelled at the tort sstem, for having distorting economic effects. !irst,
the high costs of litigation and compensation paouts raise the cost of insurance. 4ecause most tort
claims will be paid from the pockets of insurance, and because the public generall pas into
insurance schemes of all kinds, the public generall is footing the bill for tort claims. 'n the other
hand, the insurance market can be argued to be fle/ible enough to adjust so that onl high risk polic
holders are footing the bill. If people are undertaking high risk activities #or are themselves high risk
people) then it would seem fair that the share the appropriate social burden. :oreover the level of
compensation in tort cases ma not strictl correlate with insurance premiums. The market ma keep
costs to a minimum, provided that competition is effective. 5owever, insurance regulations often limit
the degree to which charges can be matched to risk levels at the polic,holder level. !or instance, it
would be illegal for an auto insurance compan in the .nited +tates to charge (frican,(merican
drivers more than (sian drivers, even though the claims rate of (sian drivers is substantiall lower.
+econdl, and related to insurance in countries which do not have ^socialised medicine^ #i.e., free
public health care), the costs of the tort sstem, and in particular medical malpractice suits, ma raise
the costs of health care. The difficult in this area is to distinguish between public and private health
care providers. The e/perience in the .<, where there is a full public sstem run b the %ational
5ealth +ervice, is that tort claims have been restricted, for instance in disallowing loss of chance
cases. The :edical 3efence .nion activel combats, and attempts to settle all cases where potential
negligence claims are at stake. 7hile successful, the costs of litigation to the health sstem are
steadil growing,\1T] and stand at around _--Um a ear.\1W]
In the .nited +tates, it is easier for victims of medical malpractice to seek compensation through the
tort sstem. The (merican medical negligence record is also the worst in the developed world, with
around 1W8,KKK deaths per ear, which itself leads to a higher number of claims.\$K] It is open to
debate as to whether a change in the law of tort either wa would lead to a change in practice.
'n the one hand, it ma be said that resources transferred to fight tort cases detract from mone that
could be used to improve patient care. 'n the other hand, it could be said that increasing liabilit
would deter medical staff from making mistakes. !or instance, it is a direct result of well,publiciGed tort
judgments that standard practice is for a nurse or surgeon to count the number of sponges that are
present on a surgeon=s table after the completion of surger, in order to ensure that none are left
behind within a bod cavit. The motivation for this precaution was to avoid tort judgments for left,
behind sponges, which had been a common cause of claim.
Thirdl, there is an argument that tort liabilit could stunt innovation. This argument usuall comes in
connection with product liabilit, which in ever developed countr is strict liabilit, subject to a ^state of
science^ defence. If a product is fault, and injures somebod who has come across it #whether the
are the buer or not) then the manufacturer will be responsible for compensating the victim regardless
of whether it can be shown that the manufacturer was at fault. The standard is lower in other injur
cases, so that a victim would have to prove that a tortfeasor had been negligent. It can be argued that
strict liabilit deters innovation, because manufacturers could be reluctant to test out new products for
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fear that the could be subjecting themselves to massive tort claims.\$1] This argument is
characteristic of the law and economics movement. It ma be somewhat confused about the relevant
law because it misses the state of science defence. This defence means that a manufacturer can
alwas sa ^there was no warning or evidence in the scientific literature that this new product could be
dangerous^.
EG2ality in treat"ent
*?ualit of treatment is the issue which the %ew Vealand reforms, and debate in the &ommonwealth
more generall have focussed on. If someone has an accident then the have a statistical TY chance
of finding a tortfeasor who the ma be able to blame for their injur. If the are luck enough to have
been injured b someone else=s fault, then the can get full compensation. !or the other W$Y who are
injured through no fault of anbod, b natural accidents, b themselves, b disease or bolts from the
blue, no compensation is available, and the most that can be gained for all their losses will be meagre
state benefits for incapacit. 7h should someone who has a broken leg be compensated on the basis
that someone else has caused itF If two people have broken legs, wh should societ not view their
misfortunes as the sameF
This was the basis for much of 6rofessor 6atrick (tiah=s scholarship. 5is first book to put the
argument forward was $%%idents, Compensation and t!e Law #1WOK). 'riginall his proposal was the
gradual abolition of tort actions, and its replacement with schemes like those for industrial injuries to
cover for all illness, disabilit and disease, whether caused b people or nature. This is what happened
in %ew Vealand, e/cept coverage of disease.\$$] This approach, generall, is still advocated in the
recent editions b 6eter &ane. :ore recentl, (tiah wrote &!e 'amages Lottery #1WWO), which
advocated a private insurance solution. 'ver the 1WTKs (tiah=s views shifted. 5e still argued that the
tort sstem should be scrapped. 4ut instead of reling on the state, he argued people should have to
take out compulsor first part insurance, like that available for cars, and this model should be spread
progressivel.\$3]
$ealt' an& sa#ety
(n underling issue with the law of tort, as it relates to accidents, is what, if anthing, it can do to make
people stop having accidents in the first placeF 'n one view, it cannot, and the law of compensation is
precisel that: there to compensate. 'n another view, the imposition of tort liabilit can make people
take better care over their actions. If people have to pa compensation, the will not disregard the
health and safet of others so callousl. The logical conclusion on this ^deterrence^ view, ma well be
that the higher the damages that a tortfeasor must reckon to pa, the greater the care he will take. In
that sense, health and safet could be ma/imised b ma/imising damages awards.
(lternativel, the best wa to prevent accidents and injuries could simpl be, for instance, to pursue
better workplace safet polic, increase inspections and standards in product manufacturing, organise
and fund hospitals better, and so on. *ven if tort does in some cases deter people from making
mistakes, in the cases where it does not, better preventative action is needed. In the .+ presidential
election, $KKT one candidate, :ike 5uckabee, made a slogan of the fact that ^(merica does not have
a health care crisis, it has a health crisis^, impling that (mericans could save much on health care
bills b taking better measures to stop getting ill in the first place.
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