The BAR Exam - Torts Outline Cheat Sheet
The BAR Exam - Torts Outline Cheat Sheet
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Date Created: 03/06/14
Torts Outline 1 Intentional torts a General i Intent a person acts with intent to produce a consequence when 1 he has the purpose of producing that consequence or 2 he has knowledge to a substantial certainty that the consequence will ensue Rest 1 1 Evil intent not necessary simply that the act was wrongful and therefore unlawful a Vosburg v Putney b Mohr v Williams doc operates on wrong ear i No wrongful intent but without consent the operation was unlawful 2 Transferred intent volitional act causing injury to an unintended victim does not relieve liability mistake is not a defense ii Harmful or offensive contact any contact that intentionally interferes with a reasonable sense of personal dignity 1 Touching the person or something related to the person 2 Indirect touching a Garret v Dailey kid moves chair from under woman 3 Offensive to sense of dignity ie spitting Alcorn v Mitchell 4 Awareness of battery not necessary Mohr v Williams iii Recklessness an actor recklessly causes harm if 1 he knows of the risk of harm and 2 he fails to take precautions to reduce or eliminate the risk 1 Must show recklessness in sportsrecreational context b Battery intentional act of harmful or offensive touching upon another without consent or privilege i Mutual combat consent to mutual combat is not a bar to recovery 1 Minority view Rest 60 consent IS a bar to recovery a Exception Rest 61 Rest 60 does not apply when criminal statute seeks to protect a class of persons b Hudson v Craft P injured in boxing match to which he consented promoter is liable i Contestants are the class of persons whom public policy seeks to protect from giving their consent in these situations c Assault intentional act of causing apprehension of immediate harmful or offensive touching to another without consent or privilege i Apprehension words alone are not enough T uberville v Savage II Defenses to intentional torts a Consent is an absolute defense i Types of consent 1 Express a Mohr v Williams Doc operates on wrong ear i No express or implied consent b Hudson v Craft express consent not valid when in violation of public policy Implied communicated by speech or action Presumed inferred when person is in need of emergency care Substituted parent or legal guardian gives consent Assumption of risk you assume the risk when you undertake a risky venture EquotquotS quot Selfdefense justifiable to prevent harm to yourself but you must have a reasonable apprehension of immediate danger i Courvoisier v Raymond D while chasing intruders from his building shoots P police officer 1 Must take into account the surrounding circumstances P was acting in selfdefense and it was reasonable for him to mistake cop for intruder ii Equal force rule D privileged to defend only with an equivalent amount of force Defense of property i Traps and mechanical devices 1 Spring guns Rest allows for deadly force to protect dwelling a Bird v Holbrook spring gun installed by P injures D trespasser i D purposefully kept spring gun secret and hidden ii D was under a duty to give notice of the gun 2 Warning must be given Recapture of chattels i Kirby v Foster plaintiff injured when defendants beat him up trying to get back the 50 he took claiming it was his 1 Defendants liable for battery they were not acting in selfdefense it was a voluntary transfer P was in actual possession of the money when the confrontation began Necessity A party can interfere with another s property to avoid a reasonably apparent threat of injury caused by some force of nature or some other cause which defendant cannot avoid justifies what would otherwise be trespass i Private incomplete defense D must compensate for all damages 1 Ploof v Putnam P moors boat to D s dock during storm D unties the boat causing injuries a D liable Necessity justifies what would otherwise be trespass i Necessity temporarily suspends D s property right to exclude others 2 Vincent v Lake Erie Transportation Co same scenario but D boat owners cause damage to P s dock a D liable Although necessity existed boat owner still must pay for the damages he caused ii Public complete defense no liability or compensation for damages 1 Fire that threatens to destroy town III Negligence failure to exercise reasonable care under the circumstances taking into account the foreseeable likelihood of harm the foreseeable severity of harm and the burden of precautions to eliminate or reduce the risk of harm a Duty i Foreseeability in order to owe duty must be a foreseeable risk Blythe v Birmingham unforeseeable risk of cracked pipes or a foreseeable plaintiff Palsgraf P was outside the zone of danger ii Duty to rescue moral duty only unless you created the danger 1 Duty to warn a Buch v Amory Manufacturing C o D not liable P injured while trespassing in D s mill b Montgomery v National Convoy amp Trucking D truck stalled in middle of road D liable b s he failed to give waming and P crashed into him 2 No duty to practice medicine a Hurley v Eddingfield D physician not liable when he refused to aid sick person who then died iii Special relationships 1 R2d 315 No duty to control the conduct of a third party unless a A special relation exists between the actor and the third person or b A special relation exists between the actor and the other 2 Rest 40 An actor in a special relationship with another owes the other a duty of reasonable care with regard to the risks that arise within the scope of the relationship a Common carriers innkeeper guest employeremployee 3 Weirum v RKO General 548 D disk jockey s promotion causes teenage drivers to run P off road a D liable bc he created unreasonable risk of harm to P b Not bc he failed to intervene nonfeasance but bc he created the harm misfeasance 4 Landlordtenant a Kline v 1500 Massachusetts 549 P assaulted by intruder in common hallway of D s apartment complex i D liable landlord has a duty to protect tenants from foreseeable third party acts 315b 5 Landownerinvitee a Nola M v USC SM 149 P raped on D USC property i D not liable causation not proven abstract negligence ii No physical barrier can secure an open area b Saelzer v Advanced Grp 400 SM 156 P delivery woman assaulted at D s apt complex where gate was propped open complex had experienced frequent gang activity i D not liable propped gate was not a proximate cause of the assault ii Assaults can occur despite high security iii Perpetrators may have been other tenants how can D protect against that 6 Duty to control third party a T araso v Regents of Univ of CA 559 P s allege D psychologist knew Poddar planned to kill their daughter and failed to prevent the murder i D liable therapistpatient satis es special relationship of S3 l5a ii Therapists must disclose when necessary to avert danger to others iv Gratuitous undertakings 1 Rest 44 Duty based on taking charge of another a An actor who takes charge of another in danger has a duty to exercise reasonable care b Duty not to leave injured party in worse condition than when assistance began 2 Rest 42 Duty based on undertaking rendering services a Duty of reasonable care if i the failure to exercise reasonable care increases the risk of harm or ii the other relies on the actor s exercising reasonable care 3 Coggs v Bernard D s negligence causes some of P s barrels of brandy to crack D was moving them gratuitously a D liable one who undertakes to perform a duty is liable to an action if he performs negligently b A gratuitous promise can yield an affirmative duty is there is consideration 4 T horne v Deas D tells P to go ahead and sail promising to insure the ship but never did a D not liable merely failing to perform a task is different from performing negligently i P would have to show that D undertook the action but had done so negligently 5 Erie RR v Stewart P struck by train bc D s normal watchman was not present at the crossing a D liable once he voluntarily employed a watchman he had a positive duty to maintain one because travelers rely on it 6 Marsalis v LaSalle D s cat scratches P D fails to prevent cat from escaping P suffers side effects of rabies treatment a D liable he voluntarily undertook to restrain Naws and he was bound to use reasonable care to do so 7 Mock v Rensselaer Water Co 541 D water works co had K with city P alleges D neglected to supply adequate water when P s warehouse bumed down a D not liable failure to fumish water is the denial of a bene t not a commission of a wrong b No privity of K between D and P V Duties of Owners and Occupiers l RobertAa a ie amp Sons v Dumbreck P child injured in wheel mechanism on D s property a D not liable P was a trespasser who the D had wamed to stay away b Three categories of visitors i Invitee on the land bc of joint interest with owner business visitor duty of taking reasonable care ii Licensee not invited but expressly permitted onto land social guest no duty to make premises safe but bound not to create a trap iii Trespasser no duty to take reasonable care only liable for willful acts against trespasser 2 Duty to warn of a known concealed danger a Rowland v Christian P licensee injured when faucet breaks in his hand at D s apartment D liable bc she knew of crack but did not wam b Breach i The average reasonable person 1 Vaughan v Menlove despite repeated wamings D allows haystack to catch fire which bums down P s cottages a D liable D must be held to the standard of an ordinarily prudent man not his own individual standard b Immaterial whether D believed in good faith that he was acting reasonably 2 Osborne v Montgomery defendant opened car door and plaintiff on his bike ran into it a D s conduct met the standard of care which the ordinarily prudent man exercises under like or similar circumstances 3 Cooley v Public Service Co P suffers injuries when D power company s power line broke and caused the P to hear a loud noise in her telephone a D not liable although uninsulated power lines posed a remote danger to telephone subscribers the altemative would pose an immediate danger to people passing on the street b D s duty of care towards the P is weaker than that towards the man in the street the two must be balanced ii Reasonable precautions 1 Not liable for contingencies against no man can provide a Blyth v Birmingham Water Works fireplug installed by D leaked water into P s house after functioning correctly for 25 years because of severest frost on record 2 Hand Formula and Risk Calculus a Hand Formula if Burden of taking adequate precautions lt Probability of resulting injury X magnitude of resulting Loss then the defendant is liable i Can lead to Hindsight Bias b United States v Carroll Towing Co barge breaks free from tug and sustains damages should the D have kept a bargee on board the barge i Hand Formula 1 P varies with time and place 2 B barge cannot be the bargee s prison c Andrews v United Airlines baggage falls out of overhead compartment and injures plaintiff i D liable because it failed to take necessary reasonable precautions installing safety netting would not be prohibitively expensive d McCarty v Pheasant Run P guest at D s lodge assaulted by intruder in her room alleges negligence because of lack of adequate security measures i D not liable Hand Formula P failed to show that the assault could have been prevented by precautions of reasonable cost and efficacy better locks more security guards iii The criteria of reasonableness 1 Common carriers 2 Children a Restatement Child negligent if conduct does not conform to reasonably careful person of the same age intelligence and experience i lt 5 years no negligence ii Unless engaging in a dangerous activity that is characteristically undertaken by adults b Roberts v Ring D 77year old man hits P 7year old boy with his car i D liable he was negligent in keeping proper lookout and failed to promptly stop ii P s contributory negligence not held to the same standard he should be held to a standard equivalent to a boy of his agematurity 3 Adult activity a Daniels v Evans D struck and killed P 19year old motorcyclist with his car i Jury charge re lower standard of care for P was erroneous 1 All persons engaged in adult activities must be held to an adult standard of care 4 Experts if an actor has skills or knowledge that exceed those possessed by most others these are circumstances to be taken into account in determining whether the actor has behaved as a reasonably careful person Rest 12 Beginners Physical disability a Restatement held to the standard of a reasonably careful person with the same disability b Fletcher v City of Aberdeen D city employee removes barricade from ditch P blind man falls in as a result c Robinson v Pioche Bayerque and Co Drunk P fell into hole dug in front of D s premises i Drunks entitled to safe streets just as sobers are 7 Mental disability objective standard a Restatement negligent for sudden mental illness only if it was reasonably foreseeable b Bruenig v American Family Insurance Co D claims unexpected mental aberration caused her to veer into P i Mental disability is not a defense unless it was sudden and unexpected c Bashi v Wodarz similar car accident similar mental illness i Sudden mental illness is not a defense bc 1 Difficult to prove 2 Lack of evidence 3 Innocent victims deserve to be compensated 9 iv Custom 1 Restatement Compliance with custom is evidence that conduct is not negligent but it does not preclude a finding of negligence a Departure from custom is evidence of negligence but does not require a finding of negligence b Titus v Bradford P killed while riding roundbottomed car at D s railroad claims neg bc roundbottoms didn t fit on at trucks i D not liable shifting is a regular aspect of the railroad business ii Standard of reasonable safety is set according to the ordinary habitsrisks of the business 1 Reasonable that which is ordinarily done 2 Regardless of custom ordinary prudence and due regard for safety must be practiced a Mayhew v Sullivan Mining Co P independent contractor falls into unlit unprotected hole at D s mine shaft i D liable Custom s average care 3 Courts must make decisions when an entire industry fails to exercise reasonable care a The TJ Hooper tug operators sued when their barges and cargo were lost at sea negligence alleged because tugs weren t equipped with radios that would have received storm wamings i D liable Tugs without radios are not seaworthy ii Liability regardless of compliance with custom V Medical malpractice VIedical custom 1 P must show that 1 D departed from what a reasonable practitioner held to national standard of medical knowledge and care would do under the circumstances and 2 that D s actions caused the injury a Lama v Borras P sues D doctor for negligence after Puerto Rican back surgeries i D liable Puerto Rican standard b Locality rule no longer exists doctors held to national standard of their profession 2 Doc has duty to wam and patient has right to know of all potential risks and altemative treatments a Canterbury v Spence D doctor fails to tell P of all the risks involved in laminectomy i D liable P has a right to determine what shall be done to his body ii Lack of full disclosure is negligent iii Informed consent in order for patient to consent he must be informed of the risks and altematives vi Violation of statute 1 Rest 14 an actor is negligent per se if he violates a statute designed to protect against the type of accident which his conduct causes and the victim is within the class of persons the statute is designed to protect a Negligence per se negligence as a matter of law breach is not a jury question i Martin v Herzog P killed in car accident with D P violated statute by not tuming on his lights 1 P was contributorily negligent by reason of his statutory violation negligence per se ii Brown v Shyne P paralyzed after receiving chiropractic care from D who had no license to practice medicine in violation of statute 1 Violation of statute not necessarily negligence but rather can be used as evidence of negligence 2 D s failure to obtain license was not direct cause of P s injuries No license does not necessarily mean no skill 3 Violation of licensing statute is not negligence per se bc violation itself was not the cause of the injury b Not negligent if i Violation is reasonable bc of agedisability ii Actor exercises reasonable care in attempting to comply w the statute iii Compliance would involve a greater risk of harm to the actor or others than noncompliance l T edla v Ellman P s walk on wrong side of road bc traffic is lighter hit by negligent D a Unreasonable to hold party to statute when to do so would subject him to unreasonable risk c Who is protected i Teal v EI DuPont de Nemours statute requiring workplace to be free from recognized hazards protects independent contractors on premises too d Accidents which statute is designed to protect against i Gorris v Scott sheep washed overboard in storm when D violated ordinance by failing to pen them 1 D not liable statute intended to protect sheep from disease vii Role of judgejury in determining reasonableness l Restatement Where reasonable minds can differ regarding whether an actor s conduct lacks reasonable care it is the function of the jury to make that determination 2 Baltimore and Ohio RR v Goodman P killed by D s train view of track obscured by section house a D not liable P should have stopped and looked 3 Pokora v Wabash Ry similar facts didn t stop n look a D liable stop n look is an uncommon precaution b Courts must be cautious in framing standards of behavior Goodman rule is arti cial should have been left to the jury i These cases should depend on circumstances 4 Jewell v CSX Transportation similar circumstances P alleges fail to wam or use ordinary care crossing was extra hazardous a Testimony of conductor sufficient to bring question to the jury said whistle was sounded thru crossing c Causation i Causeinfact actual cause 1 Restatement 26 tortious conduct must be a factual cause of physical harm for liability to be imposed a Butfor test single cause an act is a factual cause of an outcome if in the absence of the act the outcome would not have occurred b Substantial factor multiple causes if there are multiple factual causes of an outcome so neither are a butfor cause factual cause exists if an act was a substantial factor in bringing about the outcome c Lost chance doctrine lost chance of survival in medical malpractice cases 2 New York Central RR v Grimstaa P charges D barge captain with failure to equip barge with life preservers a D not liable whether life preserver would have saved P s life is pure speculation too many factors to consider 3 City of Piqua v Morris P s farm oods bc D s negligence caused a series of over ow wickets to become stopped up a D not liable b Levee example if owner of 10foot levee is told that he needs a 16foot levee to stave off ood waters and a 26 foot ood destroys the town owner is not liable for staying with 10foot levee 4 Zuchowitz v US P dies after taking twice the recommended dose of prescription drug as was recommended by D doctor a D liable b Was Danocrine a butfor cause of P s death Yes c Was the overdose Yes i If A a negligent act is wrongful bc it increases chances of an accident and B that accident occurs then the trier of fact may conclude that negligence caused the harm 5 General Electric Co v Joiner P claims his exposure to PCBs manufactured by D caused his lung cancer a D not liable P failed to prove causation P s expert s studies were inconclusive 6 Herskovitz v Group Health Cooperative D s failure to diagnose P s lung cancer lowers P s chances of 5year survival from 39 to 25 a D liable but only for the decreased chance of survival ii Direct and circumstantial proof of breach and cause 1 Res lpsa Loquitur fact nder may infer negligence when the accident is the type that normally happens as a result of negligence of a class of actors of which the defendant is a relevant member a Invoked when P seeks to establish negligence by circumstantial evidence b Byrne v Boadle P charges negligence after struck by falling barrel in front of D s premises i Case can go to jury mere fact of barrel falling is sufficient for P to establish prima facie case of neg ii Burden shifts to D to prove no negligence c Colmenares Vivas v Sun Alliance Insurance P injured on malfunctioning escalator i Case can go to the jury because res ipsa applies ii Three requirements met 1 Accident is one that does not normally occur in the absence of negligence 2 Caused by instrumentality within exclusive control of D sphere of legal duty not physical control 3 Not caused by P s actions d Larson v St Francis Hotel P hit by chair thrown out of D s hotel s window i D not liable res ipsa does not apply bc D was not in exclusive control of its fumiture e Ybarra v Spangara P s arm injured while under anesthetic for appendectomy sues multiple doctors under res ipsa i Res ipsa intended to be invoked when evidence of true cause is practically inaccessible to P f Explodingbottleinhand example res ipsa probably not applicable bc expert testimony would be necessary to show negligence iii Proximate cause legal cause 1 Historically a Damages are recoverable so long as they are directly traceable to the negligent act Ex Post test i In re Polemis amp F urness Withy amp C0 servants negligently drop plank onto boat which sets re to and destroys the boat 1 D liable Unexpected result does not relieve D of negligence 2 Thin skull rule ii Petition of Kinsman Transit C0 negligently tied boat ends up ooding town 1 Ds boat owner and drawbridge crew jointly liable for all damages 2 Liability for direct consequences regardless of foreseeability b Damages are recoverable only if they were foreseeable Ex Ante test i Liable only to foreseeable plaintiffs Palsgraf zone of danger and foreseeable harms Wagon Mound ii Wagon Mound 1 Overseas T ankship v Morts Dock Oil discharged from D sets P s wharf on re two days later 1 D not liable Polemis no longer good law iii Ryan v NY Central RR spark from D s negligentlymaintained engine set fire to D s woodshed which spread to P s house 1 D not liable damages are too remote re depends on concurrence of outside factors iv Marshall v Nugent D s truck forces P off road P struck by another car when he tries to wam of danger 1 D liable risks created by D s negligence were not over after collision was initially avoided 2 Injury was not remote from D s negligence Restatement 29 liability limited to physical harms resulting from the risk that made the actor s conduct tortious Recurring applications a Coincidental causation i Berry v Sugar Notch Bureau P struck by falling tree while speeding 1 P can recover speed law is intended to protect against speedingrelated accidents 2 Accident was mere chance could have happened to a slow driver too ii Central of Georgia Ry V Price P not dropped off at her station hotel s kerosene lamp set fire to room and caused injuries 1 D not liable harm was too remote not proximate cause iii Hines v Garrett P not dropped off at her station raped by hobo soldier on walk back 1 D liable the negligence alleged exposed the P to injurycausing act b lntervening acts of another i Restatement 34 when force of nature or independent act is also a factual cause actor s liability limited to harms that result from the risks that made the actor s conduct tortious ii Dillon v Twin St Gas amp Electric P trespasser fell tried to grab uncovered highvoltage wires which killed him 1 D not responsible for fall trespass but liable for exposure to wires 2 But damages must be slight bc P didn t have long to live anyway iii Pittsburgh Reduction Co v Horton D discards dynamite cap Copple plays with it for a week with knowledge of mom Gives it to D where it exploded 1 D not liable Copple s mom broke the causal connection bc she permitted Charlie to play w it 2 Cap was in her possession iv Brower v NY Cent D s train negligently collides w P s wagon thieves at the scene steal wagon s contents 1 D liable neg which caused collision resulted in conditions conducive to theft 2 Presence of security guards on train suggests theft was foreseeable 3 Thieves were not intervening cause but rather concurrent to accident c Damages to persons responding to danger to others Rest 32 rescuers are foreseeable plaintiffs d Damages caused by persons responding to danger Rest 35 actor is liable for any enhanced harm suffered due to the efforts of a third party rescuer e Thin Skull rule unforeseeable harm Rest 31 4 Scope of Liability Issue of duty or proximate cause a Palsgraf v Long Island exploding package at train station causes scales to fall on P i D not liable scope of risk argument ii Risk reasonably perceived defines the duty to be obeyed iii P did not show a wrong committed against her personally 5 Not foreseeable intentional misconduct of others extraordinary events iv Joint and several liability one defendant can be held for 100 of fault but can then seek contributions from other D s 1 Joint liability indivisible harms not capable of being apportioned among defendants a Each D can be held 100 liable for damages i Bc one may be too poor unable to pay ii Once P recovers 100 from one D the other does not have to pay b Union Stock Yards v Chicago One of several wrongdoers cannot recover from another wrongdoer 2 4 c American Motorcycle v Superior Ct any D may maintain an action against another party on pure comparative principles Several liability divisible harms possible to apportion damages among defendants a Each D liable only for the of harm he is directly responsible for i Distinct harm ii Single harm but reasonable means of separating each D s contribution Market share liability DES case Sindell v Abbot P need not identify particular D that caused harm rather all defendants liable in shares proportionate to their market share at the time of injury a Must meet following conditions i All D s are potential tortfeasors ii Harmful products are identical fungible iii P cannot ID D through no fault of his own iv All possible D s named b Skipworth v Lead Industries Ass n P les action against all lead paint manufacturers from 1870 1977 i Court refuses to adopt market share liability 1 Relevent time period too extensive innocent entities will surely be held liable 2 Lead paint is not fungible different levels of bioavailability ii Summers not controlling bc D s did not act simultaneously and not all potential D s named Alternative liability Liability in concert Summers v Tice v Liability between codefendants l 2 Multiple sufficient causes Rest 27 if multiple acts exist and each one would have been a factual cause of harm at the same time then each act is regarded as a factual cause of the harm Kingston v Chicago amp N W Ry NE re set by D meets w NW fire of unknown origin to destroy P s house a If there are multiple tortfeasors each one bears the entire cost b Butfor test not satisfied substantial factor test is c Burden on D to show that his fire was not the proximate cause of damage e g his fire was tiny other fire was huge Summers v T ice P injured in hunting accident when two D s both shoot in his direction a Since both D s acted negligently burden of proof shifts to D s to absolve themselves b Altemative liability each negligent D was equally likely to have harmed the P 4 Burden of proof Rest 28 if P sues all of multiple actors that each engaged in tortious conduct and one or more of them caused the P s harm but P cannot be expected to prove which one then the burden of proof on factual causation is shifted to the D s 5 Claim reduction even if one D settles for less than his share other D s only responsible to pay for their share of damages vi Vicarious liability liability for injury caused by the conduct of another 1 Rationales a Justice punish D who acts through another b Control D is in position to reduce risks c Lossspreading and distribution d Compensation employees usually can t afford damages 2 Employees respondeat superior a Ira S Bushey v US drunk semen opens valves and oods drydock i Employer responsible if employee s act retuming to ship was part of the activity of the enterprise b Within scope of employment i Employer liable for detours but not frolics c Petrovich v Share Health Plan an HMO can be held vicariously liable for the negligence of its physicians i No vicarious liability for independent contractors unless relationship established under either 1 Doctrine of apparent authority bound by the appearance of authority one has over another or 2 Doctrine of implied authority whether the HMO retains the right to control the manner of physician s work 3 Independent contractors are not liable bc employer exercises no control over them unless a Employer contributed to the negligence b Duties are so important that they are nondelegable 4 Partners and joint ventures subject to vicarious liability vii Damages 1 General 2 Special 3 Punitive 4 Nominal viii Proof of Negligence 1 Res ipsa loquitor a Inference of negligence b Exclusive control c Not due to plaintiff s actions d Evidence more available to D ix Negligent infliction of emotional distress x Defenses to negligence IV 1 Physical impact 2 No physical impact 3 Fear for third party s safety a Zoneofdanger rule Cardozo majority b Dillion V Legg rule minority Loast chance doctrine a Traditional contributory negligence P s failure to exercise reasonable care to protect himself or his property from the risk of harm 1 iii iv vi vii viii ix R2d S465 P s negligence is a legally contributing cause of his harm if and only if it is a substantial factor in bringing about his harm Butter ela v Forrester 288 P speeding on his horse falls bc of log placed in road by D 1 D not liable P was contributorily negligent Beems v Chicago Rock Island amp Peoria RR 289 P signals to D employees to check the speed then is killed when signal is not obeyed 1 D liable P was NOT contributorily negligent bc he reasonably believed that D would check his speed Gyerman v US Lines Co 293 P complains that his work is too dangerous continues anyways and is injured by falling shmeal 1 D liable burden of proving P s cont neg is on the D and D cannot prove that an of cial complaint to a supervisor would have led to safer conditions LeRoy Fibre v Chicago Milwaukee amp St Paul Ry 300 D s train set re to P s hay stacked near tracks 1 D liable P was NOT cont neg bc the rights of one man in the use of his property cannot be limited by the wrongs of another Derheim v N F iorito Co 304 P injured in car accident w D but D claims less damages bc P wasn t wearing a seat belt 1 P was not contributorily negligent failure to wear belt does not contribute to the accident 2 take your P as you nd him Last clear chance 1 Helpless plaintiff 2 Inattentive plaintiff Imputed contributory negligence 1 ICN 2 Statutory violation Traditional assumption of risk 1 Fireman s rule one who negligently starts a re is not liable to an injured re ghter 2 Lamson v American Axe amp Tool P hit by falling hatchet assumed the risk bc he knew of the danger and continued to work 3 Murphy v Steeplechase Amusement P injured on Flopper cannot recover bc he assumed the risk b Comparative negligence P s recovery reduced in proportion to the amount of negligence attributable to him i Pure comparative negligence CA and minority view 1 Li v Yellow Cab P attempting to cross oncoming traffic struck by D who was speeding both were negligent a Contributory negligence replaced w comparative assess liability in direct proportion to fault b Contributory is too all or nothing c Comparative negligence not applicable when one party shows wanton or willful misconduct d Two forms of comparative negligence i Pure liability in direct proportion to fault ii Modi ed Liability up to the point that P was equally negligent after which P is barred from recovery ie when P was more negligent than D ii Modified comparative negligence majority iii Effect of comparative negligence on traditional negligence 1 Negligent assumption of risk 2 Last clear chance iv Assumption of risk 1 Primary assumption of risk 2 Secondary assumption of risk v Avoidable consequences V Strict liability imposed for nonnegligent activities a Policy Abraham 160 b Animals i Gehrts v Batteen P bit by D s St Bernard 1 Rest 23 Pet owners can be held strictly liable if they know or have reason to know that the animal has abnormally dangerous propensities 2 If owner does not know ordinary negligence standard of foreseeability applies judgment for D ii Rest 22 strict liability for wild animals c Ultrahazardous or abnormally dangerous activities i Rest 3d 20 strict liability for abnormally dangerous activities 1 Abnormally dangerous a Foreseeable and highly signi cant risk of physical harm even when reasonable care is exercised and i Highly signif1cant high likelihood or severity b Not one of common usage ii R2d 520 abnormally dangerous considerations 1 High degree of risk of some harm 2 Likelihood of harm 3 Inability to eliminate the risk through reasonable care 4 Not a matter of common usage ie automobiles a Blasting doesn t qualify bc not carried out by large of population 5 Inappropriateness of the activity to the place it is carried out 6 Extent to which value to community is outweighed by dangerous attributes iii Spano v Perini C0rp D s blasting damages P s garage 1 Blasting is a substantial risk no matter the degree of care exercised iv Indiana Harbor Belt RR v American Cyanimid D shipped chemical to P where leak discovered P sued to recover costs of decontam based on strict liability judgment for D l Reasonable care would have prevented the accident so strict liability not appropriate 2 Rerouting around metro areas may be more dangerous bc trip takes longer v Madsen v East Jordan Irrigation mink case 1 Minks reaction was not an ordinary result of the blasts d Limitations on strict liability i Rest 25 if plaintiff has been contributorily negligent in a strictliability claim his recovery is reduced in accordance with his share of comparative responsibility VI Products liability a History Abraham 184194 b Three rationales i Breach of warranty ii Negligence iii Strict liability c Liability of parties i R2d 402A r2d Seller is liable for selling a product in a defective condition unreasonably dangerous to the consumer if 1 Seller is engaged in the business of selling the product and 2 It is expected to and it does reach the consumer without substantial change 3 Even though a Seller has exercised all possible care b Consumer has no contractual relation with seller ii Restatement Third of Law of Products Liability product is defective when it contains a manufacturing defect a defect in design or is defective because of inadequate instructions or waming 1 Manufacturing defect departs from its intended design 2 Defective in design foreseeable risks of harm posed by the product could have been reducedavoided by the adoption of a reasonable altemative design 3 Inadequate instructionswarnings omission of the instructions or wamings renders the product not reasonably safe iii Wade Factors to determine whether a product is unreasonably dangerous DIi 9 5 6 7 Usefulness and desirability of product Safety aspects of product likelihood and probable seriousness of injury Availability of a substitute product which would not be unsafe Manufacturer s ability to eliminate the unsafe character of the product wout impairing its usefulness or making it too expensive User s ability to avoid danger through exercise of care User s anticipated awareness of the dangers inherent in the product Manufacturer s feasibility of spreading the loss through price or carrying liability insurance d Product defects i Manufacturing defects 1 Speller v SearsRoebuck P alleged faulty fridge wiring cause re a P must show that 1 product did not perform as intended and 2 exclude all other causes for product s failure b P created triable issue of fact ii Design defects 1 Volkswagen v Young faulty seat causes second collision a Collisions are easily foreseeable so they are an intended purpose of automobiles i Also an intended purpose of automakers should be to provide a reasonable measure of safety Consumer expectations test if the design does not meet the safety expectations of the consumer it is defective Riskbene t test do the risks posed by the design outweigh the bene ts generally favored Barker v Lull Engineering P injured while operating highlife loader on a slope judgment for D reversed a A product is defective if either i It fails to perform as safely as an ordinary consumer would expect when used in a reasonably foreseeable manner or 1 Focus on product itself not manufacturer ii The bene ts of the challenged design do not outweigh the risk of danger inherent in that design 1 Burden of proof on D Linegar v Armour of America P killed while wearing D s bulletproof vest a Judgment for D consumer expectation test b Superior design existed but there were bene ts to the contour design and the tradeoffs were reasonable c Obviousness of defect is material to determining unreasonably dangerous Potter v Chicago Pneumatic P claimed D s hand tools caused excessive vibration a Consumer expectation test use riskbenefit balancing only when insufficient facts to permit an inference about the expectations of the ordinary consumer 7 Halliday v SturnRuger kid shoots himself with gun a P argued altemative design was safer for children b Consumer exp test used gun was functional as expected iii Warnings not strict liability since adequacy determinations taken into account 1 Adequacy of warning a MacDonald v Ortho Pharmaceutical P suffers stroke from contraceptives that don t wam of stroke explicitly i Extent of duty to wam normally sufficient to wam the physician leamed intermediary but they have passive involvement in contraception ii Adequacy compliance w FDA is admissible evidence but not conclusive 1 Failure to mention stroke by name unduly minimized the impact of the waming 2 WarningDesign defect connection a Vassallo v Baxter Healthcare P suffers complications from D s silicone breast implants i State of the art standard D not liable for failure to wam of risks not reasonably foreseeable at the time of sale or could not have been discovered by way of reasonable testing 3 Patent danger rule a Hood v Ryobi P injured after removing blade guards from saw despite wamings i P claims wamings were insufficiently specific bc they did not wam of the particular danger of removing blade guards ii But label detail threatens to undermine the effectiveness of the waming judgment for D VII Defenses to products liability a Assumption of risk i Primary ii Secondary iii Patent defect rule iv Foreseeable misuse b Legislativestatutory preemption c Comparative fault comparative negligence i Daly v General Motors P killed while driving drunk and wout seatbelt alleges defective door lock 1 Judgment for D comparative negligence applies to strict products liability d Contributory negligence not a defense e Policy i Strict liability V Negligence ii Costs of holding retailersmanufacturers liable VIII Background and policy a Goals of tort law i Corrective justice monetary compensation as a correction of the wrong ii Optimal deterrence deter excessively risky activity so that those losses worth avoiding are indeed avoided iii Loss distribution loss suffered by P distributed to and absorbed by large numbers of individuals ie through insurance iv Compensation compensation for lossinjury v Redress of social grievances especially against large impersonal institutions b Strict liability and negligence c Trespass and case i Trespass ii Trespass on the case case d Legal fiction
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