Popular in Torts
Popular in Department
This 14 page Study Guide was uploaded by Esna Abdulamit on Sunday January 18, 2015. The Study Guide belongs to 6206-15 at George Washington University taught by Naomi Schoenbaum in Fall. Since its upload, it has received 161 views.
Reviews for Torts Outline
I'm a really bad notetaker and the opportunity to connect with a student who can provide this help is amazing. Thank you so much StudySoup, I will be back!!!
Report this Material
What is Karma?
Karma is the currency of StudySoup.
You can buy or earn more Karma at anytime and redeem it for class notes, study guides, flashcards, and more!
Date Created: 01/18/15
TORTS INTENTIONAL TORTS VOLUNTARY ACT INTENT CAUSATION DAMAGES 1 Voluntary act a D is not liable if the act that causes the harm is not voluntag e g the result of a pure re ex or if unconscious when made c Involuntary act in preservation of life i Man walked into bank tells D he is going to set off a bomb D moves P in front of him to shield blast Court found NL maxim of selfpreservation first law of nature act done under pressing danger is done involuntarily to protect one s life 2 Intent a An actor has an intent when the actor i Desires to cause the consequences of his M g ii Knows with substantial certaintv that it will occur 1 kid pulls chair from underneath old lady he was substantially certain she would hit the ground liable for battery even if the D doesn t touch the P age does not matter in intentional torts b Substitution for intent intent was unlawful i If D intended to do the act or make the contact which was unlawful or objectively inappropriate and the contact turned out to be harmfuloffensive then intentional tort even if he didn t intend the harm Whether the act was unlawful determines whether or not the intent to act was unlawful 1 D lightly kicked another boy in class with preexisting knee condition he didn t know about This was against school rules bc happened when class called to order and not at recess Liable for battery and harm that ensued from aggravating old injury wo intent to harm 2 Eggshell plaintiff rule in intentional tort take P as they are Liable for damages that ensue even if not foreseeable c Transferred intent i Between people If D had intent to cause tort against one person this intent will transfer to anyone who happens to be injured 1 Boys throwing eraser back and forth in class A throwing at B hits C A liable via transferred intent B also liable for encouraging A to throw eraser ii Between torts If D intends to assault P but instead punches P he will be liable for battery even though only intended assault Does not apply to IIED d Incompetency i Fact that D is mentally incompetent insane or a minor does not preclude a finding that he possessed intent to commit tort 1 D killed man wife brought wrongful death suit Found liable D although insane did have intent to kill Insanity does not void voluntariness of act ii Incentives for this rule 1 More justice of denying injured party compensation 2 Gives incentive to family to take better care of insane 3 Ruling other way would create false insanity defenses 3 Causation a D s act or a force set in motion by that act must cause P s injury BATTERY INTENTIONAL INFLICTION OF HARMFUL OR OFFENSIVE BODILY CONTACT 1 Overview 1 Act intending to cause harmfuloffensive contact or imminent apprehension of such contact 2 contact actually happens 2 Intent a Actor intended to cause harmful or offensive contact i If intended act is unlawful intention to commit it must also be unlawful b Actor intended to cause imminent apprehension of such contact i Put P in fear of imminent harmful or offensive contact c Must intend the act that actually causes the harm i P and D playing touch football game D stepped on P s finger causing damage D not liable for assault and battery bc he did not intend to step on her or harm her 3 Harmful or offensive contact a Harmful causing physical pain or bodily damage b Offensive damaging to a reasonable sense of dignity i Would an ordinary person not unduly sensitive as to his dignity be offended ii P consented to surgery on right ear D operates on left ear bc he sees it as worse This is a battery bc was offensive contact iii D piano teacher lightly poked P student s back at her home while she wasn t looking causing insane muscle injuries P says she wouldn t have consented and that it was inappropriate Might be violating implied license for teacher not to touch student iv If you know the person is extra sensitive to something and do it anyway can be liable for batterv 4 Contact results a Contact bevond level consented Mohr v Williams i Can be implied from past experience words b Extends to personal effects i Don t actually have to touch person contact with anything closely identified with body hat clothing c Contact doesn t actually have to be from D s body i Arrows bullets etc d P does not have to be aware of contact at time could be sleeping 5 As long as D commits the battery liable for any consequences that ensue regardless if unforeseeable ASSAULT INTENTIONAL CAUSING APPREHENSION OF HARMFUL OR OFFENSIVE CONTACT 1 Overview 1 intent to cause harmfuloffensive contact or intent to cause action that puts person in apprehension to 2 give rise to imminent apprehension of such contact and 3 an imminent apprehension subjectively reasonably results 2 Intent a Actor intended to make harmful or offensive contact b Actor intended to cause imminent apprehension of such contact 1 Put P in fear of an imminent harmful or offensive contact fear is not required only anticipation of such contact is required 2 P forced by B to work in warehouse with bats against her protests Bats attacked her one day and then bit her the next day P needed rabies treatment reacted badly went blind and suffered emotional problems P s husband sues for lack of consortium assault turned into battery bc manager intended to put her in the place unlawful and objectively inappropriate thing to do bc of the bats amp knew with substantial certainty that she would have an apprehension with the bats gt then when bats made contact a battery resulted and intent transferred from assault to battery a Vosburg Special Sauce contact that was apprehended in warehouse was objectively inappropriate or offensive 3 Harmful or offensive contact a Harmful causing physical pain or bodily damage b Offensive damaging to a reasonable sense of dignity 4 Imminent apprehension results a P must undergo an offensive contact or be put in apprehension of contact happening 1 If you know a person is super timid and scare him gt assault 2 D set the state for children to play prank of neighbor Prank scared her and she fell backwards injuring herself Liable for assault because she intended to scare P and D expected to enjoy prank b The threat must be imminent 1 Future threats and threats without resent abilit from P s oint of View to commit harm do not constitute assault 2 D s calling P saying they are going to find out where he lives and kick his ass and going to cut him in his sleep not assault bc threats were in future or near future not imminent future b Generally words alone do not constitute assaults l Conditional threats are assault give me money or I ll kill you c P must be aware of threatened conduct otherwise not liable for assault d Threat to 3rd party not actionable e Intending to assault striking at another and missing gt assault 1 D holding hand on sword and saying if judges were not in town he would not accept such language from P is not assault threat was not imminent did not actually intend to assault P OUTRAGE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 1 Definition Restatement Second 46 a Intentional or reckless in iction by extreme or outrageous conduct or severe emotional or mental distress Third party can recover if he intentionally or recklessly causes severe emotional distress to a member of such person s immediate family who is present whether or not such distress results in bodily harm or to any other person who is present if such distress results in bodily harm 2 Overview 1 by extreme or outrageous conduct 2 intentionally or recklessly causes 3 actual severe emotional harm to another also liable for physical harm 3 Intent a Desire to cause P emotional distress b Substantially certain that P will suffer such emotional distress c Recklessly disregard the high probability that emotional distress will occur d Transferred intent generally not available except when 1 Immediate family members who are present at the time of act no physical manifestation necessary 2 Non family members who are present and suffer bodily harm 4 Conduct by D was extreme and outrageous a Conduct so outrageous in character and so extreme in degree going bevond possible bounds of decencv utterlv intolerable bv civilized community b Words not usually enough unless D knew how sensitive P was 1 P recovering from surgery in hospital bed w wife on hand D doctor left to care for P made harsh comments to P and also to wife which made her cry and D to experience episodes of shaking which required treatment D liable for IIED given P was postop and fragile c Must be beyond mean and hurtful l D had poor medical history with patient P and had settled a previous malpractice suit Years later while P was lying outside operating room waiting for surgery D walked by and said I don t like you D not liable for mere insults that may hurt another s feelings d Not a tort to deliberately distress someone through nonoutrageous conduct breaking off a relationship firing e Indicators power disparity repetitive conduct 4 P suffered severe emotional distress a Conduct such that no reasonable person could be expected to endure it 1 IIED when employee of cruise ship took pictures of her back against her will displayed pictures w superimposed gorilla head and made statements that she likes things from the back b Usually have to show that medical aid was required c Courts look at P s character and susceptibility 1 no IIED when D sent mug shots of P and information of wife s affair to P s union members D was roughand tumble labor official informational sent was true and D did not prove adequate distress d Courts can take into account relationship between P and D 1 If D aware that P is very sensitive easier to find IIED 2 D liable for IIED being P s psych and marriage counselor knowing P s sensitivity anxiety made comments to D to break up his marriage while having affair with P s wife only because of D s relationship with P e Bodily harm is a good indicator of severe emotional distress 5 Common carriers and public utilities held to a stricter standard 6 Domestic violence now takes marital context into account a D beats P wife constantly for years and in front of children Court held for IIED taking context of relationship into account and raising the bar for civility in marriages TRESPASS TO LAND 1 One is subject to trespass regardless of whether he causes harm if he intentionally a Enters land of another or causes a thing or 3rd person to enter land 1 D s dogs entered P s land causing P s cattle to stampede breaking down fence that enclosed them D owned dogs for fox hunting intentionally or knew dogs would enter the land of another without that owner s consent gt L 2 D not liable for golf ball hit that struck P s car no intent b Remains on the land without a right to be there c Fails to remove from the land a thing which he is under a duty to remove 2 Intent a You just have to voluntarily be on the land doesn t matter if you are a completely innocent person or were mistaken about anything 1 D cannot induce you on the land and then claim trespass 3 D is liable for all consequences as a result of trespass no matter how foreseeable 4 RS 2 Torts 164 Intrusions under mistake One who intentionally enters land in the possession of another is subject to liability to the possessor of the land as a trespasser although he acts under a mistaken belief of law or fact 5 Exceptions a no trespass occurs when a person enters a business open to the public under the pretense of seeking its services but engages in undercover investigative journalism without disrupting the business activities b RS 2 Torts 166 Nonliability for accidental intrusions except where the actor is engaged in an abnormally dangerous activity an unintentional and non negligent entry on land in the possession of another or causing a thing or third person to enter the land does not subject the actor to liability to the possessor even though the entry causes harm to the possessor or to a thing or third person in whose security the possessor has a legally protected interest DEFENSES TO INTENTIONAL TORTS 1 Consent a RS 2 Torts 892 Meaning of consent 1 Consent is willingness in fact for conduct to occur It may be manifested by action or inaction and need not be communicated 2 If words or conduct are reasonably understood by another to be intended as consent they constitute apparent consent and are as effective as consent in fact 3 Comment C Apparent consent Even when the person concerned does not in fact agree to the conduct of the other his words or acts or even his inaction may manifest a consent that will justify the other in acting in reliance upon them This is true when the words or acts or silence and inaction would be understood by a reasonable person as intended to indicate consent and they are in fact so understood by the other 4 Ex A young man alone with B a girl in moonlight proposes to kiss B Although inwardly objecting B says nothing and doesn t resist nor protests by any word or gesture A kisses B A is justified upon the basis of apparent consent 5 Ex While fighting A threatens to punch B in the nose B says nothing but stands his ground A punches B in the nose A is not justified upon the basis of apparent consent 6 Ex A permits B to punch him in chest as hard as he can B does so Unknown to either of them A has defective heart and as result of punch drops dead A s consent if effective to bar recovery for his death 7 Ex Same facts as above except without intent or negligence on part of B A is knocked against valuable vase which breaks Same result 8 Ex A consents to fight with B Unknown to A B uses brass knuckles and hits A in icting same harm as if he used his fists A s consent not effective to bar his recovery b If P gave D consent to an intentional interference with P s person or property D will not be liable for that interference 1 Can be overridden for public policy reasons c Implied consent 1 Inferred from P s conduct custom customary for P to consent to certain actions by D or circumstances a Would a reasonable person in the position of D have believed that P consented to the invasion of interests b D gave blood transfusion to P because she was going to die wo it P was a Jehovah s witness and had filled out form refusing blood transfusion When talking to P and husband husband was unclear in answer NL Law implies implied consent of an unconscious patient to medical procedures needed to save life c would it have been in reasonable in 1990 to object to having a dentist with AIDS Maybe but no real risk bc no uidto uid contact necessary to give disease to patients to not reasonable to object so consent was valid d P admitted to hospital to deliver baby Religious views made her being seen by male doctors naked not okay She informed doctors beforehand and there was a male present Not valid consent 1 Informed consent 1 Ex consent forms by doctors These are only as good as their clarity and fairness if unconscionable will be overturned 2 Subjective v objective approach a Objective approach would a reasonable person have consented to a surgery if they had been informed of the risks before hand majority approach more administrable less room for error b Subjective approach takes into account specific P and particular operation and whether they would have consented i Used in cosmetic surgery cases ii People argue subjective approach places Dr in jeopardy of patients hindsight and bitterness e Invalid consent 1 Mistake a P discovered husband D having an affair Sued for battery bc she would not have sex with him if she knew the affair was going on and thus the consent she granted to her husband was fraudulently induced No valid consent bc sex based on substantial mistake and wasn t aware of offensiveness until after it happened b If P consented but D knew he was mistaken about some fact of the transaction i If D did not know of mistake consent valid 2 Criminal acts a If D s act against P is a criminal act P s consent is not valid b Legislature determines that even express consent is not valid for a criminal act protects persons against own poor judgment c Majority R Men consented to a fight court held consent to an assault is no justification No defense for D in this tort claim Better for losers in a fight d Minority R Consent to unlawful act valid cannot bring claim better for winners in a fight 3 Fraudcoercion a Consent is validnot valid under fraudcoercion based on the following i How invasive of a person s interest was the fraud ii Was there bodily harm versus just harm to someone s dignity iii Was the fraud different in kindlacking the essential character of the offense iv Administrability concerns v Social valuedeterrence concerns b D sends 7 people posing as patients to P s eye centers P agreed to let D shoot the practice but didn t know they were sending undercovers in D had hidden cameras and critically exposed their practices of discriminating on national TV P says wouldn t have consented to ABC being there if he knew their true identities Consent needed for trespass claim was valid consent not vitiated bc fraudulent entry was not invasive in sense of infringing the kind of interest of the P s that the law of trespass protects not an interference with the ownership or possession of land since activities of office not interrupted space is business and open to publicnot a home i Policy Critics are necessary for the good of society social value 4 Lack of capacity a If P is a child intoxicated or unconscious consent not valid i Except when P is 1 Incapacitated 2 Immediate action necessary to save life 3 No indication would consent if able to 4 A reasonable person would consent 5 Invalid medical consent a different procedures consented for doctor to do surgery on right ear Dr did surgery on left ear P did not consent to this no implied consent bc not an emergency and not in course of consented to surgery D exceeded the scope of P s consent D liable for battery i Except when during the course of consented surgery D discovers conditions not anticipated which if not removed would endanger life or health of patient ii In an emergency b different surgeons P gave consent for D to do surgery D had to leave had other doctors perform surgery D liable because P did not give consent to other doctors i Exception RS 52 when patient goes to hospital and is assigned Dr relying on hospital may reasonably be interpreted to included acts of other qualified persons f Ineffective consent examples D is Liable l Counterfeit bill induces blood transfusion 2 Sex with someone and omitting STD results 3 Induce someone into sexual favors at a medical procedure 4 Pose as meter reader to see someone s home 5 Pose as Dr s assistant to see a delivery g Effective consent examples D not Liable l Counterfeit bill indices prostitute services unclean hands someone who did something wrong cannot benefit from the law 2 Dentist operating on patients when he has an STD if being safe about it 3 Misrepresenting sex as love 4 Posing as customer to review restaurant 5 Posing as patient to expose discrimination 2 Private necessity not complete defense a Any person can prevent injury to himself to his property or to person or property of a 3rd person but liable for injuring another s private property if there is no other way to prevent harm b If D s necessitv causes damage to P s property D liable for those damages c Owner of private property has no right to use reasonable force to resist in necessary situation 1 P moored his boat to D s dock to avoid damage during a serious storm D s servant unmoored boat injuries to P and his boat ensued P had right to trespass by necessity D liable for damages 2 D s liable for making family leave station to walk to shelter in cold rainy weather causing P to become ill when D knew of P s fragile state and vulnerability of illness 1 Necessity defense does not apply in some cases 1 necessity not afforded for squatters a Policy i Incentive too much theft would occur otherwisealternatives available social chaos negative effects on property BUT puts empty property to better use ii Fairness unfair to people who are waiting for legal housing for others to jump in front of them illegally BUT benefits are much greater than costs iii Administrability ood of litigation issues costly for courts to deal with agency could deal with it better iv Institutional competency agency better suited to deal with because agency is the one who sets the policy BUT if agency not correcting the problem courts should e Economic justi cation 1 Property rights must give way when human life or severe property damage is threatened When situation makes it hard for parties to bargain transaction costs high by awarding damages caused law makes the deal that parties would likely have made if they could have bargained 2 When transaction costs are low law is more likely to protect property rights by imposing fines on top of damages 3 D moored to P s dock to unload cargo Violent storm rolled in and D could not set sail so D takes affirmative act of retying boat to dock D s boat caused damage to dock during storm D must pay for damages a Majority D Always Pays Rule i Loss Boat gt Loss Dock Dock ii Loss Boat lt Loss Dock Not Dock iii Minimize cost of overall accident b Dissent D Never Pays Rule i Loss Boat gt Loss Dock Dock ii Loss Boat lt Loss Dock Dock iii Always protect life amp health versus property f Privilege of necessity gives the ship owner the right to make the choice but charges him with the cost 3 Public necessity complete privilege defense bc circumstances can cause harm to many people a Exists where interference with the property of another is necessary or reasonably appears necessary to prevent disaster to community or a lot of people b In these cases D normally doesn t have to repay P l P was owner of ship with 50 passengers that began to sink Ds are the passengers who threw off cargo to save everybody P brings action for trespass to goods NL bc public necessity justified by danger to everybody s life 2 D mayor of SF ordered for P s house to be destroyed in an attempt to stop a fire that was raging through the city D not liable protection of many outweighs individual property interest c The D must be careful to decide whether there really is a public necessity deserving of his actions otherwise can be held liable for the losses that the P may incur from D s mistake 1 D landlord saw smoke coming from P s window D knocked and received not response Door was locked to apartment so D broke in saw no fire and left smoke came from chimney nearby D s efforts caused damages to P s property No public necessity defense bc court wants D s to be careful about whether there s a necessity to begin with and quickly act to avert disaster if there isn t any Off the hook if you make a reasonable error but if you make a mistake you have to make good the loss UNINTENTIONAL TORTS NEGLIGENCE duty breach causation damages EVALUATING WHETHER STANDARD OF CARE WAS BREACHED 1 The Reasonable Person Standard Would a reasonable person under the circumstances behave the same way When do we adjust the standard of care it s an objective standard a Physical characteristics of D are taken into account 1 Physical supremacies standard of care is raised to meet added abilities to avert harm 2 Physical deficiencies ill or physically disabled person must conform to standard of reasonable person with similar illness or disability i reasonably prudent deaf man P was walking on railroad track hard of hearing D driving train sounded gong and applied breaks but hit and killed P P actually negligent bc he didn t take such care as a reasonably prudent deaf man by looking around him He could have taken more precautions physical deficiency is easier to spot so other people can take extra precautions ii D liable when blind man fell through open cellar door bc took reasonable precaution using cane and blind men can t feel every single thing on the street just a reasonable amount P not contributory negligent b Mental characteristics dumb ignorant of D usually not taken into account 1 D s liable for fire near P s property caused by haystack that destroyed P s barn stables amp cottages Being unintelligent not an excuse held to reasonable person standard Pro it s not fair for him his judgment is lower than the average person s Against he knew what he was doing administrability problem everyone will claim they re stupid gt more litigation hard to figure out stupidity is not obvious so it s hard to protect yourself from potential stupid Ds 2 outlier case P 22 year old man w mental capacity of 10 year old living on D s farm after D s wife took him out of mental retardation institute D asked him to walk behind corn picker P stumbled into picker and cut arm off D liable bc P needs special consideration in cases where tort committed by caretaker not giving reasonable care knowing condition Nor fair for people injured by the people if we lower the standard of care this type of defect is more measurable it takes two to tort potential Pd could take additional precautions in this case there is more of a distinct defect 3 No liability for county when P couldn t read but bridge posted unsafe and he drives wagon over it and falls killing his horses and destroying his wagon Court thinks learning English is a socially valuable trait and D took reasonable precautions P can change his situation and learn English administrability problem c Physical vs Mental Infirmities Note 1 Distinct Defects Holmes People can recognize distinct defects and take precautions easier to spot physical infirmities so more leeway given to them than people with mental infirmities 1 Age we lower standard of care except for adult activities if we don t parents will confine their kids too much 1 D accidentally shot P while hunting P barred for recovery because he s equally contributory neg D could only be neg if he failed to use degree of care reasonable person of his ageintelligence and hunting has no adultonly standard Age is something clear gt distinct defect 2 We do not lower the standard of care for old age e Insanity or mental de ciency is not an exception to negligence unless it is sudden and hasn t been experienced before If know about condition must use precaution i D captain of ship not liable for neg when battling storm was up for 3 days battling storm bringing about insanity ship crashed f Gender generally no except for sexual harassment etc 2 The Hand Formula B burden of precaution P probability of risk x L loss a Not a bright line rule we have to speculate b B lt P x L gt negligence c We only hold people responsible for the ex ante perspective if it was foreseeable before the incident happened d Hindsight bias everything seems possible after the fact looking back e Not used by juries either used by appellate courts if appeal couched in costbenefit terms or ignored by disposing of costbenefit claims under reasonable person standard D did not have an employee on barge while it was tied to other barges Employee was included by D in contract for package deal Broke loose and caused damage B was low to keep someone on duty P and L were high gt negligence P swinging long wire while crossing bridge Wire made contact with D s trolley wire under bridge causing P injury D not negligent Was not foreseeable that kid would be swinging long wire Could not touch wire normally if on bridge Other precautions unreasonable bc insulation of wires impossible and only other option to put them underground Trolley beneficial to society as well B was very high P very low and L relatively low No negligence P ran out on tracks to save child P was killed by train insteadVoluntarily saving a child s life unless reckless is not negligence Reasonable person would do so want to encourage this i Posner s Recent Different Analysis 1 P of child killing if no rescue attempted gt P that Eckert would certainly be killed 2 Eckert life value at least Child Life value 3 Expected B of rescue to RR in reducing liability cost to parents gt cost of rescue P fell overboard and shark bit half leg off before being pulled aboard D did not diverge from path to seek aid Not Liable because P s injuries did not get worse only suffered more pain that would beyond worst stage soon anyway and D would have suffered heavy losses if he did decide to break path and go to nearest port 1 B really high cargo spoil wages risk gt P very high of suffering court values it low L Pain Temporary is low GM used formula to calculate risk put 200k value of human life 1 We re not ok with the explicit formula and GM using it for its own profit 2 When life is at stake L can never capture its value 3 Agencies play a role in controlling companies aside from tort law 3 Custom relevant but not determinative except medical legal malpractice i If we think that bargaining will happen we may trust the custom more gt courts shouldn t intervene with custom ii No bargaining gt courts should intervene more iii If the standard of due care is always custom industries will never innovate iv When everybody acts according to custom it s easier to act with appropriate precautions v Generally look at industry custom risk of injury and B cost of precaution D s tugboat lost cargo bc of storm did not know of storm because they did not have working radios Custom showed that some had radios some didn t Court held that had their been radios would have gotten weather reports injury was a direct result of seaworthiness D liable B relatively low P and L relatively high v Custom and Medical Malpractice 1 Majority rule national standard of care Professionals must act with level of skill and learning commonly expressed by members of profession in good standing D following local customary dose administered 8mg National standard was 5mg or less Using national standard found D negligent 2 Locality rule for doctors minority Dr must adhere to the accepted practices of similar community with similar facilities and access to resources D aborted P s wife s operation bc of anesthesia problems and as result wife suffers cardiac arrest amp brain damage NL under locality rule Court refused national standard rule holding Dr s in small towns do not have access to same info as those in big cities 3 Legal Malpractice Locality rule majority bc every state has different licensing and rules for law P tripped on sidewalk in El Paso and hired D lawyer D lawyer only sued one of three potential defendants P s expert from Alpine TX says D failed to exercise standard of care for legal practitioner in TX for not suing all three potential D s NL bc expert was inadequate in vastly different locality from El Paso and can t question El Paso s experienced attorney NEGLIGENCE PER SE gt CRIMINAL STATUTE 1 Definition Negligence per se is established when D violates a rule or statute that has close application to the facts If NPS is not found it doesn t mean that you re off the hook the judge can still send it to the jury to decide if it s negligence 2 Applies when a It is the type of persons that the statute meant to protect b It is the type of occurrence that the statute meant to prevent c It is proportional with the penalty it s an indicator of the legislature s intent 3 Exceptions a Complying with statute is more dangerous than avoiding it complying with statute is impossible under the circumstances b Reasonable ignorance ignorance after taking due care P driving at night without lights on D veered into middle of road Accident ensued Violating statute of driving without lights on at night negligent in itself P wants jury instruction to leave it to them to determine if it s negligent to drive without lights on D wants jury instruction to say that driving without lights on is negligence per se P says that her breach is immaterial It s exactly the type of persons meant to protect travelers on the street If NPS gt legislature through statute sets the standard of care statute saying must walk on one side of the road P was walking on other side because the correct one had heavy traffic whereas the other side had almost no traffic Falls into exception to NPS when safety tradeoffs are made and reasonableness cuts the other way Legislature meant to protect pedestrians here they had a reason to breach the statute D ran train over P s cow Train was operating on Sunday in violation of state law NO NPS it wasn t the type of occurrence that the statute meant to protect running over the cow isn t what the legislature had in mind Dog pooped on sidewalk in front of D s store P slipped on it and was injured Statute says D must keep sidewalk clean NO NPS duty was owed to city to keep it clean not to public to keep sidewalk safe Also burden on D is too big there would have to be an employee stationed outside to see whenever there is poop on the street P injured by drunk driver P sued bar that served D alcohol Statute against serving drinks to any intoxicated person D NPS by violating statute statute meant to prevent these accidents and P fell within class of victims statute meant to protect after case statute amended making proximate cause consumption of alcohol rather than serving of alcohol NEGLIGENCE PER SE gt JUDGE MADE RULES 1 Judge can rule negligence as a matter of law or allow jury to decide 2 Holmes The Common Law a Tort law should be reduced to objective readily applicable rules by judge Holmes P crossing railway view was obscured continued over railway and was hit by train Found P s failure to stop look and listen was negligence as a matter of law When dealing with a clear standard of conduct ct lays down the law Cardozo P was struck by train when crossing railway P stopped looked and listened but view but view was obstructed could not have safely looked if train was coming Cardozo says P NOT negligent and that issue should have gone to the jury RES IPSA LOQUITUR the action speaks for itself 1 Elements must meet them all a There is no direct evidence of D s conduct in connection to the event b The event is the kind which ordinarily doesn t occur without negligence c The instrument which caused the injug was in D s exclusive control d P must not have contributed to the injurv 3 Burden of proof is on D a Pocket of immunity i Fairness ii Incentives b Information forcing function i Knowledge if many people gt less likely to know what others are doing ii Loyalty if they work closely together gt less likely to rat out barrel of our fell from D s business on P s head Even though no evidence that D was negligent was likely that someone in D s control was negligent and D has better access to evidence allowing him to defend case gt res ipsa NO res ipsa when D working in factory using wedge which slips out and falls down shaft injuring P Mere falling of tool on construction site cannot be presumed to have resulted from negligence P awoke from appendix surgery with pain in shoulder P sued all doctors nurses and hospital Where D is unconscious and suffers unusual injury in course of medical treatment all those Ds who had control over body or instrumentalities may be liable Will help eliminate the conspiracy of silence where Ds stick for up for each other and no one talks Gives parties incentives to talk Brick fell on P s head under building where 19 independent contractors were working NO res ipsa P gets salmonella from turkey salad that 9 people contributed to Argument that it should apply 1 out of 9 knows pressure to rat one out Argument that it shouldn t apply can t rat out because how would they know what others were doing at home Result NO res ipsa DUTY 1 General guidelines a Sources of Duties i Affirmative acts 1 Goading 2 At fault P v Innocent P 3 Blocking publicno risk of harm imminent risk to life 4 Undertaking ii Special relationships iii Land owners b Limits i Pure economic loses ii Negligent In iction of Emotional Distress iii Foreseeable P c Generally i Risk creation D s choice to engage in riskcreating conduct for his own benefit imposes the reciprocal duty to exercise due care toward those who may foreseeably be injured by it 2 Af rmative Acts where law imposes a duty be it creates risk for others a D radio station announced first person to locate station s red van would receive cash prize Two teens racing to get there forced P off road killing her D Liable D s affirmative act created risk of harm i Teenagers gt reasonable reliance on radio DJ s instructions b D asked P to jump into trench to help him start a pump P jumped and drowned D did not go for help after P jumped in i D had no duty to rescue P P voluntarily undertook the affirmative act that placed him in danger ii D did not force F to do it would be different if P was a child or mentally deficient iii Goading mere words v reasonable reliance c Good Samaritan Doctrine i If D voluntarily begins to render assistance she must proceed with reasonable care and may not discontinue her aid if it leaves P worse off than if left alone 3 Blocking Rescues if there is an imminent threat to physical harm gt duty if not no duty usually a fire broke out at P s factory D s train blocked fire trucks from reaching fire at several rail crossings D could have easily stopped train D liable should manage its trains not to increase the public hazard b L for D who didn t allow man to use phone at his bar to call cops and report threat of man being murdered Man was soon murdered Business open to public during time of business has duty only when threat of imminent harm exists c NL for D who had no duty to allow P to use phone to cops and report theft that occurred bc only for staff use and no imminent threat of physical harm 4 Duties Arising From Undertakings a Sometimes a D who had no duty may acquire a duty by undertaking to provide assistance or voluntarily assuming responsibility Don t want people who don t know how to rescue properly to attempt a rescue b Liable if after undertaking such a duty D i Fails to exercise due care and increases risk of harm ii The harm is suffered because P relies upon the undertaking c D physician refused to treat P who ended up dying NL i P I am relying on my doctor to help me if needed ii D Reliance is unreasonable doctor can be busy with other things iii There may be moral and reputational obligations no need for legal duty c P brought husband to hospital after suffering symptoms of a heart attack Hospital did not accept their insurance plan P called dr who after hearing his symptoms told them to return later Man died when he got home i Physician who undertakes to examine or treat a patient and then abandons him may be held liable for malpractice ii Difference from Hurley case not mere words reasonable reliance bc he believed that he would be ok if he comes back later d Coast guard attempted to rescue P While raising her to helicopter did not raise cable high enough she fell and dies D liable i Coast guard undertook action to save P increased the risk of harm in fact creating a new risk e P wife sues Coast Guard bc tugged husband and he decided to walk along boat in motion and fell off stopped the boat to let him get back but drowned NL bc only duty they undertook was towing of boat i It wasn t because of D s negligence for a negligence cause of action you look at what precautions D failed to take ii D s untaken precautions did not cause P s death no reasonable reliance 5 Special Relationships singling out theory either the person does it or the situation creates it a Doing nothing when a special relationship exists between P and D may lead to liability i three crewmen on fishing boat were washed off boat by a wave Captain did not search for them bc it was dangerous D liable b Common carriers c Social hosts i D NL for serving alcohol to party guest who dies driving home ii minority D liable for drunken guest who crashed with 3rd party 6 Duties to Protect Others from Third Parties a There are situations where D has a duty to protect P from a third party when D has a special relationship with such third party i Businessman Patron Employer Employee Hospital Patient b Doctor Patient i Drpatient confidentiality may be broken if it will save people from danger 1 Doctors have a problem with this takes away from therapy gives them incentive to not take on patients who may be dangerous ii P was murdered by a patient of D who had confided his intentions to kill the girl D did not warn P or family of danger D liable l Therapist has a duty to warn foreseeable victims of threats when there is a serious likelihood of violence 2 This rule will not usually be applied unless specific victim is known iii Five year old boy murdered by D County had known D was dangerous and planned on doing harm before releasing him Specific victim was now known not reasonable to warn whole community c Landlord Tenant i P assaulted in apartment building building had removed their doorman many tenants had already been robbed in the building D liable Type of injury was foreseeable was a special relationship D could have taken measures to prevent it d Public Entity and Citizen i P broke up with man who made threats to her life She reported it to police numerous times She ended up hurt by him City not liable imposing general duty for city to protect all citizens would be expensive and inefficient ii City has duty to protect people who collaborate with police to arrest someone from foreseeable dangers resulting 7 Duties of Land Owners and Occupiers a The standard of care applied to land owners varies according to the type of person on the land and the type of activity that caused the damage to the person i Activities injury to P derived from the conduct of person on land ii Artificial Conditions the injury to P derived from circumstances created by persons on the land such as building and cultivation iii Natural Conditions the injury to P derived from circumstances not created by persons but naturally existing on land b Trespassers i No duty unless they are a known trespasser dangerous activities or dangerous conditions as long as they are hidden ii D hunting woodchucks on his property thinking he saw one shot it turned out to be P NL for mere negligence to trespassers iii People invited can become trespassers if they fail to stay within scope of area or they stay longer than allowed iv D liable to P for damages suffered from firework hitting his eye at D s circus While P was a trespasser he was sitting in crown and was known Injury from dangerous activity c Licensees i Person who has the owner s consent to be on the property but is not there for business purposes social guest ii Duty to warn about activity or known condition no duty to inspect only if hidden to L l Ds are private persons so it would be too burdensome to put duty to inspect iii Firemanpolice are mostly treated as licensees you have a duty to warn of known dangers if you are there iv P went to father in law to take care of him P and father died of carbon monoxide poisoning P was social guest gt bc D did not know about the sealed furnace gt NL V D was told to turn off gas in basement P later went down and struck a match causing deadly explosion D knew of gas and did not fix it gt L d Invitees i Public invitee person who is invited to enter or remain on land for a purpose for which the land is held open to the public ii Business Visitor person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealing with land owner iii Duty to warn about activity or condition duty to inspect only when invitees will not protect themselves e Rulings against Classi cation System i CA P cut his hand on D s faucet while a guest in her apartment Court rules that distinctions between duties owed to different classes of guests are obsolete D argued crack in faucet was obvious but did not know it was there and harmful Found failure to warn of this harmful risk was breach of due care regardless of P s status Minority outlier eliminating distinctions ii 11 states have abolished distinction between all classes iii 9 states have abolished the distinction only between Invitees and Licensees iv Having no distinction gives greater ability for cases to get through and go to a jury over the negligence claim LIMITATIONS ON DUTIES 1 Pure Economic Loses a If P doesn t suffer any property or physical damage only suffers economic losses which don t result out of breach of contract gt no recovery b P chartered a boat from D Agreement was that boat could be withdrawn for service every 6 months During service found a crack in propeller hired D to fix it One of D s employees dropped the replacement propeller breaking it delaying P from using the boat for 2 more weeks P sued for losses suffered during 2 weeks lost time NL D had no obligation to P different if P and D were in own K c D s building collapsed during renovations causing P to shut down business because debris from collapse closed road preventing business Landowner owes no duty to protect an entire area from pure economic loses even if resulting from his negligence gt NL d D s ship spilled oil in Boston Harbor preventing P s ship from docking and incurring damages DNL i Administrability foreseeability standard makes it hard to draw lines Can handle these claims through insurance ii Disproportionality imposing liability in these situations creates chilling effect opens oodgates to litigation gives P no incentive to limit damages e Exception i fire started at D s rail yard city ordered evacuation of lmile radius including P s terminal airport Employees unable to work and ights cancelled Court held D liable Held that in this case due to P s close proximity knowledge of risk of their activities and foreseeability that this would happen to P allow for recovery 1 This holding is minority opinion the common law rule prevails 2 One basis for establishing exceptions is the P s ability to mitigate e g fishermen If you re in a service where the only possible loss is economic then it s an exception e g accountants 2 Negligent In iction of Emotional Distress it must be reasonably foreseeable that the act may cause distress to P a Impact Rule Minority no NIED if there is no impact resulting in physical injury Since fright alone not a cause of action consequences of fright alone not a cause of action b Zone of Danger Rule you have to be in the immediate zone of danger and you have to have physical injury i D negligently allowed rut to form on railroad track P s tire got stuck P saw train coming jumped from car second before car was crushed by train P suffered great fright and shock interfering with ability to nurse her child and work as a horse breeder a Trial Judge NL under Impact Rule b Appeal Rejected impact rule Found P should be able to recover if in immediate zone of danger and fright from this manifests into a physical injury proximately caused by D s negligence 3 Bystanders a third person can recover for seeing an injury occur only if they were in the zone of danger themselves a Dillon Test i How close was the bystander to the accident ii Did the bystander actually see the accident occur iii How closely related was the Victim to the bystander a To recover one still must experience emotional disturbance beyond reaction normally anticipated for a witness b Split authority on whether you actually have to be there and see the accident occur i L when father arrived at scene of accident 10 minutes after it happened and saw his son actually die ii NL when father saw footage on TV of son dying iii L when son saw his mother travelling behind him in an accident She was minimally injured He claimed physical damaged due to worrying about his mother mistaken about extent of injuries iv NL for mother who thought she saw son get into accident but turned out to be a different person mistaken about Victim of accident CAUSATION 1 Factual causation Butfor causation but for D s negligent act the injury wouldn t have occurred a P s injuries were more likelv than not gt50 caused by D s breach of duty i Speculative but for causation not enough to prove negligence ii P falls of D s boat Wife sues for wrongful death for negligently failing to provide lifesaving equipment gt NL Court says it is speculative to determine what outcome would have been with preservers on boat Butfor causation needs to be gt50 likely to have made a difference b P usually bears the burden of proving actual cause c Exceptions courts hold cause in fact even if not certain to avoid pockets of immunity i P seaman aboard D s vessel P was found missing D did not alter speed or go back and look for him L People who fall overboard often survive for many hours Turning around would have created no risk Found failure to turn around breached duty and was likely cause of death There is a special relationship here and there was no attempt to rescue ii Haft v Lone Palm Hotel P s son and husband died in D s pool D violated statute by failing to provide lifeguard or sign that no lifeguard was present Could D s violation to comply with statute was negligence and this switched burden of proof on them to prove was not proximate cause of death gt L Court says it would have made a difference but maybe not more likely than not It may be unfair to D but they still breached 2 Alternative Liability a Divisible harm Two breaching defendants one cause i Two parties acting simultaneously negligent can both be found liable even though only one of them caused the harm and neither can say who in fact caused the harm Burden of proof shifts to Ds ii Both Ds shot in P s direction while hunting P hit and injured Both parties L bc they cannot determine who actually caused the harm Up to Ds to explain cause of injury Court found each D L for the whole damage b Single indivisible harm from two different parties i Each of the two events is a cause of the injury if either one would have been sufficient to cause the injury without the other ii D negligently caused a fire combined with another fire of unknown origin destroying P s property D liable for all damages c Market share liability i Where P can only identify the product by type not brand court may order Ds to pay of P s damages in proportion of their total market share for that product a D can prove it was not their product and get out of it b Some states apply regional market others apply national market c No jointseveral liability D only pays his market share d Ds must take up substantial portion of the market share ii DES pill caused birth defects to children of women who took the pill P s mother knew what product it was but didn t know which company manufactured it was impossible to find out a All companies were liable for of market they held b Hardly used besides in DES cases iii Elements needed a All named D s are potential tortfeasors b Harmful products identical share same defective qualities c P unable to identify which D caused injury through no fault of her own d Substantially all the manufacturers that made the product during the relevant time are named as Ds d Apportionment if P s injury is indivisible and was caused bv more than one D Ds can be held joint and several liabilitV i Joint and several liability P can collect complete damages from either D D can t seek reimbursement from other Ds a Ex P injured D1 95 liable D2 3 liable D3 2 liable 1 D1 insolvent gt P able to collect entire award from D2 D3 ii Contribution If P recovers entire injury from D1 he can sue other 2 Ds for reimbursement iii Several liability majority rule P can recover amount from each D to which they were responsible 3 Proximate Cause determines whether someone who behaves negligently should be liable for far reaching consequences a Foreseeable risk D is only liable for consequences that were reasonably foreseeable at the time he acted i directness minority rule P chartered boat negligent workers D dropped a board which caused the boat to explode D is L bc there was a direct link between the act of negligence and the injury even though unforeseeable ii majority rule unforeseeable harm D s ship spilled oil carried by tide to P s wharf P was told it was not ammable welding causes P s wharf to burn down NL bc injury was not reasonably foreseeable no one knew oil in water was ammable ii unforeseen P man tries to board train 2 employees help man drops package which explodes injuring P standing far away gt NL a Cardozo majority approach D is liable to all Ps within the reasonably foreseeable zone of danger If P not in zone of danger can t recover bc he is an unforeseen P more of a duty argument b Andrews dissent if you re negligent you owe a duty to the world at large b Same forces and damage don t need to foresee the exact chain of events just same type of forces and general type of damages i boat was hooked to D s deadman Ice caused the boat to become detached oat downstream hit another boat and then damn up causing ooding and serious damage D is L for negligently maintaining the deadman Court held that damages that resulted from negligent deadman were of the same sort that was expectable unforeseeability of the exact developments and magnitude will not limit liability ii D sends employee to clean coin machine with gasoline in room with heater rat goes from under machine to heater and back and leads to explosion which kills employee D is L for negligently sending employee iii D crashes into hotel and causes explosion gt D is liable bc building is treated as eggshell P If D s conduct is a substantial factor in bringing about the injury it is not necessary that the extent of the harm or the exact manner in which it occurred could reasonably have been foreseen c Neither i employee knocked cover into cauldron leading to explosion NL Was not foreseeable that this would cause explosion d Intervening cause a force which takes effect after D s negligence and which contributes to that negligence in producing P s injury i Foreseeable risk if D should have foreseen the possibility that the intervening cause might occur or if the harm suffered by P was foreseeable D will be the legal cause a D s train negligently collided with P s wagon Third party stole contents of P s wagon D is L for all damages bc it was foreseeable that goods would be stolen from an unprotected wagon b woman on train misses stop bc of D employees negligence Train stops further and she walks back through place called hoboes hollow and employees knew about it She gets hurt D is L bc harm was foreseeable in that place c P s house demolished after D s railroad car spilled oil from being negligently derailed Third party dropped match in gasoline that caused the explosion Turned on whether third party intentionally set fire to the gas Court held D NL could not have foreseen that someone would maliciously have thrown match to create the explosion d Superseding Cause a cause that will alleviate D from liability a D railway NL for not letting P at right stop and P having to check into a hotel and causing a fire bc of candle not the kind of damage that would be expected b P s house demolished after D s railroad car spilled oil from being negligently derailed Third party dropped match in gasoline that caused the explosion Turned on whether third party intentionally set fire to the gas If by accident gt D is L c town is NL for not enclosing a pit that P was thrown into by a man If hazard is intentionally used by a third party to cause damage then there is NL for the party that crated the hazardous situation DENFENSES TO NEGLIGENCE CLAIMS 1 Contributory negligence minority approach P who is negligent and whose negligence contributes proximately to his injury is can t recover a P will not recover whether he is 1 or 99 at fault b P will be held to same standard of a reasonable person under like circumstances still must meet all elements of negligence c Only a defense to intentional torts if P s negligence was gross d Reasons for this rule fairness penalize P if he was negligent incentives deter P from negligence administrability easier fewer suits institutional invite legislative change 2 Comparative negligence majority approach a Modified majority P can recover as long as not more liable than D 50 or less b 49 rule minority P can recover as long as no more than 49 liable c Pure assume this on exams if not given P can recover whatever of damages D is responsible for even if P was more liable than D was ex D 30 L P 70 L P recovers 30 of damages d Does not allow recovery for P who commits an intentional willful or wanton act reckless in some jurisdictions e P is injured in accident with D who was intoxicated but P was speeding so traditionally no recovery Court advocates for comparative negligence so that damages are reduced in proportion to the of total negligence attributable to P f Reasons for this rule fairness penalize D for negligence incentives deterring P not very realistic don t need law administrability if modified approach not so many suits not hard to figure courts are experienced institutional there is experience for courts to rely on 3 Assumption of risk P is said to have assumed the risk of a certain harm if he has voluntarily consented to take chance that risk will occur a Express assumption of risk P has explicitly agreed with D in advance that P will not hold D liable for certain types of harm i Complete defense in all jurisdictions ii Exception if unconscionable contracts or agreements against public policy a If D intentionally causes the harm or brings it by acting grossly negligent b Look at relationshiptype of service 1 Public policy Does agreement represent a free choice on part of P Or is he forced to accept by necessity of situation If latter usually agreement is against public policy c P admitted to UCLA med center signed document releasing hospital from any and all liability for negligence or wrongful acts or omissions of employees P brought suit for injuries from malpractice Trial court held D was NL bc of release CA supreme ct reversed bc this agreement involved public interest factors 1 Business of a type suitable for public regulation 2 Is service of great importance to public 3 Party offers to perform service for any member of the public who seeks it 4 Did party offering service have advantage in bargaining strength against member seeking service 5 Didn t offer extra costs to protect against negligence 6 Is person or property of purchaser placed under control of seller subject to risk of carelessness d Did P read the K 1 Must appear that he read and assented to the terms 2 Particular risks D is exculpated from must appear in the K b Implied assumption of risk prevents P from recovering from injuries they suffer when they freely undertake dangerous activities i Usually only assume risk this way when P can see risk was inherent before engaging in it if risk is obscure or unobserved or if accidents occur frequently might not apply a P injured while riding the Flopper at D s amusement park Was watching people riding it before deciding to ride saw people falling off Court found that the belt was not out of order and that the risk was invited and foreseen and that accepting to ride it accepted the dangers that were obviously present 1 Hypo employee spills grease gt no assumption of risk bc not a known risk and not inherent to the ride ii Assumption of risk gives the benefit of not having to measure negligence and go into Hand formula iii Hypo going to a concert and suing for hearing impairment gt NL assumption of risks loud sounds reasonable person would expect it STRICT LIABILITY regardless of D s intent and whether D was negligent be even if reasonable care was exercised the risk still high a Generally activities where 1 the risk is great 2 likelihood of risk creating injug is high and 3 use of reasonable care doesn t negate or diminish the risk b Purpose of SL i Encourages people to stop highrisk activities or to make sure that the benefits far outweigh the high risks associated ii Encourages those who continue high risk activities to take precautionary measures and try to develop safer ways of going about the activity ii Forces the cheaper cost avoider who can spread the costs to absorb the cost of the abnormally high risk do not want to force loss on P 1 Wildknown to be vicious animal out of control a Ps got injured by D s elephant i If it were a dog negligence instead of SL bc we don t want to chill it has value it s common reciprocal nothing wrong ii Minority rule some courts will say it s negligence where there are animals in the circus involved b c We might be worried about animal cruelty if SL is enforced people might sedate etc their animals 2 Abnormally dangerous activity a Factors that an activity is abnormally dangerous i Rest 2nd Test for SL 1 Risk of harm is great 2 The harm that would ensue is great 3 The activity is not one of common usage 4 The harm cannot be prevented by utmost care 5 Activity is inappropriate for location where it took place 6 Social value is not sufficient to offset the risk value lt danger ii Look for 1 Activity levels v Care levels only SL will control activity levels 2 Reciprocal risks v nonreciprocal risks ex driving reciprocal risks no SL 3 Common a Is this something that is not unusual or rare b Rest 2nd whether it s common is based on whether mass of mankind engages in activity c Rest 3rd uses the example of electrical wires only may be one part of community involved in maintaining electrical wires but they go to everyone s house and benefits everyone so it s common because it s not strange or unusual to the place and provides many benefits even if only one entity encourages it 4 Social value is value lt danger b D loaded chemicals in railroad car and they leaked onto P s railroad causing evacuations of area D not SL bc D s reasonable care could have prevented accident use due care negligence analysis instead Leak was not due to inherent properties of the chemical chemical not dangerous enough to impose SL Claim should be brought under negligence 3 Respondeat superior a Theory that employer is liable for employees action when employee was on duty and acting within the scope of his employment i Generally look at a Foreseeability b Control locationtime was the employer controlling the activity c Risk characteristic of activity d Motive don t support personally motivated actions ii employee returns to his work site where he lived while drunk messed with drydock which caused damage Held employer SL because a Was within scope of his employment doesn t really care about purpose to serve the master b At time it was foreseeable that these employees would get drunk and return to boat where they worked and lived c Wasn t personally motivated 1 Employee had access to his area from employer Drydock is the least cost avoider but US is the loss spreader iii employee while at work was granted permission to go to bank On way back into accident D employer NL bc this was not within scope of employment went to back for personal reasons iv mailman was driving to work when he got into accident with P Held his employer SL bc they required that employees drive own cars on job also required them to take the fastest route to work not allowed to stop on way SL bc they could have provided vehicles for employees requiring them to get there as fast as possible made it in scope of employment was within employers control benefits employer a If newspaper delivery person instead of mailman method of transport is chosen gt independent contractor SL doesn t apply for torts of employees v P delaying bus driver by driving slowly bus driver got out of bus and hit P in his face Employer SL bc D was motivated to stay on schedule and benefit employer vi P was passenger on D s bus argued with driver when P got off bus he icked off driver who stopped bus chased P and beat him D employer NL bc actions were not to benefit employer motivated by own anger vii throwing of the stuff out of the window is not a risk characteristic to the business here motive is contrary to the employer question of control employer could control manner of delivery bc employee was actually on duty here and employer could reduce risk of we put liability on employer Maybe it was foreseeable maybe people get very embarrassed when wearing the uniform so we want to know if this has happened before PRODUCTS LIABILITY 1 Selling a defective product a Manufacturing defect something went wrong during the manufacturing process i Liability can fall on manufactures distributor or seller unless seller can prove he did nothing wrong ii Proof of specific defect is not required when the injury a Is the kind that ordinary occurs because of a defect AND b Some portion of the injury can be traced back to the defect iv Posner says that bc P used normal force to handle it so it means it s a manufacturing defect we don t usually expect Ps to inspect products before opening it v Hypo supermarket can t be held SL if a cart is defective bc they don t sell them but still can be sued for negligence vi Manufacturer is the least cost avoider either absorb the cost or increase the cost for customers vii minority rule No SL for restaurant after customer swallows one inch bone in a chicken enchilada restaurant owners are only liable for foreign substances in the food but not for injuries caused by substances natural to that particular food Majority rule foreign natural if not expected viii In most jurisdictions you can t sue for products liability if you didn t ingest some of the food e g bug in peas don t have to ate the bug but the peas b Design defect i the design of a police car was defective in that the frame was not able to withstand an accident on impact Majority of jurisdictions use riskutility test does the magnitude of scientifically perceivable danger outweigh the benefit of the product ii Minority view consumer expectations no case can be made against a bullet manufacturer by killing people something that is by nature dangerous cannot be analyzed under the riskutility test bc it s whole purpose is to be dangerous iii no L for VW for creating a more spacious car that caused the driver to be up closer to the front of the car and more likely to be injured during an accident if changing the design would mean losing the whole point of the design it is unlikely to have SL c Warning defect negligencelike calculation consider cost of the warning v bene t of the warning i If the risk is common knowledge gt D does not have to put a warning about it ii P ate veggie burger and got sick bc it had seaweed which she was allergic to gets case to jury burden of putting a warning on the label is pretty low there is some evidence that there is some risk probability of risk is pretty high one of the cost of warning is that there could be a lot of allergies so it could be expensive to discover what all of the risks are other cost is that it may be less effective because people won t read them we don t know if putting a warning about the seafood would have made a difference Q of factual causation iii The Heeding Presumption Ps in warning defect cases are entitled to a presumption that they would have read and would have heeded any warning If D introduces contrary evidence gt burden switches to P to show that hey in fact would have heeded iv P splills coffee and gets serious burns sues manufacturer of cup and of machine for not warning that hot coffee can do so much harm NL bc temp of coffee was not higher than usual and selling cooler coffee would take away from taste court brings up statistics showing normal temps of coffee gt not okay that court is looking things up on its own bc they may just look at things one sided etc P lost bc they didn t put forward any evidence coffee was hotter than other places previous burns etc and they had the burden of proof v P spills coffee and gets serious burns sues D and wins 3 Causation Factual Proximate 4 Damages 5 Defenses most juris allow the same as in negligence and SL a P s negligence b Assumption of risk in some juris it will just result in reducing the P s damages
Are you sure you want to buy this material for
You're already Subscribed!
Looks like you've already subscribed to StudySoup, you won't need to purchase another subscription to get this material. To access this material simply click 'View Full Document'