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1.0 Introduction
1.1 Early History
A. Definition 1. Tort = civil or private wrong 2. French word B. Roots 1. Roots in Anglo-Saxon emendatorty system i. Payments for wrongs ii. Came from Norman felony cases

1.2 Aims of the Law of Torts

A. Goals 1. Prevent self-help by victims and associates against the causer of injury 2. Retribution against wrongdoers 3. Deterrence against wrongdoers 4. Compensation for victims of wrongdoers i. Williams argues modern goal a. Questions ethical propriety: should society outgrow b. Social insurance may be cheaper c. Counterargument: way to restore dignity B. Elements of a Tort 1. Duty to someone else 2. Breach of duty 3. Damages that flow from breach of duty 4. Causation linking breach to damages (proximate cause)

1.3 Theoretical Structure of Tort Law and Expansion

A. Unitary theory 1. No wrong without a remedy 2. Redress for those at fault B. Particular theory 1. Widely accepted theory 2. Show analogy between new factual situation in tort and factual situation in traditional tort 3. Controversy i. Does method run afoul of legislative supremacy ii. Controversy is heightened by fact tort law is grab-bag when other legal avenues fail

Page 2 C. Innovation in Torts Roberson v. Rochester Folding Box (N.Y. 1902): D takes picture of P and uses for advertising w/out P's permission. P seeks emotional damages and injunction on "right to privacy" doctrine. Court denies because of lack of precedent and fear of where precedent will go.

1.4 Development of Modern Tort Law and Fault

A. English Remedy for Injury 1. Trespass i. D cuts down tree and falls on P 2. Trespass on case ii. D cuts down tree, P comes along later and trips 3. Highly technical system hinging on pleadings i. Sharpened issues ii. Got rid of unnecessary cases iii. Juries were from local community and already knew facts B. Squibs Scott v. Shepherd (C.P. 1773): Scott throws squib; lands on Willis' table; Willis throws on Yates' table; Yates throws in direction of Shepherd, putting out his eye. S>W>Y>S. Majority finds trespass and liability for Yates. Blackstone holds trespass on case and liability for Scott. C. Evolution of Fault Case of Thorns (1466 Year Book): D was cutting thorns and some of the thorns fell onto P's land. D went to retrieve them, causing damage to P's crops. D plead ipso invito (no intnet), but lost. If one unintentionally hurts a person or property through legal action, they are liable for damages. Weaver v. Ward (King's Bench, 1616): P was shot by D when his musket accidentally discharged during a military exercise. P sued for assault and battery. Court found that unintentional acts are not felonies, but D may be held liable for damages. D. Breakdown of Negligence Brown v. Kendall (Mass. 1850): P lost eye when he approached D from behind while he was trying to break up dogfight w/ a stick. Court finds that P must prove w/ evidence a lack of care (negligence) on D's part.

Page 3 D is negligent P is D wins on contributory negligence negligent rule: If P contributes to negligence, he gets nothing P is not negligent P wins: no problem Used until the 1970s E. Burden of Proof 1. Pleading burden: P has burden of pleading first i. D responds 2. If P makes complete case D has burden of going forward i. P then has burden and so on 3. Ultimate burden of persuasion: parties win or lose through perponderence of evidence D is not negligent D wins: no problem D wins: If P cant show negligent behavior or intent, there is no responsibility

2.0 Intentional Torts

2.1 Concept of Intent
A. Restatements R3 1: Intent 1. A person acts with intent to product a consequence if: i. The person acts w/ intent to produce consequence if: a. Person acts with the purpose of producing that consequence OR b. The person acts knowing that the consequence is substantially certain to result 2. Comments i. Must be purpose to cause to cause harm of substantial certainty of harm occurring ii. Limited to substantial certainty for one person or small group R3 2: Reckless conduct 1. A person is engaging in reckless conduct if i. The person knows the risk of harm created by the conduct OR ii. Knows facts that make that risk obvious to another in the persons situation AND a. The precaution that would eliminate or reduce that risk involves burdens that are so slight relative to the magnitude of the risk as to render the persons failure to adopt the precaution a demonstration of the persons indifference to the risk 2. Comment: gross negligence, willful or wanton misconduct, disregard or indifference for riskconduct could have been reduced by precaution

Page 4 B. Beyond Traditional Intentional Torts Jackson v. Brantley (Ala. Civ. App. 1979): P sues D for damages to car after P hits unbridled horse D is leading back to land at night. AL statute makes owner of livestock liable for damages only if he knowingly or willfully put animal on public highway. Court finds D intentionally led unbridled horse. Beauchamp v. Dow Chemical Co. (Mich. 1986): P is exposed to agent orange, suffers damages. P alleges intentional injury to get out of worker's comp. for accidents and into common law. Court moves from true intentional tort to substantial certainty to deter employers from injuring or killing workers.

2.2 Battery and Assault

A. Cases Masters v. Becker (N.Y. S. Ct. 1964): P pried D's fingers off truck bed causing her to fall and sustain serious injuries. Court finds that although intent to injure was not there. Lean on R 16 to find offensive contact counts as battery. P has to show 1) bodily contact; 2) contact was offensive; and 3) D intended to make contact. D is liable. Brzoska v. Olson (Del. 1985): P sues D's estate for practicing as a dentist while dying of AIDS; allege that contact was a battery after learning of AIDS. Court finds that touching was intended, but not offensive because of remote chance of exposure. The contact must offend a "reasonable person" for it to be a battery. Policy: didn't want AIDS phobia. Dickens v. Puryear (N.C. 1981): D retaliates for P's relations with daughter by beating him, cutting his hair, and threatening to kill or castrate him if he didn't leave state. Court finds assault for creating apprehension of imminent harm or offensive contact through threats of killing of castration. Found battery for beating and haircut, but find 1 year statute of limitations bar recovery.

2.3 Transferred Intent

A. Case Singer v. Marx (Cal. Dist. Ct. App. 1956): D throws rock at Barbie, but hits P, causing injury. Court finds that doctrine of transferred intent makes D liable. If D unlawfully aims at a person but hits another, he is liable to P because injury is the direct, natural, and probable consequence of wrongful act. All evidence points to liability (D throws at P; D throws at Barbie and hits P; D negligently throws rock and hits by accident).

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2.4 Insanity
A. Case White v. Muniz (Colo. 2000): P, a nursing home patient, hits D while trying to change diaper. P is diagnosed with Alzheimer's. Court finds no battery because D did intend contact while appreciating the harm of offensiveness of contact. Rely heavily on R2 18 to create dual intent rule; jury must look into mind of D to determine intent to contact AND intent to harm or offend.

2.5 Trespass to Land

A. Background 1. Historically a trespass on case 2. Intentional tort i. Knowledge of property ownership or mistake irrelevant ii. As long as D intended to take step on Ps land intent exists (R2 164) 3. P is entitled to nominal damages regardless of actual damages i. title of land and inviobility of property B. Variations 1. Involuntary entry does not count i. Stumble and falling doesnt count 2. Privileged entry i. Expressed consent ii. Implied consent a. Peaceable entry (unless otherwise noted) b. Emergency c. Circumventing obstacle d. Retrieving animal 3. Other situations i. Ab inito: come onto land commit tort a. considered trespasser from beginning ii. Command to leave a. failure to leave land in reasonable time when asked is trespass b. Same goes for property: failure to remove some property from land is trespass * can only enter land to retrieve chattel C. Extent of protection 1. Airspace i. Nuisance and taking 2. Subsurface i. Prevention of taking

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2.6 Trespass to Chattels

A. General 1. Covers interference OR destruction of chattels i. Mistake of ownership is not a defense 2. Trespass to chattel will lie if: i. Chattel is dispossessed from P AND ii. Damages: physical damage to chattel or loss of use of chattel iii. Interference w/ chattel requires proven damages (R2 218) 3. Conversion i. Trespass to chattel is close tort of conversion ii. R2 222A: intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay full value a. Could be unauthorized use, destruction, possession, or disposition of chattel

2.7 Defenses
2.7.1 Consent Hellriegel v. Tholl (Wash. 1966): D tries to throw P into lake after P give invitation. D slips and falls on P's neck, injuring it. Court found battery occurred, but injury stemmed from horseplay that was consented to. Invitation of risky activity is acceptance of resulting injuries. Mulloy v. Hop Sang (Alberta, 1935): D hurts hand in car accident, asks D to look at it but not cut it off. P puts D under anesthetic, cuts off hand to save D; D won't pay so P sues to recover costs of surgery. Court finds that without consent cutting off hand was battery and P can't recover costs. P pays damages to D. 2.7.2 Self-Defense Lane v. Holloway (WLR App. Ct. 1967): Old P challenges young D to a fight and throws a punch at D's shoulder. D gives hard blow to the eye severely injuring P, hospitalizing him. Court finds that D was defending himself, his blow was out of proportion to fight and is liable to P for injury. Silas v. Bowen (D.S.C. 1967): P makes angry advance toward D while threatening and grabs him while reaching into pocket. D pulls out shotgun and fires at ground injuring P's foot. Court finds that P was trespassing on D's property, D did not have to back down. P's actions put D in apprehension of bodily harm and warning shot was reasonable use of force.

Page 7 2.7.3 Defense of Property Brown v. Martinez (N.M. 1961): P was stealing watermelon from D's land; D fired rifle to scare boys and bullet hit P's leg. Court found that using a deadly weapon to defend the property against the misdemeanor was excessive and found D's liable for his legal assault that resulted in P's battery through transferred intent.

2.8 Discipline
A. Scope 1. In special situations, law may give privilege of discipline i. Parent and child ii. Student and teacher iii. Soldier and military 2. Discipline limited by criminal code i. May not assault or batter or use excessive force

2.9 Necessity
A. General 1. Public necessity i. Destruction of property for greater good a. Prevent supplies from going to enemy b. Stopping fire by destroying property c. Apprehending or neutralizing criminals ii. Destruction or taking of private property is usually compensated a. Exception: Great public necessity 2. Private necessity i. May be used as affirmative defense to tortuous action a. Civilians destroying whiskey before falling into enemy hands B. Cases Ploof v. Putnam (Vt. 1906): P was out in boat when storm hits; anchors boat to private island dock belonging to D. D's servant unties boat during storm, causing P to wreck and sustain injuries. Court finds that doctrine of necessity excused trespass because of extraordinary circumstance, especially w/ life at stake; D's servant was negligent to untie boat. D is vicariously liable for servant's torts when they are within scope of employment. Vincent v. Lake Erie Transportation Co. (Minn. 1910): Steamship belonging to D at P's dock when storm hits. Ship cannot leave, so it ties down to dock and reties w/ stronger ropes. Movement of ship damages P's dock. Court finds D made intentional choice to preserve ship over dock; D is liable for P's damages.

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3.0 Negligence
3.1 Historical Development
A. Changes in Pleas 1. Difficult to determine plea of trespass or trespass on case i. Wrong plea led to dismissal 2. Ps carriage dilemma i. P doesnt know who was driving when he was ran over ii. If he brings T on master while servant driving, P lost iii. If he brings ToC on master with master driving, P lost 3. Ps responded by joining servant and master and brought ToC

3.2 Plaintiffs Prima Facie Case

A. Elements 1. Negligent tort requires proof of damages i. Trespass on case required 2. Parts i. Damages ii. Fault by D a. Duty b. Breach of duty iii. Causation a. Breach of duty led to damages B. Fault 1. Guided by common sense notions of fault 2. Typical standard is reasonable person in same situtation i. If behavior exercises less judgment or knowledge, negligent 3. Holmes on the Common Law i. A Person is expected to sacrifice peculiarities for general welfare ii. Courts of heaven may excuse a man born hasty and awkward iii. Accidents, however, are just as troubling as negligent action iv. Neighbors require hasty and awkward to come to their standard C. Restatement R3 7(a): An actor ordinarily has the duty to exercise reasonable care when the actor's conduct creates a risk of physical harm. 7(b): A court may decide that ordinary duty or reasonable care requires modification in warranting exceptional circumstances.

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3.3 Standard of Care

3.3.1 Reasonable Person A. Cases Vaughan v. Menlove (Ct. of Comm. Pleas, 1837): D put a haystack on his land next to P's cottage; he was warned that it may catch fire and D said "I'll chance it." D's stack caught on fire and burned P's cottages. Court found that D is liable to P on grounds that D had duty to not injure property of others and a reasonable man of reasonable prudence should have exercised greater care through better judgment.

Delair v. McAdoo: (Pa. 1936): D passes P on highway, tire blows out, and D swerves into P. Evidence revealed that tire was worn. Court found that D had a duty to take precautions to make vehicle reasonably safe for use on road so as not subject others to unreasonable risk of operation. Ignorance of tire condition is not an excuse: knowledge of tire condition is part or reasonable standard of care. 3.3.2 Variations on Reasonable Person A. Cases Charbonneau v. MacRury (N.H. 1931): Minor D driving car hits and kills minor P. Court finds that absence of evidence to the contrary a minor should be held the standard of care his average peer would exercise. Adult standard would unfairly force child to exceed capabilities, reason, and intellect in an arbitrary and penalizing manner. Goss v. Allen (N.J. 1976): Minor D skis down bunny hill, and injures P at bottom of slope. Court finds that D will be held to standard of care exercised by reasonably prudent person his age. A minor will not be held to adult standard of care unless he was engaging in activity normally undertaken by adults. Going down bunny hill was not adult activity. Haley v. London Elec. Board (H. of Lords, 1964): Blind P trips over a trench dug by D while workers were away. Court found that D had a duty to protect to protect blind from injury and no detectable barrier was negligent. Although the chances of a person with P's disability coming along were, there were enough blind people in city that the risk was unacceptable. Reasonable person in D's position should have anticipated hazard and taken precautions.

Page 10 3.3.3 Calculus of Risk A. Cases Barker v. City of Philadelphia (E.D.P.A. 1955): D sees large piece of paper in the street; tries to avoid it thinking there could be something that could hurt tires. D misjudges distance, runs over paper, killing P underneath. Court finds that a person of reasonable prudence and caution may be negligent even though he considers consequences and exercises his best judgment. D was negligent and cannot escape liability for damage because he didn't foresee particular result of negligent act. United States v. Carroll Towing Co. (2nd Cir. 1947): D's barge breaks away while bargee was gone, allowing barge to break away and sink with P's cargo. Court finds duty if B<PL where B=burden of precautions, P=probability of accident, and L=injury. D should have had bargee present during day when risk of accident was higher: could have saved cargo. Pitre v. Employers Liab. Assurance Corp. (La. 1970): P is killed at when boy accidentally hits him while winding up to throw baseball at concession stand; P sues D, the fair. Court finds that D has a duty to take precautions against foreseeable and unreasonable risks of injuries. Facts and environmental circumstances point to risk of incident being very small. No negligence for reasonable person failing to use care to prevent every foreseeable injury if they are unusual or improbable. 3.3.4 Judge and Jury in Standard of Care A. Roles 1. Judges decide questions of law 2. Juries decide questions of fact 3. But who decides mixed questions of law and fact? B. Legal universe 1. Alpha facts: obvious facts 2. Aleph facts: what is standard of care? 3. Question of law

Page 11 C. Homes, Cardozo, and Traynor 1. Homes and Traynor i. Standard of care and negligence is a question for judges a. Judges should be better at determining w/ experience b. Judge could use jury to weigh in, but ignore c. Judge creates pigeon holes that narrow uncertainty d. Avoid prejudice or bias 2. Cardozo i. Standard of care and negligence should be left to jury a. Juries taking facts into account are better than pigeon holed justice b. Factual element to standard of care 3. Cardozo is used by most courts today 3.3.5 Legislative Standard of Care: Statutory Violation A. Cases Martin v. Herzog (N.Y. 1920): While P was rounding a curve in a buggy, D went into there side with a car, hitting P. D used defense that P was violating NY traffic law by not using a light required after dark. Court found failure to obey law negligence per se because it infers causal connection w/ accident. Violation should not have been ignored by jury because omitting safeguards to protect life is negligence. Brown v. Shyne (N.Y. 1926): Chiropractor D treats P for laryngitis without required N.Y. health license. P suffers paralysis and sues for injuries. Court found that failure to have license was not causal fact of P's injury; lack of direct causation make statutory violation irrelevant. Statutory violation is only negligence per se if it directly caused injury and injury was kind the legislature enacted the statute to guard against. D will, however be held to licensed doctor's standard of care. Telda v. Ellman (N.Y. 1939): P was walking down highway on right side of the road when a car driven by D comes from behind and hits P. D argues that by violating NY traffic law requiring pedestrians to keep to left side of road, P was negligent per se and couldn't recover. Court found that statute codified common law and had certain exceptions. A legislature would not intend a statute to intended to protect pedestrians to subject them to greater danger. Barnum v. Williams (Or. 1972): P was driving motorcycle up a hill and on a curve while D was going downhill in a care and around same curve. D saw P used breaks suddenly, slipping onto P's side. Court doesn't find D negligent per se, but find that violations of vehicle statutes create presumption of negligence. D must introduce evidence to show that they were acting as a reasonable person under the circumstances.

Page 12 3.3.6 Proof of Negligence A. General 1. Finding reasonable person standard and evaluating risks not always clear 2. Custom is helpful type of evidence i. Establishes prevailing practice in community or industry ii. Looks to trade rules or standard in industry 3. Expert witnesses familiar with practice can show less obvious custom i. Provide special knowledge or experience B. Usage 1. Judge reviews witness qualification and determines expertise 2. Jury may chose to accept or reject expert testimony i. Exception: medical malpractice C. Cases Dempsy v. Adison Crane Co. (D.D.C. 1965): Construction worker was helping move welding machine with a crane when jib broke free and fell on D, injuring him. Court found that industry standard is admissible on issue of negligence, but not conclusive; court makes final call on negligence. In this case, the minimal cost of modifications by closing hooks made failure to do so negligent given risk. Shilkret v. Annapolis Emergency Hosp. Ass'n (Md. 1975): Infant P had brain damage on delivery, parents sued. Lower court found D not negligent on "strict locality rule" or "similar locality rule" Court finds old rule outdated and that rule should be national standard for reasonable competent practitioner in the same specialization acting in the same or similar circumstances. Same rule applies to hospitals: standard of care is for reasonably competent hospital. Helling v. Carey (Wash. 1974): P had glaucoma, but ophthalmologist D didn't detect it for 5 years; didn't give eye pressure test because P was under 40 and disease was rare. Court found that standard practice is not always what ought to be standard of care. D was negligent despite practice standard. Test was simple and inexpensive and P is entitled to same protections a person over 40 enjoys. Miller v. Kennedy (Wash. Ct. App. 1974): P had heart problem, D gave kiddney biopsy to help diagnosis; but D did not tell P about risks or alternate treatments. D hits kidney and causes failure. Court finds that doctor has duty to disclose information on risks and alternatives to let patient make informed decision. Duty to disclose when there is: 1) material risk of injury; 2) feasible alternatives available; and 3) D can advise P without detriment. Exceptions are emergency and greater harm from disclosing. To win non-disclosure, P has to show reasonable person in his situation wouldn't take treatment leading to injury.

Page 13 3.3.7 Circumstantial Evidence: Res Ipsa Loquitur A. Cases Byrne v. Boadle (Ct Exchequer 1863): P is walking down highway under D's store when barrel of flour falls on him. Witnesses only see P hit by barrel, nothing else. Court finds that some cases may give rise to res ipsa loquitur when facts and injury lead to reasonable inference of injury. If P can show accident with prima facie evidence of negligence, burden may shift to D to refute. George Foltis Inc. v. City of New York (N.Y. 1941): D's water main broke causing P's restaurant to flood. P couldn't show negligence in pipes, invokes res ipsa loquitur. Court funds that res ipsa weakened by fact pipe was buried for nine years before break. Prima facie case of negligence made, but not enough to fully shift burden of proving damage was not negligence. P still must support inference of negligence w/ preponderance of evidence. Swiney v. Malone Freight Lines (Tenn. Ct. App. 1976): D's truck wheel became detached and hit P's car; court allowed case to go to jury under res ipsa loquitur. D provided evidence that tires were inspected and came off on bolt shearing. Court found that shearing happened, but negligent inference still fell on D given they drove with bad bolts. Ybarra v. Spangard (Cal. 1944): P went into surgery woke up with injured shoulder; sued hospital and doctors operating room. Court found res ipsa applicable when 1) accident does not normally occur w/out negligence; 2) caused by agency or instrumentality within control of D; and 3) no voluntary action or contribution by P. Also found that P did not need to point to single D as that would be unreasonable while unconscious.

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4.0 Causation
4.1 Cause in Fact: But For Test & Notion of Substantial Cause
A. General 1. Two-part test a. Was Ds conduct the cause-in-fact of Ps injuries? b. Was Ds conduct also the proximate cause of Ps injuries? 2. Cause is theoretical ability to recreate the event with what happened before 3. Sine que non test a. But for b. X caused Y: if X didnt happen, Y wouldnt happen 4. Cause-in-Fact Element a. Event can be described as part of a number of antecedent events which culminate in event under consideration b. Absence of particular antecedent event would diminish probability of consequent event 5. Logic of Causation a. Not looking for THE cause b. Looking for substantial cause or causes Kingston v. Chicago and Nw. R.R. (Wis. 1927): D caused one fire that joined up with a fire from a unknown source and burned down P's property. D raised defense that other fire would have burned property. Court found that concurring negligent acts that result in injury leave each actor individually responsible for full amount of injury. Test of causation is substantial factors. Kramer Service v. Wilkins (Miss. 1939): Defective transom fell on P while leaving room; two years later, P gets cancer in area of wound. P sues D for cancer. Court found from expert witnesses that chances of cancer from wound were remote. It is not enough that accident and injury coexisted; preponderance of evidence shows fallacy of post hoc ergo propter hoc. Daly v. Bergstedt (Minn. 1964): P trips on masonite in D's store and bruises breast; gets breast cancer 14 months later. Expert testified that trauma can cause cancer; 6 experts said no. Court found that legal causation takes into consideration a chain of events and allows inferences if natural and rational. Deference given to trier of fact. Daubert v. Merrell Dow Pharm. (1993): Trial court ruled evidence submitted by P was inadmissible under Frye standard because it was not "generally accepted" in its scientific community. Court found that the primary requirements are reliability and relevance to question tried. Reliability may be measured by testability, peer review, publication and acceptance.

Page 15 Summers v. Tice (Cal. 1948): Two hunters shot at quail at the same time and accidentally hit P; it couldn't be determined who actually hit P. Court found that if two or more parties commit a tort (negligence) in concert, both parties are the legally responsible for injuries on grounds that D was assisted in injury. When P shows multiple Ds have committed tort, burden falls to D to absolve himself. Matsuyama v. Birbaum (Mass. 2008): P had gastric cancer, but D failed to diagnose for 4 years; P went from low chance of survival to almost no chance. Court found that P could recover for loss of chance for recovery, even if odds of survival were less than even. Jury will take lost chance to recover and multiply by full damages to determine D's liability.

4.2 Proximate Cause

In re Polemis (Ct. App. 1921): D's employees negligently knocked a plank into ship hold causing explosion that destroyed entire ship. Court held that if D's action is the direct cause of the injury, D will be held liable. Foreseeability does not excuse liability. Palsgraf v. Long Island R.R. (N.Y. 1928): Employee of D pushed man onto train, causing him to drop unmarked package of fireworks, causing explosion that knocked scales onto P who was on other side of platform. Court found that Consequences of negligence have to be foreseeable for D to have duty to P. P cannot recover from D's negligence if outside orbit of danger. Wagon Mound I (Privy Council 1961): P negligently discharged oil into bay and accumulated around D's dock. D dropped molten metal into water which caught fire and burned dock. Court found that a person guilty of negligence should not be liable for damage that was not a natural or ordinary consequence unless it is proven that the consequences were foreseeable. Slight acts of negligence with trivial foreseeable damage cannot lead to unlimited liability for direct consequences. Hughes v. Lord Advocate (House of Lords 1963): Infant P saw D's open manhole with tarps and lamps and tripped over lamp causing it to fall into the hole and explode, severely burning him. D argues that lamp could not foreseeable lead to injury. Court found that when considered in context, site was allurement for children. Although exact details of injury could not have been foreseen, D will still be liable if type of injury was reasonable foreseeable. Doughty v. Turner Mfg. Co. (Ct. App. 1963): While P delivered message, D's furnace lid slid into molten bath and then exploded causing splash that burned P. Court found D is not liable because they could only reasonable foresee a splash from the lid sliding in, not the lid exploding. Any injury for lid explosion would not make D liable.

Page 16 In re Kinsman (2nd Cir. 1964): D's ship broke lose from dock with bad mooring and took another ship down river, hitting city draw bridge and causing flood. City, boat owner, and dock liable for the forces they unleash; found consequences of negligence foreseeable. Last clear chance may lead to some city liability, but boat owner and dock still liable for damage they caused. Wagon Mound II (Privy Council 1966): P was a ship at dock burned by D's oil discharge into the bay. Court found that although the risk was small, so much oil was discharged by engineer that he ought to have foreseen a minimal risk. A reasonable man would not have dismissed such a small risk because it was easy to prevent. A small risk may outweigh a trivial burden.

4.3 Intervening Causes and Superseding Causes

Glasgow Realty Co. v. Metcalfe (Ky. App. Ct. 1972): D owned apartment building. Boy put hand on glass, caused it to fall out, and break on awning. Crowd stampeded and unknown person knocked P over. Court found that intervening negligence of boy or unknown person do not protect D from liability. Negligence of D led to foreseeable result through unforeseeable cause. Brauer v. N.Y. Central & Hudson R.R. (N.J. Ct. Err. & App. 1918): D's train hit P's wagon scattering barrels of cider. While P's employee left to get help, barrels were stolen; while two railroad detectives did nothing. Court found that act of third person will not excuse a wrongdoer if act could have been foreseen. In a large city, theft was natural and probable of abandoned property.

5.0 Others Conduct as a Contributing Cause

5.1 Contributory Negligence
A. Overview 1. Multiple Ds may contribute to injury 2. P may have contributed to injury 3. Contributory negligence universally recognized until mid-20th Century a. If P was negligent, D had an affirmative defense Butterfield v. Forrester (K.B. 1809): P was riding his horse down the street and ran into pole laid across the street by D, causing him to fall off. Court found that P was riding his horse recklessly and if he used ordinary care, accident would have been avoided. If P is found to be at fault, he may not recover.

Page 17 Smithwick v. Hall & Upson Co. (Conn. 1890): P went onto part of the platform where D told him not to go; icehouse wall fell on him, causing him to fall from platform. Court found that D was liable because P was not contributorily negligent with respect to source of danger. D warned because there was no rail, not because of bad wall. Negligence from P must be proximate cause (added to probability) rather than condition (no alteration of event probability).

5.2 Comparative Negligence

Hoffman v. Jones (Fla. 1973): Replaced contributory negligence with pure comparative negligence. Addresses injustice of P slightly at fault getting nothing, allows P to recover for any injury, allows apportionment of fault. Bradley v. Appalachian Power Co. (W. Va. 1979): Replaced contributory negligence with comparative negligence up to 50%. Keeps P from recovering when substantially at fault, while allowing slightly negligent P to recover. Prevents rewarding of negligence. A. Issues Arising from Comparative Negligence 1. Applied to intentional behavior and cases where fault is not the issue 2. Issue of if apportionment should be on fault or responsibility 3. R3 8: Factors for assigning responsibility a. Nature of risk creating conduct b. Strength of causal connection between risk creating conduct and harm 4. Factors may include: a. Nature of risk-creating conduct b. Causal connection c. Unreasonable conduct in circumstances d. Extent to which the conduct failed to meet legal standard e. Persons abilities and disabilities f. Awareness g. Intent h. Indifference

Page 18 B. Last Clear Chance Doctrine 1. Developed early in history of contributory negligence 2. Negligently caused injuries from a sequence of events 3. Courts give legal blame to last party who had chance to avoid injury a. Softened impact of contributory negligence b. Created confusion for the courts 4. R2 479: Last Clear Chance for Helpless P a. P subjecting self to risk of harm from Ds following negligence may recover from the harm if i. P unable to avoid by reasonable vigilance and care ii. D fails to utilize with reasonable care and competence the opportunity to avoid harm iii. Knows Ps situation and has reason to realize peril iv. Would Discover situation or have reason to realize the peril if he exercised dutiful vigilance 5. R2 480 Last Clear Chance for Inattentive P a. P could have discovered danger with reasonable vigilance may only recover if D i. Knows Ps situation ii. Realizes or has reason to know P is inattentive and will not discover peril in time to avoid harm iii. Is thereafter negligent by failing to use reasonable care and competence to avoid harm

5.3 Assumption of the Risk

LaFrenz v. Lake County Fair Bd. (Ind. 1977): P was killed in pit area of demolition derby in fair run by D. Before entering pit, P signed waiver and release form for D. Court found that P and D had freedom to contract and that P was fully aware of the consequences of the waiver. No reason to exculpate P from assumption of risk (necessity, unequal bargaining power, etc.). Herod v. Grant (Miss. 1972): P fell of off truck toolbox when D driving the truck started to chase deer. Court found that if a party knows a condition is inconsistent with his safety, appreciates the danger, and chooses to expose self to danger, he has assumed risk. Implied secondary assumption of the risk in engaging in dangerous activities. Jones v. Three River's Management Corp. (Pa. 1972): P is hit in eye by baseball hit in batting practice while walking up D's stadium concourse. Court found that operator of place of amusement is only liable when he fails to use care with regard to the character of the exhibitions given and the customary conduct of patrons. On a baseball field, P assumed risk when in stands, but concourse design was not ordinary to watching baseball. D failed to protect P.

Page 19 Auckenthaler v. Grundmeyer (Nev. 1994): P is kicked by D's horse during field exercise. Court found that assumption of risk theories have been subsumed by comparative negligence. Implied assumption focuses on D's lack of duty while comparative negligence analyzes conduct of actor, injured party, and standard of care.

5.4 Avoidable Consequences

A. Mitigation Before Accident 1. Ps behavior before or after accident may impact damage suffered a. P has responsibility to take reasonable action to avoid adding to injury 2. In general, P owes no duty to minimize effect of Ds negligence through protective measures B. Mitigation After Accident 1. Court may reduce damages if P fails to make reasonable effort to mitigate damages (e.g. test, lose weight, second opinion) 2. If Ps superceding action was egregious enough, D may be relieved of all responsibility

5.5 Responsibility of Multiple Parties

5.5.1 Introduction and Definitions A. Definitions 1. Vicarious liability a. D held legally responsible for tortious conduct of another 2. Joint Tortfeasors a. More than one party causes P indivisible injury 3. Indemnity a. D vicarious liability may be indemnified by having responsible D pay for Ps damages 4. Contribution a. One D having to pay damage has right to recover from other tortfeasors 5.5.2 Vicarious Liability A. Overview 1. Not based on fault, but status 2. Relationship creates liability a. Usually employer and employee b. Tort done by employee must be within scope of employment

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Wong-Leong v. Hawaiian Independent Refinery, Inc. (Haw. 1994): P sued D under vicarious liability when D's employee crashed into P's car coming home from company party. Court found that if D's employee was acting within scope of employment when tort was committed. If activity derives benefit for employer and risks are incidental to enterprise, scope of employment can be found. Jones v. Healthsouth Treasure Valley Hosp. (Idaho 2009): During surgery on P in D's hospital, transfusion technicians left pressure cuff on bag, causing fatal air embolism. Court found that contractor who performs services for D may render D liable if P reasonably accepts services with belief that they are rendered by D or employees. Apparent authority if D holds self out as agent and is accepted. 5.5.3 Indemnity A. Common Law 1. Party satisfying claim of P could recover entire amount that had been paid from the party against whom indemnity is granted 2. Vicarious liability makes sure that P gets paid 3. Indemnity promotes deterrent and punishment of person at fault 4. Covers situations where one D may be passively negligent and other actively negligent a. E.g. defective product from manufacturer that retailer sells 5. Comparative fault has modified 5.4.4 Imputed Contributory Comparative Negligence A. Both Ways Rule: Transferrable negligence 1. Negligence is imputed to Co-D when D was negligent 2. What about when P? a. courts usually rule it applies both ways 3. R3 5: Contributory negligence is imputed in most situations, but exception is carved out in automobile accident cases 5.5.5 Joint and Several Liability Walt Disney World Co. v. Wood (Fla. 1987): P injured at D's attraction; P 14% at fault, D 1% at fault, and P's fiance 85% at fault. Court found D jointly and severally liable, making D liable for 86% of costs. Joint liability makes D liable for fiance's amount because of spousal immunity. Interests of P keep joint liability despite adoption of comparative negligence.

Page 21 5.5.6 Contribution Among Joint Tortfeasors A. History 1. Used to be no right for contribution or partial payment 2. Most American Jurisdictions now allow

5.6 Group Liability

Sindell v. Abbott Labs. (Cal. 1980): P who was child of mother taking DES during pregnancy sued major manufacturers of DES together because she couldn't identify the maker. Court found that between innocent P and negligent D, D should bear costs. Imposed market share liability, dividing liability by market share of DES. Shackil v. Lederle Labs. (N.J. 1989): P injured by DPT vaccine; finds out 13 years later. Tries to impose market share liability on collection of D's. Court finds that market share is inapplicable because of varying nature and risk with each manufacturer's vaccine, compensation available under vaccination act, and public policy considerations of cost and availability of vaccines.

6.0 Negligence: Foundational Duties

6.1 What is Duty and How Do Courts Decide?
A. What Duty Is 1. Court decides duty, jury everything else 2. Duty consists of legal obligations a. Prosser: duty is sum total of policy considerations which lead law to say P is entitled to protection 3. Themes a. External goals to dispute? b. Free from analysis of breach and proximate cause? c. Broad decisions or fact judgments? B. Duty Considerations 1. Foreseeability 2. Community Notions of Obligation 3. Broad sense of social policy 4. Commitment to rule of law 5. Concern for courts capability and convenience

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6.2 Duty Not to Create Risk of Physical Harm

A. R3 7: 1. Actor ordinarily has duty to exercise reasonable care when actors conduct creates risk of physical harm a. Actor ordinarily has duty to exercise reasonable care when actors conduct creates a foreseeable risk of physical harm to a foreseeable person or class of persons 2. In exceptional cases, where countervailing policy warrants, a court may decide that D has no duty or reasonable care requires modification Thompson v. Kaczinski (Iowa 2009): D left trampoline in yard and storm blew onto road; P swerved and rolled into ditch. Court found that P had a duty as a property owner to exercise reasonable care to avoid putting obstructions on the roadway. Foreseeability may go into determination of duty, but public policy of highway safety outweighs.

6.3 Affirmative Duties to Warn, Protect or Rescue

6.3.1 General Rule A. Source of Harm 1. If one creates the risk of harm, one owes duty to engage in reasonable care 2. No duty to warn, protect, or rescue another from risk created by other source 3. R2 314: Fact the actor realizes he should have taken action to aid or protect another does not by itself impose duty to take action 4. Common law has gradually come to impose duties to warn, protect, or rescue another in certain circumstances B. Affirmative Duties When 1. Special relationship between P and D creates duty to care 2. D voluntarily promises to aid or does aid P 3. D created risk or danger from which P requires aid 4. D has special relationship to third party which cause harm to P 5. Statutory duty found sufficient to justify imposition of negligent duty 6.3.2 Policing Line between Misfeasance and Nonfeasance Price v. E.I. Dupont de Nemours & Co. (Del. 2011): P was married to D who brought home asbestos from work; P became ill. Court found that D committed nonfeasance by failing to warn or prevent exposure, but lack of special relationship means D does not have any legal duty to P.

Page 23 6.3.4 Exceptions to General Rule: Affirmative Duties Grimes v. Kennedy Krieger Institute, Inc. (Md. 2001): P was part of scientific study D conducted where children were put in houses with partial lead abatement to study impact on health; P was not informed of any danger. Court found that D had duty to P from special relationship as researcher and participant. With gap in information, P could not be solely responsible for protection from harm. Farwell v. Keaton (Mich. 1976): P injured in fight; friend D finds him under his car, gives him an icepack, tries to wake him up at grandparents, and abandons him. P dies in hospital 3 days later. Court found that D had special duty to P because they were on a joint social venture. D's attempts to rescue fell short because he did not seek medical help for P or let anyone know of his whereabouts. Maladonado v. S. Pac. Transp. Co. (Ariz. 1981): P tried to board D's train; employees caused jerking to keep P from boarding. P fell under, lost arm, broke leg; D did not call for help. Court found that if a person know or should know they caused harm, they have duty to prevent further harm. Duty includes aiding or averting harm if caused by D's instrumentality. Thompson v. County of Alameda (Cal. 1980): P's minor son was killed by juvenile released by D after juvenile made threat to kill a child if released. Court found that D had no duty to warn P because threat was not made against specific person. Lack of forseeable target meant warning to mother or neighborhood would have little value.

6.4 No-Duty Based on Public Policy

Strauss v. Belle Reality Co. (N.Y. 1985): P injured during power outage caused by D by falling down stairs in public area of apartment common area. Court found grounds of limiting liability to manageable amounts and that duty may be waived. Foreseeable P may be within D's duty, but courts may modify if circumstances dictate. Graff v. Beard (Tex. 1993): P injured in accident caused by drunk driver who got drunk at social host's party. Court found that because legislature rejected idea of creating liability, court will continue. If duty is unreasonable and poses and undue burden to uphold, court may waive.

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7.0 Negligence: Special Duties

7.1 Landowner Liabilities
A. Distinctions 1. Invitee i. Permission to enter b/c owner has material interest ii. Invited as member of pubic iii. Shoppers, places of worship, public access 2. Licensee i. Duty to use reasonable care w/ respect to conditions ii. Visitors w/ permission that landowner has no material interest iii. Social guests 3. Trespasser i. Entrant w/out permission ii. Duty not to injure trespasser B. Trends 1. Common law protected rights of landowners and occupiers to protect visitors from dangerous conditions on land 2. Over time, distinctions have evolved into more unitary duty i. Same duty to invitees/licensees ii. Some have gone so far as to impose care for trespassers C. Cases Cochran v. Burger King Corp. (Mo. App. Ct. 1996): P went dumpster diving in D's walled off dumpster; dumpster fell on P and injured him. Court found that because P was trespasser at the time he was injured, D owed no duty other than not to intentionally or wantonly hurt him. Trespassers take the land as they find it. Nelson v. Freeland (N.C. 1998): P tripped over stick left on D's front porch when picking him up for business meeting. Court abolished distinction between invitee and licensee and applied standard of reasonable care to both. Increases property owners liability by some amount. Bennett v. Stanley (Ohio 2001): P's child failed into unmaintained swimming pool, wife went after child and drowned too. Court adopted restatement doctrine of attractive nuisance to convert child from trespasser to licensee, also imposing duty to mitigate danger. Mother was a licensee when attempting to rescue child. Posecai v. Wal-Mart (La. 1999): P was robbed in D's parking lot; D had no security guards or cameras. Court picks balancing test over similar incident, totality of circumstances and specific harm tests. Foreseeability and gravity of the harm is balanced against burden of preventing harm (Learned Hand). Large number of customers and rarity of crime in case meant no liability.

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7.2 Emotional Harm

A. Issues 1. Ps only damage is emotional distress i. Must make claim for negligent infliction of emotional distress 2. NIED alleges interference w/ interest in emotional wellbeing 3. Courts can be hesitant to recognize i. Patchwork of holdings highly specific to facts ii. D held liable w/ narrow holdings B. Cases Catsouras v. Cal. Hwy Patrol (Ca. Ct. App. 2010): D took pictures of P's family member and distributed them for shock value. Court found that D has duty to protect emotional sensibilities of surviving members. Causing photos to become an internet spectacle violates public policy and duty to family members. Falzone v. Bush (N.J. 1965): P was nearly hit by D driving car; no contact, but became physically ill from fright. Court found that when negligence cause fear that leads to substantial harm, no physical contact is required. Physical suffering considered the probable or natural cause of fright. Molien v. Kaiser Foundation Hospitals (Cal. 1980): P was misdiagnosed with syphilis by D and was instructed to get husband tested. Court found that no injury needs to be proven; P may recover for pure emotional distress alone. Policy based on freedom from mental disturbance. Portee v. Jaffee (N.J. 1980): P's son was killed in D's elevator; watched her son die and went into depression. Court found that P may recover as a bystander if she is related to victim, sees accident, and accident causes severe emotional distress. NIED protects family member from watching other family die from negligence. Boyles v. Kerr (Tex. 1993): D made porno of P without her knowledge and showed it to friends. Court found that NIED was not there and no freestanding obligation not to negligently inflict emotional distress; precedents only supported physical injury + emotional injury. P had torts of invasion of privacy and IIED.

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7.3 Economic Harm

Aikens v. Debow (W. Va. 2000): D hits overpass w/ truck, causing it to close, causing fewer guests to come to P's hotel; sues D for economic harm. Court found that in absence of special relationship, they could not recognize duty to prevent economic harm. Damages are too expansive and are not natural and proximate cause of negligence.

8.0 Strict Liability

8.1 Animals
A. Case Duren v. Kunkel (Mo. 1991): D had bull that attacked P when he led him by blood. Court found no strict liability because it was not established that animal had vicious propensity for animal in its class. A owner must know or should have reason to know animal has propensity for there to be strict liability. B. Restatements 1. R2 509: Possessor of domestic animals who knows or should know animal has dangerous propensity abnormal to its class is subject to strict liability 2. R3 22: Possessor of a wild animal (not generally domestic and likely to cause personal injury unless restrained) is subject to strict liability 3. R3 23: Possessor of animal that the possessor knows or has reason to know has dangerous tendencies abnormal to animals class is subject to strict liability

8.2 Dangerous Activities

A. Cases Rylands v. Fetcher (H.L. 1868): Water from P's found escaped through shaft and flooded D's mine. Court found that if a person brings on his land anything which, if it should escape, may cause damage to his neighbor, he will be strictly liable. Losee v. Buchanan (N.Y. 1873): D's stem boiler exploded, sending parts onto P's property, causing damage. Court found that liability should be based on negligence for inanimate objects. Right to benefit from property and social utility trump strict liability. Klein v. Pyrodyne Corp. (Wash. 1991): D's firework shot horizontal to the ground and exploded on P. Court found that D is strictly liable when he damages another by a thing or activity unduly dangerous and inappropriate to the place and surroundings. Risk, regulations, and uncommon usage pointed to liability.

Page 27 Indiana Harbor Belt v. American Cyanamid Co. (Ind. 1990): D's chemical spilled while on P's property, imposing cleanup costs. Court found D is not liable without negligence; chemicals may be dangerous, but risk is manageable to point strict liability is not needed. Cost-benefit analysis for risk prevention. Foster v. Preston Mill Co. (Wash. 1954): D's blasting caused P's minks to kill their young from sound and vibration. Court found that there was no strict liability because it was not a consequence within ordinary risk of dangerous activity. Harm must be the kind of harm that makes the activity abnormally dangerous. B. Restatements 1. R2 519: One who carries out abnormally dangerous activity is subject to strict liability, but limited to type of harm that makes activity dangerous 2. R2 520: Factors to consider if activity is abnormally dangerous i. High degree of risk ii. Likelihood that resulting harm would be great iii. Inability to eliminate risk by using reasonable care iv. Extent to which the activity is not a matter of common usage v. Inappropriateness of activity to place where conducted vi. Value to community in comparison to dangerous attributes 3. R3 20: Abnormally dangerous activity if i. Activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors ii. Activity is not a matter of common usage C. Coase Theorem 1. Parties reach efficient outcome regardless of liability rule 2. If rule is in favor in efficient, win 3. If rule is not efficient, pay other side to alter activity Minks Worth More Blasting Worth More Rule for Minks Mink owner sues and win Pay mink owner to blast Rule for Blaster Pay blaster not to blast Blaster sues and wins

9.0 Products Liability

9.1 Negligence Actions: Overcoming Privity
A. Cases Thomas v. Winchester (N.Y. 1852): D mistakenly put poison in dandelion and sold it to drug store that sold to P. Court found privity problem could be circumvented because D's product was an imminent danger to human life. A manufacturer will be liable for dangerous and defective product if it was that way from creation.

Page 28 MacPherson v. Buick Motor Co. (N.Y. 1916): P injured when wheel spokes on D's car collapsed; defective wheel came from manufacturer who sold to D. Court found that if a product is reasonably expected to be dangerous if negligently made and product is known to be used by those other than the original purchaser, a duty to use reasonable care to prevent danger to them exists.

9.2 Misrepresentations and Breach of Warranty

A. Express Warrnaty 1. UCC 2-313 i. Recovery for economic loss when product does not meet sellers representations about product ii. Representations were basis of bargain iii. Shortcoming in quality, performance, construction, or durability of a product 2. Defense: Puffingbuilding up product and selling it B. Implied Breach of Warranty 1. UCC 2-314(c) i. Applies only if seller is a merchant of good bought ii. Must be fit for ordinary purpose and pass without objection in trade a. Disclaimer allows escape if it mentions merchantability C. Implied Warranty of Fitness for a Particular Purpose 1. UCC 2-315 i. If seller knows that buyer has particular purpose in mind and relies on seller expertise, buyer may sue seller if product is unfit for purpose D said it was ii. Must prove seller skill or judgment to give suitable goods and seller had reason to know of reliance iii. Seller does not need to be a merchant

9.3 Strict Liability in Torts

A. Case Greenman v. Yuba Power Products Inc. (Cal. 1963): P injured by power tool because of negligent screw design. Court found that manufacturer is strictly liable for a product he puts into the market if it injures user in course of intended use. Implicit in putting chattel into stream of commerce is warranty that it will. B. R2 402A 1. Strict liability for products in defective condition 2. In order to be responsible, must be in business of selling product 3. Consumer expectations test used to determine if product was unreasonably dangerous

Page 29 C. Defect Definitions 1. R2 402A: At time the product leaves the sellers hands, it is not in a condition contemplated by ultimate consumer that will be unreasonably dangerous 2. R3: Manufacturing defect, design defect, warning defect

9.4 Manufacturing Defects

A. Case Smoot v. Mazda Motors of America (7th Cir. 2006): D sent P warning that airbag in car could go off at low speed impact to undercarraige; P hit pothole and airbag went off. Because car was repaired without inspection, P tried to use res ipsa loquitur to imply strict liability. Court found that lack of evidence kept even inference of manufacturing negligence from being made; accident could have happened without negligence. B. Restatement 1. R3 Prod. Liab. 3: product defect may be inferred when i. Was kind that ordinarily occurs as a product defect ii. Was not solely the result of causes other than the product defect at the time of sale or distribution

9.5 Design Defects

A. Cases Branham v. Ford Motor Co. (S.C. 2010): P injured when D's truck rolled over from lost control. Court found that to prove defective design, there must be injury, product must be in same condition when leaving manufacturer, and must occur because of product defect. Risk-utility test replaces consumer expectations and used to determine if alternative design should lead to liability. Dont look to information available beyond time of release; prejudices the jury. Riley v. Becton Dickson Vascular Access Inc. (E.D. Pa. 1995): P got AIDS from unprotected needle; alleges alternative design of protected needle made D's needle design defective. Court found that small reduction in risk at significantly higher expense made alternative design unreasonable in risk-utility test. Grundberg v. Upjohn Co. (Utah 1991): While on D's medication, P killed mother and blamed medication for making her do it on design defect and failure to warn; Court adopted comment k of R2 420A, creating exemption for prescription drugs from prescription drugs because they are unavoidably unsafe.

Page 30 B. Risk-Utility Factors 1. Usefulness and desirability of product 2. Safety aspects of product and likelihood of causing injury 3. Availability of substitute product that meets need and not unsafe 4. Ability to eliminate unsafe aspect without less utility or more expense 5. Ability of user to avoid danger by using care 6. Anticipated awareness of the dangers and obvious risk 7. Ability of manufacturer to increase price or get insurence

9.6 Warning Defects

A. Cases Jonson v. American Cyanamid Co. (Kan. 1986): P contracted polio from daughters oral vaccination made by D; alleged warning defect. Court found adequate warning was given to learned intermediate for contraction of disease, supported by scientific fact. Burke v. Spartanics Ltd. (2nd Cir, 2001): P lost fingers when he put them on back side of D's metal cutting machine; alleged failure to warn. Court found. No warning defect because danger was open and obvious and no causal connection because P always put hand there because of machine modification and training by employer. Feldman v. Lederle Laboratorie (N.J. 1984): P got gray teeth from taking D's drug; alleged warning defect because D knew about risk and did nothing. Court found manufacturer is held to standard of expert and has duty to convey information promptly after learning of risk. Manufacturer has duty to keep current of with industrial and scientific information concerning the product.

9.7 The Parties and Interests in Product Liability

A. Makers of Defective Component 1. Only applies if defective part was the component 2. Integration of component part caused product defect B. Successor Liability 1. Mergers and consolidations make successor liable for predecessor 2. No liability if manufacturer sells assets and ceases business unless i. Agreement to assume liability ii. De facto consolidation or merger iii. Buyer corporation is continuation of seller a. Same employees; supervisors; facilities; products; name; assets; general business operations; holds self out as continuation of old enterprise iv. Intentional fraud to escape liability

Page 31 C. Restatements 1. R3 18: Seller Disclaimers do not bar otherwise valid products liability claims 2. R3 14: one who sells or distributes a product as own is subject to liability Some commercial situations allow product liability (leasing) 3. R3 19(c): human parts are not subject to liability 4. R3 19: Usually restricted to tangible property

9.9 Admissibility of Expert Evidence to Prove Defect and Causation

A. Case Kumho Tire Co. v. Carmicael (1999): P was in accident because of tire blowout; hired expert witness who used visual and tactile inspection to show manufacturer defect. Court found that Daubert standards for relevance and reliability apply to technical and specialized knowledge. Judge is gatekeeper for expert opinion who applies reasonable criteria.

9.10 Defenses
A. 402A comment n misconduct 1. Failure to discover or guard against product defect 2. Assumption of risk 3. Negligent use of product 4. Comparative Responsibility B. R3 Products L. 17 1. Damages for harm may be reduced i. If conduct of P combines with product defect to cause harm ii. Ps conduct fails to conform to appropriate standards of care C. Case Bates v. Dow Agrosciences LLC (2005): P's crops were damaged by D's pesticide that they were told would be fine; D claimed preemption under FIFRA labeling standards. Court found that private remedy was an allowable and effects test for changing label didn't count.

9.11 Relevant Statutes

A. R3 Products L. 4 1. Nonclompliance with an applicable product safety statute or regulation renders the product defective with respect to the risks sought to be reduced by the statute or regulation

Page 32 B. Presumptions 1. After certain time, rebuttable presumption that product was not defective B. Statutes 1. Consumer Products Safety Act: any person who sustains an injury can sue for violation of relevant consumer safety product rule i. If P can show violation and can sue in federal court, D can be made to pay attorney fees and expert witness costs 2. Tort reform statutes for: damages, lawyer fees, statute of repose, product defect definitions, joint and several liability, comparative negligence, compliance with statutes a defense, limiting suits in distribution network

10.0 Damages in Personal Injury Cases

10.1 Introduction
A. Personal Injury Topics 1. Compensatory damages 2. Loss of consortium and loss of household services 3. Nonpecuniary Damages B. Common Law Categories of Damages 1. Nominal Damages i. minor or trivial damages when no actual injury resulted or was shown 2. Compensatory Damages i. awarded to compensate a party for actual injury or harm 3. Punitive Damages i. Awarded to punish D for malicious, outrageous, or highly reckless conduct and deter future behavior

10.2 Compensatory Damages for Personal Injury

A. Basic Theories 1. D who has caused loss should repair or compensate the loss, even if no collective goal 2. Tort Damages are form or insurance: pay more to be compensated if hurt B. Categories of Compensatory Damages 1. Past and future medical and rehabilitative expenses 2. Past and future lost earning capacity 3. Past and future physical pain and suffering 4. Past and future mental anguish 5. Past and future impairment or disability: functional limitations 6. Post and future disfigurement

Page 33 C. Cases Seffert v. Los Angeles Transit Lines (Cal. 1961): P crippled when bus shut door on her and dragged her; D appealed from damages they thought were too high. Court found no fixed standards to review damages, but should be upheld when possible. Damages may be adjusted if the amount shocks the conscience and gives rise to assumption that passion or prejudice influenced jurors. Wainwright v. Fontenot (La. 2000): P given the wrong dose of medication from D, causing him to go crazy on parents for 2 days; jury only awarded medical expenses, but no general damages. Court found that while jury may err by not awarding general damages for objective injury, no abuse of discretion was made because there was ample evidence that could lead jury to conclude that brief overdose was not a source of pain or suffering. McDougald v. Garber (N.Y. 1989): During surgery, P suffered oxygen deprivation while under anesthesia; sued D for malpractice. Jury awarded damages for pain and suffering and loss of enjoyment of life. Court found that cognitive awareness is a prerequisite to recovery loss of enjoyment of life and pain and suffering should encompass damages for loss of enjoyment of life.

10.3 Indirect Nonfatal Injuries to Others

A. Tort Claims by Others 1. Non fatal injury may let others make claim if spouse or child of injured party 2. Almost all jdx allow spousal consortium and loss of household service i. Loss of consortium, companionship and society and services 3. Minority of jdx recognize parental-child consortium i. When child loses parent ii. When parent loses child B. Case Roberts v. Williamson (Tex. 2003): Infant P severely injured by D's malpractice; jury awarded parents damages for loss of consortium. Court found that while there is right to consortium for child for loss of parent, no right other way around. Child is vulnerable and interest requires greater protection; parent does not depend on child's consortium.

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10.4 Damages in Death Related Tort Claims

A. Recoverable Damages 1. Financial contributions that decedent would have made to beneficiary 2. Services, care and advice of pecuniary nature 3. Beneficiary loss of companionship and society of the decedent 4. Grief and anguish experienced by the beneficiary over death 5. Loss of the inheritance beneficiary would have had B. Case Green v. Bittner (N.J. 1980): P, a high school senior, was killed in accident; jury gave no damages to family. Court found error because continuing family relationships are more than the exchange of labor. Lost companionship or advice are possible losses not accounted for.