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RPS & R/Av Analysis 10/6/2016 4:57:00 AM

Hammontree v. Jenner
Court of Appeal of California, 1971.
20 Cal.App.3d 528, 97 Cal.Rptr. 739.
Facts: (D) Jenner was driving his car when crashed into (P) Hammontrees
shop and caused injury to P and damage to her property.
-D claimed had epileptic seizure at the time of the crash and was
rendered unconscious and did not recall the accident
-D had medical history of epilepsy and was placed on medication which
physicians testified would stop the seizures from taking place
-DMV and physicians found D was allowed to drive and continued to
take medication at the time of the accident
Procedural History: Brought before the appellate court by P under the
argument that the trial court erred in refusing to grant summary judgment
and that the trial court also erred in refusing to instruct the jury on absolute
liability and refusal to grant directed verdict.
Issue: Does a D who falls ill while operating a vehicle by something that he
tried to prevent fall under strict liability or negligence?
Rule & Holding: A defendant who is struck ill after trying to prevent it and
is rendered unconscious while resulting in an accident falls under the
principles of negligence but is not liable because he tried to prevent it
P argument: Since a retailer who releases a product without inspection of
that product and has a defect with his product causing injury is found under
the principles of strict liability even more so someone who knows they have
an illness that can render them unconscious or defective and they cause an
injury should be found under the principal of strict liability as well.
Reasoning and refuting Ps argument: In previous cases in which the
driver caused injury due to defective brakes, the Supreme court refused to
the apply the doctrine of strict liability and instead the creator of the product
is the one that should bear the cost of injury.
In previous cases in which the driver was rendered unconscious due to
illness and injury occurred the court found that the accident rests on
principles of negligence. Also since the D had no reason to anticipate that
illness were to occur and had no true control over it, it is negligence.
Questions and Notes: If the D did NOT try to prevent the illness and
allowed it to occur, would it fall under liability or negligence? Since the D
used a standard of care he was not found N.
Brown v. Kendall
Supreme Judicial Court of Massachusetts, 1850.
6 Cush. (60 Mass.) 292.
Facts: P and Ds dogs were fighting.
-D using a stick tried to break up fighting between dogs
-D accidently hit P in the eye from behind when the dogs moved in that
Procedural History: D appealed on the grounds that the trial court erred in
instructing the jury that burden of proof of showing negligence falls on the D
and that he had to prove he used ordinary care.
Issue: 1) Who does the burden of proof to show negligence fall under?
2) How is negligence proven according to the court?
3) What is the definition of bad according to the court in this case?
What is bad conduct?
One of the first cases that define what bad is.
When you act a person has to use extra ordinary care. Because court will
find those who dont use care will be liable
Rule and Holding: The burden of proof always falls under the P to show
that D had the intention of injury or that D was negligent in injuring P.
N or not N Rule: If the D used ordinary care, NOT liable. D tried
-If both D and P did not use ordinary care, D NOT liable.
Didnt matter if tried or not b/c both didnt try so not Ds fault completely
Ordinary Care: Degree of care a prudent and cautious man would use
to guard himself from probable danger in this case several feet away from
the stick
-do not have to pay for an inevitable accident if you used ordinary care
-Goes by case to case basis on what is considered to guard ones self
from danger
Big Picture: This case introduces the idea of a standard of care that needs
to be used by the D in order to show that the D is not negligent and actually
-discuss what is considered negligence according to the law (those
who breach the standard of reasonable care)
-also shows that the burden of proof in a negligence case ALWAYS falls
to the P

Adams v. Bullock
Court of Appeals of New York, 1919.
227 N.Y. 208, 125 N.E. 93.
Facts: D owns a trolley line that uses the overhead wire system
-P, a boy of twelve, swung using a wire and came into contact with Ds
trolley wire and was electrocuted.
-The wires were not in the reach of the boy (the wires were 4 below
where the trolley were) and if he did not act foolishly (swung 8 feet
couldnt have reached it without his stupidity) he would not have been
Procedural History: The trial courts found in favor of P, in that D was
found N.
Issue: Is a D who tries to prevent every reasonable circumstance of injury
to others, liable under the principles of negligence?
Was the fact that he didnt protect the wires but wasnt readily reached
considered bad conduct?
N = bad conduct
Holding & Reasoning: D is not found negligent and the judgment is
reversed. The system he used was his right under the law to conduct his
business. Because he followed his duty to adopt all reasonable precautions in
protecting the public and insulation to prevent the boy from touching the
wire was impossible in putting the wires in a way that could not be reached
by most people, not found negligent. In regular cases the person should
insulate the wires because that was his duty in protecting the public, but in
the case of trolley cases its impossible.
TEST: if foreseeable accident then NEED to protect (because could see
it coming so needs to protect):
You are N if = you did not take precautions for foreseeable accidents
NOT N= If NOT foreseeable and very hard to avoid (like in our case)
-no special danger at the bridge warned the D that there was need to
have extra precautions -did everything in reason to protect the public
-Those who try to prevent accidents in every reasonable way
(reasonable precaution) will be rewarded by the courts and will NOT be
found negligent or liable.

United States v. Carroll Towing Co.

United States Court of Appeals, Second Circuit, 1947.
159 F.2d 169.
Players: Connors = owner of barge (engineless) = P
Carroll = towing company = D
U.S. = owner of goods on barge = non relevant P
Facts: D was readjusting the lines of Ps barge and because P did not fasten
lines properly it broke loose and crashed into a tanker causing the barge to
sink and the goods inside were lost
-P sued D for damages but D argued that if P had a bargee (worker-
attendant on barge) on the barge the accident would have been prevented
by a warning by the bargee.
Issue: Who is considered negligent and liable for the accident?
What measure or rule does the court use to determine when there is a
burden on a barge owner if the bargee is not on board to prevent negligence
and the accident from occurring? Ie. What is the standard of care used in
this case?
Rule and Reasoning: Because there is no rule to determine when the
barge owner is liable in regards to when a bargee is absent, the court came
up with its own formula:
Risk Avoidance Calculus: B<PL Rule: If the probability that the
accident will occur is high (like if there is a storm is pushing around the
barge) and the injury from the accident will be great the barge has a
higher burden in ensuring the bargee is on board.
In other words: if the probability and the amount of injuries incurred
are high, the burden is higher for the barge owner (if the accident is
foreseeable then you have a higher burden to perform. If the accident is not
foreseeable then the burden is not as high).
B= burden P=probability accident will occur L=amount of
injuries incurred
N = PL > B (burden is not hard to do) OR R > C/AV (cost of taking
care of it)
Not N = PL < B (burden is very high and the probability is very low)
C/AV = Monetary costs of avoiding it R= Risk D/C = Due care
N= R > C/AV (If the probability of something happening is high
(foreseeable risk) and the cost of avoiding it is low, then you are negligent)
D/C = R > C/AV) (Did your due care when the risk and burden is high
and the cost of taking care of it is low).
EXCEPTION: if there is a custom to leave the boat at night and
assuming that the bargee will properly fasten the lines of the barge, the
bargee does not have to be confined to the barge and is allowed to leave
-also allowed to leave if have an excuse however always have to have
barge secure.
Holding: Because the bargee had left the barge for over 21 hours and had
no excuse for his absence the P (barge owner) is liable under the negligence
-ignores the formula and just follows the fact that the bargee had no
N= R > C/AV D/C = R < C/AV
R = HI, C/AV = LO R = LO, C/AV = HI
Unreasonable risk taking Reasonable Risk Taking

Risk = the probability of harm occurring * amount of damage done if harm

occurs (Prob of injury occurring)
C/AV = All direct AND indirect risks avoided
-show the costs that occur indirectly as a result of doing the did (taking
care of the risk and paying the cost)

Andrews v. United Airlines, Inc.

United States Court of Appeals, Ninth Circuit, 1994.
24 F.3d 39.
Facts: A briefcase fell on top of the P when she opened the overhead
compartment of the Ds plane.
-P not arguing that it was airline personnel that were involved in the
closing or opening of the bin
-Arguing that her injury was foreseeable and could have been
prevented by the airline
Procedural History: District court granted motion of summary judgment
and argued that P did not have a case for negligence. P appealed on the
argument that court erred.
Ps Argument: Showed that the airline had 135 reports of items falling from
the bins causing the airline to warn passengers to use caution when opening
up bins.
-also brought expert witness who testified that the announcement to
use caution was ineffective because passengers cannot see what objects
would fall from the bin when opened.
-Witness says United should have taken extra steps to prevent the
hazard like putting bins with baggage nets, or forcing passengers to only put
light items in the overhead bins.
Holding & Reasoning: Motion for summary judgment is reversed. Because
United passengers are subject to a hazard from objects falling from
overhead bins, the court decides that the P has a right to be heard by a jury
to decide whether or not D has a duty to deal with the falling baggage
problem more so than just warning passengers.
-A reasonable jury may find in favor of P or D but the point is that P
has made an argument in reversing the motion for summary judgment and
has the right to have her case tried before a jury.
General Rule & Understanding of Risk and Burden:
N = R Hi, C/AV LO = Unreasonable Risk (If risk is high it means the
costs to take care of it arent expensive) (BAD CONDUCT)
Not N = R LO, C/AV Hi = Reasonable Risk (Due Care) (If risk is low it
means its not likely and the possibility to take care of it would be expensive)
Reasonable risk is something that happens all the time in which you
have a risk but you do your reasonable due care for those things and so you
would not be found N (like driving is a risk but drive slowly so doing due
TEST: Reasonable person standard what the reasonable
(moral) person would do in this situation. Considers the economic
costs and inconvenience to himself in relation to will you get hurt. In
other words how to balance the risk and cost to yourself and the
costs and risks to another.
-This rule ALWAYS requires comparison between the risk and cost of
avoiding it (cost of avoidance)
-having a substantial risk alone is not necessarily bad because the cost
of avoiding it would be a lot high (example nuclear plant. Have high risk
for having it but if dont have it then the cost of energy will go up and cause
other costs to go up. And so the cost of avoiding is extremely high.

Bethel v. New York City Transit Authority

Court of Appeals of New York, 1998.
92 N.Y.2d 348
Facts: D is owner of bus system. P was injured after sitting on wheelchair
seat and seat collapsed
-P argued that D had a duty of extraordinary care in that a proper
inspection should have been issued
-if an inspection was issued a faulty seat would have been noticed
Procedural History: D argued that a duty of extraordinary care for
common carriers was no longer necessary but court instructed jury
Issue: Do common carriers still have a duty of extraordinary care or does
the reasonable person standard apply?
Rule & Holding: The court found that common carriers are no longer
required to follow a duty of extraordinary care and that as long as an actor
uses the his due care for those foreseeable risks and accidents then he is not
considered negligent or liable.
-the reasonable person standard now applies to common carriers and
that as long as the have there due care no longer negligent
-found that a reasonable person would not have inspected the seats
Point of Case: shows that a reasonable person standard applies to all
actors and tortfeasor
RPS is the best way in determine what shoulda been done
Substitute for RPS 10/6/2016 4:57:00 AM


RPS is a standard not a rule
Good and bad conduct depends on the facts of the case subjective
to the case
Depends on FACTS
RPS is very vague because doesnt really give specifics on what the
law considers good and bad conduct
Hard to always know what good or bad is

What does the court do when theres no RPS for what is good and bad for a
specific situation?
Need clear rule and RPS is NOT a clear rule how does the court
If its vague then its not enforceable all the time
Need fairness in a Tort case goal of tort
Concretization of the rule
A vague rule is not only unfair but is not effective
RPS is used to deter bad conduct but if you dont know nec what is
bad conduct what do you do?

Subsitutes for RPS:

Judge-made rules
Business safety customs
Safety statutes statutes to keep people safe
Why do we have substitutes?
RPS is a fact based standard in it is too vague and we need to
redefine what the RP would do in this situation (fact based RP) and
therefore is not a specific rule
Need rules so ppl know what a RP would do in advance
Judge Made Rules
Baltimore & Ohio Railroad Co. v. Goodman
And Pokora v. Wabash Railway Co.

Goodman: driver was responsible because he did not stop and get out of his
car to see if the train was coming
Creates rule for duty of the driver
They had a lot of cases where ppl were getting hit by train so
created needed to create general rule of the duty of the driver and
what the bad conduct is in this kind of case so this way you dont
rely on the RPS
IF theres a type of case that is a recurring fact pattern then the
court will create a rule for what is good and what is bad -
Pokara: Cardozo says that judge cannot be concrete situational rule because
there are so many variations to the particular facts of each case need to
allow jury to decide instead of judges
In Goodman there was more than one train track and if the driver
got out of the car the truck would have been hit by at least one of
the trucks
Should use RPS and that judge cannot make a fact-based rule
Still law today RPS is upheld
Hard to frame standards of behavior that amount to rules of law
when the facts of each case are different, so it should be left up to
a jury to decide not have judges implement rules.
If we let judge make a standard rule, it would be unfair and not
workable/effective, so we need to let jury decide
Rely on judgment by jury as opposed to judge
NO Judge made rules prevails

Cardozo also states that if theres a business custom then it should

be decided by the judge NOT the jury

Business standards and customs

Trimarco v. Klein
Court of Appeals of New York, 1982.
56 N.Y.2d 98

P was Ds tenant and P fell through glass of shower door
During trial P proved it was a standard for building owners to
replace the glass of shower doors to tempered glass since the
P argued that D failed to follow the standard of the industry
Procedural History:
Trial court found in favor for P, Appellate court for D
Whether a industry standard acts as the RPS in that a jury trial is
not needed, or is a jury trial still needed?
If have industry standard, do you look to see if the D followed or
not and decide from there, or do you allow a jury to decide?
Court found that a jury trial is still needed. Although a standard or
custom does exist, it poses a greater argument for the P in that it
shows the D did not follow the standard. However it is still the
jurys decision to decide whether or not the D is liable

P argument:
D didnt follow standard so N
D argument:
I didnt need to follow standard b/c it was stupid

TJ cooper example: Pg. 71.

Tug lost barges etc etc.
Owner argued was standard of care to follow barge

Advocates for customs are arguing that the custom = the required standard
of care = RPS
Easier argument dont have to argue R > C/AV and as a result
cheaper to do and takes less time
Trimarco rules that customs does NOT = RPS and therefore cannot
Why is industry standards bad? Saves us money and time
o Ppl in the industry have an incentive to have less safety
standards because it costs them less. Safety standards are
extremely expensive and therefore the industry is losing
o The standard IS SET by the industry and therefore is how
little the industry thinks it can get in industry (minimal
standard) so the standard set by the industry is NOT what
the RP would do but is the minimal level
o Assuming a business set standard is crony capitalism
Rule from Trimarco:
Some Evidence: Deviation from the standard is NOT N and rather
just some evidence of RPS helps prove but doesnt conclusively
establish what the RP would have done
Always mention that the custom exists and integrate it into the
RPS/R-AV argument
All cases are decided by JURY NOT the judge
R-AV Argument + Custom for Trimarco:
P Argument:
Did: Reg glass
Shoulda: Shatterproof glass
What coulda happened?
o Ppl fall through glass
o Installer fall through
o Ppl slip outside of shower and fall in
o Door slammed and breaks falling on someone
Show probability of each coulda happened
o A lot of ppl fall through glass, a lot of installers fall through
etc etc
RP in this case:
A R shower glass door installer would know there is a custom
and that most ppl put shatterproof glass doors and the risks
involved in use regular glass instead of safety glass
Essentially integrating the custom in that the RP would know and do the
custom at least helps fill in both sides of the argument and is very good
evidence but it doesnt prove it conclusively it gives the D an opportunity
to argue from his side of why the custom is stupid and RP wouldnt follow it
Isnt just if you didnt follow the custom you are automatically
wrong still allows both sides to argue there point
Custom usually the shoulda done of the D

Statutory Rules
Statutory rules ARE accepted and followed
Violation of statutory rules are N per se = NPS = RPS would follow statute
and therefore immediately decided by JUDGE instead of Jury
R/AV argument is not necessary if you dont follow statute then
you are N

Whose job is it to make general rules for society?

Legis are elected and exists to make general rules and therefore
have legitimacy in create a rule for society
Cts do not like to make general rules and try not to make general
rules whenever possible
Therefore statutory rules are better then judge-made rules because
the body who made those rules are competent and have legit in
creating those rules

As a result if someone violates the statute it isnt N but is N Per Se (NPS) in

that 4 conditions need to be met in order for a violation to prove N:
NPS Conditions: If have all 4 then it is called NPS:

Proving this was the victim the legis was worried about
P: Has to prove ALL conditions:
1) Covers conduct of the D prove the conduct the D was doing is
covered by the statute
o Martin: Stat covers the ppl travelling on the highway- D was
driving on highway
o Need to define each of the words of the stat? What does
travelling mean? If someone is parked on the highway is that
o Unless the statute DIRECTLY covers the conduct then the stat
is NOT applicable (only deals with moving cars)
2) What was the purpose of the stat?
Safety accident prevention? Prevent injury NEEDS to be a safety
law need to be talking about our situation and that our situation
involves safety
How do you know what the legis intended by the stat?
o 55 MPH speed limit: prevent ppl from wasting gas NOT
hurting ppl not a safety intent
o Martin: prevent damage to life and limb but NOT conserving
o Need to analyze what the purpose of the stat was if doesnt
relate to a safety case then cant argue NPS
o Other types of statutes: economic reasons & blue laws (no
drinking on Sunday before 12pm)
o Needs to be a safety law and not for any other reason if
other reason safety law doesnt get in
3) Stat purpose was to prevent this type of accident
o If accident was part of the FRA or not
o Sheep HYPO: stat required sheep slips so there was no spread
of disease. As a result of no sheep slips sheep fell off boat
and drowned Stat was NOT trying to prevent this type of
accident but only for disease and therefore is not NPS cant
use this argument and need to make a R/AV argument
4) Stat purpose was to protect this type of victim victim must in
the protected class by the stat
o Martin: involves drivers and P was a driver so NPS is
4.5) No excuse for the violation
o If an emergency then you dont have to listen to the statute
o Do you have an emergency that will make you go against the
stat? emergency beyond your control
P will argue that didnt have an emergency and
therefore was not allowed to go against the statute and
therefore is NPS
D will argue that I had an emergency (as an excuse)
and therefore did not have to listen to stat and is NOT
What was the legis trying to doThats what you need to prove.
How do you do that?
Look to the legis history
Stat language itself
Public record many stat are in response to something going on in
the public many ppl get hurt in this specific situation so we are
trying to prevent it
Effect of the stat 55 MPH was made to prevent extra gas but as a
result of ppl driving slower there were less accidents so courts
can argue as a result of this stat this happened
o Court imputes

D: Has to negate only ONE condition if negates one then it is NOT NPS:
Assumes the legis would always go further and so if they didnt
cover something or use specific words then its on purpose and
therefore argue that it doesnt fall under something because that
wasnt the words the legis used and therefore is not NPS
If D lost NPS argument and are found N then you need to show that the fact
that you were N are not the cause in fact didnt cause the accident to
happen you would have been hurt regardless
D needs to show accident would have occurred regardless and is
not the cause in fact
If P loses NPS goes to R/AV argument and shows how D was N
Both sides always have a backup plan

Sleigh/Showman HYPO:
Stress whats in the statute and whats not in the statute ALWAYS assume
the legis has control over what goes in a statute and what doesnt and since
something is there or isnt its there on purpose and that proves your
saying the legis could have said this, but they used this language instead
and so this is what they meant by the language they used

P: 1) Statute covers commercial sign and the sign in question has a

commercial ad in it and stat also covers other displays and this is a display
so covers that conduct as well
Stat also covers a sign being affixed to a building and the socket is
affixed to the building so therefore so it covers affixed (arguing
affixed covers any type of attachment the question on each side
is what does affixed mean according to the statute?)
D: 1) The sign in question is not a commercial sign because its primary
message is just to warn ppl of the icy road and not really an ad (Public
service announcement PSA) the word commercial covers commercial
signs or commercial displays and since its NOT a commercial then the
conduct in question is not covered by the statute
Affixed means attached to the building and the flag is not attached
to the building but is attached to the socket and therefore the
conduct is not covered by the statute

P: 2) Stat is to prevent ppl from getting hurt extend over pedestrian

walkway and if theres a sign over a walkway it could fall on a person and
hurt them (NEED TO REFUTE Ds POTENTIAL ARGUMENT how do you do
that? By saying the legis could have said this, but they used this language
instead and so this is what they meant by the language they used) need to
show the purpose of the stat was to protect ppl and not just for unnecessary
ads and aesthetics how do you do that?
If the stat was trying to prevent aesthetics the stat would have
prohibited SIGNS ANYWHERE to prevent ads and signs in the town
since they didnt do any prohibition for aesthetics in the stat it is
clearly just for safety prevention especially over pedestrian
D: 2) Stat is to prevent aesthetic signs from taking over the town and not to
prevent ppl from getting hurt How do you argue that? Look to the
language, look to the point of the statute in its context
Aurora is a tourist town and they didnt want too many signs
making the town ugly and then tourists wouldnt come if it were a
safety statute it would say heavy commercial signs (therefore
protecting ppl from signs falling on them) and since it doesnt say
heavy its just to prevent aesthetics NOT commercial

P: 3) Person in our accident got scared and not hurt stat does NOT ONLY
ppl getting hurt but also causes ppl getting scared because if they wanted
only to cover ppl getting hurt they would have wrote heavy signs over
walkways this way ppl wouldnt get hurt so shows they are interested in
ppl getting scared and not only getting hurt and therefore the stat DOES
cover this type of accident
D: 3) If the stat was worried about ppl getting scared they would have
prevented all signs and music and other things that could have scared ppl
but it didnt so it only covers ppl getting hurt and therefore the stat doesnt
cover this type of accident

This type of victim Is it covering all drivers or just pedestrians?

P: 4) P needs to show that the stat covers drivers and not just ppl walking
since a person getting scared by signs would end up in the middle of the
road causing accidents and hurt drivers the stat is covering all types of
D: 4) P needs to show that the stat does NOT cover drivers since the stat
doesnt state that distracting signs and other things then it doesnt cover
drivers and only covers ped. walkways

P: 4.5) Did not have an emergency and therefore could not go against the
D: 4.5) Had emergency so therefore allowed to go against the stat

Martin v. Herzog
Court of Appeals of New York, 1920.
228 N.Y. 164.

P was driving his buggy at night without any lights (in violation of
NY statute) and was struck by the D car
o Didnt have lights on so was in violation of statute and
therefore did something bad
P sued D for driving negligently
D argued that P driving without any lights was negligent of the
driver and therefore was not the Ds fault that he couldnt see the
buggy (argued that it was contributory negligence)
Procedural History:
Trial court found in favor of the P in that the P was not N in driving
without lights on
Instructed jury that they had the ability to decide whether a
violation of the statute (not driving with the lights on) was bad
conduct and whether or not the P was N.
Is a violation of a statute a questionable negligence or is the person
automatically N when they violate a statute?
The violation of a statute that is there to protect both parties shows
N and the jury had no right to decide whether or not there was N
because there was automatically N
Theres no evidence to show that D was driving fast or that his car
was defective the cause of the accident was due to the fact that
the P violated the statute
Statute was used to regulate travelers on the highway

Tedla v. Ellman
Court of Appeals of New York, 1939.
280 N.Y. 124.
D hit P when P was in violation of statute by walking on the right
side instead of the left side
Cant completely understand what the legislature intended to do be
enacting the statute and therefore cant go by the strict language of
the statute

Bassey v. Mistrough
-The person had no way to listen to the stat saying that you cant drive
without lights b/c lights went off while driving and before could get off
highway to get fixed he got into an accident if an emergency then you
dont have to listen to the statute rule 4.5

If P loses on NPS can go to R/AV and make argument there If D loses
argues cause in fact
D can never make a due care argument in that I complied with the
statute and therefore I shouldnt be N (in that once D shows hes
not NPS why can the P make an argument for R/AV why isnt the
D automatically not N?)
Kinda saying that the legis standard didnt make a good standard
o Like with business cutstoms dont follow the customs b/c we
dont trust there standard b/c they are self-promoting and
make the lowest possible standard for themselves but that
doesnt mean the legis makes the lowest possible standard
they work for the ppl
The ct decides that the legis are influenced by lobbyist (who work
for industry) and therefore the standard that is created although
not as low as business customs is still pretty low and complying
with that standard does NOT nec get you off the hook and therefore
once the D disproves NPS still needs to respond to R/AV argument
o Disproving NPS is evidence but isnt completely disproving N

Proving Negligence - Res Ipsa Loquitur the thing speaks for itself (the fact
of the accident speaks for itself b/c it happened you are the cause)
Showing that an accident involving an object that is most probably
in control of the D shows that he was most probably the cause of
the accident and is therefore N
If P can provide evidence showing that the D probably was the
responsible party even if the defendant did not have exclusive
Showing that the D is somewhat in control and arguing RIL allows
that argument to go to the jury and be decided by them isnt just
that a default argument that if you have RIL then the D is N
needs to be decided by a jury
o Is almost like a jury instruction but jury still needs to decide
P needs to prove and has the burden that the D conduct fell below
the standard of reasonable care and therefore caused the accident
and is liable
Best type of evidence is evidence that document the error the D did
also called real evidence cause it shows what really happened
Better than witnesses because cant be argued against completely
proves the accident
o Witness credibility could be argued and as a result would
diminish the testimony
RIL is good when we cant definitively prove what the D did wrong
that shows his N but the mere fact that the accident occurred is
enough to show he is liable because it could only occur since he did
something N
RIL shows an inference of someone being N
What happens when evidence is circumstantial?
What is the did in all of these cases? In RIL we dont know what the did is
and extremely hard to prove
In the past you have specific bad conduct that you can analyze in
relation to R/AV analysis in RIL you have no bad conduct that one
can argue is bad and hard to show what the RP woulda done
more of just an accident happened
3 section of Torts cases:
1) Cause in fact Causation
2) N not living up to RPS
Good = reasonable risk
Bad = unreasonable risk
3) RIL proving the breach when you cant show what the good or bad
conduct was

Negri v. Stop and Shop, Inc

Court of Appeals of New York, 1985.
65 N.Y.2d 625.

P slipped on baby food that was dirty and messy
Dirty and messy indicates that the food was there for a long time
and was stepped on by several ppl
Dirty and messy evidence is considered circumstantial in that there
is no complete proof that is was there for a long time
Also brought witness saying that the aisle was not cleaned up in the
past 15 to 20 minutes
P argued that was there for long time and D had ample time to
clean it up (had constructive notice)
Is circumstantial evidence enough to prove negligence?
Rule & Holding:
Court of Appeals found yes, circumstantial evidence is enough to
prove N
Because it shows that D had ample time to clean up via
constructive notice and they didnt they are N
Did: didnt clean up the baby food from the floor when you had
ample time to clean it and left it there for a long period of time
o In RIL we need evidence of the did
o Camera of when accident happened shows time when it
occurred documentary evidence
o Witnesses customers & workers testimony evidence
o Pictures from customers documentary
o In this case we ONLY have the condition of the floor that it
was dirty and messy and was black and dirty (when its
normally yellow) that shows that a lot of ppl were walking
over it and it was there for a long time
circumstantial evidence doesnt show that something
happened only shows circumstance of something
Ct found that it was enough evidence to show N
Shoulda: shoulda discovered the food was on the floor and cleaned
it in a short period of time
Point of Case:
If the D has constructive notice of the thing that would cause an
accident and doesnt clean it up the D is N

Gordon v. American Museum of Natural History

Court of Appeals of New York, 1986.
67 N.Y.2d 836.

P fell on waxy paper on the staircase of the museum
P argued that the D had enough time to clean up the paper because
they agreed to have the concession stand where the paper came
from in there museum
Because they didnt clean up the paper in allotted time the D is N
How much time is needed to show constructive notice of the D in its
requirement to clean it up?
Must exist for a sufficient amount of time before the accident occurs
in order for the D to have constructive notice and clean up the
P couldnt prove that anyone knew about the paper before the
accident took place
o So shows that it probably wasnt there for a long time
Did: Museum didnt discover and clean up the slippery wax paper
(RP would have realized and cleaned it up)
o Ct found that there is NO evidence to show the did where
as in S/Shop you have a little circumstantial evidence to show
the did
o In this case there is NO evidence whether circumstantial or
not showing how long the paper was there for if it was there
for a few seconds then the D was NOT N
No witnesses no evidence showing how long it was
there nothing at all
o Because doesnt have evidence of a did the Ct finds in favor
for D in that he is not N

Byrne v. Boadle
Because the barrel fell out from his warehouse and he was the only
who had control over it we can automatically assume that he was
the one who caused the accident and is therefore N
o Jury instruction
o Res Ipsa Loquitur
Barrel couldnt just roll out happened as a result of some N in part
by the D
o The fact that the accident occurs proves N
McDougald v. Perry
Because the D didnt do his due care in checking all of the chains he
acted N and RIL he is N (jury decides whether he is actually N but
allows the jury to think he didnt do due care)
Only one who had control over it
P doesnt need to prove 100% control just has to show 3 things
1) Prob that a tire falling off a car was an act involving N show its
2) D had sole control
3) P had no participation other than being hurt

No evidence of what the D did or shoulda done no idea what happened

inside the warehouse that caused the accident
RIL let the accident speak for itself there was N dont have to define a
3 conditions for RIL: (Found on Pg. 100, Last paragraph)
1) This type of accident requires someone to be N in causing it
o A) Precedent use precedential cases to establish a category
of cases in which the present case falls under (in Byrne
things falling out of windows) and in those cases all of those
accidents were caused by someone who was N
o Cant show the did in our case but can show in other cases
with the same fact pattern someone was N in causing the
accident the type of accident we have can only be caused
by someone being N
o Brings the idea that it is probable that someone was N in our
o B) IF dont have precedent then you need to show the
scenario in itself has a high prob of someone being N
o Why does this type of accident happen?
o HYPO: Plane falling Why? how could it happen?
N No one is N
Mech failure Birds
Pilot error Lightening Strike
Weather Clear Air Turbulence
Manuf defect
Drunken Passenger
o Because in this scenario there is a higher prob that someone
was N then it is likely here that some one N
2) D had exclusive control over the thing that caused accident
o Eliminate other ppls control over the instrument and show
that it was the D ONLY who had control
o HYPO: Coke bottle explodes on P injuring him
Who could have caused it?

Need to eliminate all!
o Eliminate all in plane HYPO:
Elimination (eliminate both): Air traffic control
Manuf defect
o Dominion: Ppl who had some sort of control over instrument
Need to show D had control over all other actors! - umbrella
Pilot (D) but had control over ppl who works for
pilot: - higher prob that the cause is b/c of the
passengers or mechanics then a security breach (make
prob argument that unlikely security is the one who
did it and rather the D who did it) and since pilot had
control hes N all those ppl who fall under the
Mechanic of planes
Security (Eliminate)
Since pilot has majority control over the instrument D is
the one who has control and therefore is the only one
who could be N

3) P had nothing to do with causing the accident

o Maybe P did something that caused the accident person was
fat and the chair collapsed and THAT is why the chair
collapsed not the D did it P needs to show did NOT cause
o Checks condition number 2 that P did not cause the accident

P needs to show ALL 3 condition

D needs to only challenge 1 condition

Each jurisdiction have there own rules on what to do with RIL but they all
agree that it is sufficient evidence to show N but the D can always come
back and show what he did to rebut the P argument of RIL
IF D cannot show what he did then he is N so D will always
come with an argument of what he did if a P makes a RIL argument

No did in RIL and no real evidence showing what happened and who did
something wrong
Couldnt find any evidence

Aurora HYPO:
Using RIL to show that the mechanical snowman caused the
D is the engineering company that maintains the snowman
1) Need to show that its likely that a mechanical snowman blowing up is
likely to happen based off of someone being N
Create scenario that could explain why it would explode: (list all the
o Manuf poorly
o Serviced poorly
o Tampered with by pedestrian
o Lightening
o Bird hitting it and ruining it
Say that the examples that where a person was N is much more
likely then a bird or lightening hitting it
2) Need to show D has exclusive control:
List all the ppl who have control (or access) of the snowman (to
show who has possible N)
o Bank
o Hotel
o Manuf
o Pedestrians also have access to it
CANNOT make dominion argument (only use argument if the case
involves a boss who has control over the others involved and they
all fall under the umbrella) So what do you do?
Eliminate: Who?
o Cannot eliminate anyone So what do you do?
Make a majority argument
o Need to show that the engineering had more control and
length of involvement with the snowman more than any of
the other actors majority involvement more than anyone
o Engineering made the snowman, they repaired it and
maintained it and took care of it all the time holding the
bag most of the time
o Touched and dealt with the snowman more so than the bank
or hotel even if the bank or hotel or pedestrians did
something that caused the snowman to screw up it was the
job of the engineering to see it and fix it so they are the
ones who are prob N
Have to make an elimination argument, dominion argument or majority
argument or combo argument depending on what you can possibly do
So if you can only make one argument make one if you can make
more than one then combine them better argument

What happens if you lose the RIL argument?

Then you make a R/AV argument and show the did and shoulda
o Did put electric snowman around snow (water)
o Shoulda enclosed it and separate from the water preventing
from touching water
Or can make a cause-in-fact argument
Causation 10/6/2016 4:57:00 AM

Causation whether the D N caused the harm in question

Cause in fact the actual cause of the injury but for

Need to determine whether it has been established what caused the
Proximate Cause:
D caused the injury but happened under circumstances in which he
wouldnt be liable to pay maybe an emergency or something
Is he required to pay compensation even if he caused the injury?

Causation is showing that if X didnt occur then Y would not have occurred
and therefore D is liable b/c he clearly caused the accident

In N case D is saying wasnt N

In causation cases D is admitting that he was N in doing something BUT it
didnt cause the accident something else caused the accident
P sole cause of the harm
But for you doing this, I got injured.
If you didnt do it, I WOULDNT be injured
D other ppl caused harm
I was bad, but even if I was good, you would still be injured
Rule of preponderance - burden of proof is ALWAYS on the P
but the P doesnt have to show certainty (100%) that D did it just
need to show that its probable (50% and more if you want) that D
did it not absolutely sure more likely than not more evidence
shows more probability shows more likeliness

Types of evidence:
Direct / physical

Stubbs v. City of Rochester

Court of Appeals of New York, 1919.
226 N.Y. 516.

P caught typhoid fever and argued fever caused by contaminated

water controlled by the city (D)
D argues that the P is required to show that any other possible
cause didnt cause the injury
o Even if I had taken care of my pipes you would have gotten
sick anyway
Ct finds that if P shows that the D is the most probable cause by
having a lot of evidence to show that then the P does NOT need
to disprove that the other possible causes didnt cause the injury
(50% or more)
o If shows an overwhelming amount of evidence showing the
probability is high that D cause it then D is liable
P brings expert witnesses 2 different doctors
o Brings statistics showing an increase of 50 cases a year of
typhoid fever for 10 years when the water was contaminated
o Brought witnesses of 57 ppl from his neighborhood who also
drank water and got sick
Testimonial evidence that saw the water and said it looked bad,
smelled bad and tasted bad
Didnt find sewage or typhoid in the water but found chlorine in the
water statistical evidence most of the time when theres
chlorine shows its more likely there was sewage in the water
Procedural History:
Trial ct decided that P didnt bring enough evidence and found
directed verdict for D
o Court of appeals found that the evidence was enough and
therefore the D needs to respond and gave the P a new trial
How much evidence do you need to give in order to be given
permission to present your case to a jury, as opposed to directed
o Get past the direct verdict
Need to show that the evidence is reasonably possible and
reasonable certain, what does that mean?
o Need to show that it is probable (50% or more)
If you show reasonable possible (25% or less) the jury would NOT
think in its possible for P so we give direct verdict for D
o Reason for direct verdict: Judge may think that a jury would
find for the D so instead of bringing to jury, Judge just speeds
up the process and decides for them
o OR: Judge may think that the jury may be emotional and
sympathetic and fall for the P and extremely dislike the D (D
is the devil) and therefore the D would not get a fair trial
even if there is no evidence D is the cause so Judge decides
directed verdict to give D a fair result
If you have probable (50%) then reasonable jurors would discuss
and maybe agree or disagree but it would be possible so the jury
needs to discuss and decide goes to jury
Reasonable certain (75%) definitely get to jury b/c have a lot of
evidence to you very unlikely

BOTTOM LINE: in order to get to the jury need probable evidence

(50% or more) that a reasonable jury would discuss and may agree
or disagree for one of the sides. Needs to be enough that a jury
may possibly be convinced
P needs to bring enough evidence so that a reasonable jury would
think that D is the cause and the P needs to get paid
If no reasonable jury (50%) would find for a jury then we give
directed verdict for D

Wolf v. Kaufman
NYS. App Div.
Allowed lights to go out
Kept light on
P: But For Causation Argument: But for you leaving the lights off, I
fell down the stairs. If you left the lights on, I WOULD NOT have
D: Even if Causation Argument: Even if you I left the light on, you
still would have fallen down.
Have ear witness someone heard victim falling down the stairs
and was going down the stairs in an ordinary fashion but doesnt
prove that the lights was the cause. Just showed that he fell down
the stairs. Could have had his shoe broke or something.
Since they didnt prove enough evidence that D was the actual
cause doesnt go to jury and directed verdict
Rejects C/S/S

Had an eyewitnesses to show that nothing happened to victim while
the fell and therefore the D that he didnt have light was the only
An eyewitness is enough evidence to bring to a jury (reasonable
In Stubbs didnt have any eyewitness that there was a typhoid
bacteria in the body of the P

P: but for you not maintaining the stairway I got hurt when the I
stepped on the stair. If you fixed the stairs I wouldnt have gotten
D: even if I fixed the stairs you would have gotten hurt and fell into
the stairs. The box fell on top of you and caused the accident. Its
your fault.
P brought CSI evidence that box was broken consistent with the
box fallen down the stairs not that it fell on top of the victim.
o Physical, circumstantial and expert witness evidence can be
enough to bring to reasonable jury

Reynolds v. Texas & Pac Co. Louisiana court

No light on stairs and no railing on stairs
Was rushed by someone and fell because there was no light or no
railing at a turn on the stairs
But ct found that it doesnt matter about the light or railing they
make a generalization about stairways that are dark that
generally when a person get hurts in a dark stairway its usually
caused by the fact that there is no light and therefore the case
should go to the jury
Common sense generalization is enough to bring a case to a jury in
the state of Louisiana maybe not necessarily in NY
C/S/S = common sense statistics
C/S/S = If we did a study of falls on darkened stairways,
retroactively looked at 1,000 cases, we would have found that in
750 of the cases the fall was due to absence of light. 75% statistical
likelihood that in the future, this will happen again.
Why do we have cause in fact? What is the point?
What if we say if you're in the vicinity of the accident and you were
doing the same type of N you should be liable?
C/S/S generalization a good majority of cases where ppl fall is
caused by an absence in light so any time theres a case where
theres a person falling and theres no lights its USUALLY the case
o If this is what usually happen then this is probably what
happens in our case
o Indiv case in comparison to general case
o Statistical study that shows the generalization dont always
have that statisticial study
o So the question is, is statistical evidence enough?

Statistical Evidence
Zuchowicz v. United States
United States Court of Appeals, 2d, 1998.
140 F.3d 381.

Did: Told V to take the wrong dosage twice the amount of max dosage
Got PPH (rare heart disease) and required her to need a lung
D admits to be N and telling her to take wrong dosage
Shoulda: Shoulda given her the correct dosage

Cause in Fact #1:

P: But for the giving me the wrong dosage, I contracted PPH
D: Even if we gave you the wrong dosage, you could have gotten
PPH a different way
P needs to show that the wrong dosage caused PPH and nothing
Dr. Matthay found that it was more likely than not, caused by
Danocrine and so ct found that expert testimony proves cause in
fact and disproves any other causes for PPH
Note 2: Pg 352. Daubert case (prec) requires that the ct to decide
whether a scientific evidence brought by either side is legit and
found upon a proper scientific procedure
o In Daubert the P brought junk evidence (fake evidence) to
prove there case
o So the Ct must determine whether the evidence is junk or
not Need to be object if evidence is good or bad
o So the Daubert ct came up with a test to determine if the
scientific evidence is junk or not and the judge in Zuchowicz
follows this test and they found that the expert witness
scientist is okay and shows that the drug caused PPH
Cause in Fact #2)
P: If you had given me the drug at a normal dosage, I would not
have contracted the disease
o But for you giving me an overdose, I would have been okay
D: Even if I had given you the normal dosage, you still would have
gotten the disease (maybe sensitive and gets PPH easily)
Ct find that can use C/S/S (common-sense statistics) and
generalizes Pg 349. It follows that when a negative side effect is
demonstrated to be the result of a drug, and the drug was wrongly
prescribed in an unapproved and excessive dosage, the P who is
injured has generally shown enough to permit the finder of fact to
conclude that excessive dosage was a substantial factor in
producing harm C/S/S is okay
Statistical evidence shows that something that happens in a group
generally is more relevant then the actions of the individual
o Like b/c most ppl under 25 are bad drivers since im under 25
im most prob a bad driver
o About the general actions of the group instead of the
individual action of a individual
o B/c in most drug over doses cases the person was hurt
because of the drug over dose the drug overdose in this
case is the cause of the result
o Need to show that a reg dosage is bad, so and overdose is
definitely bad kal va chomer so first need to show that the
drug can cause the disease (that the drug is bad) and then
show that an overdose is even worse
Judging indv by being part of a specific group stereotyping
Not fair to judge a person because hes been part of a group (in our
case part of the excessive dosage use)
Shouldnt you have to explain the merits of the case in particular to
prove cause in fact? saying that because part of a group should
be automatically found causation isnt that bad?
Can you prove cause in fact by statistical evidence alone?
o Cts are split on if its bad or not
P argues: Have generalization in this case that in most of the time
when theres an overdose that is the cause of the getting the
Is C/S/S a good enough argument to get the case to a jury?
1000 falls, 750 c/f is dark
So 75% chance that dark is c/f and so its prob the c/f here
Essentially arguing that the fact pattern in this case is related to the
generalization study (statistics)
Says its good argument but isnt nec enough statistics can be
skewed to look in favor of one side
Pg: 364: statistics can be easily manipulated, misleading and
Have a lot of junk statistics that prove for one side like in dauber
Asking us to determine of a result of an indv by a group statistics
Like in Stubbs brought generalization statistics (c/s/s) to show
that GENERALLY ppl getting sick is b/c of the contamination and
therefore in our case the person getting sick is PROBABLY caused
by contamination
What we learn from stubbs and zurchowitz is that a generalization
is not enough need to show something about the indv case in
order to prove causation
Why do we allow a generalization in N (RIL) but in Causation we do
o Remedy compensation
o Aggregate social welfare everyone as a whole has a social
equality deterrence
o Since were interested in collective/aggregate welfare most ppl
will get what they want but some ppl wont (like most will be
rich, but some ppl are poor dont care about poor if most
ppl are rich)
o However social welfare is not the only thing we care bout in
o Collective theory correct wrongs one wrong to another is
an injustice - someone needs to pay
o Responsibility is the responsibility of the indv
o The reason they dont find c/s/s works for causation is b/c it
has nothing to do with a collective effort its about the indv
and whether a INDV did it or did not do it as opposed to in
N its about the collective so over there c/s/s works
o c/s/s dilutes the purpose of the cause in fact requirement
o Unfair to hold D responsible for damage he didnt do; fairness
rule, it over-deters/deters useful conduct, but requiring direct
evidence would under-deter, Ps would be unable to recover!!
So its a hard balance.
o Leak and ppl got cancer
o Statistics:
o Before leak 20/1000 got cancer
o After leak 50/1000 got cancer
o All every other environmental factors did NOT change (so this
is the only evidence and cause of rise in cancer cases)
o So we can say that the leak caused 30 additional cases of
o BUT we dont know which 30 were caused by the leak (so we
dont know if our particular case was nec caused by the leak
or it was part of the 20 ppl who got cancer before the leak)
o So we can say there is a 60% chance that our victims cancer
was caused by the leak
Ds Fallout: So if all 50 ppl who got cancer use the statistics to show
D was the cause then the D is pay 20 extra ppl (or 40%) when
they were actually the cause (or almost double damage)
o But NOT fair b/c D isnt the cause of those 20 ppl so why
should he have to pay?
o Thats why statistical evidence is bad most cts do NOT
accept stats as a 100% actual cause evidence but still have
some ct that do accept it
o P needs to show something extra to show causation (like how
close you are to the leak and how much wind there was that
moved the leak etc)
o Therefore there is over deterrence b/c the D is paying extra
(almost double) and so that is bad too b/c the D may not
want to do work in that field as a result (say not worth the
risk) and industry may experience shrinkage and then lose
jobs and money and taxes etc etc
Ps Fallout: No cause industry: but if we dont allow statistical to
100% prove causation then it will be very hard to compensate
those 30 ppl who actually did get sick b/c of leak As a result have
under deterrence
o Under Deterrence - Also bad b/c D will take advantage and do
bad things b/c they know they will not be liable to pay
o So what do you do?
Recovery Proportional to Proof (RPP): Divide the 30 ppls money
that D is required to pay over the 50 ppl
o So everyone gets the same amount
o Lets say 1 mil per person so 30 mil in damages required by
D to pay over the course of 50 ppl
So 30 mil/ 50 ppl = $600,000 to each person
D pay $600,000 to each person
RPP resolves the issue b/c D is still paying the same amount he
would have paid and Ps are still get recovery
Therefore its fair for everyone and everyone is happy
So now since the rule of preponderance is bad when using stats
(that if P proves 51% or more they get 100% in damages) the P
recovers proportional to amount they show using the stats (get %
of $ prop to what D should pay)
In toxic tort cases all cases follow rule of preponderance they do
NOT follow RPP if prove 51% or more get 100% in damages

Special Rules
Lost of chance / Lost Opportunity
Matsuyama v. Birnbaum
Supreme Judicial Court of Massachusetts, 2008.
890 N.E.2d 819.
Lost of chance / lost opportunity is a case when the P is attempting
to show that the Doctors failed to act failed to prevent an
unfavorable outcome in that the D reduces the patients chances
for survival, even if the patient has a very low survival rate with the
D helping
o Ds actions give P a complete loss of chance on surviving and
a loss of opportunity to diagnose and treat his cancer and
therefore the D somewhat caused the death of the patient
Case applies all or nothing doctrine in that if the P proves that if the
D diagnosed he would have had a 51% or more chance for
surviving that the D not diagnosed it was the reason he died (was
the but for cause) then get 100% worth in damages
P had been seen by D from 1995-1999.
Complained of stomach pain, at first D did not conduct any tests to
determine cause of pain.
(D knew P had a 10-20 times higher risk of gastric cancer than
average American)
P developed moles on back, D determined they were benign
P developed mole near eye, D ordered test which came back
positive for gastric cancer but D still didnt order tests that would
confirm that P had diagnosis of gastritis
May 3rd, 1999, p went to D complaining of epigastric pain, vomiting
etc. D ordered a gastrointestinal series and abdominal ultrasound
which revealed a 2 cm. mass in Ps stomach. P died in October
Expert witness Finkel found that D breached a standard of care and
was therefore N
Procedural History:
Superior court found that a loss of chance doctrine in medical
malpractice exists and b/c the D did not act in trying to help the P,
the P lost his chance for survival and the D was N
D appeals on that judge erred in granting jury instructions that loss
of chance doctrine exists
Does a loss of chance doctrine exist in medical malpractice suits?
Ct found that a loss of chance doctrine does exist in medical
malpractice suits and if the P proves that if the D diagnosed he
would have had a 51% or more chance for surviving that the D not
diagnosed it was the reason he died (was the but for cause) then
get 100% worth in damages
If P had 49% chance of surviving then doesnt get ANYTHING
o Applying the all or nothing doctrine
BUT the P had less the a 51% chance (had 37.5% chance of
surviving) of surviving so why should the a lack of diagnosis be a
loss of chance?
P was statistically likely to die
o D: even though I was N, more likely than not you still would
have died if I helped (admitted by D in this case)
Dr is paying for 100% chance that he took away chance of survival
However ct still finds in favor of P Why?
P isnt suing for loss of life its suing for a loss of chance to try to
treat and survive
To deter doctors from dismissing cases with potential cancer so
they diagnose all cases and try to treat ppl
Cant necessarily show if the particular person falls within the
percentage of ppl who die so the victims dont care about the
statistics the stats of a group dont matter to the P
P is arguing that it doesnt matter that they had a high chance of
dying they still had some sort of chance of surviving and I lost my
chance of surviving b/c you didnt help me
So I should be able to sue for a loss of life and loss of life and you
recover proportional to the amount you prove. That if you have a
25% chance of surviving you get 25% in damages
So the rule of preponderance no longer applies when involving stats
you get the % you are able to prove not 100% IF less than
50% chance of survival
IF had 50% chance of survival and doc screws up then you get
100% - rule of preponderance
BUT if survival is less than 50% then go to RPP and P gets %
proved - so P can still get some % b/c in rule of prop need to show
50% in order to recover ANYTHING so in order to allow P to
recover something use RPP if less than 50% chance of survival
Only use this rule in cases of medical malpractice IF involving stats
Loss of chance is a theory from a law professor
Bush doesnt like the loss of chance rule b/c if a person survives
that person cannot sue the Dr. who didnt try to help him b/c
they're still alive didnt really cause anything
So its not really a loss of chance its only if you die then you're
suing so a loss of chance rule is really a loss of life rule
RPP is for medical malpractice ONLY but doesnt always apply still
can have the all or nothing rule with malpractice suits as well
For all other torts (whether its toxic torts or food poisoning case)
all or nothing ONLY
Why have RPP for Drs? in this case attorneys are asking to get
rid of the all or nothing rule for this case why did they accept?
Only apply for medical malpractice cases why?
P argues to keep it in just medical malpractice cases b/c in medical
cases a survival rate is a very common term used but in other
tort cases they dont talk about survival rates or rates if it didnt
happen so the court allows it
To convince judge to apply RPP instead of all or nothing P could
have also argued from a policy perspective for why all or nothing
should be changed and how its not fair and to social welfare etc etc
o Need to be able to explain why to explain your argument from
a policy perspective your honor we should do this because
it leads to better fairness and social welfare etc etc
D argues that if you accept RPP then ppl will use it to apply to other
types of cases
Ct explains for the reasoning in allow RPP for meds:
o Reliable expert evidence to prove loss of chance is more
readily available in med cases
o Patients expect doctors to do everything they can to help
them and so when Drs. dont do what they are supposed to
and a patient cant prove a preponderance the patient should
still have the ability to recover $
o Not uncommon for patients to have a less than even chance
of survival when they present themselves for diagnosis
most likely to die when the cancer is discovered so all or
nothing is hard to prove from the get go cant show CIF
o If we dont hold doctors responsible (who are those who are
most responsible for the death) then insurance companies will
be forced to pay (where as they were not as responsible for
the death)
If P proves RPP then it goes to a jury DONT forget that its about
whether it goes to a jury or not and also if the P can get directed
verdict or not
Also RPP is better in med malpractice cases b/c under prep cases a
jury may stretch what is found for example you have to prove
50% or more and if NOT then you dont get ANYTHING if there's
45% or even 33% the jury may still feel bad for the V and say its
almost 50% b/c if they dont estimate up then the guy doesnt get
any money at all so RPP is better b/c you dont stretch it out
everyone wins P gets money and D doesnt pay too much and
jury rules fairly and doesnt have to stretch (no pressure)
But RPP could also be bad b/c the D will always have to pay
In order to argue RPP:
o Needs to be Med Malpractice ONLY
o Have stat evidence like survival/success rate
o Chance of recovery is < 50% (meaning <50% statistical
probability that its a c/f)

Joint & Several Liability

Cases in which more than one cause may be involved in the harm
that befell plaintiff.
Ex: Two cars collide, one goes up on the sidewalk and hits a
pedestrian proof shows that if either driver had been careful the
accident wouldnt have occurred and therefore both drivers were
negligent (both liable for 100% of the harm).
P can sue them together or separately and recover full extent of
damage against either one. P can choose which D to collect from
and the D that paid more than its share could assert a
contribution claim against other D.
Have different theories on what to do when have more than one C/F
Can divide the injuring if it is possible to show that one person is
the cause for one part and another drives into another then there
is several liability for each driver
Several Liability have several different parts so D pays part that
the cause
Joint Liability together they may 100% - so one of the ppl pay
100% and then implead and get other to pay there portion of the

Joint & Several Liability

Summers v. Tice
Supreme Court of California, 1948.
33 Cal.2d 80.
P = Summers
Ds = Tice and Simonson
P and Ds were hunting together, P got shot in the eye and the lip.
Ds both using same shotgun. (If used a rifle, would be able to tell
which one it came from, so can only use this case where shotguns
are used). Cant tell which gun it came from thru ballistics
The shot in the eye is the one that killed the guy but cant tell
which person shot him in the eye and which in the lip
But we know the one of them was the cause just do know which
one had to come from one of the guns no where else
100% certain it was one of the guns but not 100% sure of which
gun it came from
Therefore cannot prove causation of who is the but for cause
Garcia v. Joseph Vince Co: pile of sabers dont know whose saber
is the C/f more than one possible cause

Conditions for Joint/Alt Liability:

o 1) More than one cause in fact, but P must prove one, but
impossible to ID which
o 2) All potential cause in facts are negligent
both Ds are N in a way and cant prove that they are
innocent and the other is the N c/f
o 3) Plaintiff has to be innocent
o 4) All potential cause in facts (all Ds) sued in court.
Someones dead cant use this rule
o Burden of proof switches to D
o All Ds are liable and P can recover a total of 100% of there
injuries from the total of the Ds
% from each D for a total of 100%
Get full liability not partial liability like in joint and
several liability
o If P chooses to sue only one D can implead the other Ds or
force the other D pay for there share of the 100% after found
guilty (b/c ALL Ds are definitely N and are liable)
Policy argument for why P should still recover even though cant
prove but for cause (have more than one c/f):
o Fairness fair that P should recover for damage done to him
o But is it fair that a rich D would have to pay 100% and then
have to run after the other Ds to pay him back
o Is it fair that one of the Ds who are 100% NOT guilty still has
to pay?
Cant do it in crim law but can do it in tort law why?
o The person who is culpable should have to pay for what they
Procedural History:
Trial judge (w/o jury) found both Ds negligent and that P was in
no way at fault.
Couldnt determine which Ds gunshot hit P so awarded judgment
against both Ds
Ds argue that they were not acting in concert, not joint tort-feasors
and lack of sufficient evidence to show which D was guilty of the
negligence that caused Ps injury.
Tice argues that theres evidence that the shot that injured P came
from Simonson due to his admission to a third person and no
evidence that shot came from Tices gun.

Can a judgment be found against both Ds
Ct did not address Tices argument which means that one of them
was the potential cause but both were N
The fact that they were both N in shooting in the direction of the P
shows that they were both a potential cause of the accident
B/c we cannot show who is the actual cause both are liable
Each D is liable for the whole damage whether they are deemed to
be acting in concert or independently
In summers the burden of proof is still on the Ds but there is NO
way for Ds to prove which D is the cause b/c the legit dont know
so both Ds will be forced to pay b/c cannot prove which person is
the cause
o Both sides (P and D) cannot prove c/f
Ybarra v. Spangard
Supreme Court of California, 1944.
P had appendectomy and woke up with pain in his right arm and
shoulder, eventually lost sensation and atrophy of muscles around
his shoulder. Had x-rays taken which revealed wasting away of
muscles around shoulder and atrophy; doctor said was caused by
trauma/injury by pressure or strain applied between shoulder and
neck. Suing doctors and nurses in hospital involved in his surgery
and care thereof.
o Was unconscious so P did not cause the accident
o Body was handled by MANY ppl doctors, surgeons, nurses,
EMTs etc so have many controllers
o All Ds argue that they dont know which D caused the
accident like Summers D argues dont know who caused
o Conspiracy of silence
RIL case but in RIL need to prove that the D is the only possible
cause if have more than one potential cause like in Summers
Hard to prove have exclusive control of the thing that caused the N
o b/c have multiple controllers like in the airplane case
involving pilot and aircraft control etc
o Need to eliminate all of those controllers
In summers as well have multiple possible controllers
Procedural History:
Trial ct found for the D in that they were not N b/c P failed to prove
exclusive control
o Need to have exclusive control in order to prove RIL
Supreme court of Cali shifts the burden of proof to the D in forcing
the D to prove there innocence by showing which other D is N
o B/c of the burden of proof on D someone will snitch on who
is the N D. Different from summers b/c in summers neither
can prove the other is D
ONLY for medical malpractice cases
Market-Share Concept
Hymowitz v. Eli Lilly & Co.
Court of Appeals of New York, 1989.
73 N.Y.2d 487.
Drug DES used to prevent miscarriages
Many CHILDREN of woman who took DES got cancer as a result

Did: sold drug without extensive testing for cancer

Only tested on rat parents
Shoulda: shoulda tested more extensively
On the children of the rats shoulda tested 2nd generation

Causation Issue:
P: CHILDREN do NOT know the medicine taken by there parents
and it was many years ago so parents dont even have the pills
anymore and dont remember what they took
D: cannot prove whose pill caused the cancer to the P
Problems with this case:
In this case CANNOT use the Summers rule b/c:
o 1) there are too many possible c/f
o 2) impossible to have ALL possible c/f in court (which was
required in the rule) b/c some companies are no longer in
business, ct may not have juris over them, and just simply
b/c there are too many
Since cannot use summers rule what do you use?

Concert of Action: Greatest example in drag racing or frat hazing: -Good law
1) One possible cause in fact
o Only one person is the real cause
2) Engaged in joint activity
3) With mutual encouragement
o Only one possible cause but the cause was due to the fact of
your involvement in the race or hazing (if you didnt do it
then the other ppl wouldnt be encouraged to do it)
o Drag race: other guy hit person and person sues YOU can
receive 100% in damages b/c if you werent involved then the
concert would not have happened and the P would NOT have
been injured
o Can sue you even if you cannot get the other D in ct
o Not required to get all causes in ct
CANNOT use this in Hymowitz b/c they didnt communicate or work
in concert to create the drug so no concert of action

Court uses the:

Market-Share Liability (Sindell)
o 1) Many possible C/F, but P must prove one C/F, but
impossible to ID which
Known as fungible product impossible to identify
ONLY USED if have products sold - impossible to
determine who = fungible
o 2) ALL potential C/F are N
o 3) P = innocent
o 4) P sues producers responsible for substantial share of
total market sales
Sells more than others
Need to bring enough of those market sellers into ct
Effect: RPP (w/stat. evidence of market share)
o Ds are liable of each potential C/F limited to the market share
they supplied
o If 5 Ds sold (15% each) 75% of market share (of a market of
1 mil) then you are responsible of 750,000 ppl out of 1 mil
that took pill
Cannot prove that the P specifically was part of the
75% - could have gotten from the 25% not involved in
the suit
Doesnt matter dont have to prove if you fall within
the 75% - make jump
75% likely that Ds caused my cancer
o As a result P recovers % from each D which totals 75%
Break up to the proportion to what each D specifically
75% / 5 = 15% each D pay
o Under the Sindell rule the D can rebut and exculpate
(exonerate) themselves by showing that Ds pill didnt cause
Didnt end up in specific state that P was in
P admitted only took red pills and D didnt make red pill
o Exception does NOT accept in Hymowitz! Why?:
Doesnt matter if D is C/F or not should still have to
pay b/c:
Ds should still have to pay for there N even if they
werent nec the cause
B/c you were culpable and responsible for making a bad
drug you should have to pay
You messed up you should have to pay
Joint and several liability each is responsible for there
share of the damages about the fact that you are
culpable just about being N
The Market rule is not a rule of likelihood based upon
causation but based upon the fact that you created
some sort of risk (pg 377)
o Creates a rule that is difference from Sindell but Conn is the
ONLY state that accepts this most states follow the Sindell

Aurora HYPO C/F:

Hotel will argue even though I was N, the flag would have fallen
even if they were not N
Need to show another C/F and the flag would have fallen at that
time anyway
o Have witnesses that heard a crack coming from the flag pole
and the crackling happened before the explosion and the
horse came so it was falling anyway
Proximate Cause
In proximate cause D is arguing that and admits that he was N and
was the C/F but was NOT the Prox Cause and therefore should
not be liable
No liability if no Prox cause

D will argue 4 different arguments:

1) Superseding intervening cause
2) Unforeseeable type of harm
3) Unforeseeable Victim
4) But if the amount or extent of damages is unforeseeable
o Not a good defense

Superseding Intervening Cause (SIC)

Between the D and the P there is a third party that is the
superseding (cuts off) intervening cause that caused the injury
Only a good arguments if have certain conditions
Draw a line between the D and P who is the 3rd party in the
In order to have SIC it must be after the D acted if the act that is
argued to be the SIC took place BEFORE the D acted that is NOT a
SIC must be in the middle of the line

McLaughlin v. Mine Safety

Who is the SIC that can get D (Mine Safety) off the case?
P drowned in lake and needed to be warmed up. Was brought
heating blocks marketed by D.
Fireman, Traxler, at scene remembered hearing at his training
several years that the blocks needed to be insulated before use but
failed to tell nurse insulate.
Blocks were covered in flocking which resembled flannel.
Nurse applied the blocks without insulating them, in front of
Traxler, and P sustained third degree burns.
P sues the manufacturer of the heating block
Mine Safetys Did put warning on the packaging of block
Shoulda put warning on the actual block so the ppl would see
In order to get D off the hook the D has to show that Trax and
Nurse were both cause
However it wasnt Nurses fault that Trax didnt tell her so she
didnt know it needed to be insulated and its not her fault
So is Trax a superseding intervening cause? essentially blaming
Trax that its his fault that he didnt tell nurse not Ds fault for not
putting warning on block itself
Trax could argue is not SIC b/c in the heat of the moment he forgot
his training that he learned in the past (so hes admitting hes N
but hes not the Prox. Cause of the injury b/c D should have
insulated the block before selling it)
So: Innocence and N of both possible SIC do NOT get the D off the
hook for the Prox Cause
N is a conduct based argument where as in crim law its whether
you had a particular mindset that make you culpable

D: Want to be off the hook so argues:

o Wasnt foreseeable to D (mine safety) that a fireman would
forget there training and not insulate the hot block since the
D could have been reckless and it was UF then fireman is the
P: Wants to keep D liable so argues:
o Possible that the fireman was reckless or deliberate BUT it
was foreseeable to D that a fireman may forget his training in
the heat of a moment (Rule of thumb for Torts is that ALL N is
SIC and UF is usually a case where the big guy puts all the liability
and blames the little guy to get themselves off the hook

ONLY time the SIC gets the D off the hook is:
If the SIC is reckless (had actual knowledge that he was doing
something wrong and still acted)
If the SIC is deliberate (hurts the V on purpose)
The SICs conduct was UF (unforeseeable) to the D

SIC (Polemis Rule)

In order to get a D off the hook of Prox Cause
o 3rd person intervener was reckless or deliberate
o AND was UF to D that the 3rd person would act in this way
Crime was UF to D that it would happen

Ct doesnt apply this rule b/c Trax wasnt reckless or deliberate and it was
foreseeable to D that they someone would forget to apply insulation and
therefore they are the Prox Cause

It wasnt foreseeable he would forget but Trax could argue it was

foreseeable and therefore UF Harm argument doesnt apply

Unforeseeable Type of Harm

Doe v. Manheimer
Supreme Court of Connecticut, 1989
Was raped as a result of having shrubbery too high in a bad
D argues that the Rapist is the Prox. Cause
Ct finds that it was foreseeable that you would someone would have
gotten hurt as a result of your large shrubbery in a bad

Benn v. Thomas
In this case, defendant rear ended the decedents van and caused
him injuries and he died 6 days later of a heart attack.
o No SIC in this case the D hit P fact
o So need to use UF harm instead if it was foreseeable then
the D would be guilty
D argues in response that even if I didnt hit him b/c the decedent
was old he would have had a heart attack anyway
D also argues that it wasnt foreseeable that he would get a heart
attack as a result of the accident how was he supposed to know?
Therefore he should be let off the cook
The ct HOWEVER find that D CANNOT use that argument and b/c it
was UF is not an excuse to get you off the hook

Some courts follow in US

Court of Appeal, 1921
The owners of a vessel chartered its use to the Appellants for the
purposes of carrying, among other things, petrol to Casablanca.
While unloading the cargo in Casablanca, a wooden plank fell into
the hold containing the petrol and caused an explosion.
The fire completely destroyed the vessel.
The owners, charging the chatterers with negligence, claimed the
value of the vessel from the charterers.
The charterers responded that the fire was a remote consequence
of their actions, so they are not responsible.
The case was referred to arbitration and the arbitrators found that
the fire was caused when the wooden plank hit metal and caused a
The arbitrators agreed with the charterers that the spark was an
unforeseen consequence of the original negligence and therefore
the destruction of the vessel was a remote consequence.
The only damage the charterers should be liable for is the
approximate damage done to the vessel by the falling wooden
plank, not the damage done by the fire. The owners sought review.
D was the direct causal link to the P (no SIC)
Polemis Rule: if there is a direct causal link btwn P and D (no SIC)
then the D is on the hook and even if it was UF it doesnt matter
D still liable
o The only thing to get a D off the hook is a SIC UF harm is
not an excuse

Some Courts follow in US

The Wagon Mound
Privy Council, 1961.
D spilled Bumpering oil (non-flammable) into bay some of which
concentrated near Ps property.
D sailed away, making no effort to disperse the oil.
P attempted to disperse the oil without endangering anyone or
anything but after 2 days there was no movement of the oil.
Then the oil ignited and a fire spread causing extensive damage to
the wharf and Ps equipment.
The oil isnt nec flammable EXCEPT at very high temp (but the D
didnt know that thought it was non-flammable)
So there is no SIC between P and D same exact fact pattern as
Procedural History:
Trial judge found that floating under the wharf was a piece of debris
on which lay some cotton waste or rag that had caught fire from
molten metal falling from the wharf and that this set the floating oil
afire either directly or by first setting fire to a wooden pile coated
with oil.
Trial judge awarded judgment to Ps and the Full Court of the
Supreme Court of New South Wales dismissed Ds appeal.
Ct overrules Polemis rule (in USA half of the cts follow Polemis rule
and some cts follow Wagon Mound rule)

Wagon Mound Rule:

SIC is one way to show a PC argument
The other way is that if it was foreseeable to the D that the TYPE of
harm would occur then he is liable since the D in this case didnt
know that this type of harm would occur (b/c thought the oil wasnt
flammable) and so he is NOT N
So the D is not N b/c it UFTH (unforeseeable type of harm)
Look at the foreseeable harm (what you thought the harm would
be) and then look at the actual harm (what harm actually
o Was the actual harm foreseeable to the D? If yes then he is N
o If not foreseeable then he is not the P/C and not N

HYPOs using UFTH and Wagon Mound Rule:

Darby Case: Pg 406: Note 6:
o Released rat shit into the lake and someone drowned
o D argued that it wasnt foreseeable that someone would
drown only foreseeable that someone would be poisoned
Foreseeable harm = poison
Actual Harm = drown
o D found not P/C
o Why is this argument fair? According to polemis this wouldnt
work but according to wagon mound it would work
Larrimore Case: Handout:
o Left rat poison over stove
Foreseeable harm = poison thru food
Actual harm = rat poison explodes and someone got
o Ct found D not P/C
Dougherty Case: Handout:
o Used molten cyanide to close pipes and splashed the cyanide
in a both
Foreseeable harm = the cyanide would splash and burn
Actual harm = there was an explosion b/c it fell on
pipes and ppl got burned
o The type of harm is the SAME! But the way it occurred (by
explosion instead of splashing) is diff and so the ct found the
Hughes: Handout:
o Left manhole opened
Foreseeable harm = someone would fall in hole and
break bone
Actual harm = got burned from the lamp
o Ct found that the D IS the P/C WHY?!
Kinsman: Pg 430:
o Ship broke off from dock and sailed all the way down the
Buffalo river eventually hitting a bridge and another ship
Foreseeable harm = ship hits something (have impact)
Actual harm = ppl who lived along the river were
flooded b/c the ship broke the bridge and caused flood
o Ct found that D is P/C again WHY?!

Hughes and Kinsman go against the rule so maybe we dont

understand the rule what needs to be UF in order for the D to be
off the hook?
The wagon mound rule is not about the type of injury that
happened but the type or kind of accident or occurrence that could
reasonably have been foreseen
o Not about the type of injury its the kind of accident or
occurrence that occurred = UFO
o Unforeseeable type of Occurrence = an event that is NOT in
the FRA (foreseeable risk aggregate) and since it wasnt
foreseeable and not in the circle the D is not the P/C
UFO: - Prove UF and TYPE
1) This type of occurrence is UF this event is UF (unusual)
o In wagon mound bring expert showing that its unusual for oil
to become flammable so therefore it was UF to the D
o Prove by using factual and expert evidence very unusual
that this will happen
2) The actual occurrence is diff in the kind and character from what
was in the FRA
o P would argue that even though its not in the FRA it sort of is
b/c it is similar to the examples in the FRA (so basically like
its in the FRA)
o Completely obvious that poisoning birds with oil and burning
oil are different
o Prove that it is different by showing that it is a diff dangerous
forces that caused the accident than those in the FRA
o Different Forces:
Wagon Mound (WM) Oil =Gooey and toxic
In this case it was flammable
Dougherty explosiveness of Lid = diff
Kinsman Ship = heavy and large mass
In this case created obstacles
o WM test for diff kind = NEED to show that the measurements
that would be used to stop A (Foreseeable acc) are DIFF than
the measurements that would be used to stop B (EVEN
of like response to But for)
B/c it doesnt respond to the same measurement proves
it is inherently different and therefore a diff force
In Wagon Mound diff way to clean up the oil and
stopping a fire inherently different
In Dougherty = lid would splash so you would cover the
lid strong but it wouldnt prevent the thing explosion
so therefore it is inherently diff I covered the lid but
the explosion would have happened anyway
Kinsman = Preventing the ship from crashing into ppl
would be putting bumpers and preventing it from
blocking dam is impossible so inherently diff
Palsgraf - UFTV
Duty 10/6/2016 4:57:00 AM

Duty is a D argument and defense just like proximate cause - I did NOT
have a duty to act
Duty = scrutiny D will have scrutiny by the ct doesnt mean he
is liable just means he has to go to trial
Made in summary judgment No TRIAL if no duty
P must anticipate this argument and parry
o Disprove liability in N and NPS arguments

6 Duty Arguments of D No duty b/c of specific public policy

1) No Duty For Nonfeasance (Third-Party) SEE ATTACHED PAPER

Ds Argument: Nonfeasance = immune from scrutiny from society
o No trial b/c no scrutiny
o D did NOT do anything that created a new risk to P
Feasance = Scrutiny from society = trial
o No trial b/c no scrutiny

Ps response: Feasance = Risk Increasing Behavior (RIB) (creating
a risk) Did you do a RIB = if you did a RIB then you have a duty
to act and you should be scrutinized from society and CANNOT use
a duty argument
Policy Argument: Allowing D to make NF argument thereby not
having to appear before ct any explain there actions b/c of
individual autonomy ppl should have to face there N all the time if
they had no duty to act

Two ways of creating a new risk (RIB) to show feasance (Ps Argument):
1) RIB by Affirmative Conduct (Note 1, Pg 140) D did something
affirmative and proactive that created a new risk to the V that he
did NOT have before therefore creating a duty that D must follow
o A) Direct Imposition of new risk move body
Creating new risk = RIB and b/c he has RIB he has a
duty to act
Doesnt matter if he actually creating a risk or not if
you are being proactive and physically doing something
that could potentially create a risk to the V then you
have an affirmative conduct and are creating a duty for
ANY physically thing done that could potentially create a
new risk to the P would create a duty to stand trial!
Ex: Farwell: Beat up and under car and you pull him
from under the car and put him in your car could be
creating a risk for V and therefore you have affirmative
conduct and you have a duty
Must be creating a NEW risk meaning that the
situation the P is in is Different!
Have car in the middle of the highway and you are
directing traffic protecting ppl from hitting your car and
getting into an accident if someone comes and picks
you up then you are NO longer directing traffic thereby
creating a risk that ppl may hit you car
That person picking you up is creating a NEW risk
and that risk is a feasance
If the D did something that wasnt a NEW risk to the P
then the D has no duty and wont have a trial

City of Kingston Pg 141 police found a drunk on a

bench and MOVED him to there car at that second
created a new risk
Could have been injured already
Could have gotten into car accident and he got
Etc if he creates any new potential risk then the
D has a duty to stand trial b/c of his feasance
o B) Indirect Creation of New Risk start to help and then you
retreat detrimental reliance of V or third party
Farewell Hypo 2: if you get out see his body there say
OMG and then leave someone may have saw you
looking at the body and assumed that you were going
to help him and therefore they didnt stop to help him
You stopping created that risk that someone else
wouldnt have stopped and therefore that P would
not have gotten helped at all
Detrimental Reliance (DR) of the third party third
party is relying on you to take of this guy and therefore
doesnt stop thereby creating new risk for P

Can have both DR to 3P or DR to V (P) Doesnt have to be

just one argument

Detrimental Reliance (DR) of P P screams help help

call 911 and you stop tell him you will BUT you dont
creating new risk to P b/c P stopped screaming help and
therefore you created a new risk that no one else would
help him
Victim no longer relies on himself to help himself
relying on you now to help him and the duty
goes to you and therefore you must stand trial for
your feasance if you didnt end up helping him
(doesnt mean you're liable)

2) RIB by Initiating a Special Relationship - Everyone is relying on

the relationship so they dont have to get involved Choose one
and argue which relationship D falls under NEED 3P to have a
spec rltp argument
o A) Relationship with Third-Party Injurer (Control Relationship)
D by starting this relationship with the injurer had the
duty of controlling the injurer (has duty second rltp is
To prove D has duty of control, P needs to prove:
1) D as this specific role has the ability to predict
need for control
2) D as this specific role has the ability to control
the injurer
3) Possible for 3P to submit to Ds control (show
that it happens all the time)
Tarasoff Dr (psychiatrist) of univ had patient who said
had homicidal dreams of killing Tatiana Dr didnt know
whether Tatiana was alive but patient ends up killing
Had relationship with injurer had to control
First time someone argued that this type of
relationship exists
NEED to prove that its possible for 1) Dr to
control the third party injurer, 2) to predict the
need for control, 3) and that the 3P normally
submits to the Drs advice
P: 1) Dr can give medicine to control or put in
institution or warn me
P: 2) Can see it coming b/c he had homicidal
P: 3) Patients submit to Drs advice all the time

D Response: C/AV is enormous b/c once patients
know that Drs may tell others about what they
say they may not coming to the Dr anymore ct
rejects b/c the risk to human life is higher than
Dr/Patient confidentiality
Ex: Jail: Control the jailmates from attacking other so
must do that b/c of this relationship and have a duty to
do so thereby you can face trial if you have feasance or
create a risk if dont do control
Guards have the ability to control the jailmates
and they would submit to it and they know when
they need to control them
o B) Relationship with Victim (Protection Relationship)
D by starting this relationship with the victim had the
duty of protecting the victim (has duty second rltp is
To prove D has duty to protect, P needs to prove:
1) D thru his role has the ability to predict a need
to protect
2) D has the ability to provide protection
3) Generally Vs would lose ability to protect
themselves and so must succumb to Ds
Pg: 202 Landlord needs to protect Tenant
1) Did landlord have ability to predict need to
protect thru his role know that there
neighborhood is bad and need to protect tenants
2) Landlord has the ability to protect hire guard
for building put security systems etc
3) Generally tenant would succumb to landlords
protection b/c cant bring in dogs and put in your
own security system and protect yourself
Ex: Jail: Protect the jailmates from being attacked by
other jailmates jailmates (potential victims) are
relying on guards in jail to protect them and therefore
are not allowed to bring gun into jail to protect
1) Guards role as guard have the ability to know
whos weak and who needs protection
2) Guards can provide protection from inmates
3) Inmate would normally succumb to guards
help b/c that is there only form of protection b/c
no guns
Posecai: Woman gets robbed in Walmart parking lot and
Walmart had duty to protect do owners owe duty?
1) Walmart as role of owner with parking lot
knows that ppl get mugged in parking lots all the
2) Can provide protection by having employees in
parking lot and security cameras etc
3) Ppl lose the ability to protect themselves b/c
they cant have dogs or guns in store so they dont
bring it with them and are expecting D to protect
3) N/ no N to show Duty judge decided the N/ no N argument
o Posecai RPS Argument: You can also argue from a RPS
argument a RP owner would know that he needs to protect
his customers and shoulda done more
Did didnt protect and put cameras
Shoulda protected thru various security measures
o Tarasoff RPS Argument: A Dr shoulda warned the V if he had
known that his patient had such strong homicidal tendency
Did didnt warn
Shoulda warned

Easier to make an aff conduct argument b/c there arent any extra factors
required like in sp rltp argument

2) No Duty For Policy/Neg Econ Impact Not subject to suit due to policy
Only Judge decide NOT juries WHY?!
A) Economic Productivity Policy:
o Certain companies are not subject to suit b/c it would go
against a public policy and have a negative economic impact
on the general public if they were subject to suit and we want
the general public to have a great economic prospects
o Ex: Protect ppl b/c if public utility companies (Con-Ed) are
subject to suit they will eventually raise the costs of
defending at trial onto the customers and therefore the
customers will eventually suffer and lead to a negative
economic impact
B) Social Justice Policy:
o If we allow prices to go up then ppl who are poor and
suffering already will suffer even more b/c they're going to
have to pay even more for electricity (assuming that rich ppl
will be able to afford the drastic price increases)
o Shifting the burden from the poor ppl who cant afford the
price increases to the ppl who are injured b/c they cannot sue
the company
C) Give credit to poor ppl so therefore they dont suffer and injured
parties can still sue
D) Social Justice Policy 2:
o Posecai Policy Argument: You should have a public policy that
says as an owner should provide lights and cameras b/c you
have a duty to protect your customers BUT you dont you
protect the customers! Why?
Juries would ALWAYS find for the ppl who are injured
and as a result would make the owners do a lot of
things so that injuries dont happen leading to extensive
searches at every door and taking away the individual
rights of every customer
There would only be poor ppl who suffer b/c the stores
(like walmart) where poor ppl shop are in poor
neighborhoods are the ones where robberies occur
the good stores like lord and taylor are in good
neighborhoods and robberies dont occur there
As a result only poor ppl would be subject to the harsh
searches in the stores b/c the stores where the rich ppl
go to dont have robberies and therefore dont need
extensive searches
So we dont allow juries to decide b/c they dont know
what they're doing and they will cause these things to
happen to themselves and to protect those ppl ct says
only judges decide b/c they are the ones who know
3) Limited No Duty For Premises Injury: Types of Vs
Invitee: business visitor and comes for a business matter or
economic benefit of D
o Someone who comes to clean your yard
o A colleague who comes to your house and youre working at
Licensee: Social guest, comes for social contact w/ permission
Trespasser: intrudes w/o permission

Two Diff Rules:

o 1) Traditional: Categorical have a diff duty depending on
the category (not all states follow this rule)
A) Invitee: Owe duty of rble care to discover and fix
dangerous conditions on your property
B) Licensee: Duty = Warn of dangerous conditions
known to D, but hidden from licensee
Dont have to fix just have to warn
Dont have to go seek just things that you know
about b/c r/care isnt required than its just what
you know
They cant ask why didnt you go look
dont need to
C) Trespasser: Duty = Dont have traps or engage in a
willful way to hurt them (wanton and willful N) run
them over with your car not knowing they were there
o 2) Modern: Single Standard R/care for ALL same std for
So in some states you owe the same r/care for a tres
that you do for a inv or lic
Ex: Tres sleeps on skylight and he fells thru he can
sue you do to this law (as long is it was foreseeable/PC
Ct can ask why didnt you go and check how much
weight the skylight can hold?
o Policy Effect:
1) Autonomy/Liberty of indv in there homes in
Category have indv liberty, in s/std dont have b/c owe
care to everyone
2) Neg econ impact on RE where state adopted S/STD
3) Social relations better in categorical, bad in s/std
b/c ppl dont like to have other over b/c they are all
potential litigants
4) No Duty For Social Host
Someone has party and one of the party attendees get drunk and
get into car accident Reynolds v. Hicks
RULE: social hosts are not subject to suit b/c they are NOT the PC
(even though the logically are b/c it was foreseeable to them that
someone could cause accident) AND also b/c there is a policy that
justifies it
o Whats the policy?
o Public Order Policy BAD b/c if you require hosts to hire
bartender so they look at whos drunk then youll cause fights
between friends when he tells him to stop
Why no duty? B/c want social relations and civility so dont have to
worry about drunk friend and adopt a social host duty and justifies
o Also want ppl to buy homes and have social parties if they
cant have parties they wont buy homes and that would have
a neg econ effect
No one wants to say this policy argument so they argue, not PC etc
5) No Duty For Govt Discr/Policy
No duty for governmental acts (govt immunity) just like a king is
not subject to suit so too the govt (modern day king)
o Govt discretionary act (policy decisions) there are certain
acts that ONLY the govt can do thats what this is concerned
with way they allocate certain resources where police
goes etc. policy decisions
o N is screwing up when CARRYING out the policy admin act
not govt act CAN be subject to suit
o Policy sep of powers & neg econ impact
o Govt should NOT have to defend itself no scrutiny in ct
o Fed ct claims act allows ppl to sue fed govt for injury
Ex: Woman calls police b/c someone is trying to get into house
but police have policy that they cannot do anything until the person
gets in the house
o Women gets acid on face from person and blaims the police
b/c they wanted her to call back instead of coming
o Policy argument of NYPD is our resources are limited and if
we come every time someone just calls then we wont have
resources in other dept
o Therefore the NYPD should NOT be subject to suit for just a
policy that ALL police officers are required to follow policy or
protocol of govt
o If you said someone was in the house and the operator told
the police to come BUT she told them the wrong address
the NYPD would be subject to suit b/c that was an admin N
NOT a govt act there actions werent something that was
the policy of NYPD the officer decided to IGNORE that policy
and did not execute the policy
o Ex: NYPD has policy that they have to go 40 MPH if they go
40 MPH then they CANNOT be subject to suit (no duty)
If they go 60 MPH which is above the 40 MPH policy
THEN he has a duty b/c he executed the driving policy
6) No Duty For Neg infliction of Emotional Distress
Falzone case: duty requirement of non-physical harm
No duty to give economic harm to someone if physical harm then
potential duty
D does something that potentially caused personal injury to P Ps
o 1) Economic Damages: She has medical costs, lost wages,
future medical cost, lost future earnings (decrease of earning
power cant make as much b/c they're injured and just cant
do the same labor anymore)
o 2) Emotional Damages: also known as emotional distress
(E/D) law refers to pain & suffering
She hurt her foot has to wear boot and its
embarrassing, can go to beach and do other activities
she normally could it is emotional
No rationale and equation to determine P&S jury
makes up number
o Together they are compensatory damages which is to put
them back to the way they were before the accident
o Some states have statutory caps on how much a person can
In duty the example is you caused damage to P, but NO physical
o Ex: Falzone: arguing only for P&S didnt have any physical
harm done but had emotional damage
Scared her so she should recover for the constant fear
she has now
Fear can cause physical damage as a result
Heart attack
Is there a duty to avoid those kind of damages?
RULE: CL there is no duty in emotional distress ONLY can get trial
if there was physical injury
EXCEPTION to no duty for emotional distress: - EXCEPTION only
applies to a rble emotional person if you are VERY emotional and
sensitive then these dont apply to you b/c youll have damage from
everyone it has to be that rble emotional person would be
emotionally damaged from this
o 1) D exposed you to an imminent zone of danger BUT there
was no physical contact and had physical injury as a result
(subsequent physical injury SBI)
Position where you were threatened with death or
serious bodily injury and almost killed AND you got sick
a result (PTSD etc)
In Falzone she got sick as a result of almost being killed
and was able to recover both economic and P&S
Originally ct was worried about scam artists who didnt
really have emotional distress but can lie about it b/c its
very subjective
Ex: Man N exposed to asbestos and becomes extremely
scared that he will get cancer however did NOT get
cancer yet can he recover
Rule: the SBI must happen IMMEDIATELY b/c it didnt
happen yet and hes just scared he would get injured is
not enough
o 2) D N put you in a shocking situation death of a loved one
Ex: Man goes to pick up personal effects of his father
and goes into the back with the effects and finds his
fathers hand
Did NOT have any physical injury as a result
only had emotional distress
We know he wasnt making it up an exposure to such
a shock would cause emotional distress and would do
NOT care if there is SBI he obviously had emtl
distress as a result and should be able to recover
Ex: mistaking one body for another and cremating that
body and therefore I cannot bury loved one clear
shocking situation and I should be able to recover
Gammon: emotional distress and NO physical injury
MUST be backed up and diagnosed by a psychiatrist
IF your JURIS does NOT follow one test impt then need
to argue both argument
1) Dillon Factors: (Factors CAN be expanded)
BETTER FOR P b/c can expand
1) How close is the rltp mailman or mother?
2) Observed directly as opposed to hearing
3) SBI happened immediately as a result
2) Portee: Witnessing loved one killed GREAT e/d
however must have conditions to have duty and be
recoverable Conditions: (conditions Cant be
expanded) BETTER for D b/c restricted test
1) Marital or intimate rltp btwn P and V
2) MUST have serious bodily injury of V
3) Must be directly at the scene hearing is
ENOUGH, BUT have to be there
4) Severe E/d bring psychiatrist to prove
3) Tobin NO DUTY NY case doesnt accept this rule
no damages for bystander emotional distress
Only care if you argue that it hurt you directly
but if you're hurt ONLY b/c you were worried for
loved one then you cannot recover
If care about you and your loved one then you
can recover
Policy Reasoning behind this rule not every
injury should be remedied by the law b/c it would
take away from the economy at large econ
o 3) D -> Witness to 3P
Damages 10/6/2016 4:57:00 AM

Seward: Pg 710: suing LA bus company for running over foot
Pain & Suffering gives you more money then the economic
amount you were normally getting emotional trauma

Statutory liability of survival the estate of the decedent will state have to
pay debt to others
So if decedent does a tortuous act, his estate will have to pay
The statute allows survival of pre-death tortuous acts
Loss of consortion

Wrongful Death statute allows the family to recover $ for the death of
person in their family
The idea is b/c the person that was killed was the earner of the
family (breadwinner) and when he was killed the family lost and
possible future earnings of the dead person
Therefore the family files a wrongful death suit to recover the
possible future money that they lost as a result of the death of the
Grief and long-term emotional stress is NOT recoverable
Only for the possible money that was lost
Defenses 10/6/2016 4:57:00 AM

5 elements of torts: N, CIF, PC, Duty, Dam

P always argues each of these first and then D responds to the Ps

Aff Defense The Ds defense of the Ps action focus on Ps actions

Ds discussing Ps action it is in the affirmative
o DIFF from responsing to Ps argument
o Responsive Defense Responding to Ps Argument
o Affirmative Defense Showing Ps actions that make him N as
well and thereby mitigating the damages D has to pay
D only argues when there is a likely that you will convicted under
the 5 elements of tort and then say lets focus on the Ps action
Hes partially responsible as well and therefore I shouldnt have to
pay as much

Aff Defense:
1) Contributory N (CN) P contributed some Negligence as well
use EXACT same argument in all tort argument Mirror image P
did N to himself running into a street is risky to ones welfare and
to someone else welfare it causes me to crash I shouldnt be
o Elements:
1) R (to oneself) is higher than C/AV P took some sort
of risk
2) NPS P was contrib NPS
3) CIF but for your bad conduct accident wouldnt
have occurred
4) P/C no SIC cause and wasnt UF, etc
o Why?:
To ensure the N V dont get money this way it deters
others ppl from taking unrble risk with there when they
are doing something
Its stupid b/c you are always caring about your own
body and therefore you cant really deter someone from
hurting themselves they obviously will try themselves
not to put themselves in a risky situation
o Result:
If you a CN then you CANNOT recover anything at all
All or Nothing Rule
2) Assumption of Risk (AR) AKA VAR (voluntary assump of risk)
P is assuming the risk and therefore CANNOT sue P was reckless
o 1) EAR (Express AR):
P and D have a K about risk waiver of who bears the
risks of one parties N
Ex: Go skiing: waive all claims of N by D in case I
get injured therefore cannot get dam
Only void IF:
1) It was poorly drafted / no clarity
2) The K was extremely one sided
3) Against public policy ppl who are in public
service should be accountable for the N actions
Doctors, hospitals etc
But a ski resort or a gym is NOT public
service and therefore they should be help
accountable but they arent anywayWhy?

B/c the costs of the companies will go up
thereby making the ppls cost go up and
that would take away from the ppl
o 2) IAR (Implied AR) Implied via the behavior of both parties
1) Primary
Ex: Playing sports and hurt someone ppl know
you cant sue the person who hurt you b/c you
took the assumption of risk by playing
Policy argument that we encourage ppl to
have a good time and exercise soc welfare
Therefore theres no N & no Duty b/c
doesnt have to worry about getting into ct
Only have a certain amount of duty that the D did
follow Ex: baseball stadium have enough ppl
fenced in but not required to have everyone
Followed the RPS and did all that was
required of them by the law therefore
cannot be sued
2) Secondary
Rble AR (RAR) rble risk
Ex: Firefighter goes into building and is
injured by the landlords N on staircase
o Cannot Recover Why?
o B/c he will compensated by FDNY
insurance or somewhere elsewhere
like that AND therefore shouldnt be
able to recover twice ALSO he is doing
an inherent risk that is part of his job
o D/RAR (Deliberate risk taker) does
not recover b/c he recovers elsewhere
Ex: Someone from building goes up bad
stairs to save baby from fire
o Rble risk b/c knew he was taking a
reckless risk but it was rble to save
the baby
o Does Recover Why?
o Should be able to recover for doing a
heroic act this way we dont deter
ppl from doing an heroic act b/c they
may get hurt and wont recover b/c of
someones N they can recover
o S/RAR (Spontaneous Risk Taker)
DOES recover b/c cant recover
Dont confuse Reckless & a Rble risk a
reckless risk unrble risk, a rble risk is
something accepted by society so should be
Unrble AR (UAR) the risk being taken is unrble
took the dark stairway instead of the lit stairways
when he knew of the lit stairs
When the P was being reckless knew that
you could possibly fall by taking the dark
stairway but did it anyway instead of taking
lit stairway
No rble excuse to do risk
o (Risk High, C/Av Lo)
3) Diff btwn CN and AR
o A person under AR has KNOWLEDGE of the risk thereby
acting reckless and therefore should NOT be able to recover
o However, cannot recover in CL CN as well
4) Comparative Fault no longer an all or nothing rule for some
behaviors still have All or nothing for other behaviors
o If P has some sort of N they can still recover, but just cover
less amount
Reduce dam
o No longer complete bar of dam compare the N (or reckless)
of each party thereby sharing the dam
Give dam prop to the amount each part was N or R
Some behavior gets compared and other doesnt
See Chart
The behavior that DOESNT get compared is all or
nothing Ex: EAR signing K, cannot recover
ONLY that which is compared get prop dam
P would rather be N, this way they get more
D would rather P be R, this way D pays less
o As a result the diff btwn CN & AR matters Why? How?
The diff btwn CN & AR is N vs. R
The amount that a P can recover will be MORE in a CN
case b/c he was N, and LESS in a case R b/c he did
something stupid and shouldnt recover as much for
having knowledge and still continuing
o D still needs to prove CIF, P/C and Duty

Strict Liability
ADA Abnormally Dangerous Activity and therefore if you do it you
automatically are liability and have no excuse for it
Rest 1st: Conditions of SL Ultra Hazardous Activity (UHA) (Better for P)
1) Activity necessarily involves a serious risk of harm, which cant
be eliminated through care
o By the nature of the activity someone will definitely get hurt
o Ex: Tiger Keeping, Reservoir
2) Not common to do this activity
o Ex: Person who has the dynamite takes care of the risk to
other b/c he insures himself somehow so in case something
happens hell have the money on the side to pay for it
(D/RIR- Deliberate Rble imposer of risk) b/c you put money
on the side then you should pay others regardless of whether
youre N or not so you made a deliberative choice to have
money on the side so instead of making him going thru trial
he just has to pay automatically he deliberately had the
money on the side for this purpose

Rest 2nd Abnormally Dangerous Activity (ADA) (Better for D has excuse)
1) High risk of harm to others
o Hi NER high non-eliminatable risk
2) Likelihood the harm will be great
3) Cant eliminate risk through rble care
4) Not a common usage
5) Inappropriate location to do activity (P) vs. Appropriate Loc (D)
o P arguing that R Hi, and C/Av was low
o D arguing that R Hi, but was appropriate
6) Low social value to the community (P) vs. High social value (D)
o P arguing that R Hi, and C/Av was low
o D arguing that R Hi, but allowed b/c of high social value
o High social value = ppl want him to do it

P arguing that it was an inapp location OR had a low value P only

has to prove one
Ds arguing that if it was an app loc to society and they did what
they shoulda did THEN it gets them out of SL AND if had a high
social value to do the activity then also gets them out of SL - D
NEEDS to prove both
o Rest 2nd allows excuses for D that would get them out of SL
ONLY happens if you have one of the two things
o P CANNOT prove 5 or 6 therefore gets D off the hook
o If D proves 5 or 6 THEN it goes to N argument! Doesnt
automatically gets rid of charge
o Mitigate from SL -> N
o Ex: Have bomb on train which would have high risk to ppl
that cant be taken care of with rble care BUT youre moving it
from LA to the desert so it doesnt blow up in city so you an
app location (the train) b/c thats the only way to transfer and
its a high social value b/c you wanna save the city of LA so
D has an excuse and could get off following Rest 2nd
Essentially a N rule from a diff perspective