TORTS OUTLINE Weisberg FALL 2011 What is a tort? Poethics, Vosburg, 35n2; Brown v. Kendall,7; Vincent v.

Lake Erie, 123; Greenman, 760. a) Resolving the disconnect between should and was what value is served by Osterlind? Palsgraf? Hollaris? Hynes? Vosburg? Brown? Vincent? Greenman? 2) The development of liability based on fault: a) Brown v. Kendall-2 dogs fighting. D lifted stick to separate dogs and hit P. D not liable. i) If D actions were unintentional and he acted with due care, not liable. ii) The burden of proof is on the P to show that the D didnt act w/ necessary care or that he did with intent 3) The Intentional Torts Garratt, 17; Talmage, 28; I de S, 37; Western Union v. Hill, 38; Hardy v. LaBelle, 46; Bonkowski, 116; Dougherty, 68; Glidden, 74. a) INTENTIONAL TORTS A.PRIMA FACIE CASE To establish a prima facie case of intentional tort, P must prove: i) Act by Defendant-the act required is a volitional movement by D. ii) Intent- Must intend the act that amounts to or produces the unlawful invasion and the intrusion must be the virtually inevitable consequence of the willful act. (1) Specific intent-the goal in acting is to bring about specific consequences (2) General intent-the actor knows w/ substantial certainty that these consequences will result (3) Transferred Intent-intent transfers to the tort actually committed or to the person actually injured (a) Only applies where the intended tort and the actual tort is assault, battery, false imprisonment, trespass to land, or trespass to chattel (4) Talmadge v Smith-D threw stick at 1 boy and hit another. Liable. Transferred intent. (a) Rule: transferred intent cannot be claimed if the original intent is fulfilled The fact that the injury resulted to a party other than was intended does not relieve the defendant from responsibility. (b) It is the intent to bring about the consequences of the tort and not injury. Thus, a person may be liable for unintended injuries from the consequences of the tort. (5) Vosburg v Putney-schoolboy kicked another lightly boy didnt feel it. Prior condition lit up and causes $2500 injuries. (a) Motive impels a person to achieve a result. Intent denotes the purpose to use a particular means to cause that result. Therefore, even if a person acts w/o a hostile motive or desire to harm, or even when he is seeking to aid the P, he may be liable. (b) Mistake does not absolve a person from being held liable for intentional tort. (6) Ranson v. Kitner-killed dog mistaken for a wolf and held liable (a) Everyone is capable of intent in intentional torts-even minors and incompetents. (b) Did P have to prove if D was shooting at his chattel? Plaintiff does not have to disprove the good faith of D P just has to show substantial certainty that D meant to shoot his animal - Invasion of protected interest- interest here is chattel - (In this case there was no counter-showing, he meant to shoot a wolf, and that was a good thing). A benign purpose does not negate (c) Reasonable mistake was not a defense for the trespass iii) Causation-the Ds conduct must have been a substantial factor in bringing about the injury. (1) *the courts are more willing to extend the chain of causation here than by negligence.* (2) Garratt v. Dailey-child pulled chair out from old woman and held liable. b) Battery- intentional infliction of a harmful bodily contact upon another. contact to the P which results indirectly or directly in a harmful contact Not all purposeful touchings constitute an Intentional tort, while some benign touchings do, and not all careless acts constitute Negligence. i) Restatement elements: (1) Intention of (a) harmful or offensive contact (to a person of ordinary sensibilities) (offensive if P hasnt consented to it) (b) apprehension to other or a third person (c) knowledge substantial certainty (i) Garrett v. Dailey 1955 (5 yr. old removed chair as old lady was sitting down, not necessarily malice or prank but knew with substantial certainty). (2) contact is not consented to by the other or the others consent thereto is procured by fraud or duress (3) the contact is not otherwise privileged. Intent requires that the act must be done for the purpose of causing the contact or apprehension. ii) Not every Battery entails assault- some courts say this- ex: sleeping beauty hypothetical, kiss while sleeping. iii) Apprhension is not necessary-a person may recover for battery even though he is not conscious of the contact when it occurs iv) DO not need actual damages , can recover at least nominal damages c) Assault i) Elements: An assault is an unlawful attempt to commit a battery, in an intention unlawful offer to touch the person in a rude/angry manner and in circumstances to make the P think that battery was likely, along with the ability to commit battery if not prevented. Can also be offensive language, threatening -Reasonable apprehension of an immediate contact (1) Requirement of Reasonableness- The apprehension of contact has to be reasonable-they use the reasonable person test (a) Courts will not protect against exaggerated fears unless the D knew of the unreasonable fear and uses it to put the P in apprehension. (2) Apprehension is not the same as fear/intimidation. Apprehension is expectation. So one can reasonably apprehend an immediate contact even though he thinks he can defend himself. (3) In contrast to battery, the person must be aware of the Ds act for it to be apprehension. (4) Person does not need to know the identity of the person, only that theres an unpermitted force being directed at him. (5) If the words are accompanied by an overt act, clenching fist, then may be assault. Additionally, words may negate as assault if they make unreasonable any apprehension of imminent touching. Conditional threats can create an assault (point gun $ or life) (6) Immediate- apprehension for immediate contact, threats for the future do not count, and no assault if D is too far away or preparing for future assault (7) Even if no harm- I de S et ux v. W de S -Assizes 1348 (even if no harm done, D threw hatchet at P immediate

apprehension of contract- want to dissuade public from attempting to hurt anyone) (8) Must have present ability- Western Union Telegraph Co. v. Hill 1933 (Let me pet/love you and fix your clock case). An assault is an unlawful attempt to commit a battery, in an intention unlawful offer to touch the person in a rude/angry manner and in circumstances to make the P think that battery was likely, along with the ability to commit battery if not prevented. (9) No requirement of damages-dont need to prove damages to make out prima facie case. P may recover nominal damages. If malice, punitive damages will be awarded d) Trespass to Land i) Elements: (1) Every unauthorized entry upon anothers land qualifies as a trespass, regardless of the degree of damage done in the process. dont have to show a purpose or motive to step on the land unlawfully. Certainty of intention to touch. P needs to show that D knew with at least substantial certainty that his action would result in what turned out to be the tort of trespass to land- doesnt matter if that is taken up mistakenly. (2) An act of physical invasion of Ps real property by the D (3) Protecting the interest of exclusive possession of realty, so just need a physical invasion (a) D doesnt need to enter on the land-could throw rocks, push pp on (b) Lawful right of entry expires (4) If no physical object enters the land, its nuisance or strict liability ii) Intent by the D to bring about a physical invasion (1) Dont need intent to trespass-intent to enter the land is sufficient iii) Causation-need to show that Ds act legally caused the physical invasion. iv) Land is the surface, air space, and subterranean to the depth and height that the P makes beneficial use of such space. (1) Every unprivileged entry onto the land of another is trespass regardless of the amount of damages. v) A/o in actual or constructive possession of land may bring an action for trespass. (1) Dougherty v. Stepp 1835 (D surveyed Ps land, but the entry upon anothers land without authorization always qualifies as a trespass and always infers some damages.) (2) A reasonable mistake is no defense to trespass. (a) Serota v. M. & M.Utilities Inc. 1967 (oil distributor filled already-full oil tank which then spilled on Ps property) Trespass to be liable need not intent or expect the damage of his intrusion (could be benign) e) Trespass to Chattels i) Elements: In order to prove a case of trespass to chattels, there must be damage to the chattel, the owner must be deprived of use of the chattel for a substantial period of time, or bodily harm must result from the trespass. (1) An act of the D interferes with Ps right of possession in the chattel a. Protects a persons right to possess his chattels, so any interference will suffice. Usually 2 forms: (a) Intermeddling-directly damaging Ps chattels (b) Dispossession-depriving P of his lawful right to possession of his chattel (2) Intent to perform the act bringing about the interference (a) Intent to do the act is sufficient-dont need to prove intent to trespass (b) Mistake as to the lawfulness of Ds actions is no defense (mistaken belief that D owned the chattel) (3) Causation (a) The interference with the chattel must have been caused by the Ds act or set into motion by the D (4) Damages (a) Chattel owner must prove more than nominal damages-there needs to be actual damages (b) By dispossession, the loss of the chattel is deemed to be an actual harm. (i) Glidden v. Szybiak 1949 (girl pulls on dogs ears but no trespass) 1. Unlike trespass to land, trespass to chattels does not entitle one to nominal damages. Some sort of damage must result from the interference because sufficient legal protection of the security of possession of a chattel is found in the privilege to use reasonable force to maintain possession. ???? (5) Liability without intent (good-faith mistake)- When one damages another, he is liable for that damage, even if he would not have committed the act causing the damage but for a good faith but mistaken belief. The relationship between liability and intent is such that even if one did not intend to do something, they can still be held liable for it. (a) Ranson v. Kitner 1889 (shot dog that looked like a wolf in good faith) f) False Imprisonment Elements: restrictions or detention on liberty of movement, restrictions that act on our will, make us feel that we dont have our liberty, that we cant go somewhere freely. contemporaneous consciousness Damages are on incursion on your liberty of movement. Harm doesnt have to be physical. (1) Prima Facie Case (a) An act or omission on the part of D that confines or restrains the P (b) To a bounded area (c) Intent (d) causation (2) Sufficient methods of confinement or restraint include: (3) Physical barriers (a) Big Town Nursing Home v Newman-Man kept in home against his will. Verdict for him. (4) Physical force- Can be directed at P, close family member, against Ps property a. P does not have to resist the force and does not have to test the threat when the (5) D has the apparent ability to carry it out. c. Threats of force-P, family member, property d. Failure to release ii) If P came under Ds control lawfully, an affirmative duty is placed on the D to release him at the right time, and if doesnt, it is false imprisonment. iii) Invalid use of legal authority (1) Shoplifting detentions are privileged if: (a) There is reasonable belief of theft (b) Detention must be conducted in a reasonable manner and cant use deadly force (c) Detention can only be for a reasonable amount of time and for the purposes of making an investigation. (brief)

(2) Insufficient Methods of Confinement or Restraint: (a) Moral pressure (b) Future threats (c) Time of Confinement-time is irrelevant, except for the purpose of calculating damages (d) P must be aware of the confinement (i) Exception: if the P is injured by the confinement (e) A bounded area is one where the Ps freedom of movement in all directions is limited. The area will not be characterized as bounded if there is a reasonable means of escape of which the P is aware. iv) No need to prove actual damages. If malice, then may get punitive. (1) an intentional confinement of another when the person is aware of the confinement (a) (Hardy v. LaBelles Distributing Co.) While actions or words may give rise to a claim of false imprisonment, the actions or words must rise to the level of unlawful restraint against ones will to be actionable. (P accussed of shoplifting, said would have stayed anyways, not against will). v) Privileges: Storekeepers (1) Bonkowski v. Arlans Department Store 1968 (D approached P in parking lot to ask to look through bag and return to store). There exists a privilege for merchants or shopkeepers to detain those whom they reasonably believe to have unlawfully taken chattels for a reasonable investigation and thereby avoid liability for false imprisonment. The Restatement does not mention whether it is OK to detain someone who has left premises but still in the vicinity. It is for the jury to decide whether D reasonably believed the P had stolen goods, and whether the investigation was reasonable under all the circumstances. If it is not this privilege, then it could find a false arrest. When D has a privilege, the burden of proof is on D. 4) IIED The Convincing Sound of the Broken Bone vs the Pathetic Squeak of the Cracking Mind Siliznoff, 51; Slocum, 55; Harris, 58; Taylor, 65; Snyder v. Phelps (SCOTUS, 2011: hand-out) Emotional Distress redux Daley, 464; Thing, 471; Endresz, 478 Procanik, 483 a) IIED elements: One who behaves outrageously in causing severe emotional distress to another is liable for the damages stemming from that emotional distress, including physical injury b) *Severe emotional distress must be severe I.e. so severe that a reasonable person would not be expected to endure it. Unlike most torts, the severity of the damage affects not just how much the plaintiff will be able to recover, but whether P can recover at all. *medical proof required c) Prima Facie Case i) an act by the D amounting to extreme and outrageous conduct (1) To limit abuse of this tort, the conduct must transcend all bounds of decency tolerated by society. (2) Conduct that is not normally outrageous will be if it continuous in nature, directed a certain kind of P (kids, elderly, pregnant), committed by a certain type of D (common carrier, innkeeper) (3) Ex of outrageous conduct: i. Extreme business conduct-collection ii. Misuse of authority-school bullying pupils iii. Offensive language if there is a special relationship-common carrier and innkeeper iv. Known sensitivity-if D knows that P more susceptible and does, D liable. Ex: sensitive adult, kids, pregnant, old ii) intent or recklessness (1) liable for intentional and reckless (disregard for the high probability that emotional distress will result) (2) Intention-dont need to show purpose or motive, but you do have to show that the D knew w/ substantial certainty that there would be an invasion to the person of the other iii) Causation (1) D conduct proximately caused the Ps emotional distress (2) Where the D intentionally harms a 3rd person and the P suffers emotional distress b/c of relationship to that person, harder to prove intent and causation. So if cant show prima facie, can prove to establish case: (a) P was present when injury occurred (b) P was a close relative of person injured (c) D knew that P was there and was close relative iv) Taylor v Vallelunga-Daughter saw her father beaten. D won b/c didnt know daughter there. v) There is a special liability for the mishandling of corpses of a relative. vi) damages-severe emotional distress (1) actual emotional damages must be shown (physical injury not required) (2) Punitive damages allowed where D conduct was improperly motivated. d) Snyder v Phelps - The Supreme Court affirmed the lower court's decision in an opinion by Chief Justice John G. Roberts, Jr. The Court held that the First Amendment shields those who stage a protest at the funeral of a military service member from liability.Concurring: Breyer: Justice Stephen J. Breyer filed a concurring opinion in which he wrote that while he agreed with the majority's conclusion in the case, "I do not believe that our First Amendment analysis can stop at that point." Dissent: Alito: Justice Samuel Alito filed a lone dissent, in which he argued: "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case." i) Why is there an IIED Tort? (1) Jury found emotional distress (2) D countered it was excessive and used first amendment right as a defense- if speech is of public concern it is more likely to be protected. (3) (Public Concern- relating to any matter of political, social, or other concern to the community). How to determine? Content, form and context. (4) This is public because it addresses the moral and political conduct of the US and took place on a public street. (5) Example of private concern: tax return and sexually explicit video (6) ALL 3 OPINIONS CITE HARRIS V JONES- extreme and outrageous conduct in MD. (7) Plaintiff: Less than full protection under the 1st Amend. Because private matter, exploited as a platform, (8) MD rule- funeral picketing cannot consider, not in place at the time (9) Even protected speech is not equally permissible in all places and at all time e) State Rubbish Collectors Assn v. Siliznoff 1952 (trash collector case- threatened with physical violence) (There is a cause of action because there was without priv. an intentional infliction of emotional distress for serious threats of physical violence it does not matter that the threats do not technically rise to the level of assault.)

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5)

Slocum v. Food Fair Stores of Florida 1958 (you stink to me grocery store old lady case- must go beyond mere insults) A) The conduct must be intentional or reckless; b) The conduct must be extreme and outrageous; c) There must be a causal connection between the wrongful conduct and the emotional distress; d) the emotional distress must be severe. g) Harris v. Jones 1977 (boss mimicking stuttering employee case) i) Intentional or reckless YES ii) Extreme and outrageous YES (1) In determining whether conduct is outrageous, the totality of the circumstances must be considered. The environment and characteristics of the individuals involved must be taken into account. (2) Whether conduct can be considered outrageous is initially a question for the judge. When reasonable people could form different opinions as to whether conduct was outrageous, it is a question for the jury. iii) Causal connection between wrongdoing and emotion distress NO iv) Distress must be severe NO h) Third Parties- When a Defendant is not even aware of the Plaintiffs presence or does not commit the acts causing the distress with the intention of causing Plaintiff such distress, the Defendant has not intentionally inflicted emotional distress upon the Plaintiff. For one to recover for emotional distress when she has experienced no physical injury, she must establish that the Defendant intentionally caused her to suffer from severe emotional distress. i) Taylor v. Vallelunga 1959 (Girl watched her dad beaten, D did not know she was there, no intention). Consent What happens when the plaintiff has consented to unlawful contact? Cunard, 92; Wallace, 31;Hackbart, 93; Mohr, 95; De May, 100 a) D is not liable for an otherwise tortuous conduct if the P consented to the Ds act. i) Types of Consent: Express (actual) Consent-P has expressly shown a willingness to submit to the Ds conduct (1) Consent by Mistake- is valid consent unless the D caused the mistake or know of the mistake and takes advantage of it (2) Consent induced by fraud-is not valid if it is an essential matter. If it is regarding a collateral matter, the consent will still be valid. (a) De May v Roberts-man in house under false pretense of being a Dr. and touched wife and suing. No consent b/c mistaken belief instilled by the Ds deceit. Lack of knowledge necessary to make consent. (3) Consent obtained by duress-invalid. a. Threats for future action or future economic deprivation do not constitute duress. ii) Implied Consent- Ps consent may be implied in a given case/ there are 2 types: (1) Apparent Consent-what a reasonable person would infer from the Ps conduct. (a) inferred from usage and custom-ex: daily life-bumped in crowd (2) Consent implied by law-where action is necessary to save a persons life or some other important interest in person or property Ex: unconscious (3) Silence and inaction can imply consent to a Ds acts if the circumstances are such that a reasonable person would speak if he objected. (a) OBrien v Cunard S.S. Co-People on the ship being vaccinated. P had the shot, Dr said need it a/w and she put out her hand. Directed verdict for D- means consent proven. (i) Questioned the consent in this case. Capacity Required: incompetents, drunks, children are incapable of consenting to tortuous conduct. Need consent of a parent or guardian. Criminal Acts-a person cannot consent to a criminal act (ii) The modern trend is to differentiate b/t acts that are breaches of the peace so the consent is ineffective (street fight) and those that arent so the consent is effective (prostitution) (iii) Where the act is made criminal to protect a limited class against its own lack of judgment (statutory rape), consent is not a good defense. (b) Wallace v. Rosen 2002 Indiana p.31 Pattern Jury Instuction- touching in a rude, insolent, angry, manner. expanded. (i) Sometimes Tort law reaches to certain norms- enforced implied consent upon us. (ii) P.32-33 reconstruct the battery jury instruction- key paragraph that explains why p lost is (iii) No battery as certain touching which are inevitably part of the world No, the circumstances in which the case takes place did not infer that the D met the requirements of battery. (iv) Is Wallace like Obrien? We implicitly consent to certain touchings. All Wallace did was sit in situation. This expands the notion of consent to a social or communal inference. (v) In order to have battery you need: 1. 1. knowing or intentional touching of a person in a rude insolent or angry manner 2. 2. any touching, however slight, may be an assault and battery 3. or 3. Battery can be recklessly committed where one acts in reckless disregard of the consequences, intention is immaterial. a. (today Battery is no longer a negligent tort, only an intentional tort) b. The court rules that the conditions on the stairway of Northwest High School during the fire drill were an example of Professors Prosser and Keetons crowded world. (Where touching and taps on the shoulder are inevitable). Rosen had a responsibility to her students to keep them moving and out the door during a fire drill. (c) Hart v Geysel-2 guys in illegal prize fight and one was killed. Allowed to sue, but consent can be brought as a defense as long as both parties consented to the act. (i) When one voluntarily engages in illegal conduct which will cause injury, the privilege of consent can be asserted to defend any civil action the P might bring. (ii) In pari delicto-in equal guilt, the Ds position is better. (pg 101) (iii) One should not profit from his own wrongdoing-this maxim also works against the P (iv) Allowing pp involved in illegal activities to sue brings a benefit to society that it wont allow pp engaged in illegal activities to take it too far. Its like an incentive to pp not to participate in illegal activities b/c they can be sued. (v) If the D goes beyond the consent given and does s/t substantially different, he is liable. (d) Mohr v Williams-surgery on the right ear. It was ok, but left had problems so operated on left. (e) Hackbart v Cincinnati Bengals, Inc-An intentional blow during a football game may give rise to liability even

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c) d)

though there are rules to the game, Self Defense-when a person has reasonable ground to believe he is being or about to be attacked, he may use necessary force as protection against injury. i) When is the defense available? (1) Reasonable Belief-the privilege exists as long as the D reasonably believes that force is necessary to protect himself. Apparent necessity, not actual necessity! a. A reasonable mistake as to the existence of a danger is allowed. (2) Retaliation-when there is no longer a threat of battery, the privilege terminates and the original victim becomes liable for battery if he uses force (a) The initial aggressor is not privileged to defend himself against the other partys reasonable use of force. If the party uses deadly force when aggressor didnt, the aggressor may defend himself w/ deadly force. (3) Provocation-insult, threats, and opprobrious language do not justify the exercise of self defense. (a) If the words are accompanied by threats of violence or by an overt hostile act, then oral abuse may amount to a challenge to fight and then would be allowed (4) Amount of Force-can use the amount of force that is or reasonably appears to be necessary for protection against the threatened battery. (a) Deadly weapons can only be used if the D has a reasonable apprehension of loss of life or great bodily injury. (b) Retreat-since it is hard to retreat from an assailant, the majority holds that a person may stand his ground and use the force necessary to protect himself. (c) Injury to 3rd Party-if s/o accidentally hurts a 3rd party while defending himself, the privilege of self defense is carried over, like transferred intent, and he will not be liable to the 3rd party. Defense of Others a. Actor needs to have the reasonable belief that the person being aided would have the right to self defense. i. The D may use reasonable force even if his intervention was unnecessary as long as it was a reasonable mistake b. The defender may use the amount of force that he could have used had the injury been threatened at him. Defense of Property (1) One may use reasonable force to prevent the commission of a tort against real or personal property (2) A request to desist or leave must first be made unless it clearly would be futile or dangerous. (3) The defense does not apply once the tort had been committed; however, one may use force in hot pursuit of another who has tortiously dispossessed the owner of her chattels b/c the tort is viewed as still being committed. (4) Whenever an actor has a privilege to enter the land of another b/c of necessity, recapture of chattel, etc, that privilege supersedes the privilege of the land possessor to defend her property. (5) Mistake: a reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required. A mistake is not allowed as to whether the entrant has a superseding privilege, unless the entrant leads the D to reasonable believe it is not privileged. (6) Katko v Briney-thief recovered punitive damages when injured in a shotgun trap. (a) The court values person over property. (b) No privilege exists to maintain a mechanical device which defends property when it automatically harms an intruder. ii) Recovery of Property Basic rule like reentry on land: when anothers possession began lawfully (a conditional sale), can only use peaceful means to recover the chattel. Reasonable force can be used only when in hot pursuit of one who has obtained possession wrongfully, by theft. (1) Hodgen v Hubbard- P got stove on credit by misrepresenting his assets. D ran after to forcibly take it back. J/P/R. This shows that the law does respect property b/c recognizes a privilege to recapture chattels when the owner has been defrauded or his rightful possession and he pursues the wrongful taker of his goods in fresh pursuit. (a) When is defense available? (i) Timely demand to return the chattel is first required unless clearly futile or dangerous. (ii) Can only recapture from a tortfeasor or some 3rd persons who knows or should know that the chattels were tortiously obtained. You cannot use force to recapture chattels in the hands of an innocent party. iii) Entry on land to remove chattel: iv) On Wrongdoers land -When chattel is on the wrongdoers land, the owner is privileged to enter and reclaim it at a reasonable time and in a reasonable manner, after made demand for return. v) On land of an innocent party -When chattel is on the land of an innocent party, the owner may enter and reclaim it at a reasonable time and in a peaceful manner when the landowner has been given notice of the presence of the chattel and refuses to return it. (1) Right to recapture supersedes right to defend property. vi) On land through owners fault- There is no privilege to enter the land and the chattel may only be recovered through the legal process. vii) Generally no mistake is allowed. Shopkeepers have a privilege to detain for a reasonable period of time individuals whom they reasonably believe stole. viii) Bonkowski v Arlans Department Store- P accused of taking jewelry and suing for FP b/c the store detained her 30 ft from the store. (1) (broadens the privilege cuz the customer left the premises) ix) Necessity2 (1) A person may interfere with the real or personal property of another when it is reasonably and apparently necessary to avoid threatened injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it. (2) 2 types of necessity: (a) Public Necessity-when the act is done for the public good (i) Surocco v Geary-D blew up P building to prevent a fire from spreading. J/D. o Sacrifice the property of an individual for the greater interest of society (b) Private Necessity-when the act is done solely to benefit any person/property from destruction or serious injury. An actor must pay for the injuries he causes. (c) Vincent v Lake Erie Transp Co- Ship owner left ship and the P took care of the (i) ship when it otherwise would have been lost in the storm. J/P/A. (ii) We have 2 competing interests at stake-2 property interests.

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(iii) The court says that the D made a decision based on the relevant efficiency of the outcome: he wanted to save his more valuable ship at the expense of damaging the dock, so liable NEGLIGENCE - Why does some careless behavior go unremunerated? (Palsgraf redux) Lubitz through Carroll Towing, 135-4 Vaughn, 150; Cordas, 159; Trimarco, 155 a) NEGLIGENCE Elements of the PRIMA FACIE CASE i) Duty on the part of the D to conform to a specific standard of conduct for protection of P against an unreasonable risk of injury. ii) A Breach of that duty by the D iii) Causation in fact-The breach is the actual and proximate cause of Ps injury iv) Damage b) A NEGLIGENCE FORMULA-Establishing a duty i) Lubitz v Wells -Father left a club. Son hit P. P suing father for negligence. dad not liable. (1) causal link: If father hadnt left the club out, the son wouldnt have swung it and the P wouldnt have gotten hurt! ii) Reasonable conduct that has a low probability of resulting in harm to others is not negligence iii) A superstructure if adult had to supervise child- what would that mean? Duties parents have to supervise children in the ordinary acts of life? iv) How long was the gold club sitting there? An instant ago is different than 24 hrs. Theory of carelessness had nothing to do with supervision but just that he left the an instrumentality that could cause harm for a certain amount of time. v) Blyth v Birmingham Waterworks Co-D not liable that water main broke b/c frost not foreseeable vi) Possible to do more to prevent bursting, but only responsible to do what the reasonable, prudent person would have done in those circumstances and would have been high cost. vii) the degree of foreseeability is lower than in Lubitz. c) Negligence involves the creation of an unreasonable risk, by act or omission, which a reasonable and prudent man would not create. Gulf Refining Co v Williams-D liable that didnt maintain the gas drums properly b/c a spark came out when opened. i) Even though also unusual, went to a jury, unlike Blythe, b/c higher foreseeability. a) An act for negligence will exist where the D incurs a risk that makes the possibility of harm real enough that an ordinary person would take action to avert the threatened danger Chicago, B & Q.R. v Krayenbuhl-D held liable b/c cost to lock TT and wouldnt deter use. i) The nature of precautions which must be taken depends on: (1) the character and location of the premises; (2) the purposes for which they are used; (3) the probability of injury; (4) the precautions necessary to prevent injury; and (5) the relation of such precautions to the beneficial use of the premises. d) Pipher v. Parsell Sup. Ct. Del. 2007 When actions of a passenger that interfere with the drivers safe operation of the motor vehicle are foreseeable, the failure to prevent such conduct may be a breach of the drivers duty to his passengers or the public. i) The business of life must go forward so always creating risk and s/t create a risk where potential harm is foreseeable. Permitted to keep creating risk, but may cross the line to liability for negligence Attractive nuisance doctrine! e) Davison v Snohomish County-D not held liable for failing to have an adequate guard rail that would have prevented the car from going through it and falling off the road b/c high cost. o Monetary cost is too high to make public responsible to protect against e/ possible accident. f) United States v Carroll Towing Co-D liable for not being on ship so didnt spot leak. i) It has been established that the D was negligent and the issue is whether the P was contributory negligent focusing on the Ps conduct rather than the Ds conduct. ii) Violation of internal rule that didnt have bargee (like locked RR) b/t 8-4 established foreseeability since the rule was instituted to protect against such circumstances so it was foreseeable that s/t like this would happen. iii) Negligence Equation: Costs to the D<F x G this establishes whether or not duty. If probability is P, injury L, burden B liability depends on whether B < P x L. iv) SOME foreseeability- risk created by the D was to some extent foreseeable o Costs-the cost of prevention to the D that would have avoided the injury v) o Gravity x Foreseeablity-potential cost to all Ps as to the gravity of the risk. How severe the cost to the P is. (losing a leg is high) o vi) The cost to the D has to be less than the foreseeability times the gravity in order for the D to be held liable for negligence. o vii) In all these cases, there was s/t the D could have done, but only in some did the could become a should and that depended on this formula! g) DUTY OF CARE i) A duty of care is owed to all foreseeable P. The extent of the duty is determined by the applicable standard of care. 2 Q to ask: (1) Was the P foreseeable (2) If so, what was the applicable standard of care ii) Foreseeable Plaintiffs (1) A duty of care is owed to foreseeable plaintiffs. (2) Where a D breaches a duty to one P, and injures another, there are 2 opinions: (3) Cardozo-Majority-Foreseeable Zone of Danger P2 can only recover is establish that she was in the foreseeable zone of danger (a reasonable person would have foreseen a risk of injury to her under the circumstances) (4) . Andrews-Minority-Everyone is foreseeable (well but some people are stil too remote). (a) P2 establishes a duty by showing that the D breached a duty to P1 iii) Specific Situations (1) Rescuers are foreseeable P where D negligently puts himself or a 3rd person in peril- Danger invites rescue! (a) McCoy v American Suzuki Motor Corp-P suing Suzuki for defect in car that swerved off road and P went to help and was hit by a car. (2) Prenatal Injuries-a duty of care is owed to a viable fetus (a) Wrongful life -child may not recover for failure to diagnose or properly perform a contraceptive procedure (b) Wrongful death- Endresz v Friedberg- Negligent action caused damages to twins in untero who were still born. Kids do not have a cause of action. Now there is a statute for it in many jurisdictions. (i) Statue says decedent to get a cause of action in negligence and in order to be a decedent need to have been alive! mom can sue for emotional distress.

7)

(c) Wrongful birth/pregnancy-parents may recover for medical expenses and pain and suffering, but not for ordinary child rearing expenses b/c there is still joy in life of child (i) Procanik by Procanik v Cill-Kid born alive but in a diminished condition brought about by the drs negligence. 1. kid allowed eco loss but not emotional distress b/c too speculative to look at value of no life v impaired life. 2. An infant plaintiff may recover special damages for the extraordinary medical expenses he will incur, but may not recover general damages for emotional distress or for an impaired childhood. In a suit for wrongful birth a plaintiff may recover special damages but not general damages. Special damages include extraordinary medical expenses, whereas general damages involve the difference in value between an impaired life and no life at all. 3. * Later cases addressed these issues. In Berman [Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979)] the court refused to allow a parents claim for medical expenses to be incurred during the childrearing under the theory that such an allowance would permit the parents to reap all the benefits of childhood while the defendant paid all of the expenses. More recent cases allowed for the parents right to compensation for the extraordinary expenses of raising an impaired child. Permitted them the NIED claim but not special expenses for medical. 4. Policy considerations have led this court to decline to recognize any cause of action for an infants wrongful life. The problem is that the Plaintiff claims not that he should not have been born with defects, but rather that he should not have been born at all. This Court finds that there is no rational way to compare a lack of existence with the pain and suffering of Plaintiffs impaired existence in order to all recovery for his emotional distress or diminished childhood. However, this Court does find that recovery of the cost of extraordinary medical expenses is recoverable by either the parents or the infant, but not both. 5. Claim for wrongful life- gravamen of childs claim. Uniformly denied here and for most jurisdictions for these particular claims for damages 6. P.492 n3 allow wrongful life claim- CA Curlender blood tests, WA 7. French court allowed some argument as child in Procanik. Recognition that disable birth was a mistake- or right to not be bornNegligent Infliction of Emotional Distress NIIED-the duty to avoid causing distress is breached when D creates a foreseeable risk of physical injury to P through physical impact or threat of impact i) Harder to make liability for negligence than intentional b/c of causation. Here, there is no intent to do s/t. ii) P can only recover if there has been some resulting physical injury (1) Where a definite and objective physical injury is produced as a result of NIED, P may recover for emotional distress and for the physical consequences to himself not withstanding the absence of physical impact at the time of the mental shock. (Emotional distress has to be alleged connected to negligence, dont need impact, need outgrowth physical aggravation.) (a) Daley v LaCroix-D car flew off the highway and sheared a utility pole that snapped high voltage wires that caused an explosion that severely damaged the Ps property and P suffered mental disturbances. (b) proximate cause, shaky is on these grounds NIIED (2 and 3 consideration longevity) (c) 1. -impact rule (ct did away with in Daley) (d) 2.-physical sequelli- outgrowth of emotional distress (e) 3. -Zone of danger test (wasnt an accepted test until Almaya, Dillon overruled a zone of danger). (f) 4. Contemporaneous viewer Foreseeabilty for Daley and Thing, unlimited foreseeability. (i) - ((1) the plaintiff is closely related to the victim; (ii) (2) the plaintiff is present at the scene at the time the injury occurs and is then aware of the injury being caused to the victim; (iii) (3) as a result suffers serious emotional distress beyond which would be expected of a disinterested witness) (g) Throws out old rule physical impact (impact rule) (any kind of manifest physical impact on the Ps person even though it may not have a/t to do w/ physical injuries) is required. Once you have a physical injury you can add on emotional distress, what does this add on in damages- parasitic. This add-on is called pain and suffering. (h) Is this P not an unforeseeable P like Palsgraf? exam Q maybe. (i) Old rule that P must have been in the zone of danger (ii) Bystander: A majority of states allow a bystander to recover only if the bystander is also within the zone of physical risk. A significant minority of states now allow recovery for bystanders who are not in risk of physical impact if they (1) are physically near the accident; (2) have contemporaneous sensory perception of the accident; and (3) are closely related to the victim. Most of the states following this approach also continue to require that the bystander-plaintiff suffer some physical manifestation of her distress. 1. B] Direct Actions [1] The Impact Rule A small minority of states retain the once generally held requirement that the victim must suffer physical contact by the defendant's negligence to recover successfully for mental distress. The impact need not itself cause physical injury. The few jurisdictions that continue to require impact on the plaintiff reason that the rule still reflects the clearest and most logical line for determining when mental distress should be compensated. The vast majority of jurisdictions, however, have abandoned the impact requirement, reasoning that its artificiality creates an incentive for overly creative pleading and excessive litigation as plaintiffs try to fashion new exceptions to the impact requirement. 2. [2] Risk of Impact Rule A clear majority of American states allow recovery for mental distress if the plaintiff was at risk of physical impact and suffered a physical manifestation of the distress. This so-called zone of danger requirement allows the plaintiff to recover for mental distress caused by near misses. The majority rule continues to require physical manifestations of the mental distress. Classically this physical ailment was characterized as fright, although the term is no longer required. While a heart attack or miscarriage is clearly adequate, such severe physical manifestations are not required, and assertions of stomach trouble have sufficed (iii) Modern trend allows recovery based on foreseeability factors: (iv) P and victim are closely related P was near the scene (v) Shock resulted from emotional impact 1. Thing v La Chusa-Mom didnt see kid run over, but when came to the scene, she freaked out. No recovery.

iii) iv)

v) vi) vii)

viii) ix)

x) xi)

xii) 8)

Taylor v VAllelunga-kid saw dad beat up. Bystander case. Dillon-sibling and not mom recovered b/c sibling was near the car and could have been hurt while the mom was a person away so couldnt recover - John Thing (minor) injured when hit by La Chusa (D). Plaintiff Maria Thing nearby but did not see/hear accident. Rushed to scene and saw son, thought he was dead. Maria sued D for great emotional disturbance, shock, and injury to her nervous system. Look to guidelines in precedent, Dillon v. Legg (1968). -Negligence cases permitting recovery of damages for emotional distress in CA originally limited to when (1) (a) victim himself injured and emotional distress parasitic item of damages, or (2) (b) when plaintiff in zone of danger didnt suffer physical injury but did suffer physical injury as result of emotional trauma. -Amaya v. Home Ice, Fuel, & Supply Co. court declined opportunity to broaden right to recover for emotional distress, not if outside zone of danger. -Dillon v. Legg court overruled Amaya b/c would have produced strange result where mother and aunt both saw baby rolled over by car, but only sister in zone of danger. -Dillon Test: (1) (1) whether plaintiff located near the scene of the accident, (2) (2) whether the shock resulted direct emotional impact upon plaintiff sensory and contemporaneous observance of accident, (3) (3) whether plaintiff and victim closely related -Difficulty of defining limits on recovery! Dillon focused on foreseeability of injury, risks could be either physical impact or emotional disturbance. -Molien v. Kaiser Foundation Hospitals eliminated physical harm and accident / sudden occurrence elements to plaintiffs who were direct victims. But distinguished wife in Molien case (husband incorrectly diagnosed w/ syphilis) from mother in Dillon case by saying mother was a bystander, not a direct victim. Created weird amorphous grey area. Rule: Even without physical harm, damages may be awarded for negligent infliction of emotional distress if the trier of fact is convinced of the genuineness of the claim in light of the circumstances. (1) -Direct victim emotional distress is reasonably foreseeable consequence (fuzzy) (2) -Elden v. Sheldon (1988) cohabitation w/o formal marriage didnt constitute close relationship under Dillon guidelines. Policy considerations arbitrary results. Court thinks inevitable. (3) -Impact of personally observing injury-producing event also a key factor. Similar reasoning justifies limiting to blood or marriage, usu. greater emotional distress than disinterested witness. (4) -No policy supports extension of right to recover to larger plaintiff class. Everyone suffers emotional distress (even w/o negligence). The overwhelming majority of emotional distress which we endure, therefore, is not compensable. La Chusa Test: Plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1) 1. is closely related to the injury victim (2) 2. is present at the scene of the injury-producing event at the time it occurs and is then aware it is causing injury to the victim 3. as a result suffers serious emotional distress (beyond anticipated in disinterested witness, not an abnormal response) [Didnt meet test in this case, no right to recover.]

2. 3.

Children and Reasonability: Robinson, 166 i) STANDARD OF CARE (1) Basic/Adult Standard- what the reasonable and prudent person would do in similar circumstances. (a) Vaughan v Menlove-Hay rick of D burned down Ps cottage. J/P. D wanted to say that he acted to his best judgment. (b) Cordas v. Peerless When confronted with an emergency not of ones own making, one must only act as a reasonable person would during a similar emergency. There is no duty to be a hero. (c) Court decides if there is a duty and then the jury is arbiter of reasonability based on the hypothetical reasonable person. It is an objective standard! (i) Custom is evidentiary to determine reasonability and not dispositive. (ii) Trimarco v Klein-P injured on the glass bathroom door. 1. Custom that needed to be fixed was evidentiary, not dispositive (iii) 99/100 tugboats did not have radios. Ds boat didnt hear of storm and Ps boat lost. D offers custom to show not guilty. Custom used as evidence and J/P (iv) Do this so courts can manage industries that lag behind reasonable conduct. (2) Child Standard- what the reasonable child of the same age, maturity, experience, intelligence, and education would do in similar circumstances. v. Reasons you might raise the standard for kids 1. Inherently dangerous - snowmobile- Robinson 2. Adult activities boat- Dellwo (a) Biblical rule of 7s (under 7 no N, 7-14 assumed not, 14-21 rebuttalbe presumption (i) Biblical 1. 0-6 irrebutably not capable of neg 2. 7-13 rebuttable presumption of not neg 3. 14-21 reubttable preseumption of neg (b) More subjective than adult b/c consider characteristics and abilities of the child. (c) Reciprocity: When there are kids around, there is an implicit raising of the standard on the adult to be more careful b/c dont know what the kid will do. (d) Where a child engages in an activity that is normally one that only adults do, the child will usually be held to the adult standard of care in such an activity. (i) Robinson v Lindsay-Kid injured on snowmobile driven by another kid but owned by an adult. Child standard not applied b/c engaged in an inherently dangerous activity. (ii) 4 possibilities; motorized vehicles, inherently dangerous, ultra-hazardous activity, or activities not usually

a)

engaged in by kids. (e) Lower standard lets kids be kids, so need to have good reasons to raise it. (i) Dellwo-D operating a motor boat, and applied adult standard b/c engaging in an activity done by adults and held liable. (ii) Purtle v. Shelton 17 yr old in Arkansas hunting w/ a rifle shot a friend and held to a child standard. We do not explicitly raise standard of care, we do it implicitly. 1. Lynch v. Rosenthal example expert witness lowered for child 173 n4 2. Expert testimony might be brought in. (P must bring in an expert - all cases brought against professionals). Blind standard: Roberts v. State of Louisiana Ct. of App. LA 1981, p 163 standard for blind- A handicapped person must take the precautions that reasonable people would take if they were so handicapped. (Prosser) Most blind people in areas in which they are comfortable do not use their canes, and using one might even be a hazard. (Director of the Division of Blind Services sort of employed by the D) But then the expert hired by P, was not familiar with Burson would require cane (but that doesnt make this reasonable or customary of blind people).

9)

Reasonable Conduct among Professionals: Heath, 174; Hodges, 179 (1) Professional Standard- objective standard-the knowledge, training, and skill (or ability and competence) of an ordinary member of the profession in good standing. A person must exercise the requisite degree of learning, skill, and ability that he possesses. (i) Heath v Swift Wings Inc-Pilot held to the standard of a person of similar expertise and not his personal judgment (or an average standard) (ii) Hodges v Carter-P suing attorney that mailed summons, which was the custom, and not personally serving it as the statute requires. J/lawyers b/c good faith error. (b) Professional will be liable for damages where there is a loss due to: (i) A want of the degree of knowledge and skill ordinarily possessed by others of his profession similarly situated (ii) The omission to use reasonable care and diligence (iii) The failure to exercise in good faith his best judgment 1. Helling v Kerrey-ophthalmologist held negligent as a matter of law b/c breached standard even though custom not to do test for patients under 40 b/c P had it and should have gotten the test *overruled b/c imposed a standard on profession.Glaucoma 2. d. Hodges and Helling usurp the jury and decide the case as a matter of law and now the profession has to follow whatever the court decides. 3. Cheap to give all patients a glaucoma test and it is not risky strengthen the Ps case by Negligence formula case should have gone to the jury! (iv) TJ Hooper? (tug boat never use radios but would have been reasonable). 1. DISTINCTION BETWEEN HELLING V CAREY AND ANALYSIS OF LEARNED HAND IN HOOPER P.159n3 Helling v. Carey- negligent for not testing glaucoma not customary but risk so high tug boats should have had the radio no one has receiving sets have to do it a. Burden to do it isnt very high but the gravity of injury is high even if likelihood isnt high. 2. Helling- rule of law, customary behavior is ruled out altogether. Doctors MUST give this test. Rule of law on entire area of practice and defining a standard of care. (Like Penn Rule- dictat) Rules of law violate common sense patterns of behavior. 3. Tj hooper- allow evidence to see if custom is reasonable, nevertheless found that it is unreasonable. (may not be customary what is the difference?) Hooper based on the circumstance. 10) Medical Malpractice a) Boyce, 183; Morrison, 187; Scott, 191; Moore, 197 i) Medical Malpractice: (1) Skill and learning of the ave member in good standing and apply with ordinary and reasonable care (2) Act- which standard good practice fordbids/ neglect to do something needed to do (3) Simply bc it was unsuccessful doesnt mean that N (4) Expert medical testimony (5) Just bc another doctor would have done something differently doesnt make what D did less reasonable necessarily ii) MedMal theories (1) Battery (2) Negligence botched intended procedure (3) Informed consent- procedure went OK but breach of duty failure to inform of material risk and link to injuries (4) Res Ipsa (5) Expert testimony must be presented to show a deviation from the medical standard, and not what the expert personally would have done. (a) Boyce v Brown-fractured ankle not set right. Other doctor said he would have done it differently. Original dr. not held liable. (b) Morrison v MacNamara-urethral smear test done standing. Not the usual way, so held liable. (6) Doctors Will be held to the national standard, and not strict locality. (a) Historically- big differences in locals standards and would be hard to practice way they need to if they knew they would be held responsible. Similar community and similar circumstances test. (b) The locality rule for expert testimony in medical malpractice cases is antiquated and unnecessary. The court adopts a national rule due to the national board certification (among other reasons). (c) Physicians certified by national boards, hospitals, medical laboratories and other health care providers are held to the national standard of care. The locality rule developed to protect rural doctors who lacked means of transportation and communication by which they could acquire the same set of skills as urban doctors. But the policy behind the locality rule does not hold true of doctors in the District of Columbia and the disparity between doctors in urban and rural areas has mostly been eliminated. Furthermore, due to the uniformity of the proficiency certifications that are

required by national boards, a national standard is more practical. (7) Informed Consent (a) Scott v Bradford-P says that the dr. should have told her about the material risk of the proceeding and the adverse consequences from a hysterectomy. J/dr b/c didnt believe that she wouldnt have done it. (i) Cause of action for negligence action for lack of informed consent, the P must show: 1. the dr. failed to inform him of the material risks 2. Causation-had the dr. informed the individual patient, would the patient have chosen a different option. 3. injury- the undisclosed risk did in fact occur (ii) In a departure from the rule established in an earlier case, the court reasoned that if the patient can show they would not have elected the procedure had they been properly informed, then a malpractice case against the doctor can be maintained. The former rule established an objective standard for informed consent that required the patient to establish that a reasonable person in their position would have refused treatment.- Canterbury. The court elects to follow a subjective standard in this case to maintain a patients right of self-determination. (iii) A physician has a privilege to withhold information if: 1. (1) the patient already knew or should have known of the risks; 2. (2) full disclosure would be detrimental to the patients best interests (e.g., emotional well-being); or 3. (3) an emergency exists requiring prompt treatment and the patient is in no condition to make such a decision. (b) Moore v. Regents of the Univ of Cali (i) Yes, the cause of actions are the removal of the spleen and extra biopsies after the removal of the spleen because then the doctor already knew he had interests he was not disclosing. 1. 3 ELEMENTS: a. PERSON HAS THE RIGHT TO CHOOSE WHAT HAPPENS TO HIS BODY b. CONSENT MUST BE INFORMED c. FIDUCIARY DUTY TO DISCLOSE ALL INFORMATION MATERIAL TO PATIENTS DECISION i. Must disclose what the REASONABLE PATIENT WOULD WANT TO KNO ii. (When doctor has an interest that may compete with patients own interest) (c) Teeters v. Currey (1974) p.639 Medmal, Under Tennessee law, the statute of limitations in medical malpractice actions begins to run when the plaintiff discovers, or reasonably should have discovered the negligent injury. The statute of limitations for a malpractice action commences when the patient discovers, or in the exercise of reasonable care and diligence, should have discovered the resulting injury. Note: The majority of courts use this discovery rule 11) Reasonability vs Rules (recall Hackbart) and Statutes a) Pokora, 208; Osborne, 212; Stachniewicz, 214; Ney, 218, Perry, 224 (a) Compliance with a statute does not necessarily establish due care. If there are unusual circumstances beyond the minimum that the statute was designed to meet, then there may be negligence for not doing more. (i) Pokora v Wabash Ry Co-P drove truck across track and hit by the train. (ii) Old law was to stop, look, listen, and get out the car when approaching a RR. (iii) Cardozo: gets rid of old rule b/c standard of care needs to be flexible so can adapt for e/ situation. (iv) Common Carriers and innkeeper are held to a very high degree of care. (b) Osborne v McMasters-D mislabeled a bottle of poison and that was in violation of a statute. P died. J/P. Neg pe se. (c) Compliance with a statute does not necessarily establish due care. If there are unusual circumstances beyond the minimum that the statute was designed to meet, then there may be negligence for not doing more. (i) Pokora v Wabash Ry Co-P drove truck across track and hit by the train. (ii) Old law was to stop, look, listen, and get out the car when approaching a RR. (iii) Cardozo: gets rid of old rule b/c standard of care needs to be flexible so can adapt for e/ situation. (iv) Common Carriers and innkeeper are held to a very high degree of care. ii) Res ipsa Loquitor (1) Statutory Standard TEST-If prove the applicability of a statute, then it establishes a duty of care. a. P must show: (a) P is within the protected class intended by the statute. iii) Statute intended to protect that type of harm the P suffered-not creating a new duty. (i) Gorris v Scott-statute to separate animals to prevent the spread of disease. Animals overboard in a storm b/c not fenced in. D not held liable b/c that wasnt the intent of the statute. (ii) Perry v S.N. and S.N-witnessed sexual abuse and didnt stop it violating criminal statute. Case thrown out even though all the elements of negligence are met b/c court will not use the statute to impose a duty that wouldnt ordinarily exist on common law grounds. (iii) Stachniewicz v Mar-Cam Corp-Fight at a bar and he had head injuries and wedged b/t the door. 1. Seems the court is using the statute to impose a duty on bartender that wouldnt have existed under common law. (b) Causation (i) Ney v Yellow Cab Co-D leaves unattended car and stolen and ran over P. P suing the car owner for negligence for leaving the key in the car, violation of statute, and the door open. J/P. 1. Majority says protecting public safety in general. Dissent says wasnt an anti-theft statute. 2. Majority says even though theft was an intervening agent, theft is s/t that person should foresee and then he had a duty to prevent even though there is an intervening cause, so it is still proximate cause. iv) Unexcused violation of statute N per se Ct must decide. (1) NOTES: Excuses: incapacity, neither knows nor should know, unable after reasonable diligence or care, emergency not due to own conduct, greater risk to comply, not exclusive list. (2) Three types: (a) Negligence per se Restatement- permits excuses, when there is n excuse it is N per se (b) Prima facie negligence rebuttable- goes to Jury even without excuse but evidence that D acted with due care (c) Violation as evidence of N

10

v)

N per se (1) Child labor, sale of guns to minors, adulterated food, safe railroad cars, safe public spaces, vi) CL- compliance with statute is evidence of due care, not determinative of N 12) Proof issues: weight given to statutory violation: Martin, 230; Zeni, 232 (a) There is excuses for violation of a statute when (i) Compliance would cause more danger than violation (ii) D drives on wrong side of road to avoid hitting kids (iii) Zeni v Anderson-walk on sidewalk, if in street-facing traffic. P was walking in the street with her back to traffic. Valid excuse: road was snowy and couldnt walk there. (b) Compliance would be beyond the defendants control (i) Blind pedestrian crosses against light. (c) An unexcused violation of a statute establishes negligence per se-conclusive (i) presumption of duty and breach and now the P has to show causation and damages. (ii) Martin v Herzog-Couple in a buggy were hit by a car, killed. Suing for negligence. D says contributory negligent b/c no lights which is violation of statute. 13) Court and Jury: Anjou, 238; Joye v. A&P, 239; Jasko, 242; H.E. Butt, 243 a) BREACH OF DUTY-when the Ds conduct falls short of the applicable standard of care i) Proof of breach: show what happened and that D acted unreasonably ii) Permissible evidence: (1) Direct evidence (2) Circumstantial Evidence- Banana Peel Sequence (3) Goddard v Boston & Maine RR Co-P slipped on peel right after he got off the train. (1) D not liable b/c peel was yellow so may have been dropped recently so no time to clean up. (4) Anjou v Boston Elevated Railway Co- P being directed by employee of the D to another car on the train and she slipped on a flattened black banana peel. (1) Peel probably there for a while so foreseeability goes up and ability to prevent risk increases. (5) Joye v Great Atlantic and Pacific Tea Co-P who slipped in the supermarket couldnt show that the D knew about the peel, so case didnt go anywhere. Constructive notice- should have known and should have taken steps to get rid of item (6) Jasko v FW Woolworth Co-P slipped on pizza on slippery terrazzo floor where use wax paper and no chairs. D liable. (1) method of sale increased risk of injury and foreseeability. IF THERE IS A PROTECTION UP THEN THEY ARE ON NOTICE (Did someone get hurt in the exact way it was dangerous?) (a) Ps may demonstrate the storekeeper had constructive notice of the dangerous condition if they can show that the site had not been inspected within a reasonable period of time so that a person exercising due care would have discovered and corrected the hazard. A storeowner owes its patron a duty to exercise reasonable care in keeping its premises reasonably safemaking reasonable inspections of the premises - care required is commensurate with the risks involved. (7) HE Butt Grocery Co. v. Resendez TX 1999 The display had warning cones, matts, the floor was non-slip, a railing, lots of precautions. The display of grapes in itself isnt an unreasonable risk. This is distinguished from Corbin where the market did not take precautions when showing grapes. (a) P burden to show: (i) D had knowledge of condition (ii) Condition posed unreasonable risk of harm (iii) D did not exercise reasonable care to reduce or eliminate risk (iv) Failure to use care proximately caused her injuries (v) P did not prove evidence that display created unreasonable risk Res Ipsa Loquitor: Byrne, 245; McDougald, 249; Larson, 255; Ybarra, 258, Sullivan, 263 14) RES IPSA LOQUITOR-the fact that a particular injury occurred in of itself establishes a breach of a duty. i) P needs to show: ii) (The Thing Speaks for Itself) iii) Core Elements: iv) 1. Object under control of D v) 2. Accident foreseeable / ordinary vi) 3. Event must not have been brought about by Ps action (1) that there was an accident (2) that the object that caused the accident was at the time and prior thereto under the (a) exclusive control and management of the D (i) Larson v St Francis Hotel-A chair landed on s/o walking in the street. D not liable b/c not exclusive control. (i) Problem of multiple D-where more than 1 person was in control of the instrumentality, res ipsa is not used to establish a prima facie negligence against each D. 1. Plaintiff must prove (1) accident, (2) thing or instrumentality that caused accident at time of / prior to under exclusive control of defendant, (3) accident was such that ordinarily, if defendant using ordinary care, accident would not have happened. a. -RIL applies only when cause of injury under exclusive control/management of defendant and cant apply to case w/ divided responsibility where unexplained accident could have been attributed to several causes, one of which defendant isnt responsible for if so, plaintiff must fail. b. -Hotel doesnt have exclusive control (actual or potential) over furniture. Guests have at least partial control. To keep guests / visitors from throwing furniture out the window, would have to post guards in every room. Not practicable. 2. Minority opinion: Ybarra v Spangard- Appendectomy success, but arm debilitated so sues e/o in hope that culprit revealed b/c cant point a finger at one person a. where the D has control over the evidence, the burden shifts to the D to prove that he wasnt negligent, rather than impose absolute liability.

11

b)

c) d)

e)

That the accident was of the nature that in the ordinary course of events and with he D using ordinary care, the accident not have happened a. Byrne v Boadle-P walked past the Ds warehouse and a barrel of flour fell (b) upon him from the above shop and seriously injured him. D liable. I (c) McDougald v. Perry 1998 (i) This sort of accident would not normally occur but for N. Ct might be reluctant to compare to Bryne v Boadle, it didnt fall from somewhere maybe the truck driver should have stopped immediately when tire fell out of the truck, which exacerbated injury, maybe driver saw chain. : Ds tractor trailer had a spare tired secured by a chain, it fell out and when the tractor ran over it, it was caused to hit Ps jeep. (ii) RIL- Plaintiff must prove 1. Instrumentality causing injury was under control of D 2. Accident would not have normally occurred without negligence on the part of the person in control vii) Effect of Res Ipsa: (1) no directed verdict for the D b/c the P has made a prima facie case (2) D may still prove due care and the jury could find for him. (3) RIL operates on 2 levels: (a) complaint, motion to dismiss, judge finds ordinary explanation = negligence (RIL), so should go to jury. (b) when gets to jury at end of case, RIL instruction to jury (jury can infer negligence from mere occurrence of accident strength of instruction may differ among jurisdictions) (i) -Airplane crashes today prob. RIL. In 1940s, maybe not Sullivan v. Crabtree 1953 (Res Ipsa) p. 263 N not clear Mr. and Mrs. Sullivan, the Plaintiffs (Plaintiffs), adult son was killed when the truck he was a passenger in went off a steep embankment and crushed him. The Defendant, Crabtree (Defendant), was driving the truck at the time and testified that there could have been several reasons that the truck went off the road and down the embankment, including brake malfunction. The day was clear and sunny, but there was loose gravel and broken pavement on the road. Crabtrees truck ran off the road killing his passenger- cause of accident unclear i) Res Ipsa creates an inference almost never a presumption ov N much less a pre se rule. (generally if stat violation is applicable, a rebuttalbe presumption of neg is set up, as in Zeni w excuses, but more than an inference. ) ii) P.265 n1 inference, crucial. iii) P.266 n2 Monahan v Walmart 139 f3d 912- court refused res ipsa instruction- hit on the head by laundry mats. By grocery store, exclusive control mitigated invoked by dissent . Res Ipsa used in a supermarket is far less likely to succeed than res ipsa when has to be stretched a bit on exclusive control prog especially in food providers iv) Holding: * Res Ipsa Loquitur does apply to this case. * It is for the trier of fact to determine the strength of the inference of Defendants negligence. Reasoning: Res ipsa loquitur allows, but does not require, a jury to find negligence. The jury is free to choose another inference from the evidence presented. The doctrine of Res Ipsa Loquitur creates a burden on the defendant to show a reasonable explanation for the injury. The strength of that burden depends on the facts of each case and the strength of the inference created. The doctrine of Res Ipsa Loquitur does not generally apply to motor vehicle accidents, but in cases such as this, where the cause of the accident is within the drivers control and the accident is not one that would normally occur without negligence, the doctrine may be applied. * The determination of what procedural effect the application of the doctrine of Res Ipsa Loquitur has is done on a case-by-case basis. A defense to the doctrine requires that reasonable evidence be shown that the accident was not caused by the defendants negligence. The burden of proof is shifted to D. In some circumstances, evid is strong enough to give a directed verdict for P, but here the jury can decide. All RIL does is give the P a cause of action RIL- 4 ways courts have interpreted i) 1. Cannot rely on it at all ii) 2. Take advantage where inference can be drawn to support N allegations iii) 3. rely on it only if specific pleading is accompanied by general allegation of N iv) 4. available without regard to form of pleading

3.

15) Causation (1): Perkins, 268; Reynolds, 271; Gentry, 273; Kramer, 276; Hill, 291; Anderson, 292 a) Causation (2): Summers, 295; Sindell, 297; Enright, 362; Ryan, 304; Bartolone, 307 b) Causation (3): Polemis, 310; Wagon Mound I, 312; Palsgraf, 319; WM II, 316 c) CAUSATION i) SINE QUA NON-CAUSATION IN FACT-were it not for this it wouldnt have happened ii) a) No liability if the accident would have happened w/o the negligence. iii) *P must prove event would not have happened but for Ds negligence (sine qua non). i) *Does Ds action greatly multiply chances of accident? (i.e. more than double, 50% rule if 2 fell down stairs in control, 5 must fall in experimental group). (1) Ortega v. Kmart 2001 Ps may demonstrate the storekeeper had constructive notice of the dangerous condition if they can show that the site had not been inspected within a reasonable period of time so that a person exercising due care would have discovered and corrected the hazard. A storeowner owes its patron a duty to exercise reasonable care in keeping its premises reasonably safemaking reasonable inspections of the premises - care required is commensurate with the risks involved (a) JUSTIFICATION OF PS RELEVATIVE LACK OF KNOWCKLEGE AS TO HOW SOMETHING OCCURRED LINKS THESE TO RES IPSA LOCQUITUR (i) Byrnne v Bodel- how would P know? (Ybarra v Spanguard). (ii) Defendants greater knowledge- if P cant prove, D doesnt need to speak there is no liability- but in certain cases we do ask D to speak re N. (iii) Only a minority of courts switch the burden in slip and fall cases. Within slip and fall context, res ipsa and shift of burden to D is not popular. (2) Perkins v Texas and New Orleans Ry Co- RR speeding and hit Ps car. (a) Thrown out for lack of causation b/c P couldnt say what speed they were driving. Regardless of the trains excessive speed, the train did not cause the accident. But for the Ds N, the injury would not have occurred. When a harm would have resulted regardless of a defendants negligence, the negligence is not a substantial factor in causing the

12

harm and the defendant is not liable. The defendants negligence must be a substantial factor in the cause of the harm for liability to attach. Causation must be necessary, but for the negligent component, the injury would more likely than not, not have occurred. (b) Proof of Causation (i) But For Test-an act or omission to act is the cause in fact of an injury when it is more probable than not that the injury would not have occurred but for the act (ii) Gentry v Douglas Hereford Ranch, Inc-P failed to show that the co failure to maintain the stairs which is why man stumbled and rifle discharged killing P. 1. Look at what can be proven and not speculation. (iii) Reynolds v Texas & Pac Ry Co-Ds fantasy- P encouraged to hurry and fell down the stairs where bad lighting and railings. o more probably than not her injury was caused by their negligence. P has to surpass and maintain proof But for test 1. P proves more probable than not. D can bring alternatives, but not dispositive. 2. -When negligence of defendant greatly multiplies the chances of accident to the plaintiff, and is of a character naturally leading to its occurrence, mere possibility that it might have happened w/o negligence not sufficient to break cause and effect chain. (iv) Wilder v Eberhart Ds expert opinion about other causes for injuries after stomach stapled was not allowed, so SC reversed. 1. Has to be more probably than not and not merely a possibility. (v) Kramer Service Inc v Wilkins-P got a cut on the forehead and skin cancer. correlation does not imply causation need more than a mere possibility 1. Hypo: boat accident, boat sinks-no life vests. Vests are required by statute. Person dies. Is there causation? a. w/o more facts, cant say that wouldnt have drowned but for the lack of life vests. If struggled in water, can say if had been vest, could have survived. b. Need causation (black peel) and then the statue violation makes neg per se. 2. Haft-pg 255 father and son were dead at swimming pool in hotel. Statute says need lifeguard and sign and there wasnt. a. No causal link, but P cant get evidence, so burden is shifted to D b/c had lifeguard been there, would have provided evidence. (3) 3. Concurrent Causes (a) Where separate act of negligence combine to produce a single injury, each tortfeasor is responsible for the entire result his act alone might not have caused it. (i) Hill v Edmonds-D left his truck in the middle of the road w/ the lights off on a stormy night. Driver was the 2nd defendant. But for both of their N the accident would not have happened 1. P was injured in a collision brought about by the negligence of both parties and but for test of more probably than not works against them both. 2. Not Ybarra b/c can show negligence against both D. 3. (SC of NY App., 1966) Negligence action for personal injury damages. P appealed from judgment dismissing complaint against Bragoli after plaintiff closed in jury trial. 4. Both negligent, fight about but for causation. Each one necessary, but for cause. Joint and several liability for whole amount. -When joint tortfeasors, can still be held negligent. (b) where there are 2 acts, only one of which caused the injury, the burden shifts to the D and each must show that his negligence is not the actual cause, and if court cannot determine who is liable, both will be! (i) Summers v Tice-P shot by a gun by one of 2 negligent hunters. Unusual case that both held liable! (SC of CA, 1948) Sticks to but for test, but changes requirement from 51% to just 50%. Full judgment rendered against all possible tortfeasors (2). Rationale of court: wrongdoers, so can be made liable. Fairness in having both in lawsuit (can prove who did it). Accessibility rationale (reasons of policy/justice). - Ds argue not joint tortfeasors, not acting in concert, but not sufficient evidence to show which one guilty of negligence that caused the injuries. (one or other only). (ii) Oliver v. Miles case: Two hunting together shot at partridges, injured plaintiff. Court held acting in concert and liable. To hold otherwise would be to exonerate both from liability, although each was negligent, and the injury resulted from such negligence. (iii) Bierczynski v. Rogers 1. Drag racers X and Y racing Y hits P, P sues X. 2. but for the racing 3. Only one of them hit the P, but the P has chosen to sue the other racer. This is not even summers v. tice- Ybarra v. Spanguard- not conspiring to create risk. HE WILL BE HELD LIABLE. At the origin of events there was a concurrent plan hatched out to create risks to the PYbarra- unified control over P but lacking concurrent scheme acting in concert. P.262 n3 Turkey case- Samson v. Riesing in Ybarra group had exclusive control, in this case each did not have control over one incident. No common concern or group activity (iv) Sindell v Abbott Laboratories-P wants to bring a suit against a co that made the drug that her mom ingested while pregnant. 1. Problem: P didnt know which cos drug her mom took. She brought in 5 co out of a possible 100 that existed at that time. o Hall v Du Pont-12 cap gun cases -cos linked their fates together 2. Where several manufacturers make a dangerous product, each should bear the part of the damages proportionate to their market share Far from causation! Nothing! 3. State Breakdown in DES Cases: a. A. California requires plaintiff to bring before court defendants representing substantial share of market, defendant dismissed if can prove did not manufacture drug in question (other defendants severally liable for portion of damages corresponding to market share) b. B. New York not specified how many defendants must be present, does not allow defendant to bow

13

c. d.

e.

2)

4. PROXIMATE CAUSE/LEGAL CAUSATION-where there is an uninterrupted chain of events from the negligent act to the injury, the D is liable for all foreseeable harmful results, regardless of unusual manner or timing. a. Ds conduct needs to be a substantial factor in bringing about the harm. Foreseeable ex ante Direct Wagon Mound 1(oil spill fire) and Palsgraf (fireworks in package) extent need not Polemis (plank falls) directness all direct be forseeable, but type and victim should be consequences regardless of foreseeability 1. Extent of harm need not be forseeable 2. Manner of harm need not be forseeable -Except when manner of harm includes serious human wrongdoing (intervening causes); Brower thieves with railroad, ok b/c is forseeable and reason for negligence 3. Type of harm MUST be forseeable -Dominant approach (Wagon Mound) UNLESS follow minority approach which is that type does not need to be forseeable (Polemis) -Subject to remoteness limit 4. Victim of harm MUST be forseeable (Cardozo in Palsgraf) -Unless Andrews dissent prevails in jurisdiction duty to one is a duty to all -Also subject to remoteness limit Ex Ante- eye of ordinary vigilance At the time the D could not have foreseen that the N act would create a risk that injured that P- - analyze the liability incurred by admittedly N D. Risk created by D doesnt extend to liability that the P was looking for. Even a N D could foresee at the time of the N risk creation- ex ante privileges an already N defendant it can exonerates them from they actually caused Ex ante- foreseeability- pro defendant approach 3 specific rules o 1) Eggshell skull rule take victim as you find him o 2) Medical aggravation damages are recoverable against original tortfeasor, but purely coincidental injuries are not considered aggravation (transportation is recoverable, i.e. ambulance rule in Atherton) o 3) Rescuers are foreseeable victims (Wagner danger invites rescue) (a) Anderson v Minneapolis, St P & S St M RR Co-2 fires join and one had unknown origin. P sues 1 person. Fire was a substantial factor in bringing about the harm, so irrelevant that another force combined to cause the damage. In the interest of justice, variation of sina qua non. (i) (SC of MN, 1920) But for test = the test, but occasionally works injustice so need another test. In this case, two fires new doctrine (similar to Ybarra, Summers, Sindell). Sufficient cause test. If sufficient cause, liable. (ii) -Note: Substantial factor test would retain but for causation as essential precondition except in situations (like principal) where 2+ operating forces (only one of which defendant responsible for) combined to bring about harm, while each alone sufficient to bring about harm. Substantial factor has advantage of throwing out cases where defendant made proved / insignificant contribution (i.e. throwing match forest fire). (b) Enright v Lily- granddaughter could not sue the co whos drug the grandma took which injured the mom. (i) Remoteness-If it is too remote, then it is not the proximate cause 1. Enright case (prox cause lim of liability) important case NY is fairly conservative, the outcome should not be so suprising. follow up to original DES case Sindell . Amaya is cited in there too- NY doesnt like these cases. 2. spatial remoteness (or temporal remoteness) a. Ryan v New York Central RR Co-Fire caused by D spread to next structure, then to Ps house and on and on from A-Z. c. Unforeseeable Consequences-Where the results are foreseeable, the D will be held liable, regardless of unusual manner or unusual timing. 1) Type of harm-Create a risk, but a different risk resulted, liable. i. 1. Foreseeability test- looking back (ANTE), Whether the D could foresee that such damage to the P would help? (in setting fire could D have seen that Ps property would be consumed)- different kind of foreseeability here than we have previously learned ii. 2. Ordinary and Natural (Ex Post)- present- Given the D set the fire and could forsee, Whether the result was an Ordinary or natural result (Policy argument is separate) WM2- Natural and Direct consequence of D action not L because no foreseeability of that particular kind of damage being placed at risk Andrews dissent in Palsgraf all practical politics, policy question Ex Post- NATURAL AND DIRECT pro plaintiff approach- is there a link from the actual injury linked back to the original act of N.

out through proving didnt manufacture drug; each defendant severally liable corresponding to market share (no joint / several liability) C. Washington and Florida require plaintiff to sue only one defendant, who can implead others if it chooses; defendant dismissed if can prove did not manufacture drug in question; remaining defendants presumed equal share of DES market unless show otherwise D. Wisconsin risk contribution theory; plaintiff must file suit against only one defendant, who can implead others; defendant dismissed from case if can prove did not manufacture drug taken by mother (jury uses comparative negligence principles to assign risk rather than market share, only one of components in determining risk) E. Michigan alternative liability a la Summers v. Tice; if plaintiff can join all possible manufacturers as defendants, burden of proof on each defendant to prove did not make DES; any who cant bow out are jointly / severally liable

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Think of weather conditions- fire can have a windshift iii. 3. Which landowner is the better insurer? (Courts dont ask this) Think of a different state (debtor friendly) Kansas note 2. NY restricted, first structure. (ii) Bartolone v. Jeckovich 1984 1. The defendant is liable for aggravating the plaintiffs pre-existing psychological condition despite that the result was not foreseeable. 2. Egg shell rule: GOOD LAW- P.309 N1-personal injury absolute rule, D must take a P where he finds him in physical injury cases. Fair? Not particularly due to complete unforeseeability. (in many jurisdictions only applies to preexisting physical conditions) *doctrine applies only to proximate cause not N or strict liability 3. Also degree of damages goes up- damage take P as find him, value of life, estate can ask for damages (c) In re Arbitration Polemis -P chartered their vessel to the D. While discharging, a heavy plank fell into the area hold where petrol was stored and caused an explosion that set fire to the ship and destroyed it. D held liable to owner for ship b/c but for more probable than not even though not foreseeable b/c still connected to negligent act. **overruled** (d) Wagon Mound No 1-D ship carelessly discharged furnace oil into the water. P dropped some molten metal in the water and cotton was floating in the water. The oil came into contact w/ the Ps wharf causing minor damages that the P didnt claim. The fire seriously damaged the wharf and 2 ships. J/D. (i) Explosion wasnt foreseeable-Stop liability based on causation. I. These cases have a tension b/c foreseeability and causation. (ii) Courts that emphasize foreseeability look to what a reasonable person could have foreseen and if it was unforeseeable, then they do not impose liability. (e) Wagon Mound No2-boat owner are suing. a. Now theyre acknowledging that there was some foreseeability. Changed from case #1 b/c P here wasnt contributory negligent, so the slight foreseeability could come out. 2) Type of Persons- Where a D breaches a duty to one P, and injures another, there are 2 opinion: (f) Palsgraf v LI RR Co-Alleged negligence against the RR is that in pushing the pp on the train, they caused the package to drop on the platform. No duty (i) Cardozo-Majority-Foreseeable Zone of Danger P2 can only recover is establish that she was in the foreseeable zone of danger (a reasonable person would have foreseen a risk of injury to her under the circumstances) (ii) Andrews-Minority-Everyone is foreseeable P2 establishes a duty by showing that the D breached a duty to P1 (iii) Injury caused by negligent D, but not in the foreseeable zone of danger. (iv) We permit the D to say the type or kind of damage that resulted is totally unforeseeable for the reasonable person. (v) Even those courts that stress foreseeability, they dont permit it to extend to extend of damages or for the manner in which it is brought about (g) foul smelling shrimp risked making patient ill but not s/o tripping on her vomit. This is Palsgraf. i. if patron tripped on his own vomit, then he would be able to recover b/c of a preexisting duty to him. (2) Intervening Causes a. D is liable for the negligent acts of 3rd persons where the negligence was a foreseeable risk created by the Ds conduct. (a) Derdiarian v Felix Contracting Corp-D didnt barricade the site, so epileptic driver crashed into the site and a worker became a ball of fire. J/P. i. If the intervening act occurring is the very same risk which rendered the D negligent, then it is not superseding. rental car-defective trunk-parked to fix truck and injured. Sues rental co. no liability b/c injuries are not foreseeable. (b) Watson v Kentucky & Indiana Bridge & RR Co-Gas negligently spilled in the street. Duerr throws a match to it and it explodes. (i) If Duerr acted intentionally, then he is a superceding cause he intentionally acted. (ii) If he acted N he is one of many actors who may have done this and so the RRs act is not superceded. (iii) Unforeseeability does not relieve D unless is it so extraordinary that it could not or ought not have been anticipated (manner). (iv) However, an intervening act which is intentional, malicious or criminal is less likely to be foreseeable and may relieve a defendant from liability. (c) Yun v. Ford Motor Co. 1994- Proximate cause is any cause that in the continuous sequence, unbroken by an intervening cause, produces the resultant injury and without which injury would not have occurred. (i) The defect in the spare tire did not cause Changs injuries, the injury occurred after he recklessly crossed the highway. The spare tire created circumstances upon which the subsequent intervening negligence occurred, but there was no proximate cause between the defect in the product and the injury. (ii) The manufacture of the spare tire holder is also not responsible for the decedents injuries. The facts show that the plaintiff and Chang had the opportunity to fix the holder thirty days before the accident occurred. (iii) As a matter of public policy, the court can decide the issue of proximate cause, which is usually reserved for the trier of fact, when the injury is so extraordinary that it cannot be an expected result. This is such a case as the harm caused to the plaintiff is so unexpected. (overruled by NJ supreme court- Jury can decide foreseeability) (iv) This D is exactly like D in deridarian and Watson v Kentucky, they want to get rid of any chance to be held liable. As though P was an intervening and superceding cause. (d) Marshall v. Nugen (i) Plaintiff need not demonstrate that the precise manner in which the accident happened or that the extent of injuries was foreseeable. (ii) Essentially, the foreseeable harm test requires (1) a reasonably foreseeable result or type of harm, and (2) no superseding intervening force. Further, an intervening act may not serve as a superseding cause, and relieve an actor of responsibility, when the risk of the intervening act occurring is the very same risk that renders the actor negligent The negligence of the intervening actor is irrelevant since the risk created by the intervening actor was foreseeable. (iii) Foreseeability is the reasonable anticipation of the possible results of an action. Proximate cause is determined by whether an intervening act is a foreseeable consequence of the defendants

15

negligence. If it is not foreseeable, then it is a superseding act which would sever the causal connection. (e) Fuller v. Preis 1974 p.346 An act of suicide does not preclude liability on the tortfeasor, it is not a superseding cause. If the act of suicide is a foreseeable result of the defendants negligence, then the defendant may be liable for the suicide even though suicide is an intentional act. To be held liable, the evidence must show that the decedent was incapable of resisting an impulse to destroy themselves due to the negligent act. (f) (3) 3 type of defenses: (a) Eggshell head-extent of harm not a defense o type or kind of risk-once you created the risk, type or kind not foreseeable is a defense (wagon mound and palsgraf, but not for polemis) o Manner-the way it was brought about was not foreseeable doesnt really make sense doctrinally, but it is allowed 3) Duty: Limitations - Palsgraf, (redux): Hegel, 431, Osterlind (redux); L.S. Ayres, 434; J.S. & M.S.v. R.T.H. 440; a) Tarasoff, 447 4) Affirmative duties to act (a) No duty to aid of others in peril even if you could aid the person at no risk to yourself. (b) If you assume the duty to act, you must exercise reasonable care (2) c. Exceptions where have a duty to act: (a) If the peril is due to your own negligence (b) Special relationships b/t P and D. (c) is not dispositive, just will enhance the courts ability to determine whether a duty exists. (d) Parent-kids (parents not held liable 1st time kid does s/t) (e) Common carriers/Innkeepers (maybe this extends to emergency services) Code of conduct? (f) Shopkeepers/Invitees (i) 1. L.S. Ayres & Co v Hicks-P got his fingers caught in the Ds escalator and was allowed to recover. D liable b/c invitee has duty to aid. An actor has an affirmative legal duty to rescue a person in peril when the actor is an invitor, or when the injury resulted from an instrumentality under the actors control. 1. The dept store here wasnt liable for the problem in the escalator b/c there was no allegation of negligence b/c they didnt maintain it negligently. 2. some jurisdictions:needs to be their instrumentality to be liable. (don't confused with Yania v. Bigan) 3. Notes: a. Employment: Seaman- only where employee cant look after himself, only in course of employment b. Temporary legal custodian and charge c. When you N injure another, under duty to aid d. Innocent create a dangerous situation, under duty to take caution to prevent injury to others e. Hit and Run- N per Se f. Once start now have a duty to try your best g. Reliance- when someone detrimentally relies may put duty where there was none previously. h. Marsalis v. LaSalle p438n13D cat escaped rabies bit voluntarily taken on responsibility relied on by P to his detriment i. Elderly retiree allows to watch children cross intersection Parent A knows about volunteer and relied on it. Parent B did not know did not rely. j. Railroad crossing, no effective way to tell cars when train is crossing, rely on volunteer and one day she doesnt show up and a truck or car goes across because thought would be signaled by volunteer. k. If procedures are in place- warning system 4. Good Samaritan laws to help doctors against malpractice suits a. Will only be held liable if there is gross negligence statutory law is a way of going about creating major exceptions to big picture. b. Rescuer cannot harm the person he rescues 5. Common Carriers Inkeepers (g) Others that gather the public for profit owe a duty to prevent injuries to guests by 3rd persons. (h) temporary legal custodian-school (i) Hegel v Langsam-Suing college b/c minor daughter was allowed to associate w/ criminals. No liability. (ii) Duarte v State- university liable for rape in a dorm-schools facilities! Knew criminal actions in dorms and didnt do enough to prevent it. (i) Special relationships b/t D and 3rd persons- Has to do w/ the ability to control and predict the behavior of the 3rd person who may harm. (i) Tarasoff v Regents of U of CA- duty on psychologist to warn if there is a serious risk to a specific person that the patient reveals to the dr. 1. Foreseeability, special relationship, and undertaking b/c of job. 2. Professional obligation of shrinks: a. balance factors: i. Ability to control the outpatient ii. Public interest in safety from violent assault iii. Difficulty in forecasting whether the patient is a substantial risk of physical harm to others o Goal of placing a mental patient in the least restrictive environment as possible o Safeguarding the confidentiality of the relationship (j) Duty to Rescue The clear general rule remains that a person does not have a duty to aid another. Courts consistently have refused to require a stranger to render assistance, even where the person could have rendered aid with little risk or effort. There are a variety of reasons given for the law's no-duty-to-rescue rule (e.g., the value of individualism and the unworkability of a rule requiring rescue). The no-duty-to-rescue rule, nonetheless, has been powerfully criticized as devaluing human life and celebrating selfishness. Discomfort with the rule has led courts to fashion various exceptions.

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(i) No Duty- Osterlind v. Hill 1928 When a person is not in a helpless condition, there is not a duty to rescue them. (k) RESCUE DOCTRINE- WAGNER V. INTERNATIONAL RY CO- cousin fell out of train going around curves fast- plaintiff fell off elevated portion of tracks and died. Estate sued train for original act of N. The original act of N harmed passenger cousin not the P. Looks like didnt owe duty to P bc he looks like a Mrs. Palsgraf- or second P in shrimp hypo. Looking at it from ex ante would not allow this. He says danger invites rescue this plugs in foreseeability creates a new doctrine. The risk they create, if something comes to pass they can reasonable foresee someone will try to rescue. (i) Maltman case: distinguish: this is more foreseeable. Temporally- would have happened regardless of what caused it. 1. Injury takes places after, not before, rescue. 2. Immediate cause and prior cause- Hill v. Edmunds Rule: But for test applies to both defendants, the plaintiffs were both held jointly and severally liable. O The rescue doctrine allows an injured rescuer to sue the party that caused the danger. The tortfeasor owes a duty to the rescuer that is similar to the duty they owed to the party injured in the first place. The doctrine also negates the presumption that the rescuer assumes risk of injury when undertaking a dangerous rescue as long as the rescuer does not act recklessly. The rescue doctrine requires that: Temporal? 3. i. The defendant acted negligently towards the person rescued and the negligence caused the danger to the rescuer, 4. ii. The danger was imminent, 5. iii. A reasonably prudent person would have concluded that the danger existed and 6. iv. The rescuer acted with reasonable care. (l) [1] Creating the Peril A well-established exception to the no-duty-to-rescue rule applies when the need for rescue arises because of the defendant's negligence. Also, some jurisdictions have found an exception where a person's fault-free conduct gives rise to the need to rescue. Indeed, there is movement toward imposing rescue obligations on those who are connected in any way to the need for rescue. (m) [2] Special Relationships Courts have imposed a duty to rescue when justified by a special relationship between the parties such as a common carrier-passenger, innkeeper-guest and ship captain-seaman. There seems to be a movement to find a duty to aid or protect in any relation of dependence or of mutual dependence. (n) Undertaking to Act and Reliance While people generally have no obligation to intervene, once they do, a duty arises. There are different views about the extent of the obligation: under the traditional view, once a person undertakes to rescue, he must not leave the victim in a worse position; under the more modern view, the rescuer is obligated to act reasonably once he has begun to act. Closely related to the undertaking to act concept is the concept of reliance. Courts have found a duty where the defendant caused the plaintiff to rely on promised aid. (o) Yania v. Bigan (1959) Bigan enticed friend Yania (competent adult) to jump into large open trench in strip mining area, trench had water 8 10 feet deep, Yania drowned while Bigan made no rescue effort. Bigan not held liable (despite it also being his land). Result = ? (p) Jaensch v. Coffey (High Court of Australia, 1984): The common law has neither recognized fault in the conduct of the feasting Dives nor embraced the embarrassing moral perception that he who has failed to feed the man dying from hunger has truly killed him. -Obligation only in case of special relationship. (i) -Some European countries have provisions in penal code imposing duty to rescue, i.e. Dutch Penal Code. (q) Kelly v Gwinnel-social host. Has to do more with a duty Social hosts who allow guests to become intoxicated and then drive, may be liable for injuries caused by the guests negligent drunk driving And who has a high level of knowledge or scienter to both of those factors. (i) A reasonable person in Zaks position could foresee that unless he stopped providing Gwinnell with alcoholic beverages, Gwinnell was likely to injure someone while operating his car . * Tortfeasors are generally held liable for injuries that occur in the ordinary course of events from their negligence if the negligence was a substantial factor in bringing about the injuries (r) JS and MS v RTH-Child molestation spouse in particular should have (i) known or had reason to know about her husbands actions. 1. special foreseeability, court has a hard time making a duty. SPECIAL FORESEEABILITY, SPECIFIC KNOWLEDGE (s) Undertakings and Reliance-Where there is a voluntary undertaking/promise upon which an autonomous adult reasonably relied, there is a duty where the Ds omission causes injury to the P. (i) Verbal commitment coupled with reasonable reliance on the promise is an exception to the general rule of nonliability. (cat bite-rabies) (ii) Undertaking can be nonverbal too. (RR-sign for 2 yrs) 5) Miscellany: Owners and Occupiers: Barmore, 503; Campbell, 506; Rowland, 517 6) Owners/Occupiers of land a) Duty of Possessor to those off Premises (1) There is no duty to protect one off the premises from natural conditions on the premises, but there is a duty for unreasonably dangerous conditions abutting adjacent land. (2) Salevan v Wilmington Park- property adjacent to public sidewalks or highways owe a duty of care to take reasonable precautions for the protection of the traveling public (3) 2-3 foul balls/game-P injured while walking in public street adjacent (4) Taylor v Olsen-No evidence that D could have determined the decay w/ reasonable inspection-One must use his property so as to avoid unreasonable risk of harm to others outside the property. ii) b) Duty of Possessor to those On Premises (1) . Trespassers (a) No duty is owed to undiscovered trespassers (i) Sheehan v. St. Paul & Duluth Ry. Co. 1896 . * The obligation of the railroad company to a trespasser arises

17

at the moment of the trespassers discovery and is a duty to make all reasonable efforts to avert injury. The Defendants train crew made sufficient efforts to avert injury in the present case. * Defendant was neither a passenger on the train nor crossing at a public crossway at the time of his injury. Therefore, Defendant was a trespasser. The railroad company is obligated to exercise some degree of care for trespassers upon its property and will be liable if the trespasser is wantonly injured in the operation of the railroad. (b) Duty to Discovered or anticipated trespassers: (i) warn of or make safe concealed, unsafe, artificial conditions known to the landowner involving risk of death or serious bodily harm (ii) use reasonable care in the exercise of active operations on the property (iii) Attractive Nuisance Doctrine-duty on landowner to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on his property. P must show: 1. dangerous condition that the owner is or should be aware of 2. knows or should know children frequent vicinity of condition 3. likely to cause injury b/c kids inability to appreciate the risk 4. costs little to prevent compared to the magnitude of the risk (2) Duty to Licensees-enters onto the land w/ permission for own purposes or business, rather than for the possessors benefit. SOCIAL GUESTS (3) Licensee: (a) Barmore v. Elmore Barmore went to Elmores home to discuss lodge business. While there he was attacked by Elmores son, who had a history of mental illness. If Child has known vicious propensity then may be the case that parent has duty. Parents do not have a duty to supervise. Duty to warn of harm you are aware of. Fungible into a rule of nonliability in this case- . They were not aware, it was not foreseeable for him to attack again, they had no specific knowledge of that problem. * Because Plaintiff is a licensee, Defendants only duty was to warn him of hidden dangers unknown to Plaintiff of which Defendants had knowledge. Although Defendants knew that their son had a prior history of mental problems, he had committed no violent acts in ten years. Based on the evidence, it is clear that Thomas Sr. and Esther Elmore did not know or have reason to know of the possibility that Thomas Jr. would commit a criminal act toward Plaintiff. (i) Majority Rule: Is there a duty to warn a mere licensee of known hazards on the premises? Yes- a hidden hazard. (ii) Minority Rule: takes land as they find it (b) D not on notice, it had been too long since violent act. (c) Invitee status has greater duty to prevent harm than licensee. (d) o * The duty that Defendants owed to Plaintiff depends largely on his classification as either an invitee or a licensee. (e) A social guest is a licensee, and generally must take the premises as he finds them. The owner of the premises has the duty to warn a licensee of any hidden dangers unknown to the guest, of which the owner has knowledge. Also, the owner must refrain from injuring his guest willfully or wantonly. (f) To be classified as an invitee, the person must go onto the owners land in furtherance of the owners business (economic gain of owner flowing from P to D). As to an invitee, the owner has a duty to exercise reasonable care in keeping the premises reasonably safe for use by an invitee. * Plaintiff claims that because he was conducting the business of a fraternal organization during his visit, he attained the status of an invitee. In this case, the evidence suggests that the primary benefit of Plaintiffs visit was to the fraternal organization of which both were members, rather than to the Defendants. Therefore the Plaintiff is best categorized as a licensee: social guests, (for guests own benefit). (g) o Majority Rule: Is there a duty to warn a mere licensee of known hazards on the premises? Yes- a hidden hazard. (h) o Minority Rule: takes land as they find it (i) Rule: Social guests are considered licensees. Premises owners have a duty to warn licensees of hidden dangers unknown to the licensee, but known to the owner. When a person is a guest in anothers home to conduct mutual business, the host does not receive any personal benefit and the guest is considered a licensee. With licensees, a host only has a duty to warn of known dangers. (j) Note: A host has a duty to exercise reasonable care in keeping the premises reasonably safe for use by an invitee. (k) Wilful or Wanton- failure to exercise ordinary care (l) warn of dangerous conditions-natural and artificial-known to the owner that create an unforeseeable risk of harm to the licensee that he is unlikely to discover (m) exercise reasonable care in the conduct of active operations on the property (n) Rowland v Christian-P was a guest by the D and hurt his hand on a broken faucet that the D knew was broken and failed to warn. (i) CA court had to do a fair amt. of work in Rowland to find a duty to warn the P of a specific known problem in the apartment (faucet). (ii) Restatement 342 reason to know better for a licensee P . p.506 (iii) Rowland- status quo ante- no duty to warn court had to conform to others jurisdictions approach. (o) Dont worry about characterizations- was it reasonable! (4) Duty to Invitees-enter the land by invitation of the landowner: either for a purpose connected with the business of the landowner or as members of the public for which the land is held open to the public (a) Same duty as licensee AND (b) Make reasonable inspections to discover non-obvious dangerous conditions and make them safe. (c) Duty to rescue if injured on instrumentality. (d) Wilk v Georges-christmas tree-slipped on floor. (e) Invitee duty to take affirmative steps and improve the condition and make sure it is safe for pp who enter onto property. (f) One loses invitee status if you exceed the scope of the invitation (i) Whelan v Van Natta-In front of store was invitee. In the back, becomes a licensee b/c place where he went was not a place where pp usually go. o (ii) Campbell v Weathers-Moves from one part of premises to another to use the bathroom. Here status didnt

18

(g) (h)

change b/c frequent customer and bathroom open to the public. Modern trend rejects distinctions and apply a reasonable person standard to dangerous conditions on the land. CA breaks down all the distinctions and says duty to warn licensee about known danger and goes so far as to say that a known trespasser should be warned too! (i) Reasonability v. Custom

7) 8)

DEFENSES (1): Butterfield, 609; Davies, 614; McIntyre, 616 (621 n2); Seigneur, 625 a) DEFENSES (2): Rush, 631; Blackburn, 635; Teeters, 639 DEFENSES TO NEGLIGENCE i) Contributory Negligence a. P cannot recover when he is partially responsible for his own injury. (1) Butterfield v Forrester-Obstruction on the road and P riding violently and injured and was just starting to get dark. P couldnt recover b/c wouldnt have been accident if he had been riding carefully. (2) Exception to the rule: last clear chance-the person w/ the last clear chance to avoid an accident who fails to do so is liable. (Ps rebuttal to Cont. Neg. brought by D) (a) Davies v Mann-P had donkey out on the road and D driving recklessly. 1. D liable b/c last clear chance! (Also WAMTA and Batman case n. 3) (3) (621 n2); Williams v. Delta International Mach. Corp. 1993 - AL will not abandon contributory negligence after 162 years. Alabama adheres to the pure doctrine of contributory negligence. A claimant's proximate contributory negligence will bar recovery completely. Although this is now a minority view, the Alabama Supreme Court is unlikely to alter this doctrine judicially. When presented with a direct challenge to the continued application of contributory negligence. ii) Comparative Negligence (1) Pure comparative negligent state-the P can achieve a recovery even though you were more negligent than the other party **this is the majority** (2) Partial comparative negligent state-cannot get a recovery if P more negligent than the other party (49% and 50%) (a) Mclntyre v Balentine (49% TN) were involved in a motor vehicle accident. Mclntyre brought a negligence action against Balentine, who answered that the plaintiff was contributorily negligent. While replacing the all-or-nothing rule of comparative negligence, Tennessee, instead of totally abandoning the fault-based system, opted for the 49 percent rule. Under this system, the amount of damages recoverable is reduced in proportion to the percentage of the total negligence attributable to the plaintiff. Note: Forty-six states, including Tennessee, have adopted comparative fault, eleven by judicial means, and thirty-four through the legislature. (i) Elim jt and sev liability, also liability out of proportion to fault (ii) Effect on CL doctrines:- obsolete: 1. Last clear chance 2. Res ipsa loquitur 3. Negligence per se 4. Imputed negligence 5. Punitive damages 6. Avoidable consequences 7. Trial judges control of jury (iii) Types of Ds conduct relevant to comparative fault 1. Intentional tort 2. Recklessness 3. Violation of higher degree of care on common carrier (iv) Extent to which Ps condition affects application of comparative fault 1. Minor 2. Impaired 3. Trespasser a. Doctrines of remote contributory negligence, last clear chance, and joint and several liability obsolete. When multiple tortfeasors, P can recover so long as fault < combined fault of tortfeasors. iii) Assumption of Risk-P relieves the D from his duty to protect. a. P knew of risk and voluntarily assumes the risk by deciding to take a certain act that is careless or perilous (1) Difference = Assumption of the risk involves the meeting of a subjectively known risk, contributory negligence may involve a plaintiff exposing himself to a danger of which he was subjectively unaware but which would have been apparent had he used due care. (a) -Essential to show D knew of risk, i.e. through direct admission. (b) -Must voluntarily encounter risk. -Can be same as contributory negligence, or very different. Get a Hat- careless, not reasonably prudent Get the baby- acting reasonably, but full liability on D because we apply the rescue doctrine p.351 the rescue doctrine negates the presumption that the rescuer assumed the risk of injury when he knowingly undertook the dangerous rescue, so long as he does not act rashly or recklessly. (2) Express- Where there is an exculpatory clause relieving one party of potential liability, the court will enforce it b/c it is a bargained for exchange that they freely made. (a) Seigneur v. National Fitness Institute 2000 Sign waiver for Rule: The ultimate determination of what constitutes the public interest must be made considering the totality of the circumstances against the backdrop of current societal expectations, including transactions that are so important to the public good that an exculpatory clause would be patently offensive such that the common sense of the entire community would pronounce it invalid. (i) Plaintiff had to sign a Participation Agreement which contained an exculpatory release for all claims, demands, injuries, and damages from all acts of passive or active negligence on the part of Defendant. Youre giving up your right to sue, youll probably be paying less for signing such an agreement. (b) Winterstein v Wilcom-D left s/t in the middle of the race track. Not liable b/c there was contract that released

19

them from liability. (i) An exculpatory clause only valid if: 1. The bargaining is free and open and one party is not at an advantage a. Dumay v Roberts-pregnant lady and dr came-not balance of power 2. The injury falls w/i the assumption of risk 3. Transaction does not involve public interest i. Employer/employee 4. the agreement does not cover risks from the extreme forms of negligence and from intentional torts. (3) Implied (a) 2 part test: Knew of the risk and Voluntarily assumed the risk (b) Exceptions to Implied Assumption of Risk: (i) No other viable alternative- 1. Rush v Commercial Realty Co- P fell through a trapdoor in an outhouse for tenants. (and imbalance of power) The assumption of risk defense does not apply when a plaintiff 2. had no choice but to assume the risk. (ii) Acted in emergency, not held to have assumed the risk. 1. Can be your own emergency or s/o elses. 2. Ex: Speeding car-saves kid, hurts himself-it was an emergency so voluntarily assuming the risk is not held against him. (c) Things to know about: (i) Implied assumption of risk has been abolished in comparative negligent states!!! (ii) Blackburn v Dorta Comparative negligence does not remove assumption of risk as a defense b/c still express o When P is acting carelessly, then comparative negligence takes over so dont need assumption of risk. 1. * Primary assumption of the risk occurs when the defendant is not negligent, either because he owed no duty to the defendant or because he did not breach a duty owed. 2. Secondary assumption of the risk is an affirmative defense to an established breach of duty owed by the defendant to the plaintiff. This defense can be further divided into strict and qualified assumption of the risk. a. Strict secondary assumption of the risk involves conduct, which is reasonable, but nonetheless bars recovery. The court found nothing in either case law or justice to validate this rule under the modern comparative negligence scheme. b. * Qualified secondary assumption of the risk is conduct that is unreasonable and bars recovery. Such conduct can just as easily be characterized as contributory negligence. 3. The affirmative defense of implied assumption of risk is merged into the defense of contributory negligence; thus the principles of comparative negligence apply in all cases where such defense is asserted (i) Restatement 3d of Torts comment c 2000 p.638 n2, conduct of P who is aware of risk and voluntarily encounters it is evaluated under comparative negligence standard. Contributory Negligence Comparative Negligence Assumption of Risk i. ii. iii. AL, MD, NC, VA, DC (Butterfield) Pure: AK, AZ, CA (Li v. Yellow Cab), NY FL, KY, LA, MS, MO, MI, NM, RI, WA

49%: AR, CO, GA, ID, KS, ME, ND, TN (McIntyre v Ballentine) , UT, WV

50%: CT, DE, HI, IL, IN, IO, MA, MN, NV, NH, NJ< OH, OK, OR, PA, SC, TX (Texas says if P is greater than D no recover but does do 50/50.), VT, WI, WY

Slight Gross NE SD

Most states: Fold CN/AR into CompNeg; both reduce but dont bar recovery. Daly and 3rd restatement approach Some: CN goes to CompNeg, but AR remains as an affirmative D. (some states did this w/ normal negligence too) Very few: CN and AR remain as complete bar.

In whatever jurisdiction you are in, all P must show a defect in order to move forward! (1) But for the defect, the injury would not have occurred!-causation risk utility analysis-has a negligence feel, but still used in SL 1 Usefulness and desireability of the product (2) Safety aspects of the product (3) Availability of a substitute product (4) Ability to eliminate unsafe character w/o impairing usefulness (5) Ability to avoid danger by the exercise of care in the use of the product (6) Anticipated awareness of the dangers inherent in the product (7) Spreading the loss by setting the price of the product

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Jurisdiction s

P HAS BURDEN OF PROOF D FRIENDLY Fletcher v. Rylands: H/D first court: Because D was unaware, he was not liable. To make him liable would make him an insurer to neighbors. negligence Indiana Indiana Harbor Belt RR v. American Cyanmid Co. (7th cir. 1990) pp 667 H/D: Posner, J: remand; use negligence. strict liability wouldnt encourage more safety. It would encourage less shipping/different shipping route. negligence rule gives incentives for safety. If D took reasonable precaution, there wouldnt have been a leak Posner distinguishes this from Guille, where no diligence could lower risk, no societal benefit Normally, w/ dangerous materials, strict liability. HR Bill: D-friendly, only responsible for % and P less by % PURE Can only sue produce seller if can prove N Limit time to sue Assumption of risk/contributory N misuse aspect Prentis v. Yale Mfg. Co. (SC of Michigan, 1984) John Prentis (P) operating hand-operated forklift manufactured by Yale Manufacturing Company. Folklift was walkie hi-lo model, operated by lifting handle up. Battery charge running low, after using machine, Mr. Prentis was starting it again when machine had power surge and he was knocked over, hip fractures + injury. - Approaches to Meaning of Defect in Design Cases: 1. negligence risk-utility analysis, focus on whether manufacturer would be

D HAS BURDEN OF PROOF P FRIENDLY Fletcher v. Rylands House of Lords: SL. When you bring something not natural to the land/make unnatural use, strict liability standard. NJ- Obrien v. Muskin pool-vinly In NJ the burden on reasonable alternative design shifts to D. Once P has shown defect, D has to show there is no RAD. Actual knowledge imputed to D, P doesn't have to prove actual knowledge CA Greenman v. Yuba note the statements of its holding on strict products liability (spl) at last para p. 762 and penultimate sentence on 763. Compare and contrast that approach to the Restatement II 402A beginning at the bottom of 763. Both, physical harm. In Greenman it has to be for the purpose intended and when the seller sold it knowing it would not be inspected again. In the Restateme nt deals

21

judged negligent if had known of dangerous condition when marketed (Wade) 2. risk and utility of product at time of trial (Keeton) 3. consumer expectations 4. risk-utility and consumerexpectation tests *overwhelmin g consensus riskutility analysis -Risk-utility balancing test = detailed version of Judge Learned Hands negligence calculus! B > PL -Prosser: liability of manufacturer departure from proper standards of care, so tort = essentially matter of negligence. -Model Uniform Product Liability Act (UPLA) pub. 1979 by Department of Commerce, voluntary use by states (adopts negligence or fault system on design defect) -rejected theory of risk distribution (liability insurance) b/c firmer liability foundation needed when whole product line is at risk; fault system provides greater incentives for loss prevention Benefits: 1.Design defects deliberate and documentable decisions that plaintiffs can access through modern discovery rules 2.To extent that primary purpose of products liability law is to encourage design of safer products and reduce incidence of injuries, negligence standard more likely to achieve that! Greater incentive to design safer products. 3.Verdict for plaintiff in design defect case = determination that entire product line is defective. Significant portion of manufacturers assets, plus public maybe

with the ultimate user of the product and the product reaches the consumer without a substantial change in the condition in which it was sold. If restateme nt is diff than California is this a complete retreat to negligence ? Pro-D position? Hypo: Cronin/ Barker v. Lullbakers truck making its rounds in LA when the truck stopped short, a tray storing bread fell out of the truck and hit the driver in the back of the head (smaller handout) Barker v Lull citation to Cronin, refused to use RST and stuck to Yuba, indicative of a big different but still a strict products liability theory. Focus still on product itself. a) P proves defect (not knowledge by D of the defect), and then burden shifts to the D to show no RAD-reasonable alternative design. The RST 402 A def of defective product should not be incorporated into Ps burden of proof for DD and MD - jury doesn't have to determine unreasonably dangerous, ultrahazerdous or more dangerous than ave consumer contemplated and should be

22

deprived of product. So should be higher threshold for fault test. Traditional tort law of negligence can do this. 4.Fault system greater intrinsic fairness b/c manufacturer wont pay for sellers losses. Lower prices, safer products. -UPLA formula clear and understandable, imposing negligence standard = clear def. Outcome: Adopt (forthrightly) pure negligence, riskutility test in products liability actions against manufacturers of products when liability defective design. Jury need only be instructed on single unified theory of negligent design. THIRD RESTATEMENT revert back to N model, foreseen but this JUST looks at the product, not the mfg.s conduct. Restatement 3rd-more toward negligence b/c the P has to prove a RAD. Third Restatement says plaintiffs burden to prove reasonable alternative design; some jurisdictions say its on defendant; most jurisdictions take a middle ground

reasonably foreseeable use not intended use. Distinguish Cal from RSTunreasonably dangerous to the consumer Cal: driving vehicle as intended to be driven, and through some defect he was injured. Only has to show the defect in a way that one uses the product. RST: defective condition was not unreasonably dangerous. Further but not to the point of making the P prove N, futher requirement connected to the product itself that the product be unreasonably dangerous to the consumer? Trending back towards N due to its own terminology. oDs argument: truck was being used normally oBoth approaches focus on the product, RST leaning towards activity .

Restatement 2nd-it is still SL, but the defect has to be unreasonably dangerous- (a) Must be a business seller and expected to reach consumer w/o alterations. (b) Can be SL if it was unreasonably dangerous even if exercised all possible care and even if it was not bought directly from the seller. IN CALIFORNIA AND IN RST must show DEFECT. P must locate defect in the product. Both want to alleviate problems of proof of fault for P. Basic RST approach doesn't go as far as Greenan. Greenman- bad nails. Prentis- no seat/belt. NJ- pool- vinyl o 2. Flowed injury- (nothing here about foreseeability or the way manufactured). Rattlesnack, hot air balloon, shipping of chemicals, looked at platonically. Could say the buzz saw lacks a guard- injury indicates what might be defective. Warning. Ps conduct something so outrageous about the way it was used. The case might be thrown out. Ps conduct in the Pool case jumped from the roof of garage into small pool.

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Restatement 2d 402A Rix v. GM Corp. single definition of defect to cover all cases of products liability (any product in a defective condition unreasonably dangerous to the user or consumer.) -Really 3 different types (with diff. standards): 1. manufacturing defect (flaw not in general product line, failure in quality control) 2. design defect (entire product line challenged); definition has no guidelines on how to impose liability fault? strict liability or absolute liability? 3. defect due to failure to warn Restatement 3d abandoned single definition approach separate functional rules for manufacturing defects, design defects, and defects due to failure to warn

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer if (a) the seller is engaged in the business of selling such a product (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold

1 Liability of Commercial Seller or Distributor for Harm Caused by Defective Products One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect. 2 Categories of Product Defect A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product (a) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product; (b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design, and...the omission of the alternative design renders the product not reasonably safe; (c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings... and the omission of the instructions or warnings renders the product not reasonably safe.

1)

D. a) b)

2)

c.

b)

c) 3) 2) d)

Defenses/Plaintiffs conduct; see state of art above! a. 402a: No CN, but AR (voluntarily and unreasonably proceeding to encounter known danger) as an affirmative defense. i) i. Express AR is not a defense in products (no waivers of liability) ii) ii. Some states allow CN now as affirm. D. b. Open and obvious defect i) i. Rare in manufacturing. ii) ii. 2nd: primary AR. (1) 1. 3rd: lack of warning will not constitute defect if the risk should be obvious to foreseeable product users. [warning for obvious wont do much, and may add to prolix warning problem] (a) 2. but Liriano suggests not always dispositive. Policy questions. iii) iii. Design: more like secondary AR. Not dispositive. iv) iv. Product type v. product aspect: courts loathe to find SL against a type of product, more willing against an aspect. Misuse, 3 fact situations i) i. No relevant defect; type of injury unforeseeable, so no defect ii) ii. Intervening cause; maybe a defect, type of injury foreseeable but manner involves unforeseeable intervening human wrongdoing. (1) 1. manner need not be foreseeable EXCEPT when it includes unforeseeable intervention of human wrongdoing; e.g. speeding=foreseeableliability. (2) 2. if type unforeseen superseding cause barring recovery. (except unavoidably unsafe iii. P at fault. Ps own negligence contributes to injury. But it may be widespread, foreseeable conduct. (Q-tips, ladders) reasonableness of conduct matters. i) 1. open Q; CompNeg or AR maybe used; policy/politics. ii) 2. warnings might be necessary. d. 3 major approaches after 402a and advent of CompNeg i) i. Most states: Fold CN/AR into CompNeg; both reduce but dont bar recovery. Daly and 3rd restatement approach ii. Some: CN goes to CompNeg, but AR remains as an affirmative D. (some states did this w/ normal negligence too) iii. Very few: CN and AR remain as complete bar.

STRICT LIABILITY (1): [Read carefully 713-19] Rylands, 719; Murrell v. Goertz, 695; Miller, 726 a) STRICT LIABILITY (2): b) Indiana Harbor, 729; Foster, 737; Golden, 739; Sandy, 741

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3)

STRICT LIABILITY-liability w/o a showing of fault a) Animals Trespassing animals An owner is strictly liable only if the owner knew or should have known that the animal had dangerous propensities. i) Wild animals b) Ultrahazerdous activities i) Restatement 519 states the general principle for liability, and 520 provides several evaluative factors. Section 519 provides for strict liability for one who carries on an abnormally dangerous activity causing harm to persons or property even if he has exercised the utmost care to prevent the harm. Section 520 suggests evaluative factors to assist in determining if an activity should be termed abnormally dangerous, and includes (1) the degree of risk of harm; (2) the magnitude of that harm; (3) the inevitability of some risk irrespective of precautionary measures that might be taken; (4) the ordinary or unusual nature of the activity; and (5) the activity's value to the community in comparison to the risk of harm created by its presence. c) PRIMA FACIE CASE i) The existence of a duty on the D to make it safe ii) Breach of that duty iii) Breach was actual and proximate cause of the injury iv) Damage to the Ps person or property. (1) Strict liability goes back all the way to anonymous where were liable for your actions w/o requirement to show fault or intent In a way we are back where we started. (2) May recover for personal and property damage, but not economic. (a) Rylands v Fletcher-D built reservoir on their land and water escaped through abandoned coal mine and flooded Ps adjoining coal mine. The D had no way to know that was creating an unreasonable risk in collecting the water b/c it was abandoned mine shaft. (i) P couldnt prove that D was negligent or was trespass. All he proved was the contractor should have known about the abandoned pathways on the Ds property. (ii) In the absence of trespass or intent, the exchequer court found that there was no liability. (iii) Holding of he exchequer chamber: where a person has s/t that dangerous on his land and it escape and causes damages, the person will be held liable, and the P does not need to show intent, negligence, and absence of due care. (iv) Holding of the House of Lords: if ordinary course, not liable. If unusual use, then liable. (3) Liable b/c unusual use of land. (4) Location will affect the courts determination of the naturalness or unnaturalness of the conduct. (i) Difference b/t exchequer and Lords: 1. One who brings a/t on their land will be liable v non-natural use of the land 2. (in both rules, the D has brought s/t onto the property. the exchequer is just a broader rule) d) VICARIOUS LIABILITY i) One person is being held liable for the tortious activity of another. ii) Respondeat Superior-look to the person higher up. iii) an employer will be liable where it was w/i the scope of employment. i. Lundberg v State-P hit by a car that a NY state employee was driving on his way back to work from spending a holiday weekend. No respondeat superior (1) Fruit v Schreiner-Employee went to bar at 3am to talk to out of state colleagues and hit the P on way back to the bar. Yes respondeat superior- scope+control of employer. (2) Test for Scope: If employment context creates the necessity that then turns into the accident, then the employer is liable. (3) General duty: driving to and fro work is not in the scope. (4) Intentional torts: Usually, an employer wont be liable for intentional torts. (a) i. Will be vicarious liable for intentional torts when: (i) force authorized by employment-bouncer (ii) generated by employment-bill collector (iii) in furtherance of job: iv) 3) There are 2 main rationales for vicarious liability: (1) The control theory-liability where the employee acts w/ the acquiescence of the employer (2) The enterprise theory-whenever the employer would have benefited by the context of the act of the employee but for the unfortunate injury. (3) Spread to the deep pockets. (4) 4) An employer can be held liable for own negligence in hiring an incompetent employee. v) Independent Contractors: (1) Generally not liable for their tortious acts (2) Exceptions: (a) Contractor is engaged in an inherently dangerous activity ex: blasting (3) For public policy, the duty is non-delegable. Ex: motorist, business (4) Where there is an independent contractor who acts beyond the supervision, dominion, and control of the employer, the employer will not be held vicariously liable for injuries caused by the independent contractor. (5) Murrel v Goertz-D collecting $ for paper delivery. P hit him and he hit back. Those who employ independent contractors are not liable under the doctrine of respondeat superior. If an individual has the right to control the physical details of the work, the individual will be considered an independent contractor, not an employee. Employers are not liable under respondeat superior for the actions of independent contractors. e) STRICT LIABILITY- Abnormally dangerous activities: (used to be ultra-hazardous and now imposing consideration of the location.-throwback to the lords unnatural use holding) ADD RSTMT i) Miller v. Civil Contructors Inc. T-hing or activity under analysis in the miller case: bullet. Thing out of place: Firearm practice Is firearms practice so inherently dangerous that we should impose strict liability? This comes from wild animal earlier cases. No N. (1) If an activity is deemed ultrahazardous, strict liability is imposed and there is no need to prove negligence. Courts must

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4)

analyze the following factors to determine whether an activity is ultrahazardous, abnormally dangerous :RST 519, 520 (a) existence of a high degree of risk of some harm to the person, land or chattels of others; (HIGHLY DANGEROUS) But here why didn't they rule the firing practice was this? They say that danger comes from misuse of guns. (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (SOUNDS LIKE EARLY BARNYARD CASES) MOST IMPORTANT WORKING AGAINST STRICT LIABILITY REGIME. Ordinarily you can use a gun safely. In farmer situations no matter how careful you are you cant control animals. This not mean that accidents don't happen with guns, but if accidents happen the P will have to prove N. (d) extent to which the activity is not a matter of common usages GUNS ARE COMMON (e) inappropriateness of the activity to the place where it is carried on; (THING OUT OF PLACE) HERE THIS IS WHERE SHOOTING SHOULD TAKE PLACE (f) extent to which its value to the community is outweighed by its dangerous attributes. The presence of more than one factor (but not all) will be necessary to declare the activity ultrahazardous as a matter of law and find strict liability. ii) Indiana Harbor Belt RR Co v American Cyanamid Co-Activity was setting up and transporting a hazardous chemical iii) 6 factors to consider in determining whether or not there is strict liability The Restatement (Second) of Torts Section: 520: Second restatement provisions 519 and 520 factors to determine if activity is abnormally dangerous iv) (Third Restatement gets rid of balancing utility from 520 (p. 662)Forseeable risk of harm even when care is exercised and not in common usage) (1) the probability/risk of harm is great (2) the harm that would ensue if the risk materialized could be great (3) such accidents could not be prevented by the exercise of due care (4) activity was not a matter of common usage (5) activity was inappropriate where it took place (6) the value to the community in having the activity did not appear to be great enough to offset its unavoidable risks. (a) Ex: Guille case- Hot air balloon in NYC injures a vegetable garden. P won b/c no matter how careful the D is, an accident will occur as a result of the activity. Wind is not an act of God here- it is precisely the way in which a balloon is dangerous (susceptibility to wind). v) Golden v. Amory 1952 (1) If there is an intervening cause- act of God- the lack of foreseeability of that intervening case should elevate it to the superceding cause, completely alleviating the actor from strict liability. (2) An act of god in N land is almost always a superceding cause (a) Argument: outcome is wrong because brings in language of foreseeability: we said with strict liability that even with utmost care we cant avoid so what should it matter if god does it what does foreseeability have to do with it? vi) Why SL is good? (1) A. Consumer finds it too difficult to prove negligence v. manufacturer. (Accessibility of proof). (2) B. Strict liability = effective and necessary incentive to manufacturers to make products safe as possible. (3) C. Reputable manufacturers stand behind products, replace and repair defective ones. All should be responsible when injury results from normal use of product. (4) D. Manufacturer in better position to protection against harm (liability insurance) and by adding cost of insurance to product, can pass loss on to general public. (5) E. Strict liability can also be accomplished by series of action, so should be short-cut. (6) F. By placing product on market, seller represents that it is fit, intends and expects it will be purchased and consumed in reliance on representation. Distributors/retailers are only a conduit. (7) G. Costs of accidents should be on party best able to determine whether means to prevent accident. vii) same RST section as miller 520 Restatement 520(d) requires consideration of whether the activity is a matter of common usage. Comment i thereto suggests that while the use of the automobile is so commonplace as to make its operation one of common usage, the use of a far larger tank might be abnormally dangerous. The locality of the activity is also relevant, and comment j to 520 points out that the storage of explosives in the middle of the desert might be evaluated differently than would such storage in an urban area. viii) Ultrahazerdous Rstm 1- Inherently dangerous. Driving a car. Guns. ix) Abnormally dangerous Rstmt 2- thing out of place (1) SL: Blasting, dynamite, fumigation, storage of toxic chemicals, running of hydro electric plant, x) Siegler v. Kulman- strict liability for gasoline on the highway p.735 n1 f) Bridges v The Kentucky Stone Co-Dynamite i) The focus is now on the activity. This is different in the negligence b/c there we looked at the manner in which the activity was taking place. ii) Typical situations: o Dynamite, pile diving, crop dusting, poisonous gases, rockets, fireworks, hazardous waste disposal site, oil wells, water escape. (1) POINT: (a) P cant always prove an absence of due care and need to find a way to SL. (b) Usually can use it when the activity is not common and no value to the community. 4. where the injury occurring is not what was intended to be protected by making the activity subject to SL, there will not be liability. g) Foster v Preston Mill Co- Blasting operations being done by the D frightened a mother mink owned by P causing the mink to kill her kittens. o Unlike the reciprocity of ordinary negligence, the SL model kicks in when the D is doing s/t that places him out of the mainstream of activities. They are not per se unlawful, but there is good reason in that environment to make the D SL for those kind of activities. i) Mink shows that when activity that normally subject to SL is matched w/ another weird activity, will not be SL but will be regular negligence. ii) What does a chicken have to do with a tiger in SL land? iii) The linkage b/t D and SL is that the D is engaging in the activity or owns the animal that we are scrutinizing. The less likely there was negligence, the more likely there would be SL. Defenses to SL: i) Actofg-d o Ways that you could bring the actions of the P-assumption of risk!!! (1) Hypo: houses near railroad For people to continue to live near the hub would be analogous to be like building a house

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near an airport runway - Assumption of riskFoster-assumption of risk b/c knew of blasting and that it could affect the mink. (1) P crawls into bear cage-Not liable b/c P voluntarily put himself in harms way- into the specific risk that would subject the D to SL. (2) Normally, w/ dangerous materials, strict liability. (3) defenses to strict liability: assumption of the risk & Abnormal sensitivity (p is harmed only because P is abnormally sensitive iii) Sandy v Bushey-where the D subjected himself to SL position b/c the D knew he had a horse with a dangerous propensity couldnt claim CN. (a) Contributory negligence is not a defense to SL. (b) CN has to do with foreseeability: should the negligent D be forced to foresee an equally negligent P in taking steps to prevent injury. In SL, foreseeability is not the essence of it, so not a defense! o Bridges v Kentucky Stone Cothe dynamite explosion took place remotely from the place where dynamite was and taken by thieves. Not held strictly liable. The storage of dynamite is not negligence per se. iv) Typical SL cases: pile driving, crop dusting, poisonous gases, rockets, toxic chemicals, (1) flammable liquids, fireworks, oil wells, water escape ii) PRODUCTS LIABILITY (1): b) MacPherson, 422, 746; Baxter, 749; Rix, 768; Henningsen, 754 c) PRODUCTS LIABILITY (2): Pro-plaintiff Reform Continues Greenman (redux), 760; Restatement II 402 A, 763; OBrien, 778; Friedman, 794; Ford, 804 d) PRODUCTS LIABILITY (3): A Move Back to Defendant e) Anderson, 786; Restatement III, 767, 791 n9; Prentis, 771; Daly, 799 PRODUCTS LIABILITY a) Development of Theories of Recovery i) Negligence (1) Manufacturing flaw, inspection, design, warn, quality components. (2) P may sue a manufacturer even though there is no privity b/c the manufacturer breaches a duty to the foreseeable user of the product if a negligently made product would cause injury w/o making an inspection. (a) MacPherson v Buick Motor Co- MacPherson was injured when his cars defective wheel broke into fragments. He had bought the car from a dealer who had bought it from Buick Motors, the manufacturer of the car. A reasonable safety inspection would have revealed the defect in the wheel. Manufacturers of products that are reasonably certain to place life and limb in peril when negligently made owe a duty of reasonable care to all foreseeable users. (i) once got rid of privity, negligence was evident. iv) Any defective product thereby becomes inherently dangerous (ii) A negligently made product is A THING OF DANGER! b) Warranty-a hybrid b/t tort and K law (b) Manufacturers Duty of Care- Plaintiffs may bring negligence actions against manufacturers if the manufacturers fail to properly ensure that: (i) 1. the products are designed in a reasonably safe way; (ii) 2. the manufacturing system is reasonably error-free; (iii) 3. the products are reasonably tested/inspected; (iv) 4. the products are packaged and shipped with reasonable safety; (i) 5. the components used are reasonably competent. ii) Express Warranty- Manufacturer/retailer explicitly saying s/t about the nature of the product upon which the consumer relies will be held liable even w/ no privity. (1) Liability in K. regular misrepresentation would be tort. (2) Baxter v Ford Motor Co-D represented to the P that windshield was shatter- proof. Injury to eye. Tort remedy even though cant prove negligence! You don't need to show fraud, or N misrep. To gain some measure of protection when there is a breach of an express warranty. (3) Caveat Emptor no longer applies! (a) Buyer relies on manufacturer (b) And mass advertising and marketing. iii) Implied warranty of merchantability and fitness for the job intended by the product. (1) Where a manufacturer/retailer put a product on the market, there is an implied warranty that it is reasonably suitable for its intended use by the purchaser. (a) Privity not needed: concern for consumer safety trumps K formation. (2) Henningsen v Bloomfield Motors Co(3) (a) Still recover even though disclaimer (i) No negligence and no warranty, but liable b/c focus on the object and the object was bad. (ii) This case continues the trend in its emphasis in the passivity of the P. (iii) Purchase contract had a cause disclaiming any warranties express or implied. No express warranty about the feature. Ct finds an implied warranty of merchantability . b) Strict Liability-Trending toward SL in torts: Privity, express warranties, and impliedwarranties disappear. i) PRIMA FACIE CASE: (1) (1) Defect-must have been in a defective condition unreasonably dangerous to the user or his property (2) 2) Control-when it left the Ds control was defective-needs to be exclusive control (3) (3) Changes-product cannot be altered (4) (4) Business-not a casual seller ii) Identification of the defect is enough to make the case go forward and it doesnt matter if the manufacturer was acting reasonably. iii) When a manufacturer puts a defective product on the market knowing that it will not be inspected for defects, it will be strictly liable for any injury caused by the defect in the product where it is used in the way it is intended to be used. (1) Greenman v Yuba Power Products Inc-CA-Wood flew out when using a tool. SL, so dont have to say why it happened, but have to show that it happened. (a) To establish liability, it is sufficient that Plaintiff was injured while using the Shopsmith in a way it was intended to be used, as a result of a defect in design and manufacture. Doesn't have to show FAULT/NEGLIGENCE! iv) 3 types of defects: Get you to the jury w/o showing negligence-just show defective!

5)

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(1)

Design- WHEN THE FORESEEABLE RISKS OF HARM POSED BY THE PRODUCT COULD HA VE BEEN REDUCED OR A VOID BY THE ADOPTION OF A RAD BY THE SELLER OR OTHER DISTRIBUTOR, OR A PREDECESSOR IN THE COMMERCIAL CHAIN OF DISTRIBUTION, AND THE OMISSION OF RAD RENDER THE PRODUCT NOT REASONABLY SAFE (a) Prentis v Yale Mfg Co-MI Prentis was injured when he fell from a forklift manufactured by the defendant. Prentis claimed the forklift was negligently designed because it did not provide the operator with a seat or platform. (i) Design defects are in negligence land b/c questioning whether the manufacture should have been thinking about the safety risk of the product. Rule: Manufacturers are liable for designs defects only if they were negligent in designing their products. Under a risk-utility analysis, a design is defective only when its risk of harm outweighs its utility. (ii) HOLDING: adopting UPLA, Michigan ct decides that it is so close to N, in a design defect case P must prove N. makes it easier for juries. D-favorable shift. (iii) IMPORTANT: LOOK AT P781, 7 FACTORS, OR HERE 4 FACTORS TO FIGURE OUT IF DESIGN DEFECT.) (iv) Burden shifts, imputation of knowledge instead of having to prove, favor the P. 1. 1. Negligent risk-utility analysis focuses on if the manufacturer would be judged negligent if it had known of the dangerous condition when the product was marketed. IMPUTATION OF actual knowledge of the problem. Don't have to prove knew or should have known. Negligence risk utility analysis. 2. 2. A second analysis compares the risk and utility of the product at the time of trial. 3. 3. A third analysis focuses on the consumer expectations for a product. 4. 4. The final analysis combines the risk-utility and the consumer expectation analyses a. 1. First, design defects, unlike manufacturing defects, result from documentable decisions by manufacturers that plaintiffs should be able to learn of through discovery. b. 2. Second, a negligence standard in these cases encourages the design of safer products. c. 3. Third, a verdict for the plaintiff in a design defect case is essentially a ruling that the entire product line is defective, depriving the public of the product. d. 4. Finally, the court believes that such a fault system provides for greater intrinsic fairness. * (v) THIRD RESTATEMENT revert back to N model, foreseen but this JUST looks at the product, not the mfg.s conduct. (b) Design Defect: (i) Strict liability v. restatement/negligence 1. Cali pushes for strict liability standard (Barker, Cronin) 2. Other states, using 402a, which takes from 2 areas; consumer sales law and regular negligence; Strict Liability, but w/ many negligence principles at work (foreseeability of harm, reasonability of precaution) (ii) ordinary consumer, unreasonably dangerous 1. sales law: a departure from the ordinary consumers expectations 2. negligence/tort: risk-utility test (iii) 3rd restatement (p753) risk-utility only. foreseeable risks 1. P has burden to show reasonable alternative design/warning 2. And that not using RADthe product not reasonably safe 3. General evidence enough. i.e. similar products w/ RAD (iv) Barker: opposite; D has burden to show risk-utility (v) P favorable CA/NJ SL-focus on the thing itself 1. (a) P proves defect (not knowledge by D of the defect), and then burden shifts to the D to show no RADreasonable alternative design. 2. Restatement 2nd-it is still SL, but the defect has to be unreasonably dangerous- a. (a) Must be a business seller and expected to reach consumer w/o alterations. b. (b) Can be SL if it was unreasonably dangerous even if exercised all possible care and even if it was not bought directly from the seller. 3. Restatement 3rd-more toward negligence b/c the P has to prove a RAD. a. D Favorable MI negligenceb. MI makes the P prove negligence (harder to find blackened banana peel) b/c will cause the whole line to be discontinued and design defect really is a negligence claim (a) They do this b/c the design claim is really a negligence claim b/c we are doing a risk utility analysis and saying that the manufacturer was negligent in the way they designed the product-not reasonable to put such a product on the market. 4. In whatever jurisdiction you are in, all P must show a defect in order to move forward! (1) But for the defect, the injury would not have occurred!-causation 5. risk utility analysis-has a negligence feel, but still used in SL a. Usefulness and desireability of the product b. (2) Safety aspects of the product c. (3) Availability of a substitute product d. (4) Ability to eliminate unsafe character w/o impairing usefulness e. (5) Ability to avoid danger by the exercise of care in the use of the product f. (6) Anticipated awareness of the dangers inherent in the product g. (7) Spreading the loss by setting the price of the product (vi) Barker v. Lull Engineering Co. Inc. 1. A products design is considered defective if either the dangers inherent in the products design outweigh the products usefulness, or if the product was less safe than the ordinary consumer would expect when used in an intended or reasonably foreseeable manner. 2. Shifted the burden of proof to the manufacturer to show that the benefit of the challenged design outweighed the risk of danger inherent in such design. 3. 1) CONSUMER EXPECTATION (failed to perform safely as expected or in a foreseeable manner);or 2) If P proved design proximately caused injury AND D fails to prove Risk-Utility a. weighing the adequacy of the design by balance test is not the same as N b. proof that product is defective may also be proof of N

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One of the PRINCIPAL PURPOSES OF SPL DOCTRINE is to RELIEVE AN INJURED P of many evidentiary burdens inherent in a N CoA. d. Once P shows that injury prox caused by products design then the burden shifts to the D to prove that the product isnt defective was as safe as it could be. e. **** Focus for the jury is on the condition of the product itself and not the reasonableness of the mfg conduct i. that the mfg was reasonably prudent wont absolve the mfg of liability under SL principles as it might have under N, if in hindsight the design was unsafe to consumers or bystanders ii. The RST 402 A def of defective product should not be incorporated into Ps burden of proof for DD and MD - jury doesn't have to determine unreasonably dangerous, ultrahazerdous or more dangerous than ave consumer contemplated and should be reasonably foreseeable use not intended use. 4. State of the Art- defense this may contribute to proof that it's a defect (obviously they knew that it was a risk and others have protected against it) v) Manufacture-when the product departs from intended design even though all possible care was exercised in the preparation and marketing of the product (1) Friedman v. General Motors Corp. 1975 p.794 Proof To sustain a products liability action against a manufacturer, a plaintiff must prove that the product was defective, that the defect existed at the time the product left the manufacturer, and the defect was the direct and proximate cause of the accident and the injuries. (a) In Res Ipsa Loquitor- (if a toaster blows up the P wont be able to prove it was a lemon) If we were to reduce back to N wouldn't we be putting too much of a burden on the P- how could they prove it was a lemon? It would be hard to reconstruct to mount enough evidence. (b) How is this case different? (c) Mfg liability cases much more acceptable- favor D, whole idea of having a product indicates that it should be more open that it should preserve strict liability if you look back at similar res ipsa cases SULLIVAN V CRABTREE P.263 p65 n.1 auto accident case (i) When case gets to trial, if permit Friedman to go to trial, the D has every opportunity at that point to explain the incident as not being connected to its own defect and let jury be the ultimate arbiter. Sullvan can posit res ipsa doesn't mean D cant answer fully when t goes to trial by giving alternative explanations and in that case Sullivan prevails (ii) Here Ct says this should have gone to trial and D should prevail there (d) * In Defendants motion for summary judgment the court must construe the evidence in favor of the Plaintiffs. For Plaintiff to prevail, they must prove that the car manufactured by Defendant was defective, that the defect existed when the car left the factory and that the defect was the proximate cause of the injuries. (2) i) Rix v General Motors-Truck was a lemon, but also had a design defect. (a) Hypo: P riding in a bakers truck and accident w/ another truck and tray in back of truck hits him. He sues manufacturer of the truck. (i) If P proves that the product was defective, he will prevail. (ii) RIX jury instruction p.769 SL vi) Roll bar car hypo: (1) read p. 777, n. 3 on "crash-proof cars" and especially the last half of the note involving post-crash (alleged) design defect claims for cars and other vehicles. (2) Is the absence of a "roll-bar" such as we discussed in class a "defect"? If risk of collissions is forseeable then perhaps. (3) If so, is it "unreasonably dangerous" to the user? If the design lets the car flip easily then maybe just because something isfun and attractive like a convertible (4) Does it matter that the "state of the art" includes car models that do have roll bars? Yes this may contribute to proof that it's a defect (obviously they knew that it was a risk and others have protected against it) (5) MFG will be liable for Ps conduct that could be called a misuse but is a foreseeable misuse (6) Cost benefit analysis (7) *Crash-Proof Cars. In Evans v. GMC (1966), new X-frame design for car body was less safe than conventional rectangular frame but court held that company not under duty to design an accident-proof or crash-proof car, ruled intended purpose of cars did not include participation in collision. But in Larsen v. GMC (1968), held risk of collisions foreseeable and design should reflect that. Today, mostly Larsen view, b/c no one wants to be smashed up in a car crash. vii) Warning-failure to warn (1) DIFF BETWEEN SL AND N: Reasonableness of Ds failure to warn is immaterial (2) OBrien v Muskin Corp- 1983 p.778, plaintiffs' conduct in spl see eg 784n7 and 805, n1-5 NEW JERSEY POOLNJ-Vinyl liner in an above the ground pool and P injured when dove off the top of an 8 foot garage, but no RAD. Court: too bad-discontinue it! (a) Risk located by the P as a defect- vinyl. Carroll Towing formula. B>PxL. Negligence. The complete absence of proof by P (i) RAD- Restatement but doesn't say who has to propose it. (ii) State of the art- custom- customarily, roll bar that protects from collisions. Even without State of Art, P must show RAD which would mean P has found an expert that can design and envision even though something doesn't exist in state of the art, - ITS BETTER if P can show that theres a better state of art design that actually exists (b) IN STRICT LIABILITY: (i) In NJ the burden on reasonable alternative design shifts to D. Once P has shown defect, D has to show there is no RAD. (ii) Cost benefit analysis even when no way to make product more safely might result in mfg still strictly liable and therefore, no more above ground pools because they will be liable done best as mfg but out of business in NJ. Cost benefit analysis doesn't mean you are in N-land, smacks of it, but burden on D that never happens in N in this issue. (Lubitz, banana, etc ordinarily wont see burden shift to D in N-land). If product is not significant enough it will be the END of the product. (iii) Imputation of the defect of knowledge actual knowledge of the defect is imputed to D not proven by P.

c.

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2)

Knowledge of the defect that P has identified doesn't have to be proven to exist in the mind of the reasonable mind of a D, Now that we say you knew about this product, would you nonetheless have launched it into the marketplace. Have proven that knew or should have known, (SL land) imputing knowledge of defect to you and then cost- benefit analysis springs from that. (c) Rule: In determining liability for an unavoidably dangerous product a jury may evaluate the risk of harm versus the utility of the product. A defendant may be liable for a design defect even if his product complied with the existing level of technological advances at the time of design according to a risk utility analysis. the product was defective; 2) the defect existed when the product left the hands of the df; 3) the defect caused injury to a reasonably foreseeable user. Manufacturer has a duty to warn foreseeable users of the risks inherent, and not placing defect products on the market. (i) Causal connection between identifiable defect in the product, not the way it was produced, but platonically by looking at the product and the INJURY caused to the P under the circumstances. (ii) BAXTER CASE. No safer way of doing the windows. That was a warranty case but that idea rearises here in SPL. What could they have done to be safer? There is nothing safer. There is no safer material to be used in pools. (d) Risk utlitiy test majority (e) Cosumer expectations test minority (i) Some do both tests (f) Need reasonable alternative to prove design defects- majority (g) State of the art- best technology etc used (h) Open and Obvious danger- either excuse or as one factor in risk utility test (i) No true SL to prescription drugs (j) Foreign- natural test for Food (k) Allergy- knew or should have known of the risk then must warn (3) Anderson v Owens Corning Fiberglass Corp-CA (a) P got cancer from asbestos and suing for failure to warn of the dangers. (b) Restatement Second of Torts: knowledge or knowability is a component of strict liability for failure to warn. (c) CA retreats to the negligence principles, but still not whether the D acted reasonably, but rather the P must prove that the D did not adequately warn of a particular risk that was know or knowable in light of the scientific knowledge of the time. (d) (a) Reasonableness of failure to warn not considered-it is that should have warned. (e) To date, CA courts have required knowledge (actual or constructive) of potential risk or danger before imposing strict liability for failure to warn. (f) -Ds argue that if knowledge/knowability irrelevant, than becomes issue of absolute liability. P argues that bringing in knowledge/knowability improperly infuses a negligence standard. (4) P.791 n9 Burch v. Amsterdam Corp. 1976 ADEQUACY OF WARNING : jury relies on expert testimony held that fact that warnings, on label on cans of adhesive assertedly satisfied minimum standards of Federal Hazardous Substances Act did not preclude a finding that seller was negligent for failure to give adequate warning and that genuine issue of material fact whether seller was negligent in failing to give warnings in addition to warning on label precluded summary judgment. (a) Maybe specificity of warning should vary depending on the degree of danger. DEFENSES TO PRODUCTS LIABILITY a) Defenses: i) Assumption of Risk (1) Let the jury weigh the fault of the D in SL cases. (a) Daly v General Motors Corp-CA (a) P killed in car accident b/c defective door latch. D says drunk and no seat belt. (b) IF the latch wasnt defective, then he wouldnt have fell out and died. (c) COMP ARA TIVE NEGLIGENCE IS A DEFENSE IN SL. (Prof says that can argue that it shouldnt be) (i) * A further objection to the imposition of strict liability is that jurors cannot compare plaintiffs negligence with defendants strict liability. However, the court is convinced jurors are capable of such a task. The court found final support for the adoption of comparative negligence in strict liability cases in the provisions of the proposed Uniform Comparative Fault Act [adopted by the Conference of Commissioners on Uniform State laws (1997)]. (ii) At least 3 things that D himself did wrong by getting hurt. Evidence could prove or not prove that he was or wasn't intoxicated 1. Seatbelt- HR sec 107 should have been using with seatbelt 2. Door lock3. Drunk- intoxication in SPL. (2) Whether we should apply contributory N in a SPL suit- Sandy v Bushy we saw this there- p.743 (a) Should you apply N in SPL? Cali would have a problem with N they would have a problem but as we saw in Anderson and as we see here moving back a little bit towards N YES WE CAN USE CONTRIBUTORY NEGLIGENCE IN A SPL CASE. (b) Most jurisdictions do allow contributory N as a defense to SPL. Sandy v Bushy didn't allow. Theres a semantic problem with strict liability (i) Apples and Oranges. SL and N. (ii) 800-801- Semantic problem but we can count on jury to overcome this problem- especially in a world of comparative principles. We are in a world of comparative N. We are urging policy-wise. Even in SL lets let Plaintiffs wrong-doing Lets let jury do the work of comparing. Why should we allow N P against a N defendant and allow it against a D that hasn't been N. We allow the careless to win against D but in Sandy v Busy we don't allow P who wasn't at fault at all to use SL. (c) CALIFORNIA CT POINTS OUT- AFTER APPLES AND ORANGES IS SEMANTIC AND UNFAIR NOT TO ALLOW P TO BE ASSESSED FOR HIS CONDUCT, mfg incentive to avoid and correct product product defects remains just by allow Ps CN. (d) Argument that Ps suit should not go forward at all: allow affirm defense of contrib N, - use in a way that it isnt mean to be used. Some Ps conduct is so fundamentally opposed to the idea of the product being defective that

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b) HR Bill i) 105- Liability Rules Applicable to Product Sellers- SL not available for product seller if Mfg is available unless can prove N (1) Cases: Baxter v. Ford Motor Co. , Rix v. GM, Henningsen v. Bloomfied Motors (2) other than mfg, liable if P establishes that (a) seller sold product (b) failed to exercise reasonable care (i) UNLESS no reasonable opp to inspect which would have revealed aspect which caused (c) which was a prox cause of the harm (3) Or if seller made express warranty indep of express warranty of mfg (a) Prod failed to conform (b) Which caused the harm (4) Seller intentional wrongdoing which was a prox cause of the harm (5) Seller liable as MFG if: cant bring suit against MFG under state law, or if Ct. determines that P cant enforce judgement against Mfg ii) 106 Defense Based on Claimants Use of Intoxicating Alcohol or Drugs (1) Cases: Daly v. GM, (2) Complete defense if P is drunk and get hurt, if MORE THAN 50% RESPONSILE FOR ACCIDENT IF DRUNK, iii) 107 Misuse or Alteration (1) Cases: Obrien v. Muskin (pool), Daly- seatbelt, Ford v. Matthews (2) Amt that seller for mfg is liable for is reduced by % of responsibility of P due to misuse or alt of a prod by someone if mfg or seller shows by a preponderance of the evid that such % of Ps harm was prox caused by (a) Use or alt of a prod involving risk of harm which was known or should have been known by the ordinary person uses or consumes the product with the knowledge that a person who would be reasonable anticipated to use the product (i) Except for workplace injuries iv) 108 Several Liability for Noneconomic Loss (1) Cases: Sindell v. Abbott Lab (2) Several and not joint (3) Each d liable only for amt of nonecon loss attributable to each D in direct proportion to Ds proportionate share of fault or responsibility for claimants harm as det by trier of fact v) 109 Statute of Repose (1) Cases: Prentis 1952-70, Anderson, DES cases for exceptions (2) Filed and served within 15 years (3) Only applies if did not include chronic illness or if express warranty was longer than 15 years c) Instructions/Information d) Misuse of the product (1) Ford Motor Co v Matthews (a) Defect: safety switch that allowed tractor to start even when it was not in gear (b) But, the D alleges that the P did not use the product in the way it was intended: (i) By standing at the side instead of sitting (ii) It was in gear! (c) Restatement comment f: A product is not defective when the product is misused! (d) Where the misuse is foreseeable, then the D can still be held liable. b) Exception to SL: Prescription drugs-design defects-b/c of their incredible utility. (2) RST 402a-k-unavoidably unsafe products often form an exception (1) Ironic b/c the point of SL is that the risk is unavoidable. (a) [Restatement (Second) of Torts Section: 402A], which states in part that a seller is not liable for injury that results from abnormal handling. (b) Restatement 402A p.763-768 highest court of jurisdiction. s 402A. SPECIAL LIABILITY OF SELLER OF PRODUCT FOR PHYSICAL HARM TO USER OR CONSUMER (i) (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if 1. (a) the seller is engaged in the business of selling such a product, and 2. (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (ii) (2) The rule stated in Subsection (1) applies although 1. (a) the seller has exercised all possible care in the preparation and sale of his product, and 2. (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. ii) AOR-Arguments have been made that it is less of a defense and more of a problem w/ the claim that the P is bringing that the P relieves the D of his duty to protect him, so no cause of action! iii) Elsewhere, take a look at some of the EXCEPTIONS under 402 (a) coverage, eg products with "open and obvious" dangers (790,n5),(784,n7); swimming pool, cigarettes, alcoholism, lacotose inteolerance to milk, fire with cigarette lighter, rail on top of trailer iv) 1. Negligent risk-utility analysis focuses on if the manufacturer would be judged negligent if it had known of the dangerous condition when the product was marketed. IMPUTATION OF actual knowledge of the problem. Don't have to prove knew or should have known. Negligence risk utility analysis. v) 2. A second analysis compares the risk and utility of the product at the time of trial. vi) 3. A third analysis focuses on the consumer expectations for a product. vii) 4. The final analysis combines the risk-utility and the consumer expectation analyses. Who has the burden of proof in various jurisdictions on doing the cost/benefit analysis regarding such alleged design defects?

instead of saying that the D has a defense of one kind or another, the Ps whole theory crumbles and falls and cannot be said to have proven a defect. (e) HR BILL- never became law- all sections almost universally bring the pendulum back to D favorability. Ps conduct is an element of 106 and 107. Reiterate sections of Ps conduct that mitigate and et rid of Ps ability to collect damages.

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DEFAMATION (1): Common Law Rules a) Belli, 865; Grant, 869; Kilian, 872; Neiman-Marcus, 876 b) Shor, 887; Terwilliger, 889; Economopoulos, 893 c) DEFAMATION (2): The Constitution Kicks in d) Times v. Sullivan, 907; Bindrim, 881; Gertz, 929 DEFAMATION a) 1) Interest protected: Ps truthful and accurate reputation in the relevant community. b) 2) Defamation is a communication that damages the Ps reputation by diminishing respect, good will, confidence, esteem he is held, or to excite adverse or unpleasant feelings about him. c) in note 1 p869 A communication tend to hold the plaintiff up to hatred, contempt, or ridicule or to cause him to be shunned or avoided d) To distinguish from IIED- interest that IIED protected- these cases do not involve the infliction of emotional distress on the plaintiff this tort does not have to do with the emotional integrity of the P- even though an ordinary P might get upset it is about the protection of his reputation. e) 3) PRIMA FACIE CASE-Ps Burden of Proof at Common Law: (SL b/c no fault or intent) i) Defamatory language-utterance tending to lower Ps reputation (1) Sine qua non- has the P presented an utterance that in fact lowers his reputation o there are inviolabilities related to our physical person, our emotional well-being, or our reputation ii) Publication-communication to 3rd persons (at least 1 person besides P) iii) colloquium-the remark is of and concerning the P iv) Common law does not require a showing of: (1) Damages (except by non-slander per se and libel per quod) (2) Falsity-it was presumed to be false (3) fault/intent. f) DEFAMATORY LANGUAGE a) Some statements will be defamatory on their face or can be use additional facts as inducement to establish a defamatory meaning by innuendo. i) Belli v Orlando Daily Newspaper Inck advantage of the FBA. b) There are different meanings, so it should go to t Remark made it sound like he was a cheat and too he jury. (1) How to mount CoA (a) 1. LOOK AT THE COMMUNICATION UTTERANCE. (WRITTEN OR ORAL, INTERNET, SIGN LANGUAGE, OTHER WAYS) Something said, written, signaled about you. (b) 2. Plead with specificity context that might be P favorable. Just the words the FL bar had been taken- how does this lower his reputation? ii) Grant v Reader s Digest Assn (1) P supports communist party The meaning of words change! (2) Libel consists of a remark that lowers reputation in the minds of pp and it does not matter whether or not they are right thinking pp. (3) Any living person or a corp may be defamed. Defamation of deceased isnt actionable. iii) Group of people who don't like you enough, to make it a lowering of reputation. Its not fatal to a CoA of defam that no right thinking person would hold it against you- and yet the action can still go forward if a critical core of people whose views we don't respect feel the worse of you. Exists enough to allow the action to go forward. (1) Group of people who don't like you enough, to make it a lowering of reputation. Its not fatal to a CoA of defam that no right thinking person would hold it against you- and yet the action can still go forward if a critical core of people whose views we don't respect feel the worse of you. Exists enough to allow the action to go forward. (2) Must be believable (p. 885 n.4 Miss America statement so outrageous that no one would believe it. g) COLLOQUIUM i) P must show that a reasonable reader, listener, or viewer would understand that the statement referred to the P. ii) Group Defamation: Neiman Marcus v Lait (1) All members of a small group-each can establish that about him by showing that hes a member of the group (2) All members of a large group-no member will establish this element. (3) Some members of a small group-can recover if show that a reasonable person would view the statement as referring to you. (4) Intensity of suspicion (not numerical test)- specificity of charge, prominence etc. p.879 n3 (5) Bindrim v. Mitchell -The test for libel is whether a reasonable person, reading the book, would understand that the fictional character described therein was actually P. Here, the only differences between Dr. Herford and P were the respective physical descriptions and the degrees held. The narrative was closely parallel to actual real life events. Whether the reader would have considered the defamation passages as mere fictional embroidering or as reporting of actual conduct was a jury question, which was resolved in Ps favor. Although only those persons who were involved in the therapy groups would recognize P, publication to only one person other than P constitutes libel. o They got around the colloquium and T and Sullivan holding bc stip P was a public figure. By stipulate that they buttress colloquium he is a pub figure everyone knows he does this but they also took on a hard burden- to show actual malice The Ct bought into the theory that all fiction is known falsehood. The medium itself is the message- someone who sits around and cooks up stories. Taking on the NYTimes test. This is what knowing falsehood means. Bc this is a novel, the P prevails. (6) h) PUBLICATION: i) Needs to be a communication to a 3rd party who understood it. i) Economopoulos v AG Pollard Co-Said in Greek that P stole, and n/o understood. And in English, no one heard. No publication! (a) Privilege from one employee to another (but authority is conflicted) (b) Maybe stenographer - ? Not all communications to third persons constitute publication. (i) Close relationship of the original communication to a person- middle man- connected to but so close that hasn't gone outside. (ii) We don't count an INADVERTENT overhearing. (so fault is included in this way). (iii) Ordinarily this is not publication- comes in through the backdoor- publication. You have to have

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intended them to overhear the utterance. If you speak too loudly, and it is clear that you are carelessly allowing the remark to be overheard by other, this is enough. (iv) Occasionally defeats the plaintiff showing publication. Foreseeability comes back in, not expected. Under the standard rule there would be no publication. But if people were gathered speaking greeek then publication. (2) Under the standard rule there would be no publication. But if people were gathered speaking greek then publication. (3) Privilege from one employee to another (but authority is conflicted) ii) Communication can be intentional or negligent (1) Only intent to publish required, and not intent to defame a specific P. (2) Extrinsic facts with words have a defam meaning- inducement (kosher butcher) We allow plaintiff to perfect by a showing of extrinsic evidence a statement that seems bengign we still have to show a statement of the EXACT WORDS but this helps iii) Kilian v Doubleday and Co, Inc (1) allege that the colonel acted inappropriately (2) The issue is colloquium b/c never referenced to the P specifically. (a) It doesnt matter who it referred to-it matters who was hit! (b) Truth or falsity is an affirmative defense and the burden of proof is on the D! (i) It is enough that the statement be substantially true! 1. Seditious libel -the greater the truth, the greater the libel 2. Repetition-P may recover for each repetition of the defamatory statement 3. Single Publication Rule-SOL-all copies of a paper, magazine, book are treated as only one publication and is deemed to occur when the finished product is released by the publisher for sale. Who may be liable? i) Primary publisher-each individual who takes part in making the publication (1) Newspaper or TV station would be liable like the speaker or author ii) Republisher-One who repeats a defamatory statement will be liable on the same general basis as a primary publisher, even if it the source is given or it is clear that dont believe that it is defamation (1) Where there has been a republication the original defamers liability may encompass any new harm caused by repetition if the republisher was either: (a) Intended by the original defamer (b) Reasonably foreseeable to her iii) Secondary Publishers-one who is responsible for disseminating materials that may contain defamatory statements are only liable if they knew or should have known. (1) Vendors on newspapers. DAMAGES: i) 2 Types: (1) General or presumed damages-presumed by law and do not need to be proven (2) Special damages-P must show that suffered pecuniary loss (1) Loss of job, business relationship, $, customers ii) Libel-A defamatory statement in writing or permanent form (can be radio or TV) written or printed words No special damages required Also includes pictures, signs, statues, movies, etc. (1) Damages Rule: (a) General damages are presumed, and special dont need to be shown (b) Minority of courts: (i) (a) Libel per se-on the face-general damages presumed a. ANY PUBLICATION WHCH POSES PERSON TO DISTRUST, HATRED, CONTEMPT, RIDICULE OR OBLOQUYb(abusive or indemnatory language) OR WHICH HAS A TENDENCY TO INJURE PERSON IN THEIR OCCUPATION. If it is false and not privileged, and is such that a natural and proximate consequence necessarily causes injury to a person in his personal, social, official, or business relations or life, wrong and injury are presumed and implied, and such publication is actionable per se (ii) b) Libel per quod-extrinsic evidence-need to show special damages (c) Permanent, broad, and premeditated make s/t more libel than slander (d) Scripted broadcast material is libel. If ad-libbed, trend is still libel. (i) P.888 n.2 statutes treat broadcast as slander (ii) Shor v Billingsley-a telecast that did not follow the prepared script is libel. (a) Media had it changed to be slander now b/c harder to show b/c damages! iii) Slander-Spoken defamation oral, non-written Necessary to prove special damages, unless it was slander per se For some types, no relief is available (1) Once libel, always libel. But if slander is written, it becomes libel. (2) ii) DamagesRule: (a) Special damages need to be shown-injury to reputation is not presumed (b) Slander Per Se-injuries presumed and dont need to show special damages. (i) (a) Imputations of Major Crime of moral turpitude (ii) (b) Loathsome Disease- (iii) (c) Business, Trade, Profession, or Office (iv) (d) Serious Sexual Misconduct of a woman (3) Terwilliger v Wands (a) D said the P went to a married woman and kept husband in jail to keep up relationship! (b) P claimed prostrated health no good b/c emotional damages! Not defamation! BUT IF THERE IS ALREADY DAMAGE TO REP then pain and suffering can be added 1st AMENDMENT FAULT REQUIREMENT i) NY Times Co v Sullivan (1) Lesson: The US constitutions 1st amendment, particularly, one it was applied to state law, seems to provide obvious opposition to the plaintiff-favorable tort claims of injury caused by speech acts. Provisions of 1st amend applied to the states Incorporated after Due Process (2) D published how P cop acted in a civil rights protest. P wins in lower court. Reversed. (3) NY times raised the defense of truth: justification (4) But many of the statements were inaccurate, so nothing at common law to avoid the judgment, so turn to 1st amendment. (5) An enforcement of this J would make pp think twice before attacking the gov so violates freedom of speech/press.

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(6) Where a statement is made against a public official that falsely lowers his reputation, the official has to show that the statement was made with actual malice- knowledge or reckless disregard for the truth. (1) A direct critique of government cannot be punished criminally or civilly. (7) Privilege of fair comment P.914 n2 RESPONSIBLE FOR TEST IF A D CAN NOT JUSTIFY HE COULD STILL AVOID THE CASE GOING TO THE JURY BY ASSERING CERTAIN PRIV. When it comes to freedom of speech- FAIR COMMENT ON MATTERS OF PUBLIC CONCERN - CL said that even what said is not true and P has made elements of CoA, D can still avoid jury by showing that comment was about something very important. WE WANT TO ENCOURAGE discourse on matters of public matters, self-censorship is not taking place.This was the MINORITY UNTIL TIMES AND SULLIVAN (8) P Public Official-NY Times Test-must show: (a) Defamatory meaning (b) Publication (c) Colloquium (d) Malice (e) Knowledge that false-(its a lie and you know it!) (f) Reckless disregard for the truth-entertained serious doubts as to the truthfulness of the publication. (i) (1) NY Times failed to do research about some of the info negligence! (ii) (2) Times did retract when gov asked them too, but not Sullivan , but a failure to retract is not proof of malice. (9) Public figures-Times expanded to include figures too. (a) A public official suing for libel has to prove that the statement was made with actual malice- the first malice uttered knowing it was false or with reckless disregard of the truth or falsity of the truth of the statement uttered. (b) o N does not suffice (they were careless they could have done some fact checking- but stipulated N is insufficient as a matter of con law) P has failed to show reckless disregard (higher than N) and did not show published intentionally knowing they were false. (c) o Fault has come in (d) Curtis and Rosenbloom v metro media(875-4-5) i) Times rule of malice would be extended to all P as long as it was public or general interest. **This was overruled in Gertz (e) What is a public figure? s/o who thrusts himself into the public eye. (i) Has achieved such pervasive fame or notoriety that he becomes a public figure for all purposes and contexts (ii) Voluntarily assumes a central role in a particular public controversy, so is public figure for that limited range of issues. (iii) What justifies doing this to public figures? 1. They gave greater access to the media-they can go back on and deny it 2. Voluntarily and knowingly subject themselves to the media. (iv) It is an utterance assessment that is important, and not the status category. 1. (1) looks at the nature of the remark itself and its probable effect on the audience 2. (2) If the utterance being sued upon is a matter of public concern, then regardless of the status of the P, P will be held to the Times standard. (10) Private Person: (a) Matters of Public Concern-there are 2 restrictions on the P: (i) Liability w/o fault is prohibited. (ii) Where the statement had defamatory potential apparent to the reasonable person, must show that the D permitted the false statement to appear, if not through malice, then at least through negligence. (iii) SC left open the Q whether need to show fault where need extrinsic evidence to show defamation, libel per quod. (iv) Restricts recovery of presumed or punitive damages 1. Where the D was negligent actual damages (not presumed damages) a. (a) Need to bring competent evidence to show the reputation or emotional (mental anguish and suffering) damages suffered 2. (2) Where D was malice recover whatever state law allows (presumed or punitive 3. Gertz v Robert Welch Inc-private person but public concern a. (1) P is representing the boy who was shot by a cop and D published that part of communist scheme to overthrow police and that had a criminal record in the police dept on file. b. (2) The Gertz court holds that: i. States right: protect reputation, so dont need to show fault, but need to show negligence rather than malice where is a private individual. ii. 1st amendment: liberation of speech (v) On an issue of public concern where private person suing the media, the Ps burden may be less than the Times burden of malice and it is up to the state to determine that burden as long as it does not go back to SL. (i) Most states have gone down till negligence. (vi) Matters of Private Concern i) Where it is a private person and private concern, then regular defamation case and presumed damages may be recoverable regular common law case.

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