Torts Outline

Tort = a civil wrong for which a remedy may be obtained, usually in the form of money damages

I. Intentional Torts

Intent to bring about the natural and probable consequences of an act (not intent to do harm) must
be present in order to give rise to an Intentional Tort. (i.e. the balls escaping the cricket grounds
not the injury must be intended) The purpose of an intentional tort is to avoid the discussion of
foreseeability and make it easy for P’s to win by escaping the burden of proving reasonableness/
intent of the D. P MUST PROVE LACK OF CONSENT.

Battery = an intentional and offensive touching of another without lawful justification (aka
tortious battery); ‘intent to touch’; designed to protect people’s physical integrity and psychic
harmony

Prima Facie Case

1. Touching (offensive)
2. Intending to touch
3. Lack of consent

Mohr v. Williams (p.12): ear surgeon operates without consent. Rule: If the surgery
was performed without consent and was not absolutely necessary at that time, it
was wrongful and therefore unlawful, so Dr. is liable.

Vosburg v. Putney (p. 4): one student kicks another while in class. Rule: Not all
invasions of one's bodily integrity give rise to tort claims. Otherwise liability
would be strict, as opposed to being based on some notion of fault. Student’s kick
was a violation of order and decorum of the school and is therefore unlawful, so
kicker is liable.

Offensive Battery = does not cause physical harm, but is hostile and without victim’s
consent, such as poking someone with a finger in anger, angrily knocking off someone’s hat,
spitting in one’s face, cutting someone’s hair, even unwanted kiss; protects physical
integrity/psychic harmony; un-consented to touching; knowledge that the unpermitted
conduct has taken place is not necessary to establish offensive battery.

Alcorn v. Mitchell (p.65): appellant spits in the face of the appellee in front of full
court. Rule: Any reasonable person would have been offended; punitive damages
may be assessed for highly offensive conduct to provide an alternative redress to
physical retribution.

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Transferred Intent (Battery): When attempting to cause harm to one person, you
inadvertently cause harm to a third person. Actor will be held liable. (i.e. A throws a rock at
B and C is injured; A is liable to C.) The intent to touch remains a constant regardless of the
target.

Thin-Skulled Plaintiff Rule/Eggshell Rule: If you are liable for damage, you are liable for
ALL/FULL PHYSICAL DAMAGES, even if the victim is somehow extra frail;

Assault = the threat or use of force on another that causes that person to have a reasonable
apprehension of imminent harmful or offensive contact/invasion of their privacy/integrity;
the act of putting another person in reasonable fear or apprehension of an immediate battery
by means of an act amounting to an attempt or threat to commit battery; ‘intent to frighten’

Prima Facie Case

1. Imminent apprehension/fear of harm to one’s own body
2. Intent to cause apprehension/fear
3. Lack of consent
4. Victim must fee apprehension/fear (varies; functions to
reduce the scope of liability)

I. De S. & Wife v. W. De S (p.61): D struck at P’s wife with a hatchet but missed. Rule: An
act, which causes another to be fearful of a harmful or offensive contact is known as an
assault, and the P may recover damages, even though there is no actual physical contact
or physical harm.

False Imprisonment = a restraint of a person in a bounded area without justification or

consent (applies to private and governmental detention)

Prima Facie Case

1. Act or omission of confinement to a bounded area
2. Against P’s will; P must be aware of it
3. No Justification/consent
4. Length of time period is immaterial

Bird v. Jones (p. 67): P was prevented from proceeding on a public highway,
that was closed to permit spectators to watch an event. Rule: There is no false
imprisonment where the party has a way out of his partial confinement.

Coblyn v. Kennedy’s, Inc. (p. 71): P was detained by an employee of D who

suspected P of shoplifting. Rule: 1) If a man is restrained in his personal liberty by fear of
a personal difficulty, it amounts to false imprisonment. 2) If a shopkeeper has
reasonable grounds to believe a person has committed or is attempting to commit
larceny of goods for sale on the premises, he may detain that person in a reasonable
manner for a reasonable length of time.

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Intentional Destruction of Personal Property =

Prima Facie Case

1. Destruction of P’s personal property (does not apply to real
property)
2. Intent
3. Lack of consent

Intentional Infliction of Emotional Distress= intentionally or recklessly causing another

person severe emotional distress through one’s extreme or outrageous acts

Prima Facie Case

1. Intent to cause
2. Severe emotional distress
3. Lack of consent
4. Outrageous/shocking behavior to the social
conscience(varies)
5. Victim does experience severe emotional distress
(varies)

D’s conduct was intentional and sufficiently extreme and outrageous to be likely to produce a strong
emotional response in a normal person. There is sufficient assurance that the alleged harm is real
together with a strong public interest in deterring such conduct. P’s emotional response must be
severe. If emotional anguish is great, courts will allow the action regardless of whether there is a
physical manifestation of the mental suffering or bodily harm. 2nd Restatement: conduct must be
intolerable, and not merely insulting, profane, abusive, annoying or even threatening. It must go
beyond all reasonable bounds of decency, unless D is aware of P’s super-sensitiveness. Mere verbal
abuse, name-calling, rudeness, and threats are generally not actionable.

Defenses to Intentional Torts:

A. General: D eliminates one of the prima facie elements of the case = P loses
B. Affirmative: D says ‘Yes, I did it but for good reason….’
(Both can be employed by one D)

1) Consent (violenti non fit injuria): one who consents cannot receive an injury; it can be expressed
or implied; it must be legal consent

Hudson v. Craft (p.43): unlicensed boxing. Rule: consent can’t be given because the match
is illegal (designed to protect the boxers).

Medical emergency would imply consent

2) Self-Defense: force used must be reasonable and in like kind to offense (i.e. If
someone punches you, you can punch them back. You can’t blow them away with a
sawed off shotgun); the most recurrent issues here are: who struck first & was the return force

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 excessive under the circumstances; D must raise it and the P must prove that the D’s actions were
either not self-defense or excessive

Courvoisier v. Raymond (p.54): shop owner attacked by mob shoots cop. Rule: An action of
force is justified by self-defense whenever the circumstances are such as to cause a
reasonable man to believe that his life is in danger or that he is in danger of receiving
great bodily harm and that it is necessary to use such force for protection.

3) Protection of Property: reasonable force may be used to thwart theft of irreplaceable/ priceless
property; response must be like in kind; as the value of the property increases so too does the
acceptable level of force to protect it

M’Ilvoy v. Cockran (p. 64): (Δ) physically injured someone to stop him from
knocking his fence down. Rule: unless physical force was used in order to knock down fence
(i.e. punching the (π) in the mouth to get him out of the way), physical force can’t be used to
stop him. Deadly force may not be used to protect possessions (as the value of the
possession increases so to does the level of acceptable force).

4) Insanity: is never a defense b/c it is better to protect/preserve victim’s right to recover.

McGuire v. Almy (p. 50): Nurse is injured by her insane patient. Rule: An insane person
may be capable of entertaining the intent to commit a battery; the loss is better borne
by the actor than the victim; liability will encourage closer surveillance by custodians;
insanity is easily feigned.

5) Public Necessity: protection of the general public is better than to have one person suffer
1. (respublica 76)

6) Private Necessity: a privilege created in the event of trespass to avoid serious harm, coupled with
an obligation to pay for damages (i.e. trampling someone’s roses to escape an attacker)

Ploof v. Putnam (p.68): property lost and family injured when boat is untied
during a storm. Rule: Necessity justifies trespass.

Vincent v. Lake Erie Trans. Co. (p.52): wharf damaged when D tied boat to it
during a storm. Rule: Public necessity may require the taking of private property for
public purposes, but our system of jurisprudence requires that compensation be made.

7) Discipline: parents have the privilege to discipline their children by force or

confinement to the extent that they reasonably believe necessary

8) Privilege: police, firemen, Good Samaritans – good or earnest faith test used here to encourage
Good Samaritans to act instead of failing to act for fear of liability; consent can be
implied/inferred from emergency situation

9) Immunity: D is not eligible to be sued (i.e. inter-family and diplomatic immunity)

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10) Justification: aka sufficient provocation; fighting words/spitting in someone’s face; esp. for
trespass
II. Negligence

All persons are under a duty to conduct themselves in all of their diverse activities so as not to
create unreasonable/ foreseeably probable risk of physical harm to themselves and others. The
actor does not desire the injurious consequences of his/her conduct, instead he/she does not know or
expect that they are substantially certain to occur. There is merely a risk of such consequences - -
unlike an intentional tort. If the P can’t prove negligence, P eats the loss.

Prima Facie Case (duty, breach, causation, damages)

1. Reasonable foreseeablity of the risk
2. D fails to take reasonable care in light of the risk
3. D’s actions caused P injury
4. Damages – can be physical or psychological

When a duty is owed to others:

1. When there is a special relationship (i.e. innkeepers to guests, common carriers to

passengers)
2. When there is a contractual duty – where there is reliance or elements of consideration, a
contractual relationship exists so as to legally impose a duty to act or prevent harm
3. When there is an assumption of aid/risk on a social venture – if one voluntarily starts to
help another, the person voluntarily enters into a relationship and is thus responsible for a
failure to provide reasonable care
4. No duty to inspect one’s own property

Foreseeablity = the quality of being reasonably anticipatable.

Stone v. Bolton (p. 138): P was injured when a cricket ball escaped field and hit her in the
head). Rule: The happening of a known risk, even if extremely slight, is actionable since
the injury was foreseeable.

Hammontree v. Jenner (p. 148): D had an epileptic seizure while driving and
injured P. Rule: A sudden illness, which renders a driver unconscious will not be
grounds for an action in negligence or strict liability. However, if illness or risk of
illness is known, D is liable. In this case, the last seizure was 20 years prior therefore the
risk was not reasonably foreseeable.

Scott v. Shepherd (p. 98): D threw a lighted torch into a marketplace to avoid
injury, it was subsequently thrown by others and eventually scorched the P. Rule: A party
will be liable for setting forces in motion, which are likely to cause injury of a sort and
do cause injury even though the force is diverted by another.

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Reasonableness/Standard of Care = reasonable, adequate, satisfactory care so as not to create
unreasonable risk for self or others; not all possible care; aka Reasonably Prudent Person
Standard (RPP) – a conceptual construct; we look at a group of regular people and ask what
they would normally do under similar circumstances; we don’t use subjective standards
(where the reasonableness of a person’s behavior is judged in terms of what is reasonable for
him in light of his ability) in the interest of administerablity, consistency, and predictability.
Statutes/regulations help to establish/define reasonable care (i.e. speed limit).

Blythe v. Birmingham (p. 179): Extraordinarily severe frost caused a fireplug owned
by D to flood the property of P. Rule: Negligence involves the creation of an
‘unreasonable’ risk, by an act or omission, which a reasonable and prudent person
would not create. In this case, D was not found negligent because reasonable (not
all possible) care was taken.

Eckert v. Long Island R.R. (p. 196): P gets his by train while trying to rescue boy he
thinks is in danger. Rule: It is not negligent to attempt to save the life of another
unless, to attempt to do so, is either rash or reckless. The value placed on human life
justifies the risk in this case. Care may be reasonable even when in danger
because even great risks can be outweighed by a great benefit. (Contributory
negligence case – this is not contributory negligence, which LIRR tried to raise the
defense)

Osborne v. Montgomery (p. 201): jury instruction gives no definition of how to

determine whether a risk was reasonable. Rule: To determine whether a risk is
acceptable, the value of the social interest involved should be balanced against the
risk created. Reasonable care is normal, ordinary care.

Cooley v. Public Service Co. (p. 203): P is injured while talking on the phone during a
thunderstorm because power lines were hung over phone lines (to protect pedestrians)
and fell. Rule: Where danger to two classes of persons cannot be simultaneously
guarded against, only the most immediate and injurious risk need be protected. It’s
okay to run a risk if the alternative is even riskier.

United States v. Carroll Towing Co. (p. 206): D’s barge attendant abandoned it for
approx. 21 hours, during this period it broke loose and struck the P’s barge causing it
to sink. Rule: There is a duty of care to protect others from harm when the
burden of taking adequate precautions is less than the product of the probability
of the resulting harm and the magnitude of the harm = Learned Hand’s
Formula:

Burden < (Probability)(Loss) = negligence

Burden ≥ (Probability)(Loss) = no negligence/liability

Where: (Probability)(Loss) = expected loss

Burden = cost of prevention and is the easiest part to quantify

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 This formula, aka the ‘calculus of risk’, is flawed because B is, in reality, more than
just the loss. Must maintain the recognition that the measure of the reasonableness of
the risk revolves around the specific circumstances of the situation. Conduct is
relative to the particular occasion and need. This is the first time reasonable care
standard has been expressed algebraically. In this case, the risk of injury was so
high and the cost of the alternative method so low that the D’s conduct was
considered a breach of his duty to act reasonably. In other words, D is found
negligent.

Sudden Emergency Doctrine-

Lyons v. Midnight Sun Transportation-(215) Truck driver, Jette, hit a VV driven by Esther
Hunter-Lyons as she exited a driveway. He swerved to not hit her, but he broadsided her
anyway. Plaintiffs said that he was going too fast. Defendants argued that steering to the left
when a vehicle pulls in front of you is a normal reaction and is generally the safest course of
action to follow. Jury found that the negligence of Jette was not the legal cause of the
accident.

Vaughan v. Menlove (p. 155): D’s hayrick burst into flames and the fire spread to P’s
cottage. Rule: The level of care is determined by what a reasonably prudent man
would do in similar circumstances. Here, the D should have heeded the warnings and
tended to his hay in order to avoid the risk of fire. Ordinary care is required as per
the RPP standard not per ‘what would this one dumb guy do in this
circumstance’.

Andrews v. United Airlines (p. 216): P is injured when overhead luggage falls and hits
her on the head. Rule: Even a small risk of serious injury to passengers may form the
basis of a common carrier’s liability if that risk could be eliminated consistent with
the practical operation of airline travel. Common carriers owe a higher duty to
passengers than the ordinary standard of care, which is almost as high as strict
liability, except that the P must prove that something wasn’t done or could have been
done or done better.

Special RPP’s = constructed to avoided holding individuals to standards that they can’t meet;
(these individuals are held to the standards of a reasonably prudent person of like age,
maturity, and experience (i.e. a reasonably prudent 9 year old). Still an objective view and
based on esp. administrability and fairness but also deterrence, etc.; used for:

1. Children – done to encourage them to do better except when engaged in an adult

activity; parents are not resp. for their children’s negligence
Roberts v. Ring (179)-Roberts seeks damages against Ring for an injury from an automobile
accident in which Ring a 77 year old man hit Roberts a 7 yr. old boy. Courts said that the
Child as to be held to the test of other children of his age and that accdg to this standard the
child was not negligent. The courts found the old man negligent for not stopping the car in
time.
2. Physically Handicapped (i.e. the blind)
3. Experts (i.e. race car drive who gets into an accident)

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4. Dangerous Activities (i.e. skydiving) although dangerousness is just one criterion
in determining whether to use RPP or Special RPP

Daniels v. Evans (p. 165): 19 year-old motorcyclist crashes into a car and dies. Rule:
When a minor undertakes an adult activity, which can result in grave danger to
himself and to others, he is held to the same standard of care as the average
prudent adult.

*McGuire v. Almy (p. 185): nurse is attacked by insane client. Rule: An insane
person may be capable of entertaining the intent to commit a battery and
therefore should be judged within the context of the RPP.

*Breunig v. American Family Insurance Co. (p. 185): D is overcome with a sudden
state of insanity while driving and crashes into P. Rule: A person seized with a
sudden mental disability for which he had no warning will be excused from the
general rule holding an insane person liable for his negligence.

(Note: Most metal incapacities are held to RPP not Special RPP.)

Fletcher v. City of Aberdeen (p. 190): D’s employee negligently removed a barrier
around a ditch and P, who is blind, fell in. Rule: A person who is infirm is held to
that degree of care as would be exhibited by a reasonably prudent man suffering
the same infirmity in the same situation.

Quintal v. Laurel Grove Hospital (Handout #2): Kid is a vegetable after going for eye
surgery. Rule: Specific behavior has to be found negligent, for example, failure to
have an emergency plan. Case also shows the need for expert testimony to judge
another expert’s behavior against that of other experts.

Lucy Webb Hayes National Training School v. Perotti (Handout #2): P jumps through
glass window in mental facility and dies. Rule: Hospital has a higher standard of
care (they held themselves to higher standard by setting up the safety
precautions/protocols that they did and advertised them) and failed to meet it. If
they had not set such a standard, expert testimony would have been required to
establish what the standard was.

Custom = used to set the standard of care to reduce the uncertainty created by “reasonable
care” standard. It can function as both a shield (i.e. D is not negligent because he/her actions
conformed to the industry standard), which is binding (only in medical malpractice cases
now) and a sword (i.e. P says D is negligent because his/her actions do not conform to the
industry standard), which is admissible but not binding. It is one place we look to establish
what care is reasonable (RPP is another).

Mayhew v. Sullivan Mining Co. (p. 223): P is hurt when a hole was placed in his work
platform without his knowledge. Rule: If the risk is created by industry and wholly

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 understood by laypeople, then custom cannot be used as a shield against liability.
Here, the unmarked hole is so careless it cannot be protected by custom.

TJ Hooper (p. 224): Tugboats were damages and cargo was lost in a storm because
they were not equipped with radios (argued that it was not the industry custom) and
therefore were not warned of the impending doom. Rule: Regardless of the custom
of an industry or trade, a D will be held liable if his actions fall beneath the
standard of the average man. (D tries to use custom as a shield but fails – this is
not a custom case proper)

Lama v. Borras (p. 211): P alleges that D was negligent in failing to administer
conservative treatment program prior to resorting to surgery. Rule: In a medical
malpractice case, the P must show that the D’s treatment fell below the standard
of care applicable to the general practitioner, resulting in his injury. Standard of
care here is the degree of knowledge and skill possessed by Dr.’s in good standing in
the community and under similar circumstances. (P tries to use custom as a sword
and wins)

Titus v. Bradford, B. & K. R. Co. (p. 221): P was killed when a broad-gauge boxcar
that the D had set on its narrow gauge track became loose. Rule: Above practice is
dangerous but it is the industry standard and is therefore reasonable and not
binding (D uses custom as a shield and wins)

A standard of a profession that cannot be understood/is inherently unknown by lay people

(DOES NOT APPLY TO MEDICAL CUSTOM – CANNOT BE USES AS A SWORD FOR
MEDICINE EITHER AS IT DISCOURAGES INNOVATION); practice must be so
widespread that it is almost universal among a school quantitatively; custom is what people
do do because it is relevant to what they should do. Judge decides how custom is treated:

PIKE V HONSINGER

If a dr using his expertise and judgement picks the best approach, he cannot be found
negligent even if there is a better way.

1. Binding – because it really is a reasonable custom and is universally followed

(experts cannot testify that something else should have been done)
2. Admissible but not binding – P can get expert testimony to prove custom
3. Inadmissible – it is something that everyone in society knows about, its not
unique to that industry (i.e. how parents name their kids - - a boy named Sue)

P cannot bring in evidence/expert to show that the custom is bad. A jury cannot contradict
the experts when they agree but can choose a side when they disagree. Custom is almost
never a shield today except in medical malpractices.

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Res Ipsa Loquitur (RIL) = ‘the thing speaks for itself’; In some circumstances, the mere fact
of an accident’s occurrence raises an inference of negligence so as to establish a prima facie
case; it is only used if you have nothing but circumstantial evident to prove causation
(towards negligence) and shifts the burden of proof to the D; NEVER has anything to do with
what happened in the particular case instead, is has to do with what happens in that TYPE of
case; may require expert testimony

Restatement 2nd:

1. It may be inferred that the harm suffered by the P is caused by the negligence of
the D when:
a. The event is of a kind which ordinarily does not occur in the absence of
negligence;
b. Other responsible causes, including the conduct of the P and 3rd persons,
are sufficiently eliminated by the evidence (this facet is case specific); and
c. Injury must be cause by an agency or instrumentality within the exclusive
control (only has to be effective control; i.e. bar owners & stools, hotel owner
& furniture) of the D
d. The indicated negligence is within the scope of the D’s duty to P

(Note: A, C, and D are the main facets. B is often overstated)

2. It is the function of the court to determine whether the inference may be

reasonably drawn by the jury, or whether it must be necessarily drawn;
3. It is the function of the jury to determine whether the inference is to be drawn in
any case where different conclusions may be reasonably reached

Three Effects of RIL:

1. Creates an inference of negligence (in the absence of non-circumstantial proof)

2. There is a REBUTTABLE PRESUMPTION; once RIL is proved the burden of
proof is on the D to put on evidence to prove otherwise
3. The burden of proof is shifted to the D as to exclusive control

Byrne v. Boadle (p. 299): P was walking along the street, passing D’s shop, a barrel
fell from the shop window and struck P, injuring him. Rule: When it is highly
probable that an injury is due to the negligence of the D, and the D has better
access to the evidence concerning the injury, the doctrine of res ipsa loquitur
creates an inference that the D was negligent, and puts the burden on D to
introduce contrary evidence. Circumstancial evidence – it was the def's
workers, that is why res ipsa loquitor

Wakelin v. London SW Ry (p. 283): car crossing train tracks is hit by train but no
witnesses. Rule: Court rules element #1 not met because sometimes cars hit
trains.

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 Larson v. St. Francis Hotel (p. 286): chair flies out of hotel window and hits a
bystander below. Rule: Court rules chair was not within the exclusive control of
the hotel owner.

Colmenares Vivas v. Sun Alliance Ins. Co (p. 307): P suffered injuries while riding an
escalator insured by D. Rule: The control requirement of the doctrine of RIL is
satisfied where the D is ultimately responsible for the agent or instrument
causing the injury.

Contracting Parties-Can not shift by contract its responsibility for keeping an area used by the public in a
safe condition.
Colmenares Vivas v. Sun Alliance Insurance Co. (307) Accident suffered while riding an
escalator; Sun Alliance is the liablility carrier for the Puerto Rico Ports Authority who
controls Luis Munoz Marin International Airport. Sun Alliance tried to say that b/c they
contracted out the maintenance of the escalator to Westinghouse that they were not liable.

Benedict v. Eppley Hotel (p. 313): P injured when broken chair she was sitting in
collapsed. Rule: Hotel did not have exclusive control of the chair because she had
already been sitting in it for half an hour; effective control is not enough.

Ybarra v. Spangard (p. 316): P suffered an injury to his right arm and shoulder while
he was unconscious having his appendix removed under the care of six doctors and
medical employees (Ds). Rule: Where an unexplained injury occurs during a
medical procedure to a part of the body not under treatment, RIL applies
against all of the Drs and medical employees who take part in caring for the P –
argument bolstered by policy arguments. Res Ipsa Loquitor allows the inference
of negligence when the evidence is circumstantial.

Negligence Per Se = “It IS negligence!”; one more way of proving that D did not use
reasonable care, by violating a statute, or vice versa - D says he did use reasonable care.

Restatement 3rd:

An actor is negligent if, without excuse, the actor violates a statute that is designed to
protect against the type of accident that actor’s conduct causes, and if the accident
victim is within the class of persons the statute is designed to protect.

Prima Facie Case

1. Violation of safety statute, which exists to protect others
(applicable to someone in the position of the P’s class)
2. Statute’s purpose must be safety (to protect people)
3. Statute was meant to protect a class of people to
which the P belongs
4. Statute was designed to protect against P’s injury
5. The violation was the proximate cause of P’s injury

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Examples: 1) driver’s blood alcohol level is substantially above the legal limit and he/she is
not wearing a seatbelt; driver hits someone; 2) keys are left in the ignition outside of a school
and someone steals the car then hits a 3rd person, the owner of the car who left the keys in
that car can be held liable whereas, D would not be liable if the car was left in his/her
suburban driveway granted that there is a statute prohibiting keys being left in cars near
school to prevent thefts and accidents.

Osbourne v. McMasters (p. 265): Contrary to statutes, D (a pharmacist) sold an

unlabeled poison to P and P died. Rule: The breach of a statutory duty (i.e. duty of
pharmacist to client) to a member of the protected class is negligence per se.

Stimpson v. Wellington Service Corp. (p. 247): D drove a 137 ton rig over city streets
without having obtained the needed statutory permit, the weight dislocated and broke
the pipes leading to P’s building, flooding the premises. Rule: There was a
secondary purpose of the statute to protect the pipes under the streets and the
adjacent homes therefore, D is negligent per se.

Martin v. Herzog (p. 270): P’s descendent was killed in a collision between a buggy
he was driving and D’s car, P was driving the buggy without the lights on – in
violation of a criminal statute requiring lights. Rule: The unexcused omission to
perform a statutory duty is negligence per se.

Tedla v Ellman (p. 271): P walks on the wrong side of the road, according to statute,
and is hit by a speeder. Rule: An example of the court applying a customary
exception to a statute to relieve the P of a charge of contributory negligence per
se (used to be a total bar to recovery).

Telda v. Ellman (271) Accident where Πs (Girl and deaf mute brother) walking on
the wrong side of the road. Hit by a car and brother died. Statute says that you
should walk on the left side of the road that faces on coming traffic. Common Law
has said that it is ok to walk on the right side when the traffic on the left is heavy. The
plaintiff was not contributorily negligent. Violations of statute may be excused by
necessity or emergency or by reason of incapacity. Lehman J. applied the exception
to the statute for the benefit of the plaintiff. Example of the court bending over
backwards to protect the people

Ross v. Hartman (p. 257): D’s truck was left unattended with the key in the ignition
by his employee – in violation of a traffic ordinance; and it was stolen by an unknown
party who negligently ran over P. Rule: When a statute provides that under certain
circumstances, particular acts shall or shall not be done, it may be interpreted as
fixing a standard for all members of the community, with deviation there from
amounting to negligence per se.

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Defenses:

1. Statute wasn’t designed to protect this kind of victim

2. Statute wasn’t meant to prevent this kind of injury/damage (i.e. man killed by
falling radiator in an elevator shaft, P says D violated the statute for placing door around the
open shaft, court says the statute is intended to protect people from falling down the shaft not
from being hit by things falling down the shaft)
3. Some states write into the statute that it can’t be used to establish negligence per
se

Exception: You may violate the statute if it is safer to do so.

Dram Shop Act = A statute allowing a P to recover damages from a commercial seller of
booze for the P’s injuries, which were caused by a customer’s intoxication. (i.e. two
customers in the bar, one gets WASTED, the other drinks Pepsi, the both leave at the same
time, wasted customer crashes into Pepsi drinker, Pepsi drinker can sue bar owner.)The bar
owner is held strictly liable since we cannot determine whether or not they were
reasonable in serving the booze. Puts the burden on the people selling the booze. The only
defense is that D didn’t sell booze at all or that the drinks D sold to P did not put him/her
over their tolerance limit. Many states have extended this to caterers and hosts of private
parties.

Vesely v. Sager (p. 278): D, the owner and operator of a bar served D large quantities
of alcohol enabling D to become excessively wasted, D drove his car into P’s car
causing injury. Rule: A tortfeasor is held answerable for the injuries, which result
in the ordinary course of events from his negligence, and it is sufficient if his
negligent a conduct was a substantial factor in bringing about the injuries.

(Note: If 3rd party goes to and drinks at 10 bars, P would sue the last bar he drank at – it is
easier to prove that he was over the limit by the last one. However, it is not impossible to get
back to and sue one of the earlier bars. Testimony of a witness who might say he was
weaving after the 3rd bar may help to that end.)

Respondeat Superior = An employer is responsible for the negligent and intentional acts of
his/her employees, as long as the act grows out of the work he was involved in, even if the
employer did nothing wrong him/herself. The reason for this is that employers usually have
insurance and deep pockets, whereas employees are usually broke or close to it.

Osbourne v. McMasters (p. 245): Contrary to statutes, D (a pharmacist) sold an

unlabeled poison to P and P died. Rule: 1) The breach of a statutory duty (i.e. duty of
pharmacist to client) to a member of the protected class is negligence per se. 2)
Pharmacy owner is liable for the full damages.

13
Exception:

Frolic and Detour Doctrine: if the accident occurs outside of the overall relationship between
the employer and the employee, the employer can get off the hook (i.e. bakery driver hits
someone while taking a detour to his girlfriend’s house).

Causation:

The causing or producing of an effect/result (P must prove and have a legally valid reason for
shifting the loss) aka Cause-in-Fact/Legal Cause

1. But-for Cause = necessary but not sufficient to prove causation of the injury by
itself; P must show that the injuries were the result of the D’s uninterrupted actions and that
those actions were the substantial contributing cause of them; the injury wouldn’t have
happened but for D’s negligence;
a. Exception: when the harm would have occurred had the D not so acted/ P
is unable to prove that the harm was more likely than not caused by D’s negligence

Dillon v. Twin States Gas & Electric (p. 487): P’s son lost his balance while
trespassing on a bridge and then grabbed onto D’s high-voltage wires as he fell – the
current killed him not the fall. Rule: D’s negligence was only in exposing P to the
wires. P’s own trespass exposed him to a certain fall, which in and of itself would
have killed him. D did not cause the injury.

NY Central R.R. v. Grimstad (p. 451): P’s husband, captain of the barged owned by
D, fell into the water and drowned. The boat was not equipped with life preservers,
and the victim did not know how to swim. Rule: A negligent party is liable only for
those damages, which were actually caused by his negligence and can be proved
by a preponderance of the evidence.

*Burden Shifting To Determine Causation:

The court tries to help the P by shifting the burden of uncertainty to the D(s), WHEN
IT IS MORE LIKELY THAN NOT THAT THE P’S INJURY WAS THE RESULT OF
TORTIOUS (SPEC. NEGLIGENT) BEHAVIOR. Factors that aid the court in so
doing:

Haft v. Lone Palm Hotel (p. 454): Father and Son drown after hotel fails to post
statute-mandated ‘no lifeguard on duty’ sign or provide a lifeguard. There were no
witnesses to the incident. The burden is shifted to the hotel because they created the
uncertainty, and it was foreseeable that an accident could happen. The burden of
proof is on the D to show that the Ps would have died even if there were a lifeguard
there.

14
 Zuchowicz v. United States (p.455 ): P brought suit against the D, alleging negligence
in prescribing an overdose of Danocrine, thereby causing her to develop primary
pulmonary hypertension. Rule: Where a negligent act increases the chances that a
particular type of accident would occur, and such an accident does in fact occur,
a court may conclude that the negligent conduct was the cause of the injury.
Court shifts the burden to the D to show that the overdose did not cause the
death.

Herskovits v. Group Health Corp. (p. 470): P died of lung cancer after his chances of
survival were reduced from 39% to 25% by D’s late diagnosis of his condition. Rule:
A D’s conduct that increases the risk of death by decreasing the chances of
survival is sufficient to take the issue of proximate cause to the jury. Court finds
the D liable because their negligent was ‘more likely than not’ the cause of P’s
death.

∆ can be liable for damages if the π can show that the ∆'s negligence caused a
statistical reduction in the chances of the π's survival.
The majority reasoned that the ∆ deprived the π of a significant chance to recover. To decide
otherwise would give the doctors a blanket release from liability whenever the patient's chances
were less than 50%, regardless of how flagrant the negligence.

Kingston v. Chicago & N.W.R.Y (p. 477): Sparks from a train united with a fire of
unknown origin to destroy P’s property. Rule: A party causing a fire, which united
with another man-made fire is liable for all damages caused by the united fires.
Burden is shifted to D(s) to prove they didn’t cause it/it wasn’t man-made.

Kingston v Chicago &NW Ry. (477) 2 fires-one NE and one NW. NE fire caused by the RR
sparks from the locamotive. This fire constituted proximate cause. The NW fire is of
unknown origin also was proximate cause. Union of the 2 fires 940 feet north of the Plaintiffs
property. RR negligent for damage of both fires. Well established principles of negligence-if
the origin of the NE fire is known, the railroad, and the destruction of the property is known
to be from the fires (2) the court can find the known fire originator liable for the entire
damage. The burden of proof for the plaintiff would be too great to identify the origins of
both fires. The fact that the NE fire was set by the RR company, which fire was a proximate
cause of plaintiff's damage, is sufficient to affirm the judgment.

b. If you haven’t created a foreseeable risk, you aren’t negligent

c. If the D’s negligence directly causes the injury, the act is the cause in fact
not proximate cause
Substantial
i.
Contributing
Cause = 2. Substantial Contributing Cause = the cause without which the event could not
Cause in Fact
have occurred; this rule is used in cases where the but-for test would allow D to escape
liability because other causes contributed to the accident
Cause ini.Fact
+ Proximate
Cause =
successful 15
lawsuit
 3. Proximate Cause = A cause that is legally sufficient to result in liability; a cause
that directly produces an event and without which the event would not have occurred; deals
with how much responsibility for damages a tortious D should be liable for;
a. Two tests to determine Proximate Cause, which are often combined/ used
interchangeably and use varies between jurisdictions
i. Directness Test – liability extends to any harm that flows in an
unbroken stream from D’s negligent acts, no matter how unforeseen the damage was at the
time the D engaged in the risky conduct; (CA)
a. Factors in Measuring Directness:
i. Closeness in time
ii. Closeness in space
iii. Factors outside of the D’s control (i.e.
weather/acts of god)
iv. Badness of the risk
v. No one factor is the deciding factor

In Re Polemis & Furness, Withy Co. (p. 497): P chartered their ship to D’s business,
one of D’s servants dropped a plank in the hold where benzene

as stored causing the ship and its contents to be destroyed by fire. Court finds that D
created a foreseeable risk and failed to take steps to avoid it. Rule: Once the
negligence of a party has been established, he may be held for liable for all of the
consequences, foreseeable or not, of his conduct. Here, D found liable for damage
caused by fire but not cost associated with ships delay as it was found to be remote. If
someone commits a tortious act, he/she should be liable for all of the direct
consequences of that act.

ii. Foreseeability Test – liability extends only to damages that were or

should have been foreseen by the D at the time the risk was created; used to determine if
there was a supervening cause; leaves people seriously injured with no recourse and no $
when their injuries were not foreseeable to the D; (NY)

Wagon Mound #1 (p. 536)Overseas Tankship (D) v U.K. Ltd. V. Morts Dock &
Engineering Co. Ltd. (P): D’s ship leaked oil into the surrounding waters, knew it,
and just left. Oil moved to P’s ship where an employee checked around and was
informed that the oil would not be flammable then told workers to continue welding.
Sparks from welding caught onto some rags then the oil and ignited a fire, which
damaged P’s ship. Rule: Harm was not foreseeable, foresight of the reasonable
man determines responsibility (foreseeability test).

1. 3 Classes of foreseeablity:

16
a. Damages resulting from misconduct are so typical
that judge and jurors cannot possibly be convinced that they were unforeseen
b. Freakishness of the facts refuses to be downed and
any description that minimizes it is viewed as a mis-description
c. Between these extremes are cases in which
consequences are neither typical nor freakish and are arguably significant

Standards for Finding Foreseeability in Proximate Cause:

1. Sequence of events must have been foreseeable (most restrictive)

2. The actual consequences must have been foreseeable (Palsgraf)
3. Consequences of the same type and comparable magnitude must have been foreseeable
4. Consequences of a different type and comparable magnitude must have been foreseeable
5. Consequences of a different type and magnitude must have been foreseeable
6. Any harmful consequences to anyone must have been foreseeable (least restrictive)

Ryan v. New York Central R.R. (p. 497): P’s house was destroyed by a fire which
started when a spark from D’s train engine ignited a nearby wood shed. The fire
spread through several houses before reaching P’s. Rule: Damages can be awarded
only when the injury is immediate and not the remote result of D’s negligence.
Here, the spark was too remote. (Court used foreseeability to show remoteness.)

Berry v. Sugar Notch Borough (p. 502): While during the car in which he was a
motorman in excess of the speed limit, P was injured when a tree was blown down
and fell on the roof of the car. Court finds that the speeding was a substantial
contributing factor, as it did play a role in putting the car there at that time. But it
wasn’t the proximate cause, as there is no relationship between the speeding and the
accident (speeding didn’t cause it). Rule: A person’s right to recover for injuries
caused by the negligence of another is not automatically precluded because he
was violating some ordinance at the time he was injured.Plaintiff’s breach of a
safety statute was not causally connected with his injuries because it did not
increase the risk or hazard of being stuck by the tree. It is irrelevant that the
increased speed coincidentally landed Plaintiff under the tree.

Palsgraf v. Long Island R.R. (p. 501): P was injured on D’s train platform when D’s
servant helped a passenger aboard a moving train, jostling his package, causing it to
fall to the tracks. The package, containing fireworks, which exploded creating a blast
that tipped a nearby scale onto and injuring P. Rule: The risk reasonably perceived
defines the duty to be obeyed.

Cardoza (Majority/widens liability): Uses foreseeablity test; Only foreseeable

harms bear liability; D must take reasonable care to protect P/P’s class. This
distinguishes between liability and causation. no liability for harms that are
not foreseeable, no duty = no negligence

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 Exception: Thin Skulled P – D is liable for all personal injuries to the P even
if they are unforeseeable

Andrews (Dissent/restricts liability): Uses direct/remote test; there is a duty to

the public at large for any and all injuries, foreseeablity is not required.

Petition of Kinsman Transit Co. (p. 525): due to spring thaw huge ice cakes break
away and crash into and looses negligently tied boats causing them to collect at the
mouth of the dam, which was negligently kept closed. As a result the river flooded
everything including P’s home upstream. Rule: (Judge Friendly) The damage
(clogging of the dam) was foreseeable, so the D is liable for the damage done by
the negligently tied boat. D need not foresee the exact extent of the harm.

4. Superceding/Intervening Cause = An event that comes between the initial event in

a sequence and the end result, thereby altering the natural course of events that might have
connected a wrongful act to an injury and itself becoming the proximate cause; if it is
strong enough to relieve the wrongdoer of any liability, it becomes a superceding cause; it
cannot be an act of god, the D, or the P -it must be a 3rd party; if it was reasonably
foreseeable to the D then it is no longer an supervening cause and the D is still liable; if it
was not foreseeable, the D is usually off the hook however, sometimes in tough cases, the
court looks at other factors such as fairness and badness and finds the D liable;
a. Rescuers do not breach the chain of causation between tortfeasors and
victims, even if the rescuer if negligent – these risks are foreseeable (‘danger invites
rescue’).
b. The chain of causation is also extended to rescuers that are injured while
reasonably performing ordinary rescue efforts so, if a non-negligent rescuer is hurt, the D is
liable for that also

Wagner v. International Ry. (p. 512): P’s cousin was thrown from D’s train car and
car kept going for a while. P then got out went searching for the body and was
himself injured when he fell from the trestle. Rule: A party whose negligence has
caused harm of the risk thereof is liable to all persons who are injured in the
course of reasonable rescue attempts.

Pittsburg Reduction Co. v. Horton (p. 487): Kid finds blasting cap and trades them
with another kid. 2nd kid is injured. Rule: Trade among kids, parent’s opportunity
to confiscate, etc. function as supervening causes, time alone is not.

Oil Truck Driver Spills Oil: Negligent smoker ignites fire by dropping butt at gas
station, where truck driver has spilled oil. Rule: Accident was foreseeable so driver
is still liable. However, if smoker intentionally ignites the oil, he/she becomes a
supervening cause because it is not foreseeable to driver and the badness of the
smoker’s act will force the court to hold him liable.

Marshall v. Nugent (p. 532): D’s negligence created a car accident, which led to P’s,
who was not a party to the initial accident, injury. Rule: Liability of the negligent

18
 actor is confined to the harmful consequences that result from the natural course
of events triggered by his/her negligent act. D need not foresee the precise
manner of that which brings about the harm.

Wagon Mound #2 (p. 539): Same scenario, years later. Rule: This time engineer
should have known that the water could catch fire. Therefore, the welders were
a supervening cause and therefore liable. Foresight of a remote possibility of
harm may be sufficient to establish proximate causation.

Union Pump v. Albritton (p. 527): P was engaged in putting out a fire. After the fire
was out P climbed over some pipes to turn off a valve. On the way back she slipped
and fell. Rule: The risk created by the D had receded and the fire was no longer
threatening so, the P did not have to walk of the pipe. Her actions became the
supervening cause of her injuries.

5. Concurrent Cause = one of two or more causes that simultaneously create a

condition that no single cause could have brought about; an exception to but-for cause

Summers v. Tice (p. 485): 2 shotgun blasts fired by 2 Ds, P is hit by 2 shots
although it is unknown as to which person, or both, fired the striking shots. Rule:
Both were negligent and the injury resulted from this negligence, so both are
liable (burden shifts to Ds to fight amongst themselves).

Negligence Defenses:

A) General: attempt to defeat one of the prima facie elements

B) Affirmative: ‘Yes, but I shouldn’t be held liable for full damages”…

1. Contributory Negligence: (though 1970) completely bars P from recovery if the damage suffered
is partly the P’s own fault; most states have abolished this; D has the burden of proof

Conduct on the part of the plaintiff which falls below the standard to which he should conform for his
own protection, and which is a legally contributing cause co-operating with the negligence of the
defendant in bringing about the plaintiff’s harm. All or nothing. If you are even the slightest but
negligent then you can recover nothing. If you are not contributorily negligent then you can get 100%
of damages. Same Prima Facie elements of negligence need to be proved. Affirmative defense to
negligence-Superceeding cause is a defense to cancel out contributory negligence

Prima Facie Case

1. P created a reasonable foreseeable risk to self,
2. P failed to take reasonable care, AND
3. P failure to take care was the substantial contributing
cause of the injury
4. P failure to take care was the proximate cause of the
injury

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Reasons for Contributory Negligence were administerablity, judicial expediency, avoids
apportionment.

Butterfield v. Forrester (p. 328): P rides horse recklessly and in injured by an

obstruction he could have otherwise avoided. Rule: A P will not be able to
recover where his lack of due care contributed to the occurrence of the accident.

Gyerman v. United States (p. 333): P hurt while unloading fish meal sacks in D’s warehouse.
Rule: Contributory negligence is conduct on the part of the P, which falls below the
standard to which he should conform for his own protection, and which is a legally
contributing causal connection with the negligence of the D in bringing about the harm
(duty to protect yourself in the face of danger).
If an employee does not report an unsafe condition to his supervisor, and is
subsequently injured while working under the unsafe conditions, his
contributory negligence bars his recovery only if it can be shown that the
unsafe condition would have been corrected if he had reported it.

Exceptions to complete bar were:

a) D has a mental disability and doesn’t know consequences of the act
b) D’s conduct was more reckless than P’s
c) D had the ‘last clear chance’ to avoid the injury (see below)
d) If P violated a statute because it was safer to do so

Tedla v. Ellman (p. 251): P and her deaf mute brother were walking against traffic at night
because it was safer. Rule: Violations of a statute may be excused by necessity or
emergency, or by reason of incapacity, as it the case with various forms of common-law
negligence/when the actor exercises reasonable care in attempting to comply with the
statute.

Responses to Contributory negligence defense:

A) Gross Negligence

1. An ‘I know it when I see it’ standard; no standard definition of what separates it from
regular negligence; its only purpose is to knock out contributory negligence claims
2. P has to show that the D’s negligence was so bad and so much worse that his/her
contributory negligence, that it should be ignored and P should recovery all (it had to
be mallicious / callous)

B) Statutory Rule

1. The injured person is so dependent that the law must protect him/her

C) Last Clear Chance

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 1. If P is successful in establishing that D had the ‘last clear chance’ to avoid the injury
to P, then P will be awarded full recovery despite his/her own contributory negligence; P
must prove:
a. D was aware of P’s presence
b. D was aware of P’s ignorance of his/her peril or of his/her inability to save
themselves, AND
c. D could have avoided the accident if he/she used due care
Fuller v. Illinois Central R.R. (p. 350): P, who was riding in a one-horse wagon crossing a
railroad track, was hit by D’s train and killed; P’s representative argued that the train’s
engineer has the last clear chance to avoid the accident. Rule: The contributory negligence
of a party injured will not defeat the action if it is shown that the D might, by the
exercise of reasonable care and prudence, have avoided the consequences of the injured
party’s negligence. (WE DIDNT DO THIS CASE)

Many of the jurisdictions that have since moved over to comparative negligence have abandoned this
principle because its main purpose was to mitigate the harshness of contributory negligence as a
complete bar to recovery.

2) Comparative Negligence: (1970 - ) P’s recovery is reduces proportionally to the P’s degree of
fault in causing damage, rather than barring recovery completely; most states have statutorily
adopted this doctrine; goes to the P’s actions/liability only. Additionally, this only applies in
ONE P and one D cases

i. Pure = P recovers whatever portion he/she is not responsible for (i.e. 25%
fault = 75% recovery; 75% fault = 25% recovery); downside is that even if the
P is overwhelmingly responsible, P can still recover big time

Li v. Yellow Cab Co. of CA (p. 384): P was injured by speeding D while making a left hand
turn into a gas station against 3 lanes of on-coming traffic. Rule: Liability for negligently
caused damage is assigned in direct proportion to the amount of negligence of the
involved parties - - fairness overrules administerability. (A LANDMARK CASE)

ii. Impure = D just has to show that the P was more responsible than all of the
D’s. P is barred from recovery if he/she is 50% or more liable than all
defendants; P has to show he is less responsible than the D’s (combined)
(approx 48 of the states do this)

iii. Modified Comparative Negligence = D has to show that P is more at fault; if

P’s fault is equal than or greater to D’s, P is barred from recovery; OR P
must be 49% at fault or less in order to seek recovery (NJ)

3) Assumption of Risk (express or implied): it must be shown that the P failed to exercise reasonable
care, and that such lack of due care contributed proximately to P’s injury. This required proof that
the P knowingly entered into, or stayed in, a position of danger. This defense prevails despite the fact
that the P’s entering into a position of danger, or staying in a place which has become dangerous,
was reasonable under the circumstances. (often in recreational activities) This differs from

21
negligence in that it is subjective and requires that P has or should have knowledge of the
danger/risk and that the P reasonably assumes the risk (i.e. roller coasters)
a. Exception: when D does not owe P a duty of safety

3 uses of AoR:
1. There is an explicit contractual agreement b/w the parties in which a particular risk is
allocated to the party that bears that risk.
2. Defendant owes no duty (or you have waived your duty) to the Plaintiff therefore the P.
assumes the risk (i.e. road runners club and runners) (Diving Suit disclaimer of risk in
California for Latin) (Shea stadium case) (Eco Vitality disclaimer)
3. Defendant did owe a duty of care. Plaintiff found negligence. Defendant raises
assumption of risk as a defense, however, must show that the particular P. knew of
the risk and voluntarily exposed himself to the risk. This is why we now have
Workers Compensation b/c there were so many suits like this.

Murphy v. Steeplechase Amusement Co. (p. 365): P was injured when he fell while riding an
amusement ride (The Flopper), which was a moving belt that ran up an inclined plane and
caused people to fall on padded walls and flooring. Rule: One who takes part in a sport
accepts the dangers that inhere in it insofar as they are obvious and necessary and they
are not so serious as to justify the belief that precautions of some kind must have been
taken to avert them. He even said “he took a risk” he also saw others ride the ride. The courts
would not apply negligence b/c he assumed the risk. (I believe this is version 3 above)

Lamson v. American Axe & Tool Co. (360) New rack for axes was dangerous. Plaintiff told
Defendant. Defendant said you can leave if you feel they are unsafe. Plaintiff stayed. Since
the P. knew of the risks of the new racks and the employer informed him he could leave if he
felt that they were too big of a risk, and the P. stayed at his job, the P. in his actions was
assuming the risk of injury and would not have an action against the D. for any injuries. (I
believe this is version 3 above)

Assumption of risk does not function as a total bar to recovery. For example, in CA it
functions as one facet of comparative negligence. The argument against it is: it isn’t good for
people to give up all of the rights they otherwise have. One goal of tort law is to prevent
accidents; assumption of risk goes against this. P still has a duty to mitigate the harm done
by exercising due care, otherwise his/her damages may be reduced.

Primary v Secondary Assumption of Risk

Primary assumption of risk demonstrates the notion that there is no duty on part of the
defendant to protect the plaintiff from risk of injury.
Secondary assumption of the risk occurs when there is a breach of a duty owed to a plaintiff
who knowingly encounters a risk of injury caused by that breach and has been merged into
the comparative fault system.

Meistrich v. Casino Arena Attractions-) (371) guy fell when the ice was prepared in a diff. way.
Plaintiff was said to have contributed to the accident when he continued to skate on it. (secondary
assumption of risk, this ruling separates the two meanings) Plaintiff knew the safety was in question,
therefore he knowlingly encountered the risk of injury caused by the breach of the ice being unsafe.

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4) Joint & Several Liability: requires negligence on the part of the Ds Multiple Defendants
Concurenty Tortfeasors

a) Joint Liability – implies that each of several Ds are responsible for and their
actions all substantially contributed to the entire loss that they all caused in part

b) Several Liability – holds each D responsible for only his proportionate share of
the loss. If the P sues two Ds, a jointly liable defendant can be held liable for the full
loss, while the severally liable Ds can only be held liable for half

c) Joint & Several Liability – if 2 people are the contributing cause of damage, they
are each responsible for everything; this is a way for the P to shift the burden when
the D’s actions are tortious, and they are the ones who created the uncertainty; P can
always recover 100% and can do so from any one of them, Ds must determine which
one of them caused the injury; still the dominant standard; Elements:

• All parties must be tortious actors (if one is a natural actor, P cannot recover
• All of the tortious actors or causes have to have been identified
• D’s acts caused the uncertainties

Defense:

If D can show that his/her negligence was not the cause, he/she is no longer a
D/ liable.

Equitable Apportionment: D who has to pay damages can sue all other tortious parties in a
separate trial. All parties split the damages according to their liability. (SPEAKS TO D’S
ONLY)

Union Stock Yards Co. of Omaha v. Chicago, Burlington & Quincy R.R. (p.
405): the court refused to allow indemnification because P was no less at
fault than the R.R. No great imbalance, therefore indemnification was not
appropriate. If it was allowed, the D would have had to pay the entire damage
award back to P, after P paid the injured party. A wrongdoer (Union stock
yards) who has been compelled to pay all of the damages for a wrong cannot
recover against another wrongdoer (Omaha) unless that other wrongdoer is the
principal wrongdoer. Here, the court held that the negligence of the parties
was of the same character and P could not seek contribution because D was
not the principal wrongdoer.

American Motorcycle Association v. Superior Court (p. 409): . Has the effect
of deterring parents of minor children from bringing an action because they
could be brought in as Ds to the damages. AMA wanted its liability reduced
by the amount the parents were negligent in allowing their son to ride the

23
 motorcycle in which he was injured while in a tournament for novice riders
sponsored by the defendants. Courts applied regular JSL but AMA argued for
equitable apportionment. Courts will not apply a liability theory that goes
against the doctrine of “intra family immunity” where children can not sue
their parents”

Dole v. Dow Chemical Co. (p. 415): Guy died when he went into a chamber that
was sprayed with a chemical and it was not given enough time to air out. Employee
sued the maker of the chemical, (Dow) because he could not sue his employer. Dow
then sued the employer b/c they said they were not the cause, it was the employer’s
failure to read the warnings that came with the product. This is a way to get around
not being able to sue your employer. Employer benefits from workers’ comp.
because the employee could only recover from it, which is less costly than tort
litigation and awards; fixes liability and money is paid out of a pool; allowing 3rd
party actions against the employer undermines and defeats the benefits of the
workers’ comp system.

5) Vicarious Liability: liability that a supervisory party bears for the actionable conduct of a
subordinate or associate because of the relationship between the two parties; where one is
responsible for the damages of another

• Respondeat Superior – “Let the master answer” employee is responsible for actions of
employees within their course of employment.

Ira S. Bushey & Sons, Inc. v. United States (p. 429): Lane was a seaman for the
United States Coast Guard (D). One evening after returning drunk to his ship after
leave, Lane opened a valve controlling the flooding of the dry dock tanks. As a result,
both his ship and part of the dry dock sank into the water. The owner of the dry dock,
Ira S. Bushey & Sons (P) sued D for damages and the court entered judgment for P.
Employer should be responsible when they don’t exercise enough control over
their employees. An employer is still vicariously liable for an employee’s
negligent acts even if an employee’s conduct is not motivated by serving the
interests of his employer, if the employee’s conduct was reasonably foreseeable
and within the scope of his employment.

Schecter v Merchants (p. 435): A customer brought an action against an appliance

store and delivery company, alleging that they were vicariously liable for
deliverymen’s theft and that they were negligent in hiring deliverymen. The court
stated that when the employer knows that the employee will have free and
independent access into the homes of its customers, the employer has an obligation to
make reasonable efforts to inquire into such employee’s past employment and past
record.

5) Market Share Liability: liability that is imposed, usually severally, on each member of an
industry, based on each member’s share of the market, or respective % of the product that is
placed on the market; only applies when the P cannot trace the harmful exposure to a

24
particular product, as when several products contain a fungible substance; used almost
exclusively with DES cases – rare and largely rejected. Elements:

1. All defendants named in the suit are potential tortfeasors (that is, they did produce
the harmful product at issue)
2. The product involved is fungible
3. The plaintiff cannot identify which defendant produced the fungible product which
harmed her in particular, through no fault of her own
4. A substantial share of the manufacturers who produced the product during the
relevant time period are named as defendants in the action.

Sindell v. Abbot Laboratories (p. 493): DES ingested by pregnant women caused
cancer in their children. Rule: All producers forced to pay as per their % of the
DES market because not all tortfeasors were charged in the suit.

Skipworth v. Lead Industries (p. 488): P brought suit against paint manufacturers for
injuries sustained as a result of her ingesting paint that contained lead, which was
found in her home (the only one she ever lived in). Rule: The market share liability
theory does not apply because of the difficulty in finding all of the tortfeasors
(over a 30 year period), lead paint is not fungible, and the manufacturers did not
know of the risks at the time of manufacturing.

Medical Malpractice:

A Dr’s failure to exercise the degree of care and skill which is normally possessed and used
by Dr’s in good standing in similar practice and under like circumstances; the only field in
which custom is still binding (works as a shield);

Reasonable Care = Dr’s are held to a standard of widely used practices within a school of
medical treatment. The P must show that the Dr. did not perform the proper procedure within
their school of medical practice = as per custom. Since custom is binding, the P would have
to find expert testimony from a Dr. within that school of medicine.

Quintal v. Laurel Grove Hospital (Handout #2): 3 issues of behavior should be

analyzed in order to determine negligence; each of which must be looked at
separately.CHECK 9/21 NOTES

1. Decision to operate
a. Apprehension
b. Child’s temperature
c. Pre-op medication
d. Elective surgery
2. Conduct during operation
a. Should ophthalmologist do thoracic surgery

25
b. Tried for one minute to do external fix
c. They went to find an thoracic surgeon when in trouble
3. Failure to have an emergency plan
a. Dr.’s stood in the operating room deciding what to do

Policy arguments supporting custom as binding:

1. We want Dr.’s to maintain some level of custom, but in order to promote

innovation we hold it only as admissible (Since Dr.’s have the better info, they are not to go
beneath the standard but can go above it.)
2. Gives Dr.’s consistency and predictable exposure in volatile areas of practice
3. It is difficult to determine whether adverse conditions are due to external forces or
Dr.’s incompetence
4. To limit jury from finding for the P out of sympathy/pity
5. We want Dr.’s to take risks not to practice defensive medicine
6. To avoid war with experts

Policy arguments against custom as binding:

1. Discourages Dr.’s from using cutting edge technology

2. Stifles risk taking and prevents doctors from innovation
3. The focus is on custom rather than “best reasonable care”
4. We want Dr.’s to do better
5. Courts have a hard time distinguishing custom from ‘moving target’ – due to the
rapid change inherent in the field

The judge determines what qualifies as a school of medicine and if its practiced are widely
used within that group. The standard of care is established by what the reasonable well
qualified professional ordinarily and customarily does in fact do. The profession itself sets
the standard by its own custom and practice through ‘schools of medicine’.

Lama g. Borras (p. 231): P brought suit alleging medical malpractice against Dr. and
hospital (Ds) on the basis that D was negligent in failing to administer a conservative
treatment program prior to resorting to surgery. Rule: In a medical malpractice case,
the P must show that the Dr’s treatment fell below the standard of care
applicable to the general practitioner, resulting in the P’s injury.

Helling v. Carey (p. 223): P gets glaucoma due to D’s failure to test her for it. Rule:
The court balanced the cost of doing the test v. the cost of going blind. The test
was so cheap that the court decided that the doctor was negligent in not
performing it - - Dr. did not use reasonable care.

The way to beat the custom defense is the show that there are not enough people following
that ‘school’ therefore it is invalid. Historically, the standard of care is limited by the
‘locality rule’.

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Locality Rule = the doctrine that, in a professional-malpractice suit, the standard of care to be
applied to the Dr.’s conduct is the reasonable care exercised by similar Dr’s in the same, or
similar, vicinity and professional community. It also limits which experts you can bring in
(i.e. you can’t bring a Boston Dr. to testify in a North Dakota case). Largely abandoned but
some states, generally large rural western ones still adhere to it.

Brune v. Belinkoff (p. 240): P says too much anesthesia was administered during
childbirth; D says he administered the amount that all Dr.’s in that region use. Rule:
The court misinterprets the locality rule and then rejects it; applied national
standard.

Medical Disclosure = the act or process of making all medical ramifications/ implications
known to the patient; debate between the autonomy of patients v. just enough information for
the ordinary patient to understand the risks;

Pro – patient not the Dr. should have the final say in what medical risks they will be exposed
to; Dr. are not experts on what to disclose; once juries know what the risks are, they should
decide whether or not its material (meaning it would change the P’s mind about whether or
not to have the surgery)

Con – The Dr. should only have to provide enough info for the ordinary patient; the measure
of adequacy is that the Dr. gave reasonable disclosure so that the average person could
understand the warning; P would have to show that the average person (or, in some
jurisdictions, that he/she) would have changed his/her behavior if a certain piece of info had
been disclosed.

Canterbury v. Spence (p. 245): D performed an operation on P without advising him

of the risks associated with the surgery and he ended up paralyzed. Rule: A Dr. owes
a duty to reasonably disclose all information concerning an operation to a
patient, which a reasonable Dr. in the community would disclose based on sound
medical considerations. This is the test to see if the failure to disclose is
negligent/unreasonable.

Two conflicting principles: These are agreeable when taken separately.

1. Protection of Dr.’s by enforcing the objective standard of care

2. Protection of the patients’ right to control their bodies.

Four things P must show for lack of informed consent:

1. Material risk of procedure was unknown to him (objective)

2. Dr. failed to disclose risk
3. Disclosure would have lead the reasonably prudent person to reject the procedure
and choose an alternative

27
4. Show that an injury resulted (in order to recover)

Dr.’s defenses:

1. Disclosure may be detrimental to physical or psychological well being of patient

2. Patient was incapable of giving consent
3. Emergency made it impossible to get consent
4. Risk is so obvious that it is unnecessary to inform
5. Procedure is routine and simple, the danger is remote
6. Dr. was unaware of the risk

Medical Malpractice and RIL:

1. Standard of care of the Dr. is set by

2. Medical custom of minimum standard of skill and knowledge commonly
possessed by members of that community
a. Local standard (this is favored) but
b. National standard is adopted when it is the same as local standard; today
there is a movement towards the national standard because of things like the AMA
guidelines, standardized education, etc.
3. P will put on expert witnesses to establish the medical custom, which is used to
bridge gaps in the jury’s knowledge
a. Witness must be a licensed member of that school of medicine
b. Witness must be familiar with the procedure, methods, and treatments
ordinarily used by other Dr.’s in the D’s community.

Ybarra v. Spangard (p. 297): P gets shoulder injury during the course of having or
recuperating from back surgery. Rule: Where an unexplained injury occurs during
a medical procedure to a part of the body not under treatment, RIL applies
against all of the Dr.’s and medical employees who take part in caring for the P.

Things to ALWAYS mention with MM & RIL:

1. RIL is used to overcome the wall of silence, where Dr.’s won’t testify against
each other
2. P will (sawed off) shotgun all possible D’s in medical malpractice because he
doesn’t know who specifically was in charge or in exclusive control
3. Some Dr.’s are experts for hire

Expert Testimony/Scientific Evidence:

Expert testimony is needed when the topic is one in which lay people would not or could not
understand. Rarely is it ever inadmissible and the testimony binds the jury in that they can
not come back with a finding that contradicts the expert testimony. When two conflicting
experts testify, the jury is left to decide which one to accept but the jury must choose one (the
testimony cannot be combined or thrown out altogether).

28
 Frye v. United States (p. 450): For scientific evidence to be admissible, there must be
a general acceptance in that specific scientific field (or methodology). It must not
only relevant but also reliable. It is hard to use this doctrine since there are so many
theories and none may be widely accepted. Fry test deals with toxic torts. (No longer
used.)

Daubert (HO): Judge looks at the evident and decides whether to allow it in based on
his/her determination of its reliability. This allows more expert testimony to make it
in – whether or not the evidence is reliable and based on expert testimony and
whether it has developed as a matter of science or in the context of litigation. This
gives judges the right and responsibility to give sweeping opinions on the
adequateness of scientific evidence. The jury must then decide how much weight to
give that evidence. This is done on a case by case basis. Mini trials are held on the
reliability/relevance of the evidence. (Current application)

Kumho v Carmichael:

http://en.wikipedia.org/wiki/Kumho_Tire_Co._v._Carmichael

Brief Fact Summary

Carmichael was driving a minivan when a tire blew out and cased severe injuries and the
death of one passenger. Plaintiff, Carmichael, sought damages from the tire's manufacturer
and distributor claiming that the tire was defective. During the trial, a expert witness for the
plaintiff claimed that he could distinguish between blow outs that are caused by defects and
those that are caused by tire abuse. Defendants moved to strike this testimony on Daubert
grounds.

Rule of Law and Holding

Because there is no "convincing need" to draw a distinction between "scientific" and

"technical" knowledge, the gatekeeping function described in Daubert applies to all expert
testimony proffered under Rule 702. Additionally, "a trial court should consider the specific
factors identified in Daubert where they are reasonable measures of the reliability of expert
testimony."

General Electric V Joiner 10/12/10:

Brief Fact Summary

The Supreme Court granted certiorari to determine the issue of what standard an appellate
court should apply in reviewing a trial court's decision to admit expert testimony.

29
Rule of Law and Holding

Abuse of discretion is the appropriate standard that an appellate court should apply in
reviewing a trial court's decision to admit expert testimony.
In the people, small cell lung cancer, but in the mice – nasal tissues
Rehnquist says it wasnt in the same area, thus degrading the reliability
"Body site specificity" should we look at cancer vs cancer or location vs location in cancer? Body
site specificity limits animal studies
To be conservative – agencies determined that ANY animal study cancer finding would be
calculated as a risk for cancer.

Rubaneck (HO)

Toxic Torts – NJ chem plant emps die of cancer, PBC are claimed to be the cause.

This changes the emphasis from scientific acceptance to sound methodology. This permitted
expert testimony in areas that were not yet generally accepted in the sci community. They
hold in tox. Tort litigation a scientific theory of causation that has not yet reached gene
acceptance maybe found to be sufficientyly reliable if it is based on a sound, adequately
founded sci methology of the type reasonably relied upon by experts in the sci field.

Bessamer

N.J. 279 (1998) established an interpretive standard for determining whether a plaintiff can establish
a prima facie case on medical causation by satisfying the frequency, regularity and proximity test
absent evidence that the illness was caused by specific products.[xlvi] The court concluded “a
plaintiff in an occupational-exposure, toxic-tort case may demonstrate medical causation through (1)
factual proof of the plaintiff’s frequent, regular and proximate exposure to a defendant’s products;
and (2) medical and/or scientific proof of a nexus between the exposure and the plaintiff’s condition
Defendants are forced to figure out the percentages, not the plaintiff

PCBs – is common sense permissable?

Barrel case:
1st step: Figure out who defendants should be (ask workers which names they remember on the
barrels)
2nd step: Show substances cause cancer
3rd step: Show that these substances more than likely caused cancer in the plaintiff.
FRP Test – Frequency, regularity, proximity -

Met burden of proof through inference – somebody is around a known carcinogen for
decades, and he contracts cancer, better than even chance he got it from those exposurse.

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III. Strict Liability

Liability that does not depend on actual negligence or intent to harm, but that is based on the breach
of an absolute duty to make something safe. Strict liability relieves the P from proving negligence
however P must still prove causation. Often applies to ultra-hazardous activities or products
liability cases. These ultra-hazardous activities can be conducted only if the person conducting them
is willing to insure others against the harm, which results from the risks he/she creates. Strict liability
also allows for compensation for property damages due to ultra-hazardous activities (i.e. blasting,
storing dangerous substances, keeping dangerous animals). Fault is conditional only when actual
harm results.

Six elements of ultra-hazardous activities:

1. The activity involves a high degree of risk of some harm to the person, land, or
chattel of others
2. The gravity of harm which may result is great
3. The risk cannot be eliminated by exercise of reasonable care
4. Activity is not a matter of common usage
5. Activity is inappropriate to the place where it is carried on (i.e. artificial reservoir)
6. The value of the activity to the community

Trespass = without consent or privilege enters another’s property/deprives owner of

exclusive possession of real property; all that is necessary is that the act resulting in the
trespass be volitional, and that the resulting trespass be direct and immediate; no actual
damage or intent needs to be shown; NOT an intentional tort

Prima Facie Case

1. Possession of/presence on property
2. Lack of consent

If a person was pushed onto someone else’s property, the pusher would be strictly liable for the
trespass since the person pushed did not intend to go onto the property. However, the person who
pushed him intended to push that person onto the property. One could be found liable for trespass if
something on his land encroaches upon someone else’s land (i.e. pipe breaks and water floods
neighbors yard). Additionally, a trespasser who builds a fire, digs a hole, or merely leaves a door or
gate ajar may be liable for the resulting physical harm.

Fletcher v. Rylands (p.111): property flooded when the reservoir built by a neighbor
escaped. Rules: 1) A person using his land for a dangerous, non-natural use, is
strictly liable for damage to another’s property resulting from such non-natural
use. 2) Where a party’s actions unwittingly cause damage to the land of another,
he is liable regardless of negligence. 3) If a person brings anything onto his
property, which, if it escapes, might damage his neighbor’s property, he is
responsible for all the damage that is the natural consequence of the escape.
(Many courts later rejected these to encourage land expansion.)

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Conversion = conduct which deprives another of his property permanently or for an indefinite time
or the exercise of dominion/control over a chattel, which is inconsistent with another’s ownership of
it; traditional rule was that the person who had actual possession of the property at the time of the
tort, or at least the person entitled to immediate possession must bring the action for recovery; NOT
an intentional tort
Prima Facie Case
1. D took P’s property
2. Lack of consent

Even if you take property that you think is yours, but belongs to someone else, you are still (strictly)
liable; no intent necessary

Kirby v. Foster (p.65): P was injured by D who was attempting to recover money given to P
to pay D’s employees. Rules: 1) P deducting what he thinks he is owed without the consent
of the D is conversion; 2) A party may not use force to recover property held by another
under a claim of right where the original possession was lawful.

Strict Products Liability: Only applies to Ds in the business of selling the product

In most jurisdictions today, a manufacturer or a supplier of a product that is defective and

unreasonably dangerous can be held strictly liable in tort when the product causes injury to the user
or his property. Liability is strict but not absolute! P must prove that the defect cause the injury that
it attributed to D’s product. Almost all strict liability claims are based on common law principles
however statutes may explicitly or implicitly create a strict liability cause of action. The rationale
behind this theory is that D is better able to insure against loss so it is unfair to have P bear the costs;
it increases the safety incentive, and heads off the difficulty of proving negligence.

This is stricter than negligence because the manufacturer’s product must be used by someone other
than the buyer, without further inspection and it must put life in peril. The harm has to be foreseeable
to the manufacturer. It is a regular negligence test with some added elements. Policy arguments
are: loss spreading, information access, consistency, fairness, and litigation costs.

Applies when:
1. D is in the business of selling the product
2. The product is expected to and does reach the consumer without substantial change in the
condition to it
Even though:
1. D has exercised all possible care in preparation and sale of his product, and
2. The consumer or user has not bought the product from or entered into a contractual
relationship with the D
Exceptions:
1. Manufacturer liability is not extended to products that are modified
2. Manufacturer liability is not extended to products that are resold as ‘used goods’
3. Both act as superceding causes

(Note: P can sue anyone in the sequence that brought the item to the market place although distributors are practically
never included.)

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 Winterbottom v. Wright (p. 728): (really a contracts case) P was injured while driving a
defective mail coach, which the government has bought from D pursuant to a supply-
maintenance contract. Rule: A contracting party, unless he has undertaken a public duty,
has no liability to 3rd parties who are injured as a result of a breach of contract.
Essentially, speaks to = this guy can’t sue that guy (aka no liability), which has now
been abolished except for in the UCC. Principles of Privity are still alive and well
though. This decision is based on a desire to promote entrepreneurship and limits
companies’ exposure to liability.

MacPherson v. Buick Motor Co. (p. 731): P purchased a car for his wife who was injured
when a defective wheel collapsed. Rule: A manufacturer will be strictly liable for injury
caused by his product where, if negligently made, it will be dangerous to the life of any
potential user. Landmark decision allowing negligence to determine products liability,
provided it was used as expected, foreseeably dangerous (if negligently made),
foreseeable that someone other than the purchaser would use the product, and
foreseeable that it will be used without inspection or test. Further, manufacturers
cannot market unsafe products on the rationale that buyers may want to purchase less
safe products to save $. This abolished privity. (NEGLIGENCE)

Cardozo changed the common law from privity of contract to products liability.
Elements of Negligent Product Liability
1. Must be foreseeable great danger if the product is negligently made.
(foreseeability)
2. If negligently made it will be dangerous to life and limb. (great danger)
3. Others than the buyer will use it. (for the buyer it is under privity of contract)
4. W/O further inspection
Cardozo’s Policy Arguments
• Fairness
• Reliance
• Justiciability(can court provide adequate resolution)
• Deterrence
• All actors are responsible if their actions are foreseeable.

(Note: In other words, one who negligently manufactures a product is liable for any injuries
proximately caused by his negligence.)

Escola v. Coca-Cola Bottling Co. of Fresno (p. 739): P, a waitress in a restaurant, was
injured when a Coke bottle exploded while being place into a refrigerator. Rule: The
manufacturer of a defective product should be held strictly liable for any injuries which
results from the use of the product. MacPherson was invoked here however, this time,
Judge Gibson also pulls in Res Ipsa Loquitor to force the manufacture to find out why
the accident actually occurred. In other words, no one is sure why the bottle broke, but
it could have been avoided with adequate inspection, therefore the manufacturer
incurres ABSOLUTE LIABLITY. Policy demands that liability be placed on the one
who can bear the cost efficiently.

33
 TRAYNOR: He used absolute liability = if the product caused the injury then the
manufacturer is liable. Policy Arguments-Loss Spreading (Enterprise liability); Information
Access; Deterrence, Reliance, Fairness, Reduce Litigation costs.
Traynor-Absolute Liability-Product caused the injury therefore absolute liability. There has
never been one case decided on this theory. Why this argument is not so great. 1. People
should bear their own responsibility when they use the product incorrectly, 2. There may be
good products that the manufacturer makes, 3, Drives up the cost of the products. Arguments
in favor: Courts don’t have to twist themselves into a pretzel to find liability; loss spreading;
fairness; reliance and others.

Timeline of products liability:

Privity
McPhereson (1916) –quantam leap
Escola (1944)
Penningson (1960)
Greenman (1962) –First strict liability case-quantum leap

Strict Products Liability-Now it is a strict negligence for buyers, end users, or proximate
people.

1958-RESTATEMENT SECOND OF TORTS

Section 402A-SPECIAL [STRICT] LIABILITY OF SELLER OF PRODUCT FOR PHYSICAL HARM TO USER OR
CONSUMER

1. One who sells [commercial seller (retailer, manufacturers, dealers)(does not apply to 1. sellers of used
products-they are only under negligence and would be liable as a provider of a service, 2. blood banks, blood is not a
product it is just a provider of a service-now it is seen as a product b/c blood now can be tested and we can protect
against contaminated blood, 3. books-the content of the book is not a product)] any product in a defective condition
[Products were not defective if 1. no riskier than the people who bought them expected them to be-Consumer’s
Expectation Test (CET) and 2. Risk Utility Balance Test (RUBT )not defective if its benefits outweighed its risk ]
[requires reasonability] 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

a. the seller is engaged in the business of selling such a product, and

b. it is expected to and does reach the user or consumer without substantial change in the condition in
which it is sold.
2. The rule state in subsection (1) applies although
1. the seller has exercised all possible care in the preparation and sale of his product [Only applies to a
product that deviates from the way that the product was supposed to be made-manufacturer can not argue
that he used care if the product in fact deviated from the way it was supposed to be used (even if quality
control was good they are still liable for the product that was the exception)], and
2. the user or consumer has not bought the product from or entered into any contractual relation with the
seller.

THERE IS NO ABSOLUTE LIABILITY-NO CASES HAVE BEEN DECIDED USING THIS TEST ( Liable b/c there
was harm)

Comments:
F-Business of Selling
G. Defective Condition
H. Abnormal Handling

34
I. Unreasonably Dangerous
J. Directions or Warnings - "in
order to prevent the product from being unreasonably dangerous, the
seller may be required to give directions or warnings." Significantly, the comment goes on to state
that "where warning is given, the seller may reasonably assume that it will be read and heeded; and a
product bearing such a warning, which is safe for use if it is followed, is not in defective condition,
nor is it unreasonably dangerous."
K. Unavoidably Unsafe Products - Only applies to prescription drugs and medical devices in basically every jurisdiction.
Three approaches: Elements: 1) knowledge of the dangers; 2) reasonable risk; 3) voluntary act/exposure by P

1. CA – prescription/medical devices = negligence test not strict liability (see Barker case)
2. NJ – drugs are big business, we’ll use strict liability on a case by case basis, meanwhile
all cases since have received the strict liability treatment (see Feldman case)
3. TX – court does a mini-RUB test to see if there was an alternative, if there was = the
product was not unavoidably unsafe and is susceptible to the strict liability treatment; if
there was not = it was unavoidably unsafe and goes to the jury to apply a negligence test
M. Warranty
N. Contributory Negligence – IN products liability, contributory negligence cannot be used as a defense, when its merely
in not discovering a product's defect or guarding against a theoretical defect. However, assumption of risk still appliess
as a defense. Most limited contributory negligence standard (adopted by NJ); friendliest to P and super-strict on D;
contributory negligence only applies if:

1. Use was voluntary

2. Unreasonable exposure to
3. Known risk
4. Employee cannot be deemed voluntary users

In CA (majority), any negligence by P = apportionment of damages.

In NJ (minority), only if P meets all of the Comment N factors do his/her damages get apportioned.

THE AMERICAN LAW INSTITUTE, RESTATEMENT (THIRD) OF THE LAW OF PRODUCTS LIABILITY
(1998)
Section 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. [For purposes of determining liability
under Section 1:]
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 ist 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 by the seller or other distributor, or a predecessor in the
commercial chain of distribution, and the omission of the alternative design renders the product not reasonable 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 b the precision of reasonable instructions or warnings by the seller or other
distributor; or a predecessor in the commercial chain of distributions, and the omission of the instructions or warnings
renders the product not reasonably safe.

35
3 Types of Product Defects:

I. Manufacturing Defect – product not produced as intended; the strictest (most true) of all strict
liability and the easiest to establish; Elements of the prima facie case:

1. Product was used in an intended or foreseeable way (a threshold

#2 & #4 are the requirement)
hardest to 2. Product deviated from the design (show specific defect) (or malfunction-
prove which you don’t have to prove what the specific defect was)
3. Intended/foreseeable use caused P’s injury
4. Deviation in the product was there when it was put into the stream of
commerce

Methods of proving Manufacturing Defect:

1. Get the manufacturer’s specs. (clearly discoverable although sometimes too broad i.e.
what’s been submitted to the FDA)
2. Purchase a few comparable models and inspect them in order to establish the standard
deviation from the design
3. Use Res Ipsa Loquitor when this type of accident normally doesn’t occur unless there is a
defect in the product

a. Pouncey v. Ford Motor Co. (HO): P (Pouncey) was injured when a blade broke off
his Ford’s radiator fan while he was putting antifreeze in his car. P argues that
impurities in the metal used in the fan caused the accident. Pouncey brought in an
expert metallurgical engineer to say that the fan blade had “surprising number of
inclusions” which were an identifiable defect in the metal which served as “stress
concentrated areas” and “lowered the endurance limit of the fan”. Ford brought in
three other experts to refute this testimony. Courts said that there was direct evidence
that Ford’s supplier manufactured the blades with “dirty” spring steel, despite the fact
Ford had awesome quality control OVERALL, they did not in this case. Pouncey’s
expert testified that Ford and its supplier could reasonably expect a premature fatigue
failure and Ford offered no evidence as to quality control. Design defect INFERRED
here – no specs on quality of metal, but same models = didnt have this, thus this case
Ford was defective.

1. Product injured plaintiff

2. Deviation / Defect / caused injury (if the item was designed and it was made right, and this
caused the injury, its a total different case. )
3. The manu was responsible for the defect (defect was in the product when the manu put it into
the stream of commerce)
Key issues: Deviation / manu responsible which makes it a manufacturing type of case,
not one of the others

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Keeler v Richards (HO): Screws different than manu specs, expert testimony shows this
probabaly contributed to the break leading to the physical harm. It is NOT enough to show
the screws are different, must show its a substantial contributing cause. Cant do this w/o
expert testimony This is a good example where the plaintiff had an expert measure the
screws and test against manu's specs, and several fell outside of the manu's own guidelines,
which shows the deviation. However, P still needed expert testimony that the thinner the
screw, the more likely to break, and other tendancies in the aggregate to show that
more than likely the deviation of the screws is what led to the accident.
This is an example of the part of the prima facie case (Intended/foreseeable use caused P’s
injury) where it was not shown, thus the case failed.

What should a lawyer do if a client wants to sue for this?

1. Check out similar products first – easy/cheap
2. Is it a new product? Check wear and tear (manu is not responsible for this) Natural
degeneration for a product not meant to last?
3. Eliminate alternative causes (car example – what was weather like? What was traffic
like?

Jagmin v Simonds (HO) This is a circumstancial case, showing inferred defects can be used
to prove that part of the prima facie case. Grinding wheel case, showing that a problem is
ordinarily the result of a defect. Needed testimony that it wasnt dropped or something that
shows it was used improperly, IE no cracking or strange operational conditions. Also needed
testimony it was used properly (properly mounted and operated). What you're left with is an
inference (not a positive) that it broke as a result of a defect

Ducko v. Chrysler Motors Corp. (Handout)-Plaintiff Ducko was driving a new Chrysler Fifth
Avenue car and the car suddenly jerket to the right and the steering wheel locked she could
not brake and it caused her to crash and brake her back. Car had 1,655 miles on it and she
was only driving 55 Mph on a dry road. Ducko’s expert said that the accident was caused by
a transient malfunction of the system providing power to the steering and brakes. Chrysler’s
expert said that it was user error. Courts found that Ducko met the burden of proof through
circumstantial evidence and that proof of the specific defect in construction or design
causing a mechanical malfunction is not an essential element in establishing breach of
warranty. Part 2 of prima facie case – inferring a malfucntion that is not specific.

Wlege v Planters (HO). Glass Jar breaks in D's hand. Sues Planters for defect. Theoretical
inconsistencies of using res ipsa in product liability cases. The doctrine of res ipsa loquitur
teaches that an accident that is unlikely to occur unless the defendant was negligent is itself
circumstantial evidence that the defendant was negligent. The doctrine is not strictly
applicable to a products liability case because unlike an ordinary accident case the
defendant in a products case has parted with possession and control of the harmful object
before the accident occurs. If it is the kind of accident that would not have occurred but for a
defect in the product, and if it is reasonably plain that the defect was not introduced after the
product was sold, the accident is evidence that the product was defective when sold.

37
 Speller v Sears, Roebuck & Co. (773) - Fire in kitchen causes Sandra Speller to die and
caused injuries to her son. She sues Sears and Whirlpool on grounds that the product did not
work as it was intended and was the cause of her injuries. She tried to prove circumstancial
evidence by using expert testimony from whirlpool engineer, electrical engineer, etc, and
used them to show product didnt peform as intended and exclude other causes for fire. D
said that it was a grease fire and not the refrigerator, and used fire marshall's testimony. This
is a circumstancial evidence case, where one side's expert testimony outweighs anothers.

Design Defects - Prima Facie Case (2nd strictest after Manufacture defects)
I. The producted was sold in the course of business.
II. The product was then in a defective condition, unreasonably dangerous when put to a
reasonably anticipated use. This can be proven by one of the two OR both of these two
(depends on state, see later):
A. CET (shield for manufacturers)(sword for plaintiff-product is riskier than ordinary people
expected them to be and don’t have to show that there is a better way to make it safer )
Problem is that people don’t ordinarily know how safe a product could be made. On the
other side, imagine a product that is a million times more beneficial but has high risks.
Latin feels this is a defective test in both ways. Also, people are not a reliable test. This
rose out of DCUD (Defective condition unreasonably dangerous)
B. RUB – Compares the product in its current state to the product in how it could be safer.
(or how the manufacturer could have made a safer machine to prevent against the misuse)
Best way to prove is to have a safer design. Look at how if affects all of society.
Problem with just using this test is that some products risks outweigh their benefits such
as alcohol and tobacco.
III. Used for its intended or foreseeable purpose (or misuse) and by foreseeable users.
Impute the knowledge of foreseeable risks at the time of trial and go back to see if a
reasonable manufacturer would have still put out the product in the same way. Don’t have to
show that the manufacturer could foresee the risks. Manufacturers can not say that the risks
were unforeseeable to them b/c foreseeable is not a pf element. Was there a better design
available and would the manufacturer have put it out anyway.
IV. The plaintiff was damaged as a direct result of such defective conditions as existed when
product was sold.

Volkswagon of America, Inc. v. Young (HO): P’s descendent was killed when the back seat of
his Volkswagon tore loose following a collision with another vehicle. An automobile
manufacturer many be held liable for injuries sustained in a so-called ‘second collision’ if
those injuries were the result of the manufacturer’s negligent design of the vehicle. In short,
D is liable for damages that result from foreseeable problems. Intended use included
protection (safety). This broadens the intended use.
This is a threshhold issue that must be met in EVERY products liability case, and goes
for part I of the prima facie case.

Linegar v. Armour of America (HO): P sued D, alleging that a bullet-resistant vest

manufactured by D was defectively designed but D argued that it was not liable since it was
obvious to anyone who wore the vest that it did not protect certain areas of the body. Rule:

38
 The obviousness of a defect or danger is material to the issue of whether a product is
unreasonably dangerous. In short, this product did not fail the CET Test. This goes in
Part II CET above.

Barker v Lull (HO): Ray Barker injured when operating a high lift loader in Univ. of
California construction site. The high lift loader was supposed to be used on flat ground not
on an incline. He was using it on an incline and was hurt when he attempted to jump out
because he lost control. This was a misuse. He alledged that the loader could have had seat
belts, a roll bar, outriggers (could have given greater stability) and an automatic locking
device. California rules that DCUD is meaningless, and uses CET or RUB.

Potter v. Chicago Pneumatic Tool Co. (HO): P, (metal grinders) brought suit against D,
alleging that the products were defectively designed (the intense shaking) and lacked
adequate warnings, causing the P to be exposed to excessive vibration and resulting in arm
vibration syndrome. P brought in experts to say that exposure to vibration is a significant
factor in the development of the syndrome and that the vibration of the machines exceeded
the limits set by the American National Standards Institute and the ACGH. Rule: In actions
claiming design defects for complex product designs in which the ordinary consumer may
not be able to form reasonable expectations of safety, the consumer expectation test applies
to establish the product’s risk and utility, followed by a determination of whether a
reasonable consumer would consider the product design unreasonably dangerous. (court
rejects the RUB and uses CET in a highly specialized area)

Cepeda v. Cumberland Engineering Co., Inc. (Handout #3): Blue collar worker with less than
excellent ability to read and understand English gets his hand mashed in an industrial
machine when used without the safety guard. Rule: This case established the RUB test (& 7
factors) in NJ; The courts were not interested in an alternative product, the D used the
CET as a shield since the product did what it was supposed to do; it was a foreseeable
misuse and users who don’t speak English are foreseeable therefore the warning was
inadequate.

The above case introduces the “Wade Factors” of the RUB in NJ:
1. The usefulness and desirability of the product (Benefits)
2. The safety aspects of the product (Risk)
3. The availability of substitute product which would meet the same need
and not be as unsafe. (Substite, Barket combine w/ below)
4. The manufacturer’s ability to eliminate the unsafe character of the product
without impairing its usefulness or making it too expensive to maintain its
utility. (Alternative)
5. The user’s ability to avoid danger by the exercise of care in use of the
product (Barket combine with below).
6. The user’s anticipated awareness of the dangers inherent in the product
and their avoidability, because of general public knowledge of the obvious
condition of the product, or of the existence of suitable warnings or
instructions. (CET)

39
 7. The feasibility, on the part of the manufacturer, of spreading the loss by
setting the price of the product or carrying liability insurance. (Loss
Spreading)

R3rd treatment of RUB includes RAD (must show reasonable alternative design, where the risk of
harm or danger must also be forseeable). Also, the whole thing is the same as under negligence, but
more restrictive. Under neg, a really dangerous product may outweigh based on benefits. But under
r3, the plaintiff has to show the product was not made safer – so it is harder for the plaintiff than
plain negligence would be

Use CET when there is a FLAGRANT error, but this is counterproductive when the erorr isnt
obvious and dont know what the user expectations are

For Risk and Utility under strict products liability, we're looking at the total of harm and benefits at
the time of trial. Why? Its the last time we can get this information, and it puts less burden on the
plaintiff (its hard to go back in time and get data)

So the principle diff of design defect under neg is that reasonability of manu behavior when product
is in stream of commerce vs under SPL we're looking at the alternatives/CET/loss spreading at time
of marketing and harm and benefits at time of trial.

The fundamental difference between full negligence and strict liability is what time you
consider the risks and benefits – at the time the manufacturer puts the product into the stream
of commerce (M) or at the time of trial (T).

Neg SPL
Risk TM TT
Utility TM TT
Alternatives TM TM
C&T TM TM
Loss Spread TM TM(?)

Imputation / hindsight test – time of trial

State of the Art Defense = if the product has no safer alternatives, it is not legally defective,
no liability; the burden is on the D to prove it and up to the P to disprove it – unless the court
buys it outright, in which case the suit is over. This is an affirmative defense against the
RUB. Comment K in restatement 2nd talks about uanvoidably dangerous prods like red
meat / butter or vaccine for rabies.

O’Brien v. Muskin Corp. (HO): P dove into a above ground pool from a roof top and
sustained injuries because the slippery bottom forced his arms to part causing him to
fall on his head. D produced experts to show that no other lining was used or could be

40
 used to produce a safer result. Ruling: Court allowed the P to argue overall
benefits/risks and supercede the ‘State of the Art’ defense, then used the Wade
risk/utility test, meaning it just applied an overall RUB test without a consumer
expectation test. This was overturned because of its implications for cigarettes,
alcohol, certain chemicals, etc. since their risks far outweigh their benefits. If this was
the case, they would all be found defective and their manufacturers would be liable
for all damages.

Warning Defects - product is produced as intended and does not present undue risks if used
normally, but its packaging or accompanying literature fails to warn of unexpected dangers from
foreseeable misuse; “The duty to warn in the strict liability cause of action is based on the notion
that, absent a warning or adequate warning, a product is defective, in that it is not reasonably fit,
suitable, or safe for its intended purposes”; also applies if a product does not otherwise contain a
defect, but is unreasonably dangerous and the manufacturer fails to give proper warnings or proper
directions as to its use. (‘WARNINGS ARE LIKE SEATBELTS, THEY CAN BE ADDED
WITHOUT A SIGNIFICANT DECREASE IN UTILITY OR A SIGNIFICANT INCREASE IN
COST’.)

Prima Facie Case

1. Reasonably foreseeable use or misuse (as in all prod. lia. Cases).
2. The warning was defective and could have been better; the instructions did not give an
adequate warning of the product’s risk or handling of the product (for foreseeable users –
objective test). But, if the risk is ‘open and obvious’ to the consumer, some jurisdictions do
not requier a warning.
1. RUB is used to prove this:
1. Forseeable harm
2. Cost of giving the warning
3. Likelihood the warning would have been heeded.
3. Defective warning was present at stream of commerce.
4. Causation.
1. Injury caused by defective warning. Plaintiff would not have used the product had
there been an adequate warning.
2. Heeding Doctrine (Reverse Comment J)-Plaintiff would have heeded the warning if
there was one or it was adequate.

Courts will not impute knowledge of the risks for a warning defect case if the risks are completely
unknown (excluded are asbestos)

(Note: Warnings have different effects on different people, we are looking at the reasonably prudent
person. There is no meaningful or effective standard of what a good warning is.)

41
“Learned Intermediary Doctrine” Duty of manufacturer is to warn the doctors and they are to then
warn the patients that they prescribe the medication. In turn, the manufacturer owes no duty to warn
the consumer.
In the case of prescription drugs it is hard to prove a warning defect.

Mac Donald v. Ortho Pharmaceutical Corp.-26 year old patient was prescribed birth controll
pills. Pills said that clotting could occurr but did not sat "Stroke". MacDonald after 3 years
of using the pills had a stroke and lost 20% of her brain tissue and is permanently disabled.
Courts used the learned intermediary doctrine and said that the manufacturer had no duty to
warn the patient. The appeals judge said that in this particular case of birth control a product
that has been increasingly sought after and managed by the patient, or given by a nurse, the
manufacturer owes a duty to warn to the patient. Thus this is an exception to learned
intermediary.

No standard warning doctrine. Three general types of warnings:

1. No warning – easiest to win, but most uncommon
2. Warning should have been ‘graphic’ or ‘symbolic’ or reasonably placed in sight of the
consumer
3. State of the Art – no better warning could have been given because the risk could not
have been known or knowable

Beshada v. Johns-Manville Products Corp. (HO): as close to strict liability as it gets; a

warning is defective unless it is the best warning you can have (meanwhile, you can have a
better warning 99% of the time); court uses a RUB test to determine if the warning was
defective; the cost of having a better warning are usually negligible so the benefits of it
almost always outweigh the benefits of the warning that was used; the court also decided that
it wasn’t the best warning that could have been given and that a better warning did exist
therefore, the warning in question was defective.

Pashman said that we should still impose liability b/c:

1. Risk Spreading (the manufacturer should buy insurance);
2. Accident Avoidance-encourage companies to invest in safety testing;
3. Fact Finding-it is possible to find out what is “unknowable’ by finding out not only what
was known but what was unknown. Even if no scientist had actually formed the belief that
asbestos was dangerous, the hazards would be deemed ‘knowable’ if a scientist could have
formed that belief by applying research of performing tests that were available at the time
4. Fairness - fairness suggests that a manufacturer should not be excused from liability
because their prior inadequate investment in safety rendered the hazards of their products
unknowable. Latin says this case is a travesty because they couldn’t have known the risks
(Scientific Unknowability) and it has since been abandoned (except for asbestos cases).
They imputed which makes no sense based on the previous. The better question to ask is:
Which party should have been responsible for unknowable risks based on x, y, and z policy
arguments.

42
 Post sale duty to warn:
Feldman v. Lederle Labs (Handout #3): Father, a pharmacist, gave daughter Declomycin for
urinary infection that ended up causing her teeth to turn grey. No warning was given as to
this side effect. The risk was not known when the infant first started taking the medication,
but was later realized. Courts said that they knew by one year prior to FDA approval to add
the defect to their warning and did not disclose he defect to the public. Rule: court finds that
D should have told Ps about the possible effect once they found out about it. The case
rejects Bashada’s hindsight/imputing knowledge test if the risks are completely
unknownon. They impose a foreseeablity test at the time of manufacture and a post-
sale duty to warn. An important and powerful ruling.

“Heeding Presumption”( Comment J Reversed) Coffman v. Keene Corp. (Handout)

“Heeding Presumption” If a good warning were given it can be assumed that people will
follow it. (Comment J Reversed) This helps the Plaintiff prove causation. What if a
manufacturer gives a bad warning and a good warning would have prevented the injury. “If
a manufacturer had given a good warning the user would have followed and prevented the
accident” Some states make this rebuttable. Which says that the P. would not have heeded
b/c of some subjective evidence. It goes counterintuitive to the purpose of having doctrine
like this to help prove causation-it decreased speculation. Asbestos contamination for the
electrician who worked in the ship yards.
This reverse comment j presumption meets the plaintiffs initial burden of proof – self serving
testimony vs self serving testimony vs hypothetical, the courts will PRESUME the plaintiff
would follow a good warning. This is a legal assumption, NOT a matter of fact. A pro-
plaintiff doctrine. Court gives a few reasons:
1. avoiding self serving testimony
2. avoiding speculation
3. avoiding court costs

Differences between negligence and products liabilities:

negligence nj cali r2d
Doctrine: 2 negligence Sutter decision: Daly case: he was Comment n r2nd
elements: applies contributory drunk/speeding/not limits contributory
forseeability Negligence, but wearing SB, ie he was negligence (5 years
breach limits it to when the 3 negligent. bef. Lee case)
comment n factors Court rejects 3 3 comment n factors:
are present comment n factors and plaintiff knew of risk,
Court also holds expands to any exposed himself to it
industrial accidents negligent factor on voluntarily, and was
cant be voluntary part of plaintiff unreasonable to do so
(you cant expose
yourself to an
accident in an
industrial context
where you're a
worker)
Legal Barred from Comp. Negligence Comp negligence BAR (knowing,

43
Effect: recovery OR (plaintiff cannot be (pure, if plaintiff is voluntary exposure,
apportionment more responsible than found 90% unreasonable)
under def or he recovers responsible, he gets
comparative nothing) 10%)
negligence This is majority
treatment

Contributory negligence under warning defect Micallef v Miehle

The plaintiff is the operator of a printing press machine manufactured by the defendant. The
plaintiff attempted to adjust the machine while it was running, and got his hand caught. There
was no guard in the rollers which prevented a person from catching his hand. However, the
danger of injury was one that was patently obvious to the user. A manufacturer must design
his product in such a way as to avoid any unreasonable risk of harm to anyone who is likely
to be exposed to the danger when the product is used in a manner which is reasonably
foreseeable. The fact that the danger was patently obvious did not exempt the manufacturer
from liability because otherwise, the manufacturer would have no duty to design a reasonably
safe product under the cost-benefit analysis. The loss should be shouldered by the
manufacturer to provide an incentive to create a reasonably safe product. The openness of
the danger is still available for contributory negligence defense, it doesnt act as a bar to the
plaintiff.

Manufacturer’s Defenses:

1. Contributory negligence by P: not a defense when such negligence is merely a failure to

discover the defect in the product or to guard against the possibility of its existence;
however, it P is in an industrial setting, contributory negligence does apply
2. Assumption of risk by P: if p knows of a defect and is aware of the danger, and
nevertheless proceeds to use the product, this breaks the causal chain and may bar
recovery
3. Abnormal misuse of the product by P: P uses the product in a way not normally intended
and is unforeseeable
4. Comparative Fault (NOT COMPARATIVE NEGLIGENCE): contributory negligence
and strict liability is combined to form comparative fault; the court is allocating the loss
according to the % of causation of injury by each party; this is the choice methods
because:
a. P’s recovery will be reduced only to the extent that his own lack of reasonable
care contributed to the injury and P does get compensated
b. The manufacturer’s incentive to create safer products will not be reduced because:
i. The manufacturer is still liable (although only partly)
ii. The manufacturer cannot assume the user of a defective product will be
held liable
iii. Assumption of risk is eliminated as a total bar to recovery

44
 c. Jurors can compare P’s negligence or fault to D’s strict liability (Argument against
this is that the majority dilutes the defectiveness of a product with the conduct of the
D.)

Daly v. General Motors Corp. (p. 831): P claimed the defective design of the car door lock
caused her husband to be thrown from the car to his death during an accident. Her husband
was driving drunk at the time and not wearing a seat belt. Rule: A P’s negligent conduct will
reduce his recovery in strict products liability by an amount proportionate to his fault.

Policy arguments for Design Defect liability:

1. Places the liability on the party who can best prevent injury
2. D is the best cost spreader (raise price)
3. D is the best risk allocator (insurance)
4. P needs to be compensated for damages from somewhere

Policy arguments against Design Defect liability:

1. Restricts consumer choice

2. Restricts capitalism
3. Reduces research and development
4. Increases the price of the product
5. D must carry insurance, which may be difficult or impossible to get

Design Defect for Drugs: you do not compare the overall risks and benefits or foreseeable risks
when you put it out at the time of trail. Instead, you compare the drug with the risk and see if it can
be reduced without losing its effectiveness. RUB must be compared with that of its competitors.

Defenses:

Product fails as a design

(Note: Asbestos falls here, the risks were
defect. not yet
π Loses = noknown and the benefit gained from it (all of
recovery
our naval ships in WWII) far outweighed the risks. Design Defect cases often include a Warning
Product is produced
Defect claim.)
uniformly and as it was
Design Defect designed No
1. Utility (measured at the time of trial)
(“A pure negligence test”) Battle
2. Risk (user’s awareness of - was it open &
obvious? ; measured at the time of trial) of
3. Substitute Products (availability of) Form
Product used
4. Alternative as intended
Products or inof;a aka
(availability s
foreseeable
RAD Test) way (foreseeable use
Note:
and foreseeable
5. User’s misuse);
ability to avoid product
risk (objective,
based on user’s
causes injury generally not 1 spec. user)
“And” Test is commonly used
6. User’s awareness of risk (CETas part of
“Or Test” is least used
the RUB; not usually a deciding/most Ter
RUB Test is the majority test
Some influential factor)
jurisdictions 7. Loss spreading ability (not necessarily msDoes add
assumed to be the manuf. especially if the areterm Majorit
RUB45 Test: The risk/utility of the product as made v. the risk/utility
product is an old one tho y of
then what materially
*Items in red are the most weighty.Acceptance
3-7 are se contains
of the product as it could have been made if we knew we
π Loses = no know now (aka Hindsight Test = major difference b/w
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3 Types of Warning Defects: cost prohibitiveness); goes toofferor
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4. No warning – easiest to win, but most uncommon
agree tto it,
5. Warning should have been ‘graphic’ or ‘symbolic’ or reasonably placed in sight of the
otherwise
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6. State of the Art – no better warning could have been given because the risk could not is a sepe part
have been known or knowable offer. of K.

46
 Suter v. San Angelo Foundry and Machine Co. (Handout #3): P injured at work when his
hand gets caught in sheet metal rolling machine. Court changed DCUD (RUB +CET)
language to ‘fit, suitable, and safe for intended or foreseeable purposes’. Overrules Cepeda
in holding that contributory negligence is a visible defense when an employee, in an
industrial setting, uses a machine in an intended or foreseeable way.

Was the product used in an intended/

(Note: Manufacturing Defect cases almost never
foreseeable way? include a Warning
Were the Defect claim.)
risks known
Warning Defect
(“A negligence test”) @ time of M?

Was the warning adequate? Was it one that the

Note: D can attack step 1-4 and RPP would have provided about the risks and
obtain summary judgment. that the RP consumer could read & appreciate?
Burden is on the P to show that (NJ Statute)
the warning was inadequate.
Burden is on the D to show that a
better warning couldn’t have been Open & Obvious: D doesn’t have to warn as the extra words bog down the
given.
important things; open & obvious – no duty to warn; NJ/Restatement
1 3rd/majority of jurisdictions
Discuss ‘average user warning’
(Campos) v. ‘best possible
warning’ (Beshada) and the
Warning: mini-RUB; risk & utility weight
abandonment of Beshada. @ time of T = Imputing Knowledge; 1
2
Don’t forget to discuss
comparative
Adequate Inadequate
negligence/assumption of risk.

NJ & Most other Juris.

P Loses

Restatement 2nd 402 (A) aka Heeding/Reverse Comment J

Comment J still used in some Presumption - Rebuttable
jurisdictions: bad prod. w/ good
warning is not defective - worth
(Causation assumed)
mentioning Successfully Unsuccessfully
Rebutted Rebutted

Defenses:

State of the Art: A better warning could not have

been given because the risks were unknown
P Loses Successful Unsuccessful

47
 Learned Intermediary: Product is marketed toward an
expert who’s duty it is to adequately warn the consumer.
P Loses Successful Unsuccessful

P Loses
To jury for damages2
Defenses:

IV. Damages

Categories of Damages Arguments:

1. Deterrence/ Prevention/ Efficient Cost Minimization – within the context of ‘are we

losing more than we are gaining by prohibiting x’
2. Loss Spreading/ Insurance/ Compensation – attempts to make damages more bearable by
spreading the cost to the greatest number of people
3. Administrative & Litigation Costs/ Transaction Costs (i.e. Court Costs)
4. Information Access – liability rests with A v. B because A understood and could assess
the situation based on greater access to pertinent info
5. Fairness – everyone agrees fairness is important but not everyone agrees about what’s
fair; always try to turn this around – if it can be done, the argument is not successful
6. Retribution/ Punishment – badness of the act is directly proportionate to the amount of
damages awarded to P
7. Justice
a. Consistency – like cases should be adjudicated alike but no two cases are alike so
the lawyers’ job is to pick up characteristics of their case that is similar or
dissimilar to a prior case and argue that it should be adjudicated accordingly
b. Predictability – people should be able to make judgments based on liability of risk
taken
c. Coherence – Understanding the outcome of the case law
8. Judicial Administrability – ability to enforce the ruling

(Note: These arguments can be applied to determine which liability theory applies when it is
uncertain. When it is obvious, these are not considered/ needed/ argued.)

Compensatory Damages – Compensate the injured P for the tortious and illegal loss that was
suffered; uses B <PL, if the burden was low, any chance of injury would have outweighed the risk of
printing some more words

Punitive Damages – Designed to punish the bad behavior and is usually calculated via semantics (i.e.
willful, gross, callus disregard, malice, etc.); usually determined in a second trial; it is believed that

48
the manufacturer should know the risks (and will be held liable if they don’t know but others within
the industry do know – the downside being that Ds spend most of their time denying information and
not finding problems) and try to reduce it as much as possible if not completely.

NJ – the reasons for the industry campaign were to overrule O’Brien (avoided the RUB of
product that are inherently dangerous) they succeeded and brought back a pro D defense
but weren’t successful because the statute only pertains to products with inherent risks.

Gillham v. Admiral (Handout #2): Television set that exploded into flames and injured the P.
The D knew of the risk and left it anyway. As a result the D had to pay punitive damages.

Grimshaw v. Ford Motor Co. (p. 916): Pinto Case – they knew of the risk and analyzed the
cost of fixing the problem v. just fixing it on the newer models due for production. They
decided it was cheaper to pay the injured parties than to fix the problem. D had to pay
punitive damages.

Broad Outline for Answers:

2. Issue
3. Prima Facie elements & defenses to them
a. Apply facts of the case to each element
b. Apply law to relevant facts
4. Causation – cause in fact & proximate
5. Proof
a. Who has the burden/burden shifting?
b. Are experts required
c. RIL?
6. Contributory & Comparative Negligence, Assumption of Risk
7. Other Defenses (including the various liabilities)
8. Other treatments

49
 9. Policy Issues

Warranties (UCC) = a seller may make several warranties that are of importance; if the seller
breaches any of these warranties, the buyer may bring a damage action for breach of warranty, which
can be viewed as a special type of beach of K action; manufacturers are strictly liable in tort when an
article is placed on the market with knowledge that it will be used without inspection for defects; if
defects exist, the D can be found liable under the warranty theory; warranty theory was used to get
around the arcane requirement of privity; there is an implied warranty of defective products
especially on food.

1. Express Warranty: an explicit (not just implied) promise or guarantee by the seller that
the goods will have certain qualities; seller is free to disclaim this warranty as long as
he/she does so in a clear and reasonable way; this can be expressed via
• Description of the goods
• Sample or model of the goods
• If the seller is clearly expressing an opinion, he will not be held to have made a
warranty

2. Implied Warranty of Merchantability: unless excluded or modified, a warranty that goods

shall be fit for the ordinary purposes for which such goods are used is implied in a K for
their sale if the seller is a merchant with respect to goods of that kind; seller may disclaim
this warranty but must follow UCC protocol to do so

3. Warranty of Fitness for a Particular Purpose: where the seller at the time of contracting has
reason to know any particular purpose for which the goods are required and that the buyer is
relying on the seller’s judgment to select or furnish suitable goods, there is an implied
warranty that the goods shall be fit for that purpose; seller may disclaim this warranty but
must follow UCC protocol to do so; Elements that the P must prove:
• The seller had reason to know the buyer’s purpose
• The seller had reason to know that the buyer was relying on the seller’s skill or
judgment to furnish suitable goods
• That the buyer did in fact rely on the seller’s skill or judgment to furnish suitable
goods

(Note: If the buyer insists on a particular brand of goods, he/she is not relying on the seller’s
skill or judgment to furnish suitable goods, so no implied warranty of fitness for a particular
purpose arises.)

Henningson v. Bloomfield Motors (p. 739): P purchased a car from D at which time both
parties disclaimed the warranties by the dealer or manufacturer, except one that limited the
liability of the Ds to the original purchaser to the replacement of defective parts within 90
days or 4,000 miles, whichever occurred first. Shortly after the steering mechanism failed
and caused the car to crash and injured P’s wife. Rule: Implied warranties of
merchantability is non-disclaimable, buyers cannot waive their right to compensation
on an as-is product, buyer cannot buy a product as-is or otherwise that is not

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reasonably safe for its advertised purpose (100% tort duty, 0% contract duty; dubbed the
first true strict liability ruling against manufacturers by Justice Traynor). (WARRANTY)

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