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Justification for Current Tort Law allows difficult moral decisions to remain socially acceptable Holmes and Posner: utilitarian trade-off, sacrifices lives to maximize wealth maintains semi-market structure those who generate sufficient wealth may take lives w/out liability if not at fault where negligent, courts assign price for lives taken enables technological and economic progress by making victims seem randomly scattered, unskillful, or somehow at fault avoids discussion of constraining technological and economic progress; allows losses to lie where they fall dissident; Calabresi should be greater emphasis on strict liability by having courts make a categorical decision to impose liability for certain activities or technologies; provides society w/ a truer sense of which technologies and enterprises make sense and which dont by making them internalize costs and reflect such in price current system focuses too much on individual responsibility and scape-goats some people Tort Law in 20th-21st Century Strict Liability Expanded in the 20th Century Within negligence doctrine: negligence per se; res ipsa, causal tendency Within strict liability doctrine: ultrahazardous activities, products liability Alternative systems: workers compensation, no-fault auto insurance (no fault means built around strict liability system) Mass tort suits: environmental, consumer protection, civil rights Social movements: environmentalism, consumer protections, workplace safety Tort policies: best chooser, corrective justice End of 20th century: Retreat from strict liability and tort liability generally: Strict liability doctrine: risk/utility test; product misuse; assumption of risk Re-emergence of negligence as dominant approach Tort reform and other statutory responses: caps on punitive damages, pain and suffering, etc. Tort policies emerged to promote individual responsibility; protect commercial enterprises Explanation for retreat from strict liability and tort liability generally: Limited resources and need to reduce welfare costs US is not common law system, more statutory, so reigning in common law generally Other welfare nets and private insurance available so dont need to use torts as welfare system Costs of litigation and court administration too high

Few Awards, Deterrence Ineffective Harvard Medical Practice Study in New York: 3-4% hospital-related injuries were caused by hospital; 1% of total due to negligence Of the negligently caused harm (1%), 14% die (13,000 patients die annually from hospital negligence) 1 in 8 where there was negligence by hospital causing harm file lawsuits, of those, 1/16 receive some money Generally Less than 50% of the settlements or awards go to victims; rest goes to cost of litigation, including attorney fees Highly disproportionate advantage to attractive plaintiffs (minorities, poor do worse) unfairness inherent in Deterrence Not Effective Weak signal for deterrence; b/c so few actually file claims, such high profits, and such uncertainty Small penalties that are unpredictable Insurance reduces signaling effect Companies thus far more likely to comply w/ statute or regulation than change behavior due to tort law. Tort law not very successful in changing behavior Still have tort law doesnt compensate victims or force companies to do risk/benefit analyses perception of justice is important; community acceptance (people bothered if no way to sue someone for wrong done) Hashi: should cap awards, make everything more strict liability so there are more awards (more consistency); rely on regulation for compliance/deterrence, give up on idea of deterrence as result of torts Policies Corrective Justice (explains strict liability especially); If I injure you, then I should compensate you for the injury I caused Deterrence Convince people not to engage in unacceptable behavior There are certain activities that are deemed bad; want to discourage people from engaging in them Economic: main modern driving factor Spreading the risk Cost/benefit: Reduce the number and severity of accidents If a defendant hasnt invested enough in preventing accidents, possibly should be held liable; or a higher investment might be deemed unreasonable or absurd Administrative costs: Tort system is highly expensive Van Camp v. McAfoos: toddler, tricycle; no strict liability for children engaging in child-like activities

Direct Intentional Wrongs Types of Intentional Torts Battery: person acts intending to cause harmful/offensive contact and harmful/offensive act results Elements: Act as intended: Intent to touch Intended touch was harmful or offensive Result: there was an actual touch actual touch was harmful or offensive Intent Touch: subjective viewpoint (mind of D) Direct or Indirect (Extended Personality Doctrine: in such close contact, part of you; grabbed plate) Tangible or Intangible (gases, fumes, noise) Smoke (courts divided): Traditional rule: (fumes, vapors) not tangible and no touching; esp. pre-1980 Modern: cigar smoke = particulates b/c indirect touch; only if blowing in face Substantial Certainty Garrat v. Dailey; boy pulls chair, woman was substantially certain to fall Harmful or OffensiveObjective viewpoint: good motive doesnt mean not socially offensive Snyder v. Turk: surgeon shoves nurses face = battery Cohen v. Smith: pregnant woman = battery Mullins: woman asked for no medical students, would be battery if student had known Low Likelihood of Harm: does not mitigate existence of harm (rock-thrower) Dual v. Single Intent Dual (minority): intend contact be harmful/offensive White v. Muniz, patient struck carer; no battery w/ dual intent; had to aprct. offns. Single (majority): intent to contact, results in harmful/offensive touching Wagner v. State: insane dept. store attack; battery via single intent Transferred Intent Doctrine: Transfer b/t persons or b/t types of intentional torts harm or injury does NOT need to be foreseeable; need to show some degree of directness Stoshak v. East Baton Rouge Parish School: school fight; battery via transferred intent Baska v. Scherzer: boys fight at ladys house; battery via transferred intent Alteiri v. Colasso: D threw rock to scare Q, rock hits P; transfer b/t persons and tort type

Result Actual Touch ARB v. Elkin; father abused children; mental anguish is sufficient harm Touch was harmful or offensive (reasonable person standard) Assault: Put in apprehension of a battery Elements Intent intent to put in apprehension of touch?: subjective intended touch imminent?: objective based on all circumstances (gray area) if conditional, not usually imminent words alone dont make imminent, must be coupled w/ action intended touch harmful or offensive?: objective (or intent to inflict harmful or offensive touching; transferred intent doctrine w/ battery) Result P placed in apprehension of imminent harm/offensive touch Touch must be imminent as well as harm/offensive Cullison v. Medley: girls family intimidates, grabbing for gun, close quarters; assault False Imprisonment person confines P intentionally w/out lawful privilege, against consent in lim. area for any time, however short Elements: intent to confine (subjective; mind of D) actual confinement (objective; would reasonable person consider confinement) knowledge by P of confinement (subj.) or actual harm sustained from confinement (objective) Torts to Property Trespass to land: Intentional entry upon the land of another (Invasion of the owners rights of ownership) Intentional entry: a deliberate intent to enter, but doesnt need to be an intent to trespass; if have reasonable belief that you are standing on your land, you can still be trespassing if deliberately there Trespass to chattels; intentional intermeddling and possible dispossession, short of conversion; liability imposed only if dispossession, lost use, or chattel or owner harmed Conversion of chattels; someone converts something to his own use by exercising substantial dominion over it and substantially dispossess the owner of it

Defenses to Intentional Torts; Privileges Self Defense; valid if Reasonable force One is privileged to use reasonable force to defend themselves, their property, or other people from harmful or offensive contact or confinement Apparent Necessity actual necessity not needed, reasonableness is (courts are divided over battery of police officer) No Duty to Retreat: person who is attacked is not required to retreat or otherwise avoid the need for self defense Commensurate Force You can only use force that is deadly or could cause serious bodily harm if you are responding in kind (to that type of force being used against you) most important sub-rule; this is what largely shapes reasonable you could be in a situation where you would be allowed to assault or imprison someone in defense, but it wouldnt be reasonable to commit a battery against them or kill them Katko v. Briney: spring gun; not commensurate force Brown v. Martinez: boys stealing watermelons; not commensurate force (minority ruling) Defense of a Third Person You have to stand in the shoes of whoever you are defending; courts are divided if battery of police officer Arrest and Detention P has burden of proof to establish a prima facie case; D has burden of proof to establish defense If D can establish a valid defense, he or she is off the hook even if P can establish the prima facie case Shopkeepers privilege Shopkeeper has a common law privilege to detain any person he believes has taken his property only to prevent theft or recapture property detention cant be used as punishment Restatement 120A: One who reasonably believes that another has tortiously taken a chattel upon his premises, or has failed to make due cash payment for a chattel purchased or services rendered there, is privileged, w/out arresting the other, to detain him on the premises for the time necessary for a reasonable investigation of the facts If wrong under Shopkeepers Privilege, liable for false imp. Peters v. Menard, Inc.: theft, pursuit, death; Shopkeeper immune

Discipline Parents: Children usually cant sue parents for disciplining them if reasonable force is used Force used by a parent may not be same as that by teacher Teachers By sending kids to school, parents delegating privilege to discipline esp. public school: teacher wielding power of govt. based on states power to administer compulsory public education Consent Look at consent in prima facie case and as affirmative defense Ashcraft v. King; family blood, AIDS; Transfusion exceeded consent given Kennedy v. Parrott; surgeon popped cysts; No direction not to do so, but maybe negligent Doe v. Johnson; consent to have sex isnt consent to get AIDS If there is consent, is it effective? Consent not effective if person lacks capacity to give Incapacity of adult P renders her consent ineffective only if her condition substantially impairs her capacity to understand and weigh the harm and risks of harm against the benefits flowing from the proposed conduct D must have knowledge of Ps incapacity to render ineffective Use objective test Robins v. Harris; woman in jail cannot give consent Does this involve a collateral matter, unequal bargaining relationship? Relationship b/t parties and social custom can have effect on consent employer-employee relationship can make employee feel have to consent to certain activities Payton v. Donner; patient, doctor, sex addicted patient not able to consent (addiction and doctor-patient) Allowed to seduce, but not to coerce

Privileges Not Based on Plaintiffs Conduct arrests and searches public rights: have privilege to enter places of public accommodation and use services necessity public: govt taking for public use Restatement (Second, Sec. 196): privileged to enter anothers land if it is or if actor reasonably believes it necessary to advert imminent public disaster Some states: govt. taking must result in public improvement before just compens. required Surocco v. Geary; firebreak is necessity Wegner v. Milwaukee Ins. Co.; fleeing criminal; compensation required by statute private Usually involves trespass of private property; private individual says was necessary to use another private persons property Ploof v. Putnam; Champlain; dock owner must compensate if boat moored out of private necessity Vincent v. Lake Erie Transportation Co.; boat owner must compensate dock owner if remained tied to dock and damaged dock, despite its privilege Coasean Theorem Assumptions: no transaction costs (no information costs); no concerns about distrib. of wealth Theorem: it does not matter which party is assigned liability in a free market system if the goal is to achieve an efficient allocation of resources The most efficient result will be reached b/c the parties will contract to reach this result (even through bribing)

The Scheme of Negligent Wrongs Prima Facie Case for Negligence Absence of ordinary care which a reasonably prudent person would exercise in the circumstance Elements D owed P a legal duty D, through negligence, breached that duty P suffered actual harm Different from intentional torts; in negligence, if no harm, no claim for negligence Ds breach of duty must be proximate cause of harm Duty The General Duty of Care: Prudent Person Standard Duty requirement: General duty of reasonable care owed to those around us Standard of care of a reasonable prudent person Stewart v. Motts; gas poured in carb.; one standard of care, degree changes w/ situation Emergency: standard stays same, quantum changes Bjorndal v. Weitman; car turning; emergency=same standard Disabilities Physical; taken into account What would a reasonable person w/ that disability have done? Shepherd v. Gardner Wholesale, Inc.; blind Mental; not taken into account What would a reasonable person have done, who didnt have that disability? Creasy v. Rusk; patient kicked caregiver; mental disability; same standard Expertise: standard of care increases expect more from specialists, higher standard; standard of care = person w/ that expertise Special knowledge (i.e. overhearing information): standard stays, quantum increases; degree of care = that of a person w/ knowledge of those facts Hill v. Sparks; heavy equip.; had expertise (higher std.) and special knowledge (higher degree)

Children Standard: reasonably careful child of same age, intelligence, maturity, training and experience would exercise under the same or similar circumstances adult standard of care when adult or inherently dangerous activities (i.e. adult skills required, normally engaged in by adults, some danger) Robinson v. Lindsay; snowmobile; inherently dangerous very young children majority: <3 (5 in some places), not capable of negligence other states: Rule of sevens Over 14 capable 7-14 presumed incapable Under 7 not capable Intoxicated person = standard of care of sober person Specification of Particular Standards or Duties Negligence As a Matter of Law Affirmative defense; not usually successful judge determines 1) duty and 2) breach of duty based on common law Issue = was P was contributorily negligent? Based on same standard of care used in determining D was negligent Chafin retreated from common law rule applied in Marshall Marshall v. Southern Railway Co.; P drove into RR trestle; always stop in range of lights Chaffin v. Brame; truck in road; dont always have to stop in lights Advantages Establishes firm rule like cases should be treated alike Minimizes jury decisions Disadvantages Individual cases of injustice when firm rule Minimizes jury decisions

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Negligence Per Se violating statute creates negligence; no question for the jury regarding the issue of negligence violation of the statute, w/out explicit language, determines actors negligence statute supplants common law standard of care; violation establishes breach Judge determination (not fact-finder) Applies only to statutes that declare conduct unlawful but silent on civil liability statutes role in determining breach: decisive (most common), relevant, given presumpt. weight Lessens Ps burden on whether actors departure from the standard of conduct required of a reasonable man if statute clearly defines required standard of conduct statute must have intended to prevent type of harm Ds act caused person harmed must be of type statute protects violation must have been proximate cause of injury not having license doesnt create a breach of duty; can do something competently w/out license R2nd: violation of statute excused if: Actors incapacity Neither knows or should know of compliance Unable to comply based on a reasonableness standard Emergency not due to own misconduct Greater risk of harm R3rd: violation of statute excused if: violation reasonable b/c of actors childhood, physical disability, physical incapacitation actor exercises reasonable care in attempting to comply actor neither knows nor should know the factual circumstances making statute applicable violation due to confusing means of presenting statute to public compliance would involve a greater risk of harm to actor/others than noncompliance Martin v. Herzog; buggy w/out lights; negligent per se OGuin v. Bingham County; Children at dump; county negligent per se b/c no fence Impson v. Structural Metals; Attempt to pass w/in 100 feet of intersection; negligent per se

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Breach of Duty: Foreseeable Risks/Costs means of assessing reasonable care Risk-Utility Formula: liability is dependent on whether burden<probability*injury This requires estimating risks and estimating costs/benefits (cost of memory, cost of information, variables) Loss=accident cost Burden=prevention costs including information, social utility, opportunity cost, safety equipment, enforcement Breach of Duty: when Loss*Probability>Burden No breach: when L*P<B There is a breach when investment could have prevented accident where the investment is less than the harm Surocco; L=nearby houses, P=of fire reaching houses, B=destroying Suroccos house Pipher v. Parsell; passenger grabs wheel, jury could find driver negligent Indiana Consolidated Insurance Co. v. Mathew; lawnmower; not negligent Stinnett v. Buchele; painting roof; cheaper for employee to prevent (information) Bernier v. Boston Edison Co.; phone poles; Negligent for not designing stronger poles United States v. Carroll Towing Co.; barge broke loose; negligent not having bargee aboard 2+ People Negligent and attempting to assess reasonable care Liability of one person doesnt necessarily excuse liability of another Comparative fault: person at fault can collect from another person at fault with damages reduced in proportion to his/her fault (apportionment) insolvent/immune tortfeasor: P eats his share joint and several liability: standard negligence system P can enforce her tort claim against any of multiple tortfeasors, so long as she doesnt collect more than total damages D has to receive contribution from the other Ds other Ds eat insolvent or immune tortfeasors share insolvent or immune tortfeasors: D has no assets or insurance, or is not liable by law

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Proving and Evaluating Conduct: Proving P must prove each element by preponderance; negligence must be more probable than not trier of fact reasonably believes probability of negligence > Santiago: bus accident, no liability; insufficient info. Gift: 3-year-ol. hit by car; cant assume neg. b/c insufficient info. Thoma: slip and fall in Cracker Barrel; trial court should not have granted sum. jud. for D Wal-Mart: slip and fall, manuals dont.=standard of care Testimony Lay Cant opine on ultimate issues (negligence); state facts in knowledge (ran light) exception: when shorthand of direct experience (i.e. speeding, appeared drunk) Expert Establish std. of care of professional May opine on ultimate issues if w/in field of experience and where it helps jury Upchurch: car accident, conflicting info; jurys verdict not against weight of evidence Custom and Usage foreseeable: shows problem foreseeable knowledge of risks: many think this risk was worth dealing with unreasonable risk: if the risk is unreasonable feasibility: if people are doing it, the cost of prevention cant be terribly high Duncan: can introduce evidence of custom even if not code; pressure treated stairs TJ Hooper: radios not custom, L.H. Test finds negligent

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Proving Unspecified Negligence: Res Ipsa Loquitor (the thing speaks for itself) Infer breach of duty from circumstantial evidence of Ds activities if ordinarily harm to P would not occur but for Ds breach of duty; no direct evidence Byrne: flour barrel; shop could be negl. Koch: power lines dont fall on clear day, res ipsa; Cosgrove: power (storm could cause, no res) gas (res) Three rules Control Old: W/in exclusive control of D at time of Ps injury (P must show) Modern: D must have right or power of control at time of breach of duty Giles: elevator maintenance company had control at time of inspection Other potential causes elim., esp. Ps actions (Warren: kid car, didnt elim. kids acts) Ds breach of duty must be w/in scope of Ds duty to P Procedural Effects Majority: inference of breach of duty establishes prima facie case; jury instr. on res ipsa Minority: Res ipsa creates presumption of breach of duty burden shifts to D, who must come forward w/ some evidence (not even preponderance) if D cant show sufficient evidence, can have directed verdict for P Negligence as a matter of law (in a few jurisdictions) Policy Rationales Covert form of strict liability D in best position to apply risk/utility and decide best thing; P doesnt have enough info Reciprocity of Risk Theory: perhaps liability imposed where D imposing > risk on P Ultra-Hazardous Activities: where D creates high risk to others, forces D to perform correct risk/utility by making strictly liable Law of circumst. evd.: if direct evidence scare, rely on ordinary intuitions regd. indirect proof Ds superior knowledge: court seeks to smoke out the best evidence unfair that D able to take advantage of his superior knowledge if burden on P to establish breach, it is in Ds interest to remain silent and produce no evidence on his breach res ipsa smokes out evidence needed to prove breach of duty, over which D has control

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Harm and Causation in Fact Actual Harm (actual damages) Third element in prima facie case; legally cognizable harm Dog: castration when supposed to be groomed; no harm Cause in Fact Fourth element of prima facie case; P must prove harm was caused by D But-For Test of Causation (actual cause, cause in fact) But for the breach of duty by D, would Ps harm have occurred? Linear view May be substituted w/ substantial factor where 2+ causes and but-for fails Hale: bushes, sidewalk; Ds act does not have to be sole cause Salinetro: pregnancy, x-ray, no but-for Exceptions Liability of two or more persons Two persons causing divisible injuries apportioned based on causation Dillon: boy grabbed wire; D2s only fault instant of pain and suffering; ordinarily D2 entirely liable Two persons causing indivisible injuries: Merger of concurrent causes Fault apportionment Where D1 more negligent, D1 pays more Joint and several liability w/ contribution (based on degree of fault) contribution allowed b/t Ds, P can sue either for full amount; D sued must go after others pre-emptive causation: later actor not liable Landers: salt kills fish; joint and several applies even though dont know which D did it duplicative cause: where either cause would have caused the harm, both Ds liable Anderson: fire from engine substantial factor test: actual causation exists where Ds act was substantial or

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material element in harm; even if no but-for causation Exceptions to Cause in Fact Contd. No merger of causes: shift burden to D, if Ds dont satisfy, joint and several Summers: shot in eye D liable w/out but-for: respondeat superior, partnerships, co-conspirators/act in concert Loss of Opportunity Claims P can recover for lost opp. for better recovery b/c D aggd existing illness/injury Traditional: P must show in absence of negligence, there was >50% chance of more favorable outcome; complete recovery Relaxed std. of proof: P must show negligence increased harm or destroyed substantial possibility of better outcome; complete recovery loss of op.: P must show that negligence deprived of substantially better outcome; recovery is value of lost opportunity, taking into account pre-existing conditions Lord: doctors didnt diagnose; P collects for lost opportunity illustration: 3 patients w/ 1/3 chance of survival die of cancer, doctor negligently treated each; wrongful death of each is $100,000 recovery total liability traditional $0 $0 variation $100,000 each $300,000 lost chance $33,333.33 $100,000 omniscent trier $100,000 to one $100,000 Future harm damages in medical malpractice cases if accompanied by actual present harm where potential for future harm evidence of increased risk of future harm and damages proportioned to the probability of future harm Alexander: tumor might grow; die sooner b/c doctor didnt diagnose Dillon v. Evanston: catheter tip broke off; future harm allowed Market Share Theory: toxic torts Ds act in parallel; no evid. of causation not Ps fault; recovery by causation rather than relative fault

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Hymowitz: anti-miscarriage drug; liability based on % of market share

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The Scope of Risk or Proximate Cause Element Is the breach of duty proximate enough (in time, space, scope of risk) to the actual harm to P? Even if D was negligent and caused harm to P, D not liable if harm actually resulting was not the kind of harm that led to a finding of negligence in the first place Determining Proximity Risk Principle D must reasonably foresee class and type of injury (can argue general v. specific) no requirement of foreseeability of extent of injury (thin skull doctrine: D takes P as he finds him) manner in which injury occurred Cases Abrams: traffic accident not sufficiently foreseeable from not sending ambulance Medcalf: broken buzzer, attacked; type not Palsgraf: RR scale fireworks; P outside zone of danger Darby: pond swim; type of injury (Weils) not foreseeable Hughes: kerosene lant., expl. from vaporization, not just fire; manner not need be fors. Doughty: vat of liquid, chemical explosion; manner need not be foreseeable, wrongly decided (finds explosion different from splash and no liability) Hammerstein: diabetic, stairs, leg injury; foreseeable P, guest, and type of injury, ankle Concurrent causes intervening criminal act = superseding cause if not reasonably foreseeable Old common law rule: intervening always superseding Watson: match, RR tanker, explosion; RR doesnt to anticipate others criminal acts Modern: P has heightened burden of showing foreseeability If not foreseeable, either no duty or no proximate cause If Ds duty needed to anticipate anothers criminal act, not superseding Hines: railway past stop, P mugged; harm found w/in scope of risk; criminal act needed to be anticipated Where P intentionally attempts to commit/commits suicide, always superseding Delaney is minority b/c asks jury to decide if suicide may have been foreseeable

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Determining Proximity Contd. Direct/Indirect: evaluates order, timing of events and intervening causes Paulinas: worker on ship dropped timber, spark, negligent b/c timber was direct cause, not negligent under American rule minority Causal Tendency foreseeable scope of risk based on nature of the hazard created nature of risk that originated w/ breach of duty v. actual harm that occurred actual harm must be w/in scope and nature of the risk created by D Rationale: if D could have easily avoided a breach of duty usually associated w/ harm A then should still hold D liable if caused harm B, as long as A and B not from sig. dif. risks Questions to ask Injury to P and type of harm reasonably foreseeable, P in class of persons foresee-ably harmed by this? Was there an intervening cause that superseded Ds breach of duty b/c not reasonably foreseeable? Was P harmed in a way that was w/in the scope of risk created by Ds breach of duty? Exceptions to Proximate Cause Rescue: if P injured while rescuing Q, D liable Wagner: train trestle Limits to rescue doctrine, must actually be in course of rescuing; injury during rescue must be foreseeable Recurrent Fact Patterns; always foreseeable Rescue; Amaya: girl helicoptered to hospital, crashes; no superseding cause even if pilot negligent Medical malpractice termination of risk and zone of safety Marshall: car forced off road, passenger hit directing traffic; no termination of risk, original truck driver liable b/c not yet in zone of safety a condition, not a cause Sheehan: bus illegally stopped to let passengers off, passenger hit; bus being in travel lane not proximate cause b/c was merely a condition, not a cause w/in scope of foreseeable risk created by breach of duty

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why not purely scientific approach in determining proximity? no single objective answer exists moral and social: not subject to empirical analysis epidemiology is empirical basis of modern medicine two most common statistics in epidemiology rate ratio: strength of association b/t exposure and injury =1 no association; <1 positive association; >1 bad effect >=2 satisfies preponderance in most courts; rarely seen in data must be 100% increase in risk environmental pollution has rate ratios usually below 1.2 statistical significance: how stable is the data what are the odds that this result is simply due to random chance and same number will reoccur if study repeated p<5% statistically significant; p=.05 1/20 due to chance these are only two of many factors scientists rely on role of statistical power lack of statistical significance may be due to too small sample bias (selection (i.e. patients selected by doctors), observation) confounding (factor that may not be taken into account) i.e. more of those people had heart attacks after taking Vioxx, maybe those who take Vioxx are in pain and this increases risk of heart attack consistency w/ other investigations multiple studies reaching same result v. conflicting specificity of association (regarding exposure and disease) if studying NSAIDs and heart disease, better to study Vioxx and heart disease, better yet to study Vioxx and left coronary artery dose-response relationship (usually cant be shown, though it exists) if show-able, very strong factor in showing causality biologic credibility

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is the relationship consistent w/ the underlying physiologic explanation (i.e. Vioxx related to clotting) temporal relationships most studies cross-sectional; cant say if disease followed exposure generalizability is average person in study representative of P (age, gender, etc.) individual attribution looks at features of the person compared to the evidence trans-scientific issue (animal studies, ethical limits) treatments in medicine dont have empirical basis may not be possible to study some things most tort cases referring to statistical risk are medical malpractice cases economic: causation only one empirical factor; too complex, costly to require precision no certainty in tort law but for and proximate cause practical concepts more accessible to jury laymen too administratively costly if too scientific (expert witnesses, long trials) accuracy/science less important than community acceptance of verdicts saying you probably caused harm to P so you are liable creates moral dissonance need moral certainty rather than scientific probabilities Daubert: Bendectin, birth defects; >30 studies refute; Ps evidence was re-analysis of published data SC: we want trial courts to act as gatekeepers of scientific evidence b/c juries more sympathetic and less able to assess data trial court judges should do intense analysis of scientific testimony to determine admissibility: testable science, peer review, error rate, general acceptance by relevant scientific community prior test: Frye, rule based on general acceptance; substance of testimony must be consistent w/ that which is generally accepted by the relevant scientific community drug causation: P must prove cause-in-fact general causation: capable of causing injury in general population specific causation: substance caused particular individuals injury Merck: Vioxx; Ps failed to show feasible alternative design; did sufficiently show specific (two clots,

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normal stress test, and general causation (connection b/c taking Vioxx and heart issues; clinical trials ok)

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Defenses to Negligence Contributory/Comparative Fault Contributory Negligence: The Common Law Rule P found to be at all negligent, completely barred from recovery Butterfield: P ran into pole in road,; P was contributorily negligent b/c riding hard at night; no recovery No longer the majority rule Policy unclean hands: unfair for P to point finger at D when partially at fault D doesnt breach duty to P if P negligent Ps negligence is intervening and superseding cause Adopting and Applying Comparative Fault Rules comparative negligence: P able to recover proportionate share based on fault Wassell: woman, motel, lets man in; P 97% at fault; 3% corresponds to treatment pure comparative fault: Ps recovery based on proportion of Ds fault (NY) related to insurance: P collects 20% from Ds insurer; Ds counter-claim from Ps insurance modified comparative fault: contributory negligence doesnt bar recovery if it was < Ds negligence WI; damages are diminished in proportion to Ps negligence; if 50-50: P can recover 50% another version: P barred recovery if his negligence is as great as Ds Sollin: Wangler dropped hay bale on Sollin; Sollin gets nothing b/c found 50% at fault minority: Ps contributory negligence completely bars recovery R3rd: when assigning responsibility, consider nature of risk-creating conduct (awareness or indifference w/ respect to risks created; intent w/ respect to harm created) and strength of causal connection b/c risk-creating conduct and harm All-or-Nothing Judgments After Comparative Fault P not at fault when P not negligent, Ps neg. isnt cause of injury, injury not in scope of risk of Ps neg. D not at fault when D not negligent, Ds negligence isnt cause of Ps harm Superseding Cause minority: Ps recovery barred if Ps act supersedes Ds majority: juries may apportion responsibility

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Contributory/Comparative Fault as Defense to Negligence Contd. Allocating Full Responsibility to D in Interest of Policy or Justice P may not have duty to act reasonably in self protection; cant be charged w/ contributory neg. for failing to do so Bexiga: P, minor, crushed hand in employers press; contributory negligence unavailable b/c the supposed negligence is what the guard was supposed to protect from; manufacture had duty to install guard Christensen: student-teacher relationship; student couldnt be contributorily negligent for such; student under control of school, cant be expected to protect self P not guilty of contributory negligence where entitled to engage in act LeRoy Fibre: flax stacked next to RR; owner entitled to stack flax anywhere on his property so contributory negligence doesnt count Traditional Exceptions to the Contributory Negligence Bar Rescue: person seeing another in imminent danger due to anothers negligence not contributorily negligent unless reckless Last Clear Chance/Discovered Peril: traditional: P allowed full recovery if P placed self in helpless position and D, who could have avoided injury, negligently inflicted such or didnt act to avoid Exceptions: P inattentive or not actually helpless comparative negligence jurisdiction Ds Reckless or Intentional Misconduct traditional: contributory negligence not defense for Ds intentional, willful, wanton, reckless torts Barker: 15-year-old made pipe bomb w/ materials procured from 9-year-old; 15-year-old cant recover anything b/c was engaging in serious criminal misconduct

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Assumption of the Risk, another Defense to Negligence Contractual or Express Assumption of the Risk: Ps may waive right to sue for others ordinary negligence Steps Contract? (oral or written) Unenforceable contract of adhesion (multi-factorial test) duty to public (special public interest) nature of service performed (essential) unfair bargaining power (fairly entered into K) text clear and ambiguous? courts generally strictly interpret terms of scope of release; attempt to reserve Ps rights hospitals waivers are unenforceable; Tunkl (public interest, essential services, unfair bargaining power) Cases Boyle: physicians recommended surgery for cancer patient, went to D instead for non-FDA medication, died; if P expressly assumed risk, barred Moore: rock in ATV course; court interpreted narrowly, rock in course beyond what P waived Implied Assumption of the Risk Law of Torts, Sec. 214: voluntary confrontation of a risk doesnt communicate release of others from duty of ordinary care (i.e. jaywalking) no explicit agreement; looks at parties conduct to determine whether there was a reasonable understanding traditionally: P completely barred recovery when, knowing risk and appreciating quality, voluntarily confronts purpose: courts use implied assumption of risk to mean something else Ps contributory negligence; merger w/ comp. negligence and recovery proportionate to fault Betts: housekeeper tripped on items left on stairs; P found 15% at fault; assumed risk merged into contributory negligence no duty or no breach of duty by D; no liability, no recovery Avila: hit by pitch; opponent college does not owe duty, says P assumed risk Sunday: bush in slope; ski resort owes duty not to have stuff in slope; risk not inherent consent; P consents by participating in sport w/ inherent danger Turcotte: jockey injured by another; foul riding rule; P consented to risk; inherent

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Defenses Not on the Merits: Statutes of Limitation generally sets black-and-white, bright-line deadline by which Ps must file tort claims usually 2-3 years for personal injury only requires commencement of action, not remainder of proceedings malpractice sanctions for attorneys who fail to file on time tolling: stops clock; i.e. D fraudulently attempts to prevent P from filing purposes fairness: bars stale claims b/c might be unfair or costly b/c evidence lost/altered over time economic: permits insurance and business planning traditional rule: begins to accrue at time of injury Crumpton: woman injured by nurse lowering hospital bed; SOL runs at time of injury, which patient ascertained immediately; no tolling b/c negotiations have to be fraudulent to allow tolling Shearin: surgeon removes appendix, told P takes time to heal; SOL began when sponge left modern rule: discovery rule delays start of statute of limitations until medical treatment for which patient consulted physician concluded elements delays accrual of claim until all elements of tort present and P discovers (or reasonable person should discover) injury and Ds role in causing it creates issue of when reasonable person would have discovered sufficient facts Schiele: meat wrapper, respiratory disease; statute of limitations begins when P accesses info which would indicate to reasonable person that injury is serious or permanent and cause; not necessarily diagnosis or symptoms

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Common Law Strict Liability for Physical Harms Damages compensatory damages restore to pre-injury condition v. contracts: benefit of bargain v. property (restitution or injunctive relief to prevent further invasion or entitlement injunctive relief based on property and criminal law; seeks to protect entitlements not technically tort remedy mostly used to prevent future, repetitive actions where consistently, repetitively done in past punitive damages for wanton and willful or malicious behavior in negligence suits seek to punish or deter behavior traditionally: present and future damages (and effect on future earning capacity) awarded for actual injury not increased potential Martin: boys riding motorcycle hit sagging power lines; medical expenses: present and future (skin grafts), future earnings: testimony concerning skilled v. laborer, projected into future by taking into account inflation and deflated for being paid now; pain and suffering: descriptions of injuries, social and mental effects latent potential exposure to environmental dangers and latency of disease manifestation; elevated risk b/c of Ds harm four approaches traditional: allow actual damages and res judicata bar on later suit allow proportional recovery of potential damages based on degree of increased risk recover actual damages w/ increased pain and suffering due to increased future risk minority: remove res judicata bar and allow later second suit if different nature of injury

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Strict Liability Generally Social Morality Policies Corrective Justice: you should be responsible for the harms you cause Reciprocity of Risk: if you are imposing more than a normal risk on another, makes sense to impose liability if you harm them P relatively innocent compared to D Economic Policies Deep Pocket: party best able to sustain liability Cheapest Cost Avoider (Best Briber): best position to prevent accidents that should be prevented Internalization and Spreading of Costs Goals Prevent future injury Assure compensation to injury Equitably spread losses caused by an enterprise Doctrinal Origins of Strict Liability Fills in gaps in other areas of law Criminal law: unlawful or offensive acts Trespass Public nuisance (historically minor criminal offenses) Property law: entitlements Private nuisance Trespass Ultra-hazardous activities Contract theory: enterprise liability Vicarious liability: employers have authority to control daily actions and who they hire Negligence is unique; very different from contracts, property, criminal law strict liability removes need to establish duty and breach of duty from negligence prima facie case; what remains is need to show causation and actual harm

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Vicarious Liability Respondeat Superior and the Scope of Employment Employers held liable for torts of employee w/in scope of employment employee must be primarily negligent for vicarious liability to apply Riviello: cook flipping knife hit customers eye; pub owner liable b/c w/in scope of employment Policy: see policies for strict liability except reciprocal risk and corrective justice Multi-factorial test to determine if w/in scope of employment Benefit: employees activity for benefit of employer Fruit: employee at convention, hit someone coming back from bar; further employers interests Hinman: employee hit cop; employer taking advantage of expanded labor market so employee w/in scope of employment even though coming and going; paid for travel Control: employees activity w/in control of employer Faul: construction worker at site; no employer liability b/c no control over travel (zone pay) Intent: (purpose motivating activity) w/in scope of employment Edgewater: filling out form for employer, 24-hour-a-day man, research at bar; actions were intended to further employers interest Foreseeability: employers ability to foresee that this activity would occur abuse: cop, psychiatrist (authority or trust) Lisa M.: no reason to expect ultrasound tech sexually abuse patient; purely physical relation Determining Scope of Employment Going-and-Coming Rule: employee going to and from work is outside scope of employment exception: special hazard, dual purpose Dual Purpose: While away from workplace, employee engages in service for benefit of employer; is w/in scope and employer liable (Edgewater, above) Frolic and Detour: employee goes to place not associated w/ employment for non-employment purpose during working hours; if mere detour: w/in scope, employer liable; if frolic: not w/in scope Borrowed Servant: where one employer loans employee to another employer, first employer liable, borrowing employer not, unless evidence that latter had right to control employee Captain of the Ship: nurses are usually employees of hospital, but if surgeon exercises control/gives directions to nurses in operating room, surgeon liable for nurses negligence Serving Gratuitously: master/servant can be w/out pay; servant must submit to employers control

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Employers Who Are Not Masters employer generally not vicariously liable for the torts of an independent contractor result of allowing employers to rely on alternative contracts exceptions based on contract principles (estoppel, non-delegable duty) Contractual Basis of Tort Law Contract failure w/ tort victims; impose enterprise liability on employers for the torts of their employees b/c of their authority to control daily actions or in hiring The independent contractor exception exists when we allow employers to rely on alternative contracts Exceptions to independent contractor rule based on K principles: estoppel and non-delegable duties Tort law supports free market system whenever possible; only fills in gaps where no contracts exist; put in liability rules after the fact test selection and engagement of agent if details left to worker and only result sought by employer, independent contractor if worker unskilled and master observes and supervises more closely, not independent contractor payment of wages employee: hourly/time-based; independent contractor: result-based power to discharge employee: employer sets specific duties, etc. so employer has more reason to discharge power to control servants conduct (most important) employee: if potential for high degree of control or if actually was high degree of control Hampton: child killed by foster parents son; foster parent not controlled by DHS whether work part of regular business of employer independent contractor does something tangential to or separate from employers business

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company liable even if hiring independent contractor if non-delegable duty doctrine: inherently dangerous work 1) foreseeable danger from potential negligence requires special precautions 2) special danger and not routine activity i.e. driving truck not dangerous b/c routine policy: otherwise would encourage companies to contract out inherently dangerous work (independent contractor would do as cheaply as possible); we want company doing hiring to have continuous obligation for that conduct Pusey: security guard shot trespasser; security guards, peculiar risk of harm to others attempting to avoid liability by using independent contractor hiring incompetent independent contractor employer liable if negligently hires, supervises, or retains a dangerous or incompetent employee who harms P, as long as employers negligence was a cause of the harm not about vicarious liability; about employers primary negligence P must show contractor incompetent or unskilled for job, harm resulted from the incompetence, and principal knew or should have known of incompetence there are certain things principal needs to assure self of when hiring contractor Puckrein: uninsured truck hit car; company hiring trucking company had to inquire about haulers insurance and registration b/c w/out such, no right to be on road apparent agency based on estoppel if principal creates appearance that someone is his agent, he cant deny such if innocent third party relies on agency and is harmed as a result majority: apparent agency where there is a reasonable belief minority: requires but-for detrimental, actual reliance OBanner: McDonalds; patron slipped in restroom; no actual agency b/c franchisee, P didnt go there b/c was McDonalds so no but-for reliance

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Other Forms of Vicarious Responsibility Partners personally liable for each others negligent acts Joint Enterprise Liability all members of a joint enterprise liable for harm to others but not other members elements agreement, express or implied, common purpose, community of interest, and equal right of control parallel activity: no liability; acting in concert, conspiracy, aiding and abetting: liability entrustment of vehicle owner liability entrusts to incompetent owner in car owner consent statutes and owner consents family purpose and negligent use by family member no owner liability ordinary bailment: entrusts to competent driver

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Development of Common Law Strict Liability Strict Liability for Trespassory Torts and the Advent of Fault Theory historically: almost all torts were trespasses and held strictly liable 12th c.: suit for trespass where damages from direct force 14th c.: case developed: where actual harm was result of indirect force required proving fault; usually special/contractual relationships (innkeepers/guests) fault different from that required to show negligence today 1700s: trespass included unlawful acts as well as intentional; increasingly similar to negligence 1800s: can waive filing suit in trespass, even where seems like; instead, file suit in case if can show fault avoids having suit throw out if force found indirect; blurs trespass and case decay of system based on tying writs to procedure and jurisdiction Weaver, 1616: soldier injures training; damages awarded; only needed show direct force, actual harm Brown v. Kendall, MA, 1850: man beating fighting dogs, hit person nearby; court required negligence to be shown Strict Liability after Brown v. Kendall ultra-hazardous activities causation: harm to P w/in scope of risk from the activity that makes it dangerous multi-factorial test high risk of great harm (reasonably foreseeable, tempers strict liability doctrine, more like neg.) risk cannot be eliminated by reasonable care not common usage (must be unusual usage, such as property defenses knowing contributory negligence and assumption of risk; (not contributory negligence alone) n where P knew that what he was doing could contribute to harm of Ds activity, defense P involved in some causal way, irrespective of Ps fault; P caused accident in some way no strict liability if potential victims can commonly succeed in avoiding injuries abnormally sensitive P where harm caused by P divisible from that by D: assign shares of responsibility Restatement: D not always liable if abnormally dangerous activity; only if possibility of harm is what makes activity abnormally dangerous; stronger case where D knows risky quality of the activity Sullivan: woman on public highway struck by debris from blasting; strict liability Exner: woman thrown from bed by concussion; no practical difference b/t debris and concussion

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wild and barnyard animals: where break loose or wander, owner still strictly liable for property damage caused nuisances can be brought as suit in strict liability, negligence, or intentional tort when brought in strict liability theory, usually involves some sort of dangerousness multi-factorial test substantial harm to P unreasonable interference w/ use and enjoyment based on harm/utility analysis of normal persons use (coming to, decrd market value) intent w/ substantial certainty to interfere causation (does conduct directly cause the harm to P) distinguish public v. private nuisance to have standing in public nuisance claim, must differentiate damages from public at large recovery (property-type remedy): injunctions possible but not favored; damages more typical affirmative defenses contributory negligence and assumption of risk knowing contributory negligence by P (makes almost identical to assumption of risk) coming to nuisance (not complete defense; factor in risk/utility analysis) Bamford: brick-making fumes; D must show acts are for common and ordinary use of his land b/c then there would be reciprocity of risk; owner merely need pay neighbor for harm, not stop doing Rylands: mine improperly filled, pond built atop floods mine; doesnt matter if D acted w/ due care or caution; non-natural use of land (in US b/c not all non-conforming uses = strict liability) modern examples impoundments of noxious substances that suddenly escape or slowly seep out (not ponded water) hazardous wastes w/ contamination lateral or subjacent support for neighbors concussion or debris from blasting/storage of explosives, high-energy activities (rockets, pile-driving) nuclear energy govt. not liable for nuclear accidents, as w/ sonic booms from planes Price-Anderson Act: private nuclear facility liable to not more than $560 million for one incident pest control and fumigation poisons; crop dusting does not apply: electricity, gas utilities

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Tort Liability for Defective Products Developing Core Concepts Evolution of Liability Theories products liability law: liability where manufacture or distribute harm-causing product Privity historically negligence: no privity required liability only where harm-causer sells to P; no liability where no privity exceptions: death natural and almost inevitable consequence (mislabeled belladonna) manufacturer negligent where danger can be foreseen (Buick wheel collapses) manufacturer liable for injuries resulting from conditions of misrepresented product express warranty where no negligence: privity required implied warranty w/ no negligence: no privity required disclaimer of ineffectiveness not good defense warranty of merchantability: minimum safety standard implied in any product warranty of fitness for specific purpose: nature of product should make suitable for particular purpose R2 Torts; Sec. 402A: sellers strictly liable for physical injuries to persons or property (other than product) if they place the product into commerce; injured consumer need not prove fault abolishes privity Rationales consumer justified in relying on manufacturers implicit representations of safe, healthy products manufacturers and seller better cost-spreaders of defective products (insurance, prices) cheaper to allow buyer to sue manufacturer directly rather than through seller since products usually defective b/c negligence, saves time/cost of proving negligence manufacturer shouldnt benefit from sale w/out assuming risk manufacturer imposes non-reciprocal risk on consumer deterrence: manufacture of safer products

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Establishing a Prima Facie Case for Defective Product generally no recovery for economic losses (inadequate value, repair/replacement of defective product, lost profits) test: nature of injury (to product v. person/property), nature of defect & manner of occurrence Moorman: crack in grain tank over 10 year period; no liability b/c nature of injury (to product) must determine product defective first P does not need to show what aspect of product was defective Manufacturing Defects physical departure from intended design injured party must show product was defective, unreasonably dangerous for intended use defect existed when product left Ds control (inferred when event of type that ordinarily occurs as a result of product defect, not solely result of non-product defect causes) defect was proximate cause of injury sustained consumer expectation test: product defective if more dangerous than ordinary consumer would expect when used in reasonably foreseeable manner Lee: exploding coke bottle; res ipsa: fact of explosion strongly implies defect at time of leaving Ds control; strict liability was available to P Jackson: pecan shells in candy; liable through consumer expectation test Mexicali Rose: chicken bone in chicken enchilada; no liability, minority: natural v. foreign Design Defects (affects entire set of products) can sue manufacturer for negligence (conduct) or strict liability for defective design same factors under Learned Hand test (risk of occurrence v. cost of prevention) prescription drugs: presumption for manufacturer Ps usually lose if product admittedly bad for you; court wont close industry; better if regulators do

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test for design defects consumer expectation (see above), traditional risk/utility: benefits of challenged design do not outweigh risk inherent in such design modern, or where unsophisticated consumer, highly sophisticated product, novel product unfair to rely on consumer expectation test; blurs negligence and strict liability elements harm that occurred the risk of the harm costs of prevention alternative design (places heavy burden on P) is available? (exists or w/in reasonable grasp) would have prevented injury from occurring w/out substantially impairing utility economically and technologically feasible cost/benefit: would not have safety benefit of alternative design must be greater than resulting costs (including increased risk) Leichtamer: Jeep roll bar; reasonably foreseeable misuse; designer should have anticipated back-to-front flip via consumer expectation test; punitive damages b/c Jeep did no research on how roll bar would bend Knitz: two-hand operation of press, employer installed foot pedal; jury could find design defective b/c could have foreseen over-ride; risk/utility b/c consumer expectation (P used every day) easily rebutted Barker: high-lift, lumber dropped on jumping-out operator; minority: P allowed to choose consumer expectation or risk/utility, P only shows design caused injury, burden then on D to show through risk/utility that additional safety measures not justified Honda: seatbelt, boat ramp; P 25% negligent, P failed to show feasible alternative design; timecontrolled device insufficient evidence, hip-release use by Toyota only shows tech. feasibility economic feasibility not shown McCarthy: hollow-point bullet, shooting spree; no liability b/c bullet designed to do what it did no negligent distribution b/c no special duty b/t manufacturer and criminal user

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Warning or Information Defects defective where omission of warning renders not reasonably safe majority: manufacturer not liable for not warning of unknown or unknowable risks test consumer expectation or risk/utility warnings cheap but not necessary where danger obvious or insufficient danger customer would not read too long list no duty to warn where obvious danger (risk/utility or consumer expectation b/c consumer could not expect safety in fact of obvious danger) where insufficient danger where warning needed: no liability if failing to warn not cause of harm b/c P wouldnt have read, understood, or heeded heeding doctrine: presumes P would heed warning if there; D has burden to show this P wouldnt learned intermediaries (pharmaceutical warnings only need go to Dr., unless marketed to consumer) Lorenzzo: coal pile indicates hole Liriano: meat grinder; safety guard removed; warning not to operate w/out guard would be useful (general would not, specific would) Martin v. Herzog: P showed causal tendency b/c D had no lights; burden of proof shifts to D to show lack of but-for cause Carruth: smoke detector in dead air space; jury could find small print, no captions, being buried in literature not sufficient warning Lewis: Ps dont need to show which D manufactured the lead paint b/c conspiracy to suppress info regarding effects of lead paint; only need to show causation and actual harm drug causation: P must prove cause-in-fact general causation: capable of causing injury in general population specific causation: substance caused particular individuals injury Merck: Vioxx; Ps failed to show feasible alternative design; did sufficiently show specific (two clots, normal stress test, and general causation (connection b/c taking Vioxx and heart issues; clinical trials ok)

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Defenses for Defective Products P voluntarily and knowingly assumed the risk (unreasonably proceeded to encounter known danger) maybe contributory fault: usually loss apportioned among those who benefit rather than those who contribute misuse not defense where Ps misuse reasonably foreseeable Product misuse: 1. Can come up in prima facie case as to whether defective product 2. Proximate cause (superseding cause) 3. Assumption of risk (as affirmative defense) 4. Contributory/comparative negligence (as affirmative defense) manufacturer cannot escape liability through disclaimer if personal injury occurs Bowling: dump truck bed crushes borrower; knowing contributory negligence Magic Chef: propane pilot explosion; minority: used misuse as part of prima facie Reid: buttons on side encouraged 2-person use, foreseeable; employers permitting not intervening/superseding