Deck 2 Flashcards
Kingston v Chicago, natural fire murges with unknown fire
No liability if D could prove that fire it merged with was of natural origin. Ds burden to show what caused the unknown fire.
Two fires. One result of negligence. Other natural. Tortious fire hits house first.
No but for causation. Natural fire would have destroed it anyway. So tortious fire didn’t cause any extra damages. Only liable for damages caused by loss of time.
Tortious fire merges with another tortious fire.
Looks a lot like Summers.
All fish die if 200 gallons of chemical X. Company A N dumps 100 gallons
No liability.
What if A and B both N dump 100 gallons.
Standard but for cause. Both liable.
A, B, and C all N dump 100 gallons.
None are but for cause. But we want liability. Maybe use Summers. Three N, can’t determine who was tipping point so all liable unless info forced. If done in order, then C not liable.
When do we bend but for causation?
Summers, two tortious fires, faulty brake example (comapny provides car, break doesn’t work, break never applied, but for causation doesn’t work), three companies each leaking 100 gallons.
Herskovits v Group Health Cooperative of Puget Sound. But for cause problem: LIkely dies even if diagnosis made at earlier time.
Hypo: 20% to 45%: More likely than not that failure to diagnose was the cause. But for causation.
Hypo 30% to 55%: Less likely than not that failure to diagnose was the cause. No but for causation.
Majority: Damages caused by premature death.
Concurrence: Should be tort liability if increased, even if it doesn’t make it more likely that doctor was the cause of death. If risk increased by 40% then 40% of the compensable value of the victims life had they surivved. Focused not on death but increased chance of death, but they sitll have to die.
Sindell v Abbot Laboratories. Can’t ID specific maunfacturer of DES that was taken during mother’s pregnancy.
Market share: 40% of market at time so responsbile for 40% of the damages. This is severable, not joint and severable.
Doesn’t matter if wrong in one case, if across the run of cases it comes out correctly.
This doesn’t work if we have a small number of cases or a small amount of market share data.
Sanderson v International Flavors v Fragrances, chemical in perfume/lipstick something, etc.
No market share liability because products not identical.
Chemicals can be used in different ways, and interact differntly with different other ingredients.
Fungibility means the market share is a proxy for how much harm is caused.
Smith v Cutter Biological, HIV from blood.
No worries about interaction so fact that not fungible doesn’t matter. All manufacturers draw from the same populations and failed to screen so all have equally similar risk.
Don’t know market share. Judge applies anyway, open to rebuttal.
Only 1 person injured, so you’re holding people liable who didn’t cause the injury. This is an odd use of market share.
Polemis, owned steamship, plank falls, lots of exposions. Explosion is not forseeable, but is the direct cause because the fall caused a spark which caused the fire.
Negligent actor held for any damage that is a direct result regardless of whether or not it is foreseeable. Just follow the causal chain. No intervening causes.
The Wagon Mound (No. 1). Boat 1 spills oil. Boat 2 pauses work. Starts again 2 days later. Boat two starts fire. Spilling oil was negligent. Boat 1 liable?
No. Risk of fire low because it’s in water. Only caught fire because spark hit oily rag that was partially above water.
Disagrees with Polemis. Says test should be foreseeability (predictable regadless of whether direct or indirect).
You can deter stuff that is forseeable, can’t necessarily deter stuff that is direct.
In Petition of Kinsman Transit Co. Boat tie comes loose (was tied negligently). Collides with ships, hits bridge, bridge collapses, creates dam, leads to flooding.
This much is foreseeable. Ex of not forseable: Delay causes doctor to be late to srugery and someone dies as a result.
Kinsman factors: Type of harm/accident, physical force, class of persons.
Why would we let someone who is but for cause off the hook under Kinsman factors?
Because it might be unfair. Not necessarily proportional to blameworthiness. Intuitevely seems wrong when you can’t foresee it at all. Can’t deter stuff that can’t be forseen.
Hypo: Vacuum repairman repairs vaccuum but now worse. You get in car to go back to repair shop. Car accident. Negligence is but for cause. Proximate cause?
Differnt type of harm/accident (less clean home vs car crash). Maybe same class of person. Different physical force (dust and fire not car scrash).
Deterrence/fairness: Repair person not thinking about preventing them from driving and getting in a car crash.
Restatement and proximate cause
An actor’s liability is limited to those physical harms that result from the risks that made the actor’s conduct tortious.
It’s all about forseeability. What set of Ls are we worried about? This is the scope of liability.
Doughty v Turner, motlen goo case. Proximate cause?
No. Splash might be forseeable, but the chemical reaction causing an explosion is not.
Persons: Yes. Harm: Yes (good on skin). Physical force/mechanism: No (splash vs explosion).
It wouldn’t be wrongful to drop lid in goo intentionally so they shouldn’t be liable because it happened negligently.
Colonial Inn Motor Lodge v Gay. Car backs into heater. Explosion. Proximate cause?
Yes. Same person/property. Damage to building. Eggshell rule. Type of harm: broken windown or brick different than whole building. Physical force: Bump different than explosion.
In space where we are unsure maybe we revert back to eggshell rule.
You don’t know impact of bumping into wall. Should warn someone who would know.
Eggshell seems in tension with forseeability.
Diponzio v Riordan, rolling car at gas station.
Not proximate cause. Not the sort of harm we are thinking about when we say it is negligent to leave car running at gas station.
United Novelty Co v Daniels, rat catches on fire and leads to explosion. Liable?
Yes. Same physical force. Same type of harm. Same class of people. Just a weird mechanism, this doesn’t matter.
Steinhauser v Hertz Corp, Schizophrenia following car crash.
Yes. Not foreseeable, but eggshell case.
Central of Georgia RY v Prince Price and Pridham v Cash & Carry Building Center. Both cases action put them in situation where they eventually got harmed. In both cases the original actor is a tortfeasor. Why only liable in one?
Train company didn’t increase risk (staying at a hotel either way), but store did (now has to get into ambulance).
Hypo: Driver of bus speeding. Tree limb breaks and falls on bus causing damage. Liable?
No, even though but for cause. Differnt types of harm (crash vs tree branch) and different physical force (tree branch falling vs bus hitting someone/something).
If negligent act decreased risk it would be weird to hold them liable (moving past area faster).
Brauer v NY Central & H.R.R. Railroad hits wagon. Stuff scattered from wagon. Stole by 3rd party. Railroad liable?
Yes. Forseeable that someone would take valuable goods scattered on the road. Railroad has security to prevent theft, but they didn’t do anything to protect the stuff from the wagon.
Watson. Gas spill. Cigarette causes it to explode. Liable?
Liable if accident (forseeable). Not liable if intentional (not forseeable).
Village of Carterville v Cook and Alexander v Town of New Castle. In both cases the town created a dangerous condition and P was harmed as a result of some outside force. Why different?
Carterville: Inadvertent Jostle. Forseeeable. Guardrail would prevent falling.
Alexander: Malicious. Not very foreseeable. Guardrail many not have prevented throwing.
Piazza v Kellim. Key left in van. prisoner escapes, kills someone. Liable.
No. Doesn’t seem fair even if forseeable.
Scott v Shepard. Throws firework. Thrown again. Again. Boom. Intervening cause?
No. Second and third throws were defensive and foreseeable. First throw is liable.
Thomson v White. Clow distracts and causes accident. Liable?
Yes. Was foreseeable.
In the Roman Prince. Waits to long to evacuate sinking boat. Stumbles and injured. Causer of accidnet liable?
No. Had time to get out without rushing. Gets on and off boat all the time anyway.
Henry v Housotn Lighting & Power Co. Drilling hole. Severs gas line. Someone comes to fix it. Someone yells fire. Hurt rushing out. Original severer liable?
Could go either way.
Johnson v Kosmos Portland Cement Co. Boat filled with gasoline fumes. Lighting causes it to blow up. Forseeable?
Yes. Same type of harm. Same class of persons. Forseeable on a rainy day that struck by lightening.
Clark v E.I. DuPont de Nemours Powder Co. Explosive left by DuPont. McDowell recognizing danger brings it home. Hides in graveyard. Dupont liable?
Yes. Foreseeable that someone would find and move it.
New and independent cause
A separate and independant agency, not reasonably forseeable.
Negligent car accident. Rubbernecking 45 minutes later. Crash. Liable?
No. Forseeable, but seems intuitively unfair to hold liable.
Yania v Bigan. Bigan taunted into jumping down. Drowns. Liable?
No. Decision to jump, not taunting created the risk. They weren’t causer of harm. Causer of harm was jump not taunt.
Probably comes out the other way if jumper is a kid. Verbal is problematic, but decision to jump is intervening cause.
321 duty to prevent unreasonable risk from causing harm
If the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect.
322 helplessness and duty of care
If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm
Weirum v RKO Radio General. Telling people to go to location to win prize. Speeder hits someone. Radio liable?
Yes. Forseeable that car accident from speeding to win race. Offered reward more than just teasing. Also kids were the ones driving speeding car.
Soldano: Someone at a bar gets shot. Liable for not giving phone t call police before shooting to break up a fight?
Yes.
There is a duty when there is imminent danger of physical harm to not prevent someone from using a phone in a public place in an attempt to prevent the danger from taking place.
Stangle. Someone has jewel stolen from them. Liable for not allowing someone to use phone to help prevent theft?
No.
Globe Malleable Iron & Steel Co. v New York Central & H.R. R. Co. Train blocks firetruck from getting to fire multiple times. Liable?
Duty to get out of the way of emergency services when easy to do so.
Clear who has the duty. Little risk, you just have to stop the train.
United States v Lawter versus Frank v United States
Lawter: They did a bad job rescuing. Helicopter cable not secured. Increased risk of falling into the ocean (this wasn’t an issue before).
Frank: Coast Guard didn’t increase likelihood of risk. Coast Guard had no duty to rescue.
323 protection of other and duty of care
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if a) his failure to exercise such care increases the risk of such harm, or b) the harm is suffered because of the other’s reliance upon the undertaking.
324 rescue and duty of care
One who being under no duty to do so, takes charge of another who is helplessly inadequate to aid or protect himself is subject to liability to the other for any bodily harm caused to him by a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge, or b) the actor’s discontinuing his aid or protection, if by doing so he leaves the other in a worse position than when the actor took charge of him.
Ocotillo West Join Venture v Superior Court. Course took keys. Friend says will give them ride home. Gets keys. Gives them to friend. Car crashes. Friend liable?
Yes. Increased risk. Left in worse position. Intentional not negligent. 324.
Bloomberg v Insurance Exchange of the Automobile Club of Southern California. Call for rescue.They took car but can’t find them. Car is hit. Is rescuer liable?
Only if you can find negligence in their rescue attempt.
Marsalis v La Salle. Cat scratch. Asks for cat to be observed for rabies. Cat escapes. Bad reaction to rabies treatment. Turns out cat wasn’t rabid. Cat watcher liable?
Risk probably enough if voluntarily undertook.
But what if they never said they would watch the cat. Only asked. So no liability under 324. Was an unreasonable risk creatd under 321? Maybe should have realized scratch created unreasonable harm from medical procedure. Then there is a duty to exercise reasonable care, and keep cat in. Under 322? Bodily harm cased by scratch. Left helpless because person hurt has no ability to keep eye on cat without help of cat owner. So maybe.
Petition of Trans-Pacific Fishing & Packing Co. Captain didn’t rescue crew member who fell overboard because they thought it would be too difficult (rough seas, fires on board, etc.). Duty?
Standard reasons for not having prexisting duties: Confusion over who will do the rescue (no confusion here, only one captain). Don’t want ametuer rescues (trained or trainable here). Unclear to what extent you would have to put yourself at risk (throw something overboard, etc. this isn’t risky). How much risk triggers this duty (falling overboard puts you at a high degree of risk).
Brosnahan v Western Airlines. Bag falls on someone during boarding process. Liable?
Airline has to ensure safety during boarding process. Clear who has duty here (flight attendants). Not dangerous for them to help put bags up. Very trainable. Airlines has forced passengers to sit in their seats (they’ve increased risk).
Common carriers
Transport any member of the public who can pay. Held to higher standards.
Charles v Seigrfried. Throw a party. Someone gets drunk. they get in a car accident. Die. Social host liable?
No. We don’t want duty rule here. Hard for host to control guests actions. Chillng effect, less parties.
Tarasoff v Regents of University of California. Patient says they will kill someone. No warning. Kills someone. Duty to warn?
If reasonable to think that threat is real you need to forego confidentiality and warn them. Victim eaily identifiable. High degree of danger. Clear who would rescue.
Thomson v Count of Alameda. I’m going to kill a kid in my neighborhood. Kills kid. Duty to warn?
No duty to warn. Unspecified. Greater infrignement of confidentialty. Increased stigma.
Vasectomy doesn’t work. Pregnancy. Can you sue doctor?
No. Duty only runs to patient.
Pharmacist knows prescription X and Y taken together will kill. Duty to warn?
No. This is on the doctor.
Haskins v Grybok. What is the duty to trespasers?
Obligation to refrain from intentional injury and from willful, wanton, and reckless conduct.
Tresspasser duty to another tresspasser
Would be same as duty from one person to another on public land.
Herrick v Wixom. Trespasser’s presence was noticed. Duty of care?
Regulare duty if you know they are there (liable for any negligence).
333 Duty to trespassers???
Landowner a) has to put the land in a condition reasonably safe for their recepiton (conditions of the land) and b) has to carry on his activities so as not to endager them (activity on the land).
334 constant tresspassing duty
If you know or should know based on facts within their knoweldge that tresspasser constantly intrude upon a limited area then liability for bodily harm caused by failure to carry on an activity involving a risk of death or serious bodily harm with reasonable care for their safety.
Duty only exists when you are doing something super dangerous. When not doing something super danger it’s the normal tresspasser rule. Also doesn’t exist when you only should have known, you have to should have known from the facts you know of.
