Torts

Question 1

Purpose of Tort Law

two purposes

Answer 1

1. Compensation
2. Deterrence
3. Public Disclosure

Question 2

Duty

General Rule

1st general rule

Answer 2

Generally, there is no affirmative duty to act, unless there is an exception

Question 3

Duty

Do not generally have a duty to act

primary exceptions

Answer 3

• Special relationship may give rise to duty to protect – Lifeguard, guardian, babysitter etc
• Between strangers, D may have affirmative duty to act if D puts P at risk (Commenced rescue) (Causation) (Voluntary undertaking / promise to perform)
• Statute, with express or implied right of action, may create affirmative obligation to act
• Special relationship may give rise to duty to Control risks to third persons (e.g, warden, psychiatrist (tarasoff), parent of violent child)

• Causation – creating the peril (Simonsen – placing obstruction on a public highway, p. 136) – you caused the hazard, you have a duty to act reasonably not perfectly to abate the hazard
• voluntary undertaking / promise to perform -(Randi W; Jackson v. State – failure to tell adoptive parents about information known about psychological evaluations of biological parents; pg. 151; this goes farther than Randi W. as no false info was provided)

Question 4

Duty

2nd General rule

Sec. 7 of Restatement

Answer 4

• If you do ANYTHING that causes a risk of physical harm to foreseeable plaintiffs, you have a duty to exercise reasonable care, whatever it is
• but, for reasons of principle or policy, courts may determine that there is a no duty exception in a given class of cases
• actors engaging in conduct that creates risks to others have a duty to exercise reasonable care to avoid causing physical harm.

The rule stated in § 7 is that an actor ordinarily has a duty to exercise reasonable care.

• That is equivalent to saying that an actor is subject to liability for negligent conduct that causes physical harm. Thus, in cases involving physical harm, courts ordinarily need not concern themselves with the existence or content of this ordinary duty.

Moreover, the duty of reasonable care is ordinarily limited to risks created by the actor’s conduct

Question 5

Duty

Where does legal duty of reasonable care exist?

Answer 5

1. creating risk to another (restatement; driving a car; making a product; providing incomplete or false info to another; negligent rescuie; etc)
2. Custody of another, including children
3. Compensation (getting paid, or paying)
4. Statute (duty to report child abuse in some states)
5. Possessor of land
6. Utility who knows of risk even if they did not create the risk (they would be liable for not informing others of the risk)

possibly – officer witnessing excessive force by another officer – turning into special relationship
possibly – friend to friend but likely not

Question 6

Duty – Special Relationship

boat case and creepy guys rescue case

Answer 6

• boat case – The court held no duty because no special relationship between parties
• creeps case – negligent rescue – but was there a special relationship b/w friends? no – There is no duty to each other arising out of a social relationship going out, for the evening for example

Boat – Superior knowledge of a danger by itself, without a duty to provide protection, is insufficient to establish liability in negligence
Negligent rescue – when we seek to rescue someone else, we have a duty to act reasonably – This means we will not place the other person in a worse position then when the rescue was commenced

Question 7

Duty – special relationship

Tarasoff

duty to control

medical professional duty to third parties

Answer 7

• The victim of a patients’ violence has a claim against the mental health provider for failure to warn the victim of the police if the tendencies have been identified by the provider

When a therapist LEARNS from his patient about intent to do harm to a third party, the therapist has a duty to take reasonable precautions given the circumstances to warn the potential victim of danger

not reasonably should have known

Question 8

Duty – special relationship

Juvenile offender case

duty to control

Answer 8

• County released a juvenile offender even though they knew he threatened to kill an unidentified child in the neighborhood. Complaint dismissed because county owed no duty to warn because the threat was unidentified.
• Distinction between Thompson and Tarasoff: In Thompson, dealing with the public purse. These kinds of cases happen frequently and would become a big tax on public purse if a duty was found here. Court skipped duty and went straight to causation. Even if there was a duty, it wouldn’t have prevented the harm.

Question 9

voluntary undertaking/promise to perform

Answer 9

1. Randi W. v. Muroc School District
   * Because the school district had volunteered to write the reference letter, they had to do so non-negligently. School provided false information, thus they had violated their duty.
2. Jackson v. state
   * Failure to tell adoptive parents about information known about psychological parents was a violation of the agencies duty of care to the parents because of their “voluntary dissemination of health information concerning the child.”

Question 10

Duty

Undertaking rule

Fox v. Amazon

Answer 10

• Amazon caused the sale of a defective product and then provided an inadequate warning about it
• The 6th circuit held that Amazon did not have an obligation to warn about the product but they did warn and did it negligently .. and the court held they have liability
• If you undertake to warn, you must warn reasonably

if you undertake anything, you have a duty to do it reasonably

• ex – does a person who agrees to act as a designated driver have a duty to third persons? yes it is an undertaking however this case is qualified, they have to begin performance – so a broken promise likely wont count
• negligent misrepresentation is an undertaking

Question 11

Duty

Statutes

When may tort claim be inferred from statutory language? Two approachs

with express or implied private right of action, may create an affirmative obligation to act

Answer 11

1. express – If a statute expressly provides for or forbids a civil claim, that language is applied.
2. implied?
3. two part test
4. public interest approach: Infer a tort claim where the public interest required
5. Legislative Intent Approach: Look at the language and purpose of the statute and examine its legislative history and apply the intent of the legislature. If no intent to create a private right of action may be gleaned from the legislative history, such a private action may not be inferred from the statute though the court may independently create a claim pursuant to Rowland.

scoliosis case

When a legislative provision protects a class of persons by proscribing or requiring certain
conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.

Question 12

Duty at the edges

Rowland Factors

should duty be found to exist?

Answer 12

• The foreseeability of harm to the plaintiff (Most important factor)
• The degree of certainty that the plaintiff suffered injury
• The closeness of the connection between the defendant’s conduct and the injury suffered
• The moral blame attached to the defendant’s conduct
• The policy of preventing future harm
• The extent of the burden to the defendant and the consequences to the community of imposing the duty to exercise care; and
• The availability, cost and prevalence of insurance for the risk involved

• When we talk about the Rowland factors, we should be looking at categories of conduct
  –So in the harper case, when we are doing our analysis, we should be looking categorically at the idea of a boat owner taking out a guest

Question 13

Duty

Policy basis for imposing no duty

Answer 13

1. Crushing Liability
2. Enabling tort – social host liability and negligent entrustment

Enabling Tort – Limits of duty within the concept of one person enabling the wrongful conduct of another

Question 14

Policy basis for imposing no duty

Crushing Liability

Strauss v. Belle

Answer 14

1. A man sues his landlord and the electric company after he fell down a flight of stairs in his apartment building during a blackout. He was not in contract with Edison.

A public utility does not owe a duty of care to those who do not have a contractual relationship with it.

The court held that they must limit the liability to a manageable level. If liability is too high, the company would not be able to absorb all of the costs and the liability would be crushing

Crushing Liability is a fallacy. Bankruptcy is not coterminous with crushing exposure.

CA does not follow this and allows them to go bankrupt

Question 15

Policy basis for imposing no duty

Take home asbestos case

Does a duty run from a business that deals in some manner with asbestos fibers, fibers get on the clothing of worker, worker goes home and the spouse in the household inhales the fibers and develops an asbestos related disease

Answer 15

• New Jersey approach: companies are responsible to 3rd parties (i.e. families of workers) for asbestos exposure because they “knew or should have known.”
• New York approach: Not responsible to 3rd parties due to concern over “limitless liability to an indeterminable class of persons.
• Why the difference?: NY case was dealing with a public entity (port), so concerns about draining the public purse arose.

Question 16

Policy basis for imposing no duty

Social host liability

Party at Mike’s house when I was 17

Answer 16

• The under-age nephew of the groom was served alcohol at a wedding reception and when he caused a car accident on his way home, the injured driver sued the bride and groom.
• Third party liability is not applicable here because the social host does not have a duty of care to the third party.
• Social hosts generally do not have a duty to third parties injured as a result of actions taken by those who are supplied alcohol, etc. by the social host.

Social hosts are not as capable of monitoring alcohol consumption as a commercial counterpart (case cited where commercial had duty)
Commercial counterparts have a profit interest and social host liability would be too wide sweeping and unpredictable

Question 17

Policy basis for imposing no duty

Negligent Entrustment

Answer 17

• In other words, if you give someone something and you know or should know, they may use it in a dangerous way and harm results, you are liable
• Grandma case – gave car to nephew – knew had no license and failed driving test multiple times
• thus negligent entrustment

Classic examples – gun or motor vehicle

If you give someone a gun, you need to know that they know how to handle it

Same thing with car → with a motor vehicle, there is a presumption that if someone has a license to operate it, they know how to do it competently so you wont be held liable
But if they are drunk and you hand keys, negligent entrustment

If someone is too young to handle a gun, and you give it → negligent entrustment

Question 18

Duties of Landowners and Occupiers

Common Law Distinctions

some states

Answer 18

1. trespassers = generally, no duty owed
2. social guests/licensees = duty to act reasonably to address known hazards
3. business patrons/invitees = duty to act reasonably to discover and address hazards

Prior to Heins (see below), courts used the licensee/invitee distinction to determine if the landowner owed a duty of care to someone. Heinz eliminated the classification

Question 19

Duties of Landowners and Occupiers

Heins Factors

FVTUR-B

factors to be considered to determine whether the landowner/occupier owes a duty of care to someone.

Answer 19

1. Foreseeability or possibilty of harm
2. purpose of entrant’s visit
3. time, manner, and circumstances under which the entrant entered the premises
4. use to which the premises are put or expected to be put
5. Reasonableness of the inspection, repair, or warning
6. burden on the land occupier and/or community in terms of inconvenience in providing adequate protection

Question 20

issue of duty of a landowner/business to protect against criminal acts

Rule

and 4 tests

Answer 20

Majority rule – businesses have a duty to protect patrons’ safety when criminal acts are reasonably foreseeable.

Foreseeability is determined by a balancing test which addresses both the interest of the landowners and their customers by balancing the foreseeability of harm against the burden of imposing a duty to protect against the criminal acts of the third person (kinda the Hand formula)

Four variations:
Specific harm: whether the business was aware of specific and imminent harm
Prior similar incidents: Whether there were previous, relatively recent, similar crimes on or near the premises;
Totality of circumstances: Look to everything. Don’t always need a prior similar incident to establish foreseeability (majority)
Balancing: Balance the probability and gravity of harm against burden on business (Posecai)

Walmart
* owed no duty to protect Posecai from the criminal acts because a very high degree of foreseeability would have to be found to warrant extra security in the parking lot

Question 21

Attractive Nuisance Doctrine

Answer 21

• Concept that you may have a condition on your property that is so attractive that it may cause others to come on your property – Even trespass – Usually for minors who are attracted to come onto your property

• Old cases involving the railroads which were attractive for minors because of the trains → caused railroads to be fenced and railroads developed duty to act reasonably toward the attractive nuisance of their conditions, which was satisfied by fencing
• Other is swimming pool for a residential/commercial property → we require fencing now (high enough to avoid a minor to come on and drown)

Question 22

Duties and immunities

3 traditional common law immunities

Answer 22

1. Charitable: Immunity found to protect the important contributions they provide. (Now, this immunity has been abrogated because of insurance)
2. Governmental: Depends on whether the act is ministerial or discretionary.
   Ministerial = actionable. Execution of a policy (such as police patrol of a neighborhood if he negligently crashes his car)
   Discretionary = nonactionable. Exercise of political, economic, or social judgment (such as police deciding not to have cars patrolling)
3. Intra-family Immunities: Parent Child Immunity, limited to tort suits between child and parent.

• Stems from parents unfettered rights to parent child

Question 23

duties and immunities

Parent – child immunity

Answer 23

Parent-Child immunity (torts b/w minor children and parents)
* Immunity stems not from unity of legal identity but rather from parents’ traditional right to discipline and control

Now:
Intentional harm → immunity gone (when it’s child v. parent)
Negligent harm → immunity eroding (when it’s child v. parent)

• suits b/w adult children and parents, b/w children and grandparents, and b/w siblings → always permitted.

Even suits by minor children v. parents asserting contract and property claims → always permitted.

See broadbent; but see holodook

Question 24

parent - child immunity

drowning child case

created new test

Answer 24

• Reasonable Parent test = A parent’s conduct is judged by whether that parent’s conduct comported with that of a reasonable and prudent parent in a similar situation.

Child drowns at the bottom of the family swimming pool when his mother steps inside to answer a phone call.

Applying the reasonable parent test, court found that the jury must decide whether leaving a two-year-old child unattended next to a swimming pool is reasonable or prudent.

Question 25

Respondeat Superior

Vicarious Liability

and why do we have it?

Answer 25

• Legal doctrine which establishes that an employer is legally responsible for the actions of employees performed within the scope of their employment

Why do we have it?
* Encourages employers to make their employees act safely
* Employee was acting to benefit the employer so making employer responsible is equitable
* Employer can factor risk into cost of good or service and insure against this risk
* Fairness to victim

Question 26

Employee

Christenson factors = Determines whether an employer is vicariously liable for the actions of their employee.

Answer 26

Conduct must satisfy all three parts of the test for the employer to be liable through respondeat superior.

• General Kind: the conduct is of the kind the employee was hired to perform, and not a personal endeavor;
• Time and Space: the conduct occurs within the hours and spatial boundaries of employment; and
• Motivation: the conduct is motivated by the purpose of serving the employer’s interest.

Question 27

Respondeat Superior

What factors control if someone is an employee (yes vicarious liability) or independent contractor (no vicarious liability subject to exception)?

Answer 27

How much control by employer? [most important factor is control or right to control]
* If no control, was there right to control?

Who provides tools
* Was a car provided or medical tools or others

Where work performed? On premises?

Continuous or one-shot? If continuous, what’s the duration?

Salary or freelance

Parties belief?

Is principal itself a business?

use chart

Employer’s instructions, though relevant, are not dispositive

A command, “never command a tort” is useless.

Question 28

Independant contractor

If Independant Contractor, generally not vicariously liable, subject to exceptions

Answer 28

1. non-delegable duty – maloney
2. activity peculiary or inherently dangerous
3. ostensible/apparent agent – Roessler
4. corporate liability for hospitals in some states

Roessler
Did the person appear to be an agent?
This is the rule

Corporate liability
CA, anyone working in a hospital is presumed to be an employee unless the hospital says otherwise

even if no VL = was employer nevertheless negligent in hiring, training or supervising the worker?

Question 29

Government liability

Police protection cases

Answer 29

Generally, there is no tort duty to provide police protection

Exception: Where the Cuffy standard of special relationship is met, there is a cause of action.
* Assumption by the municipality through promises or action of affirmative duty to act on behalf of the party who was injured; (MOST IMPORTANT FACTOR)
* Knowledge on the part of the municipality’s agents that inaction could lead to harm (even if its reasonable that they should have known, DOES NOT SATISFY THIS; THEY MUST HAVE KNOWN);
* Direct contact between the municipality’s agents and the injured party; and
* The parties’ justifiable reliance on the municipality’s undertaking.

This only creates a duty

Complete judicial immunity – even for malicious conduct
* If a judge takes a bribe, cannot be sued by a tort plaintiff
* CL rule that has withstood time

Question 30

Government Liability

Ministerial v. Discretionary conduct

Answer 30

Discretionary conduct
* reflects the political, social priorities

Ministerial Act
* an act taken in furtherance of an already established policy .
* DOES NOT REFLECT A POLITICAL SOCIAL OR ANY OTHER JUDGMENT. JUST AN ORDINARY JUDGMENT
* (Example: Government car is being driven but the driver runs a redlight – this is a negligent ministerial act)

can be sued for ministerial act

must be sued in federal court

Question 31

Breach of Duty

Negligence

Answer 31

Failing to exercise reasonable care under the circumstances

Question 32

negligence

4 approaches

Answer 32

Hand formula – Look to Burden of Precaution, Probability of harm and magnitude of Loss – Used in Carrol Towing Case.
* P and L can be hard to define and the formula does not address the moral and public relations issues, punitive damages, criminal liability

Substantial Risk Approach – Look to just P & L. Bolton v. Stone. Ignores Burden of Precaution, which is relevant

Community Expectations Approach – Look to (a) custom and (b) feasibility of safer conduct. Adams v. Bullock.
* But custom stifles innovation and defining custom in some circumstances is hard (“this is what most doctors do”)

Jury charge formulation – “Reasonable care under the circumstances”

Question 33

Negligence

The Hand Formula

what are some problems with it

Answer 33

B>LP = Reasonable care
B<LP = Negligence
* P = Probability of harm
* L = Magnitude of loss
* B = Burden of precaution – to D only

Problems with this?
* We can figure out what is costs to put up a sign (B), what is costs to cover the power line (B)
* But how can we ever figure out what the likelihood of a child swinging a stick and making contact with the power line??? We cant! Cant put real numbers on it
* WE also cannot figure out the magnitude of loss – It can be death or a tiny shock

That is why this is only a guidepost, never an exclusive way to figure out negligence

Question 34

Negligence

Cases

Hand formula and substantial risk approach

Answer 34

A barge, without a bargee on board broke adrift, was carried by wind into a tanker whose propeller broke a hole in barge’s bottom
* Here, the Burden of precaution would be the cost to have bargee on board.
* Magnitude of Loss would be the worth of the tanker hit and the cargo loss.
* The Probability of the ship hitting tanker without the bargee on board = high because it was a time of heavy traffic in the harbor.
* B<LP thus negligence

Cricket game – P was injured when struck by cricket ball outside of her house outside of playing field
* no negligence because in 28 years only 6 times this happened and nobody hurt before
* We should evaluate tort liability simply from whether D has created a substantial risk and if they have and harm happens, they are responsible

Question 35

Negligence

Community Expectations approach

Answer 35

Look at custom and feasibility of safer conduct.
* But some customs stifle innovation and defining customs in some circumstances can be difficult

Question 36

Negligence – Community expectations approach

Cases

1. stick and trolley wire
2. not replacing the wire case

Answer 36

D runs trolly line, P (12 years old) swings wire on bridge which comes in contact with trolly wires, P electrocuted. Court holds for D because there was “no reasonable expectation” this would happen.
* Exceptions: Medical Malpractice

D had wires with insulation expected to last 3 years – 15 years later, carpenter was electrocuted while building next to it

Did the D exercise reasonable care?
* No! Because the D did not re-insulate every 3 years and thus did not exercise reasonable care under the circumstances
* For cardozo the difference was that the wire in adams could not be insulated because it needed to be live for the trolley to work

the burden of care or the expected reasonable standard was a lot lower in Braun

Question 37

Negligence

Effect of compliance or violation of custom

Answer 37

• Compliance with custom is evidence of reasonable care but is not conclusive
• Violation of custom is evidence of negligence but is not conclusive

Question 38

What qualifies as a custom?

Answer 38

• custom is widely adopted or generally followed
• well defined and well known
• however, its usage need not be universal
• Usually confined to a geographic area or particular business

Even if not a custom, fact others do it differently can still be admissible because it can go, inter alia, to the feasibility of the omitted precaution and the significance of the risk the precaution addresses.

Hypo: If a business violates a custom because, if they adopted the custom they would become unprofitable, will that defense be allowed?
* NO, that is a subjective defense, we use an objective standard.

Question 39

Negligence

Effect of compliance or violation of statute

Answer 39

Compliance with statute is usually evidence of reasonable care but is not conclusive.

Violation of statute may be
* evidence of negligence,
* create a rebuttable presumption of negligence or
* conclusively establish negligence

purpose of statute is relevant
* does it simply say we want to control traffic during rush hours?
* criminal statutes can be used to set the standard of care

Question 40

Negligence

Can there be an excuse for violation of a statute?

NIEI

4 justifications

Answer 40

1. Necessity – compliance with the statute involves comparatively greater danger – Tedla
2. incapacity – children, fainting driver
3. emergency – bassi case
4. inability to comply – blizzard makes it impossible to comply with a statute requiring sidewalk to be clear of snow

Congress has said as to complex medical devices, things like heart valves, that FDA approval precludes a claim in court that the design of the product was defective, and therefore that if the FDA approved that medical device, a jury shall not consider whether the design was defective or not

Question 41

Negligence

Can there be an excuse for violation of a statute? Cases

Answer 41

Wrong side of the road pedestrians
* Court said there was no violation of statute here because the legislature could not have intended pedestrians to subject themselves to more danger by complying with the statute than violating it.

Bassi – Car came on highway stopped due to electrical failure
* it was impossible to comply with the statute because electrical system failed

Question 42

Negligence

Statutes

Class of Hazards

Answer 42

DeHaen Case
* A general contractor was obligated by statute to erect a barrier around a hoist way (shaft) to protect workmen from falling into the shaft and there a radiator falls causing death

Violation of statute should be charged, the court says, if the hazard ensued was within the CLASS of HAZARDS intended to be corrected by the statute
* goal of the statute = protect workers, stop things from falling
* worker fell

Question 43

Negligence per se

statutes

Answer 43

In most states, D’s unexcused violation of an applicable statute is negligence per se; that is, it conclusively establishes negligence

“Applicable” statute? Generally, yes if:
* Harm that occurred = same harm legislature was seeking to prevent (look for safety purpose); and
* P within class of persons statute was designed to protect. Cf. DeHaen

Question 44

Negligence

Children? and pros?

Answer 44

Blended Standard
* Children must exercise the care that a reasonable child of their age, intelligence, and experience would exercise
* when a child engages in adult activities, the courts apply adult standards

Higher standard for pros
* Those with superior attributes such as professional truck drivers or health care providers are held to a standard of care of a person in that circumstance

16 and operate a motor vehicle, you will not be heard to say as a defense – hey im only 16!!
* You will be held to the adult standard of operating a motor vehicle
* victims cannot differentiate between children and adults and we need to create appropriate deterrents

Question 45

Negligence

Sudden emergency doctrine

Answer 45

Which stands for the proposition that when someone is confronted by a sudden emergency
* they are not held to an objective standard.
* They are only held to a subjective standard of exercising their best judgment in that circumstance

Question 46

Proof of Negligence

Res Ipsa Loquitor

“The thing speaks for itself”

Answer 46

Doctrine permits inference of negligence when P establishes:
* Accident would not ordinarily occur without negligence, and
* Negligence probably attributable to D, rather than someone else

Usually inference, sometimes presumption (CA).
* if presumption, burden of proving no negligence shifts to D

Question 47

Cases

Res Ipsa Loquitor

Answer 47

Barrel Case
* a barrel of flour falling on someone’s head (1) would not ordinarily occur without negligence and (2) the barrel of flour was within D’s control and negligence attributable to D, there is an inference of negligence on D’s part.

P hit by a chair thrown out of a window of D’s hotel on the day WWII ended.
* P did not make out a res ipsa case because the negligence was not “probably attributable to D” and was more likely attributable to the person who threw the chair.

Hotel is hosting a convention with unruly guests. Guests are throwing objects from windows and vandalizing. Day before incident, general manager of hotel sends out a memo saying that they must “turn the other cheek.”
* P able to make out a res ipsa case because hotel could have been found to behave negligently because they knew of the danger.

P was a 4 year old child who went to nursery school in good health but came back with a bump on her forehead
* The mere fact that they bumped their head, even in somebody else’s care at the time – it might occur in the presence of negligence, but it just as soon might not

Res ipsa occurs when a car leaves the road and goes on the curb

A spare tire bounced from under a trailer injuring the driver following the trailer.
* This case stands for the proposition that if something goes flying off your car, you were probably at fault

Medical Malpractice context
* A man lost the use of his arm due to an injury which occurred while he was unconscious and receiving medical treatment for another ailment.
* This case is important because in the medical context, we often need to apply res ipsa because a patient is unconscious and something bad happens

Question 48

Circumstantial Proof of Negligence

Slip and Fall

Answer 48

1. D created hazard
2. D had actual notice – actually knew of hazard
3. D had constructive notice – should have known – hazard existed for sufficient length of time before the accident that it should have been id and remedied
4. D utilized business practice/mode of operation which made accidents likely (some jxn)

Question 49

Negligence

Medical Malpractice

Answer 49

a physician is under a duty to use the degree and care and skill that is expected of a reasonably competent practitioner in the same class to which he or she belongs, acting in the same or similar circumstance
* “Reasonably competent physician” not reasonably competent second year resident
* The standard is really what is competent to do when delivering a baby, regardless of what your stated area of medical specialization is, regardless of the years of your training, years of experience . . . it is testified to the procedure you are performing

DO the procedure competentantly that is the question, it does not matter WHO you are, it is what you did

It does not matter you did your best – it is about whether you performed your job in a objectively reasonable manner

Question 50

Medical Malpractice

Recurring Q’s in medical standard of care

It is established by expert testimony of what is the generally accepted standard practice

Answer 50

1. Practice of how many? Enough to be general practice
2. Is there a respected minority school? If the D followed the respected minority school, D wins
   But he also had to do it correctly, but if he had a bad outcome (bad outcomes happen all the time in medicine) it is a complete defense (if jury believes D)
3. Is the standard practice inadequate? Helling v. Carey – unusual basis for liability – where glaucoma test is cheap and easy and the harm of not doing it is rare case of blindness, standard practice of not doing the test is negligent as a matter of law. Compare to Hand formula; TJ hooper case
4. Is a mistake of judgment a defense? In most states, NO (Defranco case; mistake of judgment is subjective)
5. Is there a relaxed standard of care for residents? Majority rule – no.

Question 51

Medical malpractice

Informed consent

General

Answer 51

Must a physician disclose a financial interest in a proposed treatment?
* Yes, a doctor should disclose the financial interest – Looking at the patient rule – would a reasonable patient want to know whether a doctor has a financial interest in a procedure? Yes

Should a doctor be forced to disclose he is uninsured?
* No because it is not relevant to the risk of treatment

A doctor does not have to disclose if they are active drug users
* if it is not affecting ability to practice then it is likely not relevant to the standard of care
* hospitals have regulations taking care of recovery
* incentivize people to get care

• Can be seen as battery because failure to obtain informed consent can be intentional and offensive touching (battery)
• Emergency situations do not require informed consent

Question 52

medical malpractice

Informed consent

Answer 52

Concerns the duty of a physician to obtain the patient’s permission to operate or treat and to inform the patient of the material facts, risks and alternatives involved
* The issue of a material fact, risk etc is in the eyes of the jury

Question 53

medical malpractice

Informed consent

patient rule v. physician rule

Answer 53

Patient rule
* Dr. must disclose information a reasonable patient would deem “material” considering gravity and probability of harm.

Physician rule
* Dr. must disclose information a reasonable physician would disclose under similar circumstances → look to standard practice within profession

patient is majority rule

Step by step
1. was the person not told about the risk?
2. if the person had known about the risk, would they have gone through with the procedure?

Question 54

Should a mentally ill person be liable?

Rule

Answer 54

“Unless the actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable man under like circumstances”
* mentall illness is not a defense

Question 55

Proximate

Causation

ESK-MS-DF

Specter 7

Answer 55

Eggshell plaintiff
* extent of harm caused by Defendant need not be foreseeable

Scope of the risk test
* no liability for purely coincidental injury, where the scope of the risk of the harm was not increased by D’s conduct – trolley case

Kind or Type
* majority rule is no liability for injury of a totally different kind or type from which was foreseeable – wagonmound

Manner or mechanism
* precise manner or mechanism of injury need not be foreseeable – physical is physical – exact manner is not important

Superseding/intervening cause
* a superseding cause breaks the causal chain only if it is outside the scope of risk/not a foreseeable risk

Directness
* prox cause not found if harm is too ateenuated in time or space from original negligence – 10 years later

Fairness
* in a moral, pragmatic or philosophical sense

Question 56

Eggshell plaintiff doctrine

general and policy

Answer 56

When the plaintiff establishes that the D’s conduct caused some injury to P, then D can be liable for the full extent of the injuries

1. fairer to place burden of unexpected harm on wrongdoer
2. better deterrence effect
3. If we only compensated people for the expected injuries, we would have a nightmare of figuring out what is an expected injury v. unexpected (administrative)

Question 57

Eggshell plaintiff doctrine

Cases

Answer 57

• Benn rear ended by Thomas, suffers bruised chest and fractured ankle, but he has a history of heart disease and has a heart attack soon after. Court finds Thomas liable for all damage (death) not just the bruises, even though the death from the heart attack was not “foreseeable”
• Where a minor car accident that morphs into schizophrenia
  Physical injury → mental injury
  Liability still flows
• Where a burned lip morphed into deadly cancer = If the burned lip was caused by D’s negligence, then there is a good case
• Where D railroad was negligent in not cleaning up grass trimmings and then there was a spark from the train → fire — Ordinarily we would expect only sparks or a small fire but it was dry in england that summer and the fire consumed a neighboring house fairly far away
• D negligently broke P’s leg, and while P was recovering the crutch slipped and fell and the leg was re-broken and the court held the D liable for that aggravation – This is kind of different from an original impact scenario and feels more attenuated – something else intervened but it was only a couple days later

What if leg injured and P has a limp and 10 years later limp causes the fall
Is there a claim?
Probably not, too much attenuation – too big a gap in space and time

Question 58

prox cause

What about negligence from medical personnel helping?

Answer 58

It is a foreseeable consequence of the original negligent conduct of a motorist that their victim will be taken to a hospital and will get lousy care
* Does not matter why the care is lousy and original tortfeasor will be on the hook

Even if subsequent harm is not negligent from medical care but still injured further
* Because all of these are foreseeable

Question 59

Proximate cause

Asbestos cases?

Answer 59

just b/c latency period doesnt mean there isnt a close enough connection for the courts to recognize liability – true in all toxic tort cases

Question 60

Proximate cause

There is no liability for an injury that is pure coincidence

Scope of the risk

Answer 60

There must be a connection between the negligence and the harm suffered
* The D’s conduct must increase the risk that the P would have been injured

Speeding trolley case
* Speeding trolley and as the trolley is going along at this fast rate of speed, a rotted tree falls and hits the trolley - there is a duty, negligence, and cause in fact

No prox cause
* Because that trolley had to be someplace anyway, and it is just luck that it happened to be beneath the tree when the tree fell
* And it is just luck that the trolley happened to be speeding
* The trolley could have been not speeding and the tree could have fell later and still hit it
* And there would have been no claim because there would be no negligence because not speeding

The D’s negligent conduct has to have increased the risk of harm that actually came to pass

Principle
* When a D creates or increases risks that the plaintiff would not ordinarily be subject to if it weren’t for the D’s negligence, then the D may be held liable
* But if the harm suffered, nearly unrelatedly, and coincidentally follows D’s negligence, the D is usually not responsible
* Ask yourself – did the D increase the risk of harm that eventuated or was that eventuated harm a mere coincidence with no connection to the D’s negligence

Question 61

Proximate cause

unexpected type or kind of harm

Answer 61

majority rule is no liability for injury of a totally different kind or type from that which was foreseeable

Polemis
* Plank falls, causes spark which burns down ship (unexpected harm)
* If D directly caused P harm, it is irrelevant that the precise kind of harm P suffered could not have been foreseen.

Wagon Mound
* D spilled oil onto bay. Floating cotton catches on fire in the bay and burns down a boat.
* Court ends up overturning Polemis, saying that damage must be the type of kind that a reasonable person would foresee in order to hold D liable. No liability of harm not reasonably foreseeable

Foreseeable plaintiffs

Question 62

unexpected type or kind of harm

Kingsmen cases

Answer 62

Flooding damage occurs, but crushing damage was what was expected because of the Transit Co’s negligence (crushing from boats).
* Here, the company found liable for leaving the boat unmoored because it “feels fair,” not too attenuated. Even though it was “of a different kind.” Reminiscent of Andrews in Palsgraf (see below)

Was the damming and damage foreseeable?
* yes, maybe just not to that scale

What new question would have been raised if the flooding had damaged property upstream from the dock?
* This would be similar to Palsgraf because the plaintiff at that point would be unforeseeable and the zone of risk would be an issue

Question 63

proximate cause

Superseding/intervening cause

Answer 63

Was the intervening cause foreseeable?
* If it was foreseeable, then it is just an intervening cause and does not break the chain
* If it was unforeseeable, then it is a superseding cause and breaks the chain of causation thus no prox cause

Question 64

Superseding/intervening cause

rape behind bush case

Answer 64

Woman is raped behind bushes and trees on D’s property that shields the area from view from the sidewalk.

• Court says that it is not foreseeable that this type of cause would occur.
• Here, the scope of risk is cuts and bruises from the bush, not that a rape would occur.
• Therefore, the harm is outside the scope of risk (type and kind) and D is not liable.

In Doe, the intervening act was beyond the scope of the risk; therefore, it was a superseding cause. Compare Sam’s club.
* No duty because under a balancing test, it was held not to be reasonably foreseeable that robbery could occur in the parking lot.
* Note that while the plaintiff lost in Sam’s club on duty and the plaintiff lost in Doe on causation, the analysis is very similar

Question 65

Superseding/intervening cause

Squib cases

Answer 65

Guests at an inn injured when forced to jump from a second story window to escape a fire started by an arsonist.
* Guests claim hotel was negligent by failing to provide lights or reasonable escape paths.
* Court finds that even though the arsonist was an intervening cause, D had an obligation to anticipate fire from whatever source.
* Therefore, it was within the scope of risk of D’s negligence and D was liable.

In re 9/11: Similar to Addis.
* The duty of landowners and lessors to adopt fire-safety measures applies to fires set by criminals.

Question 66

Prox cause

Victim must be foreseeable

Palsgraf

Answer 66

Cardozo: “All engaged in risk-creating conduct have a duty to avoid causing forseeable personal injuries to foreseeable plaintiffs.
* “The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.”
* Here, Cardozo finds the harm to Palsgraf was not foreseeable. She was not a foreseeable plaintiff as she was standing far away on the track. Also not harmed by the explosion itself but by a scale that fell from the shock of the explosion. Therefore, RR not liable.

Andrews: Minority Rule: All engaged in risk-creating conduct have a duty to avoid causing foreseeable personal injuries to plaintiffs (does not need to be foreseeable.
* “What we do mean by the word ‘proximate’ is, that because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic, it is practical politics.”
* Basically, it is enough that the harm occurred to hold the D liable if they were negligent. You have a duty to the world at large, not just “foreseeable plaintiffs.”

Question 67

Proximate Cause

Andrews 6 part test to find whether proximate cause is satisfied:

CAD-EFT

Answer 67

• whether there was a natural and continuous sequence between cause and effect;
• was D’s action (or inaction) a substantial factor in producing the effect;
• Was there a direct connection, without too many intervening causes –or was it attenuated.
• was effect likely to produce this result;
• could effect have been foreseen;
• how far away was the effect, as judged through time and space?

Question 68

Proximate Cause

Danger invites rescue; intermediate rescuers are foreseeable plaintiffs.

Answer 68

Wagner v. International Railway:
* P injured when trying to rescue cousin who had fallen off D’s train due to negligence of the crew. Court finds that D is liable because “danger invites rescue,” thus is it foreseeable that someone would try to help, even if there was no duty (not too attenuated).

C.f. Moore v. Shah:
* Kidney donation. Here, P not successful because donating a kidney is more “deliberative and reflective” than typical rescue, and it’s not an emergency situation.

Policy:
* We want to incentivize these acts of conscience (rescuing)
* If we are saving someone from someone else’ negligence, we should be protected and have a claim against them as well.

Question 69

Prox Cause

Full Review

3 approaches to eggshell

Answer 69

Greater than expected harm is no defense – 3 approaches
* Eggshell – extent of harm caused by defendant need not foreseeable (heart attack and death arguably caused by minor car accident) (spark from train causes fire to consume distant house) (even if morphing lip burn –> cancer; schizo from car accident)
* medical aggravation doctrine – damages due to negligent medical care are recoverable against the original D (as well as typically, the doctor herself)
* Rescue cases – wrongdoer liable to both the original victim and the victim’s rescuer

Question 70

Prox cause

Full review

Scope of the risk test; kind or type; manner/means

Answer 70

Scope of the risk test
* no liability for purely coincidental injury; risk of harm realized must have been increased by D’s conduct
* no liability unless D’s wrong increases he chances of such harm occurring – no liability for speeding trolly struck by falling tree – risk of realized harm not increased by speeding

Kind or type
* no liability for damage of a totally different kind or type from that which was foreseeable. Wagon Mount; Doe
* BUT – minority of jxn continue to follow “direct” doctrine from Polemis. Cf. Kinsman.

Manner/means
* harm is compensable even if it happens in an unusual way, so long as the victim and the harm are foreseeable/within the scope of the risk. See Addis, Sept. 11, Benn cases

Question 71

Prox Cause

Full Review

Superseding/intervening; directness; fairness

Answer 71

Superseding/intervening cause
* no prox cause if there’s a subsequent and independant SUPERSEDING cause that is outside the scope of the foreseeable risk of the original negligent conduct
* Yes prox cause if subsequent and independent act is merely INTERVENING cause and within the scope of the foreseeable risk - see Doe

Directness
* prox cause not found if harm is too attenuated in time or space/too indirect/not continuous from original negligence. see andrews in palsgraf

Fairness
* in a moral, pragmatic or philosophical sense. See Andrews dissent in Palsgraf.
* Kinsmen/Addis/Sept. 11 cases seem influenced by D’s ability to take appropriate precautions, insurability of risk, risk spreading, extent and risk of harm from the D’s negligent conduct, and/or burden of precaution

Question 72

NIED

Courts do recognize a claim for negligent infliction of emotional distress when

Answer 72

• when the P was within the immediate zone of danger; or
• the P witnessed negligently induced harm to a close relative; or
• the claim is for loss of marital or filial consortium or
• sometimes when there was a special relationship b/w D and P – severed leg etc cases

• When a plaintiff suffers physical injury, compensable damages always include emotional distress. Thus, there is no separate NIED claim in those cases.
• no NIED with property damage or death of pets UNLESS Pet dead with malicious (IIED)

Question 73

Zone of Danger

NZTE

Answer 73

1. negligent harm by the D
2. in the zone of danger
3. thought to be at risk of injury/death
4. causing severe emotional distress

Question 74

Indirect emotional harm (no risk of physical harm to P)

SFP

Answer 74

They all involve a special relationship
* Family and funeral home
* Patient and health care provider
* Lawyer and client

Finding of compensable damages/duty appear to be explicitly influenced by foreseeability
* It is foreseeable that when you mess up here, people are going to be harmed

Also influenced by the power disparities – these D’s have a lot of resources – have ability to make things right
* P’s do not have much bargaining ability

These are also professionals
Insurability is important
Risk spreading, mess up here and make it up with other clients you have
Also influenced by deterrent function of tort, you cant misdiagnose someone with HIV, do not mess up immigration etc

son given bag with severed leg, misdiagnosed as HIV positive, legal malpractice scenario

Question 75

Bystander Harm

DCOE

Elements

Answer 75

Death or serious physical injury of another is caused by D’s negligence

Claimant is a marital or intimate familial relationship with injured person (close relative)

Observation of the death or injury at the scene of the accident
* Requires contemporaneous (generally at the same time) observation or if not that, very very close

emotional distress to the person who witnesses
* some physical manifestation – nightmares, nausea etc

Pre-impact cases
* The plane did not crash, but there was significant turbulence and a big drop in altitude. The court held that the P had a case because he had a prima facie case that the events caused physical symptoms.

Question 76

Classic = But for X, Y would not happen

Cause in Fact

but sometimes it is not easy, and there are issues

Answer 76

Toxic exposure – did toxin cause a problem or would P have developed a problem in any event? P needs to show
* The toxin generally causes harm of the type complained of
* The toxin caused this plaintiff’s specific harm
* What we have to show is that it is reasonably certain it is likely to have been caused (50% likely)

Not much or no idea what happened
* bridge case and murder in hotel case
* more likely than not

Know what happened but doubtful whether non-negligent behavior on D’s part would have avoided injury
* problem in medical mal cases
* Problem when D mfc gives inadequate warning: would P have heeded warning, had adequate warning been supplied?

Know what happened but do not know who to blame. In some instances, relax but-for cause.
* Multiple sufficient causes/redundant causation – Apply substantial factor test
* Concert of action – shinn v. allen
* Alternative liability – summers v. tice
* Enterprise liability – Hall v. Dupont
* Market share liability – Hymowitz v. Eli Lilly

Question 77

Multiple sufficient causes/redundant causation

Answer 77

Substantial Factor Test:
* If there is redundant causation, court will instruct the jury that “D’s conduct is a cause of the event if it was a material element and a substantial factor in bringing it about.”

Anderson v. Minneapolis
* Two negligently-set fires arrive simultaneously at P’s home. Either fire alone would have destroyed the house. even though wont pass but-for cause

Question 78

Concert of action

Answer 78

Was there substantial assistance among multiple D’s?
* Look to whether there was common plan or design; whether harm was caused by joint action and/or joint enterprise

Allen is passenger in a car driven by his drunk friend.
* Shinn still claims Allen is liable under concert of action theory because Allen asked his friend to drive him home. Court says if there was substantial assistance, he is liable. If it’s a close call, look to the five factors above. Ultimately finds Allen not liable under concert of action.

Question 79

Alternative liability

LAllLM

Answer 79

Elements
* P was hurt by at least one D;
* All possible D’s were negligent;
* All possible D’s are before the court;
* Only a limited number of such D’s (usually 2); and maybe
* Ds have better access to information than the P
If YES, burden shifts to Ds, and any D who cannot exonerate himself will be jointly liable

Quail hunting case.
* Both Ds shoot at the same time, one hits Ps eye and one hits his lips. So they know one of them shot his eye, but not who. The Supreme Court of CA did not find concert-of-action because there was no agreement to shoot at the same time (so it’s parallel, but not a concert). So, court makes both of them at fault, and the burden shifts to D to absolve themselves is they can.

Question 80

Enterprise liability

Answer 80

Imposed where manufacturers:
* Exhibited industry-wide cooperation in a defective products’ manufacture and design, and
* Limited in number.

Burden Shifts, any D who cannot exonerate will be jointly liable

Blasting cap case – it appears Ds:
* Worked together to produce caps that made their mfc difficult to identify after explosion
* Compiled joint statistics of how many children were being injured, and
* Jointly lobbied against legislation to establish safety/warning requirements

Question 81

Market share liability

FUC

Answer 81

Manufacturers are liable for their portion of their share of the national (or state) market:
* where one product is fungible;
* The plaintiff’s are unable to identify the manufacturer of the product that caused their harm;
* The clear causal relationship between the product and the harm justifies imposing market share liability.

manufacturers of a drug used to prevent miscarriages which injured the plaintiffs prenatally
* Due to the fungible nature of the drug, however, none of the plaintiffs could establish which company manufactured the precise drug taken by their mother.
* We know what caused the harm, we do not know WHO caused the harm

Question 82

STRICT :) liability

When do we have “pure” strict liability?

Answer 82

• Abnormally dangerous activities (restatement)
• Those on the ground who are harmed by aircraft
• Wild or dangerous animals
• Vicarious liability for principal
• Manufacturing defects (as we will see, not really applicable to design defects or insufficient warnings – those claims utilize principles closer to negligence)

Question 83

Abnormally dangerous activities

Answer 83

One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm

This strict liability is limited to the kind of harm the possibility of which makes the activity abnormally dangerous

Meaning
* This strict liability applies where the abnormally dangerous aspect of the activity causes the harm

Shipping hazardous chemicals by rail through metropolitan areas
* not an abnormally dangerous activity. Here, factor 3 was not met because a tank car, if carefully maintained, makes the danger of a spill negligible. It wasn’t determined to be “ultra-hazardous” material because (1) many products are more dangerous and (2) leak wasn’t caused because of the dangerous material (actual harm was different from the kind of harm making the material dangerous, so strict liability does not attach)

Question 84

In determining whether an activity is abnormally dangerous, the following factors are to be considered

HLAC

Answer 84

• Existence of a high degree of risk to others
• Likelihood that the harm that results from it will be great
• Inability to eliminate the risk by exercising reasonable care (issue in indiana harbor belt)
• Why no comparative fault - we are comparing apples to harmonicas
• Extent to which the activity is not a matter of common usage

removed in 3rd restatement
* inappropriateness of the activity to the place where it is carried on; and
* Extent to which its value to the community is outweighed by its dangerous attributes.

Question 85

Warranties

Answer 85

Express Warranty:
* Explicit promise which can arise from a contract or advertising.

Implied Warranty of Merchantability:
* Implied promise that goods are “fit for the ordinary purpose for which such goods are used.”

Implied Warranty of Fitness for a Particular Purpose:
* Implied promise that arises when buyer’s purpose is made known to seller and seller knows buyer is relying upon his skill and judgment to select and furnish suitable goods.

Question 86

strict

Product liability

in general

Answer 86

Strict liability would apply to everyone who is in the chain of distribution of that product extending to distributor and retailer and Bystanders

Crashworthiness
* Cars are meant to be crashworthy
* Crashes are a reasonably forseeable misuse
* defendant liable if car not crashworthy

Barket test
* depending on the jurisdiction, design is defective if it either fails CET or Risk-benefit, with burden on D

Question 87

Manufacturing Defects

Answer 87

contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product

Question 88

R2d Design Defects

Consumer Expectations Test

Answer 88

CET
* Impose liability when the product is not as safe as ordinary consumer would reasonably expect it to be when used in an intended or reasonably foreseeable manner.

CET not usually appropriate for complex/sophisticated products. Only proper when questions about product’s performance can be answered by common experience.

After an collision, a Camero’s frame is bent and the wheel goes rearward and inward to injure the P’s ankles.
* The court says the CET test is not appropriate here. CET charge shouldn’t have been given to jury because there is no consumer expectation on a complex product (such as a toe plate) and how it will work in a crash
* This is the law across the country, where CET test is it’s not available where its this complex.

Question 89

R2d Design Defects

Risk Utility

GL-FCC

Answer 89

Impose liability when product’s risks outweigh benefits considering:
* the gravity and likelihood of danger, AND
* the feasibility, cost, and consequence of alternative design

P is injured in a motorcycle crash, asserts design defect because the motorcycle didn’t have crash guards.
* P wants the court to use Risk-utility, D wants CET (because an ordinary consumer knows a motorcycle is inherently dangerous, also not having leg protection is obvious to the consumer.).
* Court decides risk-utility is more appropriate because just because something is dangerous and the consumer knows that, that doesn’t mean it can’t be safer.
* D could have made it safer by including cheap crash bars that would not significantly alter the design and aesthetics of the motorcycle. Plus Utility is not super high

Question 90

Reasonable Alternative Design

Answer 90

RAD
* 1) the alternative design was feasible because other companies had them;
* 2) the cost of making another design would have been low, and
* 3) The consequences of an alternative design would have been high by lowering risk.

RAD must be within a comparable product category
* “If a person purchases a convertible . . . he cannot expect and the Court may not impose on the manufacturer the duty to provide him with the exact kind of protection in a rollover accident as in the “standard American passenger car.’”
* IN the case of the VW van, there was no practical way to improve the safety of the vehicle and keep it’s design.

Question 91

Unavoidably unsafe

Answer 91

products whose utility is great and whose risks can’t be avoided.
* No liability

Kitchen Knife

Risk utility test
* high utility, low risk if properly handled = passes risk utility test

CET
* Does an ordinary consumer expect a kitchen knife to be designed differently than it is? No

Question 92

Irreducibly unsafe

Answer 92

Products whose utility is minimal or non-existent and whose risks are significant and can’t be avoided. Liability may still attach
* risks outweigh benefit

Examples: exploding cigars, above ground pools.

Question 93

R3d

Design defect

MWE-IR

Answer 93

the magnitude and probability of the foreseeable risks of harm,
* Looks like the Hand Formula and Cardozo in Palsgraf

the instructions and warnings accompanying the product,
* Not great, seems that you can “warn your way out of a defect,” which courts say you can’t

the nature and strength of consumer expectations regarding the product, including expectations arising from product portrayal and marketing,
* CET test

the impact on production costs and on product longevity, maintenance, repair and aesthetics, and
* Aesthetics, perfume: do you have to put a warning?

the range of consumer choice among products.
* RAD

Note: Product here does not have to be as safe as it can be, but whether it was reasonably safe.

diff b/w 2nd and 3rd = RAD is required in 3d however in practice, always show because jury

Question 94

Warnings

these claims are negligence claims

Answer 94

Warning was required
* No duty to warn against commonly known or obvious risk (tequila)
* No duty to warn if risks weren’t known or reasonably knowable at time of distribution (boob job case)
* In limited circumstances, duty to warn post-sale if the risk becomes apparent after distribution

Warning was inadequate
* inadequate content (e.g., specificity, intensity);
* inadequate location, prominence or display; or
* inadqeuate distribution/improper addressee

inadequacy of warning caused injury
* P must show that decision to use the harmful product at all OR the manner of use would have changed if D had supplied an adequate warning
* most people do not read warnings

Question 95

Warning was required

Answer 95

obvious or known risk
* You know it’s dangerous to ride in the bed of a pickup truck, so no need to warn.
* Paint, the risk there is not as “known and obvious” re: ingestion, so you need a warning

No duty to warn if risks weren’t known or reasonably knowable at time of distribution
* A manufacturer need only warn of risks that were reasonably foreseeable when the product was sold, or that could have been discovered through testing prior to marketing the product.

duty to warn post-sale if the risk becomes apparent after distribution
* seller knew or reasonably should have known
* need to be identifiable buyers
* effectively communicated
* risk of harm is sufficiently great to justify burden

Question 96

Warning was inadequate

Answer 96

inadequate content
* Warning need only be “reasonable under the circumstances” AND Does the “risk of clutter” on warning outweigh the risk of not getting across all the information?

Inadequate distribution / improper addressee
* Generally, warnings must reach a person likely to use the product. Exception if learned intermediary rule applies.

Learned intermediary rule
* A mfc (prescription drugs here) fulfills its duty to warn end users of its products risk by providing adequate warnings to the intermediaries who prescribe the drug and once this is fulfilled, it no longer has a duty to warn the end user directly
* But when the warning to the physician is inadequate or misleading, the mfc remains liable for injuries sustained

Exception to learned intermediary
* If mfc advertises means intermediary doctrine no longer provides complete protection to mfc

Question 97

Product Liability Defenses

Answer 97

Danger wasn’t known or reasonably knowable at the time of distribution.
* boob job case

Unforeseeable misuse. (ex: using a screwdriver as a toothpick, not a chair as a stepstool) (can defeat any element of tort)
* No duty to an unforeseeable misuser
* Might defeat P’s attempt to show the product is defective, as products only need to be fit for intended or reasonably foreseeable use.
* Might defeat P’s claim on proximate cause, as unforeseeable misuse is a superseding cause
* Might be folded into comparative fault – studen threw drain cleaner on another students face – unforeseeable victim

P’s claim is expressly or impliedly preempted by federal law
* complex medical devices

Beyond statutes of limitation or repose

P assumed risk or was comparatively negligent

comparative negligent
* maj approach is to compare the fault of the plaintiff to the fault of the defendant
* Minority approach is to not to
* Contrib states do not do so – not a bar to strict liability claim

Question 98

Private Nuisance

Answer 98

liability in nuisance where the invasion is either:
* (a) intentional and unreasonable; OR
* (b) unintentional and arising out of (1) negligent or (2) reckless conduct or (3) abnormally dangerous conditions or activities.

Coming to the nuisance
* D was a cattle feedlot operation – smelly – located in rural AZ
* Sprawl happened – residential area moved in
* Court held that feedlot was a nuisance but because P came TO the nuisance – you are required to pay the feedlot for either the cost of going out of business (alot of money) or the cost of moving the feedlot
* Pay for them to move!

Question 99

Private Nuisance

Answer 99

Intentionality
* shown where the defendant knows to a substantial certainty that those nearby would be subjected to harm.

unreasonable
* unreasonableness is shown where there is serious harm that the defendant would be able to compensate without having to cease the activity (boomer) OR the gravity of harm is greater than should be borne without compensation.
* This means virtually all ongoing burdens caused to another’s land are actionable; the defendant will nearly always (1) pay for the harm (boomer) or (2) fix the nuisance or (3) go out of business.

Only if the activity is (1) irremediable and (2) essential and (3) the harm is slight can the nuisance continue uncompensated
* Imagine a steel plant, no smoke no vibration no noise no dust – build a tall structure got it through correct means – but lighting will annoy some neighbors – so there is a slight nuisance – but in this situation court will likely continue it uncompensated – harm is slight, steel is essential, and cant rebuild structure – not unreasonable under the circumstances

Question 100

Public Nuisance

we cannot apply public nuisance to defective products because if we do we will swallow the entire law of product liability
* Guns, hamburgers, and soda pursuant to the test listed above would all be public nuisances and we are not there as a society

Answer 100

2d Restatement defines public nuisance as:
* an unreasonable interference
* with a right common to the general public

Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:
* (a) whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience. .”

note two separate elements: “unreasonable” and “interference”

Rhode Island v. Lead:
* Court says that lead paint not a public nuisance because harming the public is not enough. Needs to be a “right common to the general public”

Con Agra:
* implicitly says that its hazardous that a product is defective. CA went a little too far.

Right to live in a house free of environmental defects in pant is a right to the common general public

Question 101

Battery

what constitutes intent?
* The person acts with the purpose of producing the consequence, or
* The person acts knowing that the consequence is substantially certain to result

Answer 101

an intentional offensive contact with another
* intentional
* Offensive

Objective and subjective test
* must be objectively be offensive
* and P must subjectively feel offended

A battery is only applicable where the defendant has knowledge to a substantial certainty that the conduct will bring about harm to a particular victim or someone within a small class of potential victims
* Makes battery unavailable as a claim against an auto mfc who sells a vehicle with a known defect

What constitutes offensive contact
* A bodily contact is offensive if it offends a reasonable sense of personal dignity

Question 102

Assault

Answer 102

• A physical act of a threatening nature or an offer of corporeal injury which puts an individual in reasonable fear of imminent bodily harm.
• Threat of imminent bodily harm

case where she films man and he lunges at her trying to take her camera. Court finds that because P’s apprehension of imminent bodily harm was reasonable, she has established a prima facie case of assault

Question 103

Intentional infliction of emotional distress (IIED)

Answer 103

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress

“Outrageous conduct that causes emotional distress”
* term severity has been given broad meaning and most emotional distress arising out of outrageous conduct will be actionable

There is a symmetry here
* If the conduct was not outrageous, it shouldn’t be causing emotional distress
* If there was no emotional, it probably wasn’t outrageous

It must be outrageous
* It can’t be merely negligent. More along the lines of reckless or intentional
* OBJECTIVELY outrageous
* But also does need to be subjectively something that causes emotional distress

Ex – a car accident, intersectional collision case, should not be giving rise to a claim for IIED
* assault, battery → yes add on IIED

Revenge porn → give rise to IIED

Question 104

Defamation

Answer 104

*Public Officials *

need to prove D made a false statement
* Statement of Fact (hyperbole and opinion is not actionable)

with actual malice
* defined as a knowing falsehood or reckless disregard for the truth

Causing damage to P

Private person = negligence standard, malice needed for punitive

• Defamation is a statement that may injure the reputation of the subject
• Slander is oral defamation
• Libel is written or broadcast defamation

A singer may be a public figure for purposes for singing

Question 105

False imprisonment

Answer 105

False imprisonment is “an unlawful restraint of an individual’s personal liberty or freedom of locomotion.” Unlawful restraint may be demonstrated by:
* actual or apparent physical barriers
* overpowering physical force
* threats of physical force
* other duress
* asserted legal authority

In these cases there are two hoops to get through
* was she objectively not free to leave, AND
* did she subjectively feel like she was not free to leave.

Lopez v. Winchell’s Donut House:
* Woman is held by her bosses in a back room of the donut shop while they ask her if she took money.
* The door is locked, but they never told her she wasn’t free to leave. She also testified that she felt free to leave.
* Therefore, court says there is no claim for false imprisonment.

Note: the locked door really is a problem for the Ds, but the testimony really messes up Ps case.

Question 106

Malicious Prosecution

Answer 106

Provides a tort claim for a person who has been sued without a reasonable basis
* Also provides a claim where a person who may have been sued with a reasonable basis but that reasonable basis disappears during discovery and it is clear no more reasonable basis to pursue claim

To have a claim for malicious prosecution, ask:
* Was there a favorable outcome in the case? and
* 2. Was there a lack of probable cause?

These claims are disfavored, bring endless litigation
You cant bring these claims against public officials (DA for example) even if they’re acting maliciously

Question 107

shopkeeper’s privilege

Answer 107

Typical statutes allow a merchant, who has probable cause, to detain the suspect in a reasonable manner for a reasonable time on or off the premises for all or any any of the following purposes:
* To require the suspect to identify himself
* to verify such identification
* To determine whether such suspect has in his possession unpurchased merchandise taken from the mercantile establishment, and, if so, to recover such merchandise and to summon a police officer

Problem of shoplifting:
* Hard problem because there is a risk of being sued for embarrassment, false arrest, etc. Also risk of physical harm to self, shoplifter, or bystander.
* Another problem is that the police will not go after misdemeanor petty theft unless they saw the theft.
* Business insurance will have a deductible, so that’s also not a solution.
* Only way to stop the shoplifter is to physically stop them.

Cannot use deadly force

Question 108

Joint & Several Liability

Answer 108

Severable Liability
* Means “severable”
* Proportionate share of liability goes to each D.
* (Example: So, if D is 60% responsible, only has to pay for 60%. If other D is insolvent, then P will only get that 60%).

Joint Liability
* If a person is causally at fault for someone’s harm, at least in part, she is responsible for entire harm
* A and B are each responsible for 100k because their negligent conduct was a substantial factor in the harm
* If A overpays w.r.t her share of causal harm, she can collect the excess from B – take assets for example

Remember with these percentage allocations – both D’s are still negligent – just degrees of it are different

Question 109

Collateral Source Rule

Answer 109

Under the common law Collateral Source Rule
* a plaintiff may recover full damages from the defendant even though the plaintiff has already received compensation from collateral sources
* such as medical insurance, disability insurance, life insurance or other benefits or gifts.

Majority rule, though chipping away:
* Entire amount cannot be reduced if the bill is reasonable in amount.

CA rule, middle ground approach:
* Permit P to recover amount paid by health insurer or the amount actually paid by P.
* Here, there could still be a challenge to reasonableness of the amount

In many states, abolish the collateral source rule:
* Do not permit P to recover because it’s already been paid.

Question 110

Subrogation

Figure out policy

Answer 110

Subrogation provides that:
* a secondarily responsible party, such as a health insurer, may pay the insured and then “stand in their shoes” and seek repayment from the primarily responsible party – the tortfeasor.

Approaches
* Subrogation is not recognized
* Intermediate approach (CA) – the P must be made whole before the insured can assert any subrogation right and any remaining sums above the made whole amount may provide funds from which the insurer can seek subrogation
* Ahlborn, also intermediate – the subrogee may recover in the same proportion as the plaintiff (e.g., if full compensation would be 1 million and there 100k in liability insurance, the subrogor collects 10% of their payment, whatever that was)
* Pustilnik (blue cross) (p. 790) – considering a settlement as full compensation for all damages, and allowing the health insurer to recover every dollar it pays less the pro-rata share of legal fees and costs. Most courts have rejected this approach

Question 111

Tort Law and Insurance

Answer 111

Two types of auto insurance:
* Insurance for when you hit someone.
* Insurance for when someone hits you who is un/under-insured
* Note: You cannot buy more un/underinsured than the coverage you buy for yourself.

Moral hazard
* the possibility that those who are insured for a risk will take less care to avoid the harm than they would have taken, had they expected that they would bear the full cost of that harm

insurance runs with the car

Insurance brings up moral hazard issues: to abate this you can’t buy insurance for an intentional act.

Question 112

Damages

economic

Answer 112

Loss of earnings and earning capacity
* Lost income and future income (earning capacity)
* Also includes fringe benefits
* Employing use of race- and sex-based data to determine lost earning capacity is discrimination and violates the Equal Protection clause

Medical Expenses
* past and future
* Single judgement rule – Judgment only once, and payment is in a lump sum.

Question 113

Damages

noneconomic

Answer 113

Pain and suffering; loss of life’s pleasures
* past and future

Emarrasement

disfigurement

Grief

other
* Spousal – loss of consortium (loss of relationship of your spouse)
* Parent – filial consortium (loss of the company of your child)
* Children – loss of parent’s guidance and tutelage

Question 114

Damages Mechanics

Answer 114

Courts apply discount rate for future earnings and medical expenses.

Damages to compensate are not taxable, but juries are not told this.
* question for the jury
* jury verdict must be respected unless it “shocks the conscious”

Per diem argument: You should be compensated for “each and every day” you will suffer
* most states allow

Golden rule argument:
* NEVER allowed in any state.
* “Put yourself in the place of the plaintiff, and figure out what would be the fair amount of money for this never to happen to you.”

Question 115

Damages in case of death

survival actions & wrongful death action

Answer 115

Survival Action:
* Compensates for victim’s harm accrued up to the point of death: (1) past loss income, (2) fringe benefits, (3) medical expenses, and (4) non-economic damages between the time of injury until the time of death.
* Continuation of the victim’s cause of action. Brought by those provided for by will; if no will, consider intestate statute.

Wrongful Death Action:
* Gives action to statutorily-defined beneficiaries for their own losses stemming from the victim’s death.
* Losses vary from state to state but may include: (1) the loss of earning capacity of the decedent after death minus personal maintenance and further reduced to present worth; (2) the value of the relationship with the decedent, be that filial or marital consortium or parental guidance; (3) the value of services provided; and/or (4) grief.
* Typically, statutorily-defined beneficiaries are spouses, parents and children.

Question 116

Punitive Damages

factors to consider for courts reviewing punitive damages

Answer 116

reprehensibility of D’s misconduct – look to whether
* harm physical or economic;
* conduct evinced an indifference to or reckless disregard for health and safety of others;
* target financially vulnerable;
* conduct repeated or isolated; and
* intentional malice, trickery, or deceit or mere accident.
* Harm to others may be considered in assessing reprehensibility and the appropriate ratio of damages to punish to damages to compensate.

disparity btw actual or potential harm suffered by the P and punitive damage award; and

difference btw punitive damages awarded and civil penalties authorized or imposed in comparable cases.

Bad faith refusal to settle
* Insurer can be liable for a judgment exceeding policy limits if a reasonable insurer would have settled within those limits

Question 117

Limitations on Punitive Damages

• You may not increase the punitive award above an amount that is otherwise appropriate merely because defendant has substantial resources
• a person’s wealth is irrelevant in compensatory but not in punitive, it is relevant then

Answer 117

More than half the states have imposed some form of limitations on punitive damages different than the limits on compensatory damages:
* Cap punitive damages awards
* Specify that punitives should only be a small ration (2 or 3 times) of compensatories.
* Enhanced evidentiary standard: “Beyond a reasonable doubt” or “by clear and convincing evidence.”
* Share with the state.
* Eliminate altogether

Key language from campbell – In practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant, will satisfy due process…”
* more than few have stood
* the second gore guidepost looks to “the disparity between the actual or potential harm suffered . . . and the punitive award” - hence, the award may not be the denominator, but rather the potential award may be the denominator.

Question 118

Plaintiff negligence

Contributory negligence

Answer 118

P’s causal negligence defeats P’s recovery in a suit against D for negligence.

Some attempts to soften contributory negligence
* P’s negligence no bar when D breached safety statute designed to protect P
* P’s negligence no bar when D more blameworthy (grossly negligent, reckless, intentional) = D punches P in the nose, D cant say P was negligent by not ducking fast enough
* P’s negligence no bar when D had last clear chance to avoid the harm
* not available for strict liability

Safety Statute
* Involving school bus drivers obligation to assist students in crossing streets
Court held violating that statute necessarily implies that the D may not defend on the basis that children were negligent in crossing the street at the same time as the school bus operators were violating the statute

Last clear chance
* Someone negligently falls in the middle of street and breaks ankle, D runs them over, no contrib likely because D had last clear chance to stop and avoid running over

Question 119

Comparative negligence

Answer 119

Most states do not permit recovery where the plaintiff is more than half responsible for the harm

Other states, CA, do pure comparative negligence
* The plaintiff recovers whatever was the percentage of the D’s negligence

Should we measure the P’s negligence against the combined negligence of two D’s or against each single D?
* Majority view is to measure the P’s negligence against the combined negligence of the Ds

Should the P’s negligence be compared to the D’s reckless conduct?
* most say yes, but P negligence is never compared to intentionally wrongful conduct

Question 120

Wrongful acts doctrine

Answer 120

Holds that a plaintiff cannot recover damages if, at the time of the injury, the plaintiff was engaged in an illegal act.

Narrowly applied
* So stealing a beer from a minor wont be as harshly held as against a bank robber

Question 121

Avoidable consequences/mitigation

Answer 121

If accident were entirely the D’s fault, P’s recovery would be reduced to the extent he failed to exercise due care.

Question 122

Assumption of risk

Express

Tunkl Factors – should a hold harmless agreement be enforced?

waivers, releases, disclaimers, etc.

RIW-AAC

Answer 122

• Business thought suitable for public regulation?
• Service of “great importance to the public, which is often a matter of practical necessity for some members of the public?”
• Seller holds himself out as willing to perform service for any member of the public or at least any member coming w/in certain established standards?
• Seller holds decisive advantage of bargaining strength?
• K of adhesion? Additional fees to obtain protection?
• Is plaintiff under the control of the seller?

Not enforceable for
* All disclaimers for willful misconduct or intentional wrong-doing or for recklessness or gross negligence are void as against public policy.
* Exculpatory agreements or contractual waivers of tort liability do not bar or reduce product liability claims in most states.
* Courts generally will not enforce this language with regard to essential services such as medical care or low-cost residential housing because consumers have little or no bargaining power, do not appreciate the level and extent of risk; such disclaimers violate public policy to enhance safety and deter wrongdoing.

P’s car broken into in a garage – garage defends on the basis that the sign says that we have no liability for loss or damage to your car–valid if the sign is seen–void if not seen.

Question 123

Express agreements

totality of circumstances approach (other approach to tunkl)

Hanks v. Powder ridge

Answer 123

Hanks signs a waiver releasing a snow park of liability. Court says that these kinds of agreements violate public policy because
* (1) activity is open to the public,
* (2) there is a societal expectation that these kinds of recreational activities are reasonably safe when P is under the control of D,
* (3) makes more sense to give responsibility to D in order to keep accidents to minimum level,
* (4) if waivers are allowed, there will be no incentive to keep the experience safe,
* (5) P had no bargaining power, and
* (6) there is a public policy interest in promoting participation in recreational activities.

Question 124

Primary

Implied assumption of risk

two ways to approach

implied by participation in the activity

Answer 124

1. D argues there’s no duty because of plaintiff’s assumption of risk, therefore there is no breach of duty.
2. D argues there’s no negligence because the harm suffered was due to a risk inherent in the activity.

intentional acts do not apply to assumption of risk

Question 125

Primary

Implied assumption of risk

3 approaches

Answer 125

Duty only extends to:
* not acting recklessly or intentionally wrongfully, or
* to providing some safe places to watch or
* warning of non-obvious risks
* otherwise, no duty where risks are inherent to the activity

Negligence
* must be assessed in light of the customs of the activity and its inherent risks and not to risks extrinsic to the activity.

Assumption of risk is an affirmative defense implied by participation in the activity.

Question 126

Secondary

Implied assumption of risk

Answer 126

Secondary implied assumption of risk is where the plaintiff knowingly encounters a risk created by defendant’s negligence.

Majority
* If p’s decision to encounter a risk is reasonable → no reduction in damages
* If P’s decision to encounter a risk is unreasonable → reduction through comparative fault

Minority
* P’s voluntary and conscious decision to encounter a known risk, whether reasonable or not, bars recovery (rhode island rule). Separate question of verdict form on assumption of risk in addition to comparative negligence.
* P’s subjective understanding is highly relevant. P must have “actual and conscious knowledge” of the particular risk

Contrib
* any causal fault of the plaintiff defeats the claim

Exception: Good Samaritan cases: there is no assumption of risk because “danger invites rescue”

Davenport v. Cotton Hope:
* Man falls down the stairs in his apartment building. Although walking down the stairs is not inherently dangerous, here P was knowingly encountering a risk created by D in that the lights were out and the building had not yet fixed them.
* So, D can argue that the plaintiff assumed the risk, but South Carolina determines that the jury will be instructed on comparative negligence, merging the doctrines. *

• So, secondary assumption of risk is something that the jury can consider when assigning comparative negligence.

Question 127

Tort reform

Answer 127

MICRA: CA caps on medical malpractice claims. Recovery for noneconomic harm limited to $250,000
* P lawyers also limited on how much they can take for these claims.
* Therefore, very few lawyers in CA take on medical malpractice claims
* Claims are almost impossible to bring, which harms low income (not a lot of economic damage in terms of lost earning); women (again, not working so less wage loss); and elderly (same reasons).

About half of states have caps of awards:
* Can either be subject related (i.e. medial malpractice)
* Or by nature of defendants (i.e. caps for gov.)
* Ex: in PA, cap of $500,000 for government cases.

The problem is that there is really no constituency for these laws other than lawyers
* no one thinks they will be the victim of a tort.

“too many frivolous lawsuits” – however, insurance companies and corporations don’t fear these claims, they get dismissed and cost something to defend, but lawyers are not incentivized to bring frivolous lawsuits in the first place (can’t make money)