Torts-materials | Colin Doyle | Law Professor

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No Duty to Rescue or Protect

Practice Exam Question

Two Steps to Writing an Exam Answer

Take thorough notes, exploring the problem from all angles.
Extract information from those notes to build a thoughtful, logical, persuasive argument.

What should I include in my exam answer?

What should I keep out?

Include information that will help the reader arrive at your conclusion.

No Duty to Rescue or Protect

Exceptions

Special relationship Undertakings Non-negligent injury Non-negligent creation of risk Statutes

Harper v. Herman

&

Farwell v. Keaton

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Duty to Act

exercise reasonable care

A duty to exercise reasonable care

Elements of a Tort Claim

Duty
Breach
Causation
Harm

General Rule for Duty:

IF your actions create a risk of physical harm

THEN you have a duty to exercise reasonable care

General Rule for Affirmative Duty:

IF your actions do not create a risk of physical harm

THEN you have no duty to protect or to rescue

With some exceptions: Special relationship Undertakings Non-negligent injury Non-negligent creation of risk Statutes

Harper v. Herman

Exceptions to No Affirmative Duty

Special relationship Undertakings Non-negligent injury Non-negligent creation of risk Statutes

Sidenote: Don’t write like this

On Sunday, August 9, 1986, Jeffrey Harper (“Harper”) was one of four guests on Theodor Herman’s (“Herman”) 26-foot boat…

Because good writers don’t write like that.

Call me Ishmael (“Ishmael”).

It is a truth universally acknowledged, that a single man (“man”) in possession of a good fortune (“fortune”), must be in want of a wife (“wife”).

As Gregor Samsa (“Samsa”) awoke one morning on Sunday, August 9, 1986 from uneasy dreams he found himself transformed in his bed into a gigantic insect (“cockroach”).

And why don’t good writers write like that?

Because they treat the reader like a big, golden baby.

Farwell v. Keaton

Exceptions to No Affirmative Duty

Special relationship Undertakings Non-negligent injury Non-negligent creation of risk Statutes

Randi W. v. Muroc Joint Unified School District

&

Tarasoff v. Regents of the University of California

Rowland Factors

foreseeability of harm
certainty of plaintiff’s injury
connection between defendant’s conduct and plaintiff’s injury
moral blame
policy of preventing harm
burden to defendant
consequences to community
availability of insurance

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Policy Bases for No Duty

Elements of a Tort Claim

Duty
Breach
Causation
Harm

Elements of a Tort Claim

Duty
Breach
Causation
- Factual Cause
- Proximate Cause
Harm

Strauss v. Belle Realty

Third Restatement

When determining that no legal duty exists for reasons of public policy, courts should use “categorical, bright-line rules of law applicable to a general class of cases.”

Two Closing Thoughts

Crushing liability has not aged well.
Policy justifications ≠ individual autonomy concerns

Reynolds v. Hicks

Negligence Per Se

Remember Martin v. Herzog?

Negligence Per Se

Under RCW 66.44.270(1) it is a crime to:

give or otherwise supply liquor to any person under the age of twenty-one years or permit any person under that age to consume liquor on his or her premises or on any premises under his or her control.

What the heck?

Two Reasons

Legal
Policy

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Duties of Landowners & Occupiers

How do we reconcile the tort of negligence with the concept of negligence?

Landowners & Occupiers

Carter v. Kennedy

Traditional View

Type of Visitor	Definition
???	???
???	???
???	???

Traditional View

Type of Visitor	Definition
Trespasser	???
Licensee	???
Invitee	???

Traditional View

Type of Visitor	Definition
Trespasser	Intruder
Licensee	Social guest
Invitee	Business guest or general public (if land opened to public)

Duties Owed — Traditional View

Trespasser

duty not to intentionally or wantonly cause injury
no duty of reasonable care (with handful of exceptions)

Licensee

no duty to inspect or discover dangerous conditions
duty to warn or make known conditions safe

Invitee

duty to inspect and discover dangerous conditions
duty to warn or make conditions safe

Heins v. Webster County

Modern View

Type of Visitor	Definition
???	???
???	???

Modern View

Type of Visitor	Definition
Trespasser	Intruder
Everybody else	Not a trespasser

Duties Owed — Modern View

Trespasser¹

duty not to intentionally or wantonly cause injury
no duty of reasonable care (with handful of exceptions)

Everybody Else

duty of reasonable care

Traditional View

vs.

Modern View

Heins Dissent Hypo

A plaintiff was playing on an outdoor asphalt YMCA basketball court, fell, and was injured. The plaintiff was not a member of the YMCA and did not pay dues to the YMCA. Following the traditional view, the plaintiff was a licensee and the trial court’s directed verdict for the defendant was affirmed on appeal. Following the Heins majority, the YMCA will be subject to lawsuits holding them to a duty to treat uninvited users of their facilities with the same standard of care as the paying members of their institutions.

The majority opinion “socializes the use of privately owned property.” “From this moment on, public and private institutions, as well as residential homeowners, must be especially aware of unknown, uninvited individuals who take advantage of their land and facilities.”

Writing for the majority, how would you respond?

Sample Exam Question

You are a trial court judge in the state of Loyola. The facts of a case before you are as follows. A patient had been diagnosed as legally blind and had stopped driving as a result. At a routine eye appointment, the patient’s optometrist told him that his vision had improved enough for him to drive again. The patient resumed driving and shortly thereafter crashed into a horse-drawn hay trailer, killing one passenger and injuring the other four.

The passengers have sued the optometrist, claiming medical malpractice. The optometrist has moved for summary judgment on the grounds that she had no duty to the plaintiffs.

How would you rule on the motion? Include your reasoning. You should be aware that the Supreme Court of Loyola recently adopted the holding and reasoning of the Tarasoff opinion regarding a psychiatrist’s duty to third parties.

Or in California and the Third Restatement, a “flagrant” trespasser rather than just a plain old trespasser ↩︎

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Duties of Governmental Entities

Preparing for the Midterm

Today’s Agenda

Exam Logistics & Studying Advice
In-Class Exercise: Practice Exam Question

Exam Logistics & Studying Advice

Exam Format

What is a good exam question?

What is a good exam answer?

Practice Exam Question

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Duty for Purely Emotional Harm

Assignment Report Back:

[fit]Did you do something kind and restorative for yourself?

Duties of Governmental Entities

Duty for Purely Emotional Harm

Falzone v. Busch

Policy Reasons for “Impact” Rule

Flood of litigation
Fake claims
Problems of proof

“Zone of Danger”

Requires a reasonable fear of immediate physical injury

Two Lingering Questions

How is emotional harm different than damages for pain and suffering?
Why are we learning about this under the duty chapter?

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Midterm Review

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How I would approach a question for this class

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How to perform well on an essay question in this class

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Sample answer

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Yesterday’s Example Question:

A plaintiff, Randal Briggs, has sued his doctor, Peggy Rice, for medical malpractice, alleging that she negligently performed a surgical operation to repair an injury to his leg that Briggs sustained when he fell off of his tractor on his farm in Iowa. Doctor Rice runs a small family medicine practice in the same rural town where Briggs lives. Rice plans to call as an expert witness Doctor Lucas Maxwell, whose family medicine practice is located next door to her own practice. Briggs plans to call as an expert witness Doctor Silvia Delgado from the University of Iowa who has written the textbook on the particular procedure Rice performed and who performs the procedure routinely in his practices in Iowa City, New York City, and Los Angeles. As the attorney for Doctor Rice, what is your best argument for why the trial court should not allow the jury to hear the testimony of Doctor Delgado?

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Negligence per se

vs.

Prima facie case of negligence

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The Exam Itself

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Damages

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Concept of Negligence

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Procedural Issues

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Proving Negligence & Res Ipsa

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Medical Malpractice

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Duties

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Comparative negligence / fault / responsibility

Technical Questions about the Exam

Will we be told in the jurisdictional rule which form of Comparative Negligence we should be using?

Yes.

Should we memorize the exceptions to where the government rule of no tort duty to provide police protection would apply? (Pg.234 bottom of the page)

The Cuffy rules are included in the Appendix.

If we are told that a jurisdiction is “common law” should we assume only contributory negligence is recognized as a defense, or should we explore comparative negligence too?

You will be told whether comparative negligence or contributory negligence applies.

Should we only focus on using the Second Restatement’s definition for strict liability?

No. I’ve also included Rylands v. Fletcher, Fletcher v. Rylands, and the Third Restatement in the appendix.

Negligence

How does duty vary from an affirmative duty?

In general, the law imposes a legal duty when someone’s actions create a risk of harm. With an affirmative duty, the defendant’s actions did not create the risk of harm. Nonetheless, the law will impose a legal duty on the defendant. In the past, I have found it helpful to think of affirmative duty as being a “duty to intervene.”

How can I define non-negligent injury and non-negligent creation of risk?

Non-negligent injury means that the defendant injured the plaintiff but was not negligent. So let’s say I was being very careful flying a kite but a gust of wind came through and my kite nosedived and hit someone in the eye. I am not liable for that initial injury because I was not negligent. But I now have a legal duty to that person whom I injured. I can’t just say, “The law does not impose affirmative duties” and let them suffer. If there is no one else around and I just let them flail about and their injury gets worse because I didn’t get medical assistance, then I will be liable for the aggravation of their injuries — even though I am not liable for the initial injury itself.

Non-negligent creation of risk is very similar to non-negligent injury. It means that if the defendant created a risky situation but not due to their own negligence, they have a duty to take reasonable care to reduce that risk. So if your car breaks down on the highway and you pull onto the shoulder of the road, that’s a non-negligent creation of risk. Your car on the side of the road is a risk to other drivers, even if that risk is not the result of you failing to live up to any standard of care. You now have a duty to take reasonable care to reduce that risk, if possible.

In our attack outlines, how do we differentiate when to analyze using the negligence framework and when to separately analyze duty and breach?

Well… this is what make negligence hard. Duty and breach really run into one another.

For your attack outline, you want to make sure that first and foremost you’re answering the question of whether the defendant owed a legal duty to the plaintiff. Most of the time this is clear, but you’ll want to check every time, and you’ll want to do a full analysis if the tort system would be imposing an affirmative duty on the plaintiff.

Once you’ve established that the defendant owed the plaintiff a legal duty, then the questions of, “What was the scope of that duty?” “What was the standard of care?” and “Did the defendant breach that duty?” all run into one another. I think it’s cleanest and most efficient to address that as one analysis of “duty and breach” in which you use the best methods available to establish what the standard of care was and then apply that to the facts of the case to determine whether the defendant breached.

When we’re analyzing harm for the elements of negligence, do we need to do a full IRAC to prove harm or can we just say there was an injury so harm occurred?

Harm is not usually an issue in itself. The question is whether the plaintiff suffered a legally cognizable injury. For negligence and strict liability, personal injury or injury to property suffices. NIED and IIED address emotional injuries. For intentional torts, the harm must be the harm that the tort is there to protect. For battery, that’s harmful or offensive touch. For assault, that’s apprehension of harmful or offensive touch. For false imprisonment, that’s apprehension of confinement or being harmed by that confinement.

Causation

Does the substantial factor test apply when we have multiple defendants?

To prove causation, a plaintiff needs to prove factual cause. The test for factual causation in a given jurisdiction is either substantial factor, but-for, or a combination of the two. The tests all result in identical outcomes. There’s no difference. They are different labels for the same inquiry. The only reason we have multiple tests is that they represent different attempts to try to deal with problem of multiple sufficient causes.

For determining factual cause, jurisdictional rules tend to dictate using either the but-for test or the substantial factor test or some combination of both. You just follow whatever the rule is in the jurisdiction. It doesn’t matter. They all result in the same thing. The substantial factor test was created to replace the but-for test to deal with the problem of multiple sufficient causes. But the more modern approach is to use the but-for test but say that factual cause is met when there are multiple sufficient causes. There’s no jurisdiction in the country that allows defendants to escape liability if there are multiple sufficient causes. They just get there in different ways.

I am not sure if I am understanding alternative liability correctly, but from what understood from it is that is when we shift the burden from the plaintiff to prove it who causes it, to the defendants. The defendants have to prove amongst them who did it correctly?

Yes. With alternative liability, the court will find that factual cause has been met, even though it’s impossible for the plaintiff to identify which of the defendants was the but-for cause of the plaintiff’s injury. But if a defendant can prove that they are not the factual cause of the injury, then that defendant is off the hook for liability.

“alternative liability when they are working in concert?”

Alternative liability is different than finding factual cause when defendants are working in concert. When defendants are working in concert as a team, the negligence of each defendant counts as a factual cause. With alternative liability, only one of the defendant’s acts of negligence is the factual cause, the other defendant’s act of negligence is not. The plaintiff just can’t identify which defendant’s actions are the factual cause so the court makes both defendants liable, unless one of the defendants can prove that their negligence was not the factual cause of the plaintiff’s injuries.

In Summers v Tice if they can’t figure out which defendant was liable would you apportion the liability 50/50 between the defendants?

In a Summers v. Tice scenario, alternative liability establishes that both defendants are liable. Whatever the jurisdictional rules on contribution are would determine how much each defendant owes. At common law, it would be a 50-50 split. In modern systems, it would be based on each defendant’s comparative responsibility. I imagine that in most Summers v. Tice scenarios that would still be 50-50, but one can imagine a scenario in which a jury determines that one defendant is more responsible than the other.

Should we apply market share liability when facts show that there are several others injured or is one plaintiff sufficient? Should we discuss it with products liability as well?

Market share liability is a rare exception for resolving cases in which the plaintiff cannot prove factual cause but there are many plaintiffs who suffered identical harm and many defendants who produced identical products that caused this particular harm. Market share liability can apply in products liability causes of action the same as in negligence causes of action as it is an issue of causation.

For Toxic Harms, do we have to know about Mass Torts and multidistrict litigations, or should we only know the three frequent problems that toxic harm cases raise?

This isn’t a civil procedure class, so you won’t be asked about the intricacies of multidistrict litigation, but you should know what multidistrict litigation is, how it differs from class actions, and why class actions don’t work for toxic harm cases.

Is intervening cause used in strict/product liability case and in intentional harm cases?

Yes, factual cause and proximate cause both need to be proven for strict liability, products liability, and intentional torts.

In Palsgraf, I understand that Cardoza believed this case was a duty issue and that Andrews thought it to be a proximate cause issue. However, I’m having trouble understanding the big takeaway in how this is related to unexpected victims. o Is it that the defendant had no duty towards Palsgraf and, therefore, cannot be held liable for Palsgraf’s injuries?

Cardozo’s opinion is that this is a duty issue, not a proximate cause issue. Andrews dissent takes a more modern view on duty, but is also a useful examination of what the proximate really comes down to:

“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.”

I am confused how to use Palsgraf becasue I know we learned about this case with unexpected victim with regard to proximiate cause but it turned on duty. Would we use this for both duty and proximate cause analysis?

Yes. You can use Cardozo’s majority opinion for duty and Andrews dissent for proximate cause.

Defenses

Even if a plaintiff’s actions can’t be an intervening cause for the defendant to escape liability, is there still the possibility they can be found comparatively/contributorily negligent?

Yes.

Are comparative and contributory negligence the same or are they different, and are applicable only depending on the jdx that we are in?

A jurisdiction has either a contributory negligence regime or a comparative negligence regime (pure, not as great as, or no greater than). With contributory negligence, if the plaintiff is contributorily negligent, then the defendant escapes liability altogether. With comparative negligence, if the plaintiff is comparatively negligent, then the defendant’s liability is reduced. Under a “not as great as” regime, the defendant escapes liability altogether if the plaintiff is 50% or more at fault. Under a “no greater than” regime, the defendant escapes liability altogether if the plaintiff is more than 50% at fault.

Can you explain the key difference between not as great as and no greater than? I remember you saying there is a tremendous impact. (I keep thinking it’s just 1%)

With “not as great as” if the plaintiff and defendant are equally at fault, the plaintiff gets nothing. With “no greater than” if the plaintiff and defendant are equally at fault, the plaintiff gets 50% of total damages. There are many cases in which a jury will find the plaintiff and defendant each equally at fault.

Assumption of risk- for some reason I’m very confused by how to apply this in questions, after we brought in the reasoning of Davenport. If we are in a jurisdiction where it is a complete defense, would we still address the issue of duty in Express/Primary AoR? Do we always talk about duty within these analyses now? If we are in a comparative jurisdiction so AoR a partial defense, we mainly talked about that within secondary implied AoR because with that you are looking at whether plaintiff was reasonable. How would the partial defense affect express and primary?

Where assumption of risk is a defense, the defendant may win on either the issue of duty or the issue of explicit assumption of risk based on very similar reasoning. B. Express and primary assumption of risk are a complete defense even in comparative negligence jurisdictions.

Regarding assumption of risk, if we are in a comparative negligence jurisdiction do we even mention assumption of risk, or should we do the analysis within duty and prox cause?

It depends on if it is a jurisdiction that allows the defense or not. If the defense is allowed, then analyze the defense. If the defense is not allowed, then take up those issues within your duty and comparative negligence (not proximate cause) analysis.

Strict Liability

Fully explain when strict liability applies “Strict liability & american cyanamid”

What’s the difference between “ultrahazardous activity” and “abnormally dangerous activity” in Strict Liability?

In practice, there shouldn’t be much of a difference. The First Restatement uses the term “ultrahazardous activity” while the Second and Third Restatements use the term “abnormally dangerous activity.” Each restatement has its own test for what constitutes this kind of activity. The Second and Third Restatement definitions are what contemporary courts tend to use, although there is variation.

For approaching a strict liability question do just explain whether the activity is abnormal/ultrahazardous, causation, and harm. Or should we also discuss why the due care analysis doesn’t apply (Posner’s two-part analysis)

It depends on the situation whether you need to bring in Posner’s due care analysis. The key thing to remember is that the holding in American Cyanamid is that the defendant’s activity was not abnormally dangerous because it was susceptible to due care analysis. The idea is that strict liability exists for activity that cannot be handled by negligence. If the activity can be handled by a negligence regime, then it doesn’t count as abnormally dangerous.

Strict Liability For SL, it seems like we have 4 standards (1) a person who for his own purposes bring onto his land and collects and keeps there anything likely to do mischief if it escapes; 2) same thing but adds non-natural; 3) ultrahazardous activity per 1st restatement and 4) abnormally dangerous activity per 2nd restatemnt).

I am confused if they all work together or which to apply to see if SL applies?
I am also confused how those work with the American Cyanamid test which I have. as: SL applies for behavior that is 1) Very risk and that risk cannot be avoided at a reasonable cost (these chemicals must be transported, cannot eliminate risk) and 2) not susceptible to due care analysis.

Each of those four standards is a different standard for when strict liability may apply. Depending on the jurisdiction, they may have settled on one particular standard or they may use multiple standards.

I’ll explain American Cyanamid more in class tomorrow. The basic deal is: if reasonable care was all that was needed to properly reduce the risk, then due care analysis would work to achieve optimal deterrence, and therefore the activity is not abnormally dangerous and negligence should apply, not strict liability.

Is the rule of privity relevant?

It’s not good law anymore for products liability.

This might be a long shot but in my PL notes I have that for reasonable alternative design there are two issues that come up in this space. The first one being at what point are we just in a different category of product. I don’t have a second issue and couldn’t find it looking back at the lecture either. Does that ring a bell at all?

The second issue is when is the danger just inherent to the product itself and not a defect? So, for example, you can’t sue a knife manufacturer because you cut yourself on a sharp knife.

When proving design defect, should we always present a reasonable alternative design if possible or can we use any of the other factors to consider, e.g., likelihood such danger would occur, gravity of danger posed by the challenged design, etc.?

With design defect, you also have the consumer expectations test available. When it comes to the test of excessive preventable danger (or risk-utility test, as it is sometimes called), you are welcome to use different factors to consider whether the product was designed defectively, but I don’t think that there’s a way to evaluate those factors unless you’re comparing the product as designed against a reasonable alternative design.

At what point does the design of a product become too complex for the court to apply the consumer-expectation test? (I know that we discussed Soule v. GM as an example of cars being too complex, but is there a bright-line rule for this limit?)

There’s no clear rule here. Best we can say is that the consumer expectations test is less certain to apply the more complicated a product gets and the less likely it is that consumers even have expectations about the safety of the feature in question.

What do you mean that warnings cannot overcome design defects?

In most jurisdictions, if a safer design can be implemented, then adoption of the safer design is required and the defendant cannot escape liability because they warned of the danger of their unsafely designed product.

Can you explain the heeding presumption and how that plays a part in warnings?

The heeding presumption is a presumption that if the manufacturer given an adequate warning, then the plaintiff would have heeded that warning. If the manufacturer wants to escape liability by arguing that the plaintiff wouldn’t have paid attention to an adequate warning, then the burden is on the manufacturer to produce evidence to overcome the presumption that plaintiff would have paid attention to the warning.

For comparative responsibility and these two restatements, I want to make sure I’m understanding the key difference. For the 3rd rst the D must prove evidence of the plaitiffs negligence and contributory or comparative neglgience can be used depending on the jurisdiction? And then for the 2nd rst its only contributory negligence only when the P engages in unreasonable known danger? Tension between Restatements Restatement Second Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this Section as in other cases of strict liability. Restatement Third [W]hen the defendant claims that the plaintiff failed to discover a defect, there must be evidence that the plaintiff’s conduct in failing to discover a defect did, in fact, fail to meet a standard of reasonable care. In general, a plaintiff has no reason to expect that a new product contains a defect and would have little reason to be on guard to discover it.

Under the 2nd restatement, a plaintiff can never be found negligent for failing to discover a defect. Under the 3rd restatement, a plaintiff generally cannot be found negligent for failing to discover a defect.

Intentional Torts

Double checking, is capacity not a defense to intent? (age, insanity)

Capacity is not an affirmative defense. It would matter if the person’s condition meant that they did not have the requisite intent.

Are causation and harm built into the elements we have for intentional torts? Or is that something we have to address separately?

Causation and harm are part of each intentional tort. They’re just not often a contested issue in litigation. A plaintiff still needs to establish causation and harm, but that’s rarely an issue. Unless a fact pattern makes it an issue, you don’t need to do a full analysis.

On pg. 906, there is a note case that says a gif sent via electronics constituted as a physical touch for battery. So then does that mean that a physical touch doesn’t necessarily mean that the defendant themselves physically touched the defendent?

Yes. If you hit me with a baseball bat, that’s a battery. If you throw a ball and hit me, that’s a battery. If you throw a ball that hits a bat that knocks over a set of dominoes that topples a bowling ball that slides down a slide that hits a weight that spins some gears that turn a mechanism that triggers a pulley to flip a switch to swing a mechanical arm that knocks off my hat, that’s a battery. In the note case, the court found that the defendant’s actions constituted a battery because the light rays emanating from the computer and hitting the plaintiff’s eyes constituted a touch.

Can there be an assault if it was an attempted battery but the P was not put into reasonable fear or apprehension of battery or is the reasonable fear or apprehension required?

Assault requires that the plaintiff actually apprehend the imminent harmful or offensive touch. No apprehension means no assault.

When a defendant says something conditional, is it only assault if a reasonable person would think whatever was said was harmful/offensive? Or would it only be assault if the conditional threat was imminent like: “if you don’t do this, I am going to shoot you right now” (assault?) vs. “if you don’t do this, I am going to shoot you next week” (not assault?) I have conflicting notes on whether conditional words/threats can constitute an assault

If a defendant makes a conditional threat, it can create a question of whether the harmful/offensive touch is imminent. Some conditions would mean that there is not assault because the harmful/offensive touch is not imminent, e.g., “Come back around here again and I’ll punch your lights out!” but sometimes the condition is so immediate that the threat is still imminent, like if the defendant makes a demand, e.g., “Give me your money or I’ll knock your teeth out.”

For intent for false imprisonment: does the intent need to be intent to confine or intent to confine by threat, assertion of legal authority or barriers?

Intent to confine

Do we need to know the specific subrules associated with citizens arrests, shoplifting, law enforcement and false imprisonment?

That’s hard for me to answer in the abstract. In general, for issues like these I’m not interested in you memorizing the particular rules in a given jurisdiction (especially since it is often governed by statute) so much as I’m interested in you understanding what the competing concerns are and the way that the rules can vary.

Is the first amendment a defense to IIED claims? (Brought after plaintiff proves IIED claim?)

You can think of it as a defense. If you want to be precise, the defense would be that federal constitutional law preempts the plaintiff’s tort claim. We didn’t talk about preemption in this course, so I’m not going to be a stickler for terminology here.

Should we include Posner’s reasonableness test for Defense of Property?

If you have a defense of property question, you should feel free to bring in Posner’s argument as persuasive authority.

Damages

Would we first analyze the defenses, then apply the doctrine of contributions and depending on whether it is a traditional common law approach or modern approach we apportion damages as so?

I’m not sure I totally follow. Let me know if this helps.

First, you need to establish which defendants are liable at all. So you need to analyze the defenses to know whether a defendant is liable. Once you have established which defendants are liable, you can begin to apportion damages. At common law, the damages are split evenly among the defendants. In more modern systems, damages are apportioned according to each defendant’s comparative fault.

When there is an exacerbation of a previous injury, do we find the defendant who exacerbated the injury liable for the initial harm of the accident and then responsible for the unforeseen magnitude of the harm through the eggshell plaintiff rule? Or is the exacerbation just the initial harm that that defendant is liable for?

Defendants are only liable when they are the factual cause of an injury. So if a defendant aggravated an injury but was not responsible for the initial injury, then they are only liable for the aggravation. The exception to this rule is when the court and jury can’t cleanly separate out which harms came from the initial injury and which harms came from the aggravation. In those circumstances, a defendant who is only responsible for the aggravation will be liable for the whole injury unless the defendant can prove that they are not the factual cause of particular harms that the plaintiff has suffered.

How is the unpaid portion from an insolvent defendant divided among the other defendants in a modern joint-and-several liability jurisdiction?

The typical rule is that it is divided up based on comparative responsibility.

When the question damages arise after going through the elements of negligence for each person, how do we know whether joint & several, several, or alternative liability applies? Also, is the main difference between alternative liability and joint & several that in alternative the defendants figure out how to split damages while joint and several is equally split?

Alternative liability is a different inquiry than joint-and-several liability and several liability.

Alternative liability resolves a question of factual cause.

Joint-and-several liability and several liability are jurisdictional rules about how to apportion damages when one defendant is insolvent or absent. You will know which applies because of the rule in the jurisdiction.

Anxiety

You can’t help but be anxious right now. There’s no way to not be anxious. But you can’t let anxiety drive the car. It can scream in the backseat and blast terrible music on the radio and try to make you miserable. That’s fine. Just don’t let that anxiety tell you what to do. So if there’s something from someone else’s outline that you’d like to include because it helps you understand the material, great, bring it on into your outline. But don’t bring something into your outline because you’re anxious about not having it. The antidote to anxiety is curiosity. Perhaps the best thing to do is be curious about what the restatement passages are doing — if anything at all — for your classmates and find out.

This advice is also very applicable to the exam. You will do well if you approach the questions with a sense of curiosity and discovery. Curiosity opens up your mind to possibilities. Anxiety shuts down and grabs onto “safe” answers and approaches. This exam rewards curious thinkers who mull over problems and are comfortable with not knowing how a difficult problem should be solved. The exam does not reward anxious thinkers who too quickly grab onto the closest available answers.

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Welcome to the Spring Semester!

—

Midterm Review

Semester Overview

Negligence — Causation —— Factual Causation —— Proximate Cause — Defenses —— Contributory & Comparative Negligence —— Assumption of Risk

Semester Overview

Strict Liability — Traditional view — Products liability —— Manufacturing defects —— Design defects —— Warnings —— Defenses

Semester Overview

Intentional Torts — Types of intentional tort — Defenses

Alternatives to Tort

Causation

Two parts:

Factual cause
Proximate cause

Factual causation is usually straightforward

Adams v. Bullock — Kid gets electrocuted by trolley line

Martin v. Herzog — Car accident, driving without headlights turned on

Byrne v. Boadle — Flour barrel falls on plaintiff’s head

Reynolds v. Hicks — Underage kid gets drunk at wedding and gets in car accident

Stubbs v. City of Rochester

[fit] What about two possible causes?

Two different tests for factual causation

“But for”
Substantial factor

California Jury Instructions

A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.

[Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.]

Zuchowicz v. United States

Four typical scenarios in which factual cause may be contested

Toxic exposure
No idea what happened
Know what happened, but don’t know that it wouldn’t have happened if defendant had behaved reasonably
Know what happened, but don’t know who to blame

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Welcome to the Spring Semester!

—

Midterm Review

Semester Overview

Negligence — Causation —— Factual Causation —— Proximate Cause — Defenses —— Contributory & Comparative Negligence —— Assumption of Risk

Semester Overview

Strict Liability — Traditional view — Products liability —— Manufacturing defects —— Design defects —— Warnings —— Defenses

Semester Overview

Intentional Torts — Types of intentional tort — Defenses

Alternatives to Tort

Causation

Two parts:

Factual cause
Proximate cause

Factual causation is usually straightforward

Adams v. Bullock — Kid gets electrocuted by trolley line

Martin v. Herzog — Car accident, driving without headlights turned on

Byrne v. Boadle — Flour barrel falls on plaintiff’s head

Reynolds v. Hicks — Underage kid gets drunk at wedding and gets in car accident

Stubbs v. City of Rochester

[fit] What about two possible causes?

Two different tests for factual causation

“But for”
Substantial factor

California Jury Instructions

[Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.]

Zuchowicz v. United States

Four typical scenarios in which factual cause may be contested

Toxic exposure
No idea what happened
Know what happened, but don’t know that it wouldn’t have happened if defendant had behaved reasonably
Know what happened, but don’t know who to blame

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Factual Causation:

Multiple Defendants

—

Causation

Two parts:

Two different tests for factual causation

Causation

Two parts:

Factual cause
Proximate cause

Two different tests for factual causation

“But for”
Substantial factor

Stubbs v. City of Rochester

Zuchowicz v. United States

Four typical scenarios in which factual cause may be contested

Toxic exposure
No idea what happened
Know what happened, but don’t know that it wouldn’t have happened if defendant had behaved reasonably
Know what happened, but don’t know who to blame

Joint and Several Liability

Summers v. Tice

Three reasons for alternative liability:

Almost 51% probability
Fairness
“Smoke out” the real evidence

Summers v. Tice

~~Three~~ reasons for alternative liability:

~~Almost 51% probability~~
Fairness
~~“Smoke out” the real evidence~~

Hymowitz v. Eli Lilly & Co.

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Toxic Harms

and factual causation review

—

Toxic Harms

Why is the tort system such a poor fit?

Three frequent problems:

Can’t be certain that the toxin was a “but for” cause
Can’t be certain of the magnitude of the harm
Can’t be certain who is responsible

Mass Torts

A procedural story in two parts:

Amchem killed the mass tort class action
But multidistrict litigation (MDL) took over

Factual Causation Speedrun

Causation

Two parts:

Two different tests for factual causation

Causation

Two parts:

Factual cause
Proximate cause

Two different tests for factual causation

“But for”
Substantial factor

Stubbs v. City of Rochester

Zuchowicz v. United States

Summers v. Tice

Hymowitz v. Eli Lilly & Co.

Joint and Several Liability

vs.

Several Liability

Alternative Liability

Exercise #1

You are an attorney at a plaintiff’s side firm in the state of Loyola.

Luna Waters was driving her car and rolled to a stop at a red light. Just behind her on the road, Joseph Meyer was texting while driving and negligently rear-ended Waters’s car. Minutes later, another driver, Myla Morales, was lost in thought, awestruck by the idea that causation can never be directly observed but is always an inference vulnerable in some way to post hoc ergo propter hoc “since Y followed X, X must have caused Y,” and negligently rear-ended Meyer’s car, which struck Waters’s car a second time.

In one collision or the other, Waters sustained an injury to her neck. She doesn’t know which of the two accidents caused the injury. The doctors that treated her injury cannot determine whether it was the first or second impact that caused it.

Waters visits your office as a prospective client. She wants to know if she has a viable negligence claim against Meyer or Morales, who she should sue, and if she will win. Please advise her.

Exercise 2

Same initial fact pattern as the first exercise. Except now, in addition to being hit by Meyer and Morales, Waters was also hit by two other drivers who fled the scene.

In one of the four collisions, Waters sustained an injury to her neck. She doesn’t know which of the four accidents caused the injury. The doctors that treated her injury cannot determine which of the four impacts caused it.

Waters visits your office as a prospective client. She wants to know if she has a viable negligence claim against Meyer or Morales, who she should sue, and if she will win. Please advise her.

Exercise 3

You are an attorney at a plaintiff’s side firm in the state of Loyola.

A labor activist, Ayla Ross, comes to visit you in your office. She has been organizing workers at a slaughterhouse in the region. She’s learned that the slaughterhouse had been euthanizing chickens with a particular gas, BirdBeGone, for the many years. but stopped using the gas when it was taken off the market six months ago. The gas was banned by state authorities after emerging research indicated that human beings exposed to the gas could develop skin cancer and that the gas could induce miscarriages and result in severe birth defects.

Ross wants to talk with these workers about the possibility of suing the slaughterhouse for negligence. She is particularly interested in the possibility of a class action lawsuit so that the workers don’t need to litigate individual cases, but she knows that issues of causation can be challenging in toxic harm lawsuits.

For this question, assume that duty and breach can be proven. Please advise her on the most pertinent remaining issues.

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Proximate Cause

—

But first…

Exercise 3

You are an attorney at a plaintiff’s side firm in the state of Loyola.

For this question, assume that duty and breach can be proven. Please advise her on the most pertinent remaining issues.

Okay, now Proximate Cause!

But first…

Where are we?

What are we doing?

Torts

~~I. Introduction~~ ~~II. Remedies~~ ~~III. Negligence~~ —~~A. Introduction~~ —~~B. Duty & Breach~~ —~~C. Causation~~ —— ~~- Factual Cause~~ —— - Proximate Cause — D. Defenses IV. Strict Liability V. Intentional Torts VI. Alternatives to Tort

Elements of a Negligence Cause of Action

Duty
Breach
Causation
Harm

Two parts to causation

Factual cause
Proximate cause

Proximate Cause

Unexpected Harm

Benn v. Thomas

Additional Harm

Note Cases

Intervening Cause

Torres v. El Paso Electric Co.

Intervening Cause

“a cause which interrupts the natural sequence of events, turns aside their cause, prevents the natural and probable results of the original act or omission, and produces a different result, that could not have been reasonably foreseen.”

Prosser & Keaton, Law of Torts

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Proximate Cause (cont’d.)

—

Proximate Cause (so far…)

Unexpected Harm Benn v. Thomas

Additional Harm Note Cases

Intervening Cause Torres v. El Paso Electric Co.

[fit] Palsgraf v. Long Island Railroad Co.

[fit] So, what is the rule?

How would you rule in Palsgraf?

Majority opinion (Cardozo)

and

Dissenting opinion (Andrews)

- Andrews dissent in Palsgraf

Danger invites rescue

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Defenses

What products liability claims might Reuben the bear assert against the manufacturer of his pants?

We all have an intuition that Reuben should lose his case,
but for what reason?

Because of Reuben role in the harm

Causal
Responsibility

Expectations

Fluke aberration / not foreseaable by pant manufacturer

What were our defenses for negligence?

???????? ????????

What were our defenses for negligence?

Contributory / Comparative Negligence Assumption of Risk

Do these apply with strict liability?

General Motors Corp. v. Sanchez

Restatement (Second) of Torts

State Statute on Comparative Responsibility

Statute expressly includes suits based on strict tort liability and defines “[p]ercentage of responsibility” as the percentage that a party “cause[d] or contribute[d] to cause [the harm] in any way, whether by negligent act or omission, . . . [or] by other conduct or activity violative of the applicable legal standard.”

Tension between Restatements

Restatement Second Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this Section as in other cases of strict liability.

Restatement Third [W]hen the defendant claims that the plaintiff failed to discover a defect, there must be evidence that the plaintiff’s conduct in failing to discover a defect did, in fact, fail to meet a standard of reasonable care. In general, a plaintiff has no reason to expect that a new product contains a defect and would have little reason to be on guard to discover it.

Comparative Responsibility is Hard

Disclaimers and Waivers

Products Liability Exercise Part 1

You are a junior associate at a plaintiff-side firm. A partner at the firm has brought you in to work on an interesting new case. The potential plaintiff, a nine-year-old boy named Augustus Gloop, choked on a hot dog during lunch in his elementary school cafeteria. The child survived — thanks to a gym teacher’s training in first aid and CPR — but suffered serious injuries. His family is now interested in suing Oscar Mayer Weiner, the company that produced this hot dog.

The partner at your firm doesn’t typically litigate products liability cases, so she wants you to catch her up to speed. She’d like you to sketch out arguments supporting a failure to warn claim, a design defect claim, and a manufacturing defect claim. For each claim, provide an example of a piece of evidence that would help our client win. And let her know which claims have the best chance of success. On the failure to warn claim, you should know that Oscar Mayer Weiner will seek protection from the “learned intermediary” doctrine as the company does inform elementary schools that hot dogs are a choking hazard.

Products Liability Exercise Part 2

You are a junior associate at a firm representing Oscar Mayer Weiner.

Same set of facts. A potential plaintiff, a nine-year-old boy named Augustus Gloop, choked on a hot dog during lunch in his elementary school cafeteria. The child survived — thanks to a gym teacher’s training in first aid and CPR — but suffered serious injuries. His family is now interested in suing Oscar Mayer Weiner, the company that produced this hot dog.

A partner at your firm would like you to sketch out arguments defending Oscar Mayer Weiner the plaintiff’s potential failure to warn claim, design defect claim, and manufacturing defect claim.

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No-Fault and Beyond

Ideology

Does Tort Law Have an Ideology?

Big Picture: Workers’ Comp vs. Tort Law

Deterrence

Compensation

Administrative Cost

Equity

-	Negligence	Strict Liability	Intentional Torts
Type of Conduct	???	??? ???	???
Causal Connection	??? ???	??? ???	??? ???
Affirmative Defenses	??? ???	??? ???	??? ??? ???
Damages Available	???	???	???

-	Negligence	Strict Liability	Intentional Torts
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm
Causal Connection	??? ???	??? ???	??? ???
Affirmative Defenses	??? ???	??? ???	??? ??? ???
Damages Available	???	???	???

-	Negligence	Strict Liability	Intentional Torts
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause
Affirmative Defenses	??? ???	??? ???	??? ??? ???
Damages Available	???	???	???

-	Negligence	Strict Liability	Intentional Torts
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity
Damages Available	???	???	???

-	Negligence	Strict Liability	Intentional Torts
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	???
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	???
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	???

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	- Workplace injuries
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	???
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	???

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	- Workplace injuries
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Injury must be “work-related”
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	???

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	- Workplace injuries
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Injury must be “work-related”
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	- Employee was outside “scope of employment”
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	???

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	- Workplace injuries
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Injury must be “work-related”
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	- Employee was outside “scope of employment”
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)

No-Fault Systems / Compensation Funds

Common features:

Narrow category of injury
Reduced fact-finding and proof requirements
Fixed recovery amounts
Insurance-like funding rather than individual defendant-to-plaintiff payouts

-	Torts	Workers’ Comp	No-Fault Funds
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available

9-11 Fund

Unique characteristics:

created after the harm, not in anticipation of harm
individualized approach to economic loss
tort-like awards for noneconomic loss
low administrative costs

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	???
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	???
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available	???

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	- 9-11 terrorist attacks
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	???
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available	-???

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	- 9-11 terrorist attacks
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	- Injury happened in “zone of danger” of the terrorist attacks
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available	???

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	- 9-11 terrorist attacks
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	- Injury happened in “zone of danger” of the terrorist attacks
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	- Terrorism
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available	???

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	- 9-11 terrorist attacks
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	- Injury happened in “zone of danger” of the terrorist attacks
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	- Terrorism
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available	- Full economic damages up to 98% of wage earners - Noneconomic losses compensated in full

New Zealand

Total tort reform Common law torts for accidental injury are abolished All accidental injuries now covered under a no-fault scheme: — unlimited medical expenses — fixed compensation for lost earnings — lump sums for lost body parts and pain and suffering

In-Class Exercise

You are a wise federal trial judge with experience managing multidistrict litigation for toxic harms. Policymakers are considering establishing a compensation fund for victims of toxic harms. You have been asked to advise the group that is drafting the proposal.

Here are some features of the current plan. To receive compensation, the plaintiff must prove that she was sufficiently exposed to a toxic substance such that the toxic substance could have caused her injury. If there are multiple possible defendants, the plaintiff is not required to prove which defendants are responsible for her injuries. The plaintiff is not required to prove that the defendant was at fault. The plaintiff can receive unlimited compensaton for medical expenses (including medical monitoring) in installments over time, but the plaintiff cannot be compensated for other losses. If the plaintiff receives compensation from this fund, the plaintiff is barred from pursuing any common law tort action related to the injury.

What are the strengths and weaknesses of this plan? What are your suggestions for revision?

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Technical Questions about the Exam

Will we be told in the jurisdictional rules whether we should use contributory or comparative negligence or what form of comparative negligence?

Should we only focus on using the Second Restatement’s definition for strict liability?

Negligence

How does duty vary from an affirmative duty?

^ In general, the law imposes a legal duty when someone’s actions create a risk of harm. With an affirmative duty, the defendant’s actions did not create the risk of harm. Nonetheless, the law will impose a legal duty on the defendant. In the past, I have found it helpful to think of affirmative duty as being a “duty to intervene.”

How can I define non-negligent injury and non-negligent creation of risk?

^ Non-negligent injury means that the defendant injured the plaintiff but was not negligent. So let’s say I was being very careful flying a kite but a gust of wind came through and my kite nosedived and hit someone in the eye. I am not liable for that initial injury because I was not negligent. But I now have a legal duty to that person whom I injured. I can’t just say, “The law does not impose affirmative duties” and let them suffer. If there is no one else around and I just let them flail about and their injury gets worse because I didn’t get medical assistance, then I will be liable for the aggravation of their injuries — even though I am not liable for the initial injury itself.

^ Non-negligent creation of risk is very similar to non-negligent injury. It means that if the defendant created a risky situation but not due to their own negligence, they have a duty to take reasonable care to reduce that risk. So if your car breaks down on the highway and you pull onto the shoulder of the road, that’s a non-negligent creation of risk. Your car on the side of the road is a risk to other drivers, even if that risk is not the result of you failing to live up to any standard of care. You now have a duty to take reasonable care to reduce that risk, if possible.

How do we differentiate when to analyze using the negligence framework and when to separately analyze duty and breach?

^ Well… this is what make negligence hard. Duty and breach really run into one another.

^ For your attack outline, you want to make sure that first and foremost you’re answering the question of whether the defendant owed a legal duty to the plaintiff. Most of the time this is clear, but you’ll want to check every time, and you’ll want to do a full analysis if the tort system would be imposing an affirmative duty on the plaintiff.

^ Once you’ve established that the defendant owed the plaintiff a legal duty, then the questions of, “What was the scope of that duty?” “What was the standard of care?” and “Did the defendant breach that duty?” all run into one another. I think it’s cleanest and most efficient to address that as one analysis of “duty and breach” in which you use the best methods available to establish what the standard of care was and then apply that to the facts of the case to determine whether the defendant breached.

When we’re analyzing harm for the elements of negligence, do we need to do a full IRAC to prove harm or can we just say there was an injury so harm occurred?

^ Harm is not usually an issue in itself. The question is whether the plaintiff suffered a legally cognizable injury. For negligence and strict liability, personal injury or injury to property suffices. NIED and IIED address emotional injuries. For intentional torts, the harm must be the harm that the tort is there to protect. For battery, that’s harmful or offensive touch. For assault, that’s apprehension of harmful or offensive touch. For false imprisonment, that’s apprehension of confinement or being harmed by that confinement.

Factual Cause

What’s the deal with the but-for test and the substantial factor test?

^ To prove causation, a plaintiff needs to prove factual cause. The test for factual causation in a given jurisdiction is either substantial factor, but-for, or a combination of the two. The tests all result in identical outcomes. There’s no difference. They are different labels for the same inquiry. The only reason we have multiple tests is that they represent different attempts to try to deal with problem of multiple sufficient causes.

^ For determining factual cause, jurisdictional rules tend to dictate using either the but-for test or the substantial factor test or some combination of both. You just follow whatever the rule is in the jurisdiction. It doesn’t matter. They all result in the same thing. The substantial factor test was created to replace the but-for test to deal with the problem of multiple sufficient causes. But the more modern approach is to use the but-for test but say that factual cause is met when there are multiple sufficient causes. There’s no jurisdiction in the country that allows defendants to escape liability if there are multiple sufficient causes. They just get there in different ways.

Can you explain alternative liability and how it differs from defendants acting in concert?

^ Yes. With alternative liability, the court will find that factual cause has been met, even though it’s impossible for the plaintiff to identify which of the defendants was the but-for cause of the plaintiff’s injury. But if a defendant can prove that they are not the factual cause of the injury, then that defendant is off the hook for liability.

^ “alternative liability when they are working in concert?”

^ Alternative liability is different than finding factual cause when defendants are working in concert. When defendants are working in concert as a team, the negligence of each defendant counts as a factual cause. With alternative liability, only one of the defendant’s acts of negligence is the factual cause, the other defendant’s act of negligence is not. The plaintiff just can’t identify which defendant’s actions are the factual cause so the court makes both defendants liable, unless one of the defendants can prove that their negligence was not the factual cause of the plaintiff’s injuries.

In Summers v Tice if they can’t figure out which defendant was liable would you apportion the liability 50/50 between the defendants?

^ In a Summers v. Tice scenario, alternative liability establishes that both defendants are liable. Whatever the jurisdictional rules on contribution are would determine how much each defendant owes. At common law, it would be a 50-50 split. In modern systems, it would be based on each defendant’s comparative responsibility. I imagine that in most Summers v. Tice scenarios that would still be 50-50, but one can imagine a scenario in which a jury determines that one defendant is more responsible than the other.

Should we apply market share liability when facts show that there are several others injured or is one plaintiff sufficient? Should we discuss it with products liability as well?

^ Market share liability is a rare exception for resolving cases in which the plaintiff cannot prove factual cause but there are many plaintiffs who suffered identical harm and many defendants who produced identical products that caused this particular harm. Market share liability can apply in products liability causes of action the same as in negligence causes of action as it is an issue of causation.

For Toxic Harms, do we have to know about Mass Torts and multidistrict litigations, or should we only know the three frequent problems that toxic harm cases raise?

^ This isn’t a civil procedure class, so you won’t be asked about the intricacies of multidistrict litigation, but you should know what multidistrict litigation is, how it differs from class actions, and why class actions don’t work for toxic harm cases.

Proximate Cause

Is intervening cause used in strict/product liability case and in intentional harm cases?

^ Yes, factual cause and proximate cause both need to be proven for strict liability, products liability, and intentional torts.

What am I supposed to understand from Palsgraf exactly?

^ Cardozo’s opinion is that this is a duty issue, not a proximate cause issue. Andrews dissent takes a more modern view on duty, but is also a useful examination of what the proximate really comes down to:

^ “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.”

Defenses

What is the difference between comparative negligence, comparative fault, and comparative responsibility?

Even if a plaintiff’s actions can’t be an intervening cause for the defendant to escape liability, is there still the possibility they can be found comparatively/contributorily negligent?

^ Yes.

Are comparative and contributory negligence the same or are they different, and are applicable only depending on the jdx that we are in?

^ A jurisdiction has either a contributory negligence regime or a comparative negligence regime (pure, not as great as, or no greater than). With contributory negligence, if the plaintiff is contributorily negligent, then the defendant escapes liability altogether. With comparative negligence, if the plaintiff is comparatively negligent, then the defendant’s liability is reduced. Under a “not as great as” regime, the defendant escapes liability altogether if the plaintiff is 50% or more at fault. Under a “no greater than” regime, the defendant escapes liability altogether if the plaintiff is more than 50% at fault.

Can you explain the key difference between not as great as and no greater than?

^ With “not as great as” if the plaintiff and defendant are equally at fault, the plaintiff gets nothing. With “no greater than” if the plaintiff and defendant are equally at fault, the plaintiff gets 50% of total damages. There are many cases in which a jury will find the plaintiff and defendant each equally at fault.

If we are in a comparative negligence jurisdiction do we even mention assumption of risk, or should we do the analysis within duty and comparative negligence?

^ It depends on if it is a jurisdiction that allows the defense or not. If the defense is allowed, then analyze the defense. If the defense is not allowed, then take up those issues within your duty and comparative negligence (not proximate cause) analysis.

Strict Liability

It seems like we have 4 standards (1) a person who for his own purposes bring onto his land and collects and keeps there anything likely to do mischief if it escapes; 2) same thing but adds non-natural; 3) ultrahazardous activity and 4) abnormally dangerous activity. I am confused if they all work together or which to apply to see if strict liability applies?

^ Each of those four standards is a different standard for when strict liability may apply. Depending on the jurisdiction, they may have settled on one particular standard or they may use multiple standards.

What’s the difference between “ultrahazardous activity” and “abnormally dangerous activity”?

^ In practice, there shouldn’t be much of a difference. The First Restatement uses the term “ultrahazardous activity” while the Second and Third Restatements use the term “abnormally dangerous activity.” Each restatement has its own test for what constitutes this kind of activity. The Second and Third Restatement definitions are what contemporary courts tend to use, although there is variation.

^ For approaching a strict liability question do just explain whether the activity is abnormal/ultrahazardous, causation, and harm. Or should we also discuss why the due care analysis doesn’t apply (Posner’s two-part analysis)

^ It depends on the situation whether you need to bring in Posner’s due care analysis. The key thing to remember is that the holding in American Cyanamid is that the defendant’s activity was not abnormally dangerous because it was susceptible to due care analysis. The idea is that strict liability exists for activity that cannot be handled by negligence. If the activity can be handled by a negligence regime, then it doesn’t count as abnormally dangerous.

How am I supposed to incorporate American Cyanamid’s reasoning that strict liability applies for behavior that is 1) very risky and that risk cannot be avoided at a reasonable cost and 2) not susceptible to due care analysis?

^ I am also confused how those work with the American Cyanamid test which I have. as: SL applies for behavior that is 1) Very risk and that risk cannot be avoided at a reasonable cost (these chemicals must be transported, cannot eliminate risk) and 2) not susceptible to due care analysis.

^ I’ll explain American Cyanamid more in class tomorrow. The basic deal is: if reasonable care was all that was needed to properly reduce the risk, then due care analysis would work to achieve optimal deterrence, and therefore the activity is not abnormally dangerous and negligence should apply, not strict liability.

Products Liability

Is the rule of privity relevant?

^ It’s not good law anymore for products liability.

For reasonable alternative design, I have in my notes that there are two issues that come up in this space. The first one is at what point are we just in a different category of product. What is the second issue?

^ The second issue is when is the danger just inherent to the product itself and not a defect? So, for example, you can’t sue a knife manufacturer because you cut yourself on a sharp knife.

When proving design defect, should we always present a reasonable alternative design? At what point does the design of a product become too complex for the court to apply the consumer-expectation test?

^ With design defect, you also have the consumer expectations test available. When it comes to the test of excessive preventable danger (or risk-utility test, as it is sometimes called), you are welcome to use different factors to consider whether the product was designed defectively, but I don’t think that there’s a way to evaluate those factors unless you’re comparing the product as designed against a reasonable alternative design.

^ There’s no clear rule here. Best we can say is that the consumer expectations test is less certain to apply the more complicated a product gets and the less likely it is that consumers even have expectations about the safety of the feature in question.

What do you mean that warnings cannot overcome design defects?

^ In most jurisdictions, if a safer design can be implemented, then adoption of the safer design is required and the defendant cannot escape liability because they warned of the danger of their unsafely designed product.

Can you explain the heeding presumption and how that plays a part in warnings?

^ The heeding presumption is a presumption that if the manufacturer given an adequate warning, then the plaintiff would have heeded that warning. If the manufacturer wants to escape liability by arguing that the plaintiff wouldn’t have paid attention to an adequate warning, then the burden is on the manufacturer to produce evidence to overcome the presumption that plaintiff would have paid attention to the warning.

Can you explain comparative responsibility and the difference between the two restatements with products liability?

^ Under the 2nd restatement, a plaintiff can never be found negligent for failing to discover a defect. Under the 3rd restatement, a plaintiff generally cannot be found negligent for failing to discover a defect.

Intentional Torts

Are causation and harm built into the elements we have for intentional torts? Or is that something we have to address separately?

^ Causation and harm are part of each intentional tort. They’re just not often a contested issue in litigation. A plaintiff still needs to establish causation and harm, but that’s rarely an issue. Unless a fact pattern makes it an issue, you don’t need to do a full analysis.

For battery, does a physical touch necessarily mean that the defendant themselves physically touched the defendent?

^ Yes. If you hit me with a baseball bat, that’s a battery. If you throw a ball and hit me, that’s a battery. If you throw a ball that hits a bat that knocks over a set of dominoes that topples a bowling ball that slides down a slide that hits a weight that spins some gears that turn a mechanism that triggers a pulley to flip a switch to swing a mechanical arm that knocks off my hat, that’s a battery. In the note case, the court found that the defendant’s actions constituted a battery because the light rays emanating from the computer and hitting the plaintiff’s eyes constituted a touch.

Can there be an assault if it was an attempted battery but the plaintiff was not put into reasonable fear or apprehension?

^ Assault requires that the plaintiff actually apprehend the imminent harmful or offensive touch. No apprehension means no assault.

When a defendant says something conditional, can it still be assault?

^ If a defendant makes a conditional threat, it can create a question of whether the harmful/offensive touch is imminent. Some conditions would mean that there is not assault because the harmful/offensive touch is not imminent, e.g., “Come back around here again and I’ll punch your lights out!” but sometimes the condition is so immediate that the threat is still imminent, like if the defendant makes a demand, e.g., “Give me your money or I’ll knock your teeth out.”

For intent for false imprisonment: does the intent need to be intent to confine or intent to confine by threat, assertion of legal authority or barriers?

^ Intent to confine

Is the first amendment a defense to IIED claims?

^ You can think of it as a defense. If you want to be precise, the defense would be that federal constitutional law preempts the plaintiff’s tort claim. We didn’t talk about preemption in this course, so I’m not going to be a stickler for terminology here.

Damages

^ Defendants are only liable when they are the factual cause of an injury. So if a defendant aggravated an injury but was not responsible for the initial injury, then they are only liable for the aggravation. The exception to this rule is when the court and jury can’t cleanly separate out which harms came from the initial injury and which harms came from the aggravation. In those circumstances, a defendant who is only responsible for the aggravation will be liable for the whole injury unless the defendant can prove that they are not the factual cause of particular harms that the plaintiff has suffered.

How is the unpaid portion from an insolvent defendant divided among the other defendants in a modern joint-and-several liability jurisdiction?

^ The typical rule is that it is divided up based on comparative responsibility.

What are the differences between alternative liability, joint & several liability, and several liability?

^ Alternative liability is a different inquiry than joint-and-several liability and several liability.

^ Alternative liability resolves a question of factual cause.

^ Joint-and-several liability and several liability are jurisdictional rules about how to apportion damages when one defendant is insolvent or absent. You will know which applies because of the rule in the jurisdiction.

Some unsolicited advice…

Befriend anxiety

Care for each other

Kick some ass

^ You can’t help but be anxious right now. There’s no way to not be anxious. But you can’t let anxiety drive the car. It can scream in the backseat and blast terrible music on the radio and try to make you miserable. That’s fine. Just don’t let that anxiety tell you what to do. So if there’s something from someone else’s outline that you’d like to include because it helps you understand the material, great, bring it on into your outline. But don’t bring something into your outline because you’re anxious about not having it. The antidote to anxiety is curiosity. Perhaps the best thing to do is be curious about what the restatement passages are doing — if anything at all — for your classmates and find out.

^ This advice is also very applicable to the exam. You will do well if you approach the questions with a sense of curiosity and discovery. Curiosity opens up your mind to possibilities. Anxiety shuts down and grabs onto “safe” answers and approaches. This exam rewards curious thinkers who mull over problems and are comfortable with not knowing how a difficult problem should be solved. The exam does not reward anxious thinkers who too quickly grab onto the closest available answers.

^ Befriend your classmates. It’s easy to lose sight of things in your 1L year. The foundation of a good life and a good career is good relationships. Yes, your grades can matter for all kinds of career opportunities. But careers are made by relationships, not transcripts. I’ve shared with you at different times over the year how I am still in two different group chats with classmates I took this torts class with ten years ago. They’ve made all the difference in my professional life.

^ Relationship are what make life worth living. Please do not look to your grades or your career success to fill that empty part of you. Work will not love you back. This profession in particular will take advantage of that weakness and take you for everything you’ve got. The longest study on human happiness has come to the unequivocal determination that the quality of our relationships determines the quality of our happiness. We’re all going to die. And at our funerals, no one’s going to grieve our law school transcripts. They’re going to grieve what we meant to them, the light we brought into their days, the way that we cared for them, imperfections and all.

^ And when it comes to relationships, we now have a relationship. Mom’s fridge. I am invested in your future. I can’t wait to hear about everything you accomplish. And when you fall or fail short, I hope you know I’m eager to be there too.

^ So, go kick some ass. Go run circles around Cardozo and his ideas of duty. Go teach Traynor what a policy argument really is. Show Posner what law and economics is really all about. Tackle the hard stuff from this class. Get angry with who the law doesn’t protect and why. Hone your arguments. Master the craft. Don’t hold back. Do your best. But get some sleep. Have some fun with friends. And when the exam is over, let it go.

^ Lean back, and look around. This moment is here and now it’s gone. Every one of your precious, infinitely beloved, and irreplaceable personal accomplishments will one day dissolve like a sand castle, grain by grain—and what a relief that is to know. And that’s all right. It’s going to be all right. It already is.

^ Thank you so much. It has been an absolute privilege.

Assumption of Risk

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Wassell v. Adams

Wassell v. Adams Discussion Questions

Given these facts, what would a just outcome in this case have been?

How capable is our legal system of producing just outcomes in these cases? How does it fall short? What would need to change?

Assumption of Risk

Where are we?

Negligence ~~Elements of a cause of action:~~ ~~— Duty~~ ~~— Breach~~ ~~— Causation~~ ~~— Harm~~ Defenses: ~~— Contributory or Comparative Negligence~~ — Assumption of risk

Assumption of Risk

- Explicit

- Implicit

Hanks v. Powder Ridge Restaurant Corp.

Two Common Issues

Was the contract clear enough about releasing the defendant from liability?
Will the court enforce contract?

I fully assume all risks associated with [s]nowtubing, even if due to the NEGLIGENCE of [the defendants]
I … agree I will defend, indemnify and hold harmless [the defendants] … from any and all claims, suits or demands … including claims of NEGLIGENCE on the part of [the defendants]
I will not sue [the defendants] … for money damages for personal injury … even if due to the NEGLIGENCE of [the defendants]

Will the court enforce contract?

Various legal tests for determining if liability waiver is against public policy:

- Liability waivers are unenforceable

- Totality of the circumstances

- Six factors from Tunkl

Tort Law Values

Era	Philosophy	Primary Goal	Concern
Classical	Corrective justice	Individual accountability	Autonomy
Neoliberal	Economics	Maximize utility	Efficiency

Tort Law Values

Era	Philosophy	Primary Goal	Concern
Classical	Corrective justice	Individual accountability	Autonomy
New Deal	Political Economy	Distributive justice	Power
Neoliberal	Economics	Maximize utility	Efficiency

Murphy v. Steeplechase

[fit] volenti non fit injuria

[fit] “to one who is willing, no wrong is done”

Cardozo’s counter-examples

“Obscure and unobserved” dangers
Too many accidents

Assumption of Risk (cont’d.)

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Assumption of Risk

- Explicit

- Implicit

Two Common Issues

Was the contract clear enough about releasing the defendant from liability?
Will the court enforce contract?

Tort Law Values

Era	Philosophy	Primary Goal	Concern
Classical	Corrective justice	Individual accountability	Autonomy
New Deal	Political economy	Distributive justice	Power
Neoliberal	Economics	Maximize utility	Efficiency

Lamson v. American Axe & Tool

Murphy v. Steeplechase

[fit] volenti non fit injuria

[fit] “to one who is willing, no wrong is done”

Cardozo’s counter-examples

“Obscure and unobserved” dangers
Too many accidents

Davenport v. Cotton Hope

Should assumption of risk
survive as an absolute defense
in a comparative negligence world?

Assumption of Risk

Tuesday’s Framework

Explicit
Implicit

Thursday’s Framework

Express
Primary
Secondary

Assumption of Risk

- Explicit / Express

- Implicit

-— Primary

-— Secondary

Assumption of Risk

- Explicit / Express → Duty

- Implicit

-— Primary

-— Secondary

Assumption of Risk

- Explicit / Express → Duty

- Implicit

-— Primary → Duty

-— Secondary

Assumption of Risk

- Explicit / Express → Duty

- Implicit

-— Primary → Duty

-— Secondary → Comparative Fault

Takeaway

In comparative fault jurisdictions, assumption of risk is typically not available as an absolute defense because duty rules and comparative negligence rules suffice.

What do you think?

In the Vargas family’s home, a power strip manufactured by the Unreliable Breaker Company failed to go off during a temporary short circuit, starting a fire. The only person at home at the time was a napping one-year-old, Emily Vargas. Her babysitter had briefly left the home to take the family dog for a walk. Emily’s fifteen-year-old sister, Lynn Vargas, returned home from school to find a fire consuming the home. Seeing that Jennifer was down the street with the dog, Lynn raced inside, grabbed Emily and managed to get her out safely, but Lynn was burned in the process. Lynn and Emily’s father, Tito Vargas, then arrived home, saw that his daughters were safe, and ran into the house to try to save his pet parrot. He succeeded but also suffered burns in the process. Moments later Tatiana Vargas, Tito’s spouse, arrived home. Tatiana is your typical absentminded law professor. Deep in thought about the viability of assumption of risk as an absolute defense in a comparative negligence world, she didn’t notice the fire, walked in the front door, and was burned. At this point, the firefighters arrived on scene. A firefighter, Pat Murphy, ran into the house and rescured Tatiana, but he was also burned.

If Lynn, Tito, Tatiana, and Pat each sue the Unreliable Breaker Company for negligence, would there be any affirmative defenses that the company could assert? What would be the differences in the analysis of the applicability of those defenses to each plaintiff?

Comparative Negligence (cont’d.)

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Can the negligent plaintiff recover damages?

That’s not a flowchart!

It’s cool

Can the negligent plaintiff recover damages?

If multiple defendants are liable, how much are they each paying?

Doctrine of Contribution

Traditional Common Law Approach

Two versions:

Joint and several liability
Several liability

Doctrine of Contribution

Traditional Common Law Approach

Example: Four defendants (A, B, C, and D) with $100k damages.

Joint and several liability jurisdiction A, B, C, and D have plenty of money

Who pays what?

Doctrine of Contribution

Traditional Common Law Approach

Example: Four defendants (A, B, C, and D) with $100k damages.

Several liability jurisdiction A, B, C, and D have plenty of money

Who pays what?

Doctrine of Contribution

Traditional Common Law Approach

Example: Four defendants (A, B, C, and D) with $100k damages.

Joint and several liability jurisdiction A and B have plenty of money C and D have no money

Who pays what?

Doctrine of Contribution

Traditional Common Law Approach

Example: Four defendants (A, B, C, and D) with $100k damages.

Several liability jurisdiction A and B have plenty of money C and D have no money

Who pays what?

Doctrine of Contribution

Modern Approach

Apportionment based on comparative fault.

Example: Four defendants (A, B, C, and D) with $100k damages. A is 40% at fault. B is 10% at fault. C is 20% at fault. D is 30% at fault.

Doctrine of Contribution

Modern Approach

Apportionment based on comparative fault.

Example: Four defendants (A, B, C, and D) with $100k damages. A is 40% at fault. So A owes $40k. B is 10% at fault. So B owes $10k. C is 20% at fault. So C owes $20k. D is 30% at fault. So D owes $30k.

Apportionment based on factual cause

Don’t

forget about

factual cause!

Don’t forget about factual cause!

Tortfeasors are only liable for the injuries they caused.

Order of operations with multiple injuries and multiple defendants

First step: Separate injuries based on factual cause.

Second step: For injuries that multiple defendants caused, sort out liability based on the contribution rule in the jurisdiction.

Fritts v. McKanne

Wassell v. Adams

Compensatory Damages

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Why should our legal system make tortfeasors pay compensatory damages?

Clip from Fight Club

Damages

The consequences of liability.

Compensatory Damages

The Objective: To restore the plaintiff to the state they were in before the harm caused by the defendant.

Single judgment rule

Seffert v. Los Angeles Transit Lines

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

Majority Reasoning

Explicit argument: Deference
Implicit argument: Fact section

Dissent Reasoning

Problem: Pain and suffering awards are arbitrary
Solution: Compare with similar cases

Jury Exercise

You are a member of a jury, determining damages in the case of the falling donut sign.

Go to in-class scratchpad on course website.

Compensatory Damages, Punitive Damages

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Recap

Rationale for Compensatory Damages

Seffert v. Los Angeles Transit Lines

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

Systemic Inequality & Damages Calculations

Consideration of race, gender, national origin, and immigration status.

Critiques

Ignores expressive function of law
Assumes the future = the past

Even if these characteristics are not considered…

McDougald v. Garber

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

Pain and Suffering

Loss of Pleasure

Majority Reasoning

Dissent Reasoning

Punitive Damages

Mathias v. Accor Economy Lodging, Inc.

Contributory and Comparative Negligence

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Where are we?

Negligence ~~Elements of a cause of action:~~

~~— Duty~~

~~— Breach~~

~~— Causation~~

~~— Harm~~

Defenses:

— Contributory or Comparative Negligence

— Assumption of risk

Contributory Negligence

Reconciling

Butterfield v. Forrester

and

Davies v. Mann

Contributory Negligence in General:

The defendant is not liable

If the plaintiff was also negligent

— Duty,

— Breach,

— Causation, and

— Harm

Unless an exception applies:

— Last clear chance,

— Recklessness or willfulness of defendant, or

— Statute

Comparative Negligence

Three forms:

Pure comparative negligence
“Not as great as”
“No greater than”

Comparative Negligence

Three forms:

Pure comparative negligence
“Not as great as” = (Plaintiff less than 50% at fault)
“No greater than” = (Plaintiff 50% or less at fault)

Comparative Negligence Exercise

Plaintiff A has suffered $100,000 of damages in a car accident with B, C, and D.

A now sues B, C, and D for negligence.

Comparative fault of the parties: A - 40%, B - 30%, C - 10%, D - 20%

Comparative Negligence Exercise

Plaintiff A has suffered $100,000 of damages in a car accident with B, C, and D.

A now sues B, C, and D for negligence.

Comparative fault of the parties: A - 40%, B - 30%, C - 10%, D - 20%

Question 1: In a traditional common law jurisdiction, how would damages be allocated? Why?

Comparative Negligence Exercise

Plaintiff A has suffered $100,000 of damages in a car accident with B, C, and D.

A now sues B, C, and D for negligence.

Comparative fault of the parties: A - 40%, B - 30%, C - 10%, D - 20%

Question 2: Assume instead that we are in a jurisdiction that has adopted the Uniform Comparative Fault Act (UCFA) rule for “pure” comparative negligence. How would damages be allocated? Why?

Comparative Negligence Exercise

Plaintiff A has suffered $100,000 of damages in a car accident with B, C, and D.

A now sues B, C, and D for negligence.

Comparative fault of the parties: A - 40%, B - 30%, C - 10%, D - 20%

Question 3: Assume instead that we are in a jurisdiction that has adopted the Iowa statute for “no greater than” modified comparative negligence. How would damages be allocated? Why?

Comparative Negligence Exercise

Plaintiff A has suffered $100,000 of damages in a car accident with B, C, and D.

A now sues B, C, and D for negligence.

Comparative fault of the parties: A - 50%, B - 30%, C - 10%, D - 10%

Question 4: Assume the comparative fault of the parties has changed. Under the Iowa statute for “no greater than” modified comparative negligence, how would damages be allocated? Why?

Comparative Negligence Exercise

Plaintiff A has suffered $100,000 of damages in a car accident with B, C, and D.

A now sues B, C, and D for negligence.

Comparative fault of the parties: A - 51%, B - 30%, C - 10%, D - 9%

Question 5: Assume the comparative fault of the parties has changed. Under the Iowa statute for “no greater than” modified comparative negligence, how would damages be allocated? Why?

Comparative Negligence Exercise

Plaintiff A has suffered $100,000 of damages in a car accident with B, C, and D.

A now sues B, C, and D for negligence.

Comparative fault of the parties: A - 50%, B - 30%, C - 10%, D - 10%

Question 6: Assume the comparative fault of the parties has changed. Under a “not as great as” modified comparative negligence statute, how would damages be allocated? Why?

Comparative Negligence Exercise

Plaintiff A has suffered $100,000 of damages in a car accident with B, C, and D.

A now sues B, C, and D for negligence.

Comparative fault of the parties: A - 40%, B - 30%, C - 10%, D - 20%

Question 7: Assume the comparative fault of the parties has changed back to the original numbers. Under a “not as great as” modified comparative negligence statute, how would damages be allocated? Why?

Course Overview

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Agenda

Recap

How to Read a Case (continued from last week)

Course Overview

Recap

How to Read a Case

Internal logic and mechanics of a case

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

Reasoning behind the holding

Three lines of reasoning

Precedent binds us.
Analogy to products liability falls apart.
Supreme Court reasoning in analogous case applies here.

Exam question

You are a judge in the state of Loyola tasked with writing the opinion of the court in the following case. No precedent binds you on the legal issues here, but it is customary to reference the reasoning of decisions from other jurisdictions when deciding an issue of first impression. The facts of the case are as follows:

Luna Adams found that her car’s brakes were squeaking. She brought the car in to be seen by her mechanic, Naomi Donald. Donald replaced the brake pads. A week later, Adams was driving when the brakes on her car failed, causing her to run off the road and crash into a tree. Adams sued Donald for personal injuries and property damages. The case went to a jury trial. Adams motioned for summary judgment, under the legal theory that when a car mechanic fixes a part of a car, that mechanic is strictly liable for all injuries proximately caused by that part of the car failing. The trial judge denied the motion, ruling that negligence, not strict liability, governed. The plaintiff appeals the denial of that motion.

How to answer this kind of question

Course overview

What is torts?

Scope of tort law

Why study tort law?

Course roadmap

On the course website under Course Content

Damages Recap

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In-Class Exercise

Oral argument: Appealing a Punitive Damages Award

Two Legal Tests

State Farm Anything outside of single digit ratio of punitive to compensatory damages is presumed unreasonable.

BMW v. Gore

Reprehensibility
Disparity between compensatory and punitive damages
Difference between punitive damages and civil penalties

Other Remedies

Nominal damages & declaratory judgment

Equitable relief

Outlining

Goals for reading cases

Grasp the internal logic and mechanics of the case.
Synthesize within a broader context.

Goals for outlining

Creating and studying an outline should help you to:

Spot issues on the exam
Resolve issues methodically and comprehensively

Outline for damages

Defenses

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What products liability claims might Reuben the bear assert against the manufacturer of his pants?

We all have an intuition that Reuben should lose his case,
but for what reason?

Because of Reuben role in the harm

Causal
Responsibility

Expectations

Fluke aberration / not foreseaable by pant manufacturer

What were our defenses for negligence?

???????? ????????

What were our defenses for negligence?

Contributory / Comparative Negligence Assumption of Risk

Do these apply with strict liability?

General Motors Corp. v. Sanchez

Restatement (Second) of Torts

State Statute on Comparative Responsibility

Tension between Restatements

Restatement Second

Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence. On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk, is a defense under this Section as in other cases of strict liability.

Restatement Third

[W]hen the defendant claims that the plaintiff failed to discover a defect, there must be evidence that the plaintiff’s conduct in failing to discover a defect did, in fact, fail to meet a standard of reasonable care. In general, a plaintiff has no reason to expect that a new product contains a defect and would have little reason to be on guard to discover it.

Comparative Responsibility is Hard

Disclaimers and Waivers

Products Liability Exercise Part 1

Products Liability Exercise Part 2

You are a junior associate at a firm representing Oscar Mayer Weiner.

A partner at your firm would like you to sketch out arguments defending Oscar Mayer Weiner the plaintiff’s potential failure to warn claim, design defect claim, and manufacturing defect claim.

Defenses

Mon, 01 Jan 0001 00:00:00 +0000

Office Hours

Tuesdays, 1:00pm to 2:00pm

Thursdays, 11:00am to 12:00pm

Today, 11:00am to 12:00pm, Casassa C302

Eggshell Plaintiff

If the defendant commits a tort, the defendant takes the victim as he finds him. The defendant must pay damages for the plaintiff’s actual injuries, even if those injuries were unforeseeable or uncommon.

WARNING:

The plaintiff CANNOT use the eggshell plaintiff rule to prove that the defendant committed a tort. It is a rule about how much harm the defendant is liable for, given that the defendant has committed a tort.

Abridged Definition from Restatement (Second) of Torts

An actor is subject to liability to another for battery if he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and a harmful or offensive contact with the person of the other directly or indirectly results.

Structure

Intentional Torts:

~~— Battery~~

~~— Assault~~

~~— False imprisonment~~

— Intentional infliction of emotional distress

Defenses:

— Consent

— Self-defense

— Defense of property

— Necessity

Hustler Magazine v. Falwell

Snyder v. Phelps

Defenses

Consent

Self Defense

Defense of Property

Necessity

Hart v. Geysel

Self Help Defenses

Self Defense

Defense of Property

Necessity

Courvoisier v. Raymond

Katko v. Briney

Necessity

Ploof v. Putnam

Vincent v. Lake Erie Transport Co.

Duties of Governmental Entities

Mon, 01 Jan 0001 00:00:00 +0000

Midterm Prep Wrap-Up

Responses to student questions:

How do we connect to core values?
What supplements should we use?
How do we structure an exam answer?

How do we connect to core values?

What supplements should we use?

For Review:

Understanding Torts
Gilbert Law Summaries: Torts

For Practice Problems:

Tort Law and Practice

How do we structure an exam answer?

Two parts:

Personal notes: organized and exhaustive
Actual answer: organized and selective

Practice Question Structure: Personal Notes

Structure: Actual Answer (Example)

Main Issue

- Introduction

- Rule

- Analysis

— Subissue # 1

— Rule

— Analysis

— Conclusion

— Subissue # 2

— Rule

— Analysis

—— Sub-subissue

—— Rule

—— Analysis

—— Conclusion

— Conclusion

- Conclusion

Practice Question Structure: Actual Answer

- Introduction (basically your holding / conclusion)

- Rule for duty

- Acknowledgment that this is a close call and both paths will be analyzed.

- First path: Actions created a risk of physical harm

— Rule

— Analysis

—— Subissue: Policy basis exception

—— Rule

—— Analysis

— Conclusion

- Second path: Affirmative duty

— Rule

— Analysis

—— Subissue: Exceptions

—— Rule

—— Analysis

———— Subissues: Each exception that warrants a full analysis

———— Rule (when does this exception apply?)

———— Analysis

— Conclusion

Conclusion

Duties of Government Entities

Riss v. City of New York

Proprietary functions

vs.

Governmental functions

[fit] Because we owe a duty to everybody, we owe it to no one.

Rationale for no governmental duty

Lack of expertise (judge & jury)
Separation of powers
Limited government resources

Lauer v. City of New York

Discretionary functions

vs.

Ministerial functions

Waiver of immunity ≠ Existence of duty

Duty is always relational

Duties of Landowners & Occupiers

Mon, 01 Jan 0001 00:00:00 +0000

How do we reconcile the tort of negligence with the concept of negligence?

Landowners & Occupiers

Carter v. Kennedy

Traditional View

Type of Visitor	Definition
???	???
???	???
???	???

Traditional View

Type of Visitor	Definition
Trespasser	???
Licensee	???
Invitee	???

Traditional View

Type of Visitor	Definition
Trespasser	Intruder
Licensee	Social guest
Invitee	Business guest or general public (if land opened to public)

Duties Owed — Traditional View

Trespasser

duty not to intentionally or wantonly cause injury
no duty of reasonable care (with handful of exceptions)

Licensee

no duty to inspect or discover dangerous conditions
duty to warn or make known conditions safe

Invitee

duty to inspect and discover dangerous conditions
duty to warn or make conditions safe

Heins v. Webster County

Modern View

Type of Visitor	Definition
???	???
???	???

Modern View

Type of Visitor	Definition
Trespasser	Intruder
Everybody else	Not a trespasser

Duties Owed — Modern View

Trespasser¹

duty not to intentionally or wantonly cause injury
no duty of reasonable care (with handful of exceptions)

Everybody Else

duty of reasonable care

Traditional View

vs.

Modern View

Heins Dissent Hypo

Writing for the majority, how would you respond?

Sample Exam Question

The passengers have sued the optometrist, claiming medical malpractice. The optometrist has moved for summary judgment on the grounds that she had no duty to the plaintiffs.

Or in California and the Third Restatement, a “flagrant” trespasser rather than just a plain old trespasser ↩︎

Duty for Purely Emotional Harm

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Assignment Report Back:

Did you do something kind and restorative for yourself?

Duties of Governmental Entities

Duty for Purely Emotional Harm

Falzone v. Busch

Policy Reasons for “Impact” Rule

Flood of litigation
Fake claims
Problems of proof

“Zone of Danger”

Requires a reasonable fear of immediate physical injury

Two Lingering Questions

How is emotional harm different than damages for pain and suffering?
Why are we learning about this under the duty chapter?

Duty for Purely Emotional Harm Cont.

Mon, 01 Jan 0001 00:00:00 +0000

Assignment Report Back:

[fit]Did you do something kind and restorative for yourself?

Duties of Governmental Entities

Duty for Purely Emotional Harm

Falzone v. Busch

Policy Reasons for “Impact” Rule

Flood of litigation
Fake claims
Problems of proof

“Zone of Danger”

Requires a reasonable fear of immediate physical injury

Two Lingering Questions

How is emotional harm different than damages for pain and suffering?
Why are we learning about this under the duty chapter?

Duty to Act

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exercise reasonable care

A duty to exercise reasonable care

Elements of a Tort Claim

Duty
Breach
Causation
Harm

General Rule for Duty:

IF your actions create a risk of physical harm

THEN you have a duty to exercise reasonable care

General Rule for Affirmative Duty:

IF your actions do not create a risk of physical harm

THEN you have no duty to protect or to rescue

With some exceptions: Special relationship Undertakings Non-negligent injury Non-negligent creation of risk Statutes

Harper v. Herman

Exceptions to No Affirmative Duty

Special relationship Undertakings Non-negligent injury Non-negligent creation of risk Statutes

Sidenote: Don’t write like this

On Sunday, August 9, 1986, Jeffrey Harper (“Harper”) was one of four guests on Theodor Herman’s (“Herman”) 26-foot boat…

Because good writers don’t write like that.

Call me Ishmael (“Ishmael”).

It is a truth universally acknowledged, that a single man (“man”) in possession of a good fortune (“fortune”), must be in want of a wife (“wife”).

As Gregor Samsa (“Samsa”) awoke one morning on Sunday, August 9, 1986 from uneasy dreams he found himself transformed in his bed into a gigantic insect (“cockroach”).

And why don’t good writers write like that?

Because they treat the reader like a big, golden baby.

Farwell v. Keaton

Exceptions to No Affirmative Duty

Special relationship Undertakings Non-negligent injury Non-negligent creation of risk Statutes

Randi W. v. Muroc Joint Unified School District

&

Tarasoff v. Regents of the University of California

Rowland Factors

foreseeability of harm
certainty of plaintiff’s injury
connection between defendant’s conduct and plaintiff’s injury
moral blame
policy of preventing harm
burden to defendant
consequences to community
availability of insurance

Factual Causation with Multiple Defendants

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Causation

Two parts:

Two different tests for factual causation

Causation

Two parts:

Factual cause
Proximate cause

Two different tests for factual causation

“But for”
Substantial factor

Stubbs v. City of Rochester

Zuchowicz v. United States

Four typical scenarios in which factual cause may be contested

Toxic exposure
No idea what happened
Know what happened, but don’t know that it wouldn’t have happened if defendant had behaved reasonably
Know what happened, but don’t know who to blame

Joint and Several Liability

Summers v. Tice

Three reasons for alternative liability:

Almost 51% probability
Fairness
“Smoke out” the real evidence

Summers v. Tice

~~Three~~ reasons for alternative liability:

~~Almost 51% probability~~
Fairness
~~“Smoke out” the real evidence~~

Hymowitz v. Eli Lilly & Co.

False Imprisonment &
Intentional Infliction of Emotional Distress

Mon, 01 Jan 0001 00:00:00 +0000

Office Hours

Today’s office hours are 12pm to 1pm

-–

Future office hours will be:

— On Tuesdays, from 1pm to 2pm

— On Thursdays, from 11am to 12pm

Structure

Intentional Torts: ~~— Battery~~ ~~— Assault~~ — False imprisonment — Intentional infliction of emotional distress

Defenses: — Consent — Self-defense — Defense of property — Necessity

Wishnatsky v. Huey

False Imprisonment

Lopez v. Winchell’s Donut House

Intentional Infliction of Emotional Distress

Womach v. Eldridge

Second Restatement

“One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.”

Hustler Magazine v. Farwell

First Party Insurance

Mon, 01 Jan 0001 00:00:00 +0000

Exercise from Last Class

Abridged Definition from Restatement (Third) of Torts

A person acts with the intent to produce a consequence if:

(a) the person acts with the purpose of producing that consequence; or

(b) the person acts knowing that the consequence is substantially certain to result.

Abridged Definition from Restatement (Second) of Torts

An actor is subject to liability to another for assault if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension.

Abridged Definition from Restatement (Second) of Torts

An actor is subject to liability to another for false imprisonment if

(a) he acts intending to confine the other or a third person within boundaries fixed by the actor, and

(b) his act directly or indirectly results in such a confinement of the other, and

Abridged Definition from Restatement (Second) of Torts

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

Defenses

— Consent

— Self-defense

— Defense of property

— Necessity

You are a personal injury attorney in the state of Loyola. In Loyola, a protest and counter-protest over gun regulations began to get out of hand. Annie stood at the front lines of the protest arguing for assault weapon regulation, and Bob stood at the front lines of the counter-protest arguing for free assault weapons for public school teachers. The two protests began on opposite sides of city park but grew closer together over the course of the day and were now squaring off face-to-face. Annie started addressing Bob directly. “You think it’s worth it for kids to die so you can pretend you’re a real man? What are you compensating for, buddy? Huh? Wife left you? Maybe instead of buying so many guns, you should buy a gym membership, you fat piece of shit!” As she screamed at him, flecks of spit kept landing on Bob’s face. She pointed her index finger right between his eyes, inches from his face as she said, “No one is ever going to love you.”

Bob drew his SIG Sauer P365 pistol from its holster on his hip and pointed it at the ground by his feet. “Back up. Stop spitting on my face. And stop being so mean to me.” “Are you going to shoot me?” Annie asked. “If I have to.” Bob responded. “I’m calling the cops,” Annie said, and retreated back into the crowd.

Annie did not call the cops. But she did sue Bob for assault. Bob has now hired you as his attorney. Having never been sued before, Bob wants you to advise him on his legal options. Please consider any defenses Bob might raise, any intentional tort claims he might have against Annie, and any defenses she might be able to raise. As you advise Bob, be sure to inform him of how strong or weak these claims or defenses are and why. For the purposes of this question, do not consider any negligence or strict liability claims.

Defenses for Bob

Consent
Self-defense
No prima facie case of assault

Claims that Bob might have against Annie

Assault and Battery (Spitting)
Assault (Finger in the face)
IIED

My Notes on Assault and Battery (Spitting)

Battery

Rule: Battery if D takes intentional action that results in offensive or harmful contact to plaintiff.

Issues

Intentional act?

Intent rule: desire/purpose or knowledge w/ substantial certainty

— Based on facts, hard to argue that she had desire/purpose to spit

— BUT “flecks of spit kept landing on his face” which means that this was ongoing. Maybe first time was a mistake, but if she’s being beligerrent and just spitting all over his face, then she has knowledge that if she keeps doing it, she’ll keep spitting on him.

Causation?

— No issue there.

Harmful touching?

— No physical harm reported.

Offensive touching?

— Rule: Contact must be offensive to a reasonable sense of personal dignity.

— Spit can count. But does it always? Must be related to personal dignity. Spitting is often a humiliation / demeaning thing. Goal of intentional tort is to prevent revenge / blood feuds / violence over honor. Seems like a different kind of spitting. But mixed with her demeaning words…

Defenses?

Consent?

— Not explicit.

— Maybe implicit? At a protest. People are going to be chanting and yelling. You’re assuming the risk of getting some spittle on you, right? Seems to come back to this issue of whether this is a humiliating spit on someone or incidental spit. Maybe could go to the jury? Seems like a longshot.

Self defense? No.

Defense of property? No.

Necessity? No.

Assault

Rule: Assault if D takes intentional action that results in P’s reasonable apprehension of imminent harmful or offensive contact.

Very similar issues!

Intentional act? Repeat of battery analysis

P’s reasonable apprehension?

— Apprehension - yes, because he told her to stop spitting on him

— Apprehension reasonable? - yes, reasonable person would apprehend someone spitting on them

Imminent harmful or offensive contact?

— Imminence? Non-issue here

— Harmful or offensive contact? Repeat of battery analysis.

Defenses? Same as battery.

First Draft of part of an Answer to Bob

You can sue Annie for the intentional torts of assault and battery, but I can’t predict a win with any strong degree of certainty because the court may dismiss those claims either because we cannot meet our burden of proving a prima facie case of assult and battery or because Annie has an affirmative defense of consent. As both of these claims succeed or fail for the same reasons, I will address them together. A defendant commits battery when they take intentional action that results in offensive or harmful contact to the plaintiff. A defendant commits assault when they take intentional action that results in the plaintiff’s reasonable apprehension of imminent harmful or offensive contact. We may have difficult proving that Annie’s spitting was intentional and that the spit constituted an offensive touching. Annie may prove that you consented to the touching by being at a public protest.

It’s not crystal clear that Annie had the legal intent to spit on you. For the intentional act requirement of both assault and battery, the defendant must have acted with the desire to cause this bodily contact or acted with knowledge of the substantial certainty that this contact would happen. Based on the facts, her spitting seems incidental to her yelling at you, unlike a more clearcut case in which she would have hocked a loogie at you. We may have a chance to win this because flecks of spit kept landing on your face. Maybe she didn’t have knowledge with substantial certainty that she would spit on you when she began yelling, but after the spit droplets began to fall, she gained the knowledge that if she kept yelling, she’d continue to spit on you.

As you weren’t physically harmed by the spitting, our assault and battery claims will have to rest on the argument that her spitting on you constituted offensive touching. A touch is offensive if it would offend a reasonable person’s sense of personal dignity. The good news is that courts have found spitting to constitute offensive touch before. But those circumstances were also when the spitting was an explicit action design to attack, humiliate, and demean someone. There’s a question of whether this more incidental spitting also counts as being offensive since it was not as direct of an attack on your dignity. But the spitting was coupled with her saying some very demeaning things, so that should work in our favor. I’ll have to dig into the caselaw here and get back to you.

Annie may also raise an affirmative defense of consent. The defense of consent can be summed up as: to one who is willing, no harm is done. Although you never explicitly agreed to be spat upon, you did attend a protest where people would be chanting and cheering. Annie can argue that you implicitly agreed to risk getting sprayed by some incidental spittle by attending the protest. Her success with this defense is going to depend on the particular facts of this spitting. Was it the kind of incidental contact in a crowded world that the courts don’t want to be in the business of mediating? Or did it exceed the kind of contact that one should expect at a protest? I think she’s likely to prevail on this defense, but the court may allow the jury to decide the issue since it is so fact dependent.

The other elements of the claims are non-issues. There’s no question that her actions caused the spit to land on you or that the contact of the spit with your body was imminent. And the defenses of self defense, defense of property, and necessity are not applicable.

The Big Picture

~~Torts~~

~~— Remedies~~

~~— Negligence~~

~~—— Breach~~

~~—— Duty~~

~~—— Causation~~

~~—— Defenses~~

~~— Strict Liability~~

~~—— Traditional view~~

~~—— Products liability~~

~~— Intentional Torts~~

Not Torts

—— Insurance

—— Workers’ Compensation

—— Alternatives to Tort

1) Positive and Negative Space

Napoleon Leading the Army over the Alps Kehinde Wiley

2) Tort concepts are infectious.

3) I want you to look smart.

But it’s not torts.

First party insurance

Collateral source rule

Subrogation

Three possibilities

Imagine that there is no subrogation. A defendant injures a plaintiff. The plaintiff’s health insurance provider covers most of the plaintiff’s medical bills. The plaintiff wins a lawsuit against the defendant and pockets the damages awarded for the part of the medical bills that insurance covered.

Three possibilities

Imagine that there is no collateral source rule. The defendant only has to compensate the plaintiff for the plaintiff’s actual out of pocket medical expenses — not what health insurance covered.

Three possibilities

Subrogation and collateral source combined. The defendant has to fully compensate the plaintiff, but the insurance provider and the plaintiff each take their share of the damages.

Frost v. Porter Leasing Corp.

How to Read a Case

Mon, 01 Jan 0001 00:00:00 +0000

Agenda

Hammontree v. Jenner

ENORMOUS DISCLAIMER!

Before you begin:

Connect with your core values.
Discern your immediate goal.

Why take this preliminary step?

Connecting to core values makes the work easier and more fulfilling.

Discerning a goal allows you to focus your attention on what matters.

There is no escape.

Stress is a very bad, no good motivator.

Values

Reading Hammontree v. Jenner for your 1L Torts Class

Goals when reading a case

Grasp the internal logic and mechanics of the case.
Synthesize within a broader context.

Why read cases?

Gaps,

Contradictions, and

Ambiguity

Internal logic and mechanics of a case

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

Aside: How to take notes

Internal logic and mechanics of a case

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

Oh My God, What is Happening?

I am sure that I’m going to get cold called to explain this and I don’t even know what most of these words mean and how is that whole paragraph just one run-on sentence?

Reasoning behind the holding

Insurance

Mon, 01 Jan 0001 00:00:00 +0000

Closing Thoughts on Intentional Torts

With intentional torts, always consider

The legal interest that each intentional tort addresses
The requirements of the defendant
The requirements of the plaintiff
Any objective requirements, including analysis that the judge or jury must conduct

The legal interest that each intentional tort addresses

Battery

Freedom from harmful or offensive contact

Assault

Freedom from apprehension of harmful or offensive contact

False Imprisonment

Freedom from confinement

IIED

Freedom from emotional distress

Example of False Imprisonment

1. Legal interest

Freedom from confinement

2. Requirements of defendant

Intentional act to confine

3. Requirements of the plaintiff

Aware of confinement (or harmed by it)

4. Objective requirements

Plaintiff was confined

First party insurance

Collateral source rule

Subrogation

Understanding these rules in combination

A defendant injures a plaintiff. The plaintiff’s health insurance provider covers most of the plaintiff’s medical bills. The plaintiff wins a lawsuit against the defendant.

Consider the process and outcomes for this case under three different legal regimes:

Only the collateral source rule exists — no subrogation
Only subrogation exists — no collateral source rule
Both the collateral source rule and subrogation exist (our actual legal regime)

Straightforward example: a house fire

But it gets complicated with:

Personal injury
Settlement

Liability Insurance

First party insurance

versus

Third party (liability) insurance

How does liability insurance affect tort law?

Changes how damages are paid.
Changes what lawsuits are filed.
Can affect substantive tort law itself.
Can affect policy rationale / justification for legal rules.

Remember the Rowland Factors?

foreseeability of harm
certainty of plaintiff’s injury
connection between defendant’s conduct and plaintiff’s injury
moral blame
policy of preventing harm
burden to defendant
consequences to community
availability of liability insurance

Pavia v. State Farm

Hypos on Impact of Insurance

First party insurance for plaintiff in

Vincent v. Lake Erie Transport Co.

Liability insurance for defendants in

Randi W. v. Muroc Joint Unified School District

Office hours are at 1pm today.

Intentional Torts

Mon, 01 Jan 0001 00:00:00 +0000

Products Liability Exercise Part 1

Products Liability Exercise Part 2

You are a junior associate at a firm representing Oscar Mayer Weiner.

A partner at your firm would like you to sketch out arguments defending Oscar Mayer Weiner the plaintiff’s potential failure to warn claim, design defect claim, and manufacturing defect claim.

Products Liability Exercise

Manufacturing defect

Design defect

— Consumer expectations

— Excessive preventable danger (requires reasonable alternative design)

Failure to warn

-————————————-

Defenses

— Not a prima facie case

— Contributory or comparative negligence, assumption of risk

Intentional Torts

Structure for this Part of the Course

Intentional Torts:

— Battery

— Assault

— False imprisonment

— Intentional infliction of emotional distress

Defenses:

— Consent

— Self-defense

— Defense of property

— Necessity

Garratt v. Dailey

The Issue of Certainty

Picard v. Barry Pontiac-Buick, Inc.

Wishnatsky v. Huey

Introduction to Negligence

Mon, 01 Jan 0001 00:00:00 +0000

Negligence as a Tort

Duty Breach Causation Harm

Negligence as a Concept

Reasonable care Reasonable person

California Negligence Jury Instruction:

Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under circumstances similar to those shown by the evidence.

It is the failure to use ordinary or reasonable care.

Ordinary or reasonable care is that care which persons of ordinary prudence would use in order to avoid injury to themselves or others under circumstances similar to those shown by the evidence.

1. What is reasonable care?

2. Who is this reasonable person?

How do you define reasonable care? --- Is that definition workable?

Reconciling…

Adams v. Bullock

Braun v. Buffalo Gen. El. Co.

Judges & Juries | Customs

Mon, 01 Jan 0001 00:00:00 +0000

Reasonable care

The principle behind liability/fault

Tools for defining reasonable care include:

Foreseeability
Hand Formula (B < P*L)
The Reasonable Person

BPL Example

Precaution	B	P * L	Total Cost
None	$0 (or ∞)	$100k	$100k
Solar Panels	$200k	$0k	$200k
Spark Arresters	$30k	$50k	$80k

Scenario 1: No precautions available to defendant Scenario 2: Only solar panels available Scenario 3: Both solar panels and spark arresters available

The Reasonable Person Standard

Objective standard

Justifications

Administrative feasibility
Consistency & enforcement of community norms
Equality & fairness

Exceptions

Physical disability
Children
Expertise

The Role of Judge & Jury

Baltimore & Ohio Railroad Co. v. Goodman

vs.

Pokora v. Wabash Railway Co.

Custom

Sword (for plaintiff)
Shield (for defendant)

Defining terms

Negligence per se Prima facie case of negligence

The Concept of Negligence

Reasonable care

The Tort of Negligence

Duty
Breach
Causation
Harm

Trimarco v. Klein

Manufacturing and Design Defects

Mon, 01 Jan 0001 00:00:00 +0000

Housekeeping

Make up class: 8:45am - 10:00am on Thursday April 27, 2023 Hall of the 70s (this classroom)

Office hours today: 12:00pm - 1:00pm Study Room C302 in the Library

Strict Liability Recap

Limits on Strict Liability

Fletcher v. Rylands

— PWFOPBOHL&C&KTALDMIIE

Rylands v. Fletcher

— PWFOPBOHL&C&KTA “non-natural” and LDMIIE

First Restatement

— “ultrahazardous activity”

Second Restatement

— “abnormally dangerous activity”

Indiana Harbor Belt v. American Cyanamid

Strict liability applies for behavior that is:

- Very risky and that risk cannot be eliminated at reasonable cost

AND

- Not susceptible to due care analysis

Tort law is the law of

negligence.

Strict liability is the law of tort law when negligence fails.

MacPherson v. Buick Motor Co.

&

Escola v. Coca Cola

Strict Liability Rationale

— Power dynamics

— Cost spreading / insurance

— Deterrence

Products Liability

— Manufacturing defects

— Design defects

— Instructions and warnings

Manufacturing Defects

Design Defects

Cronin v. J.B.E. Olson

Restatement (Second) of Torts

§ 402A. Special Liability Of Seller Of Product For Physical Harm To User Or Consumer

(1) One who sells any product in a defective condition ~~unreasonably dangerous to the user or consumer or to his property~~ is subject to liability for physical harm thereby caused…

Barker v. Lull Engineering

Two tests:

Consumer expectations
Excessive preventable danger

Soule v. General Motors

When does the consumer expectations test apply?

Not at all clear!

It depends upon the “everyday experience of the product’s users”

1) Consumer expectations

2) Excessive preventable danger

“Reasonable Alternative Design”

“Reasonable Alternative Design” Challenges

Medical Malpractice

Mon, 01 Jan 0001 00:00:00 +0000

Res Ipsa Recap

Res Ipsa Requirements:

Harm results from the kind of situation in which negligence can be inferred
Defendant was responsible for the instrument of harm

Differences Across Jurisdictions

Inference of negligence

Presumption of negligence

Why Allow Res Ipsa Loquitur?

Probabilistic rationale
Asymmetry and fairness justification

The Role of Res Ipsa

Tools for Identifying Reasonable Care 1. Foreseeability 2. Hand Formula (B < P*L) 3. The Reasonable Person 4. Custom 5. Statute

Special Considerations 1. Judge and jury relationship 2. Challenges with proving negligence 3. Uniqueness of medical malpractice

![](images/Res Ipsa Loquitur.jpeg)

In-Class Exercise Wrap-Up

A dispute over the applicability of res ipsa is a dispute over the applicabiltiy of the two requirements:

Harm results from the kind of situation in which negligence can be inferred
Defendant was responsible for the instrument of harm

Medical Malpractice

Custom

A tension:

Doctors are held to a higher standard of care,

but

Doctors as a profession set that standard of care.

Sheeley v. Memorial Hospital

Geography

&

Experience

The ultimate question is still:

Reasonable Care

Medical Malpractice

Mon, 01 Jan 0001 00:00:00 +0000

Sheeley v. Memorial Hospital

Geography

&

Experience

The ultimate question is still:

Reasonable Care

Matthies v. Mostromonaco

Cause of action could stem from either:

Battery or Negligence

California Rule

Reasonable doctor
Reasonable patient

Midterm Review

Mon, 01 Jan 0001 00:00:00 +0000

How I would approach a question for this class

—

How to perform well on an essay question in this class

—

Sample answer

—

Yesterday’s Example Question:

—

Negligence per se

vs.

Prima facie case of negligence

—

The Exam Itself

—

Damages

—

Concept of Negligence

—

Procedural Issues

—

Proving Negligence & Res Ipsa

—

Medical Malpractice

—

Duties

Negligence Defenses Review

Mon, 01 Jan 0001 00:00:00 +0000

Today’s Agenda

Review of Defenses
In-Class Exercise

Negligence ~~Elements of a cause of action:~~ ~~— Duty~~ ~~— Breach~~ ~~— Causation~~ ~~— Harm~~ Defenses: — Contributory or Comparative Negligence — Assumption of Risk

The kinds of questions you can now answer:

- Does the defense of contributory negligence apply? - Was the plaintiff comparatively negligent? - Does the defense of “assumption of risk” apply?

Given information about jurisdictional rules and case-specific information about each party’s comparative fault:

How much can the plaintiff recover?
How much does each defendant owe?
If a particular defendant is absent or insolvent, how much do the other defendants owe?

Contributory Negligence in General:

The defendant is not liable

If the plaintiff was also negligent

— Duty,

— Breach,

— Causation, and

— Harm

Unless an exception applies:

— Last clear chance,

— Recklessness or willfulness of defendant, or

— Statute

Comparative Negligence

Three forms:

Pure comparative negligence
“Not as great as” = (Plaintiff less than 50% at fault)
“No greater than” = (Plaintiff 50% or less at fault)

Can the negligent plaintiff recover damages?

How much does each defendant pay?

Common Law Approach

Divide up damages by number of liable defendants

Doctrine of contribution:

Joint and several liability, or
Several liability

How much does each defendant pay?

Modern Approach

Divide up damages based on comparative fault

Doctrine of contribution:

Variety of rules across jurisdictions, including several liability, joint-and-several liability, and a variety of hybrids.

Don’t

forget about

factual cause!

Order of operations for allocating damages with multiple injuries and multiple defendants

First step: Separate injuries based on factual cause.

Second step: For injuries that multiple defendants caused, sort out who owes what based on jurisdictional rules.

Assumption of Risk

- Explicit / Express

- Implicit

-— Primary

-— Secondary

Two Common Issues with Explicit Assumption of Risk

Was the contract clear enough about releasing the defendant from liability?
Will the court enforce contract?

Will the court enforce contract?

Various legal tests for determining if liability waiver is against public policy:

- Liability waivers are unenforceable

- Totality of the circumstances

- Six factors from Tunkl

Implicit assumption of risk

volenti non fit injuria

“to one who is willing, no wrong is done”

Should assumption of risk persist in a comparative fault world?

- Explicit / Express → Duty

- Implicit

-— Primary → Duty

-— Secondary → Comparative Fault

For exam questions, how do we know whether to look to assumption of risk or contributory negligence or comparative negligence?

Version #1

You are an associate working at a firm that represents the Unreliable Breaker Company.

The state of Loyola (where this case takes place) takes a common law approach to tort defenses. Unlike most jurisdictions in the United States, Loyola is still a contributory negligence regime with joint-and-several liability. Assumption of risk is a complete defense.

Lynn, Tito, Tatiana, and Pat are each suing the Unreliable Breaker Company for negligence. A senior associate has asked you to write an email detailing any affirmative defenses that the company could assert against each plaintiff’s claim. The senior associate has specifically asked you to only address affirmative defenses at this time, so there’s no need to address whether the plaintiffs can prove the elements of duty, breach, causation, and a harm.

Version #2

You are an associate working at a plaintiff-side firm.

The state of Loyola (where this case takes place) takes a modern approach to tort defenses. Loyola is a “not as great as” comparative negligence regime with several liability. Assumption of risk is a complete defense for explicit and primary assumption of risk but not for secondary assumption of risk, where comparative fault suffices.

Your firm is considering representing Lynn, Tito, Tatiana, and Pat, who each want to sue the Unreliable Breaker Company for negligence. As the firm works on a contingency fee basis, we want to take on cases that are the easiest to win and we don’t want to take on cases that would cost the firm money. A senior associate has asked you to write an email detailing any affirmative defenses that the company could assert against each plaintiff’s claim. In your analysis, please describe which cases you think our firm should prioritize and which plaintiffs, if any, our firm should decline to represent based upon possible affirmative defenses. The senior associate has specifically asked you to only address affirmative defenses at this time, so there’s no need to address whether the plaintiffs can prove the elements of duty, breach, causation, and a harm.

No Duty to Rescue or Protect

Mon, 01 Jan 0001 00:00:00 +0000

Practice Exam Question

Two Steps to Writing an Exam Answer

Take thorough notes, exploring the problem from all angles.
Extract information from those notes to build a thoughtful, logical, persuasive argument.

What should I include in my exam answer?

What should I keep out?

Include information that will help the reader arrive at your conclusion.

No Duty to Rescue or Protect

Exceptions

Special relationship Undertakings Non-negligent injury Non-negligent creation of risk Statutes

Harper v. Herman

&

Farwell v. Keaton

No-Fault and Beyond

Mon, 01 Jan 0001 00:00:00 +0000

Ideology

Does Tort Law Have an Ideology?

Big Picture: Workers’ Comp vs. Tort Law

Deterrence

Compensation

Administrative Cost

Equity

-	Negligence	Strict Liability	Intentional Torts
Type of Conduct	???	??? ???	???
Causal Connection	??? ???	??? ???	??? ???
Affirmative Defenses	??? ???	??? ???	??? ??? ???
Damages Available	???	???	???

-	Negligence	Strict Liability	Intentional Torts
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm
Causal Connection	??? ???	??? ???	??? ???
Affirmative Defenses	??? ???	??? ???	??? ??? ???
Damages Available	???	???	???

-	Negligence	Strict Liability	Intentional Torts
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause
Affirmative Defenses	??? ???	??? ???	??? ??? ???
Damages Available	???	???	???

-	Negligence	Strict Liability	Intentional Torts
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity
Damages Available	???	???	???

-	Negligence	Strict Liability	Intentional Torts
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	???
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	???
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	???

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	- Workplace injuries
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	???
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	???

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	- Workplace injuries
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Injury must be “work-related”
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	???

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	- Workplace injuries
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Injury must be “work-related”
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	- Employee was outside “scope of employment”
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	???

-	Negligence	Strict Liability	Intentional Torts	Workers’ Comp
Type of conduct	- Fault	- Dangerous activities - Products	- Intentional harm	- Workplace injuries
Causal connection	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Factual cause - Proximate cause	- Injury must be “work-related”
Affirmative defenses	- Comparative fault - Assumption of risk	- Comparative fault - Assumption of risk	- Consent - Self defense - Necessity	- Employee was outside “scope of employment”
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)

No-Fault Systems / Compensation Funds

Common features:

Narrow category of injury
Reduced fact-finding and proof requirements
Fixed recovery amounts
Insurance-like funding rather than individual defendant-to-plaintiff payouts

-	Torts	Workers’ Comp	No-Fault Funds
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available

9-11 Fund

Unique characteristics:

created after the harm, not in anticipation of harm
individualized approach to economic loss
tort-like awards for noneconomic loss
low administrative costs

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	???
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	???
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available	???

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	- 9-11 terrorist attacks
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	???
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available	-???

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	- 9-11 terrorist attacks
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	- Injury happened in “zone of danger” of the terrorist attacks
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	???
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available	???

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	- 9-11 terrorist attacks
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	- Injury happened in “zone of danger” of the terrorist attacks
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	- Terrorism
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available	???

-	Torts	Workers’ Comp	No-Fault Funds	9-11 Fund
Type of conduct	- Fault - Dangerous activities - Products - Intentional harm	- Workplace injuries	- Specific injuries	- 9-11 terrorist attacks
Causal connection	- Factual cause - Proximate cause	- Injury must be “work-related”	- Limited proof required	- Injury happened in “zone of danger” of the terrorist attacks
Affirmative defenses	- Comparative fault - Assumption of risk	- Employee was outside “scope of employment”	- Few defenses available	- Terrorism
Damages available	- Past and future damages (economic, noneconomic, punitive) (lump sum payment)	- Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments)	- Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available	- Full economic damages up to 98% of wage earners - Noneconomic losses compensated in full

New Zealand

Total tort reform

Common law torts for accidental injury are abolished

All accidental injuries now covered under a no-fault scheme:

— unlimited medical expenses

— fixed compensation for lost earnings

— lump sums for lost body parts and pain and suffering

In-Class Exercise

What are the strengths and weaknesses of this plan? What are your suggestions for revision?

Policy Bases for No Duty

Mon, 01 Jan 0001 00:00:00 +0000

Elements of a Tort Claim

Duty
Breach
Causation
Harm

Elements of a Tort Claim

Duty
Breach
Causation
- Factual Cause
- Proximate Cause
Harm

Strauss v. Belle Realty

Third Restatement

When determining that no legal duty exists for reasons of public policy, courts should use “categorical, bright-line rules of law applicable to a general class of cases.”

Two Closing Thoughts

Crushing liability has not aged well.
Policy justifications ≠ individual autonomy concerns

Reynolds v. Hicks

Negligence Per Se

Remember Martin v. Herzog?

Negligence Per Se

Under RCW 66.44.270(1) it is a crime to:

What the heck?

Two Reasons

Legal
Policy

Preparing for the Midterm

Mon, 01 Jan 0001 00:00:00 +0000

You should be worried.

Before you begin:

Connect with your core values.
Discern your immediate goal.

Why take this preliminary step?

Connecting to core values makes the work easier and more fulfilling.

Discerning a goal allows you to focus your attention on what matters.

There is no escape.

Anxiety is a very bad, no good motivator.

Today’s Agenda

Exam Logistics
In-Class Exercise: Practice Exam Question

Exam Logistics

Four hour exam on December 5, 2022 25% multiple choice 75% essay questions

You will be provided with an appendix that includes:

A list of major cases
Legal rules that you are not expected to have memorized

What is a good essay question?

and

What is a good essay answer?

Gaps,

Contradictions, and

Ambiguity

Practice Exam Question

Rowland v. Christian Factors:

(1) the foreseeability of harm to the injured party;

(2) the degree of certainty that the injured party suffered harm;

(3) the closeness of the connection between the defendant’s conduct and the injury suffered;

(4) the moral blame attached to the defendant’s conduct;

(5) the policy of preventing future harm;

(6) the extent of the burden to the defendant;

(7) the consequences to the community of imposing a duty to exercise care, with resulting potential liability.

Products Liability

Mon, 01 Jan 0001 00:00:00 +0000

Strict Liability Recap

Fletcher v. Rylands

Rylands v. Fletcher

Liability applies for:

PWFOPBOHL&C&KTALDMIIE

Limits on Strict Liability

Fletcher v. Rylands

— PWFOPBOHL&C&KTALDMIIE

Rylands v. Fletcher

— PWFOPBOHL&C&KTA “non-natural” and LDMIIE

First Restatement

— “ultrahazardous activity”

Second Restatement

— “abnormally dangerous activity”

Indiana Harbor Belt v. American Cyanamid

Strict liability applies for behavior that is:

- Very risky and that risk cannot be eliminated at reasonable cost

AND

- Not susceptible to due care analysis

Tort law is the law of

negligence.

Strict liability is the law of tort law when negligence fails.

MacPherson v. Buick Motor Co.

Macpherson Test

If object can put life and limb in danger if negligently made

And defendant has knowledge of probable danger

And defendant has knowledge that it will be used by people other than the purchaser

And no further tests will be performed

Then manufacturer has a duty and privity is no defense

Escola v. Coca Cola

Rationale

Power dynamics

Cost spreading / insurance

Deterrence

Extensions of Liability

Plaintiffs: Not just consumers but bystanders.

Defendants: Not just manufacturers but retailers.

Defect Requirement

Proving Negligence

Mon, 01 Jan 0001 00:00:00 +0000

Study Advice

Study with others
Don’t memorize. Practice.

The Concept of Negligence

The principle behind liability/fault is __________________.

Tools for Identifying Reasonable Care

__________________
__________________
__________________
__________________
__________________
__________________

Special Considerations

__________________
__________________
Uniqueness of medical malpractice

The Concept of Negligence

The principle behind liability/fault is reasonable care.

Tools for Identifying Reasonable Care

Foreseeability
Hand Formula (B < P*L)
The Reasonable Person
Custom
Statute

Special Considerations

Judge and jury relationship
Challenges with proving negligence
Uniqueness of medical malpractice

Rules vs. Standards

How to operationalize?

Rule

Analysis

Main arguments
Counterarguments
Policy argument

Conclusion

Customs & Statutes

Sword for proving negligence

Prove two things:

Custom or statute = reasonable care
Defendant failed to comply with custom or statute

-—————————————————

Shield for disproving negligence

Prove two things:

Custom or statute = reasonable care
Defendant complied with custom or statute

Statutes

Courts look to the purpose of the statute.

Was this statute enacted to prevent harm?
Was this the kind of harm the statute was enacted to prevent?

Proving Negligence

Tort of Negligence

Plaintiff must prove:

Duty
Breach
Causation
Harm

Concept of Negligence

To establish that the defendant’s conduct fell below standard of reasonable care, plaintiff needs to prove:

What defendant did or did not do.
What defendant should have done.

Two Topics in Proving Negligence

Constructive notice
Res ipsa loquitur

Constructive Notice

Negri v. Stop and Shop, Inc.

Gordon v. Museum of Natural History

In-Class Exercise: Moore v. Myers

Keep in Mind:

Procedural Posture

Procedural posture is the only way to discern the precise legal question that you need to answer.

Structure Matters

Standard legal argument format: Rule Analysis

Main arguments
Counterarguments
Policy argument Conclusion

Reasoning Matters

Tough cases require more than straightforward application of the rule.

Proximate Cause

Mon, 01 Jan 0001 00:00:00 +0000

But first…

Exercise 3

You are an attorney at a plaintiff’s side firm in the state of Loyola.

For this question, assume that duty and breach can be proven. Please advise her on the most pertinent remaining issues.

Okay, now Proximate Cause!

But first…

Where are we?

What are we doing?

Torts

Elements of a Negligence Cause of Action

Duty
Breach
Causation
Harm

Two parts to causation

Factual cause
Proximate cause

Proximate Cause

Unexpected Harm

Benn v. Thomas

Additional Harm

Note Cases

Intervening Cause

Torres v. El Paso Electric Co.

Intervening Cause

Prosser & Keaton, Law of Torts

Proximate Cause (cont'd.)

Mon, 01 Jan 0001 00:00:00 +0000

—

Proximate Cause (so far…)

Unexpected Harm Benn v. Thomas

Additional Harm Note Cases

Intervening Cause Torres v. El Paso Electric Co.

Palsgraf v. Long Island Railroad Co.

So, what is the rule?

How would you rule in Palsgraf?

Majority opinion (Cardozo)

and

Dissenting opinion (Andrews)

- Andrews dissent in Palsgraf

Danger invites rescue

Punitive Damages

Mon, 01 Jan 0001 00:00:00 +0000

Recap

Mathias v. Accor Economy Lodging, Inc.

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

Rule from State Farm

Anything outside of single digit ratio of punitive to compensatory damages is presumed unreasonable.

Three Due Process Concerns with Punitive Damages

Proportionality
Notice
Punishment for actions, not identity/status of defendant

Traditional Rationale Behind Punitive Damages

State Farm v. Campbell

Procedural posture
Legal question(s)
Relevant facts
Holding
Reasoning(s) behind the holding

Guideposts from BMW v. Gore

Reprehensibility
Disparity between compensatory and punitive damages
Difference between punitive damages and civil penalties

In-Class Exercise

Oral argument: Appealing a Punitive Damages Award

Your Job

Your job is to prepare for oral argument for both plaintiff and defendant.

Defendant/Appellant goal: Convince the court that the award amount is unconstitutional.

Plaintiff/Appellee goal: Convince the court that the award amount is constitutional.

Use the legal tests we just went over in class. Draw upon and analogize to the reasoning from today’s cases.

When we reconvene, I will cold call random students and we will workshop our arguments.

Reasonable Care & The Reasonable Person

Mon, 01 Jan 0001 00:00:00 +0000

Recap

Negligence as a Tort

Duty Breach Causation Harm

Negligence as a Concept

Today

Reasonable care Reasonable person

Reconciling…

Adams v. Bullock

Braun v. Buffalo Gen. El. Co.

In-Class Exercise

Using the reasoning behind the holding in Adams, create arguments to arrive at the opposite holdings from what the court decided in Adams and Braun.

Reasoning behind the holding in Adams

The typical behavior of potential plaintiffs
Location
History of prior accidents
Custom

United States v. Carroll Towing Co.

A workable formula for reasonable care?

B < PL = Negligent

B > PL = Not Negligent

The Reasonable Person Standard

An objective standard that is sometimes qualified

Reasonable Care & The Reasonable Person (continued...)

Mon, 01 Jan 0001 00:00:00 +0000

Reasonable care

The principle behind liability/fault

Tools for defining reasonable care include:

Foreseeability
Hand Formula (B < P*L)
The Reasonable Person

Hand Formula

B < PL = Negligent B > PL = Not Negligent

B = Burden of precautionary measures P = Probability of loss/harm L = Magnitude of loss/harm

Hand Formula Critiques:

Incommeasurability
Uncertainty of Quantification

The Reasonable Person Standard

An objective standard¹ designed to clarify what reasonable care requires

Justifications for an objective standard

Administrative feasibility
Consistency & enforcement of community norms
Equality & fairness

Exceptions to objective standard

Physical disability
Children
Expertise

Not exceptions to objective standard

Mental disability
Children engaged in adult activity
Old age & infirmity

Bethel v. New York City Transit Authority

And the standard of utmost care

The Role of Judge & Jury

Baltimore & Ohio Railroad Co. v. Goodman

Pokora v. Wabash Railway Co.

with some exceptions ↩︎

Res Ipsa Loquitur

Mon, 01 Jan 0001 00:00:00 +0000

In-Class Exercise: Moore v. Myers

Confer with your panel.

Decide on the opinions your court will issue and the reasoning you will adopt in those opinions.

Byrne v. Boadle

Res Ipsa Loquitur

Two requirements:

Harm results from the kind of situation in which negligence can be inferred
Defendant was responsible for the instrument of harm

McDougald v. Perry

Differences Across Jurisdictions

Res ipsa loquitur can either be:

an inference (e.g., New York), or
a presumption (e.g., California).

Why Allow Res Ipsa Loquitur?

Probabilistic rationale
Asymmetry and fairness justification

Ybarra v. Spangard

Short In-Class Exercise

Good Luck with Midterms!

Res Ipsa Loquitur 2

Mon, 01 Jan 0001 00:00:00 +0000

Byrne v. Boadle

McDougald v. Perry

Res Ipsa Loquitur

Two requirements:

Harm results from the kind of situation in which negligence can be inferred
Defendant was responsible for the instrument of harm

Differences Across Jurisdictions

Res ipsa loquitur can either be:

an inference (e.g., New York), or
a presumption (e.g., California).

Why Allow Res Ipsa Loquitur?

Probabilistic rationale
Asymmetry and fairness justification

Ybarra v. Spangard

Review

Mon, 01 Jan 0001 00:00:00 +0000

Office Hours

Tuesdays, 1:00pm to 2:00pm

Thursdays, 11:00am to 12:00pm

Today, 1:00pm to 2:00pm, lunch tables outside

Evaluations Today

Vincent v. Lake Erie Transport Co.

Hand Formula

B < P*L

Negligence when the burden on the defendant of taking precautions is less than the probability of loss for the plaintiff multiplied by the magnitude of that loss.

Review

Structure for this Part of the Course

Intentional Torts:

— Battery

— Assault

— False imprisonment

— Intentional infliction of emotional distress

Defenses:

— Consent

— Self-defense

— Defense of property

— Necessity

Abridged Definition from Restatement (Third) of Torts

A person acts with the intent to produce a consequence if:

(a) the person acts with the purpose of producing that consequence; or

(b) the person acts knowing that the consequence is substantially certain to result.

Abridged Definition from Restatement (Second) of Torts

An actor is subject to liability to another for assault if

(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and

(b) the other is thereby put in such imminent apprehension.

Abridged Definition from Restatement (Second) of Torts

An actor is subject to liability to another for false imprisonment if

(a) he acts intending to confine the other or a third person within boundaries fixed by the actor, and

(b) his act directly or indirectly results in such a confinement of the other, and

Abridged Definition from Restatement (Second) of Torts

Defenses

— Consent

— Self-defense

— Defense of property

— Necessity

Defenses for Bob

Consent
Self-defense
No prima facie case of assault

Claims that Bob might have against Annie

IIED
Battery
Assault

Review

Mon, 01 Jan 0001 00:00:00 +0000

In-Class Exercise

What are the strengths and weaknesses of this plan? What are your suggestions for revision?

Torts Speedrun

Damages

Compensatory Damages

To restore the plaintiff to the position they were in before the accident occurred.

Two types:

Economic / Pecuniary
Noneconomic / Nonpecuniary

When are damages excessive?

When they “shock the conscience”

— passion

— prejudice

— whim

— caprice

Single Judgment Rule

Punitive Damages

Due process issues:

— proportionality

— notice

— actions, not identity of defendant

BMW v. Gore Guideposts

— reprehensibility

— disparity between harm and punitive damages awards

— difference between punitive damages and civil penalties

State Farm

In general, should not have more than a single digit ratio of compensatory to punitive damages

How much does each defendant pay?

Order of operations (after establishing multiple liable defendants)

First step:

Separate injuries based on factual cause (if possible)

Second step:

For injuries that multiple defendants caused, sort out who owes what based on the jurisdictional rules.

How much does each defendant pay?

Common Law Approach

Divide up damages by number of liable defendants

Doctrine of contribution:

Joint and several liability, or
Several liability

How much does each defendant pay?

Modern Approach

Divide up damages based on comparative fault

Doctrine of contribution:

Variety of rules across jurisdictions, including several liability, joint-and-several liability, and a variety of hybrids.

Negligence

Duty

Landowners and Occupiers

Traditional view:

Trespasser

duty not to intentionally or wantonly cause injury
no duty of reasonable care (with handful of exceptions)

Licensee

no duty to inspect or discover dangerous conditions
duty to warn or make known conditions safe

Invitee

duty to inspect and discover dangerous conditions
duty to warn or make conditions safe

Landowners and Occupiers

Modern view:

Trespasser¹

duty not to intentionally or wantonly cause injury
no duty of reasonable care (with handful of exceptions)

Everybody Else

duty of reasonable care

Government duties

Breach

![](images/Res Ipsa Loquitur.jpeg)

Proving negligence

Constructive notice

Negligence per se

Res ipsa

Medical Malpractice

![](images/Medical Malpractice.jpeg)

Causation

Factual Cause

Four tricky factual cause scenarios

Toxic exposure
No idea what happened
Know what happened, but don’t know that it wouldn’t have happened if defendant had behaved reasonably
Know what happened, but don’t know who to blame

Alternative liability

Marketshare liability

Variations:

— size of market

— time of market

— defenses in individual cases

— several or joint-and-several liability

Proximate Cause

Not about causation

Unexpected harm

Additional harm

Intervening causes

Unexpected victim

Defenses to Negligence

Contributory negligence

Comparative negligence

Assumption of Risk

volenti non fit injuria

- Explicit / Express

- Implicit

-— Primary

-— Secondary

Should assumption of risk persist in a comparative fault world?

- Explicit / Express → Duty

- Implicit

-— Primary → Duty

-— Secondary → Comparative Fault

Strict Liability

- Very dangerous activity that cannot be made safe by exercising reasonable care

- Products

Products liability

- Manufacturing defect

- Design defect

— Two tests:

— 1) Consumer expectations

— 2) Excessive preventable danger

- Failure to warn

Defenses

- Contributory and comparative negligence

- Disclaimers and waivers (basically assumption of risk)

— Not a valid defense in most jurisdictions! But a handful do allow it.

Intentional torts

Intentional Torts:

— Battery

— Assault

— False imprisonment

— Intentional infliction of emotional distress

Defenses:

— Consent

— Self-defense

— Defense of property

— Necessity

IIED

NIED

Insurance

First party insurance

Third party (liability insurance)

Collateral source rule

Subrogation

Workers Comp

- No fault

- Exclusive remedy for work-related injuries

Benefits include:

—— Medical coverage

—— Percent of lost wages

—— Vocational rehabilitation

—— Survivor benefits

No-Fault and Beyond

Common features:

Narrow category of injury
Reduced fact-finding and proof requirements
Fixed recovery amounts
Insurance-like funding rather than individual defendant-to-plaintiff payouts

9-11 fund’s unique characteristics:

created after the harm, not in anticipation of harm
individualized approach to economic loss
tort-like awards for noneconomic loss
low administrative costs

Big Picture

What is tort law about?

What values should guide this part of our legal system?

— Corrective justice?

— Optimal deterrence?

— Distributive justice?

Or in California and the Third Restatement, a “flagrant” trespasser rather than just a plain old trespasser ↩︎

Review

Mon, 01 Jan 0001 00:00:00 +0000

Logistics

Office hours Today, in this classroom 11am - ???

Questions over email I will respond to substantive questions submitted before Wednesday, May 3. On Wednesday, I will email the whole class my responses to all questions that I have received.

Torts Speedrun

Where we left off last class

Strict Liability

- Very dangerous activity that cannot be made safe by exercising reasonable care

- Products

Products liability

- Manufacturing defect

- Design defect

— Two tests:

— 1) Consumer expectations

— 2) Excessive preventable danger

- Failure to warn

Defenses

- Contributory and comparative negligence

- Disclaimers and waivers (basically assumption of risk)

— Not a valid defense in most jurisdictions! But a handful do allow it.

Intentional torts

Intentional Torts:

— Battery

— Assault

— False imprisonment

— Intentional infliction of emotional distress

Defenses:

— Consent

— Self-defense

— Defense of property

— Necessity

IIED

NIED

Insurance

First party insurance

Third party (liability insurance)

Collateral source rule

Subrogation

Workers Comp

- No fault

- Exclusive remedy for work-related injuries

Benefits include:

—— Medical coverage

—— Percent of lost wages

—— Vocational rehabilitation

—— Survivor benefits

No-Fault and Beyond

Common features:

Narrow category of injury
Reduced fact-finding and proof requirements
Fixed recovery amounts
Insurance-like funding rather than individual defendant-to-plaintiff payouts

9-11 fund’s unique characteristics:

created after the harm, not in anticipation of harm
individualized approach to economic loss
tort-like awards for noneconomic loss
low administrative costs

Big Picture

What is tort law about?

What values should guide this part of our legal system?

— Corrective justice?

— Optimal deterrence?

— Distributive justice?

The End

Student Questions

Technical Questions about the Exam

Will we be told in the jurisdictional rules whether we should use contributory or comparative negligence or what form of comparative negligence?

Should we only focus on using the Second Restatement’s definition for strict liability?

Negligence

How does duty vary from an affirmative duty?

How can I define non-negligent injury and non-negligent creation of risk?

How do we differentiate when to analyze using the negligence framework and when to separately analyze duty and breach?

When we’re analyzing harm for the elements of negligence, do we need to do a full IRAC to prove harm or can we just say there was an injury so harm occurred?

Factual Cause

What’s the deal with the but-for test and the substantial factor test?

Can you explain alternative liability and how it differs from defendants acting in concert?

In Summers v Tice if they can’t figure out which defendant was liable would you apportion the liability 50/50 between the defendants?

Should we apply market share liability when facts show that there are several others injured or is one plaintiff sufficient? Should we discuss it with products liability as well?

For Toxic Harms, do we have to know about Mass Torts and multidistrict litigations, or should we only know the three frequent problems that toxic harm cases raise?

Proximate Cause

Is intervening cause used in strict/product liability case and in intentional harm cases?

What am I supposed to understand from Palsgraf exactly?

Defenses

What is the difference between comparative negligence, comparative fault, and comparative responsibility?

Even if a plaintiff’s actions can’t be an intervening cause for the defendant to escape liability, is there still the possibility they can be found comparatively/contributorily negligent?

Are comparative and contributory negligence the same or are they different, and are applicable only depending on the jdx that we are in?

Can you explain the key difference between not as great as and no greater than?

If we are in a comparative negligence jurisdiction do we even mention assumption of risk, or should we do the analysis within duty and comparative negligence?

Strict Liability

What’s the difference between “ultrahazardous activity” and “abnormally dangerous activity”?

Products Liability

Is the rule of privity relevant?

What do you mean that warnings cannot overcome design defects?

Can you explain the heeding presumption and how that plays a part in warnings?

Can you explain comparative responsibility and the difference between the two restatements with products liability?

Intentional Torts

Are causation and harm built into the elements we have for intentional torts? Or is that something we have to address separately?

For battery, does a physical touch necessarily mean that the defendant themselves physically touched the defendent?

Can there be an assault if it was an attempted battery but the plaintiff was not put into reasonable fear or apprehension?

When a defendant says something conditional, can it still be assault?

For intent for false imprisonment: does the intent need to be intent to confine or intent to confine by threat, assertion of legal authority or barriers?

Is the first amendment a defense to IIED claims?

Damages

How is the unpaid portion from an insolvent defendant divided among the other defendants in a modern joint-and-several liability jurisdiction?

What are the differences between alternative liability, joint & several liability, and several liability?

Some unsolicited advice…

Befriend anxiety

Care for each other

Kick some ass

Review - Concept of Negligence

Mon, 01 Jan 0001 00:00:00 +0000

But first…

Thanksgiving

Supplement Recommendations

For Review:

Understanding Torts

For Practice Problems:

Tort Law and Practice

Course Roadmap

https://www.colin-doyle.net/torts/course-content/roadmap/

Tort of Negligence Plaintiff must prove:

Duty
Breach
Causation
Harm

Concept of Negligence A principle for assigning liability. Primarily informs:

Duty
Breach

Concept of Negligence

The principle behind liability/fault is __________________.

Tools for Identifying Reasonable Care

1. __________________
2. __________________
3. __________________
4. __________________
5. __________________

Special Considerations

1. __________________
2. __________________
3. __________________

Res Ipsa Loquitur

Two requirements:

Medical Malpractice

A medical professional is negligent if they fail to exercise reasonable care when:

performing a medical procedure
informing a patient about potential medical treatment

Reasonable doctor
Reasonable patient

In-Class Exercise: Practice Exam Question

Review Session - Causation

Mon, 01 Jan 0001 00:00:00 +0000

But first…

Danger invites rescue

Outlining

What is the purpose of an outline?

Blueprint

Roadmap

Instruction manual

Instructions for
processing unfamiliar facts

Exam writing process

Identify the issue
State the correct legal rule
Apply the rule to the facts
Analyze nuances (like gaps, contradictions, ambiguities)

Structural pattern in outline

Issue — Rule — Application — Nuances

Factual Causation Rule?

Factual Causation Rule: “But for” the defendant’s negligence, the harm to the plaintiff would not have occurred.

Factual Causation Rule: “But for” the defendant’s negligence, the harm to the plaintiff would not have occurred. Application?

Factual Causation Rule: “But for” the defendant’s negligence, the harm to the plaintiff would not have occurred. Application: Imagining that the defendant had not acted negligently, would the harm still have occurred? Nuances: — Multiple sufficient causes —— Rule: —— Application: —— Nuances: — Multiple possible causes —— “What” caused harm? ——— Rule: ——— Application: ——— Nuances: —— “Who” caused harm? ——— Rule: ——— Application: ——— Nuances: — Toxic harms —— Rule: —— Application: —— Nuances:

Exercise #1

A chestnut tree from Tortfeasor Farms, the defendant in this case, fell over during a violent windstorm, crushing the roof of a car driving on the road beside the farm and injuring a passenger in the car, the plaintiff in this case. On this particular country road, the speed limit is thirty miles per hour. The driver of the car had been driving fifty miles per hour. If the driver had not been driving in excess of the speed limit, the car would not have been under the chestnut tree at the moment that it fell, and the plaintiff would not have been injured.

Tortfeasor farms seeks to dismiss the negligence case against it because the driver’s excessive speed was an intervening cause of the injury. How do you rule and why?

Exercise #2

While driving down a residential street, Sidney Greene looked down at her car’s display to skip forward on a podcast that she was listening to. When Greene’s attention returned to the road, she saw a pedestrian, Lamar Boyd, crossing a crosswalk about twenty feet ahead. Greene slammed on the brakes and swerved to the right side of the road where her car collided with a set of garbage cans that a local homeowner, Wilma Cooper, had set out for trash collection. As it turns out, there was no trash collection scheduled for that day. Cooper was tired of wheeling her trash can back and forth from the street each week, so she had decided to keep the trashcan at the curb. A local ordinance only allowed people to leave their trashcans in the street on trash collection day.

As a result of Greene’s collision with the trashcan, trash and debris flew across the road, including a banana peel, which landed in the crosswalk. Not seeing the banana peel, Lamar Boyd stepped on it, slipped, and broke his leg.

Exercise #2

Boyd is now suing both Greene and Cooper. Greene seeks to dismiss the case against her for two independent reasons:

The trashcans that Cooper put out were an intervening cause of Boyd’s injuries
Greene did not proximately cause Boyd’s injuries

Cooper seeks to dismiss the case against her for two independent reasons:

Cooper did not breach a duty of care to Boyd
Cooper did not proximately cause Boyd’s injuries

How do you rule and why?

Statutes | Proving Negligence

Mon, 01 Jan 0001 00:00:00 +0000

Where are we?

I. Introduction

II. Remedies

III. Negligence

IV. Strict Liability

V. Intentional Torts

VI. Alternatives to Tort

III. Negligence

A. Introduction to the Concept

B. Duty / Breach

C. Causation

D. Defenses

A. Introduction to the Concept of Negligence

Reasonable care is the principle behind liability/fault

Tools for Identifying Reasonable Care 1. Foreseeability 2. Hand Formula (B < P*L) 3. The Reasonable Person 4. Custom 5. Statute

Special Considerations 1. Judge and jury relationship 2. Challenges with proving negligence 3. Uniqueness of medical malpractice

Judges & Juries

Rules vs. Standards

Rules are rigid, bright-line tests that are easily applied to facts

Standards offer guidance for decisions but allow discretion

Tradeoffs

Rules Promote predictability, certainty, consistency Helpful for guiding future behavior

Standards Promote fairness, flexibility, sensitivity to circumstances Helpful for individualized judging of past behavior

How to operationalize?

Rule Analysis - Main arguments - Counterarguments - Policy argument Conclusion

Custom

Sword for proving negligence Prove two things: 1. Custom = reasonable care 2. Defendant failed to comply with custom -————————————————— Shield for disproving negligence Prove two things: 1. Custom = reasonable care 2. Defendant complied with custom

Statutes

Sword for proving negligence Prove two things: 1. Statute = reasonable care 2. Defendant failed to comply with statute -————————————————— Shield for disproving negligence Prove two things: 1. Statute = reasonable care 2. Defendant complied with statute

Statutes

Martin v. Herzog

Tedla v. Ellman

Proving Negligence

To establish that conduct fell below standard of reasonable care, plaintiff needs to prove:

What defendant did or did not do.
What defendant should have done.

Strict Liability - Traditional Approach

Mon, 01 Jan 0001 00:00:00 +0000

Remember the first week of class?

How to Read a Case

Before you begin:

Connect with your core values.
Discern your immediate goal.

Why take this preliminary step?

Connecting to core values makes the work easier and more fulfilling.

Discerning a goal allows you to focus your attention on what matters.

There is no escape.

Stress is a very bad, no good motivator.

Goals when reading a case

Grasp the internal logic and mechanics of the case.
Synthesize within a broader context.

That’s outlining!

An outline outlines the process for arriving at the right answers to familiar questions about unfamiliar facts.

Familiar questions from our negligence defenses

- Does the defense of contributory negligence apply? - Was the plaintiff comparatively negligent? - Does the defense of “assumption of risk” apply? - How much can the plaintiff recover? - How much does each defendant owe? - If a particular defendant is absent or insolvent, how much do the other defendants owe?

We also read a case that first week…

Hammontree v. Jenner

Fletcher v. Rylands

Rylands v. Fletcher

Liability applies for:

PWFOPBOHL&C&KTALDMIIE

Liability applies for:

PWFOPBOHL&C&KTALDMIIE

A person who for his own purpose brings onto his land and collects and keeps there anything likely to do mischief if it escapes

Limits on Strict Liability

Fletcher v. Rylands

— PWFOPBOHL&C&KTALDMIIE

Rylands v. Fletcher

— PWFOPBOHL&C&KTA “non-natural” and LDMIIE

First Restatement

— “ultrahazardous activity”

Second Restatement

— “abnormally dangerous activity”

Indiana Harbor Belt v. American Cyanamid

Strict liability applies for behavior that is:

- Very risky and that risk cannot be eliminated at reasonable cost

AND

- Not susceptible to due care analysis

Tort law is the law of

negligence.

Strict liability is the law of tort law when negligence fails.

Toxic Harms and Factual Causation Review

Mon, 01 Jan 0001 00:00:00 +0000

Toxic Harms

Why is the tort system such a poor fit?

Three frequent problems:

Can’t be certain that the toxin was a “but for” cause
Can’t be certain of the magnitude of the harm
Can’t be certain who is responsible

Mass Torts

A procedural story in two parts:

Amchem killed the mass tort class action
But multidistrict litigation (MDL) took over

Factual Causation Speedrun

Causation

Two parts:

Two different tests for factual causation

Causation

Two parts:

Factual cause
Proximate cause

Two different tests for factual causation

“But for”
Substantial factor

Stubbs v. City of Rochester

Zuchowicz v. United States

Summers v. Tice

Hymowitz v. Eli Lilly & Co.

Joint and Several Liability

vs.

Several Liability

Alternative Liability

Exercise #1

You are an attorney at a plaintiff’s side firm in the state of Loyola.

Waters visits your office as a prospective client. She wants to know if she has a viable negligence claim against Meyer or Morales, who she should sue, and if she will win. Please advise her.

Exercise 2

Same initial fact pattern as the first exercise. Except now, in addition to being hit by Meyer and Morales, Waters was also hit by two other drivers who fled the scene.

Waters visits your office as a prospective client. She wants to know if she has a viable negligence claim against Meyer or Morales, who she should sue, and if she will win. Please advise her.

Exercise 3

You are an attorney at a plaintiff’s side firm in the state of Loyola.

For this question, assume that duty and breach can be proven. Please advise her on the most pertinent remaining issues.

Toxic Harms and Factual Causation Review

Mon, 01 Jan 0001 00:00:00 +0000

Toxic Harms

Why is the tort system such a poor fit?

Three frequent problems:

Can’t be certain that the toxin was a “but for” cause
Can’t be certain of the magnitude of the harm
Can’t be certain who is responsible

Mass Torts

A procedural story in two parts:

Amchem killed the mass tort class action
But multidistrict litigation (MDL) took over

Factual Causation Speedrun

Causation

Two parts:

Two different tests for factual causation

Causation

Two parts:

Factual cause
Proximate cause

Two different tests for factual causation

“But for”
Substantial factor

Stubbs v. City of Rochester

Zuchowicz v. United States

Summers v. Tice

Hymowitz v. Eli Lilly & Co.

Joint and Several Liability

vs.

Several Liability

Alternative Liability

Exercise #1

You are an attorney at a plaintiff’s side firm in the state of Loyola.

Waters visits your office as a prospective client. She wants to know if she has a viable negligence claim against Meyer or Morales, who she should sue, and if she will win. Please advise her.

Exercise 2

Same initial fact pattern as the first exercise. Except now, in addition to being hit by Meyer and Morales, Waters was also hit by two other drivers who fled the scene.

Waters visits your office as a prospective client. She wants to know if she has a viable negligence claim against Meyer or Morales, who she should sue, and if she will win. Please advise her.

Exercise 3

You are an attorney at a plaintiff’s side firm in the state of Loyola.

For this question, assume that duty and breach can be proven. Please advise her on the most pertinent remaining issues.

Warnings

Mon, 01 Jan 0001 00:00:00 +0000

Housekeeping

Office Hours Rescheduled for 1:00pm - 2:00pm today

LAUSD Strike

Professionalism Be on time. Be prepared. Email me if your absence can be excused.

Course Syllabus: I reserve the right to reduce grades by one-third of a letter grade for poor class participation due to repeated instances of unpreparedness, lack of attention in class, refusal to participate in good faith, and absences. Any decision to reduce a grade for poor class participation is at my discretion and is non-negotiable.

Student Handbook: A student may be withdrawn, and/or excluded from an examination, and given a failing grade in any course in which the student has not maintained a satisfactory attendance record.

“Reasonable Alternative Design” Challenges

Warnings

Products Liability Claims

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?????????????????
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Products Liability Claims

Manufacturing Defects
Design Defects
Failure to Warn

Elements of a Claim

Negligence

Duty
Breach
Causation
Harm

Strict Liability

Defendant was engaged in the kind of activity where strict liability applies
Causation
Harm

Products Liability

Defect
Causation
Harm

What are our concerns with warnings and warning labels?

Size and noticeability
Broad vs. narrow specificity
Too exhaustive to read
Warnings are ignored because it is just about liability not about warning
Warnings are too complicated to understand
Who is responsible for liability, third-party vendors
Industry laws and regulations

Hood v. Ryobi American Corp.

Leading standard from Pittman v. Upjohn Co.

“A reasonable warning not only conveys a fair indication of the dangers involved, but also warns with the degree of intensity required by the nature of the risk. [ ] Among the criteria for determining the adequacy of a warning are:

the warning must adequately indicate the scope of the danger;
the warning must reasonably communicate the extent or seriousness of the harm that could result from misuse of the [product];
the physical aspects of the warning must be adequate to alert a reasonably prudent person to the danger;
a simple directive warning may be inadequate when it fails to indicate the consequences that might result from failure to follow it and, . . .
the means to convey the warning must be adequate”

Majority Rules

“Heeding Presumption”

Warnings can’t overcome design defects

Centocor v. Hamilton

Products Liability Exercise

You are a junior associate at a plaintiff-side firm. A partner at the firm has brought you in to work on an interesting new case. The potential plaintiff, a nine-year-old boy named Augustus Gloop, choked on a hot dog during lunch in his elementary school cafeteria. The child survived — thanks to a gym teacher’s training in first aid and CPR — but suffered serious injuries. His family is now interested in suing Oscar Meyer Weiner, the company that produced this hot dog.

The partner at your firm doesn’t typically litigate products liability cases, so she wants you to catch her up to speed. She’d like you to sketch out arguments supporting a failure to warn claim, a design defect claim, and a manufacturing defect claim. For each claim, provide an example of a piece of evidence that would help our client win. And let her know which claims have the best chance of success. On the failure to warn claim, you should know that Oscar Meyer Weiner will seek protection from the “learned intermediary” doctrine as the company does inform elementary schools that hot dogs are a choking hazard.

Workers’ Compensation

Mon, 01 Jan 0001 00:00:00 +0000

Why are we learning this shit?

How do alternatives to tort teach us about tort?

They influence tort litigation
They affect substantive doctrine
Alternatives to tort help us to understand assumptions and latent choices within the common law of tort

Pavia v. State Farm

Hypos on Impact of Insurance

First party insurance for plaintiff in

Vincent v. Lake Erie Transport Co.

Liability insurance for defendants in

Randi W. v. Muroc Joint Unified School District

Workers’ Compensation

The “Unholy Trinity” of Common Law Defenses

Fellow servant rule
Contributory negligence
Assumption of risk

The Bargain of Workers’ Compensation

No fault

and

Exclusive remedy

Workers’ Compensation Requirements

Only compensates for work-related injuries

Benefits include:

—— Medical coverage

—— Percent of lost wages

—— Vocational rehabilitation

—— Survivor benefits

Employers must buy workers’ comp insurance

When would an employee not file a workers’ comp claim?

Injury didn’t occur while in scope of employment

Injury resulted from employer’s intentional tort

Non-disabling injury

Employee was not an employee but an independent contractor

Third-party claims

Rule: Employee can file a workers’ compensation claim against their employer but workers compensation’ does not cover third parties.

Hypothetical:

Gladys Escola is a waitress. While serving a Coca-Cola beverage at work, the bottle explodes in her hand, injuring her hand. She needs surgery and will be unable to work for months.

What’s your legal advice for her?

Big Picture: Workers’ Comp vs. Tort Law

Deterrence

Compensation

Administrative Cost

Equity