Torts2025-materials | Colin Doyle | Law Professor

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How to Read a Case

Hard copies of Reading Assignments 01 are available at the front of the room. Please pick up a copy.

In-Class Exercise

The Questions

Why should this defendant be held liable or not held liable?

What remedy does the defendant owe Ms. Hammontree?

What would you like to know that wasn’t in the fact pattern? Why?

The Driver

Why should this defendant be held liable or not held liable?

What remedy does the defendant owe Ms. Hammontree?

What would you like to know that wasn’t in the fact pattern? Why?

The Doctor

Why should this defendant be held liable or not held liable?

What remedy does the defendant owe Ms. Hammontree?

What would you like to know that wasn’t in the fact pattern? Why?

The Car Manufacturer

Why should this defendant be held liable or not held liable?

What remedy does the defendant owe Ms. Hammontree?

What would you like to know that wasn’t in the fact pattern? Why?

Today’s Agenda

Hammontree v. Jenner

ENORMOUS DISCLAIMER!

Before you begin:

Connect with your purpose.
Discern your immediate goal.

Why take this preliminary step?

Connecting to a purpose 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.

Purpose connects our daily work with our deepest values.

Goals determine what we pay attention to.

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

Holding

Three lines of reasoning

Precedent binds us.
Analogy to products liability falls apart.
Analogous authority also binds us.

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Course Overview

Administrative Crap

Office Hours

— New time: Thursdays from 1:00pm to 2:30pm

Thursday’s Reading Assignment

— Has been pushed to next Tuesday

Recap

How to Read a Case

Before you begin:

Connect with your purpose.
Discern your immediate goal.

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. (Strict liability doesn’t apply for automobile accidents.)
Analogy to products liability falls apart. (Not the same kind of power imbalance / control as products manufacturers.)
Supreme Court reasoning in analogous case applies here. (Slippery slope, domain of the legislature)

How to answer this kind of question

Course overview

What is torts?

Scope of tort law

What is tort law all about?

Tort Law Concerns

Individual relationship of plaintiff and defendant
Societal efficiency
Distribution of resources and concentration of power

Course roadmap

On the course website under Course Content

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.

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Reading Cases

Answering Questions

Office Hours

Today from 1:00pm to 2:30pm

Vosburg v. Putney

Internal logic and mechanics of a case

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

Vosburg v. Putney and underlying tort law values

Corrective justice: determining liability based on the wrongfulness of the defendant’s actions within this particular case
Efficiency: determining liability based on what will promote overall societal welfare (balancing costs and benefits)
Power: determining liability based upon who is best positioned to prevent harm

Exam question

Three lines of reasoning from Hammontree

Precedent binds us. (Strict liability doesn’t apply for automobile accidents.)
Analogy to products liability falls apart. (Not the same kind of power imbalance / control as products manufacturers.)
Supreme Court reasoning in analogous case applies here. (Slippery slope, domain of the legislature)

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Bethel v. New York City Transit Authority

The standard of the highest degree of care

versus

the standard of reasonable care

Readings

Sex and Gender: The Reasonable Woman?

The Right to Live in the World: The Disabled in the Law of Torts

Roles of Judge & Jury

Negligence as a Cause of Action

Plaintiff must prove four elements:

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

Negligence as a Cause of Action

Plaintiff must prove four elements:

Duty
Breach
Causation
Harm

Reasonable care

Ways to determine reasonable care under the circumstances include:

- Foreseeability

- The Reasonable Person

The Reasonable Person Standard

Objective standard

Exceptions to objective standard: - Physical disability - Children - Expertise

Not exceptions to objective standard - Mental disability - Children engaged in adult activity - Old age & infirmity

Baltimore & Ohio Railroad Co. v. Goodman

and

Pokora v. Wabash Railway Co.

and

Akins v. Glen Falls

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Customs & Statutes

Negligence as a Cause of Action

Plaintiff must prove four elements:

Duty
Breach
Causation
Harm

Proving 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.

Ways to determine reasonable care under the circumstances include:

- Foreseeability - The Reasonable Person - Custom - Statute

Special Considerations - Judge and jury relationship

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

The T.J. Hooper

“Tugboats and Radios”

Martin v. Herzog

“The Buggy Without Lights”

Legal jargon

Prima facie case of negligence

Negligence per se

- Actor violates a statute that is designed to protect against this type of accident and harm

AND

- the accident victim is within the class of persons the statute is designed to protect.

Tedla v. Ellman

“Walking on the Side of the Highway”

How to use customs and 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

Outlining example

Under the topic of using statutes to establish reasonable care:

— Did the defendant violate a statute? —– Was statute intended to prevent this kind of harm? —– To this class of people? —– BUT consider: ——– Absurd results? ——– Really about safety? ——– Exceptions or unusual circumstances?

Short exercise

Write the dissent in Tedla v. Ellman.

Explain why Martin v. Herzog controls and therefore plaintiffs were negligent as a matter of law.

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Res Ipsa Loquitur

Supplement Recommendations

For Review:

Understanding Torts

For Practice Problems:

Tort Law and Practice

What’s so special about res ipsa?

If res ipsa applies, plaintiff can prove duty and breach without establishing a standard of care.

Two requirements for res ipsa to apply:

Harm results from. . . ?
Defendant was. . . ?

Two requirements for res ipsa to apply:

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

Byrne v. Boadle

“The Falling Flour Barrel”

Larson v. St. Francis

“The Falling Armchair”

Connolly v. Nicollet Hotel

“The Chaotic Convention”

Why Allow Res Ipsa Loquitur?

Probabilistic rationale
Asymmetry and fairness justification

McDougald v. Perry

Ybarra v. Spangard

In-Class Exercse for Res Ipsa Loquitur

You are deciding a case as an appellate court judge.

Organize your notes according to the CREAC method:

Conclusion
Rule
Explanation
Application
Conclusion

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Duty to Third Parties

&

Policy Bases for No Duty

[fit] Tarasoff v. Regents of the University of California

“The Psychiatrist Who Didn’t Warn the Murder Victim”

[fit] Randi W. v. Muroc Joint Unified School District

“The Alleged Sexual Predator’s Recommenders”

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

Policy Bases for No Duty

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.”

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.

[fit] What the heck?

Two Reasons

Legal
Policy

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Before class, please look over Part III of the midterm exam

NIED

&

Causation

Portee v. Jaffee

Court’s framing of question before it:

“one formulation of the issue before us is whether it was foreseeable that the mother would be observing the death of her young child”

“more directly stated, we must determine whether defendants owed a duty to the plaintiff that was violated when her child became trapped in the elevator”

“Bystander liability”

(1) the death or serious physical injury of another caused by defendant’s negligence;

(2) a marital or intimate, familial relationship between plaintiff and the injured person;

(3) observation of the death or injury at the scene of the accident; and

(4) resulting severe emotional distress

Gammon v. Osteopathic Hospital of Maine

Traditional Requirements for Allowing Recovery for an NIED Claim (in Maine)

physical impact
objective manifestation
underlying or accompanying tort
special circumstances

Different jurisdictions’ approaches to NIED

“Impact” Rule

“Zone of Danger”

“Bystander Liability”

Special, specified circumstances

Underlying tort law principles

Causation

Two parts:

Factual cause
Proximate cause

Factual causation is usually straightforward

Adams v. Bullock: “The Swinging Wire and Electric Trolley”

Martin v. Herzog: “The Buggy Without Lights”

Byrne v. Boadle: “The Falling Flour Barrel”

Reynolds v. Hicks: “Underage Drinking and Driving”

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

Multiple Defendants

[fit] What about multiple possible causes?

Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.

“Multiple Fires Whodunnit”

Necessary and Sufficient Conditions

Necessary condition: Result happens ONLY IF condition exists. Put another way: IF NOT condition, then NO result.

Sufficient condition: IF condition exists, then result happens.

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.]

Summers v. Tice

“Hunting Party Whodunnit”

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~~

Garcia v. Joseph Vince Co.

“Fencing Sabre Whodunnit”

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Causation

[fit] What about multiple possible causes?

Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.

“Multiple Fires Whodunnit”

Necessary and Sufficient Conditions

Necessary condition: Result happens ONLY IF condition exists. Put another way: IF NOT condition, then NO result.

Sufficient condition: IF condition exists, then result happens.

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.]

Summers v. Tice

“Hunting Party Whodunnit”

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~~

Garcia v. Joseph Vince Co.

“Fencing Sabre Whodunnit”

Exercise: Hotel Room Whodunnit

How do you rule on defendant’s motion for summary judgment?

Sindell v. Abbott Laboratories

“Toxic Harms”

—

Possible alternatives for factual causation

Concert liability
Alternative liability
Enterprise liability
Market share liability

—

Toxic Harms

Why is the tort system such a poor fit?

Three frequent problems:

Identification of the cause: Can’t be certain that the toxin was a “but for” cause
Boundaries of the harm: Can’t be certain of the extent of the harm
Source of the cause: Can’t be certain who in particular is responsible

Mass Torts

A procedural story in two parts:

The Supreme Court killed the mass tort class action
Multidistrict litigation (MDL) took over

Factual Cause Exercises

Exercise 1

Back-to-back car accidents: Waters was negligently hit by Meyer, then negligently hit by Morales. 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

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

Sindell v. Abbott Laboratories

“Toxic Harms”

—

Possible alternatives for factual causation

Concert liability
Alternative liability
Enterprise liability
Market share liability

—

Toxic Harms

Why is the tort system such a poor fit?

Three frequent problems:

Identification of the cause: Can’t be certain that the toxin was a “but for” cause
Boundaries of the harm: Can’t be certain of the extent of the harm
Source of the cause: Can’t be certain who in particular is responsible

Mass Torts

A procedural story in two parts:

The Supreme Court killed the mass tort class action
Multidistrict litigation (MDL) took over

Factual Cause Exercises

Exercise 1

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

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

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

In re Polemis

“The Plank that Made a Ship Explode”

—

Wagner v. International Railway Co.

“The Injured Rescuer”

—

Danger invites rescue

—

Benn v. Thomas

“The Time-Delayed Heart Attack”

—

Steinhauser v. Hertz Corp.

“Sudden Schizophrenia”

—

Gibson v. Garcia

“The Rotten Telephone Pole that Fell on the Person”

—

Intervening cause will cut off proximate 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

—

Berry v. Borough of Sugar Notch

“The Rotten Tree that Fell on the Speeding Car”

—

Palsgraf v. Long Island Railroad Co.

“Fireworks on the Train Platform”

How would you rule in Palsgraf?

Majority opinion (Cardozo)

and

Dissenting opinion (Andrews)

“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.”

- Andrews dissent in Palsgraf

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Proximate Cause

Sindell v. Abbott Laboratories

“Toxic Harms”

—

Possible alternatives for factual causation

Concert liability
Alternative liability
Enterprise liability
Market share liability

—

Toxic Harms

Why is the tort system such a poor fit?

Three frequent problems:

Identification of the cause: Can’t be certain that the toxin was a “but for” cause
Boundaries of the harm: Can’t be certain of the extent of the harm
Source of the cause: Can’t be certain who in particular is responsible

Mass Torts

A procedural story in two parts:

The Supreme Court killed the mass tort class action
Multidistrict litigation (MDL) took over

Factual Cause Exercises

Exercise 1

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

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

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

In re Polemis

“The Plank that Made a Ship Explode”

—

Wagner v. International Railway Co.

“The Injured Rescuer”

—

“Fireworks on the Train Platform”

How would you rule in Palsgraf?

Majority opinion (Cardozo)

and

Dissenting opinion (Andrews)

- Andrews dissent in Palsgraf

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Vicarious Liability

Miller v. Reiman-Wuerth Co.

“The Bank Errand”

—

Christensen v. Swenson

“The Lunch Break”

—

Three criteria

Employee’s conduct must be of the general kind the employee is hired to perform.
Employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment.
Employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.

—

Kuehn v. Inter-city Freight

“Road Rage”

—

Sage Club v. Hunt

“The Violent Bartender”

Exercise: Causation and Vicarious Liability

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.

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

Cooper putting out the trashcans was an intervening cause of Boyd’s injuries.
Even if Cooper’s actions were not an intervening cause, Greene still did not proximately cause Boyd’s injuries.

ACME seeks to dismiss the negligence case against it for two reasons:

ACME is not liable for Greene’s tortious acts because she was acting outside the scope of her employment.
ACME is not liable because asking Greene to pick up a birthday cake was not a factual cause of Boyd’s injuries.

Factual Cause

Stubbs v. City of Rochester: “Sewage in the Drinking Water” Zuchowicz v. United States: “Prescribed Drug Overdose” Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.: “Multiple Fires Whodunnit” Summers v. Tice: “Hunting Party Whodunnit” Garcia v. Joseph Vince Co.: “Fencing Sabre Whodunnit” Sindell v. Abbott Laboratories: “Toxic Harms”

—

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

—

Proximate Cause

In re Polemis: “The Plank that Made a Ship Explode” Wagner v. International Railway Co.: “The Injured Rescuer” Benn v. Thomas: “The Time-Delayed Heart Attack” Steinhauser v. Hertz Corp.: “Sudden Schizophrenia” Gibson v. Garcia: “The Rotten Telephone Pole that Fell on the Car” Berry v. Borough of Sugar Notch: “The Rotten Tree that Fell on the Speeding Car” Palsgraf v. Long Island Railway Co.: “Fireworks on the Train Platform”

—

Vicarious Liability

Miller v. Reiman-Wuerth Co.: “The Bank Errand” Christensen v. Swenson: “The Lunch Break” Kuehn v. Inter-city Freight: “Road Rage” Sage Club v. Hunt: “The Violent Bartender”

—

Three criteria for scope of employment

Employee’s conduct must be of the general kind the employee is hired to perform.
Employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment.
Employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.

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

“Blocking a Road with a Pole”

and

Davies v. Mann

“The Donkey on the Road”

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

Li v. Yellow Cab Company

“Car Accident Comparative Negligence”

—

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)

Can the negligent plaintiff recover damages?

[fit] That’s not

[fit] a flowchart!

[fit] It’s cool

Can the negligent plaintiff recover damages?

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 “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 “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 “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 “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 “not as great as” 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 - 40%, B - 30%, C - 10%, D - 20%

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

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

[fit] Apportionment based on factual cause

[fit] Don’t

[fit] forget about

[fit] factual cause!

Doctrine of Contribution

Modern Approach

Apportionment based on comparative fault.

McCarty v. Pheasant Run, Inc.

“Unlocked Hotel Room Door”

and

Wassell v. Adams

“Opened Hotel Room Door”

Discussion Questions

Given the facts of these cases, what would a just outcome in each 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?

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

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Proximate Cause

Majority opinion (Cardozo)

and

Dissenting opinion (Andrews)

- Andrews dissent in Palsgraf

[fit] That’s all folks!

Vicarious Liability

Miller v. Reiman-Wuerth Co.

“The Bank Errand”

—

Christensen v. Swenson

“The Lunch Break”

—

Three criteria

Employee’s conduct must be of the general kind the employee is hired to perform.
Employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment.
Employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.

—

Kuehn v. Inter-city Freight

“Road Rage”

—

Sage Club v. Hunt

“The Violent Bartender”

Exercise: Causation and Vicarious Liability

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.

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

Cooper putting out the trashcans was an intervening cause of Boyd’s injuries.
Even if Cooper’s actions were not an intervening cause, Greene still did not proximately cause Boyd’s injuries.

ACME seeks to dismiss the negligence case against it for two reasons:

ACME is not liable for Greene’s tortious acts because she was acting outside the scope of her employment.
ACME is not liable because asking Greene to pick up a birthday cake was not a factual cause of Boyd’s injuries.

Factual Cause

—

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

—

Proximate Cause

—

Vicarious Liability

Miller v. Reiman-Wuerth Co.: “The Bank Errand” Christensen v. Swenson: “The Lunch Break” Kuehn v. Inter-city Freight: “Road Rage” Sage Club v. Hunt: “The Violent Bartender”

—

Three criteria for scope of employment

Employee’s conduct must be of the general kind the employee is hired to perform.
Employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment.
Employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.

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

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Vicarious Liability

Miller v. Reiman-Wuerth Co.

“The Bank Errand”

—

Christensen v. Swenson

“The Lunch Break”

—

Three criteria

Employee’s conduct must be of the general kind the employee is hired to perform.
Employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment.
Employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.

—

Kuehn v. Inter-city Freight

“Road Rage”

—

Sage Club v. Hunt

“The Violent Bartender”

Exercise: Causation and Vicarious Liability

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.

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

Cooper putting out the trashcans was an intervening cause of Boyd’s injuries.
Even if Cooper’s actions were not an intervening cause, Greene still did not proximately cause Boyd’s injuries.

ACME seeks to dismiss the negligence case against it for two reasons:

ACME is not liable for Greene’s tortious acts because she was acting outside the scope of her employment.
ACME is not liable because asking Greene to pick up a birthday cake was not a factual cause of Boyd’s injuries.

Factual Cause

—

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

—

Proximate Cause

—

Vicarious Liability

Miller v. Reiman-Wuerth Co.: “The Bank Errand” Christensen v. Swenson: “The Lunch Break” Kuehn v. Inter-city Freight: “Road Rage” Sage Club v. Hunt: “The Violent Bartender”

—

Three criteria for scope of employment

Employee’s conduct must be of the general kind the employee is hired to perform.
Employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment.
Employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.

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

“Blocking a Road with a Pole”

and

Davies v. Mann

“The Donkey on the Road”

Contributory Negligence in General:

Li v. Yellow Cab Company

“Car Accident Comparative Negligence”

—

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)

Can the negligent plaintiff recover damages?

[fit] That’s not

[fit] a flowchart!

[fit] It’s cool

Can the negligent plaintiff recover damages?

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 “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 “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 “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 “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 “not as great as” 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 - 40%, B - 30%, C - 10%, D - 20%

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

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

[fit] Apportionment based on factual cause

[fit] Don’t

[fit] forget about

[fit] factual cause!

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.

What about vicarious liability?

—

Vicarious liability and the 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.

E is vicariously liable for D’s negligence.

—

Vicarious liability and the doctrine of contribution

Modern Approach

Apportionment based on comparative fault.

Fritts v. McKanne

McCarty v. Pheasant Run, Inc.

“Unlocked Hotel Room Door”

and

Wassell v. Adams

“Opened Hotel Room Door”

Discussion Questions

Given the facts of these cases, what would a just outcome in each 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?

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

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Revised Makeup Class Plan

Wednesday, April 9 - Class starts at 9:10am

Wednesday, April 16 - Class starts at 9:10am

Makeup class on Thursday, April 24 (Flex Day) - 10:10am - 11:50am

NO makeup class on Thursday, April 17

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?

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

[fit] Apportionment based on factual cause

[fit] Don’t

[fit] forget about

[fit] factual cause!

Doctrine of Contribution

Modern Approach

Apportionment based on comparative fault.

McCarty v. Pheasant Run, Inc.

“Unlocked Hotel Room Door”

and

Wassell v. Adams

“Opened Hotel Room Door”

Discussion Questions

Given the facts of these cases, what would a just outcome in each 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

[fit] Hanks v. Powder Ridge Restaurant Corp.

“Snowtubing Waiver”

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

Tunkl factors

Business of a type generally thought suitable for public regulation.
Defendant performs a service of great importance to the public (often a matter of practical necessity for some members of the public)
Defendant willing to perform this service for any member of the public
Defendant has bargaining advantage
Standardized adhesion contract of exculpation
Plaintiff placed under the control of the defendant, subject to the risk of carelessness by the seller or his agents.

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

“The Flopper”

[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

—

Knight v. Jewett

“Touch Football Injuries”

—

Explicit assumption of risk

Implicit assumption of risk

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

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Midterm Exam Review

Question 1

You are an appellate court judge in the state of Loyola. The defendant, Oopsie Pies Bakery, is appealing from a judgment for the plaintiff, Ashley Giles, following a jury trial. The only issue on appeal is whether the punitive damages award violates the Due Process Clause of the Fourteenth Amendment to U.S. Constitution.

An employee of Oopsie Pies bakery was carrying a tub of frosting through the bakery from the front door to the kitchen where the baking is done. The employee mishandled the tub of frosting, accidentally letting the frosting spill out over the floor in an area where customers line up to place their orders. Having noticed the spill but needing to get pies in the oven, the employee waited to clean up the mess until she was done with her baking tasks.

In the meantime, Ashley Giles, an elderly customer, entered the store, slipped on the spilled frosting, fell, and fractured her skull. According to expert witness testimony from Giles’s doctor, Giles lost consciousness immediately upon impact and was left in a permanent comatose condition from which she will never recover.

At trial, it was revealed that Giles is not the first customer who has been harmed by Oopsie Pies. After a snowstorm two years ago, Oopsie Pies did not shovel the sidewalk in front of the store. A customer slipped on the icy sidewalk and broke her hip. Last year, Oopsie Pies underbaked a dozen cheesecakes, resulting in nine people having to go to the hospital for food poisoning. None of these injured patrons have sued the bakery. Oopsie Pies has been fined by the board of health on three separate occasions in amounts totaling $1,500 for improper food storage, cross-contamination, and poor personal hygiene. If a health inspector had inspected the restaurant at the time of the accident, Oopsie Pies could have been fined another $1,000 for the offense of having food on the floor.

A jury found Oopsie Pies Bakery negligent and awarded Giles $2,000,000 in compensatory damages and $10,000,000 in punitive damages. The defendant now appeals the punitive damages award.

Write the opinion of the appellate court.

Question 2

You are a junior attorney at a law firm representing YumYum Donuts, a donut franchise that is being sued for negligence by Brendan Patterson, a customer who suffered serious physical injuries during an armed robbery at a YumYum Donuts location.

Patterson was the only customer at YumYum Donuts when a masked robber brandishing a handgun entered the store and demanded that Patterson and the two store employees put their hands in the air. The robber put the gun to Patterson’s head and told him to hand over his wallet. Patterson complied. The robber then demanded that the cashier open the cash register and give him all of the money. The cashier did not do so. Instead, she said, “Oh, I don’t know how this cash register works. I need to call my manager and ask her how to open it. Just let me call her on my cellphone and let her know there’s a robbery, and then she can tell me how to open the register for you.” The robber became extremely agitated, struck Patterson in the face with the butt of the handgun, breaking Patterson’s nose, and told the cashier that he would shoot Patterson if the cashier did not “quit playing games” and open the cash register immediately. Patterson, who believed that he was going to die because of the cashier’s actions, screamed at the cashier to open the drawer and give the money to the robber, at which point the cashier complied and opened the cash register drawer. The robber took the money and fled. YumYum Donuts was unaware at that time of any prior similar crimes or any crimes at this donut shop.

The plaintiff’s complaint alleges that the cashier breached a duty to the plaintiff because she did not comply promptly with the robber’s demands.

A partner at your firm has asked you to develop a legal argument for your client.

From: Process, Drew Drew.Process@deweycheatemhowe.com Sent: Monday, March 4, 2025 10:49 PM To: You Subject: Need your big brain on that donut case

Hey,

YumYum Donuts wants this case gone yesterday. Very bad publicity if this drags on, no time for arguments in front of a jury on this one. Can we get this case dismissed ASAP because YumYum didn’t owe the plaintiff a duty of care? What have you got?

Because we have other attorneys analyzing issues of contributory and comparative negligence, assumption of risk, factual causation, and proximate cause, don’t address those issues. Also, I know you studied vicarious liability in law school, but in case you forgot, YumYum Donuts can be held liable for the tortious conduct of its employees. So if the cashier was negligent, YumYum is liable. Donut screw this up!

Best,

Drew

Question 3

You are a trial court judge in the State of Loyola overseeing a negligence lawsuit. Your job is to issue a ruling on a defendant’s motion for summary judgment and a plaintiff’s motion for summary judgment.

Known for its beautiful sunset views, Mount Cardozo is a popular tourist destination within the state of Loyola. Located at the base of the mountain, the Overlook Hotel promises its guests unbeatable sightseeing and photo opportunities, guaranteeing every guest a room with a balcony and a view. One night at sunset, a hotel guest, Sofia Hernandez, stepped out onto her hotel room’s fourth-floor balcony to take a photograph of the sunset over Mount Cardozo. Leaning over the balcony to get a better angle for her photograph, Hernandez fell over the edge of the balcony, landed on the sidewalk below, and suffered serious personal injuries.

Hernandez sued the Overlook Hotel for negligence. The discovery process has revealed the following information.

The local building code requires hotel balcony railings that are at least 30 inches above the ground to be at least 36 inches high and to be able to withstand a force of 200 pounds in any direction. The hotel’s railing design meets these code specifications exactly. The railings are 36 inches high and have been tested to be able to withstand a force of 200 pounds in any direction. The building code also requires gaps between railing balusters (upright vertical supports) to be small enough to prevent a 4-inch sphere from passing through. The hotel’s railing design does not meet these code specifications. The balusters are far enough apart that a 5inch sphere can pass through. There was no warning sign on the railing cautioning guests about the risk of falling over the edge.

The plaintiff’s expert witness, an experienced architect familiar with hotels across the state, testified that some hotels in high-rise or scenic areas install railings at least 42 inches high and use sturdier materials, due to the increased likelihood of guests piling onto the balcony and leaning out to get better views or to take photos. The expert witness estimated that 25% of the hotels in scenic areas took these precautions and that 25% of hotels with balconies included warning stickers on the railings that said, “Do not leave children unattended near balcony. Do not climb on balcony. Severe risk of bodily injury.”

Both parties agree that the hotel had the legal duty to exercise reasonable care to protect Hernandez against both known dangers and those that would be revealed by inspection. The only legal issue in dispute is whether the defendant breached their duty of care to the plaintiff.

The defendant has filed a motion for summary judgment, contending that the hotel is not negligent as a matter of law. The plaintiff has also filed a motion for summary judgment, contending that the hotel is negligent as a matter of law.

How do you rule on these motions? Be sure to explain the legal reasoning behind your rulings. Because both motions address the same legal issue, you should feel free to write one ruling that addresses the merits of both motions rather than write two separate rulings that include duplicative analysis of the same issues.

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

Assumption of Risk

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

Revised Makeup Class Plan

Wednesday, April 9 - Class starts at 9:10am

Wednesday, April 16 - Class starts at 9:10am

Makeup class on Thursday, April 24 (Flex Day) - 10:10am - 11:50am

NO makeup class on Thursday, April 17

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?

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

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 liable 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.

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?

—

Vicarious liability and the 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.

E is vicariously liable for D’s negligence.

Vicarious liability and the 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. E is vicariously liable for D’s negligence. So E owes $30k.

Fritts v. McKanne

McCarty v. Pheasant Run, Inc.

“Unlocked Hotel Room Door”

and

Wassell v. Adams

“Opened Hotel Room Door”

Discussion Questions

Given the facts of these cases, what would a just outcome in each 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

[fit] Hanks v. Powder Ridge Restaurant Corp.

“Snowtubing Waiver”

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

Tunkl factors

Business of a type generally thought suitable for public regulation.
Defendant performs a service of great importance to the public (often a matter of practical necessity for some members of the public)
Defendant willing to perform this service for any member of the public
Defendant has bargaining advantage
Standardized adhesion contract of exculpation
Plaintiff placed under the control of the defendant, subject to the risk of carelessness by the seller or his agents.

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

“The Flopper”

volenti non fit injuria

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

Cardozo’s counter-examples

“Obscure and unobserved” dangers
Too many accidents

—

Knight v. Jewett

“Touch Football Injuries”

—

Explicit assumption of risk

Implicit assumption of risk

Causation

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

NIED

&

Causation

Portee v. Jaffee

Court’s framing of question before it:

“one formulation of the issue before us is whether it was foreseeable that the mother would be observing the death of her young child”

“more directly stated, we must determine whether defendants owed a duty to the plaintiff that was violated when her child became trapped in the elevator”

“Bystander liability”

(1) the death or serious physical injury of another caused by defendant’s negligence;

(2) a marital or intimate, familial relationship between plaintiff and the injured person;

(3) observation of the death or injury at the scene of the accident; and

(4) resulting severe emotional distress

Gammon v. Osteopathic Hospital of Maine

Traditional Requirements for Allowing Recovery for an NIED Claim (in Maine)

physical impact
objective manifestation
underlying or accompanying tort
special circumstances

Different jurisdictions’ approaches to NIED

“Impact” Rule

“Zone of Danger”

“Bystander Liability”

Special, specified circumstances

Underlying tort law principles

Causation

Two parts:

Factual cause
Proximate cause

Factual causation is usually straightforward

Adams v. Bullock: “The Swinging Wire and Electric Trolley”

Martin v. Herzog: “The Buggy Without Lights”

Byrne v. Boadle: “The Falling Flour Barrel”

Reynolds v. Hicks: “Underage Drinking and Driving”

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

Multiple Defendants

What about multiple possible causes?

Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.

“Multiple Fires Whodunnit”

Necessary and Sufficient Conditions

Necessary condition:

Result happens ONLY IF condition exists.

Put another way:

IF NOT condition, then NO result.

Sufficient condition:

IF condition exists, then result happens.

Two different tests for factual causation

“But for”
Substantial factor

!(images/same_pic.jpeg)

California Jury Instructions

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

Summers v. Tice

“Hunting Party Whodunnit”

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~~

Garcia v. Joseph Vince Co.

“Fencing Sabre Whodunnit”

Causation

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

What about multiple possible causes?

Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.

“Multiple Fires Whodunnit”

Necessary and Sufficient Conditions

Necessary condition:

Result happens ONLY IF condition exists.

Put another way:

IF NOT condition, then NO result.

Sufficient condition:

IF condition exists, then result happens.

Two different tests for factual causation

“But for”
Substantial factor

!(/Users/colindoyle/Documents/Loyola/Torts/2024_2025/slides/images/same_pic.jpeg)

California Jury Instructions

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

Summers v. Tice

“Hunting Party Whodunnit”

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~~

Garcia v. Joseph Vince Co.

“Fencing Sabre Whodunnit”

Exercise: Hotel Room Whodunnit

How do you rule on defendant’s motion for summary judgment?

Sindell v. Abbott Laboratories

“Toxic Harms”

—

Possible alternatives for factual causation

Concert liability
Alternative liability
Enterprise liability
Market share liability

—

Toxic Harms

Why is the tort system such a poor fit?

Three frequent problems:

Identification of the cause: Can’t be certain that the toxin was a “but for” cause
Boundaries of the harm: Can’t be certain of the extent of the harm
Source of the cause: Can’t be certain who in particular is responsible

Mass Torts

A procedural story in two parts:

The Supreme Court killed the mass tort class action
Multidistrict litigation (MDL) took over

Factual Cause Exercises

Exercise 1

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

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

Compensatory Damages

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Remedies

The consequences of liability.

Remedies include:

Compensatory damages
Punitive damages
Nominal damages and declaratory judgment
Equitable relief

[fit] Compensatory

[fit] Damages

and punitive damages

Compensatory Damages

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

Two distinct, independent legal questions:

Liability
Damages

Single judgment rule

Seffert v. Los Angeles Transit Lines

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

McDougald v. Garber

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

Pain and suffering

Loss of enjoyment

Jury Exercise

You are a jury, determining damages in the following case.

The giant donut at Randy’s Donuts fell down, crushing the plaintif, Cindy Estrada. You have already determined that the proprieters of Randy’s Donuts are liable for negligence and have calculated compensatory damages for expenses that Estrada has already incurred. But your role as factfinder is not over:

You must now determine the plaintiff’s compensatory damages for future economic loss and pain and suffering.

Contributory Negligence

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Vicarious Liability

Miller v. Reiman-Wuerth Co.

“The Bank Errand”

—

Christensen v. Swenson

“The Lunch Break”

—

Three criteria

Employee’s conduct must be of the general kind the employee is hired to perform.
Employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment.
Employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.

—

Kuehn v. Inter-city Freight

“Road Rage”

—

Sage Club v. Hunt

“The Violent Bartender”

Exercise: Causation and Vicarious Liability

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.

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

Cooper putting out the trashcans was an intervening cause of Boyd’s injuries.
Even if Cooper’s actions were not an intervening cause, Greene still did not proximately cause Boyd’s injuries.

ACME seeks to dismiss the negligence case against it for two reasons:

ACME is not liable for Greene’s tortious acts because she was acting outside the scope of her employment.
ACME is not liable because asking Greene to pick up a birthday cake was not a factual cause of Boyd’s injuries.

Factual Cause

Stubbs v. City of Rochester: “Sewage in the Drinking Water”

Zuchowicz v. United States: “Prescribed Drug Overdose”

Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.: “Multiple Fires Whodunnit”

Summers v. Tice: “Hunting Party Whodunnit”

Garcia v. Joseph Vince Co.: “Fencing Sabre Whodunnit”

Sindell v. Abbott Laboratories: “Toxic Harms”

—

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

—

Proximate Cause

In re Polemis: “The Plank that Made a Ship Explode”

Wagner v. International Railway Co.: “The Injured Rescuer”

Benn v. Thomas: “The Time-Delayed Heart Attack”

Steinhauser v. Hertz Corp.: “Sudden Schizophrenia”

Gibson v. Garcia: “The Rotten Telephone Pole that Fell on the Car”

Berry v. Borough of Sugar Notch: “The Rotten Tree that Fell on the Speeding Car”

Palsgraf v. Long Island Railway Co.: “Fireworks on the Train Platform”

—

Vicarious Liability

Miller v. Reiman-Wuerth Co.: “The Bank Errand”

Christensen v. Swenson: “The Lunch Break”

Kuehn v. Inter-city Freight: “Road Rage”

Sage Club v. Hunt: “The Violent Bartender”

—

Three criteria for scope of employment

Employee’s conduct must be of the general kind the employee is hired to perform.
Employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment.
Employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.

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

“Blocking a Road with a Pole”

and

Davies v. Mann

“The Donkey on the Road”

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

Li v. Yellow Cab Company

“Car Accident Comparative Negligence”

—

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)

Can the negligent plaintiff recover damages?

That’s not

a flowchart!

It’s cool

Can the negligent plaintiff recover damages?

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 “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 “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 “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 “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 “not as great as” 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 - 40%, B - 30%, C - 10%, D - 20%

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

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

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 liable 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.

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?

—

Vicarious liability and the 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.

E is vicariously liable for D’s negligence.

—

Vicarious liability and the 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. E is vicariously liable for D’s negligence. So E owes $30k.

Fritts v. McKanne

McCarty v. Pheasant Run, Inc.

“Unlocked Hotel Room Door”

and

Wassell v. Adams

“Opened Hotel Room Door”

Discussion Questions

Given the facts of these cases, what would a just outcome in each 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?

Course Overview

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Recap

Before you begin your law school assignments:

Connect with your purpose.
Discern your immediate goal.

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. (Strict liability doesn’t apply for automobile accidents.)
Analogy to products liability falls apart. (Not the same kind of power imbalance / control as products manufacturers.)
Supreme Court reasoning in analogous case applies here. (Slippery slope, domain of the legislature)

Vosburg v. Putney

Internal logic and mechanics of a case

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

Exam question

Course overview

What is torts?

Scope of tort law

What is tort law all about?

Some of Tort Law’s Concerns

Corrective justice: determining liability based on the wrongfulness of the defendant’s actions within this particular case
Efficiency: determining liability based on what will promote overall societal welfare (balancing costs and benefits)
Power: determining liability based upon who is best positioned to prevent harm

Course roadmap

On the course website under Course Content

I. Introduction

What are we here to learn? How can we do that well?

II. Remedies

What are the stakes? What do I get when I win? What do I lose when I lose?

A. Compensatory Damages

Making the plaintiff whole

B. Punitive Damages

Punishing the wrongdoer

III. Negligence

Tort law’s major contribution

A. The Fault Standard

When should someone be held liable for unintentional harm?

B. The Existence of a Legal Duty

No legal duty, no liability

C. Special Circumstances

Medical malpractice
Purely emotional harm

D. Causation

The link between the defendant’s actions and the plaintiff’s harm

Factual cause
Proximate cause
Joint and several liability

D. Defenses

Even when your client is negligent, here’s how you can still win…

Contributory and comparative negligence
Assumption of risk

IV. Strict Liability

Liability without fault

A. Traditional view

If you play with dynamite, you pay damages

B. Products liability

V. Intentional Torts

A. Intent

B. Types of Intentional Tort

C. Defenses

VI. Alternatives to Tort

Insurance
Workers compensation
No-fault and beyond

Customs & Statutes

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Negligence as a Cause of Action

Plaintiff must prove four elements:

Duty
Breach
Causation
Harm

Proving 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.

Ways to determine reasonable care under the circumstances include:

- Foreseeability

- The Reasonable Person

- Custom

- Statute

Special Considerations

- Judge and jury relationship

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

The T.J. Hooper

“Tugboats and Radios”

Martin v. Herzog

“The Buggy Without Lights”

Legal jargon

Prima facie case of negligence

Negligence per se

- Actor violates a statute that is designed to protect against this type of accident and harm

AND

- the accident victim is within the class of persons the statute is designed to protect.

Tedla v. Ellman

“Walking on the Side of the Highway”

How to use customs and 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

Outlining example

Under the topic of using statutes to establish reasonable care:

— Did the defendant violate a statute?

—– Was statute intended to prevent this kind of harm?

—– To this class of people?

—– BUT consider:

——– Absurd results?

——– Really about safety?

——– Exceptions or unusual circumstances?

Short exercise

Write the dissent in Tedla v. Ellman.

Explain why Martin v. Herzog controls and therefore plaintiffs were negligent as a matter of law.

Customs & Statutes

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Ways to determine reasonable care under the circumstances include:

- Foreseeability

- The Reasonable Person

- Custom

- Statute

Special Considerations

- Judge and jury relationship

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.

How to use customs and 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

Negligence per se

- Actor violates a statute that is designed to protect against this type of accident and harm

AND

- the accident victim is within the class of persons the statute is designed to protect.

The T.J. Hooper

Martin v. Herzog

Tedla v. Ellman

Rushink v. Gerstheimer

“Leaving Keys in the Ignition”

In recommending the enactment of section 1210, the Joint Legislative Committee on Motor Vehicle Problems stated that the proposed law was:

“designed to obviate the risk of a vehicle moving from the place where it was left parked and possibly injuring the person and property of others as well as itself being damaged. It serves to lessen the likelihood of theft”

Trimarco v. Klein

“Broken Shower Door”

Robinson v. District of Columbia

“Jaywalking”

Exercise: May v. Wrecking Crew Co.

You are a Supreme Court Justice in the State of Loyola Supreme Court, hearing a case on appeal. Your small group represents the entire Loyola Supreme Court.

The only issue on appeal to this court is whether the trial court correctly found that one of the defendants, Wrecking Crew Co., was negligent as matter of law for violating a statute.

How do you rule? You are welcome to have majority opinions, concurring opinons, and dissenting opinions.

Damages Outline

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Cases

Seffert

McDougald

BMW

State Farm

Mathias

Damages Generally

(Condensed notes on some general principles)

Legal Issues

*ONLY IF the defendant is found liable***

I. Compensatory damages

Economic damages

Non-economic damages

Is loss of enjoyment separate from pain and suffering?

Does loss of enjoyment require consciousness?

Were the damages excessive?

Rule:

“shocks the conscience”

Analysis:

Concern is passion and prejudice whim caprice

Bias

Concerns about per diem rates and numbers going to the jury, how is a damages award calculated and divided up

Concern about confusing the jury

Punitive Damages

ONLY IF punitive damages available

Look to the law in jurisdiciton, common requirement “willful, wanton”

Question/Issue: Due process violation - excessive damages

Rule:

BMW v. Gore:

Reprehensibility

Analysis:

Economic vs. physical harm (bmw.statefarm vs. mathias)

Intra-state punishment

Can be used for reprehensability but not for damages amount

Punishment for other actors
Ratio - single-digit ratio (state farm)

Analysis:
Comparison to civil and criminal penalties

Analysis:

Analysis:

Posnerian Econ

Repeated conduct or could only happen once

Dignitary harm?

Evading review

Duties of Landowners & Occupiers

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What have we learned about duty so far?

Duties of Landowners & Occupiers

Carter v. Kinney

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

Exercise 1:

Letter from Colleague

Exercise 2:

Optometrist Duty to 3rd Parties

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

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

Duty to Third Parties

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Midterm

A duty to

exercise reasonable care

Harper v. Herman

“The Boat Owner in Shallow Water”

Farwell v. Keaton

“The Fatal Pickup Attempt”

Union Pacific Railway v. Cappier

“The Railroad that Ran Over a Man and Let Him Die”

Maldonado v. Southern Pacific Transp. Co.

“Another Railroad that Ran Someone Over”

[fit] Tarasoff v. Regents of the University of California

“The Psychiatrist Who Didn’t Warn the Murder Victim”

[fit] Randi W. v. Muroc Joint Unified School District

“The Alleged Sexual Predator’s Recommenders”

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

Economic Theory of Negligence

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Exercise

You are a Supreme Court Justice in the State of Loyola Supreme Court, hearing a case on appeal. Your small group represents the entire Loyola Supreme Court.

How do you rule? You are welcome to have majority opinions, concurring opinons, and dissenting opinions.

United States v. Carroll Towing Co.

A workable formula for reasonable care?

BPL

B = Burden of precautionary measures

P = Probability of loss/harm

L = Magnitude of loss/harm

IF B < PL

AND defendant did not take on B

THEN defendant was negligent

IF B > PL

AND defendant did not take on B

THEN defendant was NOT negligent

BPL Example

Robot food delivery company with a 50% chance of causing $200k in damage to a pedestrian each year. (P * L = $100k). Reducing robots speed is available as a possible precaution. Would reduce 100% of the harm to the pedestrian at cost of $200k to to the company. The company does not reduce the speed of its robots. Was the company negligent?

Defendant’s Precaution	Cost of Precaution	Expected Cost to Plaintiff	Total Cost to Society
No Precaution	$0	$100k	$100k
Reduced speed	$200k	$0	$200k

BPL Example

Same facts as before. But now additional sensors for the robot is available as a possible precaution. Would reduce 50% of the harm to plaintiff at cost of $30k to the company. The company takes no precautions. Was the company negligent?

Defendant’s Precaution	Cost of Precaution	Expected Cost to Plaintiff	Total Cost to Society
No Precaution	$0	$100k	$100k
Reduced speed	$200k	$0	$200k
Added sensors	$30k	$50k	$80k

Economic Theory of Negligence

- Fault = economic inefficiency

- Embodies a trust in private ordering and economic incentives

- Driven by a goal of maximizing overall economic welfare

Critiques of Economic Theory

- Incommeasurability of harms

- Uncertainty of cost calculations

Negligence as a Cause of Action

Plaintiff must prove four elements:

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

Negligence as a Cause of Action

Plaintiff must prove four elements:

Duty
Breach
Causation
Harm

Prima facie case of negligence

On its face, plaintiff has met the burden of proving duty, breach, causation, and harm.

Doesn’t mean plaintiff wins! Just means that a jury could find for the plaintiff.

Negligence as a Concept

Relates to the elements of duty and breach

The “fault” principle

Defined as a failure to exercise “reasonable care”

Ways to determine reasonable care under the circumstances include:

- ??????????

Special Considerations

- ??????????

Ways to determine reasonable care under the circumstances include:

- Foreseeability

- The Reasonable Person

- Custom

- Statute

- Cost-Benefit Analysis (Hand Formula: B < P*L)

Special Considerations

- Judge and jury relationship

Foreseeability

Foreseeability is a flexible concept.

Define any event in general enough terms and it is foreseeable.

Define any event in narrow enough terms and it is unforeseeable.

Reasonable Person Standard

An objective standard designed to clarify what reasonable care requires.

Exceptions to objective standard:

- Physical disability

- Children

- Expertise

Not exceptions to objective standard

- Mental disability

- Children engaged in adult activity

- Old age & infirmity

How to use customs and 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

Negligence per se

- Actor violates a statute that is designed to protect against this type of accident and harm

AND

- the accident victim is within the class of persons the statute is designed to protect.

Economic theory of negligence

Hand Formula

B = Burden of precautionary measures

P = Probability of loss/harm

L = Magnitude of loss/harm

IF B < PL

AND defendant did not take on B

THEN defendant was negligent

IF B > PL

AND defendant did not take on B

THEN defendant was NOT negligent

Noriega v. Loyola State Fair

Assignment: Deliver a memo detailing potential theories of negligence that could be argued in this case. For each argument, you should include:

What constituted reasonable care under the circumstances, and why, and how the defendant failed to exercise that duty of reasonable care
What the defense’s best counterarguments would be
In your estimation, how strong of a theory of negligence this is

How to Read a Case

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Hard copies of Reading Assignments 01 are available at the front of the room. Please pick up a copy.

In-Class Exercise

The Questions

Why should this defendant be held liable or not held liable?

What remedy does the defendant owe Ms. Hammontree?

What would you like to know that wasn’t in the fact pattern? Why?

The Driver

Why should this defendant be held liable or not held liable?

What remedy does the defendant owe Ms. Hammontree?

What would you like to know that wasn’t in the fact pattern? Why?

The Doctor

Why should this defendant be held liable or not held liable?

What remedy does the defendant owe Ms. Hammontree?

What would you like to know that wasn’t in the fact pattern? Why?

The Car Manufacturer

Why should this defendant be held liable or not held liable?

What remedy does the defendant owe Ms. Hammontree?

What would you like to know that wasn’t in the fact pattern? Why?

Today’s Agenda

Hammontree v. Jenner

ENORMOUS DISCLAIMER!

Before you begin:

Connect with your purpose.
Discern your immediate goal.

Why take this preliminary step?

Connecting to a purpose 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.

Purpose connects our daily work with our deepest values.

Goals determine what we pay attention to.

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

Holding

Three lines of reasoning

Precedent binds us.
Analogy to products liability falls apart.
Analogous authority also binds us.

Insurance

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In Ploof v. Putnam, had the boat owner been able to stay tied to the dock, would the boat owner have had to pay damages for harm caused to the dock?

The rule from Vincent v. Lake Erie seems to indicate “Yes,” but the court in Ploof says “No.” How can we reconcile these cases?

Alternatives to Tort Law

Insurance

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

Why are we learning this?

—

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.

How do laws that are not tort law teach us about tort law?

They remove issues from tort law
They influence how tort cases are litigated
They affect the substantive doctrine of tort law
They help us understand tort law as a comparison

First party insurance

versus

Third party (liability) 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. What potential problems arise?

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:

Defendant negligently burns down plaintiff’s home. Plaintiff is insured.

But it gets complicated with:

Personal injury
Settlement

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

Hypos on Impact of Insurance

First party insurance for dock owner in

Vincent v. Lake Erie Transport Co.

Liability insurance for recommendation writers in

Randi W. v. Muroc Joint Unified School District

Pavia v. State Farm

“Insurance Bad Faith”

Intentional Torts

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

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 Five-Year-Old Who Pulled the Chair Out from Under Her”

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.

—

Alcorn v. Mitchell

“The Angry Spitter”

—

Picard v. Barry Pontiac-Buick, Inc.

“The Camera Toucher”

Battery

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.

Assault

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.

Wishnatsky v. Huey

“The Offended Interrupter”

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 severe emotional distress

Intentional Torts

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

No class on Friday

Office Hours

Today from 12pm to 1pm

Classes next week

Monday - 8:00am - 9:40am - Insurance

Tuesday - 10:10am - 11:50am - Workers’ Compensation

Wednesday - 8:00am - 9:40am - No Fault and Beyond

Thursday - 10:10am - 11:50am - No Fault and Beyond / Review

Office hours next week

Wednesday - 12:00pm - 1:00pm

Thursday - 12:00pm - ???

Structure

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.

—

Battery

Abridged Definition from Restatement (Second) of Torts

Assault

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.

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 severe emotional distress

False Imprisonment

Lopez v. Winchell’s Donut House

“The Accused Employee Who Freely Left”

False Imprisonment

Interest Protected: Freedom from confinement

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

Intentional Infliction of Emotional Distress

Womach v. Eldridge

“The Distressing Accusation of Molestation”

Intentional Infliction of Emotional Distress

Interest Protected: Freedom from severe emotional distress

Second Restatement Definition

“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.”

Snyder v. Phelps

“Protesting Soldiers’ Funerals”

Defenses

Consent

Self Defense

Defense of Property

Necessity

Hart v. Geysel

“Consenting to a Prize Fight”

Hackbart v. Cincinnati Bengals

“Professional Football Injury”

O’Brien v. Cunard

“The Silent Vaccine Objector”

—

Self Help Defenses

Self Defense

Defense of Property

Necessity

—

Self defense

Courvoisier v. Raymond

“Mistaken Self-Defense”

—

Defense of property

Katko v. Briney

“The Spring-Gun Boobytrap”

—

Necessity

Ploof v. Putnam

“The Private Island in a Storm”

Vincent v. Lake Erie Transportation Company

“The Boat Slamming Against the Dock”

—

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.

Judge & Jury

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

Bethel v. New York City Transit Authority

The standard of the highest degree of care

versus

the standard of reasonable care

Readings

Sex and Gender: The Reasonable Woman?

The Right to Live in the World: The Disabled in the Law of Torts

Roles of Judge & Jury

Negligence as a Cause of Action

Plaintiff must prove four elements:

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

Negligence as a Cause of Action

Plaintiff must prove four elements:

Duty
Breach
Causation
Harm

Reasonable care

Ways to determine reasonable care under the circumstances include:

- Foreseeability

- The Reasonable Person

The Reasonable Person Standard

Objective standard

Exceptions to objective standard: - Physical disability - Children - Expertise

Not exceptions to objective standard - Mental disability - Children engaged in adult activity - Old age & infirmity

Baltimore & Ohio Railroad Co. v. Goodman

and

Pokora v. Wabash Railway Co.

and

Akins v. Glen Falls

Medical Malpractice

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

Typical Negligence Case

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

Medical Malpractice Case

![inline](images/Medical Malpractice.jpeg)

Sheeley v. Memorial Hospital

Geography

&

Experience

In medical malpractice, the ultimate question is still:

Reasonable Care

Neil brought candy for everyone!

Available at the table in the front of the classroom

Matthies v. Mostromonaco

Cause of action could stem from either:

Battery

Negligence

California Rule

![inline](images/CA Informed consent.jpeg)

Reasonable doctor
Reasonable patient

Midterm Review

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

You should be worried.

The Exam Itself

When you say “write a memo” in the question, do you want an actual memo, or can we use a block form IRAC with issue, rule, and analysis listed separately?

Should we write back the jurisdictional rules you give us in the fact pattern in our rule paragraphs (ex. in this jurisdiction, for there to be x, etc.)?

How would you like us to use the restatements in our responses? For instance in contracts we will paraphrase and extract the rule. Would you say to use the same application for torts?

Would you prefer we cite to cases in our answer when articulating a rule?

If we struggle to remember case names because there’s so many, so if we want to refer to them in our analysis, can we just refer to them with an indicator that we remember?

If we have to write on res ipsa on the exam, do you want us to mention it as res ipsa loquitor first and thereafter as res ipsa?

Are there other jurisdictional differences we should know besides common carriers and res ipsa?

Would a statute on the exam tell us if punitive damage awards are available?

Why is it important to understand our role if we are an Appellate court, trial court, or Supreme Court judge? How is the procedural posture going to shape our answer on the exam?

Can you explain the argument about credibility of witnesses (the children who claimed they did not do anything) in the Res Ipsa Loquitor hypothetical an how you would frame the argument?

Some of the cases have contradictory holdings. How do we use them on the exam? Do we use the one that is the latest holding, or can we use either to support our arguments? Basically which is the “law” to follow.

Should we bring up dissent opinions if they fit within our argument on the exam? For example, for compensatory damages, the courts were split regarding whether consciousness should be required for loss of enjoyment and whether loss of enjoyment is a separate category from pain and suffering. Or should we only stick to the rules held by the majority?

If we’re given one side to argue, should we bring in counterarguments? Or is it not necessary?

How do we incorporate libertarianism and utilitarianism schools of thought into our analyses?

Damages

Two separate legal inquiries:

Liability
Damages

[fit] Compensatory

[fit] Damages

and punitive damages

Compensatory Damages

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

Questions

Does a jury always decide damages? Will we have to calculate damages for this exam?

With the McDougald v Garber case you were discussing deterrence and its relation to compensation and limits, but I don’t understand the relationship between the three concepts.

Punitive Damages

BMW v. Gore Guideposts

Degree of reprehensibility
Ratio of punitive damages to harm inflicted on plaintiff
Comparison with civil or criminal penalties

State Farm Excess of single digit ratio is presumptively unconstitutional

—

Questions

When discussing punitive damages, we spoke about notice. What exactly does this mean? Are punitive damages only appropriate where a defendant was given prior warning to his conduct? Is it true that there has to be fair notice for tort liability? Or is this just a policy consideration since fair notice is considered in criminal laws?

For evaluating excessive punitive damages, under the degree of reprehensibility, one of the factors to consider is punishment for other actors. I was unable to find this specific terminology in the punitive damages cases. Is this connected to the State Farm case regarding intra-state punishment (only using out-of-state actions by the actor for determining reprehensibility but not for damages)?

With the three guideposts (from BMW) being only “standard like”/just considerations, why then is there a concern about encroaching on states’ rights?

Negligence

Negligence as a Cause of Action

Plaintiff must prove four elements:

Duty
Breach
Causation
Harm

Negligence as a Concept

Relates to the elements of duty and breach

The “fault” principle

Defined as a failure to exercise “reasonable care”

Proving negligence

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

Questions

To clarify, “negligent” does not mean “liable”? When we are analyzing breach - is the outcome just that the defendant has not exercised reasonable care or are we suggesting liability? Just want to confirm as I believe liability is not confirmed until we go through all the elements (including causation and harm).

If the plaintiff was negligent (per se or prima facie) does that entirely negate their negligence claim against the defendant? Or is it just something that it part of the larger facts to be assessed?

Is a prima facie case of negligence simply one where the 4 elements have to be proven to prove there is negligence?

If we make out a prima facie case of negligence (so all 4 elements met), does this mean it always goes to a jury to be ruled on liability and damages?

If we find that a defendant was negligent based on duty and breach, how would we conclude? “Thus, the defendant is negligent as a concept”?

On an exam if we are asked “was the defendant negligent as a concept?” Which only refers to duty and breach, would we first determine duty and then breach? Or would it be breach first then duty?

If negligence is found as a concept only but not as a matter of law, does that mean case dismissed?

Can we go over a bit more on how to frame our answers? Particularly for different ways to prove reasonable care.

—

How does a plaintiff normally prove duty and breach?

D was legally obligated to do X.

D failed to do X.

Therefore, D breached their legal duty.

—

Detailed version

D had a duty (to the plaintiff) to exercise reasonable care under the circumstances. Reasonable care under the circumstances was X, because of

- foreseeability,

- reasonable person standard,

- custom,

- statute,

- or hand formula.

D failed to do X.

Therefore D acted negligently / breached their legal duty to plaintiff.

—

Reasonable Person Standard

Objective standard

Exceptions to objective standard:

- Physical disability

- Children

- Expertise

Not exceptions to objective standard

- Mental disability

- Children engaged in adult activity

- Old age & infirmity

—

Questions

To clarify on Rst 3rd §§ 10 and 283, a child over 5 can be negligent?

The use of “reasonable” in both the general reasonable care under the circumstances duty and the Reasonable Person Standard has me a bit confused. As I understand it, reasonable care is the defined duty and the reasonable person standard is what you use to define a person’s actions to give life to whether they did or did not breach that duty.

On the midterm, if we are given a question that requires us to describe a “reasonable person” do we make up a story about what we think a reasonable person would do in that circumstance?

—

Foreseeability

Foreseeability is a flexible concept.

Define any event in general enough terms and it is foreseeable.

Define any event in narrow enough terms and it is unforeseeable.

How to use customs and 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

Negligence per se

- Actor violates a statute that is designed to protect against this type of accident and harm

AND

- the accident victim is within the class of persons the statute is designed to protect.

Questions

I know negligence per se is about the statutory violation, but does this automatically make negligence per se qualify as negligence as a matter of law as well?

Is there a true line between a statute that is a “safeguard to preserve life/limb” and a statute that is “organizing human behavior”? (re: Tedla)

In class, we discussed factors like: “Absurd results,” Whether the statute is “really about safety,” “Exceptions or unusual circumstances.” How should we use these as “red flags?” Like procedurally when would we view these as issues? Do these apply when determining the “class of persons” protected by a statute, or do they remain relevant even after establishing that an individual falls within that class?

In The T.J. Hooper, Hand explains that just because a custom is a certain way does not mean that one did not act reasonably under the circumstances. Is this case decided to provide a standard for society? One could just as easily say “yeah nobody else was putting up radios so it’s not reasonable under the circumstances to have expected that.”

Statutes are one way to help prove what reasonable care under the circumstances would be, but in the case we studied (w/ the shower door) the court did not allow them to bring in the statute as it was not applicable law. I thought I remember learning we can use statutes to help prove custom, but if the court did not allow it in this case, how should we use statutes to prove custom?

With Trimarco. while discussed under customs and statutes, it seems more about judge/jury dynamics. If I understand correctly, the issue was whether General Business Codes could be introduced as evidence to prove “custom,” and the appellate court ruled against it, fearing it would mislead the jury. How does this fit into the broader analysis?

Hand Formula (BPL)

B = Burden of precautionary measures

P = Probability of loss/harm

L = Magnitude of loss/harm

IF B < PL

AND defendant did not take on B

THEN defendant was negligent

IF B > PL

AND defendant did not take on B

THEN defendant was NOT negligent

Questions: Hand Formula

Can you also go over the hand formula again?

Can you explain why probability of loss/harm is difficult to determine?

Questions: Role of Judge & Jury

Can duty only be established by the judge?

Can breach only be a question for a jury?

Does Goodman or Pokora apply? Doesn’t Akins also counter Pokora since there’s no jury determination for standard of care like in Goodman? How/When do we apply these cases?

In Akins (the ballpark injury case), the appellate court overturned the trial court’s decision, which had held that reasonable care under the circumstances should be a jury question. The appellate dissent agreed with the trial court. Does this mean the appellate court can decide matters of law as they see fit? What justified the appellate court’s determination? There doesn’t seem to be a strict legal basis beyond their authority. Was it to prevent absurd results or based on policy considerations?

I feel that there are always arguments for why a case should go to a jury or why something should be decided as a matter of law. How do we reconcile that? Is it like what you said, “come to a conclusion and work backwards?”

Res ipsa requirements:

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

—

Questions: Res Ipsa

Can you please go over res ipsa again with an example, I’m confused on the first element?

Can you go over the difference between res ipsa and negligence per se?

What distinguishes St Francis and Nicollet Hotels?

How does Connolly apply to Res Ipsa? In reviewing this case – most of my brief and notes from class are doing just that: establishing what the defendant ought to have done to control its guests to protect pedestrians. I feel myself slipping away from Res Ipsa to instead establish a standard of care. When we start evaluating the facts to see if they indicate foreseeability/reasonable care, why are we not outside of Res Ipsa land?

Connolly v. Nicollet Hotel, would you be willing to run through the duty flow chart with this case?

Existence of Duty

—

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

If a set of facts indicates no action causing a risk of physical harm, we then assess whether an affirmative duty exception applies?

When doing the duty chart on an exam, if you answer yes to “If defendant created a risk of physical harm?” Would you also consider whether there would be an affirmative duty even if you answered yes, just in case? Or is it just a judgment call if it’s a grey area?

Do we have to go through all possibilities, for example if we answer “no” to the creation of risk question on the flow chart and go one way, should we also answer the “yes” and go the other? (making arguments for each side)

For duty, if we are determining it, and the action does create a risk of physical harm, can we just say like “Yes, this action creates a risk of physical harm” then determine it? Once we establish an affirmative duty, how do we assess a breach? Do we use the same framework—foreseeability, the reasonable person standard, custom, and statute—to determine what was reasonable under the circumstances?

I was reviewing the material on “Duty” and realized I’m a bit confused about what triggers the “created the risk of physical harm” factor in determining whether a defendant has a legal duty. I think I may be interpreting it too much like a but-for cause. For example, in a situation where the defendant failed to act—such as in your example from class on Friday, where the rock climbing instructor noticed the rope wasn’t tied correctly but did nothing—I initially thought this would create a legal duty because, had the instructor fixed the rope, the injury would not have occurred. From my understanding, this is not the correct way to analyze the “creation of the risk” factor. Could you clarify what type of action actually constitutes creating the risk?

How do you analyze a situation where one person owes mutually exclusive duties to two different people? In my head, I’m imagining a driver with a passenger and a pedestrian. Under some extreme situation, there is a scenario where the driver has to choose between injuring the passenger or the pedestrian. Whatever decision is made, for the duty that was breached, can you use the fact there was a mutually exclusive duty pulling in the opposite direction for the Reasonable Person Standard or would it be irrelevant since we’re interested in the relationship between the driver and the person who actually got hurt?

Joint venture- I have in my notes it can be both an undertaking and a special relationship, is it true?

Why was Harper not a special relationship through companionship on a social venture like Farwell?

For an undertaking analysis where we are meant to find whether there is a duty or not, do you use reasonable care to define whether a duty exists? I’m thinking about a situation where Person A helps Person B after B suffered a severe injury (say broken arm and leg). Person A comes over and puts B’s arm in a sling, but then just leaves them.

What is the distinction, if any, between the affirmative duty statute exception and negligence per se? Is a breach of an affirmative duty created by a statute considered negligence per se?

If a father and son are engaged in an adult activity (say hunting and the son is 8 years old), there would then be a joint venture duty under the special relationship exception?

Is this a correct understanding of joint venture? A group of hikers would have an obligation to each other. If Garvin injures himself, and Susie helps him, duty kicks in when she starts to help. If she stops helping to check on her cats on her home camera, she has breached that duty under undertaking. If John walks away and says “Good luck, Garv!”, he has breached that duty under special relationship via joint venture.

I have a question regarding the Savonia driving hypo. I’m having trouble understanding what actions we are supposed to analyze for the first step of the chart.

When evaluating whether a defendant’s actions created a risk of physical harm, what is a scenario in which an affirmative duty exception applies? (I am specifically confused on the hypothetical where Savonia is driving and accidentally hits someone because we analyzed affirmative duty exceptions, but I thought driving was considered an action that created a risk of physical harm. If that is the case wouldn’t Savonia have a legal duty regardless because she satisfied the first requirement of determining a legal duty?)

Could you please go over the difference between the initial creation of risk of harm and the non-negligent creation of risk of harm? I’ve been trying to work through the banana stand example. I see how the driver’s inaction doesn’t initially create a risk of harm (the harm already existed), but I’m confused about when the affirmative duty kicks in. Does she have that duty because she caused the initial risk by hitting the stand (albeit non-negligently)?

For Non-negligent injury, do we apply both the classic and modern rule, or just go off the modern rule?

Can you explain the difference between the non-negligent injury vs. non-negligent creation of risk?

Can you explain another example (besides the banana stand) of Non-Negligent Injury, and Non negligent creation of risk ? I am having trouble differing between both. Also do they both work together?

Is this a correct understanding of non-negligent creation of injury? Nailah’s brakes give out and drives into a cocoa tea stand knocking down all the cocoa tea, Kes walks by and slips on the spilled cocoa tea, injuring his hip. Nailah has a duty to mitigate further injury to Kes, but she’s on Instagram Live instead of calling for help.

Is this a correct understanding of non-negligent creation of risk? Nailah’s brakes give out and drives into a cocoa tea stand knocking down all the cocoa tea, Kes walks by and slips on the spilled cocoa tea, injuring his hip. Nailah had a duty to mop up the cocoa tea when she spilled it before Kes walked by, mitigatingthe pre-existing risk of Kes slipping and falling.

What is the common law understanding of special relationship? And why wouldn’t it apply to tarasoff

When thinking of whether (or not) there is an affirmative legal duty of a third party in the absence of a specific carveout of the affirmative duty exceptions, like in the hypothetical do we apply the Rowland factors as their own separate test/analysis? Do we apply Rowland on its own or do we consider Rowland with one of the other affirmative duties?

What’s the importance of the Rowland factors? Can you give more examples? Do the Rowland factors only apply to medical professionals and the duty they owe to third parties? Or can we always discuss them when harm befalls a 3rd party? If we had a question that is similar to Randi the predatory case, to find liability on the school, and if the rowland factors didn’t apply, could you argue special relationship (because it is a kid, and a teacher and the teachers as administrators have responsibility to take care of kids) ?

Can you give specific examples of how Rowland factors are used to determine a policy basis for courts to assign duty? How heavily do they weigh? (Like in the optometrist example)? Could we go over the optometrist example again? I am a little confused on it and want some clarity on specifying what the duty is - especially the action: is the duty to exercise reasonable care to warn the patient about driving?

Policy Basis for No Duty

Was there no duty in Reynolds for 3rd parties because its not fair to extend commercial host standards on social or hosts, or was there no duty because the statute was not meant to protect third parties?

When discussing courts finding no duty on policy grounds, we said “Courts properly do this, according to the Third Restatement, when they articulate ‘categorical, bright-line rules of law applicable to a general class of cases.’” How do we know if a matter is included in the “bright line rule”? I remember discussing crushing liability for private companies providing quasi-public functions. Are there any more we need to know?

When determining whether a consideration of public policy exists to impose a legal duty, how do we come up with that decision? Is that a matter of just coming up with it on our own? Because, with statutes, the law will determine whether you had a duty or not. So, what I’m trying to get at is, how do we know whether a public policy exists or not?

Duties of Landowners and Occupiers

—

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

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

—

Questions: Duty of Landowners and Occupiers

Should we use both traditional and modern when talking about duty to landowners/occupiers, or will you specify which to use in the test?

At what point does something switch from a Licensee to Invitee? Like if it’s a private party (invite only) but there’s a few hundred attendees, would that still count under social guest or would that veer into open to the general public?

For duty of landowners, if the trespasser is a child, is there always a duty of reasonable care?

Is the duty imposed on landowners and possessors a completely different flow chart than the creation of risk that we have talked about?

For duty of landowners, can you clarify what a “duty to not intentionally or wantonly injure” means for adult trespassers? Would this example be considered intentionally injuring a trespasser. (EX: landowner sets hidden traps on land with the intention to keep out unwanted visitors and animals; Adult trespasser accidentally steps onto the trap and gets seriously injured)

It’s clear that permission from the possessor can turn a trespasser into a licensee/invitee, but does revoking permission turn them into a trespasser? If so, how does that work?

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

Negligence

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

Negligence as a Cause of Action

Plaintiff must prove four elements:

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

Negligence as a Cause of Action

Plaintiff must prove four elements:

Duty
Breach
Causation
Harm

Negligence as a Concept

Relates to the elements of duty and breach

The “fault” principle

Defined as a failure to exercise “reasonable care”

Exercise: Opposite holdings

Develop arguments for the opposite holdings from the holdings you just read in Adams v. Bullock and Braun v. Buffalo.

For Adams, develop the strongest argument that the jury verdict should be upheld because the defendant did not exercise reasonable care.

For Braun, develop the strongest argument that the defendant was not negligent as a matter of law because the defendant did exercise reasonable care.

How do we understand risk?

Magnitude of harm
Likelihood of harm
Cost of precautions

The Reasonable Person Standard

An objective standard¹ designed to clarify what reasonable care requires

Justifications for an objective standard

Administrative feasibility
Consistent 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

The standard of the highest degree of care

versus

the standard of reasonable care

Readings

Sex and Gender: The Reasonable Woman?

The Right to Live in the World: The Disabled in the Law of Torts

with some exceptions ↩︎

No Duty to Rescue or Protect

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

In-Class Exercse for Res Ipsa Loquitur

You are deciding a case as an appellate court judge.

Organize your notes according to the CREAC method:

Conclusion
Rule
Explanation
Application
Conclusion

Proving Negligence

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

Existence of a Legal Duty

No Duty to Rescue or Protect

Harper v. Herman

“The Boat Owner in Shallow Water”

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, 1926 from uneasy dreams he found himself transformed in his bed into a gigantic insect (“cockroach”).

But why don’t good writers write like that?

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

Farwell v. Keaton

“The Fatal Pickup Attempt”

Union Pacific Railway v. Cappier

“The Railroad that Ran Over a Man and Let Him Die”

[fit] The modern rule for non-negligent creation of injury

Maldonado v. Southern Pacific Transp. Co. (Ariz. App. 1981)

Issue: Whether the railroad owed the plaintiff a duty to render aid after he was seriously injured by the train.

Court adopts rule from Restatement (Second) of Torts :

If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm.

No-Fault and Beyond

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

Schedule this week

Wednesday Class - 8:00am - 9:40am - No Fault and Beyond Office Hours - 12:00pm - 1:00pm

For a given aspect of tort law:

How does an alternative to tort fare at addressing a particular problem compared to tort law?
Should tort law adopt this policy or rule from an alternative to tort?
In crafting law that addresses personal injury and accidents, what should our values and goals be? What rules should we adopt?

Three Types of Policy Questions

Explicit (e.g., asking your thoughts on a proposed statutory scheme)
Common law development
Substantive tort law rules asks for court to make a policy determination

How to answer a policy question?

Pay attention to the task specified in the question
Know that doctrinal rules tell you what the law is, but your job is to argue for what the law should be
Policy questions are thorny, difficult, wicked problems and should be treated as such
- There are always tradeoffs, costs and benefits
- Not all values can be maximized
- Your job is to argue for the optimal balance, not to argue that all goals have been achieved
Opportunity to bring in theory (corrective justice, law and econ, etc.), but good answers ground that theory in the particulars of the question.

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

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

Ideology

Does tort law have an ideology?

-	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 at all

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 at all	???

-	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 98th percentile 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

Doing Away with Tort Law

Stephen D. Sugarman

Proposal:

No more tort law
Compensation: Expanded safety net (public and private)
Deterrence: Regulatory state

—

Muss Es Sein? Not Necessarily, Says Tort Law

Anita Bernstein

A defense of tort law as progressive. How so?

Compared to all other fields of law, tort law

empowers the vulnerable to challenge the powerful
gives plaintiffs space for creative pleading
imposes individual accountability on the powerful

—

Some unsolicited advice…

Befriend anxiety

Care for each other

Kick some ass

Policy Bases for No Duty

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

Tarasoff v. Regents of the University of California

“The Psychiatrist Who Didn’t Warn the Murder Victim”

Randi W. v. Muroc Joint Unified School District

“The Alleged Sexual Predator’s Recommenders”

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

Policy Bases for No Duty

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.”

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

Products Liability

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

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

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

—

Rationale

Power dynamics

Cost spreading / insurance

Deterrence

Extensions of Liability

Plaintiffs: Not just consumers but bystanders.

Defendants: Not just manufacturers but retailers.

Defect Requirement

—

Products Liability

— Manufacturing defects

— Design defects

— Instructions and warnings

Manufacturing Defects

Design Defects

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

[fit]“Reasonable Alternative Design”

Warnings

Products Liability Claims

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

Products Liability Claims

Manufacturing Defects
Design Defects
Failure to Warn

Elements of a Claim

Negligence

Duty
Breach
Causation
Harm

[.column] Strict Liability

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

[.column] Products Liability

Defect
Causation
Harm

Speller v. Sears, Roebuck & Co.

“Refrigerator Fire”

Warnings

What are our concerns with the effectiveness of warnings and warning labels?

Clarity of labels
Too much text
Level of detail related to the possible harm
Language and legalese / What languages?
Location of label
Overwarning
Color and font, visibility

—

Hood v. Ryobi American Corp.

Couple nuances

“Heeding Presumption”

Warnings can’t overcome design defects

—

How can you defend against a strict liability or products liability claim?

—

Plaintiff’s failure to discover a defect

Restatement (Second) of Torts

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.

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

Products Liability

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

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

We all know that Reuben should lose his case,
but on what legal grounds?

Warnings and Instructions

Hood v. Ryobi American Corp.

“Removing Bladeguards from an Electric Saw, What Could Go Wrong?”

Couple nuances

“Heeding Presumption”

Warnings can’t overcome design defects

—

Jones v. Ryobi, Ltd.

“The Modified Printing Press”

Anderson v. Nissei ASB Machine Co.

“The Bottle-Making Machine that Amputated an Arm”

General Rule: Manufacturer can only be held liable for defects that existed when the product was sold.

Missouri: When a third party’s modification makes a safe product unsafe, the manufacturer is relieved of liability even if the modification is foreseeable.

Arizona (and CA): Only an unforeseeable modification of a product bars recovery from the manufacturer.

How can you defend against a strict liability or products liability claim?

—

Strict Liability Defenses

~~NOT Contributory Negligence~~

Comparative Negligence

Assumption of Risk

Jurisdictional Rules - Plaintiff’s Negligence

Jurisdictional Rules - Contribution

Joint and several liability

Several liability

Jurisdictional Rules - Apportionment

Evenly split

Comparative fault

Comparative Responsibility is Hard

Can a plaintiff be negligent for failing to discover a defect?

Restatement (Second) of Torts

Restatement Third

—

Assumption of Risk

—

Assumption of Risk

~~Express (Disclaimers and waivers)~~

Implied (Knowingly encounter a danger)

—

You are a junior associate at a plaintiff-side firm. 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 but suffered serious injuries. His family is now interested in suing Oscar Meyer Weiner, the company that produced this hot dog. Oscar Meyer Weiner does not have any warning labels on its packaging.

A partner at your firm would 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 and worst chances of success.

Proximate Cause

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

Sindell v. Abbott Laboratories

“Toxic Harms”

—

Possible alternatives for factual causation

Concert liability
Alternative liability
Enterprise liability
Market share liability

—

Toxic Harms

Why is the tort system such a poor fit?

Three frequent problems:

Identification of the cause: Can’t be certain that the toxin was a “but for” cause
Boundaries of the harm: Can’t be certain of the extent of the harm
Source of the cause: Can’t be certain who in particular is responsible

Mass Torts

A procedural story in two parts:

The Supreme Court killed the mass tort class action
Multidistrict litigation (MDL) took over

Factual Cause Exercises

Exercise 1

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

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

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

In re Polemis

“The Plank that Made a Ship Explode”

—

Wagner v. International Railway Co.

“The Injured Rescuer”

—

“Fireworks on the Train Platform”

How would you rule in Palsgraf?

Majority opinion (Cardozo)

and

Dissenting opinion (Andrews)

- Andrews dissent in Palsgraf

Punitive Damages

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

Recap

Remedies

The consequences of liability.

Remedies include:

?????????? damages
?????????? damages
Nominal damages and declaratory judgment
Equitable relief

Remedies include:

Compensatory damages
Punitive damages
Nominal damages and declaratory judgment
Equitable relief

[fit] Compensatory

[fit] Damages

and punitive damages

Compensatory Damages

The Objective: ???????????????

Compensatory Damages

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

Seffert v. Los Angeles Transit Lines

Rule for excessive damages?

Seffert v. Los Angeles Transit Lines

Rule for excessive damages:

Damages award must shock the conscience, be the result of “passion,” “prejudice,” “whim,” “caprice”

McDougald v. Garber

Two legal issues?

McDougald v. Garber

Two legal issues:

Are “pain and suffering” and “loss of enjoyment” distinct issues?
Does “loss of enjoyment” require cognitive awareness?

Holding?

McDougald v. Garber

Two legal issues:

Are “pain and suffering” and “loss of enjoyment” distinct issues?
Does “loss of enjoyment” require cognitive awareness?

Holding:

“Pain and suffering” and “loss of enjoyment” are not distinct issues.
“Loss of enjoyment” requires cognitive awareness.

Jury Exercise

Systemic Inequality & Damages Calculations

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

Argument in favor

Accuracy

Compensatory damages are about what is, not what should be

Critiques

Creates harmful incentives for potential tortfeasors

Assumes the future = the past

Ignores expressive function of law

My own take

Accuracy argument weaker than it appears

What is individual accuracy?
Statistical modeling always involves normative choices

Elimination of explicit consideration of race and gender does not eliminate influence of systemic inequality on damages awards:

Proxies persist
Compensatory damages in an unequal society restores inequality

California Law:

Estimations, measures, or calculations of past, present, or future damages for lost earnings or impaired earning capacity resulting from personal injury or wrongful death shall not be reduced based on race, ethnicity, or gender.

CA Civ Code § 3361 (2022)

BMW v. Gore

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

Three Guideposts

Degree of reprehensibility
Ratio of punitive damages to harm inflicted on plaintiff
Comparison with civil or criminal penalties

BMW v. Gore: Due Process Concerns

Majority - Jurisdiction - Fair notice - Proportionality

Concurrence - Arbitrary coercion

Three Guideposts

Degree of reprehensibility
Ratio of punitive damages to harm inflicted on plaintiff
Comparison with civil or criminal penalties

State Farm v. Campbell

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

State Farm Reasoning:

Guideposts from BMW v. Gore

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

Punitive Damages

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

Mathias v. Accor Economy Lodging, Inc.

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

Oral argument: Appealing a Punitive Damages Award

Hershovitz v. Speedy Pete’s Pizza Pies

The only legal issue on appeal in this case is whether the punitive damages award in this case is excessive and would deprive the defendant of its property without due process of law.

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

Issue

Rule

[fit] Argument

Conclusion (optional)

I - Does the punitive damages award violate the 14th Amendment by depriving the defendant of its property without due process of law ?

R - BMW v. Gore guideposts

A - Argument

C - Conclusion

I - Does the punitive damages award violate the 14th Amendment by depriving the defendant of its property without due process of law ? R - BMW v. Gore guideposts A - Argument

-– IRAC - Reprehensability -– IRAC - Ratio -– IRAC - Civil and criminal penalties

C - Conclusion

Legal Authority

Two Legal Tests

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

BMW v. Gore 1 - Reprehensibility 2 - Disparity between compensatory damages and harm inflicted on plaintiff 3 - Comparison with civil or criminal penalties

One Persuasive Case

Mathias v. Accor Economy Lodging, Inc.

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

Purely Emotional Harm

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

Falzone v. Busch

Reasons for “Impact” Rule

Physical harm not the natural or probable consequence of the negligent act
Consensus of the bar
Policy reasons

Policy Reasons for “Impact” Rule

Flood of litigation
Fake claims
Problems of proof

“Zone of Danger”

Requires a reasonable fear of immediate physical injury

Portee v. Jaffee

Few notions anywhere in the law are more vague than

the fundamental concept of the law of negligence:

the duty of reasonable care.

Court’s framing of question before it:

“one formulation of the issue before us is whether it was foreseeable that the mother would be observing the death of her young child”

“more directly stated, we must determine whether defendants owed a duty to the plaintiff that was violated when her child became trapped in the elevator”

“Bystander liability”

(1) the death or serious physical injury of another caused by defendant’s negligence;

(2) a marital or intimate, familial relationship between plaintiff and the injured person;

(3) observation of the death or injury at the scene of the accident; and

(4) resulting severe emotional distress

Gammon v. Osteopathic Hospital of Maine

Traditional Requirements for Allowing Recovery for an NIED Claim (in Maine)

physical impact
objective manifestation
underlying or accompanying tort
special circumstances

Res Ipsa Loquitur

L = Magnitude of loss/harm

IF B < PL

AND defendant did not take on B

THEN defendant was negligent

IF B > PL

AND defendant did not take on B

THEN defendant was NOT negligent

Structuring Arguments

Syllogism for proving duty and breach

D was legally obligated to do X.

D failed to do X.

Therefore, D breached their legal duty.

Syllogism for proving duty and breach

D had a duty (to the plaintiff) to exercise reasonable care under the circumstances.

Reasonable care under the circumstances was X, because of

- foreseeability,

- reasonable person standard,

- custom,

- statute,

- or hand formula.

D failed to do X, therefore D acted negligently / breached their legal duty to plaintiff.

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

Larson v. St. Francis

Connolly v. Nicollet Hotel

Why Allow Res Ipsa Loquitur?

Probabilistic rationale
Asymmetry and fairness justification

Res Ipsa Loquitur

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

Supplement Recommendations

For Review:

Understanding Torts

For Practice Problems:

Tort Law and Practice

What’s so special about res ipsa?

If res ipsa applies, plaintiff can prove duty and breach without establishing a standard of care.

Two requirements for res ipsa to apply:

Harm results from. . . ?
Defendant was. . . ?

Two requirements for res ipsa to apply:

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

Byrne v. Boadle

“The Falling Flour Barrel”

Larson v. St. Francis

“The Falling Armchair”

Connolly v. Nicollet Hotel

“The Chaotic Convention”

Why Allow Res Ipsa Loquitur?

Probabilistic rationale
Asymmetry and fairness justification

McDougald v. Perry

Ybarra v. Spangard

In-Class Exercse for Res Ipsa Loquitur

You are deciding a case as an appellate court judge.

Organize your notes according to the CREAC method:

Conclusion
Rule
Explanation
Application
Conclusion

Review

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

You can use laptops today

Final Exam Info:

Four-hour in-class exam

3 Parts

Parts I and II are essay questions that involve the same fact pattern. Part III has a separate fact pattern and essay question.

Each part has a character limit of 8,000 characters (3,000 more than midterm).

General Questions

When there are two different restatements on the same matter should we bring in both or just one?

Could we go over law and economics philosophy?

Under which broad categories do NIED, med mal, and vicarious liability fit under?

In our rule statements, can we just call it “the rule from Fletcher”?

Which old/traditional standards are no longer applicable anywhere (as opposed to ones considered common law or otherwise still practiced in some jurisdictions)?

Damages

Negligence - Reasonable Care

Can you please go over reasonable person standard with an example?

Negligence - Duty

What is the duty in Special Relationship? In the way that the duty for NNI or NNCR is to mitigate the consequences of your actions. Reasonable Care Under the Circumstances in the relationship? Protection to the extent it’s been availed?

Medical Malpractice

When thinking about expert testimony, we discussed geography + experience. Is there a preferred outcome and is it the nation-wide standard?

NIED

When would the Traditional Requirements for Allowing Recovery for NIED Claim come up?

Negligence - Factual Cause

In MDL’s, at what point can someone walk away and not be bound by its judgment? Can it be at anytime?

Will market share liability only be available to products liability cases?

Negligence - Proximate Cause

Confirmation this is the rule for Intervening Cause: Rule: Harm has to relate to what made the action negligent in the first place when the harm that happened to P was the thing that made your action negligent in the first place, you can’t escape because something else happened

If harm that occurred is a direct result of D’s negligence, then is proximate cause a non-issue?

In Steinhauser v Hertz Corp—the response to a proximate cause argument was “not too far in time and space.” Is that another way of saying that b/c the schizophrenia happened directly after (ie not too far in space and time) the car accident, it was foreseeable that something like this could have occurred?

Can we please go over the Proximate Cause medical malpractice rule again? This hypo specifically was confusing: driver drives P into tree but doctor accidentally kills P. Know driver can be held liable for bruised and fractured ankle - but in class we said they CAN be held liable for subsequent death.

———

Version 1: Friend was negligent driving car, PL injured, subsequent medical malpractice. Version 2: PL was negligent driving car, PL injured, subsequent medical malpractice.

Negligence - Defenses

What do we need to know from Li v Yellow Cab company - we didn’t really go over in class?

For apportionment, you gave us a two-step test. FIRST: separate injury on factual cause; SECOND: for injuries that multiple ∆s cause, separate out based on each injury. How do these two steps differ from each other practically?

——— 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.

When in our analysis do we talk about joint and several liability versus contributory and comparative negligence? Do we do full negligence analyses per defendant (including any injuries caused by each individual defendant), and then discuss joint and several liability?

I can’t quite visualize when we would be going from a negligence cause of action for defendants to then negligence cause of action breakdowns for plaintiffs.

Also, since apportionment is always based on factual cause, if we’ve already analyzed causation for each defendant, any defendant who does not satisfy the factual cause requirement would be excluded from the joint and several liability analysis, right? Would you just stop talking about that particular defendant after the causation analysis and then move onto the next defendant?

For comparative negligence [pure comparative, not as great as, no greater than] you said we aren’t going to have to calculate the numerical amount/percentage of damages, so would we just generally apply the rules in deciding damages depending on which jurisdiction we are in?

How do we do comparative fault with negligence and intentional torts?

A previous MC question for a contracts final found a waiver of liability to be enforceable. But in my notes, I have written that liability waivers are unenforceable. I am very confused.

For assumption of risk just want to confirm = generally the more power and control a company has over P the more likely the court will find it unenforceable?

For our purposes, does assumption of risk relieve your duty of RC or provide insulation from liability? Is this just a jurisdictional issue?

Could the rescue doctrine be negligence defense?

I guess the question is how far does foreseeability of negligent harm extend. So a train hits a father’s child he scoops up the child and run out to the road in search of a doctor. In his haste, the feet of his child that he carries hit an elderly woman. She falls and breaks her hip. She sues the father for negligence. He tries rely on the doctrine laid out by Cardozo the “danger invites rescue” and says that the harm resulting from negligence is the train companies fault.

Should be we be prepared for other vicarious liability questions outside employment related matters?

I had written on my notes that Miller and Christensen had opposite outcomes. If this is true, was it because the 3 criteria for vicarious liability were not in existence at the time of Miller?

Is Christensen basically opening up the definition of “scope of employment” since Miller?

Strict Liability

Want to clarify that as a defense for Strict liability or products liability claim one affirmative defense is comparative responsibility. Does this just mean holding the defendant strictly liable but bringing in Plaintiff’s fault?

Comparative Responsibility as a defense for Strict Liability; can you give an example of a time this would apply/how it works? (all I can think is an employee eating nuclear waste)

Products Liability

What are the elements that we could list on an exam for manufacturing defects and design defects?

How do we analyze a question involving a manufacturing defect?

For products liability can we go over how excessive preventable danger intertwines with reasonable alternative design?

For design defect rule related to 3rd party modifying a product –> do we use the Missouri standard of Arizona/CA one? Or will you specify on the exam which to use?

Can we go over defending against a products liability claim (a S/L claim too)?

Intentional Torts

What are the differences between purposefully, knowingly, and recklessly in torts versus in crim?

———

A person acts recklessly in engaging in conduct if: (a) the person knows of the risk of harm created by the conduct or knows facts that make the risk obvious to another in the person’s situation, and (b) the precaution that would eliminate or reduce the risk involves burdens that are so slight relative to the magnitude of the risk as to render the person’s failure to adopt the precaution a demonstration of the person’s indifference to the risk.

Can we re-go over the hypo you gave about working at coca cola and knowing a bottle will explode vs knowing this specific bottle will explode?

In Garret V Daily it seems like in their determination knowledge or substantial certainty the court is sneaking in a consideration of what a reasonable 5-year-old would do would you say that is correct?

In the HYPO where the child was not aware of the adult, only realizing her when she sat down, would the 5yo be responsible for this?

For False imprisonment: one of the ways a person can be confined is by threats. We’ve defined that as a direct consequence of leaving. How would you distinguish that threat next to a threat of future harm (which is not sufficient)? How attenuated can the threat be before its no longer sufficient to be considered a way of confinement?

For IIED claims, if we proved the conduct was intentional, should we explain why it’s not reckless?

Is the Reasonable Person standard for which we find if something is outrageous, offensive, extreme, or scary, susceptible to the same exceptions as when discussing reasonable person & reasonable care? For example: π has “no reasonable way” to escape for a Reasonable Person or a Reasonable Child?

For Hart v Geysel, are the majority and minority rules relevant?

———

Majority - yes liability, consent no defense

Minority - no liability, mutual unlawful action

Do we have rules for self-defense and defense of property or are we just basing those off the cases from class?

———

Section 63 of the Restatement (Second) of Torts on self-defense:

An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him.

In Vincent v Lake Erie, a necessity defense states that you would not be liable trespass but would be liable for damages because there came point in the storm when they were not protecting life just property value of ship. Is that correct?

Alternatives to Tort

Does “no-fault” in workers’ comp mean something different than strict liability?

Strict Liability

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

Reminder: Wednesday’s class starts at 9:10am

Assumption of Risk

Hanks v. Powder Ridge Restaurant Corp.

“Snowtubing Waiver”

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

Tunkl factors

Business of a type generally thought suitable for public regulation.
Defendant performs a service of great importance to the public (often a matter of practical necessity for some members of the public)
Defendant willing to perform this service for any member of the public
Defendant has bargaining advantage
Standardized adhesion contract of exculpation
Plaintiff placed under the control of the defendant, subject to the risk of carelessness by the seller or his agents.

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

“The Flopper”

volenti non fit injuria

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

Cardozo’s counter-examples

“Obscure and unobserved” dangers
Too many accidents

—

Knight v. Jewett

“Touch Football Injuries”

—

Explicit assumption of risk

Implicit assumption of risk

In-Class Exercise

Plaintiffs:

Emily
Lynn
Tito
Tatiana

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

Restatement Definitions

“In determining whether an activity is abnormally dangerous, the following factors are to be considered: (a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes.” Restatement (Second) of Torts § 520 (1977).

“An activity is abnormally dangerous if: (1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and (2) the activity is not one of common usage.” Restatement (Third) Torts: Liability for Physical and Emotional Harm § 20 (2010).

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

Rationale

Power dynamics

Cost spreading / insurance

Deterrence

Extensions of Liability

Plaintiffs: Not just consumers but bystanders.

Defendants: Not just manufacturers but retailers.

Defect Requirement

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

Palsgraf v. Long Island Railroad Co.

“Fireworks on the Train Platform”

How would you rule in Palsgraf?

Majority opinion (Cardozo)

and

Dissenting opinion (Andrews)

- Andrews dissent in Palsgraf

That’s all folks!

Vicarious Liability

Miller v. Reiman-Wuerth Co.

“The Bank Errand”

—

Christensen v. Swenson

“The Lunch Break”

—

Three criteria

Employee’s conduct must be of the general kind the employee is hired to perform.
Employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment.
Employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.

—

Kuehn v. Inter-city Freight

“Road Rage”

—

Sage Club v. Hunt

“The Violent Bartender”

Exercise: Causation and Vicarious Liability

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.

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

Cooper putting out the trashcans was an intervening cause of Boyd’s injuries.
Even if Cooper’s actions were not an intervening cause, Greene still did not proximately cause Boyd’s injuries.

ACME seeks to dismiss the negligence case against it for two reasons:

ACME is not liable for Greene’s tortious acts because she was acting outside the scope of her employment.
ACME is not liable because asking Greene to pick up a birthday cake was not a factual cause of Boyd’s injuries.

Factual Cause

Stubbs v. City of Rochester: “Sewage in the Drinking Water”

Zuchowicz v. United States: “Prescribed Drug Overdose”

Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Railway Co.: “Multiple Fires Whodunnit”

Summers v. Tice: “Hunting Party Whodunnit”

Garcia v. Joseph Vince Co.: “Fencing Sabre Whodunnit”

Sindell v. Abbott Laboratories: “Toxic Harms”

—

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

—

Proximate Cause

In re Polemis: “The Plank that Made a Ship Explode”

Wagner v. International Railway Co.: “The Injured Rescuer”

Benn v. Thomas: “The Time-Delayed Heart Attack”

Steinhauser v. Hertz Corp.: “Sudden Schizophrenia”

Gibson v. Garcia: “The Rotten Telephone Pole that Fell on the Car”

Berry v. Borough of Sugar Notch: “The Rotten Tree that Fell on the Speeding Car”

Palsgraf v. Long Island Railway Co.: “Fireworks on the Train Platform”

—

Vicarious Liability

Miller v. Reiman-Wuerth Co.: “The Bank Errand”

Christensen v. Swenson: “The Lunch Break”

Kuehn v. Inter-city Freight: “Road Rage”

Sage Club v. Hunt: “The Violent Bartender”

—

Three criteria for scope of employment

Employee’s conduct must be of the general kind the employee is hired to perform.
Employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment.
Employee’s conduct must be motivated, at least in part, by the purpose of serving the employer’s interest.

Welcome to Negligence!

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

But first…

Outline for damages

Negligence as a Cause of Action

Plaintiff must prove four elements:

Duty
Breach
Causation
Harm

Negligence as a Concept

Relates to the elements of duty and breach

The “fault” principle

Defined as a failure to exercise “reasonable care”

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?

Adams v. Bullock

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

Braun v. Buffalo Gen. El. Co.

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

Exercise: Opposite holdings

Develop arguments for the opposite holdings from the holdings you just read in Adams v. Bullock and Braun v. Buffalo.

For Adams, develop the strongest argument that the jury verdict should be upheld because the defendant did not exercise reasonable care.

For Braun, develop the strongest argument that the defendant was not negligent as a matter of law because the defendant did exercise reasonable care.

Welcome to Torts!

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

Please find your seat according to the seating chart available at the front of the room.

Agenda

Syllabus highlights
What is a tort?
Small group exercise: Litigating your first torts case

Syllabus highlights

Logistics

Contact information

Colin.Doyle@lls.edu

Office: Burns 315

Telephone: 213-736-1148

Class schedule

Monday, 8:00am - 9:40am

Robinson Moot Courtroon

Wednesday, 10:10am - 11:50am

Robinson Moot Courtoom

Friday, 10:10am - 11:50am

Robinson Moot Courtroom

Open office hours

Tentative Schedule:

Wednesdays from 12:00pm to 1:30pm

Outside the Robinson Moot Courtroom

Reading Assignments

Class Policies

Attendance

Preparation and participation

No laptops or electronics

Recordings & Slides & Notes

Video

Audio with transcripts

Slides

Designated notetakers

Classroom Norms

Professionalism

Generosity

We can give each other the opportunity to be wrong.

We can disagree with ideas, not with people.

Accommodations

Contact Student Accessibility Services in the Office of Student Affairs.

I want this class to be accessible for you.

Exams and Grading

Midterm Exam: 25%

Final Exam: 75%

Questions about the syllabus

What is a tort?

And why do I have to take this class?

In-Class Exercise

The Questions

Why should this defendant be held liable or not held liable?

What remedy does the defendant owe Ms. Hammontree?

What would you like to know that wasn’t in the fact pattern? Why?

The Driver

Why should this defendant be held liable or not held liable?

What remedy does the defendant owe Ms. Hammontree?

What would you like to know that wasn’t in the fact pattern? Why?

The Doctor

Why should this defendant be held liable or not held liable?

What remedy does the defendant owe Ms. Hammontree?

What would you like to know that wasn’t in the fact pattern? Why?

The Car Manufacturer

Why should this defendant be held liable or not held liable?

What remedy does the defendant owe Ms. Hammontree?

What would you like to know that wasn’t in the fact pattern? Why?

Workers’ Compensation

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

Schedule this week

Wednesday

Class - 8:00am - 9:40am - No Fault and Beyond

Office Hours - 12:00pm - 1:00pm

Thursday

Class - 10:10am - 11:50am - No Fault and Beyond / Review

Office Hours - 12:00pm - ???

Liability Insurance

How does it affect what cases are litigated?
How does it affect the consequences of liability?

Workers’ Compensation

Lamson v. American Axe & Tool Co.

“The Axe that Fell on the Employee”

—

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 wasn’t work-related

Injury resulted from employer’s intentional tort

Employee does not count as an employee

Revisiting Lamson v. American Axe

What does the plaintiff recover?

	Tort Law	Workers Comp
Facts of actual case:
No assumption of risk:

—

Revisiting Lamson v. American Axe

What does the plaintiff recover?

	Tort Law	Workers Comp
Facts of actual case:	Nothing
No assumption of risk:	Full recovery

—

Revisiting Lamson v. American Axe

What does the plaintiff recover?

	Tort Law	Workers Comp
Facts of actual case:	Nothing	Partial recovery
No assumption of risk:	Full recovery	Partial recovery

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

Ideology

Does tort law have an ideology?

-	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)