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Torts
Case Names and Terms
| Term | Definition |
|---|---|
| o Kinderavich v. Palmer (1940) | P struck by two trains, q whether cont. negl. in wandering onto tracks and being hit by 1st train bars recovery for 2d accident; P wins – court finds that 2d collision too far in space & time from 1st; may have been motivated by cont negl rule & decided t |
| Philip Morris USA v. Williams | Widow of cigarette smoker P awarded $79mm in punitive damages to compensate for all other victims; SCOTUS rejects damages on grounds that they cannot reflect injuries to nonparties. |
| Why shift losses? (OWH, 1) | Holmes: the “loss should lie where it falls, unless there is a reason for moving it.” 1. Deterrence – reduce sum of accident and safety costs. But specific/collective (make individuals liable to take specific care) and general (put liability on cheapest |
| Why shift losses? (3-6) | 3. Distribution of wealth – distribute resources from rich to poor “doers”; Holmes argues that wealth should be held by the most productive (the rich). 4. Reducing administrative costs 5. Corrective justice 6. Shaping tastes/values |
| Tests to decide who pays? Fault | 1. injurer pays if he did the wrong thing, based on knowledge that a reasonable person would have done. |
| Tests to decide who pays? LH | 2. Learned Hand: victim pays unless injurer flunks Learned Hand test (i.e. cost of harm discounted by probability of its occurrence is greater than cost of avoidance). |
| Test to decide who pays? Reverse LH | 3. Reverse Learned Hand: injurer pays unless victim should have avoided. |
| Test to decide who pays? GC SL | 4. “Calabresian” Strict Liability: loss lies on best decision maker, either victim or injurer. |
| Test to decide who pays? EP LH | 5. Ex Post Learned Hand: knowing what we know now, was decision correct/reasonable? |
| Test to decide who pays? SL | 6. [Strict Liability:] either on injurer or victim (i.e. employer pays by default, employee responsible by default]** |
| Why shift losses? | 2. Spreading of loss (insurance) – harm may be crushing when borne by one but small when borne by all; Holmes argues that people should then get private insurance. |
| worker’s compensation (components) | (1) non-fault liability (2) arising out of employment, and (3) exclusive remedy (gives up right to sue in tort, with exceptions of third party liability (product liabilities) and intentional wrongs) |
| Ives v. South Buffalo Railway (1911) | • Werner strikes down NY state worker’s compensation law on due process grounds; emphasizes that regulation is critical to effect change rather than non-fault liability Wrong: 1) history of NFL, 2) Reg not nec better than NFL, 3) Anti-redistribution |
| worker's compensation (rationale) | Coase Theorem: if no transaction costs, parties arrive at efficient outcome regardless of initial allocation of property rights. Facilitates better decisions: (1) workers better understand cost of accident (e.g. salary drops) & make better decisions; ( |
| Western & Atlantic Railroad v. Henderson (1927) | Butler strikes down GA statute that puts liability on RR unless it shows it exercised ordinary care; problem was likely its presumption of negligence – he’s concerned with stigmatizing RRs (placing burden of meeting standard of proof on D) |
| o Hall v. Fearnley (1842) | P steps off curve to avoid D’s negligent driving; P wins, burden on D to show no fault; implies that D can use lack of fault as affirmative defense. |
| o Pearcy v. Walter (1831) | P and D hit one another driving in opposite directions on the road, P alleges that D is drunk; court sends to jury even though not clear who hit whom; fault likely underlies decision. |
| o Scott v. Shepherd (1773) | |
| Trespass and Case (abandoned in 1875): | T: direct harm; purpose - corrective justice; master-servant, H-W and nuisance; trespass vi et armis (force of arms) and (property). C: negligent harm; purpose - deterrence; does not include intentional wrongs but precursors of modern-day torts (negligen |
| o Scott v. Shepherd (1773) | flying squib; indirect, intentional wrongs can lie in trespass; Blackstone (stick to rules, should have been Case), Nares (muddled, willfulness should matter, importance of fault?), Gould (unprincipled, agrees with Blackstone but wants to rule otherwise), |
| • Increasing role of fault in 19th century as courts enter pro-D era in which emphasis is on protecting industrialists. Creates problematic incentives as burden lies on “innocent P,” often not best decider (Holmes; switch to new job in Ives). | |
| NFL common in early England until 19th c, when fault became important. By 1911 (Ives), fault generally required. Since then, NFL more accepted; today, we still refuse to accept liability without cause (OH & MS Ry v. Lackey (burying dead passengers) -- i | |
| o Holmes v. Mather (1875) | Dog scares D’s horse, D swerves onto sidewalk to avoid hitting fruit stand and hits P; D wins – act not intentional (nor negligent if C), otherwise bad incentives (drivers should decide which accident will be least expensive), people on roads should expec |
| Holmes v Mather (1875) [significance] | 1st case where D pleads non-fault in direct hit and gets off! (Double harness with dog scaring horses, hitting female P) OWH-type; have to put up w harm for greater good |
| o Brown v. Kendall (1850) | P and D’s dogs are fighting, D uses stick to break up fight and hits P in the eye; D wins; trespass requires direct, voluntary action; P must show that D is either acting intentionally or negligently and that P is free from fault; |
| Brown v Kendall (1850) [significance] | American version of Holmes (Lemuel Shaw); Suggests that an unintentional act is equivalent to not acting as a human being (like intermediaries in Scott). Opens up floodgates: D only liable if NEGLIGENT – P must prove “want of due care.” |
| Modern Non-Fault Liability | 1. Necessity 2. Nuisance 3. Animals 4. UHA 5. Insurance 6. Intentional Trespass 7. Master-Servant |
| Vincent v. Lake Erie (1910) | [NFL, Private] D decides whether to moor ship in storm or send to sea, chooses to moor ship; P wins; D better decision-maker – can decide how to improve ship or whether to venture out, putting liability on dockowners would make them charge more. |
| Mayor of New York v. Lord (1837) | P’s home destroyed by city; fire would have anyway. D wins because, EPLH test, act of nec didnt harm property that would not have been destroyed. (Diff from jettison (std is “at time”) and not quite SL or GCSL where gov’t best decider and must pay). |
| • Nuisance (def) | vaguest of strict liability categories; generally involves something offensive to the senses (e.g. odor), not necessarily illegal and not requiring fault, linked to property damage and has element of recurrence; decided on a case-by-case basis |
| Public Nuisance | Interference w “right common to the general public”; (1) substantial and (2) injure the public (actual, not potential). Harm must be particularized (e.g. not smog generally). Ex: health hazards, obstruction of traffic, maintenance of improper business. |
| Private Nuisance | Either (1) intentional and unreasonable OR (2) unintentional and negligent/reckless. Harm must be substantial; courts “balance the equities” in determining remedy (reasonableness test), balancing harm to P and against utility of D’s activities. |
| Nuisance (defenses) | o Defenses – (1) contributory negligence, (2) assumption of risk (“coming to the nuisance”), (3) state actor (have to sue in taking or trespass; except in certain circumstances). |
| Nuisance (remedies) | (1) compensatory damages (either 1x lump sum or “time-to-time”) (2) injunction, if P can show that CD would not be a sufficient remedy; generally have to show that harm to P and others similarly situated outweighs the utility of D’s conduct. |
| Delaney v. Errickson (1880) | D grazes cattle on P’s uncultivated land; common law - D must “fence in” cattle (inapplicable), vs American West’s rule - P must “fence out” animals by fencing agricultural land; D wins on latter principle (legislation should be enacted to change) |
| Wild Animals | Wild animals - D is strictly liable for harm caused by dangerous animal if harm results from “dangerous propensity” typical of the species. |
| Berhans v Bertrams Mills Circus (1957) | elephants scare manager’s dog, who runs into booth and injures two midgets; elephants’ harm resulted from natural danger of the species. |
| • Ultrahazardous Activities | o Person is strictly liable for damages that result from his abnormally dangerous activities 1. High degree risk 2. Likely serious harm 3. Risk can't be reduced w ordinary care 4. Unusual activity 5. Context-inappropriate 6. Danger > Utility |
| o Fletcher v. Rylands (1867 England) | D builds reservoir above P’s coal mine, unaware of its presence, D’s activities cause flood & destroy P’s mine; P wins; Blackburn – D liable for harm caused by his “mischievous” property (absolute duty to contain H20); Cairns – unnatural use |
| o Read v. Lyons (1945 England) | Limits Fletcher in England; shell-fitting factory (in wartime) not found liable for explosion in factory; D argues that activities are not unusual in applying American tort law of ultrahazardous activity; court declines to apply American law. |
| o Sullivan v. Dunham (1900) | P drives on public road and killed by D’s blasting on trees 400 feet away; P wins, court holds D SL for activity; court transfers trespass on land principle & emphasizes personal property of P in driving on public road |
| • Intentional trespass on Land | Either (1) D intentionally enters P’s land w/o permission, (2) D remains on P’s land w/o permission (even entered rightfully), or (3) D places an object (or refuses to remove an object) on P’s land without his permission. Interference must be intentional |
| o Rochester Gas v. Dunlop (1933) | D’s plane crashes into P’s tower; P wins; ct applies trespass on land to hold D SL for damage even if had right to be in air above P’s land because of emergency (Vincent, D has right to use dock but must pay for damages. Best chooser should pay. |
| • Master-Servant (respondeat superior | employers are liable for the torts of their employees. exceptions: 1. Independent contractor 2. Non-delegable duties (Maloney v Ruth - 1968 CA) 3. Inherently dangerous activites |
| Why Master-Servant? | 1. Allocation of costs 2. Deterrence 3. Internalizing costs in business |
| Taber v. Maine (1995) | MS liability; detour but not frolic. Government held liable for torts committed by sailor who drinks on base; foreseeable in actions that navy took to promote on-base activities vs. off-base drinking (sufficiently common or customary) |
| Fault (4 Elements) | Duty – Breach – Cause – Injury/Damages |
| Duty (Ordinary Care) | "Reasonable person" (Vaughn v Menlove (1837)) replaces "Degrees of care" (slight, ordinary, great) in McLean v Triboro (1950). |
| o New World v. King (1853) | D former employee of ship on free trip and resp for boiler explosion; court criticizes deg of care but applies anyway; persons engaged in dangerous/skilled activities must exercise highest deg, accident here evidence of no care at all. |
| o McLean v. Triboro Coach Corp. (1950) | REJECTS Deg of Care |
| Reasonable person standard (rationale) | 1. Predictability 2. Difficult for jury to analyze each D separately 3. Incentivize good behavior 4. Risk of fraud 5. "Simple rules" a la OWH |
| o Vaughn v. Menlove (1837) | D’s flammable hay stack threatens P’s property, D decides to “chance it” despite warnings, attempts to use stupidity as defense; court applies reasonably prudent person standard and refuses to consider D’s intelligence in determining duty of care. |
| o Hover v. Barkhoof (1870) | D’s bridge breaks and injures P, testimony that D thought it was safe is not admitted as defense; court asks not what he believed but what he ought to have believed. |
| o Memorial Hospital of S. Bend v. Scott (1973) | "reasonable person" - can count disabilities. P has MS and burns himself pressing wrong button flushing the toilet; P wins; in CN, can consider disabilities and assess based on “reasonably prudent person suffering from same maladies and disabilities.” |
| o Children | children below five cannot be negligent at all; over five, general rule is to judge behavior against that of a “reasonable person of like age, intelligence and experience.” -Charbonneau v Macrury (1931) -Dellwo v Pearson (1961) |
| • Charbonneau v. Macrury (1931) | 17 or old driver kills P; NH allows childishness to be part of the circumstances (but not separate standard of care), arguing that children must be allowed to make mistakes (not compelling argument; also wrong in inference from contrib. negligence). |
| • Dellwo v. Pearson (1961) | D drives motorboat, catches P’s fishing line and injures him; court applies reasonably prudent person test when D is engaged in adult activities; generally viewed as abandoning Charbonneau. |
| • Duty to warn: | 1. Will warning change likelihood of accident? 2. Human contact resulting in accident foreseeable? 3. Can D rely on people noticing danger w/o warning? 4. Customary? No Duty if reasonable person would appreciate risk! Or if THIS P knew better. |
| o Terranella v. Union Building and Construction (1949) | D leaves large pipes on public park, child P dies playing w pipes; D should have anticipated children would play in area and warned; rule that reasonable person is expected to behave in relation to what those he may injure ought to be known to do. |
| o Gould v. Slater Woolen Co. (1888) | P injured by poisonous dye (bichromate of potash) used by D in manufacturing woolen caps, danger unknown at the time (1884) but appreciated afterwards (1886); D wins; court judges by what a reasonable person would have known at the time. Today, PL! |
| o Liriano v. Hobart (1999) | employee P injured using D’s meat grinder after boss removed safety guard; P wins; warning 2 purposes: (1) engaging in activity in general and (2) informing about safer alternatives; warning is reasonable if it makes known existence of such alternatives. |
| • Learned Hand Test | Cost Injury*Prob occurrence > CostAvoidance = (KillingTruckDriver)(High Prob) > (HurtingManyPassengers) → Reasonable. Lucchese Adams v Bullock |
| o Lucchese v. SF-Sacramento Railway (1930) | D drives train and uses “dead man” switch to avoid hitting P’s truck but hits him anyway (liable under LCC), D wins; responsible only for reasonable care based on estimated likelihood of accident |
| o Adams v. Bullock (1919) | P playing with trolley wire, electrocuted; D wins; probability of accident is so low and cost of avoidance is so high that D could not be reasonably expected to exercise care that would have been necessary to avoid it. |
| o Lehigh & Wilkes-Barre Coal Co. v. Hayes (1889) | P (14 YO miner) injured when coal unexpectedly pulled upward through shaft, D no obligation to warn b/c consistent with industry standards; D wins; custom sufficient evidence of ordinary care; rep of time, cts believed employer best to set workplace stds |
| o La Sell v. Tri-State Theater (Iowa 1943 | fat P injured in dim movie theater, D argues that conditions customary and expert testimony that could not have built ramps (even though later did); Ct: industry std not decisive evidence of reasonableness and ex post changes should have been admitted |
| • Medical Malpractice & Experts | -custom is absolute defense in medical malpractice cases -Must show wrongful breach of professional standards and must have breach and wrongfulness determined by expert. (Unless cutting-edge techniques) |
| o Brune v. Bellenkoff (MA 1968) | D administers greater dose of anesthetic than recommended by manufacturer and injures P (weakness to leg), D gives local stds of New Bedford as defense; court rejects “strict locale” rule as inappropriate in modern medicine (also “conspiracy of silence”) |
| o Milano v. Freed (1994) | P sues for child’s injury to spinal cord based on doctor’s failure to refer patient to pediatric neurologist; court holds that experts do not need to be in exactly the same field. |
| • Judge v. Jury – who should decide? | -For Judge: efficiency, predictability of rule, fairness (IF juries tend to favor P, see Nixon’s article), simplicity -For jury: ignores particular facts, can’t adapt to change, complex rules so disadvantages poor, unfair decisions. |
| o Lorenzo v. Wirth (1897) | P (immigrant) falls into coal hole; OWH facts simple and matter of law P should have known of hole; Knowlton looks at whole picture (nighttime, no one guarding hole, etc.) argues case for jury. Knowlton eventually wins out & Qs generally for the jury. |
| o Baltimore & Ohio RR v. Goodman (1927) | P drives truck on curved road over railroad tracks and is struck by locomotive; Holmes requires “stop, look and listen” rule as matter of law and rules for D; again ignores particular facts (curved road). |
| o Cardell v. Tennesee Electric Power Co. (1935) | epresents Knowlton’s approach; P injured in a rear-ending case; 5th Circuit rules that standards of reasonable care owed to vehicle in front of yours vary and should be determined by jury (“in each case except when reasonable minds may not differ”). |
| o Czochanski v. Tischman Spyer Properites (2002) | P trips in Rockefeller Center; court rules as matter of law that alleged defect is too trivial (when evidence is clear enough, D wins as a matter of law). |
| Questions of Care - judge or jury? | Generally to jury, but they may decide at broad level of generality by calling an activity ultrahazardous or saying category of P is unforeseeable (Palsgraf); may also reference legislative decisions and statutes in support of judge’s views. |
| Statutory Violation – negligence (per se) or presumption of negligence? | 1. Martin v Herzog - P cont negl by violating lights statute 2. Telda v Ellman - walking on wrong side safer, so no CN 3. Combs v LA Ry - guy on outside of trolley that crashes may/not be CN, just presumption. Q for jury whether legisl intent violated. |
| o Martin v. Herzog (NY 1920) | D drives on wrong side and hits P driving buggy w no lights, D alleges contributory negligence; hold that violation of statute is prima facie evidence of negligence if statute is designed to prevent the kind of harm that ultimately resulted from violation |
| o Telda v. Ellman (1935) | is intended to require people to make the safest choice in walking on roads, thus P made safe choice by violating it |
| o Combs v. Los Angeles Railway (1947) | P rides on outside steps of streetcar and is injured when it crashes; court holds that P’s violation of ordinance prohibiting riding on steps creates a presumption of negligence (but not evidence of negligence), which can be defeated by jury |
| • No Duty to Rescue | no duty to rescue even if it would require only minimal effort. Exceptions: 1. Reliance 2. Psychologist w/ knowledge of imminent harm 3. Instrumentality under D's control |
| • Intentional Torts | (1) if an act committed intentionally but wo meaning to inflict harm, but act does inflict harm, actor is liable; (2) if an act is committed with intention of harming another, but harms 3d party, the first party is liable. 1. Vosburg v Putney 2. Cope |
| o Vosburg v. Putney (WI 1891) | 11 YO D kicks 14 YO P and his leg falls off; intention was unlawful and sufficient to sustain action despite unexpected severity of harm; demonstrates “thin skill rule” (take victim as you find him); predecessor to harassment cases (no right to “invade”) |
| o Cope v. Davidson (CA 1947) | guest statute; court holds that D driver is liable for P’s injury if wanton and willful; P argues that knowledge of harm can be inferred using an objective standard; court disagrees and incorrectly requires a subjective standard |
| Proof of Breach? | 1. Circ evidence Winterowd v Christensen - crappy board at BB game Welsh v Cornell - clamp that breaks, not enough proof 2. RIL Ristau v E. Frank Quinley v Cocke Ybarra v Spangard Clark v Gibbons Kanter v SL, Sp, Peoria RR |
| • Circumstantial evidence | when no direct evidence, may rely upon inferences drawn from evidence and common experience (inference from a fact to another fact that leads us to a conclusion based on common experience). |
| o Winterowd v. Chrestensen (UT 1926) | P injured by falling at baseball game; P supplies evidence of weak, defective board (warped, decomposed, poor condition for some time) for logical inference that D breached reasonable duty to provide safe conditions in stadium. |
| o Welsh v. Cornell (1901) | P injured working for D when clamp breaks; evidence insufficient to support conclusion of employer’s negligence – experts testify that clamps usually defective if broken this way, but even so doesn’t support con that D failed to exercise reas care |
| • Res ipsa loquitor | requires that (1) no direct evidence of D’s conduct, (2) result would not ordinarily occur without negligence, (3) D is in exclusive control, (4) P’s injury not result of his own action. |
| o Ristau v. E. Frank Coe. (1907) | P injured in fall when employer D’s trestle collapses; rule that trestles do not collapse absent negligence; P must only supply proof of accident itself; very close to Welsh. |
| o Quinley v. Cocke (1946) | P breaks hip from convulsions in electroshock therapy; res ipsa not applied in medical malpractice context – inference requires scientific explanation [Not great law today] |
| o Ybarra v. Spangard (1944) | P undergoing surgery and winds up with erroneous shoulder injury; res ipsa is applied even with multiple D’s because collectively they held control (unreasonable to hold unconscious P liable when D’s can tell what happened). |
| o Clark v. Gibbons (1967) | P injured when anesthesia wears off during surgery; court applies RI but limits it in MMP to cases (1) injury rarely occurs except when due care is lacking (not just when something goes wrong) and (2) other circumstantial evidence points to negligence. |
| o Kanter v. St. Louis, Springfield & Peoria RR (1921) | P injured when D’s train derails; P relies upon RI to infer negligence, D rebuts w evidence of vandalism (spikes), P then rebuts w evidence of negligence (conductor’s light turned down); res ipsa merely shifts burden of proof to D, who can then rebut it. |
| Causation | 1. Cause in fact/But For - preponderance of evidence, no accident wo negligence. Goal: compensatory justice 2. Proximate cause - reas foreseeable (P categ, Type injury, Extent injury) 3. Causal link - negligence increases likelihood of type of injury |
| • Cause in Fact/But For Cause (cases) | Wolf v Kaufman Reynolds v TX/Pac Ry (P fails in Ry's stairwell) Piezconka v Pullman Summers v Tice Hall v DuPont Corey v Havener (horse, 2 motorcars) Michie v Great Lakes (CA co sues 3 Am pollutors) Sindell v Abott Hymowitz v Eli Lily Hamilton |
| o Wolf v. Kaufman (1929) | P falls in unlit stairway in D’s building (violated local statute) and dies; D wins; court identifies many other possible reasons she could have fallen (e.g. stroke) to argue that P lacks but-for cause. |
| o Reynolds v. Texas & Pacific Railway (1885) | P falls in unlit stairwell of D’s railroad station; P wins; but-for cause not absolute – correct standard is “more probably than not” (unlike Wolf). |
| o Piezonca v. Pullman (1937) | P’s H dies from silicosis; D not liable for inhalation before 1929 (stat of lim); P must show that after date, life would have lasted longer BUT FOR continued inhalation; P can only recover for aggravation of injuries and shortening of life. |
| Joint Liability v Several Liability | Joint - Summers v Tice (all can be responsible) Several - Liriano v Hobbard (resp for your share of liability; doesn't have to add up to 100%) |
| contribution among joint tortfeasors | 1 D recovering from another D |
| • Multiple fault | if P can show that multiple parties are at fault but that only one of them could have caused the injury, burden shifts to D to show who did it; if Ds could not possibly know, they are all held liable (Summers) |
| • Summers v. Tice (1948) | 3 hunters, one is shot in lip and eye but impossible to tell which of other 2 fired the shot; both held jointly and severally liable b/c of knowledge (let them tell court who fired shot) and social bias (uncomfortable with P unable to recover); |
| • Hall v. DuPont (1972) | P sues 18 manufacturers of blasting caps, impossible to tell who bc label destroyed; court holds all jointly liable (industry-wide liability) – expands Summers by (1) holding D’s L for injury outside group (Can) and (2) jointly liable without agreement |
| • Corey v. Havener (1902) | P’s horse spooked by 2 negligent motorcars, injured when it runs into another wagon; neither is “but for” cause since either was sufficient, but P can recover from either. |
| • Market share liability | if P injured by defective product manufactured by one of multiple, virtually indistinguishable Ds (merchandising, marketing, point of sale), each D responsible for percentage of injury equal to his national market share. |
| • Sindell v. Abbot Laboratories (1980) | P sues DES manufacturers for injuries (vaginal adenocarcinoma, “signature disease”) caused by her mother’s use of drug; court holds all manufacturers severally liable |
| • Hymowitz v. Eli Lily (NY 1989) | DES case, clarifies that national market is appropriate (even if D didn’t sell products where P purchased them); Ds are severally, not jointly liable. |
| • Hamilton v. Beretta (2001) | P sues group of gun manufacturers for injuries caused by use of handgun; court refuses to apply market share liability b/c products are not fungible (different marketing, not all defective products, not every sale the same); political issue! |
| • Causal link/tendency (cases) | Green-Wheeler v Chi Ry Barry v Sugar Notch Zuchowitz v US Liriano v Hobart III Ross v Hartman Brown v Shyne Gorris v Scott Kernan v Am Dredging Co Abrahams v Young & Rubicon |
| o Green-Wheeler v. Chicago RI (1906) | only type where liability wo causal link; D delays in transporting P’s goods which are ultimately destroyed in flood; rule that if a carrier’s negligent delay exposes another to peril which caused their damage or destruction, he is liable for damage |
| o Barry v. Sugar Notch (1899) | P injured when city’s diseased tree falls on vehicle while driving; D alleges that P is speeding as contributory negligence defense; P wins; no casual link between P’s speeding and collision with tree, even if speeding was one of many but-for causes. |
| o Zuchowitz v. U.S. (1998) | P sues U.S. naval hospital for death of wife after prescribed 2x recommended dosage of drug; expert establishes risk of overdose but cannot say overdose (not just ingestion) caused death; P wins – strong causal link |
| o Liriano v. Hobart III (1999) | D alleges no casual link between failure to warn and P’s meat grinder accident; P wins; if act was wrongful precisely because increased chances of particular injury that occurred, this tendency provides sufficient evidence of causation and causal link. |
| • Ross v. Hartman (1943) | D leaves keys in ignition in violation of local ordinance, thief steals car and injures P in accident; statutory violation is evidence of negligence because it was enacted to prevent the type of injury that occurred. |
| • Brown v. Shyne (1926) | P is paralyzed from D’s chiropractic treatment; D violates statute bc no license; D wins; breach of statutory duty is evidence of negligence only if there is logical connection between breach of statutory duty and the alleged negligence |
| • Gorris v. Scott (1874) | P loses sheep that fall off D’s boat, D violated statute requiring fences for sheep on boats; D wins; P not member of protected class of statute; statute to prevent disease, not to keep sheep in pens. Common law recovery? |
| • Kernan v. Am Dredging Co. (1958) | modifies Gorris’s; seamen killed by lamp explosion too close to deck in violation of CG regulation to ensure ships can see, breach may = negl even if outcome not 1 statute designed to prevent b/c D's clear fault (// FELA) and drafters likely considered. |
| • Proximate Cause (cases) | Smith v London Ry Polemis Palsgraf Wagon Mound 1 Wagon Mound 2 Smith v Leech Brain (spark) Petition of Kinsman Kinderavich v Palmer Gallick Vicars (slander) Illidge Stagl v Delta Bell v Bd Educ Modave v Med Ctr |
| • Smith v. London & SW Ry. (1870) | D’s railroad causes fire that burns dry grass and destroys P’s cottage some distance away; category of P not foreseeable even though type of injury was (fire); D held liable because his actions directly caused P’s injury. |
| • Polemis (1921) | D charters P’s boat, cargo leaks vapor, D’s laborers drop plank, spark & explosion destroys ship; P wins – category of P foreseeable tho type and extent of damages not; D liable b/c damage is DIRECT result of negligent act (foreseeability irrelevant). |
| o Palsgraf v. LIR (1927) | RR Worker D helps pass board train by (negl) pushing, pass drops pkg of fireworks; explodes & causes scale to fall & injure P; Cardozo: no L b/c categ P unforeseeable; Andrews case to jury, cause not remote in space and time. (Prob didn't believe D negl) |
| o Wagon Mound I (1961) | P’s dock destroyed when D’s ships leak oil into water & welders cause rag to burn; D wins – tries to overrule Polemis, foreseeability test, type & extent unforeseeable. Problems: fairness (why on P?) and logic (D L in proportion to damage caused!). |
| o Wagon Mound II (1967) | Same exc P shipowner of burned ships; P wins – court says type of risk (fire) was foreseeable and D’s failure to take precautions to prevent fire was negligent; even tiny amount of foreseeability is sufficient (full liability for extent of harm). |
| o Smith v. Leech Brain (1962) | D negligently causes a spark to land on factory worker’s lip, which ultimately causes cancer and kills him; P wins – D liable even though extent of damages is completely unforeseeable (b/c risk of burn was). |
| o Petition of Kinsman Transit Co. (1964) | Kinsman’s ship becomes unmoored due to floating ice, collides w other ship, both strike bridge negligently not raised, miles of flooding & damage; P wins – extent of damages unforeseeable, but better to place the loss on companies/city than on innocent Ps |
| o Kinderavich v. Palmer (1940) | P struck by two trains, question of whether his contributory negligence in wandering onto tracks and being hit by first train bars recovery for second accident; P wins – court finds that second collision is too far in space and time from first; |
| • Texas City Disaster (1961) | D’s FGAN (nitrate) explodes and kills over 500 people; court finds accident not foreseeable, but clearly extent of damages case; result reached bc spreading/distribution goals – D would be wiped out by cost but state set up a fund for victims. |
| • Gallick v. Baltimore & Ohio RR (1963) | P bitten by insect flying near D’s dirty water, bite is infected and P loses both legs; SCOTUS says injury was foreseeable but is stretching to do so – motivated by spreading/distribution. |
| o Intervening causes | generally chain of causation is not broken if intervening acts are foreseeable consequence of a person’s negligence. |
| • Vicars v. Wilcox (1805) | slander exception; P is fired because of D’s lie to P’s employer; general rule that D is only liable for natural and legal consequences/interventions from his negligence, and here the employer’s action was illegal; really an exception for free speech. |
| • Illidge v. Goodwin (1831) | D leaves horse and cart outside P’s shop, third party spooks horse and causes cart to break P’s window; P wins – D liable for natural and foreseeable consequences of his negligence, including mischief that may occur when leaving cart on street. |
| • Stagl v. Delta Airlines (1995) | Elderly P breaks hip when man hits her while retrieving bag in D’s negligently operated baggage claim area; P wins – injury is foreseeable cost of situation; also motivated by distribution goals (intervenor may not have $) |
| • Bell v. Bd. of Ed. (1997) | D loses track of student P on a field trip, P is raped; P wins – criminal interventions may not relieve D of liability if they are a foreseeable consequence of his negligence (or present the risk that made his actions wrongful in the first place). |
| • Modave v. LIJ Med. Center (1974) | P negligent misdiagnosis at D’s hospital, transferred to another hospital where she suffers harm; D wins – not L for subsequent malpractice unless own malpractice is legal CAUSE for injury at the 2nd; real issue is but-for cause. |
| Defenses to Negligence Claims | 1. Cont Negli 2. Assumption of Risk 3. Comparative Negligence 4. Failure to mitigate 5. Imputed Negl |
| • Contributory Negligence - P negl and P's negl a prox cause of injury (cases) | Butterfield v Forrester And Exceptions: 1. Wanton/wilful D, 2. Statute for P, 3. NFL D, 4. LCC Davis v Mann Bence v Teddy's Taxi Mosso v EH Stanton Raisin v Mitchell Spier v Barker North Bend Lumber v Seattle |
| Comparative Negligence - P's damages based on relative responsibility for harm (Pure vs WI systems) (cases) | Li v Yellow Cab CA Eichelberg v Natl RR Pass Corp Walt Disney World v Wood |
| Assumption Risk - P barred if knowingly and voluntarily assumes risk of harm (like UHA) (cases) | Brown v SF Ball Club Ex: sending ordinary diamonds in unmarked box |
| Failure to Mitigate Damages | D is only liable for damages if P takes reasonable steps to mitigate them (e.g. goes to the doctor) BUT if P takes such steps and winds up with greater injury, D is liable for the entire harm; old rule largely disappears with comparative negligence. |
| Imputed Negligence | At CL, certain suits barred bc P’s rel to CN party (drv/pass, par/child, spouse, emp/employee); symm with vic L for D (Bt Ways Test – A’s CN imputed to B if B VL for A’s neg.) – if D L to pass in P’s car, driver’s N imputed on pass to bar rec. |
| o Kalechman v. Drew Auto Rental (1975) | P injured as pass in deceased’s vehicle, driver negligent, Q of whether negl bars P’s recovery against vehicle’s owner; P wins – court rejects principle that P had ctrl over vehicle; pass only negligent if his personal actions were responsible for harm. |
| o Handelman v. Brown (1973) | Parents bring suit for damages related to child’s motorcycle accident; child was negligent, but P wins – court says parents’ action is not truly derivative of child’s since they seek damages for personal injuries (cost of his injuries to them). |
| o Womack v. Preach (1946) | 4 yo killed by truck when walking to store; child cannot be CN as matter of law b/c age; P wins – parents entitled to recovery when child is not N as matter of law; if parents were CN themselves, could not recover; may reject both-ways test |
| Both Ways Test | A’s contributory negligence is imputed to B if B would be vicariously liable for A’s neg.) – since D would be liable to the passenger in P’s car, the driver’s negligence would be imputed on the passenger and could bar recovery |
| o Old rules of intra-family immunity have largely been overturned b/c insurance now reduces financial threat of intrafamily claims; e.g. Smith v. Kauffman (1971). | |
| Damages (def) | what is a cost of what? Second - what is a cost? How do we define and measure cost? Who decides? What is objective? |
| • Goal of damages | Make P whole – put in prior position. (1) out-of-pocket or “special” losses (health care expenses, lost earnings or earning capacity) and (2) general damages (pain and suffering, loss of life’s enjoyments, etc.). Impossible in practice. (Not all = :( ) |
| o Feldman v. Alleghany (1975) | YLS student P sues airline D for wrongful death of his wife; court great detail in determining value of wife’s lost life (future career and earnings, period not working due to children, inflation; note: most states do not consider taxes) |
| Remittur/Additur | judges have some flexibility to say that as a matter of law damages are too high (remittur) or too low (additur) (unless P is willing to take partial damages or D is willing to contribute more). |
| Adv of Lump-Sum vs. Time-to-Time Damages | 1. LS: legal closure, efficiency, predictability, encourage P to recover more quickly, reduce risk that D is unable to pay later on 2. T2T: more accurate (anticipates future costs/injuries), less danger of over/under-rewarding, limits lottery effect |
| o Fetter v. Beale (1699) | D injured P through battery; P previously recovered damages but sues again when part of skull comes through his head; court bars recovery – potential future injuries were considered in initial calculation and should not be considered here. |
| • Collateral source rule | Generally P can't recover for damages he does not actually pay if received beneficially from another; not applicable if there is some consideration (e.g. paying for insurance) – Coyne v Campbell (1962) |
| • Property damage - market price of damaged property, exception for value in use (orig cost, depreciation, replacement cost). (Cases) | Birmingham Ry v Hinton - HH goods dest in fire Bangert v Osceola - ugly trees |
| • Lost wages | generally calculate lost time working; use tables to estimate life expectancy and annuities in calculating present value; more difficult for individuals with inconsistent/unpredictable income. |
| • Pain and suffering | real value if difficult to estimate; highly correlated with medical expenses and lost earnings; courts often find cost during given interval and ask jury to apply multiplier for duration; in practice, these damages finance contingent fee system |
| • Punitive damages (purpose) | 1. Multiplier 2. Victims rights (intangibles) 3. Private AG 4. Tragic choices - value on morally tough decision 5. English rule - fix undercompensation of certain groups |
| o Ciraolo v. City of New York (2000) | PD to remedy municipal immunity -- "socially compensatory damages" per GC |
| o Philip Morris USA v. Williams | Doesn't allow GC's compensatory damages |
| • Death - many states allow for recovery. Types? | 1. Wrongful death - for close heirs for personal loss 2. Survivor statutes: 1. descedent's loss, 2. economic losses |
| Injuries to Relatives | Loss of companionship, wrongful birth |
| Emotional damages (cases) | Usu not unless accompanied by physical harm (IMPACT RULE) Spade v Lynn Boston Ry Price v Yellow Pine Dillon v Legg Nelson v Metronorth |
| Impact Rule v Zone of Danger | Flexible, limited to shock which resulted in physical injury and other physical manifestations of emotional harm; consider proximity, visibility and relationship ; P may recover if “actual physical impact or immediate risk of harm”; problematic |
| o Spade v. Lynn & Boston RR (1897) | classic case of impact rule; P suffers distress when big drunk man lurches over her; D wins – no recovery for emotional damages without physical injury. |
| o Price v. Yellow Pine (1922) | P injured by employer D, warns D that wife will be too distressed if she sees him, D takes him home anyway and wife has miscarriage; P wins – creates exception for wanton and willful exposure to emotional harm (particularly egregious, foreseeable). |
| o Dillon v. Legg (1968) | P distressed by seeing child die at close distance; Tobriner says emotional harm should be treated like other categories of injury and apply general negligence calculus; applies Bystander Rule |
| • “Pure” economic loss | generally NO duty to prevent purely consequential economic loss. Exceptions: (1) foreseeable risk, (2) closely connected to D’s actions, (3) not wholly speculative, (4) not a part of ordinary business risk. |
| • Duty to mitigate and religion -- P cannot be held contributorily negligent for failure to mitigate harm because of religious beliefs, but D may be held liable for unreasonable conduct resulting from religious beliefs. | Walker Flynn v Princeton Motors Friedman v SNY Lange v Hoyt Munn v Algee |
| o Walker Flynn v. Princeton Motors (Australia) | D injures Catholic P in a way that will make childbirth dangerous, P refuses to take birth control and ultimately has child with catastrophic physical results; P wins. |
| o Friedman v. State of New York | P is stuck on D’s ski lift with a man, Rabbi told her she could not be alone with men after dark so she jumps – P wins. |
| o Lange v. Hoyt (1932) | 8 yo P injured by D’s negl; CS mother refuses to provide her immediate operations that would have ameliorated her condition; Ct allowed child P to recover medical expenses despite failing to mitigate, allowed jury to determine whether M reasonable. |
| o Munn v. Algee (1991) | Jehovah’s witness P in car crash with D, refuses to get blood transfusion and dies; D wins – not clear why result is different, Guido thinks this case is wrong. |
| Owners and Occupiers of Land (old & new rules) | Old Rule - Tripartite 1) Invitees 2) Bare licensees 3) Trespassers New Rule - Minority of states (CA, NY) have rejected these categories and used general negligence calculus instead, although no duty generally owed to trespassers |
| Owners & Occupiers of Land (cases) | Indermauer v Dames Gautret v Egerton Osterman v Peters Nelson v Freeland(NC) -- new Smith v Arbaugh's -- new |
| Indermauer v. Dames (1866) | P is sugar refiner on D’s property for business and falls down negligently maintained shaft for moving sugar; P wins – D owed P ordinary care. |
| • Gautret v. Egerton (1867) | P uses D’s property from time to time and falls from bridge into cuttings and dies; D wins – not responsible to exercise ordinary care in maintaining bridge; P’s use of land was like a gift. |
| • Osterman v. Peters (MD 1971) | young child wanders into D’s yard and drowns in swimming pool, which is not fenced as required by statute; D wins – no duty of care owed trespasser; swimming pool without a fence is negligent but not wanton/willful. |
| o Nelson v. Freeland (NC 1998) | tripartite division should be abandoned because entrant’s status can change or may be unidentifiable – should be a jury question. |
| o Smith v. Arbaugh’s Restaurant (1972) | P health inspector in D’s BBQ rest and slips on steps to BBQ pit; court rejects use of tripartite system as product of English landowner dominance; owners & occupiers duty to maintain property in a condition reasonably safe under all the circumstances. |
| Products Liability (history) | Common law rarely held D's liable - privity Many exceptions - Thomas v Winchester, MacPherson v Buick Modern Rule - SL |
| Products Liability (cases) | Winterbottom v Wright Thomas v Winchester MacPherson v Buick Escola v CocaCola Hennington v Bloomfield Greenman v Yuba Barker v Lull (design defect) Lirano v Hobart Ford v Mathews West v Caterpillar Tractor McCarthy v Olin Hamilton v Beretta |
| Products Liability (defenses) | 1. Cont/comp negl, 2. Assumption of risk, 3. Product misuse |
| o Winterbottom v. Wright (1842) | D manufactures stagecoaches & has K with Postmaster; P mail-coachman drives defective stagecoach and suffers injury; D wins – D no duty to those w whom not in privity and who use his products, would create an unacceptably unlimited world of liability. |
| o Thomas v. Winchester (1852) | P’s wife takes drug her husband buys from druggist, turns out to be mislabeled poison; P wins – court explains that drug manufacturer is engaged in ultrahazardous activity and thus owes greater care to potential users of the product. |
| o MacPherson v. Buick Motor Co. (1916) | P drives Buick purchased from retailer; vehicle collapses b/c of bad wheel; P wins; Cardozo attempts to do away w CL rule and replace w trad negligence calculus (“era of negligence”); D has reasonable duty to avoid foreseeable harm to foreseeable users. |
| o Escola v. Coca Cola Bottling Co. (1944) | Traynor (concurring) argues manufacturer of consumer goods should be strictly liable for product defects on grounds of deterrence, availability of insurance and access to evidence. |
| o Henningsen v. Bloomfield Motors (NJ 1960) | P buys car from retailer for wife, car is defective and causes crash; P wins – court finds implied warranty of merchantability (Uniform Sales Act – goods must be of “fair average quality” to be merchantable) based upon foreseeable use of vehicle, even wo |
| o Greenman v. Yuba Power (CA 1963) | P uses defective Shopsmith power tool manufactured by D and is injured; P wins – Traynor applies strict liability, says jury could have reasonably found D negligent in manufacturing and advertising product; |
| Test for Defectiveness? | 1. Manufacturing Defect 2. Design a. Risk/utility b. Consumer expectations c. Reverse LH d. Warnings • Barker v. Lull (1978) |
| o Liriano v. Hobart (1999) | Rule that there is not strict liability on product design if injury occurs after retailer modifies product, |
| o Ford Motor v. Matthews (1974) | P injured in use of vehicle manufactured by D; P’s negligence does not bar recovery in strict liability cases; note that other cases indicate that contributory negligence must be “unreasonable and voluntary.” |
| o West v. Caterpillar Tractor (1976) | P injured in use of tractor manufactured by D; contributory negligence is a defense if based on grounds other than failure to detect defect or guard against possibility of its existence. |
| o McCarthy v. Olin (1997) | victims of LI commuter railway shooter sue manufacturer of Black Talon bullets; D wins – product is not defective, as it is designed to maim/kill and thus risk/utility test cannot apply, no cause of action against a product that is dangerous per se. |
| o Hamilton v. Beretta (2001) | victims of gun violence sue manufacturer, arguing breach of duty to exercise reasonable care in marketing and distribution; D wins – potential victim pool is too large, connection between manufacturers and criminals too tenuous. |
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