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Course: Torts Fall 2003
School: unknown
Year: 2003
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Also available: Torts for the Bar exam.

SECTION 1: Basic overview of fault v. strict liability


Torts is about who should bear the costs of life’s misfortunes



In order for one party to shift the burden of their misfortune on to someone else, he or she must establish that the person failed to perform a duty and a harm resulted… At bottom, strict and fault liability are different ways of assigning individuals’ duties:



a. Strict liability says I have a duty not to harm you

b. Fault liability says I have a duty not to harm you intentionally (but Coleman questions the meaning of intentionality), recklessly or negligently… fault liability does not necessarily imply blame; the harm could be accidental



  1. There are three types of fault liability

    1. Negligent liability: being careless. Fail to protect against harm you might cause others. Didn’t pay attention.

    2. Reckless liability: Actively proceed to undertake an action that you know could cause harm. Considered potential harm and ignored it.

    3. Intentional liability: The aim, the goal, the desire was to bring about the act that caused the harm. This relates only to having intended the action, not necessarily that you intended the harm. E.g. Vosburg v. Putney


As a result of their different duties, strict and fault liabilities involve different burdens. For strict liability, the burden is merely to show that someone’s action injured you, while for fault liability an individual must prove that she was injured as a result of a person’s negligence, recklessness or intentional conduct



In some ways, you can see strict and fault liability as looking from different perspectives:



1. strict liability could be seen as looking from the perspective of the victim and asking “who should pay for my injuries?” In Rylands, Judge Bramwell asks were the plaintiff’s rights violated?... Bramwell argues that whether defendant should be liable depends on whether plaintiff had a right not to be harmed that was infringed in some way by defendant…



2. fault liability could be seen as looking from the perspective of the injurer and saying “was it my fault?” In Rylands, Judge Martin starts from the other point of view of defendant and says if you hold defendant liable then you essentially make the defendant an insurer of the plaintiff involuntary… the law does not generally say that you must insure everyone who is vulnerable to you… there has to be more than that… and the more is that you have to acted in some way negligently… if you hold someone liable in the absence of wrongfulness it makes them your insurer









II. Current law:



Modern view is that plaintiff generally should recover based on some notion of negligence of someone else… more specifically:



Strict liability applies in cases where parties are involved in “abnormally dangerous” activity:

-- In Rylands v. Fletcher the Court held that a person who uses his land in a “nonnatural” way that is likely cause substantial damage bears the liability for any damage that it causes… Rylands was codified in the First Restatement as “ultrahazardous” activities and in the Second Restatement as “abnormally dangerous”… the “abnormally dangerous” activities seeks to separate rare and dangerous activities such as manufacturing explosives and blasting where strict liability applies from more commonplace dangerous activities where fault liability generally applies



Fault liability applies to all “non-abnormally dangerous” activities [this rule is generally true though Coleman has suggested there are a few cases where neither strict or fault liability apply such as no-fault auto accidents—these are where people have already bought insurance to cover the cost of injuries]



Generally speaking, both strict and fault liability are limited by what’s foreseeable.

1. Kant’s philosophy is that if you don’t do what’s right you are responsible for the losses even if they are unforeseeable

2. BUT generally courts have held that in either strict or fault liability you are only

responsible for harm that a reasonable person could have foreseen



III. History of Strict v. Fault Liability



The Court is constantly see-sawing between the notions of strict and fault liability, trying to find a balance that fits the moral intuitions and prudential reasoning of the time… but broadly and imprecisely speaking a chronological analysis suggests:



UP THROUGH MID-19TH: Strict liability

BY END OF 19TH CENT: Fault liability




THE SIMPLE STORY IS THAT THE DIFFERENCE BETWEEN STRICT AND FAULT LIABILITY LIES IN COMMON LAW: in common law, there was trespass and case… trespass (direct) as exemplified by Weaver v. Ward is the historical beginning of strict liability… case (indirect) as exemplified by Scott v. Shepherd is the historical beginning of fault



WHAT’S WRONG WITH THE SIMPLE STORY? Brown v. Kendall – Judge Shaw in this case says you’re confusing the box of case or trespass with the substantive proof of liability… in both case and trespass you need to show fault… so, it’s not that it was trespass on one hand or case on the other… we always recognized that in order to recover you sometimes had to show fault and sometimes you did not have to… there was always recognition that sometimes people owe other people duty to exercise care and other times duty not to harm them…



So strict v. fault liability was always there – question has always been what circumstances lead to falling under one category versus the other – and there’s always been a balancing act by judges trying to seek an equilibrium between strict and fault… some points in history many more cases litigated under fault and other points more litigated under strict…



A few cases help to illustrate the historical development of Court precedent on strict vis-à-vis fault liability






SUMMARY OF CASE: Weaver and Ward are skirmishing for muskets and Ward accidentally hurts Weaver during struggle; Weaver sues Ward; Ward says I didn’t do this on purpose, my musket discharged involuntarily, against my will; Weaver says okay we’ll just let it pass that it was unintentional, but the fact is that your gun went off, you hit me, and now I’m injured, so you owe me b/c I had right not to be harmed; Weaver wins



IDEAS: 1. STRICT LIABILITY: if this is a criminal case, intention matters, but here not interested in culpability, we’re interested in what happened… idea conveyed is that torts is not an institution where underlying idea is culpability… this case says as straightforwardly as possible that saying you did not mean to hurt someone is irrelevant – we want to know 1. whether you acted 2. whether person injured in some way as a result of your action – so liability different than culpability…



2. THERE ARE STILL SOME DEFENSES: Court says Ward would not be liable if his action was an “inevitable accident”, e.g. Court tells us if winds blow me into you, someone runs into your bullet, not liable–what court’s saying here is when tell you’re not to blame, it doesn’t matter… but when tell me you’re not the cause (the wind is the cause) it matters… so if can establish that it was inevitable or unavoidable you can get off



Law of torts from 17th century on after Weaver v. Ward said not just enough as Weaver says to show person did action and is therefore liable… need more… modern courts have regarded “inevitable accident” standard articulated in Weaver as a way of saying that defendant acted neither negligently nor with the intent to harm






SUMMARY OF CASE: trial judge says in separating dogs, must use extraordinary care; higher court overrules saying only need “ordinary care” b/c act was lawful



IDEA: COLLAPSING OF TRESPASS AND CASE IN FAVOR OF FAULT LIABILITY: Judge Shaw says directness (trespass) v. indirectness (case) is not a good standard… either way have to show negligence no matter which box you are in… so Shaw saying let’s get rid of distinction between trespass and case and collapse the writ system






But case after Brown was Rylands and here law already shifting away from fault and reserving room for strict liability … law is saying some special characteristic justifies excepting it from the fault rule



Today, exceptions to fault rule include: ultra-hazardous activity, nuisance, pollution, products liability



a. Spano v. Perini: Interesting thing here is not saying no right to blast, saying who should pay for blasting injuries… injuries will result from blasting no matter how careful blaster is… question: who should bear cost? Better that the law should fall on those who blast … this is same formulation we saw in Summers v. Tice… this is not about rights and duties like other cases… things go wrong and law decides who should pay based on what’s the best reasoning… it’s not about specific people involved… it’s just about categorical facts: you’re a blaster and I’m not… (Coleman is against the Spano approach because he believes torts is about a specific relationship and b/c shouldn’t pay unless violate a duty)



b. Baker v. Snell: if you know you have a ferocious dog, you keep it at your own peril even if a third party does something to provoke it… so suppose have a big bear on property; now don’t just need to cage bear, need to make sure no one comes by and lets the bear lose… so scope of liability includes actions of third parties… third parties do not break the causal chain… this is more than strict liability; this is absolute liability



c. Boomer v. Atlantic: someone seeks injunction… this says as long as pay them for what you’re doing you’re free to do it… so this is a case of strict liability where implication is you’re not doing anything wrong… it’s perfectly permissible to pay to pollute


IV. The Philosophy of Strict v. Fault Liability



Basic question: What are the conditions under which a victim or plaintiff can shift her costs (loss) to the defendant (who is often, but not always, an injurer)?


A. Philosophy of strict liability: you constantly make messes and should clean them up… as articulated by Lord Cranworth in Rylands: “For when one person in managing his own affairs causes, however innocently, damage to another, it is obviously only just that he should be the party to suffer



B. Philosophy of fault liability: messes are inevitable and it’s a part of life… we just owe others reasonable care



Strict and fault liability are perceived to be in tension with one another but Coleman does not think they are in tension because Coleman believes that they are just different ways of assigning duties. More precisely, the difference is in the content of the duty. If my duty is not to harm you (strict liability), then cannot injure you regardless of whether my fault; by contrast, if my duty is not to harm you recklessly (negligence), then I cannot injure you carelessly.



V. The Economics of Strict v. Fault Liability



If the Coase theorem holds (1. property rights are well-defined 2. actors are completely rational and fully informed 3. transaction costs are minimal), then we can reach efficient outcome regardless of whether we apply strict or fault liability… it does not matter who you hold liable or who you give rights to



The point is illustrated by Vincent v. Lake Eerie: in the actual case, Court applies strict liability and boat owner charged $500 to repair dock; alternatively if the Court had left the loss on the dock owner, the dock owner have built the cost of the dock damage into the price of docking so in the end boat owners would pay the $500 anyway



Thus, the assignment of legal entitlements in terms of strict/fault liability does not influence allocative efficiency if the Coase Theorem holds



But if the Coase Theorem does not hold, then it does matter how Court decides…



From a law and econ perspective:



-- if strict liability is applied, this forces individuals to pay for all the costs they inflict on others

Pro: this forces individuals to internalize the risks they create

Con: no incentive for potentially injured parties to take precautions to prevent being injured b/c injury costs the injured nothing in strict liability



-- if fault liability is applied, this forces individuals to pay for all “unreasonable” (i.e. non-cost-justified) costs they inflict on others

Pro: this forces individuals to take all cost justified precautions but at the same time requires potentially inured parties to be consciously protecting themselves from injury

Con: there are some activities that are so risky that even if one takes cost-justified measures the risk may be high



Our system tries to balance the pros and cons of strict and fault liability by applying strict liability in cases of ultrahazardous activities and fault liability in other cases



SECTION 2: Intentional Torts

    1. Overview

      1. Intend an unlawful act that causes harm.

      2. Action can be unlawful even if intention was good (see Mohr).

      3. Can be responsible for unforeseeable harms, that is don’t need to intend the eventual harm.

      4. Duty: Owe duty to everyone not to intend to act (and not to act) in a harmful or unlawful way.

      5. Causation: Can be held responsible for unforeseeable consequences as long as intended the act that caused the harm (see Vosburg.)

    2. Vosburg v. Putney (Unlawful Action)

      1. Facts: 14 year old Defendant kicked 11 year old Plaintiff under the table after class had been called to order. P had a preexisting injury that had occurred in a sliding accident. The injury was starting to heal and P did not actually feel the kick but a few moments after being kicked he felt intense pain. Ultimately, he lost complete use of his leg.

      2. Holding: D was found liable because acted in an unlawful way to P. This is an intentional tort because D intended the act (kicking the leg) even though didn’t intend the final harm (loss of use of leg).

      3. Duty to Care:

        1. To whom did D owe duty? D had a duty not to act in an unlawful way towards his classmates.

        2. Content of Duty: In this case, unlawful, was acting in a way that did not follow the rules of the classroom. The class had been called to order so kicking, even light, playful kicking, was unacceptable. This would have been a different case had P been kicked during recess, in which there would have been a different set of rules. That is, on the playground, one might expect to be kicked in play. Another way to think about this is that D had a duty of reasonable care towards classmates and reasonable care, in the classroom, included following classroom rules.

      4. Breach of Duty: The breach was acting in an unlawful way (kicking a classmate in class after class had been called to order)

      5. Causation: The kick caused disease already in the knee to be “revivified.” “The touch was the exciting or remote cause of the destruction of the bone.” D intended to kick, kicked, caused microbes to be let loose, caused loss of use of leg. So, the kick caused the injury to the leg.

      6. Harm: The injury to the leg.

    3. Mohr (Consent)

      1. Facts: Mohr had a problem with her ear, Williams looked in the right ear and saw polyps, told Mohr that she would need surgery. Williams couldn’t see into left ear. Williams told Mohr that she needed surgery on her right ear. He didn’t say anything about her left ear. Mohr consented to have her right ear operated on. Her family physician attended the surgery. While Mohr was under anesthesia, Williams found that Mohr’s right ear wasn’t as diseased as he had thought and that Mohr’s left ear was in very bad shape. Mohr’s family physician also examined her left ear and agreed that it needed surgery. The surgery was completed on the left ear and it appears to have been “successful and skillfully performed.” However, upon waking Mohr’s left ear hurt badly and she believed that it was in worse shape than before.

      2. Holding/Coleman Thoughts: Williams committed an intentional tort (assault and battery) by operating on the left ear without Mohr’s consent. Without consent, surgery is just battery.

      3. Duty: Owe duty not to touch people without their consent. So, even though the doctor had consent to operate on the right ear, the act of operating on the left ear, without consent to do so, was a breach of that duty.

      4. Causation/Harm: The act of the operation was the harm (the violation of Mohr’s body). Whether or not her ear was better or worse as a result of the operation was not the point nor was the jury supposed to consider questions of negligence. However, the remedy can take into account the nature and extent of the injury.

      5. Questions Coleman suggested we should think about:

        1. What really counts as harm? (Touching without consent?)

        2. How do people respond to rules (After case, advent of consent forms.)

        3. Are there any circumstances when a person can act without your consent? (Emergencies)

    4. Hudson v. Craft (Consent)

      1. Facts: (Hudson – plaintiff) (Craft – promoter) Hudson participated and was injured in an unlicensed boxing match. He and his opponent voluntarily agreed to participate and were paid $5. The law requiring licenses for boxing matches was enacted precisely to protect people such as Hudson and his opponent from dangerous amateur boxing matches. (In licensed matches, fighters underwent physical exam before fighting, had maximum number of rounds, physician in attendance, referee supervised to stop match etc.)

      2. Holding: Craft liable for injury. A person cannot consent to a breach of the peace so there was no consent.

      3. Duty: Have a duty not to breach the peace. The law was passed to protect a certain class of citizens (men in need of money willing to beat other people up and be beaten up without any safeguards because they are so desperate). The law laid out a duty that Craft had to participants in boxing matches. By not following the law, violated that duty.

      4. Causation/Harm:

        1. Craft argued that the intervening act by Hudson’s opponents excused him from liability.

          1. Not an excuse in this case because question is whether or not Hudson and Craft are connected. The Court says they are. Hudson would not have been injured but for Craft’s initiation of the illegal boxing match. In that sense, Craft caused the injury.

      5. Additional Notes: This case illustrates interconnection between torts and criminal law. By allowing criminals to be liable in torts, torts reinforces statutory law.





section 3: NEGLIGENCE



Black Letter: Negligence = conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm (where duty = the standard established by law)



The Duty to Care

  • To whom do you owe the duty? Depends on the circumstances



    • To all parties who could foreseeably be harmed by your actions & whose harm you could reasonably avoid by undertaking cost justified precautions SUMMARY: Where D’s actions will not affect others, D has no duty to others. But since most actions do affect others in some way, D will usually have duties to others. Content of duty depends upon the circumstances: the type & severity of harm likely to occur, whether that harm is foreseeable, whether it is avoidable, whether the precautions necessary to avoid the harm are reasonable and cost justified, whether public policy concerns mandate extraordinary care or merely ordinary care, etc.



    • To Neighbors = Landowners have responsibilities to their neighbors irrespective of property rights

      • The Thorns Case

FACTS: D trimmed thorn hedge adjacent to P’s property. D’s thorns fell onto P’s land; D went over and picked them up and trampled some of P’s crops in the process. P sued for value of lost crops.

HOLDING: D ordered to pay b/c he could have avoided the damage and he had no right to trample P’s crops.

SIGNIFICANCE: This was one of the earliest definitions of a tort. Established that rights of landowners could be curtailed by duties to neighbors. Here D had perfect right to trim his hedges. Since he owned the clippings, he also had a right to take them back when they fell on his neighbor’s property. Nevertheless he had a duty not to harm his neighbor’s land in exercising his rights over his own land.

      • Rylands v. Fletcher

FACTS: D had reservoir built on his land. Reservoir was built on top of old mine shafts which connected w/shafts under P’s land. P’s land was flooded when floor of D’s reservoir collapsed and water flowed out through mine shafts. Neither P nor D knew in advance that their land was connected by the shafts. Record did not support negligence on D’s part.


HOLDING: P has right to be free from “foreign” water. Water here was foreign in sense that it came onto P’s land through D’s action. D therefore liable for damage to P’s land. “The person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.”

SIGNIFICANCE: Landowners have strict liability duty to guard against escape of any potentially mischievous thing which they bring onto their land. Standard is “not naturally there and potentially mischievous. Here D had right to use his land in this manner. His act was neither unlawful nor negligent (according to testimony on record). However, he is strictly liable to ensure the water does not escape.



    • To Co-Actors: These are cases where P & D are both involved in the same activity

      • Weaver v. Ward

FACTS: P & D involved in military exercises with loaded guns. D accidentally shot P. Question: Should D be liable when harm resulted from accident?

HOLDING: D held liable. D could escape liability in 3 ways only: 1) inevitable & unavoidable accident, 2) P’s act being the chief cause of the harm (e.g. if P had jumped in front of the gun while D was firing), 3) Intervention by 3rd party chiefly causing P’s harm. Here none of the exceptions apply. D’s act was direct cause of P’s harm.

SIGNIFICANCE: Neither intention nor criminal culpability is relevant in torts. D will always be liable unless he can show he is “utterly without fault” (in other words unless he can show the harm came from some agency other than his own)



    • To 3rd Parties: Where D does not intend for his action to affect 3rd parties

      • Scott v. Shepherd – established duty to indirectly harmed plaintiffs

FACTS: D threw lighted squib into crowded marketplace. Several people picked up the squib and threw it further in order to avoid harm to themselves. Final person to whom squib was thrown suffered injury when it exploded. Question: Is D liable to the injured P, when P would not have been injured but for the intervening actions of 3rd parties?

HOLDING: D held liable. None of the intervening actors had agency. They were reacting reflexively in throwing the squib away from themselves. D’s act was the one that caused the harm.

SIGNIFICANCE: Established idea of causal chain. Showed causal chain is not broken by reflexive intervening actions. Independent agency is required to break chain and free D of liability. Also showed torts law doesn’t care about excuses (i.e. intervening 3rd parties).

      • Palsgraf v. Long Island RR – limits on duty to indirectly harmed plaintiffs

FACTS: Man ran for moving train while carrying bundle of explosives. Train employee grabbed him and helped pull him onto the train as train left station. Man made it onto the train but dropped the bundle. It exploded and the explosion rocked the platform, causing some scales at the far end of the platform to fall upon and injure P. Question: Is D (RR company) liable to P for damages when the falling of the scales could not possibly be foreseen as a consequence of helping the man onto the train?

HOLDING: D not liable. The impossibility of knowing the package’s contents and the remoteness of the chance that the woman would be injured absolve the railway of liability. P should have sued the man carrying the fireworks.

SIGNIFICANCE: Established remoteness as possible escape from liability.



  • Content of the Duty: Not to harm carelessly



    • Reasonable Person Standard = Standard for determining negligence in most tort actions between private individuals is whether an ordinary, prudent person would have acted thus

      • Vaughn v. Menlove

FACTS: D negligently built haystack prone to catching fire next to neighbor’s cottage despite repeated warnings from neighbors that stack was highly flammable. Stack caught fire and burned down neighbor’s cottage. Neighbor (P) sued to recover. D was a person of below average intelligence. Question: Should D be held to standard of “ordinary prudence of reasonable person” or something less?

HOLDING: Court applied reasonable person standard and found D negligent.

SIGNIFICANCE: All individuals are held to the same, objective standard. Reasonable Person Rule is adopted as standard to provide basis upon which others can judge their behavior and yours. Rule does not purport to be fair, just purports to create a standard for liability which all can know in advance. It’s a rule that provides enough overall benefit to society to justify its use, given that no better alternative exists



    • Inevitability: Legal inevitability means harm would have happened anyway despite D’s exercise of due care under the circumstances

      • Brown v. Kendall – trespass vs. case

FACTS: P was injured when D accidentally struck him w/a stick while trying to break up a fight between P’s dog and D’s dog. Questions: is this an action in trespass or in case? Is D liable? If so, is he strictly liable or liable in negligence?

HOLDING: New trial ordered on question of whether D was negligent in hitting P. If so, then liability follows. If not, then no liability.

NOTES: Traditionally, actions of case would lie for harms sustained indirectly, whereas actions of trespass would lie for harms sustained directly. Parties had to obtain different writs from the king based on the type of action they wished to bring. This particular case posed a problem b/c the harm was clearly direct (which would imply trespass), but the act causing the harm was neither intentional nor unlawful (the usual requirements for an action in trespass). Under the old classifications P had no way to proceed.

SIGNIFICANCE: Did away w/distinction b/w trespass and case. Shifted burden of proof to party seeking recovery, regardless what type of action is brought. P must show that D breached a duty toward P and that P was harmed by that breach. Also defined inevitability in terms of reasonable person standard. A harm is legally inevitable if it would have occurred even in the absence of negligence by the defendant. (Note this is much more lenient than popular definition of inevitability, which would require that a harm be unavoidable no matter what defendant does.)



    • Duty of Extraordinary Care: Applies to all common carriers (i.e. public transportation companies); courts required common carriers to exercise “the highest degree of care”

      • See e.g. Palsgraf & all other Railroad cases

SIGNIFICANCE: Companies w/a particularly public duty are held to higher standard of care than a reasonable person. They must take more precautions.



    • Foreseeability & Avoidability

      • Stone v. Bolton

FACTS: P was hit by a cricket ball while walking down a public road next to a cricket field. P sued cricket club for damages. 3 or 4 cricket balls had hit the road in the last 30 years, so it was foreseeable. Also, the club could have built a higher fence to prevent the stray ball, so it was avoidable. Question: do foreseeability and avoidability automatically establish negligence?

HOLDING: P cannot recover. D did what reasonable man would do – namely, nothing. Fences were high enough and field large enough to expect chances of harm to passersby to be very low. Costs of undertaking further precautions to guard against a very remote possibility of harm would have been excessive. Therefore D not negligent.

SIGNIFICANCE: Defendants need not take all possible precautions to guard against harm to others. They need only take the precautions of a reasonable person. In determining reasonableness, the courts can consider the likelihood of the harm, the severity of the likely injury to P if harm does occur, the cost to the defendant of further reducing the chances of harm, the costs to the plaintiff of avoiding the harm, and the importance of the action undertaken by D.

      • Brower v. NY Central RR

FACTS: P’s loaded wagon was hit by D’s train as result of D’s negligent crossing. P’s wagon was destroyed, his horse killed, and his goods stolen by thieves at the scene. Question: Can P recover value of the stolen goods when thieves, not D, are direct cause of their loss?

HOLDING: P can recover. D’s act rendered P unconscious. The natural result of being unconscious is inability to protect one’s property. The looting was foreseeable, since D employed 2 conductors to protect the train against similar looting in accidents. Therefore D had duty to protect P’s goods once D incapacitated P through its own negligence.

SIGNIFICANCE: Intervening acts of 3rd parties don’t break causal chain if those acts could have been foreseen by the party whose original act gave rise to the possibility of intervening acts. People have a duty to avoid negligent harm and the natural consequences thereof.



    • Cost Justified Precautions (Learned Hand’s simplification of the foreseeability and avoidability problem)

      • Cost justified precautions = precautions whose cost is less than or equal to the cost of the foreseeable harm, discounted by the probability of its occurrence

      • Negligent person = a person who fails to take the cost justified precautions

      • Reasonable person = a person who does take the cost justified precautions

SUMMARY: You’re negligent whenever the cost of the harm, discounted by the probability of its occurrence, exceeds the cost of avoidance. Notice this formula says nothing about who’s being forced to bear the cost. Applying a blind mathematical formula ignores the philosophical question of who should be responsible for the cost of the harm. Law & Economics school applies Coase Theorem here (essentially it doesn’t matter who bears the cost; what matters is that whoever bears it is the person for whom it’s the cheapest)



    • Immediacy/Non-Remoteness

      • See Palsgraf above (under “to whom do we owe duty?”)


    • Prior knowledge of harmful condition

      • Hammontree v. Jenner

FACTS: D was epileptic who was on medication and had not had a seizure for 14 years. While driving, D had seizure and crashed into P’s bicycle shop, causing damage and personal injuries. Record showed both D and D’s doctor thought he was fit to drive. P urged court to adopt strict liability rule for defendants who know they have a potentially harmful medical condition.


HOLDING: D can only be liable for auto accident if he was negligent. Record shows no negligence here. Court declines to adopt strict liability for auto accidents absent a legislative mandate. Therefore D not liable.

SIGNIFICANCE: Prior knowledge of a condition that would prevent someone from acting responsibly/non-negligently obliges that person to take precautionary measures to prevent harm to others—but when such action is taken and the situation is reasonably believed to be under control, the defendant will not be liable when a harm unforeseeably follows.





      • Breunig v. American Family Ins.

FACTS: While driving, D was seized by a mental delusion. She saw a white light and followed it, crashing into P’s truck. D claimed she was not negligent because she had no reason to believe hallucinations would occur and affect her driving. Lower court jury, however, found her negligent and said on the evidence that she had foreknowledge of her mental condition. D appealed.

HOLDING: “A Sudden mental incapacity equivalent in its effect to such physical causes as a sudden heart attack… should be treated alike and not under the general rule of insanity.” Sufficient evidence existed for jury to find D had foreknowledge of her condition. Given this evidence jury could reasonably expect her to infer foreseeable harm from driving a car. D is liable.

SIGNIFICANCE: Prior knowledge of a condition that would prevent someone from acting responsibly/non-negligently obliges that person to take precautionary measures to prevent harm to others. Failure to do so precludes indemnity based on his/her inability to act responsibly/non-negligently. Foreknowledge and reasonable foreseeability are questions for the jury to decide.



    • Duties of Minors

      • Daniels v. Evans

FACTS: P was a minor driving a motorcycle. He died when his motorcycle crashed w/D’s car. At trial, judge instructed jury that P’s conduct was to be judged by reasonable minor standard, whereas D’s was to be judged by reasonable adult standard. This in effect barred the defense of contributory negligence and jury found for P. D objected to the instruction and appealed.

HOLDING: D’s exception sustained. Minor operating a motor vehicle must be judged by same standard of care as adult.

SIGNIFICANCE: Minors may sometimes be held to adults’ standard of care, especially when performing adult-like activities



    • Duties of Disabled Persons

      • Fletcher v. City of Aberdeen

FACTS: City workmen removed barricades from in front of hole in street to perform work and forgot to replace barricade when they moved on. Blind man P using cane to walk did not detect hole (due to lack of barricade) and fell in. Jury found for P & D appealed. Question: what standard of care does city owe persons w/disabilities?

HOLDING: “City… is obliged to afford that degree of protection which would bring to the notice of the person so afflicted the danger to be encountered.” “The blind & [other disabled people] can use the streets without being guilty of negligence if, in so doing, they exercise that degree of care which an ordinarily prudent person similarly afflicted would exercise under the same circumstances.” Here P used ordinary degree of care; therefore city liable.

SIGNIFICANCE: Handicapped people are expected to act with an ordinary standard of prudence given their condition, and others are obligated to help provide for the safety of handicapped people who are acting with ordinary prudence



    • Role of Custom, Statutes, & Industry Standards

      • Precautions (see Lamas v. Borras, under “Calculus of Risk”)

SUMMARY: Whether or not the precaution is customary is irrelevant to whether or not the precaution should be taken. Proper analysis is cost/benefit (taking probability of harm into account). However, “customary practice” may serve as evidence that particular precaution is reasonable and cost-justified.

      • Criminal statutes as grounds for civil liability (see Osborne v. McMasters, under “Role of Custom & Statute”)

SUMMARY: Criminal statutes create legal duties and law of torts is about enforcing legal duties, whatever their source. Therefore failure to comply w/a criminal statute can give rise to a civil cause of action in torts. In practice, criminal culpability is treated as strong evidence that negligence exists; it is not treated as automatic grounds for strict liability.


October 15, 2003 CALCULUS OF RISK

This section answers the question “What care does a reasonable person take?”

Previous classes have set forth an objective standard, which can be relativized based on:

  1. The actor (a blind person who fell down a hole that a seeing person would notice is held to a standard of reasonability that accounts for his disability; a child is held to the standard of a reasonable child, although these subcategories also operate with their very own objective standards, ex. Objective standard for a reasonable child).

  2. The nature of the activity (ex. Driving a motorcycle by child shifts the standard to reasonable adult)

Relevant cases from earlier classes include those that develop objective/relativized standards, as well as Bolton v. Stone, which expands the duty of care (foresee ability is not the only requirement for care).


Blyth v. Birmingham Water Works 156 Eng. Rep. 1047 (Ex. 1856), pg. 179


  • Pipes burst b/c of an accumulation of frost on the plug during a RECORD frost.

  • Plaintiff argues that due to this, plaintiff’s house flooded.

  • Plaintiff has sued the owners of a nonprofit waterworks who laid the water mains and plugs in the city street.


  • Trial court allowed jury to decide negligence.

  • On appeal, this court held that there was no evidence to be left for the jury (this was purely a matter of law).


  • Defendant doesn’t have duty to keep pipes clear of ice.

  • Exercising reasonable care is not to take EVERY precaution, but reasonable precaution. Thus taking reasonable precautions is the defendant’s duty. As this case demonstrates, even if you act reasonably, harm can occur. The aim is not to make harm impossible, but to keep harm to a reasonable level.

  • Plaintiffs have duties. Obligations fall on both sides, and not just the injurer. This begins to express the idea of contributory negligence.



Eckert v. Long Island Railroad, 43 N.Y. 502 (1871)


  • Plaintiff tries to save a kid who is about to be hit by a train.

  • He saves the kid, but he dies in the process. (Weaver v. Ward reference: running in front of the bullet except in order to save someone).

Plaintiff’s claim:

  • train was going too fast and didn’t give proper signals.


  • rescuer voluntarily put himself in danger, and thus doesn’t have a claim.

Holding: for the plaintiff:

  • train was moving too fast, and was therefore negligent.

  • No contributory negligence was found.

Questions for thought:

  • When could the plaintiff be held negligent?

  • Do you reasonably have to believe that you’ll be successful? We might say no: that people have instincts and instincts cannot be calculated, so that there would be no measure of reasonable success.

  • Do we want to encourage certain behavior (saving people)? To what extent do we want to encourage this behavior (ex. Do we want to encourage this behavior at the risk of death to the rescuer?)?

  • Are there any circumstances under which he would be negligent if he didn’t try to save the kid? Parents might be expected to always try to save their children, for example.


  • it’s reasonable for people to try to come to the aid of others, whether or not they have good reason to believe that they would be successful.

  • But if you know of something that will definitely make you fail (you try to rescue someone who’s drowning, but you can’t swim), then this is unreasonable. Surrounding circumstances are important for determining reasonability and negligence.

  • There must be some reason to believe that you will be successful.

  • The fact that you are sacrificing yourself for the child is not enough to make you negligent.



United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947)

Touchtone case in law and econ movement.

This ruling presents one possible answer to questions posed on 10/13/03 because fault doesn’t have to do w/ blame, etc., but is here an economic notion. Reminder, those questions are:

I. What risks/precautions does a reasonable person take

II. When, under what conditions, and who has the burden of establishing that a duty was not met? (By and large, this is the burden of the plaintiff, though sometimes it is shifted to the defendant. Under what conditions and why?)

a) How does customary practice figure in? If there is a customary practice, and you fail to measure up, are you then negligent?

b) How do statutes fit in?

c) What is the role of judge/jury in determining this (matter of law or fact)?




  • Defendant’s tug was towing a line of barges.

  • One barge broke away and hit a tanker.

  • As a result of the accident, barge began to leak.


  • whether bargee had a duty to have someone on the barge, which would have prevented the accident.


  • Learned Hand: You are negligent if you do not take cost justified precautions.

  • Formula for determining cost justified precautions: cost of harm (L) x probability of occurrence (P). If this is greater than the cost of prevention, you have duty to take care. If less, then you don’t.

  • Coleman says this is really a way to explore CONTENT OF DUTY. DUTY TO TAKE CARE is the duty to act reasonably, which is taking cost justified precautions. Reasonable person is rational. Rational person weighs cost-benefit and always tries to increase the latter while lessening the former. Based on this logic, NEGLIGENCE is no more than inefficiency => not a moral notion.

Coleman‘s Critique: This case does not outline the SCOPE OF DUTY between people (here, the tugboat to barge) but one’s duty to oneself (tugboat’s duty to limit its own damages). This is an important distinction because it doesn’t follow that the injurer doesn’t owe more to the person whose well-being is risked. This case doesn’t ask the question “what duty do I have to limit damages that are risked by others?“ this is an important question in torts for Coleman. Therefore, in his view, the law and economics movement that is based on a mistake!



Osborne v. Montgomery 234 N.W. 372 (Wis. 1931)


  • Defendant was driving a car, and stopped the car to drop of his clothes at the cleaners.

  • As he opened his door, plaintiff, a 13 year old on a bike, was knocked off his bike as defendants opening car door hit plaintiff’s bike handle.


  • court finds defendant negligent for not seeing the bike and opening the door (though not b/c he parked where he did).


  • reversed and remanded for calculation of damages,

  • This court rejects a strict liability construction and finds that under the proper standard of ordinary care, harm might result even if someone is exercising the standard of “the great mass of mankind” (AKA ordinary care).

  • Furthermore, we might expect that there are circumstances when society, “weighing the benefits against the probabilities of damage, in spite of the fact that as a reasonably prudent and intelligent man … should foresee that harm may result, justifies the risk and holds him not liable” (p187). E.g. Firefighters who drive quickly in populous area might be able to reasonably foresee a harm, but we as a society deem it fit and proper to hold them to a standard that risks this harm in order to receive a greater benefit.


  • Therefore, even if actions might naturally, foreseeably result in harm, there are times when society weighs this possibility, and still, on policy grounds, would not want to hold this actor negligent.



Colley v. Public Service Co. 10 A.2d 673 (N.H.1940)


  • During a severe storm, a power line fell onto a telephone line, and plaintiff, who was on the phone at this time, heard a loud noise through the phone, and she sustained a rare neurosis as a result of trauma.

  • Plaintiff sued power company and phone company.


  • found for phone company but against power company.


  • verdict against power company reversed.

  • It is true that defendant could have anticipated the harm caused by a loud noise.

  • This harm suffered by plaintiff is considered remote (and rare).

  • Plaintiff’s suggested alternatives to the status quo system used by the power company would have put more people at risk of electrocution from live wires.

  • Thus, in this case, the defendant cannot fulfill a duty of care to both the plaintiff and those who might be harmed by electrocution.

  • Because the law cannot except a “…liable if you do and liable if you don’t” construction (p188), the law must determine to whom the defendant owed a duty of care.

  • Determining that choice is based on weighing this remote possible harm to the plaintiff and the greater likelihood of harm that would befall ‘the man on the street’ due to electrocution. In balance, the former is relatively weaker. Thus, defendant’s main duty is to the man on the street.

  • If there were a method of reconciling the defendant’s duty to plaintiff and to those who might be at risk due to live wires, that burden of proof was on the plaintiff, and in this case, was not satisfied.



Andrews v. United Airlines 24 F.3d 39 (9th Cir. 1994)


  • When plane had stopped at the gate, a briefcase fell from the overhead, and injured plaintiff.

  • No one knows who opened the compartment or what caused fall.

Plaintiff’s claim:

  • injury was foreseeable and airline should have prevented it.


  • District Ct dismissed on summary judgment.


  • This court considers de novo and reverses, holding that a jury trial is necessary.

  • Airline, as a common carrier owes 1. “Duty of utmost care” and, 2. “Vigilance of a very cautious person towards [its] passengers.” (p198).

  • United is “responsible for any, even the slightest, negligence and [is] required to do all that human care, vigilance, and foresight reasonably can do under all the circumstances.” (p198)

  • Even though the airline has this heightened duty, it is not an insurer of its passengers and does have defenses available.

  • For example, United did not show that any further precautions were “prohibitively expensive” or inconvenient.

  • Possibly United had not done everything that was technologically available, and prudent to eliminate risk

  • Remanded for jury.



Canterbury v. Spence (revisited) 464 F.2d. 772 (D.C. Cir. 1972)


  • Plaintiff underwent surgery under advice of Dr. Spense.

  • Dr. Spence did not inform plaintiff or plaintiff’s mother about the specific risks of the surgery.

  • Plaintiff did not ask about the risks.

  • During the operation, Dr. Spence found that plaintiff’s spinal chord was in bad shape.

  • While plaintiff was unattended in hospital room (against doctors initial instructions), plaintiff slipped, fell, and later became partially paralyzed.

  • Plaintiff underwent second surgery, but sustained serious injuries.


  • Under directed verdict, trial judge found that plaintiff had not established negligence.

Holding: reversed.

Duty of care

  • Doctor breached his duty to disclose, which is a part of due care.

  • Duty emerges from an imbalance: that the patient has no knowledge of medicine, and the doctor has specialized knowledge.

  • Duty does not depend on medical practice (traditions/customs)

  • Instead, standard must be set by law, rather than by doctors, so that the patient’s right to self determination is actually realized.

  • Custom, however, does serve an evidentiary function.

Scope of duty: what is the scope of physicians duty to disclose?

  • This court does not follow “full” disclosure (too broad and too paralyzing), nor does it follow “good medical practice,” reasonable practitioner standard, nor medical custom.

  • Scope of duty is defined by the patient’s right to self determination, a right that can be achieved only if the patient has enough info to make an informed decision.

  • Test: is the information material to patient’s decision making process?

  • Is thus based on the reasonableness of information as it factors into decision making process.

  • If and only if disclosure was unreasonably adequate is there liability.

  • Courts have generally noted two exceptions to rule of disclosure

  1. Patient is unconscious or incapacitated and there is an emergency where imminent harm will result from non treatment, and this harm outweighs possible harm resulting from treatment itself. In these cases, the doctor should still make an attempt to get consent of relatives/guardians,etc.

  2. Therapeutic reasons: when disclosure will prevent a rational decision on the part of the patient or actually complicate treatment itself.

Causal relationship.

  • Is established if and only if disclosure of risks would have led patient to decide against treatment.

  • Standard here is not subjective (would this patient have decided against treatment) but objective (would a reasonable person decide against treatment).



Titus v. Bradford, V. & K.R. Co 20 A. 517 (Pa. 1890)


  • Defendant operated narrow gauge RR track.

  • While most of the cars on major lines had flat bottoms, many of that used the defendant’s line had rounded bottoms, and did not fit perfectly on the rail.

  • In order to secure the cars, defendant’s employees used wood that was bolted or tied.

  • Decedent had worked for defendant for 2 years.

  • Trains conductor has visually approved the cars.

  • As train rounded a curve, it swayed, plaintiff tried to jump on the next car. He died while attempting this.

Plaintiff ‘s claim:

  • It was negligent to use these ill-fitted cars on the defendant’s line.


  • Custom can serve as a defense against allegations of negligence.

  • One has met his duty when “he furnishes those [appliances] of ordinary character and reasonable safety, and the former is the test of the latter…reasonably safe means safe according to the usages, habits, and ordinary risks of the business…”

  • Defendant was also well aware of the risks in this situation, and accepted them with the job.






This section answers the question: what type of care and proof of care or proof of lack of care is required (epistemic) to establish negligence/duty?

Convergence of behavior is not equal to customs of behavior; just because everyone acts similarly one cannot conclude that there is a custom to act thusly. Customs are stronger than convergences, as customs require conscience consideration of others’ behaviors and the costs/benefits of taking those actions. Customary care is another way of measuring reasonable care. It’s not dispositive, but it helps establish what reasonable care in a given situation might be.

Non-Medical Fields: Failure to adhere to custom is evidentiary but not dispositive; custom is the quasi-ceiling of your responsibilities.




TJ Hooper


  • 2 Tugs were lost along with their cargo in a storm

  • Tugs didn’t have radios and had no warning of storm

  • 4 other tugs on the same route received warning via radio and docked.

  • Cargo owners sued for negligence.

Trial court:

  • Negligence defined: unseaworthiness

  • Having radios was customary practice and this practice made you seaworthy. If you don’t have a radio, then you’re unseaworthy…

  • (Could you be unseaworthy even if there’s no customary practice?)


  • Establishing who is negligent and customary practice.

  • Learned Hand: Customary practice doesn’t matter. He applies cost formula: pg. 206 (“An adequate receiving set suitable for a coastwise tug can now be got at small cost and is reasonably reliable if kept up; obviously it is a source of great protection to their tows.”).

  • Thus, DUTY to have radios results from the calculation that they are reasonably cost efficient.

  • Hand also expresses his concern that customary practice can set low bar for itself, and thus that we should not rely too much on it.

  • Overall, to Hand, custom as an independent way of determining right/wrong has no value, but it does have evidentiary value.

  • Evidentiary value: custom is evidence of cost justified behavior.

Questions for thought:

  • What is a custom vs. a habit or a convergence? (Can you argue that if no one has radios, it means that its customary not to have them?)

  • What is the difference between customary and custom (which might imply the reason behind behavior)?

  • How is customary practice identified?


  • What is the role/relationship of negligence and custom?


Lama v. Borras, 16 F.3d 473 (1st Cir.1994)


  • Doctor did not administer adequate conservative treatment before surgery, and thus failed to adhere to customs of medical practice.


  • Custom of medical care = reasonable standard. Failure to satisfy customary practice constitutes negligence.

  • There are two things to consider: if you fall below the standard, you’re negligent, but the other thing to remember is even if you have satisfied these basic requirements, it does not mean that you are not negligent. In this case, does the standard constitute a floor, or is it a ceiling as well, where you can’t be negligent if you satisfy it?

  • Generally, failure to follow local practice in medicine is grounds for negligence/malpractice.

  • Custom generally defined as “school of [medical] thought” since you may be able to find a couple of doctors to endorse any given decision and lesser standards.

  • The main torts question here is WHICH customs should predominate, or how do you chose the proper custom?

  • View of custom in relation to negligence: Follows Puerto Rican Statute

Benefit of custom as a standard of negligence:

  • Can use custom as a cost saving devise (instead of seeing what is cost effective and efficient in each case, defer to the industry standard).

Questions for thought:

  • When is custom necessary? Here there is a great deal of deference to custom, perhaps because this is a technically specific field. This is opposed to the previous two cases where Hand dismisses value of custom.

  • How are customary standards set? Which standards apply to which community? If you moved into a community that had poorer standards, should you be seen as accepting the risk of this community or should the community be held to a higher standard? Should there be a universal standard? Allowing people to defeat claims of negligence based on meeting customary standard might lead to a slowing down safety measures.

  • When do we use custom and when should we?

  • Is custom reliable? Why (not)?




This section demonstrates the relationship between criminal law and torts law (see also Hudson v. Craft).

Themes of these cases: (like custom)

  1. Does the fact that an individual has failed to comply constitute per se negligence or is it just evidentiary?

  2. If it is negligence, does it tell us who has claims in the event of an injury because they fall into the scope of foreseeable risk? (AKA Does it answer who has claim against you?)

(Next section: does it answer proximate cause issue?)

In order to establish per se negligence though violation of a statute, it is generally necessary to show that the statute was meant to protect against the harm incurred, and also that the statute was meant to protect against the person harmed. If a statute has a standard that says there are no excuses, none can be claimed by the defendant.



Osborne v. Masters, 41 N.W. 543 (Minn. 1889):


  • Defendant is a clerk who sold a bottle of unlabeled poison in violation of a statute requiring such bottles to be labeled.

  • Plaintiff drank poison and died.

Defense’s argument:

  • this isn’t a tort case; it’s a criminal case.

  • He can only be held responsible for common law duties in torts, not statutory duties.

  • Statutes can give rise to common law duties, but only if they do so explicitly, which the defense argues is not the case here.


  • Court challenges the idea that there’s no common law action in this case. There could very well be through inference and comparable situations.

  • Court says criminal statutes can create legal duties, and the law of torts enforces legal duties.

  • (Court didn’t use Hand formula. It did not argue that there is no real burden to label, and there’s a huge benefit.)

  • Duty is owed to those who the statute tries to protect (here, those injured by poisons through mislabeling/failure to label).

  • The failure to inspect the bottles might not be negligent if there’s a reasonable effort to discharge this duty, but if it would be a strict liability criminal offense, it could be read in a strict liability sense where it is reasonable to inspect every bottle.

  • Legislature in writing statutes is a sort of jury who has decided the reasonability of certain behavior before hand.

  • Must also establish the strength of the evidence. Here, only one unlabeled bottle causes death. Is that really proof of negligence? Is the evidence of failure to comply to the statute appropriate for proof of negligence?



According to the RTT, statutory violations are negligence per se when (1) an actor, without excuse, violates a statute that is meant to protect against this specific type of accident, and (2) if the victim is within that category of victims that the statute meant to protect.



October 29, 2003 Custom, Statutes, Res Ipsa Loquitor


General Discussion:

  1. What is the standard of negligence?

  2. How does one prove that the standard has been satisfied?

Where do custom and statutes fit in above?

Does Res Ipsa Loquitor fits into the second?

Which cases take the view that custom is evidentiary in answering these questions?

Proving Negligence: custom and statutes are seen by different courts as either:

  1. Evidence

  2. Strong evidence

  3. Presumptive but rebuttable

  4. Irrefutable evidence


Martin v. Herzog 126 N.E. 814 (N.Y. 1920):


  • Accident between buggy and car resulted in decedent’s death.

  • Decedent was driving his buggy without headlights after dark, in violation of a statute.


  • Defendant argued that this violation was prima facie evidence of contributory negligence.


  • Judge instructed jury that it might be some negligence, but not conclusive evidence of negligence.

  • Jury found for decedent, and found that there was no contributory negligence.


  • Reversed. Statutory violation is per se negligence.

(Cardozo: “We think the unexcused omission of the statutory signals is more than some evidence of negligence. It is negligence in itself.”)

  • To violate statute is seen as not meeting “standard of diligence” or “duty to conform” to collective laws.

  • Must further prove causal connection between this negligence and injury or contributory connex.

  • It’s possible that the statute has excusing conditions (the text is not cited in the book). If so, defense might have an excuse.



Brown v. Shyne 151 N.E. 197 (N.Y. 1926), :


  • Plaintiff went to a chiropractor.

  • Chiropractor, defendant, did not have a license, but he presented himself as competent.

  • Plaintiff became paralyzed after 9 treatments.


  • Judge instructed jury that violation of statute alone could be some evidence of negligence.


  • fact that he was unlicensed didn’t matter unless it was what caused negligence. He asks what the license has to do with it?

  • Proper torts question isn’t if it was negligent for the person to drive, but if the person was driving negligently.

  • License is a means of giving us the confidence that the licensed will perform without negligence, though it doesn’t have factual bearing on this.

  • Value of license in q. you could have said, “this person doesn’t have license and the burden is on him to show that he didn’t do it negligently.” and make license presumptive evidence. Here, they rule differently and say who cares about license…





November 3, 2003 Proof of negligence and RIL

RIL is a burden shifting rule.

Generally speaking, a plaintiff has to establish a case of negligence.

Sometimes, the burden of proof is shifted to the defendant.

Main cases: Colmenares and Summers v. Tice

Further Questions in understanding RIL: What happens when you cannot prove who did the wrong? Cannot can’t make causal connection (miscarriage case)?

  • Plaintiff generally must show:

  • that there was a duty to the plaintiff

  • That duty was breached

  • That harm was appropriately connected to the breach of the duty (causation).

    • Why does the law make it easier for the plaintiff to meet his or her burden?

    RIL (makes it easier for the plaintiff to show that duty was breached).


    1. What is doctrine?

    2. Under what conditions does it apply?

    3. How does it ease burden for plaintiff?

    4. What is the justification for the state to do it?


    Byrne v. Boadle 159 Eng. Rep. 299 (Ex. 1863)


    • Plaintiff was walking when he was hit and injured by a barrel of flour that was being lowered from defendants store.

    • trial court said there was no evidence.

    • Plaintiff appealed.

    • Question: does the mere fact that the barrel fell on the plaintiff constitute evidence for the plaintiff?

    • Res Ipsa Loquitur in effect shifts the burden to defendant to prove that there was no negligence involved.

    • 2 parts to negligence claim in the case:

    1. Barrels don’t actually fall on their own and doesn’t happen unless someone is negligent. (AKA show Negligent action).

    2. The person you are suing is the one who acted negligently. (AKA show who caused that action)

    This case does the above by saying that because the barrel came out of the flour store, so that fact alone is enough to implicate the owner.

    • Infers that it was the owner’s negligence. The law progresses to show that before you can use RIL, you have to show that the other person is involved.



    ANALYZING RIL (the following demonstrates how to use RIL based on the cases. Other significant elements of RIL are also listed, along with the process of applying/not applying this doctrine.)


    Colmenares Vivas v. Sun Alliance Insurance Co.


    • Jose Domingo Colmenares Vivas and is wife were on an escalator at an int’l airport in Puerto Rico. Mrs. Colmenares was holding the handrail.

    • Half way up, the handrail stopped moving, though the steps continued.

    • Mr. Colmenares tried to prevent his wife from falling, but in so doing, he fell himself.

    • They filed against Sun alliance insurance, who insures the Port Authority.


    • 1st trial court ruled out RIL because the plaintiff did not show exclusive control.


    • This court decides that there are duties so significant to the public that they are no delegable. This is one. RIL can be used.


    Significance: EXCLUSIVE CONTROL

    • Plaintiff sues on the ground that there was negligence and tries to imply RIL.

    Why use RIL? Isn’t it clearly negligent?

    1. It could have been someone else’s negligence.

    2. The mere fact that the escalator isn’t working doesn’t mean that there’s negligence.

    • There are alternatives in these cases to using RIL.

    Analysis WITHOUT RIL

    • What else do you have to show if you ARE NOT using RIL?

    • Malfunction

    • a. That this is unusual and atypical.

    • b. However, if it typically happened to escalators, you would next show that escalators that are designed like that are defective, which would mean that you would have to show there is a better design AND that it is cost effective. Then, you would sue the escalator company for negligence.

      Analysis WITH RIL

      • Even under RIL, you must show that this is not the sort of action that generally occurs unless someone is negligent.

      • RIL in this case, plaintiff MUST show:

      1. Not sort of thing that happens w/o negligence.

      2. That the defendant has to have had exclusive control, over object, injury, or activity.

      3. That plaintiff was not the cause of it.

      • Even though RIL shifts burden, plaintiff still has to establish quite a bit, and so sometimes it’s better for the plaintiff to directly establish negligence. In normal negligence claims, plaintiff doesn’t usually have to establish that they didn’t do it.

      Main issue in case:

      • Question: What constitutes complete or exclusive control?

      • Answer: Control doesn’t mean that it was in your hands. Physical control is not operative.

      • Analysis: What is the notion of control that the law is using?

      • Two options:

      1. Were they physically responsible (physical control) or

      2. Were they normatively responsible (did they have a duty)?

      This claim is NOT based on physical control, but normative responsibility because the Port Authority, defendant, did not have complete control in that they had a contract that gave someone else a maintenance contract.

      • Using normative control, we see that the DUTY OF THE PORT AUTHORITY was to provide for a well functioning escalator.

      • The Port Authority says that they discharged that duty by hiring a maintenance company, and thus they say they weren’t negligent.

      • Playing with the logic: Counterargument: that they are negligent anyway, even if they hired someone. Response: Port Authority might say that they are being positioned as insurers for their contractors (independent contractors).

      • If plaintiff met burden to show that they were in “normative” control, what kind of defense would you use?

      1. They just fixed it/just performed or

      2. That they absolutely discharged their duty, and it is the duty of the maintenance company.

      • RIL doesn’t say that defense can’t make a case, or what kind of options that defense has. Defense could put a lot of work into hiring and discharging duty, and could be found not negligent. Defense in these cases just has to prove that he/she was not negligent, which of course, is possible.



      Ybarra v. Spangard

      Significance: Variation (on Colmenares and exclusive control): what to do when you cannot show who has exclusive control. Also, a nice segue into Summers v. Tice, where torts justifies the innocent implicated along with the guilty.


      • Plaintiff goes in to hospital for surgery and he awakes with illness he didn’t have before.

      • Ultimately he was paralyzed in right arm/shoulder.

      • Plaintiff doesn’t know who had exclusive control.

      Analysis based on RIL shows:

      • this isn’t typical unless someone was negligent (satisfies first prong).

      • On contributory negligence point, this couldn’t have been something plaintiff did to himself since plaintiff was unconscious (satisfies third prong).

      • The only missing link in an RIL analysis is the second prong: exclusive control.

      Good consequences of allowing plaintiff to sue everyone;

      • Plaintiff will be compensated

      • Breaks up codes of silence.

      • Question: If everyone is insured by same person, would it matter to them who got sued? Would these benefits really be realized?

      Negative consequences of allowing him to sue everyone:

      • Innocence questioned. The innocent might be held responsible along with the guilty (I can‘t help but think that there are grave moral implications to such a standard, and it’s important to question the court’s justification in so ruling. See above for positives. Are these enough to justify such a rule?).

      What’s the principle that allowed him to sue everyone?

      • Sometimes, the claim that the defendant rather than the plaintiff is in the best position to know what happened shifts burden to defendant.

      • But here, there’s a special issue: claim that plaintiff is in ABSOLUTELY NO position to know what happened and ONLY defendants (might) know what actually happened

      • Question: Does this set up a system that actually tries to reveal what happened? Is this the best system for reveling the TRUTH?

      FINAL ANALYSIS: What does plaintiff have to show in this situation?

      1. That he doesn’t have access to the information.

      2. That it isn’t his fault that he doesn’t have access to the information.

      3. That someone else actually does have access to the information.

      4. This isn’t the sort of thing that would happen unless someone was negligent and that people who have the info contributed in some way to this likely negligence (they were involved in the surgery process).

      • Variation: Another approach is to argue that they all acted in together in surgery and treatment and that they all played a role in the wrongful act (conspired). You then go on to say that you are not responsible for not knowing, etc.

      RIL significance restated:

      • You get to shift burden from plaintiff to defendant because defendant has access to information that plaintiff isn’t able to know.



      Summers v. Tice

      The issue here is not who did something wrong, because both men did something wrong: both shot carelessly and negligently at a third party. The issue is linking the harm to an actor based on this fact pattern. It’s an issue of both causation and of shifting the burden of proof.


      • whose negligence caused injury?


      • Unlike Ybarra, defendants don’t know more than plaintiff about who caused harm.

      • However, it is similar in that again, the court uses a burden shifting rule.

      General Analysis

      • If plaintiff has to satisfy the evidence requirements of general negligence for individual suit, he will lose. Based on the evidence, it is only possible to show that one person had a 50% chance of causing the harm. Because the threshold rests at 51%, it is thus impossible to show causation even though negligence is certainly attributable to both parties. Also, consider that there’s a 100% that one of the two did it.

      What’s the basis for shifting burden?

      • Innocence questioned again. We know for sure that the plaintiff is innocent. We also know for sure that one defendant is “innocent” (didn’t cause the harm). It can be argued, as the court does, that it’s better for the one person who acted negligently and didn’t cause the harm to be liable than it is to make a certainly innocent plaintiff shoulder the damages. (Coleman reduces this to: “better for bad people to be liable than for good people.“)

      • Coleman’s actual reading of the case is that this is a very specific holding that can only be justified using these specific facts: two parties are negligent, and only one caused the harm to a particular plaintiff. He interprets this as a TIE BREAKER case.

      Why should this be seen as a tie breaker?: Analyzing the Tice decision Coleman style

      • Coleman thinks that this decision is NOT correct as a GENERAL principle.

      • He says the crucial part of the case is that it’s 50:50 (fifty percent chance that one of the two defendants caused harm). This translates into a tie-breaker situation.

      • Generally in torts, a plaintiff has to establish that it’s more likely than not that someone caused a particular harm. What happens when this is impossible?

      • Are there situations where defendant should not get the benefit of the tie breaker?

      1. This is an example of one such situation, justified because the defendants acted badly/negligently.

      2. Another would be when the defendants wrongdoing might be why the plaintiff can’t prove his case.

      • Coleman strongly emphasizes that giving weight to the good guys/bad guys scenario is not a part of torts law.

      • Essentially, the court is making a category of “bad” actors and shifting the cost to them. The ruling doesn’t turn on whether they did something specifically caused harm or not. It is emphasizing that these people acted badly, and takes this to be a reason for holding them liable when the alternative is to make the person who didn’t do anything bad the one who bears the cost.

      • Confidence v. Harm: harm must be seen as distinct from the degree of confidence that someone has done a harm (degree of confidence v harm)

      • If you have a 10% degree of confidence that someone did 100% of the harm, they shouldn’t pay.

      • If you have a 100% degree of confidence that someone caused 10% of the harm, they should pay 10%.

      • This means that when you are confident above a certain threshold, then the law asks you to accept the statement that this person caused the harm.

      (torts holds people responsible for outcomes, not actions. In my own personal view, the simple way to look at this is based on the proverb that people are responsible for the consequences of their actions. There are times, however, when actions, no matter how bad they are, have no consequences. I think this fits in with Coleman‘s whole torts idea, and here, it is challenged in a very interesting way. Why? Because we have three people, two are innocent, and necessarily one of will bear the costs, though not for the consequences of his actions. The adage breaks down. So who do you hold responsible if necessarily someone will be held responsible NOT for the consequences of his actions? Which innocent person will be made to pay? Here, I think rightly, the plaintiff gets the benefit of the tie breaker.)



      SECTION 5: Negligence

      c. Causation

      1. Definition

      Courts distinguish between two different types of causation: causes in fact (what Coleman refers to as “but for causes”), and proximate causes. These categorizations are somewhat misleading because any proximate cause is also a cause in fact, as explained below.



      A cause in fact (but for cause) is a necessary condition for an event’s occurrence. Ask youself: Would the injury have occurred without the defendant’s action? If not, then the defendant’s action was a cause in fact. Similarly, using Coleman’s example of throwing rocks at the Columbia crew team, the rock throwing was a cause in fact of the crew members’ deaths, the rescue helicopter’s crash, and the deaths resulting therefrom. Determining whether something is a cause in fact is a quasi-factual question.



      An action is the proximate cause of its reasonably foreseeable and natural consequences—and no more. When the cow kicked over the lantern in Chicago, that event was the proximate cause of the barn (and arguably the neighbor’s barn) burning down. The destruction of Chicago was not reasonably foreseeable, so the kicking over of the lantern was not a proximate cause of the whole Chicago Fire. Determining whether something was a proximate cause (that is, whether its consequences were reasonably foreseeable) is a very normative question. All proximate causes must also be causes in fact.



      2. Current Rule/Thinking

      According to Coleman, a plaintiff is required to establish that the defendant’s actions (or omissions) were the proximate cause of harm; one has a duty to tend to the proximate—but not remote—consequences of one’s actions. Most jurists believe that “but for” causation is sufficient; one has a duty to tend to the consequences—both proximate and remote—of one’s actions. Coleman frames this debate in the following manner: He uses duty as the indicator of liability, and others use simple causation.



      Medical cases have received notably different treatment, as noted below. Increases in a patient’s level of risk may result in a doctor’s liability, even without proof of causation.



      3. Development / Case History

      Ryan v. New York Central R.R., 35 N.Y. 210 (1866)

      • (This rule was modified by Brower and Marshall.) You are only liable for proximate causation. Reasonable foreseeability is the line between proximate and remote causation.

      • A man set fire to his own shed and the neighbor’s house 130 feet away burned down. The judge says that the unforeseeability of the neighbor’s house fire (and by hypothetical extension, the entire block or city burning down) precludes the defendant’s liability. The defendant’s fire was only a remote cause of the damage done to the neighbor’s house, so there was no duty.

      Berry v. Sugar Notch Borough, 43 A. 240 (Pa. 1899)

      • You have a duty to not cause harm through negligence—not to avoid negligence altogether. When the plaintiff acted negligently but his negligence caused no harm, then the defendant cannot use a contributory negligence defense.

      • The plaintiff exceeded the speed limit but the city’s tree falling on top of his trolley was in no way caused by his speeding. Had the tree fallen in front of him and he was unable to avoid the accident due to his speed, a defense of contributory negligence would have succeeded.

      Brower v. New York Central & H.R.R., 103 A. 166 (N.J. 1918)

      • Reasonable foreseeability is still the line between proximate and remote causation—but a plaintiff can also recover for the natural (though possibly unforeseeable) consequences of harm proximately caused by negligence.

      • A train struck a horse-drawn cart. The horse and cart were destroyed, and the driver went into a fit. Because of his fit, he was unable to guard his remaining belongings (a barrel with cider and a blanket). They were stolen by a voluntary third-party, but the railroad was liable for their theft because the chaos following the accident was a natural result of the harm proximately caused by their negligence.

      New York Central R.R. v. Grimstad, 264 F. 334 (2d Cir.1920)

      • The plaintiff has to prove causation; the defendant’s negligence must have caused the harm.

      • There was no basis for determining whether the presence of life preservers and buoys would have saved a man who fell overboard. Because the jury they could only speculate, the plaintiff had not established causation and was not entitled to recovery.

      Wagner v. International Ry., 133 N.E. 437 (N.Y. 1921)

      • You have a duty to avoid negligent harm and any consequent harm to non-wanton rescuers.

      • A train negligently caused a man to fall off, and his cousin fell off a bridge while searching for the body.

      In re Polemis & Furness, Withy & Co, 3 K.B. 560 (1921)

      • (Overseas Tankship later took a very different position on this issue.) When an act of negligence is expected to cause harm, the negligent actor is liable for all of the harm irrespective of the extent or foreseeability of the harm.

      • A plank was dropped into the hold of a ship, a spark was set off, and the ship exploded and burned. Some damage from the dropped plank was foreseeable, so the dropper of the plank was liable for all of the damages.

      Kingston v. Chicago & N.W. Ry., 211 N.W. 913 (Wis. 1927)

      • The burden can be shifted onto the plaintiff by showing that his actions were sufficient to cause the damage—even if there were other sufficient conditions present.

      • Two wild fires converged and then burned the plaintiff’s property. Either fire would have burned the property. The source of the second fire could not be determined, but the originator of the first fire was wholly liable for the damage.

      Palsgraf v. Long Island R.R., 162 N.E. 99 (N.Y. 1928)

      • Remote (not reasonably foreseeable) causation is insufficient to establish liability.

      • A man carrying a package of explosives tried to board a moving train. An employee of the railway pushed him up, but the man dropped his package in the process. The train ran it over, it exploded, and the concussion tipped over some scales at the far end of the platform that injured the plaintiff. The impossibility of knowing the package’s contents and the remoteness of the chance that the woman would be injured absolved the railway of liability. The plaintiff ought to have sued the man carrying the fireworks.

      Marshall v. Nugent, 222 F.2d 604 (1st Cir. 1955)

      • Adding to the liability of negligent wrongdoers similarly to Brower, a jury may find that the natural consequences of an action include the unpredictable and unforeseeable events occurring before the restoration of normalcy.

      • A truck forced a car off the road. While attempting to get the car back onto the road, one of the car’s passengers was injured by a passing vehicle. Because the truck driver’s actions had led to the unpredictable situation one the roadside, his company was liable for the injury.

      Overseas Tankship (U.K.) Ltd v. Morts Dock & Engineering Co., Ltd, A.C. 388 (P.C. Aust. 1961)

      • Polemis is wrong. People are only liable for the reasonably foreseeable consequences of their actions.

      • Oil spilled on the water, later catching fire and burning down a nearby wharf. Some damage was foreseeable from the spilling of oil, but the spiller was not liable for the unforeseeable damages.

      General Electric Co. v. Joiner, 522 U.S. 136 (1997)

      • The court has discretion in admitting evidence of causation, allowing it to exclude expert and lay testimony when appropriate.

      • The district court disallowed the admission of expert testimony about the causal relationship between the PCBs and the plaintiff’s cancer. This was within the scope of their discretion. The case was remanded for hearing of the remaining issues.





      Exceptional rulings:

      Sindell v. Abbott Laboratories, 607 P.2d 924 (Cal. 1980)

      • In class action suits where it would be impossible to show which co-defendant injured which co-plaintiff, the defendants may be held liable for their relevant market share. The plaintiffs must first establish: (1) all of the defendants acted negligently, (2) it is difficult (through no fault of the plaintiffs’ own) to establish which one of the defendants caused the harm, (3) the vast majority of the wrongdoers are named as defendants, and (4) there was a causal relationship between their negligence and the harm. The only thing the plaintiffs don’t have to establish is which one of the offenders harmed them specifically.

      • Companies manufacturing DES were held liable based on their percentage of the market share.

      Herskovitz v. Group Health Cooperative, 664 P.2d 474 (Wash. 1983)

      • Individuals may be held liable for increasing risk – even if that increased risk was probably not the ultimate cause of misfortune. The damages under these circumstances may not be as high as would otherwise be expected.

      • Doctors did not diagnose a patient’s cancer, and even though the oversight only reduced his chances of survival from 39% (estimated) to 25%, they were partially liable for his death.

      Zuchowicz v. United States, 140 F.3d 381 (2d Cir.1998)

      • A plaintiff can shift the burden onto the defendant by establishing the possible existence of proximate causation. As long as (1) the negligent act increased the likelihood of a particular type of accident, and (2) a mishap of that very sort happened, then the trier of fact is justified in finding causation (even when the causality is a matter of speculation).

      • The doctor prescribed an overdose that increased the likelihood of the patient’s death. Even without an overdose, the drug may have killed the woman. But because the prescribed overdose increased the probability of her death, the patient’s family could recover even without proof that the overdose had caused her death.






      SECTION 6: Strict liability : “Liability in absence of fault”

        1. The Duty to care

          1. To whom do you owe the duty

            1. Foreseeable P

          2. Content of the duty?

            1. Generally, strict liability is about an absolute duty never to harm.

              1. Breach of the duty does not require fault or intent to harm

              2. Rather than depending on how D executed an activity, strict liability just depends on the commission of a certain act


              1. Defendant is prima facie liable for any harm he caused to P.

              2. Duty to others is greater than in other areas. Even with utmost care, D is not allowed to harm others

              3. Intervention of third party (eg, a person who lets your dangerous dog out of its pen) does not necessarily absolve you of your duty

            1. There is a narrow scope of liability, to only foreseeable damages (foreseeable P and from normally dangerous propensity).

            2. Recovery by P may be lessened when P obviously assumed some of the risk. Eg, zoos. People assume risk of being around dangerous animals, so the zoo’s duty to protect against all harm caused by animals may be less

            3. In current day, there are four main categories of strict liability

              1. Conversion

                1. Definition: (from Moore case) “distinct act of dominion wrongfully exerted over another’s personal property in denial of or inconsistent with his title or rights therein…without the owner’s consent and without lawful justification….”a act of willful interference with a chattel, done without lawful justification, by which any person entitled thereto is deprived of use and possession

                2. Test: P needs to allege (1) P’s ownership or right to possession at time of conversion (2) conversation by a wrongful act or disposition of plaintiff’s property rights and(3) damages

                3. Cases: Moore v. The Regents of the University of California (1988): Case finds that D is not liable on conversion grounds for using P’s removed spleen to develop valuable cell line. Establishes there is no precedent about whether P retains possession of removed cell.

                4. Issues: This case raises huge policy issue for biotech and use of lots of removed cells and cell lines that can be established from them. This Court decides to leave large policy issue to legislature, and instead decide case on traditional non-consent grounds

              2. Animals

                1. Definition: Animal of a class known to be dangerous or animal of a nondangerous class that is known to be dangerous

                2. Cases: Baker v. Snell (England, 1908): D is found liable for harm caused by dog’s bite because he knew dog tended to bite people

                3. Issues: what harm is reasonably expected

              3. Ultrahazardous activities

                1. Definition (from Restatement, I think):

                  • Risk of harm was great

                  • Harm that could ensue is great

                  • Exercise of due care would not prevent such accidents

                  • Activity not a matter of common usage

                  • Activity was inappropriate to place in which it took place

                  • Value to community of activity is not enough to offset unavoidable risk

                2. Blasting: Spano v. Perini Corp (NY 1969): D is found liable when its blasting destroys a nearby garage. Court says strict liability is the appropriate standard because blasting involves a substantial risk of harm, regardless of care exercised. Note: Coleman hates the form of the decision, which appears to make blasters liable for distributional reasons, rather than because they find a duty related to blasting

                3. Dangerous chemicals: Indiana Harbor Belt RR v. American Cyanamid Co D is not found strictly liable for placing dangerous chemical on tank car that passes through metropolitan area, which later starts to leak due to problems in the tank car. D is not liable because leak is caused by carelessness of railroad people, rather than properties of the chemical. Additionally, it was not the duty of shipper to determine the route. Those who handled the car had duty to exercise appropriate care (so does not mean test/definition)

                  • Issues raised:

                    • Need to determine what the relevant activity is

                    • Need to test how far this is extendedà Court says this decision does not necessarily answer question of liability for shipping a bomb

              4. Nuisance

                1. Definition:

                  1. Black’s Dictionary: condition or situation (such as a loud noise or foul odor) that interferes with the use or enjoyment of property.

                  2. Fontainebleau case: No one has right to use property to injure lawful rights of another

                2. Blocking light: Fontainebleau Hotl Cop. V. Forty-five Twenty Five Inc (Fla. App. 1959): There is no strict liability for building hotel addition that blocks another hotel’s sunlight. No legal right to free flow of light and air across neighbor’s land

                3. Noise and dust Boomer v. Atlantic Cement Co. (NY 1970): D is strictly liable for dirt, smoke, vibration on P neighbor’s land, caused by factory. Nuisance which results in substantial continuing damages must be enjoined. To avoid drastic damages to D, Court says either permanent injunction against factories’ activities (= death for factory) or D pays for past and future damages

                4. Issues (with Boomer case and injunction alternative):

                  • Doesn’t Boomer case say it is okay to pollute as long as you pay?

                  • Why couldn’t you do this for other harms?

                  • (Note: injunction does not force them to stop polluting. It just gives you a court-enforceful right to make them stop. It gives you something they can buy from you….)

                  • It would be a problem if you permitted injunction everywhere because NIMBY means everyone would get an injunction

                  • Payments aren’t fair to company because it would cost more to shut it down, neighbor can extort more than harm payments because everyone has a veto and can lie about damages/extract rent from plant

                  • As a result: either way, it is not rational to open up plant



            1. Historical cases on trespass and case established some of the fundamentals for these modern day cases

              1. Formative British cases

                1. Thorns Case: establishes that if there is an absolute duty (in this case not to let thorns fall on neighbors’ property), a D who breaks that duty is responsible for all damage stemming from his act. In this case, D is held liable for all consequences of his clipped thorns falling on neighbors’ property, including trampling crops when he went to clean them up

                2. Weaver v. Ward: (case about two men play fighting and one hurts the other). This is precursor of strict liability.

                  1. says for trespass, all you have to do is establish connection between act and harm.

                  2. There are some excuses left, though. You can say “wind caused it) (eg, Act of God), or it was “inevitable”

                  3. Today, “inevitable” usually means no negligence or intent, or really unpreventable

                3. Scott v. Shepherd (lighted squib case): This case establishes the issue of determining liability is about directness of causality. Decides that if no intervening acts, then original actor is responsible

                4. Brown v. Kendall: its all about fault (this is basis for fault liability, not strict liability)

                5. Rylands v. Fletcher: this case starts to establish the categories of activities that create strict liability.

                  1. Judges variously find that certain dangerous things create liability for all costs associated with it. One judge finds D,a miller, liable for escape of water from his reservoir onto P’s property because it is an “unnatural use” of water. Another finds P liable because the water on D’s property was “unnatural existence”; says that if a landowner brings an unusually dangerous substance onto his property, he is responsible for escape of it

                  2. “Natural use” is standard that survives

                  3. Establishes that there might be a limit to strict liability. If dangerous thing acts not how it is supposed to act, owner may not be liable

                  4. Establishes that importance is infringement on D’s right, not any blame or illegality



              2. Early American cases

                1. Vincent v. Lake Erie (1910), a case where a boat owner is held liable for damaging a dock after tying himself there during a storm, establishes that for a case of strict liability, even emergency is not a defense for harm caused. Damages must still be paid

          1. Random other thoughts about philosophy/theory of strict liability

            1. Strict liability can be used to enforce ideas about when and how property can be used (see Vincent v. Lake Erie)

            2. Policy goal of strict liability is to deter really harmful activities. However, note that if the feared harm happened all the time, the activity itself would likely be fully outlawed (rather than just attached to strict liability)

            3. Post-Boomer, there are several ways to conceptualize the deterrence question. The Delaweb case (?not in casebook) illustrates this. In this case, a developer filed injunction against feed lot to stop operating, when the developer decided to build near the feed lot, which had been there for a long time with no angry neighbors.

              1. The court’s options would be (a) grant injunction or (b) force parties to negotiate, a la Coase Theorem (c) force feed lot to pay, a la Boomer case, above or (d) make developer pay for shutting down feedlot, a la Boomer case, reversed

              2. When have two parties, the first two options above are easiest. When lots of parties, easier to do third or fourth options

      1. Product liability (note: we didn’t talk about most of this in class. Briefs on final reading assignment attached for reference)

        1. Evolution of doctrine from negligence to strict liability and back

      2. 1st period (Winterbottom) privity limitation: can only sue immediate vendor

      3. 2nd period (MacPherson v. Buick): no privity limitation, negligence for remote seller. Scope of duty is foreseeable risk:

        • Must be knowledge of a danger, not merely possible but probable

        • Knowledge in the usual course of events that danger will be shared by others than the buyer

      4. 3rd period (Escola v. Coca Cola Bottling Co): Strict liability (dominant view in Second Restatement).

        • Rationale for strict liability

          • Role of manufacturers and market power

          • Capacity of manufacturers to obtain insurance

          • Ability of manufacturers to internalize costs of accidents

        • Changes the key question from whether manufacturer has duty to a consumer to who is in a better position to reduce and spread risk

          • If this is a risk to be avoided, who should avoid it? Manufacturers know how to avoid it best

          • If there’s a risk that ought not to be avoided, who should bear costs? Producer is in better position to spread costs

        • Coleman says that the new set of questions embodied in the Traynor opinion do not capture the question from a torts perspective because they are not about duty of manufacturers toward consumers. Instead, Coleman thinks Traynor treats it as legislative-like cost/benefit policy problem. This is not only a rejection of moral underpinnings of torts theory; it could also lead to bad economic result. After all, usually we let individuals rather than juries decide how to trade-off between costs and benefits


    • 4th period: expanded liability within traditional framework of negligence law.

      • McCabe V. L.K. Liggett Drug Co (Mass 1953): You can’t just recover because you got injured by a product that someone else put on the market. There must be a minimal threshold

        • Product must be in some sense defective (also see Casa Clara case: economic disappointment is not enough. Must be something wrong with the product. It cant just be that it is different from what you ordered).

        • It must have a certain kind of defect, either a design or manufacturing defect

      • To whom is the duty owed? Manufacturer can be liable for harm to bystanders, as well as users. See Restatement 2nd and 3rd, from last reading assignment notes

      • Content of duty? Three types of product liability. Type of defect involved may control whether strict liability or negligence is applicable

        1. Manufacturing defects: a product is not in condition the manufacturer intended when it left the manufacturers’ Hands.

          1. Strict liability, This makes sense because it is clear that making the product wrong = screwing up

        2. Design defects: Design so that it presents an undue risk of harm in normal risk.

          1. More likely to be negligence analysis because due care could prevent it

          2. Also, negligence makes more sense because it is harder for jury to assess what proper design “should” be

          3. Crashworthiness: manufacturer can be held liable for failure to design a product so as to minimize foreseeable harm caused by other parties or conditions (eg, car accident) (See VW v. Young case, from last reading assignment notes)

        3. Inadequate warnings: may make a product defective when dangers are not apparent to consumers or users

          1. Mostly treated as negligence question

          2. Dangers must be unexpected to require warning labels

          3. If product is unavoidably unsafe (eg knives, drugs). Warning labels required if danger is not reasonably apparent

          4. Warning can be inadequate if it is incomplete, inconsistent with product use, or does not give reason for the warning

          5. Usually warning must reach the person at risk from the danger, although sometimes it only needs to reach a learned intermediary, eg pharmacist. See MacDonald v. Ortho Pharmaceutical Corp, deciding that with birth control pills, it was not enough just to warn the doctor because of personal nature of decision

          6. Duty only extends to known dangers at time of manufacture see Vassallo v. Baxter Healthcare Corp

      • Federal law may preempt product liability cases, by setting safety standards that may set bar lower (or higher) for product design. See Lewis v. Brunswick Corp.

      • Also note: res ipsa loquitur is frequently used in product liability cases, given difficulty of P pinpointing the defect and knowing scientifically how it caused the harm. See Pouncey v. Ford Motor Co.



      Evolution of Restatement (Regarding Product Liability)

      • Restatement, Second: special liability of seller of product for physical harm to user or consumer

        • One who sells any product in a defective condition unreasonably dangerous to the user or consumer to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer or to his property if

          • (a) the seller is engaged in the business of selling such a product and

          • (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold

        • Rule applies although

          • (a) seller has exercised all possible care in the preparation and sale of his product and

          • (b) the user or consumer has not bought the product from or entered into any contractual relations with the sller.

        • No comment on whether it applies to people other than users or consumers or the seller of a product expected to be processed or otherwise substantially changed or assembled before it reaches the user/consumer

        • Comments

          • Applies to all sellers, including manufacturers, wholesalers and retailers, but not occasional sellers who are not engaged in that activity as part of business, like person who sells neighbor his car.

          • This rule applies only where product when leaves sellers’ hand is in condition not contemplated by ultimate consumer, which will be unreasonably dangerous to him

          • A product is not in defective condition when it is safe for normal handling and consumption. Eg, candy seller not liable if kid eats too much candy and gets sick…although defective can refer to packaging as well as to actual contents

          • Rule only applies where defective condition makes it unreasonably dangerous to user or consumer…dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with ordinary knowledge common to the community about its characteristics…

          • Seller may be required to give directions or warning as to its use to prevent it from being unreasonably dangerous, eg, warning about danger not commonly known to people with common allergies….but not required to warn about products that are only dangerous when consumed in excessive quantity or over a long time when danger is generally known or recognized (eg, foods with lots of saturated fats)

          • Although their social benefit is high, some products incapable of being made safe for their intended and ordinary use, eg a certain rabies treatment. These products, properly prepared and accompanied by directions and arning is not defective or unreasonabley dangerous

          • This rule doesnot require any reliance on part of consumer upon the reputation, skill or judgment of the seller who is to be held liable…seller always strictly liable. Rule not governed by UCC code about warranties

          • Contributory negligence is not a defense if it is just about failure to discover the defect or guard against possibility of its existence. …but if D assumes risk, by proceeding in face of known danger, is a defense, as in all cases of strict liability

      • Comment: today case law has surpassed second restatement by allowing bystanders to sue original manufacturer (can resist any charges of misuse,etc

      • Restatement, third

        • Seller is liable for harm to persons or property caused by defect

        • A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product

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

          • Is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercialchain of distribution, and the omission of the alternative deisgn renders the product not reasonably safe

          • Is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe

        • Key changes

          • Extends to bystanders and other non-users who are injured

          • Strict liability still in place, but only limited obligation to make products/warnings “reasonably safe”

          • “casual sellers” still excluded

      Theory of Products Liability: Tort or Contract?

      • Casa Clara Condominium Association, Inc v. Charley Toppino &Sons, Inc (Fal 1993)

        • Facts:

          • D, now dissolved, supplied concrete for construction projects. Some if contained lots of salt which hurt steel inserted in concrete, and thus caused concrete to crack and break off

          • P owns condos allegedly hurt by this (houses crumbling)

          • District court says no tort cause of action for economic losses and no duty to comply with building code

        • Issue: Can homeowner recover for purely economic losses from a concrete supplier under a negligence theory? (rather than contract theory)

        • Decision: No

        • Rationale:

          • Torts recovery not permitted for purely economic losses (eg, “damages for inadequate value, costs of repair and replacement of the defective product, or consequent loss of profits”

          • Purpose of tort theory is to prevent harm. Recovery from economic losses does not prevent harm

          • Economic disappointment is at core of contracts, not tort, law

          • Concrete and other components of house did not injure “other property”, because “property” in question is the whole house (eg, what the consumer bought), not the individual components (eg, just the concrete)

          • Potential for harm from exploding concrete does not warrant recovery because no injurey has happened yet and impossible to know cost

        • Dissent:

          • Public policy demands there be a remedy from harm

          • Economic loss theory not applicable here. Rationale for theory is that parties who have bargained for the distribution of loss should not be able to circumvent the bargain…but here, there is innocent third party that D should have known would be harmed

        • Notes:

          • This case represents majority view about relation between contract and tort: limits to harms to persons or P’s property other than defective property itself, and economic losses better for contract law. …if action governed by UCC, then UCC rather than tort law provides basis for claims

          • Minority view: what matters is damage, not type of damage, as long as there is proximate cause. This includes economic loss. Arbitrary distinction between lost wages due to broken leg caused by broken car (= tort) and lost wages due to broken car (= not a tort, because only damage is to the car itself)

          • Sometimes P wants to sue under contract notions, in order to invoke express warranty provisions of UCC. However, statute of limitations under UCC runs four years from date of sale and for torts it starts at the earliest at date of injury…although some states have statutes of repose that say any suits must be brought within X years of sale

      Manufacturing defects

      • Pouncey v. Ford Motor Co. (5th Circ 1972)

        • Facts:

          • P injured while putting antifreeze in Ford car. Was accelerating engine with hood open, when blade broke off radiotr, cut water hose, and hit him in the face


          • Car was purchased second hand siz months before

          • Had 62,000 miles on it at time of accident

        • Issue: Was standard of evidence for defects met?

        • Decision: Yes

        • Rationale:

          • Alabama law, which governs here, says liability is based on negligence in manufacture. Courts have permitted juries to infer negligence from circumstantial evidence when no direct evidence of actual defect

          • Here, direct evidence of defect and no evidence from Ford about safety procedures directly employed with regard to this specific product

          • So jury could reasonably find negligence

        • Notes:P has burden of proof, normally. Sometimes P can reach jury without identifying specific defect, because of res ipsa loquitur. However, it gets difficult when product has changed hands many times, to determine who was responsible for defect

      • Volkswagen of America v. Young (MD 1974)

        • Facts:

          • Decedent stopped VW, where it was hit by negligently drive Ford. Decedent’s car was pushed forward, seat broke, causing “second accident” that hurled decedent into rear of car and killed him. P alleges defects in car design, manufacture

          • District court has certified that under Maryland law, “intended use” of motor vehicle includes involvement in a collision, and that complaint stated cause of action in negligence

        • Issue: Extent of car manufacturer’s liability for design defect (rather than construction defect) resulting in enhanced injuries in a collision?

        • Decision: Crashworthiness test. Liable for design defect under negligence theory (liable for design defect that could have reasonably foreseen would enhance injuries upon impact)

          • Courts varied. Some say no duty to make cars accident proof. Others say intended use includes expectation of accidents and manufacturers have duty to use reasonable care in design…

          • THis court says this second view is more in line with traditional negligence theory

          • Intended purpose includes providing reasonable measure of safety when, inevitably, collisions occur

        • Notes: Some standards set by legislation for design defects. Sometimes through ad-hoc cost-benefit analysis





      Duty to Warn

      • MacDonald v. Ortho Pharmaceutical Corp (Mass 1985)

        • Facts:

          • P suing manufacturer of birth control pills. Used pills, caused stroke. Warning label warned of side effects, including blood colotting, but did not include specific mention of stroke

          • P says she did not know blood clotting included stroke and would not have used if she new

          • Judge entered judgment n.o.v. for D, saying no duty to warn

        • Issue: Extent of drug manufacturer’s duty to warn consumers of dangers inherent in use of oral contraceptives

        • Decision: There is a duty to warn of drug’s risks “Duty to wan all persons who it is foreseeable will come in contact with, and consequently be endangeredby, that product, except when warnings have been given to responsible intermediary. Here, D did not uphold that duty

        • Rationale:

          • Often doctor = learned intermediary, so duty only to warn doctor

          • However, with birth control pills, since patient often actively involved in decision about whether to take them and physician has more passive role, duty is to patient. Also, patient may not find time in one annual exam to ask all the right questions/get all the info

          • Warning must be comprehensible to the average user and convey a fair indication of the nature and extent of the danger to the mind of a reasonably prudent person. This means being clear not only about the danger, but its intensity/urgency. Although D complied with FDA regulations, did not meet this standard

        • Related issues/notes: Pharmacists’ duty to warn? (less than physicians’)…importance of duty in mass vaccination cases…high level of costly torts from mass vaccination cases, could be reduced by contract capping damages…(makes producers more willing to provide, because not worried about risk of large lawsuits)

      • Vassallo v. Baxter Healthcare Corp (Mass 1998)

        • Factts: P claims D liable to her for damages caused by silicone breast implants rupturing. They were manufactured by predecessor to D and she alleges they were negligently designed, had negligent warnings, and breached implied warranty of merchantability. Manufacturer knew of some dangers and warned of them, but did not warn of specific harms suffered by P.

        • Issue: Should duty to warn be limited only to known dangers or extent to all dangers?

        • Rationale: Limited

          • Current law with regard to duty to warn under the implied warranty of merchantability presumes that a manufacturer was fully informed of all risks associated with the product at issue and amounts to strict liability.

          • But this “hindsight” analysis is not useful because does not induce conduct that was capable of being performed.

          • Law should be revised to state that D will not be held liable under an implied warranty of merchantability for failure to warn or provide instructions about risks that were not reasonably foreseeable at time of sale or could not have been discovered by way of reasonable testing prior to marketing of product

      Federal Preemption

      • Lewis v. Brunswick Corp (11th Circ 1997)

        • Facts:

          • P’s daughter dies when fell or thrown from boat and struck by engine propeller made by D

          • P sues D for death of daughter

          • P says D’s product defective because lacked propeller guard

        • Decision: Federal Boat Safety Act preempts Lewises’ claims. Although Act has some conflicting clauses, it does impliedly preempt P’s claims because they conflict with Coast Guard’s position that propeller guards should not be required

          • Federal law must necessarily preempt state law

          • Can preempt through express preemption, field preemption (by intruding into the field significantly), or conflict preemption

          • In this case, express preemption is included, but not extended to common law claims because since it is an area of traditional state police power, must be interpreted narrowly. Nevertheless, common law claims impliedly preempted if claims conflict with purposes of Congress and prevent statute from operating the way Congress intended it to operate. Since in this operation, Coast Guard decides no requirement of propeller guards required, contradictory common law is preempted

        • Notes: this doctrine is staple in design litigation. Federal statutes on car design. Also used in warning label cases. Supreme Court approach is: presumption against preemption, which can be negated by statutorylanguare of broader context of statute


      SECTION 7: Remedies




      ALI RESTATEMENT – p 333


      §479 – last clear chance – helpless plaintiff

      -Negligent plaintiff who subjected self to risk of harm from D’s negligence may recover if (1) P unable to avoid harm by reasonable care and (2) D is negligent in failing to use opportunity to avoid harm



      §480 – last clear chance – inattentive plaintiff

      -P who could discover negligence of D in time to avoid harm can recover if (1) D knows of P’s situation and (2) D knows or has reason to know P is inattentive and (3) D, thereafter, is negligent in failing to use opportunity to avoid harm




      Contributory negligence is conduct by P which falls below standard of reasonable care. Burden rests on D. Causality standard is same as standard for D’s negligence. Not a defense to injury “willfully, wantonly or recklessly done” or intentional torts.


      Current Rule/Thinking

      Largely replaced by Comparative Negligence


      Historical Development


      Beems v. Chicago, Rock Island & Peoria RR – p. 309

      Facts: P (brakeman) died in trying to uncouple tender from a car, moving at improper and unusual speed. Foot caught between rails. D says high speed establishes contributory negligence. P says D’s employees negligent because didn’t obey instruction to check speed of cars. Holding: If D was negligent, liable regardless of whether foot was caught between the rails.

      -P discharged duty – he behaved based on reasonable expectation that others would slow down, not just predictions of what they’d do

      - The brakeman’s behavior should be evaluated in the light of his reliance on employees conforming to what they are required by law to do



      LeRoy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry. – p. 322

      Facts: P placed straw on property, but close to railroad’s right away. Sparks from D’s train ignited and destroyed P’s straw. Holding: P not guilty of contributory negligence.

      Legal Reasoning: Rights of one man to use property cannot be limited by wrongs of another.

      Partial Concurrence (Holmes): P has right to stack flax by train, but it should be at reasonably safe distance to escape danger. Should be ? for jury if distance was reasonable.

      SKIPPED : Derheim v. N. Fiorito Co. (Wash. 1972) – p. 325

      Facts: P’s car collided with D’s truck when D made illegal left turn. P was not wearing a seatbelt. D wanted to use “seat belt defense” to show P had contributory negligence because wouldn’t have suffered injuries if wearing seat belt.

      Holding: rejected seat belt defense.

      Legal Reasoning: Seat belt defense is not contributory negligence because conduct occurs before accident rather than contributing it. Not avoidable consequences because D takes P as he finds him. Unfair because no statutory duty to wear seat belts. State does not have comparative negligence.


      Interesting/Theoretical Issues

      -don’t have duty to guard against careless person, but have duty to protect innocent person - and that duty may end up accompanying duty to protect careless person (Leroy Fiber)

      You have a duty to protect non-careless people, and can rely on your reasonable expectations that people are taking reasonable actions. In taking actions that protect the careful person you also protect the careless person. But this is different from having a duty to guard against harm to the careless person, but because you have the duty to take precautions and protect the innocent person, and it turns out that in taking those precautions you are protecting the person who carelessly uses your products



      2. Imputed Contributory Negligence



      A defense where the contributory negligence of a third party is used to bar recovery. If X is neg. and Y has a certain relationship with Y, Y is assigned imputed negligence


      Current Rule/Thinking

      Some relationships are strong enough that the negligence of one agent can be imputed as the negligence of another eg. Vicarious negligence; agent-principle (master-servant); guardianship (though parents are not liable for the torts of children see Vosburg). Riding a bus, or being a passenger on a ship is not enough of a relationship to the driver/navigator. Which relationships would be strong enough is not entirely clear.


      Historical Development

      Mills v. Armstrong (H.L. E. 1888) – p. 336

      The court rejects using as precedent Thorogood v. Byran (1849) which stipulated that the passenger on an omnibus was so far identified with the carriage in which he was traveling, the want of care of his driver was a defense of the driver of another omnibus that caused the passenger’s injury

      Facts: P’s decedents were employees on Bushire, ship that collided with the D’s ship – the SS Bernina due to mutual negligence of those operating each chip. Ds do not allege personal liability of Ps, but negligence of those navigating the vessel.

      • Rejects argument that passenger is identified with driver – no legal relationship

      • Passenger does not have sufficient control over driver to hold passenger affected by driver’s negligence


      Interesting/Theoretical Issues

      • He is the victim of two negligent characters and here is the lower court contemplating that since the bus that let him off was negligent, he gets imputed the negligence of that bus driver—of course, that rule is overturned

      • Imputed Contributory Negligence was an important part of Sommers v. Tice, where it was said that if it were part of a joint plan, it wouldn’t have mattered whether it was my bullet or yours


      3. Assumption of Risk


      Definition / Current Rule/Thinking

      There cases when I assume the risk that others you will be negligent. This limits my recoverability. You are not assuming the risk of intentional mischief. One can assume risk 1) voluntarily 2) knowingly or 3) implicitly based on the character of the behavior (eg. Playing football)


      Historical Development

      Lamson v. American Axe & Tool Co. (Mass. 1900) – p. 341

      P worked for D. Sued D when hatchet fell off his rack onto a head. P knew rack was dangerous and hatches fell when jarred by motion of the machinery. Had complained to D, but told he should use racks or leave. P assumed the risk and could not recover.



      Interesting/Theoretical Issues

      -last clear chance – if you saw I was negligent and could have stopped it, then my being negligent is not a bar to my recovery

      -basic idea is that my behavior limits the scope of my ability to recover



      • And the question is what is the scope of this idea? You don’ have to go to the ice hockey rink, you don’t have to go to a football game, but you do need a job.

      • Can we be presumed to assumed the risk? This is a good question about rides at an amusement park and to what extent those who have rides at an amusement park can limit their liability by claiming assumption of risk? And does the burden change? For example, would you have to show that not only are their harms, but would you really have to show they were reckless as opposed to careless?


      Assumption of risk is actually two defenses

          • (1) Plaintiff unreasonably undertakes to encounter a specific risk imposed by defendant’s negligence, this is in reality a form of contributory negligence

          • (2) Plaintiff is held to agree to relieve defendant of obligation of reasonable care. This is not the same as contributory negligence as it is a decrease of the defendant duty of care


      4. Comparative Negligence


      Distribution of liability according to distribution of fault. Two means of having comparative negligence 1) Pure rule – costs distributed according to fault 2) hybrid rule – costs distributed unless you were at least as at fault as D?


      Current Rule/Thinking

      Comparative negligence superceded contributory negligence in most states. This occurred mainly through legislation

      • Comparative negligence assesses liability in direct proportion of fault. It is preferable to the doctrine of “all-or-nothing” contributory negligence from the point of view of logic, practical experience, and fundamental justice


      Historical Development

      Li v. Yellow Cab Co. of California (Cal. 1975) – p. 362

      Facts: P attempted to cross three lanes of traffic and hit by D’s drive, who was traveling at excess speed. Common law had comparative negligence standard.

      Issue: Should California discard contributory negligence (bars all recovery when P’s negligence contributes in any degree to harm) in favor of comparative negligence (assesses liability in direct proportion to fault?

      Answer: Yes



      Interesting/Theoretical Issues


      • Maybe the issue is that this isn’t so good of a case to introduce comparative negligence, because it seems that both parties can be considered to be 100% responsible. Maybe a better case to have introduced this is US v. Carroll Towing because the extent of the damage would have been reduced by having a guard


      In normal torts case, if I’m a little negligent and you’re a lot harmed, I pay for the whole thing

      If you’re not at fault and I’m not at fault and we both caused it, then we just leave injury where it was


      • On applying comparative negligence rulings retroactively?

        • -random thought – if you think that judges aren’t finding the law, but making it, then what you’re doing in the decisions is always enforcing ex post law and not with due process b/c not giving parties chance to follow



      • But not we have two people at fault, and we say of each of them, is there a way you should have behaved and did something happen because you didn’t ask the way your should have

      • You’re not at fault, I’m not at fault, but we both caused it, it happened because of the actions of both of us, but neither of us is at fault. And the rule for these cases is to leave it where it is. Why don’t we divide these up to the extent to which you were causally responsible







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