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-19^TH: Strict liability

BY END OF 19^TH CENT: Fault liability

20^TH CENTURY: BALANCE BETWEEN BOTH STRICT AND FAULT

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

WEAVER V. WARD (1616): STRICT 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 17^th 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

BROWN V. KENDALL: FAULT LIABILITY

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

RYLANDS V. FLETCHER

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

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 3^rd 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 3^rd Parties: Where D does not intend for his action to affect 3^rd 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 3^rd 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 3^rd 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 3^rd 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.

SECTION 4: CALCULUS OF RISK

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

Facts:

• 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.

History:

• 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).

Holding:

• 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)

Facts:

• 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.

Defense:

• 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.

Summary/Significance:

• 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)?

Facts

• 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.

Question:

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

Holding

• 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)

Facts

• 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.

Trial

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

Holding:

• 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.

Significance:

• 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)

Facts

• 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.

Trial:

• found for phone company but against power company.

Holding:

• 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 (9^th Cir. 1994)

Facts

• 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.

Trial

• District Ct dismissed on summary judgment.

Holding

• 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)

Facts:

• 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.

Trial:

• 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)

Facts:

• 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.

Holding:

• 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.

October 27, 2003 CUSTOMS AND STATUTES

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.

CUSTOM

TJ Hooper

Facts

• 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?)

Appeal/Holding

• 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 (1^st Cir.1994)

Facts

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

Holding/Reasoning:

• 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)?

STATUTES:

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):

Facts:

• 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.

Holding:

• 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):

Facts

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

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

Defense:

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

Trial

• 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.

Holding:

• 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), :

Facts:

• Plaintiff went to a chiropractor.

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

• Plaintiff became paralyzed after 9 treatments.

Trial:

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

Appeal/Holding:

• 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.