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STANDARD OF CARE


STANDARD OF CARE 

 

Higher standard of care

 

Reasonable Person

 

Lower standard of care

(CONSIDER: CAPACITY, AWARENESS/KNOWLEDGE, CONTENT)

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custom, statute, economy, public policy issues, facts of case

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STANDARD OF CARE

 

STANDARD OF CARE

      I.  Proof

    1. Standard of Proof: preponderance of the evidence (>er than 50%)
    2. Burden of Proof: on the plaintiff, normally (when in equipoise, find against party with the burden
    1. 3 Standards of Liability in Unintentional Torts 
    1. Negligence (both a std. of liability and a tort)
      1. Fault-Based Standard
      2. concerned w/risky behavior
      3. norm of conduct is breached
    1. Foreseeability-Based Strict Liability
      1. Liable for foreseeable harm, without fault
      2. NO norm is breached
    2. Absolute Liability
      1. Liable for all harm whether it’s foreseeable or not (plaintiff wanted this std. in Hammontree)
      2. No fault involved
    1. Intentional Standard of Liability
    1. desire to bring result or substantially certain it will occur
    1. fault-based standard
    1. History of Tort law
    1. Form of Action: WRITa procedural notion of how you got a case into court
    1. first writ
      1. TRESPASS-provided relief for all direct and immediate forcible injuries to person, property, or land resulting from directly applied force by voluntary action. Covered both intentional and unintentional injuries; but NO hostile aggression was necessary (strict or absolute liability std.)
        1. Defenses:
          1. consent
          2. self-defense
          3. inevitable accident
            1. burden of proof switches to D when P makes out a prima facie case
            2. Weaver v. Ward
    2. Action on the Case
      1. Indirect harm and fault std. (negligence std.); plaintiff had to show causation and fault; eventually allowed for direct harm too.
    3. Remember: FORM controlled SUBSTANCE (choose the writ correctly)
    1. Early Cases 
    1. Brown v. Kendall (est. negl. std. as default rule in torts)
      1. Dogs fighting, and D has a stick, which he accidentally hits P with.
      2. Burden of Proof on P to show that there was harm and that D did not exercise ordinary care
    1. Bamford v. Turnley
      1. D’s kiln is a nuisance to P
        1. Unless D makes enough $ on the kiln to compensate P for his loss, then the public good is outweighed by P’s loss.
    1. Philosophy in Tort Law
    1. Efficiency (economic) Arg.
      1. CALABRESI 
        1. risk-spreading
        2. activities should bear their costs
          1. burden of liability should be on the “doer”
          2. enterprise liability
      2. COASE
        1. says you can put liability on either party b/c when they bargain, an efficient result will occur
        2. confectioner-doctor arg.
        3. he assumes that there are NO transaction costs, which is not real-world (problem with his theory)
    1. Equity/Justice Arg.
      1. Epstein (for strict liability)
        1. do NOT put the burden on an innocent person
        2. Libertarian arg.
          1. those who choose to act, can bear that cost of that act
      2. Holmes (for negligence)
        1. Foreseeability of the harm is important
        2. people must act and their actions help the public good
        3. replaces Libertarian arg. with a utilitarian arg.
    1. At the beginning: The First Standard of Care Cases 
    1. Adams v. Bullock-boy swinging a wire was electrocuted by overhead trolley line. Cardozo says DV for D should have been found.
      1. Foreseeability is the KEY at threshold
      2. Probability
      3. Cost and efficiency of taking precautions
      4. Braun v. Buffalo-another Cardozo wire/electrocution case
        1. looked at same 3 factors (foreseeability, probability, and burden of precautions)
        2. B/C it was more foreseeable, and the cost of precautions was low, there was a different result than in Adams.
    1. Greene v. Sibley
      1. woman trips over kneeling mechanic working on cash register.
      2. NO liability b/c of an interaction bwt. parties and an obligation on BOTH sides
      3. LOW foreseeability that woman would not see D.

 

    1. U.S. v. Carroll Towing Co.
      1. Barge broke away from shore; sunk a ship
      2. HAND FORMULA
        1. Probability (P)
        2. Injury/Loss (L)
        3. Burden of Precautions (B)
          1. PxL > B   LIABILITY
          2. PxL < B  NO LIABILITY
        4. Economic efficiency over justice (goes against Epstein)
          1. private regulatory is better than public regulatory
        5. Problems with the formula
          1. it’s an economic analysis
          2. how do you value a person’s life?
          3. doesn’t look at causation or duty
          4. juries are never instructed to use this formula
          5. Grimshaw v. Ford Motor Co.
            1. pinto caught on fire
            2. Ford did a cost/benefit analysis (didn’t take into account that consumers were ignorant of trade-off between safety and $))
            3. The jury punished Ford heavily for this
    1. Bolton v. Stone
      1. cricket game, ball hits a pedestrian
      2. Foreseeability & Probability
        1. prob. & fore. are LOW
        2. Ct. doesn’t consider the burden of precautions (“B” doesn’t matter)
          1. It’s a non-economic analysis
      3. Overseas Tankship case/Wagon Mound No. 2
        1. oil from a ship in the water caught on fire and burned P’s ship
        2. this was a FORSEEABLE accident, but it was highly Improbable
        3. Court considers the burden of precautions in the case even thought the probability is low b/c L (LOSS) is so HIGH
 
 
 
 

 

    1. Reasonable Person Standard
      Capacity (assumed to have min. level of intelligence and capacity to assess  risk)
      Content(D is not allowed to decide what risks he can and cannot take)
      Knowledge/Awareness(doesn’t matter, you should be aware of the risk)
    1. Capacity
      1. Insanity
        1. Today, the injured party is entitled to insurance as a policy matter; it does NOT exculpate
        2. In the past, cts. have held that you can’t hold the insane who is incapable of meeting a std. of care liable (each party is a moral agent)
        3. Turner v. Caldwell-D claimed she suddenly went insane and couldn’t control her car; but ct. held her liable.
      2. Dumb people
        1. Vaughn v. Menlove
          1. D tried to argue that he should be held to HIS best judgment (subjective); but court says no, D should be held to a reasonable person std.
      3. Stroke Victims
        1. Roberts v. Ramsbottom
          1. D has a stroke and keeps driving, hits things, including P. D held liable b/c he was not completely incapacitated and should’ve known after he hit one thing before P.
    2. Experts (remember chart: the reas. person sets the floor, but NOT the ceiling)
      1. Superior knowledge of risk; then you will be held to it
        1. Restmt. 298: doctors, lawyers and other professionals will be held to a prof. skill/capacity (also, there is often a pre-existing relationship  bwt. P & D, and P relies on D’s expertise—maybe a contractual issue
        2. Fredericks v. Castora-professional truck driver NOT held to a higher std. than an avg. driver (odd result)
    3. Emergency Situations
      1. cts. did relax the std. here as public policy b/c there is little time for reflection here (however, this may change b/c the reas. person std. would consider the “reas. person in an emergency situation”)
    4. Children
      1. Different std., relative to the child’s age, intelligence and experience (but below a certain age depending on the state, they aren’t liable at all for negl.)
        1. exception: children engaging in adult activities i.e. driving
    5. Knowledge
      1. NSPCA v. Hudson
        1. pit bull died on an electric fence b/c of D.
        2. D claimed he didn’t know the fence could do that damage, but the Ct. holds the D to a reasonable person std.
        3. Finds that the reasonable person would have know that-LIABLE
    1. Role of Judge and Jury
    1. How much leeway should jury have compared to how strict judge can make rules to direct jury’s decision?
    1. Baltimore and Ohio RR v. Goodman (Holmes decision)
      1. driver killed by train @ crossing
      1. Judge holds that the decision should NOT have gone to jury; the lets judges take power away from juries by making specific rules
      2. RULE set by JUDGE: no matter what, the driver should GET OUT of vehicle if he can’t see harm/train. (since this judge-made rule was not followed here, Homes says, the issue is black and white, and NOT for the jury to decide)
    1. Pokora v. Wabash Railway Co. (Cardozo decision)
      1. driver injured when crossing rr tracks b/c he can’t see
      2. Cardozo disagreed with Holmes’ rule in Goodman b/c he says it’s too strict/inflexible
        1. Let juries decide based on all the circumstances in a particular case
        2. MOST cts. agree with Cardozo
    1. Akins v. Glens Falls School District
      1. P spectator hit by baseball while standing just past fence.  judge takes the decision-making away from jury here, but doesn’t make a general rule as in B&O railroad (maybe just a case that no reasonable jury could find another way)
    1. Andrews v. United Airlines
      1. Briefcase hit P from D airline’s overhead compartment
      2. Ct. says case should go to a jury (no need for SJ)
      3. Be cautious about the ct. setting down too many rules (trend is not to do that)
    1. Role of Custom
    1. Trimarco v. Klein
      1. man fell through glass enclosing bathtub; glass wasn’t shatterproof
      2. Custom is important
        1. D should know; no need to show specific notice, instead it’s constructive notice
        2. demonstrates that it’s obviously feasible
        3. P is not guilty of contributory negl.; affects P’s expectations & conduct (reliance)
        4. JURY must decide if custom is enough
    1. GENERAL INFORMATION ON CUSTOM
      1. Compliance with a custom: NOT as impt. in determining D’s innocence as NONcompliance is with speaking towards D’s guilt
      2. Prevailing custom does NOT define std. of care
      3. custom is NOT conclusive, just evidentiary
    1. Role of Statutes
    1. Martin v. Herzog (follows approach #3)
      1. buggy without lights hits an oncoming car, which violates a statute
      2. App. Ct’s jury instructions:
        1. Ct. here decides if the statute is relevant in determining a prima facie case
        2. Jury decides if the P had a reasonable excuse for violating it
      3. These instructions were wrong:
        1. Jury can’t decide if the violation is negligent, it’s NEGLEGENCE PER SE.  Jury is NOT allowed to relax duty here; they can only decide facts, like if the P’s had the lights on in the 1st place.
          1. Judge decides relevance of statue and jury decides if P has a reasonable excuse.
    1. 3 Approaches to Breach of Statute (most cts. adopt #2 or 3)
      1. Jury decides both on relevance & excuse of breach of statute
      2. Judge decides the prima facie/relevance aspect of breach (negligence per se) and Jury decides on the reasonableness of the excuse
      3. Judge decides both p.f. and reasonableness of excuse
    1. Tedla v. Ellman (looking at EXCUSE)
      1. junk collectors walked on wrong side of the road and were hit by a car
      2. 2 types of statutes
        1. those that provide an additional safeguard that defines duty and standard.
        2. those that DO NOT provide additional safeguards NOR higher std. of care
          1. this is where Tedla falls
          2. adherence to a statute that makes you less safe is bad—defeats purpose of it.
          3. look at legislative intent here
    1. Bassey v. Mistrough (looking at EXCUSE):
      1. P’s car broke down without electrical power (no lightsstatute violation)
        1. If P was unable to avoid violationexcuse
    1. Adoption of criminal statutes for TORT purposes
      1. two approaches:
        1. Violation of a statute is just evidence of negligence & jury is told they can consider it (Minority position)
        2. Court decides if the statute is to be adopted (if it crystallizes the std. of care)—Majority view
      2. Which statutes to adopt
        1. Courts consider LEGISLATIVE INTENT in adoption (but NOT in excuse)
        2. Gorris v. Scott:
          1. Ct. decided NOT to appy statute b/c it was not protecting sheep from type of hazard that harmed them. (risk that materialized must be one that D had a duty to guard against)
          2. DeHaen v. Rockwood Sprinkler Co.
            1. Radiator fell don shaft at a construction site and killed man.
            2. Ct. says that legis. intent INCLUDED this risk prevention; do NOT be too rigid when considering legislative intent)
 

X. Proof of Negligence

    1. NOTICE
      1. Negri v. Stop & Shop, Inc. (occupier’s liab. caseaffirm. duty)
        1. customer slipped on baby food in grocery store
        2. Constructive Noticedrawing an inference from circumstantial evidence) NOTE: constructive notice must be based on a particular hazard, NOT just general hazards
          1. D should’ve noticed it b/c the food was there for awhile
          2. jury’s role:
            1. was food there for awhile?
            2. was there constructive notice?
            3. was there enough time to remedy it?
            4. IF YES to all 3: LIABLE
      2. Gordon v. American Museum of Natural History
        1. D slipped on a piece of waxed paper
        2. NO evidence of neither actual nor constructive notice
          1. Case shouldn’t go to to jury b/c of lack of evidence
      3. Mode of Operation Approach (self-service groceries)
        1. 3rd party’s actions are imputed to D
        2. NO constructive notice necessary when proprietor knows of recurring risks
    2. Res Ipsa Loquitor (RIL) [instructions to jury that they can (not must) INFER negligence from the circumstances—burden of proof still on P, but D must show evidence that he took precautions]
      1. accident of this kind does not normally occur in the absence of negligence
      2. caused by agency or instrumentality (today it’s control over P) in D’s exclusive control
      3. cannot be due to any voluntary action on P’s part (NO contrib. negl.)
        1. This 3rd condition has been dropped today
      4. Byrne v. Boadle (first real case)
        1. barrel of flour fell from window
        2. jury can make a normative inference
          1. “but for” D’s negligence, accident wouldn’t have occurred (barrels don’t just fall out of windows)
      5. Larson v. St. Francis Hotel
        1. someone threw a chair out of the hotel window
        2. b/c a 3rd party could’ve been involved, D is NOT liable
          1. NO exclusive control over the instrumentality
      6. Connolly v. Nicollet Hotel
        1. Kids who were guests in hotel went wild and threw things out of window
        2. Hotel had ACTUAL noticeNOT an RIL case; there were specific allegations of negligence
      7. Anderson v. Service Merchandise, Inc. (connects RIL with occupier’s liability & duty)
        1. falling light fixture injured PRIL. Sylvannia had a K with D to service lights
        2. Control in this case is not physical control, but is who had exclusive control (D had an affirmative duty) over the premises through occupier’s liability (D).
        3. How could Sylvannia ever be liable?
          1. They couldn’t be under RIL
          2. D could indemnify them OR
          3. Sylvannia could have actually caused the harm
      8. Dermatossian v. NYC Transit Authority
        1. grab handle on D’s bus struck P’s head
        2. Court says that D did NOT have exclusive control of the instrumentality
        3. Defines “control” as physical control--different than in court does in Anderson
        4. court finds D NOT liable
      9. RIL in a presumption state (CA)
        1. Ybarra v. Spangard
          1. P injured while undergoing surgery, but many people were involved in P’s care
          2. Problem: no one D had exclusive control & what was the instrumentality?
            1. court changes it to RIGHT of control
            2. D’s are in a better position than P to provide evidence as to what occurred (policy reason—unconscious patient)
            3. also, there is a special relationship here bwt. D’s and P
          3. Presumption
            1. court says that you presume that every D is negligent
            2. Each D must dispel the presumption and let the jury weigh all evidence
            3. Necessary to have a presumption in multi-defendant cases for P to win (all states do in multi-defendant RIL cases)
    1. Medical Malpractice 
    1. Doctors are held to a higher std of care (professional std. of care)
      1. relationship bwt. the parties (affirmative duty)
      2. Reliance patient has on a doctor to conform to med. stds.
      3. deference of court to apply complex matters
    1. Jones v. O’Young
      1. Expert Witness Requirements
        1. He must be a licensed member of the school of medicine to which he is proposing to testify
        2. He must be familiar with methods, etc. observed by other doctors in D’s community or a similar community
        3. Must have knowledge of what the allegations of negligence concern
        4. He does NOT have to be in D’s specialty (b/c P may not be able to find one)
      2. Nat’l versus local std of care
        1. court here presupposes that std. of care in local juris. is appropriate std.
        2. many cts. are moving in the direction of a nat’l std.
    1. Connors v. Univ. Assoc. in OBGYN, Inc.[RIL and expert testimony]
      1. RIL is allowed to be instructed to the jury even when expert knowledge/testimony is used
        1. experts provide the knowledge base
      2. both RIL and specific allegations of negligence can be charged to the jury
    1. Korman v. Mallin [informed consent]
      1. woman unhappy with plastic surgery results
        1. Informed consent
          1. Reasonable Patient Rule
            1. objective test at std. of care stage:  what would a reasonable person in that patient’s position do?
            2. To find D negligent, jury would have to find that P would NOT have had the surgery if she’d been properly warned.Causation issue [at causation stage, the test is SUBJECTIVE]
            3. different than a professional std. rule set by customary practice
    1. Excuses for failure to disclose risks (as in Korman)
      1. if disclosure is detrimental to patient’s health
      2. in an emergency where consent is impossible
      3. when risk is so obvious

 

      DUTY OF CARE 

*Big “D” This refers to the “DUTY” section in the text

      It refers to Affirmative Duties like common carrier/passenger      (314A & B)

      This is an ADDITIONAL duty

      The elemental “DUTY” in a tort 

      * “duty”  this refers to the rights and responsibilities towards your fellow man.  This is the “duty” that Andrews is talking about in Palsgraf.  It’s a general kind of duty that Calabresi, Coase, Epstein, and Holmes talk about. The “duty” is a box surrounding the std. of care. 

      “duty” X std. of care + Big “D”uty

       
        1. Misfeasance vs. Nonfeasance
        1. Misfeasance (active misconduct that works positive injury to another
          1. an act
          2. people owe the “duty” here
        1. Non feasance (failure to take positive steps to prevent harm
          1. failure to act/omission
          2. duty owed in special circumstances/relationships, including contractual relationships
        1. Obligations to Others
        1. Palsgraf v. Long Island RR Co. [general “duty” under a Misfeasance case]
          1. CARDOZO’s majority opinion
            1. FORESEEABILITY limits “duty” of care
            2. “rights-based” view
              1. right is created if P is in a class where D could foresee causing him harm
              2. violation of a norm does NOT create a right
            3. Duty of care is a matter of Justice/individual’s right
          2. ANDREW’S dissenting opinion
            1. “duty” of care is owed to the world
            2. “social-oriented” argument
              1. advance toe social good, by raising the bar
              2. forerummer of law and economic movement
            3. cost distribution arg.
              1. Epstein: blame goes to party who caused the harm (fairness/justice)
              2. Prosser: Distributive justice calls for the innocent not bearing the loss even if a right is NOT violated
        1. Harper v. Herman [boat owner and guest who dives into shallow water]
          1. there must be a special relationship bwt. the parties for the creation of an affirmative duty (reliance & dependency)
            1. Restmt. 314:
              1. common carrier/passenger
              2. innkeeper/guest
              3. possessor of land/invitee
              4. custodian/person in custody
          2. Knowledge by D does not by itself create a duty of care/demand affirmative duty by D
          3. Consider: Restmt. 321:  Duty to Act when prior conduct is found to be dangerous (Creation of a risk tortiously or non-tortiously)
            1. duty to warn develops
            2. NOT a true nonfeasance situation
            3. Simonsen case: telephone pole crash—D had a duty to warn
            4. Tresemer case: doctor inserted a diaphragm and should’ve warned patient when he found out  it was dangerous, since he created the risk.
            5. Defenses to 321:
              1. not enough time for D to warn
              2. causation
        2. Restmt 322:  Duty to Aid another harmed by actor’s conduct
          1. “if the actor knows or has reason to know that by his conduct, whether tortuous or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm.”
        3. Restmt. 323: Negligent Performance of Undertaking to Render Services (D promises to undertake something for P: special situation)
          1. Ad Hoc situations (reliance is key)
            1. Morgan v. County of Yuba [sheriff promised to warn woman if they released a prisoner]
              1. Ct. found a duty b/c P reasonable relied on D
              2. Note: P has to prove she would’ve behaved differently had she been warned
            2. Harley v. Floyd [wife asked sheriff to check on husband; said he did, but didn’t, so P never called the Coast Guard and husband drowned]
              1. P’s reliance created a “D”uty of care
        4. Restmt. 324: Duty of One Who Takes Charge of Another Who is Helpless
          1. “One who, being under NO duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by (a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s chare, OR (b) the actor’s discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him”
          2. Restmt. relays NO opinion as to situations when the D leaves the P in NO worse position than when D took charge of him.
          3. Farwell v. Keaton [2 boys in a fight; one drives the injured one around and leaves him at grandparent’s home]
            1. boy voluntarily attempted to aid P
            2. he made the situation WORSE by segregating deceased
            3. court finds liability based on:
              1. special relationship of “companions on a common undertaking” AND
              2. under Restmt. 324
            4. Liability that the court finds may go against public policy, b/c it may create a disincentive for a person to come to other’s aid in the 1st place
          4. Zelenko v. Gimbrel Bros.
            1. Does not follow Farwell, but goes further by making D liable if he doesn’t make the other person BETTER off (rather than just making him liable for making him worse off)
        5. Public Utilities Cases
          1. Moch v. Rensselaer Water Co. [water co. failed to deliver water, so P couldn’t stop spread of fire]
            1. nonfeasance case
              1. normally, denial of a benefit, does NOT constitute commission of a wrong
                1. exception would be when the instrument of NO benefit becomes a benefit of harm (then there’s liability)
            2. Policy Argument
              1. it would go against general social good to expand duty to D here
          2. Strauss v. Belle Realty Co. [P falls down a poorly built stairway in apt. bldg. during a city-wide black-out]
            1. Nonfeasance/Privity Case
              1. Court holds that D didn’t have any duty to P in the common area, since the K was with the landlord
              2. public policy arg (similar to Moch) to limit duty of care to avoid “crushing exposure to liability”
            2. Dissent
              1. don’t limit liability (that’s the legislature’s job
              2. loss-spreading counteracts high liability
            3. Consider other types of loss besides physical damage to P’s person:
              1. property loss: recoverable (may look more like a case of misfeasance)
              2. economic loss: non-recoverable
        6. Future Harm cases
          1. Abala case [negligently performed abortion; infant has brain damage]
            1. no liability b/c foreseeability alone doesn’t create liability
            2. majority of courts follow this
          2. Renslow case [rejects Abala]
            1. as long as future harm is foreseeable, there is liability
        1. Obligations to Control the Conduct of Others
        1. Restmt. 314A: Special Relations Giving Rise to Duty to Aid or Protect
          1. lists common carrier, innkeeper, possessor of land who holds it open to the public and one who has custody of another as following under this duty
        1. Rest.t 315: Duty to protect and control
          1. There is NO duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control [includes both the right and opportunity] the third person’s conduct, OR (b) a special relation exists between the actor and the other which gives to the other a right to protection.”
            1. Restmt. 316: Duty of parents to control child (must have actual, not constructive knowledge)
            2. Restmt. 317: Duty of employer to control employee when outside scope of employment (when employee is on premises OR using employer’s chattel)
            3. Restmt. 318: Duty of Possessor of Land/Chattels to Control Licensee (D’s presence is necessary)
            4. Restmt. 319: Duty of those in charge of person having dangerous propensities (i.e prison guards)
            5. Restmt. 320: Duty of person having custody of another to control conduct of 3rd persons (duty of protection)
        2. Tarasoff v. Regents of the Univ. of CA [P’s are parents of girl murdered by patient of psychologist employed by D.]
          1. CA statute: there is NO civil liability for STATE employees for failure to detain
            1. Therefore, the court had a do some fancy footwork to get a cause of action here
              1. two causes of action
                1. failure to detain (doesn’t work b/c of statute)
                2. failure to warn (uses 315A—duty to control to uphold this claim)
                  1. they do this for public policy reasons
                  2. problem with this reasoning there is NO special rel. bwt. D & P giving rise to duty to protect; likewise, there is NOT a special rel. bwt. D and Poddar(patient) such that D has duty to control)
          2. Case of nonfeasance
          3. issue of doctor/patient confidentiality
        3. Lego Case [passenger didn’t warn driver that he was about to hit pedestrian]
          1. court did NOT find liability b/c there was NO duty to control the driver (opportunity, but no right)
          2. it would be diff. if passenger owned the car (Restmt. 318)
        4. Pulka v. Edelman [pedestrian hit by car driving out of D’s garage]
          1. court finds NO duty b/c there was NO opportunity to control the driver’s conduct, even though there was a right.
        5. Pamela v. Farmer [kids molested by D’s husband & D invited the kids over knowing about her husband]
          1. NOT a duty to control case:
            1. there is a special rel. w/reliance, so court finds liability on latter grounds
        6. physician-patient cases
          1. Reisner case [HIV transmitted via blood transfusion—D doctor never told patient, who later became intimate w/P, who then contracted the virus]
            1. Duty to P, b/c of D’s duty to 3rd party, although no doctor/patient rel. to P.
          2. Conboy case [D doctor told patient the medicine she was taking allowed her to drive okay]
            1. court finds NO duty to control patient
              1. Perry disagrees:  there is a “duty” under Palsgraf under Cardozo’s foreseeability theory or under Restmt. 321 (risk-creation duty to warn)
                1. misfeasance case
        7. medical cases involving families
          1. Pate v. Threlkel [genetically caused cancer discovered in parent, D doctor didn’t warn her kids]
            1. Ct. finds a duty b/c the family was involved
          2. Tenuto v. Lederle Lab [polio contracted from baby’s poop]
            1. Duty b/c is extended to patient’s family
              1. RELIANCE on the doctor
              2. Misfeasance/risk creation case
        8. Negligent Entrustment
          1. Vince v. Wilson [car sold to kid underage with Great-aunt’s $]
            1. court extends negligent entrustment to people other than owner/lender
              1. misfeasance
              2. Restmt. 390: “one who supplies directly or through a 3rd party a chattel for the use of another whom the supplier knows or has reason to know to be likely b/c of his youth, inexperience, or otherwise, to use it in a menner involving unreasonable risk of physical harm to himself and others whom the supplier whould expect to shar in or be endangered by its use, is subject to liability for physical harm resulting.”
            2. Policy Reasons for NOT extending doctrine
              1. control is gone
              2. market is hurt: barriers to sale are created
          2. key-in-ignition cases:
            1. remember: 1st check to see if purpose of statute was safety
            2. Palma case [car left in really dangerous area]
              1. misfeasance; liability b/c duty of care imposed
        9. Social Host Liability
          1. common law: Last Wrong-doer Rule
            1. barred recovery from bartenders & social hosts
            2. No longer followed
          2. Dram Shop Acts
            1. statutes which civil liability on commercial enterprises for injuries to 3rd parties after serving patrons to intoxication (in 1/3 of states)
          3. Kelly v. Gwinnell [host at his home allowed drunk guest to drive home]
            1. misfeasance b/c D served him more alcohol
            2. causation problem may develop if person was already drunk
            3. foreseeable harm
            4. Policy Arg. by court: DECREASE drunk driving
              1. most courts do NOT follow this decision
          4. Leppke case: jump-starting a car for a drunk is a case of misfeasance—liability
          5. O’Gorman case: bartender is NOT liable for returning keys to a drunk; nonfeasance w/no affirmative duty
        1. Occupier’s Liability
        1. 3 categories [status can change depending on if they go where they’re not invited, etc.]
          1. Trespassers (no privilege to be on land)
            1. unknown: NO DUTY at all; but owner can’t willfully or wantonly injure him)
            2. known/discovered: DUTY to exercise reas. care in your conduct; sometimes there is a duty to warn of hidden dangers known to occupier
            3. child trespassers: ATTRACTIVE NUISANCE DOCTRINE
              1. Restmt. 339: occupier has duty to take reas. care when knows or should know kid is on land & there’s a risk.
          2. Licensees: person with a license or privilege to enter land, usually given be occupier through express or implied consent, but nothing more
            1. they’re there for their own purposes (social guest, salesman)
            2. DUTY: occupier must exercise reasonable care in active conduct & must warn of any known dangers or alleviate it (same as duty to known trespassers)
              1. NO duty to warn against Unknown dangers
          3. Invitees: enter land open to public for its purpose; or enter land for business dealing when occupier knows/expects this (potential material benefit to occupier)
            1. DUTY:  for the occupier to exercise care in activities & take reasonable steps to discover hidden risks, warn and make them safe.
              1. obvious dangers  NO traditional duty, but under Restmt. 343, there is one (a possessor was NOT liable to invitees for harm from obvious dangers, “unless the possessor should anticipate the harm despite such knowledge or obviousness”
              2. public employees  for emergency purposes, they are licensees, but during business hours for business reasons, they’re invitees.
        1. Carter v. Kinney [Bible study; guest slipped on ice]
          1. court found guest was a licensee (spiritual benefit doesn’t equal material benefit)
            1. as such, he takes land as it’s presented
            2. NO duty by occupier to warn against Unknown dangers
        2. Rowland v. Christian (P cut hands on cracked faucet)
          1. court does away with the 3 categories b/c they go against “modern social mores”
            1. gives jury more power, but increases uncertainty
            2. General Reasonableness Test:  look at occupier in terms of his actions compared to a reasonable person
          2. Now, the trend it to return to the categorical approach
        3. Landlord-Tenant Cases
          1. common law: originally, there was no duty
          2. Now the landlord is liable when crime occurs on premises to tenants
            1. they are in a better position to control
          3. Sargent case:  general rules when landlords are liable
            1. when there is a hidden danger of which the landlord, but not the tenant is aware
            2. premises are leased for public use
            3. premises retained under the landlord’s control like the common stairways
            4. premises are negligently repaired by the landlord
        4. Liability and providing customer security
          1. FORESEEABILITY IS KEY
            1. CA says this mandates having prior similar incidents
          2. Williams v. Cunningham Drug Stores, Inc. [armed robbery @ store; customer injured; No visible security guard present]
            1. Court does NOT find a duty for the store to provide visible, armed security guards (even though it’s an invitee relationship) for 3 reasons:
              1. D doesn’t control the incidence of crime (control issue)
              2. Duty would be vague
                1. although, Perry says the general duty to protect is the only true vague factor
              3. Goes against public interest
                1. police, not private interests should be the protectors
          3. Scott case: P shot in D’s parking lot; D promised lighted security parking
            1. P says there was a false sense of security
            2. NO duty b/c P unreasonably relied on D
          4. Resisting Robbery Cases
            1. when a criminal makes a demand, is there a duty for the store clerk to comply?
              1. 2 cases w/opposite results:
                1. Boyd case: NO duty for store owner/employee to comply with criminal demands
                2. KFC case: overruled Boyd, but was itself subsequently overrule
                  1. today: NO duty
        1. Intrafamily Duties
        1. Common lawNO duty of care
        1. Types of intrafamily duties
          1. Between Spouses
            1. common law didn’t allow for suits b/c husband and wife were considered to be one unit
            2. today: trend is to abolish immunity for personal injury
            3. Exception where immunity exists:
              1. tort before marriage
              2. marriage is terminated
              3. auto accidents
          2. Between Parent and Child
            1. Arguments for immunity for public policy reasons
              1. undermine parental authority
              2. risk of collusion & fraud
              3. interferes w/family harmony
              4. pointlessresources shifted within same family unit
            2. Arguments against immunity
              1. limitation still on amt. of corpal punishment
              2. allow acts. to detect collusion/fraud
              3. family harmony is already in bad shape
              4. liability insurance is the main motivation
            3. Trend: Abolition of immunity (already is abolished in intentional torts)
            4. Where there is immunity, there are also EXCEPTIONS:
              1. if kid is legally emancipated (over 18)
              2. stepparents or guardians don’t have it
              3. if party dies before suit
              4. kid sues parent for wrongful death of other parent
              5. if injury occurs through business activity
        2. Zikely case [bath water too hot; kid fell in and got burned]
          1. NY abolished immunity except for in cases of Negligent Supervision (in other words, you can’t sue parents for Negl. Supervision in NY)
            1. Majority: the case falls here; so parents are NOT liable; case of nonfeasance
            2. Dissent: it’s a misfeasance case b/c parent created the risk
        3. Insurance considerations
          1. some states make this a consideration
        4. Contribution from parent by a 3rd party
          1. In a products liability suit, for example, the company can ask that the parent be contributorily negligent in cases where the child could’ve sued the parent himself
        5. Prenatal Torts: okay to sue mom for damage done before birth as long as born alive and parental immunity is abolished.
        6. religious beliefs: cts. do NOT usually make special allowances
        1. Emotional Harm/Distress 
        1. Background
          1. Historically:
            1. Physical Impact Requirement:  must be physical impact with P’s person, AND
            2. must be serious emotional harm w/physical manifestation
            3. INSURES genuine claims
          2. Modern Treatment
            1. Zone of Danger Test (replace phys. impact req.)
              1. P must have been in “imminent & apparent” danger personally [K.A.C.]
              2. still need some phys. manifestation
            2. Bystander Cases
              1. there doesn’t have to be a threat to you personally (except in NY, but there must be actual phys. harm to an intimate person)
        1. Exceptions
          1. “corpse cases”mishandling of a deceased loved one
          2. “telegram cases”get message loved one is dead, but they’re not
        2. K.A.C. v. Benson [HIV-infected physician wrote a letter to patients explaining his condition; patient was negative for HIV]
          1. court finds that P wasn’t within the Zone of Danger
            1. foreseeability test
            2. objective
              1. court looks at the scientific probability of threat and finds there was NOT one
              2. Problem with this: there may be a disjunction between scientific knowledge & public knowledge
            3. encompasses P who have been in some actual personal physical danger caused by D’s negligence

          ii.  Public Policy reason behind decision: Ct. didn’t want to encourage “AIDS Phobia”

        1. Williamson case [not in the book—opposite from K.A.C. where D negligently disposed of used hypodermic needles, of which no one knew if they were contaminated or not]
          1. To apply the Zone of Danger Test, court looks to a reasonable person of ordinary experience with public info. on transmission of AIDS, beyond scientific data to a level of public knowledge
            1. actual exposure requirement removed
        2. Gammon v. Osteopathic Hospital of ME, Inc. [funeral home sent a leg]
          1. Court did NOT look at this as a “corpse case” (which is could’ve)
            1. went further and treated emotional harm just as it would physical harm by applying a FORESEEABILITY test (as used by Cardozo in Palsgraf)
              1. problem w/a general foreseeability test here:
                1. Where do you draw the line? Part of life is dealing with hardship.
        3. Mis-Results Cases
          1. courts go 2 ways here:
            1. Heiner case [P was negligently told she was HIV positive, but she wasn’t]: court uses Zone of Danger test & finds NO liability b/c patient was never in a Zone of Danger.
              1. Perry thinks that the court could have instead used the “telegram case” analysis to find liabilty
            2. Chizmar case: Court does use the “telegram/bad news” analysis to find liability
        4. Malpractice Cases
          1. Legal Malpractice
            1. Holliday case: court finds liability using a general foreseeability test & by finding a special relationship bwt. attorney and client
          2. Medical Malpractice
            1. Neiman case [doctor negligently reported that P was sterile]
              1. court upheld complaint, but Perry thinks this was wrong b/c unlike other “bad news cases” there was no major harm of death/serious injury
        5. Indirect Victim/Bystander Cases
          1. Portee v. Jaffee [P’s son stuck in an elevator and died as P watched]
            1. Dillon’s 3-factor test for recovery
              1. location of P to scene of accident
              2. P actually witnessing the accident
              3. P’s relationship to the injured (must be marital or intimate familial)
            2. 4th factor added by Portee court:
              1. physical injury witnessed must be sever
            3. Falzone decision allows bystanders to recover by removing the requirement that the P show physical harm to her person from injury (risk is sufficient)
            4. NOTE: NY has a requirement that the P also be in the Zone of Danger (i.e. Johnson )
          2. Johnson v. Jamaican Hospital [P’s infant daughter kidnapped from hospital; P sued for emotional distress]
            1. Court finds a “D” uty to the child, but NOT to the P parents.
            2. No zone of danger existed for P’s
            3. NO liability
            4. NOTE: you could alternatively consider this case under a Palsgraf general foreseeability test
        1. Wrongful Birth/Wrongful Life 
        1. Greco v. US [P didn’t find out about unborn child’s birth defects b/c D doctor didn’t tell her]
          1. Wrongful Life (DENIED)
            1. brought by child
            2. 3 reasons for claim’s denial:
              1. Policy reason: court doesn’t like to make decision that it would’ve been better had the child never been born
              2. Damages are too difficult to assess
              3. Also, it there was liability,  it would encourage doctors to promote abortions to avoid liability
          2. Wrongful Birth (ALLOWED)
            1. brought by mother
            2. Duty is between the doctor and patient
            3. P must prove that she would have had an abortion had she known (similar to reas. patient std./informed consent)
            4. Damage issues:
              1. extraordinary medical/custodial expensesupheld; D’s offset arg. based on a normal child didn’t work b/c she would have had no child at all
              2. loss of services/companionshipdidn’t work b/c of the same reasoning P CAN collect under (a)
              3. Emotional DistressCan collect b/c of foreseeability; no offset is allowed for benefits of having a kid
        1. Healthy children cases
          1. usually in cases of failed contraception
            1. cts. allow for wrongful birth recovery here; without offsetting damages
       
       

            CAUSATION 

        1. Cause-In-Fact
          1. Basic Test: But-for Test
            1. But for D’s negligence, harm wouldn’t have occurred
            2. necessity test
          2. “necessary” & “sufficient”
            1. 2 people pushing a car over a cliff.  Either could do it alone. So, neither’s effort is a necessary condition.  Each, however, is a sufficient condition.
          3. R 431: A legal “cause-in-fact” is a substantial factor in bringing about an event
          4. R432: “substantial factor” either a “but-for” cause OR 1 of 2 actively operation forces, each one of which is sufficient to bring about the event.
            1. THEREFORE: a cause-in-fact is either a necessary condition OR a sufficient condition
          5. Scenario for which R 431 & R 432 doesn’t deal:
            1. A,B, & C push a care over a cliff.  Only 2 of them are needed to do so.  Each would be considered NEITHER a necessary nor a sufficient condition by themselves (yet, intuitively all 3 are “causes.”)
              1. Sufficient set: [A,B,C]
              2. Necessary set: [A,B], etc.
          6. NESS TEST:  for situations like in (e) when none of the actors are necessary nor sufficient by themselves
            1. a particular condition is a cause if & only if it is a necessary element of a [minimally] sufficient set
            2. EX. Pollution
              1. you need 5 particles of pollution to cause result:
                1. A produces 1 particle; B produces 5 particles.  A’s particle becomes a necessary condition of a sufficient set when paired with 4 of B’s particles.  Therefore, A would be a cause under the NESS TEST.
            3. A but-for cause is a special case of NESS with only 1 minimally-sufficient set at work
            4. policy considerations: think of D’s contribution to risk: was it substantial?
        2. Rouleau v. Blotner [person turns into other lane, P claims he didn’t signal]
          1. Classic “But For” example: court fins NO causation b/c even if D had signaled, P wouldn’t have noticed
        3. Kingston v. Chicago & NW RR Co. [2 fires merged and burn down property; each is sufficient alone to do damage]

          a.  But for test fails here, in cases where two actors are independently sufficient causes.

          b. NE fire was caused by D, and NW fire was from an unknown source

        1. D should still be liable even though damage would’ve occurred w/out him; otherwise, BOTH tortfeasors would go free (UNFAIR)
        2. Distinction bwt. tortious & non-tortious fire
          1. If 2nd fire was natural, then D is NOT liable
            1. Burden of proof shifts to D to prove this
            2. Today, burden is on P to prove 2nd fire was tortuous
          2. Why allow D to go free here?
            1. B/c putting P back to position he would’ve been in had D’s tort NOT occurred, wouldn’t allow for any damages
            2. here, the 2nd fire’s cause was unknown, so court errors on P’s side and assumes it was tortuous
        1. Hypos based on Kingston:
        1. D’s fire burns down house. 30 min. later, a non-tortious fire came that would’ve burned it down.
          1. P would collect for ONLY 30 minutes left of house
        1. Same as in (a), but this time 2nd fire is also tortiously set:
          1. Liability:
            1. for D1: full damages (100%)
            2. for D2: NOT liable at all (he caused NO harm)
        1. Dillion v. Twin State Gas & Electric Co. [boy on bridge grabbed hot wire and got electrocuted]
        1. court sees a causation issue: had boy not been killed by electrocution, he would’ve been killed/injured by fall probably.
          1. Perry disagrees, and sees it as a valuation issue: he did die b/c of the wire
          2. 3 options for the jury when considering damages:  If boy had NOT been electrocuted, then
            1. he would have lived  FULL RECOVERY from D
            2. he would have been injured  PARTIAL RECOVERY from D
            3. he would have died :
              1. from a natural cause (the rocks on the ground)  NO RECOVERY
              2. from a tortuous cause (a barge beneath)  FULL RECOVERY
        1. Haft v. Lone Palm Motel [boy and dad drown in motel’s pool where there’s no lifeguard nor sign]
        1. burden of proof shifted to D b/c the causal uncertainty was foreseeable
        1. Falcon v. Memorial Hospital [patient died b/c of an embolism while giving birth]
        1. Lost Opportunity (injury is this)
          1. value the lost opportunity for P to survive by discounting damages using the probability. (ex. if P would’ve had a 37.5% chance of survival had the IV been inserted, then P gets 37.5% of damages as the lost opportunity)
          2. requires an actual injury
          3. Dependant on a pre-existing relationship/ affirmative duty (here a contractual relationship)
        1. Lost Chance
          1. use statistical data/#’s alone to see what P has lost
          2. difficult b/c each individual is not going to follow the “probability for a group.”
          3. Broad (like Andrews’ opinion in Palsgraf)
            1. NOT linked to an affirmative duty
            2. NO need to show actual injury
        1. Future Injury Cases ( 3 approaches: Mauro, Petriello, and Penn.)
        1. Mauro v. Raymark Industries, Inc. (New Jersey) [P exposed to asbestos & has fear of contracting cancer—must be examined every 6 mos.]
          1. “Reasonable Medical Probability”:  P must prove by a preponderance of the evidence (> 50%) that she will get the future injury
            1. if > 50%, P gets 100%, full recovery NOW (as if she had the disease currently)
            2. if <50%, P gets NO damages now, and IS allowed to bring 2nd action later (only works in states w/out a Single Controversy Rule)
              1. court could value present injury and give P those damages in the 1st suit to put her back in the position she would’ve been in had there been no injury
        1. Petriello case:  NO 2nd, future claim allowed
          1. look at the probability of future injury & award damages proportionally
          2. compensate P for increased RISK of future harm
          3. Statute of Limitations applies in this state
        2. Pennsylvania Approach (Marinari case): Two-Disease Approach
          1. any recovery for enhanced risk is barred until the anticipated condition develops, even if risk is > 50%.
          2. What happens of D is gone then?
        3. Medical Surveillance [economic loss from going to the doctor]
          1. NJ std: No requirement for present physical injury
          2. It’s in everyone’s interest to prevent FUTURE injury, so put burden on D
        1. Multiple D Cases
        1. Summers v. Tice [3 men hunting; two shot @ P]
          1. causation problem: you don’t know which D’s bullet hit P
            1. court shifts burden of proof to D’s b/c they’re in better position to prove than P is. (Alternative Liability)
              1. only works with 2 D’s b/c otherwise, they couldn’t exculpate themselves by a preponderance of the evidence.
            2. Fairness and justice call both to be liable
            3. Concerted Action Theory doesn’t work here, b/c they weren’t acting in concert
        1. Hymowitz v. Eli Lilly Co. [indeterminate D’s in a DES case]
          1. problems with normal causation theories
            1. Alternative Liability doesn’t work here b/c D’s do NOT have better access to information than do P’s
            2. concerted action theory doesn’t work here b/c NONE of the D’s worked together
          2. Market Share Liability Rule
            1. each D pays damages based on his share of the market (here, they use a nat’l market scheme)
            2. court does NOT allow exculpatory evidence in by D (although the Sindell court does)
            3. However, the court does allow the P to prove which specific D caused her injury, if possible (unfair to D’s with distinctive pills)
            4. Although goods don’t have to be fungible for this to work, the degree of risk must be known
          3. Problems:
            1. >’er market share  >’er culpability
            2. administratively complex and burdensome
            3. unfair if incomplete information
            4. radical w/out an exculpation rule
          4. Figuring out each D’s damages:
            1. Several Liability Regime:  each D is only responsible for his own proportion of injury & cannot be responsible for all of the other D’s, in cases of insolvency (ex. 5 D’s, 1 is insolvent.  P will only recover 80% of damages)
            2. Joint & Several Liability Regime:  Each D can by responsible for the full (100%) damages.
            3. Inflationary Liability:  Re-expand to 100% if a D is insolvent; each D pays proportionately more (ex. 5 D’s, 1 is insolvent. Each has 20% of the market. Under several liability, P would only recover 80%, but here, you expand the 80% to 100% to make each of the D’s pay 25% of damages).
        2. Agent Orange Cases [indeterminate P’s]
          1. Weinstien: why not apply the market share liability scheme, but backwards?
            1. since P’s are unknown, allow each of them to recover only the % of the totally injury to the population caused by him.
              1. Ex.  If D caused cancer to 25% of a population of 100 people with cancer, then let all 100 people recover 25% of their damages from D.

            ii.  Still acts as a deterrent to D; but those who got injury from D are under compensated while others get $ they shouldn’t.

       

      PROXIMATE CAUSE

      * This is to be considered after cause-in-fact has been established.  It’s an assessment of the causal chain—Is connection too remote or freakish?

            First:  Assess cause-in-fact

            Second:  Look at proximate cause (cause-in-fact can’t be too freakish)

        Third:  Assessment of Damages (take into acct. P’s prior position/pre-existing               condition to decrease damages accordingly)

       

        1. Unexpected Harm
        1. Steinhauser v. Hertz Corp. [daughter in a car wreck had onset of chronic schizophrenic reaction & was institutionalized
          1. There is cause-in-fact, but the result if unforeseeable
          2. Egg-Shell Plaintiff rule:  Take P as you find him; as long as the type of damage is foreseeable, then it doesn’t matter what the foreseeability of the extent of those damages are.
            1. only used in personal injury cases
        2. In Re Polemis [D dropped a board, which started a fire & the ship blew up.]
          1. Directness Test:  the negligent act must be more than a but-for cause, it must also be a DIRECT cause  short, causal link in space and time. There can only be a a minimum of intervening causes.
          2. Therefore, b/c this damage was directly caused by D’s act, the unforeseeability of the damage doesn’t matter. (Andrews’ view)
        3. Wagon Mound Case [D negl discharged oil into harbor; P’s wharf burned b/c of welders, oil, and cotton!]
          1. Holds that Polemis’ Directness Test is WRONG!! You must have reasonable foreseeability (that’s the proper test)—used today.
            1. need a limit
            2. morally intuitive
            3. Cardozo’s arg. in Palsgraf (limit damages to only reasonably foreseeable damage)
              1. Prosser and Andrews would disagree and say that duty shouldn’t be limited to reasonably foreseeable damage. They would prefer the directness test in Polemis.
              2. Note the connection bwt. duty and proximate cause
                1. different though:
                  1. duty: rel. bwt parties
                  2. prox. cause: nature of causal rel. bwt. act and injury
        4. Exceptions to Wagon Mound’s Reasonable Foreseeability Test for proximate cause
          1. Thin Skull/Eggshell Plaintiff cases:  D must take P as you find him. Type of injury must be foreseeable, but extent of that injury does not
            1. Smith case (molten metal on lip, later causes cancer)
          2. New Risk Cases
            1. ex. D injured P, causing P’s immune system to weaken and he dies from an unforeseeable rare infection
            2. Trolley case: too remote that a tree limb fell due to speeding trolley care
          3. ex. “irresistible impulse” in sucide cases, where D created a new risk to P.  A type of directness test—Where do you draw the line between irresistible impulse and the intervening agency of human willpower?
        5. Medical Aggravation Cases
          1. P injured D who needs medical attention, but that makes things worse. Cts. allow recovery here as long as the efforts of these 3rd parties are “normal.”
        1. Unexpected Manner/Intervening Forces
        1. Background
          1. R 435: The foreseeability of the extent of harm or the manner in which it occurred doesn’t matter is D’s conduct is a substantial factor in bringing harm to another; only if it’s highly extraordinary that the conduct brought about the result, can D not be considered a legal cause of harm [????????????????????????????????????}
        2. McLaughlin v. Mine Safety Appliances Co. [fireman did NOT instruct nurse that heating blocks needed more insulation when applied to a person]
          1. Fireman’s actions were considered to be a Superceding Cause, breaking the chain of proximate causation
          2. Gross negligence/actual knowledge of an increased risk and sufficient egregious behavior by fireman supercedes
        3. Intentional Harm as superceding cause
          1. breaks chain of proximate causation
          2. exceptions:
            1. Hines v. Garrett [train dropped girl off in bad part of town—raped]
              1. there was a special rel. between common carrier and passenger, so they had a duty of care to protect her from the 3rd party’s criminal activity (denies superceding cause)
       

      DEFENSES

        1. Contributory Negligence
        1. Defendant has the burden of proof to show that P was negligent to themselves. This would have been a complete BAR to recovery
        2. Last Clear Chance Doctrine:  If D had the last clear chance to avoid harm and didn’t, then this defense did NOT work. This theory is NO longer in use!
        3. D couldn’t be reckless/wanton/ nor intentional either
        1. Comparative Fault Regime
        1. assessment by jury of relative degrees of fault to parties involved (%)
          1. Burden assigned among parties in proportion to assigned degree of fault
          2. Joint and Several Liability is the traditional rule here
          3. Types:
            1. Pure:  regardless of P’s relative degree of fault, his damages are reduced accordingly.
              1. ex. if P is 90% at fault, he can recover 10% of damages
            2. Modified:  beyond a certain threshold, if P’s relative degree of fault is too HIGH, then NO recovery at all is allowed
              1. Equal Fault Bar:  P is allowed to recover only if he is LESS at fault than D
                1. ex. P is 50% at fault, then P’s action is barred
              2. Greater Fault Bar: P is allowed to recover if his fault is less than OR equal to D’s fault
                1. ex.  P is 50% at fault, the P can recover 50% of damages.
              3. Multiple Defendants:
                1. Two options
                  1. Non-aggregation: compare P’s fault with each D individually (P=40%  D1=30%  D2=30%  NO recovery)
                  2. Unit Rule: aggregate D’s fault and compare with P’s fault. (in above ex. there would be recovery)—majority position
                  3.  
          4. Examples:

            P=40%

            D1=30%

            D2=10%

            D3=20%

            Damages=$40,000 

                  1. Pure with joint & several: P could recover full $40,000 from any D.
                  2. Modified, non-aggregation: P recovers NOTHING
                  3. Modified, unit, joint & several liab:  P recovers $40,000 from any D
                  4. Modified, unit, several liab: P can only recover % from that particular D (ex. $12,000 from D1)
          1. Example:

            P=30%

            D1=40%

            D2=10%

            D3=20%

              1. Modified, non-aggregation: P can only recover from D1
          1. Uniform Comparative Fault Act:  more elaborate than states usually, PURE fault regime
            1. Joint & Several Liability
            2. Inflationary Liability
            3. 1(a): abolished last clear chance (proximate cause doctrine)
            4. Recklessness by D: Most states WILL compare this to when a P is negligent to reduce damages
            5. Socially offensive conduct by P: many courts do NOT compare here— some courts bar recovery completely, some do not.
            6. When D has committed an intentional tort and P has negligently contributed to his own injury, courts do NOT compare nor reduce P’s damages.
            7. When P is intentionally committing a tort, and D is negligent, courts will sometimes compare (ex. illegal abortion w/a negligent doctor)
            8. Two D’s, one negl. and the other criminal or intentional (usually, in cases where there’s an affirmative duty i.e. Tarasoff): 
              1. joint & several states:  doesn’t matter if you reduce negligent D’s fault, b/c he is responsible for 100% if you don’t get other D.
              2. several liability states:  sometimes fault is apportioned when affirmative duty is less clear (bartender not protecting patron from murderer); otherwise, negl. D’s liability is not reduced b/c the duty was to protect P from other D. 
                1. Scott case:  CA case where joint and several liability only allowed for economic damages, but several liability was allowed for non-economic damages.  Jury messed with apportioning fault to ensure P got damages.  Judge didn’t allow verdict to stand.
            9. Imputation of Negligence from one P to another
              1. Only allowed in derivative actions
              2. Loss of consortium: action is derived from harm to the other spouse and should be subjected to comparative negl. defense
              3. Wrongful Death:  brought be next-of-kind, derived from harm to decedent. So, should be subject to a comparative fault reduction.
              4. Emotional Distress/Bystander Cases:  if loved one was comparatively negligent, should damages of P be reduced?
                1. NO, b/c it’s not a true derivative action—two separate duties of care, etc. 
              5. Parent/Child cases:  Parents’ negligence is usu. NOT imputed to the child (child’s action is separate)
            10. Right of Contribution  (re: if D can go get contribution from other tortfeasor in joint and several liability states)
              1. Equality Rule: liability is equally distributed
              2. Comparative contribution: used today—liability is distributed accordingly, based on D’s relative degree of fault
            11. Avoidable Consequences [for damages assessment]
              1. Duty to Mitigate: when P didn’t take reas. action to mitigate harm originally caused by D, then D is NOT liable for additional damages.
                1. Medical procedures: No duty to go risky procedure; but you must follow ordinary doctor’s advice and no religious excuse counts
                2. Seatbelts/helmets:  courts differ on how to distribute damages; some do a comparative fault analysis, and others are strict on duty to mitigate; and others give full recovery.
        1. Assumption of Risk
        1. Complete Bar to Recovery (even today!)
          1. 3 requirements:
            1. Subjective assessment of risk by P
            2. P voluntarily chose to encounter risk
            3. P’s conduct must have manifested consent (express or implied)
          2. Exculpatory Clauses:  parties can contract out of negl.; subject to public policy considerations
            1. look at bargaining power
            2. was D providing a necessary public service?
            3. Not usu. allowed in Healthcare
          3. Implied Assumption of Risk
            1. Primary Assumption of Risk: lowered std. or duty of care  Is D negligent at all?
              1. Murphy v. Steeplechase Amusement Co. [P falls on The Flopper]
                1. Cardozo is not saying that the D here was negligent at all, so he is not using AR as a defense
                2. P knew about the risk and assumed it. (so, std. of care is lower here)
              2. Sports participants & spectators
                1. range of risks in these activities, so the std. of care is lowered; reckless or intentional conduct is req. for liability
                2. For std. of care to be modified, there must be common, widespread knowledge & voluntary assumption of risk (i.e. spectators at games)
            2. Secondary Assumption of Risk:  defense to a negligence action
              1. Gonzalez case [drinking and driving]
                1. court sees similarity bwt. comparative fault. and AR b/c both involved the P behaving in a unreasonably risky way; although, the former is objective std., latter is a subjective std.
                  1. So, instead of making AR a complete bar to recovery, turn it into a comparative fault scheme so P can partially recover.

       

      PRODUCTS LIABILITY

       

        1. Liability for Defective Products
        1. Winterbottom:  Historical Rule  need privity of K to sue (MacPherson contradicts this)
        2. MacPherson v. Buick: Foreseeability is the key—so, if an article is inherently dangerous, than NO contractual privity is necessary to find liability nor does it limit duty of care—doesn’t do away with it, but Henningsen does)
          1. Warranty:
            1. Express: no need for contractual privity between the parties
            2. Implied: 
              1. Warranty of merchantability:  product must be fit for ordinary purposes for which it’s sold; std. of reasonable safety
              2. Warranty of fitness for a particular purpose:  when a purchaser to seller’s knowledge relies on seller to select suitable goods for a purpose
              3. food and drinks:  implied warranty held to run all the way to the ultimate consumer regardless of privity
            3. difficulty with contract approach:
              1. warranty is a representation which is a disclaimer that can be disclaimed under the UCC
              2. Doesn’t apply to natural persons under UCC
        3. Escola v. Coca-Cola [coke bottle broke; P sues bottler, NOT the bottle manufacturer]
          1. Concurring opinion (Traynor):  use strict liability theory (instead of majority’s choice of RIL).
            1. manufacturer can spread loss
            2. provides an incentive to make product safer
            3. manuf. have control of the evidence
        4. Henningsen:  eliminated privity requirement for finding strict liability
        5. Greenman v. Yuba [Notice Req.]
          1. manufacturer was held strictly liable in tort; warranty notice req.  (ie when breach must be relayed to Manuf.) shouldn’t apply when the P and the manuf. have NOT dealt with one another directly.
        6. Vandermark case: Allows all parties in chain of distribution to be found strictly liable (ie retailers in addition to manufacturers)
        7. Elmore case: Bystanders can also sue under a strict liability regime for injuries by a defective product

       

        1. Types of Defects
        1. R 402A:  Discussed a product being unreasonably dangerous—NEGL. STD.
        2. Replaced by the 3rd Rest., which employs only a Risk-Benefit Test to find defects and also follows a Negligence Doctrine (foreseeability and reasonability are taken into account)
          1. Manufacturing Defects:  specific good/item did NOT conform to intended design
            1. strict liability here: duty, std. of care, and foreseeability are IRRELEVENT. Only cause-in-fact & prox. cause are impt.
          2. Design Defects:  defect in the design itself, covering the entire range of goods
            1. Cronan case [bread trays in truck]:  court does not follow R 402A’s requirement of being “unreasonably dangerous” b/c it’s like a negligence std.  The defect itself is sufficient
            2. Barker case:  two tests to determine existence of a defect
              1. Consumer Expectations Test:  expectations of an ordinary user
              2. Risk-Benefit Test: for more complex design matters
                1. involves a cost benefit analysis (would it be possible to make the product safer for a reasonable cost?)
                2. Is there an ALTERNATIVE, FEASIBLE DESIGN which is safer and not too costly?
                  1. If YES, then the jury can find product defective
                3. Look at info manufacturer had at the time of distribution (more like a negligence test, rather than str. liability)—not the way the Barker ct. looked at it, however
            3. Soule v. GM [smashed feet into floorboard of Camero]
              1. Only use Barker’s consumer exp. test when consumer should know about it, and they can infer it from the facts.  No experts needed under this test.  Otherwise, it should employ the Risk-Benefit Test.
              2. Jury can be charged with both tests
              3. Note: new restmt. only employs a Risk-Benefit Test; like a negligence std.
            4. Camacho v. Honda Motor Co. [guys legs smashed after he was in motorcycle wreck—injuries worse b/c of no leg guards]
              1. Crashworthiness Doctrine:  if defect enhanced or caused injuries, even though they didn’t cause the initial accident, manuf. can be held liable
              2. Uses 7 point test (Ortho Test) to determine defect (consumer choices, availability of alt. products, and open/obvious nature of risk.)
            5. Dawson case: Ct. says that products liability is a type of regulation for safety stds; however, this ends up in checkerboard results (So should we just rely on a nat’l std.?)
            6. Dreisonstok v. Volkswagon:  [VW microbus w/ no space bwt. driving compartment and front of bus]: court says tradeoff is obvious to consumer, so it should be allowed
              1. Compare LIKE product with LIKE product; use the Risk-Benefit Test within those limits
            7. Misuse of Product:
              1. Jones case:  [modification of product by employer]
                1. even if modification was foreseeable and common, NO liability if it was safe when it left manuf. plant.
                  1. minority position
                2. Majority position:  seller/manuf. must ANTICIPATE foreseeable misuse & modification
                  1. an element of duty (?)
        1. Warnings/Instructions
        1. Adequacy of Warning:
          1. Hahn case:  [girl swallowed a topical analgesic]
            1. jury decides issue of acceptability of warnings
            2. look at:
              1. actual wording itself
              2. the warning’s presentation
        2. Causation Problem:
          1. It must be the case that had proper warning been given, P would have behaved differently.
            1. Heeding Presumption:  The D must show that P would NOT have heeded a proper warning. [subjective test]
        3. Costs of Warnings
          1. Moran case:  [cologne and candle]
            1. Ct. says that cost of warning is so small that a balancing test will always favor an obligation to warn
          2. Cotton case: [propane tanks exploding]
            1. information-overload is a disadvantage of too many warnings
        4. Addressee  Warnings must reach the ULTIMATE consumer, EXCEPT:
          1. Learned Intermediary Rule:  doctors prescribing drugs to patients
            1. exception to this exception is when there are mass vaccinations and in certain situations like birth control pills
          2. Bulk Supplier: warning need only be ready by main buyer (“sophisticated buyer”), not by the individual employees
        1. Warnings of Intrinsic Risk
          1. Prescription Drugs
            1. Brown case:  prescription drugs for policy reasons are NOT subject to Risk-Benefit Test (for defects) for public policy reasons (ie chilling effects on drug manufacture)
              1. only subject to warnings law
            2. Anderson case:  Look at knowledge available in scientific community, not what the actual knowledge of the manuf. was (this is a stricter Negligence test)
            3. Beshada Case:  holds manufacturer to present std. of knowledge
              1. TOO STRICT; overruled
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