Torts Theory: Overall
What are the ultimate goals
of Tort law?
- Compensate
victims of accidents.
- (Moral judgment:
Holmesian view that damages should lie only where fault lies.)
- (Efficiency:
Posnerian view of achieving an efficient level of safety.)
What are the alternative
systems we might use to achieve these goals?
- Non-liability
system
- Compensation to
victims achieved by use of private loss insurance, social welfare/government
benefits, gifts.
- Advantages: autonomy
& equality: victim controls risk and amount of insurance, victim
decides how much he’s worth.
- Disadvantages: no
moral judgment, no deterrence.
- Victim makes the
Hand calculus.
- Costs of accidents
are spread among all insured.
- Negligence system
- What we have, predominantly.
- Moral judgment achieved:
only those at fault pay.
- Trier of fact makes
the Hand calculus.
- Strict liability
system
- Compensation to
victims paid by tortfeasors, probably via liability insurance.
- Advantages: strong
deterrent effect. Although at first glance, safety doesn’t increase
under a strict liability regime as opposed to a negligence regime, it
really does (see Products Liability).
- Disadvantages: no
moral judgment, we can’t rely on everyone to carry liability insurance,
so to ensure compensation we’d end up subsidizing the liability insurance
and losing the deterrent effect.
- Tortfeasor makes
the Hand calculus.
- Depending on nature
of tortfeasor, may spread accident costs to different populations.
For example, in case of strictly liable manufacturers, accident costs
will ultimately be spread to all users of dangerous products through
price increases.
Damages
Big Picture: Fundamental
goal of damages in the unintentional torts area is to return the plaintiff
as closely as possible to his condition before the accident (book authors).
Alternatively, Posner views damages as a means to achieve an “efficient
level of safety.”
In awarding damages, sometimes
the goals of fairness/proportionality, compensation, and deterrence
conflict with each other.
Problems in determining tort
damages include:
(1) Prediction
(2) Inclusion
(3) Compensability
(4) Measurement
(5) Commensurability
Compensatory Damages: Pecuniary
Damages
Elements of Pecuniary Damages
& Calculation Problems:
- Medical expenses-
past
-figure will be a function
of class of victim unfairness; richer people will get
more expensive care
- Medical expenses-
future
- Lost earnings- past
- collateral source
rule: law disregards gratuitous wage payments by third party, e.g.
brother in Arambula v. Wells (Calif. 1999) who continues to pay
salary to victim
- Lost earnings- future
-uncomfortable to use life
expectancy predictions based on demographic factors (class, race, gender,
etc.) because cheaper to injure poor people, men,
etc.
-under- and over-compensation
for lost ability to work (receive money without having to work, but
lose intrinsic satisfaction of work)
- Property damage
General Problems with Compensatory
Damages:
- contingency fees
take out 30% of award
- single judgment
approach
necessity of predicting future, but impossible to predict how much plaintiff
will earn from investing and what future interest rates will be (one
imperfect solution: assume that inflation will balance out interest
earnings/zero real rate of return)
- inequality:
because of restoration to status quo ante goal, damages paid to advantaged
people likely to be much higher than damages paid to the disadvantaged;
tort damage liability may create incentive to locate most dangerous
activities/sell more dangerous products in poorest areas; under required
liability insurance schemes we all pay for those with high income &
expensive cars
Compensatory Damages: Non-pecuniary
Damages
Theoretical justifications
for awarding pain & suffering damages:
- compensation:
plaintiff has, in fact, lost something
- deterrence:
Posner’s argument that “No one likes pain and suffering and most
people would pay a good deal of money to be free of them. If they
were not recoverable in damages, the cost of negligence would be less
to the tortfeasors and there would be more negligence…and hence higher
social costs”
- but Jaffe’s argument
against awarding pain and suffering damages: “Neither past pain nor
its compensation has any consistent economic significance”… “It
is doubtful justice to embarrass a defendant… by real economic loss
in order to do honor to plaintiff’s experience of pain”
Calculation of pain &
suffering damages:
Should jury be given any guidance?
How does appellate judge make a determination of excessiveness as a
matter of law?
- “shocks the conscience”
standard
- some measure excessiveness
in proportion to pecuniary damages (dissent in Seffert v. LA Transit)
- appropriate to suggest
a per diem calculation to jury?
- surveys of “willingness
to pay”?
- is loss of enjoyment
of life a separate damage category from pain and suffering,
e.g. in case of comatose patient unable to feel pain? McDougald v.
Garber (1989) holds that the categories should not be considered
separately; damages for loss of enjoyment of life to a non-aware person
don’t serve compensatory purpose
Punitive Damages
When are punitive damages
awarded?
- infrequently awarded—less
than 1% of tort cases
- more often awarded
in business v. business cases
- Conscious disregard
of safety of others may be enough to justify punitive damages; intent
to harm not necessary (Taylor v. Superior Court
(Calif. 1979): punitive damages awarded to plaintiff hit by drunk driver
with history of drunk driving)
How are punitive damages
measured?
- determined by trier
of fact (jury, trial judge)
- appeals court may
strike down a trier of fact’s punitive damage award if it is grossly
excessive in relation the state’s interest. (BMW of North
America, Inc. v. Gore (1996): Repainted car case; jury awards $4
mill in punitive damages, $4,000 in actual damages. Supreme Court
(5-4) finds punitive damage amount violates due process clause because
it is “grossly excessive” in relation to the state’s interests,
measured against guideposts of degree of reprehensibility, ratio of
compensatory to punitive damages, and civil/criminal sanctions for comparable
misconduct; concurring justices find it violates due process because
state’s process provides no standards constraining jury/court’s
discretion.)
- when Supreme Court
scrutinizes damages, it reviews de novo
rather than acting as appellate court (Cooper Industries v. Leatherman
(2001))
- federalism:
state courts can only consider effect of defendant’s policies in state
when determining punitive damage award (State Farm v. Campbell
(2003))
- few awards exceeding
single-digit ratio between compensatory and punitive damages will
satisfy due process (State Farm v. Campbell (2003))
Problems:
- moral hazard problem:
until end of 19th century liability insurance was illegal
for fear it would encourage people to hurt others; now award of punitive
damages will nullify liability insurance
- doubtful deterrent
effect
Joint Liability: Liability
shared by two or more parties.
Several Liability:
Liability that is separate and distinct from another’s liability.
Joint & Several Liability:
Liability that may be apportioned either among two or more parties or
to only one or a few select members of the group, at the adversary’s
discretion. Each liable party is individually responsible for
the entire obligation, but a paying party may have right of contribution
and indemnity from nonpaying parties.
Causation
Big Picture: In most
cases, causation is obvious and not litigated. Generally, the
burden of proof is on the plaintiff to demonstrate that the defendant
caused his injury. Causation issues may arise in cases where:
(1) defendant’s action clearly
connected to plaintiff, but not clear if that action is the cause of
plaintiff’s injury (e.g. Stubbs, Zuchowicz)
(2) defendant acted negligently,
but not clear if specific defendant is connected to specific plaintiff
(e.g. Summers, Hymowitz)
Act-Injury Connection in
Dispute
- causation issue
often arises in cases of illness. Problem: statistics can’t
prove causation in a specific case. If defendant’s action caused
an 80% increase in the chance of getting typhoid in a given area, should
defendant pay full damages to everyone who gets typhoid, pay damages
to nobody, or pay 80% of the medical expenses of everyone who gets typhoid?
- two approaches to
causation issue are given in early typhoid-water supply case of Stubbs
v. City of Rochester (NY 1919): (1) plaintiff has burden of proof
to exclude all other possible causes of his injury in order to hold
defendant liable (trial court’s rule), (2) plaintiff has to establish
with “reasonable certainty” that defendant caused his injury
(appellate court’s rule).
- increased risk
approach to causation, in Danocrine-PPH case, Zuchowicz v. United
States (2d Cir 1998): “If (a) a negligent act was deemed wrongful
because that act increased the chances that a particular type of accident
would occur, and (b) a mishap of that very sort did happen, this was
enough to support a finding by the trier of fact that the negligent
behavior caused the harm.”
- loss-of-chance
theory: plaintiff can recover for lost chance for a better outcome
as well as increased risk of undesirable outcome. In loss-of-chance
cases damages should be awarded on a proportional basis
“as determined by the percentage value of the patient’s chance for
a better outcome prior to the negligent act.” (Alberts v. Shultz
(NM 1999))
- role of expert
testimony on causation “to a reasonable degree of medical certainty”:
Supreme Court says trial judges have discretion in admitting expert
testimony. Should consider (1) theory tested by scientific method?
(2) theory subject to peer review and publication? (3) known or potential
rate of error? (4) theory generally accepted?
Defendant-Plaintiff Connection
in Dispute
- one approach: if
there are multiple negligent defendants acting in concert, and only
one of them actually caused plaintiff’s injury, burden of proof shifts
to each defendant to prove his innocence, under reasoning that defendants
have access to better information (Summers v. Tice (Calif. 1948),
shooting case)
- another approach:
in a mass tort context, if there are multiple negligent defendants,
and only one of them actually caused a particular plaintiff’s injury,
the defendants will have to pay in proportion to their market share
(concurrence in Hymowitz v. Eli Lily (NY 1989) DES case)
Negligence Principle
Big Picture:
Learned Hand conceptualizes negligence/reasonable care standard as:
liability lies where the burden of adequate precautions is less than
the probability of injury multiplied by the gravity of the injury (B
< PL).
In determining negligence,
we don’t look into the mind of the individual defendant, but rather
judge by a “reasonable person” standard, with a few caveats:
- age (the reasonable
7-year-old; unless child is involved in adult activity)
- physical disability
(the reasonable blind person)
- common carriers
(higher standard of care?)
- doctors (custom
of majority or reputable minority of doctors)
Proving negligence:
- prevailing custom
(relevant but not dispositive)
- statutory compliance
(not dispositive, unless statute explicitly states that violation proves
negligence)
- “business practices”
rule (like a products liability standard for services)
- res ipsa loquitur
(if defendant has control over thing that caused accident, and event
couldn’t have happened absent negligence, then a res ipsa loquitur
case for negligence may satisfy plaintiff’s burden of production or
inflict burden of production on defendant)
Defining Reasonable or Ordinary
Care
- Brown v. Kendall
(Mass. 1850): Dogs/stick/eye case. Establishes “ordinary care”
as the correct standard with burden of proof on plaintif (rather than
“extraordinary care” with burden of proof on defendant if defendant’s
actions not “necessary”).
- Adams v. Bullock
(NY 1919): Cardozo opinion. Swinging wire case. Holds RR
not liable because of excessive burden of additional safety precautions
& unlikelihood of accident.
- US v. Carroll
Towing Co. (2d Cir. 1947): Question of liability for not having
bargee aboard to prevent boat sinking. Learned Hand
advances his liability if B < PL formula.
*note: problem with
using an economic formulation in the legal context is that economic
perspective looks at the entire prospective population of events (cost,
probability, and cost of safety precautions for all possible accidents),
while legal case looks at one unique event retrospectively (cost, probability,
cost of safety precautions for unique event)
Exceptions to the Reasonable
Person Standard
- Bethel vs. New
York City Transit Authority (NY 1998): abandons higher standard
of care for common carriers. BUT Andrews, below, holds
that common carriers have a “heightened duty of care”.
- Exceptions in which
defendant not held to “reasonable person” standard: physical handicap
or temporary illness/disability (“reasonable man under like disability”
standard), youth (“reasonable x-year-old” standard unless child
is engaging in adult activity like driving)
Jury-Judge Roles in Determining
Reasonableness
- Baltimore &
Ohio Railroad Co. v. Goodman (1927): Grade crossing case.
Holmes makes up a standard of reasonable conduct (reasonable person
would have gotten out of car and looked for train): “It is true…
that the question of due care very generally is left to the jury.
But we are dealing with a standard of conduct, and when the standard
is clear it should be laid down once & for all by the Courts.”
- Pokora v. Wabash
Railway Co. (1934): Another grade crossing case. Cardozo
says question “was for the jury whether reasonable caution forbade
his going forward in reliance on the sense of hearing, unaided by that
of sight.” Says that Goodman dictum on driver needing to get
out of car has caused confusion: “Standards of prudent conduct
are declared at times by courts, but they are taken over from the facts
of life.”
- Hand says there
can be no general rule on what constitutes negligent behavior as
a matter of law; negligence must be determined on facts of each
case.
- Andrews v. United
Airlines, Inc. (9th Cir. 1994): Falling luggage case.
Says negligence of airline should be jury question; plaintiff can overcome
summary judgment.
Proving Negligence
Custom:
- Generally, following
custom is not dispositive in defending against negligence, and departing
from custom is not dispositive in proving negligence. But custom
may be used as evidence. (e.g. Trimarco v. Klein (NY 1982): shower
glass case)
- BUT, in malpractice
cases custom does define standard of care.
Statute:
- Martin v. Herzog
(NY 1920): Traveling without lights. Violation of statute considered
per se negligence.
- Tedla v. Ellman
(NY 1939): Highway walkers. Statutory purpose & clarity matters:
Statutory violation is not negligence per
se unless statute specifically establishes civil liability for violation.
Sufficiency of evidence
as a matter of law:
- Negri v. Stop
and Shop, Inc. (NY 1985): Slip-and-fall/baby food case. P
made a prima facie case that D had constructive notice (circumstantial
evidence that D had sufficient time to notice broken jars of baby food
in aisle) & thus was error to dismiss complaint.
- Gordon v. American
Museum of Natural History (NY 1986): Slip-and-fall/museum steps
case. Case dismissed: As a matter of law, to establish constructive
notice “a defect must be visible and apparent and it must exist
for a sufficient length of time prior to the accident to permit D’s
employees to discover and remedy it.”
- business practice
rules/mode of operation rules: cases involving business practices
that create a reasonably foreseeable risk of harm may not require proof
of constructive notice. Puts burden on defendant to prove non-negligence
(e.g. Randall v. K-Mart Corp.)
Res ipsa loquitur:
- Byrne v. Boadle
(England 1863): Falling flour barrel case. First use of res ipsa
loquitur. Three elements: (1) defendant had control over thing
that caused accident, (2) event could not have happened absent negligence,
(3) no contributory negligence (less applicable today because contributory
negligence not an absolute defense).
- McDougald v.
Perry (Fla 1998): Falling tire case. Applies res ipsa loquitur.
- Ybarra v. Spangard
(CA 1944): Rare case in which res ipsa applied to multiple defendants
in hospital operating room context where plaintiff was unconscious.
- Res ipsa loquitur
may inflict a burden of production on the defendant or satisfy the plaintiff’s
burden of production. Tied up with the idea of who has better
access to information about the accident.
Medical Malpractice
- doctors have a different
standard of care: custom of majority or reputable minority in profession
- Sheeley v. Memorial
Hospital (RI 1998): Overturns old “similar locality” rule.
Physician is “under a duty to use the degree of care and skill that
is expected of a reasonably competent practitioner in the same class
to which he or she belongs, acting in the same or similar circumstances.”
- Connors v. University
Associates in Obstetrics & Gynecology, Inc. (2nd
Cir. 1993): Expert testimony may be used in a medical malpractice
res ipsa loquitur case in order to bridge the gap between jurors’
common experience and doctors’ knowledge.
- Matthies v. Mastromonaco
(NJ 1999): Informed consent
case. Doctor must explain alternatives and get informed consent
even if procedure is noninvasive; informed consent isn’t based on
battery principles but rather right of self-determination/autonomy.
- “Reasonable
patient” standard in informed consent cases straddles middle
ground between efficiency (doctor decides) and total autonomy (patient
decides based on everything specific patient wants to know)
Proximate Cause
Big Picture:
Proximate cause is an expression of the notion that we don’t want
to hold people infinitely responsible for the most attenuated or unpredictable
consequences of their actions. Liability should extend only to
the “reasonably foreseeable” consequences of one’s actions.
An exception to reasonable foreseeability is the eggshell plaintiff
rule: a tortfeasor must take his victim as he finds him, and is
responsible for unpredictably severe consequences of a tort due to a
victim’s pre-existing medical condition.
(Abel thinks proximate cause
is a redundant consideration because the concept of “reasonable foreseeability”
is already incorporated into the Hand formula. Maybe it’s simply
a way for judges to insert their moral instincts into the efficiency
analysis?)
Unexpected Harm to People:
Eggshell Plaintiff Rule
- Benn v. Thomas
(Iowa 1994): “The eggshell plaintiff rule rejects the limit of foreseeability
that courts ordinarily require in the determination of proximate cause.
Once the plaintiff establishes that the defendant caused some injury
to the plaintiff, the rule imposes liability for the full extent of
those injuries, not merely those that were foreseeable to the defendant.”
- some courts carry
the eggshell plaintiff rule as far as holding defendants liable when
injured plaintiff commits suicide
after an accident
- eggshell plaintiff
rule does not apply to emotional harm: defendants not liable for emotional
distress that would not be suffered by an “ordinarily sensitive person”??
- medical aggravation
cases: if defendant injures plaintiff and then plaintiff is further
injured in the ambulance on the way to the hospital, defendant is liable
for both the initial and further injury because his actions exposed
plaintiff to increased risk that the later further harm would
ensue
Unexpected Harm to Property
- In re Polemis
(England 1921): Dropped plank/burned ship case. Direct causality,
not foreseeability, is the standard to determine liability.
- Overseas Tankship
(U.K.) Ltd. v. Morts Dock & Engineering Co., Ltd. (The Wagon Mound)
(Privy Council, 1961): Spilled bunkering oil/wharf fire case.
Rejects Polemis standard of “direct result” in favor of “reasonable
foreseeability.” Finds that Ds couldn’t have reasonably
foreseen the fire.
*note:
foreseeability all depends on how broadly or narrowly you tell the story
Intervening Actors
- McLaughlin v.
Mine Safety Appliances Co. (NY 1962): Heating block case.
Fireman’s intervening recklessness supercedes manufacturer’s negligence.
(not representative of current thinking)
- Hines v. Garrett
(Va. 1912): Missed train stop/rape case. Intervening criminal
conduct did not insulate railroad from liability. (more representative
of current thinking than McLaughlin)
Unexpected Victim (see also:
Duty)
- Palsgraf v. Long
Island Railroad Co. (NY 1928): Train/fireworks package/falling scales
case. Cardozo formulates it as a duty question (& doesn’t
address proximate cause): guard’s conduct might have been negligent
towards the package holder, but it was not a wrong in relation to the
plaintiff. Dissent (Andrews): discusses proximate cause (arbitrary
line drawn because of rough sense of justice, considering ‘but for’
causality, directness of connection, foreseeability, remoteness in time
and space) & finds it is not lacking here as matter of law.
Recurring Fact Patterns
in Proximate Cause
- Rescue: “danger
invites rescue,” thus D’s negligent injury of P may make him liable
under proximate cause theory for any injuries to P’s rescuer (Wagner
v. International Railway Co. (NY 1921))
- Time: Does
a long time interval between wrongful act and injury necessarily mean
the risk is outside ‘the range of apprehension’? sometimes
extended statute of limitations on suits involving long-developing injuries
like asbestosis, cancers
- Distance:
doesn’t necessarily defeat proximate cause, e.g. Ferroggiaro v.
Bowline: liability found when damage to traffic light control box
causes accident 2 miles away
- Fire rule:
Ryan v. NY Central R. Co. (1866): setter of fire only liable for
first building destroyed because it is not a “necessary or usual”
result that the fire will spread and burn other buildings. Other
states don’t have this rule.
- Kinsman cases:
example of negligently moored boat crashing into another boat and negligently
lowered bridge, causing damage and creating dam causing flooding.
Dock operator liable for both the damage caused by ships crashing into
each other & floating downstream (definitely foreseeable result
of negligent lock inspection) and flooding damage caused by boats crashing
into the lowered bridge & making dam. But not held liable
for economic harm caused to merchants who had to find alternative route
due to downed bridge (too tenuous).
Duty: Avoiding Physical Harm
Big Picture: In early
cases, specific relationships appear to be the basis for imposing a
duty of care (innkeeper-guest, carrier-passenger, etc.). But there
has been a long-term movement towards recognizing general duty of due
care; today a general duty is usually assumed unless a defendant asserts
a lack of duty in a particular case. The question of duty arises
in the following types of cases:
- Affirmative duty
to act (in cases of contractual privity, joint venturers, duty to reasonably
aid if caused harm or risk or started to aid victim)
- Statute-created
duty
- Duty to protect
a third party (psychiatrists, doctors, negligent entrusters?)
- Landowners &
occupiers (duty to trespassers, licensees, invitees?)
- Intrafamily duties:
existence of parental duty/immunity is under debate; “reasonable parent”
standard
- Sovereign immunity:
distinction between discretionary and ministerial acts
Affirmative Duty to Act
- Autonomy-altruism
balance.
- Duty to act (to
assist/warn/protect) connected to D’s power over victim, victim’s
ability to protect himself:
- Social hosting doesn’t
automatically create a duty to guests (Harper v. Herman (Minn.
1993)- diving/boat case)
- If actor causes
non-negligent injury to another, has a duty to exercise due care
to prevent further injury (Maldonado v. Southern Pacific Transp.
Co. (AZ 1981)- run over train passenger/no assistance)
- If actor non-negligently
creates risk, has a duty to remove hazard or warn others (Simonsen
v. Thorin (Neb. 1931)- knocked over pole)
- If actor promises
to warn/advise, might create a duty to exercise due care in performing
the promise (Morgan v. County of Yuba (CA 1964)- sheriff promises
to notify of release, Mixon v. Dobbs Houses (GA 1979)- manager
promises to advise employee of wife’s labor call)
- “Companions engaged
in a common undertaking” may have duty to aid one another;
once an actor voluntarily aids a victim assumes duty to act reasonably
(Farwell v. Keaton (Michigan 1976)- leaves friend passed out
in driveway, Haben v. Anderson (IL 1992)- initiate passed out
in frat room)
- But no duty to
prevent risk of harm (Ronald M. v. White
(Cal. 1986)- passengers failed to restrain drunk/high driver)
- Duty not to interfere
in rescue efforts (Soldano v. O’Daniels
(Cal. 1983) & Barnes v. Dungan
(NY 1999))
- Duty of service/utility
providers to users of their services?
- absent contractual
privity, generally no duty to persons hurt because of companies’ failure
to supply adequate water, light, etc. (HR Moch Co. v. Renesselaer
Co. (NY 1928)- lack of water/fire/Cardozo’s misfeasance-nonfeasance
reasoning, Strauss v. Belle Realty Co. (NY 1985)- blackout/stairs/vague
unlimited liability reasoning, also Palka v. Edelman- garage/pedestrian/unlimited
liability reasoning)
- but there might
also be a duty to “known & identifiable group” in addition to
those in contractual privity (Palka v. Servicemaster Management Services
Corp. (NY 1994)- nurse/falling fan/hospital maintenance contractor)
- Duty created by
statute?
- Duty to private
individual only if statute creates
private right of action. Test for availability of private
right of action when statute is silent: (1) whether P is one of the
class for whose particular benefit the statute was enacted, (2) whether
recognition of private right of action would promote the legislative
purpose, (3) whether creation of such a right would be consistent with
the legislative scheme. (Uhr v. East Greenbush Central School
District (NY 1999)- scoliosis testing)
- Duty to rescue
in some states (Vermont)
- Duty to report
child abuse (every state)
- Duty to report
crime (California)
- Statutory limitations
on liability used to encourage emergency aid by doctors, good samaritans
- Duty to protect
a third party?
- Generally, duty
will only lie if the third party is identifiable; must be a special
relationship between defendant and either the harming party or the harmed
third party
- Duty of therapist
to warn his patient’s intended victim (Tarasoff v. Regents of the
Univ. of California (Calif. 1976)); but no duty to warn relatives
of potentially suicidal patient (Bellah v. Greenson (Calif. 1978))
- Maybe a duty of
physician to people with whom his patient has sexual contact or
to future children of patient, but cases split (Reisner- yes/partner
HIV, Pate- yes/children cancer, Hawkins- no/future husband
hepatitis, Albala- no/perforated uterus)
- Writers of letters
of recommendation have a duty to third persons not to misrepresent
facts if misrepresentation might pose substantial, foreseeable risk
of physical injury to the third persons (Randi W. v. Muroc Joint
Unified School District (Calif. 1997))
- Sellers/lessors/donors/lenders
may be held to have a duty to third persons under negligent entrustment
theory (Vince v. Wilson (VT 1989)- nephew car, Kitchen v.
K-Mart Corp. (Fla. 1997)- drunk gun buyer)
- But social hosts
don’t have a duty of care to third persons injured by intoxicated
guests (Reynolds v. Hicks (Washington 1998)- nephew wedding);
commercial vendors do have duty to third persons
Duty of Landowners &
Occupiers
- Traditionally, and
in many states today, different duty/standard of care owed to different
categories of people on land: trespassers
(no duty), licensees (duty to make safe dangers of which landowner
is aware), invitees (possessor has economic interest in visit
or property open to public, duty of reasonable care to protect against
both known & discoverable dangers). See, e.g., Carter v.
Kinney (Missouri 1995)- where Ds expected no material benefit from
P’s visit, P was a licensee, not an invitee, and the Ds had no duty
to protect him from unknown dangerous conditions.
- If danger is
open & obvious, may be no duty if victim can perceive risk.
- In child trespasser
cases, the duty of care is increased (“attractive nuisance”
doctrine).
- In recreational
use of land cases, the duty of care is decreased (willful misconduct
required for liability).
- In some places,
licensee-invitee distinction abolished now & duty of reasonable
care owed to all non-trespassers. E.g. Heins v. Webster County
(Nebraska 1996)- nurse daughter visit.
- landlord &
tenant: traditionally, landlords insulated from liability except
in a few situations (hidden danger of which landlord but not tenant
is aware, premises leased for public use, premises retained under landlord’s
control (like common stairways), or premises negligently repaired by
landlord). Distinction fading between bad repairs & no repairs.
Some courts have more dramatically increased landlords’ liability.
- liability for
harm outside the premises: e.g. bungee jumping by side of the highway
distracts passing motorists & causes an accident. Court denied
liability, based on “reasonable foreseeability of the injury”.
- criminal activity:
some courts have imposed duty of care on landlords towards tenants who
are assaulted in landlord’s building. In Posecai v. Wal-Mart
Stores, Inc. (LA 1999) store did not have duty to mugged plaintiff
because crime committed in store parking lot was not sufficiently foreseeable.
Balancing test: “the foreseeability of the crime risk on the defendant’s
property and the gravity of the risk determine the existence and extent
of the defendant’s duty.”
- No duty to comply
with demands of robber in hostage situation.
Intrafamily Duties
- traditionally, there
was spousal immunity from suit, but this has virtually disappeared today
- parental immunity/duty
in negligence cases varies state by state
- liability insurance
issue: if parent did not act tortiously, child can’t recover under
family homeowners or other liability insurance; many insurance policies
bar recovery in intra-family suits
- e.g. Arizona:
“reasonable parent” test (Broadbent v. Broadbent (Arizona
1995)- swimming pool/phone call)
- e.g. New York (Holodook/Zikely):
parents immune from liability if they fail to protect children from
danger (negligent supervision) but not if they bring/inflict
danger on the child. Note: artificial distinction. Court
considers too hot bath/child falls in and burns self to be a case of
negligent supervision (no duty)—but didn’t parent create the danger?
- religious beliefs
may be taken into consideration, e.g. Lundman v. McKown (MN 1995)
considers Christian Scientist beliefs, but says parent’s religious
beliefs must yield when it jeopardizes child’s life
Sovereign Immunity
- Until the end of
WWII, sovereign immunity protected federal, state, and municipal entities
from suit.
- Now, although sovereign
immunity has been substantially eroded, duty concept is used to protect
public officials/government acting in certain capacities.
- Police officers
have no duty to protect individual members of public because allowing
tort liability would create judicial interference with executive/legislative
resource allocation decisions (Riss v. City of New York (NY
1968)- police refuse to help stalked woman/lye).
- But if police actively
use a witness/informant, they do have a relationship
creating a duty to protect (Schuster v. City of New York); or
if they promise to help they create a duty to protect (Sorichetti
v. City of New York- note: does this create a perverse incentive
for the police to say nothing in response to request for help, in order
to avoid duty?)
- Municipal transportation:
absent special relationship to victim, no duty to protect from criminal
activity on transit authority property
- 911 calls:
if direct communication between victim and operator, then special relationship
creates a duty
- Schools:
have duty to protect children on school property, but duty generally
ends once children leave (unless release child into dangerous situation
of school’s own making, against school’s own policy: Pratt).
No duty re: quality of education.
- Government employee’s
ministerial acts (conduct requiring adherence to a governing rule,
with a compulsory result) may result in government liability (yes duty)
- Government discretionary
decisions, if discretion is reasonably exercised, may not result
in liability, as long as decision is carried out (no duty)—But if
government agency makes a decision and then fails to carry it out, may
create a duty (Friedman v. State of New York (NY 1986)— median
barrier case)
- Absent “special
relationship” ME didn’t have duty to advise murder suspect of erroneous
findings (Lauer v. City of New York (NY 2000))
Duty:
Emotional Harm
Big picture:
Courts are less concerned with protecting people from emotional harm
than they are with protecting people from physical harm. Generally,
defendants have a duty to protect from emotional harm only if:
- Defendant has caused
victim reasonable fear of physical injury to himself
- Victim has directly
witnessed physical harm to a family member caused by defendant
- “Special circumstances”:
category of cases involving death of family member (botched funerals,
mishandled corpses, false notice of death)
- Loss of consortium
cases (marriage relationship only)
- Some jurisdictions
create a more general tort for severe emotional distress not requiring
fear of physical injury or other special circumstances: an “ordinarily
sensitive person” test
Fear for Self
- Old approach: there
must be physical impact (Ward)
- One approach in
trauma cases: duty exists “where negligence causes fright from a
reasonable fear of immediate personal injury, which fright is adequately
demonstrated to have resulted in substantial bodily injury or sickness”
(Falzone v. Busch (NJ 1965)- car hits husband; P frightened for
self; Battala- failure to secure in ski lift chair; Quill-
plunging airplane)
- near-miss
car & airplane crash cases: recovery granted in near-miss car crashes
but denied in near-miss airplane crashes… a function of length of
time of fear? Problem of eggshell psyche? (Lawson)
- doomed victims
cases—family may recover for decedent’s distress before his death
in survival actions, depending on length of time victim was in distress
- Another approach
in fear of illness cases: symptomatic
requirement (Metro-North Commuter RR Co. v. Buckley (1997)- asbestos
exposure; worker cannot recover unless & until he manifests symptoms
of disease)
- Another approach
in fear of illness cases: real risk/
“serious fear” requirement (Potter- toxic waste exposure)
or “reasonable fear” requirement (Williamson- HIV
needle case, actual exposure not required) or, in window
situations, recovery for distress during time period between event that
creates concern and results showing that no injury has occurred
Fear for Others- Negligent
Infliction of Emotional Distress
- Recovery for NIED
permitted for family members at scene (or, in some states, not at scene)
of victim’s physical injury.
- New York: zone of
danger rule (Tobin, Bovsin)
- California: proximity
in time and space, close kinship, severe injury (Dillon, Thing)
- New Jersey: observation
of death or injury at scene of accident (but can arrive at scene after
accident), close kinship, severe injury (Portee)
- Hawaii/Massachusetts:
proximity and time & space less important; in Hawaii duty extends
to remoter family members
- If family member
is mistaken as to severity of injury, recovery may be allowed (Barnhill).
But if mistaken as to identity of victim, no recovery (Barnes,
Sell).
Negligent Interference
with Consortium
- Originally only
husbands could claim for loss of wives’ consortium; but eventually
extended to wives claiming for loss of husbands’ consortium.
- Two major questions
today:
- extension of consortium
claims to other relationships? parents may sometimes sue for loss of
companionship of children but not vice versa
- measure of damages?
how to value people’s relationships?
- Some courts have
extended loss of consortium to cover non-physical injuries to spouse.
Exceptional Circumstances
- Recovery may be
allowed for severe emotional distress absent physical threat in cases
involving negligence after a family member’s death (botched funeral,
mishandled corpses, false notice of death).
- Gammon v. Osteopathic
Hospital of Maine, Inc. (Maine 1987), case in which severed leg
negligently delivered instead of father’s personal effects, says defendant
has duty to prevent emotional harm that could be expected to befall
an “ordinarily sensitive person”
Limits of Duty: Traumatic
Events Where No Duty Found
- Baby kidnapped from
hospital, later returned; hospital has no duty to parents because fails
the zone of danger test (Johnson v. Jamaica Hospital (Ct. App.
NY 1984))
- Also: untimely circumcision
case, runaway Alzheimer’s patient case, incorrect label/overdose case—no
duty owed to relatives suing in any of these cases
- Most states deny
recovery for emotional distress caused by property damage, except
Hawaii (Rodrigues- flooded home)
Duty: Economic Harm
Big Picture:
Courts employ various types of foreseeability tests to determine
to whom defendants have a duty of due care in preventing purely economic
harm.
Abel’s criticism: The idea
of foreseeability of the victim is a red herring and antithetical to
the whole field of torts, in which the victim is nearly always an unforeseeable
stranger. The real question is which party can more efficiently protect
from economic harm. As long as rule is clear in advance, doesn’t
matter what the rule is, because parties can structure their contracts
accordingly.
Information Providers
- Duty of accountants
to persons with whom accountant not in privity? Three tests in
use:
- Modified foreseeability:
- Near-privity: Cardozo’s
bean weigher case; weigher has duty to buyer despite lack of contract
because seller specifically told weigher to deliver beans to buyer.
Also Cardozo’s Ultramares; no liability because identity of
harmed party not known to accountant.
- Restatement §552:
defendant must know or intend that plaintiff or group to which plaintiff
belongs would rely on his information (Nycal Corporation v. KPMG
Peat Marwick LLP (Mass. 1998)- negligent audit/major stock purchase)
- Duty of lawyers
to clients? Malpractice suits: Like with doctors, courts very
forgiving with lawyers as long as they can show that some in profession
follow the method/procedure in question.
- Duty of lawyers
to third parties? Sometimes attorneys owe duty to intended beneficiaries
of negligently prepared wills. (Biakanja, Lucas)
- Economic argument
for not imposing broad liability on information providers: “suppliers
of information cannot capture the benefit of their ‘product’ once
it has entered the stream of commerce”—thus liability should be
restricted when info is of a type that is valuable to many potential
users, the producer cannot capture in his prices the benefits flowing
to all users, and the imposition of liability to all persons harmed
would raise potential costs significantly enough to discourage info
production altogether.
Commercial Effects of Accidents
- When a defendant’s
negligent conduct interferes with plaintiff’s business resulting in
purely economic losses, unaccompanied by property damage or personal
injury, is it compensable in tort? Three exceptions to general
rule against recovery:
- “Special relationship”
cases (foreseeability of plaintiffs/class of plaintiffs: lawyers, auditors
(see above), surveyors cases)
- Private action for
economic losses caused by defendant’s damage to public resource (but
inconsistent outcomes in these cases)
- Lessees who have
economic losses from lost use of property (don’t bear loss of actual
property damage because aren’t owners). BUT not always: Robins
Dry Dock & Repair Co. v. Flint—time charterers of boat denied
recovery
- People Express
Airlines, Inc. v. Consolidated Rail Corp. (NJ 1995) rule: “A defendant
owes a duty of care to take reasonable measures to avoid the risk of
causing economic damages, aside from physical injury, to particular
plaintiffs or plaintiffs comprising an identifiable class with respect
to whom defendant knows or has reason to know are likely to suffer damages
from such conduct.” (particular foreseeability)
Defenses
Big Picture:
Considering victim behavior in the defenses of contributory or comparative
negligence serves the goal of moral judgment; doesn’t serve goals
of safety or cost-spreading.
Comparative negligence is now
the dominant system; plaintiffs’ fault does not necessarily eliminate
recovery completely, but damages reduced in proportion to their fault
(in modified regimes plaintiff fault >50% will bar recovery completely).
A plaintiff’s express assumption
of risk through exculpatory contract may constitute a complete defense
to negligence, but courts do not enforce all exculpatory contracts.
Doctrine of implied assumption of risk has been rejected by many states.
Contributory Negligence
- In past, CN was
a total bar to recovery (up to 1970s: in all states except Wisconsin
and admiralty law).
- Limits on defense
of contributory negligence:
- statutes
may bar a defense of CN if the purpose of the statute is to protect
people (say children exiting school buses) from their own negligence
- if D was reckless,
no CN defense possible
- if D failed to use
a “last clear chance” to avoid injury to P, no CN defense
possible (Davies v. Mann (1842))
- refusal to impute
CN, e.g. in automobile accidents, won’t impute renter-driver’s
negligence to rental agency in agency’s suit against other driver
- against rescuers,
no CN defense possible
- juries: sometimes
judges ameliorate all-or-nothing CN rule by sending close questions
involving CN to a jury—often jurors will ignore the all-or-nothing
instruction and deliver a reduced amount of damages for P
Comparative Negligence
- Only a few states
still use contributory negligence; most now use modified comparative
negligence schemes.
- Three types of comparative
negligence:
- Pure: defendants
& plaintiffs pay in direct proportion to their fault
- Modified1:
P can recover in proportion to fault only if P’s negligence is “not
as great as” D’s
- Modified2:
P can recover in proportion to fault only if P’s negligence is “no
greater than” D’s
- Model statute:
Uniform Comparative Fault Act- p. 441 (a pure version)
- What should triers
of fact compare in determining fault percentages?
- Most states with
pure versions have concluded that recklessness should be compared
with negligence; but states have been reluctant to follow logic of comparison
when plaintiff’s conduct is “socially offensive.”
- Under Uniform Act,
courts are not precluded from comparing intentional torts
and negligence if they find it appropriate.
- How to combine the
fault %s of multiple defendants?
- Uniform act does
not set off judgments against one another-- intended to maximize
insurance recoveries.
- Loss from one D’s
insolvency often spread among remaining Ds.
- In multiparty disputes
in which some Ds, but not all, settle, various approaches to determining
what remaining Ds owe if they are found negligent at trial.
- Imputation
of negligence from victim to P: In loss of consortium, wrongful death,
& bystander emotional distress cases, majority of states hold that
actions are “derivative”—defenses available against victim are
available against P. Parent-child cases: most courts refuse to
impute negligence of parents to children.
- Effects of comparative
negligence on:
- rescuers: now defendants
argue that rescuers no longer need special protection from liability
- drinking plaintiff:
now might find provider of alcohol or car comparatively negligent
- subsequent harm:
North Dakota’s adoption of comparative negligence and several liability
led courts to decide legislative intent dictated D1 not responsible
for medical aggravation by D2
- economic cases:
general view applies comparative negligence doctrine to economic cases
Express Assumption of Risk
- Exculpatory or
hold-harmless contracts: (1) Will the courts enforce a hold-harmless
contract, considering the type of activity involved? (2) If so,
is the contract in question sufficiently clear?
- Restatement
view of exculpatory agreements: they should be upheld if they are (1)
freely and fairly made, (2) between parties who are in an equal
bargaining position, (3) there is no social interest
with which it interferes.
- In determining whether
exculpatory contract violates “social interest” courts may consider
whether business is of a type thought suitable for public regulation,
provides service important to public, open to all or class of public,
disparity of bargaining power, standarized adhesion contract, purchaser
placed under control of seller & subject to risk of carelessness
by seller as a result of the contract. (Tunkl)
- When defendant is
in better position to control the danger, and danger isn’t
inherent in sport, defendant such as ski resort may be barred from
using exculpatory contract as a defense. (Dalury v. S-K-I,
Ltd. (Vt. 1995)- metal pole)
- Reckless or gross
negligence may not be disclaimed by contract.
- Ability of adults
to sign releases that bind members of their family is in doubt.
- Post-injury release
contracts: basically settlement contracts. After signing a
post-injury release contract, can a party later sue for injuries that
manifest themselves post-signing?
Implied Assumption of Risk
- Controversial area.
Disagreement over whether the term “implied assumption of risk”
plays any useful role in negligence litigation—does it serve a purpose
distinct from other aspects of the negligence framework?
- Four requirements
to estab. defense of assumption of risk: (1) P must have knowledge of
facts constituting a dangerous condition, (2) P must know the condition
is dangerous, (3) P must appreciate the nature and extent of danger,
(4) P must voluntarily expose himself to danger. (Davenport
v. Cotton Hope Plantation Horizontal Property Regime
(S.Carolina 1998)- stair lights)
- Primary implied
assumption of risk: P impliedly assumes risks inherent in a particular
activity—another way of saying D had no duty of care—not really
an affirmative defense, but part of initial negligence analysis.
- Litigation between
participants in amateur sports? Knight v. Jewett (Cal.
1992): Liability only for intentional or reckless conduct. Fear that
vigorous participation would be chilled by imposition of liability for
negligence. Different if one of the participants is drunk
(Freeman v. Hale).
- If a hazard of an
activity is “invited and foreseen,” then plaintiff assumed risk
by participating? (Murphy
v. Steeplechase Amusement Co. (Ct App. NY 1929)—Cardozo/ the Flopper)
- Swimming pool
cases: O’Sullivan v. Shaw- open and obvious danger of diving
into a swimming pool bars recovery against owner of pool, despite statutory
abolition of assumption of risk as a defense. Issue of duty—obviousness
of risk negates any duty.
- Secondary implied
assumption of risk: P knowingly encounters risk created by D’s
negligence—true defense because asserted only after P establishes
prima facie case of neglience against D.
- Some states (RI)
treat (secondary implied) assumption of risk and contributory negligence
as separate defenses, arguing that the exercise of free will in
encountering the risk makes the 2 concepts distinct.
- Other states
(WV, SC) adopt a comparative assumption of risk rule: P not barred
from recovery by assumption of risk doctrine unless his degree of fault
arising therefrom equals or exceeds the combined fault or negligence
of the other parties.
- Baseball spectator
injuries: If park provides adequate space behind screen, then stadium
owner owes no duty of care to people injured by foul balls outside the
screened area.
- NJ
was first state to reject the existence of assumption of risk—in 1963,
before comparative negligence became popular, argued that negligence
and contributory negligence concepts cover all bases without adding
assumption of risk into the equation.
- Employment context:
doctrine of assumed risk significant bar to employee tort suits in 19th
century, before emergence of workers’ compensation legislation.
Economic argument that courts were allowing freedom of contract—recognizing
worker’s desire to market his taste for risk (higher wages for higher
assumption of risk?). But this not historically believable given
subsequent workers’ movement.
- Firefighter’s
rule: waives the duty of care that third parties owe firefighters
and police officers; adopted in Kreski on public policy rationales
that duty of care owed by third party to firefighter is replaced by
third party’s tax contributions. This relationship doesn’t
exist between volunteer firefighter & third party; to apply rule
to volunteers would essentially resurrect the rejected doctrine of assumption
of risk. (Roberts v. Vaughn (Michigan 1998))
Strict Liability
Big Picture: Strict
liability may apply in the case of “ultrahazardous”/ “abnormally
dangerous” activity.
- Considerable confusion
and contradiction in 19th-early 20th century cases
carving out areas of strict liability:
- Rylands
I (1866): If D brings onto land “anything likely to do mischief”
and it escapes, he is prima facie answerable for all the damage which
is the natural consequence of its escape.
- Rylands II
(1868): D strictly liable for “non-natural” use of land.
- No strict liability
for exploding boiler, animal attacks on people (unless animal known
to be dangerous), shipping & highway cases. Yes strict liability
in dynamite/rock blasting cases, cattle trespass cases. Distinctions
very thin.
- Restatement
§§ 519 & 520: attempt to generalize when strict liability
exists. First restatement uses “ultrahazardous” language,
Second Restatement uses “abnormally dangerous” language:
- §
520 Abnormally Dangerous Activities
In determining whether an activity is abnormally dangerous, the
following factors are to be considered:
(a) existence of a high degree of risk of some harm to the person,
land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable
care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried
on; and
(f) extent to which its value to the community is outweighed by its
dangerous attributes.
- Modern application
of Restatement principles. Posner’s view on purpose of
strict liability for ultrahazardous activity: “By making the actor
strictly liable—by denying him in other words an excuse based on his
inability to avoid accidents by being more careful—we give him an
incentive, missing in a negligence regime, to experiment with methods
of preventing accidents that involve not greater exertions of care,
assumed to be futile, but instead relocating, changing, or reducing
(perhaps to the vanishing point) the activity giving rise to the accident.”
Argues chemical transport case is proper for negligence, not strict
liability, analysis. (Indiana Harbor Belt Railroad Co. v. American
Cyanamid Co. (7th Cir. 1990)
- Abel’s response:
Should courts be making the decisions about the kind of activities we
want to subsidize as a society? Should judges be deciding the
best place to locate railyards? Why should individual victims
have to subsidize the industries responsible for their injuries; if
we value the activity, why not have society as a whole bear the costs
of the accidents?
- Restatement
§ 524: contributory negligence not a defense to strict liability
except when p’s conduct involves “knowingly and unreasonably subjecting
himself to the risk of harm from the activity”
Products Liability
Big Picture:
(1) Manufacturers are strictly
liable for injuries caused by manufacturing defects in their
products.
(2) Design defects are
judged by either a consumer expectations standard (true strict liability)
or a reasonable alternative design standard (more negligence-like).
(3) Strict liability for
failure to warn is subject to a knowledge requirement (manufacturers
are not liable for failure to warn of dangers unknowable at the time
they sold the products).
Products Liability- General
- Products liability
doctrine evolves from privity doctrine (contract) to exceptions under
the negligence principle to strict liability system.
- MacPherson v.
Buick Motor Co. (NY 1916): Cardozo says duty comes from [tort] law
not contract; eliminates contractual privity requirement. “If
the nature of a thing is such that it is reasonably certain to place
life and limb in peril when negligently made, it is then a thing of
danger.” Liability can extend to all foreseeable users
- Warranty
development: implied warranty of merchantability and implied warranty
of fitness for particular purpose used to hold retailers liable-
codified in Uniform Sales Act § 15 and UCC §§ 2-314 and 2-315.
Courts used many devices to get around tradition that warranties ran
only between parties in contractual privity: wife as husband’s agent
in purchasing bread, etc.
- Escola v. Coca
Cola Bottling Co. of Fresno (CA 1944): Traynor concurrence argues
for strict liability rather than negligence standard for manufacturers.
Argues (1) increased safety, (2) cost spreading, (3) moral argument.
Adopted as holding in Greenman in 1963. Extended to include
strict liability for retailers (Vandermark) and manufacturers’
strict liability to bystanders (Elmore).
- Restatement Third:
Products Liability: sellers or distributors who sell or distribute
defective product subject to liability for harm to persons or property
caused by defect. Breaks down ways in which product might be defective:
manufacturing defect, design defect, instructions/warnings defect.
- Strict liability
extended to bailors, franchisors, some successor corporations, but not
to financers.
- No strict liability
for sales of used goods.
- No strict liability
for defective design in case of government contractors when specifications
approved by government and product met the specifications and supplier
warned govt about dangers known to supplier and not to govt.
- 4 Ways in Which
Strict Liability Increases Safety over Negligence:
- innovation
- no more jury false
negatives on negligence
- some people deterred
from bringing legitimate cases under negligence regime by fear of ability
to prove
- under strict liability
regime, price increases, so fewer people will buy dangerous products
Manufacturing Defects
- Most cases involve
latent defects
- Issues more likely
to be practical than theoretical—e.g. causality issues, destruction
of product means lack of evidence.
Design Defects
- Two tests for showing
design defect:
- Consumer expectations
test: Appropriate in cases in which consumers actually have expectations,
e.g. if a car explodes while idling at a stop light. Products
Restatement applies consumer expectations to bones-in-food cases.
- Reasonable alternative
design test: Appropriate in cases involving more technical issues,
when consumers don’t have expectations. Employed in Soule
(1994 car toe pan) and Camacho (1988 motorcycle leg guard) cases.
- Seven factors in
risk-benefit analysis: (1) utility of product, (2) likelihood that product
will cause injury and probable seriousness of injury, (3) availability
of substitute product, (4) mfr’s ability to make product safer without
diminishing its utility, (5) user’s ability to avoid danger by exercise
of care, (6) user’s anticipated awareness of dangers inherent in product,
(7) feasibility of mfr spreading loss.
- Problem with risk-utility
analysis is that different results in different cases/types of accidents,
send conflicting signals to mfrs.
Safety Instructions and
Warnings
- No duty to warn
of commonly known dangers.
- Two types of warnings:
- Proper use instructions/warnings:
e.g. don’t remove blade guard (Hood; warning sufficient)
- Irreducible danger
warnings: e.g. many pharmaceutical warnings.
- Criteria for determining
adequacy of warning (Pittman):
- warning must adequately
indicate the scope of the danger
- warning must reasonably
communicate the extent of seriousness of harm that could result from
misuse
- physical aspects
of warning must be adequate to alert a reasonably prudent person to
the danger
- simple directive
warning may be inadequate when it fails to indicate the consequences
- means to convey
warning must be adequate.
- Heeding presumption:
party responsible for inadequate warning must show that user would not
have heeded an adequate warning.
- Interplay of design
and warning: open & obvious rule, but warnings will not inevitably
defeat liability for a product’s defective design.
- Misuse of
products: not a complete defense if misuse/unintended use was foreseeable.
- Learned intermediary
doctrine: Learned intermediary doctrine generally shields prescription
drug manufacturers from liability if sufficient warning given to prescribing
doctors. Exceptions: mass immunizations, when FDA mandates direct
consumer warning (e.g. birth control), advertising to consumers.
- State of the
art requirement: Defendant does not have to warn of risks unknown
and undiscoverable at time product sold (hindsight doctrine of Bashada
abandoned). But burden of proof on defendant to show whether and
when the relevant technical information became available. Duty
to warn post-sale on basically a negligence standard.
Defenses to Strict Liability
- Consumer’s conduct
other than failure to discover or guard against a product defect is
subject to comparative responsibility. (General Motors
Corporation v. Sanchez (TX 1999)
- Texas (and other
states?) has different thresholds for comparative responsibility in
negligence (P may recover if less than 50 percent) and strict liability
(P may recover if less than 60 percent responsible).
- Maryland law: defense
of contributory negligence doesn’t apply to strict liability claims.
- Depending on state,
P’s release/express assumption of risk may serve as a
defense to strict liability claim.
Manufacturer’s Strict
Liability for Products Used in Workplace
- Employees can simultaneously
collect workmen’s compensation benefits from employer and sue manufacturer
of product that caused their injury. If their tort action against
the manufacturer is successful, they may have to return the duplicative
workmen’s comp benefits.
- If third party (employer)
modifies a safe product, causing employee’s injury, manufacturer not
strictly liable for design defect (Jones- printing press guard).
But manufacturer may be liable for failure to warn against danger of
foreseeable alteration of product (Liriano- meat grinder), although
bulk suppliers to large companies may have duty only to warn companies
and not the individual employees (Adams- TDI).
- Contracts between
employers and manufacturers containing disclaimers absolving manufacturer
of liability for product may be enforced against employees as well as
employers (Scarangella- backing-up school buses; Buettner-
ironer); but in other states, not enforced against employees (Ferragamo-
trolley car PVCs).
- Some states have
blended pure Tort system (employer and manufacturer pay employee in
proportion to their fault) and pure WC system (employer pays WC benefits,
manufacturer pays full tort damages, employer has subrogation rights
over manufacturer’s duplicative payments to employee) to create blended
system (employer pays up to maximum WC benefits, according to his fault,
manufacturer pays tort damages minus employer’s share of fault).
Hybrid Product-Service Transactions
- Sometimes strict
liability will apply to hybrid service-product transactions, other times
not—distinctions weak, based on centrality of product to the service.
E.g.:
- Hospital implants
defective prosthesis- hospital not strict liable (Royer)
- Dentist uses needle
that breaks- dentist not strict liable (Magrine)
- Salon applies defective
hair solution- salon is strictly liable (Newmark)
- Is there a difference
between product and non-product torts that makes strict liability logical
in products cases but not in others?