Author: Anonymous
School: UC Davis School of Law
Professor: Professor Johns, Spring 2003
Text: Prosser, Wade, Schwartz, Kelly

A. DUTY (Usually a Learned Hand analysis)

1. Failure to act

a. General Rule: No duty to act/aid another

b. Exceptions:

(1) Statutory Duty

(a) e.g. Child molester’s wife liable b/c statute imposed additional duties

(2) Special Relationship

(a) Usually present when the person injured is vulnerable (e.g. minors, prisoners, guests at inns, etc).

(b) Special relationship b/t Δ and victim:

i) Hegel v. Langsam: Parents of minor sue university for allowing their daughter to use drugs and associate w/ criminals. Held: No affirmative duty to regulate the private lives of their students. No special relationship b/t daughter was not required to be there.

ii) Ayres & Co. v. Hicks: Escalator case. Special relationship also present here (invitee/invitor).

(c) Special relationship b/t Δ and tortfeasor/3d party:

i.) JS and MS v. RTH: Parents of 2 girls who were sexually abused brought suit against the wife of the molester on the theory that she owed a duty of care to the girls and their parents. Held: Wife’s negligence did render her liable for girls’ injuries. Wife was found to have actual knowledge or special reason to know of spouse’s activities, and thus, had a duty of care to take rsbl steps to prevent the harm (Evid was based upon her concessions made @ pre-trial).

A. Also contributing here was statutory provisions (i.e. Megan’s law) that demonstrated public policy against sexual abuse.

ii.) Tarasoff v. UC Regents: Psychologists from UC were aware that one of their outpatients intended to kill Tarasoff but neglicted to warn her of it. Held: Therapist has a duty to warn potential victim if it is reasonable to believe that victim may be at risk of harm.

A. Duty to victim arose out of special relationship b/t therapist and patient.

B. CA: Statute imposed to keep this case confined to its facts

1. Must have serious threat of physical violence

2. Victim must be reasonably identifiable

3. Duty to warn and protect victim; therapist must make “reasonable efforts."

iii.) Riss v. NY: Despite repeated pleas to the police for protection, Riss was assaulted by a criminal who had openly threatened her for years.

A. Law enforcement does not have a special liability and responsibility to individuals. W/o a specific legislative mandate, govt is not liable for negligent failure of police to protect citizens from crimes. Want to control the “floodgates."

B. Police have discretion on how to allocate their resources…Judicial restraint.

iv.) DeLong v. Erie: π called 911 to report a burglar, and the operator mistakenly recorded the address and police dismissed the call as fake. Held: Police liable b/c breached a duty to provide reasonable protection; π relied (to her detriment) on operator’s assurance that police would come.

(3) Voluntary Undertaking: If rescue is affirmatively undertaken, then there is a C/L duty not to quit.

(a) Rationale: Will discourage others from rescue. Also based upon victim’s reliance on rescuer to complete the rescue.

(b) Exception: Good samaritan statutes protect incidental negligence of rescuers.

(c) DeLong v. Erie: If 911 assures victim that they will come, they have a duty to reasonably carry through. “We’re coming" induced the victim to rely on the police.

i.) Other case: No liability when 911 operator took info, but didn’t say that they were coming.

ii.) Other case: No liability when 3d party called 911 on behalf of victim of sexual assault b/c victim didn’t know that 911 was called and had no reason to rely.

(4) Δ or Δ’s instrumentality caused injury

(a) Ayres & Co v. Hicks: 6 year old’s fingers were caught in Δ’s escalator when shopping with his mom. Dept. store unreasonably delayed in stopping the escalator. Held: Dept store not liable for initial injury, but is liable for aggravation of injury. Δ is responsible for their instrumentality.

i.) This holding: Invitors liable to invitees for failing to control their instrumentality.


2. Landowner Liability: Owners and Occupiers of Land

a. Historic C/L: No liability for things occurring on your land

(1) Exceptions/ Factors for ct to extend liability.

(a) Active misconduct or passive misconduct?

(b) Conduct on or off the premises?

(c) Nature of the risk

(d) Natural v. artificial condition?

(e) Urban v. rural land?

(f) Latent v. patent risk?

b. If active risk creation, C/L more likely to impose liability (e.g. artificial, patent, urban conditions + active misconduct)

(1) e.g. Baseball: Created the risk by doing something artificial on land, then have a duty of care.

c. Taylor v. Olson: π injured when she crashed into a tree which had fallen onto a highway from O’s property. Held: O liable if knew/should have known of dangerous condition. O had the duty of reasonable inspection. Here: no evidence that Δ should have known of the tree’s condition, so Δ not liable. Jury could find rsbl std of care used.

d. Evolution from old rule: No liability if a natural cause.

e. Consider status of π to determine duty of Δ


  Minimal Duty Warn of known danger Rsbl care
Trespasser XX    
Licensee   XX  
Invitee     XX


A. Modern approach: Occupier of land owes a duty of care. Rejects/merges categories.

1. ***Rowland v. Christian: (CA Supreme Ct) π was licensee/social guest at Δ’s place. Δ knew of broken faucet, but failed to warn π on condition. Held: π’s status is indeterminate. Use a traditional negligence standard.

a. Factors of rsbl care (like Justice Andrew’s px cause hints):

(1) Foreseeability of harm to the π

(2) Closeness of connection b/t possessor’s conduct and injury

(3) Moral blame attached to possessor’s conduct

(4) Policy of preventing future harm

(5) Extent of burden to possessor

(6) Consequences to community of imposing a duty of care

(7) Availability/prevalence of insurance

b. Duty of care will be left to the jury to decide what’s reasonable under the circumstances. →RPP std

(1) Thus, likely that a duty of care to a trespasser and licensee will differ.

(2) CA: No liability to trespassers when on the property for serious wrongdoing purposes.

c. Some jx retain the categories approach

B. Landlord Liability

1. LL’s are NOT liable to tenants or their guests for defective conditions—Rest. & Majority


(1) Undisclosed dangerous condition known to the lessor

(2) Conditions dangerous to those outside the premises

(3) Premises leased for admission of the public

(4) Parts of land in lessor’s control which the lessee is allowed to use

(5) Lessor Ks to repair damages

(6) Negligence by lessor in making repairs

b. Borders v. Roseberry: π was a social guest on land where Δ was LL. B fell on front steps and was injured. Δ had promised to repair the faulty roof which caused the condition, but had not done any work yet. Held: ΔLL is liable b/c it falls w/in the exceptions.

2. CA: Uses the reasonably prudent person approach—Minority

a. Evolution of the law to std of rsbl care when cases don’t fit into categories

b. Paglesdorf v. Safeco Ins: P assisting a friend, a tenant in Δ’s building, in moving some furniture. P injured when he leaned on a balcony railing and it collapsed. Railing had dry rot and should have been replaced. Held: LL liable although he had no knowledge and did not fall w/in the exception.

(1) Ct. rules that LL must exercise ordinary care toward his tenants and their guests—rejects categorical approach.

(2) Based on policy: Leases no longer treated as conveyances (as in feudal England). Instead, LL has an obligation to keep the land in repair under the terms of the lease. Will determine liability by looking @ what’s reasonable under the circumstances.

c. Klein v. 1500 Mass. Ave Apts: π, a lessee of Δ, seriously injured when criminally assaulted/robbed in common hallway of bldg. No doorman present, although there had been in the past & other tenants recently assaulted in the common areas. Held: LL breached duty of rsbl care to protect π from 3d party criminal acts that are foreseeable.

(1) General Rule: No duty to guard against 3d party criminal conduct

(2) Rule not applicable here b/c

(a) LL-tenant relationship (i.e. special relationship)

(b) Incident occurred in common area. LL had authority and control to take precautions in these areas.

(c) LL had notice of risk

(3) Trend: Impose liability when LL on real notice.

(a) LL responsible to take rsbl precautions for foreseeable crimes

(b) CA: Requires a prior act on the premises


B. Breach

C. Actual Cause

D. PROXIMATE CAUSE (i.e. Limitations on Damages)

1. Historic C/L: Need privity of K to show recovery

a. Nonfeasance: Δ didn’t perform K

(1) K c/a

b. Misfeasance: K performed negligently

(2) Tort or K c/a

c. Winterbottom v. Wright: π injured by a defective mail coach that had been fixed by the Δ. Held: Δ not liable b/c no privity of K b/t the parties. Even though π was a foreseeable π, no recovery.

2. Now: Standard is foreseeability

a. MacPherson v. Buick: π sued Buick for injuries sustained when a defective wheel in his recently purchased car collapsed. Held: Buick is liable, even if there was no privity of K b/t π and Buick (b/c car was bought from a dealer). Std is now FORESEEABILITY. (i.e. a mfr of final product breaches a duty of care to a foreseeable user of its product if the product was likely to cause an injury if negligently made and placed into the mkt w/o reasonable inspection.)

(1) Rationale: Mfr knows its products will go into the stream of commerce, and ensures the safety of the product. If mfr not liable, difficult for π to recover.

b. Limits (when foreseeability is too broad):

(1) Public Utilities

(a) HR Moch v. Rensselaer Water Co: M’s building caught fire, and he sued the water company who had contracted w/ the city to provide water in the fire hydrants. Held: Water co not liable to consumer whose house burns when water service fails. K only protects city—not all citizens.

(i) Rationale: Although foreseeable πs are barred from recovering, wish to keep cost of public utilities down for everyone. Want people to get homeowners’ insurance policy rather than burdening the public utilities.

(2) Privity of K still required for most professional services

(a) Clagett v. Dacy: Auction where atty’s messed up the procedure so that their clients (the debtors) could keep their ppty. Bidders sue the attys. Held: Atty has no duty to 3d parties outside the atty-client relationship. Atty’s only duty is to their client.

i.) Rationale: Protect atty’s expectation of the atty-client relationship. No extension of liability when only economic harm done.

3. NO recovery for economic loss unaccompanied by physical damage to a proprietary interest.

a. State of LA Ex rel. Guste v. MV Testbank: 2 vessels collided in Miss. River which resulted in massive PCP spill where the outlet had to closed. Fishing suspended, and businesses suffered loss from halt in fishing, etc. Held: No recovery of economic losses caused by shipping accident w/o physical damage to their property—although perhaps injury was foreseeable.

(1) Underlying holding: insurance. Premiums too high if Δ expected to account for potential 3d party economic harm for Δ’s negligence. Want to avoid burdening industry by catastrophic loss. Want to encourage each business to obtain their own insurance—each pays their own premium and spread the risk.

(2) BLR for administrative convenience

(3) Does NOT apply to intentional torts


4. Negligent Infliction of Emotional Distress:

a. Historically, emotional injuries not recognized. But exceptions created

b. Now: Recovery allowed for negligent infliction of emotional distress, but with limits

(1) Impact Rule: In order to recover damages for neg infliction of emotional distress, an external IMPACT is required (i.e. does not need to be injurious, but need physical contact)—some jx

(a) Rationale: BLR to cut off liability

(b) Criticism: Allowed recovery in trivial injuries if impact, but ignores real & serious injuries if no impact. Against policy to avoid litigating trivial injuries.

(2) Physical Consequences Rule: (replaces impact rule) π can recover as long as there are provable physical consequences + reaction is normal, not hypersensitive—majority rule & Restatement

(a) Rationale: Better objective std

i.) Does NOT apply to the hyper-sensitive π—exception to the eggshell skull rule

(b) Daley v. LaCroix: Daleys suffered emotional distress after Δ’s car crashed into their house. Held: Mother and son CAN RECOVER for physical consequences of Δ’s actions. Emotional distress caused physical consequences (i.e. accident →emotional distress →physical consequences). Ct rejects impact rule.

(3) Zone of Danger Rule: π can recover if in the zone of danger. Bystanders outside the zone usually cannot recover.

(4) CA Rule: 2 types of cases


(a) Thing v. LaChusa: Mother sought emotional distress damages for seeing her son in an injured state, although she did not contemporaneously observe the accident. Held: No recovery. Mother did not observe the injury-producing event.

(b) Thing’s dicta solidified the guidelines for recovery in CA for negligent infliction of emotional distress (4-points):

1) PHYSICAL PROXIMITY- π must be near the scene

2) π must have a PERSONAL SENSORY OBSERVATION of the injury-producing event & be aware of the injury to victim.

3) Need a CLOSE FAMILY RELATIONSHIP with the injured party. (Ct. looks @ legally recognized relationships, not subjective closeness)

4) π must suffer serious emotional distress BEYOND A DISINTERESTED WITNESS and not an abnormal response to the circumstances.

(c) Rationale: Floodgates issue. Will also avoid requirement of impact.


(a) CA: Recovery allowed b/c real emotional distress suffered

(b) Limited to cases where spouse erroneously diagnosed as having an STD; Expanded to marital counseling cases where counselor has an affair w/ patient…may be expanded to cases where special relationship present.

(c) NOT universally adopted in other states

5. Prenatal Injuries

a. Prenatal Personal Injury: Baby born w/ disability caused by prenatal injury. Baby can recover for personal injury (general & specials)—NOT CONTROVERSIAL

(1) Includes a child suing its mother for a negligent accident while she is pregnant—child is actually after insurance $$ of mother’s carrier

b. Prenatal Wrongful Death: Parents’ right to recover damages for the death of an unborn child (CONTROVERSIAL)

(1) Split in jx—Depends on statute

(a) CA: No wrongful death c/a for an unborn child. Ct. will not expand the statutory definition of “life."

(2) Endresz v. Friedberg: π injured in auto accident and delivered stillborn twins 2 days later. Parents brought wrongful death suit for each child. Held: Wrongful death cannot be maintained for the death of an unborn child. Birth = BLR—arbitrary, but definite/workable. Unborn fetus doesn’t have a “separate existence" in the eyes of the law; person must be alive for wrongful death recovery.

(a) Policy: Parents can recover own damages that will be sufficient. Child’s damages too speculative, and do not wish to punish for negligence cases.

(b) Also based upon statute that said no decedents until actually born.

c. Wrongful birth: Parents’ right to recover damages for the birth of a child—i.e. child is disabled b/c of Δ’s negligence (CONTROVERSIAL)

(1) Damages = cost of raising the child

(2) Healthy Child—Split in jx: Some states allow no recovery; some allow recovery for birth and costs of raising a child minus benefits of having the child; some have other measures of damages

(a) e.g. families that already have 10 kids and simply can’t afford another. botched sterilization procedure, and they have another kid—want Δ to help pay.

(3) Disabled ChildSplit in jx: Some states allow extra expenses for raising child; some allow emotional damages; some allow both expenses and damages for emotional distress; some deny all recovery.

(a) Trend: Allow special damages (i.e. extraordinary expenses). Problem is that disabled children are simply expensive to care for.

(b) CA: Can recover the cost of rearing the child – benefit of the child. No generals awarded

d. Wrongful life: Child’s right to recover damages for being born (VERY CONTROVERSIAL)

(1) Procanik v. Cillo: Infant (π) alleges drs. negligently failed to diagnose his mother w/ German measles while pregnant. As a result, π born w/ congenial rubella syndrome. π alleging drs deprived parents of choice of terminating pregnancy. Held: No recovery for wrongful life general damages, but can recover special damages for extraordinary medical expenses.

(a) Rationale: Specials are measurable. Generals are unquantifiable + ct has problem w/ comparing an impaired life w/ no life at all.

(2) Healthy child: If child is healthy, no recovery in those jx.

(3) Disabled childSplit in jx: Some states allow additional expenses beyond normal person’s life; some allow pain and suffering; some allow both; some deny all recovery.

(a) CA: Special damages allowed, but can’t sue own parents

(b) Problem: when the child reaches majority, who will care for it?



1. Nominal Damages: $1

a. NOT for negligence, products liability c/a

2. Compensatory

a. Rationale: To compensate injured π

(1) Should not be a windfall to π

(2) Should not sending a message to Δ or saying Δ is morally reprehensible

b. General (non-economic)

(1) Past pain and suffering

(2) Future pain and suffering

(3) Disability and disfigurement

(4) MICRA: $250,000 cap on generals (CA)

c. Specific (economic)—quantified by expert testimony

(1) Future Medical (reimburse out-of-pocket costs)

(2) Future Wages (loss of earning capacity)

(3) Harm to property

(a) Market value of property…BUT difficult to ascertain b/c may not always be related to damage caused (e.g. wine crusher @ time of peak harvest)

(4) NB: π will receive all damages in a lump sum. Issue is how to account for time-value of $$–inflation v. interest.

d. Maximum Recovery Rule: Ct establishes a maximum amount that a jury may award; Ct establishes what is w/in realm of “reasonable"

(1) Anderson v. Sears Roebuck and Co: π, a child, severely burned when negligently manufactured heater set fire to house. Jury awarded $2,000,000 in compensatory damages. Held: Amount under the maximum recovery set by ct.

(2) Richardson v. Chapman: π rear-ended by Δ driving a trailer during employment. Re: future medical cost, π awarded $1.5 million more by jury than established by expert testimony. Held: Ct of Appeals mitigated damages by $500,000 to allow jury leeway, but stick close to trial testimony.

e. Collateral Source Rule: Δ cannot use evidence of expenses already paid by 3rd parties (e.g. insurance or gifts) to mitigate damages

(1) Rationale: Don’t want to reward the Δ for benefits π secured/entitled to (i.e. their insurance $$ since they’ve paid the premiums).

(a) Reality: π rarely recovers more than out-of-pocket expenses. π’s “windfall" usually goes to atty fees. Most insurance have clauses that prevent π from double recovery.

(b) π’s atty usually will negotiate medical costs w/ health care. Thus, atty is actually working for both hospital and client. Client is entitled to bill the “sticker price" in damages.

(2) Restatement: Δ should pay full amount of damages

(3) Montgomery Ward v. Anderson: π fell while shopping @ Montgomery Ward. Δ moved to present total amount of bill as proof of medical expenses b/c π had gotten discount from the hospital. Held: Δ cannot produce such evidence.

f. Avoidable Consequences Rule: π cannot recover for damages that are reasonably avoidable. Δ entitled to evidence/jury instructions that π could’ve alleviated cost by undergoing treatment.

(1) Zimmerman v. Ausland: π had knee injury from car accident. Jury awarded $7500 for permanent injury. Δ argued that π could’ve had surgery to mitigate the damages. Held: Δ failed to prove that reasonable minds would not differ that π should’ve had the surgery.

(a) Δ’s burden of proof to show that as matter of law, all reasonable person would have had the operation.

(2) Rationale: If π acted unreasonably, Δ shouldn’t pay. π would never totally not recover; this rule just mitigates damages.

(3) Criticism: Patient autonomy and Eggshell skull π: Δ should pay for all damages to π as they come.

g. Judicial Review

(1) General rule: Defer to the jury’s discretion

(a) Remittur: If trial judge thinks damages too excessive, can suggest new amount, and if π agrees, no trial

(b) Additur: If trial judge thinks damages too low, no new trial if Δ pays higher amount.


3. Punitive/Exemplary

a. Rationale: Punish and deter

b. Criticism: Burdens industry/economy; Too much windfall for π; Purpose served?

c. Considerations for recovery:

(1) More than mere negligence req’d; Must have intentional or reckless disregard for others

(a) Can have negligent conduct that is also intentional (e.g. a drunk driver who negligently hits a pedestrian)

(2) Must be rsbl relationship b/t harm suffered and damages awarded

(3) May consider evidence of Δ’s financial situation

(a) Want to avoid Pareto effect where Δ can figure out that it’s cheaper to settle lawsuits than fix problem—particularly if public is at risk of harm. (e.g. Ford/Pinto cases)

(4) Risk to be avoided v. burden to avoid risk

d. CA Punitives: π must prove (by clear and convincing evidence):

(1) Malice: Conduct intended to cause injury to π, OR

(2) Oppression: Dispicable conduct which subjects a person to crual and unjust hardship in conscious disregard of that person’s rights. Dispicable conduct is so vile, base, contemptible, wreched or loathsome that it would be looked down up and despised by ordinary decent people, OR

(3) Fraud: An intentional misrepresentation with intention of depriving personal or property rights.

(4) PLUS: Punitive damages must have a reasonable relationship to the actual relationship

(5) NOW: Appellate courts required to conduct a “thorough and independent scrutiny" of punitive damages—rather than deferring to the jury.

e. Gryc v. Dayton Hudson: Flammable pajamas severely injured 4-year-old. Jury awarded $1M in punitive damages. Held: Affirmed. Evidence shows Δ created substantial danger to public by marketing and selling highly flammable pajamas—Although legally sold (i.e. federal regulations), was not reasonably safe. Will not cause economic hardship to industry. Δ had been subject to lawsuits before, and had not changed material.

f. BMV v. Gore: π awarded $2M punitive damages for buying a car that had been repainted to cover up acid rain damage—mfr had not disclosed this info and sold car as new. π suffered $3400 in loss in value of car + $600 for new paint job. Held: Punitive damages so excessive that it violates Due Process. Also, cannot enact extra-territorial punishment in a state court.

(1) 3 factor test:

(a) Degree of reprehensibility (here: no bad faith, endangering lives of others)

(b) Relationship b/t harm and damages (here: 500 to 1)

(c) Penal Sanctions for comparable conduct (here: Alabama state law sanctions behavior $2000).

(2) Price v. Hartford: π hits another driver in drag race. Insurance co refuses to pay out punitive damages, although the policy covered them. Held: Ins. co must pay, and cannot void document for reasons of public policy (i.e. people getting what they’ve paid for).

(a) CA: Cannot insure intentional torts, and thus, cannot get insurance for punitive damages

4. Wrongful Death: Recovery for death of decedent’s statutorily defined heirs

a. Statutory: At C/L, no recovery for wrongful death.

(1) CA: Will always defer to the statute. Ct refuses to expand statute (e.g. stepchildren, domestic partners, etc.) if legislature doesn’t speak.

b. Begins @ point of death

c. Loss of monetary support (wages)

d. Loss of services

e. Loss of society (love, comfort, companionship)

(1) Selders v. Armentrout: Child killed in car accident due to Δ’s negligence. Δ asserts damages should be contributions children would have made minus reasonable costs of raising them. Held: Loss of society, comfort, and companionship of child should be taken into account when calculating damages.

f. Funeral expenses

g. Punitives—split in jx

(1) CA: No punitives for wrongful death.

5. Survival: Period b/t injury and death; Surviving heirs in shoes of deceased

a. Lost wages

b. Medical Expenses

c. Property Damage

d. Pain & Suffering

(1) No recovery if victim was unconscious

(2) CA: No recovery of p& s after death.

e. Punitives

f. Death does not have to result from tort:

(1) Car accident àInjuriesàHeart AttackàDeath; Heirs can still recover for car accident injuries

g. Murphy v. Martin Oil: Decedent in a fire on Δ’s premises. He lived 9 days before dying. Held: Death does not negate the valid c/a for survival. If tortious conduct results in death, survivors can recover for wrongful death and survival (for any damages suffered by the decedent during the interval b/t injury and death).

**Remember that wrongful death/survival is a REMEDY, NOT a c/a in itself. Assume that c/a already found.**

6. [Unborn children]: In the sense of how much (not liability v. no liability)


II. Imputed Negligence/Vicarious Liability

A. Respondeat Superior:

1. General Rule: Employers are liable for the torts of their employees committed within the scope of employment.

a. Rationale: Spread foreseeable risks as a cost of doing business; compensate innocent π; encourage safety

b. Factors to determine whether Ee is acting w/in scope of employment:

(1) Ee furthering the enterprise of Er

(2) Er exercising control over Ee

c. Fruit v. Schreiner: Guy @ mandatory conference where he was encouraged to mingle w/ other participants. He is driving back from a bar @ 2am, and hits a car. Held: Δ was acting w/in the scope of his employment. Δ’s co would benefit from Δ’s activities and they took the risk by telling their Ees to socialize.

(1) Ct may also be attempting to spread the risk through insurance—compensate the injured victim and make businesses buy insurance to cover their risk of doing business.

2. Exceptions:

a. Coming and Going Rule: Employer not liable for Ees coming and going from work

(1) Lundberg v. State: Husband killed while driving to worksite 80 miles away. Held: Er not liable when Ee is coming and going from work—even if in furtherance of work.

(a) Minority/dissent: If travel is job-related + creates a risk to others, maybe it should be covered.

b. Frolic and Detour Rule: Not liable if Ee on frolic and detour (i.e. not work-related).

c. Intentional torts: Er generally not liable for intentional torts of Ees

(1) Rationale: Generally unforeseeble

(2) Exceptions: If Er is put on notice; injury is FORESEEABLE (e.g. prior activities of the Ee)

(a) e.g. Bar owner knowingly hires an overly-aggressive bouncer with a history of violent behavior.

3. Distinguishing vicarious liability from primary liability

a. Respondeat Superior liability: Negligence of Ee imputed to Er

b. Primary Liability: Er engages in negligent conduct/does something wrong.

(1) e.g. If a bus co hires a person w/ bad driving record who hits car. The bus also has poorly maintained brakes. The bus co is primarily liable for negligently hiring a bad bus driver and for not maintaining brakes.

(2) e.g. π sexually assaulted in group home. Er primarily liable for negligently hiring that Ee and not sticking to regulations. Er vicariously liable for actions of Ee.

B. Independent Contractors

1. General Rule: Employers not liable for the torts of independent K

a. Murrel v. Goertz: G was an independent contractor who made monthly collection for Δ publisher. G was in an argument with π, and hit π. π injured and sought damages. Held: Publishing co (Δ) had no control or contact w/ G over the physical details of the work.

(1) Test: the amount of control Δ has over worker

(2) Criticism: Are corporations escaping liability by contracting out work? Er getting financial benefit while creating a risk to the public.

2. 24 exceptions to the rule (evolving area of law)

a. Maloney v. Rath: Δ’s car collides w/ car driven by π. Accident caused when Δ’s brakes failed. Δ’s mechanic had negligently fixed Δ’s brakes. Who is liable? Held: Independent contractor will be held liable if a dangerous instrumentality is involved in order for the π to recover (Rest.). However, here, also a statutory duty to keep brakes in good repair & independent contractor’s negligence is NOT a defense, so Δ is liable. BUT…Δ can then indemnify mechanic.

(1) This is NOT strict liability. π must still prove that someone was negligent.

C. Joint Enterprise

1. 4 elements:

a. Agreement: Express or implied among members of group

b. Common purpose carried out by group

c. Community of pecuniary interest in that purpose

d. Equal right of control of enterprise by all members

2. Popejoy v. Steinle: Mother and daughter driving to get a calf. On the way, they hit π. Mother is killed. π later experiences pain and attempts to collect from the now-dead husband’s estate on a theory that the husband and wife were furthering a joint enterprise by getting the calf. Held: Husband not liable b/c π failed to demonstrate that the husband had any pecuniary interest to the calf. The calf was to be raised by the daughter, and all profits would be given to her.

D. Bailments: Renting/lending someone use of something

1. Majority: No liability to lender unless negligently entrust another with his property. Not liable for the torts of the borrower.

a. Negligent entrustment = primary liability

(1) e.g. giving your keys to a drunk

b. Exception: Statutory liability

(1) Shuck v. Means: π injured when car was rented from Hertz to C, but driven by M. Held: Hertz is liable b/c Minn. Vehicle Code: “Owner is liable for accidents if car loaned to someone."

(a) Rationale: Encourage owners to obtain insurance, and also encourage over-insurance b/c car renters are aware that renters will violate the rental agreement.

III. Affirmative Defenses to Negligence


Negligence Action Elements

Affirmative Defenses


Comparative Negligence


Assumption of the Risk

Cause In Fact

Statute of Limitations

Proximate Cause



A. Comparative Negligence

1. Historically: Contributory negligence → If π was at fault AT ALL, no recovery.

a. Exception: “Last Clear Chance Rule"/Jackass Rule → If Δ had the last clear chance to avert danger and didn’t, then rule for the π. (But still all or nothing).

(1) Rationale: If Δ had the chance to avoid the accident after the opportunity was no longer available to π, then Δ should bear the loss.


2. Now: System of shared fault (almost all jx) adopted.

a. McIntyre v. Balentine: Car accident where both π and Δ were drinking—but Δ was also speeding. Held: Ct. adopts a modified system of comparative negligence in Tenn.—Majority rule. Thus, since jury found parties equally at fault, π cannot recover.

(1) If π is more than 49% at fault, then no recovery.

(2) BUT…in a case of multiple Δs…If π is 40% at fault and other Δs are at fault individually less than πs, then π can still recover.

(3) Modified systems have different wording in their statutes.

(4) Seatbelt defense: π has duty to mitigate consequences and use reasonable care.

b. CA: Pure form of comparative negligence: π can recover the % of damages that are Δ’s fault.

(1) BUT…if π is so far behind the Δ’s negligence, they jury unlikely to award π damages.


B. Assumption of the Risk

1. Express assumption of the risk—K doctrine

a. Δ must prove:

(1) K agreement expressly covers the risk, and if so,

(2) K not void as matter of p.p.

(a) No unequal bargaining power, especially if indispensable service offered.

(b) Cannot violate a safety statute

(c) Void if conduct is intentional, wanton, or gross negligence

(3) If both elements are proven, π can’t recover even if Δ was negligent

b. Winterstein v. Wilcom: π signed a release before participating in a drag race which said he would assume all risk of injury at Δ’s racetrack. During the race, π injured when his car hit an object negligently left on the track. Held: π cannot recover. K principles/freedom of K prevail over tort principles (i.e. compensating injured π).

(1) K principles preserved here (i.e. bargaining was free and open; transaction didn’t involve public interest). π was not forced to participate in the drag race.

(2) Johns’ criticism: When people sign releases, they think they’re assuming the risk of the activity, NOT the negligence of the Δ or other addl risks.

c. Cannot release liability for intentional torts—Most jx

2. Implied assumption of the risk

a. Δ must prove:

(1) π subjectively knew of the risk and its magnitude

(a) Inquiry: Did π know? (Not necessarily saying that π is above a std of care.)

(2) π knew of the risk and voluntarily met it

(3) If both elements proven, it is a complete defense for Δ.

b. Rush v. Commercial Realty Co: R was a tenant of Δ. R injured when she went to use the outhouse and fell through a trap door in the floor. Floor was in bad condition. Held: π can recover—no voluntary assumption/encounter of the risk. Going to the restroom ≠ voluntary activity.

(1) Risk not assumed where Δ has left π w/ no reasonable alternatives.

(2) Jury may find contributory negligence if π exposed self to danger that a reasonable person knew/should have known of.

(a) Subjective state of mind differs (contributory neg & assumptions of the risk)

(b) π must be proven negligent in contributory negligence.

c. Blackburn v. Dorta: Several cases consolidated and all involving the defense of assumption of the risk (Florida). Held: Florida court rejected primary implied assumption of the risk.

(1) Primary implied assumption of the risk—CA Rule

(a) Δ not negligent b/c he didn’t have a duty to π OR didn’t breach duty. Thus, no c/a. (And no defense needed)

(b) Is 100% bar to recovery.

(c) e.g. Knight v. Jewitt (CA S.Ct): π sued Δ for injuries suffered from a touch football game. Ct relies on doctrine of primary assumption of the risk, and no recovery b/c no duty, breach.

i. Johns’ argument: This could’ve been accomplished by a demurrer (i.e. no elements).

(d) Seatbelt defense: If a safety device is mandatory by statute, π can only recover for injuries suffered had the π worn his seatbelt.

(2) Secondary assumption of the risk—No longer in modern tort law

(a) Duty and breach established.

(b) Inquiry: Was π rsbl/ unrsbl in assuming the risk?

i. If π rsbl, bars recovery (under C/L). No longer a defense. (e.g. π rushes into fire to save child)

ii. If π unrsbl, ct does away w/ this defense b/c it merges w/ comparative negligence. (e.g. π rushes into fire to save hat)

(c) Is mostly a variant of comparative fault…If π acts rsbly, then compensate. If π acts unreasonable, then use comparative fault to see how much.

C. Statute of Limitations

1. Teeters v. Currey: After giving birth, C performed a bilateral tubal ligation to prevent future pregnancies. T discovered she was pregnant again, and delivered a premature child w/ several complications. T initiated suit against C for negligent and inadequate operating. C alleged that 1-yr SOL barred any action against him. Held: SOL starts running from the date the patient discovers, or should have reasonably expected to know about the injury. T can enter suit.

a. Discovery doctrine: SOL runs from the date the patient discovers or should have reasonably been expected to discover the injury.

(1) Rationale: Meritorious claims not prevented by the passage of time.

(2) Criticism: Evidence lost by too much passage of time.

(3) If injuries are initially minor, and major injuries occur later on—Client will be compensated only for those injuries that have manifested @ trial.

D. Failure to take Precautions

1. e.g. Seatbelts, helmets, child seats

2. If π is required to take advance safety requirements, can’t recover for further injuries.

3. Damages mitigated by amount save IF you had taken required safety precautions

E. Immunities: [When potential Δ is:] Govt., family, charity

1. Rationale: To prevent fraudulent claims and to protect scarce resources

F. NB: Respondeat superior is NOT an affirmative defense. It doesn’t impact the π’s claim


IV. Multiple Tortfeasors

A. Liability of Defendants

1. Joint Tortfeasors: 2+ people acting in concert breach the same duty and cause an indivisible injury to π.

a. Bierzynski v. Rogers: Race and B were participants in drag race on 2-lane highway. Race’s car hit Rogers (π) at 70 mph. Held: B (Δ) is also liable to π for damages—even if his car did not hit π’s.

(1) Both drivers were the px cause of the injury (i.e. wrongdoers acting in concert). They both engaged in behavior that created a risk, and risk materialized.

(2) Historically: Joint & several liability.

2. Concurrent Tortfeasors: 2+ people acting independently breach duty to π and their actions combine to produce an indivisible injury to π

3. Joint and Several Liability: Joint and concurrent tortfeasors are each liable for the entire amount of damage suffered by π

a. Rationale: Risk of poor Δ fell onto Δs themselves. Want to compensate totally innocent π.

b. Coney v. JLG: J killed while using a product made by JLG. JLG alleged J’s employer was partially negligent, and since Illinois adopted comparative negligence, joint & several liability had also been abolished. Held: Adopting comparative negligence does not require the abolition of joint and several liability.

(1) Want to deter negligent behavior: Δ found to be the px cause, so Δ took risk of harm

(2) Want to compensate π: Better to let πs recover their share over Δs overpaying.

(3) Damage calculation: $100k in total damages

(a) Δ1 is 70% at fault

(b) Δ2 is 20% at fault

(c) π is 10% at fault

(i) π can recover $90k from either Δ.

(ii) Δ bear the risk of insolvency of another Δ

(iii) Basically, just subtract the π’s fault.

c. Bartlett v. New Mexico Welding Supply: B was injured in accident w/ vehicle under control of NMW. A third, unidentified vehicle was also involved (i.e. hit and run). B sued NMW. Jury found NMW 30% liable. New Mexico is a pure comparative negligence state. B argued for Joint and Several Liability, NMW should pay all damages. Held: Joint and several liability does NOT apply in apure negligence jx.

(1) Joint and several liability under the assumption that fault/injury couldn’t be divided. But under comparative negligence, can divide fault.

(2) In this case, ct rejects rationale of shifting the risk of insolvency from π to other Δs.

(3) Criticism: π is not made whole if he cannot find the other Δs or if a Δ is insolvent.

4. CA Proposition 51: Joint and several liability for economic damages, but not for non-economic damages

a. Attempts to compromise b/t overburdening the Δ and need to compensate the π

b. e.g. $100k in economic damages & $100k in non-economic damages

(1) Δ1 is 70% at fault

(2) Δ2 is 20% at fault

(3) π is 10% at fault

(i) Δs are jointly and severally liable for $90k in economic damages

(ii) Δ1 is liable for $70k in non-economic damages

(iii) Δ2 is liable for $20k is non-economic damages\

c. Criticism: Will still prevent π from recovering all out-of-pocket expenses once atty’s fees are paid out.


B. Rights of Parties when Multiple Δs

1. Satisfaction: Payment in full of a judgment

a. Rule: π only gets ONE satisfaction

(1) Settlements are NOT satisfaction b/c there is no judgment

(2) Doesn’t matter if π doesn’t get the judgment amount he wants.

b. Bundt v. Embro: Two cars involved in the accident. Various passengers sue owners and operators. π had sued and recovered on the same accident against the State in a state court of claims. Held: π may not recover from these Δs b/c they’ve already received their satisfaction.

(1) Here: Concurrent tortfeasors—State for hiding the sign & other Δs for negligent driving.

(2) Rationale: Injury was indivisible, and πs compensated for it.

(a) State Δs can turn around and sue other Δs for contribution.

(3) π sued State in Ct of Claims b/c of govt immunity, thus, π couldn’t sue the other Δs in this ct.

(a) Atty’s predicament when multiple forums: tough to estimate the speed of trial, how fast judgment is claimed w/ SOL running

(b) Or could settle w/ one Δ (i.e. the less promising lawsuit) and get judgment w/ other Δs—but risky.

2. Release: Agreement b/t π and Δ that releases Δ from liability

3. Covenant Not to Sue: Agreement b/t π and Δ that π will not sue that Δ—but reserves the right to sue other Δ’s

a. CA & Rest.: Any settlement is construed as a covenant not to sue

b. Cox v. Pearl: C injured on property owned by Pearl and leased by Goodwill. C had covenanted w/ G to release it from liability beyond $2500. In the covenant, C expressly reserved the right to sue any other persons/parties who may be liable for damage. Held: π allowed to sue Pearl b/c π expressly reserved the right to sue others who may be liable—although form signed was entitled “Release." Ct interpreted the agreement as a covenant not to sue.

(1) Historic C/L rule: A release of one Δ releases all.

(a) This rule will be retained if it is specifically designated as a release

4. Settlements

a. General rule: Once you settle, you’re out of the case.

(1) Otherwise, there is no incentive to settle if subject to contribution/indemnity

(2) Exception: Settlement subject to scrutiny if “out of the ballpark"

b. HYPO: A → R → N

(1) A pays N $300 for a covenant not to sue.

(2) A and N, thus, control R’s rights.

(3) Policy of covenant not to sue:

(a) Reflects the intent of the parties

(b) R only pays the remaining share if a joint and several jx

(c) Encourages settlements (efficient, predictable)

(d) BUT…this rule rewards the 1st settling party

(4) Criticism: What is the initial settlement is unconscionable?

(a) Historically: Settlements not scrutinized

(i) Rationale: No incentive to settle if settlement is not good or binding

(b) CA: “Techbilt Rule": Settlements are final as long as they are “in the ballpark" of reasonable estimates at the time of the settlement.

(i) If settlement @ time seems reasonable, but later proves unreasonable…Δ would have to show fraudulent inducement to settle after SOL has run (very tough case + unlikely)

(5) N sues A in CA. N can’t re-litigate in another state against R. R can still litigate

c. Elbaor v. Smith: Smith sued doctors, including Elbaor, for medical malpractice. Other two doctors (Δs) entered into “Mary Carter" settlement agreement w/ Smith. Settling Δs guaranteed Smith @ least $425k if she did not recover from E. Jury found E 88% responsible, and E appealed from judgment against him for $1.8M. Smith then returns $425k to other settling doctors. Held: Mary Carter agreement (i.e. when Δ settles & agrees to cooperate w/ π in nonsettling pty’s suit) is void as against public policy

(1) π’s benefit in settling: π doesn’t know she’s going to win, but @ least will get $425k—although π is not made whole

(2) Criticism: Settling Δ has incentive to inflate the damages

(a) Risk of a “fictitious trial"

(b) Misleads jury by presentation to jury

(i) Dissent: Risky only if jury doesn’t know. But if jury knows, they are not unfairly prejudiced at trial.

(c) Unfair to nonsettling Δs

(3) CA allows MC agreements—majority jx

(a) Allowed as a freedom of K theory

(b) Procedural safeguards (i.e. tell jury of circumstances)


C. Rights of Joint Tortfeasors against each other:

1. Contribution: If one Δ has paid more than his pro rata share, he may seek partial reimbursement (i.e. contribution) from other Δ’s

a. Historical C/L rule to contribution: No rt to contribution at all

(1) Rationale: If you are a tortfeasor at all, you are in the wrong.

b. Contribution was a statutory remedy

(1) Thus, state to state variation

(2) Majority: Don’t need joint judgment to get contribution; Δ’s rts don’t depend on who π decides to sue

c. Most jx: No contribution for intentional tortfeasors

d. Caveat: If one tortfeasor settles, other tortfeasors have NO RIGHT to seek contribution unless they can show the settlement was in bad faith or “out of the ballpark."

e. Knell v. Feltman: A guest passenger in K’s car was injured b/c of K’s negligence and b/c of F’s negligence. F tried to seek contribution from K b/c of the damages caused both both negligent tortfeasors. Held: Contribution can be sought from a co-tortfeasor—even though no joint judgment was obtained by π herself.

(1) Rationale: No equitable reason to keep negligent tortfeasors from recovering. Who π decides to sue shouldn’t impact the rights of the Δ.

f. Yellow Cab v. Dreslin: Mrs. Dreslin injured from the negligence of her husband and Yellow Cab Co. She sued Yellow (but not her husband b/c of marital immunity). Yellow cross-claimed against Mr. D for contribution for any sums recovered by π against it. Held: No contribution b/c Mr. D has marital immunity (i.e. neither husband nor wife is liable for the torts perpetrated against the other.) Thus, no joint liability.


(2) If husband must pay, then immunity doesn’t really exist.

(3) Now: Family immunities in car accident cases largely abrogated now b/c usually want ins co to be able to collect insurance that the family bought. Wish to avoid danger of collusive lawsuits.

(a) But…can always send the case to the jury


2. Indemnity: 100% shifting of liability. When you have one Δ who has paid some or all of the π’s damages, that person can be indemnified by the other tortfeasor for everything that he paid.

a. Usually in vicarious liability (i.e. one Δ tortfeasor brings injury and another Δ liable via vicarious liability)

b. Slocum v. Donahue: Donahue sought indemnity and contribution from Ford, claiming that Ford was negligent and in breach of warranty of merchantability for defective floormat that caused his automobile to accelerate and kill Slocum’s 18-month-old son. Donohue found primarily liable for child’s death. Held: No indemnity or contribution.

(1) No indemnity b/c actor has to have done nothing wrong. Here: he was drunk. Thus, no derivative liability

(2) No contribution b/c Ford had already settled. People must be confident that when they settle, they’re not liable anymore.


3. Comparative Partial Indemnity: Allocation based on percentage of fault

a. This is NOT contribution b/c not pro rata


4. CA Prop 51: Can only collect if overpaid on economic damages (b/c retain joint & several liability for specials).

a. CA S. Ct: All 3 remedies exist @ same time. Δ gets to pick the remedy most beneficial to them.

5. Affect of Settlement: If one Δ settles, then that settling Δ can go after other Δ if they think they’ve overpaid. BUT…non-settling Δs can’t bring settling Δ into lawsuit.

a. Settlement only overturned if in bad faith or corrupt (or in CA: “out of the ballpark").

D. Apportionment of Damages

1. Bruckman v. Pena: Pena injured in an auto accident w/ Bruckman and then later had his injuries aggravated in another accident w/ another party. Held: Each Δ only pays for his portion of the injury caused. Jury will decide.

a. Rationale: Everyone should only pay for the damages caused

b. Practically: Not so easy, but try and establish by experts.


V. Strict Liability

A. Generally: Liability w/o fault; no due care required

1. Liability cannot be alleviated by due care

2. Relieves π of burden of proof—only need to prove causation

3. Arises in small category of cases where Δ engaged in valuable, but inherently dangerous activity.

a. Useful theory in environmental cases (e.g. ammonia escaping to neighbors)

B. Animals

C. Abnormally Dangerous Activities: Activities with a high degree of risk of serious harm

1. Blasting

2. Crop-Dusting

3. Toxic Chemicals

4. Nuclear reactors

5. Rylands v. Fletcher: Δ owned mill. π leased mines on adjoining land. Δ constructed reservoir and filled it. Reservoir broke and damaged π’s mines. Held: If land used for a dangerous, non-natural use → owner is strictly liable for any damage to another’s property resulting in non-natural use. Owners liable if bringing something onto land w/ potential for disaster—even if due care exercised.

a. Rationale: Encourage extra precautions for dangerous activity + compensate activity that injures another. Spread the risk of engaging in activity/industry.

b. English law retained natural v. non-natural distinction.

(1) US has rejected the distinction. Instead use “ultrahazardous" or “abnormally dangerous" for high risk activity that is subject to strict liability.

(a) “Escaping beast" analogy: If you engage in activity on own property, no problem. But if activity creates a risk to others and the risk materializes, then must pay damages.

(b) “Abnormally dangerous": Activity creates a serious risk of harm that can’t be eliminated no matter how much care taken. Takes into consideration the location of activity (e.g. storing explosives in middle of nowhere v. near footpath of elementary school)

D. Limitations

1. The accident must be w/in parameters of the risk that activity creates

a. Bridges v. The Kentucky Stone Co, Inc.: Explosion @ π’s home, killing π’s son. π sues Kentucky, the storage place of the dynamite. π had two arguments: (1) Negligent storage (i.e. storage place was the px cause of injury); (2) Storing dynamite is negligence per se. Held: No strict liability here. Storing dynamite ≠ blasting. Ct will decide on a case by case basis whether to extend strict liability.

E. Elements:

1. No duty/breach. Instead: Δ engaged in abnormally dangerous risk that can’t be eliminated despite due care

2. CIF

3. Px Cause

4. $$

(1) Liability must be for the risk the activity created. (Here: storing dynamite doesn’t create the risk that someone will steal it and 3 weeks later, blow up someone else’s house)

(2) Rationale: Δ should only be liable for the risk the activity created—NOT all consequences.

2. Liability cut off by unforeseeable intervening cause

a. Act of God

b. π’s contributory negligence


VI. Products Liability

A. Historical Development:

1. Winterbottom v. Wright: Need contractual privity for π to recover

2. MacPherson (Cardozo): Don’t need privity in product mfr’d negligently that causes harm.

3. Present political debate: Republicans want to federalize products liability b/c mfrs need uniform standards to compete globally. Democrats want the states to decide b/c different standards are good in tort law for innovation.

4. 2 Theories:

a. Express warranty: Baxter v. Ford Motor (1932): Ford promoted cars as having shatterproof glass. They sold cars through dealers to avoid privity. Warranty said: Our liability doesn’t extend to those not in privity w/ us. Ct. held: Warranties extend w/o privity. Express warranties run w/ product

b. Implied warranties: Henningson v. Bloomfield (1960): Steering wheel broke. No express warranty except to replace parts. Ct. held: Implied warranties run w/ the product as a matter of law. Product must be merchantable + fit for purchase.

5. CA: Greenman v. Yuba Power Products (Justice Traynor): G injured when a piece of wood flew out of power tool he was using and struck his forehead. G sued the mfr and retailer of the product. G introduced substantial evidence that injuries were caused by defective design and construction. Held: When mfr places product in the market and knows the product will be used w/o inspection for defects, the mfr will be strictly liable in tort for any injury caused by a defect in the product.

a. Traynor expands law: w/o warranty and w/o negligence, liability if product defective and causes injury.

b. NOT negligence standard

c. Focus on safety of product itself

d. Rationale: Make mfrs pay for the defects of their products

6. Rest. 2d. §402A—Most jx use this std (i.e. “unreasonably dangerous product") 3 Requirements:

a. Seller in the business

b. Products reaches consumers’ hands w/o material change

c. Causes physical injury and property loss

7. Rest. 3d (1998)—not adopted yet

a. Breaks down defects into mfr, design, and warning defects

b. Negligence standard for design and failure to warn defects

(1) Design defects: Foreseeable risks could have been reduced or avoided by adoption of a reasonable alternative design.

(2) Non-negligence standard for design defects

c. π’s burden of proof

B. Elements:

1. Proper Δ: Δ must be manufacturer, distributor, seller of the product

a. Manufacturer

b. Seller; wholesaler; retailer—Included b/c can put pressure on the chain of distribution of the product. Also will be able to get 100% indemnity for defective product. Is more accessible to the consumer.

(1) Peterson v. Lou Bachrodt Chevrolet: π’s children hit by car. Sue the used car dealorship b/c the car left the lot in defective condition. Held: Dealer not strictly liable b/c out of original chain of distribution. Used car dealer can’t put pressure on mfr or can’t indemnify loss.

(a) The warning when items sell items “as is" IS that the product is being sold as is.

c. Lessor or bailor in the business

(1) Generally, no liability unless a commercial provider (i.e. Hertz) who has control of product quality

d. LL generally liable for negligence or breach of warranty

e. Furnisher of product in conjunction with service

(1) Medical Services (not in the chain b/c service is main purpose/ goal)

(a) Hector v. Cedars Sinai Medical Center: π had defective pacemaker. Sues hospital on breach of implied warranty, strict product liability, negligence. Held: Hospital not selling goods. Main purpose is to treat the patient.

i) Ct also concerned w/ driving up health care costs by holding the hospital to a lower standard of proof (i.e. strict products liability over negligence) for its products used w/ treatment

ii) Dr. and hospital still liable for malpractice. Question is whether or not to hold them liable as a retailer.

(2) Other: cosmetologist; mechanic

f. Endorsers are generally not liable absent negligence

2. Defect: Product must have been defective when it left the Δ’s hands

a. Definition:

(1) Restatement: the product must be in a “defective condition" which is “unreasonably dangerous."

(2) CA: the defect must make the product unsafe for its intended use

(a) CA seeking to differentiate b/t negligence and products liability

b. Kinds of defects

(1) Manufacturing: Product negligently manufactured; Departure from its intended design—must prove product flawed or defective b/c it was not constructed properly

(a) Easy conceptually, but practically difficult to prove b/c product usually destroyed. Also must reconstruct the exact product + trace it back to the mfr.

(b) Test is reasonable quality control (i.e. not falling below the standard of care)

(c) π needs to prove causation (i.e. that the product caused injury)

(d) e.g. Flawed wine bottle that explodes; oil left on hip replacement and can’t bond to bone; white stuff in blood

i) Contaminants are always mfr defects (e.g. toe in the tobacco)

(2) Design: Defect in design makes product unreasonably defective

(a) Evidence is established by obtaining the product and finding experts

i) Human factors engineer: Know humans will be operating this machine + try to account for lapses in human judgment/attention)

ii) Tough to win these cases b/c of the consequences (i.e. declaring an entire line of products defective)

iii) Settlements, however, are confidential. Case is settled by Δ paying π w/o admitting liability. Thus, product can remain on the market w/o consumers knowing of its danger.

(b) Prentis v. Yale Mfg Co: Yale mfr’d forklift (standing or walking type). π fell when machine experienced a surge of energy. π alleged product defect b/c failed to properly account for human factor. Held: Design defect held to a negligence standard.

(c) O’Brien v. Muskin: O’Brien dove into a pool from a rooftop and was injured. Contended that the vinyl on the bottom of the pool was inherently dangerous, and thus, a design defect. Different approaches:

i) (Negligence/cost-benefit): Even if you know/should know π will be injured, would you still make the product the same way b/c the utility outweighs the risk?

ii) (CA): Knowing the danger now, would you still have mfr’d the pool in the same way?


(d) Range of views

i) (CA) Risk/benefit analysis imputing knowledge of risk: Impute knowledge backward—“Now we know of the risk. If you would have known of the risk @ the time of design, would you have done anything differently? Do the benefits outweigh the risks?"

  • Essentially saying that it doesn’t matter whether you knew at the time.
  • If the mfr knew of the danger, would they still market the product? Answer will dictate liability.
  • Re: state of the art: If don’t have knowledge @ time, don’t apply. But were there other things you could’ve done? If no, then no defect IF the benefits outweigh the risks.

BUT…if state of the art allowed the product to be safer and Δ didn’t use that knowledge, it is a defect if it is unreasonable not to know.

ii) (Rest. 3d) Negligence standard: Established by way of cost-benefit (i.e. “Did you know at the time? Did you act reasonably?")

  • Δ knew/should have known of the risks and failed to take adequate precautions
  • Balance risks v. social utility to determine whether product should be on the market (knowing that manufacturer can’t make a perfect product)
  • Was the risk unreasonable?

iii) Consumer Expectation Test (Alternate or supplement to design defect)

  • Ask whether the product is more dangerous than normal consumer expects
  • This is one of CA’s tests

iv) Debate: B/c of state of scientific knowledge @ time, can’t reasonably say that the company should have known of the danger. So…some say that it’s unfair to hole mfrs to a standard or care nobody knows about v. spreading the risk to mfrs (i.e. have them buy insurance + pay for injuries caused).

v) BOTTOM LINE: Ask whether the social utility is enough to justify the risks.

(3) Warning: If regular use of product can be dangerous, there is a duty to warn. Failure to warn leads to liability.

(a) Majority: Negligence Standard

(b) CA: “Adequate warning of known or knowable risks in light of generally recognized and prevailing best scientific and medical knowledge" (i.e. what a reasonable person would do).

(c) Anderson v. Owens-Corning: Δ mfr’d asbestos. π exposed to asbestos, and claims Δ liable for failure to warn. Here: CA std used (only CA follows this case). IN WARNING CASES, DON’T IMPUTE KNOWLEDGE BACK. STD IS REASONABLE KNOWLEDGE @ TIME.

i) Neg std: Was it unreasonable in the way Δ warned?

ii) CA: Was the warning adequate?

(d) Limits:

i) Obvious danger (e.g. passengers riding in truck bed w/ no seatbelts)

ii) Learned intermediary responsible for delivering the warning (e.g. drs, pharmacists, Ers giving safety warnings to those who will use the machine). Mfr may not be liable if consumer not warned b/c it does not control the delivery of the warning.

– Fight is always over how best to get info to the person who will use the product

-Includes post-sale duty to warn about the extent of danger (i.e. recalls)

(4) Unavoidably unsafe products (comment k)—e.g. prescription drugs: Although the product is risky, we still want the products.

(a) Negligence Standard

3. CIF

4. Px Cause

5. Damages

a. Personal injury.

b. Physical injury to other property (i.e. must destroy more than the product). No recovery for pure economic loss.

C. Defenses

1. Comparative Responsibility

a. Jury will figure it out—even though it is like apples & oranges

b. Δ won’t pay for % of fault he’s not responsible for.

c. Daly v. GM Corp: π killed b/c of defective door latch. But he didn’t wear his seatbelt or lock door, and was drunk. Held: Comparative fault principles apply to strict products liability—even though products liability is generally liability w/o fault.

d. Ford Motor v. Matthews: π died when standing behind the tractor when he started it. Tractor had a safety switch, but it failed and allowed the tractor to start while in gear. Δ argued that π misused product, so although it was defective, π’s recovery should be barred. Held: NO b/c the damage caused was the foreseeable risk that the safety switch was designed to protect. The switch was supposed to prevent these kinds of accidents.


2. Preemption

a. General rule: Unless statutory language is clear and unambiguous, assume tort liability is still in place. Presume that Cong is setting a floor, not a ceiling. State can regulate to supplement the statute as long as it doesn’t interfere w/the states.

(1) Medtronic v. Lohr: Lohr suffers injuries b/c of defective pacemaker. State follows Rest. § 402A. Δ argued that federal statute preempted the state C/L tort action. Held: Intent of Cong not to bar C/L tort claims, but to give addl protection to consumers.

(a) → remember principles of federalism!!

(b) Also in this case, there was a grandfather clause: Anything on the market now is ok b/c society can’t afford to take them off the market. Thus, this pacemaker was not subject to the approval process.

(2) Mfrs also raise defense that they complied w/ govt regulation. This is admissible evidence in products liability, but not conclusive.

(a) NOT complying with govt standards is evidence of negligence per se.

(b) But…Govt contractor defense: If Δs acting under govt K and they comply, they are immune from liability.

b. e.g. Tobacco warning – national standard w/ no variation allowed.

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