I. Proximate Cause

v Proximate Cause

o Negligence

§ Duty

§ Breach of Duty

§ Actual Cause

§ Proximate Cause

§ Damages

o Not all actual causes are proximate causes

o Proximate cause is about consideration of fairness and justice. Juries are making the decision whether it is fair the hold the ∆ liable for Π’s injuries.

o Proximate cause checklist:

§ Substantial factor

§ Reasonable foreseeability of…

§ Direct connection between breach of duty and the harm done—as opposed to intervening or superseding causes

§ Natural and continuous sequence

§ Remoteness (in time an place)

§ Risk- or loss-spreading function of tort law (availability of insurance)

§ Common Sense

o Foreseeability

§ Reasonable foreseeability= liability (Weirum)

  • Exceptions to the rule, no foreseeability needed with regard to extent of injuries or damages (remember Vosburg– Eggshell Π)

o But does not apply to property damages

o Ford v. Trident Fisheries Co.

§ Π’s husband killed when thrown overboard. Π claims that the ship owner was negligent in not having proper lifeboat equipment.

§ Court ruled that even though ∆ was negligent, but the husband disappeared in water right away and the life boat couldn’t have saved him even if had proper equipment.

o Lyons v. Midnight Sun Transportation Services, Inc.

§ Π’s wife killed when she suddenly backed up her car from the driveway to the street and was struck by ∆’s truck

§ Jury found that ∆ was speeding at the time but his negligence was not the legal (proximate) cause of the death.

  • Proximate Cause Question: “But for D’s breach of duty in driving 53 in a 35 mph zone, would the accident have occurred."

§ Court upheld. Even if ∆ was going within the speed limit, the accident would have occurred anyways.

o Loss of Chance Doctrine

§ Doctrine comes up often in medical malpractice cases

§ “Loss of chance doctrine reflects an inescapable tension between traditional demands of causation on the one hand and, on the other, a concern for plaintiffs who, by the very nature of the claim, will never have available to them anything but probabilities."

§ Hamlin v. Bashline

  • Doctor failed to give EKG and expert testified that patient would have had 75% chance of surviving if doctor had acted properly.
  • “Whereas typically a plaintiff alleges that a defendant’s act or omission set in motion a force which resulted in harm, the theory of the present case is that the defendant’s act or omission failed in a duty to protect against harm from another source."
  • To resolve such issued, you have to ask whether the harm would have resulted from the independent source even if ∆ had performed his service in a non-negligent manner.

§ Restatement 323

  • One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking if:

o His failure to exercise such reasonable care increases the risk of such harm, or

o The harm is suffered because of the other’s reliance upon the undertaking.

§ Weymers v. Khera

  • Π sick and admitted to ∆’s hospital and condition gets worse and Π has to go through kidney transplant operation
  • Expert witness testified Π would have had 30 to 40 percent chances of retaining the functions of her kidneys if propert care given by ∆
  • Supreme court ruled that loss of chance doctrine cannot be applied to cases where death does not result.
  • Loss of chance is used as a substitute to causation and extending it to this case will lower the importance of causation in negligence actions

§ 3 areas under loss of chance doctrine

  • Pure lost chance[1]

o P can recover even though it was more likely than tnot that he would have suffered the injury if the D had not been negligent. But P must show only that D’s care diminished his chance of survival or injury avoidance, no matter how slight that diminution.

  • Proportional Approach

o Like pure lost chance but P’s recovery is limited to percent of chance lost multiplied by total amount of damages (e.g. if 30% chance physical could have saved patient by rendering proper care, decedent’s family gets 30% of the value of decedent’s life.

  • Substantial probability Approach

o P must show substantial possibility that D’s negligence caused his injury or death. Substantial in most jurisdictions does not mean >50%

o Foreseeability with regard to duty vs. ……….proximate cause

§ Duty element focuses on whether D’s conduct foreseeably created a broader zone of risk that poses a general threat of harm to others

§ Foreseeability with regard to proximate cause is concerned with whether and to what extent the D’s conduct foreseeably and substantially caused the specific injury that actually occurred.

o Palsgraf v. Long Island R.R.

§ D’s guards pushed a man in the train who was about to fall. The man’s package fell and unbeknownst to anyone, it contained fireworks that exploded.

§ P who was standing on the other side of the station was hit with scales loosened with the sound of the explosion.

§ Justice Cardozo’s majority opinion stated that guards were negligent towards the man and not the plaintiff. D’s conduct did not involve any unreasonable risk of harm towards the P.

§ Justice Andrew’s dissent: D had duty of due care towards the whole society and such duty was breached when P was injured. This argument is similar to the “direct causation" view.

o Marshall v. Nugent

§ D negligently caused an accident but no one injured. P went to warn others but hit by another driver.

§ D was held to be the proximate cause of P’s injures because the other driver was not superseding. The waters had not calmed and P was still in the zone of danger when injuries occurred.

§ The purpose of proximate cause is “to confine the liability of a negligent actor to those harmful consequences which result from the operation of the risk, or of a risk, the foreseeabiity of which rendered the D’s conduct negligent."

§ Class example: If P was attacked by a bear, then D wasn’t going to be held liable because not foreseeable. Bear was going to be the superseding intervening actor.

o When a tough issue of proximate cause arises, the court should leave it up to the jury to decide.

o Texas & Pacific Ry v. McCleery

§ P injured when his truck hit by a train. Train at some point had speeded.

§ P argued that speeding was actual and proximate cause of accident because if not speeded then wouldn’t have been there at that time.

§ Court ruled actual cause but not proximate cause.

o Watson v. Kentucky & Indiana Bridge & Ry.

§ Due to D’s negligence, its train derailed and gasoline leaked to the streets. On person threw match in the gasoline and fire erupted and P was injured.

§ Court said if the actor’s conduct was negligent but innocent, then foreseeable and proximate cause. But if criminal conduct, then not foreseeable and no proximate cause.

§ “If the intervening acts or conditions were of a nature reasonably to have been anticipated, though they may have been acts of the plaintiff himself, they do not cut off liability for D1. But if the intervening agency is so unexpected or extraordinary as that he could not or ought not to have anticipated it, he will not be liable and certainly he is not bound to anticipate the criminal acts of others by which damage is inflicted."

o Subsequent Injuries

§ Subsequent accidental injuries are generally considered foreseeable

§ E.g. D liable for further injuries suffered by P when ambulance taking P to hospital for treatment, following collision with D, was itself in a collision.

§ Health care provides usually held liable if the patients in their care commit suicide.

o Gorris v. Scott

§ D transporting P’s sheep and washed overboard. D wasn’t complying with a statute that was designed to protect animals from disease.

§ Statute was not designed to protect against the type of damage that occurred.

§ Professor doesn’t know why this case is covered under the causation category.

o Morales v. City of New York

§ Gas station sold gasoline in unapproved container and gasoline used to commit arson.

§ Π claimed violation of statute, but statute designed to secure safety of gasoline in container.

§ Actual cause- Yes, Proximate Cause= no. No logical link.

o § 431 What Constitutes legal cause:

§ The actor’s negligent conduct is a legal cause of harm to another if

  • His conduct is a substantial factor in bringing about the harm
  • There is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.

o § 433 Considerations important in determining substantial factor question

§ number of other factors that contribute in producing the harm and extent of effect which they have in producing it

§ whether actor’s conduct has created a force in active and continuous operation up to the time of the harm or created a situation harmless unless acted upon by other forces (natural and continuous sequence)

§ Lapse of time (remoteness in time)

o Kinsman Case

§ Barge broke lose and resulted in flooding.

§ Court said just because low foreseeability of great damage doesn’t relieve the ∆ from duty

§ Kinsman Formula:- Foreseeability + Directness + same general sort = Proximate Cause

o So far seen:

§ Foreseeing an individual P’s special vulnerability (Vosburg)

§ Foreseeing that different P’s are vulnerable (Palsgraf)

§ Foreseeing the type of harm done (Kinsman)

o Cases that move away from foreseeability to direct cause and back to foreseeability and then again back to direct cause (kind of)

§ Polemis Case

  • Unloading ship and D’s servant drops plant and that leads to fire.
  • D breached a duty and some harm to ship was foreseen.
  • “Once the act is negligent the fact that its exact operation was not foreseen is immaterial."

§ Wagon Mound (#1)

  • Moved away form Polemis
  • “For it does not seem consonant with current ideas of justice that, for an act of negligence, however slight or venial, which results in some trivial foreseeable damage, the actor should be liable for all consequences, however unforeseeable and however grave, so long as they can be said to be direct."

§ Wagon Mound (#2)

  • Moving back towards direct cause
  • Court said that findings show that some risk of fire would have been present to the mind of a reasonable man in the shoes of the ship’s chief engineer
  • Real risk is one that would occur to the mind of a reasonable man that he would not brush aside as far fetched.


II. Special Instances of Nonliability for Foreseeable Consequences

v Negligent Infliction of Emotional Distress (NIED)

o Primary victims vs. secondary victims

§ Example: Child hit by car while mother witnessing across the street.

  • Primary victim: The child
  • Secondary Victim: The mother

o NIED: When a secondary victim can recover for ∆’s negligence

o The Impact Rule of Mitchell v. Rochester

§ There could be no recovery for fright alone without any impact.

o Waube v. Warrington

§ Facts: Mother looking out the window and witnesses her child getting hit by a negligent driver.

§ Holding: Can’t recover because not in the zone of danger. Ct. abolishes the impact rule and follows the modern rule: modern tendency is to give rise to an action grounded in negligent conduct, emotional distress or shock must be occasioned by fear of personal injury to person sustaining shock, and not fear of injury to property or the person of another.

o Dillion v. Legg

§ Facts: Daughter hit by negligent driver while other daughter also on street but mother still on the sidewalk. Trial ct. said other daughter can recover for NIED but mother can’t because not in the zone of danger. Supreme Court of California reversed.

§ Holding: Moved back to the reasonable foreseeability rule.

§ 3 Foreseeability based guidelines:

  • whether P located near the scene of the accident, as contrasted with one who was some distance away
  • whether shock resulted from direct emotional impact upon P from the sensory and contemporaneous observance of the accident, as contrasted with learning of it after its occurrence:

o Did P see the accident? Her it?

  • Whether P and victim closely related.

§ Reasonable foreseeability: objective standard

o Thing v. La Chusa

§ Abandoned the Dillon’s Foreseeability rule and came up with a strict 3-part test:

  • Is P closely related to the injury/primary victim?
  • Was P present at the scene of the injury producing event at the time it occurred and then aware of injury to victim? (There & Aware)
  • Was the emotional distress severe? (disinterested observer comparison)

o Direct Victims vs. bystanders

§ Bystander liability- liability to those who are witnesses to impact but who do not suffer it themselves

§ Direct victims- P is not a bystander but rather a direct victim suffering NIED, even though she suffers no impact, even though arguably no one suffers impact. Direct victim by virtue of a pre-existing relationship/duty, not a garden-variety, foreseeability-based duty.

  • There is still a primary victim but secondary victim not viewed as bystander

o Burgess v. Superior Court

§ Facts: Infant born with brain damage due to doctor’s negligence

§ Holding: Court held that the mother was the direct victim and not a bystander. There was preexisting relationship between mother and ∆ and ∆ breached this duty. Any harm to babyà harm to mother.

o Molein Case

§ Doctor falsely informed wife that she had syphilis and husband should get testedà divorce

§ Doctor owned duty to both husband and wife so husband was the direct victim.

§ Damages of NIED may be recovered in complete absence of physical injury or impact to anyone. Incorrect information can be the source of the breach.


o Marlene F Case

§ Psychologist treating mothers and their children molested children. Ct. held that mothers were direct victims so can recover for NIED. ∆’s tortuous conduct was directed at both mothers and children. Therefore mothers can recover for NIED.

o Johnson v. State

§ Π falsely informed by hospital that mother dead.

§ Ct. said Π can recover because ∆ had a direct duty of care towards Π and this duty was breached. Π was the direct victim of the breach and not some bystander.

o Boyles v. Kerr

§ Friends recorded guy and girl having sex and tape shown around campus.

§ Texas ct. held that direct victims are not recognized in Texas and only bystander my recover and because Π was primary victim (not bystander) who suffered only emotional harm, she has no legal redress.

§ There was no primary victim to piggy-back on.

v Injury to Personal Relationships (Loss of Consortium)

o Consortium: the right of one spouse to the company, affection and service of the other

o There is a primary victim who is not the Π in loss of consortium case

o Historically only husbands can recover for loss of consortium if wife injured

o But now both wives can also recover

o Feliciano v. Rosemar Silver

§ Πs living together like married couple but not legally married.

§ Ct. held can’t recover for loss of consortium because not legally married.

o Borer v. American Airlines Inc.

§ Children filed for loss of consortium for the injures suffered by mother

§ Court held children can’t recover for such damages and only reserved for husband-wife relationship.

v Prenatal Harm, Wrongful Birth and Wrongful Life

o Fetal Injury

§ Werling v. Sandy

  • A viable fetus falls under the wrongful death statute. So if fetus born stillborn, Π can recover

§ A few states require the child to be born live in order for the wrongful death cause of action to accrue

o Wrongful Birth

§ Fassoulas v. Ramey

  • Π didn’t want any more children with abnormalities so D performed a vasectomy on the husband but sill had one normal and one abnormal child
  • Ct. ruled that Πs can’t recover for normal everyday rearing costs for both normal and abnormal children but can recover for extraordinary costs involves in the raising of the abnormal child.

§ Most court agree with Fassoulas that parents cannot recover cost of raising healthy child

§ Minority of courts permit recover for full cost of raising healthy child

§ Middle ground: permit recovery for coast of raising child to the extent exceed benefits parents get from the child

o Wrongful Life

§ This is where children sure for harm, even pre-conception harm

§ Very few jurisdictions permit this cause of action. Most allow parents to recover under wrongful birth, but permit child to recover under wrongful life only for extraordinary expenses

§ According to most courts, life (even with birth defects) is preferable to non-life.

§ Turpin v. Sortini

  • A suit brought on behalf of deaf child against ∆ for failure of ∆ to inform the parents that the child could be born deaf.
  • Court ruled that general damages can’t be recovered because will be too speculative. How can we tell how the child would have been if ∆ not negligent because then child was not going to be born at all!
  • But can recover for extraordinary damages and expenses that entail such birth defects.

v Purely Economic Injury

o Traditional Rule- no recovery for economic loss unless there is physical harm- to the person or property

o Barber Lies v. Donau

§ Even the pure economic loss to Π was foreseeable, ∆ cannot be held liable.

§ Extending liability to pure economic loss will lead to limitless litigation.

§ Exceptions

  • Damages for financial harm are awarded to those who suffer physical harm
  • Financial harm awards to family members
  • Financial harm associated with negligent misrepresentation or fraud (e.g. accountants)

o J’Aire Corp. v. Gregory

§ Π a restaurant owner sues ∆ for lost profits for ∆’s negligent slow performance in repair work that cause Π loss of business

§ Held: Π may recover for loss of profits from ∆. Where a special relationship exists between the parties, a Π may recover for loss of expected economic advantage (K based).

§ Some factors to consider to see whether special relationship:

  • The extent to which the transaction was intended to affect the Π
  • The foreseeability of harm to the Π
  • The moral blame attached to the ∆’s conduct
  • Degree of certainty that Π suffered injury
  • Closeness of connection between ∆’s conduct and injury suffered
  • Policy of preventing future harm

§ According to the court, the above listed factors and the requirement of proximate cause are enough to limit liability and the fears of unlimited liability are false.

o 3-part test: Foreseeability +

§ instances where the risk of harm is foreseeable and closely connected with ∆’s conduct

§ where damages are not wholly speculative

§ injury is not part of Π’s ordinary business risk

o People Express Airlines v. Consolidated Rail Corp.

§ Facts: ∆ negligently caused chemical spill that resulted in evacuation of neighboring businesses. Π suing for lost business.

§ Held: ∆ owes a duty of care to take reasonable measures to avoid the risk of causing economic damages, aside from physical injury, to particular Π or Πs comprising an identifiable class with respect to whom ∆ knows or has reason to know are likely to suffer such damages from its conduct.

§ Identifiable class

  • Identifiable class more than just foreseeable class. An identifiable class of Πs must be particularly foreseeable in terms of the type of persons or entities comprising the class, the certaintly or predictability of their presence, the approximate number of those in the calss, as well as the type of economic expectations disrupted.

§ General foreseeability vs. Particular foreseeability

  • Particular foreseeability is higher standard.

v Contributory Negligence, Assumption of Risk, Comparative Fault

o Contributory Negligence[2]

§ The principle behind this theory is that every person owes a duty of care not only to others but also to himself or herself

§ Use the same negligence test: Dutyà Breach of Dutyà ACà PCà Damages

§ Butterfield v. Forrester

  • Facts: ∆ negligently placed pole across the road and Π, who was riding horse violently, struck the pole. Π could have avoided accident if riding carefully.
  • Holding: Π can’t recover for injuries. The fact that ∆ was negligent will not relieve Π from the duty of practicing reasonable care.

§ Contributory Negligence Basics

  • Negligent acts of both arties may be contemporaneous
  • Does not require the Π to see, recognize the ∆’s behavior—Π could be oblivious of ∆ and his behavior
  • Does assess the reasonableness of the Π’s behavior
  • Does assess whether Π was proximate cause of his harm

§ Davies v. Mann

  • Facts: Π negligently shackled his donkey and left it to the side of road. ∆ driving wagon and struck and killed the wagon.
  • Holding: ∆ held negligent because had the last clear chance to avoid the accident. Even if the Π’s act of fettering the donkey so as to prevent it from getting out of the way of traffic was illegal…If the proximate cause of the injury was want of proper conduct by the driver of the wagon, action against he ∆ could go ahead. If jury found that accident could have been avoided by exercise of ordinary care, they should find for the Π

§ Last Clear Chance: We want to incentivize people to act prudently and try to avoid accidents.


§ Restatement § 479- A Π whose negligence puts him in danger- in a helpless situation- can recover from ∆ who subsequently, acting negligently, harms the Π—on 2 conditions

  • Π was helpless at the time the harm occurred and unable to avoid the harm AND
  • ∆ negligently failed to take advantage of an existing opportunity to avoid the harm—even though he knew or should have known of the Π’s helplessness

§ Restatement § 480- A Π who, by exercise of reasonable vigilance, could discover the danger created by the ∆’s negligence in time to avoid the harm to him, can recover if, but only if, ∆

  • Knows of Π’s situation, and
  • Realizes or has reason to realize that Π is inattentive and therefore unlikely to discover his peril in time to avoid the harm, and
  • Thereafter is negligent in failing to utilize with reasonable care and competence his existing opportunity to avoid the harm

§ Assumption of the risk

  • Person who has voluntarily assumed a risk of harm arising from the negligent or reckless conduct of the ∆ cannot recover for such harm
  • Express (Primary) Assumption of the Risk

o Where Π expressly or by K accepts the risk of harm

  • Implied (Secondary) Assumption of the Risk

o Π who fully understands a risk of harm but nevertheless voluntarily chooses to enter or remain within area of that risk (Subjective Test)

§ Π doesn’t assume the risk if ∆’s tortuous conduct lease Π with no reasonable alternative to avoid harm (e.g. ∆ sets fire to Π’s house and Π injured while trying to extinguish the fire)

  • Assumption of risk Basics

o ∆ has created a risk prior to Π’s encounter (acts are sequential)

o Π understands and appreciates the risk

o Π voluntarily encounters the risk

o No express assessment of the reasonableness of the Π’s decision to encounter the risk

§ Comparative Negligence/Fault

  • Most jurisdictions replaced contributory negligence with comparative fault
  • Under this system, Π’s recovery reduced by not completely eliminated.

§ Knight v. Jewett

  • Primary Assumption of the Risk:- instances where there is no duty on the part of the ∆ to protect the Π from a particular risk.
  • Secondary Assumption of the Risk:- instances where the ∆ owes a duty of care to the Π but the Π knowingly encounters a risk of injury caused by the ∆’s breach of that duty.
  • Cases involving primary assumption of the risk have not merged with the comparative fault scheme and recovery is still completely barred. Secondary assumption of the risk has merged with comparative fault.
  • Question in this case whether ∆ breached a legal duty of care towards the Π. In an active sport such as the one involved in this case, breach of duty only if participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport. In this case, ∆ didn’t breach any duty towards Π and therefore this case falls under primary assumption of risk and Π’s recovery completely barred.

III. Products Liability

v Three categories of cases depending on why products caused harm

o Manufacturing defect (or product defect)

o Design defect

§ Shared by all units in the product line that make them dangerous

  • E.g. Drugs case- whole unit had extreme side effects

o Marketing Defect

§ Product would be considered non-defective simply if the manufacturer had attached proper warnings or instructions to avoid hidden dangers (not obvious dangers)

v Three doctrinal theories of liability

o Negligence

o Breach of Warranty

§ Express Warranty

§ Implied Warranty

o Strict Liability

§ No fault- manufacturer may have acted with due care but still liable

v Negligence

o Privity Requirement

§ Winterbottom v. Wright

  • Π denied recovery because had no direct K with ∆

§ Privity requirement easedà no privity required when dealing with an inherently dangerous product (Thomas v. Winchester)

§ Privity Requirement Abolished in MacPherson v. Buick– Despite the fact that no privity between the parties, Π can recover. Privity replaced with foreseeability test. Also, Π doesn’t have to show that car inherently dangerous. As long as product was reasonably certain to place life and limb in peril when negligently made, Π can recover. Here ∆ had the duty to perform ordinary and simple tests on the wheel of the car.

§ Modern Rule: One who negligently manufactures a product is liable for any personal injuries proximately caused by his negligence.

§ What if car wheel in MacPherson became defective after the car bought, then that leads us to warranty law.

o Same Negligence Test: Dutyà Breach of Dutyà ACà PCà Damages

v Warranty

o Obligations imposed on sellers of goods, requiring them to stand behind their goods’ quality


§ Express warranties Hankscraft

§ Implied warranties of merchantability (most often used)- Henningsen

  • Good must be fit for the purposes such goods are usually used.
  • Henningsen v. Bloomfield Motors

o Π’s wife injured when steering wheel of car malfunctioned.

o Ct. ruled that wife can recover form Chrysler for breach of the implied warranty of merchantability even though she did not K with Chrysler directly. Also, disclaimer in the K that Πsigned not enforceable because adhesive K and unconscionable.

§ Implied warranties of fitness for a particular purpose.

o The fact that seller reasonably and honestly believed his representations to be true, and in fact couldn’t have discovered the defects is irrelevant.

v Strict Liability

o One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect.

o A product is defective when:

§ It contains a manufacturing defect

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

§ Is defective in design

§ Is defective because of inadequate instructions or warnings

o Product can be held defective without specific defect, when the incident:

§ Was of the kind that ordinarily occurs as a result of a product defect; and

§ Was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution.

o Elements of Strict liability

§ Sale or supply ofàDefective productàActual CauseàProximate Cause (Producing Cause)àDamages/harm

o Unlike Negligence, strict liability test just asks whether ∆ put onto the market an unreasonably dangerous product. An inquiry into the result of the process.

o Union Pump v. Allbritton

§ Negligence requires a showing of proximate cause, while producing cause is the test in strict liability. Foreseeability not required in producing cause.

§ A producing cause is an efficient, exciting, or contributing cause, which in a natural sequence, produced injuries or damages complained of, if any. Common to both proximate and producing cause is causation in fact, including the requirement that ∆’s conduct or product be a substantial factor in bringing about the plaintiff’s injuries.

§ In this case, even if pump fire some how but for cause, but not producing cause because fire had been extinguished and Π walking away when the injury occurred. The pump fire did no more than create the condition that made Π’s injuries possible. Therefore, Π cannot recover based on strict liability.

o Restatement § 431 requires substantial factor- means ∆’s conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense in which there lurks the idea of responsibility and not merely but fro harm.

v Affirmative Defenses based on Π’s conduct

o Restatement § 17- When Π’s conduct fails to conform to generally applicable rules establishing appropriate standards of care generally applicable rules apportioning responsibility apply.

o Murray v. Fairbanks Morse

§ The concept of comparative causation. In appropriating damages, ask how much of damage caused by defect in the product versus how much was caused by Π’s own actions. Under the comparative causation approach, once the jury has determined that the product defect caused the injury, the defendant is strictly liable for the harm caused by his defective product. The jury, however, would be instructed to reduce the award of damages in proportion to the Π’s contribution to his own loss or injury.

§ Policy goals behind Strict Liability and Comparative Fault

  • Relieve Π of proof problems assiciated with existing negligence and warranty theories
  • Do away with all or nothing system
  • Prevent Π’s negligence from completely barring recovery

§ This important decision brings both of these theories together

v Marketing Defect: Failure to Instruct or Warn

o If the danger is not open ad obvious, manufacturers must warn of it, with considerable specificity.

o Sheckells v. AGV Corp.

§ Facts: Π sustained head injuries in a motorcycle accident. Π was wearing his helmet at the time.

§ Holding: ∆ liable for failure to warn that helmets cannot protect at 30+ mph speeds. Main issue was whether the danger was open and obvious. The test is whether the danger is obvious to, or generally known by, foreseeable product user. In this case, testimony by expert witnesses that average helmet user doesn’t know about this fact.

o § 2 A product is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or distributor, or a predecessor in commercial chain of distribution, and the omission of instructions or warnings render the product unreasonably safe.

o Exam Writing Guidelines

§ Is product unreasonably dangerous?

  • Manufacturing defect?
  • Design defect?
  • If neither, may present a reasonable danger.

§ Is reasonable danger open and obvious to reasonably foreseeable consumer?

§ If not open and obvious, duty to warn with adequate specificity.

o MacDonald v. Ortho Pharm. Corp.

§ The birth control pills case. ∆ argued that it warned Π’s gynecologist of risks inherent in pills.

§ Holding: Ct. rejects the “Learned Intermediary Rule" and rules that warning to gynecologist not enough. Π made the personal decision to use the pills and ∆ created unreasonable risk by not properly warning Π of the danger. Note: The drug warnings met the FDA standards, but according to the court, that was not good enough.

o We normally don’t assess drugs for design defect—don’t ask if they are unreasonably dangerous. Question is whether they are the best we can do.

o Marketing cases fall under three categories:

§ Negligence—B<PL w/r/t warning

§ Strict Products liability—Product risky, ∆ know, ∆ pays

§ Absolute Liability—If product does harm, ∆ pays, period—whether ∆ knew of possibility product could do harm

o Strict Liability vs. Absolute Liability

§ SL: D manufactured or supplied a defective productàDefective product caused harmàD liableà Includes inquiry into unreasonably dangerous (or reasonably safe) character of product

  • Negligence concepts creep in when determining what is unreasonably dangerous
  • Marketing defect- stat of the art argument
  • Design defect- risk utility analysis

§ Absolute Liability

  • ∆ manufactured or supplied any productàProduct causes harmà∆ liable for harm, no further questions (state of the art and risk utility irrelevant)

o Majority of states accept state-of-the-art evidence which refers to evidence about whether the particular risk was either known or knowable by the application of scientific knowledge available at the time of the manufacture and/or distribution

o Anderson v. Owens-Corning

§ Ct. allowed the state of the art defense.

§ Reasoning: How can you warn when you don’t even know of the danger. Knowledge, actual or constructive, is a prerequisite to strict liability.

§ Negligence vs. Strict Liability

  • Negligence- requires a plaintiff to prove that the manufacturer or distributor did not warn of a particular risk for reasons which fell below the acceptable standard of care. Under negligence analysis, risk might be deemed low enough that warning of it (B) might be higher than PL.
  • SL- require a plaintiff to prove only that the defendant did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution. As opposed to negligence, in strict liability the reasonableness of ∆’s failure to warn is immaterial. DON’T HAVE TO WARN IF RISK OPEN & OBVIOUS

v Design Defects

o Cases where Π wins if he shows that design caused product to fail to perform its intended function, rendered product unreasonably dangerous.[3]

o McCormack v. Hankscraft

§ Facts: Π, 3 years old child, burnt when hot water escaped a vaporizer.

§ Holding: ∆ liable for Π’s injuries. Design defect based on negligence theory. ∆ negligent in manufacturing the vaporizer with a lid that was loose. Π presented evidence that alternative and safer design was easily available. Also, failure to warn/marketing defect was also negligence. Breach of implied warrant based on illustration and language used in brochure.

§ Mother’s behavior not contributory negligence because contributory negligence involves breach of duty towards oneself and not towards the child.

o Uloth v. City Tank Corp.

§ This case illustrates relationship between marketing defect and design defect. Case shows that one cannot warn his way out of a bad design.

o Restatement § 2, comment 1: “…In general, when a safer design can reasonably be implemented and risks can reasonably be designed out of a product, adoption of the safer design is required over a warning that leaves a significant residuum of such risks…Warnings are not a substitute for the provision of a reasonably safe design."

o Troja v. Black & Decker Manuf’g

§ Π argued that saw should have been designed that guide fence shouldn’t have easily come off.

§ Ct. rules case can’t get to jury because Π failed to show that it was technologically feasible at the time to product alternative safer design, availability of the material required, cost of production of suggested device, chances of consumer acceptance of model with such features.

§ Ct. construes two categories of risks

  • Inherently unreasonable risks

o E.g. Phipps case- gas pedal of car stuck to the floor car or the exploding cigar case.

o Design in such cases is inherently unreasonable.

  • Risks not inherently unreasonable—but may be deemed unreasonable after analysis that considers a variety of factors (e.g. air bags). Jury question. Some factors to consider:

o Usefulness and desirability of the product

o Safety aspects of the product— likelihood it will cause injury and probably seriousness of injury

o Manufacturer’s ability to eliminate unsafe character of the product, without impairing its usefulness or making it too expensive to maintain its utility

o User’s ability to avoid danger by the exercise of care in use of the product

o User’s anticipated awareness of the danger inherent in the product and their avoidability because of public knowledge or obvious condition of product, or existence of suitable warnings or instructions

o Feasibility on part of manufacturer of spreading the loss by setting the price of the product or carrying liability insurance.

o Restatement § 2

§ A product… (b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller and the omission of the alternative design renders the product not reasonable safe.

o Consumer Expectation Test

§ Heaton v. Ford Motor Co.

  • Π injured when his truck struck a big rock and truck tipped over after Π kept driving for a long distance.
  • Holding: case can’t go to jury because the event in this case so out of the ordinary that jury can’t decide based on their experience what they would expect under the given circumstances.

§ Consumer Expectation Rule

  • Where no evidence to prove exactly what sort of manufacturing flaw existed or exactly how the design was deficient, the Π may nonetheless be able to establish his right to recover, by proving that the product did not perform in keeping with the reasonable expectations of the user.
  • Fist must ask: Would the average consumer have fairly definite expectations about the product performing in case like this? In Heaton, answer NO.

IV. Defamation

v Restatement Definition- tending to harm the reputation of another as to lower him in the estimation of the community or to deter a 3rd person from dealing with him.

v Defamation is not about hurting feelings

v Elements of Defamation

o Defamatory statement- Holds Π up to ridicule, obloquy; Lowers him in the esteem of the community

o Publication- communication to a third party

o Identification of Π by name or otherwise

o Harm- may be presumed in some cases

o Falsity

v Defense- Common Law

o Where free expression outweighs interest in reputation

o Qualified- communications between persons who share a common interest

o Truth- formerly an affirmative defense

v General opinion vs. defamatory statement

o He is a womanizer v. he committed a sexual assault

o He is a thief vs. he stole my purse

v Youssoupoff v. MGM

o Newspaper listed that Π was raped by Russian monk. ∆ argued that no defamation because article didn’t say that Π did anything wrong.

o Held: Defamation. Defamation more about what the community thinks than whether the community is justified in thinking it. ∆’s article lowered the status of Π in the community.

v Relevant Audience

o Don’t need reaction to be measured by the entire population. Sufficient if statement perceived to be defamatory by a small community such as the one in which Π works. Generally don’t assess the community’s morals—don’t look for right-thinking people.

v Nature of communication

o Communication need not be in words. Can be a photo, action, gesture, visual representation. Misquotation can also be defamatory.

v Libel v. Slander

o Libel: written or other tangible medium. Libel per se means “on its face" without reference to extraneous materials

o Slander: Spoken, oral

§ 4 categories of slander per se

  • Π has committed crime
  • Π has loathsome disease (e.g. HIV)
  • Statement damaging one’s business, trade, profession
  • Statement that a woman is unchaste

o Some cases where Π is libel proof- has no reputation to preserve

v Interpretation of statement

o If statement is capable of defamatory meaning and non-defamatory meaning, Π must prove that audience would take it in the defamatory sense

v Belli v. Orlando Daily Newspapers

o Facts: Newspaper article listed that Π (a famous trial attorney) tricked the Florida Bar Association in paying for expensive clothing bills.

o Holding: Statement defamatory. “We consider that the bare bones of the article are capable of carrying the meaning that Π tricked and deceived the FBA out of hundreds of dollars worth of clothes." Hurts Π’s honesty as a trial attorney.

o Takeaway

§ Both judge and jury have roles in deciding defamatory meaning. Judge determines whether article capable of defamatory meaning and jury determines whether or not the alleged libel bears the construction which the Π seeks to put upon it.

v Usually epithets are not considered defamatory. Words such as “bitch" or “bastard" are not taken literally.

v Smith v. Atkins

o Facts: ∆ (law professor) called Π (his student) a “slut" in class. Π suffered ridicule and was ostracized by her classmates.

o Holding: Π identified and defamatory statement published. Calling a girl a slut is defamatory per se.

v Common Law

o No intent or recklessness necessary. Strict Liability—if you publish a statement that defames someone, you were liable at common law.

§ Exception: When there is no intent to publish; where publication occurs accidentally.

o Defense of Truth

§ Truth is an absolute defense. Used to be affirmative defense under common law but no falsity is part of Π’s prima facie case.

v Changes driven by the Constitution (1st Amendment vs. Defamation)

o New York v. Sullivan

§ In order to recover damages, Π will have to show actual malice on the part of the ∆. Actual malice not linked to defamatory meaning but to the truth of falsity of the statement.

§ Ask: Did ∆ know or was reckless in regards to the falsity of the statement?

§ Actual Malice is part of Π’s prima facie case.

o Standardà Before used to be preponderance of the evidence but after Sullivanà Convincing Clarity Standard (higher standard)

o Actual Maliceà usually requires cases in which ∆ distorts or alters facts contained in sources, or fabricates conversationsà it is a subjective standard. Did ∆ know of the falsity or act with reckless disregard of it.

o Who is a public official?

§ Government officials who have, or appear to have substantial responsibility for control over the conduct of government affairs (e.g. candidates for public office, member of student senate of state U, architect involved in constructing a public building, one carrying out a function of government or if participating in acts related to matters in which government has substantial interest)

o Curtis Publishing v. Buttsà extended actual malice standard to Public Figures.

o Public officials & public figures have sources of self-help

o Rosenbloom v. Metromediaà Plurality of S.Ct. said actual malice standard applies to private individuals if statements relate to matters of general public interest[4]

o Garrison v. LouisianaàActual malice rule applies to both media and non-media ∆s. Π’s status dictates.

o Philadelphia Newspapers v. HeppsàShifter burden with regard to truth or falsity to Π. So now Π must prove that statement false.

o Gertz v. Robert Welch

§ Facts: Attorney representing a family in a wrongful death lawsuit claimed to be part of Communist Party by a newspaper.

§ Holding: Π private individual and doesn’t have to establish actual malice. According to the court, “states should retain substantial latitude in their efforts to enforce a legal remedy for defamatory falsehood injurious to the reputation of a private individual." But if media ∆s, can’t use strict liability.

o Most states apply negligence standardàIf RPP would have known that statement is false? Can even bring B<PL into the analysis.

o Was Party Public or Private Figure?

§ 2 Categories of Public Figures

  • all purpose (e.g. President)- mostly everything is fair game
  • limited purposeàone who voluntary injects himself or is drawn into a particular public controversy (e.g. school board president, LSA president)àNot everything is fair game. If statements unrelated to their public status, then these individuals treated as private persons.

§ Time, Inc. v. Firestone

  • Π not public figure because didn’t thrust herself in public controversy. She had to go to the court to get a divorceà didn’t have a choice.

§ Press cannot convert someone to a public figure just by taking an interest in him.

  • Access to media must pre-date the alleged defamation. Access must be of a regular and continuing nature.

§ Public v. Private Figures- Some Guidelines

  • Π had access to channels of effective communication
  • Π voluntarily assumed a role of special prominence in a public controversy
  • Π sought to influence resolution or outcome of controversy
  • Controversy existed prior to publication of defamatory statements and
  • Π retained public figures status at time of alleged defamation.

o Dun & Bradstreet v. Greenmoss

§ Backed off Gertz. Now private Π doesn’t need to prove actual malice even when it comes to media ∆ when matter is not of public concern. In this case, Π’s credit report not of public concern.

§ Therefore, if Private Π vs. Media ∆, and matter not of public concernà STRICT LIABILITY COULD APPLY!


V. Invasion of Privacy

v 4 Varieties of Invasion of Privacy

o Intrusion upon seclusion

o Publication of private facts (mass publication)

o False Light (confusingly similar to defamation)

o Appropriation (we don’t cover this)

v Intrusion upon Seclusion

o This might be like trespass but trespass is about protecting property interests. This on the other hand is about protecting the mental and psychic well being of the Π.

o Intrusion upon private space of someone. But physical intrusion not needed. Can be observation from a distance (e.g. by high-powered zoom camera lens, by eavesdropping, peeping into a window)

o § 652B- one who intentionally intrudes physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person.

o Elements

§ Intent to intrude[5]

  • Not merely accidental or negligent

§ Intrusion or prying into seclusion, private space or private matter (Act)

  • May include physical trespass but intrusion can be from afar

§ Offensive to a reasonable person

§ Harm/Damages

o What is private

§ May be a conversation (or other interaction) between two persons (e.g. Husband/Wife)

§ May be an individual’s mutterings in private

§ May be information—financial, personal, sexual photo, letter, financial statements)

o Hamberger v. Eastern

§ Facts: ∆ (landlord) installed some voice recording device in Πs’ (husband/wife) bedroom. ∆ argued that didn’t hear anything.

§ Intentà not on appeal

§ Intrusionà yes, eavesdropping enough—seems as if the mere presence of the equipment in the room enough for the courtà not a common rule.

§ Upon seclusion or private placeà yes, marital bedroom

§ Highly offensive to reasonable personà Ct. seems to think yes

§ Harm?

o Can also be invasion of privacy if someone goes into someone’s else’s property to retrieve what the person owns. E.g. a phone company going into the house of Π to retrieve a phone owned by the company.

o CONSENT MATTERS!! Posner has held that fraud does not vitiate consent!

o Nader v. General Motors

§ I. eavesdroppingà intrusion upon seclusion

§ II. Surveillance at the Bankà Could be actionable if surveillance is so intrusive and ongoing that invasion of privacy

§ III. Interviews with Nader’s friendsà not actionable because if friends knew, not private anylonger.

§ Sending women to Nader and phone callsà not actionable under invasion of privacy. Perhaps actionable under IIED.[6]

o Examples of intrusion by means other than physical invasion

§ Eavesdropping

§ Unwanted telephone calls

§ Excessive surveillanceàGalella v. Onassis

§ Sexual harassmentà repeated, offensive questions, comments and physical contacts an invasion of privacy

v Publication of Private Facts

o Rest § 652: Publicity Given to Private Facts

§ One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that

  • Would be highly offensive to a reasonable person and
  • Is not of legitimate concern to the public

o Publicity- must be a public disclosure (unlike defamation, must be wide spread)

§ An invasion to state in a newspaper that Π doesn’t pay his debts. No invasion if the same said to Π’s employer.

o Truth or falsity not relevant

o Facts must be private

§ Not something left open to public eye/gaze

§ Yes, details of sexual relations or highly personal portrayals of intimate, private characteristics

o Offensive an objectionable to a reasonable person or ordinary sensibilities (Objective Test)

o Elements @ Common Law

§ Private Matter

  • Highly offensive and objectionable to person or ordinary sensibilities[7]
  • Publicized widely
  • Strict Liability

[1] Only used in few rare jurisdictions.

[2] All jurisdictions have abandoned this defense.

[3] Courts do not device design defect devices in prescription drug cases.

[4] This was not a majority opinion and number of states have backed off from this.

[5] On the exam, don’t really have to focus on this part too much.

[6] Some courts have considered harassing phone calls to be invasion of privacy.

[7] This concerns the matter and not the act of publishing or how published.

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