BRIEF NOTES ON THE LAW OF TORTS LAW

What are the ultimate goals of Tort law?

 

·           Compensate victims of accidents.

·           Deter unsafe behavior.

·           (Moral judgment: Holmesian view that damages should lie only where fault lies.)

·           (Efficiency: Posnerian view of achieving an efficient level of safety.)

What are the alternative systems we might use to achieve these goals?

·           Non-liability system

o   Compensation to victims achieved by use of private loss insurance, social welfare/government benefits, gifts.

o   Advantages: autonomy & equality: victim controls risk and amount of insurance, victim decides how much he’s worth.

o   Disadvantages: no moral judgment, no deterrence.

o   Victim makes the Hand calculus.

o   Costs of accidents are spread among all insured.

·           Negligence system

o   What we have, predominantly.

o   Moral judgment achieved: only those at fault pay.

o   Trier of fact makes the Hand calculus.

·           Strict liability system

o   Compensation to victims paid by tortfeasors, probably via liability insurance.

o   Advantages: strong deterrent effect.  Although at first glance, safety doesn’t increase under a strict liability regime as opposed to a negligence regime, it really does (see Products Liability).

o   Disadvantages: no moral judgment, we can’t rely on everyone to carry liability insurance, so to ensure compensation we’d end up subsidizing the liability insurance and losing the deterrent effect.

o   Tortfeasor makes the Hand calculus.

o   Depending on nature of tortfeasor, may spread accident costs to different populations.  For example, in case of strictly liable manufacturers, accident costs will ultimately be spread to all users of dangerous products through price increases.

Damages

Big Picture: Fundamental goal of damages in the unintentional torts area is to return the plaintiff as closely as possible to his condition before the accident (book authors).  Alternatively, Posner views damages as a means to achieve an “efficient level of safety.” 

In awarding damages, sometimes the goals of fairness/proportionality, compensation, and deterrence conflict with each other. 

Problems in determining tort damages include:

(1) Prediction

(2) Inclusion

(3) Compensability

(4) Measurement

(5) Commensurability

Compensatory Damages: Pecuniary Damages

Elements of Pecuniary Damages & Calculation Problems:

1)      Medical expenses- past

-figure will be a function of class of victim à unfairness; richer people will get more expensive care

-collateral source rule: law disregards insurance/third party payments

2)      Medical expenses- future

-can’t predict what technology will become available in future & how this will affect medical costs

-interest rate/inflation problem

3)      Lost earnings- past

-damage awards not taxed while earnings would have been

- collateral source rule: law disregards gratuitous wage payments by third party, e.g. brother in Arambula v. Wells (Calif. 1999) who continues to pay salary to victim

4)      Lost earnings- future

-impossible to predict career trajectory and life expectancy

-uncomfortable to use life expectancy predictions based on demographic factors (class, race, gender, etc.) because à cheaper to injure poor people, men, etc.

-under- and over-compensation for lost ability to work (receive money without having to work, but lose intrinsic satisfaction of work)

5)      Property damage

General Problems with Compensatory Damages:

·           contingency fees take out 30% of award

·           single judgment approach à necessity of predicting future, but impossible to predict how much plaintiff will earn from investing and what future interest rates will be (one imperfect solution: assume that inflation will balance out interest earnings/zero real rate of return)

·           inequality: because of restoration to status quo ante goal, damages paid to advantaged people likely to be much higher than damages paid to the disadvantaged; tort damage liability may create incentive to locate most dangerous activities/sell more dangerous products in poorest areas; under required liability insurance schemes we all pay for those with high income & expensive cars

Compensatory Damages: Non-pecuniary Damages

Theoretical justifications for awarding pain & suffering damages:

·           compensation: plaintiff has, in fact, lost something

·           deterrence: Posner’s argument that “No one likes pain and suffering and most people would pay a good deal of money to be free of them.  If they were not recoverable in damages, the cost of negligence would be less to the tortfeasors and there would be more negligence…and hence higher social costs”

*But note that in wrongful death and survival actions the victim’s pain and suffering is not included in damages—so limits the deterrent effect?

·           but Jaffe’s argument against awarding pain and suffering damages: “Neither past pain nor its compensation has any consistent economic significance”… “It is doubtful justice to embarrass a defendant… by real economic loss in order to do honor to plaintiff’s experience of pain”

Calculation of pain & suffering damages:

Should jury be given any guidance?  How does appellate judge make a determination of excessiveness as a matter of law?

·            “shocks the conscience” standard

·        some measure excessiveness in proportion to pecuniary damages (dissent in Seffert v. LA Transit)

·            appropriate to suggest a per diem calculation to jury?

·            surveys of “willingness to pay”?

·        is loss of enjoyment of life a separate damage category from pain and suffering, e.g. in case of comatose patient unable to feel pain? McDougald v. Garber (1989) holds that the categories should not be considered separately; damages for loss of enjoyment of life to a non-aware person don’t serve compensatory purpose

Punitive Damages

When are punitive damages awarded?

·           infrequently awarded—less than 1% of tort cases

·           more often awarded in business v. business cases

·           Conscious disregard of safety of others may be enough to justify punitive damages; intent to harm not necessary (Taylor v. Superior Court (Calif. 1979): punitive damages awarded to plaintiff hit by drunk driver with history of drunk driving) 

How are punitive damages measured?

·           determined by trier of fact (jury, trial judge)

·           appeals court may strike down a trier of fact’s punitive damage award if it is grossly excessive in relation the state’s interest.  (BMW of North America, Inc. v. Gore (1996): Repainted car case; jury awards $4 mill in punitive damages, $4,000 in actual damages.  Supreme Court (5-4) finds punitive damage amount violates due process clause because it is “grossly excessive” in relation to the state’s interests, measured against guideposts of degree of reprehensibility, ratio of compensatory to punitive damages, and civil/criminal sanctions for comparable misconduct; concurring justices find it violates due process because state’s process provides no standards constraining jury/court’s discretion.)

·           when Supreme Court scrutinizes damages, it reviews de novo rather than acting as appellate court (Cooper Industries v. Leatherman (2001))

·           federalism: state courts can only consider effect of defendant’s policies in state when determining punitive damage award (State Farm v. Campbell (2003))

·           few awards exceeding single-digit ratio between compensatory and punitive damages will satisfy due process (State Farm v. Campbell (2003))

Problems:

·           moral hazard problem: until end of 19^th century liability insurance was illegal for fear it would encourage people to hurt others; now award of punitive damages will nullify liability insurance

·           doubtful deterrent effect

Joint Liability: Liability shared by two or more parties.

Several Liability: Liability that is separate and distinct from another’s liability.

Joint & Several Liability: Liability that may be apportioned either among two or more parties or to only one or a few select members of the group, at the adversary’s discretion.  Each liable party is individually responsible for the entire obligation, but a paying party may have right of contribution and indemnity from nonpaying parties.
Causation

Big Picture: In most cases, causation is obvious and not litigated.  Generally, the burden of proof is on the plaintiff to demonstrate that the defendant caused his injury.  Causation issues may arise in cases where:

(1) defendant’s action clearly connected to plaintiff, but not clear if that action is the cause of plaintiff’s injury (e.g. Stubbs, Zuchowicz)

(2) defendant acted negligently, but not clear if specific defendant is connected to specific plaintiff (e.g. Summers, Hymowitz)

Act-Injury Connection in Dispute

·           causation issue often arises in cases of illness.  Problem: statistics can’t prove causation in a specific case.  If defendant’s action caused an 80% increase in the chance of getting typhoid in a given area, should defendant pay full damages to everyone who gets typhoid, pay damages to nobody, or pay 80% of the medical expenses of everyone who gets typhoid?

·           two approaches to causation issue are given in early typhoid-water supply case of Stubbs v. City of Rochester (NY 1919): (1) plaintiff has burden of proof to exclude all other possible causes of his injury in order to hold defendant liable (trial court’s rule), (2) plaintiff has to establish with “reasonable certainty” that defendant caused his injury (appellate court’s rule).

·           increased risk approach to causation, in Danocrine-PPH case, Zuchowicz v. United States (2d Cir 1998): “If (a) a negligent act was deemed wrongful because that act increased the chances that a particular type of accident would occur, and (b) a mishap of that very sort did happen, this was enough to support a finding by the trier of fact that the negligent behavior caused the harm.”

·           loss-of-chance theory: plaintiff can recover for lost chance for a better outcome as well as increased risk of undesirable outcome.  In loss-of-chance cases damages should be awarded on a proportional basis “as determined by the percentage value of the patient’s chance for a better outcome prior to the negligent act.” (Alberts v. Shultz (NM 1999))

·           role of expert testimony on causation “to a reasonable degree of medical certainty”: Supreme Court says trial judges have discretion in admitting expert testimony.  Should consider (1) theory tested by scientific method? (2) theory subject to peer review and publication? (3) known or potential rate of error? (4) theory generally accepted?

 

Defendant-Plaintiff Connection in Dispute

·           one approach: if there are multiple negligent defendants acting in concert, and only one of them actually caused plaintiff’s injury, burden of proof shifts to each defendant to prove his innocence, under reasoning that defendants have access to better information (Summers v. Tice (Calif. 1948), shooting case)

·          another approach: in a mass tort context, if there are multiple negligent defendants, and only one of them actually caused a particular plaintiff’s injury, the defendants will have to pay in proportion to their market share (concurrence in Hymowitz v. Eli Lily (NY 1989) DES case)

 

 

Negligence Principle

Big Picture: Learned Hand conceptualizes negligence/reasonable care standard as: liability lies where the burden of adequate precautions is less than the probability of injury multiplied by the gravity of the injury (B < PL).

In determining negligence, we don’t look into the mind of the individual defendant, but rather judge by a “reasonable person” standard, with a few caveats:

·           age (the reasonable 7-year-old; unless child is involved in adult activity)

·           physical disability (the reasonable blind person)

·           common carriers (higher standard of care?)

·           doctors (custom of majority or reputable minority of doctors)

Proving negligence:

·           prevailing custom (relevant but not dispositive)

·           statutory compliance  (not dispositive, unless statute explicitly states that violation proves negligence)

·           “business practices” rule (like a products liability standard for services)

·           res ipsa loquitur (if defendant has control over thing that caused accident, and event couldn’t have happened absent negligence, then a res ipsa loquitur case for negligence may satisfy plaintiff’s burden of production or inflict burden of production on defendant)

Defining Reasonable or Ordinary Care

·           Brown v. Kendall (Mass. 1850): Dogs/stick/eye case.  Establishes “ordinary care” as the correct standard with burden of proof on plaintif (rather than “extraordinary care” with burden of proof on defendant if defendant’s actions not “necessary”).

·           Adams v. Bullock (NY 1919): Cardozo opinion.  Swinging wire case.  Holds RR not liable because of excessive burden of additional safety precautions & unlikelihood of accident.

·           US v. Carroll Towing Co. (2d Cir. 1947): Question of liability for not having bargee aboard to prevent boat sinking.  Learned Hand advances his liability if B < PL formula. 

*note: should there be a difference in applying Hand formula in personal injury versus property damage cases?

*note: problem with using an economic formulation in the legal context is that economic perspective looks at the entire prospective population of events (cost, probability, and cost of safety precautions for all possible accidents), while legal case looks at one unique event retrospectively (cost, probability, cost of safety precautions for unique event)

Exceptions to the Reasonable Person Standard

·           Bethel vs. New York City Transit Authority (NY 1998): abandons higher standard of care for common carriers.  BUT Andrews, below, holds that common carriers have a “heightened duty of care”.     

·           Exceptions in which defendant not held to “reasonable person” standard: physical handicap or temporary illness/disability (“reasonable man under like disability” standard), youth (“reasonable x-year-old” standard unless child is engaging in adult activity like driving)

Jury-Judge Roles in Determining Reasonableness

·           Baltimore & Ohio Railroad Co. v. Goodman (1927): Grade crossing case.  Holmes makes up a standard of reasonable conduct (reasonable person would have gotten out of car and looked for train): “It is true… that the question of due care very generally is left to the jury.  But we are dealing with a standard of conduct, and when the standard is clear it should be laid down once & for all by the Courts.”

·           Pokora v. Wabash Railway Co. (1934):  Another grade crossing case.  Cardozo says question “was for the jury whether reasonable caution forbade his going forward in reliance on the sense of hearing, unaided by that of sight.”  Says that Goodman dictum on driver needing to get out of car has caused confusion:  “Standards of prudent conduct are declared at times by courts, but they are taken over from the facts of life.”

·           Hand says there can be no general rule on what constitutes negligent behavior as a matter of law; negligence must be determined on facts of each case.

·           Andrews v. United Airlines, Inc. (9^th Cir. 1994): Falling luggage case. Says negligence of airline should be jury question; plaintiff can overcome summary judgment.

Proving Negligence

Custom:

·           Generally, following custom is not dispositive in defending against negligence, and departing from custom is not dispositive in proving negligence.  But custom may be used as evidence. (e.g. Trimarco v. Klein (NY 1982): shower glass case)

·           BUT, in malpractice cases custom does define standard of care.

Statute:

·           Martin v. Herzog (NY 1920): Traveling without lights.  Violation of statute considered per se negligence.

·           Tedla v. Ellman (NY 1939): Highway walkers.  Statutory purpose & clarity matters: Statutory violation is not negligence per se unless statute specifically establishes civil liability for violation.

 

Sufficiency of evidence as a matter of law:

·           Negri v. Stop and Shop, Inc. (NY 1985): Slip-and-fall/baby food case.  P made a prima facie case that D had constructive notice (circumstantial evidence that D had sufficient time to notice broken jars of baby food in aisle) & thus was error to dismiss complaint. 

·           Gordon v. American Museum of Natural History (NY 1986): Slip-and-fall/museum steps case.  Case dismissed: As a matter of law, to establish constructive notice “a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit D’s employees to discover and remedy it.” 

·           business practice rules/mode of operation rules: cases involving business practices that create a reasonably foreseeable risk of harm may not require proof of constructive notice.  Puts burden on defendant to prove non-negligence (e.g. Randall v. K-Mart Corp.)

Res ipsa loquitur:

·           Byrne v. Boadle (England 1863): Falling flour barrel case. First use of res ipsa loquitur.  Three elements: (1) defendant had control over thing that caused accident, (2) event could not have happened absent negligence, (3) no contributory negligence (less applicable today because contributory negligence not an absolute defense).

·           McDougald v. Perry (Fla 1998): Falling tire case.  Applies res ipsa loquitur.

·           Ybarra v. Spangard (CA 1944): Rare case in which res ipsa applied to multiple defendants in hospital operating room context where plaintiff was unconscious.

·           Res ipsa loquitur may inflict a burden of production on the defendant or satisfy the plaintiff’s burden of production.  Tied up with the idea of who has better access to information about the accident.

Medical Malpractice

·           doctors have a different standard of care: custom of majority or reputable minority in profession

·           Sheeley v. Memorial Hospital (RI 1998): Overturns old “similar locality” rule.  Physician is “under a duty to use the degree of care and skill that is expected of a reasonably competent practitioner in the same class to which he or she belongs, acting in the same or similar circumstances.” 

·           Connors v. University Associates in Obstetrics & Gynecology, Inc. (2^nd Cir. 1993): Expert testimony may be used in a medical malpractice res ipsa loquitur case in order to bridge the gap between jurors’ common experience and doctors’ knowledge.

·           Matthies v. Mastromonaco (NJ 1999): Informed consent case.  Doctor must explain alternatives and get informed consent even if procedure is noninvasive; informed consent isn’t based on battery principles but rather right of self-determination/autonomy. 

·           “Reasonable patient” standard in informed consent cases straddles middle ground between efficiency (doctor decides) and total autonomy (patient decides based on everything specific patient wants to know)

Proximate Cause

Big Picture: Proximate cause is an expression of the notion that we don’t want to hold people infinitely responsible for the most attenuated or unpredictable consequences of their actions.  Liability should extend only to the “reasonably foreseeable” consequences of one’s actions.  An exception to reasonable foreseeability is the eggshell plaintiff rule: a tortfeasor must take his victim as he finds him, and is responsible for unpredictably severe consequences of a tort due to a victim’s pre-existing medical condition.

(Abel thinks proximate cause is a redundant consideration because the concept of “reasonable foreseeability” is already incorporated into the Hand formula.  Maybe it’s simply a way for judges to insert their moral instincts into the efficiency analysis?) 

Unexpected Harm to People: Eggshell Plaintiff Rule

·           Benn v. Thomas (Iowa 1994): “The eggshell plaintiff rule rejects the limit of foreseeability that courts ordinarily require in the determination of proximate cause.  Once the plaintiff establishes that the defendant caused some injury to the plaintiff, the rule imposes liability for the full extent of those injuries, not merely those that were foreseeable to the defendant.”

·           some courts carry the eggshell plaintiff rule as far as holding defendants liable when injured plaintiff commits suicide after an accident

·           eggshell plaintiff rule does not apply to emotional harm: defendants not liable for emotional distress that would not be suffered by an “ordinarily sensitive person”??

·           medical aggravation cases: if defendant injures plaintiff and then plaintiff is further injured in the ambulance on the way to the hospital, defendant is liable for both the initial and further injury because his actions exposed plaintiff to increased risk that the later further harm would ensue

Unexpected Harm to Property

·           In re Polemis (England 1921): Dropped plank/burned ship case.  Direct causality, not foreseeability, is the standard to determine liability.

·          Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., Ltd. (The Wagon Mound) (Privy Council, 1961): Spilled bunkering oil/wharf fire case.  Rejects Polemis standard of “direct result” in favor of “reasonable foreseeability.”  Finds that Ds couldn’t have reasonably foreseen the fire.

          *note: foreseeability all depends on how broadly or narrowly you tell the story

Intervening Actors

·           McLaughlin v. Mine Safety Appliances Co. (NY 1962): Heating block case.  Fireman’s intervening recklessness supercedes manufacturer’s negligence.  (not representative of current thinking)

·           Hines v. Garrett (Va. 1912): Missed train stop/rape case.  Intervening criminal conduct did not insulate railroad from liability.  (more representative of current thinking than McLaughlin)

Unexpected Victim (see also: Duty)

·           Palsgraf v. Long Island Railroad Co. (NY 1928): Train/fireworks package/falling scales case.  Cardozo formulates it as a duty question (& doesn’t address proximate cause): guard’s conduct might have been negligent towards the package holder, but it was not a wrong in relation to the plaintiff.  Dissent (Andrews): discusses proximate cause (arbitrary line drawn because of rough sense of justice, considering ‘but for’ causality, directness of connection, foreseeability, remoteness in time and space) & finds it is not lacking here as matter of law.

Recurring Fact Patterns in Proximate Cause

 

·           Rescue: “danger invites rescue,” thus D’s negligent injury of P may make him liable under proximate cause theory for any injuries to P’s rescuer (Wagner v. International Railway Co. (NY 1921))

·           Time: Does a long time interval between wrongful act and injury necessarily mean the risk is outside ‘the range of apprehension’?  sometimes extended statute of limitations on suits involving long-developing injuries like asbestosis, cancers

·           Distance: doesn’t necessarily defeat proximate cause, e.g. Ferroggiaro v. Bowline: liability found when damage to traffic light control box causes accident 2 miles away

·           Fire rule: Ryan v. NY Central R. Co. (1866): setter of fire only liable for first building destroyed because it is not a “necessary or usual” result that the fire will spread and burn other buildings.  Other states don’t have this rule.

·           Kinsman cases: example of negligently moored boat crashing into another boat and negligently lowered bridge, causing damage and creating dam causing flooding.  Dock operator liable for both the damage caused by ships crashing into each other & floating downstream (definitely foreseeable result of negligent lock inspection) and flooding damage caused by boats crashing into the lowered bridge & making dam.  But not held liable for economic harm caused to merchants who had to find alternative route due to downed bridge (too tenuous).

Duty: Avoiding Physical Harm

Big Picture: In early cases, specific relationships appear to be the basis for imposing a duty of care (innkeeper-guest, carrier-passenger, etc.).  But there has been a long-term movement towards recognizing general duty of due care; today a general duty is usually assumed unless a defendant asserts a lack of duty in a particular case.  The question of duty arises in the following types of cases:

·           Affirmative duty to act (in cases of contractual privity, joint venturers, duty to reasonably aid if caused harm or risk or started to aid victim)

·           Statute-created duty

·           Duty to protect a third party (psychiatrists, doctors, negligent entrusters?)

·           Landowners & occupiers (duty to trespassers, licensees, invitees?) 

·           Intrafamily duties: existence of parental duty/immunity is under debate; “reasonable parent” standard

·           Sovereign immunity: distinction between discretionary and ministerial acts

Affirmative Duty to Act

·           Autonomy-altruism balance.

·           Duty to act (to assist/warn/protect) connected to D’s power over victim, victim’s ability to protect himself: 

o   Social hosting doesn’t automatically create a duty to guests (Harper v. Herman (Minn. 1993)- diving/boat case)

o   If actor causes non-negligent injury to another, has a duty to exercise due care to prevent further injury (Maldonado v. Southern Pacific Transp. Co. (AZ 1981)- run over train passenger/no assistance)

o   If actor non-negligently creates risk, has a duty to remove hazard or warn others (Simonsen v. Thorin (Neb. 1931)- knocked over pole)

o   If actor promises to warn/advise, might create a duty to exercise due care in performing the promise (Morgan v. County of Yuba (CA 1964)- sheriff promises to notify of release, Mixon v. Dobbs Houses (GA 1979)- manager promises to advise employee of wife’s labor call)

o   “Companions engaged in a common undertaking” may have duty to aid one another; once an actor voluntarily aids a victim assumes duty to act reasonably (Farwell v. Keaton (Michigan 1976)- leaves friend passed out in driveway, Haben v. Anderson (IL 1992)- initiate passed out in frat room)

o   But no duty to prevent risk of harm (Ronald M. v. White (Cal. 1986)- passengers failed to restrain drunk/high driver)

o   Duty not to interfere in rescue efforts (Soldano v. O’Daniels (Cal. 1983) & Barnes v. Dungan (NY 1999))

·           Duty of service/utility providers to users of their services?

o   absent contractual privity, generally no duty to persons hurt because of companies’ failure to supply adequate water, light, etc. (HR Moch Co. v. Renesselaer Co. (NY 1928)- lack of water/fire/Cardozo’s misfeasance-nonfeasance reasoning, Strauss v. Belle Realty Co. (NY 1985)- blackout/stairs/vague unlimited liability reasoning, also Palka v. Edelman- garage/pedestrian/unlimited liability reasoning)

o   but there might also be a duty to “known & identifiable group” in addition to those in contractual privity (Palka v. Servicemaster Management Services Corp. (NY 1994)- nurse/falling fan/hospital maintenance contractor)

·           Duty created by statute?

o   Duty to private individual only if statute creates private right of action.  Test for availability of private right of action when statute is silent: (1) whether P is one of the class for whose particular benefit the statute was enacted, (2) whether recognition of private right of action would promote the legislative purpose, (3) whether creation of such a right would be consistent with the legislative scheme.  (Uhr v. East Greenbush Central School District (NY 1999)- scoliosis testing)

o   Duty to rescue in some states (Vermont)

o   Duty to report child abuse (every state)

o   Duty to report crime (California)

o   Statutory limitations on liability used to encourage emergency aid by doctors, good samaritans

·           Duty to protect a third party?

o   Generally, duty will only lie if the third party is identifiable; must be a special relationship between defendant and either the harming party or the harmed third party

o   Duty of therapist to warn his patient’s intended victim (Tarasoff v. Regents of the Univ. of California (Calif. 1976)); but no duty to warn relatives of potentially suicidal patient (Bellah v. Greenson (Calif. 1978))

o   Maybe a duty of physician to people with whom his patient has sexual contact or to future children of patient, but cases split (Reisner- yes/partner HIV, Pate- yes/children cancer, Hawkins- no/future husband hepatitis, Albala- no/perforated uterus)

o   Writers of letters of recommendation have a duty to third persons not to misrepresent facts if misrepresentation might pose substantial, foreseeable risk of physical injury to the third persons (Randi W. v. Muroc Joint Unified School District (Calif. 1997))

o   Sellers/lessors/donors/lenders may be held to have a duty to third persons under negligent entrustment theory (Vince v. Wilson (VT 1989)- nephew car, Kitchen v. K-Mart Corp. (Fla. 1997)- drunk gun buyer)

o   But social hosts don’t have a duty of care to third persons injured by intoxicated guests (Reynolds v. Hicks (Washington 1998)- nephew wedding); commercial vendors do have duty to third persons

Duty of Landowners & Occupiers

·           Traditionally, and in many states today, different duty/standard of care owed to different categories of people on land: trespassers (no duty), licensees (duty to make safe dangers of which landowner is aware), invitees (possessor has economic interest in visit or property open to public, duty of reasonable care to protect against both known & discoverable dangers).  See, e.g., Carter v. Kinney (Missouri 1995)- where Ds expected no material benefit from P’s visit, P was a licensee, not an invitee, and the Ds had no duty to protect him from unknown dangerous conditions.

·           If danger is open & obvious, may be no duty if victim can perceive risk.

·           In child trespasser cases, the duty of care is increased (“attractive nuisance” doctrine).

·           In recreational use of land cases, the duty of care is decreased (willful misconduct required for liability).

·           In some places, licensee-invitee distinction abolished now & duty of reasonable care owed to all non-trespassers.  E.g. Heins v. Webster County (Nebraska 1996)- nurse daughter visit.

·           landlord & tenant: traditionally, landlords insulated from liability except in a few situations (hidden danger of which landlord but not tenant is aware, premises leased for public use, premises retained under landlord’s control (like common stairways), or premises negligently repaired by landlord).  Distinction fading between bad repairs & no repairs.  Some courts have more dramatically increased landlords’ liability.

·           liability for harm outside the premises: e.g. bungee jumping by side of the highway distracts passing motorists & causes an accident.  Court denied liability, based on “reasonable foreseeability of the injury”.

·           criminal activity: some courts have imposed duty of care on landlords towards tenants who are assaulted in landlord’s building.  In Posecai v. Wal-Mart Stores, Inc. (LA 1999) store did not have duty to mugged plaintiff because crime committed in store parking lot was not sufficiently foreseeable.  Balancing test: “the foreseeability of the crime risk on the defendant’s property and the gravity of the risk determine the existence and extent of the defendant’s duty.”

·           No duty to comply with demands of robber in hostage situation.

Intrafamily Duties

·           traditionally, there was spousal immunity from suit, but this has virtually disappeared today

·           parental immunity/duty in negligence cases varies state by state

·           liability insurance issue: if parent did not act tortiously, child can’t recover under family homeowners or other liability insurance; many insurance policies bar recovery in intra-family suits

·           e.g. Arizona: “reasonable parent” test (Broadbent v. Broadbent (Arizona 1995)- swimming pool/phone call)

·           e.g. New York (Holodook/Zikely): parents immune from liability if they fail to protect children from danger (negligent supervision) but not if they bring/inflict danger on the child.  Note: artificial distinction.  Court considers too hot bath/child falls in and burns self to be a case of negligent supervision (no duty)—but didn’t parent create the danger? 

·           religious beliefs may be taken into consideration, e.g. Lundman v. McKown (MN 1995) considers Christian Scientist beliefs, but says parent’s religious beliefs must yield when it jeopardizes child’s life

Sovereign Immunity

·           Until the end of WWII, sovereign immunity protected federal, state, and municipal entities from suit.

·           Now, although sovereign immunity has been substantially eroded, duty concept is used to protect public officials/government acting in certain capacities.

·           Police officers have no duty to protect individual members of public because allowing tort liability would create judicial interference with executive/legislative resource allocation decisions (Riss v. City of New York (NY 1968)- police refuse to help stalked woman/lye).

·           But if police actively use a witness/informant, they do have a relationship creating a duty to protect (Schuster v. City of New York); or if they promise to help they create a duty to protect (Sorichetti v. City of New York- note: does this create a perverse incentive for the police to say nothing in response to request for help, in order to avoid duty?)

·           Municipal transportation: absent special relationship to victim, no duty to protect from criminal activity on transit authority property

·           911 calls: if direct communication between victim and operator, then special relationship creates a duty

·           Schools: have duty to protect children on school property, but duty generally ends once children leave (unless release child into dangerous situation of school’s own making, against school’s own policy: Pratt).  No duty re: quality of education.

·           Government employee’s ministerial acts (conduct requiring adherence to a governing rule, with a compulsory result) may result in government liability (yes duty)

·           Government discretionary decisions, if discretion is reasonably exercised, may not result in liability, as long as decision is carried out (no duty)—But if government agency makes a decision and then fails to carry it out, may create a duty (Friedman v. State of New York (NY 1986)— median barrier case)

·           Absent “special relationship” ME didn’t have duty to advise murder suspect of erroneous findings (Lauer v. City of New York (NY 2000))

Duty: Emotional Harm

Big picture: Courts are less concerned with protecting people from emotional harm than they are with protecting people from physical harm.  Generally, defendants have a duty to protect from emotional harm only if:

·           Defendant has caused victim reasonable fear of physical injury to himself

·           Victim has directly witnessed physical harm to a family member caused by defendant

·           “Special circumstances”: category of cases involving death of family member (botched funerals, mishandled corpses, false notice of death)

·           Loss of consortium cases (marriage relationship only)

·           Some jurisdictions create a more general tort for severe emotional distress not requiring fear of physical injury or other special circumstances: an “ordinarily sensitive person” test

Fear for Self

·           Old approach: there must be physical impact (Ward)

·           One approach in trauma cases: duty exists “where negligence causes fright from a reasonable fear of immediate personal injury, which fright is adequately demonstrated to have resulted in substantial bodily injury or sickness” (Falzone v. Busch (NJ 1965)- car hits husband; P frightened for self; Battala- failure to secure in ski lift chair; Quill- plunging airplane)

o   near-miss car & airplane crash cases: recovery granted in near-miss car crashes but denied in near-miss airplane crashes… a function of length of time of fear? Problem of eggshell psyche? (Lawson)

o   doomed victims cases—family may recover for decedent’s distress before his death in survival actions, depending on length of time victim was in distress

·           Another approach in fear of illness cases: symptomatic requirement (Metro-North Commuter RR Co. v. Buckley (1997)- asbestos exposure; worker cannot recover unless & until he manifests symptoms of disease)

·           Another approach in fear of illness cases: real risk/ “serious fear” requirement (Potter- toxic waste exposure) or “reasonable fear” requirement (Williamson- HIV needle case, actual exposure not required) or, in window situations, recovery for distress during time period between event that creates concern and results showing that no injury has occurred

Fear for Others- Negligent Infliction of Emotional Distress

·           Recovery for NIED permitted for family members at scene (or, in some states, not at scene) of victim’s physical injury.

o   New York: zone of danger rule (Tobin, Bovsin)

o   California: proximity in time and space, close kinship, severe injury (Dillon, Thing)

o   New Jersey: observation of death or injury at scene of accident (but can arrive at scene after accident), close kinship, severe injury (Portee)

o   Hawaii/Massachusetts: proximity and time & space less important; in Hawaii duty extends to remoter family members

·           If family member is mistaken as to severity of injury, recovery may be allowed (Barnhill).  But if mistaken as to identity of victim, no recovery (Barnes, Sell).

Negligent Interference with Consortium

·           Originally only husbands could claim for loss of wives’ consortium; but eventually extended to wives claiming for loss of husbands’ consortium.

·           Two major questions today:

o   extension of consortium claims to other relationships? parents may sometimes sue for loss of companionship of children but not vice versa

o   measure of damages? how to value people’s relationships?

·           Some courts have extended loss of consortium to cover non-physical injuries to spouse.

 

Exceptional Circumstances

·           Recovery may be allowed for severe emotional distress absent physical threat in cases involving negligence after a family member’s death (botched funeral, mishandled corpses, false notice of death). 

·           Gammon v. Osteopathic Hospital of Maine, Inc. (Maine 1987), case in which severed leg negligently delivered instead of father’s personal effects, says defendant has duty to prevent emotional harm that could be expected to befall an “ordinarily sensitive person”

 

Limits of Duty: Traumatic Events Where No Duty Found

·           Baby kidnapped from hospital, later returned; hospital has no duty to parents because fails the zone of danger test (Johnson v. Jamaica Hospital (Ct. App. NY 1984))

·           Also: untimely circumcision case, runaway Alzheimer’s patient case, incorrect label/overdose case—no duty owed to relatives suing in any of these cases

·           Most states deny recovery for emotional distress caused by property damage, except Hawaii (Rodrigues- flooded home)

Duty: Economic Harm

Big Picture: Courts employ various types of foreseeability tests to determine to whom defendants have a duty of due care in preventing purely economic harm. 

Abel’s criticism: The idea of foreseeability of the victim is a red herring and antithetical to the whole field of torts, in which the victim is nearly always an unforeseeable stranger. The real question is which party can more efficiently protect from economic harm.  As long as rule is clear in advance, doesn’t matter what the rule is, because parties can structure their contracts accordingly.

Information Providers

·           Duty of accountants to persons with whom accountant not in privity?  Three tests in use:

o   Modified foreseeability:

o   Near-privity: Cardozo’s bean weigher case; weigher has duty to buyer despite lack of contract because seller specifically told weigher to deliver beans to buyer.  Also Cardozo’s Ultramares; no liability because identity of harmed party not known to accountant.

o   Restatement §552: defendant must know or intend that plaintiff or group to which plaintiff belongs would rely on his information (Nycal Corporation v. KPMG Peat Marwick LLP (Mass. 1998)- negligent audit/major stock purchase)

·           Duty of lawyers to clients?  Malpractice suits: Like with doctors, courts very forgiving with lawyers as long as they can show that some in profession follow the method/procedure in question.

·           Duty of lawyers to third parties?  Sometimes attorneys owe duty to intended beneficiaries of negligently prepared wills. (Biakanja, Lucas)

·           Economic argument for not imposing broad liability on information providers: “suppliers of information cannot capture the benefit of their ‘product’ once it has entered the stream of commerce”—thus liability should be restricted when info is of a type that is valuable to many potential users, the producer cannot capture in his prices the benefits flowing to all users, and the imposition of liability to all persons harmed would raise potential costs significantly enough to discourage info production altogether.

Commercial Effects of Accidents

·           When a defendant’s negligent conduct interferes with plaintiff’s business resulting in purely economic losses, unaccompanied by property damage or personal injury, is it compensable in tort?  Three exceptions to general rule against recovery:

o   “Special relationship” cases (foreseeability of plaintiffs/class of plaintiffs: lawyers, auditors (see above), surveyors cases)

o   Private action for economic losses caused by defendant’s damage to public resource (but inconsistent outcomes in these cases)

o   Lessees who have economic losses from lost use of property (don’t bear loss of actual property damage because aren’t owners).  BUT not always: Robins Dry Dock & Repair Co. v. Flint—time charterers of boat denied recovery

o   People Express Airlines, Inc. v. Consolidated Rail Corp. (NJ 1995) rule: “A defendant owes a duty of care to take reasonable measures to avoid the risk of causing economic damages, aside from physical injury, to particular plaintiffs or plaintiffs comprising an identifiable class with respect to whom defendant knows or has reason to know are likely to suffer damages from such conduct.” (particular foreseeability)

Defenses

Big Picture: Considering victim behavior in the defenses of contributory or comparative negligence serves the goal of moral judgment; doesn’t serve goals of safety or cost-spreading. 

Comparative negligence is now the dominant system; plaintiffs’ fault does not necessarily eliminate recovery completely, but damages reduced in proportion to their fault (in modified regimes plaintiff fault >50% will bar recovery completely). 

A plaintiff’s express assumption of risk through exculpatory contract may constitute a complete defense to negligence, but courts do not enforce all exculpatory contracts.  Doctrine of implied assumption of risk has been rejected by many states.

Contributory Negligence

·           In past, CN was a total bar to recovery (up to 1970s: in all states except Wisconsin and admiralty law).

·           Limits on defense of contributory negligence:

o   statutes may bar a defense of CN if the purpose of the statute is to protect people (say children exiting school buses) from their own negligence

o   if D was reckless, no CN defense possible

o   if D failed to use a “last clear chance” to avoid injury to P, no CN defense possible (Davies v. Mann (1842))

o   refusal to impute CN, e.g. in automobile accidents, won’t impute renter-driver’s negligence to rental agency in agency’s suit against other driver

o   against rescuers, no CN defense possible

o   juries: sometimes judges ameliorate all-or-nothing CN rule by sending close questions involving CN to a jury—often jurors will ignore the all-or-nothing instruction and deliver a reduced amount of damages for P

Comparative Negligence

·           Only a few states still use contributory negligence; most now use modified comparative negligence schemes.

·           Three types of comparative negligence:

o   Pure: defendants & plaintiffs pay in direct proportion to their fault

o   Modified1: P can recover in proportion to fault only if P’s negligence is “not as great as” D’s

o   Modified2: P can recover in proportion to fault only if P’s negligence is “no greater than” D’s

·           Model statute: Uniform Comparative Fault Act- p. 441 (a pure version)

·           What should triers of fact compare in determining fault percentages?

o   Most states with pure versions have concluded that recklessness should be compared with negligence; but states have been reluctant to follow logic of comparison when plaintiff’s conduct is “socially offensive.”

o   Under Uniform Act, courts are not precluded from comparing intentional torts and negligence if they find it appropriate.

·           How to combine the fault %s of multiple defendants?

o   Uniform act does not set off judgments against one another-- intended to maximize insurance recoveries.

o   Loss from one D’s insolvency often spread among remaining Ds.

o   In multiparty disputes in which some Ds, but not all, settle, various approaches to determining what remaining Ds owe if they are found negligent at trial.

·           Imputation of negligence from victim to P: In loss of consortium, wrongful death, & bystander emotional distress cases, majority of states hold that actions are “derivative”—defenses available against victim are available against P.  Parent-child cases: most courts refuse to impute negligence of parents to children. 

·           Effects of comparative negligence on:

o   rescuers: now defendants argue that rescuers no longer need special protection from liability

o   drinking plaintiff: now might find provider of alcohol or car comparatively negligent

o   subsequent harm: North Dakota’s adoption of comparative negligence and several liability led courts to decide legislative intent dictated D1 not responsible for medical aggravation by D2

o   economic cases: general view applies comparative negligence doctrine to economic cases

Express Assumption of Risk

·           Exculpatory or hold-harmless contracts: (1) Will the courts enforce a hold-harmless contract, considering the type of activity involved?  (2) If so, is the contract in question sufficiently clear?

·           Restatement view of exculpatory agreements: they should be upheld if they are (1) freely and fairly made, (2) between parties who are in an equal bargaining position, (3) there is no social interest with which it interferes.

·           In determining whether exculpatory contract violates “social interest” courts may consider whether business is of a type thought suitable for public regulation, provides service important to public, open to all or class of public, disparity of bargaining power, standarized adhesion contract, purchaser placed under control of seller & subject to risk of carelessness by seller as a result of the contract.  (Tunkl)

·           When defendant is in better position to control the danger, and danger isn’t inherent in sport, defendant such as ski resort may be barred from using exculpatory contract as a defense.  (Dalury v. S-K-I, Ltd. (Vt. 1995)- metal pole) 

·           Reckless or gross negligence may not be disclaimed by contract.

·           Ability of adults to sign releases that bind members of their family is in doubt.

·          Post-injury release contracts: basically settlement contracts.  After signing a post-injury release contract, can a party later sue for injuries that manifest themselves post-signing?

Implied Assumption of Risk

·           Controversial area.  Disagreement over whether the term “implied assumption of risk” plays any useful role in negligence litigation—does it serve a purpose distinct from other aspects of the negligence framework?

·           Four requirements to estab. defense of assumption of risk: (1) P must have knowledge of facts constituting a dangerous condition, (2) P must know the condition is dangerous, (3) P must appreciate the nature and extent of danger, (4) P must voluntarily expose himself to danger.  (Davenport v. Cotton Hope Plantation Horizontal Property Regime (S.Carolina 1998)- stair lights)

·           Primary implied assumption of risk: P impliedly assumes risks inherent in a particular activity—another way of saying D had no duty of care—not really an affirmative defense, but part of initial negligence analysis.

o   Litigation between participants in amateur sports?  Knight v. Jewett (Cal. 1992): Liability only for intentional or reckless conduct. Fear that vigorous participation would be chilled by imposition of liability for negligence.  Different if one of the participants is drunk (Freeman v. Hale).

o   If a hazard of an activity is “invited and foreseen,” then plaintiff assumed risk by participating?  (Murphy v. Steeplechase Amusement Co. (Ct App. NY 1929)—Cardozo/ the Flopper)

o   Swimming pool cases: O’Sullivan v. Shaw- open and obvious danger of diving into a swimming pool bars recovery against owner of pool, despite statutory abolition of assumption of risk as a defense.  Issue of duty—obviousness of risk negates any duty.

·           Secondary implied assumption of risk: P knowingly encounters risk created by D’s negligence—true defense because asserted only after P establishes prima facie case of neglience against D. 

o   Some states (RI) treat (secondary implied) assumption of risk and contributory negligence as separate defenses, arguing that the exercise of free will in encountering the risk makes the 2 concepts distinct. 

o   Other states (WV, SC) adopt a comparative assumption of risk rule: P not barred from recovery by assumption of risk doctrine unless his degree of fault arising therefrom equals or exceeds the combined fault or negligence of the other parties.         

o   Baseball spectator injuries: If park provides adequate space behind screen, then stadium owner owes no duty of care to people injured by foul balls outside the screened area. 

·           NJ was first state to reject the existence of assumption of risk—in 1963, before comparative negligence became popular, argued that negligence and contributory negligence concepts cover all bases without adding assumption of risk into the equation.

·           Employment context: doctrine of assumed risk significant bar to employee tort suits in 19^th century, before emergence of workers’ compensation legislation.  Economic argument that courts were allowing freedom of contract—recognizing worker’s desire to market his taste for risk (higher wages for higher assumption of risk?).  But this not historically believable given subsequent workers’ movement.

·           Firefighter’s rule: waives the duty of care that third parties owe firefighters and police officers; adopted in Kreski on public policy rationales that duty of care owed by third party to firefighter is replaced by third party’s tax contributions.  This relationship doesn’t exist between volunteer firefighter & third party; to apply rule to volunteers would essentially resurrect the rejected doctrine of assumption of risk.  (Roberts v. Vaughn (Michigan 1998))

Strict Liability

Big Picture: Strict liability may apply in the case of “ultrahazardous”/ “abnormally dangerous” activity.

·           Considerable confusion and contradiction in 19^th-early 20^th century cases carving out areas of strict liability:

o   Rylands I (1866): If D brings onto land “anything likely to do mischief” and it escapes, he is prima facie answerable for all the damage which is the natural consequence of its escape.

o   Rylands II (1868): D strictly liable for “non-natural” use of land.

o   No strict liability for exploding boiler, animal attacks on people (unless animal known to be dangerous), shipping & highway cases.  Yes strict liability in dynamite/rock blasting cases, cattle trespass cases.  Distinctions very thin.

·           Restatement §§ 519 & 520: attempt to generalize when strict liability exists.  First restatement uses “ultrahazardous” language, Second Restatement uses “abnormally dangerous” language:

o    § 520 Abnormally Dangerous Activities
In determining whether an activity is abnormally dangerous, the following factors are to be considered:
(a)  existence of a high degree of risk of some harm to the person, land or chattels of others;
(b)  likelihood that the harm that results from it will be great;
(c)  inability to eliminate the risk by the exercise of reasonable care;
(d)  extent to which the activity is not a matter of common usage;
(e)  inappropriateness of the activity to the place where it is carried on; and
(f)  extent to which its value to the community is outweighed by its dangerous attributes.

·           Modern application of Restatement principles.  Posner’s view on purpose of strict liability for ultrahazardous activity: “By making the actor strictly liable—by denying him in other words an excuse based on his inability to avoid accidents by being more careful—we give him an incentive, missing in a negligence regime, to experiment with methods of preventing accidents that involve not greater exertions of care, assumed to be futile, but instead relocating, changing, or reducing (perhaps to the vanishing point) the activity giving rise to the accident.”  Argues chemical transport case is proper for negligence, not strict liability, analysis.  (Indiana Harbor Belt Railroad Co. v. American Cyanamid Co. (7^th Cir. 1990)

o   Abel’s response: Should courts be making the decisions about the kind of activities we want to subsidize as a society?  Should judges be deciding the best place to locate railyards?  Why should individual victims have to subsidize the industries responsible for their injuries; if we value the activity, why not have society as a whole bear the costs of the accidents? 

·           Restatement § 524: contributory negligence not a defense to strict liability except when p’s conduct involves “knowingly and unreasonably subjecting himself to the risk of harm from the activity”

Products Liability

Big Picture:

(1) Manufacturers are strictly liable for injuries caused by manufacturing defects in their products. 

(2) Design defects are judged by either a consumer expectations standard (true strict liability) or a reasonable alternative design standard (more negligence-like). 

(3) Strict liability for failure to warn is subject to a knowledge requirement (manufacturers are not liable for failure to warn of dangers unknowable at the time they sold the products).

Products Liability- General

·           Products liability doctrine evolves from privity doctrine (contract) to exceptions under the negligence principle to strict liability system.

·           MacPherson v. Buick Motor Co. (NY 1916): Cardozo says duty comes from [tort] law not contract; eliminates contractual privity requirement.  “If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger.”  Liability can extend to all foreseeable users

·           Warranty development: implied warranty of merchantability and implied warranty of fitness for particular purpose used to hold retailers liable- codified in Uniform Sales Act § 15 and UCC §§ 2-314 and 2-315.  Courts used many devices to get around tradition that warranties ran only between parties in contractual privity: wife as husband’s agent in purchasing bread, etc.

·           Escola v. Coca Cola Bottling Co. of Fresno (CA 1944): Traynor concurrence argues for strict liability rather than negligence standard for manufacturers. Argues (1) increased safety, (2) cost spreading, (3) moral argument.  Adopted as holding in Greenman in 1963.  Extended to include strict liability for retailers (Vandermark) and manufacturers’ strict liability to bystanders (Elmore).

·           Restatement Third: Products Liability: sellers or distributors who sell or distribute defective product subject to liability for harm to persons or property caused by defect.  Breaks down ways in which product might be defective: manufacturing defect, design defect, instructions/warnings defect.

·           Strict liability extended to bailors, franchisors, some successor corporations, but not to financers.

·           No strict liability for sales of used goods.

·           No strict liability for defective design in case of government contractors when specifications approved by government and product met the specifications and supplier warned govt about dangers known to supplier and not to govt.

·           4 Ways in Which Strict Liability Increases Safety over Negligence:

o   innovation

o   no more jury false negatives on negligence

o   some people deterred from bringing legitimate cases under negligence regime by fear of ability to prove

o   under strict liability regime, price increases, so fewer people will buy dangerous products

Manufacturing Defects

·           Most cases involve latent defects

·          Issues more likely to be practical than theoretical—e.g. causality issues, destruction of product means lack of evidence.

Design Defects

·           Two tests for showing design defect:

o   Consumer expectations test: Appropriate in cases in which consumers actually have expectations, e.g. if a car explodes while idling at a stop light.  Products Restatement applies consumer expectations to bones-in-food cases.

o   Reasonable alternative design test: Appropriate in cases involving more technical issues, when consumers don’t have expectations.  Employed in Soule (1994 car toe pan) and Camacho (1988 motorcycle leg guard) cases.   

§  Seven factors in risk-benefit analysis: (1) utility of product, (2) likelihood that product will cause injury and probable seriousness of injury, (3) availability of substitute product, (4) mfr’s ability to make product safer without diminishing its utility, (5) user’s ability to avoid danger by exercise of care, (6) user’s anticipated awareness of dangers inherent in product, (7) feasibility of mfr spreading loss.    

§  Problem with risk-utility analysis is that different results in different cases/types of accidents, send conflicting signals to mfrs.

Safety Instructions and Warnings

·           No duty to warn of commonly known dangers.

·           Two types of warnings:

o   Proper use instructions/warnings: e.g. don’t remove blade guard (Hood; warning sufficient)

o   Irreducible danger warnings: e.g. many pharmaceutical warnings.

·           Criteria for determining adequacy of warning (Pittman):

o   warning must adequately indicate the scope of the danger

o   warning must reasonably communicate the extent of seriousness of harm that could result from misuse

o   physical aspects of warning must be adequate to alert a reasonably prudent person to the danger

o   simple directive warning may be inadequate when it fails to indicate the consequences

o   means to convey warning must be adequate.

·           Heeding presumption: party responsible for inadequate warning must show that user would not have heeded an adequate warning.

·           Interplay of design and warning: open & obvious rule, but warnings will not inevitably defeat liability for a product’s defective design.

·           Misuse of products: not a complete defense if misuse/unintended use was foreseeable.

·           Learned intermediary doctrine: Learned intermediary doctrine generally shields prescription drug manufacturers from liability if sufficient warning given to prescribing doctors.  Exceptions: mass immunizations, when FDA mandates direct consumer warning (e.g. birth control), advertising to consumers. 

·           State of the art requirement: Defendant does not have to warn of risks unknown and undiscoverable at time product sold (hindsight doctrine of Bashada abandoned).  But burden of proof on defendant to show whether and when the relevant technical information became available.  Duty to warn post-sale on basically a negligence standard.

 

Defenses to Strict Liability

·           Consumer’s conduct other than failure to discover or guard against a product defect is subject to comparative responsibility.  (General Motors Corporation v. Sanchez (TX 1999)

·           Texas (and other states?) has different thresholds for comparative responsibility in negligence (P may recover if less than 50 percent) and strict liability (P may recover if less than 60 percent responsible).

·           Maryland law: defense of contributory negligence doesn’t apply to strict liability claims.

·           Depending on state, P’s  release/express assumption of risk may serve as a defense to strict liability claim.

Manufacturer’s Strict Liability for Products Used in Workplace

·           Employees can simultaneously collect workmen’s compensation benefits from employer and sue manufacturer of product that caused their injury.  If their tort action against the manufacturer is successful, they may have to return the duplicative workmen’s comp benefits.

·           If third party (employer) modifies a safe product, causing employee’s injury, manufacturer not strictly liable for design defect (Jones- printing press guard).  But manufacturer may be liable for failure to warn against danger of foreseeable alteration of product (Liriano- meat grinder), although bulk suppliers to large companies may have duty only to warn companies and not the individual employees (Adams- TDI).

·           Contracts between employers and manufacturers containing disclaimers absolving manufacturer of liability for product may be enforced against employees as well as employers (Scarangella- backing-up school buses; Buettner- ironer); but in other states, not enforced against employees (Ferragamo- trolley car PVCs).

·           Some states have blended pure Tort system (employer and manufacturer pay employee in proportion to their fault) and pure WC system (employer pays WC benefits, manufacturer pays full tort damages, employer has subrogation rights over manufacturer’s duplicative payments to employee) to create blended system (employer pays up to maximum WC benefits, according to his fault, manufacturer pays tort damages minus employer’s share of fault). 

Hybrid Product-Service Transactions

·           Sometimes strict liability will apply to hybrid service-product transactions, other times not—distinctions weak, based on centrality of product to the service.  E.g.:

o   Hospital implants defective prosthesis- hospital not strict liable (Royer)

o   Dentist uses needle that breaks- dentist not strict liable (Magrine)

o   Salon applies defective hair solution- salon is strictly liable (Newmark)

·           Is there a difference between product and non-product torts that makes strict liability logical in products cases but not in others?