Torts Outline

Prof. Joseph (Spring 2015)

Spencer Shapiro
Torts: Overview
I.
a.

Historical Perspective

Trespass: purpose of remedy was first punishment of crime but later satisfaction of
injured partys claim for redress

i.

Only direct and forcible injuries

ii.

No proof of actual damage

iii.

Liability without regard to defendants fault

b.

Trespass on case: developed out of special writ; most modern tort and contract law

i.

Other tangible injuries to person or property

ii.

Damage must be proved

iii.

Proof of culpability (wrongful intent or conduct)

II.

Basic Model of Torts Action

a.

A injures B. Does B bear loss? Or is the loss shifted to A?

b.

Rules/Doctrine/The Law

c.

Policy/Public Policies/Social Policy

III.

Three Categories of Torts

a.

Intentional torts

b.

Negligence (Weaver v. Ward, Brown v. Kendall)

i.
c.
i.

Creates unreasonable risk of causing harm

Strict Liability (Spano v. Perini)
Neither intentional nor negligent but subject to liability because of public policy

Intentional Interference with Persons or Property

I.

Five Torts arise from original writ of trespass

a.

Battery: freedom from harmful or offensive touching

b.

Assault: freedom from reasonable apprehension of imminent battery

c.

False Imprisonment: freedom from total bodily confinement

d.

Trespass to Land: possessory interest in land

e.

Trespass to Chattels: possessory interest in chattel; requires actual damages

II.

Elements of Intentional Torts

a.

Volitional act

b.

Intent

c.

Invasion of protect interest

d.

Causation

i.

Cause in fact

ii.

Extent of liability

e.

Damages

i.

Actual/compensatory

ii.

Punitive

iii.

Nominal (not available for negligence)

f.

III.
a.

[Consent/Privilege]

Intent
Restatement (Second) of Torts 8(A): Intent requires

i.

Purpose of invading protected interest or

ii.
Battaglia)

Substantial certainty that conduct will invade protected interest (Spivey v.

iii.

[Only need second if you dont have first; first implies second]

b.

Extent of liability: everything that results from conduct, if you can show it followed from
the conduct

c.

Liable even if conduct was result of a mistake (Ranson v. Kittner)

d.

Court generally applies objective standard

e.

Intent for minors

i.
Generally liable for infliction of intentional torts; may depend on age to some
extent (Garratt v. Dailey)
f.

Intent for mentally ill

i.

Generally liable for infliction of intentional torts (McGuire v. Almy)

ii.

Policy considerations

1.

Difficulty of determining mental capacity

2.

Floodgates

iii.

Exception: Institutionalized mentally disabled patients who cannot control or

appreciate consequences of conduct are not held liable for injuries caused to those employed to care for
them

g.

Transferred intent applies whenever

i.

The tort was intended and

ii.

The resulting harm

iii.

Falls within the scope of the old action of trespass (one of the five)

iv.

If you invade one protect interest intending to invade another, you are still liable

v.
(Talmage v. Smith)

If you invade one persons right intending to invade anothers, you are liable

IV.

Battery

a.

Restatement (Second) Torts

i.
1.

13: Harmful Contact: An actor is liable if

he acts intending to cause a harmful or offensive contact with the person

of the other or a third person, or an imminent apprehension of such a contact, and

2.

a harmful contact with the person of the other directly or indirectly

results.

ii.
1.

18: Offensive Contact: An actor is liable if

he acts intending to cause a harmful or offensive contact with the person

of the other or a third person, or an imminent apprehension of such a contact, and

2.

an offensive contact with the person of the other directly or indirectly

results.

3.

An act which is not done with the intention stated in Subsection (1, a)
does not make the actor liable to the other for a mere offensive contact with the other's person although
the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the
risk threatened bodily harm.

4.

[Offensive: would offend a reasonable persons sense of dignity]

b.

Defendant still liable if injuries are more extensive than reasonable person might have
anticipated

c.

Defendant can be found liable even if injury was not foreseen

d.

Plaintiff does not have to know about the offensive/harmful touching when it occurs (ex:
transmission of STDs)

e.

Battery requires touching with body or instrument; extends to object closely and
intimately connected to the body (Cole v. Turner, Fisher v. Carrousel Motor Hotel Inc.)

f.

Implied consent: certain amounts of touching are expected in experiences of everyday life
(Wallace v. Rosen)

V.
a.

Assault
Restatement 21: An actor is liable if

i.
he acts intending to cause a harmful or offensive contact with the person of the
other or a third person, or an imminent apprehension of such a contact, and

ii.

the other is thereby put in such imminent apprehension.

b.

No actual damages need be proved

c.

Must be known at the time it occurs

d.

Threatening with words does not constitute assault

e.

Civil v. Criminal

i.
Civil- apprehension required, not necessary that defendant have actual ability to
carry out threatened contact (Western Union Telegraph Co. v. Hill)
ii.
Criminal- apprehension unnecessary, occurs if defendant has intent and ability to
carry out threatened contact

VI.

False Imprisonment

a.

Restatement 35: An actor is liable if

i.
the actor, and

he acts intending to confine the other or a third person within boundaries fixed by

ii.

his act directly or indirectly results in such a confinement of the other, and

iii.

the other is conscious of the confinement or is harmed by it

b.

No actual damages need be proved

c.

Nominal damages may be awarded

d.

If one exit is locked but another reasonable means of escape is left open > no
imprisonment

i.
Unreasonable if it involves exposure of person, material harm to clothing, or
danger of substantial harm to another; also if plaintiff does not know of its existence & it is not apparent
e.
f.
g.

If only means of escape could cause physical danger to plaintiff and he could remain
safely imprisoned, he may not recover for injuries in making his escape
Cannot be imprisoned beyond consent (Big Town Nursing Home v. Newman)
Must be conscious of confinement at time it occurs, but not necessarily afterward (Parvi
v. City of Kingston)

VII.

Intentional Infliction of Emotional Distress

a.

Four elements (State Rubbish Collectors Assn v. Siliznoff)

i.
Conduct is intentional or reckless (reckless is utter disregard for what would
occur from act; intent does not include transferred intent)
ii.
Conduct is extreme and outrageous (goes beyond all possible bounds of decency
in civilized society; who the plaintiff is makes a difference)
iii.

Causal connection between wrongful conduct and emotional distress (Harris v.

Jones; defendant will often argue pre-existing condition)

iv.
Emotional distress is severe (so severe that no reasonable person could be
expected to endure it; goes beyond mere insults/annoyances- Slocum v. Food Fair Stores of Florida) >
Actual damages (not nominal)
b.

Restatement 46: Outrageous Conduct Causing Severe Emotional Distress

i.
One who by extreme and outrageous conduct intentionally or recklessly causes
severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm
to the other results from it, for such bodily harm.
ii.
Where such conduct is directed at a third person, the actor is subject to liability if
he intentionally or recklessly causes severe emotional distress
1.

to a member of such person's immediate family who is present at the

time, whether or not such distress results in bodily harm, or

2.

to any other person who is present at the time, if such distress results in
bodily harm.

c.

Defendants are not liable for everything that stems from IIED (cut-off)

i.
d.
e.
VIII.

Policy reasons: would be too extensive

Common carriers & innkeepers are held to higher standard of care

Generally IIED does not apply for eyewitnesses unless act was directed at plaintiff or
defendant knew extreme emotional distress was substantially certain to follow (Taylor v. Vallelunga)
Trespass to Land

a.

Intentional invasion of right to exclusive possession of land

b.

Intentional even when defendant honestly & reasonably believes land is his

c.

Nominal damages possible (Dougherty v. Stepp)

d.

Defendants conduct being beneficial does not affect liability

e.

Proof of actual damage not required (Required for negligent trespass)

f.

Land extends both above and below property (Herrin v. Sutherland)

g.

Leaving something on someones land without or beyond consent constitutes trespass

(Rogers v. Board of Road Com'rs for Kent County)

IX.
a.

Trespass to Chattels
Freedom from intermeddling with inviolability of thing (CompuServe Inc. v. Cyber
Promotions; Glidden v. Szybiak)

b.

Restatement 218:

i.

Chattel is impaired in its condition or

ii.

Possessor is deprived of use of chattel for significant period of time or

iii.

Bodily harm is caused to possessor or harm is caused to some person or thing in

which the possessor has a legally protected interest

c.

Conduct treated as intentional even if defendant is acting under innocent mistake

d.

Requires actual damages (no nominal)

X.
a.

Conversion
Comes from common law tort of trover

b.

Appropriation of plaintiffs property that so seriously interferes with right of another to

control it that the tortfeasor will be required to make compensation for market value at time and place of
conversion

c.

Money & negotiable instruments are not treated same as tangible chattel

d.

Forced sale: payment of chattels value by a converter effectuates a common law forced
sale of chattel and precludes owners further recovery for damages

e.

Where conversion falls short > trespass to chattels

f.

For conversion of documents: (Pearson v. Dodd)

i.

Must be substantially deprived and

ii.

Information must have been gathered and arranged at cost as commodity

g.

Restatement 222(A)

i.
intentional exercise of dominion or control over chattel which so seriously
interferes with right of another to control it that the actor may justly be required to pay the other the full
value of the chattel
ii.

Seriousness is determined by:

1.

extent and duration of actor's exercise of dominion

2.

actor's intent

3.

actor's good faith

4.

extent and duration of resulting interference

5.

harm to chattel

6.

inconvenience and expense to other

iii.

Ways of converting chattel:

1.

acquiring possession

2.

damaging or altering

3.

using

4.

receiving

5.

disposing

6.

misdelivering

7.

refusing to surrender

h.

In some states, there may be a separate act of conversion for initial taking of possession
and later refusal to return on demand (Restatement 229)

i.
i.

Effect of Good Faith

Individual may be subject to liability even if not subjectively at fault

1.

When defendant intends to affect chattel in a manner inconsistent with

plaintiff's right of control, the fact that he acted in good faith and under mistake does not prevent liability

2.

Good faith purchasers are protected only if goods were obtained by

converter through fraud rather than theft because title passes in a fraudulent transaction subject to
rescission

ii.
UCC provides bona fide purchaser to be protected in a sale by goods from a
merchant who deals in goods of that kind

XI.

Privileges

a.

Consent

i.

Two Types:

1.

Express

2.

Implied (OBrien v. Cunard)

ii.

Consent Privileges:

1.

Custom

2.

Certain relationships

iii.

Medical care providers may act in absence of express consent if: (Mohr v.
Williams)

1.

patient is unable to give consent

2.

there is a risk of serious bodily harm if treatment is delayed

3.

a reasonable person would consent to treatment under circumstances and

4.

physician has no reason to believe patient would refuse treatment under

the circumstances

iv.
Informed consent: requires physician or surgeon to disclose to the patient the
risks of proposed medical or surgical treatment; failure to do so began to be treated as negligence around
1960s
v.
Inc.)
vi.

No consent if it goes beyond level of consent (Hackbart v. Cincinnati Bengals,

Consent under fraud is not consent (De May v. Roberts)

b.

Self-Defense

i.

Existence of Privilege

1.
another

Use of reasonable force to defend against threatened battery on part of

2.

Affirmative defense pleaded and proved by defendant

3.

Sometimes burden is reversed if defendant is police officer

ii.

Retaliation

1.

When battery is no longer threatened, privilege terminates

2.
initially threatened

Once person has retreated, he has right to self-defense against person he

iii.

Reasonable belief
1.
Privilege exists when defendant reasonably believes force is necessary to
protect himself, even if there is in fact no necessity
2.

Reasonable mistake will protect him

3.

Self preservation is first law of nature

4.

Liable only if no reasonable grounds to fear immediate attack

iv.

Provocation

1.

Insults, verbal threats, language do not justify self-defense

2.

Offending words might be introduced to oppose punitive damages

3.
may be privileged to defend

If abusive words accompanied by actual threat of physical violence >

4.
When accompanied by overt hostile act, oral abuse may amount to
challenge to fight and consent. 69
v.
1.
necessary for protection

Amount of Force
Privilege limited to use of force that is or reasonably appears to be

2.

Difference in age, size, and strength are considerations

3.
Deadly weapon only justified if defendant shows reasonable
apprehension of loss of life or great bodily injury
vi.

Retreat
1.
Disagreement over whether defendant must retreat if he can without
increasing his danger, rather than stand his ground and use deadly force
2.

All agree he may use force short of likely to cause serious injury

3.

Restatement 65 does not require retreat within own home

4.
In determining whether doubt that retreat can be made is reasonable,
every allowance must be made for predicament.
vii.

Penal Law 35 (New York)

1.
reasonable point

Duty to retreat; if you cannot, then you can only use force up to

2.
Physical force: self-defense; you can be mistaken in your belief; just has
to be "reasonable" (subjective)
3.
Deadly physical force: can only be justified if the other person is using or
about to use deadly physical force; not if you can retreat; kidnapping/rape/sodomy or robbery (robbery is
person-to-person, physically taking something from someone else); burglary (dwelling; felony)
c.
i.

Defense of Others
Reasonable mistake

1.
Some courts hold that intervenor steps into shoes of person he is
defending and is privileged only when that person would be privileged to defend himself
2.

If he intervenes to help aggressor, he is liable

3.
Other courts hold that he is privileged even when he is mistaken in his
belief that intervention is necessary
d.

Defense of Property

i.
Privilege to defend one's land against an intruder is limited to unlawful
intrusions; there is no privilege to use deadly force to defend against those who are not authorized to enter
ii.

Person has to be there in order to defend property (Katko v.Briney)

1.
Exception: if danger used prevent robbery/burglary is obvious, owner is
not liable for injury (ex: barbed wire fence)
iii.

Mistake is privileged if you reasonably believe a burglary is going to occur

iv.
There are limitations:

Privilege to defend property is limited to use of force reasonably necessary.

1.

Before using force, a verbal command must be made

2.
When invasion is peaceful and occurs in presence of possessor, no force
is reasonable unless request has been made to depart
3.
Request need not be made when conduct of intruder indicates that
request would be useless or unsafe
e.

Recovery of Property

i.

Mistake is not privileged

ii.
robbery

Use of Force to Recapture Chattel: May use physical force to prevent/terminate

1.
Must be in fresh pursuit (prompt discovery and prompt & persistent
efforts to recover) 103 (Hodgeden v. Hubbard)
2.

Force not justified until demand has been made to return property

3.
Not reasonable to use force calculated to inflict serious bodily harm;
motivate by policy that there is higher value on taking of a life than property
4.
If wrongdoer resists, the owner may use any force reasonably required to
prevent property from being taken & defend his own person
5.
must resort to legal remedy)
iii.

UCC 9-503: Conditional sales (seller may retake peaceably; if not, he

Re-entry upon real property

1.
Lawful owner with forcible entry and detainer remedy; rightful owner
can retake possession of his land if he does not use force

iv.
1.

Shopkeepers Privilege
Reasonable grounds & reasonable times

2.
When investigating shoplifting, shopkeepers open themselves up to false
imprisonment charges. Privilege needed.

3.
f.

NY General Business Law 218

Necessity

i.
Constitutional provisions against taking private property for public use without
due compensation do not apply to action under police power to protect the public against the spread of
contagious diseases or devastating fires and floods or other exigencies
ii.
Defendant is obligated to compensate plaintiff even though intentional entry onto
land was privileged and not tortious
iii.

Generally does not extend to taking of life

iv.
35.05 (1): acts are justifiable if required or authorized by law or judicial decree,
or is performed by public servant in reasonable exercise of his official powers
v.
(Surocco v. Geary)
vi.

35.05 (2): justifiable when conduct is necessary as an emergency measure

Compensation generally must still be made for destruction of anothers property

even though there is a privilege (Vincent v. Lake Erie Transp. Co.)
g.

i.

Authority of Law
Arrest with Warrant

1.

Under warrant is ministerial; only liable if officer acts improperly

2.

If court issuing warrant is without jurisdiction > officer is not protected

3.
face"

If court has jurisdiction > officer is privileged if warrant is "fair on its

4.

Warrant protects officer only if he actually carries out order given to him

ii.

Arrest without Warrant

1.
Either for felony or breach of peace that is being committed or
reasonably appears about to be committed
2.
Officer if he has info that provides reasonable grounds that felony has
been committed and he has right person. Citizen if felony has been committed and he has reasonable
grounds to suspect person (and he takes full risk if there is no crime)
3.
For past breach of peace that is not felony > only if act committed in his
presence and he is in fresh pursuit
4.
if committed in his presence)

For misdemeanors > generally no arrest (now, sometimes an officer can

5.

Liable for use of excessive force

h.

Discipline

i.

Parent-child privilege: can't exceed (35.10)

ii.

Teachers privilege: very limited

i.

Justification

i.
A lawful or sufficient reason for one's acts or omissions; any fact that prevents an
act from being wrongful
ii.
Purpose of preventing others from inflicting personal injuries or interfering with
or damaging real or personal property in one's lawful custody (Sindle v. NYC Transit Authority)
iii.

35.20 & 35.25 & General Business Law 218: citing penal statutes as source of
common law rule
Negligence

I.

Overview of Negligence

a.

Most civil litigation

b.

Economic & non-economic losses

c.

No nominal damages

d.

Punitive damages for willful, wanton, or malicious conduct

e.

Costs drive the system (damages, settlement, trial, etc.)

f.

Judge-jury standard: Defendant entitled to judgment as matter of law if plaintiff fails to

establish a prime facie case of negligence, or under no reasonable view of evidence could jury find in
favor of plaintiff

g.

Conduct that falls below standard of care established by law for protection of others
against unreasonable risk of herm

h.

II.
a.

Contributory negligence (affirmative defense)

Elements of Cause of Action

Duty (law may impose no duty or limited duty)

b.

Breach of duty

c.

Causation

i.

Cause in fact: more likely than not substantive cause

ii.

Proximate cause: foreseeable

d.

III.

Damages

Restatement 281: Elements of Cause of Action for Negligence: Liable for invasion against
interest of another if:

a.
b.

the interest invaded is protected against unintentional invasion, and

the conduct of the actor is negligent with respect to the other, or a class of persons within
which he is included, and

c.

the actor's conduct is a legal cause of the invasion, and

d.

the other has not so conducted himself as to disable himself from bringing an action for
such invasion.

IV.

Duty

a.

General duty: act as reasonable person would

b.

No duty: immunity, for policy reasons

c.

Limited duty: court defines duty and extent of it; civil statute defines standard of care)

d.

Court may also adopt standard of care from criminal/penal statute

e.
i.

Determining Duty, No Duty, & Limited Duty

Three areas in which duty to care is central to establishing liability

1.
act of third party or natural event that caused physical harm to plaintiff
that defendant has failed to take affirmative steps to prevent or ameliorate
2.

negligent act causes non-physical harm or pure economic harm

3.
negligent act causes losses in birth or conception where traditional
categorizations of personhood are incapable of bestowing cause of action

ii.

No Duty: Privilege

1.
Privilege: avoids liability for tortious conduct only under particular
circumstances that make it just and reasonable not to impose liability
2.

Gratuitous bailee: liable only for gross negligence

3.

Driver to gratuitous guest: liable only for aggravated misconduct

4.
Third-party not in privity of contract (Winterbottom v. Wright; H.R.
Moch Co. v. Rensselaer Water Co.; Clagett v. Dacy)
a.
Privity of contract: Relationship bet. the parties to a contract,
allowing them to sue each other for personal injuries associated with breach of contract but preventing a
third party from doing so
i.
contract

Immunity for foreseeable harm to the point of privity of

ii.
Applies in malpractice cases: third party cannot recover
for malpractice affecting third party (Clagett v. Dacy)
iii.

Exceptions:
1.
Foreseeability outweighs cutting off of liability
> a duty may be imposed (Ex: When manufacturing automobile, it is foreseeable that plaintiff could be
harmed by manufacturer's negligence in failing to inspect the parts of the car. (MacPherson v. Buick
Motor Co.)
2.
Beneficiaries of will can recover without privity
of contract (beneficiaries are close to the contractual relation)
3.
get liability without privity of contract

5.
a.

Certain (very strong) types of reliance cases can

Failure to act:
No duty to take action

b.
No affirmative duty to protect a third party who is in danger
(Hegel v. Langsam; Perry v. S.N. & S.N)
c.

No general duty to control conduct of third party

d.

Exceptions:

i.
Assumption of Duty: defendant assumes responsibility
to act and such undertaking increases risk of such harm or is relied upon by plaintiff to her detriment;
springs from defendant's voluntary undertaking & plaintiff's detrimental reliance upon it
1.
May be protected by Public Health Law 3000a: Good Samaritan law (Designed to protect those who provide voluntary medical treatment in an
emergency > not liable for damages sustained while providing treatment unless they were caused by gross
negligence; If person has no training > reasonable person standard)
ii.

Special Relationship: undertaking of a duty

1.
Defendant stands in special relation to plaintiff
that requires him to exercise affirmative care to protect him against conduct of 3rd person OR
2.
Defendant stands in a special relation to third
person that gives him power of control over person's activities; required to use reasonable care to exercise
that control to prevent third person from injuring plaintiff (Restatement 319)
3.
Hicks)

Invitor-invitee relationship (L.S. Ayres & Co. v.

4.

Common carrier and passenger

5.

Innkeeper and guest

6.

Temporary legal custodian and his charge

7.
duty to take reasonable affirmative action to aid him

Defendant injures party by his own negligence >

8.
Defendant creates dangerous condition on
highway > duty to take reasonable precautions against injury to persons using it
9.
Special relationship giving rise
to particularized foreseeability: considerations warrant a standard of foreseeability that is based on
"particular knowledge" or "special reason to know" that a "particular plaintiff" or "identifiable class of
plaintiffs" would suffer a "particular type" of injury > duty might attach (J.S. and M.S. v. R.T.H.; Tarasoff
v. Regents of University of California)

6.

Owners & Occupiers of Land

a.
Outside the Premises: Generally no duty upon landholder to
protect persons outside premises (Taylor v. Olsen)
i.
eliminated

Distinction between urban & rural areas has been largely

ii.

Exceptions:

1.
Landowner is liable for negligence if he knows
or should have know that the tree is defective & fails to take reasonable precautions (foreseeability alone
is insufficient to show this)
2.
Factor balancing to determine whether owner of
land abutting a rural highway owes a duty (traffic patterns, land use, etc.)
3.
Restatement 840(2): A possessor of land who
knows or has reason to know that a public nuisance caused by natural conditions exists on his land near a
public highway, is subject to liability for failure to exercise reasonable care to prevent an unreasonable
risk of harm to persons using the highway.
4.
Abutting landowners may not so use land as to
interfere with rights of persons lawfully using the highways (Salevan v. Wilmington Park, Inc.)
5.
Once a landowner alters a condition of his land,
it becomes an artificial one for the purposes of tort law and owner must exercise reasonable care for the
protection of those outside of the premises
b.
On the Premises: 3 categories (NY & CA abolished the
distinctions but most states still retain them; Rowland v. Christian; Basso v. Miller)
i.
Trespassers: owner of land traditionally owes no duty to
trespasser (Sheehan v. St. Paul & Duluth Ry. Co.)
1.

Exceptions:

a.
discovered: limited duty arises at moment of discovery

Trespasser whose presence has been

b.
land: owner required to anticipate and take reasonable care

Frequent trespassers on limited area of

c.
Tolerated intruders: owners continued
toleration amounts to permission so that plaintiff becomes licensee
d.

Dangerous conditions obvious to owner

ii.
Licensees: one who enter premises of owner by
permission, but for his own purposes (includes social guests); limited duty to warn of hidden dangers
(Barmore v. Elmore, Whelan v. Van Natta)

iii.

Invitees: goes on land in furtherance of owner's business

(not necessary that invited person gain an advantage by going on land); general duty to exercise
reasonable care to keep premises reasonably safe
1.
concerns occupier are invitees (Campbell v. Weathers)

Those who enter premises upon business which

2.
Even though danger is know to plaintiff,
defendant may be found negligent if it is not too difficult to eliminate danger and he should reasonable
anticipate plaintiff might still be injured by it
3.
Restatement 332: discarded "invitees" and used
"business visitors" instead; duty of affirmative care to make premise safe is price occupier pays for
economy benefit to be derived from visitor's presence
iv.
Even in NY, plaintiff's status is still relevant as factor to
be considered in evaluating reasonableness of defendant's conduct; can also be considered for evaluating
foreseeability, gravity of harm, etc. (Quinlan v. Cecchini)

iii.

No Duty: Immunity
1.
Immunity: avoid liability in tort under all circumstances within limits of
immunity itself; conferred because of status/position/relationship of favored defendant; does not deny tort
but denies liability; protect of particular defendant or interests that defendant represents

2.

Immunities

a.
Charitable institutions: now abolished (Charitable Organizations:
Abernathy v. Sisters of St. Mary's); Restatement 895E

b.

Spousal immunity: partial abrogation

i.
Immunity for activities that go to the nature of
interspousal relationship (sui generis to marital relationship)
ii.
relationship

No immunity for activities that are just corollary to

iii.

No longer immunity for spouse for torts committed

against other spouse (Freehe v. Freehe)

iv.
After divorce or marital dissolution, spouses are
permitted claim for any tort that occurred prior to and (in some jurisdictions) during the marriage
v.

Intentional tort claims generally allowed against spouses

c.

Parent-child immunity: partial abrogation

i.
Parents have always had right to determine how much
independence, supervision, and control a child should have, and to best judge character and extent of
development of their child
ii.
Immunity for negligent supervision of child (avoid
interference with what is sui generis to parent-child relationship)
iii.

Some courts now impose a limited duty (Zellmer v.

Zellmer)

iv.

Exceptions to Immunity:

1.
No parent-child immunity when there is nothing
in the relationship that is sui generis to parent-child relationship
2.
intentionally or is willful or wanton

Action for personal injury is inflicted

1
Relationship terminated before suit by death of parent or child or both (includes action for
wrongful death of child)
2

Child legally emancipated

Defendant is stepparent who has not adopted child

Automobile accident cases

d.
Governmental (Sovereign) Immunity: Doctrine that government could not be sued
without its own consent was established when US was formed
i.

Sovereign immunity generally extends to state agencies and instrumentalities

ii.

NY waived its sovereign immunity in 1929 by statute

iii.

Complete or partial abrogation

iv.
Many states & fed gov't have eliminated immunity for ministerial acts but
retained it for discretionary functions

1.
Discretionary: gov't acting to establish policy; court review of these
might interfere with democratic choices
2.
Ministerial: implement or effectuate policies; not manifestations of
public policy and therefore can subject gov't to liability if performed negligently
v.
Municipal corporations fall in between being subdivisions of the state and being
corporate bodies; generally not immune when engaging in private (proprietary) activities rather
than governmentalfunctions (Clarke v. Oregon Health Sciences University)
vi.

In NY: Principal exception to immunity was for activities that were

deemed proprietary or private as contrasted with governmental functions; NY abrogated immunity for
proprietary/private activities of its employees but not for governmental activities of its employees

vii.

No liability for failure of police to provide protection (Riss v. NY)

1.
Policy reasons: Extending liability would determine how limited
resources are spent without a predictable limit
2.

iv.

Exception: Assumption of Duty (DeLong v. Erie County)

Limited Duty

1.
Pure Economic Loss: Situation where negligence to someones actions
results in foreseeable risks of harm that include economic loss (pecuniary loss not consequent upon injury
to his person or property); courts take more seriously claim that liability should be restricted (State of
Louisiana ex rel. Guste v. M/V Testbank)
2.
Particularized foreseeability: You can make good argument on policy
grounds for no duty at all; however, if in fact the foreseeability is so particularized, then a limited duty
will be imposed

3.

Unborn Children

a.
Child viable in utero if injured by tort allowed to sue when
born with physical injuries, even if child dies minutes after birth (Drobner v. Peters)
b.
Child viable in utero if injured by tort and stillborn may or may
not be able to recover for wrongful death (Majority of states now allow these actions; Endresz v.
Friedberg did not)
c.
1.

Parents Recovery:
Mother: her own emotional & physical injuries

2.

Father: loss of consortium

d.
Child cannot recover for wrongful life (born with serious
physical defects) (Becker v. Schwartz)
i.

Parents are allowed limited recovery

1.
Extraordinary expenses for economic loss
related to childs condition up until child is 21 are recoverable
2.
(Becker v. Schwartz)

Pain & suffering in wrongful life action are not

3.
distress associated with giving birth (not NY)

NJ allows parents to recover for emotional

4.
Negligent Infliction of Emotional Harm- Observation of Family
Member Seriously Injured; Requirements for Recovery (All of which limit duty): (Bovsun v. Sanperi)
a.

Defendant is negligent

b.
injury or death (zone-of-danger)

Negligence exposes plaintiff to unreasonable risk of bodily

c.
of serious physical injury or death

Plaintiff has to have contemporaneous observation (awareness)

d.
to bring in testimony)

Plaintiff has to suffer serious, verifiable emotional distress (have

e.

Serious injury or death to member of his or her immediate family

f.
injury or death (cause-in-fact)

Defendant's conduct was a substantial factor bringing about such

g.
[Elements only apply when the s negligence does not directly
cause the s emotional harm, but rather the s negligence causes injury to someone else and watching
that injury causes the emotional harm. A can recover when the s negligence act causes her emotional
harm. (Johnson v. State of NY)]

v.

Reasons for Cutting Off/Limiting Liability

1.

Desire for bright-line rule (predictability)

2.

Whether or not claim is legally cognizable

3.

Whether or not damages are ascertainable

4.

Institutional stability

5.

Opening of floodgates

6.

Policy considerations

a.
# potential plaintiffs (enlargement of zone of duty to too many);
(Winterbottom v. Wright; H.R. Moch Co. v. Rensselaer Water Co.)
b.

Foreseeability would extend liability too far

c.

Availability of insurance

V.
a.

Negligence Formula
Hand Formula (United States v. Carroll Towing Co.)

i.

Probability of injury

ii.

Gravity of resulting injury

iii.

Burden of adequate precautions (public policy considerations, cost/utility)

iv.
[The first two are balanced against the third using standard of reasonable person
to determine whether the question should go before the jury.]
v.

Each element must be shown more probably than not

vi.

Judge doesn't instruct jury on Hand Formula; just reasonableness (for all
negligence actions)

b.

Restatement (Second) of Torts

i.
291: Where an act is one which a reasonable man would recognize as involving
a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude
as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done.
ii.
292: In determining what the law regards as the utility of the actor's conduct for
the purpose of determining whether the actor is negligent, the following factors are important:
1.
the social value which the law attaches to the interest which is to be
advanced or protected by the conduct;

2.
the extent of the chance that this interest will be advanced or protected
by the particular course of conduct;
3.
the extent of the chance that such interest can be adequately advanced or
protected by another and less dangerous course of conduct.
iii.

293: In determining the magnitude of the risk for the purpose of determining
whether the actor is negligent, the following factors are important:
1.
imperiled;

the social value which the law attaches to the interests which are

2.
the extent of the chance that the actor's conduct will cause an invasion of
any interest of the other or of one of a class of which the other is a member;
3.

the extent of the harm likely to be caused to the interests imperiled;

4.
takes effect in harm

the number of persons whose interests are likely to be invaded if the risk

iv. Essentially adopts Hand Formula: weighs risk v. utility

VI.

Standard of Care

a.

Reasonable Prudent Person

i.

Objective standard

ii.
Subjective characteristics (such as mental deficiencies or level of intelligence) of
individual generally not taken into account (Vaughan v. Menlove)
iii.

No expert required for matters within realm of common knowledge (Declair v.

McAdoo)

iv.

Duty from customary usage (Trimarco v. Klein)

1.

Practice or usage is customary

2.

Practice or usage is reasonable

3.
cause

Probative value: not conclusive; must still show breach was proximate

v.
Emergency situations: Standard care is that of reasonable person in emergency
situation (Cordas v. Peerless Transportation Co.)
1.

Sudden emergency: unforeseen, sudden, & unexpected

vi.

Physically handicapped individuals: Standard of care is that of reasonable

handicapped person in like circumstances (Roberts v. State of Louisiana)

vii.

Superior characteristics of individuals: can be taken into account to hold

individual to higher standard

viii.

Child: generally held to standard of a reasonably careful child of the same age,
intelligence, maturity, training, & experience
1.

Exceptions: Child held to standard of adult when: (Robinson v. Lindsay)

a.

Child engaged in inherently dangerous activity

b.

Child engage in activity usually reserved for adults

ix.

Mentally ill: generally still held to standard of reasonable person

1.

Exceptions

a.

No prior evidence of psychosis

b.
Institutionalized mentally disabled patients unable to control or
appreciate consequences of their conduct, which results in injury to a paid caretakers
c.
Contributory negligence of insane plaintiffs: generally more
flexibility if insanity prevented plaintiff from understanding danger & taking action
b.
v.
is applied

The Professional
Reasonable prudent person takes on profession of actor and an objective standard

vi.

Objective standard: knowledge, training, and skill (or ability and competence) of
an ordinary member of profession in good standing (Heath v. Swift Wings, Inc.)

vii.

No need to contract specifically to exercise normal skill of professional--the law

imposes the duty; absent an express contract, the cause of action is tort

viii.

Expert testimony is usually used to help jury understand nature of work or

application of standard of care

ix.

Customary practice: must show defendant did not conform with standard of care
of an ordinary member of profession

x.

Attorneys (Hodges v. Carter)

1.

Not liable for errors of judgment in terms of strategy

2.
Plaintiff-client must show that but for the attorneys negligence the client
would have been successful in prosecuting or defending the claim
3.

Parties usually end up litigating merits of original case

4.

Three areas conduct may be questioned:

a.

possession of knowledge or skill

b.

excuse of best judgment (not liable for mere error of judgment)

c.
use of due care (steps that are mechanical rather than
discretionary; courts are more willing to find liability)
xi.

Medical Malpractice
1.

Rules of law governing actions of malpractice (Boyce v. Brown)

a.
member of medical professional,

presumed to have degree of skill and learning by average

b.
must have done something which recognized standard would
forbid (or not done something which it would require),
c.

standard must be proven by affirmative evidence,

d.

negligence must be proven (never presumed),

e.

expert medical testimony must establish negligence, and

f.
testimony of other physicians that they would have followed a
different course is not sufficient unless defendant did not follow standard
2.

Which standard to apply

a.
Strict locality rule: state standard of knowledge and skill
in terms of a practitioner in good standing in local community in which defendant practices
b.
Similar community in similar circumstances test: balance need
to avoid evaluating a general practitioner in a rural area by same standards as specialist in an
urban teaching hospital with need of plaintiff for access to expert testimony
c.
certification (Morrison v. McNamara)

National standard: generally applied today; objective;

3.

Duty of informed consent (Scott v. Bradford)

a.

Patient must allege and prove:

i.
defendant physician failed to inform him adequately of a
material risk before securing his consent to proposed treatment
ii.
if reasonable patient had been informed of the risk she
would not have consented to the treatment (objective standard)
iii.

adverse consequences that were not made known to him

in fact occurred and he was injured as a result of submitting to treatment
b.

Defenses:

i.

plaintiff knew of risks (common knowledge)

ii.

plaintiff did not want to know the risks

iii.

full disclosure would be detrimental to patient's best

interest

iv.
himself (consent not possible)

emergency with patient not in condition to decided for

c.
Doctrine of customary practice: courts held that question was whether the doctor
was negligent in failing to disclose the nature, consequences, risks, and alternatives of any proposed
treatment
d.

Public Health Law 2805-d

i.

Statutory law, need to know

ii.
Duty to inform patient of all reasonably foreseeable risks and benefits and
alternatives > allow patient to make knowledgeable evaluation
iii.

Right to recover for lack of informed consent is limited to non-emergency or

diagnostic procedure which involved invasion or disruption of body

iv.

Causation: Reasonably prudent person in patient's position (objective standard)

v.

Highly prescriptive part of civil law

VII.
a.

Rules of Law
Negligence per se

i.
Courts generally do not adopt rules of law as standards of care: too factsensitive (Pokora v. Wabash Ry. Co.)
ii.
However, in some circumstances, the plaintiff can try to establish standard of
care by convincing court to adopt penal statute as the standard of care
iii.

Standard formulated by legislative body in police regulation or criminal statute

becomes standards to determine civil liability if court accepts it

iv.

Plaintiff can take a shortcut to prove what a reasonable person would have done

v.

Shortcuts duty & breach of duty > still have to show causation & damages

vi.

2 prongs (Osborne v. McMasters)

1.

Whether plaintiff belongs to class that statute was intended to protect

2.

Whether plaintiffs injury is of the type that the statute was designed to
prevent (Ney v. Yellow Cab Co.)

3.

[Still need causation]

4.

Exception: Might be inappropriate to adopt it when there is no common

law duty or there is a policy reason; Court has discretion; May outweigh the 2 prongs (Stachniewicz v.
Mar-Cam Corp.)

vii.

Defendant in most cases already owes plaintiff a pre-existing common law duty
to act as a reasonably prudent person, so that the statutes role is merely to define more precisely what
conduct breaches that duty

b.

In absence of standard, jury must determine whether defendant has acted as reasonably
prudent man would under ordinary circumstances; jury must decide what this standard means in addition
to facts

c.

When legislative body has generalized standard from experience of community and
prohibits conduct, the court applies formulated standards

d.

To determine whether defendant committed negligence under statute, court must

determine: (Ney v. Yellow Cab Co.)

i.

Legislative intent

ii.

If violation was proximate cause

iii.

If there is a causal connection between breach and injury

e.

Restatement: Court will not adopt standard of legislative enactment if its purpose
is exclusively

i.

to protect interests of state

ii.

to secure to individuals enjoyment of rights or privilege

iii.

to impose the performance of a service to give the public

iv.

to protect class of persons other than one whose interests are invaded

v.

to protect another interest than one invaded

vi.

to protect against other harm that that which has resulted

vii.

to protect against any other hazards that that from which the harm has resulted

f.

Generally no duty to protect another from criminal acts of a third party to come to aid
of another in distress; burden is too high (Perry v. S.N. & S.N.)

g.

Restatement 288A: Excused violation of legislative enactment or administrative

regulation is not negligence

i.

Violation is excused when:

1.

reasonable because of actor's incapacity

2.

neither knows nor should know of occasion for compliance

3.

unable after reasonable diligence or care to comply

4.

confronted by emergency

5.

compliance would involve a greater risk of harm to actor or to

others (Zeni v. Anderson)

h.

No excuse for violation of following statutes:

i.

child labor acts

ii.

pure food acts

iii.

Federal Safety Appliance Act

iv.
"Safe place" statutes (requiring lights and other protection in tenement houses or
premises open to public)
v.
i.

Statutes prohibiting sale of firearms and other dangerous objects to minors

Approaches to what effect to give to violation of statute

i.

negligence per se (Restatement, permits excuses)

ii.
prima facie (rebuttable presumption) negligence (issue goes to jury even when
no credible evidence of recognized excuse but merely evidence defendant acted with due care)
iii.

some evidence of negligence

VIII.

Proof of Negligence

a.

Plaintiff has three burdens of proof for negligence

i.

Burden of pleading: sufficient facts in complaint

ii.
Burden of coming forward with enough evidence to avoid a directed verdict
against him: show reasonable jurors could find on a more-probable-than-not basis that plaintiffs
contention is correct
iii.

Burden of persuading trier of fact to find in his favor: persuade jury that
preponderance of evidence is in his favor

iv.
[Generally not susceptible to summary adjudication; must be resolved by jury
unless negligence per se]
b.

Proof

i.
Direct Evidence: based on personal knowledge or observation and that, if true,
proves a fact without inference or presumption
ii.
Circumstantial/inferential evidence: evidence based on inference and not on
personal knowledge or observation (Goddard v. Boston & Maine R.R. Co., Anjou v. Boston Elevated Ry.
Co.; Joye v. Great Atlantic & Pacific Tea Co.)
c.

Plaintiffs burden of proving dangerous condition existed for sufficient time to establish
constructive notice to store owner (Ortega v. Kmart Corp.; Gordon v. American Museum of Natural
History)

i.

Owner must have notice of defect (or constructive notice)

ii.

Sufficient time to correct it

iii.

[Nature of the activity: If conduct creates a continuous dangerous condition >

assumed defendant should know of danger] (Jasko v. F.W. Woolworth Co.)

d.

Must show conduct created an unreasonable risk (H.E. Butt Groc. Co. v. Resendez)

e.

Comparative Fault

i.

Plaintiff sues defendant; defendant countersues (becomes plaintiff in countersuit)

ii.

Jurors reduce amount you can recover based upon amount of fault

iii.

Began in NY in 1974 by statute

IX.
a.

Res Ipsa Loquitur (Doctrine of Inferential Evidence)

Can infer more probably than not that the had a duty that it breached because incident
that occurred does not usually occur without negligence

b.

Res ipsa loquitur permits but does not compel inference of negligence under certain
circumstances

c.

Res ipsa loquitur provides plaintiff with inference of negligence where direct proof of
negligence is wanting, providing certain elements consistent with negligent behavior are present. Injured
plaintiff must establish that: (Byrne v. Boadie)

i.
instrumentality causing injury was under exclusive control of defendant and
(Larson v. St. Francis Hotel)
ii.
that accident is one that would not, in ordinary course of event, have occurred
without negligence on part of one in control
iii.

[Both most be shown to be more probable than not]

d.

Doctrine allows you to convince judge that case can go to the jury on inferences (It
warrants the inference of negligence that the jury may draw, or not, as its judgment dictates.)

e.

Purpose is to "smoke out" evidence defendant has or can get that plaintiff cannot

f.

Expert testimony not necessary when within common experience (McDougald v. Perry)

i.
Basis of past experience which reasonably permits conclusion that such events do
not ordinarily occur unless someone has been negligent, and
ii.
expert testimony, etc.
g.

Past experience may be drawn on experiences of community, general knowledge,

Exception to res ipsa loquitur: medical malpractice

i.
Can bring suit against any of defendants who may have had control over
instrumentality that caused injury that wouldn't have occurred unless someone had been negligent (Ybarra
v. Spangard)
ii.
Its an exception because you cant show exactly whose control the
instrumentality was under

iii.

Burden shifts to defendants to show that something other than their conduct was
the cause

iv.
rendered unconscious
h.

Limited precisely to medical malpractice case in hospital setting where patient is

Joint several liability

i.
When you have multiple defendants, each defendants is individually liable for
full amount of the damages
ii.
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. Thus, each liable party is
individually responsible for the entire obligation, but a paying party may have a right of contribution and
indemnity from nonpaying parties
iii.

Break up percentage of fault between defendant to contribute to full amount of

plaintiff's injuries

i.
Negligence as a matter of law would be an exceptional case requiring evidence for a
strong inference (Sullivan v. Crabtree)
j.

Res ipsa loquitur can have 3 effects:

i.

warrants inference of negligence which jury may draw or not

ii.
warrants presumption of negligence if defendant does not produce sufficient
evidence to rebut, and
iii.
k.

shifts the ultimate burden of proof to defendant

Four positions have been taken by courts as to whether plaintiff, by his specific pleading
of negligence, is precluded from relying upon res ipsa loquitur:

i.

cannot rely on it at all

ii.
may take advantage of it to extent that inference of negligence to be drawn
supports specific allegations
iii.

may rely on it only if specific pleading is accompanied by general allegation of

negligence

iv.

available without regard to form of pleading

v.

X.

Causation in Fact: Ds wrongful act directly caused Ps injury

a.

Intentional Torts

i.

Show invasion of protected interest

ii.
protected interest)

Extent of Liability (anything that in fact causally flowed from invasion of

b.

Negligence: 2 Tests for Cause-in-Fact

1.
Substantial Factor Test: defendants tortious conduct is a cause in fact
if it was a substantial factor in bringing about plaintiffs injury
a.
find it probably caused the injury

Substantial: had such an effect that reasonable person would

b.

NY & other states that have adopted the Restatement (Second)

c.

Does not have to be the sole factor, just substantial

d.
occurred

Probable that without Ds negligence, accident would not have

e.
Ranch, Inc.

Reynolds v. Texas & Pac. Ry. Co.; Gentry v. Douglas Hereford

2.
But For Test (sine qua non): But for defendants negligence, the injury
would not have occurred (Perkins v. Texas & New Orleans R. Co.)
a.
States applying the but for test typically use it first & then turn
to substantial factor test if but for cannot be applied
b.
negligence

c.
i.

Cannot use if there are multiple causes or contributory

Restatement 431: Actor's negligent conduct is legal cause of harm to another if

(a) his conduct is a substantial factor in bringing about the harm, and

ii.
(b) there is no rule of law relieving the actor from liability because of the manner
in which his negligence has resulted in the harm.

d.
Joint and several liability: Multiple defendants bear percentage under comparative fault;
apportioning causation

e.

Medical Injuries with Unknown Causes (Kramer Service, Inc. v. Wilkins)

i.

Cause-in-fact problem

ii.

Need to show

1.

General causation through expert testimony and

2.

Specific causation through specific cases

iii.

May also need to make arguments regarding aggravation of pre-existing

condition

f.
Malpractice leading to Decrease in Survival for Patient (Herskovits v. Group Health
Cooperative of Puget Sound)
i.

But for & substantial factor tests dont work > the patient was dying

ii.
for the death)

Court allows action for the decrease in chances of survival (not the full amount

g.

Concurrent Causation

i.

Contributing causes from multiple defendants (Hill v. Edmonds)

ii.

Joint-and-several liability applies

iii.

But for test is unclear for such cases

iv.
Restatement 432: Actors negligent conduct is not a substantial factor in
bringing about harm to another if the harm would have been sustained even if the actor had not been
negligent.
1.
Exception: If two forces are actively operating, one because of the actor's
negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring

about harm to another, the actor's negligence may be found to be a substantial factor in bringing it about
(Anderson v. Minneapolis, St. P. & S. St. M. Ry. Co.)
v.
Restatement 433: The following considerations are important in determining
whether the actor's conduct is a substantial factor in bringing about harm to another:
1.
the number of other factors which contribute in producing the harm and
the extent of the effect which they have in producing it;
2.
whether the actor's conduct has created a force or series of forces which
are in continuous and active operation up to the time of the harm, or has created a situation harmless
unless acted upon by other forces for which the actor is not responsible;
3.

h.

lapse of time.

Problems in Determining Which Party Caused the Harm

i.
Multiple defendants can be held liable for negligence even though it is unclear
which caused the actual harm; Holding otherwise would mean exonerating both and having plaintiff go
remediless (Summers v. Tice)
ii.
injury

Burden of proof shifts to defendants to prove he was not the one who caused the

iii.

Courts interest in fairness, policy, & justice to the injured party

iv.

Relieves injured party of burden of apportioning injury to a particular defendant

v.
Acting in Concert: If two or more negligent s are acting jointly in concert, but
only one actually causes the injury. They are both liable for the injury because they both were acting
negligently and they were acting in concert. (Bierczynski v. Rogers)
vi.

DES Cases
1.
amounts of damages

Interest in providing remedy for plaintiffs who have suffered huge

2.

Two Main Obstacles:

a.

Statute of limitation

b.
Plaintiffs unable who manufactured the particular DES that
they/their mothers ingested (Cause-in-fact problem)
c.
[Obstacles arose due to latency period between when drug was
ingested and when symptoms were manifested]

3.

New York Approach (Hymowitz v. Lilly & Co.)

a.

NY Statute revived claims for exposure to DES for 1 year

b.
Alternative liability (Summers v. Tice) does not apply: cant
bring whole universe (or close to) of possible defendants to court
c.

Concerted action doctrine does not apply

d.
under concerted action

Conscious parallel activity is not enough to substitute for proof

e.
Apply a national market share theory of liability for
apportionment of damages (provide relief & rationally distribute)
f.
Defendants cannot exculpate themselves unless they show that
they did not participate in market producing DES for pregnancy use
g.
Liability is several only & should not be inflated; defendants
liability is only its fair share of responsibility (based on % market share)
h.
realistic avenue of relief for plaintiffs

Court held that present circumstances called for recognition of

i.

Facilitate swift resolution of a large number of cases

4.

California Approach (Sindell v. Abbott Labs)

a.
Plaintiff must bring substantial share of defendants before court
(Modified version of alternative liability)
i.
75% of market

Typically five or six manufacturers who made up 60-

b.
sold the DES that injured plaintiff

Defendant could exculpate itself by proving it could not have

i.
liable according to "market share

If defendant could not, each defendant was severally

ii.

Divide up amount of injury based on % of market share

iii.

Cap amount plaintiff can recover (maximum ~75%)

based on percentage of market share of defendants combined (can't get 100%)

5.

Washington Approach (Martin v. Abbott)

a.
then implead other if it chooses

Plaintiff only required to file suit against one defendant, who can

b.
sold the DES that injured plaintiff

Defendant could exculpate itself by proving it could not have

c.

Remaining defendants presumed to have equal share of market

d.
presumed

Defendant can try to show its market share was less than

i.
are inflated so plaintiff can still receive 100%

If defendants succeed, shares of remaining defendants

ii.

Inflate market shares to 100% recovery

6.

Wisconsin Approach (Collins v. Lilly & Co.)

a.
then implead other if it chooses

Plaintiff only required to file suit against one defendant, who can

b.
sold the DES that injured plaintiff

Defendant could exculpate itself by proving it could not have

c.
Jury uses comparative negligence assigns remaining defendants
shares of liability based on amount of risk they contributed rather than market share
d.

Market share is one of many factors used to assess risk

e.

Held that all defendants were all jointly and severally liable

f.

Inflate to 100%

7.
a.

Mississippi Approach
Alternative Liability

b.
If plaintiff can join all possible manufacturers, burden shifts to
defendant to prove it did not make DES that injured plaintiff
c.

Defendant jointly and severally liable on a per capita basis

vii.

XI.

Other Mass Torts Cases with Cause-in-Fact Problems

1.

Asbestos

2.

Delcon Shield

3.

Cigarettes

4.

Agent Orange

Proximate Cause: Ds wrongful act is cause of Ps injuries but law may decline to trace series of
events beyond a certain point

a.

Problem of cut-off for liability in negligence suits

i.
Where does this problem fit into cause of action for negligence? (Duty? Breach?
Cause in fact? Proximate cause?)

b.

Proximate cause is typically an issue to be decided by the jury

i.
If a trial court decides as a matter of law the defendants conduct was not a
proximate cause of the plaintiffs injury, the court will dismiss the complaint, grant summary judgment, or
direct a verdict

c.

Thin-Skull Plaintiff Rule (Bartolone v. Jeckovich)

i.

Defendant must take plaintiff as he finds him

ii.

Held liable for aggravation of a pre-existing illness

iii.

Substantial cause might otherwise be difficult to prove

iv.

Doctrine applies only to proximate cause (not reasonable care or defect)

d.

Duty to the Unforeseeable Plaintiff (Palsgraf v. Long Island R.R. Co)

i.
Cardozo: Orbit of risk to define duty > foreseeability (P can recover only if risk
of injury to her could be foreseen
ii.
Andrews: Proximate cause (D owes a duty of care to anyone who suffers injuries
as a proximate result of breach) > foreseeability is just one factor

e.

Restatements scheme for determining cut-off

i.

Cut-off of liability: Foreseeability

ii.

Direct causation test disfavored if you have substantial factor test

f.
Foreseeability Test: consequences were foreseeable at time of negligent conduct if
consequences are direct & damage is of same general sort that was risked (Kinsman Transit Co.)
i.
Doctrine of proximate cause may cut off liability even though there is cause-infact in cases involving other acts that intervene in causal link between defendants act and plaintiffs
injury
ii.
Foreseeable relates the particular harmful result (it doesnt matter if the manner
in which the injury occurred or the timing was unusual)

g.
i.
severed

Intervening Causes
Where acts of a third person intervene, the causal connection is not automatically

ii.
Intervening Cause Test: Liability turns on whether intervening act is normal or
foreseeable consequence of situation created by defendants negligence (Derdiarian v. Felix Contracting
Corp.)
iii.

Superseding Acts: If intervening cause is extraordinary, unforeseeable,

independent of, or far removed from defendants conduct, it may be a superseding act, which breaks the
causal connection (Yun v. Ford Motor Co.)

iv.
Intervening act may not serve as superseding cause where risk of intervening act
occurring is the very same risk which renders actor negligent
v.
Restatement 422: Factors to determine whether an intervening force is a
superseding cause of harm to another:
1.
(a) the fact that its intervention brings about harm different in kind from
that which would otherwise have resulted from the actor's negligence;

2.
(b) the fact that its operation or the consequences thereof appear after the
event to be extraordinary rather than normal in view of the circumstances existing at the time of its
operation;
3.
(c) the fact that the intervening force is operating independently of any
situation created by the actor's negligence, or, on the other hand, is or is not a normal result of such a
situation;
4.
(d) the fact that the operation of the intervening force is due to a third
person's act or to his failure to act;
5.
(e) the fact that the intervening force is due to an act of a third person
which is wrongful toward the other and as such subjects the third person to liability to him;
6.
(f) the degree of culpability of a wrongful act of a third person which sets
the intervening force in motion.

h.

Act of God

i.
Restatement 450: The extraordinary operation of a force of nature, which merely
increases or accelerates harm to another which would otherwise have resulted from the actor's negligent
conduct, does not prevent the actor from being liable for such harm.
ii.
Restatement 451: An intervening operation of a force of nature without which the
other's harm would not have resulted from the actor's negligent conduct prevents the actor from being
liable for the harm, if
1.

the operation of the force of nature is extraordinary, and

2.
the harm resulting from it is of a kind different from that the likelihood
of which made the actor's conduct negligent.

i.
i.

Act of Third Person in Committing an Intentional Tort or Crime

Apply foreseeability test

ii.
Criminal conduct does not automatically interrupt causal link but is more likely
to be considered independent
iii.

May be argued that criminal act is so unforeseeable that it is a superseding

cause (Watson v. Kentucky & Indiana Bridge & R.R. Co)

j.

Rescuer Doctrine (McCoy v. American Suzuki Motor Corp.)

i.
rescue

Allows an injured rescuer to sue the party which caused the danger requiring the

ii.
Informs a tortfeasor that it is foreseeable a rescuer will come and negates the
presumption that the rescuer assumed the risk of injury
iii.

Rescuer Status
1.
peril or appearance of peril,

defendant was negligent to person rescued and negligence caused the

2.

peril or appearance was imminent,

3.
appearance existed, and

reasonably prudent person would have concluded such peril or

4.

rescuer acted with reasonable care in effectuating rescue

iv.
Even if wrongdoer did not foresee rescuer, he is still accountable as if he did
(Wagner v. Intl Ry. Co.)
v.

k.

Exception: professionals not permitted to recover in some states

Extent of Negligence/Duty/Breach of Duty

i.

Foreseeability is the focus

1.
probability & gravity)

Hand Formula is really dealing with foreseeability (assessing risk

2.

Focus on proximate cause

3.

Foreseeability is a flexible doctrine

ii.
1.
a.

Cutting of Liability for Policy Reasons

Even if harm is foreseeable, liability may be limited for policy reasons
Avoid creating too much liability for defendant

b.
Ex: For fire cases in NY, there is liability for damage only to
property to which fire is directly communicated (aka the first adjoined house to original fire) (Ryan v.
New York Central R.R. Co.)

c.
Ex: Cause of action does not lie for child for injuries suffered as
a result of a preconception tort against the mother (Albala v. City of NY)
d.
victims (Enright v. Eli Lilly & Co.)

Ex: Cause of action does not lie for granddaughters of DES

e.
outcomes

Desire to create a bright-line rule: leads to predictable

f.

Limit duty to those negligence directly affects

g.
beyond manageable bounds

Would otherwise require extending traditional tort concepts

h.

May be more appropriate for legislature to impose duty

i.

Insurance considerations

j.

Effect on personal relationships of imposing duty

2.

Court may also choose to impose a duty for policy reasons

a.
Limited duty: Social host who enable adult guest to drink may be
liable for injuries inflicted upon third party, if the host knows that the guest is intoxicated & will be
driving (Kelly v. Gwinnell); NY does not impose this duty but NJ imposes a limited duty
b.

XII.

Dram Shop Acts: commercial vendors of alcoholjoint

Joint Tortfeasors

a.

Vicarious Liability

i.

Non-fault doctrine

ii.

Respondent superior/imputed negligence

1.
Without exonerating actual wrongdoer, liability is imposed upon both
wrongdoer and another who stands in relation to wrongdoer that it is not unreasonable to make
responsibility his
iii.

Justification:
1.

Employer has control over business and

2.

Stands to profit from employees services

iv.

Two Dimensions

1.

Employer-employee relationship

2.

Tort of employee occurs within scope of employment (2 components:)

a.

Inherent in or created by employment

i.
extend to commute to and from work

Going-and-coming rule: Vicarious liability does not

ii.
Frolic (abandonment of employers business)
v. Detour (slight deviation for personal reasons); (OShea v. Welch)
b.

Foreseeable consequence

i.
Foreseeability: in context of a particular enterprise, an
employees conduct is not so unusual or startling that it would seem unfair to include the loss resulting
from it among other costs of employers business (Bussard v. Minimed, Inc.)

v.
Restatement 909: principal is liable for punitive damages only if principal
authorized or ratified the act, was reckless in employing or retaining the agent, or the agent was employed
in a managerial capacity and was acting in scope of employment
vi.

Employer may also be held liable for intentional torts of employee when they are
reasonably connected with employment

vii.

Exceptions to Vicarious Liability

1.
a.
contractors (Murrel v. Goertz)

Independent Contractors
Employers generally are not liable for torts of independent

b.
Right to Control Test: determine whether or not employee is free
from control and direction of his employer in all matters connected with performance of service except to
result
c.
Independent contractors perform service according to own
methods & manners and have the right to control physical details of work; he does work on his own time,
in his own way, and under no ones direction but his own
d.

Degrees of removal from employer are significant

2.
Exceptions to the Exception: Where Independent Contractor will not
insulate employer from liability
a.

Non-delegable Duties

i.
remains with owner

Duty can be delegated to another but responsibility

ii.
Restatement 423: one who carries out an activity that
threatens a grave risk unless the instrumentalities are carefully maintained, and who employs an
independent contractor to maintain them, is subject to same liability for harm caused by negligence of
independent contractor (Maloney v. Ruth)
b.
Apparent Authority: one who expressly or impliedly represents
that another party is his servant or agent may be held vicariously liable to extent of that representation;
allows injured party who reasonably relies on representation to hold the party who made the
misrepresentation liable
c.
Inherently Dangerous Activiites: not limited to activities that
involve extraordinarily high degree of danger; applicable when activity involves a peculiar risk of harm
that calls for more than ordinary precaution
i.
Exception does not apply when independent contractor's
negligence is deemed collateral to inherent risk of activity (not recognizable in advance as particularly
likely or calling for special precaution)
d.
Illegal Activities: one who contracts for performance of illegal
act is vicariously liable for damage even if it is an independent contractor
e.
Negligence in selection of contractor: If company is negligent in
selecting contractor or in giving improper directions or equipment or in failing to stop any unreasonably
dangerous practice that comes to its attention, the company will be held liable for its own negligence
(ordinary concurrent negligence)

XIII.

Joint & Several Liability

a.

Joint & Several Liability

i.
Each of several tortfeasors is liable jointly with others for amount of judgment
against them, and each is also individually liable for the full amount; plaintiff can collect from any one or
any group of them
ii.

Plaintiff may choose to sue one or all defendants

iii.

Usually don't have to join all defendants

iv.
1.
alone
v.
amount)
vi.

Defendants can bring others in (contribution claims; comparative fault)

Leave it up to defendant to obtain contribution from others or bear loss
Allows plaintiff to recover full amount if he can get it (but not more than the full
Usually imposed when:

1.

Tortfeasors acted in concert (Biercynski v. Rogers)

2.

Defendants acted independently to cause an indivisible harm

3.

Defendants fail to perform common duty to plaintiff

b.

Several Liability

i.

Defendant not liable for more than % of his fault

ii.

Injured party bears the loss of any uncollectable share

c.

Indemnification: 100% fault on part of one party

d.

Movement toward comparative fault

i.

Joint-and-several liability is still maintained (Coney v. JLF Industries Inc.)

ii.
Joint-and-several liability does not apply in comparative negligence case when
there is a concurrent unknown tortfeasors (Bartlett v. New Mexico Welding Supply, Inc.)

iii.

CPLR Article XIV

1.

1411: When plaintiff is at fault, his share is deducted from damages

Comparative negligence in actions for personal injury, injury to property, or
wrongful death:

a.

Culpable conduct of claimant shall not bar recovery but

b.
culpable conduct

Amount of damages shall be diminished in proportion to

c.

[Includes intentional conduct, strict liability, & negligence]

d.
[Eliminates contributory negligence and assumption of risk-contracts assuming risk might be upheld but they have to be very specific & not involve large groups of
people; primary assumption of risk option where risk is assumed 100% for participation in sports; but
generally its eliminated]
1

1401: Two or more persons subject

2
1007: Third-party practice allowed: Defendant may proceed against nonparty who ma be liable
to defendant for all or part of plaintiff's claim against defendant (Defendant becomes third-party plaintiff
and person being served becomes third-party defendant.)
3
1404: Rights of persons entitled to damages not affected: Affirmation of joint-and-several
liability (procedural)
4

1401: Claim for contribution (defendants)

1402: Amount of contribution

a.
equitable share

Amount of contribution is excess paid by him over and above his

b.
share

No person required to contribute amount greater than equitable

c.
Hypo: is awarded $10 million. She sues 1. 1 is 50%
liable. 2 and 3 are each 25% liable, but 3 can not be found. 2 can not be liable for more than 25%.
However, the can recover the full amount even if all the are not present. 1 must contribute 75% now.

iv.

CPLR Article XVI

1.

Redefines Article XIV

2.

1600: Distinguishes between non-economic loss and economic loss

3.

1601: Limited liability of persons jointly liable

a.
Liability of defendant is 50% or less, liability of defendant for
non-economic loss shall not exceed defendant's equitable share determined in accordance with relative
culpability of each person causing or contributing to total liability for non-economic loss

b.
Hypo: suffers 12 million dollars in non-economic losses. 1 is
40% liable, 2 is 30% liable, and 3 is 30% liable. 3 is not present. The can not 9recover more than
40% from the 1. The can note recover more than 30% from 2.
4.

1602: Exceptions to 1601: Does not apply to

a.

(5) Intentional torts

b.

(6) Motor vehicles

c.

(9) Hazardous substances

d.

Can still recover 100% from any defendant in these exceptions

v.

CPLR 4533-b: Proof of payment by joint tort-feasor

1.

Jury doesn't know settlement amount

2.

Court shall deduct proper amount as pursuant to GOL 15-108

vi.

General Obligations Law 15-108: Release or covenant not to sue (Settlement)

1.
When release or covenant is given to one or more persons liable for
injury, it does not discharge other tortfeasors from liability unless terms expressly provide but
2.

It reduces claim against other tortfeasors to extent of

a.

any amount stipulated by release or

b.

amount of consideration paid for it or

c.

amount of released tortfeasor's equitable share under Article 14

d.

Whichever is greatest

3.
Hypo: The judgment is $500,000. 1 settles for $100,000. It is
determined 1 and 2 are 50/50 at fault. 2s settlement can either by reduced by $100,000 (1s
settlement) or 250,000 (1s share). It is reduced by 250,000 since it is greater.2 pays $250,000.

XIV.

Joinder

a.

Joinder permitted when plaintiff's claims arise from "same transaction, occurrence, or
series of transactions or occurrences" and "any question of law or fact common to all defendants will arise
in the action

b.

Defendant can enforce right to contribution or indemnity may have against another
potential defendant by impleading that other party or by brining a separate lawsuit for contribution or
indemnity against the other party
Damages

I.

Overview

a.

Three kinds of monetary damages

i.
Nominal: small sum; in order to vindicate rights, make judgment available as
matter of record, and carry part of costs of action; no nominal damages for negligence
ii.
non-economic
iii.

Compensatory: restore plaintiff to position he was in before tort; economic &

Punitive: punish, make an example of, deter; focused on behavior and

characteristics of defendant

b.

All losses, even non-economic losses, must be translated into money

c.

All damages must be included in one lump sum award

d.

Judicial review of jury verdict is very limited: "shocks the conscience"

i.
contrary to law

Disturb only if so excessive or so inadequate as to demonstrate that jury acted

ii.
Judge must then decide whether to set aside verdict and grant new trial or allow
liability port of verdict to stand and grant new trial on damages alone
iii.
e.
f.

II.

Remittur: motion for new trial conditioned upon refusal of plaintiff to accept
lesser amount; held not to violate guaranty of jury trial in federal & state constitutions
Special/economic damages: lost earnings, medical & other expenses; subject to objective
measurement of economic loss
General/non-economic: pain & suffering and emotional distress

Compensatory Damages

a.

Maximum amount test: directs judge to determine whether verdict of jury exceeds
maximum amount which jury could reasonably find; if it does, the judge may then reduce verdict to
highest amount jury could have properly awarded (Anderson v. Sears, Roebuck & Co.)

b.

Excessive damages: award is only excessive if it (Richard v. Chapman)

i.

falls outside range of fair & reasonable compensation,

ii.

results from passion or prejudice, or

iii.

shocks the conscience

III.

Punitive Damages

a.

Civil plaintiffs have no right to receive punitive damages (Cheathan v. Pohle)

b.

Punitive damages are add-on damages that the state chooses to allow

c.

Punitive damages generally permitted for intentional torts; "outrage"

d.

Negligence may be sufficient if "reckless disregard" for rights of others, "willful

misconduct," wantonness, recklessness, want of care indicative of indifference to consequences

e.

NY: punitive damages for "wanton, willful, & malicious behavior"; criminal indifference
to civil obligations; purpose is punishment, not compensation

f.

Punitive damages differ from compensatory in that:

i.

financial condition of defendant is relevant,

ii.

clear and convincing evidence standard is applied,

iii.

plaintiff has no right or entitlement to punitive damages

g.

Excessiveness

i.
Court can knock down punitive damages for deprivation of due process of law
(BMW of North America, Inc. v. Gore; State Farm Mutual Automobile Ins. Co. v. Campbell);
Considerations include:
1.

degree of reprehensibility of defendant's misconduct,

2.

disparity between actual or potential harm suffered by plaintiff and

punitive damages award, and

3.

the difference between punitive damages awarded by jury and civil

penalties authorized or imposed in comparable cases

ii.
Court may consider ratio of compensatory damages to punitive damages for
certain types of cases (ex: maritime law in Exxon Shipping Co. v. Baker)

IV.

Proof of Damages

a.

demonstrative evidence: tangible items (bring home to jury the extent of injury)

b.

expert testimony: project earnings, detail medical difficulties, etc.

V.
a.

b.

Economic Losses

Medical Expenses: (past & future expenses) bills for hospitals, doctors, physical
therapists, nurses, medication, x-rays, crutches, travel to different climate, etc; past expenses are proved
by bills presented at trial; future expenses require expert testimony; recover as long as costs were not
related to tortuous injury, unnecessary, or excessively high
Lost Wages (past & future; future requires proof)

c.

Loss or Impairment of Future Earning Capacity: injury must be permanent; expert

testimony needed to assess what plaintiff would have earned; may rely on tables as guidelines but should
also consider individual characteristics of plaintiff

d.

Damage Calculation: Present Value: lump sum of what plaintiff would have earned or
will need; in NY, lump sum must be reduced to its "present value"; jury is instructed to award money in a
lump that will produce for the plaintiff the amount the plaintiff would have earned or will need for a
future operation

e.

Computed by formula or reference to tables once it has been determined at what interest
rate to assume plaintiff will be able to invest the lump sum (principal)

f.

Restatement 913A: The measure of a lump-sum award for future pecuniary losses arising
from a tort is the present worth of the full amount of the loss of what would have been received at the
later time.

g.

Expert witnesses brought in to determine interest rates & then reduce to present value

h.

Present value: "dollar today is worth more than in the future" bc you can invest it

i.
Federal Income Tax: plaintiff's award for personal injuries is not subject to federal
income tax; punitive damages are though; problem occurs when loss is one that would have been subject
to income tax (ex: lost wages)

VI.

Non-economic Losses

a.

No fixed standard for damages to be measured; question is left to the jury

b.

No reduction to present value for pain & suffering

c.

Physical Pain & Suffering, Mental Anguish: general or non-economic damages; include
suffering prior and reasonably certain to result from injury in the future; no fixed standard to measure
them; general damages consist of physical pain (present & future), plaintiff must be conscious to recover

d.

Loss of Function or Appearance: taste & smell, incontinence, impotency, loss of

sex desire, change of personality & attitude, insomnia, inability to drive, scars, disfigurements, fear of
jury to unborn child

e.

Litigation-induced Stress: generally not recognized as separate component of damages

f.

Loss of Enjoyment of Life: expert testimony generally not allowed

g.

Per-diem Argument: breaking physical and mental suffering into days/hr/minutes &
settign value; controversial

h.

Reduced Life Expectancy: generally denied

i.

Tort Reform: big question is whether to cap damages recoverable for pain & suffering

VII.

Collateral Source

a.
b.

Compensation that comes from other sources collateral to the lawsuit

Example: insurance, social security disability, Medicare, first-party disability insurance,
life insurance, Medicaid

c.

C.P.L.R. 4545: Collateral Source Offset

i.
Collateral Source Offset: Four personal injury actions in NY where amount of
damages will be reduced if all of part of amount will be replaced or indemnified from collateral sources
ii.

(a) medical/dental/podiatric malpratice

iii.

(c) personal injury

iv.
Where plaintiff seeks to recover economic loss, evidence is admissible to show
that collateral source will cover the loss in whole or part
v.
Court will reduce amount of award, minus an amount equal to premiums paid by
plaintiff for such benefits for the two-year period immediately preceding the accrual of such action and
minus an amount equal to the projected future cost to plaintiff of maintaining such benefits

vi.

Collateral sources include: insurance, social security, workers' compensation,

employee benefit programs

d.
C.P.L.R. 4546: Loss of earnings and impairment of earning ability in actions for medical
or dental malpractice
i.
medical/dental malpractice in action to recover for loss of earnings or impairment
of earning ability: evidence admissible to establish federal, state, and local personal income taxes which
plaintiff would have been obligated to pay
ii.
iii.

jury instructed not to subtract taxes

court will reduce award for loss of earnings or impairment of earning ability by
taxes that plaintiff would have been obligated by law to pay

iv.
Additional offset of potential income tax for medical/dental malpractice (not
other forms of malpractice or personal injury)

VIII.
a.

Statute of Limitations in NY
213: Contracts (6 years) >> longer than torts because there are documents (rather than
just relying on people's memories)

b.

214(5): Personal injury (3 years)

c.

214(6): Malpractice other than medical, dental or pediatric malpractice

d.

214-a: Medical, dental, or podiatric malpractice: 2 1/2 years

e.

214-c: Toxic torts: 3 years from time of discovery

IX.

Survival & Wrongful Death Statutes

a.

Survival statute: action for personal injury survives death of plaintiff or defendant

i.

No new cause of action (cause of action has already taken place)

ii.
Estates, Powers and Trusts Law 11-3.2(a) Defendant's death: claim may be
brought against defendant's estate
1.

Action may be brought or continued against representative (executor of

will) of decedent

2.

No punitive damages nor penalties (original defendant is dead)

3.

Extends to cause of action for wrongfully causing death

iii.

CPLR 210(b): Period of eighteen months after the death of a person against
whom a cause of action exists is not part of the time within which the action must be commenced against
his executor or administrator

1.

Essentially an add-on statute of limitations

2.

Extra time needed to get the estate in order

3.

Statute of limitations stops at the point when the defendant dies and then
resumes after eighteen months

iv.
Estates, Powers and Trusts Law 11-3.2(b) If plaintiff dies, look first to action
brought by representative of estate
1.

Punitive damages now allowed (for deaths after Aug. 31, 1982)

v.
CPLR 210(a): Where person entitled to commence an action dies before
expiration of time within which action must be commenced, an action may be commenced by his
representative within one year of his death
1.

Gives representative a year to commence action if less than year of

Statute of Limitations remains

2.

If remaining time for Statute of Limitations is greater than a year, then

you get that instead

b.

Wrongful death statute: new cause of action created by death of someone due to a tort

i.

May be brought by certain classes of beneficiaries to the estate defined by statute

ii.

Distinct from survival action although the two sometimes arise at the same time

iii.

Estates, Powers and Trusts Law 1-2.5: Distributee (person entitled to take or
share in property of decedent under statutes governing descent & distribution)

iv.
action

Personal representative of the decedent is the plaintiff and may maintain an

v.
Estates, Powers and Trusts Law 5-4.1: Personal representative (duly
appointed) may maintain action to recover damages for a wrongful act/neglect/default which caused
decedent's death against person who would have been liable to decedent by reason of such wrongful
conduct if death had not ensued

1.

Action must be commenced within 2 years

2.
When distributes do not participate in administration of decedent's estate
under a will appointing an executor who refuses to bring such an action, the distributes are entitled to
have an administrator appointed to prosecute the action
vi.

Estates, Powers and Trusts Law 5-4.3(a): Damages

1.
Fair & just compensation for pecuniary injuries resulting from decedent's
death to persons for whose benefits the action is brought
2.
Medical aid, nursing, attention incident to injury causing death, &
reasonable funeral expenses shall also be proper elements of damage; awarded to distributes

vii.

Estates, Powers and Trusts Law 5-4.3(b): Pecuniary Damages

1.
decedent survived

viii.

Punitive damages allowed if they would have been recoverable had

Estates, Powers and Trusts Law 5-4.3(c)

1.
Medical/dental malpractice: evidence of federal, state, and local personal
income taxes that decedent would have been obligated to pay is admissible
2.
Court shall instruct jury to consider taxes that decedent would have been
obligated to pay (Different from survival statute where jury was instructed not to consider taxes)
3.
been obligated to pay
ix.

Without a jury, court shall consider which taxes the decedent would have
Estates, Powers and Trusts Law 5-4.4: Damages exclusively for benefit of

distributes

c.
Estates, Powers and Trusts Law 11-3.3(b): Allows for coordination of actions (survival
action & wrongful death action); allows the court to combine and treat as one
d.
Major limitation in wrongful death actions: only lost wages that would have gone to
support distributees (not so for survival statute?) > Better to have lived 15 minutes than just died...?
Compensation Systems as Substitutes for Tort Law
I.
a.

Workers Compensation
Employers had advantage in negligence system because of defenses:

i.

Contributory negligence

ii.

Assumption of risk

iii.

Fellow-servant rule (exception to vicarious liability)

b.

Emergence of Workers Compensation takes work-related injuries out of tort system &
into statutory system

c.

"Personal injury arising out of employment"

d.

Negligence & fault are not at issue: non-fault system

e.

All you can recover for injuries at work is Workers' Compensation

f.

Typical Features

i.
Coverage Formula: employee is automatically entitled to certain benefits
whenever he suffers a personal injury by accident arising out of and in the course of employment
ii.
Negligence and Fault are largely immaterial (contributory negligence does not
lessen employee's rights & employer's freedom from fault does not lessen his liability)
iii.

Coverage limited to person having status of employee (not independent

contractor); "right to control test"

iv.
Benefits to employee include cash-wage benefits (1/2 - 2/3 his weekly wage) and
hospital & medical expenses; in death cases, benefits for dependents are provided; arbitrary maximum
and minimum limits are ordinarily imposed; damages are capped at first instance at certain amount
depending on jurisdiction (limited economic losses); no recovery for non-economic losses (no recovery
for pain & suffering); some statutes will allow for disfigurement but that's it
v.
Employee and his dependents give up common-law right to sue employer for
damages for any injury covered by the act; trade-off: employers can't be sued but they have to pay
employees who suffer disabling injuries during course of employment a limited amount regardless of fault
vi.

Right to sue third persons whose negligence caused the injury remains with the
proceeds usually being applied first to reimbursement of employer for compensation outlay and the
balance or most of it going to the employee

vii.

Administration is typically in hands of administrative commissions; rules of

procedure/evidence/conflict-of-laws are relaxed to facilitate achievement of beneficent purposes of
legislation

viii.

Employer is required to secure his liability through private insurance, state-fund

insurance, or self-insurance; burden of compensation liability passes to the consumer since compensation
premiums will be reflected in the price of the product; key mechanism is compulsory insurance
(otherwise can be sued criminally or in tort)

ix.

Employee has to be disabled: total disability, total & permanent disability,

temporary total disability, temporary partial disability, total & partial disability; can't do the job you were
doing

g.

Advantages

i.

Employers: liability is capped & no pain and suffering

ii.

Insurance Companies: can anticipate cost of insurance & pass on to the consumer

iii.

Employees: don't have to worry about employers' defenses (better than getting
nothing)

h.

Exclusive to employers and employees

i.
Third-party tortfeasor who is not an employer can be sued in tort (comes up in
products liability); no cap and pain & suffering is back in the picture
ii.
Comparative fault applies in contribution actions; employer can be sued for only
so much; third-party tortfeasor can sue employer in some cases
iii.

Employees sometimes try to get out of Workers' Compensation today because of

cap on damages > do so by looking for a third-party

II.
a.

Automobile Reparation Systems

Some systems have no-fault auto insurance (motor vehicle reparation plans):
policyholder is compensated by his own insurer regardless of his fault in causing his loss

b.

12 states have some form of non-fault insurance (including New York)

c.

In no state does insured surrender right to sue in tort for pain and suffering in exchange
for coverage of an economic loss

d.

Modified no-fault: coverage in which benefits are awarded regardless of fault & the right
to sue for pain and suffering is permitted only after satisfying a statutory threshold

e.

Choice no-fault: type of modified no-fault in which a driver may choose to be included in
the modified no-fault system or the tort system (NJ, PA, KY)

f.

"Add-on" insurance: expanded first party coverage that has first party, no-fault benefits
for medical expenses and lost wages but does not restrict lawsuits for pain & suffering

g.

NY Comprehensive Motor Vehicle Insurance Reparations Act

i.
Motor Vehicles Reparation System is a Bifurcated System: No-fault system on
one side & Tort system on the other side
1.

No-fault: covered no matter what (but limited)

2.
Tort: can recover for large pain & suffering cases (limited to these cases;
smaller cases are taken out of the court system to lower costs)

ii.
No compulsory first-party collision insurance: collision insurance covers damage
to your car (either caused by you or someone else), first-party, expensive
iii.

Collision liability insurance: property damage caused to someone's else car, put a
maximum amount on it

iv.
required

5103(a): Entitlement to first party benefits; additional financial security

1.
Every owner's policy of liability insurance issued on a motor vehicles,
shall also provide for the payment of first party benefits to:
a.
persons, other than occupants of other motor vehicle/motor
cycle, for loss arising out of use or operation in this state of such motor vehicle (No mention of fault;
insurance policy has to provide for first-party benefits; compulsory contract)
i.
"First-party benefits": payments to reimburse person for
basic economic loss on account of personal injury arising out of use/operation of motor vehicle
1.

minus 20% lost earnings (for taxes)

2.
minus amounts recoverable under state/federal
laws providing social security disability benefits, workers' compensation benefits, disability benefits,
medicare benefits
3.
insurance policy

minus amounts deductible under applicable

ii.
"Basic economic loss": up to $50,000 per person of
following combined items (except for caps for medical losses under Workers' Compensation)
1.

Non-fault, capped, first-party

2.
medical, psychiatric, professional health
services: no limitation to time as long as it is ascertainable within one year that further expenses may be
incurred

3.
loss of earning from work which person would
have performed if not injured, and reasonable and necessary expenses incurred by such person in
obtaining services in lieu of those that the would have performed for income up to $2,000 per month for
not more than 3 years; first-party benefits offset if employee is receiving other types of
disability/monetary benefits
4.
incidental costs: all other reasonable &
necessary expenses, not more than $25 per day for not more than one year
5.
(except for small funeral benefit)

not include loss incurred on account of death

6.
additional option to purchases, for an additional
premium, up to an additional $25,000 of coverage which insured may specify will be applied to loss of
earnings from work and or therapy after initial $50,000 of basic economic loss has been exhausted

v.

5104: Causes of action for personal injury

1.
Action by or on behalf of covered person against another covered person
for personal injuries arising out of negligence in use of motor vehicle, there shall be no right of recovery
for non-economic loss, except in case of a serious injury, or for basic economic loss
2.

You can sue in tort for:

a.
you suffered that was capped)

Anything greater than basic economy loss (anything above what

b.

Non-economic loss for serious injury

i.

"Non-economic loss": pain & suffering

ii.
"Serious injury": death, dismemberment, significant
disfigurement, fracture, loss of fetus, permanent loss of use of organ/member/function/system, permanent
consequential limitation of use of organ, significant limitation of use of body function or system,
medically determined injury which prevents injured person from performing substantially all of material
acts which constitute such person's usual and customary daily activities for not less than 90 days during
180 days immediately following occurrence of injury
Strict Liability
I.

Types of Liability

a.

For intentional conduct

b.

For negligence

c.

For non-intentionally & non-negligently caused injury (strict liability)

II.
a.

Strict Liability for "Abnormally Dangerous Activities"

Defendant can be liable if he brings something on his land for non-natural use and it
escapes & causes injury, plaintiff can sue (Rylands v. Fletcher)

i.
After Rylands in the United States: little attention given to House of Lords'
decision; treated as holding that the defendant is absolutely liable whenever anything whatever escapes
from his control and causes damage > misstated & rejected in several jurisdictions
b.

First Restatement: "ultrahazardhous"; activity that necessarily involves risk of serious

harm which cannot be eliminated by exercise of utmost care & is not matter of common usage (language
comes from Rylands; "common usage" = "natural uses")

c.

Second Restatement: "abnormally dangerous"; depends on nature of location where

activity takes place; involves risk of harm which cannot be eliminated by exercise of utmost care & is
abnormal

d.

Restatement 519: "One who carries on an abnormally dangerous activity is subject to

liability for harm to the person, land or chattels of another resulting from the activity, although he has
exercised the utmost care to prevent the harm."

e.

Restatement 520 lists factors to consider: (Miller v. Civil Constructors, Inc.)

i.
other (Hand)

existence of high degree of risk of some harm to the person, land, or chattels of

ii.

likelihood that harm that results from it will be great (Hand)

iii.

inability to eliminate risk by exercise of reasonable care (Hand)

iv.

extent to which activity is not a matter of common usage (Rylands)

v.

inappropriateness of activity to the place where it is carried on (Rylands)

vi.

extent to which its value to community is outweighed by its dangerous attributes

(utility)

f.

Essential question is whether risk created is so unusual as to justify imposition of strict

liability > whether you need whole new regime of liability beyond negligence (Miller v. Civil
Constructors, Inc.; Indiana Harbor Belt R.R. Co. v. American Cyanamid Co.)

i.

Operate with baseline negligence

ii.

If negligence is unworkable, consider strict liability

iii.

Weigh policies in determining whether to impose strict liability

g.

Strict liability founded upon policy of law that imposes upon anyone who for his own
purposes creates an abnormal risk of harm to his neighbors the responsibility of relieving against that
harm when it does in fact occur. Defendant's enterprise is required to pay its way by compensating for the
harm it causes because of its special, abnormal, and dangerous character

h.

Liability is applicable to an activity that is carried on with all reasonable care, and that is
of such utility that the risk involved in it cannot be regarded as so great or so unreasonable as to make it
negligence merely to carry it on

i.

Decision of whether activity is subject to strict liability is decided by court (not jury)

j.
Liability is analogous to negligence per se but is not negligence; court makes judgment
that value to community is sufficiently great that mere participation in the activity is not to be stigmatized
as wrongdoing in the negligence sense
k.

Allocative v. Distributive Approaches (Indiana Harbor Belt R.R. Co. v. American

Cyanamid Co.)

i.
Allocative: Emphasis is on picking liability regime that will control particular
class of accident most effectively
ii.
l.

Distributive: Emphasis on finding the deepest pocket

Restrictions on Strict Liability

i.
One thing to say that a dangerous enterprise must pay its way within reasonable
limits and another to say that it must bear responsibility for every extreme of harm it may cause. There is
a practical necessity to restrict liability to reasonable bounds (like with proximate cause); (Foster v.
Preston Mill Co.)
ii.
iii.
1.

Act of God is defense (if owner has no reason to anticipate); (Golden v. Amory)

Under abnormally dangerous activities, the plaintiff's activities may fall under
comparative fault; Apply comparative fault after Article XIV (not strict liability); (Sandy v. Bushey)
However, in order for plaintiff to be at fault, something more than slight
negligence or want of due care must be shown

iv.
Owners of domestic animals are not answerable for injury done by them in place
where they have a right to be, unless the animals are in fact, and to the owner's knowledge, vicious.
1.

Exception: A person keeping a vicious animal assumes the obligation of

an insurer against injury by animal; no measure of care in keeping will excuse him (strictly liable). In
such an action, plaintiff has only to allege and prove the keeping, the vicious propensities, and the
knowledge of these propensities.

III.

Products Liability

a.

Liability of a manufacturer, seller, or other supplier of chattels to one with whom he is

not in privity of contract who suffers physical harm caused by the chattel

b.

Component Part Manufacturer > Manufacturer > Stream of Commerce >

Retailer/Wholesaler > Consumer (contracts between all these relationships)

c.

Eliminates privity requirement: Warranties run with the product

d.
i.

Three Types of Products Liability

Negligence

1.

Apply the Hand Formula

2.

Negligence in Manufacturing

a.

Manufacturing defect (may be difficult to prove)

b.
Design defect (manufacturer will argue it was designed as a
reasonable manufacturer would have designed it)
c.

Failure to test/inspect (MacPherson v. Buick Motor Co.)

d.
packaging)

Inadequate packaging (warnings for use & misuse, type of

3.

Negligence for Retailers

a.

Failure to remove expired products

b.

Sale to minor

c.
[No burden to inspect, unless there is an obvious problem which
creates notice of reasonable risk of harm beyond privity of contract)
4.

Defense: Comparative Negligence (Article XIV)

a.
was foreseeable
ii.
1.

Consumer may respond that instructions were unclear or misuse

Warranty
UCC contains provisions in Article II pertaining to warranties

2.
warranties to third parties

UCC 2-318: removes privity requirement for all warranties; extends

3.
Warranties gradually came to be regarded as express or implied terms of
contract of sale; action on contract became usual remedy for breach
4.

Warranties involve both tort (personal injury) and contract

5.

Three Types of Warranties

a.
Express warranty: promissory assertion of fact that seller makes
as part of sales transaction (Baxter v. Ford Motor Co.)
i.
Policy: unjust to permit manufacturers to create a
demand by representing goods with qualities they do not possess and then deny the right of recovery for
lack of privity; effect would be that manufacturer could express whatever they wanted even if untrue
b.
Implied Warranty for Merchantability: product is fit for general
purpose for which it was manufactured & sold (Mazetti v. Armour & Co; Henningsen v. Ford Motor Co.)
i.
Implied warranty trumps contract if contracts attempts to
restrict right to sue (waiver of warranties) and such a restriction would be unconscionable (contract of
adhesion, no ability to negotiate or seek other seller)
c.
Implied Warranty for Fitness for Particular Purpose: buyer
makes known to seller the particular purpose for which the article was purchased and he relies on seller's
skill or judgment

6.

Disclaimers under UCC 2-719

a.
Consequential damages may be limited or excluded unless the
limitation or exclusion is unconscionable
b.
Limitation of consequential damages for injury to the person in
the case of consumer goods is prima facie unconscionable (no disclaimers for personal injuries)
c.

7.

Limitation of damages where the loss is commercial is not

Notice Problem under UCC 2-607

a.
Buyer must within a reasonable time after he discovers or should
have discovered the breach of warranty notify the seller or be barred from any remedy

iii.

Strict Liability in Tort (Greenman v. Yuba Power Products, Inc.)

1.

When neither negligence nor warranty apply: strict liability in tort

2.

Non-negligent & non-intentional liability

3.
Manufacturer is strictly liable in tort when an article he places on the
market knowing that it is to be used without inspection for defects, proves to have a defect that causes
injury to a human being
4.

No notice requirement (unlike Implied Warranty of Merchantability)

5.
the user or consumer

"Defect": any product in a defective condition unreasonably dangerous to

6.
Restatement 402A: Special Liability (Above Negligence) of Seller of
Product for Physical Harm to User or Consumer
a.

One who sells any product

b.

In a defective condition

c.
property

unreasonably dangerous to the user or consumer or to his

d.
is subject to liability for physical harm thereby caused to the
ultimate user or consumer, or to his property, if
e.
and

the seller is engaged in the business of selling such a product,

f.
it is expected to and does reach the user or consumer without
substantial change in the condition in which it is sold.
g.

7.

[Negligence & privity are immaterial]

To establish manufacturer's liability:

a.

plaintiff was injured while using the product

b.

in the way it was intended

c.
as a result of a defect in design and manufacture (defect was
present in product at time of sale; Friedman v. General Motors Corp.)
d.

of which plaintiff was not aware

e.

that made the product unsafe for its intended use

e.
i.

General Approach for Products Liability Problems

Try negligence first

1.

If not direct proof > try res ipsa

2.

If not res ispa

ii.

Then try warranties

iii.

Then strict liability in tort

f.
i.

Restatement (Third) of Torts: Product Liability

Essentially statement of New York Standards

ii.
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
iii.

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

iv.
Defective in design: 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 or other
distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative
design renders the product not reasonably safe
v.
Inadequate instructions or warnings: 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 other distributor, or a predecessor in the commercial chain of distribution, and
the omission of the instructions or warnings renders the product not reasonably safe

g.
i.

Types of Products Defects (New York)

Manufacturing defect

1.
Product injures a person because there is a flaw that is not in the general
product line; failure in quality control (Greenman)
2.
Main problems in factual proof: Product is not in condition manufacturer
intended at time it left his control
3.
(Rix v. General Motors Corp.)

Product was not constructed in the way it was intended to be constructed

4.

Actions in negligence, warranty, & strict liability in tort

ii.

Design defect

1.

Entire product line is challenged

2.

Action in strict liability in tort (New York):

(Voss v. Black & Decker Manufacturing Co.)

a.

NY did not adopt Restatement 403A verbatim

b.

Prima Facie Case

i.
when

manufacturer breached its duty to market safe products

ii.

when it marketed a product designed so that

iii.

it was not reasonably safe and

iv.
plaintiff's injury (cause-in-fact)

that defective design was a substantial factor in causing

c.
"Not reasonably safe": whether it is a product which, if the
design defect were known at the time of manufacture, a reasonable person would conclude that the utility
of the product did not outweigh the risk inherent in marketing a product designed in that manner
d.

Plaintiff must show

i.
product as designed was not reasonably safe because
there was a substantial likelihood of harm (probability & gravity), and
ii.
it was feasible (doesn't undermine utility) to design the
product in a safer manner (to prevent the danger)
e.

Defendant must show product is safe:

i.

Product is one whose utility outweighs its risks

ii.
reduced to greatest extent possible

When product has been designed so that risks are

iii.

While retaining the product's inherent usefulness at an

acceptable cost
f.

Factors to be Weighed

i.
individual user

utility of the product to the public as a whole & to the

ii.
cause injury

nature of the product -- that is, the likelihood that it will

iii.

availability of a safer design

iv.
potential for designing and manufacturing the product so
that it is safer but remains functional and reasonably priced
v.
use of the product
vi.

ability of the plaintiff to have avoided injury by careful

degree of awareness of the potential danger of the

product which reasonably can be attributed to the plaintiff

vii.

manufacturer's ability to spread any cost related to

improving the safety of the design
g.

Plaintiffs misuse might raise comparative fault

h.
Manufacturer's own knowledge was not necessary; just design of
product in light of state of the art at the time of production
i.
industry at the time of manufacture
i.
liability

"State of the art": knowledge available generally in the

Utility and risk analysis: expressly part of analysis for strict

j.
No difference for design defect in negligence and in strict
liability in tort in New York (Denny v. Ford Motor Co.)
i.
Strict liability is negligence-inspired approach
(manufacturer's choices & judgment about manufacturer's judgment)
ii.
manufacturer's conduct

Functionally (virtually) the same in assessment of

iii.

Failure to warn claim in strict liability is

indistinguishable from negligence
k.
Difference for design defect between implied warranty & strict
liability in tort (Denny v. Ford Motor Co.)

i.
Implied warranty: inquiry only into whether product in
question was fit for ordinary purposes fro which such goods are used; showing that product was not
minimally safe for its expected purpose (without regard for feasibility of alternative designs or
manufacturer's reasonableness)
ii.
weighing of risk & utility

iii.

Strict liability: product is not reasonably safe (Voss);

Inadequate instructions/warnings (Liriano v. Hobart Corp.)

1.

Defective packaging

2.
No difference for failure to warn in negligence & in strict liability in
tort (Denny v. Ford Motor Co.; Liriano applies to both)
3.
Manufacturer has duty to warn against latent dangers resulting from
foreseeable uses of its product of which it knew or should have known
4.
foreseeable

Duty to warn of danger of unintended uses if they are reasonably

5.
Duty to warn is limited: focusing on foreseeability of risk
& adequacy and effectiveness of warning
6.
May have duty to warn after product has been sold: where a defect or
danger is revealed by user operation and brought to attention of manufacturer (fact-specific; Cover v.
Cohen)
7.
Obvious hazard: Where injured party was fully aware of hazard through
general knowledge/observation/common sense, or participated in removal of a safety device whose
purpose is obvious, lack of warning about that danger may well obviate the failure to warn (discharge
duty)
a.
8.
party's actual knowledge

Jury determines what open and obvious is

Manufacturer's warning could be held to be superfluous given injured

a.
Limited class of hazards need not be warned because they are
patently dangerous or pose open & obvious risks

b.
Where danger is readily apparently or where warning would
have added nothing to user's appreciate of the danger, there is no duty to warn
c.
Requiring too many warnings trivializes and undermines the
purpose of the rule, neutralizing its effectiveness
9.
Knowledge/knowability is a component of strict liability for failure to
warn (Anderson v. Owens-Corning Fiberglass Corp.)
a.
Manufacturer is liable if it failed to give warnings of dangers that
were known to scientific community at the time
b.
User of product must be given option to refrain from use or to
use in way that minimizes degree of danger
10.

Assess whether warning are required

a.

Risk, adequacy, & burden: essentially negligence

b.
drawn (matter of law, court)

General duty (jury), except if where only one conclusion can be

h.
i.

Jury Instructions (NY Approach to Restatement Third Approach)

Requirements: Reformulation of Voss

1.

manufacturer sells a product

2.

in a defective condition

3.

injury results

4.

from use of product

5.

when product is used for its intended or reasonably foreseeable purpose

ii.

Defective Condition: Not reasonably safe

1.

So likely to be harmful

2.

That a reasonable person

3.

Who had actual knowledge

4.

Of its potential for producing injury

5.
iii.

Would conclude it shouldn't have been marketed in that condition

Burden: Plaintiff must prove

1.

Produt was defective

2.

Defect was substantial factor in causing injury

iv.
1.
v.

Manufacturing Defect
Not necessary to show defendant knew or should have known
Design Defect

1.

Reasonable person

2.

Who knew or should have known

3.

Of product's potential for causing injury and

4.

Of alternative designs

5.
that condition

Would have concluded that the product should not have been marketed in

6.

Balancing risk involved in using product against

a.

product's usefulness and costs

b.
product the defendant did market

risks, usefulness, and costs of alternative designs as compared to

7.
vi.

Not necessary to show defendant knew

Failure to Warn or Inadequate Warning

1.

Product is reasonably certain to be harmful

2.

If used in a way manufacturer should reasonably foresee

3.

Manufacturer has duty to use reasonable care

4.

To give adequate warning

5.

Of any danger known or should have been known

6.

Which the user ordinarily would not discover

vii.

If there was a defect:

1.

Was it a substantial factor in causing injury?

2.
contributed to her injuries

If it was a substantial factor, was there negligence on plaintiff's part that

a.
Matthews)

being misused at time of occurrence (Ford Motor Co. v.

b.
reasonable care

could have discovered defect & realized danger through

c.

could have avoided through use of reasonable care

3.

i.

If plaintiff was negligent, then liability must be apportioned

Who is Responsible in Strict Liability

i.

Anyone in chain of distribution

ii.
Chevrolet Co.)

Usually does not extend to sellers of used products (Peterson v. Lou Bachrodt

iii.

Sales-Service Distinction: (Hector v. Cedars-Sinai Medical Center)

1. Not strictly liable if provider of services, rather than products (ex:
hospitals, pharmacies, dentist)