Functions of Tort Law

1. Corrective Justice
 “Making the victim whole,” matching up victims with tortfeasors
 Explains why tort law is between victim and tortfeasor, rather than state suing
tortfeasor or victim claiming benefits from the state
2. Optimal Deterrence
 Imposition of tort liability helps to prevent future tortious actions by threatening
potential wrongdoers with liability.
 Find best cost-avoider and impose liability, but don’t over-deter socially-beneficial
activities.
3. Social Redress
 Getting one’s day in court
 Populist mechanism that permits ordinary people to put authority on trial
4. Compensation/Loss Distribution
 Provide benefits to accident victims. Spreading out the costs of accidents from
individual victims to insurance companies and consumers.

Concepts to Consider
1. Deep pockets/judgment-proof
2. Best cost-avoider: Responsive to legal rules, strategically placed to take precautions,
deterrable. Hospitals, insurance companies, but not individuals.
3. Judicial Economy
4. Burden-Shifting/Stick it to the Breacher
5. Optimal Deterrence
6. Capture

INTENTIONAL TORTS
 Liability is not imposed for negligence, but only upon proof of the defendant’s intention to
invade the legally protected interest of another.
1) Battery
a) Harmful or Offensive Contact
i) Context dependant
(1) Vosburg v. Putney: kick was violation of classroom decorum; case may have been
different if it happened at recess.
(2) White v. U of Idaho: piano teacher touched student
b) Intent to cause contact (NOT necessarily to cause harm)
i) Single Intent
(1) Vosburg v. Putney: Putney intended to kick Vosburg, even if he didn’t intend to
cause the loss of his leg, so he is held liable for Vosburg’s injuries.
(2) Strict Liability: no mens rea requirement. You broke it, you bought it.
(a) Vosburg thin skull (shin) rule
ii) Dual Intent: P intended to make contact AND intended to harm or offend (or knowingly
disregarded risk that harm would happen
(1) Restatement (2nd) on Torts § 13 takes this view
 (2) Split in states between requiring dual and single intent for battery
iii) Transferred intent: If D intends harmful or offensive contact with A but inflicts it on B,
he is liable for B’s injuries.
2) Assault
a) Intent to cause or threaten battery
b) P fears imminent harmful or offensive contact.
c) Issues
i) How close to consummation? “Imminent:” immediate, close, actual.
ii) Extra-sensitive plaintiff. D liable if he has reason to know about th extra sensitivity.
3) False imprisonment: total confinement, of which P is aware, that is intentional (physical force or
mere threat of force).
4) When do Intentional Torts Matter? (Policy)
a) Importance of intentional torts: extra protections for body and mind (Vosburg)
b) Punitive damages apply to intentional conduct as a matter of law.
c) Compensatory damages from juries are increased as a matter of practice.
d) Kids are hard to find negligent, but are subject to intentional tort rules.
e) In comparative liability, intent sometimes trumps negligence.

ACCIDENT LAW
 Cases imposing strict liability or negligence liability, usually for physical injury – bodily
injury or property damage. Strict liability is imposed without regard to the degree of care that the
defendant, or “tortfeasor,” exercised. Negligence liability is imposed only upon proof of some kind
of carelessness—technically, the failure to exercise reasonable care under the circumstances.

I. DUTY: (PART ONE) IS THERE A DUTY?

Is there a duty (the legal duty to comply with a particular standard of care)?
A. Duty to Act/Rescue?
Generally
There is ordinarily no duty to rescue. In the absence of special circumstances or a
special relationship, one person has no affirmative duty to rescue another from danger. The
ability to rescue someone does not create a duty to do so. (Hurley v Eddingfield, held that
a doctor had no duty to rescue his patient.) (Yania v Bigan – held that Bigan have no duty
to rescue Yania, although Bigan had encouraged Yania to engage in a dangerous activity,
because Bigan did not make such a physical or mental impact on Yania that it deprived
Yania of his freedom of choice) (Stockberger v US – held that prison employees were not
liable for failing to drive a hypoglycemic coworker home).
Pros: This rule values individual liberties (which is central to Anglo-Saxon cultures).
This rule may also be better at promoting rescues than a legal duty to rescue because
imposing a legal duty to rescue might have the perverse side effect of decreasing rescues
because of the fear of liability. Relatedly, if people rescued others only because they were
legally obligated to do so, they wouldn’t likely be the most effective rescuers. Finally, a duty
to rescue would present a problem for judicial economy because the shift from commission
to omission would move the law from aiming at a few people with clear liability to many
people with cloudy liability.
Cons: This rule would maximize social good because helping someone in an
emergency is a greater good than avoiding the inconvenience of rescuing them. Also, if we
view tort law’s purpose as writing the social contract between people, most people would
say that they would want to be saved in an emergency, so tort law should enforce a duty to
save people in emergencies.
What triggers a duty to act?
1. If there’s a rescue attempt
While there is no duty to rescue, if one person voluntarily decides to rescue another,
the rescuer must neither conduct the rescue negligently nor abandon the attempt.
(Zelenko v Gimbel Brothers, Restatement 324).
2. If there’s risk creation
a. “Misfeasance”  A defendant who negligently places the plaintiff in danger
may be held liable for negligently failing to rescue him from danger. Negligently
placing the plaintiff in danger to begin with—“misfeasance”—may give rise to liability
for negligent failure to rescue.
b. “Feasance”  One who non-negligently creates a danger to another person
may have a duty to warn the other person of that danger, and perhaps even to
undertake an active rescue. (Montgomery v. National Convoy and Trucking Co –
held that if a defendant creates a risk and that risk leads to danger, the defendant
has a legal duty to mitigate that danger – Driver whose truck stalled should have
warned others coming over the hill.) Having created the risk of harm, one has a duty
to exercise reasonable care to prevent or minimize that harm (Restatement 39,
Newton v Ellis – defendant dug a hole in a road and left it unlighted at night,
plaintiff, while driving, fell into the hole – plaintiff recovered).
Distinguishing Misfeasance, Nonfeasance and Feasance:
1. Conduct is misfeasance (misconduct/commission) when the
conduct itself was unreasonably risky. The defendant is liable for the
foreseeable consequences of his misfeasance; he has both a legal duty to
attempt reasonable rescues for victims of his negligence and an incentive to
warn and rescue to mitigate those damages. ( Truck driver crashes after
speeding on an icy road at night)
2. Conduct is nonfeasance (nonconduct/omission) when a reasonable
person would have helped to prevent or mitigate a harm but tort law gives an
individual in that position the freedom to act unreasonably and choose not to
rescue or warn the person in danger. Generally there is no duty and no
liability for nonfeasance. ( Truck stalls on an icy road at the bottom of a hill.
A resident of a nearby house sees the danger to other drivers and owns
warning flares, but decides not to help.)
3. Conduct is feasance (conduct/commission of risk-creation) when
the activity is generally a reasonable, ordinary and socially beneficial activity,
but it also means taking some reasonable risks, that is, the conduct involves
reasonable non-tortious risk-creation. When those risks materialize, they
create a specific duty to exercise reasonable care to prevent or minimize
harm. ( Montgomery case – Truck stalls on an icy road at the bottom of a
 hill. Truck driver could have put a warning signal at the top of the hill, but
didn’t.)
B. Duties to Third Parties
Generally
There is no duty to control the conduct of a third person and prevent him for causing
harm to another unless a special relationship exists between actor and third person or
between the actor and the potential victim (Restatement 315).
What triggers a duty to a 3rd Party?
Overtime, liability has been imposed in cases in which the defendant has made it
possible for another party to engage in tortious conduct that injures a third party. In these
cases the defendant has negligently enabled another to cause harm to the third party and
the defendant was strategically placed to take precautions reducing the risk that the third
party would be injured.
1. Risk creation
Liability is sometimes imposed in cases in which the defendant has made it possible
for another party to engage in tortious conduct that injures a third party. In these cases the
defendant has negligently enabled another to cause harm to the third party (Weirum v
RKO – held that liability was predicated on defendant’s creation of an unreasonable risk to
the plaintiff).
2. Negligent Entrustment
If a person possesses a dangerous instrumentality, the possessor has a duty to
protect against its misuse by a third-party whom the defendant knew or should have known
would use it negligently. Thus, a person who lends a loaded gun to a drunken friend who
cannot be expected to use it safely will be liable to a third party who is carelessly shot by
the drunken friend.
3. Special Relationship
a. Universities, Landlords, Shopping Centers  Liability is sometimes imposed
upon universities, landlords, shopping centers, and other proprietors for foreseeable harm
to students, tenants, and customers caused by the conduct of third parties. In order for this
type of liability to apply, there is usually both a pre-existing relationship between the
plaintiff and defendant proprietor and circumstances that put the defendant on notice of the
risk of harm to the plaintiff. These two conditions create a duty for the defendant not to be
negligent with respect to the plaintiff. (Kline v 1500 Massachusetts Avenue Apartment
Corporation – held an apartment building liable to a tenant who was attacked in the
building’s lobby, reasoning that the owner was obligated to take certain basic measures to
protect occupants against foreseeable criminal acts).
b. Mental Health Professionals  In certain cases, mental health professionals
can be held liable in negligence to third party victims who are injured by patients after the
mental health professional knows that the patient has an intention to harm the third party.
(Tarasoff I held that both therapists and police had a duty to warn the third party victim,
but Tarasoff II held only that the therapist “bears a duty to exercise reasonable care to
protect the victim of that danger.”)
Pros: The therapist is the best cost avoider (the party best able to prevent
accidents and most responsive to legal incentives) so the harm is more likely to be
prevented if we impose the duty on the therapist rather than the insane individual.
 Cons: Tarasoff I was a crystal standard, but Tarasoff II is muddy; it’s hard to
know when a therapist has a duty to warn and when they do not. This might be why,
in practice, the psychologists’ professional rule is Tarasoff I. Furthermore, as the
dissent points out, this duty to warn might have a chilling effect on psychiatric
treatment. Psychiatrists might be reluctant to treat patients that are dangerous and
in the greatest need of treatment because that treatment might lead to liability in
tort. Similarly, dangerous patients might avoid treatment because the doctor-patient
relationship no longer ensures confidentiality.
C. Duties of Owners and Occupiers
Under Common Law (Majority Rule)
Traditional common law rules governing premises liability divide entrants onto the
land of owners/occupiers into three categories:
1. Invitees = anyone on the property for business purposes. Owners owe a duty to
exercise reasonable care to those whom they invite onto their property. The premises must
be reasonably safe for ordinary use.
2. Licensees = people who are social guests. For a licensee, the owner must make
the premises as safe as he makes them for himself. That is, the owner must warn the
licensee of hidden dangerous conditions, but need not eliminate these conditions.
3. Trespassers = those who enter property without express or implied permission.
The owner owes only a duty to refrain from wantonly and willfully injuring trespassers.
Pros: The majority rule is better from a judicial economy standpoint. There are clear
rules that increase the predictability and uniformity of outcomes.
Cons: The rigidity of the majority rule sometimes creates unfair results. A more
flexible standard would allow judges to make sure that every case had a fair outcome by
maximizing judicial discretion.
Under Rowland v Christian (Minority Rule)
The court in Rowland v Christian, rejected the traditional categories of invitee,
licensee, and trespasser in favor of a reasonable-conduct-under-all-the-circumstances test.
In place of the categories, the court in Rowland v. Christian determined that a series of
factors should be taken into account in determining the scope of the defendant’s duty:
1. the foreseeability of harm to the plaintiff,
2. the degree of certainty that the plaintiff suffered injury,
3. the closeness of the connection between the defendant’s conduct and the injury
suffered,
4. the moral blame attached to the defendant’s conduct, (corrective justice)
5. the policy of preventing future harm, (deterrence)
6. the extent of the burden to the defendant
7. the consequences to the community of imposing a duty to exercise care with
resulting liability for breach (optimal deterrence)
8. the availability, cost, and prevalence of insurance for the risk involved.

DUTY: (PART TWO) WHAT IS THE STANDARD OF CARE?

If there is a duty, what is the general legal standard for liability in this case?

Duty not to intend harm or Duty to Warn of Concealed

be wanton/reckless Dangers and Traps
Limited duty to trespassers Limited Duty to Licensees
 Ordinary/Reasonable Care
The Fault/Negligence Requirement
[[DEFAULT RULE IN TORT LAW]]

Heightened Duty Strict Liability Absolute

Utmost care: Common Liability without Liability
Carriers and Innkeepers proof of fault No defense
[In theory
only]
A. Negligence
Negligence is the failure to exercise the care that would have been exercised by the
reasonably prudent person under the circumstances to avoid injury or damage to another person or
property.
The Reasonable Person - Objective Standard
The general negligence standard is objective, not subjective. Reasonable care under
the circumstances does not normally include the incapacities or limitations of the person
whose behavior is under evaluation. That the defendant did his best or acted in good faith is
no defense. (Vaughan v Menlove – held that the standard for reasonable care is the
reasonable man, not what the defendant in that particular case thought was reasonable).
Pros:
1. Encourages higher level of care by Defendant (or caretakers liable for his actions)
2. More predictable for community (uniform standard)
3. More clarity for juries (less effort to get inside the head of the Defendant)
4. Prevents malingering/fraudulent claims of good faith
5. Better for judicial economy (easier to determine and promotes more settlements)
Cons:
1. A subjective standard would be fairer to the defendant
2. More congruent with corrective justice standards because the defendant might not
have been blameworthy.
Semi- Objective Standard
There are certain exceptions to the objective standard of reasonable care.
[[Note: Some courts have “stuck it to the breacher” and held defendant tortfeasors
to an objective standard (the court holds the defendant’s disability against him) but have
taken a plaintiff’s disabilities into account when assessing contributory negligence (the
plaintiff’s disabilities help him). (Roberts v. Ring – held the elderly defendant to an
objective standard, but applied a semi-objective standard to the child plaintiff.)]]
1. Children
a. Generally  Children under the age of 5 cannot be negligent at all,
presumably because they cannot be expected to exercise care. Children above that
age are expected to exercise the degree of care that would be reasonable in a child
of similar age, intelligence, and experience. (Third Restatement 283A)
 b. BUT Children Engaged in Dangerous Adult Activities  When children
engage in dangerous adult activities, they are held to an adult standard of care.
(Daniels v Evans – held that a minor who was operating a motorcycle could be held
to the same standard of care as an adult because one cannot know whether the
operator of an automobile is a minor or an adult, so one usually cannot protect
himself against youthful imprudence). (BUT see Goss v. Allen – which held that
skiing was not an “adult” activity like driving a car).
2. The Elderly
There is usually no adjustment for elderly people; they are generally held to
an objective standard. (Roberts v. Ring – held that an elderly man with impaired
sight and hearing should be judged by the ordinary standard of reasonable care.)
3. Beginners
Beginners are held to same standard of care as those reasonably skilled.
However, when the Plaintiff has assumed the risk that Defendant will exercise lower
standard of care (e.g. driving instructor and his student), the beginner is held to a
lower standard because the plaintiff is on notice that the beginner lacks skill.
4. Experts
Experts are required to exercise the skill and knowledge normally possessed
by members of that profession or trade. The second restatement says that if the
expert represents that they possess greater skill, they are held to that higher
standard, (Second Restatement 299A). The third restatement says that higher
standard rule is strongest when parties agree to it, but it is not a categorical rule;
the expert’s skills or knowledge are simply taken into account.
5. Physical Disabilities
Physical disabilities are taken into account in judging the reasonableness of
behavior when they are visible, measurable, and verifiable. Defendants with physical
disabilities are compared to a reasonably careful person with the same disability,
unless the disabled person engages in an activity that the disability makes safe, in
which case they are held to an objective standard. (Roberts v. Ring – held that an
elderly man with impaired sight and hearing should be judged by the ordinary
standard of reasonable care.) One must take into account other people’s foreseeable
disabilities in taking precautions.
6. Mental Disabilities
There is generally no subjective standard for insanity.
Exceptions:
a. However, if the insanity was sudden and unforeseen and affects the
defendant’s ability to understand her duty or control her actions, then the insanity is
a defense because the lack of notice means that there was nothing the reasonable
person could have done differently in advance. (COMPARE Bruenig v American
Family Insurance – held that since the defendant had notice of her psychotic
episodes, it was negligent for her to get into a car and drive it.)
b. Insanity is also a defense if the defendant is already confined. (Gould v
American Family Mutual Insurance – held that institutionalized person cannot be
liable for injuries to caretakers who are employed for financial compensation.)
Pro: This exception promotes optimal deterrence. If the defendant is already
confined, we don’t want to over-incentivize confinement and restraint.
c. Insanity is also a defense if the plaintiff is an insane defendant’s caregiver.
(Creasy v Rusk – held the institutionalized insane defendant was not liable to an
 injured caregiver because the caregiver had notice.) But, if the plaintiff is the
institutionalized patient and the defendant is the caregiver, then insanity is no
defense. (Jankee v Clark County – held that there is no imposition of liability on
institution that had not restrained P who injured himself as a result.)
Pro: This exception promotes optimal deterrence. If the defendant is already
confined, we don’t want to over-incentivize confinement and restraint.
7. Drunkenness
The drunkenness of the plaintiff does not excuse the negligence of the
defendant. (Robinson v. Pioche – held that the plaintiff’s intoxication was not a
mitigating factor for defendant’s negligence in digging an uncovered hole in front of
his property.)
8. Wealth
There is no difference in standard of care required from a person whether
they are rich or poor. (Denver & Rio Grande Railroad v. Peterson – held that the
defendant’s wealth was irrelevant in determining liability because the level of care
required of a Defendant is the same regardless of wealth.)
Pro: Wealth is irrelevant to both the deterrence and the compensation aims of
tort liability.  The two major purposes for compensatory damages are deterrence
and compensation. Regarding wealth, whether a defendant is wealthy or not, the
cost benefit analysis is the same. Regarding compensation, if evidence of the
defendant’s wealth were admissible, the plaintiff’s right to recover and the
magnitude of the defendant’s liability would depend on the defendant’s identity,
rather than on the nature of the defendant’s action and the extent of the plaintiff’s
loss.
Con: If individuals are risk adverse, then, all other things being equal, a
wealthier potential defendant has a lower marginal utility of wealth than does a
poorer potential defendant: he is, in other words, less adversely affected by a given
expenditure on care than is a poorer person.” The richer person thus sacrifices less
utility for any given unit of wealth than does the poor person.
B. Strict Liability
Strict liability is liability imposed without regard to the negligence of the defendant.
Pro: There are 5 ways in which strict liability potentially can be superior to negligence: greater
accuracy, administrative cost savings and the level of generality issue, activity level effects (as
opposed to safety level effects), additional research incentives, and more extensive loss
distribution.
Con: There’s no “extra” deterrence for actions that aren’t the result of carelessness. [[Counter
argument to the con = spurs innovation/research and activity level changes.]]
Historically
1. The rise of Negligence
Historically, plaintiffs had to categorize their cause of action as either trespass or
case. Trespass required a direct and forceful harm and the defendant could escape liability
only by proving that he was utterly without fault. Case was brought for harms that werer
indirect or consequential and operated on a negligence standard.
The negligence standard replaced the trespass/case distinction (Brown v Kendall –
held that there was no liability for a defendant who accidentally hit the plaintiff while the
defendant was trying to break up a dogfight unless that defendant failed to exercise
reasonable care.)
 What was the reason for the rise of negligence in the 19th century? 
a. Morton Horowitz: Rise of negligence standard created immunity from legal liability
in order to provide a kind of subsidy to infant industry (harder for injured workers to obtain
damages).
b. Modernizing the outdated, specific writ system into more general legal principles
2. The development of Strict Liability
The modern standard for strict liability was developed in a series of cases dealing
with flooding disasters. (Rylands v Fletcher – held that a defendant was strictly liable for
the damage caused by his broken reservoir on the plaintiff’s underground mines even
though the defendant was not negligent.) Courts in the United States initially resisted this
standard. (Brown v Collins – rejected Rylands and declined to impose strict liability)
(Turner v Big Lake Oil Company – rejected strict liability as inapplicable to Texas, since
large water cisterns were a natural use of the land in a dry climate.) But after the
Johnstown Flood 1889, more and more courts were willing to hold defendants strictly liable
for flooding harm. (Shug says) This shift was led by elected judges, especially those who
had been elected to long terms. Democratic role fidelity combined with political insulation to
erode judicial resistance to holding defendants strictly liable for these types of disasters.
The Modern Version
Old categories = fire, animals, nuisance, respondeat superior
New categories = blasting, ultrahazardous activities, products liability for manufacturing
defects
1. Nuisance
A Nuisance is a substantial and unreasonable interference with the right of an owner
or occupier of land to the use and enjoyment of the land.
[[NB: Nuisance is distinct from trespass, which involves interference with the right of
possession and occupancy of land.]]
There are two kinds of nuisances: public and private. A public nuisance is not a tort, but a
low-level quasi-criminal offense that affects the general public in common. In contrast, a
private nuisance is simply a nuisance that does not affect the public at large, but particular
individuals. Private nuisance actions do sound in tort.
Remedial options for private nuisance include:
a. Damages
In determining whether or a defendant’s private nuisance activity should be
remedied by damages or an injunction, courts might look to the particular context
and balance the equities involved. (Boomer v Atlantic Cement – held that plaintiff
should be awarded permanent damages as opposed to an injunction for a nuisance
claim because of the disproportionate importance of the defendant’s factory use.)
Con: The dissent in this case stated that property rights should trump market
efficiency and that the decision eliminated the defendant’s incentives to
adopt/develop technology to reduce the pollution/damage done to its neighbors.
b. Injunction
c. No remedy
d. Purchased Injunction
If the plaintiff has come to the defendant’s nuisance, the court may require
the plaintiff to purchase the injunction from the defendant. (Spur Industries v Del
Webb Development – held that a real estate developer who brought homeowners
 to the nuisance of defendant’s feed lot should pay for the damage that the defendant
would sustain in moving or shutting down.)
The decision that there is no nuisance protects the defendant with a property right, which
he can decide to sell or not sell, at his price. Similarly, a decision enjoining the defendant
from continuing a nuisance protects the plaintiff with a property right, which she can decide
to sell or not, at her price. An award of future damages to the plaintiff protects the plaintiff
with a liability right or liability rule only and with an entitlement set by the jury, rather than
the plaintiff. An award of future damages to the defendant protects the defendant with a
liability right or liability rule only and with an entitlement set by the jury, rather than the
defendant.
2. Abnormally Dangerous Activities
Strict liability is imposed for injuries caused by activities—ordinarily uses of land—
that were first termed “ultrahazardous” and that are now termed “abnormally dangerous.”
The two factors that determined whether an activity was ultrahazardous were the
degree of danger it posed and how common it was in the area. The more dangerous and the
less common the activity, the more likely it was to qualify as ultrahazardous.
The new test for abnormally dangerous activities included three different factors
affecting dangerousness (degree of risk, probability of harm, and inability to eliminate the
risk by the exercise of reasonable care), two factors affecting the commonness (the extent
to which the activity is uncommon and its “inappropriateness” to the area), plus a new
consideration: the extent to which the value of the activity to the community is outweighed
by its dangerousness. (Second Restatement 520)  Note that the “value to community”
standard is now disfavored because that isn’t really a question of law. Courts are moving
away from this value question.
Factors that affect the court’s willingness to impose SL for Abnormally Dangerous Activities
include:
a. Policy Factors
The threat of liability for an abnormally dangerous activity furthers goals
of deterrence, efficiency, and judicial economy. It places the burden on the best cost
avoider. (Holmes – “it may be considered that the safest way to secure care is to
throw the risk upon the person who decides what precautions shall be taken.”)
b. Internalizing Externalities of an activity
If a defendant benefits from participation in an abnormally dangerous
activity, it may be fairer to make him internalize the social costs of his activities
along with his profits. (Powell v Fall – held that when defendant’s locomotive threw
sparks that started a fire on plaintiff’s farm, even though the defendant was not
negligent, the defendant should have to compensate the plaintiff for the damage
because the defendant benefits from being able to use a dangerous machine.)
c. Destruction of Evidence
If the evidence of negligence is likely to be destroyed in the tort arising
from a dangerous activity, the court may decide to make the defendant bear the cost
of the accident. (Siegler v Khulman – the court imposed strict liability for gas
transported on public highways, because it is very dangerous to transport, the
magnitude of harm is very high, and the evidence of any negligence is likely to be
destroyed in an explosion.)
d. Prevention with reasonable care/Lack of Prevention with Alternative
 If the accident could have been prevented by reasonable care and the
accident could not have been prevented by a change in the overall activity, then a
court may decline to impose strict liability on a defendant. (Indiana Harbor Belt
RR v American Cyanamid Co – the court didn’t impose strict liability when
defendant’s chemical spilled in plaintiff’s railroad yard because reasonable care could
have prevented the accident and the alternative way of transporting the chemical
would not have reduced the harm.)  Shug says that this case was wrongly decided
because Transportation of toxic chemicals is paradigmatic ultra-hazardous activity;
very high magnitude of risk, even if reasonable care is used. Plus, Posner’s “activity
level” analysis is at a low or intermediate level. There are lots of more general
alternatives: find different methods of transport (specialized rail cars), make the
material less flammable or toxic). Posner is not the “best cost avoider” expert. Put
liability on the actors themselves and their chemists and consultants.
Affirmative Defenses to Strict Liability for Ultra Hazardous Activities
a. If the harm is not within the risk of the ultra-hazardous activity, there
may be no recovery for the plaintiff. (Madsen v East Jordan – held that minks
eating their young because of the loud noise caused by an explosion was not the
harm within the risk of blasting)
b. If there is unforeseeable 3rd party intervention, the defendant may not
be held liable for the ultra-hazardous activity. But if the intervention was
foreseeable, then recovery is allowed. (Yukon v Fireman’s Fund – held that
thieves blowing up a factory to cover their tracks was foreseeable)
c. Plaintiff’s assumption of risk bars recovery (2nd Restatement 523)
d. Plaintiff’s contributory negligence is not a defense except when the
plaintiff is contributorily negligent in knowingly and unreasonably subjecting himself
to the risk of harm.  Shug thinks that you should use comparative risk creation
analysis
e. There is no strict liability if the harm would not have resulted but for
the abnormally sensitive character of the plaintiff’s activity.
3. Vicarious Liability/Employer’s Liability
The principle example of vicarious liability—liability for injury caused by the conduct
of another party—is the doctrine known as respondeat superior. Under this doctrine an
employer is liable under some circumstances for the torts committed by an employee.
Requirements:
1. The agent of the defendant be an employee.
2. The tort at issue must be committed within the scope of employment. If the employee is
off on a frolic of his own, the employer is not liable, but if the employee takes a small
detour, then the employer is liable. In determining whether or not an employee was acting
within the scope of employment, courts have focused on foreseeability and proximity/access
(Bushey v United States – held that the defendant employer was liable for the damage
caused by its employee drunken sailor to the plaintiff’s drydock.)
Pro: Places the risk on the best cost avoider; deep pockets reduce the risk of insolvency;
ensures loss spreading
4. Products Liability: Manufacturing Defects
Strict Liability is imposed for manufacturing defects. (Greenman v Yuba – held that
a manufacturer was strictly liable for a product that does not conform to his own design.)
This idea was first developed in Justice Trayor’s concurrence in Escola v Coca Cola (the
 majority decided a case where a bottle of coke exploded and injured the plaintiff on res ipsa
loquitur). Traynor advocated for strict liability for these types of injuries because:
1. Companies are the best cost avoiders.
2. Companies are the best insurers.
3. Res ipsa is not enough protection – the Plaintiff cannot refute evidence of due care
because of the complexity.
4. There is currently under the table strict liability anyway.
5. Adopting strict liability would cut out the retailer middleman and reduce litigation costs.
6. Adopting strict liability would do away with all the fictions associated with the warranty-
contract rules.
[[BUT Note that design defects adhere to a negligence standard instead of SL. To
determine whether a design defect was negligent, there are two tests: risk-benefit/risk-
utility test (which asks whether the risks posed by the design outweigh its benefits) and the
less-favored consumer expectations test (which states that if the design is not as safe as
consumers expect it to be, then it is defective  this is pretty circular though).]]
Affirmative Defenses to Strict Liability for Products Liability:
a. Contributory negligence: The Second Restatement says if the
contributory negligence was the consumer’s failure to discover defect or guard
against potential defect, there is no defense. But if the contributory negligence was
more like the assumption of risk (the specific consumer discovered a hidden defect
and proceeded to use it voluntarily and unreasonably) then the plaintiff is barred
from recovery.
b. If the plaintiff’s negligence combines with the defect to cause the
harm, the result is less clear. (Daly v GM – held that the jurors should engage in
equitable apportionment of liability.)

II. BREACH: DID THE DEFENDANT VIOLATE THAT STANDARD?

Under the duty of reasonable care, breach asks whether the defendant’s actions were
negligent. Negligence is the failure to use that degree of care that a reasonably prudent person
would have used under the same circumstances.
[[NOTE: THIS CATEGORY DOES NOT APPLY TO STRICT LIABILITY.]]
A. Foreseeability
A defendant is negligent if he knew or reasonably should have known that his actions
posed a risk of harm. Consequently, a person cannot be negligent for failing to take precautions
against an unforeseeable risk of harm. “Foreseeability” in this context refers to the known or
knowable possibility that there exists a risk that will result in harm. (Blyth v. Birmingham
Waterworks – held that that a directed verdict should have been granted for the defendant
because the risk was so improbable that as a matter of law a reasonable person need not take it
into account in determining what precautions to take.
BUT NOTE that today, Blyth would almost certainly pose a question of fact for the
jury. Few risks are so unforeseeable as to warrant granting a directed verdict to the
defendant on that ground alone. But even if the improbability of the risk that caused harm
is not, in itself, a basis for exonerating the defendant, this factor may figure in the overall
cost-benefit negligence calculation.)
B. Untaken Precautions/Cost-Benefit Analysis
 Generally
A defendant is negligent if a reasonable person under the circumstances would have
taken precautions that the defendant did not take in order to avoid that risk. Cost-benefit analysis
is one way of assessing the reasonableness of untaken precautions. This view uses economic
efficiency to define reasonableness.
The Hand Formula
The cost-benefit analysis formula described by Learned Hand and advanced by
Richard Posner states that a defendant is negligent if the cost of the untaken precaution is less
than the probability of the accident multiplied by the magnitude of the harm.
A defendant is negligent if B<PL
the burden/cost of the untaken precaution (B)
is less than
the probability of the accident (P) multiplied by the magnitude of the harm (L)
(United States v Caroll Towing – held that it was a fair requirement for Connors
to have a bargee on board because the B was less than PL in this case)
1. According to Academics and Appellate Courts
Not every precaution is worth taking. If the cost of safety measures/curtailment
exceeds the benefit in accident avoidance to be gained by incurring that cost, society would
be better off, in economic terms, to forgo accident prevention. When the cost of accidents is
less than the cost of prevention, a rational profit-maximizing enterprise will pay tort
judgments to the accident victims rather than incur the larger cost of avoiding liability.
(Posner, Theory of Negligence).
Pros:
1. The Hand formula offers more guidance in assessing ‘reasonableness’ and
‘foreseeability,’ because it is a less subjective standard.
2. It also focuses on broader social goods and total utility across society, as opposed
to the interest of just one plaintiff.
3. For the plaintiff, the “untaken precaution” is a clear tool for focusing litigation.
4. The formula both furthers deterrence and avoids over-deterrence because it
incentivizes taking efficient precautions, but not those that are wasteful or
unnecessary.
Cons:
1. Money and injuries are often incommensurable.
2. There is also a more general challenge of quantifying B and PL. It is a fact-
intensive question and information costs are high.
3. Relatedly, there is an institutional challenge in which laypeople like juries and
judges are not well equipped to assess the assertions of dueling experts.
4. What is economically rational is not necessarily what is reasonable; there may be
a mismatch in values.
2. In Practice
The factors are not usually susceptible to any quantitative estimate, so this type of
mathematical analysis is disfavored by trial judges and juries. The Third Restatement calls
the elements of the Hand Formula “primary factors” to consider in deciding whether a
defendant’s conduct breached the standard of reasonable care. (Third Restatement 3).
Tricky Sidenotes
1. The Cost/Benefit Analysis does not just apply to the litigants
 The defendant is not required to take a precaution that would benefit the plaintiff but
would also cause a greater risk to third parties. Cost-benefit analysis focuses on social
goods and total utility, as opposed to self-interest or just the interest of one plaintiff.
(Cooley v Public Service Co. – held that a company did not need to use a device that
would have prevented harm to the plaintiff but would increase risk to others because the
danger to the plaintiff was remote whereas the danger to others was obvious and
immediate.)
2. Common Carriers are held to a higher standard
When the standard is higher than reasonable care, the cost/benefit analysis changes
a bit. You don’t need as high of a cost to justify the benefit because the duty owed is that of
a very cautious person. (Andrews v United Airlines – suggested that a common carrier
would have to demonstrate that a precaution was prohibitively expensive or grossly
inconvenient to justify not having taken it.)
C. Custom
Generally
A defendant may try to use his conformity with custom as a shield to show that his
actions were not negligent. Conversely, a plaintiff may try to use a defendant’s non-
compliance with custom as a sword to show that the defendant was negligent. While
evidence of custom is both relevant and admissible as to whether a party was negligent, it
is not dispositive. (The T.J. Hopper – held that despite the fact that there was no general
custom to equip tugboats with radios, it was negligent not to have done so.) (Bimburg v.
Northern Pacific Ry. – held that local usage and general custom will not justify or excuse
negligence.) (Third Restatement – states that compliance with custom is evidence that an
actor’s conduct is not negligent, but does not preclude a finding of negligence.) Principally,
it’s relevant simply because it reflects the judgment of a large number of people that
engage in an activity as to the reasonable way to conduct that activity. Thus, a practice
need not be universal to constitute a custom, although it must be more than just one of a
number of different practices.
Pros:
1. Custom provides clear, bright-line rules for decision-making;
2. The plaintiff may have relied on custom;
3. Custom as the standard for negligence is easier for juries to understand;
4. Custom reflects the wisdom of time and numbers;
5. Custom serves as a shield for Defendant, explaining why he behaved a certain way;
6. Custom corrects against hindsight bias, highlighting what people believed at the time.
Cons:
1. Entire industries can lag, and custom can favor conformity to outdated, and unsafe
practices simply because they’re widespread, and disfavor innovative and safer measures
just because they’re less common;
2. There is also a problem of defining ‘custom’;
3. Custom tracks the economic self-interest of actors, rather than the broader social good.
Exceptions
1. Internal Rules/Private Rules of Conduct
In some cases, courts have differentiated internal house rules from statutes
and municipal ordinances and stated that internal rules cannot be used as evidence of
custom because of the perverse incentives created by enforcing house rules. (Fonda v St
 Paul City) However, more recent cases have allowed plaintiffs to introduce evidence of the
defendant’s internal rules as evidence on the standard of care question. (Lucy Webb
Hayes National Training School v Perotti – held that the jury could conclude that a
hospital’s failure to observe the standard of care it had established itself represented
negligence.)
Pros: The plaintiff may have relied on the defendant’s standard (or his general
reputation for safety) in choosing to deal with him. The plaintiff may also be paying
for the general costs of compliance which the standard imposes on the defendant.
Cons: It’s unfair to penalize the defendant who has voluntarily provided an extra
measure of safety.
2. Professional Malpractice
With regard to professional malpractice (including physicians, attorneys, and
accountants) the general rule is that compliance with custom insulates the defendant from
liability, and failure to comply with custom is malpractice. In professional malpractice cases,
custom is dispositive, not just admissible.
It is also important to note that there are two schools of thought available to
medical experts, not just one custom. If a respectable minority practices in a certain way,
that testimony can serve as an additional shield against liability.
D. Statutes and Regulations
Some statutes preclude tort liability explicitly or by implication, and other statutes create
tort liability for their violation, but most statutes simply say nothing about the role their violation
should play in tort litigation.
Generally
Unexcused violation of a statute designed to promote safety is negligence as a
matter of law. A statute prohibiting a certain action may be used by a litigant to supplement
an existing negligence case with dispositive evidence. (Martin v Herzog – held that a
plaintiff was contributorily negligent when his buggy was hit by a car because he had
violated a statute requiring vehicles to have lights at night, which constituted negligence per
se.) (2nd Restatement 286 – states that a court may adopt a legislative enactment or
administrative regulation as a standard of reasonable conduct.)
Legally Cognizable Excuses
A court may excuse a person from the presumption of negligence created by
violating a statute if the violation was necessary or the harm at issue was not within the
statutory purpose.
1. Necessity/Emergency
If noncompliance with the statute is safer, then a person may be excused
from complying with the statute because of necessity. (Tedla v Ellman – held that a
plaintiff was NOT contributorily negligent despite the fact that she had violated a statute
that said pedestrians should walk facing traffic in part because it would have been more
dangerous for her to comply with the statute since traffic was particularly heavy on that side
of the road that day.) (2nd Restatement 288 – states if compliance would involve greater
risk of physical harm to the actor, statutory violation is excused.)
2. Harm is NOT within the Statutory Purpose
If the plaintiff was not within the class of persons, or did not suffer the type of
harm, intended to be protected by the statute that the defendant violated, a court may not
view violation of the statute as evidence of negligence. (Gorris v Scott – held that, in case
 where animals where washed overboard in a storm, failure to comply with a statute
requiring animals to be penned up on a ship was not necessarily evidence of negligence
because the statutory purpose was to prevent the spread of disease.) (Brunett v Imerys
Marble Inc. – held that a defendant working in the commercial trucking industry who fell
off a truck could not claim that it was negligent not to comply with federal regulations
because those regulations were meant to protect miners, not truckers.) HOWEVER, courts
often interpret statutory purposes liberally, and if a plaintiff could conceivably have been an
intended beneficiary of the statute’s protection, modern courts are inclined to view violation
of the statute as evidence of negligence. (Stimpson v. Willington Service – held that a
statute whose purpose was to protect streets from harm from heavy vehicles had secondary
purpose of protecting property below the streets from injury and allowed plaintiff to use the
statute to his advantage under that theory.) (Kernan v American Dredging Co – held
regulation specifying the appropriate height of lamps over the water that was aimed at the
risk of collision could protect a plaintiff suffered died as a result of a fire caused by a lamp
was not in compliance with the regulation.)
Private Rights of Action
Statutory violations do not create private rights of action if no private cause of action
would exist at common law. (Uhr v Greenbush did not allow a private right of action for
school child that was not screened for scoliosis. The court stated that a private right of
action may be implied if (a) The plaintiff is one of the class for whose particular benefit the
statute was enacted; (b) Recognition of a private right of action would promote the
legislative purpose; and (c) Creation of such a right would be consistent with the legislative
scheme.”)
E. Res Ipsa Loquitur
The doctrine of res ipsa loquitur—the thing speaks for itself—is invoked when the plaintiff
seeks to establish the defendant’s negligence by circumstantial evidence. In these cases, the mere
accident itself may be enough for a reasonable jury to infer negligence.
Generally
Generally, Res Ipsa Loquitur can be invoked when:
1. The accident is of a kind which ordinarily does not occur in the absence of someone’s
negligence;
2. The accident is caused by an agency or instrumentality within the exclusive control of the
defendant; and
3. The accident is not due to any voluntary action on the part of the plaintiff.
If all three requirements are met, the jury may infer that the defendant was
negligent even though there is no direct evidence to that effect. (Colmenares Vivas v.
Sun Alliance Insurance Co – held that res ipsa loquitur could apply to an unusal escalator
malfunction in an airport) (Second Restatement 328 – (1) the event is of a kind which
ordinarily does not occur in absence of negligence; (2) other responsible causes, including
the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence;
(3) the indicated negligence is within the scope of the defendant’s duty to plaintiff.) (Third
Restatement 17 – Fact-finder may infer negligence when accident is a type of accident
that ordinarily happens as a result of negligence of a class of persons of which the
defendant is the relevant member.)
Application
 But in many res ipsa cases, the thing does not really speak for itself. Other factors
prompt judges to allow plaintiffs to present a case based solely on circumstantial evidence.
Res ipsa is often shaped by a defendant’s higher duties and risk creation (e.g. common
carriers, innkeepers, dangerous areas). Res ispa is also shaped by particularly vulnerable
plaintiffs with little control or information (passengers, passers-by, unconscious patients).
Res ipsa functions as quasi-strict liability.
1. RIL shifts the burden of proof
Invoking Res Ipsa Loquitur allows the plaintiff to shift the burden of proof against the
defendant by creating a rebuttal presumption of negligence. (Byrne v Boadle – held that
the plaintiff was not bound to show that the barrel of flour could not have fallen out of
defendant’s window without negligence and if there were any facts inconsistent with
negligence it was for the defendant to prove them.)
2. RIL deals with an imbalance of information/control
Res Ipsa Loquitur cases are often shaped by the defendant’s higher duties and risk
creation with respect to vulnerable plaintiffs with little control or information. (Ybarra v
Spangard – held that since the plaintiff was unconscious when he was injured, the
defendant medical professionals had the responsibility to explain why they weren’t negligent
or hadn’t caused plaintiff’s injury.) (Newing v Cheatham – held that in case where the
plaintiff was killed when a plane piloted by defendant crashed because it ran out of fuel and
the defendant was drunk, res ipsa loquitur applied.)
(BUT the Third Restatement says that res ipsa loquitur should be regarded
exclusively as a doctrine of circumstantial evidence unrelated to any differential
knowledge between the parties. “The plaintiff may invoke res ipsa even though the
defendant is as ignorant of the facts of the accident as the plaintiff is.”)
Pros: Because Res Ipsa Loquitur shifts the evidentiary burden to the defendant, it promotes
settlements and allows a plaintiff to say that something the defendant did was wrong even if it
would be impossible for the plaintiff to find direct evidence proving the defendant’s negligence.
Cons: It’s unfair to penalize a defendant who may not have done anything wrong and may
not know who did do something wrong. (This is esp. true in Ybarra v Spangard)
Shug Says: the argument that RIL will smoke out information is a weak argument. The real effect
is the shift of litigation costs from the P to the D. RIL decides that between two innocents there is
a shift to a duty bound defendant (a duty to provide safety and maybe bear litigation costs). RIL’s
shift in litigation cost is also likely to promote settlement. Uncertainty is a very powerful factor in
negligence cases. Oftentimes the accident destroys the evidence and in certain classes of cases
(hazards and duties/D who is the best cost avoider) RIL splits the difference between a negligence
rule and strict liability and appropriately shifts the burden. RIL promotes safety and achieves the
goal of deterrence by creating a stronger incentive to avoid accidents.

III. CAUSATION
A. Cause-in-Fact
The plaintiff must prove that the defendant’s act or omission caused the injury or damage
for which the plaintiff claims compensation. This means that the tortious conduct must have been a
necessary condition to the occurrence of the plaintiff’s injury. Necessary causation thus serves as a
matching function between the plaintiff and the defendant.
Majority Rule: But-For Causation
 The most widely accepted test for cause-in-fact is the “but-for” or sine qua non test.
This test requires a determination whether, “but for” the defendant’s breach, the plaintiff
would have suffered injury. If the injury would not have happened without the tortious
conduct then causation-in-fact is proven. (Third Restatement 26) (New York Central RR
v Grimstad – held that negligent failure to equip a barge with proper life preservers did not
make the defendant liable for the plaintiff’s harm because there was no evidence that the
life buoy would have saved the plaintiff.) (Ford v Trident Fisheries – decedent fell
overboard and plaintiff sued because the rescue boat was lashed to the deck instead of
being suspended from davits. The court held that even if the defendant was negligent,
“there is nothing to show they in any way contributed to Ford’s death.”)
Exceptions
In certain situations, the plaintiff can recover even if he hasn’t established that the
defendant was a necessary cause of the harm that the plaintiff suffered.
1. Just send it to the jury
When there is uncertainty about whether or not the defendant’s tortious conduct was
necessarily the cause of the plaintiff’s harm, the judge may simply let the jury decide.
(Kirincich v Standard Dreging Co – held that if reasonable men might disagree about
whether the defendant’s actions had caused the plaintiff’s death, then the case should not
be dismissed and the issue should go to the jury.) (Reyes v Vantage Steamship – held
that the jury could be instructed to decide whether the plaintiff hypothetically would have
been saved had the defendant had the regulation safety equipment.)
2. Increased Risks
a. Where there is a strong causal link between the negligence and the harm because
the harm that occurred is the harm within the risk of the negligence, there is a permissible
inference that the cause-in-fact requirement is satisfied and the burden shifts to the
defendant to disprove necessary causation. (Zuchowicz v United States – prescription
overdose danocrine case – If a negligent act was deemed wrongful because that act
increased the chances that a particular type of accident would occur and a mishap of that
very sort did happen, this is enough to support a finding by the trier of fact that the
negligent behavior caused the harm. It is up to the negligent party to bring in evidence
denying but-for cause and suggesting that in the actual case the wrongful conduct had not
been a substantial factor.)
b. When the defendant’s negligence has greatly multiplied the chances of accident to
the plaintiff, and is the kind of conduct that naturally leads to such accident, the mere
possibility that the accident might not have happened without the negligence is not enough
to break the chain of causation (Reynolds v Texas and Pacific Ry – slip and fall case)
3. Limited Information
When the defendant’s negligence is reason that plaintiff cannot prove causation, the
court may shift the burden of proof to the negligent defendant. (Haft v. Lone Palm Hotel
– held that it was unfair to force the family of a father and son who had drowned in a pool
without a lifeguard to meet the burden of proof when the defendant’s negligence in not
providing a life guard or posting warnings had created the evidentiary void.)
4. Lost Chance
In medical malpractice cases, the defendant may be held liable for the reduction that
he caused in the decedent’s chances of surviving, even if the plaintiff would most likely have
died anyway. [[NB: in these cases, only partial damages are awarded; the plaintiff can only
recover the percentage of damages that correspond to the percentage increased risk. This is
the majority rule for medical malpractice cases.]] (Herskovits v Group Health
Cooperative – held that the plaintiff could recover when the Hospital negligently failed to
diagnose plaintiff’s cancer when the chance of survival fell from 39% to 25%.)
Pro: Holton v Memorial Hospital – held that the lost chance rule applied and
observed that barring recovery on the theory that the patient was already too ill to
survive would operate as a perverse disincentive to hospitals to treat really sick
people.
Con: Fennell v Southern Maryland Hospital Center – raised the concern of
optimal deterrence. Under the lost chance doctrine, errors in individual cases will not
“cancel out” in the long run, so that defendants may be systematically overtaxed for
harms that they did not cause.
5. Multiple Causes and Uncertainty
When multiple possible causes are involved, the causation requirement is sometimes
held to be satisfied even when the defendant’s negligence is not a necessary cause of the
plaintiff’s harm.
a. Simultaneous and both are negligent  If there are two simultaneous causes of
the plaintiff’s harm and both defendants are negligent, both defendants are jointly
and severally liable for plaintiff’s loss.
b. Simultaneous and only one is negligent  Courts are split on this matter. Many
courts do not hold the negligent defendant liable in this situation, but some courts
do.
COMPARE (Kingston v Chicago and NW Ry (maybe not liable) – held that the
presence of a second fire of unknown origin that would have caused the damage on
its own did not relieve the defendant from liability for starting a fire with train
sparks, the plaintiff did not have burden of identifying the second fire, but if the
defendant could prove that the second fire was natural or of much greater
proportions, it would have released him from liability for plaintiff’s injury.)
WITH (Second Restatement 432 (liable) – states that even if one of the two
actors is not negligent, the actor that is negligent may be found to be a substantial
factor in bring about the plaintiff’s harm.)
c. Sequential Causes  The party responsible for the first cause is liable if that party
was negligent, but the party responsible for the second cause is not liable even if
they were negligent.
Joint and Several Liability  If multiple defendants are liable for the harm, some
jurisdictions use joint and several liability to apportion the damages. This system makes
each defendant potentially liable for 100% of the damages. Joint liability applies broadly to
joint tortfeasors (defendants work together) and independent tortfeasors (defendants
caused a single harm together or caused a theoretically divisible harm that is practically
indivisible.)
6. Alternative Causation
When two actors are negligent, they are not both exempted from liability just
because it’s impossible to prove which one was the cause of the plaintiff’s harm. Instead,
the courts “stick it to the breacher” and the burden shifts to each of the defendants to prove
that their negligence did not cause the harm. (Summers v Tice – Each defendant was as
probably as not the but-for cause of injury to the plaintiff, but not more probably than not
the cause. The court held that under these circumstances the burden shifted to each of the
defendants to disprove that he had caused the harm. But in practice Summers is ordinarily
understood to involve more than a mere shift of the burden of proof on the causation issue.
It is the classic case of “alternative” liability, imposing liability on negligent defendants, each
of whom is equally likely to have harmed the plaintiff.) (Second Restatement 433) In
these cases, the defendants may be held jointly and severally liable for the plaintiff’s harm.
7. Concert of Action
If there are a comparatively small number of defendants and those defendants
consciously act in parallel to produce products in a manner that makes it difficult to identify
the manufacturer of a product after the product causes an injury, those defendants may be
held liable for the plaintiff’s injury even if the plaintiff cannot prove that a specific defendant
caused his injury. (Hall v Dupont – held that if a child could establish that it was more
likely than not that any of the six defendants manufactured the particular cap that caused
that child’s injury, then the burden shifted to each defendant to prove that a cap it
manufactured did not cause the injury in question.)
Pro: although Ds may not have acted together to cause injuries, the threat of liability
might encourage industries with a small number of companies to act together to
prevent injury.
8. Market Share Liability and Toxic Torts
Once a plaintiff has established that it was negligent for a group of defendants to
have sold the product that caused the plaintiff’s injury, courts have sometimes held that the
defendants should not escape liability merely because the plaintiff cannot show which
defendant caused her harm. Thus, each defendant may be held liable for the proportion of
the judgment represented by its share of the market in cases where the following factors
are present
1. all the named defendants are potential tortfeasors;
2. allegedly harmful products are identical and share the same defective qualities (or
were “fungible”);
3. the plaintiff is unable to identify which defendant caused her injury through no
fault of her own; and
4. substantially all of the manufacturers which created the defective products during
the relevant time are named as defendants.
COMPARE (Sindell v Abbott Laboratories – DES case that named these factors and
defended Market Share Liability as an extension of Summers v Tice.)
WITH (Skipworth v Lead Industries Association – rejected market share liability on the
basis of the Sindell factors in favor of a rule that the plaintiff must establish that a particular
defendant’s negligence was the proximate cause of her industires.)
 Shug Says: Skipworth questions the uncertainty of causation but that’s missing the point
the real problem is that not all the tortfeasors identified are negligent since the ability to be
negligent only started at a certain time (when there were alternatives to lead as an
ingredient in paint or the knowledge of the risk of lead in the paint). The P should have
reshaped her case to identify the truly negligent
 Judge Sykes talk: Some courts (including Wisconsin) are shifting from proximate cause
language to policy analysis of limiting scope of liability. This is called “Risk Contribution
Theory.” Six degrees of proximate cause:
(1) Injury too remote from negligence?
(2) Injury out of proportion to the culpability of the tortfeasor?
(3) Too extraordinary that negligence brought about harm?
(4) Unreasonable burden placed on tortfeasor through allowance of recovery?
(5) Would allowance of recovery open the way to fraudulent claims? (policy)
(6) Would allowance of recovery enter a field that has no sensible or just stopping point?
(judicial economy)
 There is a split on exculpatory evidence  Sindell stated that a defendant could be
excused if it demonstrated that it could not have made the product that caused the
plaintiff’s injuries, but Hymowitz v Eli Lilly, allowed for NO exculpatory evidence in individual
cases, even if the company did not sell in Hymowitz’s area, because liability is based on
overall risk produced nationally, and court (1) wanted to avoid administrative costs and (2)
was worried about disincentivizing companies from operating in NY by holding only NY
markets liable. Note that the Hymowitz position is the minority rule on this issue.
Minority Rule: Substantial Factor Test
A minority rule asks if the defendant’s negligence substantially increased the risk of
the harm. The “but-for” test requires a firm finding that the defendant’s negligence was an
absolute pre-requisite to what happened, whereas the “substantial factor” test could be
understood merely to require a finding that the defendant’s negligence was a major
contributor. This rule has a lower threshold for causation and presents a muddy standard as
opposed to a clear rule, but it does away with the need for all of the complicated majority
exceptions.
B. Proximate Cause
Even if the defendant’s conduct caused the plaintiff’s injury factually, the plaintiff must also
show that the conduct was “proximate” enough to the harm to hold the defendant liable. The
doctrine of proximate cause operates as a limitation on the scope of the defendant’s liability. The
defendant’s conduct is a proximate cause of the plaintiff’s harm if causing that harm was a
foreseeable result of the defendant’s negligence.
“The Harm Within the Risk”
One way of assessing whether or not the plaintiff’s injury was a proximate cause of
the defendant’s actions is to ask if the plaintiff’s injury was the harm within the risk of the
defendant’s conduct. Negligence that results in harm by mere coincidence (and not because
it is the type of harm that results from that type of injury) is NOT a proximate cause of the
injury. (Berry v Sugar Notch Borough – held that the plaintiff’s breach of a safety statute
was not causally connected with his injuries because it did not increase the risk or hazard of
his being hit by a falling tree.) (Gorris v Scott – held that, in case where animals were
washed overboard in a storm, failure to comply with a statute requiring animals to be
penned up on a ship was not necessarily evidence of negligence because the statutory
purpose was to prevent the spread of disease.) (Central Georgia Ry v Price – held that a
railroad’s negligence in not dropping plaintiff off at her station was not proximate to the
injury the plaintiff suffered by being burned by a lamp at a hotel.)
There are also some cases in which the risk that the plaintiff would suffer the harm
that actually materialized was not the principal risk that rendered the defendant’s action
negligent, but that risk was nonetheless a foreseeable and relevant risk. (Hines v Garrett
– held that a railroad’s negligence carrying plaintiff past her station and forcing her to walk
a mile through an unsettled area was a proximate cause of her being raped by two men
during that walk home.)  BUT NOTE – In Central Georgia Ry v Price, the plaintiff could
have sued the hotel instead, whereas in Hines v Garrett the hobo and solider who raped the
plaintiff were probably judgment proof.
Foreseeability and Remoteness
1. The Plaintiff must be Foreseeable
If the plaintiff is entirely unforeseeable with respect to the defendant’s negligence,
courts are reluctant to impose liability on the defendant. The defendant only owes a duty of
care to those the reasonably foreseeable zone of danger. (Palsgraf v Long Island
Railroad Co – Cardozo’s opinion held that the defendant was not liable to a plaintiff that
was hit by scales in a station when fireworks exploded on the tracks as a result of the
defendant’s negligence because the harm to her was entirely unforeseeable.)  BUT NOTE:
Andrew’s Dissent in Palsgraf was very important. It said that the defendant should be liable
for all harm caused by his tortious act, regardless of foreseeability, because there is a duty
of all to all. Andrews says that what triggers liability is damage, not breach and that the
proximate cause is a factual matter better left to the jury.  Shug says that he’s right.
The Law follows BOTH Cardozo and Andrews
2nd RST § 281, p. 528 follows Cardozo: conduct that creates recognizable
risk of harm to particular class does not render the actor liable to a person of a
different class, to whom actor could not reasonably have anticipated injury who is
injured.
2nd RST § 431, p. 530 adopts Andrews “substantial factor” hints in defining
what constitutes legal cause. Cause “in the popular sense, in which lurks the idea of
responsibility.” Note that this is a limiting use of the phrase (as opposed to its use in
cause in fact inquiries).
2. Unforeseeable type or kind of harm? (case-by-case)
The law is unclear about whether a defendant could be liable to a foreseeable
plaintiff with an unforeseeable type of harm.
The old rule was that if the harm is unforeseeable with respect to the defendant’s
negligence, the court may still hold the defendant liable if there is a direct relationship
between the act and the damage. (In Re Polemis – held that the defendant was liable
even though the harm that the ship would catch fire was unforeseeable because of the
“directness” between the act of dropping a plank into the hold of the ship and the damage
caused when the plank made a spark that set fire to the petrol in the hold.)
The rule in Polemis about “directness” was later overruled in Wagon Mound. There
can be no liability when a foreseeable plaintiff suffers an unforeseeable type of harm, even
if that harm is a direct consequence of such negligence. (Wagon Mound I – held that the
defendant could not be held liable for fire damage to the dock because that damage was not
foreseeable.)
The American response to these English cases rejects the Wagon Mound view.
Damages are not limited to the foreseeable consequences of the defendant’s negligent
conduct if the unforeseen consequences are direct and the damage is of the same general
sort that was risked. Thus, an actor engaging in conduct that entails a large risk of small
damage and a small risk of other and greater damage of the same general sort and to the
same possible plaintiffs can be held liable for both types of harm. (Kinsman Transit – a
boat got loose, floated down a river, hit another boat and both got lodged in front of a
drawbridge that resulted in a huge flood – held that both the boat owners and the
drawbridge workers were liable for the damage caused by the flood)
Thus, most courts make the proximate cause determination on this issue on a case-
by-case basis. Some courts decide the issue of an unforeseeable type of harm to a
foreseeable plaintiff by simply sending the case to the jury. The law is unsettled on this
matter.
3. Unforeseeable Manner of Harm
 If the plaintiff is foreseeable and the type of harm is also foreseeable, but the
manner in which the harm occurred is unforeseeable, the defendant is still liable for the
plaintiff’s injury. Generally, unless the manner in which the foreseeable plaintiff suffered a
foreseeable type of harm appears to be extraordinary, the fact that the harm occurred in an
unforeseeable manner does not bar recovery. (Marshall v Nugent – held that the
defendant was still liable to a plaintiff that was hit by a third car while he was walking down
the road even though the plaintiff had not been hurt in the initial accident caused by
defendant’s negligent driving.).
4. Unforeseeable Extent of Harm
Courts universally hold that, under the “thin skull” rule, it is no defense that the
plaintiff had an unforeseeable weakness or infirmity that caused his or her injury, or caused
injury of much greater severity than would have been suffered in the absence of this
weakness. The defendant takes his victim as he finds him. (Vosburg v Putney) (In Re
Polemis)
Intervening Pauses and Causes
1. Foreseeable Intervening Cause = Defendant STILL LIABLE
If eventual harm to the plaintiff was foreseeable to the defendant, then the
intervening third party’s action does not break the chain of causation and the defendant’s
actions are still the proximate cause the plaintiff’s injury. (Marshall v Nugent – held that
the defendant was still liable to a plaintiff that was hit by a third car even though the
plaintiff had not been hurt in the initial accident caused by defendant’s negligent driving.).
Furthermore, if the defendant’s negligence conduct created the situation that offered an
opportunity for the third person to commit a tort or a crime, AND THE DEFENDANT SHOULD
HAVE FORESEEN that the that a third party might make advantage of the situation, then the
defendant is still liable for the injury to the plaintiff. (Brower v NY Central – held that the
defendant was still liable to a plaintiff who was robbed by a third party after the defendant’s
train had hit plaintiff’s wagon and disoriented his driver.) (2nd Restatement 448)
2. Unforeseeable intervention = Superceding Cause
If the actions of a third party were unforeseeable of very remote with respect to the
defendant’s negligence, then the defendant is not liable for the injury suffered by the
plaintiff.
3. Rescues are Foreseeable
It is generally considered foreseeable to a defendant that a rescuer will come to the
aid of someone injured by the defendant’s actions, therefore, the defendant owes the
rescuer a duty similar to the one he owes the victim. (Wagner v International Railway –
held that the plaintiff could recover from the defendant when the plaintiff attempted to
rescue someone else who was a victim of the defendant’s negligence.) However, if the
rescue is unreasonable or carried out negligently, the defendant may not be liable for the
full extent of the injury to the plaintiff rescuer. Instead, the court may apply comparative
negligent rules. (3rd Restatement 32)

IV. DAMAGES
In order to recover for his injury, the plaintiff must prove that the defendant owes the
plaintiff damages.
A. Cognizable or Recoverable Damages
 Not all harms are legally cognizable. The plaintiff must prove that his damage is cognizable.
There is recovery for some emotional harm or economic harm, as long as that harm is parasitic
upon concrete physical harm to body or property. There is very limited recovery for purely
economic or emotional harms by plaintiffs with no concrete physical harm.
Pure Emotional Loss
1. Direct Emotional Distress
The majority rule is that the plaintiff may recover damages for pure emotional loss if
she is in the zone of danger and suffered emotional distress, even if there is no actual injury
and no contact.
2. Bystander Emotional Distress
A bystander observing another’s injury may recover damages for pure emotional
distress if that plaintiff bystander is a close relative of the victim, was near to the accident,
and had a contemporaneous sensory observation. (Dillon v Legg – held that a mother was
allowed to recover for pure emotional loss even though she was outside the zone of danger
because of the reasons above.)
Cons: Slippery Slope, Vagueness
This rule has since been more narrowly defined. Courts have required that the
plaintiff directly observe the accident and that the plaintiff be related to the victim by blood
or by marriage. (Tobin v Grossman – held that plaintiff could not recover because she did
not see the accident.) (Elden v Sheldon – held that plaintiff could not recover because the
relationship to the victim was that of an unmarried cohabitant.) (Thing v LaChusa – held
that plaintiff could not recover because she did not witness the accident.)
3. Exceptions:
a. Special Relationships (funeral parlor example)
b. Fear of Potential Harms  Very limited recovery. (Potter v Firestone – held that
plaintiff could recover for infliction of emotional distress due to likely exposure to future
harm, even though there was no current injury.)
Pure Economic Loss
An injured plaintiff can sue for lost wages or the economic value of property damage,
but generally, an uninjured victim cannot sue for economic losses.
Pro:
1. The scope of economic loss is very difficult to predict
2. The defendant is usually already threatened with liability from the primary damage.
Exceptions:
1. If there is no one else holding a tortfeasor accountable, courts may allow a
plaintiff acting as a private attorney general to sue the defendant. (Union Oil Co. v.
Oppen - held that fishermen could sue for pure economic loss when an oil spill
resulted in economic damage and the state declined to sue. It’s important to note
that the crucial factor was that there were no other Plaintinffs.)
2. If the economic loss is highly foreseeable, pure economic loss may be recoverable.
(People Express Airlines v Consolidated Rail - held that plaintiff could sue for
pure economic loss when a toxic spill forced the evacuation of offices because that
economic loss was highly foreseeable.)
Wrongful Death
Wrongful death statutes allow the heirs at law of the decedent to recover for the
defendant that would have been liable to the decedent. The beneficiary’s recovery is
 measured by the losses she suffers as a result of the decedent’s death. Damages for
emotional loss are recoverable, usually in unlimited amounts. The principle that what is
recovered is measured by the beneficiary’s losses makes clear that, for all practical
purposes, the cause of action is the beneficiary’s and not the decedent’s.
Survival Actions
All states have enacted statutes that preserve a cause of action for losses suffered
by a decedent before he died. A number have gone further and provided for a cause of
action to recover economic losses that are incurred as a result of the decedent’s death.
Typically the measure of these losses is the amount that would have been in the decedent’s
estate had he or she lived a full life expectancy. It is for the benefit of the decedent’s estate
and any recovery passes through the estate
Con: Potential deterrence gap = neither Wrongful Death nor Survival Actions imposes
liability for the losses of any other person for whom the defendant would have would have
provided support, or for the sums the decedent would have earned and spent on himself
during his lifetime. Partly for this reason, the grotesque adage that a defendant is better off
killing than badly maiming a victim tends to remain true, even in states that have enacted
both types of statutes.
Loss of Consortium
The US universally allows husbands and wives to sue for loss of consortium.
(Second Restatement 693: liability covers resulting loss of society and services of the
first spouse, including impairment of capacity for sexual intercourse and for reasonable
expense incurred by second spouse in providing medical treatment.) However, unmarried
cohabitants cannot recover for this type of loss.
B. Compensatory Damages
The general rule is that the successful plaintiff is entitled to recover damages to compensate
her for the losses proximately resulted from the defendant’s tortious act or omission. The
successful plaintiff in a personal injury case is entitled to recover for
1. “Special” or out of pocket losses proximately resulting from the defendant’s tortious action; and
2. “General” damages for pain and suffering.
Pain and Suffering Awards
1. Generally
Plaintiffs can usually recover damages for the pain and suffering caused by the
defendant’s actions. The main purposes of damage award for pain and suffering are to
acknowledge the wrong done; provide substitute activities and enjoyments; achieve optimal
deterrence; pay attorneys.
Con: The major criticism of pain and suffering awards is that, because assessment of the
value of pain and suffering is so subjective, valuations vary enormously from jury to jury.
Predicting the amount of an award is therefore difficult. Critics argue that this
unpredictability creates uncertainty on the part of potential defendants that results in
overdeterrence.
2. Cognitive Awareness Requirement
Cognitive awareness is required for damages for loss of enjoyment of life. Jury
should not be instructed to consider damages for loss of enjoyment of life separately from
damages for pain and suffering because non-pecuniary damages are too difficult to measure
separately. (McDougald v Garber – held that there is no compensatory purpose to
awarding damages to someone whose injuries preclude any awareness of the loss of
 enjoyment of life.)  Shug says that this is the majority rule, but it is wrongly decided.
There is loss of enjoyment whether you’re aware of it or not. The court’s rationale is
inconsistent with the rest of tort law.
Con: The McDougald case creates a gap in liability: a more serious injury results in lower
liability for the defendant because the plaintiff isn’t aware of the loss.
Single Recovery
1. Generally
In the ordinary case the plaintiff gets only a single recovery, providing compensation
not only for past but also for future losses, if any.
The principle of single recovery requires the jury to “discount to present value”
awards made for future losses by awarding less than the absolute dollar amount of those
losses. The reason for this requirement is the “time” value of money that is invested today
for future needs.
Pro: The case doesn’t go on forever
Con: There is less accuracy in estimating future damages
2. Risk of Future Injury
There is no independent cause of action for losses that have not yet occurred. Once
tangible physical loss has taken place, compensation for all future losses that will more
probably than not result from that loss are also recoverable. But if no physical loss has yet
occurred, the fact that the plaintiff will more probably than not suffer physical loss in the
future is not actionable. (Depass v. U.S. - denied recovery for increased risk of
cardiovascular disease caused by traumatic amputation because court claimed study was
inconclusive, even though government did not dispute the expert’s claim that this
connection was statistically valid)
Con: Posner dissented to Depass with an under-compensation and corrective justice
argument – tort law should put victim “as nearly as possible in the position he would have
occupied if the tort had not been committed.”
Damage Control
1. Remittitur: Plaintiff gets option to avoid expense of new trial by accepting reduction in
damage award
2. Additur: Defendant gets option to avoid expense of new trial by accepting increase in
damage award
3. Structured settlements: paying damages in periodic installments, less need to predict
future inflation, meant to prevent early dissipation of an award, addresses plaintiffs who die
prematurely to prevent survivors from receiving a windfall
4. Damage caps: many courts have struck them down, but not CA.
5. Radin, “Compensation and Commensurability:” proposes conception of payment as way to
bring the wrongdoer to recognize that she has done wrong and to make redress. Not
restitution or rectification. Showing the victim that rights are taken seriously—not a “trade”
for the harm.
6. Chamallas, “Architecture of Bias:” devaluation of black life, women’s activities.
Devaluation of emotional distress and relational injuries because linked with females.
C. Punitive Damages
In exceptional cases, the plaintiff can recover not only compensatory damages, but also
punitive damages that are designed to punish the defendant.
 Generally
In BMW v Gore the Supreme Court articulated three factors to be used in evaluating the
constitutionality of a punitive damages award:
1. the degree of reprehensibility of the defendant’s act;
2. the disparity or proportion between the harm or potential harm resulting from the defendant’s
act and the amount of damages awarded;
3. the difference between this remedy and the civil or criminal penalties authorized to punish
defendants in comparable cases.
In State Farm, the court quantified the second factor, holding that few awards in which
there was more than a single-digit ratio between punitive and compensatory damages would
satisfy due process. Thus, punitive damages awards that are more than 9 times greater than
compensatory damages are, in effect, presumptively unconstitutional.
Limitations
1. The defendant’s wealth is irrelevant to the calculation of punitive damages.
None of the purpose of punitive damage awards --
(makes sure that the tort is not under-deterred if it is concealable, heads off
violent self-help, ensures full compensation, relieves pressure on the criminal
justice, channels transactions through the market, expresses community
abhorrence)
-- depends critically on the defendant’s wealth or income. Plaintiff has no burden to
introduce evidence about the defendant’s wealth, but the plaintiff can introduce that type of
evidence if they want. (Kemezy v Peters- held that there was no burden of production on
the plaintiff with respect to the defendant’s wealth.)
2. Punitive Damages must be Proportional to the Compensatory Damages
In State Farm, the court quantified the second factor, holding that few awards in
which there was more than a single-digit ratio between punitive and compensatory damages
would satisfy due process. Thus, punitive damages awards that are more than 9 times
greater than compensatory damages are, in effect, presumptively unconstitutional. (State
Farm v Campbell.)
3. Punitive Damages can be awarded only with reference to the Plaintiff’s Harms
Punitive Damages cannot be used to punish a defendant for an injury that it inflicts
upon non-parties to the litigation. (Phillip Morris v Williams) (State Farm v Campbell)

V. DEFENSES
Defenses based on plaintiff’s conduct may reduce or eliminate the defendant’s liability for
the plaintiff’s harm. The defendant bears the burden of pleading and proving the facts necessary to
support one of these defenses.
A. Contributory Negligence (Minority/Defunct)
Generally
Contributory Negligence is the failure of the plaintiff to exercise reasonable care to
protect himself or his property from the risk of harm. Historically, if the defendant proved
that the plaintiff was contributorily negligent, it was a complete bar to recovery.
However, the contributory negligence rule is no longer in effect in the vast majority
of jurisdictions.
Pro:
 1. Fairness: It would be unfair to impose liability on the defendant when the plaintiff has
negligently contributed to his own injury.
2. Deterrence: It deters plaintiffs from acting negligently too.
3. Judicial Economy (best argument): It’s easier and clearer than comparative negligence. It
gives the judge a check on jury power. It protects infant industry.
Con:
1. Fairness: It is unfair to completely relieve the defendant of liability merely because the
plaintiff was also a cause of his own injury.
2. Deterrence: Pain already deters plaintiffs enough.
Exceptions
1. Burden shifted to the defendant, send it to a jury.
2. Greater blame: If the defendant acted intentionally or recklessly, there is no bar.
3. Last chance: If the defendant had the last chance, the plaintiff’s negligence is not a bar.
4. Safety Statute: If the defendant violated a safety statute, the plaintiff’s neg. is not a bar.
5. Property rights protections: One is allowed to be contributorily negligent in normal use of
one’s own land.
B. Comparative Negligence (Majority)
Generally
Under comparative negligence, the contributory negligence of the plaintiff does not
necessarily bar recovery. Instead, plaintiff’s recovery is reduced in proportion to the amount
of negligence attributable to him. (Li v Yellow Cab - held that a plaintiff was not barred
from recovery just because she was also negligent – California adopted a pure comparative
negligence scheme.)
There are two forms of comparative negligence.
1. Under the pure form, the plaintiff’s negligence is never a complete bar to
recovery. Rather, comparative negligence applies regardless of how much more
negligent the plaintiff than the defendant. The defendant’s liability is determined in
direct proportion to the percentage of the defendant’s fault. Thus, if the plaintiff, is
99% at fault, she can recover 1% of the damages from the defendant.
2. Under the modified form, if the plaintiff is found to be more negligent than the
defendant (and under some versions, as negligent), comparative negligence does not
apply and the plaintiff’s contributory negligence is a complete bar to recovery. Thus,
if the plaintiff is 51% or more at fault, the plaintiff cannot recover at all.
Complications
1. Strictly Liable Defendant = Doctrinal Complexity
In some states, comparative negligence is a defense for a strictly liable defendant; in
others, it is not. When comparative negligence is a defense to strict liability, it can operate
in one of these ways:
a. Comparative Causation (Bohan v Rizzo – Man injured by a dog, and there was
both a comparative negligence statute and a strict liability statute for dog owners. –
the Court stated that since the plaintiff had done nothing to knowingly put himself in
that situation or provoke the dog, and didn’t create or exacerbate his risk of harm,
the defendant should still be held strictly liable.)
b. Equitable Apportionment – its unclear what this means
 c. Comparative Risk Creation – (Shug’s suggestion  When we’re comparing
negligence we are comparing risk so it follows that we compare the riskiness of these
activities and compare. One example of riskiness is negligence but another one is
ultrahazardous activities)  I think comparative risk creation is not a good way to
apportion liability because it doesn’t comport with the goals of tort law.
1. Some risks are beneficial to society, comparative risk creation wouldn’t account
for the reasonableness or utility of a risk. – That would interfere with the goal of
optimal deterrence.
2. Comparative risk creation also ignores the fact that some are better cost avoiders
than others. Strict liability is often used to provide extra incentives for defendants
who are strategically placed to prevent harms to take extra precautions.
3. Also ignores proximate cause/harm within the risk – behavior that was risky
wasn’t necessarily related to the harm that occurred – doesn’t serve matching
function.
2. Reckless Defendant = Comparative Culpability
If the defendant was reckless, damages are apportioned by comparing degrees of
culpability and recklessness is weighed heavily.
3. Intentional Harm by Defendant = Majority – no defense, Minority – Comp. Culp.
If the defendant’s harm was intentional, the majority rule is that the plaintiff’s
negligence is no defense and the defendant is still liable for 100% of the damages.
(Morgan v Johnson – held that plaintiff’s negligence in being drunk did not mitigate
defendant’s intention harm in beating her)
There is a minority rule, however, that states that intentional harm by the defendant
should be treated the same way as recklessness and that damages should be apportioned
by the intentional harm should be weighed more heavily. (Blazovic v Andrich)
C. Assumption of Risk
Generally
If the plaintiff assumed the risk of harm that he suffered, the defendant is not liable
for that harm. (Murphy v Steeplechase – held that a plaintiff could not recover against a
defendant amusement because the plaintiff had accepted the obvious and necessary risks of
the Flopper ride. VOLENTI NON FIT INJURIA)
Complications
1. Express Assumption of Risk by Contract
If a waiver of liability is contrary to public policy, a plaintiff cannot assume the risk of
the defendant’s negligence. (Dalury v SKI Ltd – held that a ski resort waiver of liability
was void as contrary to public policy.) The factors that might make an exculpatory
agreement invalid were enumerated in Tunkl (some or all must apply)
1. “Concerns business of type suitable for public regulation
2. Party seeking exculpation is engaged in performing a service of great importance to
the public
3. The party holds itself out as willing to perform this service for any member of the
public who seeks it, or at least for any member coming with certain established
standards (open for business)
4. As a result of the essential nature of the service, in the economic setting of the
transaction, the party invoking exculpation possesses a decisive advantage of bargaining
strength against member of public who seeks its services”
 5. Take it or leave it aspect – standardized adhesion contract makes no provision for a
purchaser to pay additional reasonable fees to obtain protection against negligence
6. Purchaser is at mercy of seller, “subject to the risk of carelessness by the seller or
seller’s agents.”
2. Arbitration Agreements
a. “Courts will not enforce against an adhering party a provision limiting the duties or
liabilities of the stronger party absent plain and clear notification of the terms and an
understanding consent.” (Obstetrics & Gynecologists Ltd. v. Pepper - Plaintiff,
who suffered stroke as a result of BC pill, signed arbitration agreement but had no
recollection of signing the form or having the form explained to her.)
b. Courts will not enforce arbitration agreements when they are procedurally
unconscionable (Sosa v. Paulos - Court refused to enforce arbitration agreement
because it was administered less than one hour before surgery when Sosa was
already in a surgical gown. Procedurally unconscionable: “the Plaintiff felt rushed
and hurried to sign the documents and did not read them.”)
C. Necessity
Necessity is a privilege that may serve as a defense to actions for trespass or conversion.
Necessity refers to the idea that the defendant may have acted reasonably in damaging or
destroying the plaintiff’s property in order to avoid harm to himself or his property, but the risk of
harm to the plaintiff was not created by the plaintiff.
Generally
Public  Cases of public necessity arise when there is a risk to the property of a
sufficiently large number of people to make the risk “public” and that risk can be reduced or
eliminated by damaging or destroying the property of the plaintiff. In cases of public
necessity, the privilege is “absolute;” a complete defense to liability.
Private  Cases of private necessity arise when there is a risk to one party or his
property only, and this party can reduce or eliminate that risk by damaging or destroying
someone else’s property. In such cases the privilege of necessity is said to be “qualified” or
“conditional.” The defendant is liable to the plaintiff for the damage done to the latter’s
property.
(Ploof v Putnam – held that the necessity of tying up a boat in a storm justified
trespass on the dock, so the dock owner was liable for the damage caused by
unmooring the boat.)
(Vincent v Lake Erie – held that the dock owner was entitled to compensation for
damage to the dock when the boat owner docked out of necessity.)
Economic Arguments
1. Coase Theorem
“No matter who assigned a property right the parties will bargain for the generally
efficient/socially optimal result as long as transaction costs are sufficiently low”
2. Calebresi and Melamed
“When transaction costs are high and market bargaining won’t work, the legal
system should set property rights along with liability (tort) rules to create incentives and
achieve efficiency.”
ALTERNATIVES TO TORT LAW
1. Workers’ Compensation: Liability even without employer’s negligence. Every employer
engaged in a certain kind of industry shall be liable for any injury to a worker arising out of (cause
and origin) and in the course of (time, place, and circumstances) his employment. No recovery for
willful misconduct.
 New York Central R.R. v. White: Authorized first workers’ comp statute
 Employer liable for every accident that occurs at work, whether the employer is at fault or
not and whether the employee is at fault or not. Overruled prior doctrine that employer was
only liable to employee for negligence (and when employee was not contributorily
negligent).
o Workers’ comp is an exclusive remedy  injured worker has no option to sue in tort
for his injury, must accept defined benefits (unless intentional tort).
 Advantages: Efficient compensation, capped damages, predictability, lower litigation costs,
judicial economy, deterrence (employers make workplace safer to avoid accidents)
o Normally, for every $1 of tort compensation, $1.07 of overhead. For WC, however,
for every $1 of WC, only $0.23 in overhead (more efficient).
o Strict limits and schedules on compensation recoverable, calculated based on injury
and on expected lost earning power, up to a set statutory maximum.
 Disadvantages: Fraud is 10% of all WC claims and 25% of all payouts, capture of
administrative agencies, no corrective justice (no investigation into who was at fault)
 Clodgo v. Industry Rentavision: Court reversed administrative commission  no recovery
under WC for staple injury because accident unrelated to any legitimate, work-related
activity, deviation from work.
o Shugerman: By reversing administrative commission, court basically subverted the
entire purpose of WC: to keep these claims out of court; now injured workers will
simply appeal commission’s rulings.
2. No-Fault Insurance, No-Fault Compensation
 Abolish tort claims, liability regardless of fault on payer’s part or victim’s part
o Products: Difficult to apply to manufacturers because they cannot notify ultimate
consumers that they’re participating
o Automobile: Mandatory purchase of insurance by potential victims.
 Pure No-Fault, 1st-Party: Insure yourself for injuries that happen to you.
 Modified No-Fault: No tort claims for less serious injuries, can only sue if
injury crosses a certain threshold.
 3rd-Party: Insure yourself for injuries that you cause to someone else.
o Medical: Difficult because no way to determine/define whether P suffered a
compensable harm; impossible to distinguish illness or injury that P already had
when seeking treatment from that caused by treatment itself
 “Designated Compensable Events”
 Pafford v. Secretary of Health and Human Services: P alleged that vaccine
caused arthritis, had to prove that vaccine was substantial factor in causing
the harm and that harm wouldn’t have occurred but-for the vaccine.
Insufficient temporal link between vaccine and harm, so no recovery.
 New Zealand Plan: Most radical no-fault plan, abolished all private tort actions for
personal injury, replaced with comprehensive scheme that awarded benefits to all victims
 9/11 Compensation Fund