OUTLINE FOR TORTS II: Prepared by J. William Snyder, Jr. Term: Spring 1993 Text: Dobbs, Torts and Compensation: Personal Accountability and Social Responsibility (1985 & Supp. 1990). Instructor: Professor Zelenak NOTE: This outline was originally prepared for my own private study, and it is based primarily on my own class notes, handouts, and excerpts from the textbook, either in paraphrase or direct quote. When possible, I tried to indicate material that has been directly quoted, but it is possible that some material from the textbook has been directly quoted without indication. I. Medical malpractice A. Res ipsa loquitur 1. Layperson res ipsa: No expert witness is required to testify as to the standard of care; a layperson is capable of determining that more likely than not the defendant did something negligent. 2. Expert res ipsa: An expert witness must testify as to the standard of care since a layperson is incapable a determining that more likely than no the defendant did something negligent. 3. Ybarra v. Spangard a. Plaintiff was given an appendectomy. When he awoke after the operation, he experienced severe neck pain that radiated down his arm. Is seemed clear that someone did something wrong (layperson res ipsa). b. The problem was that there was no way of fingering which one of the defendants or the precise instrumentality that caused the injury. Defendants argued that since plaintiff could not finger the precise defendant and the precise instrumentality that was responsible for his injury, his claim should not lie. Plaintiff was under the case of several doctors and nurses during the operation and immediately afterwards. Additionally, plaintiff was unconscious when the injury occurred, so it is impossible for him to determine which defendant and instrumentality was the cause. So, the trial court permits the plaintiff to use res ipsa. [More likely than not, at least one of the defendants knew what happened, so in order to smoke that person or persons out, res ipsa was permitted. A code of silence might have existed among the defendants to protect the guilty party, so the court threatens to hold them all liable unless the "start talking." c. The case is similar to Summers v. Tice (two defendants who negligently fired towards a flock of birds, and one of them hit the plaintiff, but because both were using the same ammunition, it was impossible to tell which one fired the injuring shot. Since one person was innocent but also obscured the true cause, the court holds that both can be held liable for the injury.) Here, the cause in fact of the plaintiff's injury is obscured, so all are held liable. The difference is that both the defendants in Summers were negligent, but here not all of the defendants could be found negligent. d. Suppose they all say (believably) that they did not know what happened? Should they all be held liable? I don't think they should. However, this case came up again on this very issue. The court ruled that even under such circumstances the defendants still can be held liable. e. Why not hold just the respondeat superior liable. Well, there are 2 respondeats superior (the hospital and the performing surgeon, whose assistants are his de facto servants and he is liable for their actions.) I would argue both respondeats could be held jointly and severally liable. B. Informed consent 1. Informed consent is a doctrine under which a doctor can be held liable for damages for performing an procedure upon a patient without informing the patient of a serious risk which comes to pass as a result of the operation. This doctrine arose out of the intentional tort of battery, since lack of consent to a touching is part of the prima facie case for battery and since uninformed consent is ineffective consent. However, it has since developed past its battery origins and now extends to failure to warn of risks for NOT undergoing a recommended medical procedure. Theoretically, the doctrine applies even when the operation is successful since battery is a dignitary tort. However, the doctrine is now treated as a theory of negligence, so the maxim "no harm, no foul" applies. 2. The two competing standards for determining what risks the doctor must divulge to the patient before the patient's consent can be effective. [No court holds that a doctor must inform her patient of all risks associated with a procedure, even those that are so remote that they can safely be ignored.] a. The "materiality" standard: Harnish v. Children's Hospital (1) Plaintiff consents to an operation to remove a neck tumor, but the physician fails to inform the plaintiff that there was a risk that the hypoglossal nerve, the nerve that controls tongue motion, might be severed. During the operation, the nerve is severed, and the plaintiff loses all motion of her tongue. She sues the physician, contending that had she known the risk she would never have consented to the operation, and that the doctor was negligent in failing to inform her of the risk. (2) The court holds that physicians are under a duty to disclose in a reasonable manner "all significant medical information" which a reasonable person would consider to be material to the decision of whether or not to undergo the procedure (Materiality test). The determination of materiality is one that laypersons can make without the assistance of expert testimony. (3) The physician has a limited privilege not to disclose certain risks if in her "sound medical judgment" disclosure would worsen the patient's medical condition or render the patient unfit for the procedure. (4) On the issue of causation, the plaintiff must prove that both she and a reasonable person would have refused to undergo the procedure had the risk been disclosed. (5) The materiality standard is more compatible with the bulk of negligence law in general. b. The customary standard: Woolley v. Henderson (1) Plaintiff's back operation resulted in some complications arising from risks inherent in the procedure. The plaintiff's doctor had failed to warn the plaintiff of the risks before the operation. (2) The court holds that physicians need only disclose those risks that are customarily disclosed in the medical profession. The standard of care must be established by expert testimony. (medical malpractice standard). (3) This standard is much more in line with medical malpractice in general. c. Pro and con for each standard (1) Pro "materiality" standard: Harnish (a) The patient is the one who will be undergoing the procedure, so should the standard be based more upon what the patient would have done had she been informed of the risk? (b) Our culture values personal autonomy highly. We believe people have an inherent right to preserve their own personal integrity. Indeed, morally significant consent is explicit and informed, not "tacit" and hypothetical. (2) Pro "customary" standard: Woolley (a) Doctors usually know what is best for the patient. (b) Fits in well with the rest of medical malpractice law. Accordingly, it can provide a physician with an absolute defense. (c) Avoids the problem with unreasonable patients. (d) Jury control. d. What if the patient does not want to know the risks? Should this be regarded as reckless behavior and treated as a strike against the plaintiff? (Recall Harnish's limited therapeutic privilege of non-disclosure.) e. What is the patient is unreasonable in the evaluation of the risk and the doctor knows it? (risk aversive patient) Should not the doctor respect that and inform accordingly? The RPS can serve as a substitute for more detailed info on the patient. f. What if most patients are unreasonable? Is the RP the typical person? No, since the RP is a hypothetical paradigm that may or may not represent the typical person. A typical person standard allows us to respect personal autonomy more than with the RPS. g. But-for causation: Supposing the doctor did disclose the risks to the patient, would it have changed the result? A subjective test points us towards patient-specific standards while an objective test points us more towards RP tests. Logically the test should be subjective only since our goal is to respect personal autonomy. However, the plaintiff is likely to lie on the witness stand in order to get her recover, so the courts have required an additional showing that a reasonable person would have refused to undergo the procedure as well. Granted, witness credibility is within the province of the jury, but the objective test has the appeal of greater jury control. [The McPherson case on page 333 where the court adopted the subjective test was legislatively overruled and the objective test reimposed.] h. Truman v. Thomas: Plaintiff repeatedly declined to have a pap smear, but her physician never advised her of the risks of not having one done. She later died of cervical cancer, and her estate sued her doctor. The court held that his failure to disclose that risk was negligent. This case represents a departure from the battery model of the informed consent doctrine. [Should the doctor have inferred from her refusal that she did not know the risks?] i. There may be no duty to disclose risks that are common knowledge, like infection. C. Tort and medical malpractice reform 1. Good Samaritan statutes: Virtually all states have enacted legislation absolving professionals (and people in general in some states) of liability for ordinary negligence when they render aid in an accident. Liability is permitted only for wilful misconduct or possible gross negligence. These statutes encourage rescuers to stop and lend aid. Otherwise, potential rescuers are deterred from assisting because of the possibility of massive tort liability. 2. Substantive changes in the law a. Plaintiff must show actual negligence in medical malpractice (no res ipsa) b. Local, not national, standard of care. c. SOL has a strict limit d. Medical contracts SOF: In order for a malpractice claim on the basis of a contract to lie, the contract must be in writing. e. Informed consent claims are strictly limited 3. Remedial changes a. Caps on physician liability. b. Collateral source rule abolished: damages against physician are reduced if the plaintiff has collected on a claim with her insurer. 4. Procedural changes a. Malpractice claims must be submitted to arbitration or other screening process before they can proceed to trial. 5. Insurance changes: some states allow physicians to band together to provide insurance for their number. 6. Might statutes limiting health care provider liability be unconstitutional under state statutes, like the host-driver statutes? 7. Is strict liability coupled with caps on liability in the future? II. Nonfeasance A. At CL, there was no general obligation to help others, even if the life of another was in danger and that person's life could be saved with no risk to the rescuer. (i.e. No duty to save a drowning person you see while walking on the beach.) B. Common justifications for the common law rule 1. You are not negligent, even if there is no risk to you 2. Slippery slope argument: If we obligate one person to assist in a given situation, where do we stop? 3. Cause in fact problems: no way to tell for sure if the rescue would have been successful. 4. Our society values individual liberty highly. Our society is organized around the principle that negative claim rights are more valuable than positive claim rights, those claim rights requiring the assistance of others. This is in accordance with the theory of Natural Rights, which is the closest thing our society has to an official political philosophy. [Do what you want...except..."] Cf. John Locke. C. Necessary distinction: Pure nonfeasance, where there is no obligation to act, and negligent "nonfeasance" where there is an omission is a larger set of acts giving rise to duties of care. i.e. it is a culpable omission, not nonfeasance, to fail to put on the brake to avoid rear-ending someone. D. Yania v. Bigan 1. Defendant was a strip miner whose equipment has created several deep gashes in the ground. One of these gashes was filled with 8-10 feet of water. The plaintiff's deceased and some others came on the defendant's land to discuss a business proposition. Defendant then asked his guests to help him activate a pump to pump out the gash. Apparently, defendant taunted and incited plaintiff's deceased to jump in the water. He did so and drowned; Bigan failed to assist. Yania's wife has sued the defendant for wrongful death. The plaintiff pleads negligence, charging defendant for enticing Yania to jump in and for failing to try to save him after he did so. 2. Enticing Yania to jump: The court seems to hold this was no negligent, and moreover, Yania, as a 33 yr old adult in full possession of his mental faculties, was negligent in jumping in. Additionally, Yania's act was an intentional supervening cause, thus depriving plaintiff of a proximate cause. Clearly there is a CIF, but no proximate cause. 3. Failure to aid: Nothing in the facts suggests that the two were in a special relationship that would give rise to a duty to aid. - If we altered the facts slightly, a special relationship might arise (1) Child (2) Mental incompetent (3) Deliberate deception 4. It occurred to none of the parties to consider that there might have been a duty of care to business invitees who are injured on the premises. Unfortunately, such a duty might apply only to negligent invitees, and not to invitees who commit intentional acts and injure themselves [Should we be liable to someone who intentionally sticks his hand in the meat slicer?] E. South v. National RR 1. Plaintiff was injured in a collision between his truck and the defendant's train. The train's engineer refused to cover the plaintiff with his new parka because he did not want to get blood on it (it was a cold night, and the plaintiff was seriously injured). Defendant sought to exclude sections of the engineer's deposition which it considered to be inflammatory and prejudicial. 2 grounds a. Irrelevant: If the engineer had no duty to aid, then such evidence is irrelevant. b. Inflammatory and prejudicial: The testimony makes the engineer out to be a cold and heartless SOB. 2. The court adopts the Restatement's 322, which states that one who negligently or innocently injures another and who has knowledge that his conduct has caused the injury and the injured person is left in a dangerous state and vulnerable to further harm, then he has a duty to exercise reasonable care to prevent further harm to the injured person. Breach of the duty makes one liable for any ensuing harm. - This duty has long been held to exist for negligently caused injuries, but the Restatement extends it to innocently caused injuries as well. Here, the defendant has not been shown to be negligent, so a stiffer rule is needed to hold it liable. 3. Accordingly, the court decides the evidence is relevant. 4. Is 322 a good rule? Is the moral distinction between an innocent bystander and an innocent participant all that great? Well, an innocent participant is at least involved and in a position to render timely assistance. It also avoids the slippery slope argument by drawing a clear and fast line. 322 is reconcilable with Bigan since Bigan was not a cause at all of Yania's death. F. Special relationships: Farwell v. Keaton 1. Farwell and Keaton were good buddies who were out for a night on the town. After harassing some girls and after the girls complained to some male friends of theirs, the two were pursued by the girls' friends. Keaton got away, but Farwell took a severe beating. Keaton found Farwell under a car, put him in the back of his car, put some ice on his wounds, and allowed him to go to sleep. Keaton continued to drive around instead of seeking medical assistance. He finally left Farwell outside Farwell's grandparents' house without telling anyone where Farwell was. Farwell was found in the morning and given medical care, but his injuries were so great that he died 3 days later. His survivors sue for his wrongful death. 2. While there is no duty to render assistance, if one does render assistance, one is under an obligation to do so using ordinary care. If you negligently injure the victim or leave the victim in a worse position than when you found him, you are liable for misfeasance. 3. The court also finds that since they were buddies on a social outing, there was a special relationship between the two giving rise to an implicitly duty to help one another should the one of the get into trouble. [Compare to Beardsly in criminal law, where the court declined to find such a relationship between 2 lovers.] 4. But-for cause analysis: would someone else have come along and helped? We can't tell for sure because Keaton obscured the causality. G. Exceptions to the nonfeasance rule 1. In general, the explanations for the exceptions to the nonfeasance rule are so strange that it appears that courts do not like the nonfeasance rule. a.  322 (Natl RR) b. Special relationships (Farwell) 2. DeShaney v. Winnebago County Department of Social Services a. A boy living with his father was being beaten on a regular basis. DSS had considerable notice that the boy was being beaten, but DSS did nothing. The boy was not removed until he was severely beaten. The boy and his mother sue the state for deprivation of liberty without due process. b. By a vote of 6-3, the S.Ct. decides that this case poses no constitutional issue. The Court reasons that the DPC cannot be construed to impose affirmative obligations upon the state to protect persons against deprivation of life, liberty, or property by private actors. Instead, the purpose of the DPC was to protect persons for state power (thus the state action requirement attached to the DPC.). Nor does the court believe that any sort of "special relationship" was created between Joshua and the state akin to the relationship between prisoners and the state (Estelle) or institutionalized mental; patients and the state (Youngberg) since there was no restraint or other control exercised over Joshua. The Court however concedes that DeShaney may have a claim under state tort law under Restatement (2d)  323. c.  324 (1) Actually hurt a person through negligence (2) Left person in a worse situation after rendering aid. d. The S.Ct. uses reasoning analogous to that used in the CL. The Court concludes that DSS did not leave him in a worse situation because they only sent him back to the same situation. (?) e. The Court appears to pass over a contradiction between  324b and the commentary on it: "worse position" vs. "same peril". DES effectively shut everyone else out of the picture. What would have happened had DSS not existed? (Is the person worse off than if you never had acted? Hard to say). H. Contract and tort 1. Thorn v. Deas a. Plaintiff and defendant owned a ship. Defendant promised to buy insurance on the ship, but he failed to do so. The ship sinks, finds out that the boat was not insured, and sues the defendant. Plaintiff sues for 1/2 of the interest in the boat. The trial court awarded the plaintiff the damages he sought, but the App.Ct. reversed under two theories. (1) No contract existed because of the lack of consideration (2) No tort was committed because of the rule against liability for nonfeasance. b. But what if the defendant negligently attempted to procure insurance and failed to procure it? If the plaintiff could have proven this, he might have had a claim against the defendant. c. Promissory estoppel ( 90) had not yet matured into a viable legal theory. d. What about a tort claim? Nonfeasance (1) Making and breaking a promise (2) Special relationship between the two parties. (a) Co-ownership (b) Taking charge 2. Mobil v. Thorn a. Plaintiff was Mobil Oil corporation, and the defendant was a gas station owner/lessee. Mobil was suing for money owed on the lease and for petroleum products. Defendant counterclaimed for injuries that occurred on the premises. The roof leaked and caused the floor to become slippery. The lessee slipped and was injured. Lessee gave notice to Mobil of the problem, but Mobil did nothing. b. While the parties clearly had a contract right for repair of the leased premises and that duty was clearly breached, the real question was whether that contract right gave rise to a tort duty. c. This question brings up the difference between general and special damages (1) General damages: standard contract (expectation and reliance) damages. Liability for these is clear. (2) Special damages: tort-type damages. Liability for these is not so clear. Under the rule of Hadley v. Baxendale, special damages cannot be recovered unless the other party has notice or is put on notice that they might be incurred. d. CL rule: tort actions cannot be predicated on contract provisions to effect repairs. This rule has been abrogated by statute with regard to residential leases. e. Whether you are suing under a contract theory for tort type damages or in tort under a duty that arose via contract is critical because the SOL for contract and tort claims differs. f. Is the CL duty any better? Here, the landlord is only liable for contract damages. Is the tenant the least cost avoider? (Not in my opinion). Zelenak believes that the landlord is the least cost avoider. Accordingly a tort duty should be imposed on Mobil in order to encourage it do make repairs. 3. What if the contract itself caps consequential damages (liquidated damages)?: DCR v. Peak Alarm a. This case involved a contract to supply a burglar alarm system in the plaintiff's store. The store was burglarized, and the alarm failed to work because the burglar had deactivated it. The plaintiff sued the defendant for negligence, but the defendant defended on the grounds that their contract contained a provision limiting damages to $50. b. The court saw that case as a tort case and ignored the liquidated damages clause, opting instead to impose a general duty of care. c. Should the plaintiff be able to bargain away tort rights by contract? (Express AR?) d. Since a burglar alarm is a "good" within the meaning of the UCC, the plaintiff potentially had a claim based on implied warranties. However, in all likelihood, the seller had disclaimed all the implied warranties. 4. Moch v. Rensselaer Water a. Defendant water company was under a contract with the city to supply water to the city, including water for the fire hydrants. The city was to pay the defendant $42.50 a year per hydrant (not a huge amount of money). The water pressure fell below contract specifications, and a fire broke out in the plaintiff's warehouse. It burned down because there was not enough water pressure to put out the fire. b. Plaintiff sued the water company under 2 theories (1) 3PB contract: plaintiff argues that the water contract was for the benefit of third parties, including him. If the parties intended for the contract to benefit 3rd parties and if parties intend for the contractor to be liable to third parties, then third parties can sue the contractor for breach. Cardozo rejects this argument. Finding for the plaintiff would have turned the water company into an insurer who would be unable to cover potential losses of "claimants" with the $42.50 per year it collects on the fire hydrants. Additionally, there is no express intention on the part of the defendant to be liable in tort to third parties (individually). Given the low rate of compensation, it would not be reasonable to assume this obligation. (2) CL tort: The alleged tort was "failure to provide adequate water pressure." Cardozo rejects this argument as well, stating that this case involves non-actionable nonfeasance. (Nonfeasance is a "nothing", but "nothing" can be something!) c. Counterargunment: Knowledge of hydrant caused reliance on the part of the plaintiff and discouraged him from taking any further protective steps. Is he any worse off? Would the same thing had happened if the defendant had never existed? Well, the person would have contracted for water from someone else who would have done it right in all likelihood. d. Suppose plaintiff could point to an exact negligent act? i.e. suppose a spillway was left open, cracked valve, etc. These are still mere nothings. e. There is not much talk about "fault" in contract since breach of contract is "strict liability", whereas tort is based on fault. Contract liability is also limited liability. f. The plaintiff tried to combine contract strict liability, but he sought special (tort) damages. The court is not fond of this attempt- not fair to the defendant. So, the court might have been persuaded by evidence of active negligence, but probably not. g. Insurance perspective: Should the defendant be made an insurer? (1) If we are going to make them the insurers, should they not be permitted to charge more, but they certainly did not collect premiums to cover past harms. (2) When tort liability is used to impose insurance- type damages, the reason is usually that insurance is not available. (3) Real insurance is strict liability (i.e. it burned and it wasn't arson). (4) Tort "insurance" (a) fault (b) Causation (CIF and prox cause) (c) Was the water pressure up to specs. h. The only advantage to holding water company liable encourages them to be more careful. 5. Williams v. City of North Las Vegas a. A piece of metal came into contact with a 12000 V power line, killing the plaintiff. The city was under a contractual duty to inspect the lines. The city defended on the grounds that they "didn't do anything." b. The court holds the city liable, construing the contract as for the benefit of the general public. c. Without the contract, the power company would be liable for misfeasance, but the city would by "guilty" of only nonfeasance. d. Restatement  452(2): It is permissible to shift duties of safety by contract. (However, there seems to be some public policy limit to shifting duties in some circumstances.) e. Allowing a nonfeasance defense would diminish public safety. f. Proximate cause analysis: not foreseeable to the company that the city would not inspect the lines. 6. Florence v. Goldberg a. The plaintiff's mother had been walking him to school, but she stopped after seeing that a crossing guard had been stationed near the school. One day, the crossing guard was sick and could not work. The police do not find a replacement, and the plaintiff is injured while trying to cross the street. b. This case involved no express promise. It is almost akin to PE/reliance. Also, it is similar to  322- Plaintiff is worse off than if the defendant had not acted at all. The duty is imposed by "something, inducing reliance on something other than a contract. c. Problem: Suppose a family sends its child to school without walking her to school, even if there is no crossing guard: There is no liability if the child is injured (No CIF or prox cause). Without reliance, no CIF. d. Is there an affirmative obligation to provide crossing guards? It seems so only if there is reliance. Accordingly, this case is inconsistent with Thorne v. Deas. e. Riss v. NYC: The city is under no obligation to provide police protection. 7. Guenero v. Copper Queen a. Illegal aliens take their kids to a private hospital for emergency treatment. The hospital refuses to give treatment. Under CL, there is no duty to provide care to a person. b. The court finds a statutory duty to provide emergency care to the public. Public policy demands that hospitals provide emergency care to anyone who might need it. The court also discusses reliance. The statutory duty is similar to negligence per se. I. Duty to protect against the intentional torts of others 1. Nallan v. Helmsley-Spear a. Nallan, who had been fighting corruption in his union, is shot in Leona's lobby. The guard was not on duty at that moment. b. Nallan invoked 2 theories of liability (1) Violence upon 3rd persons was foreseeable, so the defendant was negligent in not taking affirmative steps to prevent such dangers. (2) "Taking charge" brand of special relationships giving rise to a duty of care. c. The jury returned a verdict against Nallan, finding that although there was negligence, an attack upon a 3rd person was not foreseeable (a contradictory response?). d. The owner of property open to the public must use reasonable care to ensure the safety of persons who come upon the property as business invitees. Corollary: duty to take affirmative steps to protect business invitees from intentional torts when such torts are foreseeable based on past experience. e. Restatement rule  344 (1) Possessor of land (2) Open to the public (3) is liable for harm caused by (4) intentional harmful acts of others that are foreseeable (5) and for failure to exercise reasonable care to (1) discover that such acts are being committed or are likely to be committed, or (2) To give adequate warning to invitees or to take other preventative steps against such intentional acts of violence. (6) Landowner must have reason to know based on past experience that such acts are likely. Only then must the landowner take affirmative countermeasures, like hiring security guards. f. Fact analysis (1) 107 reported crimes in the bldg, 10 of which were crimes against the person [but was a mob-style "hit" foreseeable?]. (2) No evidence any of them took place in the lobby. (3) But the jury could have found that such an act in the lobby was foreseeable, and further, that the defendant failed in its obligation to provide protection. [Proximate cause giving rise to a duty of care.] (4) Possible respondeat superior theory if attendant was negligent in his duties. (5) But they still might not be liable for temporary withdraw unless they meet the Moch and Goldberg tests. g. The plaintiff must prove (1) Defendant undertook to provide security (2) Defendant was negligent in not performing that duty (3) Defendant's undertaking put plaintiff in a worse position than he would have occupied had the defendant taken no action at all. (4) Was plaintiff lulled into a false sense of security by the defendant's inaction, and more importantly, was a feeling of security justified by the defendant's actions? h. It seems that our discussion of proximate cause that one is not required to foresee the intentional torts of others must be qualified in light of Nallan and  322. According to Nallan, if one is a landowner of land open to the public and he can reasonably foresee the possibility of intentional torts being committed upon persons on the land, then he is under a duty to take reasonable steps (act like an RP) to discover the commission or conditions of such acts and to warn people upon the property or take other steps to prevent harm from coming to them by way of such acts. Accordingly, this duty may require a landowner to not only foresee but also to prevent the commission of intentional torts upon the property, thus giving the plaintiff his proximate cause should the defendant breach the duty. In this way, the case appears to be similar to Deridian v. Felix Contracting i. Unfortunately for Nallan, he brings his danger with him (efficient intervening cause). j. Is there a special relationship that gives rise to a duty of care? If not, then the defendant is "guilty" of nonfeasance only. That duty of care can be found in the landowner/business invitee relationship, as the invitee is owed a duty of reasonable care. k. Misfeasance involves a duty of care which can arise from a special relationship (relational duty). i. **** Virtually any duty of care question can be recast as a proximate cause question (surprise, surprise!) Whenever we ask questions about duties of care and proximate cause, the inquiry is the same: do we want to impose liability in this situation? j. Arguments for the defendant in Nallan. (1) Duty should be only for risks peculiar to the bldg, not risks peculiar to the plaintiff (casting the nature of the harm in narrow terms: were assassinations peculiar to the bldg? No, that risk followed him around.) (2) Dillon (limited damages): There is but for causation, but what he was deprived of (a few more minutes of life) was not worth much. (3) Proximate cause: were assassinations foreseeable? No. Cast the nature of the harm narrowly, as opposed to broadly (like violence). l. You would want to avoid a contributory negligence argument in this case because most states now have replaced CN with CpN, so not only would you be conceding that you owed a duty of care, you would stand to pay the plaintiff at least something. 2. Goldberg v. Housing Authority of Newark a. Milk delivery man is attacked while making a delivery in a housing project. b. Questions of duty are questions of law and are decided by the judge. Whether that duty has been breached (negligence) is a question of fact for the jury. c. The duty of care: (1) "known, separate, and localized hazard" (2) Business draws trouble making persons (3) Business creates a risk by posing special temptations or chances to perform criminal acts. This case fits none of these. Imposing a duty would impose a vague and nebulous duty of care. It would corrupt the elements of negligence and causation. 3. Butler v. Acme Markets a. The court comes close to overruling Goldberg. b. Nallan, Butler, and  344 are the general rule. 4. Parish v. Truman: a poorly decided case a. Plaintiff was a social guest in the defendant's house at 10:00 at night in a high crime neighborhood. Defendant failed to warn plaintiff about the high crime rate. Someone knocked at the door, the defendant opened the door, and 3 men entered looking for drugs and money. The plaintiff was shot 3 times. The plaintiff sued the defendant for negligence, alleging that the defendant owed him a duty of care to warn and protect him from such harm. b. The court found no special relationship that would give rise to a duty of care. It deemed the host/licensee relationship insufficient to give rise to a duty of care. c. This is not pure nonfeasance in the sense that it was a pure nothing: the defendant opened the door without first determining who was at the door. He clearly acted in a negligent manner given the nature of the neighborhood. 5. How to establish that a LL has a duty of care to protect tenants against the intentional torts of other upon the property. a. Lease/contractual duty. However, the damages in this instance will be consequential damages. (1) Tort damages are more of the essence of the contract. (2) It is not really reasonable to expect the plaintiff to "repair and deduct". (Mobil v. Thorn. b. Statues/CL/Building code. However, you have to establish that the statute/rule is a safety statute/rule before you can press it into service against the landlord. c. Reliance: Suppose security of some kind exists at the time you leased the building, but the LL later discontinues that service. Can a reliance argument be made? Well, it might be difficult for you to move to an apartment complex that does offer security, and that might constitute reliance. Does the LL have you over a barrel in that respect? d. CL duty imposed by law: The law may impose an affirmative duty to provide for minimal security under the special relationship theory (LL/tenant). Public policy demand that a duty of care be imposed upon the landlord. Counterargument: (1) What is the extent of the duty? The imposed duty is fairly vague. (2) How is the cost to be reflected in the rent? e. Question: Why is the duty of a LL to provide safety to her tenants still vague while the duty of a hotel owner to provide security to his guests is well established? (1) Hotel guests are generally unfamiliar with the area in which they are staying. Also, they may not be around long enough to learn about the area. Thus, they are generally in a more vulnerable situation than tenants of apartment buildings. (2) Higher transaction costs. 6. Rosales v. Stewart a. A 10 year old boy is killed by a shot fired by a guy who lived in the house across the street. The guy's landlord had reason to know this guy liked to discharge firearms periodically in his back yard. The plaintiff sues the landlord. Problem: looks a lot like a case of nonfeasance. b. Plaintiff's theory of negligence: Landlord failed to evict the tenant once he found out that he was conducting dangerous activities on the land. c. The court finds that the landlord was under a duty to 3rd persons to remove dangerous conditions on the land, even if that meant getting rid of the tenant. (3PB special relationship). 7. Tarasoff v. Regents of University of California a. Client of a psychologist tells the psychologist that wants to kill his girlfriend, Tatiana Tarasoff. The doctor tells the campus cops, but he does not tell Tarasoff, nor does he take any steps to have Tarasoff protected. Poddar, the client, ends up killing Tarasoff. Tarasoff's family sues. Problem: finding a special relationship between the Doctor and Tarasoff. b. The court imposes liability. The court recognizes that there are two competing goals and policies at work in this case (1) Safety to 3rd parties (2) Absolute confidentiality (a) Promotes free and open discussion that can be therapeutic and can lead to better treatment. (b) Encourages coming forward to get treatment. (c) Intrinsically good (noninstrumental value). c. The court rejects the noninstrumental value argument. Since the person who was about to be harmed was readily identifiable, it is easier to reject the noninstrumental argument than in a situation where the harm is hypothetical and in the abstract (i.e. the guy who says he wants to kill somebody, but he is not sure who.) d. The court adopts a hybrid-medical malpractice standard as opposed to a strict RPS: "reasonable therapist standard". If the therapist determines that under "applicable professional standards" that the client poses a serious danger of violent activity towards others, then the therapist has a duty to exercise reasonable care to protect foreseeable victims of that danger. e. Custom is an absolute defense: if you guess and you guess wrong, you still have an absolute defense. f. Suppose the custom is absolute confidentiality? In that situation, the court might have taken Judge Learned Hand's view that an entire industry might be negligent (T.J. Hooper). g. Tarasoff and AIDS: Should a health care professional who knows that patient has HIV and that the patient intends to have unprotected sexual relations or is going to engage in other high risk behavior have a duty to inform the patient's sexual partners of the test results? (1) Clear guidelines are needed for health care professionals on disclosure. Legislatures have jumped in an provided some standards. For example, some states have made it permissible to disclose the results to the person's spouse, though disclosure is not required. (2) NCGS  130A-135: positive HIV tests are absolutely confidential unless, under  130A-145, the results are being reported to a public health agency or disclosure is authorized by consent or court order. Does this sufficiently protect health care professionals? It may, but does it protect the general public? I don't think so. h. Would a less formal relationship fall under the ambit of Tarasoff? How about the relationship between a bartender and his customer? If friend/friend (Farwell v. Keaton) is enough to give rise to a duty of care, should not the bartender/customer relationship give rise to one as well? Olsen suggests that the relationship must be more formal. 8. Soldano v. O'Daniels a. Bartender at the Circle Inn refuses to allow a rescuer to use the phone to call the cops about an altercation at the Happy Jack saloon across the street. b. The court agrees that there is no relationship between the plaintiff and the defendant, nor is there any relationship between the defendant and the risk (creation of the peril?) However, the court reexamines the pure nonfeasance rule: When nonfeasance constitutes a "callous disregard for human life" and when rendering aid would impose a minimal burden, then the court should impose liability. (But suppose there is a pay phone on the premises that requires no money to call 911?) c. Does the court's holding abrogate the nonfeasance rule? The holding of the case is radical is you take it seriously. d. Other more plausible theories for arriving at the same conclusion of finding a duty of care: (1) Duty not to interfere with a rescuer. (2) Necessity/"Punch 'n Pay" a la Ploof v. Putnam: Minimal trespass in order to perform a rescue. e. However, this court is more concerned with public policy in allowing emergency phone calls, and this court indicate no such duty exists on private persons (Contra Ploof). The duty is imposed only upon public businesses. 9. Liability of servers of alcohol to persons injured by the persons they serve. a. Olsen v. Copeland (1) This was a wrongful death action filed by Olsen's survivors against a drunk driver and the owner of the bar that served the driver alcohol shortly before the accident. Copeland, the owner of the bar, demurred to the complaint. (no legal duty of care). (2) The court concludes that Copeland was under no duty of care to the plaintiff. The court gives 6 reasons for its conclusion. (all of which are pretty lame) (a) Injury is too remote from the negligent act. (b) Damages are disproportionate to the negligent act. (c) The injury is not foreseeable (not only is this not true, but it is exactly the same argument as in (a).) (d) The duty of care would be "too burdensome" to the defendant. (This argument begs the question and is the same argument as in (b). Additionally, society's values have changed with regard to these two arguments.) (e) Possibility of fraudulent claims (f) Slippery slope argument that liability could snowball. (But, we use proximate cause to cut off liability). (3) The court feels that the driver is the real party at fault, and that any attempt to shift liability by holding the parties J&S liable would shift it away from the real person at fault. However, this is simply not true. By permitting the tavern owner to collect full indemnity from the driver, the driver would end up paying the entire damage award, and the tavern owner ends up paying only if the driver is insolvent. (4) Imposing liability on tavern owners might make their liability insurance premiums increase, but those increases will be reflected in the higher prices of alcohol, so the external costs of alcohol consumption will be internalized to some degree. (5) Imposing liability would also encourage bars not to serve intoxicated persons. (6) The plaintiff in this case had a large obstacle to overcome: proximate cause. The defendant could always argue that the driver's act of drinking and then getting behind the wheel of a car was an intervening or superseding cause, thus cutting off liability. (6) This case has been overruled, and in Wisconsin, commercial servers of alcohol can be held liable to the victims of the drivers they serve. (7) Many states have so-called "Dram Shop Acts" that make purveyors of alcohol liable to the victims of drunk drivers. b. Social host liability (1) Why should we hold commercial sellers of alcohol liable to the victims of the drivers they serve, but not hold social hosts liable? (a) Social hosts are generally not experts in determining if someone is too intoxicated to be served another drink. (b) Social hosts have less control over the alcohol that is served (open bars, etc) [A pretty bogus argument.] (c) Excessive burden (d) Social hosts do not profit from serving alcohol. (Maybe not in cash, but how about intangible profit, like good will?) (2) Trends regarding social host liability (and liability for commercial sellers of alcohol.) (a) Typical statutes (1) Alcohol licensees: may not serve intoxicated persons by statute (This is clearly a safety statute.). However, this statute does not cover social hosts. (2) No one may serve alcohol to an underage person. (b) CIF problems: Which drink is the one that makes the person drunk? The last drink served may not have been the but for cause. However, courts have often reversed the burden of proof to the defendant seller to prove that the drink(s) he served was/were not the but for cause of the drunken state. (c) Excused violations of the statute (1) Interpret the statute in such a way to say it was not violated. (a la Tedla v. Ellman) (2) If you did everything a RP would have done to comply with the statute, then the court may excuse the violation. (d) Hart v. Ivey: social host liability in NC. (1) A social host served an underage guest. (2) The court holds that violating  18B- 302 cannot be held up as negligence per se because it is not a safety statute. The statute exists to protect underage persons from themselves. (3) But, the court finds a CL duty not to serve alcohol to an intoxicated person when it is foreseeable that the person will be driving. (4) NC is on the vanguard of the law in this holding. It stands to dramatically alter the behavior of servers of alcohol across the state. (5) How to live with the Hart v. Ivey rule if you want to throw a party and serve alcohol. (a) Buy single event liability insurance. (b) Provide rides/accommodations for intoxicated guests (c) Hire a bartender to monitor the flow of alcohol. (d) Don't have the party! (TOTALLY BOGUS! (e) What if the driver sues the server? (1) CN/AR/CpN Problem: If you have invoked CN, you will have to deal with the last clear chance (last sober chance) defense to the charge of CN. Also, you may have to deal with a charge of wilful/wanton misconduct on the defendant's part. Additionally, you may have to deal with a Bexiga-type argument that the server had a duty to protect the driver from his own CN, especially when the sort of CN is foreseeable. However, this may be inconsistent with a duty for the benefit of 3rd persons. (2) Your own fault! (3) No duty of care or no proximate cause (intervening/supervening act). c. Fuller v. Standard Stations (1) Defendant gas station sells gasoline to a drunk driver and the driver got into an accident. The victim sues the gas station for negligence. (2) The victim's theory of negligence: Negligent entrustment of a car to a drunk driver is deemed negligence for supplying the instrumentality of harm. Here, the putative instrumentality is the gasoline the defendant sold to the driver. (3) The court opts for the traditional rule of no liability in this situation [no special relationship.]. III. Strict liability A. Respondeat superior/Vicarious liability 1. Under the theory of RS, an employer is liable for the torts of his employees committed during the scope of employment. 2 limitations on the doctrine are readily apparent. a. Employer vs. Independent contractor b. Scope of employment 2. RS is an amalgam of SL and negligence a. Employer need not have done anything wrong, but b. Liability is hinged upon a showing of negligence on the part of the employee by the plaintiff. 3. In theory, the employer is entitled to seek indemnity from the employee, but the employer rarely seeks it a. The employee may be insolvent and unable to come up with indemnity money. b. Seeking indemnity tends to poison the employer/employee relationship. 4. Policy examination: Why have RS? a. Economic efficiency: RS tends to internalize the external costs of doing business and spreading those costs among those who can more easily bear them. Suppose a given business inflicts $100 in accident costs. If the employer is not made to pay, then those costs are external to the employer. $60 in training costs would avoid the accident, but if RS is imposed and the employer is held liable for $100, then the employer will find it cheaper to spend $60 to avoid the costs. Society is better off by $40. [Problem: can't the employer be held negligent for not providing training? Hand formula: B < PL] b. Also, it is easier to prove employees negligent than it is to prove employers negligent. c. Suppose training costs are $150. Now, in theory, we have a different result between RS and ordinary negligence. Also, the employer has no incentive to incur the training costs. d. When employers pass the costs along to the customer and the demand falls, less of the product that causes the harm is consumed, and that is good. e. Fairness: since business & customers benefit from a risky activity, it is fair that they should help bear the costs of the activity. f. Cost spreading/insurance: Everyone should pay a little bit rather than making an injured person pay the whole cost of an accident. g. Econ arguments for absolute SL, but RS has not gone that far since it still requires negligence in order to trigger liability. 5. Hinman v. Westinghouse a. In this case, a LA policeman was injured by the defendant's employee while the employee was driving to work. The employee was entitled by contract for compensation for commuting time and costs. b. 2 questions (1) Was the employee acting within the scope of employment (a) Time & place (b) Furtherance of employer's interests (2) Are there exceptions to the "goings and comings" rule? c. "Goings and comings" rule: The employer is not liable for accidents that occur during the commute to and from work. d. The employee in this case was a union member under a union contract under which he got paid for time he spent commuting. e. The court adopts an economic based argument: by reaching out into other labor markets and by paying commuting costs, the employer incurs some benefit, and so it should have to bear the extra costs associated with that benefit. 6. Edgewater Motel v. Gatzke a. The employee in this case was a "24 hour man" for a chain of restaurants. One night while filing out his time sheet in his motel room, he lit up a cigarette. After falling asleep, the room caught fire. The fire spread to other parts of the motel, causing extensive damage. b. The key question is whether the employee was acting within the scope of employment when he was smoking. c. This court sides with the jurisdictions that hold that smoking is within the scope of employment, and it lays down a rule to that effect. Smoking is associated with business, since it can help employees work better, and work makes smoking more dangerous since the stress of the job may make the employee smoke more carelessly. 7. RS liability for intentional torts: Employers are liable for the intentional torts of their employees only when the work provides the opportunity or incentive for loss of temper. The risk must be sufficiently associated with the employment to be within the scope of employment. (i.e. a bouncer in a bar.). The shift is to foreseeability (prox cause) from intentionality in this situation. 8. The "borrowed servant" rule: Kastner v. Toombs a. In this case, Toombs, the parent employer, lent one of his employees, a backhoe operator, to Clearwater, the temporary employer. Clearwater ordered the employee to dig a trench, and the employee warned that the trench he was asked to dig would likely cave in; Clearwater told him to dig it anyway. Kastner was injured when the trench caved in. The question is which employer can be held liable as the RS. b. Under the CL borrowed servant rule, the employer who borrows the servant is liable, not the parent employer. c. The AK court does not care for this rule since it allocates the costs only to one employer when the costs should be allocated to both employers. (Control vs. Risk theory) d. Control theory does not help here, since it depends upon how broadly you construe "control over the employee". In this sense, it is also question begging. e. The court opts for a contribution/indemnity approach. The plaintiff should be able to recover from either- we can figure out how much each should pay later. This is similar to the Olson v. Copeland distinction, except this court gets it right. f. Could not the shifting liability by contract rule be used here to justify the borrowed servant rule? Answer: These parties did not contract to shift liability. 9. Independent contractor/employee distinction: Leaf River v. Harrison a. Leaf River operated a sawmill, and it contracted with McDonald to cut and haul timber. One of McDonald's trucks was involved with a collision with the plaintiff, and the plaintiff was seriously injured. Plaintiff sued Leaf River based on an RS theory. b. There is no clear cut line between when a person is considered an employee and when a person is considered an independent contractor, but there are some major indicators. (1) Right to control the details of the work. (2) Regular payroll payments to the servant. (3) Separate business/skill level (own capital, employees, # of different contracts with others.) c. The distinction also shows up in tax law, because whether someone is an independent contractor or an employee determines who has the responsibility of sending Social Security taxes to the government. So, don't forget tax cases if you are trying to find out what class to fit a tortfeasor into. d. Why the distinction? (1) A party who is injured ought to be entitled to 1 and only one deep pocket. This plaintiff was already able to collect $100,000 from McDonald, the limit on McDonald's insurance policy. (2) Control theory still pervades the law in this area. e. Why focus only on one business? Under risk/benefit analysis, should not both parties to the contract bear the cost of the tort since they both benefit from the activity? f. The court finds that since Leaf River did not supervise McDonald or any of his employees, that McDonald used his own equipment, that McDonald was paid on the basis of volume units of production, that McDonald paid his own workmen, regulated their time, that McDonald financed his own operation, and McDonald controlled the physical management of the equipment and the workmen, and because McDonald was required by the terms of the contract to carry his own workmens' comp insurance, that McDonald was an independent contractor, and so Leaf River was not liable under an RS theory. 10. Nondelegatable duties- inherently dangerous activities: Boroghs v. Joiner a. Defendant was a farmer, and he hired a pilot to crop dust his fields. The pilot dusted the fields with the chemical Endrine, and the chemical contaminated the plaintiff's fish pond. Plaintiff sues defendant under an RS theory. b. Independent contractor considerations (1) Not on the payroll (2) Pilot had his own equipment (3) No detailed control over the operation (4) The pilot had special skills in a particular area (5) Separate business c. Normally, this would be the end of the case since it seems clear that the pilot was an independent contractor based on the above considerations. However, since the court believes crop dusting is an inherently dangerous activity, the court imposes liability upon the farmer. d. Imposing liability in this situation imposes liability on the farmer even though he was not negligent. This holding is extremely close to imposing SL on employers. (It is possible to deem the farmer negligent for allowing the crop duster to use Endrine). e. The court is trying to say that there must be negligence in the picture, but they put the negligence on the farmer. Should they not look to the servant instead? If the farmer is negligent, there is no need to invoke RS. f. Other non-delegatable duties (1) Statutory duties to provide safety for others. (2) Maintaining safety on land open to the public. 11. Becker v. Interstate Properties a. Plaintiff was severely injured on a job site when a truck ran over his pelvis. Interstate was the general contractor, and Wood-Pine was the subcontractor. (Plaintiff worked for Wood-Pine). Wood-Pine employed Windsor, and its employee drove the truck which injured the plaintiff. In looking for someone to sue, the plaintiff has to look for someone with money and liability. (1) Driver of the truck? NO (2) Windsor? NO: it is insolvent and does not have a lot of insurance. (3) WP? NO: His only remedy against WP would be in workers comp. (4) IP? YES. b. Problem: the negligence is too far removed from IP since the tort was committed by the employee of an independent contractor. c. So, the prudent thing to do is to flip to the Restatement and to find an exception to the independent contractor rule. On grounds of pure policy, there ought to be liability. By hiring financially responsible subcontractors, you pay more though you are not liable yourself since the subcontractor's insurance costs will be reflected in its bid. Thus, the contractor will end up bearing some of the cost. It is cheaper to hire financially irresponsible subcontractors absent liability, so there is no incentive to hire financially responsible contractors. Since this is an inefficient result, tort law should step in and react. NJ courts have reacted under the Majestic rule d. Majestic rule: 3 exceptions to the independent contractor rule. (1) Contractor retains control over the activity that gives rise to the negligent act. (2) The independent subcontractor is incompetent. (3) Inherently dangerous activity. Invoking Majestic helps the plaintiff explain policy considerations to the court and gives it a precedential peg upon which it can hang its decision. Thus, it can claim it is making its decision within the framework of existing tort law. e. Becker talks up (2), and he relies on discussion in Majestic concerning losses caused by financially irresponsible subcontractors. f. The court also discusses the three policies of spreading costs, minimizing losses, and assuring that risks are borne by those who benefit from them. Accordingly, the court reverses the summary judgment that was entered for the defendant developer. g. Analogy to corporations: Normally, the corporate entity protects the shareholders from liability for the corporations acts. However, when the corporation is insolvent or when a corporation is owned completely by another corporation, then the court may "pierce the corporate veil" and hold the shareholders personally liable for the corporation's acts. B. Strict liability in the history of tort law 1. In the 20th century, tort law came to be based on fault. But, fault was not always central to tort law. At early CL, strict liability reigned supreme. 2. The first recognized tort was the tort of trespass. It had 2 elements: a. Force b. Directly imposed to person or property 3. The orthodox view was that once the elements of the tort were established, the defendant was held SL for the harm incurred by the plaintiff. a. Weaver v. Ward: Plaintiff and defendant were involved in a mock battle, and defendant injured the plaintiff. Under one interpretation, the defendant claimed that the injury was not his fault, but the court responded that fault was not required. Under a second interpretation, the defendant claimed that the injury was not inflicted on purpose, and the court responded that intent was not required and that negligence was enough. According to the court, extraordinary care operates as a defense, so there is not absolute SL. 4. Trespass on the case was a tort similar to trespass except for 2 key differences a. Direct force was not required b. Negligence is required and the plaintiff must prove it. 5. Brown v. Kendall and the introduction of fault into trespassory torts. a. The defendant was beating his dogs with a stick, and as he drew back to hit one of his dogs, he clipped the plaintiff in the eye. The defendant claimed it was not his fault, and the plaintiff responded, "So what? this is trespass, and the defendant is to be held SL if the 2 elements are met." b. The court decides not only that the defendant was not at fault, but that fault has always been an element of trespassory torts. The court in effect changes the law without looking like it is changing the law. c. Why did the court change the law? Most likely, industrialization is the reason. The very face of society was changing with the advent of the industrial revolution, and old CL rules like SL for trespassory torts were unsuitable for an industrialized society. Additionally, refusing to impose a requirement of fault could have opened up budding industries to a slew of claims for injuries to employees, thus inhibiting the growth of industry. However, the court chooses a fact situation that could have occurred at early CL to change the rule regarding SL liability for direct application of force to person or property. Why? (1) Christopher Columbus Langdell and his theory tha law was a science, like geology, and that all you had to do was to go out and find out what the law is. Accordingly, the court was not free to say it was changing the law. Instead, they had to make it look like they were actually discovering the true law and not making new law. (2) If this had been an RR case, it would have been obvious what the court was doing. This was it looks like what the court is doing is legitimate. d. Tort law of yesteryear: Inaction was favored over action. In pre-industrial society, there was no special value placed on action per se. You acted at your own peril, and the claim of "He hurt me" was enough to impose liability. e. During and after industrialization, public values towards the value of action changed. Action became preferred over inaction. Action was equated with progress in industrial society, and accordingly, you acted at another's peril since if you did not act negligently, you had a defense to any claim of injury due to your acts. f. The expansion of the railroads was critical to the development of this country, but the RR's also inflicted massive amounts of direct force onto people. Tort law was standing in the way of economic progress. The courts became wary of imposing SL on the railroads for fear that SL would drive the RR's out of business and destroy the economic expansion of the country. g. In effect, Brown v. Kendall gave a subsidy to the RR's. The external benefits of RR's seemed to outweigh the external costs, so subsidy seemed prudent. h. In an accident involving an RR train and a buggy that occurs through the fault of neither party, whom you impose the burden of the costs of the accident depends on whether you believe the costs should be "buggy costs" or "RR costs" Under old trespass law, the costs become "RR costs", but under Brown v. Kendall, the costs become "buggy costs". If you are partial to the principle of 1st in time, then you are likely to deem the costs to be RR costs. But, if you think progress is better, then you are likely to view the costs as buggy costs. (Buggies are standing in the way of progress, so they ought to bear the costs of their continued existence.) i. SL for criminal trespass was retained. This was not a logical distinction, but rather it was a value judgment. j. SL for animal trespass (1) England and minority of US: SL for animal trespass. (2) Western states: No SL: free range laws. In these states, if cows trample over your rose garden, the courts are likely to view the costs as "rose garden costs" and refuse to impose liability upon the owner of the cows. Thus, the cost of putting up a fence to keep out the cows should be borne by the owner of the rose garden. In England, these costs would be deemed cow costs, and the owner of the cows would bear the cost of putting up the fence. 6. Nuisance law: another SL holdout a. Bamford v. Turnley (1) Defendant was burning bricks in a kiln upon his property. The fumes pervaded the plaintiff's house, so the plaintiff sued to enjoin the defendant from burning bricks in the kiln. (2) The plaintiff sued for nuisance instead of trespass because the interference was with his beneficial use and enjoyment of the property, not with his exclusive possession of the property. (3) The court does not believe reasonableness is a factor in nuisance law. Instead, it is based on SC, not negligence. Nuisance law retained SL/SC/intent. Once informed that your activity is causing your neighbor woe, then you are SC that you are harming your neighbor. (4) Suppose that burning bricks yields $100 of benefit to the defendant and $40 of cost to the plaintiff. In this situation, the defendant should be permitted to continue burning bricks so long as he pays off the plaintiff (punch 'n pay a la Ploof). [However, punch 'n pay applies only in SC cases. The Hand Formula applies in cases of negligence.] Imposing money damages would internalize the costs, but an injunction would have the effect of stopping an economically efficient activity. Fairness points towards compensation, but efficiency points towards allowing the activity to continue. Therefore, money damages are appropriate, but an injunction would be inappropriate. (5) Defendant made the Hand Formula argument, and the argument was rejected. (6) Kiln/neighbor <----------> Ship/dock No injunction ------------ privilege/no eviction But damages ------------ necessity, but must pay damages (7) Why the distinction between risk (negligence) and substantial certainty with regard to how we treat them? (a) Economic efficiency may justify imposing the burden of a risk, but not the certainty of a risk. (b) Moral distinction between risk and substantial certainty. (8) Hyp: $100 of benefit to the defendant, but $120 of damage to the defendant. (a) Damages would be enough to stop the activity (and an injunction would work as well if it was deemed necessary). (b) But if the court gets it wrong and imposes no damages or injunctions, the parties will bargain in order to reach the right result. Defendant will be willing to pay, and plaintiff will be willing to accept, a "bribe" somewhere between $100 and $120 to discontinue the offensive activity. (9) Joint costs arising out of incompatible land uses. Is the $40 worth of damage that is being caused to be a "house cost" or a "kiln cost"? If you think it ought to be a house cost, you will not impose liability, but you will impose liability if you think that it is a kiln cost. How to decide? (a) Do we want to promote or discourage brick burning? (is brick burning economic development?) (b) 1st in time = 1st in right. The opinion opts for this justification (10) Baron Bramwell: The appropriate standard is reasonableness consistent with the use of the land. "Common ordinary use of the land" is the exception. (11) Now, if the plaintiff moved into an area where kilns had been operating for some time, then he would have "come to the nuisance," and an action probably would not lie. But, is this the right result? (Cf. next hypothetical) (12) Hyp: Suppose that a city grows to an extent that it takes in a feedlot which had previously been on the outskirts of the city. The area around the feedlot is now a suburban residential area, and the residents would like to see the feed lot shut down. A benefit of $100 inures to the owner of the feed lot, but $150 of costs are imposed on the neighbors. If the courts do not interfere, the residents will probably bribe the feed lot owner to shut down and move somewhere else (the free rider problem aside for a moment). If the matter goes to court, then efficiency indicates an injunction ought to be granted, but fairness (1st in time=1st in right) weighs in favor of allowing the feed lot to remain in operation. Additionally, the granting of an injunction would give the plaintiffs a windfall since they bought their property at reduced prices and now can sell it for much more than they paid for it. Furthermore, with several hundred land owners, you run into the free rider problem in either the "bribery" or "lawsuit" scenario. So, the market would fail to cure the problem. (13) Matrix: Victim 1st Perpetrator 1st Perp use Bamford: if the Suburb moving to inefficient harm > benefit, the feed lot: then damages or buy and injunction and injunction is needed Perp use Bamford: damages no damages/no injunction efficient but no injunction. (14) When efficiency and fairness point in the same direction, the problem may be easy to solve. Injunctions are appropriate in the first case, but damages are appropriate in the second. (?) b. Rylands v. Fletcher (1) Defendant is operating a mill, and he builds a pond over an old mine shaft (unbeknownst to him, because the ground appeared to be solid). The ground gives way, and water flood the plaintiff's mine. (2) There is no indication of negligence, nor is there any indication of intent or SC. Any liability will be STRICTLY SL: REAL SL. (3) Baron Martin favors negligence (a) Not a trespass, since the application of force is not direct enough. (b) Not an nuisance, since it was not harmful to the senses. Nuisance analysis usually rests on continuous/persistent invasions of little particles (not all at once or intermittent). (c) No fault So, no liability. (4) In the Exchequer Chamber, Judge Blackburn poses the argument that if you bring a dangerous but fleeting entity onto the land, then you are SL if it escapes. You bring the entity onto the land at your own peril if it escapes. He synthesizes a new rule from a string of old cases (a typical technique in common law reasoning). (a) Animal trespass (b) Leaky privy (c) HCl case involving the escape of Cl2. (d) Water In all these cases, the defendants were held SL. Accordingly, the defendant should be held SL. (5) In the House of Lords, the court affirms, but with different reasoning. The court talks about the difference between non-natural uses vs. natural accumulations. In the former, a defendant is SL to a neighbor if the substance escapes. In the latter, there is no liability for escape. (a) Unique location of a natural resource/ economically efficient use. (b) 1st in time = 1st in right (c) Nature of the substance (d) Common usage in the area Here, an impoundment of water is a non-natural use, so the defendant should be liable. (6) The House of Lords's rationale is a much better rationale than the one provided in the Exchequer Chamber. Also, it has a good policy justification: internalizing external costs. (7) Rylands was not well received in the US. This case expands the scope of SL at a time when negligence was taking over tort law. (8) The Exchequer Chamber's opinion favors inaction, and its answer harkens back to medieval times. (9) The underlying assumption is that the uses of the land are incompatible. What happens when fairness and efficiency point in opposite directions? Then the coal miners should have to pay off the mill pond owner to move somewhere else or they should have to go to court to get an injunction. c. Turner v. Big Lake (1) Defendant was an oil driller in TX who kept salt water in ponds upon his property. Plaintiff/farmer instituted a lawsuit when the salt water escaped and damaged his land. Plaintiff invokes Rylands to bolster his case. (2) The TX court rejects the "bringing upon the land" talk in Rylands, but the court seems to follow the House of Lords's reasoning regarding non- natural uses. Economic efficiency mandates that oil be given priority over farming. You can farm most anywhere, but you can't drill for oil anywhere. d. Sullivan v. Dunham (1) Plaintiff was killed by a flying stump blasted into the air by the defendant. (2) What is the liability for harm caused by blasting? (a) Liability in trespass for injuries to the person due to blasting (but would the blaster be liable under Brown v. Kendall). (b) Rylands (non-natural use) It looks like the plaintiff is without a theory of legal liability. (3) But, the court employs a bit of sleight of hand: Trespass to a person now requires fault, but trespass to land is still SL. So, the injury is incidental to the trespass to the land because flying stumps are direct applications of force. The court eschews liability for vibrations, since that is not a direct application of force. e. Exner v. Sherman Power (1) Plaintiff suffers concussion damage from defendant's blasting, and plaintiff sues. (2) The court finds no practical difference between concussion damages and flying stumps, and so it imposes SL. (3) Can these two holdings be made consistent. f. Restatement rule: The principle that the Restatement has distilled from these cases is that blasting is an ultrahazardous activity that carries SL. (Restatement (2d) of Torts  519 & 520. Ultrahazardous activities have 6 characteristics according to the Restatement. (1) High degree of risk (2) High likelihood of great harm (3) Inability to eliminate the risk (4) Extent to which the activity is not a common usage. (5) Inappropriateness of the activity (6) Hand formula: B < PL Though the considerations point towards a negligence analysis, but the analysis does not focus on how the blasting is conducted, but rather on the negligence associated with blasting itself. This is negligence on a broader scale, and it is much more influenced by policy judgments. Accordingly, we let judges decide such questions as matters of law. g. Hyp: Suppose a crop dusting plane crashes into a neighbors property. The only damage caused is by the impact, and no damage is caused by the chemicals used. Is there a defense even though the state recognizes  519 & 520? (1) Distinguish the cases: Crop dusting is inherently dangerous activity because of the poison sprayed through the air, but because of any likelihood that the plane might crash. (2) Proximate cause analysis/foreseeability might get the defendant off the hook. Negligence per se analysis might work as well (not the class of harm envisioned by any statute). (3) According to  519, SL is limited to the kind of harm the court originally envisioned. h. Apprehension on the expansion of SL: Caril v. City of St. Paul (1) Plaintiff is injured during a high speed chase conducted by police. (2) The court rejects the plaintiff's abnormally dangerous activity label for HS chases. However, Zelenak thinks the court will come to accept this argument at some point. The value and propriety of HS chases is being questioned. The court may begin ruling that HS chases are ultrahazardous except to chase and apprehend violent felons. 7. SL for defective products a. History: Manufacturers could always be pursued on a negligence theory, but the courts imposed the requirement of Privity of Contract (P/K). Accordingly, many people injured by defective products were barred from recovery. (1) Privity stopped with the retailer. Consumers were not considered to be in privity with the mfr. (2) Children, spouses, and friends of the consumer were not deemed to be in privity with the mfr. either. Tort analog: proximate cause/foreseeability: the courts cut foreseeability off with the first purchaser. Gradually, the courts started to chip away from the P/K requirement. Winchester & MacPherson. In the latter of the two cases, the focus moves decidedly towards foreseeability and negligence. Within a few years of MacPherson, most states had adopted its holding. b. Early SL theories (1) Express warranties of safety (entitling the beneficiary to consequential damages): Breach of the warranty gives one an SL claim. Unfortunately, breach of warranty is a contract theory, and one is not only limited to contract damages, but also the privity requirement remains in effect. (2) Implied warranties, such as the UCC warranties of fitness for a particular purpose and merchantability. Under UCC  2-314, breach of one of the implied warranties is SL, but the privity requirement remains in force. c. An early inroad into the privity requirement: liability for tainted food. Liability was predicated on a 3PB theory, not privity of contract. d. Some states have eliminated the privity requirement with regard to implied warranties. (Hennigsen) e. Other courts have adopted the Restatement SL liability for defective products in tort. However, NC has not adopted the Restatement position. Negligence, warranty, and privity are still viable in NC for liability for defective products that injure/kill. f. Exploding bottle cases (1) Escola v. Coca Cola (a) Plaintiff, a waitress, was injured by an exploding Coke bottle. The plaintiff sued under a res ipsa theory of liability, and judgment was entered for the plaintiff on that theory. (b) NC has not adopted Escola. In order to use res ipsa in NC for a products liability case, you must prove a "similar occurrence" involving the same product and the same alleged defect. Otherwise, use of res ipsa is not permitted. (c) Under a strict res ipsa theory, the plaintiff must show that the instrumentality that caused the injury was under the defendant's control, and additionally, that the sort of injury does not occur in the absence of negligence. If the plaintiff meets this burden, then the burden shifts to the defendant to prove himself not negligent. (d) Justice Traynor wants desperately to impose SL for defective products that injure. (e) Difference between res ipsa and SL (1) In theory, the defendant can avoid liability if he can prove himself not negligent. Fault is still crucial to a res ipsa case, but the inquiry is delayed until later in the process. SL forestalls inquiries into fault. (f) Traynor's remarks: (1) Public policy demands that responsibility for injuries due to defective products be fixed upon the party who can best reduce the hazards. (2) But is this really true? Suppose that $60 of harm is expected from exploding Coke bottles that are defective through no fault of the manufacturer. It would cost $100 to find the bottles, but it would be certain that the bottles would be found. According to the Hand formula, no liability should be imposed. (3) However, suppose a project could be instituted for $5 that would create a 10 percent chance that the risk would be eliminated. When the $60 expected cost is discounted by 90 percent ($6 damage that would be caused by the Coke bottle that was detected as a result of the project), then it seems clear the imposing liability might encourage the company to institute the research project. (4) Unfortunately, such an argument is just too speculative to have a chance at persuading a jury. (5) Traynor: more safety research is encouraged when SL is imposed instead of liability only for negligence. (g) SL has the property of internalizing external costs. Accordingly, prices will rise to reflect the increased costs, and so the market will punish the producer of the unsafe product and force the producer to either discontinue the product or to correct the defect in the product. (h) Another argument: it is better for everyone to pay a little more so that those who are injured are assured of compensation. In this respect, SL is a type of insurance. But is this really true? Administering "tort" insurance is expensive. Additionally, this sort of insurance is compulsory- should we be forcing people to buy insurance? Finally, tort liability includes damages for P&S. Should we make people purchase P&S insurance when no one would purchase it if given the choice? (2) Lee v. Crookston Coca-Cola Bottling (a) This case involved an exploding Coke bottle, but with two twists. (1) The state had adopted SL for products, but (2) The injured person was a waitress, not a consumer.  402A on its face applies only to users or consumers. Under that analysis, the waitress is only a bystander. (b) The courts have tacitly refused to apply the language strictly. Instead, the courts have applied a strict foreseeability analysis. (c) In NC (1) Res ipsa is out unless you can show a similar occurrence. (2) Implied warranty still carries the requirement of P/K. But even under the doctrine of relaxed privity, innocent bystanders are still not covered. (3) But, who is a buyer? Fortunately in NC, buyers for resale are deemed to be buyers, so the waitress would have had a COA in NC. (d) If this claim were for negligence, the plaintiff would have had to prove the following: (1) The product was defective when the mfr. relinquished control over the product. (2) The defect was due to the fault of the mfr. (e) However, in SL the plaintiff need only prove that the product was defective at the time when the mfr relinquished control over it. (f) Problem: How do you prove the product was defective when it left the manufacturer's control? (1) Eliminate all other possibilities (mishandling or temperature shock to the bottle). The evidence tends to negate these possibilities. (2) Then ask for res ipsa. (g) A defective product is a product which is unreasonably dangerous for its intended purpose. Looks like negligence, but negligence is certainly not what Prosser intended when he drew up  402A. Prosser intended a consumer expectation standard: was the product as safe as a reasonable consumer would have expected it to be? (h) The defect in this case was a non-generic defect, since the defect was peculiar to