The Role of the Courts Madisonian



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  1. The Role of the Courts

    1. Madisonian Democratic Values and Political Questions

      1. Viewed government as its own science

      2. Governments failed when they fail to understand the role of Factions

        1. If you don’t acknowledge factions, they’ll explode and take over

        2. Wanted to IMPLODE factions and direct them to a central source

          1. Congress / Federal Government

      3. Tripartite government

        1. Encouraging factions to occur w/in the system

        2. Mixing constituencies and tenures gave different branches different interests, encouraging “fighting” for their constituents’ interests

      4. Judicial deference

        1. Greatest danger to Madisonian system –

          1. when judges want to be “both president and congress”

    2. Formalism

      1. Fierce notion of judicial neutrality and deference

        1. Courts should not engage in determining what law should be rather than what it is or says

      2. Common Law’s accommodation of the civil code

        1. A series of canons

        2. Meant to avoid bias in a judge

          1. Actually promoted bias because judge just chose which canon to apply

    3. Legal Realism

      1. Karl Llewellyn, Felix S. Cohen, Arthur Linton Corbin, Jerome Frank, etc.

      2. Rejection of formalism

        1. Acceptance of the indeterminacy of the law

        2. Spawned all other lines of thought

        3. Allowed judges to explain why they chose that line of case

        4. Allowed for an appeals process

    4. Legisprudence and the Public Choice School

      1. Hart and Sachs:

        1. Adherence to legal procedures to achieve “institutional settlement” through “regularized and peaceable methods of discussion”

        2. Make sure branches of government do nothing more than they’re supposed to

      2. A.C. Pigou – The economics of Welfare

        1. Market failures

        2. Not achieving the social result that we want / not fast enough

          1. Doesn’t value some things well enough

      3. Public Choice School – opposed to Hart and Sachs

        1. Mancur Olson, Jr. – The Logic of Collective Action: Public Goods and the Theory of Groups

          1. Small groups have more power than large groups in our govt.

            1. E.g. lobbyists

          2. More concentrated interest than large groups

          3. Large groups have “free riders”

          4. Small groups have fewer free riders and more money

        2. Frank Easterbrook and Dealism

          1. No way to know there’s particular gaps in legislation

          2. Should treat legislation like a market

            1. People go to congress to buy and sell legislation

        3. Jonathan Macey and Public Regarding Purpose

          1. Against Easterbrook

          2. When faced w/ a gap in legislation, follow the public regarding the purpose of the law

            1. Take congress at its word

  2. Schools of Thought

    1. Lockean / Neo-Lockean

      1. John Locke and the labor theory

        1. “Every man has a property in his own person” and is entitled to whatever he “removes out of the state of nature” and “mixes his labor with” – 2nd Treatise of Govt.

          1. Importance of property as a right derived from God  state of nature as a pre-law society where everything was in common

        2. Huge impact on the framers

      2. Locke’s Proviso

        1. “Enough and as good left in common for others  John Rawls

        2. Principle of spoilage

        3. Violates god’s design

    2. Utilitarianism

      1. John Stewart Mills – “Utilitarianism” 1861

      2. At this time, it was a market-driven system

        1. Contractarian period

        2. Bentham questioned the social injustice caused by contractarian nature of law

          1. “The greatest good for the greatest number” – “Principles of Morals and Legislation”

          2. amounted to an introduction of social welfare programs / institutions

    3. Critical Legal Studies

      1. Relies on the Frankfurt school and engages in deconstruction of legal principles

        1. Found that most tort law came out of ecclesiastic law

          1. Church created its own courts when King John started taxing them

          2. Started dealing w/ secular issues that touched the courts

        2. Discovered by Duncan Kennedy

          1. Questioning why property had such exclusivity / absolute aspect to it

      2. Class-based critique

        1. Wealth distribution and class justice

        2. Argued to recognize unequal bargaining power and to gravitate towards those results that bring greater economic justice to society

      3. Critique: judges and courts should not engage actively in redistribution of wealth

    4. Feminism

      1. Gender based critique

        1. Challenging false neutrality of the law

          1. Susan Estridge – “Real Rape”

      2. Patriarchal Bias

        1. What “silent bias” was written into the laws by middle-aged white guys?

      3. Jurispathic v. Jurisgenerative (borrowed from Robert Cover’s “Nomos and Narrative”)

        1. Adversarial process:

          1. Trial by combat  knights acted as surrogates for the accused

          2. Jurispathic  trial results in “legal death” where the loser “dies” in court

        2. Should develop Jurisgenerative System

          1. Allow judges to achieve a compromise

            1. Seen in nuisance claims…

      4. Leslie Bender: No Duty to Rescue Rule

    5. Hegel

      1. Hegel’s Philosophy of Right

      2. Property as an extension of personality (“property becomes an expression of the will, a part of personality…”

        1. Turley doesn’t talk about master-slave dialectic, but maybe throw that in if there’s time

      3. Can never really define property in isolation

        1. Personality theory of understanding objects / property to individuals

        2. Place value of object not on the value of the thing itself, but in the pain and suffering caused or the emotional distress caused by depriving the π of that property / object

    6. Socio-Biological

      1. John Beckstrom (“Sociobiology and the Law”)

    7. Law and Economics: Judge Richard Posner

      1. Focuses on wealth maximization

      2. Efficiency Definitions

        1. Pareto – change in law or policy that benefits at least 1 w/o making any worse

          1. Efficiency: Pareto Superior / Superiority

            1. Produces at least one winner and no losers

            2. E.g. creation of traffic laws

          2. Optimality

            1. When you can’t make another adjustment w/o producing at least one ‘loser’

            2. What you aim for, but probably won’t get there

          3. Cite pareto efficiency when trying to strike down something like environmental legislation

        2. Kaldor-Hicks Efficiency

          1. Just produce more winners than losers

          2. utilitarian

      3. Cost Externalization / Internalization

        1. Externalities: your impact on others

          1. Creates an asymmetrical spike in the RISK associated w/ the activity

            1. Often where torts comes in

      4. Coase Theorem – Unsocial Costs

        1. Coase 1

          1. Most legal disputes concern conflicting uses of common resources

          2. Decision is driven by the market, not the law

          3. Law simply forces a distribution of wealth to one party rather than the other

          4. Party w/ advantage has Legal Entitlement  support of the law

          5. Can sell the entitlement if NOT using it is worth more than the entitlement itself

          6. Only exists in a perfect market w/o Transactional Cost

        2. Coase 2

          1. Transactional Costs 

            1. costs incurred in making economic exchanges or deals

          2. Transactional costs can flip the result of Coase 1

          3. Result in inefficient industries continuing their activities / taking advantage of the market

        3. Transactional Costs

          1. Often hard to quantify

        4. Informational Costs

          1. Does a person fully understand the risk involved and is there enough information available to inform people of the risk?

  3. Ch. 1 – Intentional Torts

    1. Physical Harms

      1. Trespass to Person, Land, and Chattels

        1. Intent

          1. Classic Intent Defined

            1. Meaning to cause offense

            2. With substantial certainty that a particular effect will occur

              1. Garratt v. Dailey – kid pulls out lady’s chair

          2. Unlawful / rule break – intended to break rule that prohibited conduct

            1. Vosburg v. Putney (Wis. 1891) – kid kicks kid under desk

            2. Hackbart case – football player’s career-ending injury

          3. Transferred intent

            1. Necessary intent w/ respect to cause offense to person A will apply to action against any other person who happens to be injured

              1. Talmage v. Smith - ∆ threw stick and hit wrong person

        2. Trespass to Real Property

          1. Intentionally enter π’s land w/o permission

          2. Remains on π’s land w/o right to be there even if entered lawfully

          3. puts an object on π’s land w/o permission

          4. Intent merely to be where you were, not to “trespass”

            1. Dougherty v. Stepp (N.C. 1835) – trespass by surveyors

        3. Trespass to Chattels

          1. Intentional interference w/ a person’s use or possession of a chattel

            1. Intel Corp. v. Hamidi (Cal. 2003) – [not] Trespass to server

          2. Loss of possession must be recovered even if possession is returned unharmed - Joyriding

      2. Conversion

        1. Intentional interference w/ π’s possession or ownership of property that is so substantial that ∆ shold be required to pay the property’s full value

        2. Intent: intention to take the property

          1. Mistaken ownership does not excuse conversion

            1. Poggi v. Scott (Cal. 1914) – Wine Barrels

        3. Moore v. Regents of U. Cal. (Cal. 1990) – genetic material

        4. Ways to commit:

          1. Acquiring possession – bona fide purchaser still a converter

          2. Transfer to 3rd person – e.g. deliver a package to the wrong peson

          3. Withholding good – refusing to return property to owner

          4. Destruction – or fundamentally alter goods

    2. Emotional and Dignitary Harms – the Intentional Torts

      1. Assault §21

        1. Apprehension of imminent harmful or offensive touching (battery)

          1. Intent

            1. Intent to put π in apprehension of a battery

            2. Actually putting π in apprehension of the battery

        2. Mere words do not constitute assault

        3. Need to be aware of the threatened contact

        4. No recovery for threat to 3rd persons

        5. Recovery possible for conditional threats

      2. Offensive Battery §18

        1. Intentional infliction of a harmful or offensive bodily contact

          1. Intent to touch (subjective)

          2. Intended touch is harmful or offensive (objective)

          3. Actual touch (direct or indirect)

          4. Actual touch was harmful or offensive (objective and subjective)

        2. π need not be aware of the contact at the time it occurs

          1. Alcorn v. Mitchell (Ill. 1872) – spitting in court

      3. False Imprisonment

        1. Intentional infliction of a confinement

          1. Intent to confine

          2. ∆ knew w/ substantial certainty that π would be confined

        2. Future threat is not false imprisonment – if you leave, I’ll kill you later

        3. Imminent threat IS false imprisonment – if you leave, I’ll kill your sister (now)

        4. “Three walls do not a prison make”

          1. Confinement – held w/in certain limits, not prevention from entering certain places

          2. Bird v. Jones (K.B. 1845) – trying to cross a highway

        5. Basis for determining false imprisonment:

          1. Time – how long person was held

          2. Place – where person was held

          3. Manner – how person was held

            1. Coblyn v. Kennedy’s, Inc (Mass. 1971) – Old man’s ascot

      4. IIED – Extreme and Outrageous Conduct §46

        1. Intentional or reckless infliction, by extreme and outrageous conduct, of severe emotional or mental distress, even in the absence of physical harm

          1. Intent:

            1. Desire to cause emotional distress

            2. Substantial certainty

            3. Reckless disregard of high probability

          2. e.g. mishandling of corpses

        2. Wilkinson v. Downton (Q.B. 1897) – joke of husband’s injuries

    3. Defenses

      1. Consensual defenses

        1. Scope of Defense

          1. Implied in fact – objective standard

            1. Lack of Capacity – infant, unconscious, intoxicated

            2. Exceeding scope of consent:

              1. Mohr v. Williams – Ear surgery on wrong ear – not implied consent – “personal autonomy…”

              2. Sports injury cases – Hackbart case – where injury is caused outside scope of rules of sport

          2. Implied as a matter of law:

            1. π is unable to give consent

            2. immediate action is necessary to save π’s life or health

            3. no indication the π would not consent if able

            4. reasonable person would consent in the circumstances

          3. Express Consent – “go ahead, hit me”

          4. Emergency Rule

          5. Substituted judgment

            1. Hudson v. Craft (Cal. 1949) – Illegal Prize fighting of minor – cannot consent

          6. Athletic injuries in formal / informal settings

      2. Insanity

        1. McGuire v. Almy (Mass. 1937) – patient hits nurse – intent to cause harm

      3. Self-Defense

        1. Reasonable force to prevent any threatened harmful or offensive bodily contact and any threatened confinement or imprisonment

          1. Reasonably believes there’s a real threat

          2. Cannot retaliate

            1. Defense cloaked in a privilege” – only wearable at time of offense

          3. Cannot escalate the threat – must be the same degree of force

          4. No duty to retreat unless it’s to use deadly force (w/ exceptions)

            1. “Make my day”

            2. Castle doctrine – allowing lethal force when someone invades your domicile –

              1. as opposed to common law – “lay gentle hands upon”

        2. Mistaken self-defense

          1. Courvoisier v. Raymond (Colo. 1896) – accidentally shoots cop

        3. Defense of 3rd parties

      4. Defense of Property

        1. May use reasonable force to defend property, both land and chattels

        2. Deadly force can never be used

          1. Bird v. Holbrook (C.P. 1825) – spring guns

      5. Recapture of Chattels

        1. Must be exercised promptly, in “hot pursuit”

        2. “Not w/ a strong hand, but w/ a peaceable and easy fashion” – no deadly force

        3. privilege exists only if property was wrongfully taken

        4. Kirby v. Foster (R.I. 1891) – pocketed $ for “help”

      6. Necessity

        1. Public Necessity

          1. Necessary to prevent great harm to the community or to many poeple

          2. General Average Contribution – during time of emergency, all treated as joint owners of property in question

          3. Govt. may use or destroy property of another for public necessity

            1. Not required to compensate, but US Govt. does (generally)

        2. Private Necessity –

          1. Owner may not resist where there is actual necessity

            1. Ploof v. Putnam (Vt. 1908) – Docking of a sloop

          2. π must pay for damages caused (in contrast to self defense or public necessity)

            1. Vincent v. Lake Erie Trans. Co. (Minn. 1910) – steamship damages dock during storm

  4. Ch. 2 – Strict Liability and Negligence

    1. Formative Cases

      1. Basis for liability in tort

        1. The Thorns Case (1466) – chops down tree that lands on neighbor’s bush

      2. Weaver v. Ward (K.B. 1616) – soldier accidentally shoots another

      3. Inevitable Accident

        1. Smith v. Stone (K.B. 1647) – carried onto property by another

    2. The Forms of Action

      1. Trespass and Case

        1. Scott v. Shepherd (K.B. 1773) – throwing of lighted Squib

      2. Breakdown of the Forms

    3. Strict Liability and Negligence in last half of 19th C.

      1. Development of Negligence in USA

        1. Brown v. Kendall (Mass. 1850) – dog owner accidentally hits other owner

      2. Non-Natural Use of land in England

        1. Fletcher v. Rylands (Ex. 1866) – Blackburn, J. – strict liability for water leakage

      3. Brown v. Collins (N.H. 1873) – horse knocks lamp – no strict liability

      4. Powell v. Fall (Q.B. 1880) – train spark ignites rick

    4. Strict Liability and Negligence in Modern Times

      1. Bolton v. Stone (A.C. 1951) – cricket ball (overturning previous strict liability)

        1. Crit view: “strong class accent” establishing favorable standard for cricket

      2. Hammontree v. Jenner (Cal. App. 1971) – epileptic seizure causes crash into bike shop

  5. Ch. 3 – The Negligence Issue – “The Ultimate Jury Area”

    1. 4 elements of negligence

      1. Duty – requiring ∆ to conduct himself according to certain standard to avoid risk to others

      2. Breach – failure of ∆ to conform his conduct to this standard

      3. Causation – sufficiently close causal link between ∆’s act of negligence and harm suffered by π

        1. Cause in fact

        2. Proximate causation (legal causation)

      4. Damages – actual damage suffered, unlike some intentional torts (trespass)

    2. Reasonable Person

      1. Objective standard of “a reasonable person of ordinary prudence”

        1. Vaughan v. Menlove (C.P. 1837) – “stupid farmer’s” spontaneous combustion destroys neighbor’s property

      2. Variable Standards: Beginners and Experts / Adult and Child activities

        1. Robert v. Ring (Minn. 1919) – old guy hits kid when he’s going 5 m.p.h.

        2. Daniels v. Evans (N.H. 1966) – kid on motorcycle – standard of care

      3. Breunig v. American Family Insurance Co. – (Wis. 1970) – woman is not Batman

      4. Physical Characteristics: what a reasonable blind man should be able to do

        1. Fletcher v. City of Aberdeen (Wash. 1959) – Blind man falls in hole in street

    3. Calculus of Risk

      1. “Snapshot of the scene right before the accident”

        1. what should the person have done/not done in this case

        2. helpful w/ considerations of Calibresi, Cheapest Cost Avoider

      2. Blyth v. Birmingham Water Works (Ex. 1856) – fire plugs un-plug - ∆s not liable

      3. Reasonableness of a given risk

        1. Magnitude of risk

        2. Value of importance of Principal Object

        3. The collateral object

        4. Utility of the risk

        5. Necessity of the risk

          1. Eckert v. Long Island R.R. (N.Y. 1871) – saving kid on tracks

      4. Osborne v. Montgomery (Wis. 1931) – opening door hits kid on bike

      5. Activity level v. Care level

        1. Cooley v. Public Service Co (N.H. 1940) – noise in phone causes phobia ≠ liability

      6. Hand Formula – Burden < L (injury/liability) x Probability (assuming risk neutrality rather than risk averse / risk taker)

        1. United States v. Carroll Towing Co. (2d Cir. 1947) – bargee should have been there

      7. Emergency Rule – whether standard of reasonableness rises

        1. Lyons v. Midnight Sun Transportation Services, Inc (Ak. 1996) – van hit truck pulling out of parking lot

      8. Common Carriers

        1. Andrews v. United Airlines (9th Cir. 1994) – common carrier needs more than an announcement

    4. Custom

      1. Relationship between Custom and Negligence – local custom will not justify negligence

        1. Mayhew v. Sullivan Mining Co. (Me. 1884) – guy falls down new hole in mine w/o guardrail

        2. The T.J. Hooper (2d Cir. 1932) – needed radios to hear about storm warning

      2. Medical Malpractice / Informed Consent

        1. Must act w/ level of skill and learning “commonly possessed by members of the profession in good standing”

        2. Duty of Disclosure  informed Consent

          1. Requiring adequate disclosure of risks

          2. Lama v. Borras (1st Cir. 1994) – malpractice in failure to use conservative treatment for complex laminectomy

          3. Canterbury v. Spence (D.C. Cir. 1972) – shouldn’t have voided unattended…

      3. Locality Rule

        1. Not as strong w/ modern medical standards (national standards)

        2. Might have greater significance in an area w/o highest technology available

    5. Statutes and Regulations

      1. Negligence Per Se

        1. When a safety statute has a sufficiently close application to the facts at hand, an unexcused violation of that statute conclusively establishes that ∆ was negligent

          1. Martin v. Herzog (N.Y. 1920) – driving w/o headlights = negligence per se

        2. Protection against Particular Harm

          1. Gorris v. Scott – suicidal sheep – protected harm was for injuries (contagion) to employees, not safety of the sheep

        3. Class of Protected Persons

          1. Brown v. Shyne (N.Y. 1926) – unlicensed chiropractor = not per se negligent

      2. Dram Shop Statutes

      3. Uhr v. East Greenbush Cent. Sch. Dist. (N.Y. 1999) – scoliosis test – no liability

    6. Judge and Jury

      1. Judge decides Law

      2. Jury decides Facts

    7. Proof of Negligence

      1. Problems of Proof

        1. Burden of production – π must show:

          1. what ∆ did

          2. how dangerous it was

          3. ∆’s opportunity to discern danger

          4. availability of safer alternatives

          5. ∆’s opportunity to know about safer alternatives

        2. Burden of Persuasion – prove to jury that negligence was “More probable than not” - NOT “beyond a reasonable doubt” as is the case w/ crimes

      2. Res ipsa Loquitur §328D.

        1. Requirements:

          1. No direct evidence of ∆’s conduct

          2. Harm seldom occurs w/o negligence

          3. Under exclusive control of ∆

          4. Not due to π’s conduct

          5. Evidence more available to ∆ (e.g. Ybarra)

        2. Allows an inference that ∆ was probably negligent w/o precise showing of how ∆ behaved

        3. Only used when there is a “paucity of evidence” – woman killed by flying horse that was struck by a nearby train

        4. Can be rebutted by ∆ - reversal of burden of proof

        5. Res Ipsa is NOT cause-in-fact

          1. Proves negligence, not causation

            1. Need separate causation analysis

            2. In most res ipsa, there will be causation, but it’s not automatic

        6. Within the Exclusive control of the ∆

          1. Byrne v. Boadle (Ex. 1863) – barrel rolls out of factory

        7. Non-Delagable Duties

          1. Colmenares Vivas v. Sun Alliance Insurance Co. (1st Cir. 1986) – escalator malfunction at airport – non-delagable duty

        8. Exclusive Control

          1. McGonigal v. Gearhart Industries Inc (5th Cir. 1986) – premature grenade

        9. Conditional Res Ipsa Loquitur in malpractice

          1. Cases of mixed law and fact

          2. Acknowledge res ipsa only if they find X preliminary fact

          3. Caused by ∆’s conduct or natural events?

          4. If former, was ∆ negligent?

            1. Ybarra v. Spangard (Cal. 1944) – combating conspiracy of silence…

  6. Ch. 4 – Plaintiff’s Conduct

    1. Contributory Negligence

      1. Basic Doctrine

        1. A π who is negligent and whose negligence contributes proximately to his injuries is totally barred from recovery

        2. Held to same reasonable person standard as the ∆

        3. Not applicable to intentional torts

      2. Last Clear Chance

        1. Limits contributory negligence

          1. If ∆ had an opportunity to prevent the harm and the π did not have such an opportunity, the existence of this opportunity wipes out the effect of π’s contributory negligence

          2. Helpless Peril

            1. ∆ must have actual knowledge or should have known of π’s helpless state at time of the accient

              1. clearly sees an unconscious person in the middle of the road while driving

          3. Inattentive Plaintiffs

            1. Must show that ∆s actually knew that the πs were inattentive

              1. E.g. seeing someone wandering drunk down the road

    2. Comparative Negligence – 46 states

      1. Modified / Partial Comparative Negligence – 50% Rule

        1. Any πs that were more than 50% at fault would be barred from recovery as though contributory negligence applied

        2. Otherwise, if less than 50%, damages reduced by a proportion equal to the ratio by his contributory negligence

      2. Pure Comparative Negligence – about 13 states

        1. Only 13 states

        2. Asks only a jury to assign relative liability or responsibility between ∆ and π

    3. Assumption of Risk

      1. When π voluntarily consents to take her chances that harm will occur

        1. Complete bar from recovery at common law

      2. Implied

        1. Inferred by π’s conduct when no explicit agreement takes place

          1. Requirements:

            1. Knowledge of the risk in question

              1. Must be actually known

            2. Voluntarily consented to bear risk

      3. Primary Assumption

        1. When ∆ is never under any duty to π in the circumstnace

          1. e.g. foul balls at a baseball game

      4. Secondary Assumption

        1. ∆ would ordinarily have a duty to π, but π’s assumption of risk causes duty to dissipate

          1. when π asks ∆ for a ride to the hospital when π knows ∆’s car has bad brakes

        2. Eliminated in most states that adopt comparative negligence doctrine

      5. Express

        1. E.g. signing a release to go bungee jumping

    4. Vicarious Liability

      1. Respondeat Superior

        1. If an employee commits a tort during the scope of his employment, his employer will be liable (jointly with the employee)

        2. Does not apply to independent contractors

        3. Scope of Employment:

          1. Trips from home to work are NOT w/in the scope

          2. Courts are split on trips from work to home

          3. Frolic and detour

            1. If the deviation was reasonably foreseeable, employer could be liable

            2. Not liable if it is a significant departure from employee’s duties

          4. Forbidden acts

            1. Liable if it is within scope of employment

              1. Gun store clerk loads gun even though prohibited from doing so, it goes off and injures customer  employer still liable

            2. Intentional Torts  employer liable

              1. UNLESS it’s committed through personal motives with no intent to further ∆’s business

  7. Ch. 5 – Joint, Several, Liability

    1. Generally

      1. If more than one person is a proximate cause of π’s harm, and the harm is indivisible, under the traditional approach each ∆ is liable for the entire harm  joint and several

      2. Modern trend cuts back on this in jurisdictions w/ comparative negligence

    2. Hybrids:

      1. Hybrid J&S w/ Reallocation

        1. If one ∆ turns out to be “judgment proof” the court will reallocate the damages to the other parties (including the π) in proportion to their comparative fault

      2. Hybrid J&S based on threshold percentage

        1. Tortfeasors who bear more than a certain threshold e.g. 50%, remains jointly-and-severally liable

        2. Those less than that threshold are merely severally liable

      3. Hybrid based on type of damages

        1. Remains J&S for economic damages, but not for non-economic damages

    3. Pure Several Liability – 16 states

      1. A ∆, regardless of the nature of the case, is liable only for her share of total responsibility

    4. Indivisible v. Divisible harms

      1. Only applies to where π’s harm is indivisible

        1. Not capable of being apportioned between or among the ∆s

      2. Rules on Apportionment

        1. Concert of Action

          1. If two ∆s acted in concert, each will be liable for injuries caused by the other

          2. No apportionment

        2. Successive Injuries

          1. Able to apportion harm when there are successive injuries separated by substantial periods of time

          2. There may be overlapping

            1. ∆1 can be liable for both his and ∆2’s actions, but ∆2 might be only liable for his own actions

              1. e.g. pollution – private nuisance cases

        3. Indivisible Harms

          1. When harms are indivisible, each co-∆ is each jointly and severally liable for the entire harm in a jurisdiction following tradition approach to J&S liability

            1. Death

            2. fire

  8. Ch. 6 – Causation

    1. Cause in Fact § 26 (RS3rd) – “But For Causation”

      1. Generally: π must show that ∆’s conduct was the “cause in fact” of π’s injury

      2. “But For” test: had ∆ not acted negligently, π’s injuries would not have resulted

        1. New York Central R.R. v. Grimstad (2d Cir. 1920) – decedent overboard; no life ring – no certainty that he would have been saved otherwise…

        2. Zuchowicz v. United States (2d Cir. 1998) – erroneous prescription caused death

      3. Expert Witnesses – Daubter, Frye, and the “Gatekeeper” Function of the Judge

        1. General Electric Co. v. Joiner (US 1997) – expert testimony denied

      4. Lost Chance Doctrine

        1. Herskovits v. Group Health Cooperative (Wash. 1983) – reducing chance of survival (lost chance)

      5. Joint Causation / Concurrent Cause

        1. When two events concur to cause harm, and either one would have been sufficient to cause substantially the same harm w/o the other  each is deemed to be the cause in fact

          1. Kingston v. Chicago & N.W. Ry. (Wis. 1927) – knowledge of start of only one fire is enough for liability

      6. Alternative Liability / Multiple Fault

        1. That each of two or more ∆s was at fault, but only one could have caused the injury

        2. Burden shifts to each ∆ to show that the other caused the harm

          1. Summers v. Tice (Cal. 1948) – can’t tell who shot π

      7. Market Share Liability – fungible products

        1. If π cannot prove which of three or more persons caused his injury, but can show that all produced a defective product, court will require each of the ∆s to pay that %age of π’s injuries which that ∆’s sales bore to the total market sales of that type of product

          1. Skipworth v. Lead Industries Assoc. (Pa. 1997) – no market share liability

          2. Sindell v. Abbott Laboratories (Cal. 1980) –DES as fungible product – market share liability imposed

    2. Proximate Cause (Herein of Duty)

      1. Generally

        1. Policy determination that a ∆ should not automatically be liable for all the consequences, no matter how improbable or far-reaching, of his act

        2. Whether there should be liability even though the ∆ did cause the injury

          1. Addressed AFTER a finding that ∆ was unreasonable and act of unreasonableness caused the injury

      2. Determining Liability

        1. Reasonable Person defined

        2. Calculus of Risk determined

        3. Factual causality

        4. Proximate causality – question of foreseeability / is society prepared to hold ∆ liable for the injury?

          1. Unforeseeable Harm

            1. Polemis – liberal rule

            2. Wagon Mound – narrow rule

          2. Unforseeable Plaintiffs

            1. Cardozo – narrow

            2. Adrews – liberal

      3. The Jurisdictions – Polemis, Palsgraff, and Wagon Mound:

        1. In Re Polemis Jurisdictions:

          1. Liberal in terms of proximate causation – snapshot doesn’t apply

          2. Test:

            1. act of negligence COULD cause damage

            2. ∆’s negligcen caused that damage

            3. negligence was DIRECT CAUSE of the injury or accident (as opposed to foreseeable cause)

        2. Wagon Mound Jurisdictions

          1. Rejected Polemis

            1. Direct result/cause is too vague

          2. Foreseeability of ∆ in consequences of his actions

          3. When you can see a “change in harm”, the question is whether the change in harm was the actual foreseeable danger by the initial act of the ∆

          4. Juries can still find that it was in fact foreseeable

        3. Palsgraff Jurisdictions

          1. Cardozo, J.

            1. Zone of Danger  unforeseeable πs

              1. Can’t be responsible for something that remote

              2. Need to cut off liability at end of the line of the zone of danger



          2. Andrews, J.

            1. More like Polemis

            2. Duty is imposed to protect society from unnecessary danger, not to protect A, B, or C alone.

      4. Physical Injury

        1. Ordinary and Natural result of ∆’s Negligence

          1. Liable for ordinary and natural result of ∆’s negligence

          2. Liable for proximate consequences, but not “remote” consequences

            1. Ryan v. New York Central R.R. (N.Y. 1866) – spread of fire from train spark – only 1st house beyond epicenter is recoverable

            2. Different rule when talking about Forest Fires  unlimited chain of causation where State tries to recover…

        2. Coincidence and Causation

          1. No such things as “but for” legal causation – can’t foresee a coincidence

            1. Berry v. Sugar Notch Borough (Pa. 1899) – tree falls on car in storm

        3. Deliberate Intervention by 3rd Parties - §448, 449 RST

          1. General Rule:

            1. Criminal act or intentional tortious act cuts off liability by third parties

            2. Superseding intervening cause

          2. If those tortious acts are foreseeable, it’s up to the jury

            1. Brower v. New York Central & H.R.R. (N.J. 1918) – recover of stolen barrels after crash

        4. Rescue Doctrine – “Danger Invites Rescue”

          1. Peril and rescue count as one “substance”, so continuity is not broken in chain of causation

          2. Foreseeability: whether or not society thinks it’s foreseeable enough for someone to want to try to rescue

          3. “Polaroid Approach” – snapshot of the scene and see whether or not it looks like negligence  if it’s a rescue, you have to assume that there is someone to be rescued who might not be in the picture

            1. Wagner v. International Ry. (N.Y. 1921) – conductor invited π to look for his cousin

        5. Foreseeability of Harm / Harm w/in Risk / Risk to Class §29 RS3

          1. ∆ is liable for only those consequences which were reasonably foreseeable at the time of the act

          2. also applies to “unforeseeable π”

            1. In re Polemis & Furness, Withy & Co. (K.B. 1921) – dropped plank ignites ship

          3. Unforeseeable π’s not covered

            1. Palsgraf v. Long Island R.R. (N.Y. 1928) – trying to board moving train w/ fireworks

          4. Marshall v. Nugent (1st Cir. 1955) – I’m confused by this case

          5. Wagon Mound No. 1 (A.C. 1961) – oil from Sydney harbor to π’s wharf

          6. Virden v. Betts and Beer Construction Co (Iowa 2003) – tripped off ladder, not hit by angle iron

          7. Hebert v. Enos (Mass. App. 2004) – electrified toilet water = too remote

      5. Emotional Distress

        1. Impact Rule

          1. Mitchell v. Rochester Railway (N.Y. 1896) – no impact when horses stop in front of π

        2. Zone of Danger Rule / Foreseeability of Emotional Distress

          1. Dulieu v. White & Sons (K.B. 1901) – accompany of physical injury unnecessary when child born premature from near-miss of horses

          2. Dillon v. Legg (Cal. 1968) – bystanders / zone of danger

      6. Responses to ∆’s actions – (∆ liable for all of these)

        1. Escape

        2. Rescue

        3. Aggravation of injury by medical treatment

  9. Ch. 7 – Affirmative Duties

    1. Duty to Rescue

      1. Affirmative Duty to Rescue – Good Samaritan Laws

        1. Buch v. Amory Manufacturing Co (N.H. 1897) – kid w/o English in mill – loses hand

        2. Hurley v. Eddingfield (Ind. 1901) – physician didn’t want to come to help

      2. Misfeasance v. Nonfeasnace – Duty to Warn

        1. Montgomery v. National Convoy & Trucking Co. (S.C.) – trucks on ice should have put a warning

    2. Duties of Owners and Occupiers

      1. Classes of Visitors – Invitees; w/ leave and license of occupier; trespassers

      2. No duty to a trespasser

        1. Exceptions:

          1. Constant trespass on a limited area

            1. Must use reasonable care to make that area safe or at least warn of dnagers

          2. Discovered Trespassers

            1. knowledge that particular person is trespassing, owner is under duty of reasonable care for trespasser’s safety

          3. Children

            1. Children are likely trespassers

            2. Owner knows conditions are dangerous to children

            3. Injured child didn’t know of danger

            4. Owner’s benefit slight compared to risk to children

            5. Owner fails to use reasonable care to eliminate danger

      3. Licensees

        1. Person who has the owner’s consent to be on the property, but who does not have a business purpose for being there

          1. Mainly “Social guests

        2. No duty to inspect for unknown dangers

        3. Duty to Warn if knowledge of danger exists

      4. Invitees

        1. Persons invited to conduct business; members of public for purposes of which the land is held open to the public

          1. If use of premises goes beyond business or public purposes, person changes from invitee to licensee

        2. Duties to invitees:

          1. Duty of reasonable care

          2. Duty of reasonable inspection to find hidden dangers

          3. Must take affirmative action to remedy a dangerous condition

      5. Attractive Nuisance

        1. Robert Addie & Sons (Collieries), Ltd. v. Dumbreck (A.C. 358) – kid loses hand in endless wire haulage system

      6. Rejection of Categories

        1. Apply general single “reasonable person” standard of liability (Cal., N.Y., and others)

          1. Rowland v. Christian (Cal. 1968) – broken bathroom fixture – balancing of negligence factors

            1. Tenant – treated as owner

            2. Lessor: generally NOT liable

    3. Gratuitous Undertakings

    4. Special Relationships

        1. Common carrier – passengers

        2. Innkeeper – guests

        3. Business – invitees

        4. Employer – employees

        5. School – students

        6. Landlord – Tenants

        7. Custodian – those in its custody (jail and hospital)

      1. Weirum v. RKO General Inc. (Cal. 1975) – DJ contest caused car accident

      2. Contract v. Special Relationship – Landlord / Tenant

        1. Kline v. 1500 Mass. Ave. Apt. Corp (D.C. Cir. 1970) – assault in the hallway

      3. Doctor-Patient Privilege

        1. Tarasoff v. Regents of U. of Cal (Cal. 1976) – psychiatrist’s duty to warn victim

    5. No general duty to act

    6. Duty of Assistance:

      1. if π’s injury is due to ∆’s conduct or an instrument under ∆’s control

    7. Duty to Warn:

      1. if ∆’s conduct caused unsafe conditions

    8. Assumption of Duty:

      1. once ∆ voluntarily begins rendering assistance to π, ∆ must proceed w/ reasonable care

  10. Ch. 8 – Traditional Strict Liability

    1. Animals

      1. Trespassing Animals

        1. Owners of livestock are strictly liable for property damage caused by them if they trespass on another’s land

      2. Non-trespass Liability: Animals ferae naturae & animus revertendi / Notice of vicious tendencies

        1. Domesticated Animals:

          1. No strict liability unless owner knows or has reason to know of the animal’s dangerous characteristics

            1. Gehrts v. Batteen (S.D. 2001) – didn’t think dog in back of truck was a biter

        2. Wild Animals

          1. Strict liability for keeping wild animals as long as dangerous propensity is typical of the species in question

    2. Ultrahazardous or Abnormally Dangerous Activities §519, 520

      1. Determining “abnormally dangerousness”

        1. High degree of risk of some harm to others

        2. Harm likely to be serious

        3. Risk cannot be eliminated by exercise of reasonable care – most important

        4. Activity is not common

        5. Activity is not appropriate for the place where it’s carried out

        6. Danger outweighs activity’s value to the community

      2. Limitations:

        1. Scope of Risk

          1. Only liable for damages from the kind of risk that made activity dangerous

            1. Abnormally sensitive πs – not recoverable

        2. Contributory negligence – NOT A DEFENSE

        3. Assumption of Risk – IS a defense

          1. If π knowingly and voluntarily subjects herself to the danger

      3. Common Usage

        1. Spano v. Perini Corp. (N.Y. 1969) – garage destroyed by tunnel blasting in brooklyn

      4. Strict Liability in the Alternative

        1. Indiana Harbor Belt R.R. v. American Cyanamid Co. (7th Cir. 1990) – leak could have been because of negligence

        2. Siegler v. Kuhlman (Wash. 1972) – strict liability for gasoline tankers on highway

    3. Nuisance

      1. Generally:

        1. Type of injury which π has sustained

        2. Injury: interference w/ π’s use or enjoyment of his land

        3. May be (1) intentional; (2) negligent; (3) abnormally dangerous activity or other conduct giving rise to strict liability

      2. Private Nuisance

        1. Nuisance Generally

          1. Unreasonable interference w/ π’s use and enjoyment of his land

            1. Must have interest in land

            2. Interference w/ use

            3. No general strict liability

            4. Defenses:

              1. Contributory negligence

              2. Assumption of the risk

                1. “Coming to the nuisance” – no longer absolute defense

          2. Vogel v. Grant-Lafayette Electric Cooperative (Wis. 1996) – stray voltage cause crazy cows

        2. Live and Let Live Rule / Reciprocal Harms

          1. Michalson v. Nutting (Mass. 1931) – neighbor’s roots mess up π’s sewer pipes

        3. Easement of Light

          1. Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five Inc (Fla. App. 1959) – no legal right to the free flow of light; can’t sue for casting a shadow

        4. Extra-sensitive πs / Thin Skull Rule (N/A to Nuisance)

          1. Rogers v. Elliot (Mass. 1888) – church bell causes seizures

        5. Coming to the Nuisance

          1. Ensign v. Walls (Mich. 1848) – breeding St. Bernards for a long time does not mean they can forever

        6. Permanent v. Temporary Damages

          1. Boomer v. Atlantic Cement Co (N.Y. 1970) – particulate contamination enjoined until permanent damages paid

      3. Public Nuisance

        1. Definition:

          1. Interference w/ right common to the general public

            1. Health hazards, improper businesses (unlicensed bars), obstruction of public streets

        2. Factors:

          1. Type of neighborhood

          2. Frequency / duration

          3. Degree of damage

          4. Social value of the activity

            1. Substantial harm required

            2. Must injure public at large

          5. Need not be a crime

        3. Disproportionate Harms to π / Requirement of a particular damage

          1. A private citizen may recover for his own damages stemming from public nuisance ONLY if he has sustained damage that is different in kind, not just degree, from that suffered by the public generally.

            1. Magnitude of financial harm is usually irrelevant

            2. Not necessarily imposed when seeking an injunction (rather than damages)

          2. Anonymous (1536) – stopping of the King’s highway bothers π

          3. 532 Madison Ave Gourmet Foods, Inc v. Finlandia Center, Inc (NY 2001) – no duty to protect entire neighborhood against purely economic loss

        4. Causal Links in Public Nuisance

          1. Camden County Bd. of Chosen Freeholders v. Beretta, USA Corp (3d Cir. 2001) – handgun manufacturers and local crime

  11. Ch. 9 – Products Liability

    1. Liability of a seller of a tangible item which, b/c of a defect, causes injury to its purchaser, user, or sometimes bystanders

      1. Negligence, warranty, or strict liability

      2. MacPherson v. Buick Motor Co. (NY 1916) – wheel made of defective wood

Cardozo, J.

        1. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger

          1. May sometimes be a question for the jury

        2. Its nature gives warning of the consequences to be expected

        3. Manufacturer is under a duty to make it carefully to both purchaser and 3rd parties

          1. Fail in duty of inspection

        4. Injury to 3rd parties other than the purchaser is to be foreseen not merely as a possibility but as an almost inevitable result

        5. ∆ not absolved from duty of inspection just because it bought the wheels from a reputable manufacturer

      1. Escola v. Coca Cola Bottling Co. of Fresno (Cal. 1944)

Traynor, J.

        1. “it should now be recognized that a manufacturer incurs an absolute [strict] liability when an article that he has placed on the market, knowing that it is to be used w/o inspection, proves to have a defect that causes injury to human beings”

        2. Public policy requires that the buyer be insured at the sellers expense

        3. Follows w/o proof of negligence from the implied warranty of safety attending the sale

          1. Implied Warranty of Merchantability

            1. Henningsen v. Bloomfield Motors Inc

        4. Liability should be limited in terms of the safety of the product in normal and proper use

    1. Negligence

      1. Ordinary negligence principles apply where personal injury from carelessly manufactured product

        1. One who negligently manufactures a product is liable for any personal injuries proximately caused by his negligence

          1. Strict Liability for negligent manufacturing

      2. Manufacturers, Retailers, Bailors

    2. Warranty

      1. Breach of warranty for goods which are not as they are contracted to be

      2. Express Warranties

        1. Expressly represent that goods have certain qualities

          1. If not, sure for breach

        2. Strict liability

      3. Implied Warranty

        1. Existence of warranty as to the quality of goods

        2. Implied from the fact that seller has offered goods for sale

        3. Merchantability

          1. Goods must be fit for ordinary purposes for which such goods are used

          2. Seller must be a merchant

            1. Does not apply to “casual sellers”

        4. Manufacturer’s warranty extends to remote puchases

          1. Any member of household of purchases, any foreseeable user or bystander

    3. Strict Liability

      1. Best claim to bring unless

        1. Pure economic loss  better to sue for breach of warranty

        2. Statute of limitations  runs sooner on S/L than warranty claim

      2. Proving:

        1. Manufacture or sale by ∆

        2. Existence of defect

          1. Evidence that the product was redesigned to make it safer doesn’t count

          2. Toxic Torts: epidemiological evidence of defectiveness  Agent Orange cases

        3. Causation

          1. π must show that the product and its defective aspects were the cause in fact AND the proximate cause of the injuries

            1. Toxic Tort: epidemiological causation

            2. General Causation:

              1. Court may infer specific causation if proof of general causation is strong when coupled w/ evidence of exposure

        4. Defect existed in the hands of the ∆

          1. Res Ipsa test:

            1. Once π shows that the product didn’t behave in usual way and manufacturere doesn’t show that 3rd party tampered w/ it, satisfies “defect in hands of the ∆”



    4. Strict Product Liability

      1. Seller of a product is liable w/o fault for personal injuries caused by product if product sold in defective condition

        1. Liable even if ∆ seller used all possible reasonable acer

        2. Regardless of privity

          1. Applies to any person w/in distributive chain who is in the business of selling products

      2. Economic Loss Rule:

        1. Casa Clara Condo Ass’n Inc. v. Charley Toppino & Sons Inc (Fla 1993)

          1. Economic Loss rule prohibits tort recovery when a product damages itself, causing economic loss, but does not cause personal injury or damage to any property other than itself

          2. “Disappointed economic expectations”

            1. Protected by contract law, not torts

    5. Proper ∆s




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