Torts Theory: Overall What are the ultimate goals of Tort law?

Express Assumption of Risk

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  Exculpatory or hold-harmless contracts: (1) Will the courts enforce a hold-harmless contract, considering the type of activity involved? (2) If so, is the contract in question sufficiently clear?
  
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  Restatement view of exculpatory agreements: they should be upheld if they are (1) freely and fairly made, (2) between parties who are in an equal bargaining position, (3) there is no social interest with which it interferes.
  
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  In determining whether exculpatory contract violates “social interest” courts may consider whether business is of a type thought suitable for public regulation, provides service important to public, open to all or class of public, disparity of bargaining power, standarized adhesion contract, purchaser placed under control of seller & subject to risk of carelessness by seller as a result of the contract. (Tunkl)
  
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  When defendant is in better position to control the danger, and danger isn’t inherent in sport, defendant such as ski resort may be barred from using exculpatory contract as a defense. (Dalury v. S-K-I, Ltd. (Vt. 1995)- metal pole)
  
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  Reckless or gross negligence may not be disclaimed by contract.
  
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  Ability of adults to sign releases that bind members of their family is in doubt.
  
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  Post-injury release contracts: basically settlement contracts. After signing a post-injury release contract, can a party later sue for injuries that manifest themselves post-signing?
  

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  Controversial area. Disagreement over whether the term “implied assumption of risk” plays any useful role in negligence litigation—does it serve a purpose distinct from other aspects of the negligence framework?
  
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  Four requirements to estab. defense of assumption of risk: (1) P must have knowledge of facts constituting a dangerous condition, (2) P must know the condition is dangerous, (3) P must appreciate the nature and extent of danger, (4) P must voluntarily expose himself to danger. (Davenport v. Cotton Hope Plantation Horizontal Property Regime (S.Carolina 1998)- stair lights)
  
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  Primary implied assumption of risk: P impliedly assumes risks inherent in a particular activity—another way of saying D had no duty of care—not really an affirmative defense, but part of initial negligence analysis.
  
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    Litigation between participants in amateur sports? Knight v. Jewett (Cal. 1992): Liability only for intentional or reckless conduct. Fear that vigorous participation would be chilled by imposition of liability for negligence. Different if one of the participants is drunk (Freeman v. Hale).
    
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    If a hazard of an activity is “invited and foreseen,” then plaintiff assumed risk by participating? (Murphy v. Steeplechase Amusement Co. (Ct App. NY 1929)—Cardozo/ the Flopper)
    
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    Swimming pool cases: O’Sullivan v. Shaw- open and obvious danger of diving into a swimming pool bars recovery against owner of pool, despite statutory abolition of assumption of risk as a defense. Issue of duty—obviousness of risk negates any duty.
    
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  Secondary implied assumption of risk: P knowingly encounters risk created by D’s negligence—true defense because asserted only after P establishes prima facie case of neglience against D.
  
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    Some states (RI) treat (secondary implied) assumption of risk and contributory negligence as separate defenses, arguing that the exercise of free will in encountering the risk makes the 2 concepts distinct.
    
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    Other states (WV, SC) adopt a comparative assumption of risk rule: P not barred from recovery by assumption of risk doctrine unless his degree of fault arising therefrom equals or exceeds the combined fault or negligence of the other parties.
    
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    Baseball spectator injuries: If park provides adequate space behind screen, then stadium owner owes no duty of care to people injured by foul balls outside the screened area.
    
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  NJ was first state to reject the existence of assumption of risk—in 1963, before comparative negligence became popular, argued that negligence and contributory negligence concepts cover all bases without adding assumption of risk into the equation.
  
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  Employment context: doctrine of assumed risk significant bar to employee tort suits in 19^th century, before emergence of workers’ compensation legislation. Economic argument that courts were allowing freedom of contract—recognizing worker’s desire to market his taste for risk (higher wages for higher assumption of risk?). But this not historically believable given subsequent workers’ movement.
  
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  Firefighter’s rule: waives the duty of care that third parties owe firefighters and police officers; adopted in Kreski on public policy rationales that duty of care owed by third party to firefighter is replaced by third party’s tax contributions. This relationship doesn’t exist between volunteer firefighter & third party; to apply rule to volunteers would essentially resurrect the rejected doctrine of assumption of risk. (Roberts v. Vaughn (Michigan 1998))
  

Strict Liability

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

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  Considerable confusion and contradiction in 19^th-early 20^th century cases carving out areas of strict liability:
  
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    Rylands I (1866): If D brings onto land “anything likely to do mischief” and it escapes, he is prima facie answerable for all the damage which is the natural consequence of its escape.
    

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

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    No strict liability for exploding boiler, animal attacks on people (unless animal known to be dangerous), shipping & highway cases. Yes strict liability in dynamite/rock blasting cases, cattle trespass cases. Distinctions very thin.
    
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  Restatement §§ 519 & 520: attempt to generalize when strict liability exists. First restatement uses “ultrahazardous” language, Second Restatement uses “abnormally dangerous” language:
  
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    § 520 Abnormally Dangerous Activities
    In determining whether an activity is abnormally dangerous, the following factors are to be considered:
    (a)  existence of a high degree of risk of some harm to the person, land or chattels of others;
    (b)  likelihood that the harm that results from it will be great;
    (c)  inability to eliminate the risk by the exercise of reasonable care;
    (d)  extent to which the activity is not a matter of common usage;
    (e)  inappropriateness of the activity to the place where it is carried on; and
    (f)  extent to which its value to the community is outweighed by its dangerous attributes.
    
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  Modern application of Restatement principles. Posner’s view on purpose of strict liability for ultrahazardous activity: “By making the actor strictly liable—by denying him in other words an excuse based on his inability to avoid accidents by being more careful—we give him an incentive, missing in a negligence regime, to experiment with methods of preventing accidents that involve not greater exertions of care, assumed to be futile, but instead relocating, changing, or reducing (perhaps to the vanishing point) the activity giving rise to the accident.” Argues chemical transport case is proper for negligence, not strict liability, analysis. (Indiana Harbor Belt Railroad Co. v. American Cyanamid Co. (7^th Cir. 1990)
  
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    Abel’s response: Should courts be making the decisions about the kind of activities we want to subsidize as a society? Should judges be deciding the best place to locate railyards? Why should individual victims have to subsidize the industries responsible for their injuries; if we value the activity, why not have society as a whole bear the costs of the accidents?
    
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  Restatement § 524: contributory negligence not a defense to strict liability except when p’s conduct involves “knowingly and unreasonably subjecting himself to the risk of harm from the activity”
  

Products Liability
Big Picture:

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

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

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

Products Liability- General

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  Products liability doctrine evolves from privity doctrine (contract) to exceptions under the negligence principle to strict liability system.
  
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  MacPherson v. Buick Motor Co. (NY 1916): Cardozo says duty comes from [tort] law not contract; eliminates contractual privity requirement. “If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger.” Liability can extend to all foreseeable users
  
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  Warranty development: implied warranty of merchantability and implied warranty of fitness for particular purpose used to hold retailers liable- codified in Uniform Sales Act § 15 and UCC §§ 2-314 and 2-315. Courts used many devices to get around tradition that warranties ran only between parties in contractual privity: wife as husband’s agent in purchasing bread, etc.
  
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  Escola v. Coca Cola Bottling Co. of Fresno (CA 1944): Traynor concurrence argues for strict liability rather than negligence standard for manufacturers. Argues (1) increased safety, (2) cost spreading, (3) moral argument. Adopted as holding in Greenman in 1963. Extended to include strict liability for retailers (Vandermark) and manufacturers’ strict liability to bystanders (Elmore).
  
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  Restatement Third: Products Liability: sellers or distributors who sell or distribute defective product subject to liability for harm to persons or property caused by defect. Breaks down ways in which product might be defective: manufacturing defect, design defect, instructions/warnings defect.
  
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  Strict liability extended to bailors, franchisors, some successor corporations, but not to financers.
  
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  No strict liability for sales of used goods.
  
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  No strict liability for defective design in case of government contractors when specifications approved by government and product met the specifications and supplier warned govt about dangers known to supplier and not to govt.
  
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  4 Ways in Which Strict Liability Increases Safety over Negligence:
  
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    innovation
    
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    no more jury false negatives on negligence
    
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    some people deterred from bringing legitimate cases under negligence regime by fear of ability to prove
    
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    under strict liability regime, price increases, so fewer people will buy dangerous products
    

Manufacturing Defects

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  Most cases involve latent defects
  
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  Issues more likely to be practical than theoretical—e.g. causality issues, destruction of product means lack of evidence.
  

Design Defects

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  Two tests for showing design defect:
  
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    Consumer expectations test: Appropriate in cases in which consumers actually have expectations, e.g. if a car explodes while idling at a stop light. Products Restatement applies consumer expectations to bones-in-food cases.
    
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    Reasonable alternative design test: Appropriate in cases involving more technical issues, when consumers don’t have expectations. Employed in Soule (1994 car toe pan) and Camacho (1988 motorcycle leg guard) cases.
    
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      Seven factors in risk-benefit analysis: (1) utility of product, (2) likelihood that product will cause injury and probable seriousness of injury, (3) availability of substitute product, (4) mfr’s ability to make product safer without diminishing its utility, (5) user’s ability to avoid danger by exercise of care, (6) user’s anticipated awareness of dangers inherent in product, (7) feasibility of mfr spreading loss.
      
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      Problem with risk-utility analysis is that different results in different cases/types of accidents, send conflicting signals to mfrs.
      

Safety Instructions and Warnings

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  No duty to warn of commonly known dangers.
  
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  Two types of warnings:
  
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    Proper use instructions/warnings: e.g. don’t remove blade guard (Hood; warning sufficient)
    
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    Irreducible danger warnings: e.g. many pharmaceutical warnings.
    
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  Criteria for determining adequacy of warning (Pittman):
  
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    warning must adequately indicate the scope of the danger
    
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    warning must reasonably communicate the extent of seriousness of harm that could result from misuse
    
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    physical aspects of warning must be adequate to alert a reasonably prudent person to the danger
    
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    simple directive warning may be inadequate when it fails to indicate the consequences
    
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    means to convey warning must be adequate.
    
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  Heeding presumption: party responsible for inadequate warning must show that user would not have heeded an adequate warning.
  
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  Interplay of design and warning: open & obvious rule, but warnings will not inevitably defeat liability for a product’s defective design.
  
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  Misuse of products: not a complete defense if misuse/unintended use was foreseeable.
  
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  Learned intermediary doctrine: Learned intermediary doctrine generally shields prescription drug manufacturers from liability if sufficient warning given to prescribing doctors. Exceptions: mass immunizations, when FDA mandates direct consumer warning (e.g. birth control), advertising to consumers.
  
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  State of the art requirement: Defendant does not have to warn of risks unknown and undiscoverable at time product sold (hindsight doctrine of Bashada abandoned). But burden of proof on defendant to show whether and when the relevant technical information became available. Duty to warn post-sale on basically a negligence standard.
  

Defenses to Strict Liability

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  Consumer’s conduct other than failure to discover or guard against a product defect is subject to comparative responsibility. (General Motors Corporation v. Sanchez (TX 1999)
  
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  Texas (and other states?) has different thresholds for comparative responsibility in negligence (P may recover if less than 50 percent) and strict liability (P may recover if less than 60 percent responsible).
  
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  Maryland law: defense of contributory negligence doesn’t apply to strict liability claims.
  
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  Depending on state, P’s release/express assumption of risk may serve as a defense to strict liability claim.
  

Manufacturer’s Strict Liability for Products Used in Workplace

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  Employees can simultaneously collect workmen’s compensation benefits from employer and sue manufacturer of product that caused their injury. If their tort action against the manufacturer is successful, they may have to return the duplicative workmen’s comp benefits.
  
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  If third party (employer) modifies a safe product, causing employee’s injury, manufacturer not strictly liable for design defect (Jones- printing press guard). But manufacturer may be liable for failure to warn against danger of foreseeable alteration of product (Liriano- meat grinder), although bulk suppliers to large companies may have duty only to warn companies and not the individual employees (Adams- TDI).
  
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  Contracts between employers and manufacturers containing disclaimers absolving manufacturer of liability for product may be enforced against employees as well as employers (Scarangella- backing-up school buses; Buettner- ironer); but in other states, not enforced against employees (Ferragamo- trolley car PVCs).
  
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  Some states have blended pure Tort system (employer and manufacturer pay employee in proportion to their fault) and pure WC system (employer pays WC benefits, manufacturer pays full tort damages, employer has subrogation rights over manufacturer’s duplicative payments to employee) to create blended system (employer pays up to maximum WC benefits, according to his fault, manufacturer pays tort damages minus employer’s share of fault).
  

Hybrid Product-Service Transactions

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  Sometimes strict liability will apply to hybrid service-product transactions, other times not—distinctions weak, based on centrality of product to the service. E.g.:
  
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    Hospital implants defective prosthesis- hospital not strict liable (Royer)
    
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    Dentist uses needle that breaks- dentist not strict liable (Magrine)
    
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    Salon applies defective hair solution- salon is strictly liable (Newmark)
    
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  Is there a difference between product and non-product torts that makes strict liability logical in products cases but not in others?
  

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