Public nuisance Epstein on Public Nuisance (which Levmore likes)
Private action is maintainable only for special/peculiar/disproportionate harm to individual P
Cf., Smith v. City of Boston, 61 Mass. 254 (1851). Municipality closed down a street to make access for RR line. P’s property, blocking access to street.
Private action not allowed since damages “though it may be greater in degree, in consequence of the proximity of the petitioner’s estates, does not differ in kind from that of t any other members of the community.”
RPD: Important to note this is not a taking
Levmore: the more a particular nuisance effects a large group of people the less a particular individual should be allowed to recover
Hence the distinction between public nuisance and private nuisance
Something has shifting from the private arena to the public/political arena once the nuisance has hit a particular size in terms of the population harmed
But if the nuisance has some degree of specificity then you can assert the private action (under that “special” relationship)
If it’s a “mere” economic loss, you need to ask if the tortfeasor is otherwise deterred before you start allowing nuisance claim
Public nuisance considered as “conduct that amounts to a substantial interference with the exercise of a common right of the public, thereby offending public morals, interfering with the use by the public or a public place or endangering or injuring the property, health, safety, or comfort of a considerable number of persons.” 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Center, 750 N.E.2d 1097 (N.Y. 2001)
The defendant must exert substantial control over the nuisance. Camden Township v. Beretta, below
Actionable by a private person only if that person suffered a “special injury” beyond that suffered by the community at large. Id.
RPD: This is the general rule for public nuisance as a private cause of action
Hence, Ps not allowed to recover when their businesses were closed as a result of a public nuisance; created when construction disaster at D’s building caused the streets and building to be shut down for a period of time
But see, Union Oil v. Oppen, 501 F.2d 558 (9th Cir. 1974). RPD: How the fuck do you reconcile this case w/Dickinson Cheese v. North Dakota or Commonwealth of Pennsylvania v. Agway Inc.?
Polluters hurt the fisherman’s profits.
Court allowed recovery on the economic theory that required it to fix the identity of the party who can avoid the costs most cheaply given the “foreseeable” nature of the harms from the polluter’s ex ante point of view. Once fixed, this determination then controls liability
If the least-cost avoider can’t be determined than assess the burden on the party that can best correct the error
Hence, court put the burden on the polluter OilCo.
Note: Ps in this case could not bring an action in private nuisance (as opposed to public nuisance):
“The plaintiff’s who do not own the fish cannot complain if the Union Oil company captures them. As they cannot complain of capture, they cannot complain of destruction after capture. As they cannot complain of destruction after capture, they cannot complain of destruction before capture” (Epstein)
Pruitt v. Allied Chemical Corp., 523 F. Supp. 975 (E.D. Va. 1981)
D spilled a chemical into the James River
Allowed suits of the commercial fishermen, marina, boat, tackle, and bait shop owners
Denied suits from the seafood purchasers of the fishermen on the basis that the harm was “insufficiently direct”
Note: This case (and UnionOil and 432 Madison Ave. is very close to the pure economic damages cases)
RPD: Rule for public nuisance typically seems to allow a cause of action when the livelihood of a class of persons is affected
Union Oil, Pruitt, not–532 Madison Avenue
Leo v. General Elec. Co., 145 A.D.2d 291 (1989) commercial fishermen allowed to sue GE for GE’s release of PCBs into the Hudson River
P was able to establish that their injuries were special and different in kind and not in degree; a loss of livelihood was not suffered by everyone
See also, Camden County v. Beretta, U.S.A. Corp., 273 F.3d 536. No cause of action for handgun manufacture (by virtue of enfocement costs associated w/gun violence) since P did not show that Beretta had sufficient control over the handguns
Court based its ruling heavily on the theory that Beretta could not be liable for the tortious acts of third parties
RPD: See Watson.
Levmore: Beretta says Gun control is not a function of the courts; it is a function of legislature (consistent with the take on public nuisance we have seen previously) i.e., if a harm is generally inflicted, it becomes a political and not a judicial problem
Levmore: Perhaps you could argument that the gun company or the government is the “least cost avoider” This is almost a products liability argument
But it seems a bit odd that, say, one court in Illinois could determine gun control policy for the rest of the country (which is why it is a political problem)
Requires, inter alia, parties to provide gov’t with notice of pollution
Remedy includes an aggressive reginme of joint and several liability
United States v. Alcan Aluminum Corp., 964 F.2d 252 (3d Cir. 1992). No minimum level necessary to trigger private liability for cleanup costs under the statute once a release was determined
Alcan had released very minor amounts chemicals
Appellate did remand to see if Alcan’s releases were sufficiently “divisible” from pollution caused by other sources so that it could beheld accountable only for its distinct harm
One way to think about the evolution of law in products liability (or in general) is by being focused. E.g., Rescue Law (law has trouble w/multiple party problems). Can refer to this as a “focused approach” or a “least cost-avoider” approach (traceable to Calabresi).
i.e., the “least cost avoider” is the person who basically has the “special relationship” with the injured person (the “least cost avoider” only trivially means the person who can reduce the harm/risk at the lowest cost)
Again, it does not mean that the person has the lowest cost to solving the problem; it makes more sense to think of “least cost avoider” as the “single best problem solver” (though this is shorthand, not a formal term)
Hence, for the purpose of exams, use “least cost avoider” with an asterisk
However, in some areas of law there is more of a “broader” approach to law (e.g., multiple tortfeasors). So, if you have 7 polluters and you need to single out one of the polluters you can find a way to distinguish one most culpable party (“single best problem solvers”). But b/c this is so difficult, law will simply hold everyone liable
This type of joint and several liability is almost the opposite of “least cost avoider”/”single best problem solver” type negligence
But there is some development in law in which we find the cases getting pushed one way or another (i.e., we do not see courts using Macpherson to hold all the bystanders liable in a rescue situation)
We might never be able to determine exactly what has created this distinction
One explanation for the 500-year run of the privity rule is that law was still viewing the problem through a “focused” approach to avoid the multiple party problem (hence, think or responsibility as emanating from one party and not all parties)
What does “strict” products liability mean?
It does not mean the manufacturer is liable for everything that happens; the manufacturer is only liable for injuries suffered as a result of a defect in the product
E.g., Dell is not liable if a computer falls on my foot, Dell is liable if it blows up in my face
So, it’s basically strict liability for defective (i.e., negligently made) products but not really
Really, “strict liability” is a function of the sampling problem. That is, factory inspectors can’t inspect every single product and if they do they might actually create more problems. So, strict liability is a social choice in recognition that a perfect Learned Hand behavior is simply impossible
So, the strict liability imposes some cost shifting for the products that will inevitably be missed in inspections (it is just a statistical inevitability that some defective products will make it through the inspections)
You could take the argument that these cases are related on the basis of “best evidence provider”; e.g., the manufacturer could have installed more cameras/devices to trace evidence of the underlying negligence (consistent with the idea for strict liability for dangerous activities)
Pre-1916: Lack of privity to contract prevented products liability suits against “remote” suppliers
Winterbottom v. Wright, 152 Eng. Rep. 402 (Ex. 1842). Party who is not bound by contract can not bring a suit for product defect in the absence of a public duty undertaken by the defendant or some public nuisance committed
Largely adopted in the U.S. See, Huset v. J.I. Case Threshing Machine Co., 120 F. 865, 867-871 (8th Cir. 1903)
Adopted Winterbottom in its emphasis that an injured party might only have recover through breach of contract
Exceptions limited to:
An act of negligence that is “imminently dangerous”
Owner’s act of negligence to an invitee
One who sells/delivers an article that is “imminently dangerous” without informing the recipient of the danger (RPD: This seems to open up the floodgates)
1916-1940: Imposed liability in negligence on a remote seller who has no direct contractual relationship with the injured party
MacPherson v. Buick Motor Co., 111 N.E. 1050 (N.Y., 1916) (Cardozo, J.). Manufacturer can be liable in negligence to parties not in privity to contract if the item is such that negligent manufacture would transform it into a danger
P was injured when the wheel of his Buick “collapsed”. Buick did not manufacture the wheel
Cardozo distinguished the case from Losee
Cites Huset in support
Levmore: MacPherson is dealing w/a defective car; privity rule would imply that P should sue the dealer, but MacPerson (through Cardozo) allows the P to sue the manufacturer Law moved from a focused approach to a broad approach, to a deep approach through the evolution of products liability. But why did this happen?
A broad approach would cause you to sue every party that contributed to the defective product (all manufacturers, suppliers, etc.); this would imply a comparative negligence regime
Cardozo moves to the deep rule in MacPherson This simplifies the problem of multiple litigations
Consistent, too, with making the most responsible/culpable party pay (Palsgraf, Wagon Mound)
Most consistent with the “special relationships” found in rescue law
1944-1965: Rise of strict liability, pointing to “absolute liability” (as found in Escola v. Coca Cola Bottling Co., 150 P.2d 436, 440-44 (Cal. 1944) (Traynor, J., concurring)); where P was injured by an exploding Coca-Cola bottle
Majority opinion allowed recovery on a theory of res ipsa loquitur
Traynor based his rationale for “absolute liability” on:
Much easier for manufacturer to mitigate the risk
Note: The CA court later rejects extending this analogy to an epileptic getting behind the wheel in Hammontree v. Jenner (1971).
The negligence would normally be consumed in the accident (RPD: Consistent with the rule for hazardous activities such as blasting)
Clear public policy/the injured party is the party at interest
Consistent with the historical practice that a breach of warranty in which a breach of warranty was actionable in tort (as opposed to an action in assumpsit)
The idea of an implied warranty was adopted by U.C.C. § 2-318 in which the scope of the warrant can be extended to any person reasonably expected to use a product sold
Henningsen v. Bloomfield Motors. Court voided the express limited warranty as unconscionable and held that the implied warranty operated in favor of P
But see Goldberg v. Kollsman Instruments Corp., 191 N.E.2d 81 (N.Y. 1963).
P brought suit against Lockheed (airplane manufacturer) in strict liability, American Airlines, in negligence, and Kollsman, the manufacturer of a defective altimeter in strict liability.
Lockheed has the most contractual avenues with all the suppliers
But AA is the one testing the plane on an ongoing basis (so actually either one could have been the best problem solver); but AA is being sued in negligence
In the pre-Macpherson days, the only person P could have sued would have been the travel agent (privity of contract)
Court allowed recover against Lockheed but not Kollsman: “adequate protection is provided for the passengers by casting in liability the airplane manufacturer which put into the market the completed aircraft”
Wagon Mound II at work, no?
Restatement (Second) § 402A: Applied strict liability to seller for design defects to product causing physical harm to user
1965-Present: Consolidation of strict liability
Rise of crashworthiness theories
Decline of the open and obvious defense
Expansive definition of product defect
But see Casa Clara Condominium Assoc., Inc. v. Toppino, 620 So. 2d 1244 (Fla. 1993). Homeowners not allowed to recover from the cement manufacturer (products liability theory) for purely economic harms in the absence of any physical injury
Recovery under negligence for product liability theory inappropriate when only the “product” itself (in this case, the condominiums made with Toppino’s concrete) are harmed as opposed to a person or other property
Homeowners had recovery in contract, so tort was inappropriate
“The character of a loss determines the appropriate remedies, and, to determine the character of a loss, one must look to the produce purchased by the plaintiff, not the produce sold by the defendant” (emphasis RPD)
Casa Clara is the overriding law in this respect (adopted also by the Restatement). See, Seely v. White Motor Co., 403 P.2d 145 (Cal. 1965). No recovery in tort when a product damages itself, causing economic loss but does not cause personal injury or damage to any property other than itself.
RPD: Consistent with Robins Dry Dock & Repair v. Flint, supra.
Restatement (Second) § 402A implied that strict liability would apply only to the actual purchaser of the goods
However, caselaw quickly moved beyond this
E.g., Elmore v. American Motors Corp., 451 P.2d 84 (Cal. 1969)
Bystander was killed as a result of a defective drive shaft made by D
Court allowed they bystander to recover on the theory that the public policy of strict liability was to not only protect actual purchasers but “human beings generally”
Restatement (Third) § 1 seems to adopt the broader reading of products liability
“One engaged in the business of selling or otherwise distributing products . . . is subject to liability for harms to persons or property caused by the defect”
However, the Restatement (Third) has not been universally adopted
Governed by U.C.C. § 2-313. Created when an affirmation by the seller which relates to the good becomes a part of the basis for the bargain. Goods shall then conform to the description
Modest view is that the language shifts the burden of proving non-reliance to the seller
Radical view eliminates the concept of reliance altogether (both noted in Hauter v. Zogarts, 534 P.2d 377 (Cal. 1975) (Tobriner, J.)
Claims under breach of warranty are barred by statute of limitations of four years from date of sale. U.C.C. § 2-725
Tort claims run from at the earliest from the date of the injury, and in most jurisdictions only from the date at which P has discovered the injury
However, most states have enacted statutes limiting the time under which you can bring a product liability suit in tort
Express warranties can be busted as unconscionable. Collins v. Uniroyal Inc., 315 A.2d 16 (N.J. 1974).
P was injured when his tire (manufactured by D) blew out. The express warranty limited liability to replacing the tire
Court allowed action for full damages, based on U.C.C. § 2-719: “limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable”
Note: Epstein (and presumably the libertarian/freedom of contract types) hates this case
Proper defendant (goods v. services)
Levmore:Cafazzo makes sense if and only if you look at strict liability in terms of its application as a solution to the tracing/sampling problem. The doctor and the hospital are not the parties subject to the tracing/sampling problem, so a negligence (and not strict liability) is appropriate for the doctor and the hospital.
Restatement (Third) adopts the second: “services, even when provided commercially, are not products” for the purposes of strict products liability
Cafazzo v. Central Medical Health Services, Inc., 668 A.2d 521 (Pa. 1995). P, injured by a defective mandibular implant, was not permitted to sue the doctors and hospital under a products liability theory (§ 402A of the Restatement). Services are not products for the purposes of products liability
Applied 4-part test as to whether or not to consider a middle man a “supplier”:
Are other members of the marketing chain available for remedy?
Would imposition of liability serve as an incentive to safety?
Note: The safety of medical devices is the responsibility of the Federal Gov’t, not professional duty (in the medical context)
Is the supplier in a better position than the middleman to prevent the circulation of defective products?
Can the middleman distribute the cost of compensation for injuries by charging it in his business?
Note: Pharamacists provide services and not products or the purpose of products liability. Murphy v. E.R. Squibb & Sons, Inc., 710 P.2d 247 (Cal. 1985) (Mosk, J.).
Court was very concerned that applying strict liability might encourage pharmacists to refuse to supply certain types of medication.
The Restatement (Third) includes as suppliers:
Non-manufacturing sellers such as wholesalers and retailers
Also commercial lessors and bailors (so a dealer can be held liable when he allows a customer to testdrive a car)
However, some leeway in used/reconditioned products. Tillman v. Vance Equipment Co., 596 P.2d 1299 (Or. 1979). Court refused to apply strict liability of § 402A when P was injured by crane, purchased by his employer from D, a used equipment dealer, on an “as is basis”
Court was concerned w/the impact this could have on the resale market
Also, the dealer in used goods is totally unconnected with the manufacturing chain in the same way that, say, GM would be
But see Crandell v. Larking & Jones Appliance Co., 334 N.W.2d 31 (S.D. 1983): Court accepted Tillman, but refused to apply for reconditioned goods purchased on the basis of the fact that seller sold in on a “good as new” basis (hence strict liability per § 402A applied)
Successor liability. Corporation can be liable for its successor when D Corp took over the business of the prior and exploited its good will w/out any change in operation or control. Ray v. Alad Corp. , 560 P.2d 3 (Cal. 1977)
Levmore: All liability moves with a stock sale, but the closer the asset sale looks like a stock sale then the more likely the courts are to affix successor liability
Distinguished by Leannais v. Cincinnati, Inc., 565 F.2d 437 (7th Cir. 1977) in which management of selling corporation had nothing to do with he operation of the new business after the sale. Successor liability occurred only when:
Purchasing Corp expressly agreed to assume is successor’s liabilities
Transaction amounts to a consolidation/merger
Purchaser is merely a continuation of the seller corp
Transaction is entered into fraudulently to escape liability
Leannis is the good law here (exceptions are adopted into Restatement)
Product Defects Manufacturing defects
Restatement (Third) § 3 Products Liability.
It may be inferred that the harm sustained by the P was cuased by a product defect existing at the time of sale or distribution, without proof of a specific defect, when the incident that harmed the plaintiff:
Was of a kind that ordinarily occurs as a result of product defect; and
Was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution
In a certain sense, it makes sense that the buyer still has recourse to seller because it lowers the cost of the used car (that is, the seller does not have to worry about getting sued in strict liability).
Thus, the used market is kind of a waiver. It gets much harder to bring a strict liability suit against a manufacturer if you buy a, say, reconditioned good:
Tillman v. Vance Equipment Co., 596 P.2d 1299 (Or. 1979). Court refused to apply strict liability of § 402A when P was injured by crane, purchased by his employer from D, a used equipment dealer, on an “as is basis”
Court was concerned w/the impact this could have on the resale market
But see Crandell v. Larking & Jones Appliance Co., 334 N.W.2d 31 (S.D. 1983): Court accepted Tillman, but refused to apply for reconditioned goods purchased on the basis of that good as new aspect (hence strict liability per § 402A applied)
Similarly, manufacturer will not be held liable if subsequent modifications caused an injury rather than a design defect. Brown v. United States Stove Co., 484 A.2d 1234 (N.J. 1984)
Speller v. Sears, Roebuck & Co. 790 N.E.2d 252 (N.Y. 2003). Summary judgment is inappropriate when P submits competent evidence that product defect was the cause of damage to rebut alternative causes of injury proffered by the defense
P’s apartment burned down in a fire. Both sides offered expert testimony as to the cause of the fire:
Defective refrigerator (P)
Grease fire caused by P’s negligence (D)
Any possible evidence related to the defectiveness/non-defectiveness of the fridge perished in the fire
NY allowed for P to bring a claim of product defense in such cases solely on circumstantial evidence with two requirements:
P must prove that the produce did not perform as intended; and
Exclude all other causes for the products failure that are not attributable to the D
P had lost on summary judgment when D brought its experts to show that the fire could have been started by a grease fire. Appellate held that SJ was inappropriate given that P had expert testimony to the contrary
RPD: Rather loose standard for P to survive SJ; but consistent with the theory behind strict products liability (see Macpherson, supra)
How much do you require of P to prove a manufacturing defect? This is particularly difficult when the product in question has long-lived use
Jagmin v. Simonds Abrasive Co., 211 N.W.2d 810 (Wis. 1973). When P’s evidenced tended to exclude the possibility of any responsible cause apart from an original product defect, the actual defect need not be identified.
P was struck in the face by a grinding wheel that broke when he was operating it. P established that the wheel was made by D, and testified he used the wheel in the proper manner
State Supreme Court allowed the case to go to trial on a modified re ipsa loquitur theory; P’s evidenced tended to exclude the possibility of any responsible cause apart from an original product defect, the actual defect need not be identified.
But see Myrlak v. Port Authority of N.Y., 723 A.2d 45 (N.J. 1999). Res ipsa loquitur is inappropriate for strict products liability actions (adopted Restatement (Third) § 3.)
6’3”, 325 lb. P sat and broke in a chair installed by the Port Authority a month prior.
P brought a theory under res ipsa loquitur in a strict products liability action
Jury found for the manufacturer
Appellate court reversed on the theory that res ipsa was inappropriate in strict products liability actions
Court basically adopted Restatement § 3 by imposing a much stricter burden upon the P in this case (RPD: Seems stricter than Speller, anyway)
Design defects. Different from normal products liability in that the focus is not on a defectively manufactured product but a product that is defective per se
The “open and obvious” test was the rule until the adoption of the Restatement (Second)
Campo v. Scofield, 95 N.E.2d 802 (N.Y. 1951): “We have not yet reached the state where a manufacturer is under the duty of making a machine accident proof or foolproof. Just as the manufacturer is under no obligation, in order to guard against injury resulting from deterioration, to furnish a machine that will not wear out, so he is under no duty to guard against injury from a patent peril or from a source manifestly dangerous.” (RPD: emphasis mine)
Seems to resonate w/Blyth v. Birmingham Water Works, 156 Eng. Rep. 1047
Restatement (Second): design defect was determined by the consumer expectations test (developed by Harper and James)
An alternative view was offered by Prof. Wade in his risk/utility analysis
Factors, for Wade are:
Usefulness of the product to the uses and society as a whole
Likelihood of injury and probable seriousness of that injury
Availability of a safe substitute
Manufacturer’s ability to eliminate the risk without impairing usefulness/making it too expensive
User’s ability to avoid risk through reasonable care
User’s anticipated awareness of the dangers involved
Feasibility, for the manufacturer, of spreading the cost through liability insurance/price of produce
Volkswagen of America, Inc. v Young, 321 A.2d 737 (Md. 1974). Automobile manufacturer can be liable in negligence if it failed to take reasonable care to design its cars so as to minimize the risk of harm suffered in a “second collision” suffered as a result of a collision between vehicles
P was killed when his car was rear-ended. In the ensuring “second collision” the P’s chair broke away from the body of the car, hurling the P backwards and P died as a result of injuries.
Court held that manufacturer could be liable in negligence, though not strict liability
“In sum, ‘traditional rules of negligence’ lead to the conclusion than an automobile manufacturer is liable for a defect in design which the manufacturer could have reasonably foreseen would cause or enhance injuries on impact, which is not patent or obvious to the user, and which in fact leads to or enhances the injuries in an automobile accident.”
Court noted that “there can be no recovery” if the danger were open and obvious
Court also noted that the fact the auto was designed in accordance with statutory regulations did not absolve tort liability
“Compliance with any Federal motor vehicle safety standard issued under this subchapter does not exempt any person from any liability under common law.” 15 U.S.C. § 1397(c)
RPD: whispers of Powell v. Fall.
Subsequent to Young, statutory requirements were created to set the standard for collision-proofing of cars
The burden of proof is now on the defendant to show what injuries were caused by D’s negligence. If D cannot do this, then the full loss falls on D. Restatement (Third) § 16(c), adopting Mitchell v. VolkswagenwerkA.G., 669 F.2d 1199 (8th Cir. 1982)
Decline of Open and Obvious in Design Defects
Micallef v. Miehle Co., 348 N.E.2d 571 (1976). Manufacturer can be liable even if the harm was open and obvious. Manufacturer has a duty to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger when the product is appropriately used
P sough to remove a foreign object from a moving press w/out stopping the press, was injured
Adopted in Restatement (Third) § 2. An open and obvious danger does not bar liability if P can demonstrate an alternative design
This is Learned Hand cost justified (Levmore)
What about food cases?
In general, a manufacturer is strictly liable for “foreign” objects found in food (e.g, shards of glass)
Mix v. Ingersoll Candy Co., 59 P.2d 144 (Cal. 1936). Manufacturer not liable if the foreign material found in food is “natural” to the type of food (e.g., bones natural to the type of meat being served)
But see Mexicali Rose v. Superior Court, 822 P.2d 1292 (Cal. 1992): Manufacturer can be liable in negligence for “natural” contaminants (P had swallowed a chicken bone from an enchilada)
Barker v. Lull Engineering Co., 573 P.2d 443 (Cal. 1978). D liable for design defects (1) if the product fails to perform safely as an ordinary consumer would expect or (2) the benefits of the design do not outweigh the risk of inherent danger. P does not need to prove D’s negligence/recklessness.