Deck 2 Flashcards
(155 cards)
1
Q
Kingston v Chicago, natural fire murges with unknown fire
A
No liability if D could prove that fire it merged with was of natural origin. Ds burden to show what caused the unknown fire.
2
Q
Two fires. One result of negligence. Other natural. Tortious fire hits house first.
A
No but for causation. Natural fire would have destroed it anyway. So tortious fire didn’t cause any extra damages. Only liable for damages caused by loss of time.
3
Q
Tortious fire merges with another tortious fire.
A
Looks a lot like Summers.
4
Q
All fish die if 200 gallons of chemical X. Company A N dumps 100 gallons
A
No liability.
5
Q
What if A and B both N dump 100 gallons.
A
Standard but for cause. Both liable.
6
Q
A, B, and C all N dump 100 gallons.
A
None are but for cause. But we want liability. Maybe use Summers. Three N, can’t determine who was tipping point so all liable unless info forced. If done in order, then C not liable.
7
Q
When do we bend but for causation?
A
Summers, two tortious fires, faulty brake example (comapny provides car, break doesn’t work, break never applied, but for causation doesn’t work), three companies each leaking 100 gallons.
8
Q
Herskovits v Group Health Cooperative of Puget Sound. But for cause problem: LIkely dies even if diagnosis made at earlier time.
A
Hypo: 20% to 45%: More likely than not that failure to diagnose was the cause. But for causation.
Hypo 30% to 55%: Less likely than not that failure to diagnose was the cause. No but for causation.
Majority: Damages caused by premature death.
Concurrence: Should be tort liability if increased, even if it doesn’t make it more likely that doctor was the cause of death. If risk increased by 40% then 40% of the compensable value of the victims life had they surivved. Focused not on death but increased chance of death, but they sitll have to die.
9
Q
Sindell v Abbot Laboratories. Can’t ID specific maunfacturer of DES that was taken during mother’s pregnancy.
A
Market share: 40% of market at time so responsbile for 40% of the damages. This is severable, not joint and severable.
Doesn’t matter if wrong in one case, if across the run of cases it comes out correctly.
This doesn’t work if we have a small number of cases or a small amount of market share data.
10
Q
Sanderson v International Flavors v Fragrances, chemical in perfume/lipstick something, etc.
A
No market share liability because products not identical.
Chemicals can be used in different ways, and interact differntly with different other ingredients.
Fungibility means the market share is a proxy for how much harm is caused.
11
Q
Smith v Cutter Biological, HIV from blood.
A
No worries about interaction so fact that not fungible doesn’t matter. All manufacturers draw from the same populations and failed to screen so all have equally similar risk.
Don’t know market share. Judge applies anyway, open to rebuttal.
Only 1 person injured, so you’re holding people liable who didn’t cause the injury. This is an odd use of market share.
12
Q
Polemis, owned steamship, plank falls, lots of exposions. Explosion is not forseeable, but is the direct cause because the fall caused a spark which caused the fire.
A
Negligent actor held for any damage that is a direct result regardless of whether or not it is foreseeable. Just follow the causal chain. No intervening causes.
13
Q
The Wagon Mound (No. 1). Boat 1 spills oil. Boat 2 pauses work. Starts again 2 days later. Boat two starts fire. Spilling oil was negligent. Boat 1 liable?
A
No. Risk of fire low because it’s in water. Only caught fire because spark hit oily rag that was partially above water.
Disagrees with Polemis. Says test should be foreseeability (predictable regadless of whether direct or indirect).
You can deter stuff that is forseeable, can’t necessarily deter stuff that is direct.
14
Q
In Petition of Kinsman Transit Co. Boat tie comes loose (was tied negligently). Collides with ships, hits bridge, bridge collapses, creates dam, leads to flooding.
A
This much is foreseeable. Ex of not forseable: Delay causes doctor to be late to srugery and someone dies as a result.
Kinsman factors: Type of harm/accident, physical force, class of persons.
15
Q
Why would we let someone who is but for cause off the hook under Kinsman factors?
A
Because it might be unfair. Not necessarily proportional to blameworthiness. Intuitevely seems wrong when you can’t foresee it at all. Can’t deter stuff that can’t be forseen.
16
Q
Hypo: Vacuum repairman repairs vaccuum but now worse. You get in car to go back to repair shop. Car accident. Negligence is but for cause. Proximate cause?
A
Differnt type of harm/accident (less clean home vs car crash). Maybe same class of person. Different physical force (dust and fire not car scrash).
Deterrence/fairness: Repair person not thinking about preventing them from driving and getting in a car crash.
17
Q
Restatement and proximate cause
A
An actor’s liability is limited to those physical harms that result from the risks that made the actor’s conduct tortious.
It’s all about forseeability. What set of Ls are we worried about? This is the scope of liability.
18
Q
Doughty v Turner, motlen goo case. Proximate cause?
A
No. Splash might be forseeable, but the chemical reaction causing an explosion is not.
Persons: Yes. Harm: Yes (good on skin). Physical force/mechanism: No (splash vs explosion).
It wouldn’t be wrongful to drop lid in goo intentionally so they shouldn’t be liable because it happened negligently.
19
Q
Colonial Inn Motor Lodge v Gay. Car backs into heater. Explosion. Proximate cause?
A
Yes. Same person/property. Damage to building. Eggshell rule. Type of harm: broken windown or brick different than whole building. Physical force: Bump different than explosion.
In space where we are unsure maybe we revert back to eggshell rule.
You don’t know impact of bumping into wall. Should warn someone who would know.
Eggshell seems in tension with forseeability.
20
Q
Diponzio v Riordan, rolling car at gas station.
A
Not proximate cause. Not the sort of harm we are thinking about when we say it is negligent to leave car running at gas station.
21
Q
United Novelty Co v Daniels, rat catches on fire and leads to explosion. Liable?
A
Yes. Same physical force. Same type of harm. Same class of people. Just a weird mechanism, this doesn’t matter.
22
Q
Steinhauser v Hertz Corp, Schizophrenia following car crash.
A
Yes. Not foreseeable, but eggshell case.
23
Q
Central of Georgia RY v Prince Price and Pridham v Cash & Carry Building Center. Both cases action put them in situation where they eventually got harmed. In both cases the original actor is a tortfeasor. Why only liable in one?
A
Train company didn’t increase risk (staying at a hotel either way), but store did (now has to get into ambulance).
24
Q
Hypo: Driver of bus speeding. Tree limb breaks and falls on bus causing damage. Liable?
A
No, even though but for cause. Differnt types of harm (crash vs tree branch) and different physical force (tree branch falling vs bus hitting someone/something).
If negligent act decreased risk it would be weird to hold them liable (moving past area faster).
25
Brauer v NY Central & H.R.R. Railroad hits wagon. Stuff scattered from wagon. Stole by 3rd party. Railroad liable?
Yes. Forseeable that someone would take valuable goods scattered on the road. Railroad has security to prevent theft, but they didn't do anything to protect the stuff from the wagon.
26
Watson. Gas spill. Cigarette causes it to explode. Liable?
Liable if accident (forseeable). Not liable if intentional (not forseeable).
27
Village of Carterville v Cook and Alexander v Town of New Castle. In both cases the town created a dangerous condition and P was harmed as a result of some outside force. Why different?
Carterville: Inadvertent Jostle. Forseeeable. Guardrail would prevent falling.
Alexander: Malicious. Not very foreseeable. Guardrail many not have prevented throwing.
28
Piazza v Kellim. Key left in van. prisoner escapes, kills someone. Liable.
No. Doesn't seem fair even if forseeable.
29
Scott v Shepard. Throws firework. Thrown again. Again. Boom. Intervening cause?
No. Second and third throws were defensive and foreseeable. First throw is liable.
30
Thomson v White. Clow distracts and causes accident. Liable?
Yes. Was foreseeable.
31
In the Roman Prince. Waits to long to evacuate sinking boat. Stumbles and injured. Causer of accidnet liable?
No. Had time to get out without rushing. Gets on and off boat all the time anyway.
32
Henry v Housotn Lighting & Power Co. Drilling hole. Severs gas line. Someone comes to fix it. Someone yells fire. Hurt rushing out. Original severer liable?
Could go either way.
33
Johnson v Kosmos Portland Cement Co. Boat filled with gasoline fumes. Lighting causes it to blow up. Forseeable?
Yes. Same type of harm. Same class of persons. Forseeable on a rainy day that struck by lightening.
34
Clark v E.I. DuPont de Nemours Powder Co. Explosive left by DuPont. McDowell recognizing danger brings it home. Hides in graveyard. Dupont liable?
Yes. Foreseeable that someone would find and move it.
35
New and independent cause
A separate and independant agency, not reasonably forseeable.
36
Negligent car accident. Rubbernecking 45 minutes later. Crash. Liable?
No. Forseeable, but seems intuitively unfair to hold liable.
37
Yania v Bigan. Bigan taunted into jumping down. Drowns. Liable?
No. Decision to jump, not taunting created the risk. They weren't causer of harm. Causer of harm was jump not taunt.
Probably comes out the other way if jumper is a kid. Verbal is problematic, but decision to jump is intervening cause.
38
321 duty to prevent unreasonable risk from causing harm
If the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect.
39
322 helplessness and duty of care
If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm
40
Weirum v RKO Radio General. Telling people to go to location to win prize. Speeder hits someone. Radio liable?
Yes. Forseeable that car accident from speeding to win race. Offered reward more than just teasing. Also kids were the ones driving speeding car.
41
Soldano: Someone at a bar gets shot. Liable for not giving phone t call police before shooting to break up a fight?
Yes.
There is a duty when there is imminent danger of physical harm to not prevent someone from using a phone in a public place in an attempt to prevent the danger from taking place.
42
Stangle. Someone has jewel stolen from them. Liable for not allowing someone to use phone to help prevent theft?
No.
43
Globe Malleable Iron & Steel Co. v New York Central & H.R. R. Co. Train blocks firetruck from getting to fire multiple times. Liable?
Duty to get out of the way of emergency services when easy to do so.
Clear who has the duty. Little risk, you just have to stop the train.
44
United States v Lawter versus Frank v United States
Lawter: They did a bad job rescuing. Helicopter cable not secured. Increased risk of falling into the ocean (this wasn't an issue before).
Frank: Coast Guard didn't increase likelihood of risk. Coast Guard had no duty to rescue.
45
323 protection of other and duty of care
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if a) his failure to exercise such care increases the risk of such harm, or b) the harm is suffered because of the other's reliance upon the undertaking.
46
324 rescue and duty of care
One who being under no duty to do so, takes charge of another who is helplessly inadequate to aid or protect himself is subject to liability to the other for any bodily harm caused to him by a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor's charge, or b) the actor's discontinuing his aid or protection, if by doing so he leaves the other in a worse position than when the actor took charge of him.
47
Ocotillo West Join Venture v Superior Court. Course took keys. Friend says will give them ride home. Gets keys. Gives them to friend. Car crashes. Friend liable?
Yes. Increased risk. Left in worse position. Intentional not negligent. 324.
48
Bloomberg v Insurance Exchange of the Automobile Club of Southern California. Call for rescue.They took car but can't find them. Car is hit. Is rescuer liable?
Only if you can find negligence in their rescue attempt.
49
Marsalis v La Salle. Cat scratch. Asks for cat to be observed for rabies. Cat escapes. Bad reaction to rabies treatment. Turns out cat wasn't rabid. Cat watcher liable?
Risk probably enough if voluntarily undertook.
But what if they never said they would watch the cat. Only asked. So no liability under 324. Was an unreasonable risk creatd under 321? Maybe should have realized scratch created unreasonable harm from medical procedure. Then there is a duty to exercise reasonable care, and keep cat in. Under 322? Bodily harm cased by scratch. Left helpless because person hurt has no ability to keep eye on cat without help of cat owner. So maybe.
50
Petition of Trans-Pacific Fishing & Packing Co. Captain didn't rescue crew member who fell overboard because they thought it would be too difficult (rough seas, fires on board, etc.). Duty?
Standard reasons for not having prexisting duties: Confusion over who will do the rescue (no confusion here, only one captain). Don't want ametuer rescues (trained or trainable here). Unclear to what extent you would have to put yourself at risk (throw something overboard, etc. this isn't risky). How much risk triggers this duty (falling overboard puts you at a high degree of risk).
51
Brosnahan v Western Airlines. Bag falls on someone during boarding process. Liable?
Airline has to ensure safety during boarding process. Clear who has duty here (flight attendants). Not dangerous for them to help put bags up. Very trainable. Airlines has forced passengers to sit in their seats (they've increased risk).
52
Common carriers
Transport any member of the public who can pay. Held to higher standards.
53
Charles v Seigrfried. Throw a party. Someone gets drunk. they get in a car accident. Die. Social host liable?
No. We don't want duty rule here. Hard for host to control guests actions. Chillng effect, less parties.
54
Tarasoff v Regents of University of California. Patient says they will kill someone. No warning. Kills someone. Duty to warn?
If reasonable to think that threat is real you need to forego confidentiality and warn them. Victim eaily identifiable. High degree of danger. Clear who would rescue.
55
Thomson v Count of Alameda. I'm going to kill a kid in my neighborhood. Kills kid. Duty to warn?
No duty to warn. Unspecified. Greater infrignement of confidentialty. Increased stigma.
56
Vasectomy doesn't work. Pregnancy. Can you sue doctor?
No. Duty only runs to patient.
57
Pharmacist knows prescription X and Y taken together will kill. Duty to warn?
No. This is on the doctor.
58
Haskins v Grybok. What is the duty to trespasers?
Obligation to refrain from intentional injury and from willful, wanton, and reckless conduct.
59
Tresspasser duty to another tresspasser
Would be same as duty from one person to another on public land.
60
Herrick v Wixom. Trespasser's presence was noticed. Duty of care?
Regulare duty if you know they are there (liable for any negligence).
61
333 Duty to trespassers???
Landowner a) has to put the land in a condition reasonably safe for their recepiton (conditions of the land) and b) has to carry on his activities so as not to endager them (activity on the land).
62
334 constant tresspassing duty
If you know or should know based on facts within their knoweldge that tresspasser constantly intrude upon a limited area then liability for bodily harm caused by failure to carry on an activity involving a risk of death or serious bodily harm with reasonable care for their safety.
Duty only exists when you are doing something super dangerous. When not doing something super danger it's the normal tresspasser rule. Also doesn't exist when you only should have known, you have to should have known from the facts you know of.
63
337 dangerous artificial conditions on property towards tresspassers.
Maintain dangerous artifical conditions on land then liability if a) the possessor knows or has reason to know their presence in dangerous proximity to the condition, and b) the condition is of such a nature that he ha reason to believe that the tresspasser will not discover or realize the risk involved.
You have to warn. You don't have to take it down (ex. electric fence). Triggered when risk of death or serious bodily harm and you know or have reason to know they will come in dangerous proximity to the artifical condition.
64
Tresspassers duty of care? Discovered trespasser? Reason to know (conditions and activties)?
Trespassers: Very limited duty. Don't injury intentionally.
discovered trespasser: Don't be negligent.
Reason to know (conditions): Duty to warn of non-obvious artifical conditions that can cause serious harm.
Reason to know (activities): Move dangerous activity if constant trespassers in limited area.
65
339 Kids and artifical conditions
If you know or have reason to know that kids will trespass and come into contact you have to eliminate the artificial condition, if the utility of maintaining the condition and the burden of eliminating the danger are slight as compared to the risk to children involved. Liable if kid doesn't realize the risk involved. (what if they do recognize risk???)
66
Davies v McDowel National Bank. Friendly visit to office. Die in office due to CO2 leak. Worker is land owner. Duty?
Duties different depending on if social host or business visitor.
67
Business visitor (invitee) duty
Duty to exercise reasonable care in maintaining premises in a safe condition.
68
Social guest (licensee) duty
Host has to give warning if they now of a dangerous condition.
69
342 Social guest duty restatement
Possessor of land subject to liability for physical harm caused to licensees by a condition on the land if, but only if, a) possessor knows or has reason to know of the condition involving unreasonable risk of harm to licensee and should expect they won't discover, b) fails to eercise reasonable care to make the condition safe or to warn, and c) licensees do not know or have reaosn to know of the condition and the risk involved.
- unreasable risk of harm is lower than risk of serious harm or death (known trespasser). Have to warn about artificial and non-artificial conditions (also different than tresspasser).
70
Lordi v Spiotta, heater not turned off properly. Boom.
Similar to gas heater and negligence of Davies. But here D has created the danger through their negligence. This is an action, not a condition.
Reason for conditions rule is to keep you from inspecting land. Making sure you turn off heater properly is not nearly as onerous. You are already there and doing something, just make sure you are doing it right. You don't have to go out and inspect.
71
City of Boca Raton v Mattef. Possible negligence of city: Not prooviding a safe working condition. What was status of worker?
Court says closer to volunteer. If business there is a duty of reasonable care. Volunteer treated a social guest, because neither business nor trespasser. Therefore, duty to warn of known hazards. This is not a known hazard.
72
Jacobsma v Goldberg's fashion forum. Tackling robber case.
P wins. Is acting as agent for the store. Nothing done to escape being a business guest.
73
Premise liabiity: Is there liability for landowner when A owns land, B commits crime on land against C?
1) Some courts say there are duties to prevent invitees from committing crime. 2) Some courts require a heightened risk of forseeability. 3) Some courts constrain liability further by saying landowners only have duty to protect against criminal third parties if they knw that similar crimes had occurred on their land.
74
business guest duty
Standard of reasonable care. This includes a duty of inspection.
75
Social guest duty
Duty to warn of known risks (natural or artificial, serious or less serious). Don't act negligently.
76
Tresspasser duty
Don't murder or spring gun them.
77
Hypo: The city of X maintains a free public library, for the use of anyone in the community. A comes to the library to read a book. What is A? What if A enters to meet a friend or to get out of the rain?
Business guest. Social guest.
78
Can you exceed permission and lose status as business guest?
Yes.
79
Firefighter rule
Treated a social guests or less. Barred from recovery if injured by fire. Injured by banister not realted to fire, sometimes barred. Have to be on lookout for all sorts of structual damage while fire fighting.
80
Meter reader and firefighter rule
You know they are coming, only one place, small area, not emergency situation, easier to inspect. Not firefighter rule.
81
Emergency responders and firefighter rule?
Covered by firefighter rule. Everyone else not, especially if arrival is known or predictable.
82
Rowland v Christian (duty of care to guests, etc.)
Gets rid of distinctions. Just bases it all on reasonable care standard. In typical case the result will be the same, but outcome can differ in certain circumstances. It is a case by case analysis.
83
Economic loss rule
Economic loss only available when tied to physical harm, or property damage.
84
Phoenix Professional Hockey Club v Hirmer. Car wreck injures professional hockey player. Team has to hire substitute. Does driver have to pay damages to the team?
No. This isn't the mushroom case. No actual property interest of employer to employee (distinguishing from mushroom case). No physical damage to hockey team corporation.
85
24 hour deli. Street closed because of negligent collapse of another building. Customers can't get there. Economic loss?
No.
86
People Express Airline v Consolidated Rail Corp. Accident at train station. Evacuation plan includes evacuating airport. Flights cancelled. Economic loss?
Harm caused, even if not physical was particularly forseeable. There was an already existing emergency plan involving actions that were taken.
Smaller amount of people affected. Not dominoed out (ex. Everyone who missed a flight).
87
Lawson v Management activities. Dealership employees saw plane crash. Thought it would hit them but misses. Claim?
No. Large class of people. Might not have looked up. Could be a faker problem that zone of danger can't fix.
88
Newlin v New England Telphome & Telegraph co. Phone pole falls over, knocks down power line. No electricity to mushroom farm. Mushrooms ruined. Economic loss rule?
No. They are liable
89
Quill v Trans World Airline. Plane in uncontrolled spin. Pulled out at last second. Thought they were going to die. P on plane.
Concerned about flood and fakers. Small class. Tough to fake because on plane.
90
What do you need to win for negligent emoitnal harm without phsical contact?
Zone of danger + serious emotional harms. Physical symptoms requirement has largely been gotten rid of.
91
Thing v La Chusa. Alterantive negligent emotional harm test.
Have to be 1) closely related to the victim, 2) present at the event when it occurs and is aware that injury is being caused to the victim, and 3) suffers serious emotional distress.
92
Marzolf. Arrives at seen a few minutes after accident. Watches son dying. Claim?
Court says having to be present at exact moment is arbitrary. Watching son suffering afterward can be just as emotionally damaging.
93
Gain v Carrol. Sees son's car wreck on TV. Claim?
No. You have to be physically present at the scene. No damages.
94
Green v Esplanade Ventura P'ship. What counts as close family? Bystander liability requirements?
Grandchildren count. What doesn't? Fiances, son-in-laws, aunts and uncles, nieces and nephews.
Other states do functional test based on the actual relation between the specific people.
In this case you have to be threatened by the danger to have bystander liability. Different than other courts that allow you to pursue by zone of danger or bystander liability. Cuts out classic example of parent on front lawn seeing child hit by car.
Concurrence: Bystander without zone of danger if personal and loving relatinship. Bystander for any person if within zone of dnager.
95
Hypo: Witness car getting destroyed from safe distance. Don't know them. You get an ulcer. Emotional damage?
No.
96
Witness result of medical negligence. Have to watch husband suffer through chemotherapy when they otherwise wouldn't have to. Emotional damage?
No. Courts say bystander cases are about violent events, not slow burn.
97
Mechanic of car was negligent six months ago causing accident. Mother sees this car hit child, but mom not in zone of danger. Emotional damage?
Some say you have to see the negligence, not just the impact.
98
Pure rule of comparative negligence
If D causes X% of damage then they have to pay x% of damage caused.
99
49% rule of comparaitve damage.
If D caused 50% of damage or less, then D is not liabile for anything.
100
50% rule of comparative damage.
If D caused 50% or more of damage, then D is liable for that amount.
101
Manning v Brown. Joyriding (recklessly driving a car they stole). This is a joint venture. Driver swerves into pole negligently. Passenger harmed. Recovery?
No.
102
Fritts v Mckinne, drunk driving. Injured. Doctor messes up in surgery. Dies. Doctor liable?
Yes. Fully. All negligence takes place post criminal activit. Dont' want surgeons thinking they can get away with acting negligently in some cases. Don't want them sorting patients. Don't want pockets of no liability.
103
Van Vacter. Disobedient patient. Goes to hospital for chest pain. Stabilized. Sent home. Dies a few hours later. Should doctor be held liable for sending them home?
Yes. Liberty interest, patient has freedom to be disobedient. Don't want pockets of no liabilty. Don't want sorting of patients. No such thing as lifestyle negligence.
104
Alami v Volkswagon. Volswagon bad design. Drunk driver. Liable?
Manning rule: Serious violation of law, can't recover.
Fritz/Ven Vecter: Full liability.
VW doesn't know state of driver. Doctor might know how they showed up. Can't sort them here.
This should be comparative fault. Good reason to distinguish from other rules.
105
Oulette v Carde. Injured during rescue. Comparative negligence?
No, unless rash or reckless rescuer should be able to recover (Eckert). Comes out the same way.
106
Lauder rule
No duty to start rescue (generally) but you can't increase the risk of harm.
107
Van Tun v Zurich American Insurance Co. Mechanical bull case. Waiver doesn't expressly disclaim negligence. Negligence. Enforceable?
No. Doesn't expressly disclaim negligence. Freedom of contract, but you have to be clear.
108
Manning v Brannon. Has a disclaimer for negligence. Initaled 14 times. Watched video. Told the if they didn't like deal they could go elsewhere. Enfoceable?
Yes. Covered negligence. Lots of initialling. Other options. Could have just done it. Lots of free choice.
109
Is gross negligence waivable?
In most states, no.
110
Amtrak ticket waiver enforceable?
Standard rule: Amtrak waiver on normal ticket doesn't work.
But, Amtrak waiver on discounted ticket does work. He coud have bought standard if he didn't want to waive.
If all tickets waive, only way to ride train is to waive liability, then not enforceable.
Bargaining power important here.
111
Tunkl v Regents of the University of California. Medical care negligence liability waiver?
Unenforceable. Medical care was necessary. Couldn't have been avoided. Unequal bargaining power. At mercy of hospital. No self-help to protect against negligence.
112
Shorter v Drury. Signled release saying not liable if she dies because she refuses blood transfusion. Enforceable?
Yes. Becomes case of comparative fault.
113
Waivers not allowed on public policy grounds?
Sometimes. Hospitals, employment, products liability, etc. Contexts where all or must of Tunkl factors are present.
114
Waiver benefits
Keep costs down. Liberty.
115
Normal view of punitive damages
Meant to punish. They are meant to react to outrageous, morally inappropriate behavior like fradu. Intentionally or especially reckless.
116
Law and economics view of punitive damgages
Ex. No cost to have unenforceable waiver. And you might deter some from suing. Maybe you deter 2/3rds then you should pay punitive damages when you are sued to cover people who don't sue. This would make sure that you pay equal to the amount of harm you cause in order to deter you from causing so much harm.
117
Early v Van Alstine. Strict liability for bees?
No strict liability if useful, and commonly domesticated (ex. dogs, cows).
Strict liability if ferocious (ex. lions, bears).
Bees have been routinely domesticated. Their habits are known and predictable. Odds of serious injury from them are low. These bees haven't stung anyone before. Didn't estcape. If they did escape, then no strict liability.
118
Candler v Stick. Strict liability for baboons?
Yes. More ferocious. Less useful. Less predictable.
119
Pet owner vs zoo. Reason to treat differently?
Pet owner can just get a dog. Can't say the same thing about a zoo.
120
Level of analysis for strict liability of animals?
Species level.
121
Smith v Pelah. Dog bite?
Two bite rule. Even if dog's paw trodden on by victim beforehand.
122
Cow tresspasses. What are you liable for?
Liable for stuff you would think they would do, like eating grass. Not liable for stuff you wouldn't think they would do, like harming a person.
123
Two bite rule today?
No. Strict liability for all dogs tody.
124
Hypo: Lion taken on walk. Pees on shoe. Strict liability?
No. Not the type of harm you're worried about.
125
Rylands v Fletcher. Water escapes and flood's P's mine. Strict liability?
B: If you bring something onto your land, and that escapes, then strict liability.
C: Adds requirement that escape occurs in a way that is non-natural.
126
Examples of natural use
Rain (if you don't create a ditch or reservoir), cattle.
Natural could be determined by its common purpose, something that has a high social utility, what neighbors use the land for, what alternative uses are available, how risky it is, etc. This is all ambiguous. But amalgam of was is epected, useful, reciprocated, risky, etc.
127
Turn v Big Lake Oil Co. Water overflow in Texas. Strict liability?
No. Texas different than England. Less rain. Water more valabule. This is more natural because common, customary, expected, etc. What you would expect owner to do if you buy neighboring property.
128
Lubin v Iowa City. Leave in water pipes until they broke, even as approaching the end of its estimated life. Strict liability?
Yes. Inherently dangerous beause they weren't checked on.
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Loss spreading rationale
Efficiency rationale. Most people would want to insure against this type of risk. Coudl have every homeowner take out insurance, or city gets insurance and is then held strictly liable.
Instead of everyone getting lower prices, and one person bearing burden because they get hit by flood, cost is born by everony.
130
Walker Shoe Store v Howard's Hobby shop. D heat property with oil. Leak. Ignited. Smoke and fire damge to neighbor's property. Strict liability?
No. No loss spreading. Possible resciprocity. Natural use of the land. Ability to control the oil (easily inspected) and therefore fine to handle with negligence.
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Factors for determining if activity is abnormally dnagerous, and examples
1) ferocious/danger, 2) control, 3) common usage, 4) reciprocity, 5) value. Unweighted multi-factor test. Not all factors necessary. One is probably not enough though. No specfic one necessary.
Not abnormally dangerous: Driving a car.
Abnormally dangerous: Driving a tank, blasting with dynamite, engine shooting out sparks.
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Indiana Harbor Belt Railroad v American Cyanamid Co. Chemical transported by train causes injuries.
If you can get rid of risk then matter of negligence.
Strict liability makes businesses ask if they should be in business, negligence forces them to ask how much care you should put in.
Strict liability: Want to ravel less because more miles means more chance of accident.
Negligence: Make sure you are careful the whole time.
Hub and spoke system makes it impossible to route around places. Driving no better. So strict liability doesn't make sense.
Not negligent just for making stuff because it has uses, just like dynamite.
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Siegler v Kuhlman. Gasoline truck case. Passed safety test. Trailer jerks lose. Spills. Fire. Someone dies. Strict liablity?
Yes.
520(c)?
Res ipsa here, unlike most crashes.
Crash caused by oil truck could destroy evidence of negligence (ex. Dynamite factory explosion)???.
Loss spreading: Super conentrated harms in sense of burning death vs everyone saving a very small amount of money on gas.
A lot more gas than ordinary car. Bigger boom. No common usage to have that much gas. No reciprocity.
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Res ipsa and negligence vs strict liabiity
Consider res ipsa and negligence per se first. If those can handle the issue, then no need for strict liability because they are part of negligence.
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Respondeat superior
Employer is generally strictly liable for torts committed by their employees in the course of their work. The employee has to have committed some sort of tort for the employer to be on the hook.
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Ira S. Bushey & Sons v United States? Drunken sailor causes accident. Employer liable?
Standard rule: Liability if you are acting at least in part to further the goal of the meployer. Under this test no laibility.
Appeals court disagrees. All about fairness. When accident is characteristic of the activities, the employer should pay. Forseeable that this would happen so company should be liable. Sailors are characteristicly drunk, so you're liable for what they do when drunk.
Not forseeable: Shooting someone who was having an affair with their wife, while at work. Has nothing to do with work and course of employment. Completely personal. Also no liability if sailor gets drunk and sets fire to random bar.
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Miller v Reiman-Wuerth Co. Employee asks to leave to deposit check. Given permission. Car crash with P. P sues employer?
Happier employee better employee argument rejected.
Peronal errand during workday doesn't make employer liable.
Frolic and detours don't lead to strict liability.
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Roth v First National Bank of New Jersey. Bank teller tells someone that someone takes out a lot of cash at same time everyday. That person tells theives. Employer liable?
Traditional rule: No, not motivated to benefit employer. It's harmful to them.
Characteristic of the activity (Bushey). No. Leaking information not characteristic of bank tellers.
139
Forster v Red Top Sedan Service. Talks about not delaying his passengers from getting to beach. Punch. Employer liable?
Yes. Possible to believe this was out of motivation to help emploer.
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Reina v Metropolitan Dade County. Driver ran away from bus and punched somoene. Employer liable?
No. No way this was motivated out of a desire to help employer.
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Baker v Saint Francis. Employee hitting baby. Test: Was employee motivated out of furthering employer's purpose?
Difficult to tell from record. No summary judgment.
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Baldwin v Sal Riverside. Prank on wife of boss. Employer liable?
NO. Clearly not motivated out of furthering employer's purpose. This was a prank completely outside of teh scope of employment.
143
Miami Herald Publishing Co. v Kendall. Contractor vs employee?
If the eprson performing the work gets to choose the means by which they accomplsih the task, then they are a contractor, not an employee.
Worker has a lot of control over the means so they are a contractor.
Strict liability only in regards to employees, not contractor.
Also look at contract, custom, what the believe, whether or not they are wearing a uniform, etc. but control is most important factor.
144
Escola v Coca Cola Bottling Co. Overcharged Coke bottle. Glass breaks. Injury.
Majority: Overcharing wouldn't have happened without negligence, so res ispa.
Concurrence; Res ipsa won't work Negligence of D doesn't speak for itself because somene else could have been negligent. Strict liability better. Work with more reputable companies. Might do more than what negligence demands. Encourages innovation to do better. Consumers can't tell if bottle is dangerous, and this puts more pressure on finding someone who can protect the consumer.
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Rationales for strict liability in products cases.
Deterrence. Loss spreading. Difficulty for Ps to prove negligence. No longer need to bring in experts. Company knows percentage of products that will be defective and will harm people, so they should be held responsible for the harm they cause. Increases price of products that are less safe (discourages purchase, market sign that it is more dangerous). Relative injustice.
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Three types of products liability claims
1) manufacturing defects, 2) desing defects 3) failure to warn.
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Welge v Planters Lifesavers Co.
Responsible for defects that cause injury where there is but for and proximate cause. This is strict liability (but sounds similar to res ipsa, aimed at discovering defect not negligence though).
Circumstancial evidence that defect occurred. For their to be liabity it needs to have happened when in hands of some seller/manufacturer before it got to consumer.
If unlikely it ahppened after consumer got it, then likely it happened before hand.
Invited use is not misuse. So Kmart could be liable.
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Hypo: Video evidence that Kmart employee at fault. Planters liable?
No liability for Planters Co because good reason to think Planter's didnt cause the defect.
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Who is strictly liable for products?
Anybody who sold or resold a product with a defect in it.
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You sell a used car. Are you a seller for purpose of products liability?
No. Not a commercial seller.
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Movie theater sells popcorn. Is this a product?
Yes, if they sell it consistently overtime (casual vs routine sales).
152
ie theater routinely sells used popcorn machines every two years. Seller?
Yes, this is a routine sale.
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Wheel of shopping cart jams. Strict liability for store?
No. Cart isn't being sold here. No products liability (can argue negligent maintenance though).
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At shopping mall. By a pair of jeans from Gap at shopping mall. city gave mall 100 yer lease. Is city seller? What about company that runs mall?
No for both. Just sold land and space respecitviely.
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Magrine v Krasnika. P injured by dnetist using hypodermic needle that breaks in mouth. Liable?
No. Not in better possiont to notice defect. Loss spreading better handled by suing manufactuer. Wou
ld need insurace that would shift cost to patients. Medical care alrady expesnive. Seems better to handle with negligence. Dentist not seeler of needle.
Disssent: D chose instrument. Better position to know who manufactuer is. Better position to make sure bought from someone relabile. Loss spreading used because nobody knows which patient will be harmed. Already pay for insurance to protect against dentist negligence anyway.
