I. Joint Tortfeasors: Cases where more than one party is negligentA. Joint and Several Liability (With Contribution ): Traditional (Democratic)

1. Judgment for entire damage amount ordered against each D a) i.e. each D is potentially liable for the entire damages award

2. Each D should pay a pro rata % a) but P can enforce the entire judgment against a particular D in the case

that other D’s are insolvent3. Contribution: is a separate equitable claim to go after other Ds in the case to

make them pay their share to D who paid P4. BURDEN on D’s: each D takes risk of others’ insolvency

a) D1 is in trouble if forced to pay 100% to P and D2 is insolventB. Several Liability (w/ no contribution): Modern (Republican)

1. No tortfeasor is liable for more than his proportionate share2. Each D will pay his % of the total damages (and nothing more)

a) Must determine the whole damages amount and the percentage of liability that each D has.

3. BURDEN on P: P in touble if one of the D’s cannot pay his %a) If there is an insolvent D, P will not be able to enforce that amount

against the others and so will not get the full damages awardC. California Approach : a compromise of the two

1. Several ONLY if non-economic damage (i.e. pain and suffering)2. Joint and Several Liable if economic damage (i.e. medical costs and lost

wages)i) More important for P to be compensated for what P paid out/lost due

to injury than some immaterial factor like pain and suffering

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II. DEFENSES TO NEGLIGENCE CLAIMS A. OVERVIEW: 4 Defenses to Negligence

1. Contributory Negligence2. Assumption of Risk

i) Express (“Contractual”) v. Implied3. Statue of Limitations 4. Compliance with Statute and Preemption by Statute

B. Contributory negligence and comparative responsibility 1. Contributory/Comparative Fault – D must prove the whole PFC of

negligence against P to argue contributory negligence. When looking at RPP, RPP assumes that others exercise reasonable care as well and so the RPP standard does not require acting under the assumption that others have no duty of care

2. Butterfield Rule (4 states): i) RULE: complete bar to recovery if P is negligent with respect to P’s

own safety and such breach is a cause of P’s harm or P engaged in an illegal activity

ii) “All or nothing” or “traditional” or “complete bar” rule – if P was contributorily negligent at all, P cannot recover

iii) principal: one must use ordinary care in order to sue someone else for breaching their duty

iv) Elements of Contributory Negligence Under Butterfield Rule (1) Duty: P owes a duty to himself(2) Breach: Same as we saw it before, except that P is breaching a

duty to himself (acting negligently)(3) Actual Harm: Not for D to prove; for P to prove in PFC against D(4) Cause-in-fact: D prove P’s negligence is the but for cause of P’s

harm(5) Proximate cause/scope of risk: P’s negligent conduct must have

risked the type of harm that occurred and to the class of people P is in

3. Exceptions to the Butterfield Rule

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i) When D owes duty to protect P from P’s own Fault : If always true that D owes a duty to protect P from own fault, it would erase this whole course (D doesn’t always owe a duty to protect P from his own fault, would erase contributory negligence and A/R at the least). Some situations exist, though, where D does owe such a duty. In these situations, courts would not allow D to use P’s contributory negligence to bar P’s recovery(1) D’s duty is broad enough to protect P from P’s own negligence:

Cannot use contrib. negli as a defense here McNamara v. Honeyman : Mentally ill person hangs self in

state hospital, estate sues for hospital’s negligent supervision. Ct holds hospital has duty to prevent suicidal patients from committing suicide

(2) Still apply? Yes (slight state split on suicide casessee McNamara)

(3) When P owes no duty to himself Christensen : teacher has sex with his student; P says that the

student was contrib. negli.; PP : student has no duty to protect themselves from teachers

(4) Bexiga v. Havir : Mfg has a duty to place safety items on machines because negligence of workers/users of machines is foreseeable Shows this Comes up in product liability cases

(5) Common characteristic: when D’s fault imposes a risk upon P but that P’s fault imposes

no similar risk upon D P’s vulnerability play a part in determining responsibility D knows of P’s disability which prevents/inhibits P’s care for

himself P’s risky conduct endangers himself but not others

ii) “ Rescue” case : one who sees a person in imminent danger caused by the negligence of another CANNOT be charged with contributory negligence unless acting negligently – otherwise comparative fault principle would deter rescue which is socially desirable(1) Negligent D is liable to rescuer for any injury to rescuer(2) Rescuer cannot be contributorily negligent unless acting

negligently(3) Still apply (would comparative negligence defense be barred)?

(exception designed to keep D from avoiding ALL liability) Modified: Barring P if negl ≥ negl of D Pure: Keeps rescue exception (in that D cannot raise complete

affirmative defense of P’s negligence vis-à-vis their own safety), and percentages fall wherever they fall

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Traditional/Butterfield: D could not claim P was contributorily negligent if he was a rescuer even if P was as a rescuer

iii) If negligence of P leaves him in a helpless position and D, who had the last clear chance to avoid injury negligently inflicted it anyway.(1) Last Clear Chance or Discovered Peril : If the D discovered or

should have discovered the P’s peril, and could reasonably have avoided it, the P’s earlier negligence would neither bar nor reduce the P’s recovery.

(2) Discovered peril doctrine : ONLY if D actually discovered the P’s peril. requires ACTUAL discovery and does not allow for

constructive/should have known discovery(3) P could not have invoked these doctrines unless P was helpless

(someone stranded on train tracks, e.g.), (4) No longer used dead

iv) D acted intentional or reckless : Contributory negligence was no defense to willful, wanton or reckless torts, thus the P charged with contributory negligence was allowed full recovery against a reckless or wanton D (D cannot claim P’s own negligence caused the intentional tort)(1) Still apply? State Split:

Some allow comparison (such as R.3d’s “Comparative responsibility” – everything can be compared in a pure form, and percentages fall is where damages lie)

Others say comparable negligence cannot be a defense if D acted intentionally or recklessly PH is here

v) P’s Illegal Activity : If P was engaged in an illegal activity at the time P injured, P cannot recover(1) Still apply? State split:

Most states have moved away from barring a claim entirely when P engaged in illegal conduct NY Barker Rule : When the plaintiff’s injury is a direct

result of his knowing and intentional participation in a criminal act he cannot seek compensation for the loss if the criminal act is judged to be so serious an offense as to warrant denial of recovery (only bars recovery when criminal act is sufficiently bad enough)

Some states pass legislation indicating specific illegal acts barring recover (i.e. burglary – burglar cannot sue homeowner for negligence after tripping over something in home while burglarizing) (CA follows this)

Some say P’s illegal activity a complete barvi) P’s Negligence as a Superseding Cause of His Own Harm

(1) Issue : Can D argue P was a superseding cause in his own harm? P must first allege and prove PFC

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D then points not only to contributory negligence, but also to P’s own negligence being a superseding intervening cause (attack on PFC). Argument is that if P’s negligence was not reasonably foreseeable given D’s negligence, P’s actions were a superseding cause

Exxon v. Sofec: Admiralty case – Exxon tanker broke away from moorings owned by D. SC uses above analysis to find ship operator’s negligence in failing to get a fix on his position after getting control of the ship, causing the ship to run aground, was a superseding cause of P’s injury, freeing D of all liability.

(2) State splits Butterfield States: Don’t need this at all because of complete

bar on negligent plaintiffs Modified Comparative States: P’s negligence as superseding

cause never allowed; rejected on grounds that superseding cause deals only with three actors, not two (P, D, and 3d party) (all R.2d examples have three parties). These states say P cannot be superseding cause of his own injury because there is no 3d party involved

Pure Comparative States: Allowed in all but one state because pure comparison would allow P to recover 1% where P was 99% at fault and D was 1% at fault. Courts do not want this to happen – when P is overwhelmingly at fault, P’s negligence is deemed unforeseeable to D and the court will bar P’s claim completely

(3) Burden of Proof : When D is using contributory/comparative negligence, D must prove entire PFC against P (P owed duty of care to himself, breached that duty, was a cause in fact, and was a proximate cause of harm)

vii)Negligent Medical Care: Ps who negligently injure themselves are entitled to non-negligent medical care, and P’s negligence in obtaining injury cannot be used to set off Dr.’s negligent care (mainstream rule, based on policy)(1) Mercer v. Vanderbilt University: Jury found hospital negligent but

also found victim 30% negligent; ct says victim’s getting drunk and getting in an accident could not be a defense to hospital’s negligence

viii) Avoidable Consequences/Minimizing Damages Rule: When P receives medical advice with regards to an injury, P required to minimize damages by reasonable efforts and expenses (i.e., seeking necessary medical care)(1) Causation rationale : A doctor treating P negligently didn’t cause P

not to follow his instructions, thus causal chain is broken; P cannot argue thin skull rule by saying, “I’m someone who doesn’t follow medical instructions, so you take me as you find me”

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ix) Manufacturer Liability for P’s Negligence (Bexiga v. Havir Manufacturing): Manufacturer has duty to place safety items on the machine because negligence of workers is foreseeable; manufacturer should not be able to use P’s negligence as a superseding cause to bar recovery when they fail to make safe equipment (NB: wouldn’t be an issue in Butterfield or modified states; see above

4. Mitigation of damage s: Defendant is not liable for harm caused by plaintiff’s failure to mitigate her damages via reasonable effort and expense. (Is a subset of the thin skull rule.)

i) Not actually a form of contributory negligence because the non-mitigated harm was not foreseeable, so defendant has not negligently caused it.

ii) Most common example is failure to follow doctor’s orders so injury gets worse.

iii) “Reasonable expense”: court rarely accepts plaintiff’s failure to see a doctor because s/he couldn’t afford it as reasonable.

5. Full recovery of damages even when P contributed a) Before contributory negligence statutes, any negligence barred all

recovery (Butterfield rule). Some judges thought this was too harsh and would let plaintiff recover all damages (despite P being partly at fault) for public policy reasons. 

b) Most common in non-reciprocated risk situations where D knew of P’s vulnerability (aka plaintiff was abnormally dependent on defendant for care).(1) Examples: suicide at a mental health facility, patient injures herself

while being treated at a hospital, products liability such as product lacking safety valve, child working with dangerous machinery.

C. Comparative Negligence1. Butterfield JX: (four states), P is barred from all recovery. If P is contrib.

negli (i.e. a complete affirmative defense.)  2. Modified Comparative Fault : Wisconsin Rule (Majority – 34 states): If

D’s fault is greater than that of P, P will recover the % of total damages that is attributable to D’s fault. But if P’s negligence is greater than or equal to the negligence of D, P recovers nothing

3. Pure Comparative Fault : New York Rule (Minority – 12 states, incl CA): Even if P is contributorily negligent, P will recover the % of total damages that is attributable to D’s fault.

i) In CA, past/future lost wages and medical expenses are jointly and severally liable damages and pain and suffering are several only keep??

ii) Ex: P=10% negl, D1=5%, D2=20%, D3=20%, D4=45%. Some states group all Ds together and all are liable. Other states (almost all politically conservative states) will allow D1 to drop out because he was less negligent than P

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4. Comparative Allocation Systems – (these labels are essentially three labels for the same thing and just have increasing levels of generality in what can be compared)

i) Comparative Negligence : Original form. Literally compares negligence only and that’s all. Met if D claims negli of P then compar negli situation.

ii) Comparative Fault : Allow comparison between negligence, recklessness, and intentional torts.

iii) Comparative Responsibility : (R.3d approach) - Could even compare strict liability as well as intentional, reckless, and negligent torts (strict liability is not a species of fault). (1) Looks at how wrong the conduct was AND compares causal

relationship.(2) R.3d Factors for assigning % of responsibility to each person

whose legal responsibility has been established: Nature of person’s risk-creating conduct, including any

awareness or indifference with respect to the risks created by the conduct and any intent with respect to the harm created by conduct; and

Strength of causal connection between the person’s risk-creating conduct and the harm

b) Crownover: Factors for determining percentages: Inadvertence vs. awareness of danger Severity of risk created and who risk endangered Motivation behind the conduct Capacities of the actors Extenuating circumstances

D. Assumption of the risk : (most common in workplace injury or sports cases)1. Express Assumption of Risk: “Contractual”, bars claim entirely

i) General Rule : Oral or written waiver of liability/contract is a complete defense/bar to recovery as long as waiver of liability is valid (presumption of validity)(1) Boyle v. Revici : P agreed to nonstandard experimental cancer

treatment w/ Express A/R. She died and sought negli against Dr. Ct for D cuz A/R is a complete bar on recovery

ii) Exceptions : May be unenforceable for public policy reasons primarily goes to general enforceability of the contract(1) Essential service : against PP to force a member of the public to

waive liability for an essential service Tunkl v. Regents of Univ of CA : D admitted to hospital only

if signed Express A/R; said this was against PP essential service

Unequal bargaining power? Forced? Non-voluntary/Compelled Waiver

(2) K not valid

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iii) Scope of the Release: If the release of liability/contract is valid, look at its scope – does the release cover the act that caused P’s harm? Does the contract cover what happened? (Jury Q)(1) If ambiguities are found, they are enforced against the drafter

(usually the negligent D)(2) Moore v. Hartley Motors : P signed a release absolving ATV

class from liability resulting from injury. Ct held release did not discuss or mention liability for general negligence in course maintenance, only to unavoidable and inherent risks of riding ATVs (cts cautious to find waivers of liability valid when they are at all ambiguous)

iv) Process: K Enforceable? K unconscionable? Scope of release?2. Implied Assumption of Risk: Form of implied consent that looks at the entire

factual situation to determine whether it can be inferred that P assumed risk of injury (negligence version of consent). Usually between 2 participants, when P gets injured b/c other party violates a rule. 3 Approaches.i) Traditional/ Butterfield JX: (bars claim entirely in Butterfield jdxs and in 8

other states). a) Focus is on P’s Subj Acceptance of Risk Bars Claimb) 3 Require:

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(1) P has knowledge of risk of danger;(2) P appreciated the risk; AND(3) P voluntarily exposed himself to that risk

(whether you’re compelled to do it or not, if you have alternatives)

(4) Diff than Contrib Negli cuz more subj (knew of risks)ii) Modern Implied A/R EITHER; Majority Rule (including CA)

(1) Primary IA/R : bars claim entirely because D either owed P no duty or D breached no duty when there is a complete bar b/c either P impliedly freed D of a

duty owed or impliedly b/c of P’s knowledge, D didn’t breach a duty of care – failure of PFC

(2) Secondary IA/R : treated as contributory negli; essentially the comparative negli/fault analysis where the D does owe a duty of care to P, but P proceeds to

encounter a known risk imposed by the D’s breach of duty – the doctrine is merged into the comparative fault system

Implied A/R and contributory negligence used interchangeably; not a complete bar, but will set off P’s recovery (affirmative defense).

no distinction between contributory negligence and A/R when raised as a defense to an established breach of duty

Betts v. Crawford : Housekeeper fell on kids toys left on steps; Sued homeowners for negli duty of care; P wins using secondary IA/R

iii) Restatement Approach : Eliminate Implied A/R as a separate defense altogether cuz it’s redundant. a) Defense is either no duty/no breach (no PFC) or P’s contributory

negligenceb) PH : agrees with Restatement Approach We don’t need A/R at all

and it should be eliminated as a defense 3. Sports Participant Cases: P assumes the risks inherent to the sport but no

others (if P makes an informed estimate of the risks involved in an activity and willingly undertakes them, there can be no liability if he is injured as a result of those risks). Two approaches:

i) Allow D to argue P assumed the risk (1) If D did not increase inherent Risk then ‘primary’: no duty or

no breachii) Allow tort suit ONLY if D acts recklessly or worse (not a negligence

claim)(1) More efficient for policy reasons; draws a brightline rule(2) Burden of proof on P(3) Gets rid of A/R, which is a defense to a negligence claim

iii) Limited Duty not to increase “inherent risks” of the sportsiv) Avila : baseball player hit in head w/ intentional “beanball”

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v) Turcotte : Jockey gets illegally knocked off of horse and is paralyzed in race; D defends on IA/R; Claim barred via primary AI/R

vi) Sunday v. Stratton : Skier injured when hit bush covered w/ snow; sued ski co. cuz breached duty to skiers by not maintaining slopes; D’s defense that bush is inherent risk in sport denied by court

4. If there’s a rule against such behavior then it must happen often enough so that it is likely an inherent risk

E. Defenses not on the Merits 1. Statutes of Limitation : bars valid “stale” claims not timely brought (2 yrs for

CA)i) 2 Approaches for when does accrue/clock start/become operative?

(1) Traditional Rule : A cause of action accrues as soon as the right to institute an action arises (date of D’s act), regardless of P’s knowledge AKA Occurrence or time of Injury Rule Shearin v. Lloyd : Dr leaves sponge in P’s abdomen

(2) Discovery Rule : (MAJORITY): Claim accrues when a RPP would know or should have known of (1) injury (general nature) (2) D’s role in causing injury Not subjective (“when did P know?”) but objective (“when

would a RPP have known of both the injury and its cause?) Schiele v. Hobart : toxic tort case, meat wrapper developed

serious lung problems from fumes. ii) Continuous Treatment Rule : in ongoing medical care cases, COA

doesn’t accrue until doctor finishes treatment. This is favorable to Ps because it extends SOL, as well as favorable to doctors because it allows them time to fix the problem so they don’t get sued

iii) When tolled ? Some say when complaint is filed, some say when D is served

iv) Policy Behind : systemic interest save money and time on these old cases; gives D peace of mind that he won’t be sued

v) D may be estopped from asserting SOL defense if D conceals/obstructs P’s filing of an action

2. D’s compliance with statute : Where D is in compliance w/ a statutei) Relevant/evidence of due care but NOT determinable; (Treated

exactly like custom evidence)(1) Defense but NOT not a complete defense

ii) Statute and ordinances usually just set floor of due care, but are not, on their own terms, standards of care

iii) Evidence of custom/recognizable risk can be brought to show compliance was not enough

3. Preemption by Statute : When federal law (regulation, statute or ordinance) “preempts” the field (including state law), so that any state regulation of the same field is ineffective.

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i) The effect is to displace tort/common law completely and leave the P without a remedy when D has complied with federal regulations.(1) No state cuz must go to fed. No fed cause of action cus of fed reg.(2) Good for corporations b/c immunize them against state tort law

claims(3) (Ex. consumer products subject to much federal regulation)

III. LIMITING OR EXPANDING THE DUTY OF CARE A. Carriers and host-drivers

1. Traditional Rule : If D was a common carrier (traditionally a carrier open to the public for transportation/those in the business of carrying passengers and goods who hold themselves out for hire by the public), D owes passengers a higher duty of care (almost strict liability)

i) ONLY can be used by passengers of the carrierii) Private car is never a common carrieriii) Some have abolished this rule and instead apply RPP standard to all

2. Distinctions i) Paying vs. Nonpaying Customer (Ps): Paying customer is the only one

owed a higher duty; nonpaying customers owed RPP dutyii) Common Carrier vs. Non Common Carriers (Ds): If giving friend a

ride, not a common carrieriii) Therefore, carriers and host-drivers distinguish between Ps and D’s.

Possible equal protection issuesB. Guest Statutes : Removed the duty of reasonable care for those who gave people

rides if driver did not accept money/food/consideration from rider1. If good, ONLY duty owed to passenger is NOT to act willfully or wantonly2. Policy Behind: move people west; remove legal disincentives to give people

rides?; C. Landowners Duty: when P is injured on D’s land and P claims injury due to D’s

negli1. Require?:

i) D must be the landowner or land occupier(1) Ex. of Land occupier = renter

ii) Injured on the land (usually by a CONDITION on the land)(1) Duty of RPP (2) (some jdx apply this rule to activities on the land as well)

iii) P is an entrant onto the land. 3 Types (diff duty of LO depending on type of entrant):(1) Invitee : Any person on the premises (1) at least in part for the

pecuniary (monetary) benefit of the landowner (“business invitee”) or (2) who is on premises held open to the general public (“public invitee”)

(2) Licensee : Everybody who is not a trespasser or invitee; someone who is on land w/ permission (not trespasser) but not business or public invitee (common ex. = social guest)

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Lower duty: duty not to willfully or wantonly (or recklessly) harm; no negli allowed must have int tort claim Lower duty cuz not being paid like Invitee

(3) Trespasser : Someone on land without permission Same lower duty as Licensee Slightly different than intentional tort trespasser; R.3d uses

“flagrant trespasser”2. Duties owed by landowner to entrants on land injured by conditions on land

i) Traditional CL : (minority of states apply to activities) (MAJOR APPROACH 1 – 50% of states)(1) MAJORITY 25 states distinguish between Invitee (RPP in

SSC), Licensee & Trespasser (only duty not to act willfully or wantonly

(2) Invitee owed RPP/SSC standard(3) Licensees and trespassers are lumped together and owed a

lesser duty not to willfully or wantonly harm (some: recklessly). Willful, wanton, [reckless] conduct must meet dual knowledge rule Dual Knowledge Rule : If landowner knows (1) of entrant’s

presence, and (2) of the hidden hazardous condition on the land, then EITHER an RPP duty is created OR LO acts “willfully or wantonly” if LO fails to warn the entrant of the hazard An exception to lesser SOC, applies in those jdx where

treat entrants differently; RO so apply to modified too? Landowner breaches duty if he does nothing; if he does

something, issue becomes whether he did enough Obvious conditions (planks missing on bridge) are NOT

hidden Knowledge: depends on facts

(4) Activities vs. Conditions: Gladon v. Transit Authority : P bought train ticket (he’s an

invitee), got jumped and ends up becomes trespasser (ends up on the tracks even though not there voluntarily). Most states would not have found for train co because they were engaging in an activity on the land and most states don’t go into categories at all unless injury pertains to condition on the land. Good defense argument on exams when not given a JX RO, look to redo PH: case shows trespasser in this instance does not have to

be volun.ii) Modified : Treat invitees & licensees the same (RPP in SSC) but

trespassers w/ a lesser standard of care; (same as traditional except licensees are grouped with invitees); 13 states use this

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iii) Abolished Categories : RPP Duty Owed to All (CA Approach); No classification scheme used; 12 states use this

iv) Special Child Trespass Rule/Attractive Nuisance Doctrine : Duty exists when(1) It is foreseeable that a child would trespass due to an attractive

nuisance(2) LO knows or has reason to know of the dangerous/attractive

condition on the land(3) Child’s age precludes him from protecting himself against the

dangerous condition(4) The possessor fails to exercise reasonable care to eliminate the

danger or otherwise protect the children(5)

****burden on Landlord to show that made reasonable effort to avoid the harm (based on the Carroll Towing analysis of breach and alternative conduct)

The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

v) Rationale: (just like child SOC, but for when child is a P) children entitled to a greater level of protection than adults because they may not, due to their tender years, understand the risk of the condition and their curiosity may draw them in; let children be children

vi) Common examples of foreseeable hazards to child: pool Bennet: old cars on land; old fashioned refrigerators(1) May be guilty here even if don’t know child are trespassing on

landvii)Bennett v. Stanley : Neighbors let pool go and now looks like a pond;

neighboring 5 y/o falls in pool and drowns; mother trying to rescue baby drowns in pool as well

viii) No special rules for child trespassers under RPP Duty Owed to All (approach 3 above) because taken into account when SOC to apply is established

ix) Parental Liability: Hard to sue parents for negligent supervision for negligent acts of children unless there have been problems before. May be contributory negligence issue, and could argue child was negligent if they fall below child standard, but this is hard to meet (but some states say children cannot be negligent under a certain age)

3. Open and Obvious Hazards : i) Rule: A LO does not have a duty to warn people of open and obvious

dangers because they provide their own warning (majority??); i.e. no breach of duty and entrant has no claim

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(1) Minority: a claim will not be automatically barred b/c the hazard is open and obvious, IF D could/should have foreseen person will not perceive hazard (and also imp. if D could have done anything to make a difference) i.e. D still has a duty and can be held liable for negligence Ex. obvious hole in department store floor; person not likely to

perceive hazard youth, old, mentally challengedii) Rationales

(1) Butterfield/ I A/R: would have barred claim anyway(2) D’s breach – if harm is so obvious that it would be unforeseeable

that P would allow himself to be harmed, then D either had no duty or breached no duty

iii) How applied?(1) Some States: apply Open and Obvious rule to bar claims for failure

of PFC(2) Other states: Too simplistic to say no duty/no breach. Some courts

may look to foreseeability of whether a P may have nevertheless fallen into an open or obvious hazard (falling into a hole in a department store, e.g.). Therefore, courts will not bar a claim completely because there is no duty/no breach, but allow D to instead defend with contributory negligence

iv) O’Sullivan v. Shaw : P jumps into shallow end of pool and hurts himself; ruled as an open and obvious hazard; for D

4. Firefighters’ Rule (Majority) expanded to all professional rescuersi) Rule: If professional rescuer (firefighter, police, etc) is injured by the

very harm that brought them onto the land, he cannot recover for negligence. But allowed to recover for negligent conditions unrelated to their purpose on the land(1) Minority Rule: professional rescuers owed the same duty of care

as others when on those parts of the land that are open to others, may be allowed to recover when violation of fire/safety statute/ordinance Minority: only apply to firefighters

ii) Professional vs. Civilian Rescuers: Sort of an exception from rescue doctrine, but distinction is between professional and civilian rescuers – civilian rescuer still owed RPP duty, and under rescue doctrine can recover from D whose negligence prompts the rescue resulting in injuries

iii) Rationales/PP: disincentive to call for help, professional rescuers assume certain degree of risk, compensated through workers’ comp., rescuers seen as licensees and therefore lesser duty (only no willful acts); would mean mult penalties to taxpayers (pay taxes and be sued)

5. Recreational Use Statute : to encourage land owners to open up land for free; cannot sue LO for negligence if don’t charge them; is liable for charged them to be on land like guess statutes

D. Governmental immunity (Entities & Officers)

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1. Generally presumed immune unless: i) Takings, under due process clauses of 5th and 14th Amendmentii) Municipal immunity – municipalities are not sovereigns but

corporations chartered by the sovereign – liable for takings, nuisances, torts committed in the course of proprietary activities

2. Govt retention of Immunity = 2 big areas/situationi) FTCA Itself : “Discretionary function” immunity

(1) Makes it very diff to win suit v. US govtb) Feres Doctrine : bars claims incident to service

(1) Govt retains complete immunity to injuries caused by combat activities

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3. FTCA : Federal Tort Claims Act qualifies Fed Immunityi) Historically, US had total sovereign immunity – “The king can do no

wrong”ii) FTCA passed by Congress after WWII, waiving sovereign immunity

incompletely and with several restrictions(1) for most intentional torts, dignitary/economic torts

iii) State tort law applied law of the state where the injury occurs(1) No federal tort law

iv) Major Conditions (P vs. US)(1) No suits vs. individual employees suit is vs. U.S. govt. itself

Cannot sue gov’t employee if it occurred within the scope of their duties Gov’t not vicariously liable in the way private employers

are(2) Must sue in Federal Court(3) Bench trial (no jury)(4) Must give notice to govt agency involved before suit,

Suit then not permitted until >6 months after the agency has refused payment or delayed decision

(5) No punitive damages(6) Only negligence claims – no intentional (or SL), with some

exceptions (“assault and battery exception”) Exceptions: Gov’t officer commits battery off duty facilitated

by employer (shoots someone with agency gun) and law enforcement batteries, assaults and FIs

v) P vs. State/Municipality: around 1950’s/60’s, states adopt State Tort Claim Acts patterned after FTCA

vi) §1983 of Civil Rights Act: Gave P right to sue state officials in federal court under federal law for violations of Constitutional rights. Passed after the Civil War to protect newly-freed slaves, but now used for all kinds of claims(1) Bivens Claim - §1983 equivalent for suing federal officers (rare)(2) Cannot sue employee personally ; only the government itself

vii)Exceptions to waiver of sovereign immunity(1) Feres Doctrine : military personnel cannot sue the US gov’t or

officials of the gov’t if the injury was incident to service (includes just about everything). Feres does not, however, bar a recovery by a spouse or child of a person in the armed forces if the spouse or child is directly injured (common with medical malpractice in military hospitals) Every case gets litigated over whether injury was incident to

service (interpreted broadly) Already a bar to suit for claims while at war (combat

exception) Can sue if not incident to service (i.e., on furlough) only involves those individuals in US military.

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(2) Rationales A/R (similar to Fireman’s Rule) Military is its own world Suits for military service would undermine military discipline –

civilian judiciary would dictate how military should be run) Feres Rationales: (1) no private-law analogue. (2) The FTCA

invokes the tort law of the state where the injury occurred. This would subject the unique government-to-soldier relationship to the varied laws of the states. (3) The armed forces provide substantial compensation in the form of pensions or otherwise (4) undermine military discipline (5) judicial branch has no right to tell executive branch what to do

b) Discretionary Function Immunity : (AKA “Basic Policy” Immunity) if the negligent act alleged is an act of discretion (a policy judgment), then it is barred 2680(a) of FTCA

The FTCA does not waive sovereign immunity for “any claim based upon the exercise or performance or failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the government, whether or not the discretion involved be abused”

Generally: In a suit for negligence against the US gov’t (or agent thereof), if the act or omission that caused the harm was one in which the agent had discretion (interpreted as involving policy judgment), the claim is dismissed for want of jurisdiction

Related to SOP – if an agent was engaged in a policy-making decision, judicial branch should not tell that agent how to make policy

Gov’t does not have discretion to violate a mandatory statute or regulation – these suits are allowed b/c does not run afoul of SOP

Some courts say you can sue US gov’t for not implementing a plan but not for making the plan. Gov’t is immune for negligence made at the planning level, but not on the operation level (BUT Sup Ct says this is too simplistic, indicating the question is whether the government is exercising discretion based on public policy, not the level of that policy) Ex. Park bench in Fed park poorly maintained. P sues

claiming negligence. US can defend by saying it was a discretionary decision not to spend money on that; however, if there was a plan to maintain the benches and the government failed to do so, then the claim would be valid

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BUT Government doesn’t have discretion to violate a mandatory statute/regulation: if P is claim operational issue with respect to legislation Congress has already spoken on, then government no longer has discretion not to follow it but must follow it

Whisnant v. US : illustrates that court must decide whether the challenged action was discretionary (i.e. was it “governed by a mandatory statute, policy or reg?”)

If it was discretionary, did the action involve a decision susceptible to social, econ or political policy analysis Design (discretionary)fits above v. Implementation (not

discretionary) No definition of what is a design or implementation so it is

a case by case basisIV. Duty based on relationships or their absence

A. Nonfeasance : not acting 1. Rule: there is no duty to act affirmatively. BUT if you DO act, you probably

do owe a duty.i) So No duty to rescue or assist someone; No duty to protect someone

from a third personii) Cannot sue someone on the theory that they did not act at all

(1) (policy: P in a better position to prevent the harm)(2) Yania v. Bigan : P invited to discuss business. D taunted P to jump

into the water. P then jumped into water and dies. D did not help him and let him die. D’s estate brought negli claim. Court ruled that D had no duty to rescue P, only a moral duty.

(3) Rocha : D and P are drunk. D taunts P to swim. P then drowns. D and others try to save P but fail. Basic nonfeasance rule- D owed no duty. Would not expect P to act negli, as full adult w/ no handicap and knows he cannot swim.

iii) Exception: Can sue somebody for failing to act if they had a duty to act, but then you have to look for a duty

iv) PP : difficult to drawn line, fear for liability might actually reduce altruistic responses, protects autonomy and freedom to do nothing

Do not argue this unless absolutely sure. Usually misfeasance(2) Impossible to win case against police w/ claim “didn’t do anything

to protect me” no duty here2. D is subject to liability for misfeasance (ACTING BADLY) NOT for

nonfeasance (NOT ACTING)i) Misfeasance or malfeasance: acting badlyii) Look at the totality of the action to see if D is acting badly or just not

actingiii) Knowing of the need to rescue and knowing that the failure to rescue

could cause further injury is not sufficient to hold that person liable3. Exceptions to General Nonfeasance Rule

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i) Caused Harm : If a person knows or has reason to know that his conduct, whether tortious (negligent or intentional) or innocent, has caused harm to another person, then he has a duty to render assistance to prevent further harm (classic example: hit and run)

ii) Created Risk of Harm : If a person has created an unreasonable risk of harm, even innocently, a duty of reasonable care arises to employ reasonable care to prevent the harm from occurring (1) (arguably not an exception because if you’ve created a risk you’ve

acted in some way)iii) Statute or Ordinance create a duty Follow themiv) Beginning to Assist/ “Take Charge”/ “Voluntary undertaking”: if D

affirmatively acts to assist someone, then have a duty to assist them in a reasonable way and not leave them in a worse position than when D found them/offered assistance

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(1) 2 aspects: Take charge of someone’s care AND Breach – occurs if the caretaker leaves the person in a worse

position than they were before they took charge of their care(2) Good Samaritan statutes: immunize the rescuer from negligence

liability for injuring someone while attempting to rescue, but generally apply to medical personnel

(3) Wakulich : guys prompted girl to drink and she passed out; D’s took her to room in basement and did not call 911 she died of alcohol poisoning; D’s actually made P worse off by hiding her

v) P and D are in a “Special Relationship”: If D knew or should have known of the other person’s peril, he is required to render reasonable care under all the circumstances. (1) D will have a duty of reasonable care whether or not the D had

anything to do with creating/increasing the risk of the harm to P(2) Fairly narrowly interpreted(3) Hinges on facts of control over 3rd party behavior and knowledge

as to that behavior Landlord has a duty to 3rd persons to do all that he legally can

to get rid of dangerous condition on the leased premises, even if it means getting rid of the tenant

Custodial – control/foreseeabilityvi) Special Rela. Classifications:

(1) Carrier-passenger(2) Innkeeper-guest(3) Landowner-lawful entrant(4) Employer-employee(5) School-student(6) Landlord-tenant(7) Custodian-person in custody(8) Others

Contractual Statutory Duty Superior Knowledge From International law Joint Venture construction/maintenance/operation of towers to families when

foreseeable risk of plane crash(9) List is not exhaustive – court can infer an ad hoc relationship

E.g. – Wal-Mart to customer, Shopping Center to customer, Sept 11 security failure at airports, negligent

vii)NB: In all of these exceptions, P must prove a full PFC: [Duty to Act + breach of duty ---causes---> Harm](1) Causation is actual and proximate(2) ii. Harm caused in beginning to assist is the aggravation of the

harm (not the original harm)

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Causation is actual and proximate Harm caused in beginning to assist is the aggravation of the

harm (not the original harm)viii) Duty not to prevent others from assisting

(1) Podias v. Mairs : D hits guy on motorcycle and leaves. 2 passengers kind of convince him/conspire not to help. Both passengers and driver held liable.

4. Burden of proofi) When the rule states “there is a duty” – burden is on D to show there

was no dutyii) When the rule states “there is NO duty” – burden is on P to show there

is a duty5. Analysis for test

i) Duty to rescue or assistii) Breach of Duty negli act = not assisting or not rescuingiii) Actual harm – harm resulting from failure to rescueiv) Cause-in-fact: but for the breach (failure to rescue) the harm would

not have occurredv) Prox cause: foreseeable type of harm/p/class of persons

B. Duty to Protect From 3d Persons: usually NO DUTY Except when 3d Party Attack Exception1. Traditional Rule : if 3d party act was intentional, cuts off D’s liability

(compare to prox cause – criminal intervening acts)2. General Rule : No duty to protect from 3d persons; P has burden to prove duty

existsi) Despite proximate cause’s approach of looking for reasonable

foreseeability of the intervening act, general rule for duty is that the issue is never reached because duty doesn’t exist (parallels nonfeasance)

ii) P generally does not have to prove they’re owed a duty (Andrews); in these cases, P does have to prove a duty exists (Andrews would agree)

3. 3d Party Attack Exception : 3d Party Attack Foreseeable, AND either (1) special relationship between P and D, OR (2) special relationship between D and 3rd Party (attacker)

i) 4 Approaches for Finding Foreseeability for 3d party attack(1) Totality of the Circumstances Test : (Majority) looks at

everything Prior similar incidents are relevant (number, nature and

location of prior similar incidents) Also looks at the nature of the land, level of crime in the area,

etc. BUT lack of prior incidents will not preclude claim IF

landowner knew or should have known that the criminal act was foreseeable

Places a greater duty on business owners for foresee risk on their property

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(2) Prior Similar Incidents Test : (Minority) foreseeability is established by evidence of prior crimes on or near premises putting LO on notice.

RPP would foresee b/c similar things have happened in the past

Cons: Too arbitrary/unpredictable to be uniformly applied; criticized as vague and uncertain

(3) Balancing Test : (Minority) Foreseeability and gravity of harm balanced against commensurate burden imposed on the business Essentially Carroll Towing but analyzed under duty, not

breach(4) Specific Harm Rule : (no longer used) – LO does not owe a duty

to protect patrons from violent acts of 3d parties unless he is aware of specific, imminent harm (very much like duty to rescue; beyond foreseeability and

requires actual knowledge). As a policy matter, way too restrictive

ii) Foreseeability is necessary because P will generally have no actual knowledge of harm in 3d person cases

iii) Rosales v. Stewart: LL (D) allegedly negligent for not preventing tenant from firing gun in backyard resulting in death of a 10yo. LL knew tenant shot guns (foreseeable) and D LL had the ability to prevent the risk (special relationship between D and 3d party (tenant)

iv) Posecai v. Wal-Mart: Woman gets mugged in parking lot of a Sam’s Club adjacent to a high crime area and sues for failure to hire security guard. Court found special relationship alone not enough and proceeded to look for foreseeability, laying out the rules above

4. Other Exceptions: i) D voluntarily assumed a duty (analog to takes charge exception)ii) D created risk of harm: if D has affirmatively acted to create a risk of

harm from 3d persons, then duty flows to P (not really an exception since there has been affirmative action)

5. Employer/Employee : P who has been injured by the tort of an EE can sue ER for (1) vicarious liability (tort committed within scope of employment) or (2) negligent hiring, training, supervision

6. Parental Liability for Their Children: unlikely only if SUPER foreseeablei) Rule: NO Duty to control children (not vicariously liable) BUT can be

liable for failure to control some specific behavior parent knows or should know child has a propensity to do

ii) Exceptions: (1) Parents are only liable for failure to control some specific

behavior parent knows or should know child would do (“super foreseeability”)

(2) Parent’s activity creates the risk of harm – this is no longer a failure to supervise situation but a pure negligence claim

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(3) A minority of jdxs allow for vicarious liability when a child acts intentionally, willfully, or wantonly, but damages cap is low

7. Duty to Warn 3d Persons i) Tarasoff ct adopts a balancing test to determine whether duty existed.

Factors to balance: (1) Foreseeability to P (most imp. factor for finding a duty); (2) Degree of certainty that P will suffer injury; (3) Closeness of connection between D’s conduct and injury suffered; (4) Moral blame attached to D’s conduct; (5) Policy of preventing future harm; (6) Extent of burden on D and consequences to the community of

imposing a duty to exercise care with resulting liability for breach; and

(7) Availability, cost and prevalence of insurance for risk involve Crt less inclined to impose duty if no insurance is offered Insurance spreads the risk around/ makes less burden

ii) Commonly limited to Therapist/patient relationship: focus on therapist’s ability to control/prevent the harm to P, rather than control over D(1) Cuz Dr.’s trained to read actual threat/foreseeability and implied

control is present(2) Ex. Tarasoff: D told Psychologist he was going to kill P. He

did kill P. Held that Pschol. had a duty to warn P.iii) Kline : apartment complex had doorman then got rid of him; P got hurt

and won Shows be careful w/ too much security at first cuz might not be able to cut back later

iv) Dudley : guy in half-way house had criminal record. He then killed someone while in care of half-way house. Estate sued half-way house. For P cuz of est. special rela. and foreseeability Shows importance of control

8. Negligent Entrustment : liability for giving a dangerous instrumentality (gun, knife, etc.) to someone that you know or should know is apt to use it in a dangerous way.

i) Most Common : giving keys to known drunk personii) Only need to be in control and give instrumentality

9. Alcohol Cases: issue is whether P can sue D for providing alcohol to 3rd party that injured P

i) Similar to negligent entrustment, BUT instead of giving keys to a drunk, giving alcohol to someone you know has keys (could apply to drivers, fights, injuries to self, etc)

ii) Traditional Rule: Full responsibility on the drinker – no duty to provider (provider not the proximate cause /drinker is intervening superseding cause)

iii) Modern Trend: Yes duty, if (1) foreseeable + (2) relationship between D and 3d party, where relationship is provision of alcohol(1) Drunk driving is foreseeable

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Dram Shop Statutes : some states provide criminal penalties to providers of alcohol for various infractions (e.g. selling to minor/known to be intoxicated); provides cause of action for P if D broke a Dram Shop law

(2) Brigance : Restaurant served minors alcohol. Let known driver drive away and passenger was injured. For P. Imposed duty on seller of alcohol selling on premises of reason care. Have a duty to ascertain if person you are serving is drunk

esp. if they are a driver Misfeasance and not nonfeasance cuz increasing the risk

iv) Social Hosts: Most states say social hosts have no liability whatsoever, but some states say duty only where provider is beyond negligent and is at least reckless

V. EMOTIONAL DISTRESS CLAIMS A. Emotional Harm: stand alone nonphysical injury – PURE EMOTIONAL

DISTRESS – protects an interest in mental states & compensate for mental distress intentionally/recklessly caused that doesn’t fit into a tort already protecting it (offensive battery, assault, false imprisonment)

B. Intentional Infliction of Emotional Distress (IIED) 1. Elements :

i) (1) Intent to inflict OR recklessly inflicting severe emotional distress ii) (2) by Extreme and Outrageous conduct (intentional or reckless)iii) (3) that actually causes severe emotional distress (causation link)

(1) NO PHYSICAL INJURY REQUIRED2. Intent Element

i) Unlike other intentional torts, recklessness will suffice for mind state (conscious disregard of a known risk – substantially more than negligence but not quite substantial certainty)

ii) Dual Intent (recklessness): Intent must be both to engage in the conduct and to inflict the emotional distress

3. “Extreme and outrageous” Element: conduct intolerable in civilized society (i.e. conduct that would make a juror rise from his chair and exclaim, “outrageous!”)

i) Common “Patterns” in (Successful) IIED Cases (for outrageous conduct ) : different courts weigh these differently. Some will say that just one is not enough, but others will allow only one (1) Abuse of Power Inequity of power: D’s superior power over P(2) Repeated conduct: frequency and duration of conduct(3) D knows of P’s vulnerability and acts on it

ii) GTE Southwest : Boss was abusive and threatening to employees. Found for IIED

iii) some jdx require D to intend the conduct to be extreme and outrageous; some jdx require one of the above patterns, some require a combo of them, some don’t(1) IIED usually hinges on this factor

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4. Actually Causes Element i) Traditionally: not as concerned with proof of severity of distress (if

outrageous conduct present, then assumed emotional distress was severe).

ii) Modern: increasingly focusing on severity now, however, and often require medical testimony

5. IIED Inflicted on a 3d Party i) Rule: No Transferred Intent UNLESS D intentionally or recklessly

causes severe emotional distress to P And (1) (1) Bystander P must be “present” at the time and place of the

injury, (2) AND (2) P is either (a) a family member of 3rd party OR (b) P is

physically harmed resulting from the emotional distress “Family member”: is a social construct, so uncertain, but idea

is to draw a line on liability Physical injury: (majority) must be physical injury from

emotional distressii) PP (for no Transferred Intent):

(1) No actual touching, so could potentially be unlimited liability. (2) Therefore, those who were actually emotionally hurt wouldn’t be

able to get their fair share of damages because it becomes a race to the courthouse to see who gets jdmnt first.

C. Negligent Infliction of Emotional Distress (NIED) 1. Rules/Jurisdictional Limits (where negligent conduct directed at P)

i) Originally/Historically, no claim for NIED at all(1) Mitchell v. Rochester Ry, Co : w/o physical injury, no claim for

emotional distress; P suffered shock from almost being hit by horse carriage and had miscarriage

ii) Modern NIED : Must first prove negligence PFC (w/ Actual Harm = emotional distress, D’s negligence = actual and proximate cause of P’s emotional distress) PLUS one of the following (jdx split):(1) P suffered an “impact” – no requirement of physical injury, but

does require a touching (5 states); OR produces a literal proximate cause limitation

(2) P had “physical manifestations” of emotional distress: Objective proof of genuineness and severity of emotional distress; OR

(3) P was in “Zone of Danger” Majority : P must fear for their physical safety (subjective) Minority : P must be at risk of physical harm (objective), but

no need for physical injury P has to show that P was in the zone of danger Essentially negligence version of assault

(4) Regular PFC case where P proves “severe” distress by expert testimony (but no other special rules)

(5) No Add-Rules just Negligent Case

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b) States following this approach believe regular elements and proof before a jury can solve the problem and jury determines credibility

2. Bystander NIED : when P claims emotional distress from seeing someone else physically injured by D’s negligence (ED to P resulting from injury to a 3d person)

i) JX split : (Split 50/50 among states)(1) Half of the states follow the following special rules for bystanders, (2) ½ the states have no separate classifications

I.e. fall into the categories above (impact, physical manis, zone of danger)

(NO special rules for bystanders)(3) ½ the states Classify P as a “Direct Victim” OR as a

“Bystander” Direct Victim: classified by above (impact, physical manis,

zone of danger) Bystander classified by special Bystander rules below (Dillon

Elements and LaChusa Factors)ii) Special Rules for Bystanders: Factors that determine foreseeability

that bystander will suffer emotional harm(1) Dillon v. Legg Factors (25% of states):

P and victim must be closely related Left open ended

P was located near the scene of the accident (direct physical proximity) I.e. not far away distance wise

P contemporaneously observed accident I.e. did not learn of accident from others

(2) Thing v. LaChusa Elements (25% of states): P is closely related to the injured victim

Defined as closely related by blood or marriage; relatives residing in the same household, or parents, siblings, children, and grandchildren

P is present at the scene (of the injury producing event at the time it occurs) AND is then aware that it is causing injury to the victim

And as a result P suffers serious emotional distress a reaction beyond that which would be anticipated in a

disinterested witness BUT not an abnormal response to the circumstances (i.e. thin skull rule does not apply here) Called thin skin rule by some

(3) Burgess Exception : If P and D are in a special relationship then can sue under regular negligence (and don’t have to meet special bystander rules) RULE: because of special relationship, patient can sue doctor

for breach of preexisting duty

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Ex. funeral cases; doctor-patient relationship (negligent misdiagnosis or misinformation)

Pretty much just a way to move case from bystander to modern/regular NEID

(4) CA: direct V = normal PFC; bystander = LaChusa(5) Differences in LaChusa from Dillon:

Defined “closely related” and now more exclusive than Dillon Ex. excludes BFF and fiancée

At scene of crime not near Added “serious” then defined serious emotion distress Thing is Pro-D and Dillon was Pro-P

Dillon was very liberal, Thing was very conservative Dillon was vaguer/harder to apply

3. Duties of Care to Protect Emotional Well-being Independent of Physical Risks i) Issue: what if there’s no risk of physical injury to anyone at all? Cts

mostly very cautious and find an excuse not to include itii) John T. Rhines : Mishandling of a dead body. Ct applies zone of

danger rule, which would deny recovery because there’s no fear of a physical injury.

iii) Boyles : Boyles secretly videotapes himself having sex with a girl. Girl sues for emotional distress resulting from the incident. Ct says that in TX, only way she can sue is if she’s in a special relationship, which she’s not

VI. Strict Liability : liability w/o proof of faultA. Underlying Policies for Products Liability

1. Enterprise Liability : cost of doing business. Also, mfg (who are in a better position to cover themselves) can spread costs of liability by passing them to consumers or purchasing insurance (big theory for products liability)

2. Calibresi theory : Consumers ultimately end up choosing safer companies because they have cheaper prices. Mfgs who cause more harm face more liability and therefore must offer higher prices. Consumers then inadvertently buy the safer products when they buy the cheaper products.

3. Consumer expectations : consumers expect products to be safe, and should have a recourse when those expectations are dashed (essentially a warranty theory)

4. Practicality : There are certain defects in products that are clearly caused by fault, but it is very hard to prove. Ps should have another route to proving their case

5. Fairness : Enterprise getting the benefit of the activity, so it is fair to allocate the loss to them and not the consumer, who did nothing but use the product

B. Underlying Policies for Vicarious Liability:1. Deterrence: employers must work harder to prevent accidents2. Employer has control over employee, so as a matter of fairness should take

responsibility cuz EE gets the benefits, should bear the burdens as well

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3. Enterprise liability : liability for harms caused by actions of an employee considered part of doing business (see above)

VII. Vicarious liability A. Respondeat Superior : tort claim against employee w/ a SL claim against

employer (strict employer liability)1. Rule : Employer is strictly liable for the torts of employees committed within

the scope of employmenti) Employer guilty is above is met, even if took crazy precautious steps to

prevent/train employees from committing torts(1) BUT more training equals less accidents and therefore less

insurance/price increases on consumers2. Elements

i) Tortfeasor is an employee (NOT an independent contractor – employer not liable for torts of independent contractors)(1) right to control is big giveaway of a EE rela.

ii) Employee must commit a tort (not just an injury – therefore, there is underlying fault, just not employer’s fault)

iii) Must be within the scope of employment (jury issue)(1) If you’re on the job (at job site, during working hours) – slam

dunk case, even if disobeying employer’s directions(2) Coming and Going Rule : EE is not w/in scope of employment

WHEN going to work or coming home from work (i.e. normal commuting) Exceptions: Where trip/commute provides an “incidental

benefit” to ER [not common to ordinary commutes] Dual Purpose (major exception): During the commute, EE

is doing something for employer. (Ex. Special Errand: on errand for employer on way

home) ER Pays for travel time and transportation expenses : b/c

trying to enlarge circle/pool of employees so willing to pay for travel expense to make job more desirable .:. benefitting employer Westinghouse Electric : Westinghouse EE hit cop on

the way home, but employer liable because paid for travel time and expenses

Special Hazard Exception : Applied to people having to commute long distances, often to a remote job site (home to work site as opposed to home to office, often where dangerous to get to site because of winding roads, etc). (Ex. Construction site)

Require EE to drive to work to use car at work If EE is on-call all the time

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Edgewater Motels : guy got drunk and negli burned down hotel; ER held liable (w/in scope of employment) cuz drinking w/ guy for work, on call 24/7, and doing work in hotel room

(3) Frolic and Detour Rule : Detour is w/in scope; Frolic out of scope Detour: (temporary deviation), ER remains liable (EE is w/in

scope) Frolic: when going off the path for own personal mission

(extended in time or distance or so different from the SM of job duties); ER not liable (EE not w/in scope)

Factors: Time and Space and EE’s mental state(4) Motivating Emotions Test (for sexual battery):

Lisa M : Dr. fingers girl while on the job; crt was reluctant to hold hospitable liable cuz conduct was so unusual/startling that would be unfair to hold hospital liable not predictable risk

3. Even if a respondeat superior claim fails, can still try to get on a plain negligence claim – negligent hiring, training, supervision claims

VIII. Products Liability A. Overview:

1. Covers only D in stream of distribution and only applies when the actual harm is physical injury to a person or to property (i.e. NOT product itself)

i) Anyone in the chain of distr. can be sued under a product liability claim(1) “Chain of distribution” = Mfg Wholesaler Retailer P (2) If retailer sued, has right of indemnity against others higher in the

chain. This makes it easier for Ps

(3) Don’t have to be the person who bought the product to sue – just have to be injured (pre-60s needed privity, so did have to be purchaser)

2. Theories: multiple theories of recovery such that if one fails, can always sue on another (so SL in part only)

i) Breach of Warranty (Traditional); must be in privity w/ manufacturerii) Negligence : PFC case w/ breach/negli conduct being product contains

a defect and actual harm (clearly, personal injury or prop damage is cognizable)

iii) Strict liability : (Modern [incl. CA], easiest path for Ps); sue anyone in the chain of distribution and then given a right to indemnify self by impleading all the way back to the manufacturer

B. SL Elements for Defective Products – (P must prove that defect is an actual and prox cause of P’s harm)1. Legally cognizable harm (physical injury to person or property)

i) NOT damage to product itself 2. Actual Cause: Defect actually caused harm

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3. Prox Cause: Harm was within the scope of risks created by the defective product

4. Defect existed when it left mfg’s controli) substitutes for duty and breach of duty analysis

5. Product is defective (3 Categories manufacture, design, or warning)(1) Defective : when is it unreasonably dangerous when used in an

intended or reasonably foreseeable mannerii) Manufacturing Defect : (production flaw; only has to affect some

products); SL to mnft. defect(1) R.3d Approach : physical departure from the product’s original

design even though all possible care was exercised in preparation and marketing Lee v. Coca-Cola Bottling : P was injured when a coke bottle

exploded in her hand.  (2) “Consumer Expectations” Test - (R.2d 402A ): Dangerous

beyond the expectations of an ordinary consumer w/ ordinary knowledge of the product’s characteristics All P has to show is that a reasonable consumer would not

expect the defect (very pro-P) Very lay-person’s test – did not require expert testimony Used for manufacturing Defect and Design flaw

Ex. on NO: If you cut yourself w/ a knife cuz ordinary consumer would expect the knife to be sharp.

(3) Manufacturing defect (when negligence claim, rely on res ipsa loquitor claim)

(4) For Food: Rd . of Products Liability : (Majority in Jackson): defective if a

reasonable consumer would not expect the food product to contain that ingredient

Foreign Natural Distinction : food is defective IF thing/ingredient in food not natural (foreign) to the food Ex. A chicken bone in a chicken enchilada is not defective,

BUT a chicken bone in a beef enchilada is defective. Rejected view in Jackson but CA’s rule

Jackson v Nestle-Beich : P broke tooth on hard pecan shell. Sued the manufacturer; NO SL cuz reasonable cust may have expected that ingredient

iii) Design Defect : Basic prob in how product is designed affects all products; expensive fix for D(1) R.2d Consumer Expectations (CE) Test : (See above)

Leichtamer v. American Motors : cars roll-bars did not protect jeep when flipped meant to protect on roll over; P’s killed; P won

(2) R.3d Risk-Utility Balancing (RUB) Test : (Majority) prove the benefits/utilities of the challenged design do NOT outweigh the risks of the design

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Essentially Carroll Towing: Risk of product’s design (not conduct) outweighs utility of design

R.3d also require a P using RUB to prove RAD: P must show a Reasonable Alternative Design (RAD):

there was a safer and (technologically and economically) feasible alternative, that would have prevented or significantly reduced the risk of injury, without substantially impairing the product’s utility Helps P if alternatives already exist on the market D has edge in RAD cuz usually manufacturer has

already tested alternative designs Best evidence is expert testimony of a competitor

saying it can and they do actually do it differently(3) State Splits

Some use CE alone (most pro-P test, unless defect obvious) Some use RUB alone (Thought to be fairer and most logical

test overall because it’s so technical) R.3d (some don’t require RAD)

Some states allow P to choose freely between tests, including pleading in the alternative Knitz v. Minster Machine : P can pick between tests

Factors relevant to the evaluation of the defectiveness of the product design are (1) the likelihood that the product design will cause injury, (2) the gravity of the danger posed, and (3) the mechanical and economic feasibility of an improved design”

CA and other states – P chooses between the 2 theories but limits CE drastically (burden of proof on D in RUD and CE not allowed for complex designs Barker v. Lull : shifts burden of proof in RUD to D Soule v. GM : qualifies Barker by limiting CE test to

simple designs; if product complex, cannot rely on CE test iv) Warning/Information Defect (marketing defect); product may be

perfectly fine in the way it was manufactured and designed but may still be defective if comes with inadequate warning or dangers on how to use it(1) RULE : A product becomes defective when product’s foreseeable

risks of harm could have been reduced or avoided by a reasonable warning and the omission of such warning renders the product unreasonably unsafe (Essentially a negligence test) P must Prove : that if a proper warning had been given, P would

not have been hurt. (i.e. that lack of adequate warning caused the injury). Most Courts presume that P would have read and heeded

the warning, shifting the burden of proof to the D to overcome that presumption

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(2) Aspects: Form: location, what it looks like (size, easy to read), etc Content: Must be comprehensible/clear and inform of real risk

(3) 2 types of Warning: activity is dangerous people need not risk the danger posed by such activity to

achieve desired result(4) Defenses

Obvious Dangers : No duty exists to warn of dangers that are obvious or should be obvious

BUT could still be liable if people need not risk the danger posed by such activity to achieve desired result Liriano : guys hand gets in trouble in meat grinder cuz no

warning of hand gaurd Rationale : If you had to warn for everything, then people

become less likely to read any of the warnings If a slight change in design would prevent serious injury, the

designer may not avoid liability by simply warning of the possible injury

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