ECON 3800 Prelim 3 Cases and Terms

Tort (Definition)

A civil wrong in the private sector that requires someone to pay for harm they caused to another person.

• Goal: “Should loss stay with the victim or be shifted to the defendant?”

  • Zero sum game since the wrong has already occurred

Three Theories of Tort Liability

1. Intentional Torts

2. Negligence

3. Strict Liability

Intentional Torts

Encompasses:

1. Battery

2. Assault

3. Offensive Battery

→ All 3 require intent (purpose or substantial certainty) + use objectively reasonable person standard

• Protects personal autonomy, dignity, bodily integrity, etc.

• Liability from intentionally violating someone’s rights (“Did you intend to do the act that caused harmed?”)

Battery

Focus: Trespass to the person

• Protects bodily autonomy + freedom from inappropriate touch

• Required elements:

  • Intent: If one acts with the intent/purpose of producing the consequences, or knowing the consequence is substantially certain to occur

  • Touch: Contact with someone’s person or (reasonable) extension of the person

Assault

Focus: Emotional and dignitary harms

• Protects freedom from emotional harms + insures mental tranquility

• Required elements:

  • Intent

  • Reasonable Imminent Apprehension—victim must believe the act may result in imminent contact unless otherwise prevented by self-defense, flight, or outside intervention

• Notes:

  • Does not require actual contact—unlike battery (ex: Still assault if the defendant punches but plaintiff ducks in time vs. battery & assault = if the defendant successfully punches plaintiff)

  • Sleeping person cannot be assaulted because no apprehension is possible, but battery still occurred (intent + touch)

Offensive Battery

Focus: Emotional and dignitary harms

• Protects emotional and dignitary harms from battery but don’t actually cause physical harm (ex: spitting, unwanted kiss)

• Required elements:

  • Intent

  • Touch

  • Resulting offensive contact/dignitary harm (ex: the spitting or unwanted kiss)

Consent / Implied Consent

• Defense to intentional torts

• “Sometimes touch is a need & the benefits outweigh the costs significantly”

• Forms of consent: Implied, substitute (for minors, individuals with guardians, emergency situations); informed consent/duty to disclose, etc.

For implied consent:

• General Rule: Implied consent exists when treatment is necessary, patient is unconscious, and any reasonable person would have consented

  • Ex: If plaintiff would’ve died in 90 seconds without left ear surgery

Mohr v. Williams

Rule: Scope of consent is strictly construed in the absence of an emergency. A lack of negligence or evil intent on defendant’s part is not a sufficient defense against the civil tort of assault and battery.

• Topic: Implied Consent (Intentional Torts)

• Facts: Defendant, a surgeon, was authorized to operate on Plaintiff’s right ear. Once the patient was unconscious, defendant realized the left ear was in much worse condition and subsequently operated on the ear (successfully, skillfully, and in good faith). However, the plaintiff claimed she only consented to the right ear, while the defendant countered that a reasonable patient would consent: “an ear is an ear.”

• Issue: Did the plaintiff impliedly consent to an operation on her left ear when she consented to one on her right ear?

• Holding: No, affirmed. Technical battery.

• Reasoning: Scope of consent is limited and strictly If an operation is performed without Plaintiff’s consent, and the circumstances were not such as to justify its performance without consent, then the operation is wrongful and thus unlawful.

Insanity (Capacity to form intent)

• General Rule: Mentally ill people are typically held liable for intentional torts if they were capable of forming the relevant intent (i.e. insanity is not a defense against tort liability) (McGuire v. Almy)

  • Reasoning:

    • Between two innocents, the one that caused the harm should pay.

    • **Holding an insane person liable won’t chase their own incentives, but it may create other desirable incentives that lie with the family (Ex: encouraging supervision, further restraint, etc.).

    • Prevent false insanity claims.

• Exceptions:

  • If the victim of the insane person has specifically been hired to confront the danger + the defendant is maximally restrained (Anicet v. Gant)

  • Insanity may be a defense against liability for negligence (not intentional torts) if they are suddenly overcome by a mental disability/incapacity without forewarning that makes them incapable of conforming conduct to standards of a reasonable person (Breunig v. American Family Insurance)

McGuire v. Almy

Rule: If a legally insane person causes intentional damages to a person/thing, they are held liable just as a sane person would.

• Topic: Insanity (Capacity to form intent/intentional torts)

• Facts: Registered nurse hired to care for a mentally ill patient known to have violent episodes. During a violent attack, the patient struck the nurse with a piece of furniture.

• Issue: Is defendant liable for the tort of assault and battery?

• Holding: Yes.

• Reasoning: Courts almost invariably hold an insane person liable for his torts. Where an insane person by his act does intentional damage to the person or property of another he is liable for that damage in the same circumstance in which a normal person would be liable.

Anicet v. Gant

Rule: A violently insane person who injured an attendant in a maximally restrained setting is not liable for intentional torts.

• Topic: Insanity (Capacity to form intent/intentional torts)

• Facts: Violently insane person at a mental institution threw an ashtray at an attendant who worked at the facility—specifically employed to treat patients like him.

• Issue: Is the patient liable for the tort of battery and assault?

• Holding: No, reversed.

• Reasoning: Both rationale for holding an insane person liable for torts don’t apply here:

  • “Two innocents” is not applicable, as the attendant was not an innocent person, but rather, was equipped to handle people like the patient.

  • “Encouraging restriction" (i.e. economic incentives that lie with other parties) also does not apply, as the defendant was already in a maximally restrained setting (mental institution) → holding patient liable will not create any new incentives that would prevent future assault/battery.

Self-Defense/Reasonable Mistake

• General Rule: Self-defense may constitute a defense to intentional torts when defendant had reasonable belief that they were under attack/their life was in danger.

• Reasonable mistake—when self-defense arises out of a mistaken but reasonable belief that they were under attack (Courvoisier v. Raymond)

Courvoisier v. Raymond

Rule: Self-defense does not require that the plaintiff was actually assaulting the defendant. It requires only that a reasonable person in the defendant’s position would have believed his life was in danger. Reasonable mistake in self-defense is excusable.

• Topic: Self-defense/Reasonable mistake (Intentional torts)

• Facts: Defendant, a jeweler, awoke at night to intruders attempting to rob his store. After expelling them, he fired warning shots. Then, rioters began to throw stones at his house. Plaintiff, a sheriff, came to the scene after the riot and stated he was an officer, but the defendant believed he was a rioter and shot and injured plaintiff.

• Issue: Did the trial court err in ruling in favor of plaintiff just because plaintiff was not actually assaulting the defendant?

• Holding: Yes, reversed.

• Reasoning: A person may use force/engage in self-defense if they reasonably believe it to be necessary, even if the belief is mistaken. In this case, even though the sheriff (plaintiff) wasn’t actually assaulting the defendant, he had reasonable belief that all of the individuals outside were rioters seeking to harm his property/assault him.

Negligence

• Primary standard of tort liability

• Four criteria (linear):

  • Duty

  • Breach

  • Causation (“But for” and proximate cause)

  • Damages

Reasonable Person Standard

• General Rule = Reasonable person standard—one must conduct themself with the same level of ordinary care as exercised by an objectively reasonable person

  • Ordinary care—care as an ordinary person would use to prevent foreseeable harm

• Exception: Sudden and unforeseeable mental incapacity/disability

Breunig v. American Family Insurance

Rule: Foreseeability drives liability. Insanity may be a defense to liability for negligence if an individual is suddenly overcome without forewarning by a mental disability or disorder that makes him incapable of conforming his conduct to the standards of a reasonable man under like circumstances.

• Topic: Duty, Reasonable Person Standard

• Facts: Defendant experienced schizophrenic delusions while driving and hit plaintiff due to belief that God was steering the wheel and that she could fly. Defendant had experienced months of forewarning: months of religious visions, belief she had been chosen by God, and conversations with her daughter about them.

• Issue: Did defendant’s foreknowledge of her susceptibility to mental delusions make her negligent?

• Holding: Yes.

• Reasoning: Sudden, unforeseeable incapacity may excuse liability, but defendant’s months of religious, schizophrenic delusions prior to the crash makes her negligent to get in the car in the first place.

Buch v. Amory Manufacturing Co.

Rule: A landowner only has a duty to not intentionally harm or interfere with a trespasser on his property, but has no legal duty to warn the trespasser against hidden or secret dangers arising from the condition of the premises, or to protect the trespasser from any harm he may experience from his own actions or the actions of others.

• Topic: Duty to Warn/Rescue

• Facts: Plaintiff, an 8y/o boy, trespassed in defendant’s mill where machinery was in operation. An overseer saw him there and told him to leave. Plaintiff did not go because he did not understand English. Overseer did not do anything further, although the machinery presented an obvious hazard to the child. Plaintiff crushed his hand in the machine.

• Issue: Is a landowner liable for injuries occurring to a trespasser to which he does not owe a legal duty?

• Holding: No.

• Reasoning: A landowner has no legal duty to warn a trespasser of hidden or secret dangers arising from the premises, or to protect the trespasser from any harm that may arise from his own actions. The court does not want to hold people to a strict legal standard of protecting everyone/strangers that they come across.

Kline v. 1500 Massachusetts Avenue Apartment Corp

Rule: The landlord has a legal duty to exercise reasonable care to minimize the risks to tenants of foreseeable criminal acts committed by third parties (particularly in common areas).

• More broadly, there exists a duty to protect when there exists a special relationship such as that of a landlord-tenant where the landlord has exclusive control over the premises.

• Topic: Duty to Protect, Reasonably Foreseeable Danger, Special Relationship Doctrine

• Facts: Plaintiff was assaulted and robbed by an intruder inside apartment building owned by defendant. Building used to have doorman and attendants, but no longer did at the time of the incident. Defendant was made aware of increased number of assaults and robberies being perpetrated against tenants. 2 months prior, another female tenant was similarly attacked in the same commonway. Landlord had notice of these crimes and was urged by plaintiff prior to incident to take steps to secure the building.

• Issue: Does a landlord have a legal duty to take steps to protect tenants from foreseeable acts committed by third parties?

• Holding: Yes, landlord is liable.

• Reasoning:

  • Special relationship: The premises were under the landlord’s exclusive control, meaning it is different from the general rule of no duty to protect because of this special landlord-tenant relationship.

    • Landlord exclusively controls common areas; tenants cannot protect themselves there. Analogous to innkeeper–guest, landowner–invitee, business–patron.

  • Foreseeability: There existed constructive notice of previous crimes that drives the duty.

  • Standard of care: The level of security that existed when tenant signed the lease had deteriorated significantly → must take reasonable measures within the landlord’s power and capacity to maintain the premises—especially given the other factors.

Lloyd v. Alpha Phi Alpha

Rule: The duty to protect for special relationships does not exist when only generalized knowledge of harm exists, no specific promises were made, and harm was not actively encouraged.

• Topic: Duty to Protect, Special Relationship Doctrine

• Facts: Lloyd pledged Alpha Phi Alpha at Cornell and was hazed (beatings, psychological abuse) at the fraternity house, which Cornell owned and leased to APA. Both Cornell and APA's national organization banned hazing. Lloyd never reported the abuse and concealed his injuries. He sued Cornell.

• Issue: Is Cornell liable for failing to protect plaintiff from hazing despite widespread knowledge of hazing on the campus?

• Holding: No, all claims dismissed. Cornell removed as a party.

• Reasoning: Setting boundaries for special relationship doctrine:

  • University-student is not a special relationship at the college level absent active supervision of the specific activity.

  • Landlord-institution liability for third-party conduct (compared to Kline) requires specific notice of the specific risk → generalized awareness that hazing exists in college life is insufficient.

  • Published policies ≠ voluntary undertaking. Issuing rules is awareness; it is not the active control that triggers a duty.

Rinaldo v. McGovern

Rule: A golfer generally cannot be held liable for negligence when a mishit golf ball unintentionally veers off the course and causes injury to individuals outside of course boundaries—unless there is evidence of failure to exercise duty care or an unreasonable increase in risk.

• Topic: Duty to Warn, Custom (Golf)

• Facts: Two golfers, defendants, each intended to hit straight down the fairway but sliced their shots. McGovern’s ball veered through trees, landed on a nearby public road, and shattered the windshield of a car driven by Roberta Rinaldo (plaintiff), injuring her. Plaintiff sued the golfers for negligence and failure to warn.

• Issue: Can a golfer be liable for negligence when an unintended mishit ball leaves the course and injures someone on a public road?

• Holding: No, affirmed with costs.

• Reasoning: No tort liability for the mishit golf ball, as there was no duty to warn and the conduct did not constitute actionable negligence.

  • Golfers don’t have a duty to warn individuals outside the boundaries of the golf course since the warning likely wouldn’t be effective—especially for those in a moving vehicle.

  • Additionally, risk of a mishit ball is inherent to golf, even for professional golfers. Tort liability requires both a recognizable risk and a basis for concluding that the harm was reasonably preventable.

Nussbaum v. Lacopo

Rule: No duty to warn arises absent a reasonably foreseeable danger resulting from the natural and probable consequences of a person’s conduct.

• Topic: Duty to Warn, Reasonably Foreseeable Danger, Custom (Golf)

• Facts: While trespassing on a golf course, Lacopo (Defendant) hooked a tee shot out of the fairway, through 20-30ft of densely treed rough, and into Nussbaum’s (Plaintiff’s) patio, allegedly hitting him. Defendant did not see plaintiff and did not yet “Fore!”, and plaintiff claimed it was the first golf ball ever hit into his property and sued defendant for negligence. Plaintiff proceeded to trial solely on the theory that defendant’s failure to yell “Fore!” was negligent.

• Issue: Does a duty to warn arise absent a reasonably foreseeable danger resulting from the natural and probable consequences of a person’s conduct?

• Holding: No.

• Reasoning: A golfer owes a duty to shout “Fore!” to warn other players of errant shots because it prevents reasonably foreseeable accidents. That duty did not extent to Nussbaum because hitting a neighbor, especially through 20-30ft of dense, treed rough, was too unlikely for Lacopo to reasonably forsee.

• The plaintiff assumed the risk of such incidents by choosing to live adjacent to the golf course. Regarding the player, the court found no duty to warn extended to the plaintiff, as the plaintiff was not in the line of play or any position where danger was reasonably anticipated.

  • In this case, the “natural and probable consequences” = errant shots from hitting a golf club. Accidents naturally arise, even for the most skilled and seasoned players, so it’s not fair to penalize golfers for these accidents that happen to everyone naturally.

BPL Risk Calculus

Liability for negligence due to failure to take safety precautions exists if the burden of taking such precautions is less than the probability of injury multiplied by the gravity of any resulting injury, symbolized by B < PL = negligence liability.

BPL formula (dynamic, not static):

• B = burden/cost to defendant of taking precaution

• P = probability of harm

• L = loss

→ Measuring whether the burden of taking the precaution < the reduction of the expected harm when the precaution is taken

If B < P × L, D breached. If B > P × L, no breach. If B = P × L, the party without the evidentiary burden wins.

Limitations of BPL

• Measurement error: hard to monetize many harms.

• Differing costs of the same item (the second eye is not worth the same as the first).

• Discontinuities: a 'liability cliff' around the break-even point.

Additional Information

• If an accident under unusual circumstances is not foreseeable, D is not liable if he takes reasonable precautions under the circumstances.

• When the burden of a precaution approaches zero, the failure to take it will almost always be negligent.

• Duty to the individual vs. duty to society — inevitable trade-offs: an increase in social utility may require tolerating some individual risk.

US v. Carroll Towing

Rule: Liability for negligence due to failure to take safety precautions exists if the burden of taking such precautions is less than the probability of injury multiplied by the gravity of any resulting injury, symbolized by B < PL = negligence liability.

• Topic: BPL Risk Calculus, Breach

• Facts: A barge broke loose from its moorings in New York Harbor during busy wartime conditions, causing damage. The bargee had been absent for 21 hours without excuse at the time of the accident. Appellee argued that if someone was aboard the barge to observe it leaking after it broke free, the cargo and the barge could have been saved.

• Issue: Should the Appellants should be held partly liable for damage to the barge and for the lost cargo by not having an attendant aboard the barge when it broke free from the pier? Under what circumstances does the bargee's absence constitute negligence?

• Holding: Yes, the bargee's unexcused absence during working hours in busy wartime harbor conditions constituted negligence.

• Reasoning: The canonical formal articulation of risk calculus in American tort law:

  • P (probability of breakaway if unattended), L (gravity of the resulting injury from runaway barge), and B (burden of adequate precautions/attendant on barge). Liability exists when B < P × L.

  • Application: B (cost of a bargee aboard during daylight hours) was low; P was high (crowded wartime harbor, frequent shifting); L was high (collision, sinking, cargo loss). B < P × L — negligence.

  • Resultantly, the duty of ordinary care is breached

The TJ Hooper

Rule: If the utility of a safety precaution outweighs the cost of the precaution, then it is negligent not to carry the safety precaution. An industry’s general custom does not dictate the standard of care. The courts decide what is required of the parties.

• Topic: Custom, BPL Risk Calculus, Breach

• Facts: Tugs (defendant) without radios lost barges (plaintiff) in a storm; radios would have provided warnings of imminent weather conditions that would have caused them to seek shelter. Four other tugs were on the same route as Defendant and avoided the storm because of reliable radios.

• Issue: Is Defendant negligent for failing to equip his tugboat with radios, despite lack of universal custom?

• Holding: Yes, affirmed.

• Reasoning: Although there is no general custom for tugboats to carry weather radios, Defendant is nonetheless negligent for failing to carry a radio since the small cost of a radio compared to its importance makes this negligence.

Helling v. Carey

breach/(medical) custom

Rule: Adhering to medical standards does not prevent defendants from incurring legal liability. Even if the standard of the medical practice is to not fully examine someone because it is highly unlikely the plaintiff will be diagnosed with a particular disease, the defendants are still liable for negligence for failing to provide the test—especially where test is cheap, potential harm/loss is severe, and there is no good reason custom stopped short.

• Topic: (Medical) Custom, Breach

• Facts: Barbara Helling, 32, was diagnosed with primary open-angle glaucoma after years of treatment for nearsightedness by ophthalmologists. By diagnosis she had lost most peripheral vision. The professional standard did NOT require routine glaucoma pressure tests for patients under 40 (incidence ~1 in 25,000 under 40).

• Issue: Does compliance with the ophthalmology profession's standard (no routine glaucoma testing under 40) insulate defendants from liability?

• Holding: Reversed in favor of plaintiff — defendants liable as a matter of law.

• Reasoning: Although defendants complied with professional custom, reasonable prudence required giving the test. The test is simple, inexpensive, harmless, and objective. The precaution of giving this test to detect the incidence of glaucoma to patients under 40 years of age is so imperative that irrespective of its disregard by the standards of the ophthalmology profession, it is the duty of the courts to say what is required.

  • A rare case where the court overrode professional custom in the medical context — the Hooper move applied to medicine. Works best where the test is very cheap, the harm is severe if missed, and there is no good reason custom stopped short.

New York Central v. Grimstad

Rule: To be liable for negligence the cause of the accident must be more than pure conjecture and speculation. It must be the cause in fact of the injury.

• A defendant’s actions must be the cause in fact of a plaintiff’s injuries for the defendant to be held liable for those injuries.

• Topic: Causation (Cause-in-fact → But-for test)

• Facts: Angell Grimstad, captain of the barge, was knocked into the water when a tug bumped the barge. He could not swim. His wife saw him about ten feet from the barge, holding his hands out of the water, and ran to the cabin for a small line. She returned to find he had disappeared. The barge carried no life buoys. His widow sued the railroad for negligent failure to equip the barge with life-preservers.

• Issue: Was the absence of a life buoy the proximate/cause-in-fact of Grimstad's drowning?

• Holding: No, reversed. Judgment for defendant.

• Reasoning: Even assuming negligence, Plaintiff failed to prove causation. Whether a life buoy would actually have saved Grimstad was pure conjecture: there was no evidence his wife would have thrown it in time, that she could have thrown it accurately in the dark, or that he could have grabbed it before going under. A jury verdict cannot rest on speculation about what might have happened had the safety equipment been present.

Berry v. Sugar Notch

Rule: The actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious.

• Topic: Causation (Proximate Cause)

• Facts: A local ordinance stated that cars could go no faster than eight miles an hour. Plaintiff was going faster than eight miles per hour, in violation of the statute. A gust of wind blew a tree on top of his car. Plaintiff sued to recover damages for trespass for personal injuries.

• Issue: Does Plaintiff’s violation of a speeding statute eliminate Plaintiff’s ability to recover damages?

• Holding: No, affirmed.

• Reasoning: Violation of the statute was a coincidence and not the cause of the accident.

  • Speeding is negligent because it risks collisions; but Berry's injury was from a falling tree. The question is not whether the tree was foreseeable, but whether the injury falls within the risk that made the conduct negligent.

    • Court's key line: "Speeding is negligent because it risks collisions the driver cannot avoid; it is not negligent as to the risk of falling trees."

Herskovits v. Group Health

Rule: In a wrongful-death action, proof that the defendant’s conduct increased the risk by decreasing the chances of survival of a plaintiff is sufficient as to the issue of proximate cause.

• A reduced chance of survival, no matter what the percentage, is an actual harm. Loss of chance causation frame harm as the reduction in probability of a better outcome. Plaintiff only needs to prove Defendant caused the reduced chance.

• Topic: Causation (Cause-in-fact → Loss of Chance)

• Facts: Group Health negligently failed to diagnose Herskovits's lung cancer on his first visit in December 1974. By diagnosis, his tumor had progressed from stage 1 to stage 2, reducing his 5-year survival chance from 39% to 25%—a 14-percentage-point drop. He already had less than a 50% chance of survival even with timely diagnosis, and he died. His estate sued.

• Issue: Can a plaintiff who had less than a 50% chance of survival recover for medical negligence that reduced that chance, without proving the negligence more likely than not caused the death?

• Holding: Yes.

• Reasoning:

  • Traditional but-for causation requires P to prove the harm more likely than not (>50%) was caused by D's negligence. This creates a perverse result in medical malpractice:

    If a patient walks in already having less than 50% chance of survival, no negligent doctor can ever be liable for killing her - because P could never prove that proper treatment more likely than not would have saved her.

  • Loss of chance reframes the harm as the reduction in probability of a better outcome. Plaintiff only needs to prove Defendant caused the reduced chance.

• Standard/baseline rule for cause-in-fact causation is but-for causation (“Would the harm have occurred, but for the defendant’s negligence?”)

• Loss of chance causation used when:

  • Plaintiff already had a pre-existing probability < 50%

  • Defendant’s negligence reduces that probability

  • Traditional but-for would systematically immunize negligent actors

Ryan v. New York Central RR

Rule: Parties are not liable for the remote results of their negligence, only the proximate consequences.

• A negligent person is liable in damages for the proximate results of his own acts, but not for remote damages.

• Topic: Causation (Proximate Cause), Damages

• Facts: A woodshed on the Defendant’s property caught on fire from one of the Defendant’s rail engines. The fire spread 130 feet away and consumed the Plaintiff’s property. Several other properties were also destroyed and valiant efforts were made to save the homes.

• Issue: Is the spread of the fire to the Plaintiff’s home a proximate or remote result of the Defendant’s negligence?

• Holding: The spread of the fire was a remote result and not a foreseeable consequence to the burning of one building.

• Reasoning: The spread to Ryan's house 130 feet away depended on a "concurrence of accidental circumstances" — wind, atmospheric conditions, adjoining structures—none within Defendant's control. These intervening contingencies broke the direct chain, making the harm "remote" rather than "proximate."

James v. Meow Media

Rule: A media company does not owe a duty of care to protect third parties from harm caused by a consumer's idiosyncratic and unforeseeable reaction to its expressive content, nor does such content qualify as a "product" for strict liability purposes under Kentucky law.

• The distribution of violent entertainment content to impressionable youth does not give rise to an actionable negligence claim.

• Topic: Causation (Proximate Cause), Products

• Facts: 14-year-old Carneal shot and killed three students at Heath High School. He regularly played violent video games (Doom, Quake), watched The Basketball Diaries, and visited pornographic websites. Victims' parents sued the producers and distributors, alleging the media desensitized him and caused the killings.

• Issue: Did the media companies owe a duty of care to the victims to prevent the harm caused by Carneal's actions, and did the media content constitute a "product" for purposes of strict liability under Kentucky law?

• Holding: No, affirmed. The media companies owed no duty of care and the content did not constitute a product under Kentucky law.

• Reasoning:

  • No duty: Carneal's reaction was not reasonably foreseeable as a result of defendant's’ conduct. Defendants had no relationship with him and no knowledge of his tendencies.

  • Superceding clause: Carneal's deliberate criminal act broke the causal chain. His decision to kill was an independent, intentional human choice that absorbed causal responsibility.

  • Not a product: "Thoughts, ideas, and images" are not products under Kentucky law; extending strict liability to expressive content would raise First Amendment concerns.

Hymowitz et al. v. Eli Lilly

Rule: Where identification of the manufacturer of a drug that injures a plaintiff is impossible, [New York] courts will apply a market share theory, using a national market, to determine liability and apportionment of damages.

• Topic: Causation, Damages, Market-Share Liability

• Facts: Plaintiffss were injured by a drug DES, a miscarriage-prevention drug their mothers took decades earlier. It was found later that DES created a high risk of vaginal cancer in some female children of women who had used the drug. Roughly 300 manufacturers made chemically identical DES; the long latency made identifying the specific producer impossible.

• Issue: Can DES plaintiffs recover without identifying the specific manufacturer that made the drug their mothers took?

• Holding: Yes, the court adopts a national market-share theory of liability.

• Reasoning: Traditional doctrines fail. Alternative liability assumes a small defendant pool; concerted action requires agreement, not mere parallel marketing. Fairness demands a remedy so innocent victims are not left bearing the loss.

  • National market: apportion by each manufacturer's share of the national DES market for pregnancy use; reconstructing local markets is impractical after decades.

  • No exculpation: a Defendant cannot escape by proving it did not injure this particular Plaintiff. Liability tracks overall risk created, not traditional causation. (Sole exception: proof Defendant never sold DES for pregnancy use at all.)

  • Several liability only: each Defendant pays only its market share. Plaintiff cannot reach 100% recovery when not all producers are before the court; Plaintiff bears the gap.

  • Hymowitz is the most aggressive version of market-share liability — no exculpation, national-market apportionment. Other jurisdictions (e.g., California's Sindell) allow individual exculpation and use local markets.

Murphy v. Steeplechase Amusement

Rule: One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary.

• I.e., obvious, inherent risks of an activity are assumed by the participant when voluntariness and foreseeability are clearly established.

• Topic: Inherent Risks/Assumption of Risk, Plaintiff Conduct

• Facts: Murphy visited Steeplechase Amusement Park at Coney Island and rode “The Flopper”—a moving padded belt running up an inclined plane that flips riders. He was thrown and fractured his kneecap. He claimed the belt started and stopped suddenly/violently and sued for negligence, claiming the ride should have had extra guardrails or protection due to its fast and dangerous speed.

• Issue: Is Defendant liable for damages to Plaintiff who is hurt on a ride when it is reasonably foreseeable that some danger is involved?

• Holding: No, reversed. No liability.

• Reasoning: Volenti non fit injuria—one who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary.

  • The very name “The Flopper” and the visible falling of other riders warned of the risk. Falling was not merely foreseeable—it was the whole point of the ride. “The timorous may stay at home.” Plaintiff offered no proof the belt was operating abnormally.

Coomer v. Kansas City Royals

Rule: A plaintiff implicitly consents to risks that are inherent in an activity, so the defendant owes no duty to protect against those risks. Extraneous entertainment bolted onto the core activity is analyzed under ordinary negligence.

• Topic: Inherent Risks/Assumption of Risk, Plaintiff Conduct, Doctrine of Implied Primary Assumption

• Facts: Coomer, the plaintiff, was injured when he was hit in the eye by a hotdog thrown by Sluggerrr, the mascot for the Kansas City Royals. He suffered a detached retina requiring surgery. Coomer sued the Kansas City Royals Baseball Corporation, alleging negligence and claiming the team was responsible for Sluggerrr's actions.

• Issue: Is being hit by the mascot's hot dog toss is an “inherent risk” of watching a Royals baseball game (barring recovery under implied primary assumption of risk), and is this is a question of law or fact?

• Holding: Vacated and remanded.The inherent-risk question is one of law for the court, and being hit by a hot dog toss is not an inherent risk of baseball.

• Reasoning:

  • Doctrine of Implied Primary Assumption—a plaintiff implicitly consents to risks that are inherent in an activity, so the defendant owes no duty to protect against those risks.

  • In this case, the “Baseball Rule” bars suits for injuries from balls/bats because those risks are structural and unavoidable. But, “inherent” means structural or essential to the activity.

  • Getting hit by a hot dog is not essential—the Royals can conduct (or not conduct) the Hot Dog Launch without altering the game. Leaving “inherent risk” to juries would produce inconsistent results across identical cases. Therefore reasonable care applies, and comparative fault principles control.

Harris v. Meadows

Rule: If Plaintiff is contributorily negligent, they cannot recover against a negligent Defendant. All elements of negligence (duty, breach, causation, harm) must be proven against Plaintiff.

• Topic: Contributory Negligence

• Facts: Plaintiff, Harris, was driving a car while defendant, Meadows, was driving in the opposite direction; both were planning on turning. Defendant began turning as she neared the plaintiff, and ended up hitting plaintiff’s car in the front fender and driver’s door. Plaintiff suffered a cervical sprain and contusion/bruise on her left hip. Plaintiff, driving in the far right lane, saw Defendant turning and honked but did not brake hard or try to stop. Harris testified she slowed down thinking [Meadows] would see me coming… and stop her turn. They collided.

• Issue: Is the plaintiff guilty of contributory negligence, thereby barring her from recovering damages for the injuries she suffered in the collision?

• Holding: Yes, affirmed.

• Reasoning: Although Meadows admitted negligence, Harris also failed to act reasonably — she saw the turning car but never braked hard, skidded, or tried to stop. A jury could reasonably find her contributorily negligent. The court acknowledged this is perhaps illustrative of the harshness of the contributory negligence doctrine.

Vicarious Liability

Definition: One person is held responsible for the wrongful acts of another by virtue of a status connection.

• Governing test = Foreseeability

• Ex: Employer-Employee Relationship

  • When looking at these cases/relationships:

    • Your analysis should include: (1) whether there is an employer-employee relationship; and (2) whether the conduct falls within the scope of employment.

Bushey v. US

Rule: The governing test for scope of employment is foreseeability of the harm as characteristic of the enterprise's risks—not whether the employee was acting to benefit the employer.

• An employer is liable for conduct characteristic of the risks its enterprise creates.

• Topic: Vicarious Liability, Employment

• Facts: A drunken Coast Guard seaman returning from shore leave opened valves on the wall of Bushey's drydock, sinking it and damaging the Coast Guard ship being overhauled there. Bushey sued the U.S.

• Issue: Is the U.S. vicariously liable for the seaman's acts, even though he was not acting to serve his employer?

• Holding: Yes, affirmed.

• Reasoning: The proper test is foreseeability: an employer is liable for conduct characteristic of the risks its enterprise creates.

  • Sailors predictably drink and return to their ships at odd hours; damage caused by a drunken seaman crossing the drydock is a foreseeable risk of berthing a naval vessel there.

  • Contrast: if the seaman had set a bar on fire, liability would not attach — that risk is not inherent to the enterprise. Loss-spreading supports but does not alone justify the rule; fairness to the enterprise is the touchstone.

Faragher v. City of Boca Raton

Rule: An employer is vicariously liable for a supervisor’s actionable discrimination, but subject to an affirmative defense looking to the reasonableness of the employer’s conduct as well as that of the plaintiff victim.

• Subject to affirmative defense if the employer can prove:

  • It exercised reasonable care to prevent and correct discrimination/harassment

  • The employee unreasonably failed to use the employer’s procedures

• Topic: Vicarious Liability, Employment

• Facts: Faragher, an ocean lifeguard, was sexually harassed by her supervisors Terry and Silverman. Boca Raton had an anti-harassment policy but never distributed it to the Marine Safety Section. She sued the City under Title VII.

• Issue: When is an employer vicariously liable for a hostile work environment created by a supervisor?

• Holding: Employer is vicariously liable.

• Reasoning: Supervisor harassment is aided by the agency relationship—supervisors wield delegated authority, and victims fear retaliation if they complain. That justifies vicarious liability. To encourage prevention and reporting, the Court created an affirmative defense (unavailable if the harassment culminates in a tangible job action like firing or demotion): the employer must prove (1) it exercised reasonable care to prevent and correct harassment, and (2) the employee unreasonably failed to use the employer’s procedures. Boca Raton couldn't satisfy prong one — it never disseminated its policy.

Strict Liability

Definition: A defendant is liable for harm without the plaintiff having to prove fault (negligence or intent)—only that the defendant engaged in a qualifying activity and caused the harm.

Applies to:

• Abnormally dangerous activities

• Animals:

  • Wild animals: Strict liability for harm caused by wild animals, even if carefully controlled

  • Domestic animals: Strict liability only if the owner knew (or should have known) of the animal’s dangerous propensities

  • [Vs. ordinary animals: Negligence only]

• Products:

  • A commercial seller is strictly liable for selling a product in a defective condition unreasonably dangerous to users.

  • Types of defects:

    • Manufacturing defect

    • Design defect

    • Warning defect

Post v. Annand

Rule: A dog’s owner or keeper is strictly liable for injuries caused by the dog unless the injured person was trespassing or teasing, tormenting, or abusing the dog; and a non-owner is a “keeper” only if the person harbors the dog and exercises control over it.

• Topic: Strict Liability

• Facts: Post, a divinity student, was bitten on the nose by Rocky, a dog technically owned by the Annands' son but housed with Dean Annand and his wife in their apartment at the Yale Divinity School's Berkeley Center. Post sued the Annands and the School under Connecticut's strict-liability dog-bite statute.

• Issue: Are the Annands and the Berkeley Divinity School liable as owners or keepers of Rocky?

• Holding: Summary judgment against the Annands; denied against the Divinity School.

• Reasoning:

  • Annands = “keepers”: Though their son technically owned Rocky, they housed, fed, and controlled him. Statutory defenses (trespass, other tort, teasing) did not apply.

  • Divinity School ≠ keeper: "Keeping" requires treating the dog as living in one's home and undertaking to control it. Allowing the dog the run of common areas and permitting a dog pen was acquiescence, not control. A dog lawfully kept at an institution by a resident does not become the institution's dog.

Escola v. Coca Cola

Rule:

• Topic: Products Liability

• Facts: Plaintiff was a waitress, and one of her duties was to stock the refrigerator with bottles of Coca-Cola. On one occasion, a bottle exploded in Plaintiff’s hand as she was putting it into the refrigerator, causing serious injury. Plaintiff sued Defendant, claiming that Defendant was negligent in selling “bottles containing said beverage which on account of excessive pressure of gas or by reason of some defect in the bottle was dangerous.and likely to explode.”

Issue: Is Defendant absolutely liable for its failure to inspect a bottle of Coca-Cola that proves to have a defect that causes injury to Plaintiff?

• Holding:

• Reasoning:

Traynor's concurrence became the doctrinal foundation of strict products liability. Canonical explanation of why strict liability beats negligence for mass-produced defective goods.

Volkswagen of America v. Young

Rule:

• Topic: Products Liability

• Facts:

• Issue:

• Holding:

• Reasoning:

MacDonald v. Ortho Pharmaceutical Corp

Rule:

• Topic: Products Liability

• Facts:

• Issue:

• Holding:

• Reasoning: