If breached, should defendant be held liable? (Scope)

Strict (yes)

Plaintiff will always recover if strict liability is breached and that breach causes their harm.

Strict (yes) product caveat

Product caveat. Defendant’s only responsible for foreseeable misuse i.e. Q-Tips. Foreseeable misuse is not enough to render the product non-defective. Plaintiffs can still lose if misuse is unforeseeable. Plaintiffs also lose for substantial modifications whether or not they are unforeseeable in NY.

Strict no

Only ways out of liability is to prove contributory negligence of the plaintiff or blaming that you were forced to act this way because of an act of God.

Stirct no - product exception

Plaintiff is traditionally not contributorily negligent for failing to discover a defect, but if they voluntarily and unreasonably confront a known risk, it will eliminate or reduce recovery (secondary assumption of risk. Plaintiff’s contributory negligence will not necessarily make the product non-defective, as in O’Brien, where the plaintiff’s contributory negligent action didn’t mean the pool was not defective.

Strict maybe

If we assume a comparative negligence argument will be made, we can’t compare fault since the defendant will be strictly liable and there will be no fault, so we need to determine the splitting of costs through a causation analysis by weighing the causal effect of the plaintiff’s and defendants conduct. Defendant will still pay, just a less amount. This DOES NOT apply to NC jurisdiction.

Fault-based general

Only proximate causes (the ordinary and natural result of the defendant’s negligent), not remote causes will result in liability. There must be a close nexus between the conduct and the harm caused. To determine proximate cause we look to (1) direct and indirect harm, (2) closeness in space and time; and (3) ordinary and natural v. accidental and coincidental.

Fault-based (plaintiff was not contributorily negligent) - tree on car case

Berry: The plaintiff was speeding in his car when a tree fell down during a storm, crushing his car as he passed underneath it. Plaintiff sued citing negligent maintenance of the trees. The plaintiff violated a statute but the harm that occurred was not within the scope that the statute aims to protect against. On the other hand, the defendant had a duty, breached it, and was cause in fact. It follows that not maintaining a tree would lead to it falling, making what happened to the plaintiff within their scope, so the plaintiff recovers. It being coincidental means it doesn’t fall within the plaintiff’s scope so they were not contributorily negligent.

Fault-based (plaintiff was not contributorily negligent) - third party thieves

Brower: R.R. collision where the plaintiff’s horse was killed, wagon was destroyed, and cider was scattered and stolen by thieves. The defendant had guards guarding their property, but not the plaintiff’s property, who was in a shaken state and unable to guard his own things. The defendant was liable for not protecting the plaintiff against third party thieves as P is high enough when you knock someone unconsciousness that thieves will come steal their stuff. It’s not unfair to hold the defendant liable because these risks were clearly foreseen as they had guards. The defendants created the risk by hitting the plaintiff and created the condition for the thieves to intervene, and significantly increases the chances of it happening.

Fault-based (plaintiff was not contributorily negligent) - duty to rescuers

Wagner: The train left its door open, and Herbie flew out when the train went around a curve. The plaintiff, his cousin, got out in the dark when the train stopped after crossing a bridge to look from his cousin. He alleged that the conductor asked him to go look over there. He then fell off the bridge as well. The plaintiff’s injury was inside the defendant’s scope because rescue does not break the causal connection and the defendant’s wrong also extends to the rescuer.

Fault-based (plaintiff was not contributorily negligent) - ambulance case

Pridham: After being injured while shopping, the driver taking him to the hospital had a heart attack and crashed into a tree which pushed the plaintiff through the glass in the ambulance, and he died that day. The store is liable for further injuries in the ambulance as the original defendant is liable for subsequent harms that happen as a result of the defendant’s negligence.

Fault-based (plaintiff was not contributorily negligent) - italians train station background

Palsgraf: Plaintiff was standing on the R.R.’s platform when two Italians ran up to catch another train, one who was carrying a package wrapped in newspaper. He dropped the package while being helped on the train, which contained fireworks (which couldn’t be seen from its appearance) and it fell and exploded, which knocked down a penny scale that hit the plaintiff.

Fault-based (plaintiff was not contributorily negligent) - italians train station Andrews v Cardozo

The question was how far the defendant’s duty stretched. Cardozo found that duty stretches as far as the zone of foreseeable danger at the time of the defendant’s negligence and is not really about proximate cause at all but is a duty question. Andrews found a broader approach and thinks it’s a wrong to all who might have been there, not just those who happened to be within the radius of danger. Duty is relational (Cardozo) v. Duty is universal (Andrews).

Cardozo v Andrews on exam

(On exam, quickly write out why they would have the same outcome. Our job is to determine when we would get different outcomes. Cardozo will always be narrower. Sometimes a Cardozo no will be an Andrews yes; rarely will happen the other way).

Fault-based (plaintiff was not contributorily negligent) - boat destroying everything case

Kinsman: Even though the manner of injury was perhaps different than foreseen, a boat getting sent down river foreseeably puts people downstream in danger and foreseeably leads to flooding so plaintiff’s harm still falls within the defendant’s scope of liability. Just because the result was way worse than expective, doesn’t relieve the defendant of liability.

Fault-based (Plaintiff was contributorily negligent but the defendant acted wantonly/ recklessly.)

Last Clear Chance: Applies when the defendant is aware or should be aware of the plaintiff’s peril and fails to take precaution. If this defense is proven, plaintiff recovers as we want to ensure people take reasonable precautions. The key is when the contributory negligence happened. This doctrine only deals with what is possible in the moment of the accident. Not being able to ≠ choosing not to. Negligently trying to take the last clear chance still results in liability.

Last clear chance cases

In Davies, he knowingly hit the donkey when it could've been avoided. In Fuller, the train conductor did not blow the whistle in time nor try to stop even though both options were completely available. The injury could've been avoided.

Fault-based (Plaintiff was not contributorily negligent, but negligence and cause-in-fact are not enough to justify liability.)

Is the thing that the thing that happened so sufficiently weird that we shouldn’t hold you liable. Ryan: Defendant’s engine set fire to its woodshed, which then spread to plaintiff’s house and to other houses beyond it. Court believes that plaintiff should’ve had his own first party insurance because he knew he lived by a railroad. This is easier than massively spreading the risk to the point where people can’t even recover because the R.R. runs out of money.

Fault based (Plaintiff was contributorily negligent), affirmative defenses general

Affirmative defenses. How does the plaintiff’s own conduct affect the outcome of their case? If the plaintiff is contributorily negligent or secondarily assuming the risk, there is no recovery in NC jurisdiction, even if they completely prove their prima facie case. This DOES NOT apply if defendant acted wantonly or recklessly. the

Fault based (Plaintiff was contributorily negligent), affirmative defenses contributory

Contributory: Applies if the plaintiffs negligence is a CAUSE of their injury.

Fault based (Plaintiff was contributorily negligent), horse into pole case

Butterfield v. Forrester: Plaintiff argument: Defendant had a pole in the middle of the street, and he clearly owed a duty of reasonable care, breached that duty, and caused the plaintiff’s injury. Defendant argument: The plaintiff, however, was riding his horse at a high speed and rode it directly into the defendant’s pole. The plaintiff did not exercise reasonable care on their own behalf.

Fault-based (Plaintiff was contributorily negligent), exception on a technicality

Gyerman: The plaintiff recovered because his negligence wasn’t the cause of his injury which is a requirement in Cali.

Fault based (Plaintiff was contributorily negligent), exception by statute

Koening: Contributory negligence is excused by a statute.

Fault-based (Plaintiff was contributorily negligent), exception because of defendant

Leroy: Plaintiff’s behavior was only risk creating BECAUSE of the defendant. Property owners have a duty to not harm others, but he assumes that others will act lawfully. He should not have the burden to use his property in a way that it can’t cause harm by the wrongs of another.

Fault-based (Plaintiff was contributorily negligent) gator case

Landing: Plaintiff didn’t recover because there was a open and obvious risk that the plaintiff knowingly assumed by going on a nightly walk with gators nearby.

Fault-based (comparative negligence) general

Modification of traditional contributory negligence. This DOES NOT apply to NC jurisdiction (and Alabama, DC, Maryland, and Virginia).

Fault-based (comparative negligence) pure

Pure: NYC and Cali. In Li, Plaintiff was driving and made a left turn across three lanes when the defendant was speeding over a hill, drove through a yellow light, and then hit the plaintiff’s car. Liability was proportioned directly with fault. You take the percentage negligent the plaintiff was and subtract from their damages.

Fault-based (comparative negligence) impure

Impure: Liability apportioned based on fault up to where plaintiff’s negligence is 50%. Once more than 50% the plaintiff is barred from recovery.