Unintentional Torts

Heaven v. Pender 1883

a duty of care exists when a person's actions could foreseeably cause injury to another's person or property, even without a contractual relationship, laying the groundwork for the modern concept of negligence.  

Macpherson (1957)

A manufacturer is liable for negligence to any foreseeable user of its product, even if there is no direct contractual relationship (privity), if the product is dangerous when defectively made. This duty of care extends beyond the immediate purchaser to anyone who might foreseeably be harmed by the product's failure. 

Mussivand 1989

Ohio Supreme Court held that a person with a venereal disease owes a duty of care to their sexual partner's spouse because the transmission of the disease to the spouse is a foreseeable result of their negligence. 

Osterlind 1928

the court held that a business owner has no legal duty to a patron who rents a canoe while intoxicated, even if the owner hears their calls for help after the canoe capsizes and they subsequently drown. The defendant did not have a duty to rescue because the intoxicated patron was not in a helpless condition at the time the canoe was rented, and therefore, no duty to rescue or an affirmative duty to assist was established. 

Baker 2003

Indiana Court of Appeals held that a business owes a duty to provide reasonable assistance to a customer who becomes ill or injured on the premises, regardless of whether the business was responsible for the initial cause of the injury. This duty arises from the special relationship between a business that invites the public onto its property for its own economic benefit and its patrons. 

Leffler 2004

The Supreme Court of Mississippi held that while the injured party was an invitee at the time he entered the building, he became a trespasser by going onto the roof, and the property owners did not breach their duty of care to him. The court reasoned that an invitee who exceeds the boundaries of their invitation becomes a trespasser, and the property owners had taken reasonable steps to warn the public against entering the rooftop. 

Exceptions to No Duty to Rescue

1. statutes (rare in the U.S.)

2. Voluntary undertakings (you voluntarily attempt to rescue somebody so you are now obligated to them)

3. Imperilment (you are the reason the person is injured in the first place)

4. Special relations (like between businesses and invitees)

Big N Negligence

- the tort of negligence

Small n negligence

- the breach element.

Martin (1998)

the Pennsylvania Supreme Court held that a trial court cannot overturn a jury's verdict in a negligence claim as being against the weight of the evidence when the verdict hinges on witness credibility.

Jones 1990

the Commonwealth Court of Pennsylvania held that the trial court committed reversible error by failing to properly instruct the jury on a common carrier's "highest duty of care" and by preventing the jury from considering whether the bus driver's failure to close the doors was evidence of negligence. Common carriers may be public or private sector (any commercial enterprise transporting customers for a fee)

Adams 1919

the New York Court of Appeals held that a trolley company was not liable for an injury caused by an unforeseeable accident, affirming that a party is not negligent if they have taken reasonable precautions to protect against foreseeable dangers and are not expected to guard against every possible extraordinary circumstance. 

Breach

failure to use ordinary care

ordinary care

a reasonably careful person under the circumstances

Gross negligence

an extreme departure from the ordinary standard of conduct.

Vaughan 1837 England 

the court established an objective standard for negligence, holding that a person is liable for damages if their conduct fails to meet the standard of a reasonably prudent person, regardless of whether they acted to the best of their own, subjective judgment.

Appelhans 2002

the Illinois Appellate Court held that under the state's "tender years doctrine," a child under the age of seven cannot be found negligent and that parents are not liable for negligent supervision unless there is evidence of specific prior conduct that would have put them on notice of a likely future act.

Tender Years Doctrine

a child is incapable of negligence if he is less than seven years old. In NY state it’s only children below 4 years old. (aka 3 years and 364 days max.)

Negligent Parental Supervision 

1.     The parents were aware of specific instances of prior conduct sufficient to put them on notice that the act complained of was likely to occur

2.     The parents had the opportunity to control the child

Negligent Entrustment

a parent carelessly gives a child access to a dangerous instrumentality, such as a gun or a car, that the child is not equipped to handle safely.

Carroll Towing 1947

Judge Learned Hand formulated the "Hand Formula" for determining negligence, holding that a party's duty to take precautions depends on whether the burden of doing so is less than the probability of injury multiplied by the gravity of the potential injury (B < PL). where L is the injury.

Zapata 1988

the First Circuit Court of Appeals held that a bank's system for detecting forged checks meets the "ordinary care" standard of the Uniform Commercial Code as long as its practices are consistent with general banking usage, even if those practices do not involve examining every single check

The TJ Hooper 1932

the court held that a party can be found negligent for failing to adopt new, reasonable, and available safety precautions, even if those measures are not yet a universal custom within the industry. (adherence to customary practices does not of itself establish that the defendant acted with reasonable care). COMPLIANCE WITH CUSTOM IS PROBATIVE OF ORDINARY CARE, NOT DISPOSITIVE

Johnson 2002

the Georgia Supreme Court held that in a medical malpractice case, the professional standard of care is determined by the general practices of the medical community, and therefore a defendant's medical expert cannot be cross-examined about their personal treatment practices because such individual opinions are irrelevant to the legal standard. (THE ANTI-TJ HOOPER RULE)

Condra 2009

: the Georgia Supreme Court overturned Johnson, holding that in a medical malpractice case, plaintiffs are permitted to cross-examine defense expert witnesses about their personal practices, as such evidence is relevant to assessing the expert's credibility and potential bias.

Largey 1988

the New Jersey Supreme Court adopted the "prudent patient" standard for informed consent, holding that a physician has a duty to disclose all risks that a reasonable patient would find material to making a treatment decision, rather than limiting disclosure to what a reasonable physician would traditionally provide.

Preponderance of the Evidence

plaintiff must persuade the judge or jury that it is more likely than not that the defendant acted as the plaintiff alleges.

3 elements for Res Ipsa Loquitur

1. The injury must happen in a way that ordinarily does not occur absent carelessness on someone’s part

2. The instrumentality causing the injury must have been in defendant’s exclusive control

3. The injury must not have arisen from acts or carelessness on the part of the plaintiff

Byrne 1863 England

the Court of Exchequer held that when an event that ordinarily would not occur without negligence happens and the instrumentality causing the injury is under the defendant's exclusive control, the incident itself constitutes a prima facie case of negligence, shifting the burden of proof to the defendant to show they were not negligent. Res Ipsa loquitur.

Kambat 1997

the New York Court of Appeals held that the doctrine of res ipsa loquitur can be applied in a medical malpractice case, particularly when a foreign object is left in a patient's body, and the trial court's failure to instruct the jury on this doctrine constitutes reversible error even when the defendants present conflicting evidence.

For a judge to overrule a jury verdict

the jury’s verdict is so contrary to the evidence that is shocks one’s sense of justice

duty to care toward invitees

must provide reasonably safe premises

duty to care toward licensees

possessor must warn of hidden dangers that he knows about or should know about

duty to care toward trespassers

none, other than to refrain from wanton/willful injuring. duty toward minor age trespassers to not create “attractive nuisances”

dispositive vs probative 

dispositive = resolves a legal dispute on its own. probative = evidence that tends to prove or disprove a fact but does not resolve the entire case. 

Exceptions to the Vaughan v Menlove Objective Standard

1. youth

2. physical disability

3. expertise

4. emergency

Ford Motor Co v. Boomer 2013 VA Supreme Court

he Virginia Supreme Court held that there was sufficient evidence for a jury to find that a defendant’s failure to warn was the proximate cause of a plaintiff's mesothelioma, and the trial court's jury instructions on causation were erroneous. The ruling was based on the principle that a jury could find that an adequate warning would have led the plaintiff to take precautionary measures, even if the plaintiff was not directly warned, as the failure to warn was a substantial contributing factor. 

Summers v. Tice 1948 CA Supreme Court

when multiple parties are negligent and their actions cause a single, indivisible injury, but it is impossible to determine which party caused the harm, the burden shifts to the defendants to prove they were not the cause. If they cannot do so, all are held jointly and severally liable. 

Sindell v. Abbott Labs 1980 CA Supreme Court

when a plaintiff cannot identify a specific manufacturer of a fungible product that caused harm, the defendants can be held liable in proportion to their respective market shares. This "market share liability" allows victims to sue manufacturers of a defective drug even if they cannot identify the exact company, as long as they can prove the defendants produced a substantial share of the product. 

Union Pump Co v. Allbritton 1995 Texas Supreme Court

the rule is that a defendant's negligence is not the legal cause of a plaintiff's injury if the injury was caused by a superseding force that is too remote from the defendant's original negligent act, such as when the immediate danger has passed and the plaintiff is injured by making a choice to take an unsafe path. Legal causation requires the defendant's conduct to be a "substantial factor" in bringing about the harm, not just a "but for" cause that creates a condition for the injury. 

Jolley v. Sutton London Borough Council

A defendant can be liable for negligence if the general nature of the risk and type of harm were foreseeable, even if the specific way the injury occurred was not anticipated. The court ruled that the council should have foreseen that children would meddle with the abandoned boat, and that physical injury would result from their doing so, even though the specific method of injury (the boat collapsing during renovation) was not precisely foreseeable. 

Port Authority of NY and NJ v. Arcadian Corp. 1999

 a manufacturer of a non-defective, raw material or component part is not liable for injuries caused when the product is substantially altered and used for an unforeseeable, criminal purpose by a third party, because the criminal act constitutes a superseding cause that breaks the chain of proximate causation. 

Palsgraf

cardozo: can only be liable for negligence to “foreseeable plaintiffs” not the world at large. About half of jurisdictions adopt, about half adopt Andrews’ dissent: duty to care to the world at large.

Reliable Transfer Co 

the Supreme Court in United States v. Reliable Transfer Co., abandoned the rule of equally divided damages and established that liability for property damage should be allocated proportionally to each party's comparative degree of fault. This means damages are now shared according to how much each party contributed to the incident, rather than being split 50/50 as a matter of course. 

Hunt v. Ohio Dept. of Rehab and correction

a state is liable for negligence if it fails to provide adequate safety instructions and training, even if the injured inmate was also partially negligent, as long as the inmate's negligence was not the greater cause of their injury. According to the case, the state must reduce the inmate's awarded damages by the percentage of the inmate's fault, which was 40% in this case. 

Risk Rule/ Scope of Risk Test

a negligent actor who causes injury satisfies the requirement of proximate causation only when the injury “is a result within the scope of the risks by reason of which the actor is found to be negligent.”

Res Ipsa loquitur

allows some plaintiffs to prevail without evidence of how defendant was careless.

actual cause vs proximate cause

actual = factual cause/cause on fact/but-for cause. proximate = foreseeable/legal cause/scope of liability

concurrent negligence (McDonald)

2 or more defendants acting independently. fault of each is necessary for plaintiff’s injury. Both D’s LIABLE

Alternative causation (Summers)

two defendants acting independently. fault of only one was necessary for plaintiff’s injury but which one is unknown. BOTH D’s liable if one cannot prove he is not at fault.

multiple sufficient causes (Boomer)

when two or more causal agents would, independent of each other, have caused plaintiff’s harm. BOTH D’s LIABLE

superseding cause/intervening actor doctrine

breaks the chain of proximate cause from original defendant. example: D is careless. D’s fault enables a third party to commit an intentional tort. P is injured. D is relieved of liability. 

contributory negligence

only in 4 states today. if plaintiff negligent in any amount, plaintiff cannot recover any damages at all.

comparative fault

replaces contributory negligence in 46 states. damages awarded after deducting percentage of plaintiff’s fault.

modified comparative fault 

in 2/3 of the 46 comparative fault states, if p is 50% (in some states more) at fault, no damages awarded at all. 

strict liability

liability imposed regardless of whether the actor being held liable acted in a manner that the law regards as wrongful or deficient.

Liability without fault

1. conduct that interferes with a person’s interest in the possession, use, or enjoyment of land or personal possessions OR

2. “abnormally dangerous” activities, in particular the use of explosives and the keeping of wild animals OR

3. the manufacture, design, and sale of defective products by manufacturers and certain other commercial actors.

NY Central RR Co 1917

compulsory, no-fault workers' compensation laws are a valid exercise of state police power and do not violate the Due Process Clause of the Fourteenth Amendment. Strict liability for workplace injuries.

Greenman v. Yuba Power Prods

A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being. 

Products Liability Prima Facie Case

1. P has suffered an injury

2. D sold a product

3. D is a commercial seller of such products

4. At the time it was sold by D, the product was in a defective condition

5. the defect functioned as an actual and proximate cause of P’s injury

Exceptions to Products Liability

1. real property

2. human body parts

3. live animals

4. textual material

5. intangibles (electricity, x-rays etc.)

6. Used products

7. Certain things under certain statutes

Can retailers who sold a defective product be sued for products liability? 

Yes. Not just the manufacturers. 

Are all sellers liable for products liability?

No. If you sell someone a new car privately and you aren’t in the car sales business, and there’s a design problem with it (you never used it), you aren’t liable. you have to be “in the business of.”

Does the fact that a product was resold prior to causing an injury defeat liability under common law? 

No, though certain products benefit from certain statutes. 

Do services qualify for products liability?

No. Example: you cannot sue for products liability for a bad jaw implant.

manufacturing defect

divergence from the manufacturer’s own specifications for the product 

design defect

there is a flaw in the plan or specifications for the product

Failure to warn defect

when safety requires that the product be sold with a warning but the product is sold without a warning (or without an ADEQUATE warning).

Gower v. Savage Arms 2001

Doctrine of “Successor Liability.” A successor corporation may be held liable for the predecessor corporation’s torts. a successor corporation may be held strictly liable for injuries caused by a predecessor's defective product under the product-line exception if it acquires all or substantially all of the predecessor's manufacturing assets and continues the same product line.