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A doctrine of respondeat superior

Rule: Claim for NIED requires 4 elements

1) death or serious physical harm of another caused by D’s negligence

2) intimate relationship between the injured and the P

3) observation of the harm at the scene of the accident in “real time”

4) resulting severe distress.

• Key here is witnessing the event at the scene, in real time. #3.

A) Mistake:

If you mistakenly think someone was injured or dead, you probably will not recover.

B) However, is some states the test is reasonability.

C) Limits: Some states limit recovery to only those in the “Zone of Danger”

Bovsun v. Sanperi (New York).

Portee v Jaffee (1980): mom witnesses her kid stuck in an elevator shaft. Kid is crying and screaming the whole time and the mom is there. Kid dies. Mom sues. She wins.

Johnson v Jamaica Hospital: baby is abducted from hospital and is missing for four and a half months. Parents sue for NIED. Lose. Duty is only to child, not the parents. Can’t sue for negligence if there is no duty.

Policy: Can’t allow open-ended suits by all family members. If harm is direct, no need to apply by-stander test.

V. Causation: must show actual and proximate cause

I. Cause in Fact: “but-for test”

A) Reasonable Certainty Problem (usually only in toxic harm cases):

Rule: if two or more causes exist, one of which D is liable for, P must establish with reasonable certainty that D actually caused the harm but is not required to eliminate all the other possibilities.

Stubbs v Rochester: Holly water is supposed to be used for fires. Through D’s negligence, Holly water contaminates Hemlock water. Stubbs and a bunch of others get sick. Court struggles with the reasonable certainty of cause but says it’s for a jury to decide. Award of nonsuit reversed.

B) Substantial factor: arises when it’s difficult to determine if D is a “but for” cause

a) 3 prong test:1) D’s actions was a “but for” cause of the injury

2) negligence was causually linked to the harm

3) D’s action or omission was proximately linked to injury

b) Rule: if your negligent conduct increases a risk of injury and that injury actually does occur, you are the cause. You then have the burden to show you weren’t the cause.

Zuchowicz v United States: P gets double dose of Danocrine for one month. She gets sick later and dies. There were other complicating factors (pregnancy, lung transplant). Court holds that there was causation.

C) Expert testimony: comes up in Zuchowicz. Daubert sets up the trial court judge as gatekeeper of admissibility. Must follow 4-prong test that applies to all technical experts.

1) whether theory has been testing according to scientific method

2) whether theory has been subjected to peer review.

3) for a particularly theory, the known rate of error

4) whether the theory is generally accepted.

D) Lost Chance Recovery: Alberts: claim that the negligent care given by a health care provider reduced the chance of avoiding the injury actually sustained.

• Same 4 elements of negligence tort are required.

• Reward is for the loss of chance, not the injury itself.

• Evidence must be presented showing that the harm P originally sought treatment for was in fact made worse by loss of chance.

• Need to show causal link btw. docs actions and the loss.

• Doc may not be liable for the actual injury, but can be liable for the loss of chance. Damage= (% of chance lost) * (total value of life or limb).

II. Joint and Several Liability:

A) Definition: two defendants are engaged in conduct resulting in a single, indivisible harm to another.

B) Liablity: Both liable for the harm caused.

• P may go after each one separately or together to collect the full extent of damages.

C) Policy:

• Unfair b/c if one party is insolvent the other can be forced to pay the whole thing.

• But we’d rather screw a D over then let a P go under compensated.

• Also, all D’s were the “but for” cause, so it’s not unreasonable

• Some states (CA), allow only for J&S liability of non-economic damages

D) Joint Tortfeasors:

1) acting in concert/together (drag racers)

2) Independent acts causing some injury (Summers)

3) Vicarious liability

E) Splitting of liability:

1. Generally, if multiple defendants are joint and severally liable, they split the damages equally. D1 can collect from D2 if P gets all the money from D1.

2. Partial fault: Some states allow for defendants to split up liability by percentage of fault ==> modern view.

F) Absence of “but for” cause:

Summers v Tice: both D’s shoot in the direction of P. Not sure which bullet caused the big injury. Both are negligent so we hold them both liabile.

1. Policy:

(a) more unfair to not reward P b/c two guys can cover for each other.

(b) Instead, we can pit both D’s against each other to get the truth.

(c) Example of courts struggle with cause uncertainty.

(d) Courts impart a “substantial factor” test when “but-for” test would get both D’s off b/c neither is a “but-for” cause. Example of courts bending the rules to reward a P they think is worthy.

G) Toxic Harms: where the actual D is unknowable, courts have adopted a market share approach out of fairness to P.

Hymowitz v Eli Lilly (1989): P’s are injured by the drug DES while they were pregnant. 300 companies make the drug though, and most of the pills are identical. All normal forms of imposing liability fail.

1. Alternative liability is in place when there are a small number of D’s who know what really happened and we want to flush out the truth.

2. Also, no concerted action b/c parallel activity is not enough. Again, need to bend rules to do justice. How do we split up liability?

Policy: So, we use market share approach. Over the long run it will be fair. We prefer local market share, but it was tough here.

 this opens up litigation by breaking away from the causal chain.

Dissent: A company who made a non-identical pill should be let out of this, however.

II. Proximate Cause: policy measure used to put limits on the but-for test

Rule: Whether the D should have reasonably foreseen as a risk of his conduct the general consequences or a type of harm suffered by P.

 If you foresee result, you’re still on the hook. Manner not important.

• Foreseeability is the standard when the type of harm suffered by P is different than what D intended.

• Foreseeability is not an issue when the extent of injury is in question (eggshell P)

A) Exceptions:

1. Unexpected Harm – direct cause vs. foreseeable consequences

a) Eggshell plaintiff rule:

A tortfeasor whose act, superimposed upon a prior latent condition, results in an injury, may be liable for the whole injury. The rule deems the injury, not the dormant condition, the cause of P’s harm. It’s foreseeable that you would cause harm, even if it’s not to the extent expected.

b) secondary harm:

By in large, we hold the initial tortfeasor responsible for whatever happens.

Polemis said we should look at whether action was “direct cause”.

Wagon Mound says to replace this with foreseeability. You will only be liable for the harm caused by a second party if that harm was foreseeable.

2. Unexpected Manner

Rule: If the harm occurs in an unexpected manner, D is more likely to get off the hook. But this is still an exception to being responsible for only what’s foreseeable.

McLaughlin: Heat Blocks Case where nurse on the scene of accident applied the heat blocks without covers even the box had clear warnings about the danger. Company also trained the cops on how to use them

Court holds for D. D not the proximate cause and it was not foreseeable. Superceding negligence was so gross. If D could have foreseen what would happen, a 3rd party could not supercede.

Palsgraf: Workers try to help guy onto train. Package falls. Turns out package was full of explosives and it blows up, tips a scale, injuring the P on the other side of the platform.

Cardozo: duty extends only to foreseeable consequences. If no hazard is apparent to the eye of ordinary vigilance, an act innocent and harmless does not become a tort because it happened to be wrong with reference to someone else. The conduct in relation to D's guard was wrong in relation to the man carrying the parcel. However, it was not wrong in relation to P standing far away.

Andrews (dissent) : P owes a duty to the world. So take out the duty perspective and just look at cause.

Rules: today, generally courts use foreseeability to put limits on proximate cause. You can be the proximate cause of something, but if it wasn’t if the injury wasn’t foreseeable (except for the exceptions above) you are off the hook.


A) Direct causation: If D is the direct cause of the harm, he will likely be deemed the proximate cause of most foreseeable results.

(1) Exceptions:

(a) public policy concerns

(b) unforeseeable results (but not extent of injury)

B) Indirect Causation: question of nature of intervening act.

(1) Dependant Intervening Forces

1. Doctor Treatment: negligence of doc is foreseeable

2. Rescue Forces: negligence of rescuers is foreseeable

3. Escape Forces: aggravated injuries due to escape is foreseeable

Rule: for dependant intervening forces, default is set against the D and he’s responsible for foreseeable responses (defined liberally)

(2) Independent Intervening Forces: operates just b/c D put the V somewhere

Rule: D still liable for foreseeable results.


1. Intention torts

2. Crimes

3. Unforeseeable forces

VI. Defenses – P’s fault or assumption of risk

1. Contributory Negligence

• Definition: P’s conduct below standard of care expected for his own protection, and is a legally contributing cause, cooperating with D’s conduct, to bring about the harm. Same level of care requirement exists, and so does the proximate cause requirement.

3 limitations

1. not a defense against intentional or reckless conduct

2. can be a defense for “negligence per se,” but not if D violated a statute designed to protect certain people (child labor, liquor sales)

3. Last clear chance: if D, after P acted contributorily negligently, has a last chance to prevent the harm but does not, D can’t use contributory negligence defense.

Policy: in days of strict cont. neg., this allowed us to get around harsh results.

2. Comparative Negligence  Adopted by 46 states

• Definition: divides liability between P and D based on their relative degrees of fault.

1) pure: P can collect no matter what his level of fault

2) modified: sets a maximum fault level for P to allow him to recover. Either 50% or 51%

Pure used in most common law states b/c setting a threshold would have been arbitrary. Modified usually based on statutes, which can be arbitrary.

• with more than one D, most states say P’s neg. has to be less than any of them, but a few say it just has to be less than the aggregate.

Odds and Ends

set-offs: usually not allowed b/c insurance companies would get the windfall.

doctor negligence: can be imputed back to the original defendant

avoidable consequences: P can a duty to mitigate and if he fails we are not going to hold D’s responsible for the consequence. i.e.: guy gets asbestosis. Doc tells him to quit smoking. He doesn’t, and gets lung cancer ten years later. D that exposed him to asbestos can get off the hook.

 Religious beliefs to not relieve you of a duty to mitigate.

 states handle seat belts differently. Most that mandate their use bar D’s from making mitigation argument. Others allow it but give D the burden to show the difference in harm that would have resulted had P been wearing it.

Fritts v McKinne: guy gets really screwed up in accident. Doc screwed him up even worse. Doc tries to claim patient was negligent b/c if he hadn’t been negligent he wouldn’t have gotten hurt.

Rule: doesn’t matter how P’s get into your care, you’re still responsible for your neg.

What about multiple defendants?

• If all parties are before court, can be easily rationed.

• If some defendants are insolvent, things get tricky. Some states abolish joint and several liability for multiple defendants so each defendant only responsible for his own. Some make all the D’s cover the cost of the missing D. Some states include the responsible P in the splitting.

2. Assumption of Risk

Rule: traditionally if P assumes risk, even if D is negligent he’s barred from recovery. Some states now use it as part of comparative negligence. Others keep it a separate, absolute defense.

Exceptions: public policy concerns (Dalury), hidden dangers, history of injuries

3 components…

1. P must know of risk

2. voluntarily

3. assume the risk

I. Express Assumption: P explicity agrees (usually by signing) to accept risk.

 Not always upheld if

1) Public policy concerns if D has exceptional bargaining power

2) there is no competition

3) it will diminish incentives for D’s to maintain safe property

4) D not protected for gross negligence or beyond.

Dalury v S-K-I-: ski resort forced patron to sign a waiver. P then hurt through (questionable) negligence of D. D says it was there private land and they can set rules. Also, recreation isn’t an essential public service. Court says their land became quasi-public. Also, want incentives for safety since D in best position to provide for safety.

II. Implied Assumption: P assumes the risk through his conduct. Must be voluntary and must be aware of the risk. Subjective – “should have known of risk” is not enough. “Voluntarily” is also very strictly construed.

2 types:

1) primary: assume risks inherent in an activity. Also, D has no original duty to protect P. This goes more to whether there was actually negligence on the part of D. Gets really tricky with sports b/c we don’t want to chill. Is violating a rule considered a tort? No. Standard should just be negligence. But give a little leeway. OK to uphold actions if they won’t deter rigorous participation.

Murphy v Steeplechase: guy rides the “flopper” after watching people get flopped. D not liable b/c getting tossed was the whole point of the ride and P knew it.

2) secondary: knowingly encounter and ignore a risk created by D’s neg. This is a true defense b/c D’s negligence in shown. D had a duty and breached it.

Davenport: P injured on stairs. 3 possible stairs he can take. He knows light is broken on one but uses it anyway. So D was neg, but P assumed it. Court says we should incorporate this into comparative neg. D’s fault doesn’t disappear b/c P was negligent. No reason to let D off the hook if he’s 50% responsible.

Rule: in states that have comparative negligence, secondary assumption in usually merged into C.N. Primary assumption remains a separate and absolute defense.

VII. Strict Liability – In general

Definition: Liability without Fault. No need to show negligence on the part of D.

3 types:

1) damage or injury caused by animals owned or possessed by D

2) abnormally dangerous activities

3) strict products liability

A) History of S.L. in “Abnormally Dangerous” activites

Rule: a person is held strictly liable for accidents resulting from an “abnormally dangerous activity” even if they acted with reasonable care.

• Problem: we want to encourage business development but S.L. can chill it.

Rylands v Fletcher (1868): D builds reservoir on property and it leaks onto P’s property. D was not negligent in building the reservoir but is held strictly liable.

Rule: when you bring something unnatural onto your land you are responsible for its natural consequences. Your neighbors don’t assume any risk just by living in their houses. Liability only extends to neighboring houses though.

B) SL: in the United States

1) Losee v. Buchanan (1873): industrial society requires dangerous machines to thrive. So all citizens assume a little responsibility. Also, explosion of the steam boiler was an accident.

Rules: • Our rights are not absolute, they are relative to promoting general welfare.

Liability is also limited to risks that were foreseeable.

Foster: A D that was blasting things caused some minks on a farm a few miles away to kill other minks. This result was too remote to collect on. Same goes for the shaking of the earth causing injury. Here, there would need to be negligence to collect.

2) Sullivan v Dunham (1900): tree blown up on someone’s land and a piece of wood hits someone 400 feet away on a highway. No negligence on the part of D. Still held liable.

Rule: • we look at the context of the actions and their needs to be a balance test.

When rights conflict, the right of a landowner to be undisturbed outweighs

the right of another landowner to use his property however he wants.

• “The safety of property generally is superior to the right of a particular use of property”

C) Modern View:

1) Six prong test from Restatement § 520 to determine if an activity is “abnormally dangerous” and thus subject to strict liability.

1. Inability to limit the risk of accident through due care  if negligence is enough b/c hazards can be avoided through due care, no reason to go beyond that.

2. Activity was inappropriate for the place it occurred  again, this would be an easy way to eliminate risk w/out imposing strict liability.

3. Value to community of the activity does not outweigh its risks.

4. Probability of harm is great

5. High costs of harm associated with the injury

6. Activity is not so common that presume it’s valuable beyond its risks.

Indiana Harbor Belt RR: Posner says we want to encourage actors to work on 1,2 and 3 and if we impose strict liability we given them no incentive b/c they’ll be screwed anyway. In this case, a railcar leaked a dangerous substance. Accident could have been avoided through due care, so there’s no need to impose S.L.


 If X stores explosives, and they blow up, X is SL. But if X stores explosives, and they leak chemicals into the soil, he’s only guilty if he’s negligent.

D) Theories behind S.L.

1. Moral:

a) non-reciprocal risks: only one party is posing the risk to the innocent other party and they should be strictly liable. A party that benefits and injures another should have to pay.  Example: an aircraft that falls on your property.

b) causal: A caused B harm. Only fair that A should pay.

2. Economic:

a) deterrence: w/ S.L., people engaged in abnormally dangerous activities will exercise utmost care.

(i) Problems:

1) contradiction: can’t deter people from doing something they didn’t mean to do 2) might possibly over-deter.

b) costs: it’s cheaper for the actors to provide safety then it is for all possible P’s to protect themselves against potential harms.

c) risk spreading: losses are better spread broadly through market mechanisms to the entire enterprise responsible.

VIII. Products Liability: A defect causes harm.

Four types:

1. Negligence

2. Warranty

3. Strict Liability

4. Misrepresentation

 Consider all four in a products liability claim.

I. Privity and Negligence

Rule #1: manufacturers of a product are now liable for injuries proximately caused by their negligence. Historically, P had to show he contracted directly with D, but Cardozo in MacPherson v Buick (1916) got rid of this.

Rule #2: manufacturers can be liable for all foreseeable harms caused by their product.

Rule #3: negligence on the part of the dealer will not supercede the negligence of the manufacturer (dealer’s failure is considered a foreseeable intervening force). However, if the dealer knows of the danger and sells it anyway, this supercedes.

MacPherson: wheel is defective on a Buick car and causes injury to P. P tries to sue Buick even though he actually bought the car from a dealer. Privity used to not apply to inherently dangerous products. Now it’s no longer needed for anything

3 points:

1. privity no longer important

2. manufacturer of a finished product is responsible for all of its components

3. M now has a duty to test products before putting them on the market

(assembler may be liable even if defect could not be discovered)

 some would call this a triumph of torts over contract.

NOTE: try to get a manufacturer for an intentional tort of battery if possible!!!

Exam Tip

Different rules of liability apply to different members in the supply chain

• An assembler can be held liable for the negligence of a supplier, even if the assembler could not have discovered the defect with reasonable inspection

• A dealer (middleman) usually will not be liable for defects unless it has reason to know of them (i.e. goods were not purchased from a reliable source, M did not label the product, prior customers have complained about the product)

• Although a M generally remains liable for a dealer’s negligence in selling defective goods, if the dealer actually knows about the defect and sells the good anyway, we let the M off the hook b/c this is a superceding negligent act.

II. Beginnings of Strict Product Liability