I.                     Intentionally Inflicted Harm: The Prima Facie Case and Defenses

A.      Physical Harms

1.        Battery and Consent

a.        Elements of battery

                                                                                                                                       i.      Lack of consent

1.        scope of consent is what is important

                                                                                                                                      ii.      Intention to touch

1.        The pl must show the intention was unlawful – if act is unlawful then def is at fault

2.        Intention of acts indicates liability – not the intention of harm

3.        most courts could say the intent to be offensive or to do harm is not as important as the intent to act

                                                                                                                                    iii.      Touching is present (this differentiates battery from other torts)

1.        touching may intent to harm or to be offensive in order to be battery

2.        touching something connected to another person

a.        Touching a house with someone inside is not battery – not sufficiently connected to house

b.       Contact with cigarette smoke is sufficient touching

b.       Examples

                                                                                                                                       i.      Vosburg

1.        second restatement uses to define offensive touching

2.        intended to touch although no intent to harm

                                                                                                                                      ii.      Trespass to land – same elements (except touching replaced by entrance to land) – Talmage v Smith

1.        Boys trespassed – did not intent to ignite house on fire

2.        Does not matter, still had intent to trespass

                                                                                                                                   iii.      Mohr v Williams

1.        operated on wrong ear

2.        gave consent for operation but not what the dr did

3.        consented only to specific operation and therefore scope of given consent not present

                                                                                                                                    iv.      O’Brien v Cunard Steamship Co

1.        outward appearances indicate consent

2.        stood in line and gave arm for a shot although did not want it in her mind

3.        This is an objective test – reasonable person

                                                                                                                                      v.      Hudson v Craft

1.        promoter of a fight liable for injuries

2.        majority rule: consent is irrelevant

3.        Minority rule: (restatement) consent to fight then no battery

a.        EXCEPTION: consent not present when trying to protect a person from own decisions (this is the same as majority rule but narrower)

                                                                                                                                    vi.      Sports – three approaches

1.        Rules of the game – promotes safety

2.        general customs – includes rules and normal conduct outside the rules that are expected

3.        reckless conduct – acting in a reckless, willful, or wanton manner

4.        no legal redress – simplest rule to enforce

                                                                                                                                  vii.      Seals v Snow

1.        the person responsible for the loss should be liable

c.        Policies

                                                                                                                                       i.      Autonomy: people are allowed to make their own decision about their own bodies

                                                                                                                                      ii.      Two reasons for autonomy

1.        UTILITARIAN: an individual will make better decisions about self than another person

a.        Exceptions easily made

2.        RIGHTS: people want to make own decisions even if irrational, it is their right

3.        Neither reason depends on a better decision being made

                                                                                                                                    iii.      Autonomy is a value but is NOT absolute

                                                                                                                                    iv.      Autonomy is respect for a choice, not the body

d.        Exceptions

                                                                                                                                       i.      Autonomy not absolute – examples of exceptions

1.        objective and not subjective test

a.        subjective will be used sometimes

2.        emergency rule – what a reasonable person would agree to

3.        substituted judgment rule – relative’s consent

                                                                                                                                      ii.      Subjective test (good faith) may be used by some courts – why hard to apply

1.        hard to plan behavior

2.        fairness to the def – has nothing to base actions on

3.        harder to apply than objective (reasonable belief) standard

2.        Nonconsensual Defenses

a.        Insanity

                                                                                                                                       i.      Since there is not a social condemnation there is wider latitude in torts than criminal

                                                                                                                                     ii.      McGuire

1.        although insane, still intended to commit act

2.        fault is not a prerequisite to liability

                                                                                                                                    iii.      reasons for not using as a defense

1.        makes relatives more watchful of an insane person

2.        if the insane person has money they should have to pay

                                                                                                                                    iv.      NOCOURT WILL ACCEPT AS A DEFENSE

b.        Self-Defense

                                                                                                                                       i.      Right to self-defense against any unwanted touching – even if the defendant was not actually attacking you as long as you reasonably thought he was (Courvosier)

                                                                                                                                      ii.      One has a right of self-defense even though one is not in great bodily harm and does not think in danger of great bodily harm

                                                                                                                                    iii.      Do have to have the belief of imminent harm

                                                                                                                                    iv.      PROPORTIONALITY RULE

1.        self-defense must be of equal force

2.        respond to ordinary force with ordinary force

a.        if you respond to ordinary force with serious force then aggressor gets right of self-defense back

                                                                                                                                     v.      Why have the self-defense rule

1.        This may be a good way to deter aggressors – know will be liable

2.        individualism: people should have the right to stand their ground

                                                                                                                                    vi.      EXCEPTIONS

1.        Some courts say that you have to retreat

a.        Most courts in north and east say this

2.        Some courts say you can stand ground even if course to retreat exists

a.        Most courts in south and west say this

3.        Another aspect – can stand ground on own property but not when property not yours

4.        if you are the aggressor – no right to self-defense

                                                                                                                                  vii.      Third Party

1.        Allowed to defend third party in the same manner as you defend self (restatement)

2.        RULE: person has a right to defend another to the extent that the person could defend self

3.        Some courts will allow this defense if you had a mistaken belief the person was in harm while other courts will not

c.        Defense of Property

                                                                                                                                       i.      Have a right to use ordinary force in protection of property but not serious force

                                                                                                                                      ii.      What ordinary force is depends on the extent of the interference with property

                                                                                                                                    iii.      Ask to leave first if possible that it will work

                                                                                                                                    iv.      Katko: cannot use spring gun just to protect property

d.        Recapture of Chattels

                                                                                                                                       i.      must be in hot pursuit

                                                                                                                                      ii.      recapture is when a person has your property; reasonable cause is when they do not have property but reasonably believe they do

                                                                                                                                    iii.      Courts will say it is better to go through normal channels than use self help to get your property back

                                                                                                                                    iv.      Why allow this

1.        More efficient

2.        Pl more likely to be law abiding

3.        Cannot use the next day – efficiency is lacking

e.        Necessity

                                                                                                                                       i.      If necessary then no liability

                                                                                                                                      ii.      The idea is in relation to costs and benefits – costs are small compared to the benefit derived from necessity

                                                                                                                                   iii.      Ploof v Putnam

1.        ok to moor boat to dock during a storm to prevent loss of lives and property

2.        necessity of storm creates a defense against damage done to dock

                                                                                                                                    iv.      Vincent – made to pay for damages to dock – two reasons

1.        fair to make him pay

2.        leads to better decisions concerning benefits v costs

a.        if strictly based on this then no difference bt life and property values

B.       Emotional and Dignitary Harms

1.       Assault

a.        Harm in assault does not have to be touching (touching is battery)

b.       Two elements according to restatement

                                                                                                                                       i.      Either the actor intends to cause a harmful or offensive contact OR an imminent apprehension of such a contact; AND

                                                                                                                                      ii.      The other is thereby put in such imminent apprehension

c.        It is not necessary that the other believe that the act done will be effective in inflicting the intended contact – enough that he believes that the act is capable of immediately inflicting the contact upon him

d.       If you make a threat and a person complies bc of the threat, then an assault

e.        Must be imminent (immediate)

f.         Idle threats in the course of an argument may not satisfy assault bc there must be an intent to harm

2.       Offensive Battery

a.        Pl has to show battery and intent to cause harmful or offensive touching

b.       Must be intent of the touch to be offensive

                                                                                                                                       i.      Some courts say this intent is needed whereas other courts say just intent to touch is ok

                                                                                                                                      ii.      Offensive touching can never be consented to

3.       False Imprisonment

a.        Elements

                                                                                                                                       i.      Imprisonment (confinement) – no reasonable means of escape

                                                                                                                                      ii.      Intent to confine the pl

b.       Bird v Jones

                                                                                                                                       i.      No imprisonment bc pl could go in another direction

                                                                                                                                      ii.      Being confined in a city might be a prison, but exclusion from the whole world is too big to be imprisonment

c.        Whittaker v Sandford

                                                                                                                                       i.      Boundaries can move and still be imprisoned

                                                                                                                                      ii.      This case, the pl was on a yacht

                                                                                                                                    iii.      If guards are used then a locked door or a fence is not needed

d.       Coblyn

                                                                                                                                       i.      Elderly man confined bc of obligation

                                                                                                                                      ii.      Touching does not make a decision to imprisonment one way or another – important fact but not decisive

e.        Typical damages are emotional distress

f.         Knowledge of imprisonment

                                                                                                                                       i.      Some courts say you must know that you are imprisoned while others do not require knowledge

                                                                                                                                      ii.      The better view is that knowledge is not needed

g.       Defenses

                                                                                                                                       i.      Consent

1.        if element then the pl must prove

2.        if defense then def must prove

                                                                                                                                      ii.      self-defense

1.        only good as long as necessary to escape harm- then person must be released

                                                                                                                                    iii.      children are capable of being imprisoned by those in care of them and parents

                                                                                                                                    iv.      consent can be revoked but must allow a reasonable time frame

1.        Herd – employees revoked consent in mine – have to give employer time to get out

                                                                                                                                     v.      Merchants – owner entitled to imprisonment on

1.        reasonable grounds, reasonable manner, for a reasonable length of time

2.        standards

a.        objective – typical

                                                                                                                                                                                                               i.      this is a middle ground bt the two standards below

b.       some statutes would say the owner wins if good faith belief (subjective)

                                                                                                                                                                                                               i.      gives owner more power

c.        some statutes say that owner wins only if a theft took place

                                                                                                                                                                                                               i.      autonomy – keeps people from being accosted at stores

4.        Intentional Infliction of Emotional Distress: Extreme and Outrageous Conduct

a.        Elements

                                                                                                                                       i.      Extreme conduct

1.        this is the most important element

2.        the best guide of what is extreme is that it would lead a reasonable person to exclaim outrageous

                                                                                                                                      ii.      Performed intentionally or recklessly

1.        must know the action will result in a specific way

                                                                                                                                    iii.      Causing severe emotional distress

b.       The extreme and outrageous character of the conduct may arise from the actor’s knowledge that the other is peculiarly susceptible to emotional distress

c.        Why have this rule

                                                                                                                                       i.      Not personal safety bc there is no touching or imminent threat

                                                                                                                                      ii.      This rule is protect emotional well being, tranquility, and peace of mind

d.       This tort takes away individual liberty – can commit a tort wo even coming close to a person or property

                                                                                                                                       i.      Court tries to balance liberty from severe harm that comes from absolute liberty

II.                   Strict Liability and Negligence: Historic and Analytic Foundations

A.      Strict Liability and Negligence in the Last Half of the 19th Century

1.       Holmes

a.        Emphasized the notion that legal rule should be based on policy justification

b.       Negligence or strict liability should be based on policy

2.        strict liability introduced a long time ago and no longer applicable to modern society – to have progress, must have negligence rule

3.        UTILITARIAN ARGUMENT: justification for negligence rule and liability is progress toward civilized society, benefits all men

a.        Increases everyone’s happiness and general welfare

b.       If benefits exceed costs, use it; if not, don’t use it

c.        Strict liability: one makes a choice to act

4.         FAIRNESS ARGUMENT: it is just to compensate the one harmed

5.         FREEDOM OF ACTION: choices with concealed consequences make the consequences no choice – not fair to hold liable where no free choice

III.                 Negligence Issue

A.      The Reasonable Person

1.        Objective test: it is not totally objective, but starts off with presumption of an objective test but there are exceptions

a.        Insanity is not an exception unless sudden

b.       Elderly is not an exception generally

c.        Low IQ is not an exception generally – be able to argue that it is

2.        Exceptions

a.        General Knowledge: If an actor has knowledge or skills that exceed others, that will be taken into account

b.       Insanity: a sudden onset may be an exception – NOT when there is a gradual building up of delusions

c.        Children: age and maturity level will be taken into account but the standard will be with regard to the age and not a truly subjective test

                                                                                                                                       i.      Need this exception to allow children to integrate into the community

                                                                                                                                      ii.      Not fair to hold someone liable for something that cannot be helped

                                                                                                                                    iii.      This only applies to non-adult activities

1.        Example: Daniels v. Evans – does not get a special instruction when negligent with regard to operating a motorcycle

2.        The more dangerous the activity, the more likely it is viewed as being an adult activity

d.       Disabled: take reasonable precautions based on specific disability (not truly subjective) – not required to do everything available for disability, but what is reasonable

3.        Sudden Emergency Instruction: not necessary according to Lyons v. Midnight Sun Transportation – leads to confusion bc already considering that a person must act reasonable within the context of the situation

B.       Calculus of Risk

1.        Hand Formula

a.        There is negligence when the cost to avoid is less than the harm times the probability

b.       B (precaution/burden) < P (probability) times L (loss)

c.        Does not consider moral obligations but only economics – if it is cheaper to take a precaution, then it must be taken

d.       Premises

                                                                                                                                       i.      People will act in their own self-interest

                                                                                                                                      ii.      People are rational and will do basic arithmetic

2.        Terry

a.        Five factors that go into negligence

                                                                                                                                       i.      The magnitude of the risk – the more likely to be unreasonable, the riskier

                                                                                                                                      ii.      The value or importance of that which is exposed to the risk (principal object) – the reasonableness of a risk means its reasonableness with respect to the principal object

                                                                                                                                    iii.      Collateral object – a person who takes a risk of injuring the principal object usually does so because he has some reason of his own for such conduct (pursuing some object of his own)

                                                                                                                                    iv.      Probability that the collateral object will be attained by the conduct which involves risk to the principal; the utility of the risk

                                                                                                                                     v.      The probability that the collateral object would not have been attained wo taking the risk; the necessity of the risk

b.       With regard to the Hand formula

                                                                                                                                       i.      Magnitude: P

                                                                                                                                      ii.      Principal Object: L

                                                                                                                                    iii.      Factors 3-5: B

C.       Custom

1.        Customs do not make laws

2.        Three approaches

a.        Test of negligence is custom (Titus: different gauge railroad cars lead to injury, court says customary risk in job)

b.       Custom is not the test, but is relevant and can be entered into evidence (Hooper: tug boat not equipped with radio; Klein: slipped in shower and injured by glass door)

c.        Custom not even allowed as evidence (Mayhew: hole at bottom of shaft in platform, did not inform plaintiff of the hole)

3.        Which approach is better

a.        If wanting to maximize utility according to Hand formula – use the Hooper/Klein approach

b.       If using the Titus approach, then will not take precaution even if cheaper bc will not be negligent if according to custom

                                                                                                                                       i.      May be a strong argument in the context of a consensual relationship – make a contract regarding what is expected of each party

c.        Titus is the rule most commonly followed – Hooper  is the majority rule

4.        Private rules of conduct: goes against the def – pl can use internal safety rules to pl advantage if they are not followed

5.        Medical context - Negligence

a.        Look at custom and a national standard of care

                                                                                                                                       i.      This is an exception bc it is a highly technical area

1.        Also applies to accountants, engineers, and architects

2.        Although something like a car manufacturer is technical, still an objective test bc people understand this type of thing

                                                                                                                                      ii.      As long as the doctor follows standard of practice and carries it out correctly, should win suit

                                                                                                                                    iii.      Problem develops when there is no set standard

                                                                                                                                    iv.      Theory is that professional groups will take public interest into account when deciding on standards

b.       Issues regarding medical negligence

                                                                                                                                       i.      Identification of problems – diagnosis

                                                                                                                                      ii.      Choice of treatment

                                                                                                                                    iii.      Implementation of the treatment

c.        Normally have to have testimony establishing a link bt what was done wrong and the outcome

d.       Second school of thought

                                                                                                                                       i.      Must show there is a respectful minority which follows that practice

                                                                                                                                      ii.      Two ways to determine

1.        Quantitative – number of those following this course (most commonly used)

2.        Qualitative – those following it are experts

e.        Locality v. National Standard

                                                                                                                                       i.      Move away from locality rule (what is standard in a specific area) and towards a national rule

                                                                                                                                      ii.      Move attributed to increased communications, better training, technology, etc.

                                                                                                                                    iii.      Some people may still rely on old locality rules

                                                                                                                                    iv.      Move to national standard makes testifying easier/better

1.        if locality rule – then only local doctors could testify and might lean towards def side

2.        standards of testimony is similar qualifications (specialist v. general; board certified v. non-certified)

6.        Medical Context – Informed Consent

a.        Different from medical negligence – could do everything right, but if patient not informed of risks, could be negligent

b.       Must inform risks that could affect the patient’s decision regarding treatment

c.        Must inform patients of benefits

d.       Material Risks

                                                                                                                                       i.      Some risks matter while others are too nominal to be concerned with – the line is fuzzy as to which is which

1.        probability of risk

2.        seriousness of risk

                                                                                                                                      ii.      Do not need to inform risks that are commonly known

e.        Uses reasonable person to determine if risk should be communicated (Canterbury v. Spence)

                                                                                                                                       i.      Not completely subjective (would lead to suits) or objective (doctor would have to know mind of patient) test – in between

                                                                                                                                      ii.      Consider the reasonableness of what the doctor knows regarding a patient

1.        If a treatment is needed and patient is afraid of something that has a small chance of happening, may be in patient’s best interest not to disclose

2.        Doctor not required to read mind of patient

3.        If subjective, then people might sue if does not turn out as they wanted or planned

                                                                                                                                    iii.      Have to show causation

1.        If a life-threatening situation, then would have consented anyway (transfusion v. AIDS where boy would die if not treated)

f.         Could have battery if no consent given at all

g.       Exceptions

                                                                                                                                       i.      Emergency rule: person is unconscious and no relatives around to consent

                                                                                                                                      ii.      Psychology of patient: risk would severely upset patient

                                                                                                                                    iii.      Some courts do not follow Canterbury approach (such as the English)

1.        English view is that if duty to disclose put on doctor, will undermine trust in doctors, lead to more negligence complaints, and leas to more defensive medicine (better off with custom approach)

h.       Rationale

                                                                                                                                       i.      AUTONOMY: have a right to determine what happens to your own body

1.        True consent is informed consent – cannot consent unless risks are known

                                                                                                                                      ii.      UTILITARIAN: doctor is cheapest and best source of information

D.      Statutes and Regulations

1.        Violation of a statute, regulation, or ordinance is negligence

a.        Violation of a statute is strongest (law enacted by Congress or the state legislature)

b.       A regulation is a rule enacted by an administrative agency (for example, OSHA)

c.        An ordinance is a rule enacted by local legislature (for example, Athens-Clarke County)

2.        Violation of a statute is negligence per se

a.        Statute may count in two ways

                                                                                                                                       i.      As evidence for the jury to consider

                                                                                                                                      ii.      Negligence established by statute and is taken from the jury

b.       Often the statute is quiet as to if a violation establishes negligence

c.        Example: Osborne v. McMasters

                                                                                                                                       i.      Did not label a poison correctly which violated a statute

                                                                                                                                      ii.      Violation establishes negligence

3.       Justifications

a.        Arguments that are weak

                                                                                                                                       i.      A person who violates the law is not reasonable and therefore negligent (Thayer’s argument)

                                                                                                                                      ii.      Intent of the legislature to use the statute this way

                                                                                                                                    iii.      Allowing statutes is a good way of enforcing the statute

                                                                                                                                    iv.      Makes concrete standards

b.       When to apply the statute

                                                                                                                                       i.      When the statute is made to protect a member of the society to keep safe from this type of harm

                                                                                                                                      ii.      When the statute is not meant for safety, this reasoning falls apart – depends on the reason for the statute

4.        Even if a violation of the statute does not constitute negligence, there may be other grounds

5.        General theme – two ways to read this

a.        If there is an excuse for violating for safety reasons (hiker freezing in the woods)

b.       If legislature meant to put common law exception in when the safety is better served that way

6.        License statutes

a.        Brown v. Shyne

                                                                                                                                       i.      In a car accident and did not have a license

                                                                                                                                      ii.      Jury cannot infer that negligence existed bc there was no license

                                                                                                                                    iii.      The absence of a license was not the cause of the accident and therefore was not negligent

b.       Ross v. Hartman: If someone steals a car and then hurts someone, can use negligence per se to establish liability for injury

7.        Vesley v. Singer: person serving alcohol is liable for injury that the drunk person does to another

E.       Judge and Jury

1.        Role of judges is overseeing what the jury does

a.        Accomplishes by giving instructions

                                                                                                                                       i.      Tort law takes the form of instructions

                                                                                                                                      ii.      Instructions must not cause confusion – have to look at legality of instruction in addition to how it was stated

b.       Controls evidence the jury can consider

c.        Determine if there is enough evidence to take case from jury and enter a directed verdict – no jury could reasonably find any way other than for one side bc other side does not have a case

2.        Jury in charge of fact finding only

a.        Can have a rule but up to the jury to determine through the facts if the rule was broken

b.       Juries oscillate to and fro

c.        Pros

                                                                                                                                       i.      A jury is more competent than a judge to determine reasonable person standard

                                                                                                                                      ii.      Subtle dimension of democracy – a way for people to be involved

                                                                                                                                    iii.      Safeguard against government overreaching

d.       Cons

                                                                                                                                       i.      Good to avoid inconsistencies will juries – judges would be more consistent

                                                                                                                                      ii.      Jury may be influenced by the situation or the defendant’s wealth

                                                                                                                                    iii.      Juries are a hassle – some people choose not to vote just so do not get jury duty

e.        Arguments against juries is purely academic – must have juries according to the Constitution

3.        Holmes – need for rules made by judges instead of reasonable person by juries

a.        Should treat cases alike out of fairness and therefore should not let juries decided different ways

b.       Legal standards should be made known and reasonable care decided by the jury does not allow this

c.        Utilitarian reason: people need to arrange their affairs with confidence in accomplishing things later – better for general welfare that society will run better if there is more predictability

4.        Problems with rules (as opposed to reasonable person standard)

a.        There are not a lot of rules in tort law – there are standards but not rules

b.       Often decided that rules do not work well once established

c.        Predictability is not needed as much in torts as in contracts or criminal law – people will not base behavior on rules in daily life

d.       The only sanction is money so fairness argument for rules is not as strong as in an area such as criminal law

e.        Cost of rules – have to look at all factors of each situation and not just a preestablished rule – need for stability and predictability in other law areas is greater than the cost of the rules than in torts

F.       Proof of Negligence

1.       Problems of Proof

a.        Many experts have allegiances to either the plaintiff or defendant

b.       Plaintiff has usually exhausted the possibilities of proof once the following is shown

                                                                                                                                       i.      What defendant did

                                                                                                                                      ii.      How dangerous it was

                                                                                                                                    iii.      Defendant’s opportunity to discern danger

                                                                                                                                    iv.      Availability of safer alternatives

                                                                                                                                     v.      Defendant’s opportunity to know about safer alternatives

2.        Res Ipsa Loquitur – the thing speaks for itself (establishes negligence without full proof)

a.        The doctrine states that just the accident happening can be sufficient proof for the plaintiff to win

b.       Three ways to put this doctrine

                                                                                                                                       i.      Prosser

1.        Factors

a.        the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence

b.       it must be caused by an agency or instrumentality within the exclusive control of the defendant

c.        it must not have been due to any voluntary action or contribution on the part of the plaintiff

2.        Third element is confusing – pl negligence used to be an absolute defense (now it is just a partial defense)

3.        Exclusive control is misleading – can sometimes be within the plaintiff’s control and defendant is still negligent

                                                                                                                                      ii.      Second Restatement

1.        It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when

a.        The event is of a kind which ordinarily does not occur in the absence of negligence

b.       Other responsible causes, including the conduct of plaintiff and third persons, are sufficiently eliminated by the evidence

c.        The indicated negligence is within the scope of the defendant’s duty to the plaintiff

2.        it is the function of the court to determine whether the inference may be reasonably drawn by the jury, or whether it must be necessarily drawn

3.        it is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may be reasonably reached

4.        Paragraphs two and three address the judge and jury – 1c is a distraction – 1b is a more accurate statement

a.        If the plaintiff was the only cause then no liability for the defendant and if another cause solely then the defendant not liable

                                                                                                                                    iii.      Third Restatement

1.        It may be inferred that the defendant has been negligent when the accident causing the plaintiff’s physical harm is a type of accident that ordinarily happens because of the negligence of the class of actors of which the defendant is the relevant member

2.        Exclusive control is not highlighted – the key is whether the accident would or would not have happened without the defendant being negligent

c.        Foundations of the doctrine

                                                                                                                                       i.      Sometimes the mere fact that something happened is enough proof that defendant was negligent

                                                                                                                                      ii.      Burden still on the plaintiff to prove that something negligent happened, just an inference that it was from the defendant bc sometimes it is impossible for the plaintiff to prove who committed the negligence outside of inference

d.       Plaintiff does not automatically win – just given the assumption of defendant’s negligence – jury can infer but directed verdict is inappropriate

e.        Elements

                                                                                                                                       i.      Accident ordinarily would not happen without negligence

                                                                                                                                      ii.      Defendant is in control of the item

f.         Examples

                                                                                                                                       i.      Hotels

1.        Larson v. St. Francis Hotel

a.        Chair thrown out window

b.       Hotel not liable because did not have control over the furniture

2.        Connolly v. Nicollet Hotel

a.        Expected a celebration which in fact injured the plaintiff

b.       Although defendant not exclusively in control, could have predicted and should have taken precautions

                                                                                                                                      ii.      Benedict v. Eppley Hotel

1.        Plaintiff used defendant’s chair when injured

2.        Obligation to take care of chair and therefore negligent

g.       Do not have to be in exclusive control of the item as in the hotel chair – the fact that it left the defendant’s hands does not matter as long as plaintiff used the instrument properly

h.       Ybarra

                                                                                                                                       i.      Defendant’s negligence assumed because plaintiff was unconscious for surgery when injury occurred

                                                                                                                                      ii.      There was no way for the plaintiff to show which person in the OR was responsible for the injury because of unconsciousness

                                                                                                                                    iii.      The court believes the doctrine is important when a situation such as this where it is impossible for plaintiff to prove wo the use of the doctrine

i.         The doctrine is now weaker because of the usage of discovery and availability of ways to find out information

j.         Cost of this doctrine includes the possibility of an innocent person being held liable (such as a doctor in Ybarra who did not cause the injury)

IV.                 Plaintiff’s Conduct

A.      Contributory Negligence

1.        Basic Doctrine – this is an absolute defense

a.        If pl partially at fault and def partially at fault, the pl cannot recover

                                                                                                                                       i.      If pl exposes himself to harm wo a reason, then contributorily negligent

1.        If pl was startled or alarmed, not contributorily negligent

2.        Not contributorily negligent if arising from an emergency (unless the emergency arose from negligence)

                                                                                                                                      ii.      Def held to a higher standard regarding negligence than pl is held to for contributory negligence

b.       Def has burden of proof that pl was contributorily negligent (pl has burden that def was negligent)

c.        Justifications

                                                                                                                                       i.      Fairness

1.        when both parties are at fault, then on the same plane and unfair to make one pay for the other

2.        Problems with this argument

a.        Pl and def should share the loss and all of loss should not be put on the pl

                                                                                                                                      ii.      Utilitarian

1.        if pl could recover, then pl would not have incentive to take precautions

d.       Exceptions            

                                                                                                                                       i.      Safety statute

1.        when def violates safety statute, pl negligence not an issue – def is automatically at fault

2.        statute would be undermined if def allowed a defense against its violation

                                                                                                                                      ii.      Institutionalized pl

1.        Paternalistic argument that we have to protect others from their own bad decisions

e.        Butterfield v Forrester – pl horse riding and fell over log placed in trail by def

                                                                                                                                       i.      Established the doctrine above that if both are at fault, then no relief – this was actually the second opinion

                                                                                                                                      ii.      The main opinion stated if pl entirely at fault then cannot recover – this is not the rule commonly followed

f.         Gyerman v US Lines Co.

                                                                                                                                       i.      Pl unpacking fishmeal that was improperly stacked

                                                                                                                                      ii.      The def did not prove that the pl negligence in telling supervisor resulted in the injury – the injury was the result of the improper stacking

g.       Negligence and Property Rights

                                                                                                                                       i.      LeRoy Fibre Co v Chicago, Milwaukee & St. Paul Ry

1.        Pl contends that can put hay anywhere on own land and not responsible for def negligence in allowing sparks from its train to ignite a fire

2.        Court agrees that one may do what one wants on own property and not contributorily negligent

                                                                                                                                      ii.      Kansas Pacific Ry v Brady

1.        property owner negligent when located 2 miles from track

                                                                                                                                    iii.      Derheim v N. Fiorito Co

1.        property rights do not extend to cars

2.        however, wearing a seatbelt counts towards amount of harm and does not negligently cause the action to happen

                                                                                                                                    iv.      Arguments

1.        if for general welfare then rely on the Hand formula and pl should take precautions

2.        If using a fairness argument, then have to find premise in property rights

2.        Last Clear Chance

a.        Restatement

                                                                                                                                       i.      Helpless pl:

1.        A pl who has negligently subjected himself to a risk of harm from the def subsequent negligence may recover for harm caused thereby if, immediately preceding the harm,

a.        The pl is unable to avoid it by the exercise of reasonable vigilance and care, and

b.       The def is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm, when he

                                                                                                                                                                                                               i.      Knows of the pl situation and realizes or has reason to realize the peril involved in it or

                                                                                                                                                                                                              ii.      Would discover the situation and thus have reason to realize the peril, if he were to exercise the vigilance which it is then his duty to the pl to exercise

                                                                                                                                      ii.      Inattentive pl

1.        A pl who, by the exercise of reasonable vigilance, could discover the danger created by the def negligence in time to avoid the harm to him, can recover if, but only if, the def

a.        Knows of the pl situation, and

b.       Realizes or has reason to realize that the pl is inattentive and therefore unlikely to discover his peril in time to avoid the harm, and

c.        Thereafter is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm

2.        If def and pl both inattentive, then does not apply

b.       Helpless pl cannot avoid the harm and inattentive pl cannot avoid harm with diligence

c.        Applies only in negligence in response to pl behavior, NOT if negligent in bringing about situation

                                                                                                                                       i.      The pl or the def can use this doctrine – goes both ways

d.       Justifications

                                                                                                                                       i.      Utilitarian

1.        if there is an absolute defense of contributory negligence available to the def, then will not take precautions to avoid an accident known to occur bc will not be held liable

2.        even if pl is negligent, def must take reasonable precautions to avoid harm

                                                                                                                                      ii.      This doctrine was originally a way around the absolute defense of contributory negligence

B.       Assumption of Risk

1.        this is separate and independent from contributory negligence

a.        contributory negligence is if someone acted unreasonably

b.       assumption of the risk is if someone agreed that no duty is owed – did one assume the risks involved in the activity

c.        Assumption of the risk can be implicit

d.       Can have assumption of the risk and contributory negligence in the same case

                                                                                                                                       i.      If successful regarding assumption of the risk, then contributory negligence defense is irrelevant

2.        Justifications

a.        Autonomy

                                                                                                                                       i.      Do not know if there will be a touching or an injury, but you have the right to agree to take that risk

b.       Wealth Maximization (type of Utilitarian)

                                                                                                                                       i.      Better off individually in allowing assumption of risk

1.        risk preferers: will take the benefit of increased compensation to assume the risk – some actually enjoy taking risks

2.        risk adverse: will not assume the risk no matter how much compensation is offered

                                                                                                                                      ii.      person who assumes risk is benefited by taking extra compensation while one offering compensation is better off bc will not be sued

                                                                                                                                    iii.      if each person is better off, then all of society will be better off

                                                                                                                                    iv.      Objections

1.        Bargaining Power

a.        May not really have a choice in accepting the risk bc no other options available (example if only job available)

b.       This is the basis for worker’s compensation

2.        Paternalism

a.        Not everyone knows what is in one’s own interest

b.       Duty to protect people from their own decisions

3.        Social Costs

a.        If we do not require people to take precautions, then the cost will be borne by the public

b.       Individual must bear costs, otherwise not good for society

c.        Elements

                                                                                                                                       i.      Risk is known

                                                                                                                                      ii.      Still decide to go forth

                                                                                                                                    iii.      Has to be voluntary and with adequate knowledge

1.        Voluntary

a.        Not voluntary if life or death situation

b.       Change rules half way through

                                                                                                                                                                                                               i.      Actress required to look up when going down steps when prior could look down

c.        Last minute

                                                                                                                                                                                                               i.      Ready for surgery when just before asked to assume a risk

2.        Adequate Knowledge

a.        Two variations

                                                                                                                                                                                                               i.      If value the freedom of contract argument then assumption of risk given more weight while if paternalism is valued, it is given less weight

                                                                                                                                                                                                              ii.      Context of the situation – uwilling to find assumption of risk in medical situations while more willing in sports or as a spectator

b.       It is possible to have a rule that only takes external manifestations into account wo any knowledge requirement

c.        Courts now require more knowledge than before – more paternalistic and worry more about social costs

3.        There are many courts that will strike down assumption of the risk in a medical context but not in a sports context

C.      Comparative Negligence

1.        At Common Law

a.        Jury will decide proportion of fault and awards plaintiff according to defendant’s percentage of fault

b.       Extent of fault should govern amount of liability

                                                                                                                                       i.      Li v. Yellow Cab

1.        Comparative negligence more fair and logical than the all-or-nothing rule of contributory negligence (this is an argument for the pure form)

c.        Arguments

                                                                                                                                       i.      In favor of comparative

1.        FAIRNESS: like in Li case

2.        People are satisfied even if unfettered discretion of the jury regarding proportion

3.        UTILITARIAN: will give both sides incentives to take precautions – more precautions taken if both sides instead of just one

                                                                                                                                      ii.      Against comparative negligence

1.        Negligence term is hard to pin down

2.        Will diminish plaintiff’s incentives to take precautions bc can still recover something

2.        By Legislation

a.        Two forms

                                                                                                                                       i.      Pure comparative negligence: jury is told that the total amount of fault in the case is 100% and jury decides how much of total belongs to the plaintiff and how much to the defendant – jury reduces plaintiff recovery by fault contributed by the plaintiff

1.        Argument for: Li case

                                                                                                                                      ii.      Modified comparative negligence: allows a recovery only if the plaintiff share of the fault does not reach some threshold – plaintiff gets nothing if beyond the threshold – two versions

1.        Not greater than: some statutes say the plaintiff can recover if share of fault is no greater than the defendant’s (plaintiff gets award in a 50/50 case)

2.        Less than: some statutes say the plaintiff can recover if share of fault is less than the defendant’s (plaintiff gets nothing in a 50/50 case)

3.        Argument for:  not fair to let someone who is more than 50% at fault to recover

3.        Relations to other doctrines

a.        Last fair chance: no need for this bc it was only a way to get around contributory negligence according to Li

                                                                                                                                       i.      An argument to keep the last fair chance is that it provides incentives where there is sequential conduct

b.       Assumption of the risk: fault is a matter of being unreasonable and assumption of the risk has no unreasonableness attach to it – if duty is owed, then no contributory negligence, if not owed then look at assumption of the risk – still used with comparative negligence as a defense

c.        Willful Misconduct: split in authority

                                                                                                                                       i.      Sorenson: rely on Li and the idea behind comparative fault is that the person’s liability should compare to the fault and should not change bc defendant is willful and wanton

                                                                                                                                      ii.      Burke: the willful and wanton person is in a different category than the ordinarily negligent person – but still have to deter people so this is a weak argument

d.       Intentional Torts: comparative negligence is not designed to allow privilege of committing an intentional tort

e.        Violation of safety act: the idea is to enhance safety, so will enhance incentives for all to take precautions – other courts say that contributory in safety case

4.        A Common Law Reprise

a.        Can still have strict liability in comparative negligence

b.       Distinction in applying strict liability

                                                                                                                                       i.      Where the plaintiff voluntarily and unreasonably exposed risk to danger then negligence would count on part of plaintiff

                                                                                                                                      ii.      Where the plaintiff just reacted badly then strict liability

c.        Bohan v. Rizzo

                                                                                                                                       i.      Fell off bike when dog approached barking

                                                                                                                                      ii.      Comparative negligence did not apply in this case bc it was just a bad reaction

V.                   Multiple Defendants: Joint, Several , and Vicarious Liability

A.      Joint and Several Liability

1.        Terms

a.        Harms

                                                                                                                                       i.      Indivisible: harm caused by only one person

1.        Practically indivisible: gas station and coat example – divisible harm but hard to determine

2.        Purely indivisible: cannot distinguish at all which defendant caused the harm

                                                                                                                                      ii.      Divisible: harm caused by multiple people and can divide percentage of harm between those responsible

                                                                                                                                    iii.      Often it is not easy to divide such as in the case of a coat catching fire at a gas station

b.       Joint Tortfeasors: actors whose negligent conduct combined caused a single indivisible harm

                                                                                                                                       i.      If joint, then jointly liable

                                                                                                                                      ii.      Each defendant responsible for the entire harm minus the plaintiff’s negligence

                                                                                                                                    iii.      This is better for the plaintiff because can recover entire amount from any defendant

c.        Joint and Several Liability

                                                                                                                                       i.      Used with divisible harms

                                                                                                                                      ii.      Each defendant only responsible for a share of the harm

2.        Rights of joint tortfeasors

a.        Contribution

                                                                                                                                       i.      Two kinds of statutes

1.        Contribution Pro Rata: ultimate liability should be shared among defendants by taking total liability as numerator and number of defendants as denominator (example: $10k/50 def = each liable for $200) – this does not effect the plaintiff only the defendants

2.        Comparative Fault: asks the jury to determine each defendant’s percentage of fault – instead of sharing equally, each responsible according to fault

3.        Inconsistencies

a.        Joint liability is inconsistent with comparative fault

                                                                                                                                       i.      Not fair to make one defendant pay the entire amount according to the comparative fault rule

                                                                                                                                      ii.      But if joint liability was abandoned, then plaintiff would bear the loss

                                                                                                                                    iii.      Some states have abandoned joint liability rule because of the inconsistencies (Brown v. Keill)

b.       American Motorcycle

                                                                                                                                       i.      In dissent: if a defendant is not available, then the amount left by his absence should be divided between the rest of the defendants and the plaintiff (example: P 30%, A 60%, B 10% - A not available; instead of making B pay 70%, divide the 60% into 45% P and 15% B – in the end, B obligated for 25% and P 75%) – this values comparative fault

                                                                                                                                      ii.      If compensation is valued, then B would pay entire 70% so plaintiff receives all compensation owed

4.        Settlements

a.        When one of the defendants settles with the plaintiff, this may lead to problems in recovery from other defendants who do not settle

b.       Courts like settlements bc it saves on resources and gives both parties something they want

c.        Possibilities when a settlement occurs

                                                                                                                                       i.      No Contribution – increases desire for settlement – may overcompensate the plaintiff (if settled for $3k, judgment against other defendant for $8k and total damages were only $10k)

                                                                                                                                      ii.      Contribution – decreases desire for settlement

                                                                                                                                    iii.      Contribution plus settlement bar – have a contribution rule but also have rule that once someone has settled, the other party cannot sue for contribution – can only get contribution from the defendants who went to trial

                                                                                                                                    iv.      Claim reduction: once plaintiff settles with one of the defendants the total claim against the other defendants is reduced – reduces plaintiff’s desire to settle – two ways to determine how much to reduce claim by

1.        Pro Tanto: reduces the claim amount by the settlement amount – this can be unfair to the defendants left in the suit bc paying more than percentage of fault

2.        Carve-Out: reduction based on percentage of fault by the defendant that settled – this avoids unfairness to defendants but complicates trials and increases litigation

5.        Indemnity

a.        Where one defendant is seeking total compensation from another defendant

b.       Four situations where found

                                                                                                                                       i.      The one seeking indemnity has only a derivative or vicarious liability for damages – this is hardly ever helpful to the employer bc the employee usually cannot afford to pay

                                                                                                                                      ii.      Where the one seeking has incurred liability at the reliance upon the one to be charged

                                                                                                                                    iii.      There is a contract that calls for A to indemnify B

                                                                                                                                    iv.      The one seeking has incurred liability bc of failure, even though negligent, to discover or prevent misconduct of one sought to be charged

1.        Where one party has done something faulty, negligent, and other party failed to discover it – courts will sometimes say if negligence is passive in failing to discover something and plaintiff decides to go against passive party, then right to indemnify

2.        This is the theory in Union Stockyard that one wanted to use but cannot apply bc both failed to inspect the brakes properly and therefore neither are passive

B.       Vicarious Liability

1.        General principal that in some situations, one may be liable for another’s torts

2.        Respondeat Superior is one doctrine (employer liability)

a.        This is the most important application regarding vicarious liability

b.       Have to first determine if the one responsible is an employee

                                                                                                                                       i.      Distinction between independent contractors and employees

c.        No negligence of employer has to be shown – type of strict liability – still have to show employee was negligent

d.       Purpose: want to put liability on the person who can more cheaply take a precaution

                                                                                                                                       i.      Ira S. Bushy rejects this purpose – says its purpose is that it is fair that if a given activity is characteristic of the employment, then the employer should be liable

e.        Limitations - Some limitations on employers responsibility over employee – not for personal matters on property, not responsible if outside employment, etc.

3.        Imputed Negligence

a.        There can be situations in which a given plaintiff was not negligent but someone else’s negligence will be imputed to the plaintiff

b.       Situations

                                                                                                                                       i.      Family relationship

                                                                                                                                      ii.      Passenger in a car

c.        The only situation this occurs now is where it happens in the situation in which there will be vicarious liability on the part of B – B is liable for A’s tort if there is a suit of B against C

                                                                                                                                       i.      A driving car with B (boss) as a passenger and get in an accident with C – if C sues A then B liable through vicarious liability

1.        If B was driving then A would NOT be vicariously liable bc employee is not vicariously liable for employer

                                                                                                                                      ii.      If same situation but not in the course of employment, then none of this would apply – must be in the course of employment

VI.                 Causation

A.      Cause in Fact

1.        Have to have negligence and also causation in order to recover

a.        Disagreement between courts as to if juries are permitted to speculate regarding causation

                                                                                                                                       i.      Grimstad: jury not allowed to speculate that a life preserver would have saved the deceased – may have drowned anyway and therefore no causation present

1.        This view favors the defendant

                                                                                                                                      ii.      Kirincich: allows the jury to speculate on if a life preserver would have saved a drowning victim

1.        This rule favors the plaintiff

2.        This is a different jurisdiction than Grimstad so that case is not overruled

                                                                                                                                    iii.      Some cases such as Trident will have no room for the jury to speculate on causation – here the deceased just disappeared once hitting the water so there is no way a life preserver could have saved him

2.        General rule is the but for test – the injury would not have occurred but for the defendant’s negligence – there are exceptions

a.        Joint tortfeasors is consistent with this test bc all are negligent and but for the actions of the tortfeasors, the harm would not have occurred

                                                                                                                                       i.      If plaintiff is unable to show how much each defendant is responsible for, then allowed to treat as joint tortfeasors

3.        Exceptions

a.        Zuchowicz: deceased suffered from an overdose of a prescribed drug – here the court uses the causation as an act that increases the chances that a particular accident would occur

                                                                                                                                       i.      The burden is not shifted to the defendant, it is still on the plaintiff – but if the defendant wants to negate the increased chances, then has to bring in evidence

                                                                                                                                      ii.      Once plaintiff shows that chances were increased and the harm did occur, causation can be inferred

b.       Medical Context

                                                                                                                                       i.      Use expert testimony to determine causation – Oxendine: birth defects; establishes this rule and is what is commonly applied

                                                                                                                                      ii.      Frye case determined that the judge should determine what testimony should be allowed bc of conflicting experts causing confusion

1.        Daubert: trial judge should be a gatekeeper

a.        Judge decides in federal cases what evidence should be admitted

b.       This often determines the case

                                                                                                                                    iii.      Kumho Tire case determined that courts should not only scrutinize admissibility of scientific evidence, but also technical evidence

c.        Joint tortfeasors

                                                                                                                                       i.      Kingston v. Chicago & NW RY

1.        Defendant caused a fire and there was a second fire caused by an unknown source – plaintiff allowed to recover from plaintiff even though cannot show that but for the defendant’s negligence, harm would not have occurred – cannot show that second fire would have not done the same thing

2.        FAIRNESS argument that it is ok to do this bc the defendant was just lucky that another fire was present and will not award the defendant for this – still liable

3.        UTILITARIAN argument is that want to diminish harm and increase incentives

4.        This is not really a case of joint tortfeasors but the courts pretend and treat this way anyhow to deal with the problem

                                                                                                                                      ii.      Defendants each adopt actions of co-actor – when defendant’s acts are simultaneous with each other, then will ignore the but for test and join them

                                                                                                                                    iii.      Summers v. Tice

1.        Plaintiff and the two defendants went quail hunting – the plaintiff was shot but could not discern which defendant the shot came from

2.        Court determined that when there are two defendants and cannot determine which was responsible but both were negligent, then the burden shifts to the defendants to show which one caused the harm

3.        Court pretends that the defendants are joint tortfeasors

4.        FAIRNESS: fair to shift burden if both are negligent and one had to have caused harm

5.        Also use the argument that the defendants are in a better position to show which caused harm but this is not necessarily true

6.        This way of viewing the causation is not as strong as number of defendants increases because possibility of defendants causation is decreased

d.       Market Share Liability

                                                                                                                                       i.      Devised by a law student – only used in the DES context

                                                                                                                                      ii.      Conditions as to when to apply

1.        All the named defendants are potential tortfeasors

2.        Allegedly harmful products are identical and share the same defective qualities

3.        Plaintiff in unable to identify which defendant caused her injury through no fault of her own

4.        Substantially all of the manufacturers which created the defective products during the relevant time are named as defendants (substantially, not necessarily all)

                                                                                                                                    iii.      Idea of the doctrine – each defendant pays according to the market share across the nation (not just the area – Hymowitz v. Eli Lilly)

                                                                                                                                    iv.      This doctrine does not apply if a product is manufactured badly, then it would just be the defendant liable for the bad product

                                                                                                                                     v.      Skipworth: did not apply the doctrine when daughter got lead poisoning from paint

1.        Product not found to be generic – different levels of lead in different paints – make people react differently

2.        If concerned with fairness, then do not apply this doctrine

                                                                                                                                    vi.      Asbestos

1.        Will not apply in this type of case bc not generic – more like the lead paint case

4.        Purpose of cause in fact

a.        Regarding but for test

                                                                                                                                       i.      FAIRNESS: not fair to hold defendant liable for something he did not cause

1.        Not fair to shift burden to defendant to show he did not cause the harm

a.        Sometimes can show a causal link without proof as in when a swimmer drowns and there was no lifeguard present – up to the defendant to show a lifeguard would not have made a difference

2.        SEALS V. SNOW: the one who occasioned the harm should be liable – economists reject this view

                                                                                                                                      ii.      UTILITARIAN: incentives to take precautions

1.        If the precautions would not make a difference, then would not have to take them (example: driving in the middle of the desert at excess speeds – will not hurt anyone else)

2.        Coase: have to look at value of what is being taken away vs. the value of what is being done – example: if a stream is polluted by making a cure for cancer, then it is more valuable to have the cure than to save the fish

3.        INSTRUMENTAL: cause in fact is not a requirement for liability but an instrument in deciding how to assign liability

b.       Regarding increased risk

                                                                                                                                       i.      FAIRNESS: not fair to allow defendant off if there is an increased risk but background factors would have produced the result anyway

1.        When there are background risks the result would occur eventually, but the defendant may increase the chances of the harm also

                                                                                                                                      ii.      UTILITARIAN: will not take precautions when there are background risks bc will not be held liable and therefore will get off

c.        Examples

                                                                                                                                       i.      Herskovits: although the deceased already had less than a 50% chance of survival from cancer, the negligence caused his chances of survival to decrease 14% more – the court allowed for a full recovery even though but for not met

                                                                                                                                      ii.      If there is a vaccine that increases the risk of a certain disease – normally 100 people would get the disease anyway – after vaccine, 190 get the disease – if using the but for test then the defendant would not be liable bc caused less than 50% of cases – would not be liable to any of the 90 even though caused harm in the 90 bc cannot show if the vaccine caused the disease or not

1.        However, if the increased chance allowed the recovery, then all 190 would recover even though the defendant only caused 90 cases – this may lead to over-deterrence

a.        Over-deterrence is taking extra precautions that are not justified – this would hinder the utilitarian approach

2.        Also can be a problem for the but for test if 190 cases and the vaccine caused 100 of them – then all could recover bc the defendant caused more than 50% of the cases – this also leads to over-deterrence

3.        To avoid this problem, some courts use a partial recovery method in which the plaintiff only recovers for chance the defendant created

a.        This is fair to the defendant because if 200 people and caused one-half the cases, then would pay as if he paid 100 people 100%

b.       This approach would give the correct incentives to take precautions

c.        This approach may not be fair to the plaintiff bc if not caused by the defendant, gets a windfall; if caused by the defendant then not getting all of compensation (only 50%)

                                                                                                                                    iii.      Plaintiff is also able to recover something from exposure even though did not come down with problem yet

1.        As in asbestos: exposure to this can cause lung cancer, plaintiff allowed to recover for monitoring for the development of the disease

2.        Also allowed to recover, separately, for the fear produced by the possibility of getting the disease

VII.               Loss Spreading

A.      Compensation as a goal of torts

1.        Do not know why this is a goal

a.        Some people argue that it is fair to compensate

b.       Some say more economically efficient to compensate bc increases incentives

2.        Compensation is a separate goal from fairness or utility

B.       Justification

1.        Do not just take from the defendant to give to the plaintiff (zero sum gain)

2.        For products liability, spread loss over a number of people

3.        Have to distinguish between money and utility (between the dollar and the satisfaction it brings)

a.        Decreasing marginal utility of income (util is a unit of utility)

                                                                                                                                       i.      Down sloping curve – first dollar received means a lot to the plaintiff but as the dollars increase, the amount of utility decreases

b.       Increasing Marginal Disutility of loss

                                                                                                                                       i.      Upward sloping curve – first dollar has a low util (not that hard to give up) but as the dollar amount increases, then the loss of increased dollars hurts utility

c.        This will not lead to a zero sum

4.        Argument for utility has been to prevent losses – but here we are talking about what happens after the loss – but this still increases welfare bc incentives still present

C.       If able to spread the loss, we will

1.        Can spread the losses when defendant strictly liable

a.        If cost of precaution is not worth it – then still spread the loss through this doctrine but will also not take unnecessary precautions bc liable anyway

2.        This can present a problem when the plaintiff has some fault

a.        The idea of loss spreading and taking precautions is inconsistent

b.       Which is better depends on how one views the economic incentives arguments

                                                                                                                                       i.      Would want incentives instead of loss spreading if you have someone who is rational and who would respond to incentives

                                                                                                                                      ii.      If you think the tort system is bad in identifying B, P, and L, or that people will not respond then would be silly to use incentives and would concentrate on loss spreading

D.      Inconsistency with tort law

1.        If use loss spreading then lean to strict liability and then things like causation and negligence do not matter

2.        The more you believe in loss spreading the less you believe in tort law

a.        This happens in the employment context – move from tort law to workers’ compensation

b.       Also a notion of using this in the insurance context and doing away with torts