- Wrongful Death
- Compensate person harmed by financial equiv. of loss suffered
- Past & future phys. pain
- Past & future med. exp
- Past & future loss of earning capacity
- Perm. disability & disfigurement
- Past & future pain & suffering
- Prob's of Valuation
- For future stuff, get lump sum now so need 2 red. 2 present
- Some take into acct, others don't but most not reduce future
pain & suffering
- Collateral Source Rule
- Rule: If P compensated by indep. collateral source like ins.,
pension, / wages from empl. 4 which P actually / constructively
paid, not deducted from what P can collect from D
- Ins. policy rsns & no double recov.
- Atty Fees
- Most do contingency fee & sometimes statute provides 4
- Poor P can sue but conflict of int. btwn atty & P
- Avoidable Conseq's / Mitigating Rule
- P should take rsbl conduct after D's tortious conduct 2 mitigate
- Otherwise, lwr jgmt
- Obj. stand. of rsbl
- Phys. Harm 2 Prop.
- Conversion then get the whole thing / mkt value @ the X of
- For damaged prop, value of dif. before damage & after,
w/o cost of repair
- For damaged prop, can also recov. loss of use by rental value
& conseq'al damages prox'ly caused by D's neg. liek loss of
barg. & rsbl cost of recov. prop.
- Deter, punish, & divert P's desire 2 punish
- Also substitute 4 atty's fee
- Factors of D's Behav.
- In addition 2 unrsbl behav. need intentional conduct manifesting
wilful, wanton, malicious, / reckless disregard 4 P's rts
- No constructive wilfulness
- Factors 4 Amt
- Character of Act
- D's wealth
- P's harm
- CA req. oppression, fraud, malice of consc. disregard of rts/safety
& clear & convincing evid. before punitive; D may also
ask 4 prima facie liab. before wealth evid. intro'ed
- Goes 2 P
- Goes 2 state fund but not all gen'ly
- Crim. Record 2 Mitigate Tort Punish.
- Gen'ly not do it
- Mass Tort Prob's
- Deplete $ even in compensatory but no soln's
- Const'al Quest's
- No Const'al rt. 2 punitive damage
- If 2 high, violate due process
- Can't Ins. Against Punitive
- Most jxn's can't ins. b/c punitive damages should lie w/wrongdoers
- Gen'ly ins. still has 2 defend
- But P's lose by not getting $
- Allow damages suffered by survivors, not deceased
- Factors 4 Recov.
- Value of serv's
- Loss of soc. & companionship
- Funeral Expenses
- Factors 4 Damages
- Money that deceased would've made 2 support P
- P's loss
- Allowable P's
- Spouse, heirs, & rep's/exec'ors
- Illegit kids barred but allowed 4 mom
- Hard 2 Det. When Child Dies
- Do loss of soc., comfort, & companionship approach but
prob. b/c no boundary
- Spouses can get companionship by sexual rel.
- Decedent's creditors can't reach
- Decedent's behav. & P's conduct matter as defense
- Allow damages suffered by decedent, not P's loss
- Factors 4 Damages
- Loss of earning
- Med. cost while alive
- Prop. damages
- Pain & suffering
- Damages causing death
- Prob. of double recov.: wrongful death's loss of support &
survival's loss of earning overlap
- Creditors can reach
- Decedent's behav. matter so contrib. neg. & A/R survives
- P's conduct irrelev.
- Wrongful Death
- Line @ birth so if weren't born, no real decedent & can't
- Wrongful Life
- Axn by child
- Theoretical prob. w/axn b/c if Dr. wasn't neg., not born @
- Hard 2 see prob. w/bad life v. no life & no damages theoretically
b/c higher benefit
- Wrongful Birth
- Axn by parent
- Mom must say would've term'ed otherwise no causation
- Hard 2 see benefit of child v. burden of choice 2 term. is
- Bad 2 stigmatize the child by saying burden
- If recog, only allow extraord. cost of raising child w/o emotional
- If can't afford 2 raise kid, then allow C/A but if otherwise,
Limited Duty & Liability
Limited Duty's Concept
- Focus on if duty exists, not def'ing what duty is
- Negative concept
- Neg. Infliction of Emotional Disturbance (NIED)
- Failure 2 Act
- Privity of K
- Owners & Occupiers of Land
- Mental disturbance & resulting injury
- Neg. which results in fright, shock, mental & / phys.
- Dir. Victim (V) Doc's
- Impact Theory
- P suffers imm. dir. phys. injury, then allow 4 emotional damages
- Impact 4 genuineness but artificial line
- Parasitic Damage
- Emotional distres after being hit, then can recov.
- Phys. Manifestation: Maj.
- Def. & obj. phys. injury prox. of D's cond. but not need
dir. phys. injury
- Need nervous disorder w/name
- Recov. 4 emotional distress if rxn 2 distress normal &
phys. harm is nat. conseq. of distress
- Not thin skull, b/c that def's liab. but here see if any liab.
- Two exceptions
- Neg. transmission of death by telegram
- Neg. holding of hoax
- Zone of Dang.:
- Almost impact so rsbl fear of safety
- Policy of limiting liab. like prox. cause
- Bystander Doc's
- Dillon v. Legg Stand.
- D should rsbly foresee emotional harm 2 P
- P located near the scene
- Contemporaneous sensory so shock from dir. emotional impact
- P & V R closely rel'ed
- Thing v. LaChusa Stand.
- Rel. of same household 4 P's so siblings, parents, grandparents,
- There & aware
- Serious emotional distress which isn't abnormal response &
more than disint'ed person
- Meet above stand's w/o foreseeabiltiy
- Def'ing Dir V
- Dir harm 2 P
- Marlen F Case
- Dir. harm not foreseeable
- Damages from professional rel.
- Breach of duty assumed by D
- Duty imposed on D as matter of law
- Burgess v. Superior Ct
- For Dir. V, pre-existing duty from prof. rel. such as dr-patient
- For bystander P's, no pre-existing rel. / duty of care
- CA Jxn
- Impact & zone of dang. probably o.k.
- Phys. conseq's not needed
- Bystander & Thing v. Dir V & pre-existing rel.
Failure 2 Act
- Aff., should've done something but omission is neg. behav.
of not doing
- Nonfeasance: No liab. on bystanders 2 act
- Exceptions 2 no duty 2 rescue
- Invitor / invitee of busi. 4 pub.
- Instrumentality where prov'ed & rendered control by D
- Spec. rel such as er/ee, shipmaster / passenger, inkeeper
/ guest, temp. custodian / charge, & carrier / passenger
- Dependence & cnxn's in rel's so exception 2 no duty
- Duty 2 aid if injure another
- Duty whether neg/non-neg'ly injured
- Liab. 4 initial damage + aggravated damage
- Misfeasance Liab.
- If rescue badly / unrsbl, then liab.
- Limit circ's in Rest
- Leaves P in worse sit.
- Incr. P's risk
- Deprive of other aid
- Harm suffered b/c P relied on D's undertaking
- May B other sit's
- Can't put person back in = sit's of peril once removed
- Policy 2 discourage bad rescue but C/L's rescue doc. where
injured rescuer can recov. unless reckless
- Good Samaritan Laws: encourage Dr's 2 aid w/o fear of malpractice
- Prom. 2 Act, then Act W/Due Care
- Reliance on prom. 2 P's detriment
- AND phys. injury
- Duty 2 Control 3rd Person
- D has spec. rel w/P
- D has spec. rel w/person who hurt P
- Parent - child
- Parent knows / rsn 2 know
- Has ability 2 control the child
- Opp. 2 exercise / nec. 2 control
- Must B specif. dang. habit not gen.
- Dr's Duty
- Immunity so no liab. 4 release / confine mentally ill
- Failure 2 Warn: spec. rel. otherwise no duty
- Foreseeable V like imm. family
- Prob's of overwarning
- CA leg.: communicate serious threat against rsbly id'able
V's & make rsbl effort 2 communicate 2 V & police
Privity of K's
- Nonfeasance & Break Prom's
- Remedy in K
- Misfeasance & Do Prom's Badly
- Recov. in torts o.k.
- No Privity Reqt 4 sellers of chattels & prod. liab. by
- Privity reqt when oblgn only in agmt
- D not liab. 4 not aff'ly doing harm & then not becoming
instrument 4 the good
- Narrow 3rd Party Benefic.
- Exception 4 benefic. of will
- No Recov. 4 Econ Loss W/O Phys. Damage: bright line rule
- Justified b/c benefit of predictability higher than case by
Owners & Occupiers of Land
- Spec. Duty Rule in Favor of Owners & Occupiers
- Liab. of Poss'r of Land 4 those on land
- Enters & remains on land in poss'n of another w/o permission
- Duty lowest & no duty of rsbl care b/c wrongfully on premise
- Freq. trespasser exception: tolerated when know / should know
b/c constantly intrude on limited premise so some rsbl care
- Active operation: rsbl duty
- Dang. cond's: duty 2 warn rsbly if won't discov.
- Discov'ed Trespasser
- Active operation: warn / rsbly duty 4 operation
- Cond's on land: rsbl care 2 warn of known dang's if prox.
& if trespasser won't know
- On land w/consent 4 own purpose not 4 owners & incl's
solicitors, fam., soc. guest
- Whoever's not in trespasser & invitee, in here
- Higher duty than trespasser
- Active operation: duty of rsbl care
- Cond's on Land: No duty of rsbl care but trap exception where
entitled 2 B warned of concealed dang. cond's which poss'r has
actual knowledge & licensee unware / unlikely 2 discov.
- No constructive knowledge, maj., but Rest. imply
- Invited 2 remain 4 part. purpose gen'ly 4 busi. dealing like
- Pub. invitees R invited 2 enter & remain as member of
pub. 4 purpose of the land held open 2 pub.
- Highest duty of rsbl care but not guarantee safety
- Active operation & cond's of premise: hold poss'r liab.
if not rsbl & incl's oblgn 2 warn
- CA Jxn
- Rsbl Care Regardless of Categories
- Moral blame on D's cond.
- Goal 2 prevent future harm
- Ins. prevalent
- Foreseeabiltiy 2 harm rel'ed in cert. category & cert.
of injury factors may / not B relev.
- Status still relev. but not dispositive factor
- Jxn's: some reject invitee v. licensee but most keep licensee
- Lessors Gen'ly Not Liab. 4 Ten's / 3rd Persons
- T poss's & occupies but lessor owns
- Lessor would B liab. in hotel, renting house, etc. when high
resp. 2 take care of U
- Exception that if in common area & lawfully on premise,
then rsbl care 2 lessor
- Min. Stand. that rsbl care 2 lessor when lawfully on premise
& 1) notice of defect, 2) obvious, 3) control
- Contrib. Neg.
- Comp. Neg.
- P's unrsbl cond. is prox. cause of P's harm
- All / nothing 4 jud. econ. & simplicity
- P's burden
- Burden on D 2 show
- Broad prox & case in fact 4 P
- De facto comp. neg. by jury sys
- Last Clear Chance Doc.
- If D had last opp. 2 avoid, then P can recov. so still all
- D's burden
- Makes contrib. neg. obsolete by adoption of comp. neg. through
leg. / jud.
- Jury det's proportion of fault btwn P & D & apportion
- Three types
- Pure: P gets whatever % assigned 2 D
- Modified 49%: P recov's as pure if P < D
- Modified 50%: P recov's as pure if P's neg. not exceed D
- Joint & Sev. Liab.
- Maj. still maintains jt & sev. liab. w/comp. neg.
- Min. discard
- Uniform Act Soln: split insolvent D's share btwn P & D
- Bar recov. if spcif. agmt in words by K'al release & not
against pub. policy
- Not affected by intro. of comp. neg.
- Pub. policy exception
- Barg. not free & open
- Agmt / release involves pub. utility / pub. reg.
- Wilful, wanton, etc. then against pub. policy
- Great imp. 2 pub.
- A/R is consent 2 risk but defense of consent is consent 2
- Three Pronged Test
- Risk of harm caused by D
- P had actual knowledge of part. risk & appreciate magnitude
of risk (subj. stand.)
- P vol'ly choose 2 enter / remain w/in the area of risk manifesting
acceptance of risk
- Careless v. Venture
- Careless, then not A/R b/c ignore risk
- Venture, then A/R b/c assumed risk
- Not vol. A/R if D's tortious cond. left P no rsbl alt. course
- To avoid averting harm 2 himself / others
- Or exercise / protect rt. / privilege which D has no rt 2
- Total Bar so need 2 disting. from comp. neg.
- Primary (Blackburn)
- Total Bar
- D owes no duty / breached no duty so no neg. 2 P
- Secondary (Blackburn)
- Pure rsbl
- No bar
- Qualified unrsbl
- Comp. neg.
- Primary: Nat. of activity & party's rel. 2 activity so
P's S/M not matter
- Active sports, breach of duty of care 2 other participants
only if intentionally injures / reckless behav.
- Secondary: Relative Resp of parties (plurality)
- Merge unrsbl & rsbl into comp. resp. instead of div'ing
by pure v. qualified
- Secondary: NO 2ndary implied A/R (Mosk)
- Div'ing line is duty v. no duty & just do comp. neg.
- Secondary: Knowing & Intelligent (plurality)
- Total bar if knowing & intelligent dec. instead of rsbl
- If P neg, then not know so comp. neg.
- Exception 2 Gen. Rule of No Mitigation 4 Anticipation of risk
- Pre-accident oblgn 2 mitigate is an exception in seatbelt
- Min. jxn
- Any damage not rel'ing 2 seatbelt
- Mixed w/Comp. Neg. in Jxn's
- D immune even though all elements of torts
- Intra family
- Intra family
- Husb & wife, parent & child, then no liab.
- Better 4 indiv. 2 suffer than pub. / state B deprived of charity
- Some bar against recipients of charity & some abolished
only 4 hospitals
- Fear res's diverted by litig's
- Best entity 2 spread loss & deep pocket
- Fed most protected & local least
- Fed waived 2 B sued by statute
- State varies but some disting. btwn proprietary & govt
- Most categories, repealed
Vicarious Liab. & Strict Liab.
- Respondeat Superior
- Indep. K'or
- Joint enterprise
- Vicarious contrib. neg.
- B liab. 4 A's tortious behav. even though B not acted tortiously
& A entitled 2 indemnity
- No neg. C/A
- Respondeat Superior
- Er & ee, master&servant rel. where er liab. 4 ee's
torts w/in scope of busi.
- Deep pocket & rsbl nexus by scope of busi.
- Er Control Rationale
- Nec. control by er req'ed
- Ee's trip from appt'ment is w/in control but not commute
- Enterprise Rationale
- Inevitable loss 2 3rd person as part of busi. so ask if er
would've benefitted if not 4 ee's torts
- Commute not incl'ed in either rationales
- Ee's intentional torts
- Er liab. when tort rsbly connected w/busi. & w/in scope
- Indep. K'or
- No VL even if w/in scope of busi.
- Er has no control on how but only of result
- Non delegable duties
- If indep K'or in sit. where grave risk of serious bodily harm
- Er liab. & VL
- Someone must B neg.
- Joint Enterprise
- Partnership & informal arr. where law consid's each as
agent & servant so each liab. 4 other
- Agmt 2 activity
- Common purpose / goal
- Common pecuniary int.
- Equal voice & dir'ing the enterprise / = rt. of control
- Gen. rule that bailor not VL 4 bailee's use of chattels
- But 4 auto, vehicle owners VL through statutes b/c of auto
- Operate w/consent & permission, express / implied, then
- If bailor neg. in entrusting the chattel then no VL but neg.
- Vicarious Contrib. Neg.
- Imputed Contrib. Neg. Harshly Against P: owner of car present
then presumed control (not used anymore)
- Imputed Contrib. Neg. Both Ways: contrib. neg. not imputed
- No Imputed Neg. / Both Ways: (concurr. opinion)
- Corporation ER exception that contrib. neg. of ee 2 corp.
P b/c otherwise, corp. can never B contrib. neg.
- Comp. neg. makes both ways rule less harsh
- Liab. as long as cause harm w/o anybody neg.
- Only applied in cert. sit's
- Judge dec's
- Innocent P but D gets benefit so transfer cost 2 D
- Min. loss & spread risk
- Activity pays own way
- Limitation of liab. & narrower limit 4 SL
- Expand only 2 where safety most imp. & harm likely 2 occur
even though there's benefit
- Dif. Stand's
- Blackburn's Own Purpose
- Keep stuff in land @ your own peril & liab.
- Cairn's Nat. v. Non-nat.
- Non-nat. use intro'ed then conseq. @ own peril
- Normal & nat. use of land is character of activity, place,
& rel. 2 the surrounding
- 1st Rest: Ultra Hazardous Activity
- Activity nec'ly involves serious harm which can't B elim'ed
by utmost care
- Not common usage
- Ultra hazardous only 4 charact's that make it ultra hazardous
- 2nd Rest: Abnormally Dang. Activity
- High degree of risk of harm
- Likelihood of harm great
- Inability 2 elim. risk by rsbl care
- Not common usage
- Inapprop. of the activity 2 the place
- Value 2 community outweighed by dang. attributes
- 2nd Dif. from 1st
- Added approp. location & extent of value 2 community
- Rsbl care, not utmost
- Extent of risk dir'ly stated
- Common Usage
- If carred out by the mass
- Econ Analysis
- Focus on incentive where SL would prov. higher incentive 4
liab. cost & precaution
- Only min. cost not who should bear cost
- Allocative effect
- Blasting SL but Not Storing
- Foreseeable harm by unforeseeable intervening cause then no
- Whatever supersedes neg, supersedes SL
- One Bite Rule
- If bad disposition of domestic animal known, then SL otherwise
entitled 2 1 bite
- Defenses 2 SL
- P's behav. purposely, wantonly, knowingly, & vol'ly put
yourself in sit.
- Contrib. neg. not a defense
- Some have assigned faults 2 P through comp. neg.
Prod. Liab., Proof, & Damages
- Theories 4 Liab.
- Before, no liab. w/o privity but now ord. neg. princ. w/o
privity of whether acted rsbly
- Still prob's of proof of unrsbl behav.
- Gen'ly wholesaler & retailers R not neg.
- Breach of Express Warranty
- No privity
- Reliance on D's warranty b/c consumer can't discov. defect
- Reliance on use of prod. / purchase of prod. (causation)
- D's S/M irrelev. b/c only need reliance
- Implied Warranty of Merchantability
- No privity
- Rely on implied waranty / fitness of gen. purpose
- Imposed by operation of law, not parties' express agmt
- Extends 2 purchasers, purchasers' family, & users
- USA's 3 versions
- Req's family / house of guest
- Nat. person exptected 2 use
- Only 1 talking about prop.
- Law of Sales
- No express disclaimer allowed & seller can't limit / excl.4
PI & cert. prop. damage
- Notice reqt by buyer 2 seller can B long, no notice, / inapplicable
- Mfgr. SL when article he places in mkt proves 2 have defect
causing injury 2 human
- Cost of injury born by mfgr as part of busi.
- Jury dec's
- Not a real SL b/c not spread risk but look 4 defect
- Busi. of Selling
- Defect: mismfgr, misdesign, failure 2 warn
- Causation in fact
- Prox cause
- Better than implied warranty b/c more dir. & honest through
law of torts
- Rest §402)a: Basic Approach (mismfgr)
- Sells any prod. in defective cond. unrsbly dang. 2 users so
- If busi. of selling
- Expected 2 reach user/consumer w/o subst'l change in condition
- Draft of Rest
- Defective prod. @ X of sale so no unrsbly dang. / subst'l
- Three categories of mfgr, design, & failure 2 warn 4 defect
- If dif. from other identical prod's & not what mfgr intended
- Cost of prod'ing bad absorbed & sellers can always indemnify
- Need unrsbly dang. & defect
- Imputed Knowledge Test: If rsbl person wouldn't put into stream
of commerce if knew then unrsbly dang'ly defective
- Consumer Expectation Test: More dang. than ord. consumer expects
- CA: Prod. differs from identical prod. from same mfgr
- Gen'ly same result
- Defect @ X of accident
- Defect @ X of sale
- Defect in basic concept & came out the way mfgr intended
- Harder 2 det. defect
- SL & neg. really close 4 mfgrs in misdesign case
- Cost Benefit W/Imputed Knowledge Test: Cost benefit analysis
w/imputed knowledge of the harm that prod. can cause
- Consumer Expectation Test: More dang. than ord. consumer expects
when use prod. in rsbly foreseeable manner
- CA: If benefit outweighed by risk inherent in that design
(neg.) OR prod. fails as consumer expects when used in manner
rsbly foreseeable by D (warranty)
- CA also shifts burden of proof 2 D when cost benefit w/imputed
- Prentis: No SL & go 2 neg.
- Rest 3rd Draft: Foreseeable risk of harm could've been lwred
by adoption of rsbl alt. design by seller / predeccesor (no cost
- Gen'ly, can't win in misdesign w/o better alt. by state of
the art but sometime may lose even w/best design if risk outweighs
- Custom not = 2 state of the art
- Rest §402)a, comment K: If prod. unavoidably unsafe b/c
hurt somebody & impossible 2 make it safer, exception (drug
- Mfgr not SL so long as properly prepared & warnings of
dang. propensities of known / rsbly scientifically knowable @
the X of distrib.
- Policy b/c drugs R good, 4 research, & quick availability
- Comment I: Inherent Charct. Rule Exception
- If prod. inherently unsafe & known 2 B unsafe by ord.
- Gen'ly prod. 4 consumption
- Failure 2 Warn
- Warn of known / knowable risk & no imputed knowledge
- Kind of warning & suff. which has no maj. but some say
best possible warning
- Dif. from misdesign b/c no imputed knowledge, may B good prod.,
& no limit
Proof of Prod. Liab.
- SL: Mismfgr
- Defect when accident
- Defect when left D's hand
- Can B all circumstantial evid. so long as more likely thatn
not defective @ both pt's in X
- Expert testimony
- Wouldn't occur normally
- Negate existence of probable causes not attributable 2 the
- Infer from phys. cond.
- Pers. Injury 2 User / Consumer or 2 Prop. Other than Defective
- Econ loss: not recov'able but go 2 UCC & sales law
- Harm 2 defective prod.: dep's in line drawing but no recov.
- Defective material used in process, prod. ruined, then recov.
- Line Drawing Soln's
- Hybrid: prod. & some other prop. then recov.
- Calamatous accidental loss: recov. but not 4 deterioration
Defenses 2 Prod. Liab.
SL Defenses in Prod. Liab.
- P's contrib. neg, A/R, / comp. neg.
- Prod. misuse
- Used Prod. seller
- Lessor & home sellors
- Service provider
- Contrib. Neg.
- Most forms of contrib. neg. not a defense
- Compl. defense
- Comp. Neg. (Maj.)
- Lwr P's recov. if P's unrsbl behav. contrib. 2 injury / prox.
cause of harm by comp. neg. but no bar
- Not det. if P was A/R but only assume unrsbl behav. &
not deal w/rsbl non-neg. A/R
- Prod. Not Defective
- No liab. & bar P's recov.
- Defect & defense of misuse rel'ed b/c benefit may outweigh
- Prod. Defective
- Not prox. cause of harm: Defense & no recov. 4 P
- Foreseeable misuse: No defense & recov. 4 P
- Unforeseeable misuse, abnormal unintended use of prod.: Defense
& recov. P
- Fed. Law Supreme If Conflict w/State Law
- Fed. can lay out when preemption may occur
- Fed. cay occupy the field & state can't intrude
- Used In Reg'ed Industry Like Tobacco
- Preemption In
- State law conflicting w/fed
- Priv. axn where P sues 4 failure 2 warn / misdesign
Use Prod. Seller
- No SL
- Can apply SL 4 orig. chain distrib. but not 4 used prod. seller
b/c can't distrib. liab. 2 mfgr
Lessor & Home Sellors
- No SL 4 Lessor but Becker v. IRM Corp allowed which is min.
- Seller of Homes liab. but not as much as mfgr / sellers
- SL 4 failure 2 disclose known cond's
- No SL b/c Not In Busi. of Selling
- Blood supplier not in busi. of selling b/c of policy 4 available
- Hybrid of Serv. & Prod. Seller
- If essence is serv, no SL
- Gen'ly, say serv. b/c prod. only incidental & neg. still
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