What happened? (Zuchowicz – 2x drug dose, then change back to single dies of complications) What would have happened had Δ acted with due care? What was the untaken precaution? (Grimstad – husband drowns before wife gets rope) Would it have changed the outcome? RUN THE COUNTER FACTUAL Exposure to harmful substance (Gen Elec v. Joiner – PCB) Substance – substance that Δ is responsible for Source – Δ is the source Exposure – Π was exposed and it caused the condition Mechanism – usually “signature” wrong (find a group exposed to high levels) Admissibility of scientific evidence Frye – only “generally accepted” scientific data Daubert – district court discerns when scientific evidence is adequate to establish a causal chain Lost chance Herskovits v. Group Health Cooperative – misdiagnosed lung cancer Proportional below 50% (ex ante), full if above 50% Fennel – 0/1 with discontinuity at 50% Calculation: Joint Causation – Multiple Sufficient Causes Summers v. Tice – Guy shot by one of two Δ Fire Cases RTT §27 – if multiple acts exist, each of which would have been a factual cause under §26, each is regarded as the factual cause of the harm RST §433a – Apportionment of harm to causes – damages are apportioned when there is a reasonable basis for determining the contributions. No apportionment for other harms. Temporal distinction – most courts will only hit the first cause RAE – hit the cause for rent according to the time delay before the second Market share liability Sindell/DES Name most or all of tortfeasors as Δ (substantially all manufacturers at the time) Products must be identical and share the same defect (fungible) is unable to ID which Δ through no fault of her own rata apportionment unless a Δ can show market share Skipworth – Lead is not a fungible good PROXIMATE CAUSE Generally – cause which, in natural and continuous sequence, produces injury without which the injury would not have occurred Substantial Factor Test – showing Δ’s negligent conduct was a substantial factor in bringing about Π’s harm Run counter-factual and excuse Δ if the outcome is the same
Coincidence (Harm-Within-the-Risk) Harm not within the risk Barry v. Sugar Notch Borough – speeding train has tree fall on it Georgia Ry v. Price – train didn’t stop, woman burned by lamp at hotel Harm within the risk Hines v. Garrett – train didn’t stop, woman raped in bad neighborhood on way home RST §448 – Antecedent wrong that persists til 3rd person committed tortious act is liable until person reaches safety Directness vs. Foresight Foresight (ex ante) Beginning with Δ’s negligence, was Π’s harm a foreseeable consequence when Δ acted? Directness (ex post) Start with harm and work back to Δ’s negligence – is there a superseding cause that severs causation? Δ’s negligence increased the risk of harm remains til risk returns to levels General Mound #1 – Δ not liable when spilled oil into harbor that burned down a wharf when servants of Π were welding with knowledge that oil was there Palsgraf – innocent trigger (unforeseeable), fails negation, In re Polemis – was it foreseeable a board falling into a hold of benzene would explode? Direct and probably foreseeable Unforeseeable unbroken causal chain Hebert v. Enos – guy gets shocked gardening at Π’s house Not foreseeable, but direct Risk not dissipated Marshall v. Nugent – Truck cuts corner, forces Π off road, Δ swerves to miss stalled car, hits Π Truck liable Intervening/subsequent cause – still liable for foreseeable intervening causes Brower v. NY central & HRR – train destroys Π’s cart, barrels stolen by thieves train liable Compulsion/Duress Danger invites rescue (Wagner v. International Ry – guy falls rescuing dead cousin) City of Lincoln – Π from Δ’s coach when it was out of control. Doesn’t sever causation if he wouldn’t have been injured had he stayed put Tuttle Rule – if Δ’s negligence puts Π under apprehension of injury and Π sustains injury during good faith effort to minimize loss, doesn’t sever causation Thin Skull Π – Take Π as Π is NIED Dillon Test How close was Π to accident? – no need to be in “zone of danger”
Did the shock result from direct emotional impact from watching the accident? – can’t hear about it Was there a close relationship between Π and the injured party? – no gay people Thing factor – emotional distress must be beyond that of a disinterested witness RAE factor – allows recovery for physical harms but not mental problems Distribution 2 states use “impact test” 10 states use “zone of danger” 29 states use Dillon 3 states go beyond AFFIRMATIVE DUTIES Analysis Statutory duty – is there a COA built into statute creating affirmative duty? Common law – misfeasance vs. nonfeasance Malice – always a duty against willful misconduct Misfeasance vs. Nonfeasance – Δ has duty to harm others, but no affirmative duty to help Π Duty to Rescue Generally – is no duty to rescue Hurley v. Eddingfield – Doc refuses to help patient Some states have affirmative duty statutes when risk/cost is to Δ Duty based on prior conduct (Tort Exception) There is a duty on Δ who has created a risk and is in a position to mitigate through reasonable care Montgomery v. Nat Convoy and Tucking Co – trucks stall blocking icy road, don’t set flares Δ cannot interfere with Π’s ability to receive assistance – cannot begin rescue and then discontinue aid leaving Π in worse condition Special Relationships – duty to control acts of 3rd parties Generally: RST §315 – no duty to control 3rd party unless (1) special relation exists between actor and 3rd person imposing a duty to control 3rd’s conduct or (2) special relation exists between 3rd and Π which gives Π a right to protection Weirum v. RKO General Inc – DJ encourages idiots to race to location Landlord/tenant – Consider totality of circumstances (Kline v. 1500 Mass Ave) Duty – precautions are proportionate to risk Did precautions lapse over time? Common area vs. Private area Causation In fact – do we know identity of intruder/mode of attack? Would precautions have mitigated the harm? COUNTER-FACTUAL Proximate – Foresight was this a foreseeable harm? Did Π’s conduct contribute to the harm?
Contributory Negligence RST §463 – Π’s negligence contributes proximately to his injuries Complete bar to recovery Last Clear Chance – duty to mitigate (Butterfield v. Forrester – riding fast, hits pole across the road) Δ must show cause in fact and proximate cause – i.e. speeding in car does not contribute to someone running a red light and broadsiding you Assumption of Risk Primary Express – via K or waiver Both parties must be on equal footing, no willful or wanton misconduct Implied – Can be presumed under the circumstances Δ owes no duty to Π the circumstances The flopper – non-latent hazard Lamson – Employee complains then continues to work RAE – the less safe axe rack is faster for a skilled worker Secondary Akin to contributory negligence Π sees Δ’s negligence and chooses to continue Comparative Negligence Pure – 13 states – apportion according to relative Li v. Yellow Cab – also established joint liability to multiple Δ (one settles, everyone else is on the hook for the whole remainder) Modified “Threshold” 21 states – Π must be ≤ 50% at fault 9 states – Π must be < 50% at fault NOTE – large discontinuity at the point where many cases end up HIGH ERROR COST WITH NORMALLY DISTRIBUTED DATA Admiralty – pro rata NOT IN USE BUT RAE LIKES IT Equal apportionment to everyone irrespective of blame LOW ERROR COST WITH NORMALLY DISTRIBUTED DATA & JOINT TORTFEASORS Joint and Several Merryweather v. Π collects one compensation for injury Π sues Δ1, that amount is deducted from what can come from Δ2 Π release of one releases all, BUT covenant to not sue Δ1 (settlement) reduces damages by settled amount, not proportion of loss caused by settling Δ Several Π has separate action against each Δ, each Δ is only responsible for his share of the loss CA statute – several liability for non-economic (pain and suffering) damages Indemnity vs Contribution RST §886 – if Π settles with Δ1, Δ1 can go after Δ2 for contribution IF Π has no claim (or released claim) against Δ2 Pro rata – even division of loss apportionment
Economic Loss Rule – Damaged sustained to the product are not actionable under product liability; only damage to “other” property and injury to persons result in product liability Akin to expectation damages Damage elements Pain and suffering Worry, anguish, and grief Medical expenses Lost earnings attributable to the accident – Economic Calculation Per Diem – quantify some unit of time that can be estimated then multiply out Look to past decisions in jury reports McDougald v. Garber – Botched C-Section – Lady in a vegetative state No pain and suffering/future enjoyment must be able to experience the loss RAE – Make 2 separate inquiries, P&S must be experienced, FE maybe not