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Definition
brings the difficult questions of torts into focus |
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Definition
vicarious liability, Birkner test |
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Definition
apparent or ostensible agency, Rest. 2nd 409 and 429 |
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Definition
Judge Shaw, beginning of modern negligence, Rest. 2nd 283B,C,cmt |
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Definition
Cardozo: only precautions reasonably likely to prevent harm need be taken |
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Term
| U.S. v. Carroll Towing Co. |
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Definition
| B< PL: conceptualizing the standard of care |
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Term
| Bethel v. New York City Transit Authority |
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Definition
common carriers only held to reasonable care standard |
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Term
| Baltimore & Ohio Railroad Co. v. Goodman |
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Definition
judges should be able to dispose of claims w/ repetitive facts; any P negligence sufficient to kill claim |
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Term
| Pokora v. Wabash Railway Co. |
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Definition
overturns Goodman; standards of care must be taken from life |
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Term
| Andrews v. United Airlines, Inc. |
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Definition
encompasses numerous themes: standard of care, BPL, judge-jury roles, expert testimony |
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Term
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Definition
customary safety precaution plus D’s failure to follow created liability |
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Definition
following custom not proof of reasonable conduct where custom not reasonable |
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Definition
Cardozo’s holding that unexcused violation of safety statute is per se negligence |
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Definition
contra Martin, regulatory rules may be violated without creating liability where reasonable to do so |
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Term
| De Haen v. Rockwood Sprinkler Co. |
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Definition
liability may attach if secondary purpose of statute was to prevent suffered harm |
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Term
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Definition
liability does not attach where suffered harm not contemplated by the statute |
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Term
| Edwards v. Basel Pharmaceuticals |
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Definition
compliance w/ admin. rules not dispositive for liability |
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Term
| Negri v. Stop and Shop, Inc. |
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Definition
notice inferred from state of baby food and no auditory evidence of broken glass w/in 15 to 20 min period |
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Term
| Gordon v. American Museum of Natural History |
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Definition
constructive notice requires conspicuousness and duration |
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Term
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Definition
barrel out the window; origin of res ipsa loquitur |
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Term
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Definition
flying spare tire case; Byrne v. Boadle is alive and well; Rest. 2nd 328D |
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Definition
troubling use of res ipsa, where party in control of instrumentality was generally but not specifically known |
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Term
| Sheeley v. Memorial Hospital |
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Definition
any doctor w/ relevant training and experience may testify as to standard of care |
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Term
| States v. Lourdes Hospital |
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Definition
expert testimony can “bridge knowledge gap” to establish res ipsa in a specialized field |
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Term
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Definition
doctor who does not obtain patient consent can be found negligent regardless of care |
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Definition
absent special relationship, despite superior knowledge, no duty to warn; cf. also 321-22 |
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Definition
friendship special duty; once you begin helping, you must continue; 324, 43 |
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Definition
doc has duty to notify patients, even those not seen for some time, of defective implant |
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Term
| HR Mock Co. v. Rensaeller Water Co. |
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Definition
Tortured Cardozo opinion about water company not being liable for destruction of D’s warehouse by fire; deprivation of benefit does not equal causing harm |
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Term
| Straus v. Belle Realty Co. |
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Definition
electric co. only has duty to parties in privity |
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Term
| Tarasoff v. Regents of U. California |
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Definition
duty to warn of third party harm where there’s a special relationship and credible threat of foreseeable danger |
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Term
| Randi W. v. Muroc Joint School District |
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Definition
duty not to affirmatively represent, not to mislead by omission in recommendation letters, 310-1, 315 |
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| Uhr v. East Greenbush Central School District |
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Definition
| no liability for not complying w/ statute if no private right of action |
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Term
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Definition
social hosts have no duty to 3rd parties harmed by drunk minor inadv. served at their event |
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Term
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Definition
negligent entrustment: 3rd parties liable for buying car for teenager w/ drug/alcohol addiction, 390 |
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Definition
only licensee duty owed to Bible study guest for harms on premises 342 |
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Definition
hospital slip-n-fall: abolition of invitee/licensee distinction |
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Term
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Definition
business only liable for criminal assault on premises if probability of attack was foreseeable, and outweighed cost of precautions |
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Term
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Definition
unless negligence involved normal parental discretion or exercise of authority, mother owes duty of reasonable care to son notwithstanding traditional immunity |
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Term
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Definition
no police liability for denying request for protection where request falls w/in police discretion |
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Term
| Sorichetti v. City of New York |
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Definition
restraining order exception to Riss |
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Term
| Cuffy v. City of New York |
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Definition
police duty only where special relationship: 1 muni promise to act; 2 knowledge by muni’s agents that inaction would lead to harm; 3 direct contact between muni and injured party; 4 party’s justifiable reliance |
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Term
| Hoyem v. Manhattan Beach City School District |
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Definition
duty to kids during school hours, even if kids sneak off school premises |
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Term
| Lauer v. City of New York |
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Definition
Liability for negligence in performance of ministerial tasks, but only to those to whom tasks imply a duty |
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Term
| Friedman v. State of New York |
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Definition
No duty to reevalutate safety decisions; duty, though, to implement safety decisions made |
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Term
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Definition
Govt & its emps can be sued in fed dist court in trial w/out jury EXCEPT for discretionary acts or omissions; lost letters, monetary regulation, military activities, claims arising in foreign country |
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Term
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Definition
discretionary acts that implicate policy considerations [i.e. whether to resurface roads] is w/in FTCA discretionary exception; discretionary acts with no policy considerations do not [can sue for govt. failure to make sure posted warning signs effective |
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Term
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Definition
P can sue for negligence that causes reasonable fear of physical injury and physical illness or injury consequent to fear |
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Term
| Shatkin v. McDonnel Douglas Corp. |
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Definition
can recover for fear of impending death |
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Term
| Metro-North Commuter Railroad Company v. Buckley |
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Definition
Gotschall test: “zone of danger”: Ps who sustain a physical impact…, or who are placed in immediate risk of physical harm by that conduct: no recovery for dust in eye plus fear of asbestosis, 924a |
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Term
| Gammon v. Osteopathic Hospital of Maine, Inc. |
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Definition
vulnerability of victim makes emotional harm foreseeable, 436 |
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Term
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Definition
Dillon test: 1 near scene of accident; 2 sensory and contemporaneous observance; 3 whether P and vic closely related – Portee court said closeness paramount – specified “marital or intimate falmilial relationship” |
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Definition
fiancée allowed to recover in Dunphy, which rejected Elden |
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Term
| Johnson v. Jamaica Hospital |
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Definition
kidnapped infant, recovered after 4 months; parents had no claim for emotional distress; infant’s claims were the only ones the court would recognize [to avoid boundless liability] |
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Definition
NY case – overturned Tobin, which rejected Dillon in toto, and adopted “zone of danger” rule--> new cause of action in NY, but no new duty for Ds and circumscribed liability serious and verifiable emotional disturbance suffered by an immediate family member grounds for claim |
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Definition
court allowed loss of consortium claim for disclosure of information imparted in counseling session |
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Term
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Definition
parent loss of consortium claims for death or perm. brain damage to child in most jxs, but not all |
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Term
| Ferriter v.Daniel O’Connell’s Sons |
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Definition
child loss of consoritium claims for death of parents in some jxs |
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Term
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Definition
loss of consortium is a derivative claim – no claim where primary vic refuses to cooperate |
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Term
| Nycal Corporation v. KPMG Peat Marwick LLP |
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Definition
econ. harm: misleading fin. report claim fails where Ps did not fall w/in a lmtd group for whom report was intended, 552; sm states (NJ) have adopted broad foreseeability test in these sit’ns; ~.5 follow Nycal; ~.5 near-privity |
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Term
| 532 Mad. Ave. Gourmet Foods, Inc. v. Finlandia Cntr. Inc. |
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Definition
economic harm damage in collapsing building case limited [by scope of duty considerations] to businesses that also suffered personal injury or property damage |
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Term
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Definition
wrongful birth action recognized in negligent tubal ligation case; damages vary by jx, w/ health/unhealthy baby distinction being very important: 920 |
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Term
| Stubbs v. City of Rochester |
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Definition
If two or more causes exist, for only one of which D liable, only “reasonable certainty” of direct cause of injury req’d |
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Term
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Definition
No abuse of discrtn under Daubert: theory tested?; peer review & pub.; pot’l rate of error; gen’l accptnce. Ctg Card&Trayn: if neglig inc’d chances of accid’t & accid’t occurred, neg. party must prod evid contra but-for causation, 431-32, 26cmt.j |
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Term
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Definition
where two Ds negligent toward P but only one caused harm, both may be held liable; burden to disprove liability shifted onto each D, 3rd 26 cmt. h |
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Term
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Definition
where only one of two Ds negligent, cannot hold both liable as in Summers, esp. where Ds are not in a superior position to know who was actually at fault |
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Term
| Hymowitz v. Eli Lilly & Co. |
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Definition
national market-share liability may be imposed where a completely fungible product, produced by multiple manufacturers, is tested and marketed w/ equal negligence by all manufacturers – only exception is if some Ds did not market product for use that caused harm – only works justly if all courts follow the same scheme |
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Term
| Bower v. Westinghouse Electric Corp |
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Definition
given demonstrable exposure to dangerous chemicals, court refused to treat existing physical harm as a prerequisite for recovery; citing public health interest, deterrence, and fairness, allowed for recover of medical monitoring expenses if: 1) significant exposure, 2) proven hazardous substance, 3) tortious conduct of D, 4) increased risk of latent disease by proximate cause of exposure, 5) reasonably necessary for P to be tested periodically, and 6) effective monitoring procedures exist |
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Term
| Henry v. Dow Chemical Co. |
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Definition
expos of thous’s to dioxin, no liability for mntr’g; would intrude on legis function |
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Term
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Definition
eggshell P – jury should be instructed in the rule where P w/ pre-existing heart condition died a few days after being rear-ended, 461 |
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Term
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Definition
where P was negligent, P is liable for the damage caused however unforeseeable or remote |
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Term
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Definition
D’s liability depends on reasonable foreseeability of consequent damages; slight negligence does not make one liable for unforeseeable, grave harm; 3rd 29 |
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Term
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Definition
not justifiable to disregard even slight chance of significant harm w/out good cause [i.e. prohibitive expense] |
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Term
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Definition
to fall w/in scope of risk, harm actually suffered must be of same ‘general type’ as that which makes D’s conduct negligent, 441 and 442B |
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Term
| Palsgraf v. Long Island Railroad Co. |
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Definition
Cardozo: risk reasonably to be perceived defines the duty to be obeyed; it is risk others w/in the range of apprehension; Andrews: everyone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others; the question to be asked is: was the negligent cause a substantial factor in a natural and continuous sequence that produced the effect? |
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Term
| Wagner v.International Railway Co. |
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Definition
Cardozo: danger invites rescue; negligent party liable for injury to rescuer |
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Term
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Definition
D collided w/ car, hit traffic box jamming signals for several lights; P was hurt at an intersection two miles away --> liability imposed |
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Term
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Definition
both shipowner and city liable because flood damage foreseeable from wreckage of ship negligently secured and failure to lift bridge in time: case expressly approved Wagon Mound but read like Polemis: “damage was caused by just those forces whose existence required the exercise of greater care than was taken” |
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Definition
Ds not liable for higher costs of unloading ships and purchasing grain because harm too remote |
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Term
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Definition
absent specific exceptions like failure to reveal medical history, P’s negligence in suffering harm is not comparative negligence for purposes of mitigating doctor’s negligence in medical malpractice suits [evidence of alcohol abuse, however, relevant to damage award in wrongful death suit – court required bifurcated proceedings] |
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Term
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Definition
P under no obligation to undergo surgery to mitigate D’s negligence |
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Term
| Meyer v. City of Des Moines* |
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Definition
where violation of safety statute causally related to harm (e.g., not wearing bike helmet), D’s liability may be reduced by small percentage (5%); however, evidence of not wearing helmet not admissible for purpose of determining comparative fault because it would destroy P’s ability to collect |
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Term
| Swajian v. General Motors Corp. |
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Definition
D not wearing seatbelt doesn’t reduce P’s liability |
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Term
| Waterson v. General Motors Corp. |
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Definition
attempt to steer an intermediate course between no liability reduction and total reduction for failure to observe legal safety standards |
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Term
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Definition
contract disclaiming liability not valid where it violates public policy, including concerns about unequal bargaining power and concerns about maintenance of safe premises; argument about not providing essential public service not availing; premises duty of care “increases proportionately w/ foreseeable risks of the operations”, § 496B cmt b; Tunkl factors: 1) duty to the public; 2) nature of service; 3) contract fairly entered into; 4) clear expression of parties’ intent |
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Term
| Murphy v. Steeplechase Amusement Co. The Flopper |
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Definition
Cardozo [Implied Assumption of Risk]: One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary – standard negligence analysis |
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Term
| Davidoff v. Metropolitan Baseball Club |
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Definition
where Ds have erected protective screen at ball park, Ps must show that there are not sufficient seats behind the screen to reasonably accommodate spectators who would prefer that seating |
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Term
| Davenport v. Cotton Hope Plantation |
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Definition
[Secondary Implied Assumption of Risk]: SIAR is an affirmative defense, but under comparative fault structure, P’s negligence must exceed D’s to bar recovery [minority view allows complete defense] |
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Term
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Definition
exception to the firefighter’s rule: when chasing D on property that is not D’s, police may recover for injuries |
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Term
| Camacho v. Honda Motor Co., Ltd. |
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Definition
Ortho test for unreasonable design: 1) usefulness and desirability; 2) likelihood and seriousness of injury; 3) availability of safe substitute product; 4) manf’s ability to make safe w/out making product too expensive or impairing usefulness; 5) user’s ability to avoid danger by exercising care; 6) user’s awareness of danger (obviousness, warnings); 7) manf’s ability to spread risk through insurance and price adjustments |
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Term
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Definition
adequacy of warning: it must indicate: scope of danger, seriousness of resultant harm, physical aspects of warning sufficient to alert a reasonably prudent person; directive warning inadequate if it fails to indicate consequences of ignoring directive; means to convey warning must be adequate |
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Term
| Vassallo v. Baxter Healthcare Corporation |
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Definition
in view of Rest 3rd Prod Liab sect. 2(c) and comment m, court revised MA liability law to require that D only be held liable for failure to warn of risks foreseeable at time of sale or that could have been discovered by reasonable testing. Manf. held to standard of knowledge of expert in the appropriate field |
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Term
| MacPherson v. Buick Motor Co. |
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Definition
Cardozo: if a thing negligently made is very probably dangerous and the manf. knows persons other than the owner will use it, the manf. owes a duty to them to make the thing carefully; buying the part that proved defective from another manf. does not absolve overall manf. of duty |
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Term
| Escola v. Coca Cola Bottling Co. |
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Definition
where numerous bottles are made well and one proves dangerously defective, it may be assumed that one was made negligently; Traynor concurrence: manf. putting an item on the market he knows will be used w/out inspection is strictly liable for its defects; retailer also liable via implied warranty of merchantability; no reason to differentiate consumer from food products (risk allocation; fairness to injured party disadvantaged at trial |
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Term
| Edwards v. Basel Pharmaceuticals |
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Definition
learned intermediary doctrine invalid in mass immunization context and where FDA has mandated warnings be given directly to the consumer; req that warning must be adequate to describe possible dangers associated w/ product means mere compliance w/ FDA req may not be enough |
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Term
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Definition
discolored teeth in resp. infection drug – D said effect could not have been known earlier - knowledge of danger imputed to manf. in strict liability case, and manf. had an affirmative duty to seek out information and expertise; D had burden to prove when the relevant info. became available. |
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Term
| Humble Sand & Gravel, Inc. v. Gomez |
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Definition
bulk supplier defense when certain factors met: likelihood of injury from supplier’s failure to warn; burden of giving warning; feasibility and effectiveness of warning; reliability of employers to warn employees; other protections; social utility of requiring warning – burden of proof on suppliers to show warning would be ineffective |
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Term
| Indiana Harbor Belt Railroad Co. v. American Cyanamid Co. |
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Definition
Negligence regime, not strict liability, adequate to remedy and deter, at reasonable cost, the accidental spillage of chemicals from rail cars (also, in law, hazardousness is a property of activities, not substances |
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Term
| Trull v. Volskagen of America, Inc. |
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Definition
For “indivisible” injuries, once P shows defect prob. produced injuries above and beyond those produced by impact, D has burden to show which injuries were caused by impact, which by defect [majority view, but courts divided] |
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Term
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Definition
D’s dynamiting of a tree killed P (walking on a highway). As distinguished from a boiler exploding on one’s property, dynamiting releases a force voluntarily and D is liable for direct (but not consequential) harms |
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Term
| Soule v. General Motors Corporation |
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Definition
where P’s theory of design defect entails technical and difficult-to-understand design questions, Barker’s consumer expectations test is inappropriate [footnote observes that many states have jettisoned that part of Barker] |
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Term
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Definition
RAD test applies differently too (and largely exempts) simple tools (i.e. disposable lighter); in Swix v. Daisy Manufacturing Co., a BB-gun found to be a simple tool; also in Hernandez: products designed for adult need not be made safe for children |
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Term
| Perez v. Wyeth Laboratories, Inc. |
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Definition
learned intermediary doctrine does not apply when drug or device marketed directly to consumer, but compliance w/ FDA req is rebuttable presumption of due care [some jxs don’t allow l.i.d. exception for drugs marketed directly] |
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Term
| General Motors Corporation v. Sanchez |
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Definition
P’s award cut in half due to his negligence in using the faulty transmission; court said to avoid such an outcome, he would have had to comply w/ all the reqs in the car’s manual; said higher standard appropriate because P a licensed vehicle operator |
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Term
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Definition
though D free from all blame (couldn’t sue D’s negligent contractor), where D brings onto his land anything likely to do mischief if it escapes, if he does not keep it contained, he is prima facie answerable for all damage |
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Term
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Definition
judge may allow jury to consider whether danger of a product so outweighs its utility as to constitute a defect [above-ground swimming pool] |
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Term
| General Motors Corp. v. Saenz |
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Definition
court declined to follow “heeding presumption” and require GM to prove P would not have followed a more adequate warning |
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Term
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Definition
Explicitly rejects Fletch in American Industrial context (1873) |
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Term
| Barker v. Lull Engineering Co., Inc. |
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Definition
high-lift loader case that is origin of two-prong products liability analysis: ordinary consumer test or RAD analysis; some states follow RAD only, a few (WI) the other only, some both |
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Term
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Definition
though 98% of users removed guard and expert testified product was not safe to operate as sold, court upheld JMOL because of third-party modification |
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Term
| Scarangella v. Thomas Built Buses, Inc. |
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Definition
where buyer is knowledgeable, product is not unreasonably dangerous under some normal circumstances, and buyer can balance risk-utility of purchasing optional safety equipment, manf. not liable |
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Term
| G.J. Leasing Co. v. Union Electric Co. |
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Definition
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Term
| Daly v. General Motors Corp. |
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Definition
products liability case in which majority allowed comparative fault; dissent questioned whether jury could reasonably be expected to weigh P’s negligence against D’s defective product |
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Term
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Definition
where third-party modification precludes design defect claim, failure-to-warn theory may nonetheless go forward, though safety features are themselves an effective way to communicate a warning |
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Term
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Definition
FTCA doesn’t permit recovery against fed. govt. based on strict liability |
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Term
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Definition
Where product user witnesses harm to another caused by product, usual barriers to recovery for negligently inflicted emotional distress did not apply |
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Term
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Definition
more expansive liability for successor corps who acquired all assets of predecessor |
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Term
| Beshada v. Johns-Manville Products Corp. |
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Definition
NJ asbestos case in which strict liability claim enforced despite manufacturer arg. that danger of asbestos unknown at time; court said strict liability was about product, not manf. |
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Term
| Hood v. Ryobi America Corp. |
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Definition
clear and unequivocal warning adequate even when ignoring the warning produce other kind of harm than reasonably anticipated
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Term
| Boyle v. United Technologies Corp. |
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Definition
military contractor defense: 1) govt. approved precise specs; 2) equipment conformed to specs; 3) contractor warned against known hazards |
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Term
| Dreisonstok v. Volkswagenwerk, A.G. |
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Definition
no liability where safety of van design could not have been improved w/out defeating the purposes of the design |
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Term
Baptist Memorial Hospital v. Sampson |
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Definition
Plaintiff treated in emergency room denied recovery against the hospital because attending physician was an independent contractor; notice of i.c. status appeared on the wall and on signed forms |
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Term
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Definition
intervening criminal conduct did not insulate railroad from liability where RR employee instructed woman to walk through dangerous area after carrying her past her stop and woman was raped |
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Term
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Definition
hotel liable for guests injured during escape from fire even though fire caused by arson, where fire escape’s inadequacy was negligent |
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Term
Seffert v. Los Angeles Transit Lines |
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Definition
appellate court can interfere w/ damage award only if it is so large as to shock the conscience; court doesn’t reach per diem basis of award, which Traynor argues forcefully against in dissent |
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Term
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Definition
P must prove some awareness in order to sue for pain and suffering; loss of enjoyment cannot be compensated separately; strong dissent |
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Term
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Definition
collateral source rule: rule allowing full recovery of damages even if Ps have received medical insurance extended to cover charity, which was not given to benefit the tortfeasor |
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Term
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Definition
punitive damages merited in drunk driving case where D’s repeat offenses permit the assumption of malice and public policy favors such damages for purposes of deterrence |
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Term
State Farm Mutual Automobile Insurance Co. v. Campbell |
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Definition
few awards exceeding a single-degit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process |
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