1.

Chapter 1: An Introduction to Torts

a. What is a tort?
i. when someone does something wrong or injerous to another

b. An example of a tort suit

i. Walter v. Wal-Mart Stores, Inc. (5)- π rcvc wrong chemo drug from
pharmacy. causes internal bleeding and other complications.
1. A judgment and compensatory award are proper where the
evidence of liability is overwhelming--no issue of material fact
exists and where the evidence of harm provides a rational basis
for the amount of damages.

2. Chapter 2: The Duty Element

a. Heaven v. Pender (1883)- considered too broad a ruling later but is the 1st case
ct attempts to define the relation btwn 2 persons and the duty owed
i. whenever one person is placed in a position over the other a duty is
formed to use care to avoid harm

b. Negligence: A brief overview

i. Elements of the prima facie case
1. Negligence
a. duty, breach, causation (actual/proximate), injury
2. Product Liability
a. injury, prod sold by ∆, ∆ is commercial seller of prod, prod is
def, causation (actual/proximate)

c. The duty element and the general duty of reasonable care

i. The evolution of duty rules
1. Privity- the proximity of relation btwn 2 parties
a. defines the duty contractually owed to another
b. Winterbottom (56) -- wheel collapsed off vehicle when
driving permanently injuring leg
i. relationship was too far remote and ct did not grant
remedy (damnum absqe injuria- harm without
wrong)
 2. Macpherson v. Buick Motor Co (59)- ∆ sells car to dealer who sells to
π. π drives off lot and car collapses--wheel made of defective
wood.
a. There is a duty of reasonable care that runs from the
product manufacturer to a user not in privity w/
manufacturer whenever the nature of the product alerts the
mauf that if carelessly made and used w/o inspection it is
likely to cause danger to life and limb
b. Manuf knows or should know dangers posed by product if
carelessly made and not inspected
c. Manuf can expect that product will not be inspected for
safety by anyone prior to its use
d. Privity no longer affects liability
e. Cardozo opinion
f. Imminent danger
i. Thomas v. Winchester--mislabeled poison as
medicine bottle, woman poisoned.
g. Foreseeability- should ∆ have seen that lack of inspection by
dealer could lead to accident?

3. Mussivand v. David (67)- π’s wife has affair with ∆ and contracts STD
which is passed to π. π sues ∆ for negligence.
a. Due to public policy is foreseeable that π would sleep with
spouse so duty extends.
b. foreseeable injuries = duty, spousal relationships = duty
c. someone w/ STD has duty to use reasonable care to avoid
infection to others when engaging in secual conduct

d. Qualified duties of care

i. Misfeasance- doing lawful thing improperly (active misconduct)
ii. Nonfeasance- passive in action or failure to take steps to protect a person
from harm
iii. Duty of Care- Basic Rule
1. one has no legal duty to come to the aid of another
a. Exceptions
i. ∆ had a hand in putting π in risk of harm may have duty
to take reasonable steps to warn, protect, or rescue
ii. Voluntary undertaking to warn, protect or rescue
iii. Certain pre-tort relationships

iv. Affirmative duties to rescue and protect

 1. Osterlind v. Hill (76)- intoxicated canoe renter. π starts to drown, calls
for help, ∆ hears him and ignores the calls. π drowns.
a. no duty to rescue. death due to unwillingness to provide
assistance is not going to lead to liability unless a special
relationship exists.

2. Baker v. Fenneman & Brown Properties, LLC (77)- π enters Taco

Bell, has seizure and hits head on floor. Comes to, gets up--clerk
asked if wanted ambulance. π declines then has another seizure
and is knocked unconscious. Was choking on blood and teeth
when comes to--stumbled to parking lot to friend who called fiance
to take him to hospital.
a. Public policy--a business has a duty (should assume
affirmative duty) to care for customers even when injury
isn’t their fault until customer can be cared for by someone
else
b. Wanton Disregard- willful disregard to the safety of the
property/person, just shy of intentional harm

v. Premises liability
1. Leffler v. Sharp (88)- π is on business trip and is intoxicated.
Party moves to Quarter Inn and π climbs through window onto
roof thinking he saw other patrons out there. π falls through roof
and is injured. (entered as licensee became trespasser when
entered roof)
a. Property owner has duty to keep premises reasonably safe
and when not reasonably safe to warn only where there is
hidden danger not in plain and open view
b. 3 steps to determining liability
i. classifying injured person as invitee, licensee, or
trespasser
ii. duty which was owed to injured party
iii. whether duty was breached by landowner/business
operator
c. Invitee- person who enters a property of another in answer
to express or implied invitation of owner for their mutual
advantage
d. Licensee- person who enters property of another for
convenience, pleasure, or benefit pursuant to license or
implied permission of owner
e. Trespasser- person who enters another’s property without
license, invitation, or other right for his own purposes,
 pleasure, convenience, curiosity and without any
enticement, allurement, inducement, or express or implied
assurance of safety from owner
f. Only 20% of states have abandoned the categories, 50%
have thrown out the distinction between licensee and
invitee, and have kept tresspasses, and 30% have kept
original categories

vi. Pure economic loss

1. Aikens v. Debow (98)- ∆ drives truck under overpass and damages it.
π sues for pure economic loss since difficult for business to come in
while overpass being repaired.
a. public policy--cannot recover only for pure economic loss in
negligence case unless special relationship exists btwn π and ∆
and injury complained of was foreseeable by ∆
i. exceptions
1. parasitic to personal injury: passenger in
accident breaks hand--driver/employer
liable for lost income due to injury
2. parasitic on tangible property damage: truck
drives into lodge they were staying at--shuts
it down

e. Rowland, Tarasoff, and the Meaning of Duty

i. Rowland v. Christian (112)- ∆ tells π sink is broken. π injures hand (torn
tendons/nerve damage) when using faucet. ∆ alleges contributory neg and
assumption of risk. ∆ had common duty to maintain premises--failure to warn or
repair condition constitutes negligence.
1. Dissent- judicial activism--large scale changes in doctrine should
be enacted by legislature
2. Property owner is responsible for injury caused to another by want
of ordinary care or skill in the management of his property

ii. Tarasoff v. The Regents of the University of California (112)- Poddar tells
therapist is going to murder π. Therapist calls police who arrest P then
release determining not an immediate danger/threat. π returns to town and P
murders her. ∆ claim no duty to π.
1. “protective privilege ends where public peril begins”
2. Special relationship of therapist to pt imposes duty where therapist
must warn pt’s intended victim of threat posed to her if therapist
 predicts or should predict pt is a serious threat to the safety of that
individual
3. Tarasoff Factors
a. foreseeability of harm
b. degree of certainty that π suffered injury
c. closeness of connection btwn ∆ conduct and injury suffered
d. moral blame
e. policy of preventing future harm
f. extent of the burden to ∆
g. consequences to the community of imposing a duty to
exercise care with resulting liability for breach, availability,
cost, and prevalence of insurance for the risk involved

3. Chapter 3: The Breach Element

a. Duty, Breach, and the Meaning of “Negligence”
i. Breach- question of fact for jury to decide

ii. Myers v. Heritage Enters, Inc. (142)- π falls in nursing home while being
transferred from bed to wheelchair, hits arm of hoyer lift and fractures the
tibia and fibula on both legs. Wrong SOC instruction given to jury--
shouldn’t have applied professional negligence standard for CNA.
1. When interpreting legislative intent must first look at the plain
meaning of the statute (what do the words actually say)
2. Professional negligence rqrs expert testimony to establish SOC

iii. Martin v. Evans (146)- ∆ backs tractor trailer out of parking spot, feels
nudge, sees someone waving--had pinned π between truck and π’s
vehicle. π suffered arm and back injury.
1. Trial ct can only overturn jury verdict when it is so contrary to the
evidence that it shocks one’s sense of justice
2. Credibility determinations lie with the jury

iv. Pingaro v. Rossi (151)- π enters ∆ yard to perform meter check for job. ∆ dog
attacks π, results in many injuries. π sues under NJ dog bite statute and
strict liability.
1. π must prove: ∆ owned dog, dog bit π, π was lawfully on premises
2. Owner is responsible for damages of an individual if person is
lawfully in or on the premises and their dog bit the person
3. Strict liability- holds party responsible no matter what precautions
are put in place
 a. Difference btwn negligence and strict liability
i. Negligence determines fault
ii. Strict liability doesn’t look at fault rather whether
conditions of statute/regulation are met

v. Jones v. Port Authority of Allegheny County (152)- π gets on bus and is

injured when driver pulls away from curb before he reaches seat, injured
arm. π claims common carrier owes heightened duty of care to fare
paying passengers. New trial granted--jury not given proper instructions.
1. failure to properly instruct jury on duty owed may result in a new
trial
a. no guarantee that new trial will have different result

vi. Campbell v. Kovich (154)-∆ mowed lawn and as π walked by on sidewalk was
hit in head with object. No genuine issue of fact whether ∆ was operating mower
with reasonable care.
1. ordinary care must be taken by professionals in simple positions
such as lawn care to avoid the risk of injury to another

vii. Adams v. Bullock (155)- π using bridge to cut btwn streets, swings 8 ft wire
which hit overhead trolley line and shocked/burned π. Ct rules no special danger
on bridge that would have made injury foreseeable to ∆.
1. An injury must be reasonably foreseeable to hold a business
responsible for not setting up preventative precautions
2. Echo of McPherson
a. rqrment of ∆ to scan the environment by envisioning possible
harm
i. reasonable care is to be expected
3. Custom- regularly excepted/known business practice
a. no custom disregarded by ∆

b. Defining the person of ordinary prudence

i. Vaughan v. Menlove (162)- ∆ stacks hay and is warned shouldn’t continue. ∆
says he will “chance it”. Hay catches fire and spreads to the surrounding
properties. ∆ argues should be held to lower standard of neg based on his
intelligence (objective not subjective standard). Ct says would set dangerous
precedent as no clear standard could be established--must be a uniform standard
for all (objective).
 1. A person has a legal duty to use his or her property with the same
level of ordinary care that would be exercised by a reasonable
person.
2. Ordinary prudence should be standard ascribed to when
evaluating risks tied to individual’s actions
3. Tort Law Cannon for Breach -- very important case!!
4. Exception to objective standard=children under 7 and
handicapped/incapacitated people

ii. Appelhans v. McFall (164)- 5 yr old runs into π (66 yr old) while riding
bicycle. π suffers injured hip and sues parents for negligence.
1. When a rule of law has been settled it should be followed unless a
party can show that serious detriment prejudicial to public interest
is likely to arise
2. Tender Years Doctrine- if the actor is a child under age 7, the
standard of conduct to which he must conform to avoid being
negligent is that of a reasonable person of like age, intelligence,
and experience under the circumstances
3. Negligent entrustment- give a child something you know they
cannot be trusted with

c. Industry and Professional Custom

i. The T.J. Hooper (175)- 2 barges carrying cargos of coal to NY being
pulled by 2 tugs. Tugs get lost in a storm off coast of NJ. Tugs didn’t
carry radios allowing them to get weather updates--otherwise storm could
have been avoided by entering Delaware Breakwater. Barges sprang
leaks. Cargos and tugs claim barges were not fit for voyage. Cargos and
barges claim tugs should have entered DE Breakwater and didn’t properly
handle tows.
1. When precautionary tools are available but avoided in use the
fault of the injury falls on the party who did not adequately perform
their duty by taking said precautionary measures
2. Custom is not determinative of reasonableness and SOC

ii. Johnson v. Riverdale Anesthesia Associates (178)- π had severe reaction to

anesthesia during surgery, resulted in massive brain trauma and death. π never
preoxygenated by ∆. Ct ruled π could NOT cross examine ∆’s expert on personal
practices and how he would have treated π.
1. dissent
 a. expert testimony re personal practices not offered for truth but to
impeach testimony. Should be admissible for credibility. trial ct
didn’t allow a thorough and sifting cross examination of ∆
expert.
2. Cannot ask an expert about his personal practices and how he
would have treated π under similar/same circumstances to
establish SOC or impeach expert’s credibility
3. OVERRULED by Condra v. Atlanta Ortho Group, infra
4. Custom- want to cross examine to say ∆ deviated from custom within
med field. π must show a violation of degree of care and skill rqrd of a
physician. standard is what is ordinarily employed in the med field.
a. anti T.J. Hooper rule--in med mal custom is dispositive.

iii. Condra v. Atlanta Orthopaedic Group (182)- π goes to dr for treatment of

back, neck, and arm pain--is prescribed Tegretol. Dr did not regularly test blood
count. ∆ expert said is his common practice to test when he prescribes same drug
but wasn’t mandatory so not breach in SOC--likely wouldn’t have caught aplastic
anemia.
1. Jury instructions may not mislead the jury’s understanding of the
SOC
2. In a medical malpractice suit, a court may not exclude evidence of
an expert witness’s own practices as they relate to the applicable
standard of care, unless the evidence is excludable on other
evidentiary grounds.
3. Hindsight Instruction (jury)- says liability can’t be based on
hindsight. Was assessment improper b/c dr failed to follow SOC
practices? (183)
4. REVERSED Johnson v. Riverdale anesthesia

iv. Largey v. Rothman (185)- π had biopsy and lymph node excision. Claims
never consented to excision and contracted lymphedema (swelling of
nodes).
1. Informed Consent- duty of the physician to disclose to pt
information that will enable pt to make evaluation of the nature of
the treatment and of any attendant substantial risks
2. Per Se- act is negligent b/c it violates a statute or regulation
3. Objective test must be used and rqrs P prove not only that
physician failed to comply with the standard for disclosure but also
that failure was the proximate cause of π’s injury
4. Patient Rule- duty to professional to explain everything that may
take place as a result of surgery
 a. Standard of Pt Rule- test for ∆ materiality--physician knows or
should know that disclosure of information/possible
complications would attach significant concern and affect a
reasonable pt’s decision
5. Professional Rule- Medical problem at hand is all that must be
discussed

d. Reasonableness, Balancing, and Cost-Benefit Analysis

i. ***United States v. Carroll Towing Co (198)- Barge carrying flour owned
by US breaks away from pier and damages surrounding boats before
sinking. Whether liability for failure to take precautions to avoid harm
depends upon the probability of injury and the gravity of any resulting
injury.
1. Learned Hand’s Comparative Negligence Formula
a. B<PL=liability
b. B>PL=no-liability
i. B- cost associated w/ avoiding the harm, social
value of not taking precaution
ii. P- measuring how foreseeable harm causing event
is
iii. L- injury
2. Liability for negligence due to failure to take safety precautions
exists if the burden of taking such precautions is less than the
probability of injury multiplied by the gravity of any resulting injury,
symbolized by B < PL = negligence liability.

ii. ***Rhode Island Hosp. Trust Nat’l Bank v. Zapata Corp. (202)- numerous
checks between $100 and $1000 cashed by π. ∆ claims π did not exercise
ordinary care when examining/cashing checks. π claims ∆ had duty under UCC
4-406 when there is a series of forged checks to promptly report within 14 days
of rcv stmts. π didn’t violate ordinary care b/c practices didn’t significantly
increase risk of fraud.
1. A bank’s payment procedure meets the standard of “ordinary
care” under UCC § 4-406 where the procedure is consistent with
banking industry practices and where a cost-benefit analysis
shows the procedure to be reasonable.
e. Proving Breach: Res Ipsa Loquitur- the thing speaks for itself
1. action/object must be on exclusive control of ∆
2. event must be of a kind which ordinarily does not occur in the
absence of negligence
3. π can not have contributed to accident in any way
 ii. Byrne v. Boadle (213)-π walks down street and is struck by falling flour
barrel, remembers nothing from accident and is injured for 2 weeks
1. in certain negligence cases when common sense can dictate what
happened, expert testimony is not necessary to determine
whether there was negligence
2. Presumption- assumption of fact where certain weight is afforded
by law that shifts the burden of proof or evidence
3. Inference- deduction from facts given that are less than certain but
may be sufficient to finding of fact

iii. Kambat v. St. Francis Hosp. (215)- π had surgery and lap pad was left
inside of her. Discovered months later. Was removed by π died due to
related complications. Res Ipsa matter--experts testified couldn’t have
swallowed pad.
1. Review elements of Res Ipsa noted above

4. Chapter 4: The Causation Element

a. Key terms and concepts
i. Actual and proximate cause
1. Actual cause (cause in fact)- asks whether ∆ actions were the cause of
injury π suffered
2. Proximate cause (legal cause)- asks whether ∆ should be liable for
unforeseeable or unusual consequences resulting from his actions

ii. Actual cause, the jury, and the but-for test

1. But-for Test- but for ∆ conduct would injury have occurred?
a. if yes- ∆ not liable
b. if no- more than half way through to finding ∆ is liable

b. Proving actual causation under the preponderance standard

i. Skinner v. Square D Co. (229)- π operates piece of machinery in
basement, wife walks in and finds him being electrocuted. π turns off
power and dies. Wife alleges switch was faults (phantom zone) and
caused π’s death. Tried to argue under res ipsa.
1. π doesn’t need to rule out all other possible explanations of what
happened just enough evidence needs to be presented that
scenario offered is more accurate account of events offered
2. causation theories must be probable not just plausible
 ii. Falcon v. Memorial Hospital (239)- π dies from amniotic fluid embolism
after delivery. π experts say she had 37.5% chance of living if drs had
connected iv first then continued care. Ct rules recovery should be
proportional to percentage of likliness π would have survived.
1. Dissent- Lost Chance Theory- compensating π for a mere possibility
that ∆’s omission caused π’s death.
a. Where π can show loss of chance is 50% or less the jury can find
causation and reward the whole amt based on ∆ neg
b. If loss of chance is greater or equal to 50%
i. some cts award percentage of damages
ii. some cts award no damages
2. Loss of opportunity to survive can be recovered for if an omission that
caused harm to π is likely to have occurred due to ∆’s omission

c. Multiple necessary and multiple sufficient causes

i. McDonald v. Robinson (248)- ∆s are in car accident and hit π who is on side of
the street. π injured and sued both ∆ for concurrent negligence. ∆ claims is a
misjoinder of causes.
1. ∆s actions are AN actual cause of π injuries but not THE actual cause.
Took both ∆ actions to cause π injuries.
2. π could make both ∆ pay or get all the $ from one ∆ and make them
argue afterwards about how recovery should be split btwn the two of
them
3. if the acts of two or more persons concur in contributing to and
causing an accident and but for such concurrence the accident
would not have happened, the injured person may sue the actors
jointly or severally and recover against one or all according to the
proven or admitted acts of the case

ii. Aldridge v. Goodyear Tire & Rubber Co. (251)- π developed diseases
after being exposed to toxic chemicals at work. Sued ∆ but found they only
produced 10% of list of chem π complained about.
1. In order to establish causation, plaintiffs in a toxic tort suit must
show a direct connection between the alleged toxin and its
resulting harm and any expert opinions in support thereof must be
supplied on reliable scientific data.
2. Substantial Factor Test- replaced but-for test
a. whether ∆ chemicals or conduct were independently sufficient
causes of harm to π--cause must be sufficient before it can be
substantial
3. Daubert Test- type of evidence required for expert testimony to be
admissible (proper ID and Foundation)
 a. whether theory or technique used by expert can be and
has been tested
b. whether the theory or technique has been subjected to
peer review and publication
c. the known or potential rate of error of the method used
d. the degree of the methods or conclusions acceptance
within the relevant scientific community

d. Causation and tortfeasor identification

i. Alternative liability
1. Summers v. Tice (268)- Hunting accident. 2 ∆ shoot at quail in the
direction of π, pieces of shotgun pellets hit π eye and upper lip. π sues
saying ∆ knew his location and shot in his direction anyways. Can’t
prove individual causation/liability so share in joint liability.
a. Joint liability- makes both ∆ liable for whole damage. Shifts
burden to ∆ to prove they are not liable (π does not have to prove
who did what).
i. Would be unfair to prevent π recover b/c can’t
show who did what to contribute to injury when both
individuals were clearly liable

ii. Market share liability

1. Sindell v. Abbott Labs (272)- Mothers given DES during pregnancy to
prevent miscarriages--later found lead to cancerous vaginal and cervical
growths in female children. There were many manuf and π could not
prove who manuf the DES her mother took. Each ∆ liable for proportion
of jmt repped by its share of market unless can show it couldn’t have
made the product that caused π injury.
a. dissent- Market share thesis is too broad to be applied
b. Market Share Liability- looks at how much of the market the ∆
has and share of settlement is paid proportionately to market
share
c. Concert of Action-
i. torious act done with others or pursuant to a
common design
ii. know that another’s conduct is a breach of duty but
gives substantial assistance or encouragement to
them anyways
iii. gives substantial assistance to another in
accomplishing a tortious act result and how own
conduct considered separately constitutes a breach
of duty to the 3rd person
 d. Enterprise Liability/Industry Wide Liability- since manuf
constitute entire industry they are responsible for whole
industry and what takes place in it
i. didn’t work together--anything done was by FDA
regs

5. Chapter 5: Aligning the Elements: Proximate Cause and Palsgraf

a. Proximate cause
i. Union Pump Co. v. Allbritton (291)- Pump caught fire and ignited
surrounding area. π was asked to turn off a valve with co-worker.
Climbed over pipe system instead of going around to quickly get to valve.
Slipped and injured herself on the way back. Debate whether emergent
situation is ongoing or not.
1. Foreseeability must be present when determining proximate
cause
2. Arguments of Legal Cause
a. injury was unforeseeable
b. weighing of policy considerations
c. length of time btwn breach and injury as being remote
d. carelessness not just substantial factor in bringing about
harm
e. Links carelessness --connection btwn ∆ and π’s injuries is too
weak to constitute legal cause
f. furnished condition making injury possible
g. careless acts had run their course and come to rest
3. One Leap Rule- ∆ is responsible only for the events caused directly by
them, if it leaps all bets are off.
a. sets forth the directness test for proximate cause
b. Wagon Mound I- spark ignited debris on oil slick. Claim
dsmsd b/c was not foreseeable consequence.
i. replaces Polemis Directness Test
c. Wagon Mound II- same fire but ship is destroyed. ∆s actions
were foreseeable b/c caused the fire when welding and decision
to continue welding was careless=contributory negligence. Duty
was established in Wagon Mound I so exact injury doesn’t have
to be foreseeable just that action could result in an injury.

ii. Jolley v. Sutton London Borough Council (299)- 14 yr old works on fixing
abandoned boat with friend--jacked up boat, it fell on π and he became a
paraplegic.
 1. Occupier has a duty to protect children from danger caused by
meddling with object by taking reasonable steps including
removing the object
2. Is the type of play foreseeable and is it within the scope of risk of
the nuisance
3. Risk Rule Analysis- The injury has to be the direct result of the
actor’s negligent behavior. What were the particular risks that
made the actor’s conduct negligent?
4. Attractive nuisance- potentially dangerous item left unattended
that would attract minors to engage/pay with item likely to cause
them injury

b. The relational aspect of breach of duty: Palsgraf

i. Palsgraf v. Long Island Railroad Co. (310)- π is sitting on RR platform, ∆
runs to catch train and jumps on while moving--drops his package which
contained fireworks. They exploded when they hit the tracks and caused the
scales to tip over and hit π. NO breach to π becuase event was unforeseeable and
tipping of scales was not proximate cause of the injury--π was too far removed
from the explosion (30 ft away) for injury to be foreseeable.
1. (Cardozo) A defendant is only liable for negligence if he owes a
legal duty to the plaintiff and breached that duty, and if the
resulting harm was reasonably foreseeable.
2. Dissent (Andrews)- if negligence causes an injury then someone
should be liable similar to Polemis--even though the result is
unforeseeable, someone is still responsible. “A duty to one is a
duty to all.”
3. Primary breach v. Derivative breach
a. π may not borrow a breach to someone else and use it to
advance her own claim of negligence

ii. Petitions of the Kinsman Transit Co. (325)- π boat crashes into ∆ boat
which drifts down river --call bridge to raise the bridge but when boats reach
bridge it hadn’t been raised all the way yet. Crash into bridge, causes bridge to
collapse and river dams. Surrounding areas flood including flooding of
residential areas upstream. Was crash proximate cause of upstream flooding?
YES!
1. Dissent- majority opinion should be limited as upstream flooding
damage was not proximate cause and hindsight shouldn’t govern
proximate cause rulings.
2. Foreseeability of outcome is necessary condition of proximate
cause
 3. All parties involved in damages may be jointly liable for
contributing to proximate cause negligence
4. Loss Spreading- everyone who contributed to the loss should
have to pay for the damages

c. Superseding Cause and Affirmative Duties

i. Intervening wrongdoing, superseding cause as a special case of
proximate cause
1. Pollard v. Oklahoma City (336)- π (minor child) brings home a can
of blasting powder that was left out at a construction site. Parents
tell π to stop playing with it before they get hurt. Kids keep playing
with it--take it outside and light some on fire,it explodes and
injures π.
a. acts set out were not set in mtn by ∆. Parent’s intervention
makes explosion an independent event--∆ not liable.
i. Intervening Superseding Cause- comes between ∆
negligence and π injury. Just b/c event intervenes
doesn’t mean it is always superseding. ∆ free of liability
if other two factors are in place.
2. Clark v. E.I. DuPont de Nemours Powder Co. (337)- ∆ was an
explosives manufacturer and left glycerine on a farm. McDowell
(teenager) found the glycerine found it and brought it to his house. His
mother told him to get rid of it. He buried it in an abandoned graveyard,
and π son found it two years later when he was playing with it and it
exploded.
a. The Court held that the injury was within the risk of
DuPont’s negligence.
b. The original negligence still remained… the rult (injury)
was to be anticipated.
c. Just because McDowell intervened does not always mean
it is a superseding cause.

ii. Intervening wrongdoing, superseding cause, and affirmative duty

1. ***Port Authority of New York & New Jersey v. Arcadian Corp
(341)- World Trade Center bombing, bombs constructed using
fertilizers-ammonium nitrate, urea, and nitric acid- manufactured by ∆. π
sued because ∆ could have rendered their products non-detonable and
could have warned sellers to ensure that the products were being
purchased for legitimate use.
a. A manufacturer of a component that is adulterated for
criminal purposes is not liable for injuries caused by the
adulterated end product where the component itself was
 not defective or unreasonably dangerous and where the
component’s adulteration was not reasonably foreseeable.
b. Duty→ the products were not explosive alone but π had a duty to
prevent a buyer from mixing them together to cause them to
explode.
c. Public Policy- Foreseeability is really important. It is not
just nor is it fair to try to foresee this act. Manufacturers do
not have a duty to prevent criminal acts like this because
the product was not being used for its intended purpose.
d. ** The Intervening acts of terrorism constituted a
superseding cause- No Proximate Causation

2. Fast Eddie’s v. Hall (351)- π met husband and a friend at ∆’s bar.
Waitress served them to the point where π needed to be put to sleep in
friend’s car. Friend drove π to his trailer to sleep and her husband later
left after drinking more and removed π, drove off, and shot her dead. π
sued ∆ because their negligence led to π’s death
a. A tavern is not liable for negligently causing a person’s
death at the hands of a tavern patron where the death
resulted from an unforeseeable, intentional criminal act
and the tavern never assumed a duty to protect the
decedent.
b. Dram Act: π is using this to show that ∆ is liable for acts that
occurred due to the alcohol→ negligence per se.
c. The Tavern owes a duty to π but they owe it to all, and it
exists in a limited form. The duty is to protect them against
highly foreseeable criminal acts, and none of this was
foreseeable.

6. Chapter 6: Statutory Supplements: Negligence Per Se, Wrongful Death Acts, and
Implied Rights of Action
a. Negligence Per Se
i. There is a breach of duty, and a statute for the π to point to that shows ∆ did not
proceed with the duty of care required from them.

ii. Dalal v. City of New York (366)- Driver’s license says corrective lenses
required and she T-boned a car, was not wearing lenses at time of
accident. π says the jury should have gotten instruction on negligence per
se.
1. The violation of a statute that governs the manner of automobile
operation constitutes negligence per se.
 2. Negligence Per Se allows the jury to presume breach because the
statute sets up a standard of care and the violation of which is
negligence per se.
a. The jury has no authority to second guess the standard set
up by the statue so there is less burden on the π. Still has
not proven the other elements.

iii. Bayne v. Todd Shipyard Corp. (367)- π an employee of a trucking company

was unloading a delivery at ∆’s place of business. He fell from the loading
platform and was injured. There was a regulation at issue that required platforms
to have railings.
1. The violation of an applicable administrative safety regulation by a
party that had reason to know of such regulation is negligence per
se.

iv. Victor v. Hedges (370)- ∆ was showing π his new stereo in his car that was
parked on the side of a road under construction. π was hit by another car
when it drove up onto the curb.
1. Violation of a safety statute does not constitute negligence per se
where the statute was not designed to protect against the event
that caused injury.
2. Statue: No parking a vehicle on sidewalk because it is unsafe.
3. Statute does not apply because she went to look at the car
outright, that is not the purpose of the statue.
4. She does not completely lose her claim. She can still proceed with
ordinary negligence and that is often the case.
5. Excused Violations:
a. youth or physical incapacity of the ∆
b. Reasonable efforts by the ∆ to comply
c. Justified ignorance by the defendant as to the existence of
facts rendering the statute applicable.
d. Excessive vagueness or ambiguity in the statutory
standard
e. Compliance posing a greater danger to the ∆ or others than non-
compliance
6. An Unexcused Violation:
a. Unable to comply with standard of care
b. lack of knowledge of need to comply
c. Inability to comply (shovel sidewalks but the blizzard
prevent you from doing so)
d. Emergency
e. Compliance poses a greater risk than non-compliance
7. Chapter 7: Defenses
a. Contributory Negligence and Comparative Responsibility
i. Contributory Negligence
1. How to prove
a. The exact same rules for negligence but the standard of
care is toward himself.
i. Cause in Fact
ii. Legal Cause
b. What is the effect
i. π gets nothing
c. Some Exceptions
i. Not a defense to intentional Tort
ii. Not a defense to strict liability
iii. It cannot be used when ∆ has shown reckless, willful or
wanton behavior because it is beyond ordinary
negligence and approaches intent.

ii. Comparative Fault in Action

1. Jury Instructions: A careless Victim cannot claim but for

2. United States v. Reliable Transfer Co. (424)- Tanker owned by π

was stranded on a sandbar. π sues ∆ saying they should have supplied a
flashlight for ships to see the sandbar. Jury rules π tanker is 75% at fault
and Coast Guard is 25%.
a. The divided-damages rule does not apply in admiralty
cases unless the parties are equally at fault or it is
impossible to determine each party’s comparative degree
of fault.
b. π recovery
i. Contributory Negligence= $0
ii. Maritime Rule: 50k
iii. Modified Comparative Fault= $0 because if it is
proportionate recovery unless π is 50% or 51%
(depends of jurs.) no recovery.
1. CT, MA, NJ, PA= 50%
2. RI, NY, Ohio= 51%

3. Hunt v. Ohio Dept. of Rehabilitation & Correction (426)- π was an

inmate and was to use a snowblower. ∆ gave her 10 mins of directions
after he was trained for a week. Was told to use PTO switch if clogged.
 Snow clogged blower, π activated PTO switch, and then inserted gloved
hand into chute. Lost part of three fingers.
a. Under Ohio law, a defendant’s liability for negligence is
reduced where the plaintiff’s own negligence also
contributed—though to a lesser extent—to the injury.
b. π is 40% because she did not use common sense, the
judge is doing the fact finding in this case.

b. Assumption of Risk
i. π voluntarily choose to encounter risks cannot, if one of those risks is
realized recover on a clima that a breach of duty occurred during this
activity.
1. A bit different than Comp. Fault
a. burden is still with ∆ but they still need to show that π knowingly
and voluntarily engaged in activity
b. Assumption of Risk ∆ lawyer: you forfeit the right to complain
about my carelessness because you knew there was no risk.
c. Comp. Fault ∆ lawyer: ∆ has to prove π also acted carelessly and
∆ was also careless.

ii. Express Assumption of Risk

1. Waving right to sue for negligence

2. Jones v. Dresse (436)- When π was 17 he entered into K with ∆ for

skydiving services. K clause waiving negligence or 50 fee to not sign
with clause. π signed and then when he was 18 he was injured at sight in
the activity covered under K.
a. An exculpatory provision in a contract for nonessential
services relieves the defendant from liability for simple
negligence where the contract was fairly entered into and
the intent of the provision was clear and unambiguous.
b. The K is enforceable after he turned 19 because then
there was equal bargaining power.
c. Ratified K by using facility when he was of legal age.
d. Cts. have sometimes aid we are not going to uphold an
otherwise enforceable K if it is an important public service,
but skydiving is not an important public service.
 3. Dalury v. S-K-I, Ltd (441)- ∆ owned and operated a ski resort, all users
of resort were to sign a K releasing ∆ of liability, including negligence. π
was injured after signing agreement when he skied into metal pole.
a. As a matter of public policy, a commercial business that
opens itself to the public may generally not require invitees
to sign a waiver releasing the business from liability for
negligence.
b. π is an invitee, skiing is more common than skydiving, vt is
a ski state, Tunkl factors
c. Inherent risks of skiing:
i. Hitting a tree
ii. Breaking a bone
d. Rationale for Comp, Fault
i. Volenti fit injuria→ to a willing person no injury is
done. π assumed the risk by K or otherwise.

iii. Implied Assumption of Risk

1. Smollett v. Skayting Dev. Corp. (447)- π went skating Skating
area was elevated 4in above carpet on the outside of rink, there
was no railing. π asked about lack of guardrail. π was an
experienced skater, but a child fell in front of her and she swerved
to avoid and tripped on the carpet and was injured.
a. A plaintiff assumes the risk of injury so as to waive the
defendant’s duty of care where the plaintiff voluntarily
participates in the area of risk after becoming aware of the
risk.
b. Her status is intivee, there is a duty to disclose harms not readily
visible. Argument: There was a breach because her injury was
within the scope of risk. ∆: she assumed the risk and voluntarily
took part in skating.
c. Ct holds: she was either acting negligently or she assumed
the risk. They look to Virgin Islands (50%.) No plausible
grounds for carelessness because of her experience.
2. Statutes of Limitations and Repose

iv. Ranney v. Parawax Co. (457)- π worked for ∆ which exposed π to toxic
metals. π’s wife started law school, learned that causation and toxic chemicals. π
saw a dr. who confirmed link and π filed a claim. Statute of limitations had run
out.
1. The statute of limitations for a workers’ compensation claim
begins to run when the claimant knows or has reason to know that
his or her injury is possibly compensable.
 2. Statute of limitations clock runs when plaintiff knows or should
have known.
3. Test- When did the obligation comense and what would it have
revealed. Duty to investigate starts when? If π is a minor the clock
is tolled.
4. Accrual Rule- Negligence generally the claim does not accrue until
it has caused a legally cognizable time, π has the job to file claim
within its timeframe the π should have discovered.
5. Tolled- Type of grace period. Supposed Impediment. Mental
disability another suit or claim is pending on the same issue.

c. Immunities and Exemptions from Liability

i. Intrafamilial and Charitable Immunities
1. Protects the holder from all tort liability that would otherwise hold
them responsible.
a. Sovereign Immunity applies when:
i. Government unit or company ect.
ii. Government Official or Employee
iii. Municipality is not sovereign in the eyes of the law.
BUT, they tend to enjoy some governmental
immunities that parallel sovereign.

ii. Sovereign Immunity

1. Riley v. United States (470)- π was turning onto a busy road, believing
the road was clear he turned, an accident ensued and he suffered serious
injuries. π sued ∆ but the court dismissed for sovereign immunity,
a. An act by a government agency is shielded from a civil tort
suit on sovereign-immunity grounds where the act reflects
an exercise of discretion.
b. Berkovitz Test- Two part test
i. Is the action or decision truly discretionary? (is
there a fed statute, reg.m policy that prescribes
what to do then not discretionary)
ii. Is the judgment @ issue the kind the discretionary
function exception was designed to shield.
1. How do we determine hs> Does it fall in the
category of social, economic, and/or political
policy.

iii. Liability Exemptions: No-duty rules for local government and private
entities
 1. Riss v. City of New York (478)- π had a stalker, π told police,
police did not help, stalker threw lye in her face and blinded her.
Did police have a duty to protect π? NO.
a. Absent legislation creating such liability, a municipality is
not liable in tort for a government service’s failure to
protect the public from criminal activity.
b. NO prima facie case there is no duty. The police (no
sovereign immunity) have a duty to all so they do not owe
a duty to anyone in particular.
c. Ct holds that the duty to protect individuals will overwhelm
the city.
2. Strauss v. Belle Realty Co. (487)- Citywide blackout, π goes to
basement to get water and falls down the stairs and sues both his
realtor and electric company.
a. Courts must fix an orbit of duty which limits liability to
manageable levels, even where this may exclude parties
who would have been able to recover under traditional tort
principles.
b. The injury was foreseeable but the Ct. is afraid the
floodgates of litigation will open, they reserve the right to
manage this.
c. Even though there was gross negligence on Con. Ed’s
part, since millions were affected control must be obtained.
d. Orbit of Duty- Limits liability to manageable levels, even
where this may exclude parties who would ordinarily have
been able to recover under traditional tort principles.

8. Chapter 8: Damages and Apportionment

a. Elements and availability of damages
i. Compensatory damages
1. Smith v. Leech Brain & Co. Ltd. (497)- π worked for an iron
company on the cranes. One day hot melted iron dropped onto his
lip and caused a burn that never healed properly and eventually π
was diagnosed with cancer and died.
a. A defendant may be held liable for damages in negligence
where the victim’s type of injury was foreseeable even if
the extent of such injury was not.
b. Ct. says employer still has to pay for the cancer because
the burn was foreseeable and they apply the eggshell rule,
so they have to take the π as he is which includes cancer.
 2. Kenton v. Hyatt Hotels Corp. (504)- Two skywalks at the Hyatt Hotel
collapse, π had completed two years of law school before being seriously
injured. ∆ was held liable in another trial and this was to only determined
damages. π wanted damages for lost future wages as a lawyer ect.
a. An award of compensatory damages for permanent
personal injury is not excessive where it reasonably relates
to the nature and extent of the injuries, the victim’s age,
present and future economic losses and costs, and awards
made in comparable cases.
b. What if the judge thought the damages were excessive?
New trial would ensue, which would hopefully encourage a
settlement, if not the cycle could occur, or after two trials
with the same verdict the judge could say nevermind I was
wrong.

ii. Punitive Damages

1. National By-products. Inc. v. Searcy House Moving Co (520)-
House gets stuck under a bridge. Traffic directed to one lane while
they get house unstuck. Tractor trailer smashes into π car knocking it
into house and 2 bystanders. πs die. Ct rules no punitive damages can
be awarded b/c facts don’t show ∆ intentionally acted in such as way that
natural and probable consequence was to damage property or that he
knew some sort of neg was about to cause damage.
a. Punitive damages may be awarded when facts show ∆
intentionally acted in such a way that natural and probable
consequence was to damage π’s property or that he knew or
should have known that some sort of negligence was about to
cause damage.

2. Mathias v. Accor Economy Lodging, Inc (524)- π checked into hotel

and was bitten by bedbugs. ∆ was aware of issue and avoided treating
the problem for over a year. ∆ checked customers into rooms despite
being marked as do not rent and failed to warn customers of the issue
before renting them rooms. ∆ instructed clerks to call bedbugs ticks. Ct
found for π and awarded punitive damages--on appeal punitives were not
excessive b/c ∆ knew about the problem and wilfully and wantonly
disregarded it.
a. Punitive damages (exemplary damages) should be awarded to fit
the crime and are based on the wrong done not the financial
status of the ∆.
i. standard= wilful and wanton disregard
ii. used as deterrent
 iii. guideposts for ∆ punitives
1. degree of responsibility of ∆ conduct
2. ratio of punitives to compensation--must
bear reasonable relationship, no more than
10:1 regularly, no mathematical bright line
3. are there sanctions for comparable
conduct?

b. Vicarious LIability
i. Taber v. Maine (538)- Navy sailor was drinking on base, went for a drive
and caused accident when returning to base. π sued US gvt b/c they
encouraged the behavior on base. Ct agreed gvt is vicariously liable for ∆ actions
due to custom on base.
1. respondeat superior- employee under takes activities within his or
her scope of employment that cause the employee to become an
instrumentality of danger to others even where the danger may
manifest itself at times and locations remote from the ordinary
workplace
2. Feres Doctrine- armed forces personnel cannot enact FTCA in
regard to conduct/injury in the course of their employment
a. ct disagrees b/c conduct driving home does not fall under
military svc only

c. Joint Liability and Contribution

i. Ravo v. Rogatnick (550)- π is severely retarded after brain damage
suffered during birth from negligent care. Dr R. failed to ascertain
pertinent medical info about mother, incorrectly estimated the size of the
infant, and employed improper surgical procedure during the delivery. Dr.
H claims should only have to pay 20% of damages b/c that is amt of fault
jury apportioned. Ct disagrees.
1. when there are multiple tortfeasors neither act in concert and not
contribute concurrently to the same wrong, they aren’t joint
tortfeasors--their wrongs are independent and successive
2. jury’s apportionment of fault does not alter the joint and several liability
of ∆s for single indivisible injury

ii. Bencivenga v. J.J.A.M.M., Inc. (557)- male patron pinched female patron
when walking by, she accused π who denied accusation. She accused π
again, he left area and was then approached by guy on dance floor--was
assaulted, broke his nose and he needed surgery. Club claims fault
should be apportioned to the unidentified tortfeasor who assaulted him.
 1. fictitious persons are not parties to a suit until their true name is
substituted in an amended complaint and service is effected
a. it is ∆ duty to assist in identifying fictitious persons to apportion
fault away from themselves
2. nominal damages--minimal damages= $1--no real jury
3. punitive damages- punish ∆ for egregious behavior and act as a deterrent
to others
4. apportionment theory- when there are multiple tortfeasors, π
determines how much/from whom they will collect (joint and
several liability)
5. vicarious liability- π can compute liability to a 3rd party for ∆ actions
due to their relationship (ex: respondeat superior)
a. direct liability- π goes after employer directly
b. indirect liability- usually no punitives
6. Eggshell Skull Doctrine- take π as they are

d. Enforcing Judgments: Getting to Assets

9. Chapter 11: Property Torts and Ultrahazardous Activities
a. Introduction
i. Ultrahazardous (Abnormally Dangerous) Activities
1. Rylands v. Fletcher (866)- ∆ wanted to build a reservoir for his mill on
land shared with π, a miner. While building the reservoir 5 shafts filled
with water and the mine flooded causing damage.
a. When a party brings something onto his land and collects
and keeps anything likely to do mischief if it escapes he
must keep it in his peril and if he does not do so it is prima
facie answerable for all the damage which is the natural
consequence of its escape.
b. Strict liability- extends only to foreseeable injuries (not
absolute). liability without fault. Intent doesn’t matter, how
carefully an action is performed doesn’t matter. If actually
harmed someone then you are liable.
i. 2 contexts- trespassing/animals/wild animals and
abnormally dangerous activities (ultrahazardous
activities)
ii. Moral- based on common sense/fairness that this is
fair and non reciprocal risks are present
iii. Economic- deference imposing cost of accident on
industries will create incentives for optimal safety
iv. Risk spreading- losses should be spread broadly by
assignment to responsible enterprises rather than
left on individual victims w/ injuries
 2. Klein v. Pyrodyne Corp. (868)- 5 in mortar is knocked over during
fireworks show, shell is ignited and explodes near crowd. π is
severely burned on his face and has injuries to his eyes. π sues
under strict liability--ct affirms pyrotechnicians are strictly liable for
damages caused by firework displays (ultrahazardous activity).
a. party carrying on an abnormally dangerous activity is
strictly liable for ensuing damages
b. Proximate Cause- π must show a link btwn injury and aspect of
∆ enterprise to justify calling it an abnormal activity
c. R2T § 520- 6 Factors of Abnormally dangerous activity
i. existence of high degree of risk of some harm to
the person, land or chattels of others
ii. likelihood that the harm that results from it will be
great
iii. inability to eliminate the risk by the exercise of
reasonable care
iv. extent to which the activity is not a matter of
common usage
v. inappropriateness of the activity to the place where
it is carried on
vi. extent to which its value to the community is
outweighed by dangerous activity

10. Chapter 12: Products Liability

a. Introduction
i. Warranty- insurance or promise of quality that can be express or implied
1. strict liability, contractual duty applies, may be rqrd to give ntc of
suit before filing

ii. Precursors
1. Escola v. Coca Cola Bottling Co. of Fresno (889)- π is working at
restaurant unloading coke bottles when one explodes in her hand
causing severe injuries to tendons and nerves. Bottle was not
damaged by any extraordinary force after delivered to restaurant.
π sued under res ipsa--affirmed.
a. Concurrence
i. manuf owes consumer a duty/responsibility
ii. manuf can anticipate hazards and guard against
recurrences
iii. ∆ best situated to spread cost of injuries
iv. products find a way into public is in the best interest
to law responsibility at the manuf door
 v. entitlement to compensation (892)
vi. analysis of disparity of litigation (892 bottom)
vii. 2 ways of structuring law- lead to result, then why
not move forward (893 top)
b. a standard must exist where manuf remain liable when
their product malfunctions in the ordinary use w/o extreme
or inordinary care on the part of the injured party
c. manufacturer's duty- should attach liability to the manuf
when product is placed in market and used w/o inspection.

iii. The emergence of strict products liability

1. Greenman v. Yuba Power Prods., Inc. (898)- π given laithe for
xmas--when working on machine piece of wood flew out and
struck him in the forehead inflicting serious injury. Ct found for π
b/c using machine in the way it was intended.
a. Manufacturer is strictly liable when it places a product on
the market knowing it is to be used w/o inspection for
defects and π proves defect caused the injury
b. R2T § 402(A)- strict liability of seller or product
i. (1) Def=one who sells -- manufacturer, wholesaler,
retailers. Product= not a service. “in a defective
condition unreasonably dangerous”- term of art.
Applies only to physical damages (economic alone
is not enough).
1. (1)(a)- sellers of used goods may fall
outside condition--must regularly sell the
product
2. (1)(b)- seller is free from responsibility if the
injury comes from alterations to products
that could not be reasonably foreseen
ii. (2)(a)- strict liability
iii. (2)(b)- don’t need privity

b. Basics of a products liability claim

i. 3 Prongs of Product Liability Claim:
1. Negligence, Warranty, Misrepresentation

ii. The key to products liability: Defect

1. Manufacturer's Defect- something comes off the line skewed and
makes the product defective. Single flawed unit.
2. Design Defect- the entire product line is defective
 3. Failure to Warn- Information ∆ did not warn user of danger in products

4. Gower v. Savage Arm, Inc. (914)- π’s rifle discharged

inadvertently while trying to unload gun--shot him in the foot. Gun
hadn’t been taken off safety. Gun was purchased w/o box so
never rcvd safety manual. π alleges gun was not accompanied by
warnings (insufficient warnings), defectively designed, didn’t
incorporate detebt system, defectively manuf--metal ridge caused
safety to fail overtime.
a. Manuf defect eliminates the need to identify unreasonable
conduct on the part of the ∆--instead ask what is defective about
the product?

c. Design Defect- Product is made badly--entire line is a problem.

i. The risk-utility test
1. Chow v. Reckitt & Colman, Inc. (923)- π mixed lye to unclog a
drain. poured the mixture down the drain and it splashed backup
into his fact. π had severe burns and lost vision in his left eye. Ct
rules against π--even if proper warning was on bottle π would not
have been able to read it.
a. Dissent: P must show produce can be designed in such as
way that it is safer but remains functional
i. Fed Ct. Rule- moving party can satisfy their burden
by pointing out there is an absence of evidence to
support the nonmoving party’s case.
b. ∆ moving for SJ in a defective design case must do more than
state that its product is inherently dangerous and its dangers are
well known
i. Warnings do not absolve sellers of design defect
liability
c. Risk Utility Test- risk of the product outweighs the utility of it ∆
friendly--if cheaply avoidable even obvious risks can be basis for
finding a defect. [Negligence argument]
d. Wade Test (7 Factors of Risk Utility Test)
i. Product’s utility to public as a whole
ii. Utility to individual user
iii. Likelihood product will cause injury
iv. availability of safe design
v. possibility of designing and manufacturing the
product so it is safer but remains functional and
reasonably priced
 1. π raises issue but safer product must be as
effective and the lye wouldn’t be per expert
vi. degree of awareness of product’s potential danger
that can reasonably be attributed to the injured user
vii. manufacturer’s ability to spread the cost of any
safety related design changes
e. Design defect- defect not specific to one product but to the
whole line of the product--entire design will be defective)
f. Consumer Expectations Test- was the product as safe as the
consumers would expect? π friendly b/c jury had ltos of
discretion. Is ∆ friendly when difficult to claim obvious risks are
unexpected. [Warranty argument]
g. Echos Hand’s formula B<PL
i. NY looks at hindsight.
ii. Negligent foresite- manufacturer could have been
expected to know about issues would occur had
product been produced

ii. Standards of Defectiveness from Prescription Drugs

1. Freeman v. Hoffman-La Roche, Inc. (967)- π sued after taking
Accutane and developing multiple health problems as a result. π claims
∆ expressly warranted that drug was in marketable condition--she relied
on warranty.
a. Prescription drugs (R2T § 402(A), comment k--strict
liability--if product is properly manufactured and contains
adequate warnings, benefits justify the risks, and product
was at the time of manuf. and distribution incapable of
being made more safe.
i. “blanket immunity”
b. R3T § 6(c)- applies design defects--prescription drug is not
reasonably safe if the foreseeable risks of harm posed by
the drug and medical device are sufficiently great in
relation to foreseeable therapeutic benefits
c. Fraudulent Misrepresentations
i. representation was made, is false, was known to be
false or recklessly without knowledge of its truth as
a positive assertion, made with intention that π
should rely on it, did rely on it, suffered damage as
a result

d. Failure to Warn or Instruct

i. Which risk require warning?
 1. Anderson v. Owens- Corning Fiberglas Corp. (981)- π alleges was
exposed to asbestos when working--caused diseases later. ∆ claim
couldn’t have known the effect at the time the complications asbestos
could cause.
a. Concurrence- warnings presuppose that risks to be warned
against are capable of being known.
b. Strict liability- π must only prove that ∂ didn’t warn of particular
risk that was known or knowable in light of generally recognized
prevailing scientific and medical knowledge available at the time
of manufacture/distribution
i. failure to warn is immaterial in strict liability
c. State of Art Defense- Can’t argue against/be liable for
something a party had no knowledge about
i. not admissible in all strict liability prod cases--when
not relevant is not admissible

ii. Proving Actual Causation in a Failure to Warn Case

1. Motus v. Pfizer Inc. (993)- ∆ proscribes π Zoloft--after 6 days π
commits suicide. π’s wife argues for failure to warn--package insert
made no mention of increased risk of suicide. π atty didn’t ask right
question to establish liability that would have changed actions if had
been made aware of this risk.
a. Overpromotion Theory- manuf. aggressive marketing
caused physicians to discount a known risk when
prescribing the drug to a pt
b. Learned Intermediary Doctrine- manuf. have a duty to warn
prescribing physicians of duty of drug side effects, etc and
physicians have a duty to warn pts.
c. Sophisticated user Defense- duty to warn does not run to
persons that are sophisticated users