Chapter 1-Introduction to Tort Liability ...................................................................

A. Prologue ......................................................................................................................7

B. When should unintended injury result in liability .............................................7

1. Hammontree v. Jenner*（被告突发癫痫撞向原告⼩商店） ..................................... 7

1.6 Discussion ................................................................................................................................................... 9
1.6.1Know or should have known. ....................................................................................................... 9
1.6.2 Jury instructions(法官对陪审团的指示)： ............................................................................. 9
1.6.3 Two claims: ........................................................................................................................................ 9
1.6.4 Why the court said no: .................................................................................................................. 9
1.6.5 Hierarchy .......................................................................................................................................... 10
1.6.6 Keep strict liability distinct from absolute liability. .............................................................. 10

C. The litigation process. ........................................................................................... 10

1 Procedure in torts cases .................................................................................................. 10

2 Damages and collecting judgments in torts cases ............................................. 13

Class 2 The Parties and Vicarious Liability [TORT LAW & ALTERNATIVES: 19

– 33.] ............................................................................................................................... 14

1 Plaintiffs...................................................................................................................... 14

2 Defendants ................................................................................................................ 14

3 Vicarious liability ...................................................................................................... 14

Christensen v. Swenson (雇员取吃的过程中造成⻋祸 公司没有 breaks) ................ 14

3.1 The parties and vicarious liability .............................................................................. 17
3.2 Whether summary judgement (there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter of law) is
appropriate or not? ............................................................................................................. 17
3.3 Scope of the employment (question of fact) ......................................................... 17
3.4 Employee’s intentional tort ........................................................................................ 18
Roessler v. Novak (2003) （关于医院要不要给医生承担替代责任） ...................... 18
3.7 Apparent authority has three elements: .................................................................. 20

1
 3.8 Section 57 of the Restatement (Third) of Torts: Liability for Physical and
Emotional Harm states:(independent contractor) ....................................................... 20

Chapter 13 Intentional Harm.................................................................................... 21

Ø Intentional Harm ................................................................................................. 21

1 Basic Doctrine ........................................................................................................... 22

1.1 Intent ......................................................................................................................... 22

Garratt v. Dailey(五岁⼩男孩抽椅⼦) ...................................................................................................... 22
1.1.1 Tort of battery(elements) ................................................................................................................. 23
1.1.2 Intent ....................................................................................................................................................... 24
1.1.3 Substantial certainty........................................................................................................................... 24
1.1.4 Individualized knowledge vs statistical knowledge.................................................................. 24
1.1.5 Cause-in-fact ....................................................................................................................................... 25
1.1.6 Punitive damages. .............................................................................................................................. 25
1.1.7 Intent and insanity .............................................................................................................................. 25
-eggshell rule （intentional or negligence 都适⽤） ..................................................................... 25

2 Assault and Battery..................................................................................................... 26

Picard v. Barry Pontiac-Buick, Inc.（修⻋⼚员⼯威胁顾客） ......................................................... 26
1.2.1 Assault .................................................................................................................................................... 28
1.2.2 Battery .................................................................................................................................................... 29
Wishnatsky v. Huey (律师助理推另⼀个律师助理) ............................................................................ 29
1.2.3 Restatement (Second) of Torts related to battery and offensive contact and What
Constitutes Offensive Contact?................................................................................................................. 32
1.2.4 Reconsidering intent (Dual intent and single intent) tips in exam ...................................... 32

1.3 False imprisonment 【915】 ..................................................................................... 33

Lopez v. Winchell's Donut House (甜甜圈店员被怀疑偷钱 被询问时可以随时⾛)................ 33
1.3.1 Tips in exam .......................................................................................................................................... 36
1.3.2 Affirmative defense ............................................................................................................................ 36
1.3.3 False imprisonment: ........................................................................................................................... 36
1.3.4 Unlawful restraint: ............................................................................................................................... 36
1.3.5 The Restatement of Torts specifies was in which an action may bring about the
confinement required as an element of false imprisonment, including ...................................... 36
1.3.6 future threat/present threat?? ........................................................................................................ 37
1.3.7 Complete confinement ..................................................................................................................... 37
1.3.8 Confine in a city................................................................................................................................... 37
1.3.9 False arrest by police or others ...................................................................................................... 37
1.3.10 Malicious prosecution(恶意起诉) [unlawfully used] .............................................................. 38
1.3.11 Special problem of shoplifting ..................................................................................................... 38

1.4 Intentional Infliction of Emotional Distress(故意的情感伤害) ............................ 38

Womack v. Eldridge(律师的侦探骗被告以获得其照⽚⽤作恋童癖案⼦指证) .......................... 39

2
 1.4.1 Rule of law in Intentional Infliction of Emotional Distress ..................................................... 42
1.4.2 The "extreme and outrageous" standard .................................................................................... 43
1.4.3 Constitutional defense ...................................................................................................................... 44
Hustler Magazine v. Falwell(公众⼈物被杂志社恶搞) ....................................................................... 44
1.4.4 First Amendment ................................................................................................................................ 47
1.4.5 New York Times Standards .............................................................................................................. 47
1.4.6 Breathing space ................................................................................................................................... 47
1.4.7 Limitation obscenity(下流话)........................................................................................................... 48

1.5 Intentional Interference with Family Relationships .............................................. 48

1.6 Trespass to Land ............................................................................................................ 48
Martin v. Reynolds Metals Co.(化学物质造成⼟地伤害) .................................................................. 48
！
1.6.1 Torts involving property（那一堆全在这！） .......................................................................... 50
1.6.1 Distinguish trespass and nuisance: ............................................................................................... 52
1.6.2 Nominal damages .............................................................................................................................. 53
1.6.3 Culpability, intent and Privilege...................................................................................................... 53
1.6.4 Intangible invasions and claims for nuisance ............................................................................ 53

1.7 Conversion(侵占) of Chattels and Trespass to Chattels(私⼈财产)P947-959 . 54

Thyroff v. Nationwide Mutual Insurance Co. (at will 员⼯被解雇，电脑⾥个⼈信息和顾客信
息全部⽆法追回) ........................................................................................................................................... 54
1.7.1 Procedural issue .................................................................................................................................. 57
1.7.2 Rule of law in conversion of chattels (“Merger” doctrine) .................................................... 57
1.7.3 The difference (见前页) between conversion and trespass to chattels. ............................ 58

1.8 Defenses and Privileges ............................................................................................... 58

1.8.1 Consent .................................................................................................................................................. 58
Hart v. Geysel (拳击⼿在⾮法拳击⽐赛打死对⼿) ........................................................................ 59
1.8.1.1 Majority rule vs minority rule in Hart v. Geysel ................................................................ 61
1.8.1.2 Two fundamental principle ..................................................................................................... 61
1.8.1.3 Apparent or implied consent. ................................................................................................ 61
1.8.2 Self-Defense (affirmative defense of Self-defense)................................................................. 62
Courvoisier v. Raymond (吵闹⼈闯⼊被告家中，被告持枪打死治安官) .............................. 62
1.8.2.1 Nature of the defense .............................................................................................................. 64
1.8.2.2 The requirement of reasonable force.................................................................................. 64
1.8.3 Protection of Property ....................................................................................................................... 65
Katko v. Briney(原告闯⼊被告⽼屋，被 被告枪击陷阱击中，造成严重损害) ................... 65
1.8.3.1 Reasonable force（property）.............................................................................................. 67
1.8.3.2 Punitive damages....................................................................................................................... 68
1.8.3.3 About erecting signs ................................................................................................................. 68
1.8.3.4 Posner’s reasonableness test ................................................................................................. 68
1.8.3.5 Recapture of chattels ................................................................................................................ 69
1.8.4 Private Necessity ................................................................................................................................. 69
Vincent v. Lake Erie Transportation Co.（暴⾬天把船停在码头，砸坏码头） ................... 69
1.8.4.1 Rule of law in Vincent v. Lake Erie Transportation Co. .................................................. 71
1.8.4.2 Public necessity........................................................................................................................... 71

3
Chapter 2 The Negligence Principle ....................................................................... 71

1 Historical development of fault liability ............................................................. 71

1.1 Landmark case of negligence principle: .................................................................. 72

Brown v. Kendall(被告为将两只打架的狗分开，⽤棍⼦误伤原告) .............................................. 72
1.1.1 Whether a party’s remedy should be sought in an action of trespass ............................. 75
1.1.2 Ordinary care (based on the community) ................................................................................... 75
1.1.3 Want(缺少) of exercise of due care .............................................................................................. 75

2 The Central Concept ................................................................................................ 76

2.1 The standard of care ..................................................................................................... 76

Adams v. Bullock(被告使⽤在头顶电线，原告⼩孩玩电线甩到头顶上的电线) ....................... 76
2.1.1 what kind of risks that should be aware of as a reasonable person?Forseeable ........... 77
2.1.2 Reasonable care in the use of a destructive agency ............................................................... 78
2.1.3 “Ordinary caution” or “reasonable care”.................................................................................... 78
United States v. Carroll Towing Co.(原告驳船⻓不在船上，被告 argue 有疏忽，美国的货物
在船上) ............................................................................................................................................................. 78
2.1.4 B < PL ..................................................................................................................................................... 80
2.1.5 危险责任 ............................................................................................................................................... 81

2.2 The Reasonable Person ................................................................................................ 82

Bethel v. New York City Transit Authority（原告坐被告公交⻋椅⼦时受伤） ......................... 82
2.2.1 Constructive notice ............................................................................................................................ 83
2.2.2 Standard of Reasonable (prudent) person ................................................................................. 83
2.2.3 Physical disability ................................................................................................................................ 85
2.2.4 Superior attributes .............................................................................................................................. 86
2.2.5 Children.................................................................................................................................................. 86
2.2.6 Age .......................................................................................................................................................... 86

3 The Roles of Judge and Jury ................................................................................. 86

3.1 In General ........................................................................................................................ 86

Baltimore & Ohio Railroad Co. v. Goodman（原告过铁路时被撞，没有停下来看）........... 87
-Comparison between Goodman and Pokora .................................................................................... 89
Pokora v. Wabash Railway Co.（原告穿过四条铁路，前两条阻碍视线，被主线路⽕⻋撞了,
没法停下因为后⾯都是⻋） ...................................................................................................................... 89
Andrews v. United Airlines, Inc.（⻜机上公⽂包掉下来砸到原告，没有乘客或者员⼯正在
打开） ............................................................................................................................................................... 91
3.1.1 Connections between Andrews and Bethel. .............................................................................. 93
3.1.2 Extraordinary care for common carrier:....................................................................................... 93
3.1.3 Lower standard of care in emergency situations...................................................................... 93

3.2 The Role of Custom ...................................................................................................... 94

4
 Trimarco v. Klein(被告没有替换浴室玻璃造成原告受伤，替换浴室玻璃是⾏业惯例) .......... 94
3.2.1 Prima facie presumption of negligence....................................................................................... 95
3.2.2 Custom ................................................................................................................................................... 96

3.3 The Role of Statutes ..................................................................................................... 98

Martin v. Herzog（弯道处相撞，被告没有保持右⾏，原告没有开灯，被告声称共同过
失）(negligence per se) .............................................................................................................................. 98
3.3.1 This case: not follow the statute is considered as negligence. （negligence per se）
............................................................................................................................................................................. 99
Tedla v. Ellman（两个捡垃圾⼈在路的边缘⾛被⻋撞，但是只能⾛在那边，因为⻋少） 100
3.3.2 This case: not follow the statute is not considered as negligence. ...................................103
3.3.3 5 个 excuse ..........................................................................................................................................103
3.3.4 Statutory Purpose (should be related to the harm)...............................................................104

4 Providing Negligence with Circumstantial Evidence .................................... 104

Negri v. Stop and Shop, Inc.(原告摔倒在全是未清扫的婴⼉⽤品瓶罐的地上，有充

⾜时间让被告发现并清扫) ................................................................................................. 105
4.1 Constructive notice and Actual notice ................................................................... 106
Gordon v. American Museum of Natural History(上楼梯时被⽩⾊蜡纸绊倒) ...... 107
4.2 Constructive notice ..................................................................................................... 109
4.3 Why succeed in Negri, not succeed in Gordon? .................................................. 109
Byrne v. Boadle(原告在路上被⾯粉砸，失忆了有三个⽬击者，原告不⽤证明被告是
过失) ...................................................................................................................................... 109
4.4 Prima facie evidence of negligence ........................................................................ 110
4.5 (1/2) Res ipsa loquitur (and three conditions) ..................................................... 111
McDougald v. Perry（原告被 被告⻋固定的闲置轮胎砸伤挡⻛玻璃） .................. 111
4.5 (2/2) Res ipsa loquitur (2 elements) ....................................................................... 114
Ybarra v. Spangard（原告就医，⼿术过程中被多个医⽣护⼠操作 ......................... 115
4.6 Prosser’s approach (3 elements approach): ......................................................... 116
4.7 Respondeat superior .................................................................................................. 117

Chapter 8 Strict Liability .......................................................................................... 117

1 Doctrinal Development ................................................................................................. 117

Fletcher v. Rylands（被告⽔坝坏掉，给原告造成损害） .............................................................117
1.1 Rule of law in Fletcher v. Rylands ....................................................................................................119
1.2 How do these three judges deal with it? ......................................................................................120
Rylands v. Fletcher （Rylands 上诉了） ............................................................................................120
Sullivan v. Dunham （被告雇⼈炸树，砸死⾼速上的原告） .....................................................122
1.3 Ultrahazardous activity .......................................................................................................................125

5
 Indiana Harbor Belt Railroad Co. v. American Cyanamid Co.(铁路公司作为托运⼈为被告运
输危险化学物品，化学物品泄漏，铁路公司已经赔给政府钱，想要被告承担严格责任并且
还钱被拒)（where’s the limitations of the strict liability） ...........................................................126
1.4 Guille is a paradigmatic(典型的) case for strict liability............................................................130

2 Theoretical Perspectives ............................................................................................... 131

Chapter9 LIABILITY FOR DEFECTIVE PRODUCTS ............................................... 131

1 Introduction ..................................................................................................................... 131

MacPherson v. Buick Motor Co.(被告制造商卖⻋给零售商，零售商⼜卖给顾客，顾客受
伤，制造商有责任) .....................................................................................................................................131
1.1 The early privity requirement ...........................................................................................................134
1.2 Development of negligence liability. .............................................................................................134
1.3 Implied warranty ...................................................................................................................................135
Escola v. Coca Cola Bottling Co. of Fresno（原告从冰箱取出可⼝可乐瓶爆炸） ................136
1.4 Subsequent California development（really influential, and is recognized by all states）
...........................................................................................................................................................................137
1.5 Extension to other types of defendants ........................................................................................138
1.6 Causation ................................................................................................................................................139
1.7 2 个 Restatement .............................................................................................................................140

2 Manufacturing Defects (using the pure strict liability concept) ......................... 142
3 Design Defects ................................................................................................................ 143
Soule v. General Motors Corporation(汽⻋被撞，地板凹陷进去戳伤原告脚，起诉制造商)
...........................................................................................................................................................................144
3.1 The consumer expectation test: ......................................................................................................146
3.2 Risk utility/benefit test ........................................................................................................................146
3.3 From consumer expectations to the risk-utility test. ................................................................146
3.4 Reasonable alternative design (“RAD”) Related to the risk utility test ................................147
Camacho v. Honda Motor Co., Ltd.（摩托⻋没有护腿板被伤） ................................................148
3.5 crashworthiness（防撞）doctrine (enhanced injury) ...............................................................150
3.6 When “open and obvious”, use what test? (以及 courts 看法) .............................................151
3.7 When “open and obvious”, use what test? Risk utility test ....................................................151

4 Safety Instructions and Warnings .............................................................................. 152

Hood v. Ryobi America Corp. (没管说明书，取下锯⼦的保护罩被伤) .....................................153
4.1 The standard for adequacy. ..............................................................................................................155
4.2 Causation and the "heeding（留⼼/听从）presumption." ....................................................155
4.3 The addressee. ......................................................................................................................................156
State v. Karl（被告通过中间医⽣卖药，认为⾃⼰不需要 warning）........................................156
4.4 About the learned intermediary doctrine.....................................................................................158
4.5 Pharmaceutical design defect claims. ............................................................................................158
Vassallo v. Baxter Healthcare Corporation(尖端技术在那时候检测不出来) ............................159
4.6 ⽤ Hindsight approach 吗 ................................................................................................................161
4.7 State of the art (最先进的技术) .......................................................................................................161

6
 4.8 Post-sale warning obligations. ........................................................................................................161
4.9 Subsequent remedial measures. .....................................................................................................162

5 Defenses............................................................................................................................ 162
5.1 Contributory Negligence, Comparative Responsibility, And Assumption of Risk ...........163
General Motors Corp. v. Sanchez（原告停⻋⻋没有合适地采取安全措施，⻋本⾝也有
defect，导致死亡，适不适⽤⽐较责任） ..........................................................................................163
5.2 Other Affirmative Defenses（Disclaimers）................................................................................167
Disclaimers and contractual waivers. ...............................................................................................167
Statutes of repose（除斥期间）区别于 statute of limitation .................................................167
Preemption（优先适⽤原则） ..........................................................................................................168

7 Product/Service Hybrid Transactions ........................................................................ 168

Royer v. Catholic Medical Center（植⼊⼈造膝盖，发现有缺陷，原告起诉医⽣被拒） ..168

Chapter 1-Introduction to Tort

Liability
Class 1 In Introduction to Tort Liability and The
Litigation Process [TORT LAW & ALTERNATIVES: 1 - 18.]
A. Prologue

B. When should unintended injury result in liability

These rules, located in an intermediate zone between no-liability and universal

compensation, reflect not only the influence of those polar positions, but, perhaps even
more importantly, a tension(对立)between two court-fashioned liability principles strict
liability and negligence.

1. Hammontree v. Jenner*（被告突发癫痫撞向原告小商店）

Court of Appeal of California, 1971. 20 Cal.App.3d 528, 97 Cal.Rptr. 739.

1.1 Brief Fact Summary.

Jenner (Defendant) had an elliptic seizure while driving his car and crashed into
Plaintiff’s store causing personal injuries and property damage. Plaintiff sued in

7
negligence and absolute liability. The court refused to impose absolute liability.

1.2 Synopsis of Rule of Law.

Liability of a driver, suddenly stricken by an illness rendering him unconscious, for
injury resulting from an accident occurring during that time rests on principles of
negligence.

1.3 Facts.
Defendant was driving home from work when he experienced an epileptic seizure and
crashed his car through the wall of a bicycle shop owned by Hammontree and her
husband (Plaintiff). Defendant had a history of epilepsy. Defendant was under the
constant care of a neurologist. The Neurologist testified that he believed it was safe for
Defendant to operate a motor vehicle, even though it was impossible for Defendant to
drive during an epileptic seizure. Plaintiff sued Defendant for personal injuries and
property damage arising out of the automobile accident. The trial court refused to give
the jury an instruction on strict absolute liability. The jury returned a verdict in favor of
Defendant. Plaintiff appealed.

1.4 Issue.
Is Defendant liable to Plaintiff for injuries sustained in a car crash resulting from
Defendant’s unexpected epileptic seizure, even though doctors told Defendant that it
was safe for him to drive?
1.5 Held.
No. Judgment for Defendant affirmed.
* Liability of a driver, suddenly stricken by an illness rendering him unconscious, for
injury resulting from an accident occurring during the illness time rests on principles of
negligence. The trial court was right to refuse to allow a jury instruction that would
have held Defendant responsible for the injuries to Plaintiff on a theory of strict liability.
* Plaintiff seeks to have the court adopt a standard of strict liability. Plaintiff cites cases
where a manufacturer was held strictly liable in tort when an article he placed on the
market, knowing that it is to be used without inspection for defects, proves to have a
defect, which causes injury. Plaintiff argues that only a driver who is affected by a
physical condition, which would render him unconscious, and who is aware of this
condition can anticipate the hazards and foresee the dangers. Thus the liability of the
driver should be predicated on strict liability.
* The court refuses to superimpose the absolute liability of products liability cases upon
drivers under the circumstances here. Manufacturers in products liability cases are
engaged in the business of distributing goods to the public for a profit and thus should
bear the cost of injuries from defective products.
* To invoke a rule of strict liability on users of the streets and highways, without also
establishing in substantial detail how this new rule should operate, would only
contribute confusion to the automobile accident problem. It is up to the legislature to
enact a comprehensive plan for the compensation of automobile accident victims in
place of or in addition to the law of negligence.

8
* The jury instruction was also refused because it does not except from its ambit(范围)
the driver who suddenly is stricken by an illness or physical condition which he had no
reason to anticipate and of which he had no prior knowledge.

1.6 Discussion

1.6.1Know or should have known.

-What a reasonable person should do in that case.

-Who decide the standard to be the reasonable person? Not the Doctors (only provide
the testimony)
Judge: legal facts
The jury (represent the community/factual question): fact.

1.6.2 Jury instructions(法官对陪审团的指示)：

指法官就与案件有关的法律适⽤问题向陪审团所作的指示,对该指示，陪审团应

当接受和适⽤。在美国的联邦法院和多数州的法院都有⼀种对陪审团指示的模式，

要求担任审判的法官使⽤或遵循这种模式。
Appellants' contentions that the trial court erred in refusing to grant their motion
for summary judgment on the issue of liability and their motion for directed verdict on
the pleadings and counsel's opening argument are answered by the disposition of their
third claim that the trial court committed prejudicial error in refusing to give their jury
instruction on absolute liability.

1.6.3 Two claims:

-negligence
-strict liability: e.g Driving behind a truck, oil spill out. Slight. no time to react
Develop activities inherently dangerous even took cautions/negligence still liable.

1.6.4 Why the court said no:

-institutional? : heavily in favor of the policy decision made

-State: encourage the legislature to impose the strict liability on the car driver.
-Court: may change the rule itself. Cause the legislature to do something.

9
1.6.5 Hierarchy

-Trial court (district court)

-Appeal court
-State supreme court (discretionary: whether to hear)

Review:
Strict liability.
Negligence (include fault)

1.6.6 Keep strict liability distinct from absolute liability.

-the various forms of strict liability that have been recognized are virtually never
"absolute" even though they do not require fault.
-there are several other limitations on the "absolute" character of strict liability.

C. The litigation process.

1 Procedure in torts cases

1.1 obtain legal counsel.

Plaintiff Defendent
• Talk to family/friends •Counsel often provided by
• Search the internet insurance company
•Respond to TV/Billboard ad
• Contact Bar Association • If not, then same as Plaintiff
• Telephone Directory
1.2 first to consult and then retain an attorney. The attorney initially might try to
obtain a settlement
1.3 if settlement fails
Plaintiff Defendant
Files Complaint • May file either:
States facts/legal theory and • Motion to Dismiss (a request for
claim for relief a ruling by the court) to dismiss
Can have multiple claims: the complaint also called a
• Strict Liability demurrer- on the ground that even
• Negligence if the allegations of fact in the

10
 complaint are true, there is no
sound legal theory upon which
plaintiff is entitled to relief.
• Answer
1.4 motion to dismiss
Defendant: Argues that even if all facts in the Complaint are true, they do not
state a legal claim for recovery
-If Judge rules for Defendant:
• Case is dismissed and litigation is over …
• Unless Plaintiff appeals ...
• Or Judge allows Plaintiff to amend the Complaint

Plaintiff: Argues that the facts do support a valid legal claim for recovery
-If Judge rules for Plaintiff:
• Defendant may have right to appeal immediately …
• Or may only have right to appeal after trial ends

1.5 Discovery
Plaintiff and Defendant obtain and exchange information:
• Requests for documents of all types, e.g. police reports and medical
records
• Interrogatories and Depositions of parties, witnesses and experts
During the period before trial, the parties may engage in “discovery."
Discovery rules afford the parties an opportunity to obtain evidence by, for example,
requesting documents, including electronic files and e-mails, from an adversary or a
third-party, questioning opponents or independent witnesses under oath in what is
known as a "deposition,(证词)" and sending written "interrogatories（疑问）" to another
party to inquire about matters relevant to the case. In complex cases, discovery can be
both intensive and extensive, require considerable attorney effort, and cost a great deal.
• P or D may move for Summary Judgment
If the plaintiff does not respond with evidence that restores a genuine fact
dispute, the judge will grant customer's motion for summary judgment and enter an
order dismissing the case not on the ground that the plaintiff's legal theory was
inadequate but rather on the ground that the plaintiff's facts cannot possibly be proven
to be true and that a trial would be unnecessary.

1.6 Trial
1.6.1 Jury Selection (but can be tried to judge): 6-10 from jury pool (based on
public records)
1.6.2 Opening Statements
1.6.3 Plaintiff’s Case: Exhibits and Testimony
At the trial, the plaintiff has the burden of proving the essential facts of her case. There
are two components to the burden of proof:
1 burden of production: the plaintiff must introduce sufficient evidence that

11
the jury could rationally find in her behalf. If, for example, the plaintiff has no evidence
about what the defendant did wrong, the plaintiff will have failed to satisfy the initial
requirement to provide sufficient evidence, the "burden of production," and the court
will dismiss the case.
2 The second requirement is the "burden of persuasion." After having
introduced sufficient evidence, the plaintiff must still persuade the factfinder that her
version is correct. That is to say, she must persuade the factfinder that her version of
the facts is "more likely than not" what occurred. In other states, the burden of
persuasion is articulated as convincing the jury of her version by a "preponderance of
the evidence."

1.6.4 Defendant may/may not move for Judgment as a Matter of Law

As in the case when an expert's testimony on a prima facie element- such as
causation-is ruled inadmissible, sometimes the trial may not reach the jury stage. If,
after plaintiff has presented her evidence, the defendant believes that an essential fact
has not been proven, the defendant may make a motion for a "directed verdict," today
called "judgment as a matter of law. (指示裁断: 指直接依案件承审法官的命令而对
案件作出判决。在这种情况下，法官取代了陪审团作为事实认定者的角色，因为
案件的证据非常具有说服力，据此只能合理地得出唯一的结论，或者案件的证据
未能确立表面案件的成立〔establish a prima facie case〕。
1.6.5 Defendant may/may not present evidence
May not present evidence: If the defendant should rest without presenting any
evidence, the case then proceeds to the closing arguments. Each attorney will
summarize the case and will try to persuade the jury to accept a favorable version of
the facts. The jury will then be "charged" by the judge. The charge or "instructions" will
tell the jurors about burdens of proof and the legal rules they should apply to the facts
that they find. After deliberation, the jury reports its "verdict" to the judge.
A defendant who does present evidence will proceed much as did the plaintiff-
-by calling witnesses and introducing documents to bolster the defendant's contentions
about what happened in the case. At the end of the defendant's evidence, defendant may
again move for a judgment as a matter of law (or directed verdict) on the ground that
his presentation has been such a powerful refutation of the plaintiff's claims that no jury
could reasonably decide for the plaintiff.

1.6.6 D and/or P may move for Judgment as a Matter of Law

1.6.7 Closing Arguments

1.6.8 Judge “Charges” the Jury

The charge or "instructions" will tell the jurors about burdens of proof and the
legal rules they should apply to the facts that they find.
1.6.9 Jury returns its judgment … P or D may seek JNOV
A defendant who does present evidence will proceed much as did the plaintiff.
The judge will grant or deny the motion. Or, the judge may "reserve decision delay

12
deciding it until learning how the jury has reacted to the case. If the jury decides the
same way the judge would have, the result is clear. If the jury decides for the plaintiff,
but the judge thinks the defendant should have received judgment as a matter of law,
the judge may now dismiss the case. The advantage of waiting for the jury is that if an
appellate court thinks the jury verdict should stand, it can reverse the trial judge's
decision and reinstate the jury's verdict. If the judge had granted the directed verdict
without waiting for the jury's verdict, and the appellate court disagreed, the only
recourse would be to order a complete new trial.
After a verdict for the plaintiff, an unresigned defendant has several choices. He
may once again move for a judgment as a matter of law or, as it was formerly called,
judgment notwithstanding the verdict on essentially the same grounds asserted
earlier in seeking a judgment as a matter of law: that the jury has reached a verdict that
no jury could reasonably have reached on the evidence in this case.

2 Damages and collecting judgments in torts cases

2.1 Money damages and injunctions
-Money damages:
Hospital/Medical expenses: past & future
Loss of income: past & future
Loss of property
Pain (physical or mental)& Suffering
Punitive Damages (rare)
-Injunctions
Court order for a party to do something or refrain from doing something
Examples:
• Publish a retraction(撤回)
• Refrain from interfering with business transactions

2.2 Collecting on a judgement

If Defendant was represented by Insurance Co., the company normally
pays the damages award.
• Many Defendants without insurance also pay the award.
• If D does not pay, P seeks court order to seize property (e.g., a bank
account) or “garnish” wages

2.3 Attorneys & fees

• Normal U.S. practice is each party pays for its own attorney.
• Losing party normally does not compensate winning party for attorney’s
fees.
• Almost all Plaintiffs hire an attorney on a “contingency fee” basis (33%
– 40%)
• Plaintiffs’ attorneys rarely take a case unless D is insured or has

13
 substantial assets/income.

Class 2 The Parties and Vicarious Liability

[TORT LAW & ALTERNATIVES: 19 – 33.]

1 Plaintiffs

Adult: the age, physical condition, and occupation would have been relevant to her
damage recovery.
Minor: If a minor is hurt, suit generally will be brought on her behalf by her parent or
guardian, and a damage award will be divided so that the minor will recover for any
permanent physical harm (although the money will be placed in trust for her) and her
parent will recover medical expenses borne on the child's behalf.
Infant: An infant who is born alive may sue through a legal guardian for harm suffered
before birth.
-Recoveries: in P19

2 Defendants

Defendants are being held vicariously liable for the torts of another person.
-This is certainly true when a corporation is held liable for the torts of its employees,
whether they are lower, middle or upper-level employees.
-It is also true when any person in business is held liable for the torts of his or her
employees. These forms of vicarious liability, called "respondeat superior,( respondeat
superior) are the most common.
雇主负责 此项原则指雇主对雇员在职务范围内和执行职务过程中的行为应承
担责任。本人对代理人行为的侵权责任，也是以雇佣关系而不是以代理关系为基
础，也适用「雇主负责」原则。"

3 Vicarious liability

Christensen v. Swenson (雇员取吃的过程中造成车祸 公司没有breaks)

14
Supreme Court of Utah, 1994. 874 P.2d 125. • DURHAM, JUSTICE.
Who Swenson (defendant) worked as a security guard for Burns (defendant) at the Geneva
sued Steel Plant. During their shifts, guards at the plant were permitted to take unscheduled
whom, lunch and restroom breaks lasting 10 to 15 minutes. The only restaurant accessible during
when, these short breaks was the Frontier Cafe, located across the street from the plant and
why, and about 150 to 250 yards away from Swenson’s post. A menu for the cafe was displayed at
for what? Swenson’s post. On the day of the accident Swenson called the cafe from her post to
place an order, then drove to the cafe, intending to return and eat lunch at her post. While
returning from the cafe, Swenson collided with Christensen (plaintiff). Christensen sued
Swenson and Burns, claiming that Swenson was negligent in her driving.
The trial court dismissed Burns on summary judgment after finding that Swenson was
not acting within the scope of her employment when the accident occurred. The court of
appeals affirmed, holding that Swenson was not within the spatial boundaries of her
employment at the time of the accident, because the accident did not occur on employer
property.
What When suit was brought against Swenson and Burns, claiming that Swenson had driven negligently,
happene Burns moved for summary judgment on the ground that Swenson was not acting in the scope of her
d in the employment at the time of the accident. The trial court granted the motion and the court of appeals
lower affirmed.
courts?
Where Supreme Court of Utah
are we -Final Court of Appeals
now
procedur
ally?

What -Whether taking lunch from approximately 150-250 yards from Gate 4 within the scope of
question employment.
is before Is an employee’s conduct necessarily outside the scope of employment, as a matter of
the law, when the conduct does not occur on the employer’s property?
court?

What is -We base this conclusion on two disputed issues of material fact. First, Swenson claims that Burns
the employed her as a security guard to "see and be seen" on and around the Geneva plant. Thus, traveling
court’s the short distance to the Frontier Cafe in uniform arguably heightened atmosphere that Burns sought
answer to to project. Burns, on the other hand, claims that Swenson was not hired to perform that function. Burns'
the position is supported by the deposition of another security guard who stated that he considered lunch
question trips to the Frontier Cafe to be entirely personal in nature.
before it? -A second material issue of fact remains as to whether Burns tacitly sanctioned Gate 4 guards' practice
of obtaining lunch from the Frontier Cafe. Burns expected its Gate 4 guards to work eight-hour
continuous shifts and to remain at their posts as much as possible. However, because Burns also
recognized that the guards must at times eat meals and use the restroom, the company permitted them
to take ten-to fifteen-minute paid breaks. The record indicates that Burns was aware that its employees
occasionally traveled to the Frontier Cafe during these unscheduled breaks but had never disciplined

15
 them for doing so. Indeed, Swenson asserts that a menu from the Frontier Cafe was posted in plain
view at Gate 4.
-third
What In Birkner, we stated that acts falling within the scope of employment are " those acts which are so
rule(s) closely connected with what the servant is employed to do, and so fairly and reasonably incidental to
does the it, that they may be regarded as methods, even though quite improper ones, of carrying out the
court objectives of employment.'" [] We articulated three criteria helpful in determining whether an
apply in employee is acting within or outside the scope of her employment.
answerin -First, the employee's conduct must be of the general kind the employee is hired to perform, that is,
g that "the employee must be about the employer's business and the duties assigned by the employer, as
question opposed to being wholly involved in a personal endeavor."
? -Second, the employee's conduct must occur substantially within the hours and ordinary spatial
boundaries of the employment.
-Finally, "the employee's conduct must be motivated, at least in part, by the purpose of serving the
employer's interest."
An employer may be held vicariously liable for an employee’s actions that occur within the scope of
employment.
Holding No. The doctrine of respondeat superior holds that an employer may be held vicariously liable for an
and employee’s tort, if the employee’s conduct occurs within the scope of his employment. Whether an
Reasoni employee’s conduct occurs within the scope of his employment is ordinarily a question of fact to be
ng (Dur determined by the jury. A court may not decide the issue as a matter of law unless the conduct is so
ham, J.) clearly within or outside the scope of employment that reasonable minds could not differ on the issue.

In Birkner v. Salt Lake County, 771 P.2d 1053 (Utah 1989), this court identified three key
characteristics of conduct that occurs within the scope of employment: (1) the conduct is of the kind
the employee was hired to perform, and not a personal endeavor; (2) the conduct occurs within the
hours and spatial boundaries of employment; and (3) the conduct is motivated by the purpose of
serving the employer’s interest. The court of appeals relied solely on the second criterion in deciding
that Swenson was outside the scope of her employment at the time of the accident. However, this court
finds that reasonable minds could differ as to all three criteria. As to the first criterion, there is an issue
of material fact as to whether traveling to a nearby location in uniform promoted the employer’s
business by enhancing the atmosphere of security, or whether, as Burns claims, a lunch trip to an
outside location is a purely personal endeavor.
In addition, there is a material issue of fact as to whether Burns knew that employees traveled to
the cafe on breaks and sanctioned such behavior. Employees were not disciplined for traveling to the
cafe, and the cafe’s menu was posted at Swenson’s work station.
As to the second criterion, there is an issue of material fact as to whether travel to the cafe falls
within the spatial boundaries of Swenson’s employment. Although not on employer property, the cafe
was in the area accessible during Swenson’s short break.
In addition, there is a dispute as to whether there were orders prohibiting employees from traveling
to the cafe, the existence of which could indicate that the cafe was outside the spatial boundaries of
Swenson’s employment. As to the third criterion, there is an issue of material fact as to whether, in
traveling to the cafe during her break, Swenson was motivated by the purpose of serving her employer.
Employee breaks in general can benefit both employee and employer. In addition, placing her order

16
ahead, driving to a nearby location, and returning immediately to minimize time spent away from her
post could show that Swenson’s conduct was motivated by the purpose of serving her employer.
Because reasonable minds could differ as to whether Swenson’s conduct at the time of the accident
occurred within the scope of her employment, it is an issue of fact that must be determined by the jury.
The court of appeals’ grant of summary judgment is therefore reversed, and the case is remanded for
further proceedings.

3.1 The parties and vicarious liability

Under the doctrine of respondent superior, employers are vicariously liable for torts
committed by employees while acting within the scope of their employment.
Thus, Burns could be held vicarious liability (nature of the relationship) for
Swenson’s negligence.
-nature of the relationship
-negligence
- The theory of vicarious liability includes the idea that the person held liable may
recover indemnity(赔款/保障) from the person whose negligence or other tort created
the liability.

3.2 Whether summary judgement (there is no genuine issue as to any material

fact and the moving party is entitled to judgment as a matter of law) is
appropriate or not?

: whether reasonable minds may differ.

Whether an employee is acting within the scope of her employment is ordinarily a
question of fact. The question must be submitted to the jury " whenever reasonable
minds may differ as to whether the [employee] was at a certain time involved wholly
or partly in the performance of [the employer's\ business or within the scope of
employment. However, when the employee's activity is so clearly within or outside the
scope of employment that reasonable minds cannot differ, the court may decide the
issue as a matter of law.

3.3 Scope of the employment (question of fact)

First, the employee's conduct must be of the general kind the employee is hired to
perform, that is, "the employee must be about the employer's business and the duties
assigned by the employer, as opposed to being wholly involved in a personal
endeavor."
Second, the employee's conduct must occur substantially (大体上) within the hours

17
 and ordinary spatial boundaries of the employment.
-Spatial boundaries
-To see and be seen
e.g. While it is true that Swenson was not on Geneva property when the accident
occurred, she was attempting to obtain lunch from a restaurant within the geographic
area accessible during her ten-to fifteen-minute break.
What if the café needs 20 minutes each to go and back?
----serve the employer’s need
Finally, "the employee's conduct must be motivated, at least in part, by the purpose
of serving the employer's interest."
- First, two Burns managers admitted in their depositions(证词) that employee
breaks benefit both the employee and the employer.
-Second, given the continuous-shift nature of the job and the comparatively
brief breaks permitted, Burns' break policy obviously placed a premium（需要）on
speed and efficiency.
e.g. The lunch thing must serve the employer’s need instead of the employee’s
personal need (entirely personal)

3.4 Employee’s intentional tort

Vicarious liability may still exist e.g. a truck driver hit someone when someone was
interfering the driver.
3.5 Employer negligence

3.6 The Employee / Independent Contractor Distinction

Employers are vicariously liable for the torts of their employees while acting in the
scope of employment whereas hirers of independent contractors ordinarily are not
vicariously liable.
Reasonable employee
A principal/ agent/independent contractor

Roessler v. Novak (2003) （关于医院要不要给医生承担替代责任）

Florida District Court of Appeal, 2003 858 So.2d 1158. • SALCINES, JUDGE.
Brief Fact Roessler (plaintiff) was admitted to Sarasota Memorial Hospital (defendant), where his diagnostic scans were
Summary. read by Dr. Lichtenstein. Roessler underwent surgery, and suffered severe complications. Roessler brought
suit against Sarasota Memorial, alleging that Dr. Lichtenstein was negligent in misinterpreting Roessler’s
scans. Roessler argued that Sarasota Memorial was vicariously liable because Dr. Lichtenstein was acting as
the hospital’s agent. At the time of the incident, Dr. Lichtenstein was associated with SMH Radiology
Associates, an association of radiologists. SMH Radiology had an independent contractor agreement with
Sarasota Memorial, and provided all of the hospital’s radiological services. SMH Radiology and Dr.

18
 Lichtenstein both had offices solely within Sarasota Memorial. The trial court granted summary judgment for
Sarasota Memorial after finding that Dr. Lichtenstein was an independent contractor, and not an agent or
employee of the hospital.

Synopsis（梗 A hospital can be held vicariously liable for an independent contractor physician’s malpractice
概） of Rule when the physician acts with the apparent authority of the hospital.
of Law.

Issue. If an independent contractor physician acts with the apparent authority of a hospital, can the
hospital be held vicariously liable for the physician’s malpractice?
Held. (Salcines, J.) Yes.
A hospital can be held vicariously liable for an independent contractor physician’s malpractice
when the physician acts with the apparent authority of the hospital.
Yes. Under some circumstances, a hospital may be vicariously liable for the actions of a
physician who is an independent contractor, if he or she acts with the hospital’s apparent
authority.
Ordinarily, a principal may be held vicariously liable for an agent’s actions if they occur
within the scope of the agency. An agency may be either express or apparent. An apparent
agency exists where a principal makes a representation which is relied on by a third party
to his or her benefit or detriment. An agent’s apparent authority to act on the principal’s
behalf can only arise when the principal creates an appearance of an agency relationship,
and is not based on the purported agent’s actions or a third party’s subjective beliefs.
Whether a physician had apparent authority to act on behalf of a hospital, or whether an
apparent agency existed, is ordinarily a question of fact for the jury to decide. Here, there
is evidence in the record that could support a finding of apparent agency between Dr.
Lichtenstein and Sarasota Memorial. SMH Radiology and Dr. Lichtenstein have offices
within Sarasota Memorial, and do not maintain offices outside of the hospital grounds. SMH
Radiology provides all of Sarasota Memorial’s radiological services. When Roessler was
admitted to Sarasota Memorial, it provided the services and doctors the hospital deemed
necessary, including radiological services through Sarasota Memorial’s radiology
department. Sarasota Memorial assigned Dr. Lichtenstein to interpret Roessler’s scans,
and Roessler accepted the physician the hospital provided to him. In light of this evidence,
there was a sufficient issue of material fact as to whether Dr. Lichtenstein was an apparent
agent of Sarasota Memorial to survive the summary judgment motion. The trial court’s order
is reversed and the case remanded for further proceedings.
Concurrence Concurrence. (concurring opinion: agree with the judgement , another reasoning 指法官对
判决投的同意票，但其理由常与判决依据不同)
(Altenbernd, C.J.) Precedent requires me to concur in the result. However, I believe that the theory
of apparent authority does not work well to create vicarious liability in a complex institution like
a hospital where many interrelated independent contractors work next to each other on the same
customers.

Discussion Some hospitals have their own staff physicians while others have contracted with physician

19
 groups that work to provide medical services as independent contractors with the expectation that
the hospital will not be vicariously liable for their negligence. Certain circumstances will still
allow for vicarious liability within these arrangements, especially in emergent care scenarios.

Key points related to this case:

Ø Why they SMH sign a contract with SMH radiology?
-To avoid the vicarious liability.
Ø The radiologist only work for the SMH
-independent contractor may work for different employers
Ø Concurring: nondelegable duty; hospital’s duty should not be delegate to others.
A rule needed. The audience of this concurrence: legislature & supreme court.
I suspect that medical economics would work better if the general rule placed
general vicarious liability upon the hospital for these activities.

3.7 Apparent authority has three elements:

代理⼈的表⻅代理权：本⼈未实际授权，但本⼈明知⽽允许代理⼈⾏使的代理

权。第三⼈系善意地与代理⼈进⾏交易，并对该表⾯现象产⽣正当信赖，则表⻅
代理权与实际代理的法律效果
1) a representation by the purported principal.
2) a reliance on that representation by a third party.
3) a change in position by the third party in reliance on the representation.
e.g. SMH and SMH Radiology Associates, P.
e.g. Plaintiff reasonably relied upon the hospital to provide radiological services.
The radiology department was located on the hospital’s grounds and the contracted
radiology group was the exclusive provider of such services for the hospital, covering
the hospital 24 hours a day, 7 days a week. Plaintiff was sent to the radiology
department while a patient at the hospital. Plaintiff accepted the radiologist provided
at the hospital and did not attempt to obtain outside services. Clearly, Plaintiff would
see the radiology department as belonging to the hospital.

3.8 Section 57 of the Restatement (Third) of Torts: Liability for

Physical and Emotional Harm states:(independent contractor)

Except as stated in §§ 58-65, an actor who hires an independent contractor is not

subject to vicarious liability for physical harm caused by the tortious conduct of the
contractor.
One of those exceptions, section 65, provides:
20
 An actor who hires an independent contractor to perform services is subject to
vicarious liability for physical harm if:
(a) the services are accepted in the reasonable belief that the actor or the actor's
employees are rendering the services;
and (b) the independent contractor's negligence is a factual cause of harm to one who
receives the services, and such harm is within the scope of liability.

Chapter 13 Intentional Harm

Class 3 Introduction, Basic Doctrine, and
Assault & Battery [TORT LAW & ALTERNATIVES: 899 –
915 up to “3.”]

Ø Intentional Harm
e.g. physical attacks and the theft of property
1 Definition of ‘intentionally’: focus on what the defendant sought to achieve, or
knew would occur, rather than on whether the defendant intended the act that
ultimately caused harm. Dose not mean intent to harm.

2 Definition of ‘intent’ in the Restatement (Third) Torts: Liability for Physical and
Emotional Harm section I requires that:
(a) the person acts with the purpose of producing [the] consequence" or
(b)the person acts knowing that the consequence is substantially certain to
result.
In defining intent, we no longer speak of risk the characteristic attribute of an
accidental harm-but rather of "purpose" to bring about consequences, or knowledge
that such consequences are "substantially certain" to occur.
To determine from objective perspective view. ( 无 关 实 施 者 的 subjective
intention/motivation 而是 objective view)
e.g. doctor 做手术，the doctor may have Affirmative defense.

3 Strict liability for abnormally dangerous activities involves reasonably careful

behavior that nevertheless creates abnormal risk (section 20).

4 Negligence is defined as "failing to exercise reasonable care under all the

circumstances" (section 3).
A person acts recklessly (section 2) if:
(a) the person knows of the risk of harm created by the conduct or knows facts
that make the risk obvious to another in the person's situation, and

21
 (b) the precaution(预防措施) that would eliminate or reduce the risk involves
burdens that are so slight relative to the magnitude of the risk as to render the person's
failure to adopt the precaution a demonstration of the person's indifference to the risk.

1 Basic Doctrine

1.1 Intent

Garratt v. Dailey(五岁小男孩抽椅子)

Supreme Court of Washington, 1955 46 Wash.2d 197, 279 P.2d 1091.

• HILL, JUSTICE.
Who sued On July 16, 1951, Brian Dailey (defendant), a five-year-old boy, was visiting at the home
whom, when, of Ruth Garratt (plaintiff). Garratt started to sit down in a lawn chair when Dailey moved
why, and for it. Garratt fell, sustaining serious injuries, including a broken hip. Garratt sued Dailey for
what? battery. At trial, Garratt’s sister testified that Dailey deliberated pulled the chair out from
under Garratt. The trial court did not accept this version of events, however, and instead
accepted the testimony of Dailey. Dailey claimed that he moved the chair to sit down in
it, and despite his efforts, he was unable to replace the chair in time to stop Garratt’s fall.
The trial court thus concluded that Dailey did not possess any “any willful [sic] or unlawful
purpose” or intent to harm Garratt when he moved the chair. The judge dismissed the
action against Dailey. The court then determined that Garratt had suffered some $11,000
in damages, in case the decision were to be overruled on appeal. Garratt appealed to
the Supreme Court of Washington, requesting entry of judgment in her favor or a new
trial.
What The trail court adopted D’s version of what happened.
happened in Plaintiff appeals from a judgment dismissing the action and asks for the entry of a judgment in
the lower that amount or a new trial.
courts? She failed in her proof and accepted Brian's version of the facts rather than that given by
the eyewitness who testified for the plaintiff.
Where are Supreme Court of Washington
we now
procedurally?
What May a five-year-old child be held liable for battery?
question is
before the
court?
What rule(s) A minor may be held liable for the tort of battery if she acted intentionally, with knowledge
does the to a substantial certainty that her actions would cause a harmful or offensive contact to

22
court apply another person.
in answering
that
question?
Holding and Yes. A five-year-old child may be held liable for battery if she possessed the necessary intent.
reasoning The tort of battery may be generally defined as the “intentional infliction of a harmful bodily
contact upon another.”
The elements of battery are: (1) an intentional act done to cause a harmful or offensive
contact or an apprehension of such contact to another person, (2) without valid consent, and
(3) without privilege.
To be intentional, the act must have been done “for the purpose of causing the contact or
apprehension or with knowledge . . . that such contact or apprehension is substantially certain.”
Substantial certainty is necessary for liability for an intentional tort to attach, though the
conduct may be negligent without it.
Generally, a minor may be held liable for committing a “tort with force” just as an adult
would. That said, a child’s “experience, capacity, and understanding” may be considered in
determining what she knew. In this case, there is no question that Garratt did not consent to
Dailey moving the chair, and Dailey’s actions were not privileged.
The only issue is whether Dailey possessed the requisite intent for liability to attach. Dailey
committed a volitional(自行判断的) act when he moved the chair. If Dailey intended to cause
Garratt to fall, liability is proper. This may be shown by demonstrating that Dailey knew with
substantial certainty that Garratt was going to try to sit down where the chair had been
previously. It cannot be determined from the evidence presented at trial whether Dailey knew
this with substantial certainty.
Dailey’s age is not significant to his liability in this case, except as it relates what he knew
at the time he moved the chair. The case is remanded for ruling on the issue of whether Dailey
knew with substantial certainty when he moved the chair that Garratt was going to try to sit
down in it.

Key points related to this case:

1 the court observed that the most common defenses to battery were not involved:
"We have in this case no question of consent or privilege."
2 Vosburg v. Putne
If happen in the play yard, the defendant may have the affirmative defense.
3 Why Garratt sue a child?
The parents have home insurance.
Home insurance will not include injury due to intentional tort.

1.1.1 Tort of battery(elements)

The intentional infliction of a harmful bodily contact upon another.

23
Harmful offensive touching: his action leads to hit the ground.
Instrument Brain use is the ground. (Associated with the body)
The elements of battery are:
(1) an intentional act done to cause a harmful or offensive contact or an apprehension
of such contact to another person,
(2) without valid consent, and
(3) without privilege.

1.1.2 Intent

Intent: with purpose to do something or know the result is of substantial certainty to

happen/occur.

1.1.3 Substantial certainty.

(1) Suppose Brian did not believe to a "substantial certainty" that plaintiff was about to
sit down. Might he still be liable on a negligence theory for the failure to exercise
reasonable care?
NO. Act as a reasonable and prudent person (why sue Brain of negligence? No child
under 6 could be negligent under Washington law. Cannot ask the child under 6 acts as
a reasonable person)
(2) Suppose Brian did know to a "substantial certainty" that plaintiff was about to sit in
the chair.
The Third Restatement, in comment e to section 1, suggests that the "substantial
certainty" test be limited "to situations in which the defendant has knowledge to a
substantial certainty that the conduct will bring about harm to a particular victim or to
someone within a small class of potential victims within a localized area.
*The boy is capable of knowledge of that without the chair, even do not mean to harm.
But if Brian doesn’t have the intent which meets the substantial certainty.

1.1.4 Individualized knowledge vs statistical knowledge

Individualized knowledge: the awareness that a particular act is substantially certain

to harm someone
Statistical knowledge: the awareness that one's multiple acts over time will, to a high
statistical likelihood, ultimately harm one or more persons from a large class of
potential victims.
Difference: While individualized knowledge is sufficient to satisfy the substantial
certainty（实质性的确定性）test for intent, statistical knowledge is not.

24
1.1.5 Cause-in-fact

1)The basic rule is that plaintiff must prove that defendant's intentional tortious
conduct was an actual cause of the harm.
2)Extended circumstances ----Chain of causation: used in intentional tort instead
of negligence. ---for intentional tort. 强迫 kiss（battery/assault…）----导致口炎---口
炎导致没法出去见人…都可以 claim！
3)Proximate cause (近因)
近因 指实质性原因。某项作为或不作为是造成伤害或损害的近因，指伤害
或损害是作为或不作为的直接结果或合理结果，即如果没有该原因，则结果不会
产生。近因不一定与结果在时间上或空间上最为接近，而是与造成结果最为接近。
（更加适用于 negligence） (→concurrent causes; efficient cause; immediate cause;
legal cause) In a negligence action, the scope of a defendant's liability is limited to those
harms that were proximately caused by the negligent conduct.

1.1.6 Punitive damages.

In intentional tort cases, the defendant is often, but not always, responsible for both
compensatory damages and punitive damages as well.

1.1.7 Intent and insanity

(Insane person may not have ‘intent’, do not have the fault) A defendant's insanity
does not establish a defense to liability. That rule reflected a policy decision "to impose
liability on an insane person rather than leaving the loss on the innocent victim.’
The message of this rule: to make the people who is responsible for the insane person.

- Punitive damages.
In intentional tort cases, the defendant is often, but not always, responsible for both
compensatory damages and punitive damages as well. (Sometimes compensatory
damages cannot be paid)

-Victim compensation statute

-eggshell rule （intentional or negligence 都适用）

e.g. ： Assume, for this question only, that the railroad is found to be
negligent and liable for Teen's injuries. For what injuries will it be liable?

25
 (A) All his injuries because a lengthy hospital stay is a foreseeable risk if a train hits
a car.

(B) Only the minor cuts and bruises, because it is not foreseeable that a Plaintiff will
have hemophilia.

(C) All his injuries, even though a lengthy hospital stay would normally not be
required for a Plaintiff who suffers only cuts and bruises.

Correct because it reflects the “thin skull” rule that is relevant on these facts.

(D) All his injuries because the railroad's failure to repair the warning light after
several weeks is reckless, not merely negligent.

2 Assault and Battery

Picard v. Barry Pontiac-Buick, Inc.（修车厂员工威胁顾客）

Supreme Court of Rhode Island, 1995 654 A.2d 690.

• LEDERBERG, JUSTICE.
Who sued In response to a dispute over repairs, Picard (plaintiff) brought a camera to the
whom, when, repair shop of her automobile dealer, Barry Pontiac-Buick, Inc. (defendant), and
why, and for took a picture of one of the dealer’s employees (defendant). The employee
what? admitted pointing his finger at Picard, approaching Picard, asking who gave her
permission to take his picture, and placing his index finger on the camera that
was in Picard’s hand. Picard brought claims for assault and battery.
She was awarded substantial compensatory damages and punitive damages.
Pontiac-Buick and its employee appeal, arguing that Picard failed to prove
assault or battery because Picard was not placed in reasonable apprehension
of imminent bodily harm, and because there was no evidence that the employee
intended to touch Picard.

What At trial to the court, plaintiff prevailed and was awarded $60,366 in compensatory
happened in damages and an additional $6,350 in punitive damages. Defendant appealed, arguing "1)
the lower that plaintiff failed to prove an assault and battery: 2) that plaintiff failed to prove that
courts? defendant's actions in fact caused the alleged harm to her; and 3) that the damage awards
were grossly excessive and inappropriate as a matter of law." The supreme court vacated the
award and remanded（送押候审） for a new trial on damages.
Where are Supreme Court of Rhode Island,
we now
procedurally?
What May a plaintiff recover for claims of assault and battery where she had a
26
question is reasonable apprehension of imminent bodily harm as a result of the defendant’s
before the conduct, and where the defendant intentionally came into contact with something
court? connected to the plaintiff, but where there was no direct physical contact between
the defendant and the plaintiff?
What is the Yes. An assault is a threatening physical act, or a threat of physical harm,
court’s which creates in the plaintiff a reasonable fear of imminent bodily harm. Here,
answer to the Picard had a reasonable fear of imminent bodily harm, because the employee
question admitted approaching Picard while pointing his finger at her. Battery is conduct
before it? that is intended to cause, and does cause, offensive contact with another
person’s body. However, an intent to injure the plaintiff is not required if the
defendant intentionally sets in motion something that will ordinarily cause such
an injury. As noted in comment c to the Restatement (Second) of Torts, § 18,
battery includes intentional contact with anything connected to the plaintiffs body.
Here, the evidence shows that the employee intended to touch Picard’s
camera, and that these actions were not accidental or involuntary. This offensive
contact with an object attached to Picard’s body constitutes a battery. This court
also finds that the damage award is excessive, and that punitive damages are
unsupported because there was no proof of malice or bad faith. The Superior
Court’s judgment as to assault and battery is affirmed, but the case is remanded
for a new trial on the amount of damages.
What rule(s) -Assault and battery are separate acts, usually arising from the same transaction, each
does the having independent significance. [] "An assault is a physical act of a threatening nature or
court apply an offer of corporal injury which puts an individual in reasonable fear of imminent bodily
in answering harm." [I It is a plaintiff's apprehension of injury which renders a defendant's act
that compensable. [I; see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts §
question? 10, at 43 (5th ed. 1984)(*It]he damages recoverable for [assault] are those for the plaintiffs
mental disturbance, including fright, humiliation and the like, as well as any physical illness
which may result from them"). This apprehension must be the type of fear normally aroused
in the mind of a reasonable person.
-We have defined battery as an act that was intended to cause, and in fact did cause,
"an offensive contact with or unconsented touching of or trauma upon the body of another,
thereby generally resulting in the consummation of the assault.... An intent to injure plaintiff,
however, is unnecessary in a situation in which a defendant willfully sets in motion a force
that in its ordinary course causes the injury."
-Restatement (Second) Torts § 18, comment c at 31 (1965): Unpermitted and
intentional contacts with anything so connected with the body as to be customarily regarded
as part of the other's person and therefore as partaking of its inviolability is actionable as an
offensive contact with his person. There are some things such as clothing or a cane or,
indeed, anything directly grasped by the hand which are so intimately connected with one's
body as to be universally regarded as part of the person."
Assault and battery occur where the plaintiff has a reasonable apprehension
of imminent bodily harm as a result of the defendant’s conduct, and where the
defendant intentionally comes into contact with something connected to the
plaintiff.

27
How does the -The plaintiff testified that she was frightened by defendant's actions. A review of the
court reason attendant circumstances attests that such a reaction was reasonable. The defendant admitted
its way to its approaching plaintiff, and the photograph taken that day clearly showed defendant pointing
conclusion? his finger at plaintiff as defendant approached her. Because plaintiffs apprehension of
imminent bodily harm was reasonable at that point, plaintiff has established a prima facie
case of assault.
-In the instant case, defendant contended that a battery did not occur because defendant did
not intend to touch or injure plaintiff. Rather, defendant argued, the evidence showed that
he intended to touch plaintiff's camera, not plaintiff's person, and therefore the contact
was insufficient to prove battery. With this contention we must disagree. Even if this court
were to accept defendant's characterization of the incident, a battery had nonetheless
occurred. The defendant failed to prove that his actions were accidental or involuntary.
What does In conclusion, we deny in part and sustain in part the defendant's appeal. We affirm the
the court do judgment of the Superior Court in respect to the defendant's commission(施行) of assault
and/or direct and battery, but we vacate[撤销；废除；宣布(行为、合同、法令等)无效 它与「set aside」
the lower 同义，表示上诉法院撤销此前通常由下级法院所作的判决，但并不必然表示应在此后
court to do? 的程序中作出相反的判决。]the awards of compensatory and punitive damages. (The court
Who wins? think it is not that kind of behavior can constitute a punitive damages)
We remand the case to the Superior Court for a new trial on the damages sustained by the
plaintiff.

Key points in this case:

1 anything directly grasped by the hand which are so intimately connected with one's
body as to be universally regarded as part of the person."
2 Assault and battery are separate acts, usually arising from the same transaction,
each having independent significance.
3 why we have Battery but still have assault?
Also have emotional distress of the impending touching.

1.2.1 Assault

Reasonable apprehension of imminent harmful/offensive contact

An assault is a physical act of a threatening nature or an offer of corporal injury which

puts an individual in reasonable apprehension (mental state of the plaintiff) of imminent
(马上要发生的) bodily harm. It is a plaintiff's apprehension（担心） of injury which
renders a defendant's act compensable. The damages recoverable for [assault] are those
for the plaintiff’s mental disturbance, including fright, humiliation and the like, as well
as any physical illness which may result from them. This apprehension must be the type
of fear normally aroused in the mind of a reasonable person.
Do not have to fear. ONLY the reasonable apprehension, think it may happen.

28
 assault
n.(1)(刑法)(侵权法)威胁；恐吓 指威胁或使用暴力，使得他人合理地认为伤
害性或侵犯性的身体接触即将发生；或者通过威胁实施殴打使得他人合理地认为
殴打即将发生。 (2)(刑法)企图伤害罪 指意图伤害的殴击未遂，属于普通法
上及制定法上的轻罪。 (3)(非严格意义上)殴击 (4)攻击；袭击

1.2.2 Battery

Definition1-We have defined battery as an act that was intended to cause, and in
fact did cause, "an offensive contact with or unconsented touching of or trauma upon
the body of another, thereby generally resulting in the consummation of the assault....
An intent to injure plaintiff, however, is unnecessary in a situation in which a defendant
willfully sets in motion a force that in its ordinary course causes the injury."

Definition2-
Restatement (Second) of Torts §§ 18, 19 (1965):18. Battery: Offensive Contact
(1) An actor is subject to liability to another for battery if (a) he acts intending to
cause a harmful or offensive contact with the person of the other or a third person, or
an imminent apprehension of such a contact. And (b) an offensive contact with the
person of the other directly or indirectly results.
(2) An act which is not done with the intention stated in Subsection (1,a) does not
make the actor liable to the other for a mere offensive contact with the other's person
although the act involves an unreasonable risk of inflicting it and, therefore, would be
negligent or reckless if the risk threatened bodily harm.

battery
n.(1)殴击罪 普通法上和制定法上的轻罪。指对他人非法使用暴力的行为。
构成此罪有 3 个基本构成要件：１被告实施了犯罪行为。包括作为和不作为；２
被告的心理状态，可能是故意，也可能是轻率；３对被害人的伤害结果，可能是
身体伤害，也可能是侵犯接触。有时，殴击可能是合法的，在某些情形下，受害
人的同意可构成抗辩的理由。assault 指企图实施武力伤害他人, battery 指对这种
威胁的实施，它包含 assault，即企图伤害在内，所以， 「assault and battery」经常
在一起使用，指殴打、人身攻击等。(=criminal battery)(→assault and battery) (2)(侵
权法)非法侵犯(=tortious battery)

Wishnatsky v. Huey (律师助理推另一个律师助理)

Court of Appeals of North Dakota, 1998. 584 N.W.2d 859.
• PER CURIAM.
Who sued Assistant attorney general Huey (defendant) was having a private conversation with
whom, when, another attorney, Crary, in Crary’s office. Wishnatsky (plaintiff), Crary’s paralegal,
why, and for attempted to enter the office without knocking. Huey pushed the door closed, pushing
what? Wishnatsky out into the hallway. Wishnatsky brought a battery claim against Huey. The trial

29
 court dismissed the claim on summary judgment. Wishnatsky appealed.
What -Martin Wishnatsky appealed a summary judgment dismissing his battery action against David
happened in W. Huey, and an order denying his motion for an altered judgment.
the lower -Huey moved for summary judgment of dismissal. The trial court granted Huey's motion and
courts? a judgment of dismissal was entered. Wishnatsky moved to alter the judgment. The trial court
denied Wishnatsky's motion.
-Wishnatsky appealed, contending the evidence he submitted in response to Huey's motion for
summary judgment satisfies the elements of a battery claim and the trial court erred in granting
Huey's motion, Wishnatsky also contends Huey is not entitled to prosecutorial or statutory
immunity.
Where are Court of Appeals of North Dakota
we now
procedurally?
What Whether pushing somebody into the hall can be considered as battery.
question is Does a battery occur where the defendant’s contact offends a plaintiff who is unduly
before the sensitive as to his personal dignity, if that contact would not have offended a reasonable
court? person’s sense of personal dignity?
Holding and No. The offensive contact necessary to support a claim for battery must be such that it would
Reasoning offend a person with a reasonable sense of personal dignity.
(quimbee) Traditionally, a battery consisted of the least touching of another person in anger.
The Restatement (Second) of Torts attempts to balance the interest in preventing
unwanted contacts with the inevitability of contact in today’s crowded world. Section 18
finds a battery where a person acts with the intent to cause a harmful or offensive contact
with another’s person, or the imminent apprehension of such contact, and where an
offensive contact actually results, either directly or indirectly, from the action. Section 19
defines contact as offensive if it would offend a reasonable sense of personal dignity.
Offensive contact must be unwarranted in the time and place in which it occurs, and may
not simply be offensive to someone who is unduly sensitive as to his personal dignity. In
this case, the evidence indicates that Wishnatsky is unduly sensitive about his personal
dignity. Although Huey’s response to Wishnatsky’s unannounced intrusion into a private
conversation was rude and abrupt, the contact here was brief and indirect, and did not, as a
matter of law, rise to the level of a battery. An ordinary person with a reasonable sense of
personal dignity would not have been offended by Huey’s response to Wishnatsky’s
intrusion into his private conversation. The trial court’s summary judgment dismissal of the
action is affirmed.
What rule(s) P910 粉色
does the A person is not liable for battery for mere offensive contact with another person that
court apply was unintentional and occurred due to the inevitable contact of a crowded world.
in answering [quimbee]A battery occurs where the defendant’s conduct is intended to, and does,
that cause contact with another’s person which would offend a reasonable person’s
question? sense of personal dignity.
How does the -As a matter of law, however, Huey's "rude and abrupt" conduct did not rise to the level of
court reason battery.
its way to its -"unduly sensitive as to his personal dignity.

30
conclusion? -Huey closed the door opened by Wishnatsky, thereby stopping Wishnatsky's forward progress
and pushing him back into the hall. The bodily contact as momentary, indirect, and incidental.
-In short, an "ordinary person ... not unduly sensitive as to his personal dignity" intruding upon
a private conversation in Wishnatsky's manner would not have been offended by Hue's
response to the intrusion. We conclude that Huey's conduct did not constitute an offensive-
contactbattery, as a matter of law, and the trial court did not err in granting Huey's motion for
summary judgment dismissing Wishnatsky's action.
-Affirmed
What does -As a matter of law, however, Huey's "rude and abrupt" conduct did not rise to the level of
the court do battery.
and/or direct -"unduly sensitive as to his personal dignity.
the lower -Huey closed the door opened by Wishnatsky, thereby stopping Wishnatsky's forward progress
court to do? and pushing him back into the hall. The bodily contact as momentary, indirect, and incidental.
Who wins? -In short, an "ordinary person ... not unduly sensitive as to his personal dignity" intruding upon
a private conversation in Wishnatsky's manner would not have been offended by Hue's
response to the intrusion. We conclude that Huey's conduct did not constitute an offensive-
contactbattery, as a matter of law, and the trial court did not err in granting Huey's motion for
summary judgment dismissing Wishnatsky's action.
-Affirmed

Key points in this case:

1 What are the justifications for extending battery actions beyond actual physical
harm?
2 discussions
While the original conception of battery was broadly defined as the
“infliction of physical injury,” the definition has since been refined to
distinguish unwanted contact with the inevitable contact of a crowded world.
As such, battery is now defined as an act intended to cause a harmful or
offensive contact with another person.

An offensive contact is one that would offend the ordinary person and
not someone who is unduly sensitive.

Here, Wishnatsky claimed that he was very sensitive to “evil spirits” and
was “greatly disturbed by the demonic” as reasoning for his offense to Huey’s
shutting the door. However, rude and abrupt conduct that is momentary,
indirect, and incidental does not rise to the level of a battery.

31
1.2.3 Restatement (Second) of Torts related to battery and offensive

contact and What Constitutes Offensive Contact?

The American Law Institute has balanced the interest in unwanted contacts and the
inevitable contacts in a crowded world in Restatement (Second) of Torts §§ 18, 19
(1965):
18. Battery: Offensive Contact
(1) An actor is subject to liability to another for battery if
(a) he acts intending to cause a harmful or offensive contact with the person of the
other or a third person, or an imminent apprehension of such a contact. and
(b) an offensive contact with the person of the other directly or indirectly results.
(2) An act which is not done with the intention stated in Subsection (1,a) does not make
the actor liable to the other for a mere offensive contact with the other's person although
the act involves an unreasonable risk of inflicting it and, therefore, would be negligent
or reckless if the risk threatened bodily harm.

19. What Constitutes Offensive Contact

A bodily contact is offensive if it offends a reasonable sense of personal dignity.
Comment c to section 18 notes that the contact need not be "directly caused by some
act of the actor" and also notes that "the essence of the plaintiff's grievance consists in
the offense to the dignity involved in the unpermitted and intentional invasion of the
inviolability of his person and not in any physical harm done to his body." Comment a
to section 19 explains what kind of conduct offends a reasonable sense of personal
dignity:
In order that a contact be offensive to a reasonable sense of personal dignity, it must
be one which would offend the ordinary person and as such one not unduly sensitive as
to his personal dignity. It must, therefore, be a contact which is unwarranted by the
social usages prevalent at the time and place at which it is inflicted.

1.2.3 Offensive contact

What Constitutes Offensive Contact?
A bodily contact is offensive if it offends a reasonable sense of personal dignity.

1.2.4 Reconsidering intent (Dual intent and single intent) tips in exam

Because a battery involves either a harmful or offensive contact, a defendant can be

liable for a battery without specifically intending to cause physical harm or offense.
The defendant can incur liability because of the single intent to cause a bodily contact
without having a secondary intent to cause physical harm or offense to the plaintiff.
Liability for battery must instead require the dual intent to cause (1) a physical contact,

32
 and (2) harm or offense as a result of that contact.

不同 court 会用不同 concept of intent：

-Single intent:
Intent: with purpose to do something or know the result is of substantial
certainty to happen/occur.

-Dual intent
(1) Intent with purpose to do something or know the result is of substantial
certainty to happen/occur.
(2) And intent to cause harmful and offensive
答题方法：如果不知道在哪个 jurisdiction
问 intent 的时候：in the alternative(这种
: If (1)then…
But if (2) then…

1.3 False imprisonment 【915】

非法拘禁 非法剥夺他人的人身自由的行为。凡未经依法授权或无法律根据，
以暴力或以暴力相威胁，强制他人违反自己的意愿留在某处或到某处去，即构成
非法拘禁，而不论拘禁的地点或拘禁时间的长短。在普通法上属刑事犯罪行为及
民事侵权行为。恶意虽非构成非法拘禁的必要条件，但可加重行为人的赔偿责任。

Lopez v. Winchell's Donut House (甜甜圈店员被怀疑偷钱 被询问时可以随时

走)

Illinois Appellate Court, 1984. 126 Ill. App. 3d 46. 466 N.E.2d 1309.
• LORENZ, JUSTICE.
Who sued Plaintiff: Lopez
whom, when, Defendant: Winchell's Donut House
why, and for Lopez (plaintiff) worked at Winchell’s Donut House (Winchell) (defendant). Another employee,
what? Cesario, asked Lopez to come into the store. Lopez accompanied Cesario into the store’s baking
room, where she was asked to sit down. Cesario then closed the door and locked it with a little
latch. Cesario and another employee, Bell, told Lopez that they had proof that she had failed to
ring up some sales and had instead kept the money from those sales, constituting retail theft.
Cesario and Bell did not tell Lopez she would lose her job if she did not answer their questions,
threaten to fire her, or make any kind of threats. Lopez did not fear for her safety, did not refuse
to answer any questions, was not prevented from leaving the room, and later got up and left the
room when she began to shake and feel ill. Lopez brought an action for false imprisonment. The
circuit court granted summary judgment for Winchell. Lopez appealed.

33
What -Plaintiff appeals from an order of the circuit court granting defendant corporation's motion for
happened in summary judgment.
the lower -Plaintiff contends that the trial court erred in entering summary judgment against her because
courts? a genuine issue of material fact existed concerning her charge
-was falsely detained and imprisoned against her will in a room located on defendant's premises,
with force, and without probable and reasonable cause, by defendant's employees
-the defendant used an affirmative defense--- in a reasonable manner and for a reasonable length
of time——summary judgement.
Where are we Illinois Appellate Court
now
procedurally?
What May a plaintiff recover for false imprisonment where she voluntarily consents to
question is confinement, is not threatened, does not fear for her safety, and is free to leave at
before the any time?
court?
What is the No. Moral pressure, as where the plaintiff remains with the defendant to clear himself of
court’s suspicion of theft, . .., is not enough; nor, as in the case of assault, are threats for the future. ...
answer to the Any remedy for such wrongs must lie with the more modern tort of the intentional infliction of
question mental distress.
before it?
-In the tort of false imprisonment, it is not enough for the plaintiff to have felt "compelled" to
remain in the baking room in order to protect her reputation (see Prosser, Torts, § 11);
for the evidence must establish a restraint against the plaintiff's will, as where she yields to
force, to the threat of force or the assertion of authority.
In the present case, our search of the record reveals no evidence that plaintiff yielded to
constraint of a threat, express or implied, or to physical force of any kind. Also, absent evidence
that plaintiff accompanied Cesario against her will, we cannot say that she was imprisoned or
unlawfully detained by defendant's employees.
Finally, we find no merit to plaintiff's argument that defendant's affirmative defense
constituted an admission of an unlawful restraint

[quimbee]No. False imprisonment is a common law tort, consisting of an unlawful action or

show of force that intentionally restrains someone’s personal liberty or freedom of movement.
Unlawful restraint may result from words or actions, including physical barriers,
overpowering physical force, a present threat of physical force, other duress, or asserted legal
authority. There is no false imprisonment where a plaintiff voluntarily consents to the
confinement. Moral pressure, threats about the future, or a desire to clear oneself of suspicion
of theft is not enough for a claim of false imprisonment, and such assertions are better brought
under a claim for intentional infliction of emotional distress. Here, there is no evidence that
Lopez accompanied Cesario against her will, or that she yielded to a threat or any kind of
physical force. Lopez testified that she voluntarily accompanied Cesario, remained in the
room to protect her reputation, was not threatened with losing her job, did not fear for her
safety, was not prevented from leaving the room, and did in fact get up and leave. Lopez
failed to establish a prima facie case for false imprisonment. The circuit court’s entry of

34
 summary judgment is affirmed.
What rule(s) The common law tort of false imprisonment applies where there is an unlawful action
does the or show of force that intentionally restrains someone’s personal liberty or freedom of
court apply in movement.
answering
that question?
How does the 1 define false imprisonment.
court reason 3 unlawful restraint
its way to its 4 that the confinement be against the plaintiff's will and if a person voluntarily consents to the
conclusion? confinement, there can be no false imprisonment.
5 Threats of future action
6 Cite Marcus decision, which does not support the plaintiff.
What does -Affirm the trail court’s decision.
the court do For the reasons stated above, we conclude that the trial court properly granted defendant's
and/or direct motion for summary judgment, as there exists no question of material fact in the present case.
the lower
court to do?
Who wins?

Key points in this case:

1 Discussion.
False imprisonment is the unlawful restraint of a person’s liberty or freedom to
move as they would like. Imprisonment is the unlawful exercise or show of force by
which a person is compelled to remain where she doesn’t want to stay or doesn’t want
to go. Unlawful restraint can occur by words alone or by actual force.

Lopez relied principally on Marcus, a case in which the court held that it was
reasonable for a plaintiff to believe a psychiatrist’s threat to commit the plaintiff to a
state mental hospital while the plaintiff was already confined to a private hospital’s
psychiatric ward.

The Court distinguished this case from Marcus, noting that Lopez was never
threatened, put in fear of her safety, or prevented from exiting the room. There is no
evidence that Lopez was restrained by a threat, express or implied, or constrained by
physical force.

2 Moral pressure, as where the plaintiff remains with the defendant to clear himself
of suspicion of theft, . .., is not enough; nor, as in the case of assault, are threats for
the future. ... Any remedy for such wrongs must lie with the more modern tort of the
intentional infliction of mental distress.

35
1.3.1 Tips in exam

Tips in exam:
Assume: What if she is an at will employee? And the threat of firing her happens in
the room. [no employment contract (at any time the employer can fire her)]
-In exam, if we don’t know whether the employee is at will employee or employee
with the agreement.
-Use the sentence: in alternative

1.3.2 Affirmative defense

that the confinement be against the plaintiff's will and if a person voluntarily
consents to the confinement, there can be no false imprisonment.

1.3.3 False imprisonment:

释义 1: an unlawful restraint of an individual's personal liberty or freedom of

locomotion(运动).
释义 2: any unlawful exercise or show of force by which a person is compelled to
remain where he does not wish to remain or to go where he does not wish to go.
释义 3：In order for a false imprisonment to be present, there must be actual or legal
intent to restrain.

1.3.4 Unlawful restraint:

may be affected by words alone, by acts alone or both.

actual force is unnecessary to an action in false imprisonment.

1.3.5 The Restatement of Torts specifies was in which an

action may bring about the confinement required as an
element of false imprisonment, including

(1) actual or apparent physical barriers;

(2) overpowering(制服/压倒) physical force, or by submission to physical force;
(3) threats of physical force;

36
 (4) other duress（强迫/胁迫）;
(5) asserted legal authority（宣称是法律机关）.

1.3.6 future threat/present threat??

the court extensively examined the concept that threats of a future action are not
enough to constitute confinement.
Marcus and other cases are distinguishable from the present case, either physical
restraint or present threats of such were present.
Must be a present threat.

1.3.7 Complete confinement

To make the actor liable for false imprisonment, the other's confinement within the
boundaries fixed by the actor must be complete." Restatement (Second) of Torts § 36(1).
The confinement is complete if the plaintiff, to escape, is "required to run any risk of
harm to his person or to his chattels or of subjecting himself to any substantial liability
to a third person. ..." 如果原告要逃脱，“需要冒任何伤害他的人身或他的动产的
风险，或使他自己对第三人承担任何实质性责任. ...”，则限制是完整的。

1.3.8 Confine in a city

Can you be confined in a city? No.

see in Id. cmt. a. In Shen v. Leo A. Daly Co., 222 F.3d 472 (8th Cir.2000), the
Taiwanese government refused to permit plaintiff to leave the country until defendant,
his former employer, satisfied certain obligations. The court held that confinement
within a country (island)did not amount to false imprisonment. The court observed that
although "it is difficult to define exactly how close the level of restraint must be, in this
case Taiwan is clearly too great an area within which to be falsely imprisoned."

1.3.9 False arrest by police or others

Special case of false imprisonment applies to arrests made by a police officer or other
person who was not legally entitled to do so. Whether the plaintiff can establish liability
critically depends on whether the defendant had "probable cause" for making the
arrest. The rules governing when a law enforcement officer or other person acts lawfully
in making an arrest, in the context of a survey of the historical development of the false
imprisonment tort, are discussed in D. Dobbs et al., Handbook on Torts §§ 7.17-.18, at

37
153-57 (2d ed.2016).

1.3.10 Malicious prosecution(恶意起诉) [unlawfully used]

False arrest does not apply to cases in which the defendant was legally entitled to
make the arrest because the warrant and legal forms were proper, but no basis existed
for the arrest in the first place because the prosecution was initiated without probable
cause and for improper purposes.

1.3.11 Special problem of shoplifting

Statutory response: if the owner follows the rule then he is protected

: 小偷走出去了才能 claim
The arrest of a suspected shoplifter presents special legal problems because a private
citizen is usually the arrester.
In most states, the misdemeanor of petty larceny covers theft of merchandise worth
less than $50 or $100. Thus, the shopkeeper's suspicion is usually that someone has
committed a misdemeanor. There is no time to get an officer or a warrant. At common
law, even a peace officer had no privilege to arrest for a misdemeanor committed in the
officer's presence-unless the officer had a warrant-if the misdemeanor involved no
breach of the peace.
Even states that have liberalized the common law misdemeanor arrest rules for police
officers may require that the offense have occurred in the officer's presence--an unlikely
event in shoplifting cases, unless the officer is not in uniform.
For a "citizen's arrest." Most states require that the misdemeanor have been
committed in the citizen's presence and that the person arrested be guilty.
Reasonable time/manner---reasonable grounds
As used in this section, "reasonable grounds" shall include, but not be limited to,
knowledge that a person has concealed possession of unpurchased merchandise of a
retail mercantile establishment...and a "reasonable time" shall mean the time necessary
to permit the person detained to make a statement or to refuse to make a statement, and
the time necessary to examine employees and records of the mercantile establishment
relative to the ownership of the merchandise. ...

1.4 Intentional Infliction of Emotional Distress(故意的情感伤害)

More recent: Negligent infliction of emotional distress. （later chapter）

A cause of action is established when it is shown that one, in the absence of any
privilege, intentionally subjects another to the mental suffering incident to serious
threats to his physical well-being, whether or not the threats are made under such

38
 circumstances as to constitute a technical assault. [State Rubbish Collectors Ass'n v.
Siliznoff, 240 P.2d 282 (Cal. 1952) Justice Traynor]
When mental suffering is a major element of the damages, it is anomalous to deny
recovery on the ground that no physical injury (or physical symptoms) (以没有身体伤
害为由拒绝赔偿是反常的)because the defendant’s intentional misconduct fell short
of producing some physical injury.
Serious mental suffering actually occurred. (Jury can determine). A difficult medical
question is presented when it must be determined if emotional distress resulted in
physical injury.

Womack v. Eldridge(律师的侦探骗被告以获得其照片用作恋童癖案子指证)

Supreme Court of Virginia, 1974. 215 Va. 338, 210 S.E.2d 145.
• Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and
COMPTON, JJ.
• PANSON, CHIEF JUSTICE.
Who sued Plaintiff: Danny Lee Womack
whom, when, Defendant: Rosalie Eldridge, engaged in the business of investigating cases for attorneys for
why, and for many years.
what? - Plaintiff, Danny Lee Womack, instituted this action against the defendant, Rosalie Eldridge, to
recover compensatory and punitive damages for mental shock and distress allegedly caused by
the
defendant's willful, wanton, malicious, fraudulent and deceitful acts and conduct toward him.
Eldridge (defendant) was employed by an attorney for Seifert, a man charged with
sexually molesting two boys. Eldridge, pretending to be a reporter writing an
unrelated article, convinced Womack (plaintiff) to allow Eldridge to take his picture.
Eldridge gave Womack’s photo to Seifert’s attorney, who showed it to the two boys
involved in Seifert’s case. The two boys told Seifert’s attorney that the man in the
picture, who did not resemble Seifert, was not the man who had molested(骚扰)
them. In response to questions about the photo from the state’s attorney, Eldridge
testified at a preliminary hearing, giving Womack’s name and address.
At the request of the state’s attorney, Womack was brought into court to testify
about having provided his picture. Womack testified that had not molested the
children and that he did not know anything about the charges against Seifert.
Subsequently, police officers questioned Womack several times, he was summoned
to appear as a witness at the grand jury, and was summoned to appear several times
at Siefert’s various trial dates. Womack sued Eldridge, claiming that he suffered
emotional distress as a result of Eldridge’s willful, malicious, and deceitful conduct.
The jury returned a verdict in favor of Womack. The trial court set aside the verdict,
finding that Womack could not recover for emotional distress absent physical injury.
Womack appealed.
What - the question of punitive damages was stricken by the trial court and the jury returned a verdict

39
happened in for the plaintiff in the amount of $45,000. The trial court set aside the verdict on the ground that
the lower there could be no recovery for emotional distress in the absence of "physical damage or other
courts? bodily harm. We granted plaintiff a writ of error.
-the defendant deceived the plaintiff that she wanted to take a picture of the plaintiff in order to
obtain a photograph of the plaintiff to be used as evidence in the trial of Seifert, who was charged
with sexually molesting two young boys.
- The defendant said that he had not molested any children and that he knew nothing about the
charges against Seifert.
- However, he was summoned to appear several times at Seifert's trial in the circuit court because
of continuances of the cases.
- Plaintiff testified that he suffered great shock, distress and nervousness because of defendant's
fraud and deceit and her wanton, willful and malicious conduct in obtaining his photograph and
turning it over to Seifert's attorney to be used in court. He suffered great anxiety as to what
people would think of him and feared that he would be accused of molesting the boys. He had
been unable to sleep while the matter was being investigated. While testifying in the instant case
he became emotional and incoherent. Plaintiff's wife also testified that her husband experienced
great shock and mental depression from the involvement.
Where are we Supreme Court of Virginia
now
procedurally?
What whether one who by extreme and outrageous conduct intentionally or recklessly causes severe
question is emotional distress to another is subject to liability for such emotional distress absent any bodily
before the injury.
court?
What is the Yes. Most courts have found that a plaintiff may recover for emotional distress that is not
court’s accompanied by physical injury.
answer to the The Restatement (Second) of Torts, § 46, permits a plaintiff to recover for emotional distress,
question and any physical injury that may result from it, that is intentionally or recklessly caused by the
before it? defendant. This court now finds that a plaintiff may recover for emotional distress that is not
accompanied by physical injury, provided four elements are met: (1) the defendant’s conduct is
intentional or reckless, for example, where the defendant had the purpose of inflicting emotional
harm, or where he knew or should have known his intentional conduct would result in emotional
harm; (2) the defendant’s conduct is outrageous and intolerable, and offends accepted standards
of decency; (3) the defendant’s conduct caused the plaintiff’s emotional distress; and (4) the
plaintiff’s emotional distress is severe.
Where reasonable minds may differ over whether the defendant’s conduct was extreme and
outrageous, it is a question for the jury, subject to the court’s control, of whether the conduct in
a particular case should result in liability. Here, reasonable minds could differ over whether
Eldridge’s conduct was extreme and outrageous, or whether Womack’s emotional distress was
severe, and the questions were properly presented to the jury. The evidence could support a
finding that Eldridge intentionally or recklessly obtained Womack’s photograph with the
purpose of using it in a criminal case without regard to the effect it might have on Womack. A
reasonable person would have or should have known that involving an innocent person in a child
molestation case would likely result in serious emotional distress.

40
 The trial court’s judgment is therefore reversed, and the jury verdict in favor of Womack is
reinstated.
What rule(s) 见下方
does the
A cause of action will lie for emotional distress, unaccompanied by physical injury,
court apply in
provided the following elements are shown:
answering
that question?
1. The wrongdoer’s conduct was intentional or reckless
2. The conduct was outrageous and intolerable to the generally accepted
standards of decency and morality
3. There was a causal connection between the wrongdoer’s conduct and the
emotional distress
4. The emotional distress was severe.

A plaintiff may recover for emotional distress, and physical injury that results from
it, that is intentionally or recklessly caused by the defendant.

How does the - Restatement (Second) of Torts, section 46 at 71 can be used in this case. where the actor knows
court reason that distress is certain, or substantially certain, to result from his conduct.
its way to its -4 elements
conclusion? -court’s and jury’s job

What does For the reasons stated, the judgment of the court below is reversed, the jury verdict reinstated,
the court do and final judgment hereby entered for the plaintiff.
and/or direct
the lower
court to do?
Who wins?

Key points in this case:

1. Maybe the plaintiff is an agent of the attorney
Vicarious liability may exist.
2. Suppose the evidence indicated that defendant had been hired without knowledge
of the use to which the photograph would be put. Would the Restatement standard of
liability, as interpreted by the court, be satisfied?
No, because there is no outrageous. Not be liable.
3.Suppose, instead, defendant knew that it was to be used for purposes of
identification in a criminal case--but nothing more.
Yes, Sufficient outrageous.
4.Suppose she knew that the photo was to be used to incriminate(表明..有罪)
plaintiff in a case in which he had no involvement--but she took the picture on the
street. Would plaintiff have had a colorable claim?
Can’t be outrageous. Because no privacy exists on the street.
5. cross-error

41
 n.交叉错误 在以纠错令〔writ of error〕复审案件的程序中，纠错令的答辩人
〔respondent〕提出的原审中的错误。对双方当事人都陈述的错误可称为 cross-
errors。
6. colorable claim
(1)虚假主张 表面上正当且理由充分但实际上无效的主张。
(2)虚假(财产)索取 在破产法中，指向破产者的受托人恶意地提出无法律根据
的财产要求；或指向持有破产者财产的受托人或其他保管人提出的要求，而实
际上并无可以合法主张的权利。
7. The extra sensitive plaintiff
Eggshell rule
8. Sexual harassment in the workplace
A list of factors to assist in determining the merit of a workplace claim of
"outrageous conduct" subject to tort liability:
1) abuse of power,
2) repeated incidents/pattern of harassment,
3) unwelcome touching/offensive non-negligible physical contact, and
4) retaliation(报复) for refusing or reporting sexually motivated advances.

1.4.1 Rule of law in Intentional Infliction of Emotional Distress

1. The Restatement (Second) of Torts, section 46 at 71, provides: "(1) One who by
extreme and outrageous conduct intentionally or recklessly causes severe emotional
distress to another is subject to liability for such emotional distress, and if bodily harm
to the other results from it, for such bodily harm.
In comment (i) to the Restatement it is expressly stated that this rule also covers a
situation where the actor knows that distress is certain, or substantially certain, to result
from his conduct. (Act was intentional and the wrongdoer desired the emotional distress
or knew or should have known that it would likely result.)

2. We adopt the view that a cause of action will lie for emotional distress,
unaccompanied by physical injury, provided four elements are shown:
(1) One, the wrongdoer's conduct was intentional or reckless.
This element is satisfied where the wrongdoer had the specific purpose of inflicting
emotional distress or where he intended his specific conduct and knew or should have
known that emotional distress would likely result.
(2) Two, the conduct was outrageous(可耻的/骇人的) and intolerable(无法容忍的)
in that it offends against the generally accepted standards of decency(礼仪/行为准则)
and morality(道德规范).
This requirement is aimed at limiting frivolous(轻浮的) suits and avoiding litigation
in situations where only bad manners and mere hurt feelings are involved.
(3) Three, there was a causal connection between the wrongdoer's conduct and the
42
emotional distress.
(4) Four, the emotional distress was severe.

3. Extreme and outrageous

Restatement (Second) of Torts, supra, at 77:
“It is for the court to determine, in the first instance, whether the defendant's conduct
may reasonably be regarded as so extreme and outrageous as to permit recovery, or
whether it is necessarily so.
Where reasonable men may differ, it is for the jury, subject to the control of the court,
to determine whether, in the particular case, the conduct has been sufficiently extreme
and outrageous to result in liability. In the case at bar, reasonable men may disagree as
to whether defendant's conduct was extreme and outrageous and whether plaintiff's
emotional distress was severe. Thus, the questions presented were for a jury to
determine.”
Disputes about "extreme and outrageous" standard:
Intentional Infliction of Emotional Distress by Outrageous Conduct, 82 Colum.
L.Rev. 42, 42-43 (1982), in arguing:
[IIED] differs from traditional intentional torts in an important respect: it provides
no clear definition of the prohibited conduct."…Assault, battery, and false
imprisonment "describe specific forms of behavior,"
but the term "Outrageous" "does not objectively describe an act or series of acts;
rather, it represents an evaluation of behavior. The concept thus fails to provide clear
guidance either to those whose conduct it purports to regulate, or to those who must
evaluate that conduct."
[See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 46
cmt. g]: “courts play a more substantial screening role on the question of extreme and
outrageous conduct than they usually do, as a balance to the open-ended nature of this
claim and the wide range of behavior to which it might plausibly apply".

1.4.2 The "extreme and outrageous" standard

the case is one in which the recitation of the facts to an average member of the
community would arouse his resentment against the actor, and lead him to exclaim,
'Outrageous!'
the sufficient guidance for the standard: Whether an actor's conduct is extreme and
outrageous depends on the facts of each case,
including the relationship of the parties, whether the actor abused a position of
authority over the other person, whether the other person was especially vulnerable,
and the actor knew of the vulnerability, the motivation of the actor, and whether the
conduct was repeated or prolonged.
Ordinary insults and indignities are not enough for liability to be imposed, even if
the actor desires to cause emotional harm.

43
 1.4.3 Constitutional defense

The fine line between outrageous conduct and free expression has given rise to serious
First Amendment concerns, which are addressed in the next case. In reading the case it
is important to know that in New York Times Co. v. Sullivan, 376 U.S. 254 (1964). the
Court held that in libel cases, public officials (later expanded to include public figures)
who sue for false statements that harm their reputations must prove that the defendant
made the statement knowing that it was false, or recklessly uttered it without caring
whether it was true or false.

Hustler Magazine v. Falwell(公众人物被杂志社恶搞)

Supreme Court of the United States, 1988.

485 U.S. 46. 108 S.Ct. 876. 99 L. Ed.2d 41.
• CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Who sued Plaintiff: Respondent Jerry Falwell, a nationally known minister who has been active as a
whom, when, commentator on politics and public affairs, sued petitioner and its publisher, petitioner Larry Flynt.
why, and for Defendant:
what? Petitioner Hustler Magazine, Inc., is a magazine of nationwide circulation.
Brief Fact Summary.
After Hustler Magazine and Larry Flynt (Petitioners) published an advertisement,
depicting Jerry Falwell (Respondent) as having his “first time” in an outhouse with his
month, the reverend brought suit based on invasion of privacy, libel and intentional
infliction of emotional distress.

The November 1983 issue of Hustler Magazine featured a parody of an advertisement for
Campari Liqueur that had the name and picture of Respondent, and was entitled “Jerry
Falwell talks about his first time.” The parody was designed to mimic other Campari ads,
which pointed to the idea of the “first time” someone tasted Campari Liqueur. The parody
depicted Respondent’s first time as a drunken, incestuous encounter with his mother in
an outhouse. Respondent brought suit against Petitioners, alleging invasion of privacy,
libel and intentional infliction of emotional distress. The district court and the United
States Court of Appeals for the Fourth Circuit found for Petitioner on the defamation and
invasion of privacy claims, on the basis that no reasonable person would consider the
parody as true. The same courts held for Respondent on the issue of intentional infliction
of emotional distress. The Supreme Court of the United States granted certiorari.

What Soon after the November issue of Hustler became available to the public, respondent brought this
happened in diversity action in the United States District Court for the Western District of Virginia against

44
the lower Hustler Magazine, Inc., Larry C. Flynt, and Flynt Distributing Co. Respondent stated in his
courts? complaint that publication of the ad parody in Hustler entitled him to recover damages for libel,
invasion of privacy, and intentional infliction of emotional distress. The case proceeded to trial.
At the close of the evidence, the District Court granted a directed verdict for petitioners on the
invasion of privacy claim. The jury then found against respondent on the libel claim, specifically
finding that the ad parody could not "reasonably be understood as describing actual facts about
[respondent] or actual events in which The participated." 1 1 The jury ruled for respondent on the
intentional infliction of emotional distress claim, however, and stated that he should be awarded
$100,000 in compensatory damages, as well as $50,000 each in punitive damages from petitioners
[Hustler Magazine and Flynt]. Petitioners' motion for judgment notwithstanding the verdict was
denied.
Where are we Supreme Court of the United States
now
procedurally?
What May a public figure recover damages for intentional infliction of emotional distress due
question is to publication of a parody or satire without showing that the publication contained a
before the false statement of fact made with actual malice?
court?
What is the No. One of the rights of American citizenship is the right to criticize public figures, which
court’s means that public officials and public figures may sometimes be subject to “vehement
answer to the
（强烈的）, caustic（尖刻的）, and sometimes unpleasantly sharp attacks.” Many states
question
before it? permit civil liability for the tort of intentional infliction of emotional distress when the
conduct in question is sufficiently outrageous. However, in matters relating to public
officials and public figures, the First Amendment prohibits assigning liability for
intentional infliction of emotional distress due to publication of a caricature or parody
without a showing that the publication contained a false statement of fact made with
actual malice, i.e., with knowledge that the statement was false or with reckless
disregard to its truth or falsehood.
Holding otherwise would unnecessarily assign damages awards to political
cartoonists and satirists for caricatures that inevitably play up negative features of their
subjects. Thus, Falwell cannot recover damages for the tort of intentional infliction of
emotional distress without an additional showing that the publication contained a false
statement of fact made with actual malice. Falwell is a public figure. The lower court
found that the article in question was a parody and not believable, so it did not
constitute a false statement of fact and was thus not made with actual malice. Falwell’s
argument that the parody should nevertheless be punishable because it is sufficiently
outrageous is likewise rejected. It is nearly impossible to articulate a standard that
separates outrageous caricatures from others in the field of public discourse. The
decision of the court of appeals is reversed.

What rule(s) 见下方

does the When an advertisement parodying a public figure depicts facts which no reasonable
court apply in person could take as true, that figure cannot prevail under a theory of emotional distress.

45
answering Public officials and public figures may not recover damages for intentional infliction of
that question?
emotional distress due to publication of a parody（滑稽模仿作品） or satire without
showing that the publication contained a false statement of fact made with actual
malice.
How does the -First Amendment
court reason -One of the prerogatives of American citizenship is the right to criticize public men and measures."
its way to its Such criticism, inevitably, will not always be reasoned or moderate; public figures as well as public
conclusion? officials will be subject to "vehement, caustic, and sometimes unpleasantly sharp attacks,"
-dose not mean that any speech about a public figure is immune from sanction in the form of
damages.
What does The judgment of the Court of Appeals is accordingly Reversed
the court do
and/or direct
the lower
court to do?
Who wins?

Key points in this case:

1.Discussion.
The important rule to understand here is how the court’s decision turned on
Respondent’s status. If Respondent had been a private individual, arguably,
his right of privacy would have allowed him to recover for emotional distress.
Because Respondent was a public figure, he could not prevail in defamation,
nor could he claim emotional distress.

2. Fact vs. opinion

Some will not think the ad is a fact and will not believe it is true.

3. Should outweigh the protection for the public figure than the robust political
debate?
Once open the law for the lawsuit, it succeeds. Then the standard may be lower
and lower.
Slippery slope: standard will be lower and lower.

4. Why the standard for public and private figure different?

Different way to weigh the robust discussion and the protection of figures
themselves.
For: Public figures and public officials, the robust political/social discussion/speech
overweighs
For: private figure, the protection overweighs.

46
1.4.4 First Amendment

is the recognition of the fundamental importance of the free flow of ideas and
opinions on matters of public interest and concern. "The freedom to speak one’s mind
is not only an aspect of individual liberty--and thus a good unto itself---but also is
essential to the common quest for truth and the vitality of society as a whole."

One of the prerogatives(特权) of American citizenship is the right to criticize public

men and measures. “Such criticism, inevitably, will not always be reasoned or moderate;
public figures as well as public officials will be subject to "vehement, caustic, and
sometimes unpleasantly sharp attacks,"
Dose not mean that any speech about a public figure is immune from sanction in the
form of damages.
First amendment allows robust discussion，Not only for political figures, but also
LGBT, gender…figures.

1.4.5 New York Times Standards

[New York Times Standards means New York Times Co. v. Sullivan. Standard]
we have consistently ruled that a public figure may hold a speaker liable for the
damage to reputation caused by publication of a defamatory falsehood(诽谤性谎言),
but only if the statement was made
"1 with knowledge that it was false or
2 with reckless disregard of whether it was false or not.
- Public figures and public officials may not recover for the tort of intentional infliction
of emotional distress by reason of publications such as the one here at issue without
showing in addition that the publication contains a false statement of fact which was
made with "actual malice," ------1 with knowledge that the statement was false(明知陈
述是虚假的)or 2 with reckless disregard as to whether or not it was true.(罔顾事实真
相)

1.4.6 Breathing space

A rule that would impose strict liability on a publisher for false factual assertions
would have an undoubted "chilling" effect on speech relating to public figures that does
have constitutional value. "Freedoms of expression require breathing space.” This
breathing space is provided by a constitutional rule that allows public figures to recover
for libel(诽谤) or defamation(污蔑) only when they can prove both that the statement
was false and that the statement was made with the (必须物) level of culpability(malice

47
 恶意)(有罪；应受惩处(性)；应受谴责(性)；有责(性) 除法定的严格责任的刑事案件外，行为人应受刑事
惩罚还必须具备法律可能要求的蓄意、明知、放任或过失等主观上的犯罪构成要素).

1.4.7 Limitation obscenity(下流话)

- The Court mentions a number of situations where expression is sometimes subject to

limitation obscenity; "fighting words"; vulgar, offensive, shocking material. Is the
depiction here distinguishable?
Admittedly, these oft-repeated First Amendment principles, like other principles, are
subject to limitations. We recognized in [FCC v. Pacifica Foundation, 438 U.S. 726
(1978)] that speech that is " vulgar, 'offensive.' and 'shocking'" is "not entitled to
absolute constitutional protection under all circumstances."
In Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), we held that a state could
lawfully punish an individual for the use of insulting " ‘fighting' words- those which by
their very utterance inflict injury or tend to incite an immediate breach of the peace
(immediate violence)."
These limitations are but recognition of the observation in [Dun & Bradstreet, Inc. v.
Greenmoss Builders, 472 U.S. 749 (1985)1 that this Court has "long recognized that
not all speech is of equal First Amendment importance." But the sort of expression
involved in this case does not seem to us to be governed by any exception to the general
First Amendment principles stated above.

1.5 Intentional Interference with Family Relationships

-"alienation of affections" applies to behavior that enables outsiders, through any

means, to drive a wedge(挤入) between family member.

1.6 Trespass to Land

Martin v. Reynolds Metals Co.(化学物质造成土地伤害)

Supreme Court of Oregon, 1959. 221 Or. 86, 342 P.2d 790.
• Before MCALLISTER, C.J., and LUSK, WARNER, PERRY, SLOAN, O'CONNELL and
MILLARD, JJ.
• O'CONNELL, J.
Who sued Plaintiff: Martin
whom, when, Defendant: Reynolds Metals Co

48
why, and for The Martins (plaintiffs) sued for damages to their land, caused by invisible fluoride
what? compounds that settled on the land from a nearby aluminum reduction plant run by
Reynolds Metal Co. (defendant). The trial court awarded damages for a four-and-
a-half year period, permissible under a trespass claim’s six-year statute of
limitations, in contrast to the two years of damages that would have been permitted
under a nuisance claim’s two-year statute of limitations. Reynolds appealed on the
issue of trespass.
What The judge also awarded $20.000 for the deterioration of the land through growth of brush and
happened in weeds resulting from the lack of grazing. The judge rejected punitive damages. The damages
the lower covered the period from August 1951 through the end of 1955. If the action were properly
courts? brought in trespass, with its six-year statute of limitations, the award was permissible. But if
the action were one of nuisance, then damages were recoverable for only 1954 and 1955,
because of the two-year statute of limitations.
What Is the settling of invisible particles on a possessor’s land a sufficiently direct
question is invasion of his interest in the exclusive possession of his land to support an action
before the for trespass?
court?
What is the Yes. The settling of invisible fluoride compounds on a possessor’s land is a sufficiently direct
court’s invasion to support a trespass claim.
answer to the Trespass is an action for a direct, and not merely consequential, invasion of a person’s
question interest in the exclusive possession of his or her land.
before it? Nuisance, in contrast, is an action for an invasion of a person’s use and enjoyment of his or
her land. Actual damage is not necessary to support a trespass claim.
The interest to be protected under the law of trespass is a possessor’s dignitary interest, or
the feeling that what he possesses should not be interfered with and should be protected under
the law.
Such an interest might be violated by a direct intrusion of single particle or a ray of light
onto the possessor’s land. Given the advances of science into molecules and atomic particles,
the size of the physical intrusion does not determine whether the intrusion is direct. Liability
under trespass has been found where harm resulted from the vibration of soil or of air
molecules. The settling of invisible fluoride compounds on the Martins’ land is a sufficiently
direct invasion to support a trespass claim.
The trial court’s judgment is affirmed.
What rule(s)
Trespass is any intrusion which invades the possessor’s protected interest in
does the
exclusive possession, whether that intrusion is by visible or invisible pieces of
court apply in
matter or by energy which can be measured only by the mathematical language of
answering
the physicist.
that question?
How does the The defendant contends that trespass will not lie in this case because the injury was indirect
court reason and consequential and that the requirement that the injury must be direct and immediate to
its way to its constitute a trespass was not met. We have held that the deposit of the particulates upon the
conclusion? plaintiffs land was an intrusion within the definition of trespass. That intrusion was direct. The
damages which flowed from it are consequential, but it is well established that such
consequential damage may be proven in an action of trespass. [1 The distinction between direct

49
 and indirect invasions where there has been a physical intrusion upon the plaintiff's land has
been abandoned by some courts. [1 Since the invasion in the instant case was direct it is not
necessary for us to decide whether the distinction is recognized in this state.
Since we hold that the intrusion in this case constituted a trespass it is immaterial whether
the defendant's conduct was careless, wanton and willful or entirely free from fault. Therefore,
the refusal to enter the requested finding is not error.

Key points in this case:

1. Hard cases cause bad law.
2. Statute of limitations(诉讼时效)
本案为了让 matin 获得救济 虽然符合 nuisance (most court would treat it a
nuisance, and not as a trespass)，它们有不同的诉讼时效 只能 trespass
因此被 criticize.
3. The court defines trespass as any intrusion which invades the possessor's protected
interest in exclusive possession, whether that intrusion is by visible or invisible pieces
of matter or by energy which can be measured only by the mathematical language of
the physicist.
The interest protected under trespass is the dignitary…?

Therefore, relief was granted to the plaintiff where he was not actually damaged,
partly at least as a means of discouraging disruptive influences in the community.
Winfield on Torts (4th ed.) p. 305 expresses the idea as follows:
The law, on the face of it, looks harsh, but trespass was so likely in earlier times to
lead to a breach of the peace that even unwitting and trivial deviations on to another
person's land were reckoned unlawful. At the present day there is, of course, much
greater respect for the law in general and appreciation of the security which it affords,
and the theoretical severity of the rules as to land trespass is hardly ever exploited in
practice.
Actual damage is not an essential ingredient in the law of trespass.

1.6.1 Torts involving property（那一堆全在这！！）

1. TRESPASS TO LAND
Intentional unpermitted entry onto land is a trespass even if it’s transferred intent or
“substantial certainty.”
Mistake is no defense – you’re liable even if you reasonably believe it’s your land.
(Close to strict liability: even though no fault, but still be liable)
Even if there is no actual harm, nominal and punitive damages are still recoverable.
(Nominal damage: allow the court to provide other damages or injunction. If break the
injunction, then the court may collect fine or the claim of contempt of court and put
into the jail.)

50
 2. NUISANCE
Intentional
Non-trespassory
Substantial and Unreasonable
Interference with
Use and Enjoyment of Property

3. CONVERSION(转移) OF CHATTELS
Chattels are tangible personal property -- vs. “real property” (land).
Intent to exercise dominion is required. （Intent to exercise of someone else’s
property）
Anything that demonstrates “exercise of dominion” is sufficient – e.g., taking, using
substantially, altering, destroying, selling or buying.
Buyer 善意第三人 also may be liable for conversion of chattels. Because 被偷的人
是最innocent的。
善意第三人have the legal rights of the money given instead of the property rights
(because the property is someone else’s)
Ø Factors determining “Dominion”
1. The extent and duration of D’s dominion or control;
区别 trespass to chattel: 拿走用了几天又换回来
2. D’s intent to assert a right in the chattel that is inconsistent with P’s
ownership;
3. D’s good faith;
4. The amount of actual interference with P’s right to use the chattel;
5. Any harm done to the chattel; and
6. The inconvenience or expense caused.
Traditionally, only tangible personal property could be converted.
Modern trend is to liberalize; e.g. currency货币以前没有视作tangible property
（以前仅仅被视作表明金银价值的表征物品） and data files.
Taking the funds and losing them to gambling is conversion under the modern view
regarding cash.：货币也可以作为conversion的对象。
Remedies:
either damages for the full value of the chattel at the time of conversion or
actual recovery（如果物品还在的话） of the chattel (replevin).
There can be “serial” converters e.g., one buying from the other – in which case
each is liable.
A BFP（善意第三人 Bona Fide Purchaser） from a thief does not obtain good
title: he is a converter（still liable）. BUT if A obtains good title from Owner by
fraud, and A then sells to a BFP, the BFP obtains good title and is not a converter. A
is a converter for having obtained title by fraud.
The UCC has special rules for entrusting goods to merchants who deal in such
goods. Entruster takes risk that merchant will sell goods as his own and the BFP from
the merchant obtains good title.
4. TRESPASS TO CHATTELS

51
 A trespass to chattels may occur when D’s conduct falls short of a conversion.
However, there can be a recovery for this tort only if there is either dispossession or
actual damages. E.g. 拿走用了几天又还回来。actual damage会被计算——用的这
几天的钱
Damages are not for the value of the chattel, but only for actual damage or
dispossession.

1.6.1 Distinguish trespass and nuisance:

Important to understand: the different between two different real property torts related
to lands:
Distinguish trespass and nuisance:
They are separate fields of tort liability relating to actionable interference with the
possession of land. They may be distinguished by comparing the interest invaded:
1 an actionable invasion of a possessor's interest in the exclusive possession of land
is a trespass.
2 an actionable invasion of a possessor's interest in the use and enjoyment of his land
is a nuisance.
Trespass Nuisance
Intentional Intentional
Invasion Non-trespassory (no invasion?)
Damages Substantial
-Dignitary damages (nominal
damages)
In law, only money damages.
Unreasonable
Interference with
Use and enjoyment
e.g. happens a lot related to the joint property.
A: open laundry
B: open charcoal(木炭) factory
And B sues A
Interest: dignity -Balancing test (more complexed than Trespass,
trespass is simpler. Nuisance cares more about the
economic and social reasons. In order to balance.
There’s also a chapter in the book about the
nuisance)
What is the most just and most economical way
for A and B
Statute of limitations is 6y Statute of limitations is 2y
Damage & injunction Sometimes only damages and no injunction
(because sometimes the economic value is higher,

52
 so no injunction)

1.6.2 Nominal damages

Because the gist of the action for trespass to land is considered to be the intrusion or
"breaking of the close," nominal damages (typically $1) can be recovered even if no
demonstrable harm could be shown.
Equitable relief. 衡平法救济 E.g. injunction

1.6.3 Culpability, intent and Privilege

n.有罪；应受惩处(性)；应受谴责(性)；有责(性) 除法定的严格责任的刑事案
件外，行为人应受刑事惩罚还必须具备法律可能要求的蓄意、明知、放任或过失
等主观上的犯罪构成要素。
To establish a trespass, the plaintiff must show that defendant intentionally entered
onto the land, or committed the equivalent of an entry, without the owner's permission.
Baugh v. CBS, Inc., 828 F.Supp. 745, 756 (N.D. Cal. 1993):"Trespass is a strict liability
tort in the sense that the defendant's motivation or good faith belief is irrelevant.".
Although liability for trespass does not depend on culpable behavior or the specific
intent to injure the landowner's interest in exclusive possession, the strictness of this
tort is mitigated(缓和) to some extent through a series of privileges that shield from
liability activity that would otherwise constitute a trespass.
These privileges may arise out of the 1 consent of the possessor (Restatement
(Second) sections 167-175), or 2 may be afforded as a matter of law because of the
purposes for which the actor enters the premises (sections 176-211). The scope of these
privileges, however, is in general quite narrow and limited to specific types of situations.
Thus, despite the increased flexibility these privileges afford to defendants, no
overarching principle of reasonableness has developed in the area of intentional, as
compared to unintentional, trespasses.
Privilege of public necessity: e.g. 消防员灭火进入你的地盘。灭火保障公共安全
Privilege of private necessity: no nominal damages. But if I damage the gate, then have
to compensate.

1.6.4 Intangible invasions and claims for nuisance

A tangible entry onto the land would clearly harm the plaintiff's interest in exclusive
possession, explaining why the common law first adopted this requirement. An
intangible entry would not ordinarily cause dispossession of the land, but only affect
the plaintiff's ability to use or enjoy the land- the interest protected by the tort of
nuisance. Because Martin involved an intangible invasion, the issue was not whether

53
 plaintiff had a viable cause of action but whether a claim for trespass could be
maintained in addition to a claim for private nuisance.
Yet a third difference is that an intentional invasion of land is subject to nuisance
liability only if it is "unreasonable," which requires the plaintiff to prove either that
"(a) the gravity of the harm outweighs the utility of the actor's conduct, or (b) the harm
caused by the conduct is serious and the financial burden of compensating for this and
similar harm to others would not make the continuation of the conduct not feasible.

-Intangible invasions and the requirement of actual harm

In order to maintain the difference between trespass and nuisance claims in cases
involving intangible invasions, some courts have required proof of actual harm.

1.7 Conversion(侵占) of Chattels and Trespass to

Chattels(私人财产)P947-959

Conversion and trespass to chattels are both concerned with protection of ownership
rights in personal property.

Thyroff v. Nationwide Mutual Insurance Co. (at will 员工被解雇，电脑里个

人信息和顾客信息全部无法追回)

Court of Appeals of New York, 2007.

8 N.Y.3d 283, 864 N. E.2d 1272.
• GRAFFEO, J.
Who sued Plaintiff: Plaintiff Louis Thyroff was an insurance agent for defendant Nationwide Mutual
whom, when, Insurance Company.
why, and for Defendant: Nationwide Mutual Insurance Company
what? Thyroff was unable to retrieve his customer information and other personal information that was
stored on the computers.
Thyroff’s Agent Agreement with Nationwide permitted Thyroff to lease computer
hardware and software for data collection at Nationwide (the “AOA system”). Thyroff
used the AOA system for both business and personal purposes. Nationwide
automatically uploaded all of the information from Thyroff’s AOA system (business and
personal) to its centralized computers on a daily basis.

54
 When Thyroff was terminated, Nationwide repossessed the AOA system and blocked
Thyroff from retrieving his business and personal information from the AOA system.
Thyroff sued Nationwide for a claim of conversion of his business and personal
information stored on the AOA system.

What Thyroff initiated an action against Nationwide in the United States District Court for the
happened in Western District of New York, asserting several causes of action, including a claim for the
the lower conversion of his business and personal information stored on the computer hard drives. In
courts? response to Nationwide's motion to dismiss, District Court held that the complaint failed to state
a cause of action for conversion.
In his appeal to the United States Court of Appeals for the Second Circuit, Thyroff sought
reinstatement of his conversion cause of action, along with other relief. Nationwide countered
that a conversion claim cannot be based on the misappropriation of electronic records and data
because New York does not recognize a cause of action for the conversion of intangible property.
The Second Circuit determined that the issue was unresolved in New York and therefore certified
the following question of law to this Court: is a claim for the conversion of electronic data
cognizable under New York law?
Where are we Court of Appeals of New York
now
procedurally?
What Whether intangible property interests could be converted?
question is May a plaintiff bring a cause of action for conversion if the defendant intentionally
before the asserts dominion over the plaintiff’s intangible electronic computer data?
court?
What is the Yes. A plaintiff may bring a claim for conversion if the defendant intentionally asserts
court’s dominion over the plaintiff’s property, regardless of whether the property is tangible
answer to the or intangible.
question As defined by the Restatement (Second) of Torts, § 222A, conversion is an
before it? intentional act of dominion or control over property that interferes with another
person’s right to control it to a degree that justifies requiring the actor to pay for the
full value of the property.
Traditionally, conversion did not apply to intangible property, because there was
no physical item that had been misappropriated to the exclusion of the owner’s
rights. However, some courts have found no good reason for this distinction, and
have recognized that an intangible property right can be merged or united with a
tangible object.
This court has previously applied the merger doctrine to permit causes of action
for conversion if, for example, an intangible property right to shares of stock is
infringed by misappropriation of the physical stock certificates themselves. Some
courts have permitted a cause of action for conversion involving solely intangible
property, based on findings that theft of intangible property is a crime that should
have a civil remedy, that intangible data can be made into tangible property by the
mere act of printing, that a writing is a document whether read on a computer screen

55
 or on a piece of paper, and that the expense of creating such intangible
computerized property needs the protection of a civil action.
This court’s previous adoption of the merger doctrine was based on society’s
growing dependence on intangible property. Society’s reliance today on computers
and intangible electronic data is substantial, and there is no reason to treat such data
differently from tangible printed data. A computerized document has the same value
as a printed document. The information stored in Thyroff’s computers is valuable to
him regardless of whether it was stored in a tangible or intangible format. This court
therefore holds that the intangible electronic data and records repossessed
by Nationwide are subject to a claim for conversion.
What rule(s)
does the Under New York law, a plaintiff may bring a claim of conversion for electronic data.
court apply in A plaintiff may bring a claim for conversion if the defendant intentionally asserts
answering dominion over the plaintiff’s property, to the exclusion of the plaintiff’s rights.
that question?
How does the 1 ancient doctrine
court reason Protect the ownership rights in personal property. These torts similarly to the way in which
its way to its trespass on the case emerged from trespass vi et armis.
conclusion? Trover
2 traditionally, the general rule was that "an action for conversion will not normally lie, when it
involves intangible property" because there is no physical item that can be misappropriated
This, in turn, led to the recognition that an intangible property right can be united with a
tangible object for conversion purposes (see Agar vi Orda, 264 N.Y. 248, 251, 190 N.E. 479
[1934]; [ ]).
Merger test
3 On the other hand, the primary argument for retaining the traditional boundaries of the tort is
that it "seems] preferable to fashion other remedies, such as unfair competition, to protect people
from having intangible values used and appropriated in unfair ways
4 reevaluating the appropriate application of conversion.

What does In light of these considerations, we believe that the tort of conversion must keep pace with the
the court do contemporary realities of widespread computer use. We therefore answer the certified question
and/or direct in the affirmative and hold that the type of data that Nationwide allegedly took possession of-
the lower electronic records that were stored on a computer and were indistinguishable from printed
court to do? documents- is subject to a claim of conversion in New York. Because this is the only type of
Who wins? intangible property at issue in this case, we do not consider whether any of the myriad other
forms of virtual information should be protected by the tort. Accordingly, the certified question
should be answered in the affirmative.

Key points in this case:

1. Interference with computer system
Likely to claim trespass to chattels. (spammer)
2.D, who fails to see a stop sign, crashes into P's car, damaging it so severely that it

56
 is totaled. IIs D liable for conversion? Recall that conversion is an intentional tort;
even though the intent element does not require an intent to do harm, it does, like
trespass, require an intent to intrude or interfere with the property. D, in this
situation, may be liable for negligence, but is not liable for conversion or, if the
damages were less severe, for trespass to chattels. The larger point here is that even
if conversion and trespass to chattels do not afford a remedy when there is
interference with personal property, other torts may be available.
The intent element does not require an intent to do harm, it does, like trespass,
require an intent to intrude or interfere with the property.

1.7.1 Procedural issue

(Related to the Diversity jurisdiction)

Why the federal court send this case to the court of appeals of New York? (even though
The federal court will apply the law of New York)
There is no precedent in the federal court.
The Second Circuit determined that the issue was unresolved in New York and
therefore certified the following question of law to this Court: is a claim for the
conversion of electronic data cognizable under New York law?

1.7.2 Rule of law in conversion of chattels (“Merger” doctrine)

-The Restatement (Second) of Torts now defines conversion as an intentional act of

"dominion or control over a chattel which so seriously interferes with the right of
another to control it that the actor may justly be required to pay the other the full value
of the chattel”
-This, in turn, led to the recognition that an intangible property right can be united(联
合) with a tangible object for conversion purposes (see Agar vi Orda, 264 N.Y. 248,
251, 190 N.E. 479 [1934]; [ ]). In Agar, which involved the conversion of intangible
shares of stock, this Court applied the so-called "merger" doctrine because:
"For practical purposes [the shares] are merged in stock certificates which are
instrumentalities of trade and commerce. ... Such certificates 'are treated by
businessmen as property for all practical purposes.' ... Indeed, this court has held that
the shares of stock are so completely merged in the certificate that conversion of the
certificate may be treated as a conversion of the shares of stock represented by the
certificate"
-The merger rule reflected the concept that intangible property interests could be
converted only by exercising dominion over the paper document that represented that
interest.
-Restatement (Second) of Torts section 242 addresses conversion of intangible property.
Subsection 1 provides for liability when the intangible right is merged in a tangible

57
document. Subsection 2 provides:
(2) One who effectively prevents the exercise of intangible rights of the kind
customarily merged in a document is subject to a liability similar to that for conversion,
even though the document is not itself converted. 有效地阻止通常合并在单据中的
无形权利行使的人，即使单据本身没有被转换，也要承担与转换类似的责任。
Would Thyroff have been able to maintain his conversion claim under subsection 2?
-Yes. Are customarily merged in a document.
E.g. 保险单

1.7.3 The difference ( 见 前 页 ) between conversion and trespass to

chattels.

Critical to Thyroff's conversion claim was that Nationwide had exercised

dominion(支配) over Thyroff's files to his exclusion.
The difference between conversion and trespass to chattels.
(1) Different remedy:
-Conversion entitled the victim to recover the full value of the goods taken the
idea of a forced sale, adopted by section 222A of the Restatement.
-The remedy for trespass to chattels is the actual damage caused by the
interference or harm to the property.
(2) Dominion
The Restatement states the standard for sufficient dominion for conversion, as
opposed to trespass to chattels, as whether it is severe enough that it is reasonable to
require the defendant to pay the full value of the property to the plaintiff. Restatement
(Second) of Torts § 222A(1). Lesser interferences may be subject to a trespass to
chattels claim.

1.8 Defenses and Privileges

We have seen that defenses play important roles in negligence and strict liability. So,
too, with intentional torts.

1.8.1 Consent

The plaintiff's consent to an intentional invasion of a legally protected interest

ordinarily bars recovery.

58
Hart v. Geysel (拳击手在非法拳击比赛打死对手)

Supreme Court of Washington, 1930. 159

Wash. 632, 294 P. 570.
• MAIN, J.
Who sued whom, -Plaintiff: This action was brought by the administrator of the estate of Hamilton I.
when, why, and for Cartwright, deceased, who died as the result of a blow received in a prize fight.
what? -Defendant: Geysel
The complaint contained no allegations that the mutual combat was undertaken in anger,
that there was malicious intent to seriously injure, or that there was excessive force.
Brief Fact Summary.
Defendant was involved in an illegal prizefight with Cartwright, the administrator
of whose estate was Plaintiff. Cartwright died as a result of injuries he sustained
in the fight. There was no willful or malicious intent shown on the part of
Defendant, and both participants were willingly involved in the prizefight.
Plaintiff brought an action to recover for decedent Cartwright’s death at the hands
of Defendant in an illegal prizefight. There is no evidence that Defendant intended
to kill or severely injure Cartwright and both entered the fight willingly. The action
was dismissed on the pleadings, and Plaintiff appealed.
What happened in The trial court granted defendant's demurrer to the complaint.
the lower courts? The adjudicated cases, as well as the text-writers, are in conflict. One line supports what
is known as the majority rule, and the other, the minority. The majority rule has been stated
as follows:
What question is May a plaintiff who expressly consents to and engages in illegal prize fighting
before the court? recover for damages sustained as a result of the combat?
What is the court’s No.
answer to the The majority rule is that parties engaging in illegal fighting are each liable to
question before it? the other for physical injuries sustained in the fight, and that consent to combat
is not a defense in an action to recover damages for those injuries.
The minority rule holds that parties who engage in such fighting are acting
unlawfully and will be denied relief in a civil action, unless there is a showing of
excessive force or malicious intent to cause serious injury.
This court holds that a person who expressly consents to and engages in
illegal prize fighting may not recover damages for injuries sustained as a result
of the fight.
The Restatement of Torts also prefers the minority rule, finding the majority
rule to be contrary to two general principles: that a person who expresses his
willingness to suffer an invasion to his person may not complain when another
person acts on that consent; and that a man may not profit from his own
wrongdoing. If a plaintiff consents to being struck by another in a fight, his right

59
 to determine who may touch his person, and how, has not been invaded.
Further, since a person who is not engaged in illegal fighting, but who consents
to an invasion of his person, would be barred from recovery based on that
consent, the majority rule’s allowance of recovery permits a prizefighting
plaintiff to profit from his criminal conduct. A plaintiff who expressly consents to
and engages in illegal fighting may not recover for any damages sustained as
a result of the combat. The trial court’s grant of the demurrer is affirmed.
What rule(s) does Consent to invasion of a particular right prevents an action based upon such an
the court apply in invasion and one should not profit from his own misdeeds(不法行为).
answering that A plaintiff who engages in illegal fighting may not recover in a civil action for
question? damages sustained as a result of the combat, unless there is a showing of
excessive force or malicious intent to cause serious injury.
How does the court The majority view is obviously an exception to the general principle that one who has
reason its way to its sufficiently expressed his willingness to suffer a particular invasion has no right to
conclusion? complaint if another acts upon his consent so given. The very nature of rights of
personality, which are in freedom to dispose of one's interests of personality as one pleases,
fundamentally requires this to be so.
There is a further principle, applicable not only in tort law but throughout the whole
field of law, and perhaps more conspicuously in other subjects, to the effect that no man
shall profit by his own wrongdoing.
What does the The judgment will be affirmed.
court do and/or
direct the lower
court to do? Who
wins?

Key points in this case:

1.Consent be communicated
The court
1 what does the D said, and P subjectively regard the consent？
2 the jury will determine the consent objectively. E.g. Whether the P receive the
consent.
2. Discussion.
The Court was called upon to adopt one of two views on this subject. The
majority rule allowed recovery for such injuries, while the minority rule did
not. Although the Court did not expressly adopt the minority rule, it clearly
found it more appropriate in barring the action. The Court explained that such
a rule both upholds general principles of consent as a bar to certain damages
and does not allow one who engages in an illegal contest such as
prizefighting to derive any benefit from such misdeeds.
3. -Scope of consent
Occasions happens outside the scope of consent.

60
1.8.1.1 Majority rule vs minority rule in Hart v. Geysel

[T] he adjudicated cases, as well as the text-writers, are in conflict. One line supports
what is known as the majority rule, and the other, the minority. The majority rule has
been stated as follows:
Where the parties engage in mutual combat in anger, each is civilly liable to the other
for any physical injury inflicted by him during the fight. The fact that the parties
voluntarily engaged in the combat is no defense to an action by either of them to recover
damages for personal injuries inflicted upon him by the other.
This rule is supported by the cases of [].
The minority rule has been stated as follows: Where parties engage in a mutual
combat in anger, the act of each is unlawful and relief will be denied them in a civil
action; at least, in the absence of a showing of excessive force or malicious intent to do
serious injury upon the part of the defendant.

1.8.1.2 Two fundamental principle

The majority view is obviously an exception to the general principle that one who
has sufficiently expressed his willingness to suffer a particular invasion has no right to
complaint if another acts upon his consent so given. The very nature of rights of
personality, which are in freedom to dispose of one's interests of personality as one
pleases, fundamentally requires this to be so.
There is a further principle, applicable not only in tort law but throughout the whole
field of law, and perhaps more conspicuously in other subjects, to the effect that no man
shall profit by his own wrongdoing.
Do the "two fundamental principles" that the Restatement draft identifies to support
the minority view--and which lead the Geysel court to recognize a consent defense-
seem equally persuasive? If prizefighting had been legal in the state would either or
both principles still have equivalent persuasive force? no

1.8.1.3 Apparent or implied consent.

"If words or conduct are reasonably understood by another to be intended as consent,

they constitute apparent consent and are as effective as consent in fact." Restatement
(Second) of Torts $ 892.

61
 1.8.2 Self-Defense (affirmative defense of Self-defense)

Courvoisier v. Raymond (吵闹人闯入被告家中，被告持枪打死治安官)

Supreme Court of Colorado, 1896.

23 Colo. 113, 47 P. 284.
Who sued whom, -Plaintiff: Raymond, deputy sheriff. the first shot fired attracted the attention of him.
when, why, and for -Defendant: Courvoisier
what?
Brief Fact Summary.
Courvoisier (defendant) owned a jewelry store located on the first floor of a
building. Courvoisier lived on the floor above the jewelry store. One evening,
Courvoisier was sleeping in his room when he heard several men attempt to
break into the jewelry store. The men came to the second floor of the building,
and Courvoisier heard them knocking loudly on the door of the room where his
sister was sleeping. Courvoisier took out his revolver and fired one shot
attempting to scare the men. The men moved out to the street in front of the
jewelry store, but did not run away. Instead, they began cursing and hurling
sticks and rocks at Courvoisier. Meanwhile, Raymond (plaintiff), a police officer,
and two other officers heard the commotion and came toward the crowd of men
with the goal of arresting them. Raymond walked toward Courvoisier and called
out to him. Courvoisier said that he saw Raymond reaching for his hip pocket
and coming toward him. Courvoisier did not know that Raymond was a police
officer, but believed he intended to attack him. Courvoisier fired his gun at
Raymond and injured him. Raymond brought suit against Courvoisier for his
injuries on the ground that Courvoisier recklessly fired the shot in question. At
trial, the jury was instructed that if it found that Raymond was not attacking
Courvoisier at the time he was shot, it should enter judgment for Raymond. The
jury found for Raymond, and Courvoisier appealed.
What happened in -Plaintiff obtained a judgment against defendant.
the lower courts? -The next error assigned relates to the instructions given by the court to the jury, and to
those requested by the defendant and refused by the court.
What question is Whether defendant’s behavior constitutes a self-defense?
before the court? Issue.
Whether self-defense may be alleged as a defense to liability for
intentional torts.

What is the court’s yes

answer to the

62
question before it?
What rule(s) does Morris v. Platt, 32 Conn. 75 [1864]
the court apply in Self-defense may constitute a defense to liability for intentional torts, even if the
answering that actions taken by a defendant in self-defense result from a mistaken but
question? reasonable belief that the defendant is under attack.

How does the court By this evidence two phases of the transaction are presented for consideration: First.
reason its way to its Was the plaintiff assaulting the defendant at the time plaintiff was shot? Second. If not,
conclusion? was there sufficient evidence of justification for the consideration of the jury? The first
question was properly submitted, but the second was excluded by the instruction under
review.
Where a defendant, in a civil action like the one before us, attempts to justify on a plea
of necessary self-defense, he must satisfy the jury, not only that he acted honestly in using
force, but that his fears were reasonable under the circumstances, and also as to the
reasonableness of the means made use of. In this case, perhaps, the verdict would not have
been different, had the jury been properly instructed; but it might have been, and therefore
the judgment must be reversed.
What does the
Yes. After considering all the facts, a jury could have found that Courvoisier
court do and/or
reasonably mistook Raymond to be a rioter intending to harm him and thus
direct the lower
fired his gun in self-defense.
court to do? Who
wins?
Self-defense may constitute a defense to liability for intentional torts. This
is true even if the actions taken by a defendant in self-defense result from a
mistaken but reasonable belief that the defendant is under attack. When
Courvoisier shot Raymond, he had just chased several men out of his
residence and place of business that he believed were attempting to rob him.
The men continued rioting and throwing objects at him on the street. In the
midst of the confusion, Courvoisier saw an unidentified man (Raymond)
walking toward him with his hand near his hip pocket. In light of the factual
circumstances, a jury could have found that Courvoisier reasonably, though
mistakenly, believed he was under further attack from Raymond and fired his
gun purely in self-defense. The decision should be reconsidered in light of all
the factual circumstances and with proper jury instruction. The decision of the
trial court is reversed.

Key points in this case:

1.Hypo
1 Is it a need for a reasonable person to put on the glasses to check out?
:NO
2 The hand to his hip is really important.
What if he didn’t put his hand on the hip?
: maybe different.
3 体型 sometimes matters

63
 2.受害者的认知
Depends on the 受害者的认知.

3. Innocent victims
Innocent victims have no claim against the person act an objectively reasonable act.

1.8.2.1 Nature of the defense

These issues turn on the important distinction between excuses (in criminal law.
Excuse because of insanity) and justifications (or privilege in torts).
1. In criminal law, in cases of excuse:
The defendant does not deny that the conduct was wrongful but instead argues that
the liability should be excused. An excuse only means that the defendant was not
personally blameworthy or truly at "fault," which is not a requirement for tort liability,
unlike criminal liability.
E.g. someone of insanity have excuse from criminal liability. The opposite in torts.

2. In torts, we have the justifications (or privilege in torts):

Affirmative defenses in tort law instead justify or privilege certain forms of conduct,
enabling the defendant to avoid liability by proving that he engaged in such conduct
and therefore did not act wrongful in the first instance. Without wrongful behavior-or
violation of another's tort right--there is no basis for subjecting the defendant to liability.

1.8.2.2 The requirement of reasonable force

The privilege of self-defense only entitles one to use reasonable force when she
reasonably believes that another is about to commit an actionable battery on her (or to
defend others who reasonably appear to be threatened by such an imminent attack).
To be reasonable, the force "must not be disproportionate in extent to the harm from
which the actor is seeking to protect. ..." Restatement (Second) of Torts $ 63 cmt. j.
which means must be approportionate in extent to the harm from which the actor is
seeking to protect. ...
If the actor exercises excessive force, then she commits an assault or battery by doing
so, but only to the extent that the force is unreasonable.

Hypo: the guy with the knife running towards you, 5m away from your home, can
you shoot?
A: NO. You can run to your house and shut the door.

64
 *If you have a safe shelf to retreat, then you don’t have the self-defense.
In criminal law, you wait in the house and after the person comes, you shoot. It is

1.8.3 Protection of Property

Katko v. Briney(原告闯入被告老屋，被 被告枪击陷阱击中，造成严重损害)

Supreme Court of Iowa, 1971.

183 N.W.2d 657.
" MOORE, CHIEF JUSTICE.
Who sued whom, -Plaintiff: Katko, Plaintiff and his companion, Marvin McDonough, had broken and entered
when, why, and for the house to find and steal old bottles and dated fruit jars which they considered antiques.
what? -Defendant: Briney, protect personal property in an unoccupied boarded-up farm house
against trespassers and thieves by a spring gun capable of inflicting death or serious injury.

Mr. and Mrs. Briney (defendants) own a farmhouse, which is not used as their home
and which remains vacant. In response to many years of break-ins and trespassers,
Mr. Briney set up a spring gun trap in one of the house’s bedrooms. The trap
consisted of a shotgun pointed at the bedroom door and rigged to fire when the
door was opened. Though originally set up to hit an intruder in the stomach, at Mrs.
Briney’s suggestion the shotgun was lowered to hit an intruder’s legs. The spring
gun could not be seen from outside the bedroom, and there was no warning or
indication of its presence. Katko (plaintiff) knew the house had been unoccupied
for years and considered it abandoned. Katko and a friend went to the house and
collected old bottles and jars as antiques. On a subsequent visit to the house, Katko
opened the bedroom door, setting off the shotgun trap. Katko was struck in the
right leg and seriously injured. The jury awarded Katko compensatory and punitive
damages. The trial court denied the Brineys’ motions for judgment notwithstanding
the verdict and for new trial.
What happened in A jury returned a verdict for plaintiff and against defendants husband and wife for
the lower courts? $20,000 actual and $10,000 punitive damages. The trial judge rejected motions for
judgment notwithstanding the verdict and for a new trial. Further facts appear in the opinion.
What question is May a person seeking to protect personal property against trespassers and
before the court? thieves set a spring gun trap capable of causing death or serious bodily injury?
What is the court’s NO A person, in protecting his property, may not use force calculated to cause
answer to the death or serious bodily injury, except where there is also a threat to personal
question before it? safety that is sufficient to justify self-defense.
Personal rights are given a higher value under the law than property rights.

65
 The use of spring guns or similar devices to protect property against a trespasser
or petty thief is not justified. This court has previously found a property owner
liable for injuries sustained by a trespasser as a result of a spring gun trap,
finding the defense of property from trespass to be insufficient justification for the
use of a deadly weapon.
The trial court in this case did not err in instructing the jury that case law
prohibits use of spring guns except to prevent a felony of violence where human
life is in danger; that a person may not use force in protecting his property that
will cause death or serious bodily injury; and that a premises owner may not set
a spring gun which will likely cause death or serious bodily injury in order to harm
trespassers. The trial court’s judgment is affirmed.
What rule(s) does 1 "the law permits use of a spring gun in a dwelling or warehouse for the purpose of
the court apply in preventing the unlawful entry of a burglar or thief."
answering that In instruction 2 the court referred to the early case history of the use of spring guns and
question? stated under the law their use was prohibited except to prevent the commission of felonies
of violence and where human life is in danger. The instruction included a statement that
breaking and entering is not a felony of violence.
2 that one may use reasonable force in the protection of his property, but such right is subject
to the qualification that one may not use such means of force as will take human life or
inflict great bodily injury. Such is the rule even though the injured party is a trespasser and
is in violation of the law himself.
3 An owner of premises is prohibited from willfully or intentionally injuring a trespasser by
means of force that either takes life or inflicts great bodily injury; and therefore a person
owning a premise is prohibited from setting out 'spring guns and like dangerous devices
which will likely take life or inflict great bodily injury, for the purpose of harming
trespassers. ... The only time when such conduct of setting a 'spring gun' or a like dangerous
device is justified would be when the trespasser was committing a felony of violence or a
felony punishable by death, or where the trespasser was endangering human life by his act.
4 the law has always placed a higher value upon human safety than upon mere rights in
property, it is the accepted rule that there is no privilege to use any force calculated to cause
death or serious bodily injury to repel the threat to land or chattels, unless there is also such
a threat to the defendant's personal safety as to justify a self-defense.
5 Hooker v. Miller, 37 Iowa 613 [1873]
6 punitive damages
When malice is shown or when a defendant acted with wanton and reckless disregard of
the rights of others, punitive damages may be allowed as punishment to the defendant and
as a deterrent to others Although not meant to compensate a plaintiff, the result is to increase
his recovery. He is the fortuitous beneficiary of such an award simply because there is no
one else to receive it.

A person, in protecting his property, may not use force calculated to cause death
or serious bodily injury, except where there is also a threat to personal safety that
justifies self-defense.
How does the court

66
reason its way to its
conclusion?
What does the court Affirmed
do and/or direct the
lower court to do?
Who wins?

Key points in this case:

1.Occupation or not
Should the result have been different if defendant and his wife were occupying the
house that evening? What if they occasionally occupied it, but were not there that
night? What if plaintiff can establish that he was unarmed and interested solely in
stealing more fruit jars?

1.8.3.1 Reasonable force（property）

(1) "the law permits use of a spring gun in a dwelling or warehouse for the purpose of
preventing the unlawful entry of a burglar or thief."
In instruction 2 the court referred to the early case history of the use of spring guns
and stated under the law their use was prohibited except to prevent the commission of
felonies of violence and where human life is in danger. The instruction included a
statement that breaking and entering is not a felony of violence.

(2) that one may use reasonable force in the protection of his property, but such right
is subject to the qualification that one may not use such means of force as will take
human life or inflict great bodily injury. Such is the rule even though the injured party
is a trespasser and is in violation of the law himself.

(3) An owner of premises is prohibited from willfully or intentionally injuring a

trespasser by means of force that either takes life or inflicts great bodily injury; and
therefore a person owning a premise is prohibited from setting out 'spring guns and like
dangerous devices which will likely take life or inflict great bodily injury, for the
purpose of harming trespassers. ... The only time when such conduct of setting a 'spring
gun' or a like dangerous device is justified would be when the trespasser was
committing a felony of violence or a felony punishable by death, or where the trespasser
was endangering human life by his act. (In these two circumstances, you can use the
deadly force)

(4) the law has always placed a higher value upon human safety than upon mere rights
in property, it is the accepted rule that there is no privilege to use any force calculated
to cause death or serious bodily injury to repel the threat to land or chattels, unless there

67
is also such a threat to the defendant's personal safety as to justify a self-defense.

1.8.3.2 Punitive damages

When malice is shown or when a defendant acted with wanton(恶意的) and reckless
disregard of the rights of others, punitive damages may be allowed as punishment to
the defendant and as a deterrent to others Although not meant to compensate a plaintiff,
the result is to increase his recovery. He is the fortuitous(偶然的) beneficiary（受惠
者） of such an award simply because there is no one else to receive it.
B’s lawyer didn’t claim the punitive damages. Thus: “Plaintiff's claim and the jury's
allowance of punitive damages, under the trial court's instructions relating thereto,
were not at any time or in any manner challenged by defendants in the trial court as
not allowable. We therefore are not presented with the problem of whether the $10,000
award should be allowed to stand. We express no opinion as to whether punitive
damages are allowable in this type of case. If defendants' attorneys wanted that issue
decided, it was their duty to raise it in the trial court.”

1.8.3.3 About erecting signs

Some legal scholars think if you reasonably post the sign, then some people break in,
you have the privilege to shot. Some scholars don’t think so.

1.8.3.4 Posner’s reasonableness test

To determine whether the use of deadly force is justified to protect property interests.
The following considerations would be relevant:
(1) the value of the property at stake measured against the costs of human life and
limb;
(2) the existence of an adequate legal remedy as an alternative to the use of force;
(3) the location of the property in terms of the difficulty of protecting it by other
means;
(4) the kind of warning given;
(5) the deadliness of the device used;
(6) the character of the conflicting activities;
(7) the cost of avoiding interference by other means.
Posner maintained that "the dominant purpose of rules of liability is to channel(引
导) people's conduct, and in such a way that the value of interfering activities is
maximized."

68
 1.8.3.5 Recapture of chattels

Property in the form of chattels is movable, creating the opportunity of recapture by

the owner. The owner can recapture the chattel by exercising reasonable force only if
"he acts promptly(及时的) after his dispossession or after his timely discovery of it."
Restatement (Second) of Torts § 103.
Hypo:
第三人占有了你的电脑，三天（或者其他天数）后不可以追回：原因是第三人
认为他也有 privilege，会造成混乱，大家都是 Battery。 但是可以用法律手段。

1.8.4 Private Necessity

Destroys the property of another in order to preserve his or her person or property of
greater value.

Vincent v. Lake Erie Transportation Co.（暴雨天把船停在码头，砸坏码头）

Supreme Court of Minnesota, 1910

109 Minn. 456, 124 N.W. 221.
• O'BRIEN, J.
Who sued whom, -Plaintiff: Vincent
when, why, and for -Defendant: The steamship Reynolds, owned by the defendant, was for the purpose of
what? discharging her cargo on November 27, 1905, moored to plaintiffs' dock in Duluth.
R.C. Vincent and others (Vincent) (plaintiffs) owned a dock in Duluth. On November
27, 1905, Lake Erie Transportation Co. (Erie) (defendant) anchored its boat to Vincent’s
dock to unload the cargo. A violent storm hit that prevented boats from leaving the harbor
for two days. During that time, Erie deliberately kept its boat anchored to Vincent’s dock
to prevent it from drifting away. It is undisputed that doing so was a reasonable exercise
of ordinary care given the severity of the storm. However, strong winds repeatedly
knocked the boat up against Vincent’s dock, causing damage. Vincent sued Erie to recover
damages, and the jury awarded Vincent $500. Erie appealed, arguing that it cannot be held
liable for the damage to the dock because it acted with due care under the circumstances.
What question is Whether it is reasonable for the defendant to use the dock?
before the court? Whether it is entitled for the plaintiffs to compensate for the injury done?
What is the court’s Yes. Erie acted prudently and out of a private necessity to protect its boat, but it is
answer to the nevertheless liable for the damage to Vincent’s dock.
question before it? The general rules that govern private property rights may be “suspended by forces
beyond human control.” In such cases, a party will not be liable for property damage that
results from an “act of God.”
Nevertheless, where a party acts deliberately to protect her property, even if her actions
are entirely reasonable under the circumstances, she will be liable to another property

69
 owner for damages that result.
In Ploof v. Putnam, 71 A. 188 (1908), a boat moored to a dock on a private island during
a storm without the owner’s permission. The owner of the island untied the boat, which
was damaged when it ran aground. There, the court held that the boat owner was not liable
for the trespass under the circumstances, but the island’s owner was required to pay for
the damage to the boat. By analogy, it seems clear that had the boat remained tied to the
dock, the boat owner would have been forced to compensate the island owner for any
damage done to the dock. There is no question that a starving person is justified in taking
food to survive or that in times of public emergency private property may be taken to serve
the interests of the public. In those situations, however, our law requires that compensation
be paid to the property owner. In this case, Vincent’s dock was not the cause of the danger.
Erie acted deliberately to keep its boat safe in the storm at the expense of Vincent’s
property.
Erie is not at fault for taking this action but is still liable for compensation for Vincent’s
damages. The decision of the trial court is affirmed.
What rule(s) does -The situation was one in which the ordinary rules regulating property rights were
the court apply in suspended by forces beyond human control, and if, without the direct intervention of some
answering that act by the one sought to be held liable, the property of another was injured, such injury
question? must be attributed to the act of God, and not to the wrongful act of the person sought to be
charged.
A party who damages the property of another while acting out of private
necessity must compensate the property owner for the resulting damage.

How does the court -It is the one where the defendant prudently and advisedly availed itself of the plaintiffs'
reason its way to its property for the purpose of preserving its own more valuable property, and the plaintiffs
conclusion? are entitled to compensation for the injury done.
Dissent If (1) Erie’s boat was lawfully tied to the dock when the storm hit and (2) the
（Lewis,J） boat’s captain could not reasonably have removed the boat under the
circumstances without breaching the duty of care, then any harm to the dock
that occurred was an “inevitable accident.” If the boat’s captain exercised due
care, he was not at fault. Thus, Erie should not be liable for the damages.

Key points in this case:

1. It is not the trespass, necessity exists. Even though not trespass, but still have to
compensate the party who suffers the damage.
The dissenting judge dissent from the compensation part.

2. Economic way deal with these circumstances? (Welfare for everyone)

For Shipping Enterprise. the dock owner is liable to any damage. Because the dock
owner knows what will happen. And the owner can increase the money.

3.Substantial certainty for the intent.

70
1.8.4.1 Rule of law in Vincent v. Lake Erie Transportation Co.

The situation was one in which the ordinary rules regulating property rights were
suspended by forces beyond human control, and if, without the direct intervention of
some act by the one sought to be held liable, the property of another was injured, such
injury must be attributed to the act of God, and not to the wrongful act of the person
sought to be charged.
It is the one where the defendant prudently and advisedly availed itself of the
plaintiffs' property for the purpose of preserving its own more valuable property, and
the plaintiffs are entitled to compensation for the injury done.

1.8.4.2 Public necessity

Sometimes private property is destroyed for the protection of the general public.
"a private mischief is to be endured rather than a public inconvenience."
e.g. the government should compensate.

Chapter 2 The Negligence Principle

Class 9/13 TORT LAW & ALTERNATIVES: 35 - 52.

1 Historical development of fault liability

Tort Law and the Economy in Nineteenth Century America:

A Reinterpretation
Gary T. Schwartz. 90 Yale Law Journal 1717, 1722-27 (1981).
Ø Although Weaver did suggest that the trespass-plaintiff's proof of immediately
caused harm established a prima facie case, it also indicated that the defendant
could refute liability by showing that what happened had been an "inevitable
accident" that the defendant had been "utterly without fault" or had "committed
no negligence."
Ø To sum up, then, the strict liability strands in traditional English law seem
ambivalent(矛盾的) and confused; the negligence strands, both more distinct
and more capable of extended application.
Ø Common law history: origin of Trespass
-the way they use in the old time: writ (formal legal document) of trespass

71
 -e.g. if cut down the tress negligently, fall down the road and hit someone.
You can claim direct negligence.
But if I remove to the side of the road (放到边上了), 马走到边上倒了
Indirect negligence (case). Cannot bring a claim of negligence.
BUT if 马吓到了，马后仰 你摔了
trespass
n.(1)(英格兰古法)侵害之诉 英格兰中世纪的一种诉讼形式，指因自己的身体、
财产、权利、名誉或人际关系被侵害而索赔的诉讼。巡回初审〔nisi prius〕制
度建立起来之后，这种诉讼形式在 14 世纪才普遍起来。后来又发展出间接侵
害之诉〔trespass on the case 或简称为 case〕的诉讼形式。早期违约之诉是根据
侵害之诉来得到救济的。到 17 世纪末为止，大量的案件受到了从侵害之诉所
发展出来的各种诉讼形式的影响。
(2)侵害；侵犯；侵入 在现代法中，trespass 有三类：侵害他人财物〔trespass
to goods 或 trespass de bonis asportatis〕、侵犯他人人身〔trespass to the person〕
以及侵入他人土地〔trespass to land 或 trespass quare clausum fregit〕。在苏格兰，
这一词只在进占他人土地的意义上运用。

1.1 Landmark case of negligence principle:

Brown v. Kendall(被告为将两只打架的狗分开，用棍子误伤原告)

Supreme Judicial Court of Massachusetts, 1850. 6 Cush. (60 Mass.) 292.

Who sued whom, -Plaintiff: Brown
when, why, and for -Defendant: George K. Kendall, the defendant, who died pending the suit, and his
what? executrix was summoned in.
Two dogs were fighting in the presence of their masters; the defendant took a stick about
four feet long and commenced beating the dogs in order to separate them; In their struggle,
the dogs approached the place where the plaintiff was standing. The defendant retreated
backwards from before the dogs, striking them as he retreated; and as he approached the
plaintiff, with his back towards him, in raising his stick over his shoulder, in order to strike
the dogs, he accidentally hit the plaintiff in the eye, inflicting upon him a severe injury.
What happened in Under instructions from the trial judge, which are reviewed in the opinion, the jury
the lower courts? returned a verdict for the plaintiff and the trial judge entered judgment.
What question is Whether the defendant’s act to separate the dogs is a proper act?
before the court? Whether it is defendant’s burden of prove?
Can a defendant be held liable for an injured plaintiff’s damages if the
defendant acted with lawful intent and without fault?
What is the court’s Yes
answer to the No

72
question before it? No. A defendant cannot be held liable for an injured plaintiff’s damages if the
defendant acted with lawful intent and without fault.
If an injured plaintiff seeks to recover from the defendant who caused the
injury, the plaintiff must show either that the defendant’s intention was unlawful
or that the defendant was not using ordinary care.
Ordinary care is defined as the care a prudent and cautious person would
use to guard against danger under the circumstances of a given case. If a
defendant acts with ordinary care, and a plaintiff is still accidentally injured, that
plaintiff will not be able to recover damages from a defendant who was not at
fault.
Here, Kendall acted lawfully and reasonably in trying to separate the fighting
dogs. Since one of the dogs was his, he could have been liable if his dog hurt
someone. In using a stick to separate the dogs, Kendall acted in a reasonable
manner. There is no evidence that he intended to hurt Brown or that he even
knew that Brown was behind him. Since Brown was injured by pure accident,
Brown cannot recover damages from Kendall. The trial judge improperly
instructed the jury. The trial judge instructed the jury that if Kendall was not duty
bound to separate the dogs, then he had to exercise extraordinary care. Since
this incorrect instruction placed a greater burden on Kendall than the law
required, the trial court verdict is set aside and a new trial is ordered.
What rule(s) does - damage received by a direct act of force from another will be sufficient to maintain an
the court apply in action of trespass, whether the act was lawful or unlawful, and neither willful, intentional,
answering that or careless.
question? A defendant cannot be held liable for an injured plaintiff’s damages if the
defendant acted with lawful intent and without fault.
How does the court - inflicted by the hand of the defendant upon the person of the plaintiff, was intentional.
reason its way to its - In applying these rules to the present case, we can perceive no reason why the instructions
conclusion? asked for by the defendant ought not to have been given; to this effect, that if both plaintiff
and defendant at the time of the blow were using ordinary care, or if at that time the
defendant was using ordinary care, and the plaintiff was not, or if at that time, both the
plaintiff and defendant were not using ordinary care, then the plaintiff could not recover.
What does the New trail
court do and/or
direct the lower
court to do? Who
wins?

Key points in this case:

1. In this case, it is the direct.
2. Apart from the trial court's erroneous reference to necessary acts, how did the jury
instruction misstate the law? What, precisely, were the unsettled questions before
Brown v. Kendall that Shaw resolved in the opinion?

Trial court’s opinion: it is not a necessary act (do not have the duty to act), if act,

73
should exercise of extraordinary care. The plaintiff has the ordinary care.
(Contributory negligence)

2 questions: What is the standard of fault /care?

Who has the burden of the prove regard the
Lack of ordinary care is on the plaintiff

This court：The court are of opinion that these directions were not conformable to
law. If the act of hitting the plaintiff was unintentional, on the part of the defendant,
and done in the doing of a lawful act, then the defendant was not liable, unless it was
done in the want of exercise of due care, adapted to the exigency of the case, and
therefore such want of due care became part of the plaintiff's case, and the burden of
proof was on the plaintiff to establish it. 2 Greenl. Ev. § 85; [ ].

3. Discussion.
Trial court rejected defendant’s request to the following jury instruction: if both
plaintiff and defendant at the time of the blow were using ordinary care, or if at that
time the defendant was using ordinary care, and the plaintiff was not, or if at that
time, both the plaintiff and defendant were not using ordinary care, then the plaintiff
could not recover. However, this Court was of the opinion that defendant’s request
to the trial court was actually correct.

This Court explained that “ordinary care” means the kind and degree of care,
which prudent and cautious men would use, such as is required by the exigency of
the case, and such as is necessary to guard against probable danger. This Court also
clairfied that the standard “ordinary care” varies depend on different situations. For
example, a man’s ordinary care to discharge a gun in a forest is different from doing
so in a crowded city.

In this case, defendant’s act was out of propriety to separate two fighting dogs,
hence his act was proper. He did not intend to hurt plaintiff, so there should not be
intentional torts. Defendant only injured plaintiff by accidents.

The Court also stated that if the defendant was chargeable with
some negligence, and if the plaintiff was also chargeable with negligence, then the
plaintiff would have the burden of proof that the damage was caused wholly by
defendant’s negligence, and that the plaintiff’s own negligence did not contribute as
an efficient cause to produce it.

74
1.1.1 Whether a party’s remedy should be sought in an action of

trespass

Damage received by a direct act of force(直接使用武力) from another will be

sufficient to maintain an action of trespass(侵权行为), whether the act was lawful or
unlawful, and neither willful, intentional, or careless. Trespass is not case(间接). This
court thinks it is not used but use the rule of negligence.
The rule is correctly stated by Mr. Greenleaf, that the plaintiff must come prepared
with evidence to show either that the intention was unlawful, or that the defendant was
in fault; for if the injury was unavoidable, and the conduct of the defendant was free
from blame, he will not be liable.
Green. Ev. §§ 85 to 92; If, in the prosecution of a lawful act, a casualty purely
accidental arises, no action can be supported for an injury arising therefrom.

1.1.2 Ordinary care (based on the community)

Ordinary care, it may be proper to state, that what constitutes ordinary care will vary
with the circumstances of cases.
In general, it means that kind and degree of care, which prudent and cautious men
would use, such as is required by the exigency(迫切要求) of the case, and such as is
necessary to guard against probable danger.
A man, who should have occasion to discharge(开枪) a gun, on an open and extensive
marsh, or in a forest, would be required to use less circumspection(小心谨慎)and care,
than if he were to do the same thing in an inhabited town, village, or city. To make an
accident, or casualty, or as the law sometimes states it, inevitable accident, it must be
such an accident as the defendant could not have avoided by the use of the kind and
degree of care necessary to the exigency, and in the circumstances in which he was
placed.

1.1.3 Want(缺少) of exercise of due care

If the act of hitting the plaintiff was unintentional, on the part of the defendant, and
done in the doing of a lawful act, then the defendant was not liable, unless it was done
in the want(缺少) of exercise of due care, adapted to the exigency of the case, and
therefore such want of due care became part of the plaintiff's case, and the burden of
proof was on the plaintiff to establish it.

75
 2 The Central Concept

2.1 The standard of care

*Note that "negligence" is commonly used to refer to the issue examined in this section:
breach of the standard of reasonable care.
But it is just as commonly used more broadly to encompass negligence as a theory
that permits a plaintiff to recover damages-"the law of negligence" -which includes
elements of duty, causation, and defenses (explored in later chapters), along with the
concept of unreasonable conduct examined in this section.

Adams v. Bullock(被告使用在头顶电线，原告小孩玩电线甩到头顶上的电线)

Court of Appeals of New York, 1919.

227 N.Y. 208, 125 N. E. 93.
• CARDOZO, J.
Who sued whom, -Plaintiff: Bullock The defendant runs a trolley line in the city of Dunkirk, employing the
when, why, and for overhead wire system.
what? -Defendant: a boy of twelve years, came across the bridge, swinging a wire about eight
feet long. In swinging it, he brought it in contact with the defendant's trolley wire, which
ran beneath the structure. The plaintiff was shocked and burned when the wires came
together. He had a verdict at Trial Term, which has been affirmed at the Appellate Division
by a divided court.
Bullock (defendant) operated a trolley line. At one point in the line, the overhead trolley
wires ran below a bridge often used by pedestrians. The bridge had a protective railing,
and the trolley wires ran more than four and a half feet below the top of the railing. Adams
(plaintiff), a 12-year-old boy, was injured on the bridge when a wire he was swinging came
into contact with the trolley wires below the bridge. Adams was successful at trial, and his
verdict was upheld by the New York Supreme Court, Appellate Division. Bullock appealed
to the New York Court of Appeals.
What happened in He had a verdict at Trial Term, which has been affirmed at the Appellate Division by a
the lower courts? divided court.
Where are we now Court of Appeals of New York
procedurally?
What question is May a person who has taken reasonable precautions against foreseeable
before the court? dangers be held liable in negligence for injuries caused by extraordinary
circumstances?
What is the court’s No. A person ordinarily has a duty to adopt reasonable precautions to minimize injury to
answer to the others. However, a person is not expected to foretell and guard against every possible
question before it? dangerous circumstance.

76
 Accordingly, a person who has taken reasonable precautions against foreseeable dangers
will not be liable in negligence for injuries caused by extraordinary circumstances. In this
case, Bullock had a duty to exercise reasonable care to avoid foreseeable injuries that could
be caused by its placement of trolley wires. There is no evidence that Bullock breached its
duty to exercise ordinary caution to avoid such injuries. Bullock’s use of overhead trolley
wires was not itself illegal. In addition, it is not reasonable to expect Bullock to have
foreseen Adams’s particular injury at this particular location. There has never been a
similar accident in the past. Further, a person standing on the bridge and reaching over the
railing would not be able to touch the trolley wire below. Bullock could not have avoided
the remote risk of harm by insulating its trolley wires, as insulating these wires is
impossible. Finally, there is no evidence that Bullock had either the duty or the power to
replace the entire system of trolley wires with underground wires. Because Bullock did
not deviate from the required standard of reasonable care, the verdict below must be
reversed.
What rule(s) does A person who has taken reasonable precautions against foreseeable dangers may not be
the court apply in held liable in negligence for injuries caused by extraordinary circumstances.
answering that
question?
How does the court We think the verdict cannot stand. The defendant in using an overhead trolley was in
reason its way to its the lawful exercise of its franchise. Negligence, therefore, cannot be imputed to it because
conclusion? it used that system and not another []. There was, of course, a duty to adopt all reasonable
precautions to minimize the resulting perils. We think there is no evidence that this duty
was ignored. The trolley wire was so placed that no one standing on the bridge or even
bending over the parapet could reach it. Only some extraordinary casualty, not fairly
within the area of ordinary prevision, could make it a thing of danger.
With trolley wires, the case is different. Insulation(隔绝) is impossible. Guards here and
there are of little value. To avert the possibility of this accident and others like it at one
point or another on the route, the defendant must have abandoned the overhead system,
and put the wires underground.
What does the The judgment should be reversed.
court do and/or
direct the lower
court to do? Who
wins?

2.1.1 what kind of risks that should be aware of as a reasonable

person?Forseeable

The risk should be Reasonably foreseeable. A reasonable jury could decide what is
foreseeable.
-Foreseeability: you have to act ordinary care for the foreseeable thing.

77
 If it is not foreseeable, then the person does not have to exersice the ordinary care.

2.1.2 Reasonable care in the use of a destructive agency

Reasonable care in the use of a destructive(破坏性的) agency imports a high degree

of vigilance(警觉)。

2.1.3 “Ordinary caution” or “reasonable care”

Negligence is the doing of something which a reasonably prudent person would not
do, or the failure to do something which a reasonably prudent person would do, under
circumstances similar to those shown by the evidence. It is the failure to use ordinary
or reasonable care.
Ordinary or reasonable care is that care which persons of ordinary prudence would
use in order to avoid injury to themselves or others under circumstances similar to those
shown by the evidence.

United States v. Carroll Towing Co.(原告驳船长不在船上，被告 argue 有疏

忽，美国的货物在船上)

United States Court of Appeals, Second Circuit, 1947.

159 F.2d 169.
• Before L. HAND, CHASE and FRANK, CIRCUIT JUDGES.
• L. HAND, CIRCUIT JUDGE.
Who sued whom, -Plaintiff: The tanker's propeller broke a hole near the bottom of the Anna C, which soon
when, why, and for filled with water and sank, with loss of cargo (owned by the United States)
what? -Defendant: Carroll Towing Co.
Connors Company (Connors) (plaintiff) owned a barge called the Anna C. The
barge carried a load of flour owned by the United States (plaintiff). Connors hired
Carroll Towing Co. (Carroll) to tow the barge with its tug boat. Carroll chartered its tug
boat to Grace Line (Grace) (defendant), another tug company. On January 4, 1944,
Connors’ barge was docked at Pier 51 on the North River. Connors’ employee who
was tasked with watching the barge had gone ashore. Carroll’s tug boat attempted a
tricky move of the Anna C to another dock, but this maneuver failed and ultimately set
loose all other boats at the dock. The boats floated down the river and the Anna C
sank. Connors brought suit against Carroll and Grace for damages from the loss of
the boat, and the United States brought suit against Carroll for the loss of the flour. At
trial, Carroll and Grace defended on the ground that Connors was contributorily

78
 negligent because its employee was absent from the barge at the time of the incident.
The trial judge found that Carroll, but not Grace was responsible for one-half the
damage to the Anna C and for the entire loss of the flour. The parties appealed..

Connors 公司（Connors）（原告）拥有一艘名为 Anna C 的驳船。Connors 雇用

Carroll 拖船公司（Carroll）用其拖船拖运驳船。Carroll 将其拖船租给了另一家拖船
公司 Grace Line (Grace)（被告）。1944 年 1 月 4 日，Connors 的驳船停靠在北河
51 号码头。Connors 负责看管驳船的雇员上了岸。卡罗尔的拖船试图将安娜-C 号
巧妙地转移到另一个码头，但这一行动失败了，最终导致码头上的所有其他船只都
松动了。船只顺流而下，安娜-C 号沉没
What happened in The trial judge, as fact finder, found no negligence on the part of the bargee, and Carroll
the lower courts? appealed that finding among others.
Where are we now United States Court of Appeals, Second Circuit
procedurally?
What question is Whether liability for failure to take precautions to avoid harm depends upon the
before the court? probability of injury and the gravity of any resulting injury.
What is the court’s Yes. Connors is contributorily negligent for its failure to take safety precautions by
answer to the having an employee aboard the barge during the daylight hours. Liability for negligence
question before it? 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.
This formula may be symbolized mathematically by B < PL = negligence liability,
where “B” is the burden of adequate precautions, “P” is the probability of injury,
and “L” is the injury itself. The burden of taking precautions for Connors was nothing
more than paying its employee to remain on the barge during normal working hours,
when the incident occurred. If he had been on board, he could have called for help from
the tug boats when the barge broke free and possibly avoided the damage. The likelihood
of a barge breaking free is relatively high, especially in instances of severe weather. This
likelihood is increased when the employee tasked with manning the barge is absent. The
potential injury resulting from a barge breaking free is quite significant and may, as with
the Anna C, result in total loss of the barge. Thus, compared with the relatively high risk
of injury multiplied by the gravity of the injury, the burden on Connors to take
precautions is relatively low. Connors is thus contributorily negligent for its failure to
take safety precautions by having an employee aboard the barge during the daylight
working hours.

What rule(s) does - there is no general rule to determine when the absence of a bargee or other attendant will
the court apply in make the owner of the barge liable for injuries to other vessels if she breaks away from
answering that her moorings. ...
question?

If the probability is P; the injury, L; and the burden, B; liability depends upon
whether B is less than L multiplied by P: i.e., whether B less than PL.

79
 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(严重性) of any resulting injury, symbolized by B < PL = negligence
liability.

How does the court The bargee had been away all the time, and we hold that his fabricated story was
reason its way to its affirmative evidence that he had no excuse for his absence.
conclusion? -that it was a fair requirement that the Conners Company should have a bargee aboard
(unless he had some excuse for his absence), during the working hours of daylight.
The court reversed and remanded for reconsideration of the allocation of damages.
What does the The court reversed and remanded for reconsideration of the allocation of damages.
court do and/or
direct the lower
court to do? Who
wins?

2.1.4 B < PL

-A judge simply not going to instruct the jury ‘B < PL’. why?

-Recall the concern with notice and foreseeability of the risk of harm in Adams u.
Bullock, p. 44 supra. Nowhere in Carroll Towing does Judge Hand qualify P and L by
stating that it is the foreseeable likelihood of harm and its foreseeable severity that are
the relevant considerations. Yet, when these factors are considered in a negligence case,
they are understood to be limited to the foreseeable probability and severity. See
Restatement (Third) of Torts: Liability for Physical and Emotional Harm§ 3 (2010).

Before it, we use the common sense or foreseeability.

In this case, only the bargee may know the care, not the jury.

-Apply this formular in Adams

Burden: put up a sign/ shielding (much more expensive)
Injury: the boy’s injury
Possibility: maybe 5%.
B> PL
-Apply this formular in Brown
B < PL
The possibility is high.
-You can not to make it in the market economy like selling kidney or something.
-The author of the opinion, Judge Learned Hand, stated that there was no general rule
with which to deal with liability when a barge with no one on board breaks free and
causes damage. Consequently, Judge Hand proposed an algebraic formula to determine
if the standard of care has been met. (This formula should not be related with the
personal injury. E.g. loss of eyesight)
80
 “Since there are occasions when every vessel will break from her moorings, and since,
if she does, she becomes a menace to those about her; the owner’s duty, as in other
similar situations, to provide against resulting injuries is a function of three variables:
(1) The probability that she will break away; (2) the gravity(严重性) of the resulting
injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring
this notion into relief to state it in algebraic terms: if the probability be called P; the
injury, L; and the burden, B (only thing is sure/confident); liability depends upon
whether B is less than L multiplied by P: i.e., whether B < PL.”
Discounting (multiplying) the cost of an accident if it occurs by the probability of
occurrence yields a measure of the economic benefit to be anticipated from incurring
the costs necessary to prevent the accident. The cost of prevention is what Hand meant
by the burden of taking precautions against the accident. It may be the cost of installing
safety equipment or otherwise making the activity safer, or the benefit forgone by
curtailing or eliminating the activity. If the cost of safety measures or of curtailment
whichever cost is lower exceeds the benefit in accident avoidance to be gained by
incurring that cost, society would be better off, in economic terms, to forgo accident
prevention.
- if B(in$) < PL (in $), then you fail to meet the standard.
Simply put, the test says:
If (Burden < Cost of Injury × Probability of occurrence), then the accused will not have
met the standard of care required. If the product of the first two terms exceeds the
burden of precautions, the failure to take those precautions is negligence.
If (Burden ≥ Cost of injury × Probability of occurrence), then the accused may
have met the standard of care.
On the facts, the Court ruled that leaving a barge unattended during the daylight hours
poses significant risk such that it would be fair to require a crew member to be aboard
the ship. Thus, the accused was found liable for negligence for being absent from the
ship without excuse.
This case is most famous for its first expression of Judge Hand's formula, C > GL
(cost is greater than gravity of loss) or in the more common shorthand, BPL. This
formula was first suggested, however, in The T.J. Hooper 60 F.2d 737 (2d Cir.), cert.
Denied, 287 U.S. 662 (1932), another tugboat case.

2.1.5 危险责任

Mark Grady has identified what he refers to as a pocket of strict liability within the
negligence rule, linked to the impossibility of driving or engaging in any high-repetition
precautionary behavior---without an occasional lapse as "compliance error." Unlike the
rest of us, the reasonable person never makes an inadvertent mistake. Liability in these
cases does not involve personal culpability or blameworthiness and accordingly
functions like a rule of strict liability. See Grady, Res Ipsa Loquitur and Compliance
Error

81
 2.2 The Reasonable Person

Bethel v. New York City Transit Authority（原告坐被告公交车椅子时受伤）

Court of Appeals of New York,

1998 92 N.Y.2d 348, 703 N.E.2d 1214, 681 N.Y.S.2d 201.
• LEVINE, JUDGE.
Who sued whom, -Plaintiff: Bethel
when, why, and for -Defendant: New York City Transit Authority
what? Bethel (plaintiff) was injured on a bus run by the New York City Transit Authority
(defendant), when his seat collapsed under him. At trial, Bethel argued that the Transit
Authority had constructive notice of the seat defect, and that an inspection would have
revealed the defect and led to its repair. The trial court instructed the jury that the Transit
Authority had a duty to exercise the highest standard of care to ensure passenger safety.
The trial court instructed the jury to apply this heightened standard of care in deciding
whether the Transit Authority had constructive notice of the seat defect that would have
led to inspection and repair of the seat. The jury found for Bethel and the New York
Supreme Court, Appellate Division affirmed.
What happened in -the trial court submitted to the jury the question of whether "considering the duty of care
the lower courts? that is imposed on common carriers with respect to this equipment, a reasonable inspection
would have led to the discovery of the condition and its repair" before the accident
(emphasis supplied).
Where are we now Court of Appeals of New York
procedurally?
What question is Should the reasonable person standard of care apply to common carriers?
before the court?
What is the court’s Yes. Common carriers should be held to the same standard of care as other
answer to the tortfeasors. During the age of the American railroad, and its corresponding increase
question before it? in railroad accident injuries and personal injury litigation, common carriers were held
to the highest degree of care possible to ensure passenger safety.
Now, however, public transportation is just as safe as private transportation. Over
the years, courts in negligence cases have created and applied an objective standard
of care based on how a fictional reasonable person of ordinary prudence would act
under the circumstances of a particular case. This standard is objective and uniform,
but flexible enough to take into consideration the particular circumstances of each
case. The old heightened standard of care should no longer apply to common carriers.
Instead, common carriers should be held to the same standard of care as all other
tortfeasors, that is, the degree of care a reasonable person of ordinary prudence would
exercise under all the circumstances of the particular case. The trial court erred in
instructing the jury to apply the heightened standard of care when deciding whether
the carrier had constructive notice of the defective seat. The matter is remanded for

82
 new trial.
What rule(s) does -For all of the foregoing reasons, we conclude that the rule of a common carrier's duty of
the court apply in extraordinary care is no longer viable. Rather, a common carrier is subject to the same
answering that duty of care as any other potential tortfeasor- reasonable care under all of the
question? circumstances of the particular case.
-见下
Under basic tort doctrine, a person must exercise the same degree of care
as a reasonable person of ordinary prudence under all the circumstances of
the particular case.

How does the court -constructive notice

reason its way to its -highest degree of care 的历史
conclusion? -提出 reasonable person 的概念
-Carrier’s duty of extraordinary care 的历史
What does the [The case was remanded for a new trial.]
court do and/or
direct the lower
court to do? Who
wins?

Key points in this case:

1. Gender
A major goal of feminist theory is to find a route past these monsters: first, by
being skeptical of conceptual dualisms(二元论) enshrined in familiar cultural and
legal practice, and second, by unmasking claims of difference to reveal unstated
norms against which difference is judged." See generally M. Chamallas, Introduction
to Feminist Legal Theory 262-70 (3d ed.2013).

2.2.1 Constructive notice

constructive notice
推定告知；推定知道 指法律认定对某一事由已给予足够关注，可以取代事实上
的告知，即视同已经告知。例如，对于一个登记在案的产权契据，无论第二个买
方事实上是否知悉，应推定为已被告知。

2.2.2 Standard of Reasonable (prudent) person

The objective, reasonable person standard in basic traditional negligence theory,

83
however, necessarily takes into account the circumstances with which the actor was
actually confronted when the accident occurred, including the reasonably perceivable
risk and gravity of harm to others and any special relationship of dependency between
the victim and the actor.
"The reasonable person standard provides sufficient flexibility, and leeway(余地), to
permit due allowance to be made… for all of the particular circumstances of the case
which may reasonably affect the conduct required” (Restatement [Second] of Torts §
283, comment c; [1).
-Standard of reasonable care
Time has also disclosed the inconsistency of the carrier's duty of extraordinary care
with the fundamental concept of negligence in tort doctrine.
"The whole theory of negligence presupposes some uniform standard of behavior.
Yet the infinite variety of situations which arise makes it impossible to fix definite rules
in advance for all conceivable human conduct. ... The standard of conduct which the
community demands must be an external and objective one, rather than the individual
judgment, good or bad, of the particular actor. ... The courts have dealt with this very
difficult problem by creating a fictional person ... the reasonable (person] of ordinary
prudence'" (Prosser and Keeton, Torts § 32, at 173-174 [5th ed.)).

A description from 3 F. Harper, F. James, Jr. & O. Gray, The Law of Torts § 16.2 at
432-34 (3d ed.2007):
“Now this reasonably prudent person is not infallible or perfect. In foresight, caution,
courage, judgment, self-control, altruism and the like he represents, and does not excel,
the general average of the community. He is capable of making mistakes and errors of
judgment, of being selfish, of being afraid- but only to the extent that any such
shortcoming embodies the normal standard of community behavior. On the other hand
the general practice of the community, in any given particular, does not necessarily
reflect what is careful. The practice itself may be negligent. "Neglect of duty does not
cease by repetition to be neglect of duty." Thus the standard represents the general level
of moral judgment of the community, what it feels ought ordinarily to be done, and not
necessarily what is ordinarily done, although in practice the two would very often come
to the same thing.
As the section heading from Harper, James, and Gray suggests, the authors
subsequently discuss the question whether reasonable care should be based on an
external standard or the defendant's own capacity for care. In fact, the reasonable care
inquiry raises two threshold questions：
The first is whether the salient(主要的) measuring stick of due care is the conduct
or the state of mind of the defendant.
The second if defendant's conduct is the determining factor is whether it is to be
measured against the defendant's own capacity or against an external standard.
Employing a reasonable person test suggests, of course, that defendant's conduct is the
critical determinant, and that the conduct is to be measured against external, "objective"
norms, rather than "subjective" ability. In adopting this two-fold external standard, the
legal system adheres to a definition of "fault" that is arguably at odds with our everyday

84
usage of the term. Is the approach justifiable?

Justice Holmes explored in an excerpt from The Common Law 108-10 (1881):
“In other words, the standards of the law are external standards, and, however much
it may take moral considerations into account, it does so only for the purpose of drawing
a line between such bodily motions and rests as it permits, and such as it does not. What
the law really forbids, and the only thing it forbids, is the act on the wrong side of the
line, be that act blameworthy or otherwise.”

总结：Not my perception of what is the standard of the Reasonable prudent person, but
the what the community would behave/feel under such circumstances.
Allow the standard to consider physical, not consider MENTAL.,
Consider age of children, not consider the old’s age
Consider the enhanced knowledge.

2.2.3 Physical disability

The driver will escape liability if his actions at the relevant time were wholly beyond
his control. The most obvious case is sudden unconsciousness. But if he retained some
control, albeit imperfect control, and his driving, judged objectively, was below the
required standard, he remains liable. His position is the same as a driver who is old or
infirm.
In my judgment unless the facts establish what the law recognizes as automatism the
driver cannot avoid liability on the basis that owing to some malfunction（机能失常）
of the brain his consciousness was impaired. Counsel for the plaintiff put the matter
accurately, as I see it, when he said "One cannot accept as exculpation(无罪) anything
less than total loss of consciousness."
The judge also accepted the alternative ground of liability based on defendant's
failure to realize, after one or two misadventures on the road, that he was unfit to
continue driving that day. Had he recognized his condition, he would have stopped
driving before he hit the plaintiff's car. Although not morally to blame for failing to
realize his inadequacy, the defendant was nonetheless responsible for failing to
“appreciate [the] proper significance" of his prior mishaps.

We do not consider mental or emotional limitations(e.g.有些人易怒..), still use the

same RPP standard.

We consider the physical disability, like blind/deaf or else, and don’t use RPP
standard. (Easy to find the standard)

85
2.2.4 Superior attributes

Section 12 of the Third Restatement provides that actors with "skills or knowledge
that exceed those possessed by most others ... are circumstances to be taken into account
in determining whether the actor has exercised reasonable care."

2.2.5 Children

We consider: Traditionally, children have been held to a blended standard one that
recognizes their age and abilities (consider each individual), but also invokes an
objective component: children must exercise the care that a reasonable child of their
actual age, intelligence, and experience would exercise.

Exception: IN Dellwo has been especially influential in automobile cases. There is

dispute about what activities should be categorized as "adult." When children
engage in adult activities, courts have applied adult standards. the majority
rule would hold a 15-year-old to an adult standard of reasonable care when
operating a motor vehicle with no other requirements.

2.2.6 Age

e.g. If a 93 person think really slow

2 possible standards:
use this one:1. RPP for everyone without taking account the age-related thing
2. RPP for the old who also think slow
It is inconsistent with the child’s age lower than the adult. (We consider the child’s age)

3 The Roles of Judge and Jury

3.1 In General

86
Baltimore & Ohio Railroad Co. v. Goodman（原告过铁路时被撞，没有停下
来看）

Supreme Court of the United States, 1927. 275 U.S. 66. 48 S.Ct. 24, 72 L. Ed. 167.
• MR. JUSTICE HOLMES delivered the opinion of the Court.
Who sued whom, -Plaintiff: Goodman
when, why, and for a suit brought by the widow and administratrix of Nathan Goodman against the
what? petitioner for causing his death by running him down at a grade crossing.
-Defendant: Baltimore & Ohio Railroad Co.
Nathan Goodman was killed when a truck he was driving was struck by a
train operated by Baltimore and Ohio R.R. (Baltimore) (defendant). Goodman
slowed his truck down to five or six miles per hour as he approached the
railroad tracks, but he did not hear a train coming. His view of any potential
trains was blocked by a nearby building. Goodman continued onto the tracks
and was struck by a train that was previously hidden from view. Goodman's
widow (plaintiff) brought suit against Baltimore for her husband’s death. At trial,
Baltimore argued that Goodman’s own negligence in failing to do all he could
to look for oncoming trains caused his death. The trial court found for
Goodman, and the court of appeals affirmed. The United States Supreme
Court granted certiorari.

What happened in - At the trial, the defendant asked the Court to direct a verdict for it, but the request, and
the lower courts? others looking to the same direction, were refused, and the plaintiff got a verdict and a
judgment which was affirmed by the Circuit Court of Appeals. 10 F.2d 58.
Where are we now Supreme Court of the United States
procedurally? (Diversity jurisdiction case)
What question is Does a plaintiff’s failure to get out of his car and look for oncoming trains at a
before the court? railroad track constitute contributory negligence that may operate as a
complete bar to recovery?
What is the court’s Yes. A plaintiff driver approaching a railroad track may be liable for contributory
answer to the negligence and thus completely barred from recovery if he fails to take
question before it? reasonable precautions, such as getting out of his car and looking for oncoming
trains, to guard against a risk of which he is aware.
Normally the question of whether due care was exercised is one for the jury.
However, if the required standard of conduct is clear, it may be articulated by
the courts without being submitted to the jury. It is clear that when a driver
approaches railroad tracks, there is a risk of coming into contact with a moving
train. Thus, it is incumbent upon the driver to take all reasonable precautions

87
 to ensure a train is not coming before crossing the tracks. If a driver’s view is
obstructed by a building, he cannot be fully sure that no train is approaching
unless he gets out of his car and looks. Nothing in the record indicates that
Goodman did all he could to make sure a train was not approaching before he
crossed the railroad tracks. He did not get out of his car and look, even though
his view was obstructed. Thus, Goodman is liable for contributory negligence
in causing his own death and is completely barred from recovery against
Baltimore. The decision of the lower courts is reversed.

What rule(s) does --1. Stop and listen 2. Get off of the car.
the court apply in
If a driver does not stop and look to see if a train is coming at a crossing, he
answering that
does so at his own risk.
question?
A plaintiff’s failure to get out of his car and look for oncoming trains at a
railroad track constitutes contributory negligence that may operate as a
complete bar to recovery.

How does the court -When a man goes upon a railroad track he knows that he goes to a place where he will be
reason its way to its killed if a train comes upon him before he is clear of the track. He knows that he must stop
conclusion? for the train, not the train stop for him. In such circumstances it seems to us that if a driver
cannot be sure otherwise whether a train is dangerously near he must stop and get out of
his vehicle, although obviously he will not often be required to do more than to stop and
look.
What does the Judgment reversed.
court do and/or
direct the lower
court to do? Who
wins?

Key points in this case:

1. It is true as said in Flannelly v. Delaware & Hudson Co., 225 U.S. 597, 603 that
the question of due care very generally is left to the jury. But we are dealing with a
standard of conduct, and when the standard is clear it should be laid down once for
all by the Courts.

Facts Repeated in practices: If this be the proper conclusion in plain cases, further
consequences ensue. Facts do not often exactly repeat themselves in practice; but
cases with comparatively small variations from each other do. A judge who has long
sat at nisi prius ought gradually to acquire a fund of experience which enables him to
represent the common sense of the community in ordinary instances far better than
an average jury. He should be able to lead and to instruct them in detail, even where
he thinks it desirable, on the whole, to take their opinion. Furthermore, the sphere in
which he is able to rule without taking their opinion at all should be continually
growing.

88
 2. Rule of law
1. Stop and listen 2. Get off of the car.

-Comparison between Goodman and Pokora

Pokora v. Wabash Railway Co.（原告穿过四条铁路，前两条阻碍视线，被主

线路火车撞了, 没法停下因为后面都是车）

Supreme Court of the United States, 1934. 292 U.S. 98, 54 S.Ct. 580, 78 L. Ed. 1149.
• MR. JUSTICE CARDOZO delivered the opinion of the Court.
Facts -The Plaintiff (Pokora) was driving his truck across four railroad tracks owned by
the defendant (Wabash Railway Co.). The plaintiff was struck by a train coming
on the main tracks after passing two switch tracks with boxcars. Plaintiff brings
suit of negligence against the defendant.
The Plaintiff (Pokora) was driving his truck across four railroad tracks owned by
the defendant (Wabash Railway Co.). There were two switch tracks and two main
tracks. There were box cars coming on the switch track and he moved past that
listened for another train heard nothing and proceeded across the main track.
While crossing the main track he was hit by a train going north. Based on the facts
there is no way Pokora knew a train was coming on the main track.
Wabash Railway Company (Wabash) (defendant) operated four railroad
tracks that came together at a single crossing. As John Pokora (plaintiff)
approached the tracks in his truck, he could not see the main track. He stopped,
tried to look and listen for a train, but heard nothing. He did not get out of his
truck to try to obtain a better view. As Pokora crossed the railroad tracks, he
was hit by an unseen train. Pokora brought suit against Wabash for negligence.
At trial, the trial court directed a verdict for Wabash on the ground that Pokora
displayed contributory negligence. The court of appeals affirmed. The United
States Supreme Court considered the case.

What happened in -Relying on Goodman, the court of appeals had upheld a directed verdict for the railroad.]
the lower courts?
Where are we now Supreme Court of the United States
procedurally?

89
What question is Is an individual approaching a railroad track in a private car required to stop, get out of
before the court? the car, and look for oncoming trains before crossing the track?
What is the court’s NO
answer to the No. When approaching a railroad track in a private car, an individual is not
question before it? required to stop, get out of his car, and look for oncoming trains before crossing
the track if doing so is not customary and may ultimately be more dangerous.

To the extent that Baltimore & Ohio R.R. v. Goodman, 275 U.S. 66 (1927),
holds otherwise, it is limited. Whether stopping, getting out, and looking for
trains is the required standard of care is ultimately a factual question for the
jury, not the judge, and must be determined based on the facts of each case. A
jury may well find that stopping and getting out of one’s car to adequately
survey railroad tracks may actually be more dangerous than just quickly driving
through the tracks. Sometimes, to properly view his surroundings, the driver
must actually drive onto the tracks to get the best view. In those circumstances,
it is certainly safer for the driver to remain in his car so he can quickly drive
away if danger approaches. In this case, Pokora is not liable for contributory
negligence for failing to stop, get out of his car, and look for oncoming cars as
doing so would ultimately be more dangerous. The decision of the lower courts
is reversed.
What rule(s) does An individual approaching a railroad track in a private car is not required to stop, get out
the court apply in of the car, and look for oncoming trains before crossing the track if doing so is not
answering that customary and may ultimately be more dangerous.
question?

Key points in this case:

1. Why reject Goodman?
-Discussion
No, the plaintiff is not contributory negligent for going forward on the train tracks
without stopping and getting out to see if another train was coming. The lower courts
heavily relied on Baltimore & Ohio Railroad Co. V. Goodman, where the court held
that it is reasonable for a man to get out of his car and look to see if a train is coming.
This court distinguishes and rejects the ruling of Goodman here. The court
rejects Goodman because it would not have been reasonable for Pokora under the
circumstances to get out of his vehicle and stop.
First, the crossing was busy, and secondly, there was a line of cars behind
Pokora. Therefore getting out in the middle of traffic after passing moving boxcars
is not reasonable and will likely be futile. If they were to see a train coming, it would
be too late to move themselves and the vehicle they’ve left behind. This court rejects
the assertion that Pokora was negligent and limited the holding of Goodman.

2. Under the Pokora view, is it ever proper to take cases from the jury on the issues
of negligence and contributory negligence? (不由 jury 决定，而是由 court 决定) :
不是很常见 Whether stopping, getting out, and looking for trains is the required

90
 standard of care is ultimately a factual question for the jury, not the judge, and
must be determined based on the facts of each case. A jury may well find that
stopping and getting out of one’s car to adequately survey railroad tracks may
actually be more dangerous than just quickly driving through the tracks.

Is Justice Cardozo's opinion consistent with his opinion in Adams?

Adams: no duty, no foreseeable accident.

Andrews v. United Airlines, Inc.（飞机上公文包掉下来砸到原告，没有乘客或

者员工正在打开）

United States Court of Appeals, Ninth Circuit, 1994.

24 F.3d 39.
• Before: FLETCHER, KOZINSKI and TROTT, CIRCUIT JUDGES.
• KOZINSKI, CIRCUIT JUDGE.
Who sued whom, -Plaintiff: Billie Jean Andrews.
when, why, and for During the mad scramble that usually follows hard upon an airplane's arrival at the gate,
what? a briefcase fell from an overhead compartment and seriously injured plaintiff Billie Jean
Andrews.
Her claim, rather, is that the injury was foreseeable, and the airline didn't prevent it.

Andrews (plaintiff) was a passenger onboard a flight operated by United Airlines

(United) (defendant). A briefcase was placed in the overhead bin above Andrews’
seat. After landing, an unknown person opened the bin and caused the briefcase
to fall on Andrews. Andrews suffered injury and brought suit against United for
negligence on the ground that the injury was foreseeable and the airline failed to
prevent it.
At trial, Andrews presented two expert witnesses. The first stated that one
hundred thirty-five similar incidents had occurred on United flights, and that United
had responded by adding a “warning announcement.”
The second witness testified that United could have taken additional steps to
prevent the danger to its passengers, such as retrofitting( 加 装 新 设 施 ) its
overhead bins with baggage nets or requiring passengers to store only lightweight
items overhead. This witness stated that such actions could be taken without
significant cost to United or increased inconvenience to its passengers. The
district court granted summary judgment for United, and Andrews appealed.
What happened in - The district court dismissed the suit on summary judgment, and we review de novo
the lower courts?

91
Where are we now United States Court of Appeals, Ninth Circuit
procedurally? Why in federal court?
: Diversity jurisdiction
What question is Whether the plaintiff(Ms. Andrews) is owed a higher duty of care on a common
before the court? carrier?
What is the court’s
Yes. A reasonable jury could find that United did not do all that human care, vigilance,
answer to the
and foresight reasonably could do under the circumstances. A common carrier owes
question before it?
a duty of utmost care and the vigilance of a very cautious person towards its
passengers, and is required to do all that human care, vigilance, and foresight
reasonably can do under all the circumstances.

However, safety precautions are not required by the common carrier unless they
can reasonably be exercised consistent with the character and mode of conveyance
operated and the practical operation of business. Given the testimony of Andrews’
witnesses, a reasonable jury could find that United did not adequately fulfill its
heightened duty to prevent harm to its passengers by simply offering a warning of
danger. As a common carrier, United must do all that human care, vigilance, and
foresight reasonably can do under all the circumstances provided it is consistent with
the mode of conveyance and reasonable from a business perspective.

Other airlines already retrofitted their planes with cargo nets in their overhead bins,
and thus there is no reason why United could not also do the same. A reasonable jury
could find that United was negligent in failing to do this, or could have found that United
acted prudently without these additional measures. Either way, this is a question of
fact for the jury. Summary judgment for United is inappropriate, and the decision of
the district court is reversed and remanded.

What rule(s) does

the court apply in
answering that A common carrier owes a duty of utmost care and the vigilance(警觉) of a
question? very cautious person towards [its] passengers.

A common carrier owes a duty of utmost care and the vigilance of a very
cautious person towards its passengers, and is required to do all that human care,
vigilance, and foresight（先见之明） reasonably can do under all the
circumstances.

Key points in this case:

1. How would the analysis differ if an airline employee had stowed the bag in the
compartment or had opened the compartment at the end of the trip?
第三人 liable

92
3.1.1 Connections between Andrews and Bethel.

1. both are transportation company.

2. extraordinary care for common carrier.
Bethel: don’t have the extraordinary care
This case: they have the extraordinary care.
3. Will the standard
Cannot make sure of the standard of care applied in every jurisdiction
:in this jurisdiction: extraordinary care
:in other jurisdiction: maybe not extraordinary care
Use the alternative answer to answer in the exam.

3.1.2 Extraordinary care for common carrier:

The parties agree that United Airlines is a common carrier(not private, that have
liability to 承载乘客，不得拒绝) and as such "owe[s] both a duty of utmost care and
the vigilance of a very cautious person towards [its] passengers." Acosta v. Southern
Cal. Rapid Transit Dist., 2 Cal. 3d 19, 27 (1970); []. Though United is "responsible for
any, even the slightest, negligence and is] required to do all that human care, vigilance,
and foresight reasonably can do under all the circumstances," [], it is not an insurer of
its passengers' safety, []. "IT]he degree of care and diligence which lit] must exercise is
only such as can reasonably be exercised consistent with the character and mode of
conveyance adopted and the practical operation of fits] business. ..."
- See Treadwell v. Whittier, 80 Cal. 574, 600 (1889) ("common carriers ... must keep
pace with science, art, and modern improvement"); Valente v. Sierra Ry., 151 Cal. 534,
543 (1907) (common carriers must use the best precautions in practical use "known to
any company exercising the utmost care and diligence in keeping abreast with modern
improvement in ... such precautions").
In the old time, transportation is safer than the present time.

3.1.3 Lower standard of care in emergency situations.

On occasion, legislatures have enacted statutes using such terms as gross negligence,
recklessness, or willfulness- and courts have occasionally developed such notions
themselves. One legislative example is statutes protecting physicians who provide
uncompensated emergency services (good Samaritan laws) that protect doctors from
negligence claims, requiring proof of recklessness or gross negligence in order to

93
 subject them to liability for damages. See, e.g., Frezzell v. City of New York, 21 N.E.3d
1028 (N.Y.2014), discussing a statute granting the driver of an authorized emergency
vehicle special driving privileges when involved in an emergency operation. We
consider these enhanced standards of culpability at p. 436 infra. Until then, we shall
concern ourselves with the basic negligence formulation of reasonable care. In this
regard, can the phrase "utmost care," used in Andrews, be squared with Bethel?

3.2 The Role of Custom

Trimarco v. Klein(被告没有替换浴室玻璃造成原告受伤，替换浴室玻璃是行业
惯例)

Court of Appeals of New York, 1982. 56 N.Y.2d 98, 436 N. E.2d 502, 451 N. Y.S. 2d 52.
• FUCHSBERG, JUDGE.
Who sued whom, -Plaintiff: Trimarco
when, why, and for was very badly cut when he fell through the glass door that enclosed his tub in defendant's
what? apartment building. "the glass door here no longer conformed to accepted safety
standards."
-Defendant: Klein
Defendant's managing agent admitted that, at least since 1965, it had been "customary for
landlords who had occasion to install glass for shower enclosures, whether to replace
broken glass or to comply with the request of a tenant or otherwise, to do so with 'some
material such as plastic or safety glass.' "
Vincent N. Trimarco (plaintiff) was injured when a glass bathtub shower door
enclosure shattered in his apartment while he was sliding the door open to exit
the tub. The door was made out of ordinary glass, however, Trimarco assumed
it was made out of tempered, shatterproof safety glass.
Trimarco sued Klein (defendant), the owner of the building for negligence. At
trial, Trimarco presented expert testimony that shatterproof glass doors have
been in common use since the early 1950s and that the door at issue did not
conform to accepted safety standards.
Additionally, at Klein’s managing agent testified that since 1965 it was
customary to replace glass shower doors with material such as plastic or safety
glass. Trimarco won a verdict in his favor. Klein appealed to the Appellate
Division, which reversed the decision of the trial court based on the law. The
Appellate Division found that even assuming a custom and practice to use
shatterproof glass, unless Klein had prior notice of the dangerousness of
ordinary glass either from Trimarco or from prior accidents, Klein had no duty
to replace the glass. Accordingly, the Appellate Division dismissed the
complaint. Trimarco appealed to the Court of Appeals of New York.

94
What happened in the The jury awarded plaintiff damages. A divided appellate division reversed the plaintiff's
lower courts? judgment. Even if there was "a custom and usage at the time to substitute shatterproof
glass" and even if that was a "better way or a safer method of enclosing showers," there
was no common-law duty on the defendant to replace the glass unless prior notice of the
danger had come to the defendant either from the plaintiff or by reason of a similar
accident in the building. Since plaintiff had made no such showing, the appellate division
majority reversed and dismissed the case.
Where are we now Court of Appeals of New York
procedurally?
What question is May a party be found liable for negligence for failing to make use of an accepted practice
before the court? or custom, when such failure is the proximate cause of one’s injuries?
What is the court’s Yes. Klein may be found liable for negligence for failing to make use of an accepted
answer to the question practice or custom. A party is liable for negligence when a custom or accepted practice is
before it? coupled with proof that such custom or accepted practice was ignored and that this
departure was the proximate cause of one’s injuries.
Here, the expert testimony and the testimony of Klein’s managing agent illustrate that
there was a custom and accepted practice of using shatterproof material to replace glass
shower doors. It is for the jury to decide if the custom and accepted practice of using
shatterproof materials had transformed material once considered safe, i.e. glass, into
material that could no longer be regarded as such. Accordingly, the order of the Appellate
Division is reversed and remanded for a new trial.
What rule(s) does the
court apply in
A party is liable for negligence when a custom or accepted practice is coupled
answering that
with proof that such custom or accepted practice was ignored and that this departure
question?
was the proximate cause of one’s injuries.

How does the court -custom and usage

reason its way to its -power of it
conclusion?
What does the court The court reversed the dismissal but ordered a new trial because the trial judge had
do and/or direct the erroneously admitted certain evidence that had hurt the defense.
lower court to do?
Who wins?

3.2.1 Prima facie presumption of negligence

D cannot to defeat, then there is a Prima facie presumption of negligence.

95
3.2.2 Custom

Which brings us to the well-recognized and pragmatic proposition that when "certain
dangers have been removed by a customary way of doing things safely, this custom
may be proved to show that [the one charged with the dereliction(玩忽职守)] has fallen
below the required standard" (Garthe v. Ruppert, 264 N.Y. 290, 296 [1934]). Such proof,
of course, is not admitted in the abstract. It must bear on what is reasonable conduct
under all the circumstances, the quintessential(典型的) test of negligence.

遵循 custom 可以被认为是 follow ordinary care，failure to meet the custom, is

evidence of negligence: “It follows that, when proof of an accepted practice is
accompanied by evidence that the defendant conformed to it, this may establish due
care [1, and, contrariwise, when proof of a customary practice is coupled with a
showing that it was ignored and that this departure was a proximate cause of the
accident, it may serve to establish liability (Levine v. Russell Blaine Co., 273 N.Y. 386,
389 [1937] [custom to equip dumbwaiter with rope which does not splinter]). Put more
conceptually, proof of a common practice aids in "formulating] the general expectation
of society as to how individuals will act in the course of their undertakings, and thus to
guide the common sense or expert intuition of a jury or commission when called on to
judge particular conduct under particular circumstances”.”

The source of the probative power of proof of custom and usage is described
differently by various authorities, but all agree on its potency. Chief among the
rationales offered is, of course, the fact that it reflects the judgment and experience and
conduct of many []. Support for its relevancy and reliability comes too from the direct
bearing it has on feasibility, for its focusing is on the practicality of a precaution in
actual operation and the readiness with which it can be employed (Morris, Custom and
Negligence, 42 Colum. L. Rev. 1147, 1148). Following in the train of both of these
boons is the custom's exemplification of the opportunities it provides to others to learn
of the safe way, if that the customary one be. [1 From all this it is not to be assumed
customary practice and usage need be universal. It suffices that it be fairly well defined
and in the same calling or business so that "the actor may be charged with knowledge
of it or negligent ignorance" [].

-一直被遵守的 custom 不一定正确： In Trimarco:“However, once its existence is

credited, a common practice or usage is still not necessarily a conclusive or even a
compelling test of negligence []. Before it can be, the jury must be satisfied with its
reasonableness, just as the jury must be satisfied with the reasonableness of the
behavior which adhered to the custom or the unreasonableness of that which did not.
[] After all, customs and usages run the gamut of merit like everything else. That is why
the question in each instance is whether it meets the test of reasonableness. As Holmes'
now classic statement on this subject expresses it, "what usually is done may be
evidence of what ought to be done, but what ought to be done is fixed by a standard of

96
reasonable prudence, whether it usually is complied with or not" ”

- Recall that in Carroll Towing, p. 47 supra, Judge Hand observed that it "may be that
the custom" in New York Harbor was not to have bargees on board ships at night and
that, if so, it may be that "the situation is one where custom should control." Why might
custom establish the standard of care? Although the court did not reach that question,
Judge Hand had stated the basic proposition about the role of custom in an earlier case,
The T.J. Hooper v. Northern Barge Corp., 60 F.2d 737 (2d Cir. 1932). In that case, a
tug plying the Atlantic coast sank in a storm, causing the loss of barges it was towing
and their cargoes. If the tug had had a radio, it would have learned about the storm in
time to avoid it. The tug owner sought to make the alleged lack of radios on most tugs
the standard of care. Judge Hand observed that some court pronouncements might be
read to say that general practice sets the standard. He continued:
Indeed in most cases reasonable prudence is in fact common prudence; but strictly
it is never its measure; a whole calling may have unduly lagged in the adoption of new
and available devices. It never may set its own tests, however persuasive be its usages.
Courts must in the end say what is required; there are precautions so imperative that
even their universal disregard will not excuse their omission. But here there was no
custom at all as to receiving sets; some had them; some did not; the most that can be
urged is that they had not yet become general. Certainly in such a case we need not
pause; when some have thought a device necessary, at least we may say that they were
right, and the others too slack.
Except in malpractice cases, courts have rejected the argument that a prevailing
custom defines the standard of care. The malpractice situation is discussed at p. 108
infra.

-Does B< PL make sense to the custom?

Yes, the community does the custom because it is B< PL(strong evidence). only
evidence. Because the entire industry may be seen unreasonable for them to follow the
custom.

Even if prevailing custom does not set the standard of care, adherence to, and
deviation from, custom may be important in deciding whether the actor behaved
reasonably. (refer to how custom operates)
A defendant who can prove that it has adhered to a prevailing custom may eliminate
what might otherwise be a jury question. In a classic article, Morris, Custom and
Negligence, 42 Colum.L.Rev. 1147 (1942), Professor Morris suggested that such proof
alerts the trial court to three main points：
First, if an industry adheres to a single way of doing something, the court may be
wary of plaintiff's assertion that there are safer ways to do that thing--and may insist
that plaintiff clearly demonstrate the feasibility of the asserted alternative.
Second, even if the plaintiff can show a feasible alternative, the fact that it may not
have been in use anywhere may suggest that it was not unreasonable for the defendant
to be unaware of the possibility.

97
 Third, the existence of a custom that involves large fixed costs may warn the court
of the social impact of a jury or court decision that determines the custom to be
unreasonable.

- Except in malpractice cases (no longer use the ordinary care doctrine), courts have
rejected the argument that a prevailing custom defines the standard of care. The
malpractice situation is discussed at p. 108 infra.

3.3 The Role of Statutes

Martin v. Herzog（弯道处相撞，被告没有保持右行，原告没有开灯，被告声
称共同过失）(negligence per se)

Court of Appeals of New York, 1920.

228 N.Y. 164, 126 N.E. 814.
• CARDOZO, J.
Who sued whom, The action is one to recover damages for injuries resulting in death. Plaintiff and her
when, why, and for husband, while driving toward Tarrytown in a buggy on the night of August 21, 1915, were
what? struck by the defendant's automobile coming in the opposite direction. They were thrown
to the ground, and the man was killed. At the point of the collision the highway makes a
curve. The car was rounding the curve when suddenly it came upon the buggy, emerging,
the defendant tells us, from the gloom. Negligence is charged against the defendant, the
driver of the car, in that he did not keep to the right of the center of the highway
Negligence is charged against the plaintiff's intestate, the driver of the wagon, in that
he was traveling without lights.

The decedent of Martin (plaintiff) was killed when a buggy he was driving
collided with an automobile driven by Herzog (defendant). A statute required all
buggies to be operated with headlights at night. At the time of the accident,
Martin’s decedent was violating this statute by not driving a buggy with
headlights. Martin brought suit against Herzog for negligence. Herzog countered
by stating that Martin’s decedent was liable for contributory negligence based on
his violation of the headlight statute. At trial, the jury held for Martin and found
Herzog liable for negligence. The appellate court reversed, and Martin appealed.
What happened in The jury found him delinquent and his victim blameless. The Appellate Division
the lower courts? reversed and ordered a new trial.
Where are we now Court of Appeals of New York
procedurally?
What question is Whether the failure to perform an act required by statute constitutes negligence per
before the court? se.

98
What is the court’s Yes. Herzog is not liable for damages because Martin’s decedent engaged in
answer to the contributory negligence by violating the headlight statute. An omission, or failure to
question before it? perform an act required by statute, constitutes negligence per se. When a statute
requires an affirmative action, the failure to perform that action constitutes a violation
of a legal duty. It is negligence per se. The violator may be liable for damages, but only
if the omission is the proximate cause of the injury.
Thus, with the headlight statute, Martin’s decedent will only be liable for contributory
negligence for failing to use headlights if that omission was the proximate cause of the
disaster. If Martin’s decedent had been using the headlights as required, Herzog likely
would have seen his buggy in the night and would have been able to avoid the fatal
accident. Thus, the decedent’s failure to use lights constitutes negligence per se. It
does not matter that Martin’s decedent is not the defendant. Violating a statute may
be contributory negligence just as it may be negligence.
Herzog is not liable for damages because Martin’s decedent engaged in
contributory negligence by violating the headlight statute. The decision of the appellate
court is affirmed.
What rule(s) does
the court apply in
Unexcused omission of statute required signals is negligence itself.
answering that
question?
不可原谅地遗漏法规要求的信号本身就是疏忽。

An omission, or failure to perform an act required by statute, constitutes negligence per

se.
How does the court Jurors have no dispensing power by which they may relax the duty that one traveler on the
reason its way to its highway owes under the statute to another. It is error to tell them that they have. The
conclusion? omission of these lights was a wrong, and being wholly unexcused was also a negligent
wrong.

What does the The order of the Appellate Division should be affirmed, and judgment absolute directed
court do and/or on the stipulation in favor of the defendant, with costs in all courts.
direct the lower
court to do? Who
wins?

3.3.1 This case: not follow the statute is considered as negligence.

（negligence per se）

- How the jury should consider the evidence Martin fail to have a light, how should the
jury consider?
“In the body of the charge the trial judge said that the jury could consider the absence
of light "in determining whether the plaintiff's intestate was guilty of contributory
negligence in failing to have a light upon the buggy as provided by law.

99
 The jury were again instructed that they might consider the absence of lights as some
evidence of negligence, but that it was not conclusive evidence.”

-contributory negligence

- (The judge takes the case away from the jury) We think the unexcused omission of the
statutory signals is more than some evidence of negligence. It is negligence in itself.
（negligence per se） (unless the defendant has the 5 excuses, even the jury find the
defendant is not liable for lack of evidence. And the judge will think that no reasonable
jury on these facts will find the defendant not liable, and the judge will overturn the
jury’s decision.) Lights are intended for the guidance and protection of other travelers
on the highway (Highway Law, sec. 329a). By the very terms of the hypothesis, to omit,
willfully or heedlessly, the safeguards prescribed by law for the benefit of another that
he may be preserved in life or limb, is to fall short of the standard of diligence to which
those who live in organized society are under a duty to conform.
negligence per se
法律上的当然过失 其字面含义为「行为本身的过失」，意指由于法律，尤其是
制定法或条例，明确规定了被告对原告应承担的义务，被告违反义务而对原告造
成损害，则属于无可争议的过失。因对法定义务的违反均属法律上的当然过失，
故该词亦作 legal negligence。
-Errors may not be ignored as unsubstantial when they tend to such an outcome. A
statute designed for the protection of human life is not to be brushed aside as a form of
words, its commands reduced to the level of cautions, and the duty to obey attenuated
into an option to conform.

Tedla v. Ellman（两个捡垃圾人在路的边缘走被车撞，但是只能走在那边，
因为车少）

Court of Appeals of New York, 1939. 280 N.Y. 124, 19 N. E. 2d 987.

• LEHMAN, J.
Who sued whom, Plaintiff: Tedla
when, why, and for -Two junk collectors, brother and sister, were walking eastward along Sunrise Highway, a
what? major route connecting New York City and Long Island. There were no sidewalks, and
they could not use the grass center strip because they were transporting junk in baby
carriages that would have gotten mired in the soft ground.
-It was Sunday night and "very heavy traffic" was heading westbound back to New York
City but there were "very few cars going east." The two were walking eastward on the
edge of the eastbound lane when they were hit from behind by defendant's car.
-Defendant: Ellman

100
 Anna Tedla and her brother (plaintiffs) were walking along a highway after dark.
They were walking along the right-hand side of the road. The traffic along the right-
hand side of the road was very light that evening. The traffic along the left-hand side
of the road was heavy. A state statute provided that pedestrians walking along the
highway must walk along the left-hand side of the road so that vehicles would pass
them on their right. Hellman (defendant) struck Tedla and her brother while driving a
vehicle owned by Ellman (defendant). Tedla was injured, and her brother was killed.
Tedla brought suit on her and her brother’s behalf. The defendants asserted that Tedla
and her brother were in violation of the state statute, which constituted contributory
negligence. The case was tried on the merits.
The trial court submitted to the jury whether a violation of the statute proximately
caused the accident. The jury found that the sole cause of the accident was Ellman's
negligence. The appellate division affirmed the trial court's judgment, and the
defendants appealed to the New York Court of Appeals.
What happened in The trial judge entered judgment on a plaintiffs' verdict and the appellate division
the lower courts? affirmed. On this appeal the defendant does not contest his negligence but argues that
both pedestrians were contributorily negligent as a matter of law.
Where are we now Court of Appeals of New York
procedurally?
What question is Whether a pedestrian is liable at fault if he fails without good reason to observe the
before the court? statutory rule of conduct?
Is a person who violates a statute governing conduct always negligent per se?
What is the court’s Yes
answer to the No. A person who violates a statute governing conduct is not always
question before it? negligent per se. If a statute defines the standard of care, failure to follow that
statute is negligence as a matter of law. However, if a statute merely codifies
the common law or regulates conflicting rights in a manner designed to promote
public convenience and safety, then failure to follow that statute for good cause
is not negligence unless there is clear language to the contrary.
In this case, it is reasonably assumed that the statute is designed to protect
pedestrians walking along the road by directing them to walk so that they can
better see potentially dangerous traffic. This statute does not define the
standard of care; it merely regulates rights in order to promote public safety. It
cannot be reasonably assumed that the legislature intended pedestrians to
follow this statute if, as here, it would put them in peril of walking nearer to a
much busier section of the roadway. Because of the heavier traffic along the
left-hand side of the roadway, Tedla and her brother had good cause to walk
along the right-hand side of the roadway. Accordingly, the judgment in favor of
Tedla and her brother is affirmed.
What rule(s) does
When adherence to a statute would defeat the overall purpose of the statute, the
the court apply in
person in violation of the statute is not considered to be acting negligently.
answering that
question?
A person who violates a statute governing conduct is not always negligent per se.

101
How does the court Even under that construction of the statute, a pedestrian is, of course, at fault if he fails
reason its way to its without good reason to observe the statutory rule of conduct. The general duty is
conclusion? established by the statute, and deviation from it without good cause is a wrong and the
wrongdoer is responsible for the damages resulting from his wrong. []

What does the -In each action, the judgment should be affirmed, with costs.
court do and/or -We may assume reasonably that the Legislature directed pedestrians to keep to the left of
direct the lower the center of the road because that would cause them to face traffic approaching in that
court to do? Who lane and would enable them to care for their own safety better than if the traffic approached
wins? them from the rear. We cannot assume reasonably that the Legislature intended that a
statute enacted for the preservation of the life and limb of pedestrians must be observed
when observance would subject them to more imminent danger.

Key points in this case:

1.Facts：1 It was Sunday night and "very heavy traffic" was heading westbound back
to New York City but there were "very few cars going east."
2The two were walking eastward on the edge of the eastbound lane（朝西
走）when they were hit from behind by defendant's car.

2. Failure to follow the statute, only evidence of negligence.

3. Licensing
Licensing. Licensing statutes have generally not been used to set standards of care.
The explanation has been that the purpose of such a statute is to protect the public
from actions performed by unskilled persons. If that is the purpose, then plaintiff
must prove that the defendant lacked the required skill-in effect proving negligence.
The most common example is a motor vehicle accident involving an unlicensed
driver. The lack of a license is irrelevant to the tort claim-whether the unlicensed
driver is the plaintiff or the defendant.
In 1971, the rule of Brown u. Shyne was changed by statute. CPLR section
4504(d) provides that in any action for personal injuries against a person not
authorized to practice medicine "the fact that such person practiced medicine without
being so authorized shall be deemed prima facie evidence of negligence."

102
 4. Compliance
The question often poses a federalism issue; in particular, whether compliance with
federal regulations should, as a matter of judicial deference(遵从), insulate the
defendant from common law tort liability.
Judicial nondeference(不遵从)

3.3.2 This case: not follow the statute is not considered as negligence.

- RPP ignore the statue, if the reasonably believe not follow the statute is safer, so the
judge should not instruct the jury
It does not prescribe additional safeguards which pedestrians must provide for the
preservation of the life or limb or property of others, or even of themselves, nor does it
impose upon pedestrians a higher standard of care. What the statute does provide is
rules of the road to be observed by pedestrians and by vehicles, so that all those who
use the road may know how they and others should proceed, at least under usual
circumstances. A general rule of conduct-and, specifically, a rule of the road--may
accomplish its intended purpose under usual conditions, but, when the unusual occurs,
strict observance（遵守） may defeat the purpose of the rule and produce catastrophic
results.

- Distinction between rules related to the safeguard and rules not related to the safeguard
That is the rule established by the courts and "by the very terms of the hypothesis"
the rule applies where the Legislature has prescribed safeguards "for the benefit of
another that he may be preserved in life or limb."

-Even under that construction of the statute, a pedestrian is, of course, at fault if he fails
without good reason to observe the statutory rule of conduct. The general duty is
established by the statute, and deviation from it without good cause is a wrong and the
wrongdoer is responsible for the damages resulting from his wrong.

3.3.3 5 个 excuse

-Section 15 of the Restatement Third addresses excused violations: (五个 excuse)

An actor's violation of a statute is excused and not negligent if:
(a) the violation is reasonable in light of the actor's childhood, physical disability, or
physical incapacitation;
(b) the actor exercises reasonable care in attempting to comply with the statute;
(Not undermines the purpose of negligence per se.)
(c) the actor neither knows nor should know of the factual circumstances that render
the statute applicable;(no reasonable expectation for you to know)

103
(d) the actor's violation of the statute is due to the confusing way in which the
requirements of the statute are presented to the public;
(e) the actor's compliance with the statute would involve a greater risk of physical
harm to the actor or to others than noncompliance. (As a reasonable person would
not comply the statute)

3.3.4 Statutory Purpose (should be related to the harm)

Courts have long been unwilling to use statutory violations in cases in which the harm
that occurred was different from the harm that the legislature apparently was
seeking to prevent.
Although the statute had been violated, that violation "does not establish liability if
the statute is intended to protect against a particular hazard, and a hazard of a different
kind is the occasion of the injury."
如果法规的目的是防止某种特定的危险，而造成伤害的场合是另一种危险，则
这种违反行为不构成责任”。
e.g. Parent lives in a state that has a statute prohibiting any business from
operating on Sunday. In reliance on the statute, Parent allows Son to
play in the driveway of Warehouse on a Sunday; however, Warehouse is
operating its trucks that day in violation of the statute and one of its
trucks injures Son. Parent sues Warehouse relying solely on the claimed
violation of the statute. Warehouse admits the violation but asks the
court to dismiss Parent’s claim. How should the court rule?
(A) Deny Warehouse’s motion.

(B) Grant Warehouse’s motion if the state has a negligence per se rule.

(C) Grant Warehouse’s motion if Warehouse’s violation of the statute is justified.

(D) Grant Warehouse’s motion.

Correct because the purpose of the statute is not to protect this class of plaintiff from
this type of harm. Most likely it is to provide a uniform “day of rest” for
employees.

4 Providing Negligence with Circumstantial Evidence

Problems of proof occur at virtually every stage of the negligence action. In this
section, we focus on the plaintiff's burden of proving that the defendant's conduct fell

104
 below the standard of reasonable care. This, in turn, involves proving what the
defendant actually did or did not do and, at times, the unreasonableness of such behavior.

The most convincing type of proof is usually documentary or "real" evidence: the
broken bottle, the flight recorder in an airplane accident, the "smoking gun" document,
or a videotape of an automobile crash. Such evidence, however, is available in only a
few personal injury accidents. A "lucky' plaintiff will be able to present photographs of
skid marks or other visible evidence that might serve almost as well as "real" evidence.
The plaintiff may also use "direct" evidence: eyewitnesses may testify. Whether the
witness describes skid marks or the crash itself, the party hurt by such testimony may
seek to undermine it by cross-examination in an effort to show erroneous recall of the
facts or to cast doubt on the witness's credibility. (e.g. expert evidence) When
documentary and photographic proof are used, accuracy and credibility are less readily
challenged. In practice, however, most evidence is circumstantial.

Negri v. Stop and Shop,

Inc.(原告摔倒在全是未清扫的婴儿用品瓶罐的地上，有充足时间让被告发现并清扫)
Court of Appeals of New York, 1985.
65 N.Y.2d 625, 480 N. E.2d 740, 491 N.Y.S.2d 151.
• MEMORANDUM.
Facts Plaintiff: Negri
Defendant: Stop and Shop, Inc.
The record contains some evidence tending to show that defendant had constructive
notice of a dangerous condition which allegedly caused injuries to its customer. There was
testimony that the injured plaintiff, while shopping in defendant's store, fell backward, did
not come into contact with the shelves, but hit her head directly on the floor where "a lot
of broken jars" of baby food lay; that the baby food was "dirty and messy"; that a witness
in the immediate vicinity of the accident did not hear any jars falling from the shelves or
otherwise breaking during the 15 or 20 minutes prior to the accident; and that the aisle had
not been cleaned or inspected for at least 50 minutes prior to the accident. indeed, some
evidence was adduced that it was at least two hours.
Procedural History [After a plaintiff's verdict, the trial court entered judgment for the plaintiff in a slip and
fall case. The Appellate Division reversed and dismissed the complaint.]
Issue Whether it is a sufficient circumstantial evidence?
Reasoning Yes
-the circumstantial evidence was sufficient to permit the jury to draw the necessary
inference that a slippery condition was created by jars of baby food which had fallen and
broken a sufficient length of time prior to the accident to permit defendant's employees to
discover and remedy the condition.
Dismissal of a plaintiff’s negligence claim is inappropriate if there is evidence
that the defendant had constructive notice of a dangerous condition that
allegedly caused the plaintiff's injury and failed to remedy the condition.

105
 In examining the sufficiency of a plaintiff’s complaint, a court must view the
evidence in the light most favorable to the plaintiff and resolve any inference
drawn from the evidence in favor of the plaintiff. If the record contains some
evidence that is legally sufficient to support the plaintiff’s claims, then the
plaintiff has made a prima facie case sufficient to withstand dismissal of the
complaint.
In this case, there is some evidence in the record to support Negri’s claim
that Stop and Shop had constructive notice of a dangerous condition within its
store. On the floor where Negri slipped were broken jars of baby food, which
were dirty and messy. A nearby witness did not hear anything fall or break in
the 15 to 20 minutes before Negri fell, and the area had not been cleaned or
inspected for between 50 minutes and two hours prior to the accident.
A jury could infer from this circumstantial evidence that the floor where Negri
fell was slippery for a long enough time to allow Stop and Shop employees to
discover and remedy the danger. The appellate court therefore erred in
dismissing the complaint. If the appellate court concludes that the jury's verdict
is against the weight of the evidence, the court may not dismiss the plaintiff's
complaint; rather, the court is limited to ordering a new trial. Accordingly, the
appellate court's order of dismissal is reversed, and the matter is remanded to
that court for further proceedings.
Holding Yes
Plaintiffs having made out a prima facie case, it was error to dismiss the complaint. If
the jury verdict be deemed by the Appellate Division to be against the weight of the
evidence, that court's power is limited to ordering a new trial.
Rule
Circumstantial evidence that a defendant had constructive notice of a dangerous
condition that allegedly injured its customers and did not remedy it can be enough
to make out a prima facie case of negligence.

Dismissal of a plaintiff’s negligence claim is inappropriate if there is evidence

that the defendant had constructive notice of a dangerous condition that
allegedly caused the plaintiff's injury and failed to remedy the condition.

Key Points in this case:

1. The circumstantial evidence was sufficient to permit the jury to draw the
necessary inference that a slippery condition was created by jars of baby food which
had fallen and broken a sufficient length of time prior to the accident to permit
defendant's employees to discover and remedy the condition.

4.1 Constructive notice and Actual notice

Constructive notice: if dangerous condition persists for a long time, operate in the aisle,
you should notice that and you have the duty to ensure the safety, if you fails notice the
danger, that you should have notice it.

106
 Actual notice: the customer sees the jar and tell the manager.

Gordon v. American Museum of Natural History(上楼梯时被白色蜡纸绊倒)

Court of Appeals of New York, 1986

67 N.Y.2d 836, 492 N. E. 2d 774, 501 N.Y.S.2d 646.
• MEMORANDUM.
Facts Plaintiff: Gordon
Defendant: American Museum of Natural History
He testified that as he descended the upper level of steps, he slipped on the third step and
that while he was in midair, he observed a piece of white, waxy paper next to his left foot.
He alleges that this paper came from the concession stand that defendant had contracted to
have present and which was located on the plaza separating the two tiers of steps and that
defendant was negligent insofar as its employees failed to discover and remove the paper
before he fell on it.

Plaintiff was walking down the entrance stairs from the American Museum of
Natural History when he fell and was injured. He claimed that he saw a piece of white,
waxy paper near his foot as he fell. He further alleged that the paper came from a
nearby concession stand that Defendant contracted to have present. Plaintiff sued
Defendant, claiming that Defendant’s employees were negligent in not discovering
and removing the paper before Plaintiff slipped on it. The case was submitted to the
jury on the theory that Defendant had either actual or constructive notice of the
dangerous condition. The jury found for Plaintiff and the appellate division affirmed.
Defendant appealed.

Procedural The case was submitted to the jury on the theory that defendant had either actual or
History constructive notice of the dangerous condition presented by the paper on the steps. The jury
found against defendant on the issue of liability. A divided Appellate Division affirmed and
granted defendant leave to appeal on a certified question.
Issue Issue.
Does constructive notice require that a dangerous condition be visible and
apparent and exist long enough before the accident to allow defendant to discover
and remedy it?

Reasoning
Holding Held.
(Memorandum) Yes. To form constructive notice, a dangerous condition must
be visible and apparent and must exist long enough before the accident to allow

107
 defendant to discover and remedy it. Here, there is no evidence that anyone,
including Plaintiff himself, saw the wax paper before the accident. Plaintiff did not
describe the wax paper as dirty or worn, indicating it had been in place for some
time. Neither general awareness of possible litter nor the fact that Plaintiff saw other
papers on another portion of the steps ten minutes before his accident is legally
sufficient to have put Defendant constructively on notice of the dangerous condition.
There is similarly no evidence of Defendant’s actual notice of the condition. The
order of the Appellate Division should be reversed.

[quimbee] An issue should not be submitted to the jury if there is no evidence

in the record to support it. Here, there was no evidence in the record to support
Gordon’s claim that the Museum had actual notice or constructive notice of a
dangerous condition created by the paper on the Museum’s steps. There is no
evidence that anyone was aware of the piece of paper on which Gordon slipped.
In contrast to the facts of Negri v. Stop and Shop, Inc., 480 N.E.2d 740 (1985),
there is no evidence indicating that the paper was present on the steps for a long
enough time to allow it to be discovered and removed, such as the paper being
worn or dirty. The fact that Gordon saw other pieces of paper on another portion
of the steps prior to his fall, or the idea that the Museum might generally be aware
that litter exists, are not sufficient to support a claim that the Museum had
constructive notice of the piece of paper on which Gordon slipped. Because there
is no evidence in the record that can support Gordon’s claim of actual or
constructive notice, the Appellate Division’s decision should be reversed, and the
complaint dismissed.

Rule

To form constructive notice, a dangerous condition must be visible and

apparent and must exist long enough before the accident to allow defendant to
discover and remedy it.

Key points in this case:

1.The defect in plaintiff's case here, however, is not an inability to prove the causation
element of his fall but the lack of evidence establishing constructive notice of the
particular condition that caused his fall.
2. Business practice rule (or "mode of operation" rule)
Kelly v. Stop & Shop, Inc., 918 A.2d 249 (Conn.2007). Under the rule, a customer
need not establish actual or constructive notice when the business practice of the
store-in this case a self-service salad bar provided a continuous and foreseeable risk
of harm to customers.

108
 4.2 Constructive notice

To constitute constructive notice, a defect must be visible and apparent and it must
exist for a sufficient length of time prior to the accident to permit defendant's employees
to discover and remedy it (Negri v. Stop & Shop [ ]). The record contains no evidence
that anyone, including plaintiff, observed the piece of white paper prior to the accident.
Nor did he describe the paper as being dirty or worn, which would have provided some
indication that it had been present for some period of time (cf. [Negri] (broken baby
food jars were dirty).
e.g. numerous complaints, record of falling evidence. Can be sufficient to constitute
constructive notice.

4.3 Why succeed in Negri, not succeed in Gordon?

In Negri, is sufficient to constitute a constructive notice.

“The record contains some evidence tending to show that defendant had constructive
notice of a dangerous condition which allegedly caused injuries to its customer.”
In Gordon, not sufficient constitute a constructive notice. There is no evidence to go to
jury, even no prima facie evidence.

Byrne v.

Boadle(原告在路上被面粉砸，失忆了有三个目击者，原告不用证明被告是过失)

Court of Exchequer, 1863

2 H. & C. 722, 159 Eng. Rep. 299.
Facts Plaintiff: Byrne
The plaintiff said: "On approaching Scotland Place and defendant's shop, I lost all
recollection（记忆力）. I felt no blow. I saw nothing to warn me of danger. s.) "I saw the
path clear. I did not see any cart opposite defendant’s.”
The present case upon the evidence comes to this, a man is passing in front of the premises
of a dealer in flour, and there falls down upon him a barrel of flour.
Defendant: Boadle
Byrne (plaintiff) alleged that as he was passing along a highway in front of a
building owned by Boadle (defendant), he was struck and badly injured by a
barrel of flour that was being lowered from a window above. Byrne brought suit
against Boadle, a dealer of flour, for negligence. The trial court found no
evidence of Boadle’s negligence, and granted judgment for Boadle.
On appeal, Byrne argued that the presumption is that Boadle’s servants were
109
 handling the flour when it fell and injured Byrne, and if they were not, Boadle
has the burden of proving this. The court of appeals held for Byrne, and Boadle
appealed.
Procedural History -At the trial before the learned Assessor of the Court of Passage at Liverpool, the evidence
adduced on the part of the plaintiff was as follows.
- It was submitted, on the part of the defendant, that there was no evidence of negligence
for the jury. The learned Assessor was of that opinion, and nonsuited the plaintiff,
reserving leave to him to move the Court of Exchequer to enter the verdict for him with
£50 damages, the amount assessed by the jury.
Issue Whether negligence may ever be presumed from the mere fact of an accident.
Reasoning Prima facie evidence of negligence
Holding Yes. Barrels typically do not fall out of windows without some sort of accompanying
negligence. Thus, negligence on behalf of Boadle is presumed. Boadle presented no
evidence rebutting this presumption, and the judgment for Byrne is affirmed.
If injury of a type that does not typically occur without negligence does occur,
negligence is presumed from the mere fact of the occurrence. The plaintiff does not have
the initial burden of showing that the act could not occur without negligence.
However, if any facts surrounding the incident occur that are inconsistent with negligence,
it is the defendant’s responsibility to prove them. Barrels of flour typically do not roll
out of the top stories of warehouses without some sort of negligence. When something
like this happens and injures someone, it is absurd to require the injured person to procure
witnesses to testify that some type of negligence occurred. A barrel fell out of Boadle’s
warehouse and injured Byrne. Negligence on the part of Boadle can be presumed without
any additional testimony from Byrne. If any exculpatory facts exist, Boadle has the burden
of proving them at trial. The decision of the court of appeals is affirmed.
Rule

When a person is harmed by an unknown source that is typically the result of

negligence, that is enough to substantiate a prima facie case of negligence.

If injury of a type that does not typically occur without negligence does
occur, negligence is presumed from the mere fact of the occurrence.

4.4 Prima facie evidence of negligence

prima facie evidence

表面证据；初步证据 指表面上充分有效的证据，在法律上足以证明当事人的请
求或答辩所依据的事实。但对方当事人可以提出反证加以反驳，在此情况下，审
判人员应对各种证据进行综合比较与权衡。That the
So in the building or repairing of a house, or putting pots on the chimneys, if a person
passing along the road is injured by something falling upon him, I think the accident
alone would be prima facie evidence of negligence. Or if an article calculated to cause

110
 damage is put in a wrong place and does mischief, I think that those whose duty it was
to put it in the right place are prima facie responsible, and if there is any state of facts
to rebut the presumption of negligence, they must prove them.
I think it apparent that the barrel was in the custody of the defendant who occupied
the premises, and who is responsible for the acts of his servants who had the control of
it; and in my opinion the fact of its falling is prima face evidence of negligence, and the
plaintiff who was injured by it is not bound to show that it could not fall without
negligence, but if there are any facts inconsistent with negligence it is for the defendant
to prove them.

4.5 (1/2) Res ipsa loquitur (and three conditions)

〈拉〉事情本身说明 一项证据规则，即在过失造成伤害的案件中，推定被告有
过失。适用此项规则，必须：１造成伤害的工具(器械)由被告控制或管理；２按
照当时的环境，根据一般的经验和常识，如果不是被告的疏忽大意，事故不会发
生；３原告所受伤害是事故造成的。被告如要推翻此项推定，必须提出相反的证
据。(→exclusive control)
Proser: The doctrine of res ipsa loquitur has three conditions: "
(1) the accident must be of a kind which ordinarily does not occur in the absence of
someone's negligence;
(2) it must be caused by an agency or instrumentality within the exclusive control of
the defendant;
(3) it must not have been due to any voluntary action or contribution on the part of
the plaintiff." (Prosser, Torts, p. 295.) It is applied in a wide variety of situations,
including cases of medical or dental treatment and hospital care.
When the judge should give jury of the instrun

McDougald v. Perry（原告被 被告车固定的闲置轮胎砸伤挡风玻璃）

Supreme Court of Florida, 1998

716 So.2d 783
• WELLS, JUSTICE.
Facts Plaintiff: McDougald
Plaintiff was driving behind a tractor-trailer being driven by Perry. As the tractor-trailer
went over some railroad tracks the 130pound spare tire came out of its cradle underneath
the trailer and fell to the ground. The trailer's rear tires then ran over the spare, causing the
spare to bounce into the air and crash into the windshield of plaintiff's Jeep Wagoneer.
Defendant: Perry
The chain was attached to the body of the trailer with a nut and bolt.

111
 performed a pre-trip inspection
did not check every link in the chain.
Perry opined that one of the links had stretched and slipped from the nut which secured
it to the trailer.
McDougald (plaintiff) was driving on the highway behind a truck driven by
Perry (defendant) when a spare tire attached underneath Perry’s truck came
loose and crashed into the windshield of McDougald’s car. McDougald brought
a negligence suit.
The evidence at trial showed that the spare tire had been placed in a cradle
beneath the truck and held in place with a chain. Instead of the chain being
attached with a latch as originally designed, the chain was attached with a nut
and bolt at the time of the accident. It appeared that the accident occurred when
one of the chain's links came apart from the nut. The trial court instructed the
jury on res ipsa loquitur, and the jury returned a verdict in favor of McDougald.
The appellate court reversed. McDougald appealed
Procedural History -The judge instructed the jury on the doctrine of res ipsa loquitur. The jury subsequently
returned a verdict in McDougald's favor.
-In concluding that it was reversible error for the trial court to give the res ipsa loquitur
instruction, the Second District determined that "McDougald failed to prove that this
accident would not, in the ordinary course of events, have occurred without negligence by
the defendants.”
Issue Whether it is McDougald’s failure of reasonable care by the person or entity in control of
the injury producing object or instrumentality the accident would not have occurred.

May the mere fact of an accident be sufficient to maintain a claim of negligence?

Reasoning Yes. Under the doctrine of res ipsa loquitur, the mere fact of an accident
occurring, without more, may be sufficient to maintain a claim of negligence. In
certain cases, an accident could not have occurred without some kind of
negligence. The case at bar is such a case. A spare tire likely would not detach
from a truck without some negligence on the part of the driver or the truck
owner. Therefore, McDougald need not present any other evidence; the mere
fact that the tire detached and struck his car is enough to maintain his claim of
negligence against the truck driver. The decision of the appellate court is
vacated, and the case is remanded to enter judgment for McDougald.
Holding YES
[The district court's decision was reversed and the case remanded for consideration of
remaining issues.]
Rule 见下
Res Ipsa Loquitur applies to rare occurrences where the accident itself is evidence
upon which to base an inference of negligence.
The mere fact of an accident occurring may be sufficient to maintain a claim of
negligence.

Key points in this case:

112
1. This is another res ipsa loquitur case.

2. Spoliation(毁灭) of Evidence (不讲/考，evidence course 会讲)

Some courts that have considered the question have recognized a tort called
"spoliation of evidence" with complex issues about whether the claim covers both
intentional and negligent destruction. E.g., Oliver v. Stimson Lumber Co., 993 P.2d
11 (Mont. 1999).
California rejected the action on the grounds that procedural sanctions may be
imposed during the original trial- such as an instruction to the jury that it may draw
an adverse inference against the spoliator- and because of a concern about endless
litigation. See Cedars-Sinai Medical Center v. Superior Court, 954 P.2d 511(Cal.
1998) (rejecting action against party for intentional destruction).
Sanctions and adverse inferences are unavailable, however, when third parties
destroy or lose evidence. The court recognized a third-party negligent spoliation
claim, conditioned on:
1) actual knowledge of "pending or potential litigation" on the part of the spoliator;
2) a voluntary undertaking, agreement, or specific request establishing a duty; and
3) evidence that the missing evidence was vital to the underlying claim.

3.Is there an exclusive control?

YES.

4.But if there is a latent(潜在的) defect to destroy the exclusive control?

Maybe to sue the truck company…

5. Some court can allow you to claim negligence and bring the case under the res ipsa
loquitur.
This court’s view: “An injury standing alone, of course, ordinarily does not
indicate negligence. The doctrine of res ipsa loquitur simply recognizes that in rare
instances an injury may permit an inference of negligence if coupled with a sufficient
showing of its immediate, precipitating(突然的) cause.
Goodyear and our other cases permit latitude in the application of this common-
sense inference when the facts of an accident in and of themselves establish that but
for the failure of reasonable care by the person or entity in control of the injury
producing object or instrumentality the accident would not have occurred. On the
other hand, our present statement is not to be considered an expansion of the
doctrine's applicability. We continue our prior recognition that res ipsa loquitur
applies only in "rare instances.”

The following comments in section 328D of Restatement (Second) of Torts (1965)

capture the essence of a proper analysis of this issue:
C. Type of event. The first requirement for the application of the rule stated in this
Section is a basis of past experience which reasonably permits the conclusion that
such events do not ordinarily occur unless someone has been negligent. There are

113
 many types of accidents which commonly occur without the fault of anyone. The fact
that a tire blows out, or that a man falls down stairs is not, in the absence of anything
more, enough to permit the conclusion that there was negligence in inspecting the
tire, or in the construction of the stairs, because it is common human experience that
such events all too frequently occur without such negligence. On the other hand
there are many events, such as those of objects falling from the defendant's premises,
the fall of an elevator, the escape of gas or water from mains or of electricity from
wires or appliances, the derailment of trains or the explosion of boilers, where the
conclusion is at least permissible that such things do not usually happen unless
someone has been negligent. To such events res ipsa loquitur may apply.
D. Basis of conclusion. In the usual case the basis of past experience from which
this conclusion may be drawn is common to the community, and is a matter of general
knowledge, which the court recognizes on much the same basis as when it takes
judicial notice of facts which everyone knows. It may, however, be supplied by the
evidence of the parties; and expert testimony that such an event usually does not
occur without negligence may afford a sufficient basis for the inference.

4.5 (2/2) Res ipsa loquitur (2 elements)

如果考试中没有提到，就用 2 elements 的 res ipsa loquitur

(Use the two elements doctrine in this quarter:
1 instrumentality causing the injury under the exclusive control and
2 something that would not happen more likely than not without negligence)
注意：1. most states allow a res ipsa instruction even if Defendant can offer some
evidence of negligence.
2. [Jury instruction]: The doctrine of res ipsa loquitur allows you, the jury, to
find that the defendant is negligent, even where there is no direct evidence of negligence
presented, so long as you believe it is more likely than not (较有可能/多半可能)that
the accident could not have happened unless the defendant was negligent.
The applicability of the doctrine of res ipsa loquitur in Marrero v. Goldsmith, 486
So.2d 530 (Fla. 1986); [1. In Marrero, we stated:
Res ipsa loquitur is a Latin phrase that translates "the thing speaks for itself." Prosser
and Keeton, Law of Torts § 39 (5th ed. 1984). It is a rule of evidence that permits, but
does not compel, an inference of negligence under certain circumstances. " The doctrine
of res ipsa loquitur is merely a rule of evidence. Under it an inference may arise in aid
of the proof." [] In Goodyear Tire & Rubber Co. v. Hughes Supply, Inc., 358 So.2d
1339 (Fla.1978), we explained the doctrine as follows:
It provides an injured plaintiff with a common-sense inference of negligence where
direct 1 proof of negligence is wanting, provided certain elements consistent with
negligent behavior are present. 2 Essentially the injured plaintiff must establish that the
instrumentality(工具/手段/中介) causing his or her injury was under the exclusive
control of the defendant, and that the accident is one that would not, in the ordinary

114
 course of events, have occurred without negligence on the part of the one in control.

Ybarra v. Spangard（原告就医，手术过程中被多个医生护士操作

找不到确切是哪一个⚠只有在找不到确切是哪一个的情况下才行，这种情况就不行：“The

mix-up was discovered six months later”）

Supreme Court of California, 1944.
25 Cal.2d 486, 154 P. 2d 687.
• GIBSON, C.J.
Facts Plaintiff: Ybarra
This is an action for damages for personal injuries alleged to have been inflicted on
plaintiff by defendants during the course of a surgical operation.
Defendant: many people

Procedural History The trial court entered judgments of nonsuit as to all defendants and plaintiff appealed.
Issue Whether plaintiff can claim res ipsa loquitur? YES
Whether several defendants matter? NO
Whether several instrumentalities matter? NO

Whether an action for damages based on the doctrine of res ipsa loquitur may ever be
brought when an injury is caused by multiple defendants and instrumentalities and not
easily traceable to any one defendant.
Reasoning
Holding YES
NO
NO
Yes. The judgment of nonsuit is improper.
Ybarra should not be precluded from bringing an action for res ipsa loquitur
simply because multiple defendants and instrumentalities may have been
involved in causing his injuries. Where a plaintiff receives unusual injuries while
unconscious and in the course of medical treatment, all those defendants who
had any control over his body or the instrumentalities which might have caused
the injuries may be held liable in an action based on res ipsa loquitur. The
number of those in whose care the patient is placed should not be a factor in
determining whether he is entitled to all reasonable opportunities to recover for
negligence. As long as the plaintiff can show an injury resulting from some
external force and occurring while he was unconscious in the hospital, he
should be entitled to an action based on res ipsa loquitur. An action for res ipsa
loquitur states that negligence on the part of a defendant may be presumed
from the mere occurrence of an accident if the accident is of a kind which
ordinarily does not occur in the absence of someone’s negligence, is caused
by an agency or instrumentality within the exclusive control of the defendant,
and is not due to any voluntary action on the part of the plaintiff.

115
 Before his operation where the injury to his neck and right shoulder occurred,
Ybarra was made unconscious by Dr. Reser. Thus, any injury occurring during
this time could not be due to any voluntary action on the part of Ybarra.
Additionally, the injury occurred to a healthy part of his body that was not the
subject of his scheduled surgery. Thus, this injury is the type that could not
normally occur without some type of negligence on the part of Ybarra’s doctors
or caregivers. The fact that Ybarra was unconscious and thus cannot
absolutely identify the defendant responsible for “exclusive control” over his
body when the injury occurred should not preclude him from recovering for
damages based on res ipsa loquitur. Such a rigid application of the doctrine
defies common sense and may prevent deserving plaintiffs from recovering for
their injuries.
Ybarra should be able to bring an action for res ipsa loquitur, and the
judgment of nonsuit in favor of the doctors is improper. The judgment of the trial
court is reversed and remanded.
Rule
Where a plaintiff receives unusual injuries while unconscious and in the course
of medical treatment, all those defendants who had any control over his body
or the instrumentalities that might have caused the injuries may be held liable
in an action based on res ipsa loquitur.

Key points in this case:

1. What if only sue the Dr. swift (the employer) and Dr. Spangard(手术操纵者) using
the three conditions below?
NO
The multiple defendants are better, and they may choose to say something.

4.6 Prosser’s approach (3 elements approach):

The doctrine of res ipsa loquitur has three conditions: "

(1) the accident must be of a kind which ordinarily does not occur in the absence of
someone's negligence;
(2) it must be caused by an agency or instrumentality within the exclusive control of
the defendant;
(3) it must not have been due to any voluntary action or contribution on the part of
the plaintiff." (Prosser, Torts, p. 295.) It is applied in a wide variety of situations,
including cases of medical or dental treatment and hospital care.

In medical or dental circumstances:

找不到确切是哪一个⚠只有在找不到确切是哪一个的情况下才能用 res ipsa

loquitur，这种情况就不行：“The mix-up was discovered six months later”

116
 If the doctrine is to continue to serve a useful purpose, we should not forget that "the
particular force and justice of the rule, regarded as a presumption throwing upon the
party charged the duty of producing evidence, consists in the circumstance that the chief
evidence of the true cause, whether culpable or innocent, is practically accessible to
him but inaccessible to the injured person." (9 Wigmore, Evidence 3d ed.], $ 2509, p.
382; [J; Maki v. Murray Hospital, [7 P.2d 228 (Mont. 1932]).

4.7 Respondeat superior

respondeat superior
僱主负责 此项原则指僱主对僱员在职务范围内和执行职务过程中的行为应承
担责任。本人对代理人行为的侵权责任，也是以僱佣关系而不是以代理关系为基
础，也适用「僱主负责」原则。
In this connection, it should be noted that while the assisting physicians and nurses
may be employed by the hospital, or engaged by the patient, they normally become the
temporary servants or agents of the surgeon in charge while the operation is in progress,
and liability may be imposed upon him for their negligent acts under the doctrine of
respondeat superior. Thus a surgeon has been held liable for the negligence of an
assisting nurse who leaves a sponge or other object inside a patient, and the fact that
the duty of seeing that such mistakes do not occur is delegated to others does not absolve
the doctor from responsibility for their negligence.

Chapter 8 Strict Liability

(Class 9/22 TORT LAW & ALTERNATIVES: 509 – 523.)

1 Doctrinal Development

Fletcher v. Rylands（被告水坝坏掉，给原告造成损害）

Exchequer Chamber, 1866.

L.R. 1. Ex. 265.
• The judgment of the Court (WILLES, BLACKBURN, KEATING, MELLOR, MONTAGUE
SMITH, and LUSH, JJ.), was delivered by BLACKBURN, J.
Facts Plaintiff: Fletcher
Defendant: Rylands

117
 Plaintiff Fletcher was a tenant mining coal under agreement with the landowner.
Defendant Rylands was operating a cotton mill on nearby land.
It appears from the statement in the case, that the plaintiff was damaged by his property
being flooded by water, which, without any fault on his part, broke out of a reservoir
constructed on the defendant’s land by the defendants' orders, and maintained by the
defendants.
There’s latent defect in the defendant’s subsoil.
It is found that the defendants, personally, were free from all blame, but that in fact
proper care and skill was not used by the persons employed by them, to provide for the
sufficiency of the reservoir with reference to these shafts. The consequence was, that the
reservoir when filled with water burst into the shafts, the water flowed down through them
into the old workings, and thence into the plaintiffs mine, and there did the mischief.
Fletcher (plaintiff) operated several underground coal mines on land adjacent
to land on which Rylands (defendant) had built a reservoir for the purpose of
supplying water to his mill. Rylands employed engineers and contractors to build
the reservoir. In the course of building the reservoir, these employees learned that
it was being built on top of abandoned underground coal mines. This fact was
unknown by Rylands. After the reservoir was completed, it broke and flooded
Fletcher’s coal mines. This caused damage to Fletcher’s property, and Fletcher
brought suit against Rylands. The Court of Exchequer held that Rylands was not
liable, and the decision was appealed to the Exchequer Chamber.
Procedural History In the Court of Exchequer, the Chief Baron and Martin, B., were of opinion that the
plaintiff was not entitled to recover at all, Bramwell. B., being of a different opinion. The
judgment in the Exchequer was consequently given for the defendants, in conformity
with the opinion of the majority of the court.
Issue Whether plaintiff could recover because defendant fails to keep the mischief in his peril?
Is a person who lawfully brings something onto his land that, if it escapes, can
potentially do harm, strictly liable for any harm caused by the escape?
Reasoning 1. 2 种观点 is an absolute duty to keep it in at his peril, or is, as the majority of the Court
of Exchequer have thought, merely a duty to take all reasonable and prudent precautions,
in order to keep it
2.提出本院的观点，见下
3.区别于 Martin，B.的观点 有别于其他 case
Yes. A person who lawfully brings something onto his land that, if it escapes, is
capable of doing harm, is strictly liable for any harm occurring as a natural
consequence of the escape.
An absolute duty to prevent harm is imposed, rather than a duty to merely
exercise due care and skill to prevent harm. Liability may only be excused if the
person suffering harm is also at fault, or if the damage is caused by an “act of
God.” Here, Rylands lawfully brought onto his property a reservoir to contain a
large amount of water. This water was harmless as long as it was confined to his
property, but the water could admittedly cause damage if it escaped onto
someone else's property. Because Rylands unsuccessfully contained the water in
his reservoir and it escaped and caused damage to Fletcher's property, Rylands is

118
 liable for the damage caused. In the lower court, Brother Martin improperly argued
that this case is controlled by the rules applicable to collision cases. This case
can be properly distinguished from those cases because when a collision occurs,
either on the road or at sea, both parties have necessarily undertaken some risk
of injury. In using his coal mines, however, Fletcher did not intentionally undertake
a risk of unforeseen water damage from a break in Rylands’s reservoir. Thus,
Rylands is liable for the damage caused to Fletcher’s property.
Holding Yes
-The answer to the question should be that the plaintiff was entitled to recover damages
from the defendants, by reason of the matters stated in the case, and consequently, that the
judgment below should be reversed, but we cannot at present say to what damages the
plaintiff is entitled.
We have come to the conclusion that the opinion of Bramwell, B., was right, and that
the answer to the question should be that the plaintiff was entitled to recover damages
from the defendants, by reason of the matters stated in the case, and consequently, that the
judgment below should be reversed, but we cannot at present say to what damages the
plaintiff is entitled.
Rule

A person who lawfully brings something onto his land that if it escapes is
capable of doing harm, is strictly liable for any harm occurring as a natural
consequence of the escape.

Key points in this case:

1.In this case, we still in the writ system, that there’s only intentional trespass.
Even though this case looks like a negligent trespass.

2.Trespassing animals.
Under the Restatement (Third) of Torts: Liability for Physical and Emotional Harm
§ 21 (2010), the owner or possessor of animals, except for cats and dogs, is subject
to strict liability for the physical harms caused by their intrusions onto another's land.

1.1 Rule of law in Fletcher v. Rylands

True rule of law is, that the person who for his own purposes brings on his lands and
collects and keeps there anything likely to do mischief if it escapes, must keep it in at
his peril, and, if he does not do so, is prima face answerable for all the damage which
is the natural consequence of its escape. He can excuse himself by showing that the
escape was owing to the plaintiff's default; or perhaps that the escape was the
consequence of vis major, or the act of God. Strict liability is something escape.

119
 1.2 How do these three judges deal with it?

Chief Baron and Martin, B., were of opinion that the plaintiff was not entitled to recover
at al. in conformity with the opinion of the majority of the court.
As the majority of the Court of Exchequer have thought, merely a duty to take all
reasonable and prudent precautions, in order to keep it in, but no more.
If the second be the limit of his duty, he would not be answerable except on proof of
negligence, and consequently would not be answerable for escape arising from any
latent defect which ordinary prudence and skill could not detect.

Bramwell. B/ Justice Blackburn(关于 escape 的事)

True rule of law is, that the person who for his own purposes brings on his lands and
collects and keeps there anything likely to do mischief if it escapes, must keep it in at
his peril, and, if he does not do so, is prima face answerable for all the damage which
is the natural consequence of its escape. He can excuse himself by showing that the
escape was owing to the plaintiff's default; or perhaps that the escape was the
consequence of vis major, or the act of God. Strict liability is something escape.

-The general rule, as above stated, seems on principle just. The person whose grass
or corn is eaten down by the escaping cattle of his neighbor, or whose mine is flooded
by the water from his neighbor’s reservoir, or whose cellar is invaded by the filth of his
neighbour's privy, or whose habitation is made unhealthy by the fumes and noisome
vapours of his neighbour's alkali works, is damnified without any fault of his own; and
it seems but reasonable and just that the neighbor, who has brought something on his
own property which was not naturally there, harmless to others so long as it is confined
to his own property, but which he knows to be mischievous if it gets on his neighbour's,
should be obliged to make good the damage which ensues if he does not succeed in
confining it to his own property. But for his act in bringing it there no mischief could
have accrued, and it seems but just that he should at his peril keep it there so that no
mischief may accrue, or answer for the natural and anticipated consequences.

Rylands v. Fletcher （Rylands 上诉了）

House of Lords, 1868.

L.R. 3 H.L. 330.
THE LORD CHANCELLOR (LORD CAIRNS) [after stating the facts].

120
Facts Plaintiff: Fletcher
Defendant: Rylands
The Defendants treating them as the owners or occupiers of the close on which the
reservoir was constructed, might lawfully have used that close for any purpose for which
it might in the ordinary course of the enjoyment of land be used; and if, in what I may term
the natural user of that land, there had been any accumulation of water, either on the
surface or underground, and if, by the operation of the laws of nature, that accumulation
of water had passed off into the close occupied by the Plaintiff, the Plaintiff could not have
complained that that result had taken place.
Procedural History
Issue Whether plaintiff could recover because defendant fails to keep the mischief in his peril?
Reasoning
Holding Yes
-On the other hand if the Defendants, not stopping at the natural use of their close, had
desired to use it for any purpose which I may term a non-natural use, for the purpose of
introducing into the close that which in its natural condition was not in or upon it, for the
purpose of introducing water either above or below ground in quantities and in a manner
not the result of any work or operation on or under the land, and if in consequence of their
doing so, or in consequence of any imperfection in the mode of their doing so, the water
came to escape and to pass off into the close of the Plaintiff, then it appears to me that that
which the Defendants were doing they were doing at their own peril; and, if in the course
of their doing it, the evil arose to which I have referred, the evil, namely, of the escape of
the water and its passing away to the close of the Plaintiff and injuring the Plaintiff, then
for the consequence of that, in my opinion, the Defendants would be liable.
-in that opinion, I must say I entirely concur. Therefore, I have to move your Lordships
that the judgment of the Court of Exchequer Chamber be affirmed, and that the present
appeal be dismissed with costs.
Rule

If a person brings a dangerous thing onto the land, and then the dangerous
thing escapes, then the person is liable for resulting damages automatically.

A person who disrupts the natural state of real property by lawfully bringing
something onto his land that, if it escapes, is capable of doing harm, is strictly
liable for any harm occurring as a natural consequence of the escape.

Key points in this case:

LORD CHANCELLOR (Lord Cairns)’ opinion: （还是关于 non-natural）
(more like nuisance)On the other hand if the Defendants, not stopping at the natural
use of their close, had desired to use it for any purpose which I may term a non-natural
use, for the purpose of introducing into the close that which in its natural condition was
not in or upon it, for the purpose of introducing water either above or below ground in
quantities and in a manner not the result of any work or operation on or under the land,-
and if in consequence of their doing so, or in consequence of any imperfection in the

121
 mode of their doing so, the water came to escape and to pass off into the close of the
Plaintiff, then it appears to me that that which the Defendants were doing they were
doing at their own peril; and, if in the course of their doing it, the evil arose to which I
have referred, the evil, namely, of the escape of the water and its passing away to the
close of the Plaintiff and injuring the Plaintiff, then for the consequence of that, in my
opinion, the Defendants would be liable.

-If a person brings, or accumulates, on his land anything which, if it should escape, may
cause damage to his neighbour, he does so at his peril. If it does escape, and cause
damage, he is responsible, however careful he may have been, and whatever
precautions he may have taken to prevent the damage.

-The non-natural use of land

Depends on different circumstances.

-Rylands v. Fletcher has not led England to employ a full-throated rule of strict liability
for anything escaping from one's land that causes harm to neighboring property, as
might have been understood from Lord Cairns' opinion. Instead, subsequent cases
employed a restrictive interpretation of non-natural use that eliminates common
activities, such as supplying water or gas, regardless of the danger involved. A
commonly accepted definition of non-natural use is contained in Lord Moulton's
opinion in Rickards v. Lothian, [1913] A.C. 263: "It must be some special use bringing
with it increased danger to others and must not merely be the ordinary use of the land
or such a use as is proper for the general benefit of the community."

Sullivan v. Dunham （被告雇人炸树，砸死高速上的原告）

Court of Appeals of New York, 1900.

161 N.Y. 290, 55 N.E. 923.
Facts Plaintiff: Sullivan
Defendant: Dunham
Defendant landowner employed two men to dynamite（炸毁） a 60-foot tree on the land.
The blast hurled a fragment of wood 412 feet onto a highway where it struck plaintiff's
decedent and killed her. The two blasters were also sued.
Plaintiff’s decedent was travelling on a highway when wooden debris struck
and killed her. The wood fragment had come from the dynamite blast of a 60-foot
tree 412 feet away. Plaintiff sued Defendant, who had hired two men to dynamite
the tree from his property, and the two blasters for damages resulting from the
decedent’s death. The suit was allowed by a statute that gave a decedent’s
personal representative standing to sue for a wrongful act, neglect, or default

122
 leading to the decedent’s death if the same action could have been brought by the
decedent. The trial judge held that Plaintiff did not need to prove negligence in
order to recover. The court of appeals affirmed the finding for Plaintiff and
Defendant appealed.

Procedural The trial judge charged that negligence need not be proven to establish liability.
History Defendants appealed from a judgment entered on a plaintiff's verdict and affirmed by the
appellate division.
Issue -Whether one who, for a lawful purpose and without negligence or want of skill, explodes
a blast upon his own land and thereby causes a piece of wood to fall upon a person lawfully
traveling in a public highway, is liable for the injury thus inflicted.
-Whether the defendants are liable as trespassers.

Reasoning
Holding Yes
We think that the Hay case has always been recognized by this court as a sound and
valuable authority. After standing for fifty years as the law of the state upon the subject it
should not be disturbed, and we have no inclination to disturb it. It rests upon the principle,
founded in public policy, that the safety of property generally is superior in right to a
particular use of a single piece of property by its owner. It renders the enjoyment of all
property more secure by preventing such a use of one piece by one man as may injure all
his neighbors. It makes human life safer by tending to prevent a landowner from casting,
either with or without negligence, a part of his land upon the person of one who is where
he has a right to be. It so applies the maxim of sic utere tuo as to protect person and property
from direct physical violence, which, although accidental, has the same effect as if it were
intentional. It lessens the hardship by placing absolute liability upon the one who causes
the injury. The accident in question was a misfortune to the defendants, but it was a greater
misfortune to the young woman who was killed. The safety of travelers upon the public
highway is more important to the state than the improvement of one piece of property, by a
special method, is to its owner.
Is a defendant who creates an explosion on his property absolutely liable for
injuries resulting from debris that falls on a person traveling on a public highway,
regardless of whether the defendant was negligent?
Yes. A person may not use his property in a way that causes direct injury to
another’s person or property, regardless of whether the injury was intentional or
negligent.
In Hay v. Cohoes Co., 2 N.Y. 159 (1849), the defendant was liable when a
blast used in digging a canal caused debris to fall on the plaintiff’s house. The
court in Hay noted that the defendant had a right to dig the canal, and the plaintiff
had the right to undisturbed possession of his property, and that based on public
policy the property right must win out.
The use of land is limited by the higher right of others to possession of their
property, regardless of the extent or motives of the use. In the similar case
of Tremain v. Cohoes Co., 2 N.Y. 163 (1849), the court excluded evidence that

123
 the work was done in the most careful manner possible, because the only
question was what the defendant’s actions did to the plaintiff’s injury. These
cases govern here, as the safety of the person is even more sacred than the
safety of property. Although Sullivan did not own the land where she was struck,
she had a right to be there. The safety of property and person is generally
superior to a particular use of a property by its owner. Here, the safety of
travelers on a public highway is superior to the improvement in a particular
manner of Dunham’s property. Dunham may be held absolutely liable for
Sullivan’s injury and death, regardless of whether Dunham’s conduct was
negligent. The judgments of the trial court and appellate division are affirmed.
Rule
An individual is liable for injuries caused by trespass to person or property due to
activities like blasting where the injury is direct and not consequential without need
for proof of negligence.

Key points in this case:

1.When you file a claim, would negligence be successful?
The defendant had taken ordinary care.
2.What’s difference between this case and Rylands? (Law differences?)
This case involved injury related to the person’s life, not the invasion of property.
In this case, the liability is not limited to the property, but extended to individual.

“These were cases of trespass upon lands, while the case before us involves trespass
upon the person of a human being, when she was where she had the same right to
protection from injury as if she had been walking upon her own land. As the safety of
the person is more sacred than the safety of property, the cases cited should govern
our decision unless they are no longer the law.”

3. How might the Sullivan facts have been analyzed by Justice Blackburn(trespass)?
By Lord Cairns(nuisance)?
Nuisance analogy: Judge Vann states that courts will apply the maxim of sic
utere(nuisance) so as "to protect person and property from direct physical violence,
which, although accidental, has the same effect as if it were intentional."
4. （ 被 气 流 震 伤 还 是 具 体 的 物 质 致 伤 ） When the injury is not direct, but
consequential, such as is caused by concussion, which, by shaking the earth, injures
property, there is no liability in the absence of negligence.
The different treatment accorded harms caused by debris （ 直 接 ） and by
concussion（脑震荡/意味着间接） might be an artifact of the writ system. Direct
harm from debris was recoverable in a trespass action, for which intent and fault were
irrelevant; concussion damage was indirect, or consequential, and could be recovered
only in an action on the case, for which a fault component developed. In the leading
case of Booth v. Rome, W. & O.T.R.R. Co., 35 N.E. 592 (N.Y.1893), the court held
the 1849 Hay case inapplicable to harm suffered by concussion because there the
defendant's act had caused direct harm to the plaintiff's property and was thus a

124
 trespass.
不区分了：The distinction between debris and concussion has virtually（实际上）
disappeared.
Discussion.
This case illustrates an approach that is no longer followed which
distinguished between concussion damage and debris damage resulting
from blasting operations. Debris damage did not require proof of negligence
because it was a direct harm treated as a trespass action where intent and
fault were irrelevant. Concussion damage was indirect and consequential
harm and did require proof of negligence in order to recover. Spano v. Perini
Corp., 250 N.E.2d 31 (N.Y. 1969) eliminated this distinction and focused on
the issue of who should bear the cost of blasting damages.

5. Judge Vann states that courts will apply the maxim（格言） of sic utere so as "to
protect person and property from direct physical violence, which, although
accidental, has the same effect as if it were intentional."

1.3 Ultrahazardous activity

Based on the cases involving dynamite blasts and burst reservoirs, is there a more
comprehensive standard for determining whether strict liability applies?
According to sections 519 and 520 in the first Restatement of Torts, these cases
involve an "ultrahazardous activity," defined as involving a risk that "cannot be
eliminated by the exercise of the utmost care" and "is not a matter of common usage."
In section 519, the Second Restatement reframed the standard by providing that one
who "carries on an abnormally dangerous activity is subject to liability for harm ...
resulting from the activity, although he has exercised the utmost care to prevent the
harm." In determining whether an activity is "abnormally dangerous," section 520
listed six factors for consideration:
(a) existence of a high degree of risk of some harm to the person, land or chattels of
others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.
Under the Second Restatement, there are six factors for determining whether an
activity is abnormally dangerous: (1) there is a high probability of harm, (2) the harm
could be great if it materialized, (3) the risk is unavoidable even with due care, (4) the
activity is not common and thus not presumed to be highly valuable, (5) the activity is
inappropriate for the area, and (6) the activity is not sufficiently valuable to the public

125
 to offset the risk.

Indiana Harbor Belt Railroad Co. v. American Cyanamid Co.(铁路公司作为托

运人为被告运输危险化学物品，化学物品泄漏，铁路公司已经赔给政府钱，
想要被告承担严格责任并且还钱被拒 )（ where’s the limitations of the strict
liability）

United States Court of Appeals, Seventh Circuit, 1990. 916 F.2d 1174.
• Before POSNER, MANION and KANNE, CIRCUIT JUDGES.
• POSNER, CIRCUIT JUDGE.
Facts Plaintiff: Indiana Harbor Belt Railroad
the plaintiff in this case, a small switching line that has a contract with Conrail to switch
cars from other lines to Conrail, in this case for travel east.
Defendant: American Cyanamid Company (they ship the chemical: they load the
chemical)
the defendant in this diversity tort suit governed by Illinois law, is a major manufacturer
of chemicals.
Cyanamid loaded 20,000 gallons of liquid acrylonitrile into a railroad tank car that it had
leased from the North American Car Corporation. The next day, a train of the Missouri
Pacific Railroad picked up the car at Cyanamid's siding. The car's ultimate destination was
a Cyanamid plant in New Jersey served by Conrail rather than by Missouri Pacific.
Several hours after it arrived, employees of the switching line noticed fluid gushing from
the bottom outlet of the car. The lid on the outlet was broken. After two hours, the line's
supervisor of equipment was able to stop the leak by closing a shutoff valve controlled from
the top of the car.
A quarter of the acrylonitrile had leaked.
Concerned nevertheless that there had been some contamination of soil and water, the
Illinois Department of Environmental Protection ordered the switching line to take
decontamination（污染措施） measures that cost the line $981,022.75, which it sought to
recover by this suit.

American Cyanamid Co. (defendant) leased a railroad car to ship 20,000 gallons of
acrylonitrile, a highly toxic and flammable chemical. Missouri Pacific Railroad handled the
car and directed it to a yard outside of Chicago owned by Indiana Harbor Belt R.R.
(plaintiff). When the car arrived, Indiana’s employees noticed it was leaking.
Approximately one-quarter of the chemical had leaked out. The Illinois Department of

126
 Environmental Protection ordered decontamination measures that cost Indiana nearly $1
million. Indiana sued Cyanamid to recover the costs. Indiana argued that Cyanamid had
negligently maintained the shipping car and was strictly liable because shipping
acrylonitrile through Chicago was an abnormally dangerous activity. The district court
granted Indiana summary judgment on its strict liability claim and dismissed Indiana's
negligence claim. Cyanamid appealed and Indiana cross-appealed.

Procedural [After some procedural tangles, the district judge granted plaintiff summary judgment on
History its strict liability claim and dismissed plaintiff's negligence claim. Defendant appealed and
plaintiff cross-appealed.]
Issue -Whether the shipper(托运人) of a hazardous chemical by rail should be strictly liable for
the consequences of a spill or other accident to the shipment en route?
- Is shipping hazardous chemicals by rail through metropolitan areas an abnormally
dangerous activity?
Reasoning No. Judgment reversed and remanded.
* The question addressed here is a question of law, so no special deference is
granted to the trial court conclusion. Under the Restatement [Restatement
(Second) of Torts Section: 520 (1977)] six factors are considered in deciding if an
activity is abnormally dangerous: (1) is the probability of the harm great; (2) is the
harm that would ensue if the risk materializes great; (3) can such accidents not be
prevented by the exercise of due care; (4) is the activity not a matter of common
usage; (5) was the activity inappropriate to the location where it took place; (6) is
the value of the activity to the community high.
* According to the evidence, acrylonitrile is the fifty-third most hazardous chemical
transported in high volume on the nation’s railroads. Therefore, the trial court’s
opinion would effectively dictate strict liability for all fifty-two materials that rank
higher.
* Additionally, this Court has been given no reason for believing that a negligence
standard is not adequate to remedy accidental spillage. In this case, it seems clear
that the leak was caused by carelessness. Plaintiff also makes much of the fact
that the spill occurred in a densely inhabited area. However, the hubs of the railroad
network are generally located in metropolitan areas. Even if rerouting were feasible,
it would be more appropriate to place such a burden on the carriers rather than the
shippers.
* Unlike storage cases dealing with abnormally dangerous activities, in this case it
is the manufacturers, rather than the actors, who are sought to be held strictly
liable. Abnormally dangerous activities are a property of activities rather than
substances in the contemplation of the law.

【quimbee】
No. Shipping hazardous chemicals by rail through metropolitan areas is not an
abnormally dangerous activity. Strict liability is proper against a party engaged in an
abnormally dangerous activity.
Under the Second Restatement, there are six factors for determining whether an activity

127
 is abnormally dangerous: (1) there is a high probability of harm, (2) the harm could be great
if it materialized, (3) the risk is unavoidable even with due care, (4) the activity is not
common and thus not presumed to be highly valuable, (5) the activity is inappropriate for
the area, and (6) the activity is not sufficiently valuable to the public to offset the risk.
Some activities are so inherently risky that they cannot be made less dangerous. In such
circumstances, the traditional negligence regime is inadequate. Courts have imposed strict
liability for activities such as blasting with dynamite. However, if a risk is avoidable
through the exercise of ordinary care, negligence is the proper remedy. Here, the traditional
negligence framework is adequate.
The inherent dangerousness of acrylonitrile does not mean shipping it is abnormally
dangerous. While acrylonitrile is a dangerous chemical, it does not corrode tank valves. The
leak was caused by the careless maintenance of the car rather than the manufacturing of the
chemical. While liability for traditional negligence could be proper here, there is no need
to impose strict liability on Cyanamid. The decision of the district court is reversed and
remanded so Indiana can proceed on its negligence claim.
Holding NO
The case for strict liability has not been made. Not in this suit in any event.
[Although the improper grant of summary judgment normally requires a remand for trial of
that part of the case, this case was different because no new facts were suggested that would
warrant strict liability. Defendant conceded that if the strict liability claim fell, the
negligence claim had to be remanded for trial.] The judgment is reversed (with no award of
costs in this court) and the case remanded for further proceedings, consistent with this
opinion, on the plaintiff's claim for negligence.
Rule 见下
The determination of whether an activity is abnormally dangerous depends on
the application of several factors, including if accidents cannot be prevented by the
exercise of ordinary due care.
Shipping hazardous chemicals by rail through metropolitan areas is not an abnormally
dangerous activity.

Key points in this case:

1. Why negligence claim?
Hard, 仿佛就是说你最大的 negligence 是选择这个铁路公司。No negligence in
the manufacturer.

2.All they did just manufacture and ship.

The plaintiff argues
1 the list covers this chemical, so you should be liable.
2 Because you choose the route in the high population area, then P*L (increase)
3 should use the
court said it is a bad idea to ship and manufacture, why? B<PL (doesn’t matter in
the strict liability system, 因为这个公式是存在于 fault liability 中，如果让制造
商承担严格责任，就会导致更多的 manufacturer 更加不去防止危害事件发生，

128
尽管 B 小于 PL)

3.Why is the Restatement section framed in terms of activities rather than "acts," as
in negligence? Using “act” related to Negligence. (这个词语更多用在 negligence
system 里)
Consider in this regard the differences among the activities of manufacturing,
transportation, and storage of dangerous chemicals. Does each activity have the same
characteristics that are relevant for purposes of strict liability? NO

4. Second Restatement of Torts involves the use of dynamite and other explosives for
demolition in residential or urban areas.

5. The usual view is that common carriers are not subject to strict liability for the
carriage of materials that make the transportation of them abnormally dangerous,
because a common carrier cannot refuse service to a shipper of a lawful commodity.
Restatement, supra, § 521

6.Whatever the situation under products liability law (section 402A of the
Restatement), the manufacturer of a product is not considered to be engaged in an
abnormally dangerous activity merely because the product becomes dangerous when
it is handled or used in some way after it leaves his premises, even if the danger is
foreseeable.

7. The first Restatement used the term "ultrahazardous" rather than

"abnormally dangerous" activity and framed the liability as a rule instead of a
standard based on a list of factors. According to that version, strict liability was
to be imposed if the activity
(a) necessarily involves a risk of serious harm to the person, land or chattels of others
which cannot be eliminated by the exercise of the utmost care, and
(b) is not a matter of common usage.

How does this version differ from the one used by the court? Would its use have
altered the result of the principal case?
Rule vs. standard

8. Defenses. (Not recover in this quarter, next quarter will include)

There have been relatively few cases involving defenses in this branch of strict
liability. Why might this be? Second Restatement section 523 states that plaintiff's
assumption of the risk of harm from the activity "bars his recovery for the harm."
Section 524 states that contributory negligence is not a defense to strict liability
except when the plaintiff's conduct involves "knowingly and unreasonably subjecting
himself
to the risk of harm from the activity...." An illustration to section 524 states that if a
driver is so intent on passing the truck ahead that the driver fails to see "Danger,

129
 Dynamite" plainly marked on the truck, and collides with the truck causing an
explosion, the driver is not barred by contributory negligence. The driver who has
read the sign, however, is barred from recovery.
The Restatement sections were prepared before the emergence of comparative
negligence. An increasing number of cases support comparative negligence as an
appropriate partial defense in strict liability.
The Restatement (Third) of Torts: Apportionment of Liability section 7...
negligence that is a legal cause of an indivisible injury to the plaintiff reduces the
plaintiff's recovery in proportion to the provides: "Plaintiff's share of responsibility
the fact finder assigns to the plaintiff (or other person for whose negligence the
plaintiff is responsible).
comparative negligence
比较过失 该术语是指在损害赔偿之诉中，将原告的过失与被告的过失进行
比较，以减少被告应承担的赔偿份额。它最早用于海事案件中，现美国许多州
已用比较过失原则取代共同过失或混合过失原则〔contributory negligence〕。一
般而言，被告的过错程度越高，原告为获得赔偿所需的注意程度越低，但无论
原告的过错如何，都不能完全免除被告的责任。

1.4 Guille is a paradigmatic(典型的) case for strict liability.

(a) The risk (probability) of harm was great, and

(b) the harm that would ensue if the risk materialized could be, although luckily was
not, great (the balloonist could have crashed into the crowd rather than into the
vegetables). The confluence of these two factors established the urgency of seeking to
prevent such accidents.
(c) Yet such accidents could not be prevented by the exercise of due care; the technology
of care in ballooning was insufficiently developed.
inability to eliminate the risk of accident by the exercise of due care.
(d) The activity was not a matter of common usage, so there was no presumption that
it was a highly valuable activity despite its unavoidable riskiness.
(e) The activity was inappropriate to the place in which it took place-densely populated
New York City. The risk of serious harm to others (other than the balloonist himself,
that is) could have been reduced by shifting the activity to the sparsely inhabited areas
that surrounded the city in those days.
Its consequences minimized, by shifting the activity in which the accident occurs to
another locale, where the risk or harm of an accident will be less.
(f) Reinforcing (d), the value to the community of the activity of recreational ballooning
did not appear to be great enough to offset its unavoidable risks.
by reducing the scale of the activity in order to minimize the number of accidents
caused by it.

The greater the risk of an accident (a) and the costs of an accident if one occurs (b),
the more we want the actor to consider the possibility of making accident-reducing
130
 activity changes; the stronger, therefore, is the case for strict liability. Finally, if an
activity is extremely common (d), like driving an automobile, it is unlikely either that
its hazards are perceived as great or that there is no technology of care available to
minimize them; so the case for strict liability is weakened.
Under the Restatement [Restatement (Second) of Torts Section: 520 (1977)]
six factors are considered in deciding if an activity is abnormally dangerous: (1)
is the probability of the harm great; (2) is the harm that would ensue if the risk
materializes great; (3) can such accidents not be prevented by the exercise of
due care; (4) is the activity not a matter of common usage; (5) was the activity
inappropriate to the location where it took place; (6) is the value of the activity
to the community high.

2 Theoretical Perspectives

The Ideology of enterprise liability

Robert L. Rabin
55 Maryland Law Review 1190, 1194-99 (1996).

Chapter9 LIABILITY FOR

DEFECTIVE PRODUCTS
TORT LAW & ALTERNATIVES: 557-.

1 Introduction

MacPherson v. Buick Motor Co.(被告制造商卖车给零售商，零售商又卖给顾

客，顾客受伤，制造商有责任)

Court of Appeals of New York, 1916.

217 N.Y. 382, 111 N.E. 1050.

131
 • CARDOZO, J.
Facts Plaintiff: Buick Motor Co.
Defendant: MacPherson
The defendant is a manufacturer of automobiles. It sold an automobile to a retail dealer.
The retail dealer resold to the plaintiff. While the plaintiff was in the car, it suddenly
collapsed. He was thrown out and injured. One of the wheels was made of defective wood,
and its spokes crumbled into fragments. The wheel was not made by the defendant; it was
bought from another manufacturer. There is evidence, however, that its defects could have
been discovered by reasonable inspection, and that inspection was omitted. There is no
claim that the defendant knew of the defect and willfully concealed it.
The charge is one, not of fraud, but of negligence
Procedural Appeal, by permission, from a judgment of the Appellate Division . affirming a judgment
History in favor of plaintiff entered upon a verdict.
Issue Whether a manufacturer of non-inherently dangerous articles owes a duty of
care to anyone beyond the immediate purchaser.
Reasoning
Holding 【quimbee】
Yes. It was foreseeable that once an automobile was sold to the retailer, it would be
purchased by someone else such as MacPherson. Thus, Buick owed MacPherson a duty of
care to ensure the safety of the automobile and is liable for negligence for failing to meet
that duty. A manufacturer of articles that are not inherently dangerous but that may become
dangerous when improperly constructed owes a duty of care to anyone beyond the
purchaser who might foreseeably use the articles, when it is reasonable to expect no further
tests will be performed.
This is an extension of the rule imposing strict liability for injuries to any foreseeable
user caused by inherently dangerous articles such as poisons and explosives, as mundane
products may be transformed into inherently dangerous articles if they are manufactured
negligently or not properly tested.
However, there must be knowledge by the manufacturer of a danger which may result
from negligent manufacturing, and the danger must not only be possible but probable. If
the negligent manufacturing occurs by a third party responsible for making one aspect of a
finished product, the final manufacturer will only be liable for negligence if the defect could
have been discovered through reasonable inspection, and the final manufacturer fails its
own duty of inspection. Buick serves as a final manufacturer of automobiles comprised of
various parts made by other manufacturers. The defective wheel that caused injury to
MacPherson was made by a third party, but was incorporated into one of Buick’s
automobiles. Due to the nature of automobiles and the speed at which they travel, Buick
should have known that a defective wheel could cause serious injury to the user of the
automobile. Additionally, when Buick sold the automobile to a retailer, it was foreseeable
that the automobile would be sold again to a purchaser such as MacPherson. Thus, the fact
that injury could certainly be caused by a defective wheel gave rise to a duty by Buick to
inspect its final products. Moreover, because MacPherson as a purchaser was a foreseeable
user of Buick’s automobiles, Buick owed a duty of care to MacPherson personally. Buick
failed this duty by not performing a reasonable inspection of its automobiles, and is liable

132
 to MacPherson for negligence. The judgment of the lower court is affirmed.

Rule
A manufacturer of articles that are not inherently dangerous but that may become dangerous
when improperly constructed owes a duty of care to anyone beyond the purchaser who might
foreseeably use the articles, when it is reasonable to expect no further tests will be performed.

-Who’s the immediate purchaser from the Buick Motor Co.? Retail dealer.
-Why not sue the dealer?
1.More money from Buick.
2. The problem to sue Buick Motor Co. No privity of contract with the Buick.
-Shifting from talking about the privity to the foreseeability.
-Hypo:
What if Buick has expert testimony the inspection is fine, but the 隐藏的缺陷 cannot
be inspect? Can the plaintiff recover?
Buick was not negligent.
[Escola v. Coca Cola Bottling Co. of Fresno]: So the judge think it is time to move the
negligence to strict liability.
- Rule of law in this case:
The principle of Thomas v. Winchester is not limited to poisons, explosives, and
things of like nature, to things which in their normal operation are implements of
destruction. If the nature of a thing is such that it is reasonably certain to place life and
limb in peril when negligently made, it is then a thing of danger. Its nature gives warning
of the consequences to be expected. If to the element of danger there is added
knowledge that the thing will be used by persons other than the purchaser, and used
without new tests, then, irrespective of contract, the manufacturer of this thing of danger
is under a duty to make it carefully. That is as far as we are required to go for the
decision of this case.

There must be knowledge of a danger, not merely possible, but probable. It is

possible to use almost anything in a way that will make it dangerous if defective. That
is not enough to charge the manufacturer with a duty independent of his contract.
Whether a given thing is dangerous may be sometimes a question for the court and
sometimes a question for the jury. There must also be knowledge that in the usual
course of events the danger will be shared by others than the buyer. Such knowledge
may often be inferred from the nature of the transaction. But it is possible that even
knowledge of the danger and of the use will not always be enough. (Extend the duty
from the inherently danger to the foreseeability of the danger.)
The proximity or remoteness of the relation is a factor to be considered. We are
dealing now with the liability of the manufacturer of the finished product, who puts it
on the market to be used without inspection by his customers. If he is negligent, where
danger is to be foreseen, a liability will follow. We are not required at this time to say
that it is legitimate to go back of the manufacturer of the finished product and hold the
manufacturers of the component parts. To make their negligence a cause of imminent
danger, an independent cause must often intervene; the manufacturer of the finished

133
product must also fail in his duty of inspection. It may be that in those circumstances
the negligence of the earlier members of the series is too remote to constitute, as to the
ultimate user, an actionable wrong. (Extend the duty from the inherently danger to the
foreseeability of the danger.) We leave that question open. We shall have to deal with it
when it arises. The difficulty which it suggests is not present in this case. There is here
no break in the chain of cause and effect. In such circumstances, the presence of a
known danger, attendant upon a known use, makes vigilance a duty. We have put aside
the notion that the duty to safeguard life and limb, when the consequences of negligence
may be foreseen, grows out of contract and nothing else. We have put the source of the
obligation where it ought to be. We have put its source in the law. (We move away from
contract to negligence)

1.1 The early privity requirement

The privity requirement. Earlier analyses had understood the English case of
Winterbottom U. Wright to stand for the proposition that manufacturers, suppliers, and
repairers of chattels could be liable for their negligence only to those with whom they
had contracted.
[Early thinking] In that case, Lord Abinger had stated: “There is no privity of contract
between these parties; and if the plaintiff can sue, every passenger, or even any person
passing along the road, who was injured by the upsetting of the coach, might bring a
similar action. Unless we confine the operation of such contracts as this to the parties
who entered into them, the most absurd and outrageous consequences, to which I can
see no limit, would ensue.”
How might Judge Cardozo respond to that assertion?
We are going to move it to the torts of negligence based on the Foreseeable reasonable
harm. It is Those people who raise the danger foreseeable.

1.2 Development of negligence liability.

(MacPherson use the negligence doctrine instead of the contract doctrine involving
privity)
After MacPherson, the plaintiff in a tort suit had to show that the defect was
attributable to negligence by the defendant seller. To establish negligence, plaintiffs
frequently invoked the evidentiary doctrine of res ipsa loquitur, discussed on p. 93
supra. In effect, the plaintiff argued that the mere existence of the defect establishes
negligence on someone's part. The plaintiff then had to show that the defendant, rather
than someone else, was responsible for the defect. This argument was extraordinarily
successful. " Once the cause of the injury is proved to lie with the defendant, once it is
brought home to his plant, the jury finds for the plaintiff." Prosser, The Assault Upon
the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099, 1115 (1960).

134
 Is this a proper application of res ipsa loquitur?
When is it be proper to use res ipsa loquitur for a plaintiff suing manufacturer? What
you need to show in order for the judge give res ipsa loquitur instruction?
1. more likely than not cause by the negligence of the manufacturer.
2.exclusive control

1.3 Implied warranty

（later than the negligence, 出现了 warranty contract）Implied warranty (not the
part of the written contract) [Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69
(N.J.1960).]
Warranty by the manufacturer to the customer.
Implied warranty of merchantability/of use or purpose
Difference: the implied one, if something hurt, you can use “the Implied warranty of
merchantability”, “Implied warranty of use or purpose”: e.g.咖啡壶的 purpose 是烧水
喝的而不是用于爆炸的
As courts were extending MacPherson, they also developed an alternative approach
based on the implied warranty of merchantability or quality. According to this doctrine,
the nature of a sales transaction implies certain duties or responsibilities on the seller's
part and a corresponding set of rights held by the buyer. Because the duties and rights
spring from the sales transaction, the implied warranty appears to be a rule of contract
law. Such a contractual understanding of the doctrine was held by courts and lawyers
in the mid-nineteenth century, and a contractual conceptualization of the implied
warranty fit well with the privity requirement adopted by Winterbottom.
The tort rationale for the implied warranty remained obscure until courts in the early
twentieth century invoked the doctrine to apply strict tort liability to the sale of
contaminated food, an issue of pressing national concern. The courts looked to the
ancient English rule that strictly obligated sellers to supply "wholesome" food. This
doctrine had existed for centuries before Winterbottom was decided, but the doctrine
had only been applied to cases involving buyers and sellers and appeared to fit
comfortably with the Winterbottom privity requirement. However, the nature of the
food cases made it easier to conceptualize the implied warranty as a matter of tort law,
leading courts to impose strict liability upon the seller of contaminated food. See, e.g.,
Jacob E. Decker & Sons, Inc. v. Capps, 164 S.W.2d 828, 829 (Tex. 1942)("A majority
of the American courts that have followed this holding have not based such warranty
upon an implied term in the contract between buyer and seller, .. but have imposed it as
a matter of public policy in order to discourage the sale of unwholesome food.").
In efforts to permit warranty recoveries, courts resorted to many devices to avoid the
lack-of-privity barrier. One author catalogued 29 theories used to achieve the result,
mostly in food cases. Gillam, Products Liability in a Nutshell, 37 Or. L. Rev. 119, 153-
55 (1957). As a tort doctrine, is the implied warranty inherently limited by the privity
requirement? Does it only apply to contaminated food?

135
Escola v. Coca Cola Bottling Co. of Fresno（原告从冰箱取出可口可乐瓶爆炸）

Supreme Court of California, 1944.

24 Cal.2d 453, 150 P.2d 436.
• GIBSON, CHIEF JUSTICE.
Facts Plaintiff: Escola
Defendant: Coca Cola Bottling Co. of Fresno
Gladys Escola (plaintiff) worked as a waitress in a restaurant. One day, she
was placing bottles of Coca-Cola that had been delivered 36 hours earlier in the
restaurant’s refrigerator. The bottles were filled by Coca-Cola Bottling Co. of
Fresno (Coca-Cola) (defendant). As Escola was handling the fourth bottle, it
exploded in her hand and caused her severe injuries. Escola brought suit
against Coca-Cola on the ground that the company was negligent in allowing
excessive pressure or gas to build up in the bottle or using defectively
manufactured bottles which were dangerous and likely to explode. A jury found
in Escola's favor, and Coca-Cola appealed to the California Supreme Court.
Procedural The majority affirmed a plaintiff's judgment and held that plaintiff had properly benefited
History from res ipsa loquitur in her negligence action. The following three paragraphs give the
flavor of the majority opinion
Issue Whether the plaintiff could rely on res ipsa loquitur doctrine to claim negligence on
defendant’s act?
Reasoning and Yes. The doctrine of res ipsa loquitur applies to cases involving exploding bottles of
Holding (Gibson, carbonated drinks, as long as there is no evidence that the bottles changed condition after
C.J.) they left the manufacturer's possession.
(Majority) For res ipsa loquitur to apply, the defendant must be in the exclusive control of the thing
Use res ipsa that caused the injury, and the accident must be something that ordinarily would not occur
loquitur to supply in the absence of the defendant's negligence.
an inference of Even if the defendant did not have control over the injury-producing item at the exact time
negligence are of the accident, the doctrine will still apply if the defendant had control over the item at the
present. time of the alleged negligent act, and the condition of the item had not changed since it left
the defendant's possession. Here, Coca-Cola had exclusive control over the pressurizing of
its bottles. A bottle typically will not explode without excessive pressure. Excessive
pressure typically does not occur without negligence in the pressurizing phase. Thus, res
ipsa loquitur applies, and Coca-Cola could be found liable for negligence for the injuries
suffered by Escola due to excessive pressurizing of its bottles. The judgment is affirmed.

Holding Affirmed
Rule Rule of Law
The doctrine of res ipsa loquitur applies to cases involving exploding
bottles of carbonated drinks, as long as there is no evidence that the bottles
changed condition after they left the manufacturer's possession.
Concur Yes. Coca-Cola is liable for injuries caused to Escola, but its liability should not only be

136
Traynor, J based on a theory of negligence.
不使用 res ipsa The better rule is that a manufacturer incurs absolute liability when an article that he has
loquitur，而是 placed on the market, knowing it is to be used without inspection, proves to have a defect
用 strict that causes injury to human beings. Such a principle was recognized in the New York courts
liability。 in MacPherson v. Buick Motor Co.,111 N.E. 1050 (N.Y.1916), where it was held that
适用“public irrespective of privity of contract, a manufacturer is liable for an injury caused by an article
policy”去 make it places on the market to any person who comes in lawful contact with the article. Such a
sense。 principle of absolute liability for the manufacturer for injuries without negligence is rooted
in public policy, as the manufacturer is typically better-equipped to bear the costs of
injuries than the individual purchaser. Additionally, the public interest is furthered by
establishing a general rule of civil liability for any defective goods causing injury to the
public. It is wise to impose this absolute liability on the manufacturer for all persons who
come into contact with the defective product, rather than the retailer, because the
manufacturer is often better equipped to test the product and discover hidden defects than
the retailer. While the retailer may be absolutely liable to the public under implied
warranties of fitness for proposed use and merchantable quality, permitting an injured
individual to sue only under these remedies may not be adequate to ensure full recovery for
damages. The individual will be able to recover more if he or she can directly sue the
manufacturer for failing to guard against defects through reasonable inspection. Likewise,
it does not make sense to limit the manufacturer’s liability for damages to only those buyers
with whom the manufacturer has a contractual relationship, as manufacturers typically sell
directly to retailers who do not intend to use the products themselves.
The public interest is best served by imposing absolute liability for injuries on the
manufacturer who places a product on the market, knowing it is to be used without
inspection, when the product causes injury to human beings. This liability may be limited,
however, by defining it in terms of the safety of the product in normal and proper use, and
it should not extend to injuries that cannot be traced to the product as it reached the market.

1.4 Subsequent California development （ really influential, and is

recognized by all states）

1. Majority acceptance of Escola

[Greenman v. Yuba Power Products, Inc., 377 P.2d 897 (Cal. 1963).] Following his
concurrence in Escola, Justice Traynor （20 年后才被逐渐接受，1963）continued to
argue for strict liability in a series of other cases. In Greenman, he finally persuaded
the entire court in a ruling that affirmed plaintiff's judgment against defendant
manufacturer. Writing for a unanimous court, Traynor stated: "We need not recanvass
the reasons for imposing strict liability on the manufacturer. They have been fully
articulated.” 尽管不是 negligence，但用 strict liability。

2. Retailers
[Vandermark v. Ford Motor Co.] In the landmark opinion that first applied strict
137
products liability to non-manufacturing retailers and distributors, Justice Traynor
justified strict liability in terms of its ability to promote product safety:
In some cases the retailer may be the only member of the overall producing and
marketing enterprise reasonably available to the injured plaintiff. In other cases the
retailer himself may play a substantial part in insuring that the product is safe or may
be in a position to exert pressure on the manufacturer to that end; the retailer's strict
liability thus serves as an added incentive to safety. Strict liability on the manufacturer
and retailer alike affords maximum protection to the injured plaintiff and works no
injustice to the defendants, for they can adjust the costs of such protection between
them in the course of their continuing business relationship.
Id. at 171-72. The court then held that contractual disclaimers of this tort duty are
unenforceable: "Regardless of the obligations [defendant] assumed by contract, it is
subject to strict liability in tort because it is in the business of selling automobiles, one
of which proved to be defective and caused injury to human beings." Id. at 172.

3. Bystanders
[Elmore v. American Motors Corp] Finally, for the reasons suggested in Vandermark,
the court concluded that the retailer was liable to bystanders as well as customers.

1.5 Extension to other types of defendants

Courts have had to determine whether strict liability extends to persons other than
commercial sellers of new goods.

1. Used-goods sellers(二手商家)
Most courts have declined to impose strict liability on sellers of used goods- even for
claims that the product contained the defect when it was first marketed.
Even if a used goods seller is not subject to strict liability, it can be liable for
negligence.

2. Successors (继任者)
A question that overlaps the law of torts and corporations involves the liability of
successor corporations for defective products marketed by businesses before they were
bought by the successor.
Traditional approach: The Restatement (Third) of Torts: Products Liability section 12
adopts the traditional approach to successor liability, imposing liability on the successor
if the acquisition "(a) is accompanied by an agreement for the successor to assume such
liability; or (b) results from a fraudulent conveyance to escape liability for the debts or
liabilities of the predecessor; or (c) constitutes a consolidation or merger with the
predecessor; or (d) results in the successor becoming a continuation of the predecessor."
Several courts adopt an expansive theory.

3. Other nonsellers

138
 -Strict liability has been extended beyond pure commercial "sellers" to include a wide
variety of suppliers and those who aid suppliers, including commercial lessors.
-Some courts have extended the doctrine to franchisors who impose quality control
upon their franchisees. Sue both the franchiser and franchisee.
-Strict liability has been imposed on commercial sellers who give products away or
provide free samples as part of a promotion.
On the other hand, courts have been reluctant to apply the doctrine to companies that
finance purchases by others.

4. Irregular sellers
Strict liability has been limited to sellers who were in the business of selling the
product involved. E.g. 唯一一次出售某物，但是该公司其他业务与该物接近，所
以不要承担 strict liability。E.g. moving sale(搬家卖东西)

-Existence of defect at time of sale or commercial distribution. （卖的时候或者分配

的时候才有的缺陷）use res ipsa loquitur.
As to when the defect might have developed before sale and the implications for
liability of the three defendants, the court held that it did not matter:

1.6 Causation

In cases of strict products liability, plaintiffs must establish both factual cause and
proximate cause, just as they must do in negligence cases.
Not that far 这个不行: See Restatement (Third) of Torts: Products Liability § 15
("Whether a product defect caused harm to persons or property is determined by the
prevailing rules and principles governing causation in tort."). For example, proximate
cause was at issue in Stahlecker v. Ford Motor Co., 667 N.W.2d 244 (Neb.2003).
Plaintiffs alleged that a defective tire failed and rendered the car inoperable while
female decedent was driving alone in a remote area. Plaintiffs claimed that because of
the tire failure a stranger was able to assault and murder decedent. The court held that
even if the tire were defective, the stranger's acts negated（否定） proximate cause.
一个有缺陷的轮胎失效，导致汽车无法运行。原告声称，由于轮胎故障，一个陌
生人能够袭击并谋杀死者。

- Emotional distress and pure economic loss. （本 quarter 不讲）

In cases of pure emotional distress, courts have largely applied these limitations to
claims of strict products liability. For example, "most jurisdictions permit an emotional
distress claim in strict products liability for bystanders under similar guidelines" to the
Dillon standard adopted by "roughly half the states" in cases of negligence liability,
which is discussed on p. 276 supra. D. Owen & M. Davis, 3 Owen & Davis on Products
Liability § 25:9 (4th ed.2014).
By contrast, in cases of pure economic loss, courts have limited the duty for reasons
specific to products liability as discussed in further detail at p. 672 infra.

139
1.7 2 个 Restatement

（周三会讨论 strict liability vs design defect/warning defect）

The requirement of defect limits the scope of strict products liability for reasons that
are not made apparent by the enterprise rationale for strict liability.
In reading the following set of materials from the Second and Third Restatements,
consider how each one treats the issue of defect.

Early in the development of the modern approach, the American Law Institute
promulgated section 402A of the Restatement (Second) of Torts, a most influential
section that provided an early black letter formulation of the new approach. The section,
published in 1965, provided:
(1) One who sells any product in a defective condition unreasonably dangerous to the
user or consumer or to his property is subject to liability for physical harm thereby
caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in
the condition in which it is sold. （like the exclusive control）
(2) The rule stated in Subsection (1) applies although (means that it cannot be the a
negligence based standard)
(a) the seller has exercised all possible care in the preparation and sale of his product,
and
(b) the user or consumer has not bought the product from or entered into any
contractual relation with the seller. (Eliminate the privity doctrine)

Although section 402A was widely adopted after 1965, it was promulgated as the area
was first developing. In the succeeding years, other approaches began to emerge in
cases that either rejected the Second Restatement's approach or elaborated upon issues
it had not addressed. The dozen or so pages devoted to the problem of defective
products in the Second Restatement subsequently led to a body of case law requiring
over 300 pages of exposition in the Restatement (Third) of Torts: Products Liability,
which was adopted by the American Law Institute in 1998 after several years of debate.
The Products Liability Restatement apparently took a quite different approach.

1. Section 1 provides that "One engaged in the business of selling or otherwise

distributing products who sells or distributes a defective product is subject to liability
for harm to persons or property caused by the defect."
Difference:
1. the “unreasonably dangerous had gone”.
2.Specifically expanding coverage to bystanders under the second restatement.
Bystanders can claim. In the second restatement, a bystander cannot recover on a strict
liability claim but on a negligence claim.

140
 Open the door for other persons other property(也包括了其他的 property).
From “ultimate user or consumer, or to his property” to “persons or property”

2. Section 2 provides that for purposes of determining whether a product is defective,

there are three types of defects. A product:
(a) contains a manufacturing defect when the product departs（背离） from its
intended design even though all possible care was exercised in the preparation and
marketing of the product; reatain the notion about the manufacturing defect (pure strict
liability)
B and c, once we are talking about foreseeable risks of harm ,now we are back in
negligence theory and maybe said negligence-like theory.
b and c are not imposing liability based on negligence. It still a strict liability concept.
Negligence ideas and approaches are being used, but it remains strict liability.
(b) is defective in design when the foreseeable risks of harm posed by the product
could have been reduced or avoided by the adoption of a reasonable alternative design
by the seller or other distributor, or a predecessor in the commercial chain of distribution,
and the omission of the alternative design renders the product not reasonably
safe;(negligence-like liability, it is still the strict liability concept.)
(c) is defective because of inadequate instructions or warnings when the foreseeable
risks of harm posed by the product could have been reduced or avoided by the provision
of reasonable instructions or warnings by the seller or other distributor, or a predecessor
in the commercial chain of distribution, and the omission of the instructions or warnings
renders the product not reasonably safe. (Negligence-like ideas, it is still the strict
liability concept.)

3. Section 3 provides a provision complementary to its section 2 for establishing the

existence of a defect:
(Malfunction doctrine) It may be inferred that the harm sustained by the plaintiff
was caused by a product defect existing at the time of sale or distribution, without proof
of a specific defect, when the incident that harmed the plaintiff: (not exactly res ipsa
loquitur, but similarly)
(a) was of a kind that ordinarily occurs as a result of product defect; and
(b) was not, in the particular case, solely the result of causes other than product
defect existing at the time of sale or distribution.
Sometimes referred to as the "malfunction" theory of defect, section 3 primarily
encompasses manufacturing defects whose existence cannot be directly proved, but
also includes design defects that cause a product to fail in ways that it clearly should
not. Thus, if a homeowner climbs a brand-new ladder and then falls to the ground
after each rung breaks in half, section 3 would permit a finding of defect without
concern for whether a manufacturing or design defect was responsible and without
requiring the plaintiff to point to either a specific manufacturing or design defect.

Allow judge to instruct jury to find inferences of defect. Used when there’s no direcnt
evidence.

141
这两种情况用 malfunction 比较多：
1 Happens most often caused by the intermediate problem (might not happen again).
E.g. the brake malfunctions, and the thing would not happen again.
2 Happens when the evidence is disappeared E.g. car is destroyed, evidence disappear.

2 Manufacturing Defects (using the pure strict liability

concept)

The most common and straightforward cases of defective products involve the
aberrational（反常的） mass-produced item that has come off the assembly line
different from (and more dangerous than) the intended product.
These defects can take various forms： 生产过程中的：Materials or component
parts of the product can be flawed or contaminated; the product can be improperly
assembled or constructed; or the product can be improperly packaged. 生产之后的：
These defects can also occur after the product has been constructed or manufactured.
Delivery of the product by a seller can create the defect, as when soda bottles are
mishandled during delivery and incur hairline fractures that unduly weaken the bottle,
causing it to explode when lifted by the consumer. The defect is generally apparent in
the flawed unit by the time of trial, and courts have concluded that strict liability should
follow.
According to the Products Liability Restatement section 2 cmt. a,
"Imposing strict liability on manufacturers for harm caused by manufacturing defects
encourages greater investment in product safety than does a regime of fault-based
liability under which, as a practical matter, sellers may escape their appropriate share
of responsibility."
To prove that the product departed from its blueprint or design specifications, usually
the plaintiff need only compare the allegedly defective product to the design. That
comparison may require expert testimony. In some cases, the plaintiff is unable to
identify the specific defect. The product can be destroyed in the accident, or the
particular product may have been lost or sold, making it impossible to determine
whether it had a manufacturing defect. Lacking direct evidence of defect, the plaintiff
can still try to prove that the product was defective by relying on circumstantial proof,
as per the malfunction theory of defect. Not really have to
In McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253 (11th Cir. 2002), a catheter,
in its usual condition for use, spontaneously erupted and fragmented inside the patient's
bladder. The district court dismissed the case because plaintiff did not produce any
evidence of the existence of a defect in the catheter. The court of appeals reversed,
holding that the plaintiff was entitled to the benefit of an inference of a defect when the
product "malfunctions during normal operation." Plaintiff did not have the burden to
eliminate other potential causes, so long as the product "malfunctions during normal
operation."
The malfunction theory does not reduce the plaintiff's evidentiary burden. "The
law reports brim with decisions that recite the propriety of the doctrine as a general
142
proposition but hold it inapplicable to the facts. The opinions in such cases frequently
note that the law will not allow plaintiffs or juries to rely on guess, conjecture, or
speculation." E.g. Price case
To prove the allow a judge instruct jury an inference.

3 Design Defects

A commonly shared design is the defining characteristic of a product line.

Consequently, an allegation of defective design implicates the entire product line,
substantially expanding the manufacturer's liability exposure as compared to product-
specific defects attributable to manufacturing flaws or mishandling.
Not only does the potential scope of liability exceed that involved with product-
specific defects, but the liability rules governing defective product design are also more
complex and ambiguous than those governing construction or manufacturing defects.
Cronin v. J.B.E. Olson Corp., 501 P.2d 1153 (Cal. 1972). Rule：Although it may be
"easier to see the 'defect in a single imperfectly fashioned product than in an entire line
badly conceived, a distinction between manufacture and design defects is not
tenable(站得住脚的)." The court accordingly rejected the Restatement's "unreasonably
dangerous" standard for both types of defects.
In Smoot v. Mazda Motors of America, Inc., 469 F.3d 675, 681 (7th Cir.2006) the
court considered whether plaintiff could make out a prima facie case of defect under
the malfunction theory.
If the product does not malfunction, how should courts determine whether the
design is defective?
Barker v. Lull Engineering Co., 573 P.2d 443 (Cal.1978), (baker factors)
The appropriate limiting phrase would require the product to be used in the "intended
or a reasonably foreseeable manner." The court then discussed how plaintiffs might
show that a product was defectively designed.

Consumer expectation test: "First, our cases establish that a product may
be found defective in design if the plaintiff demonstrates that the product failed to
perform as safely as an ordinary consumer would expect when used in an intended or
reasonably foreseeable manner."
But this would not be the exclusive means for determining whether a design defect
exists because in many situations consumers "have no idea how safe the product could
be made." Id.
This led to a second, alternative, formulation: that design defect could be shown
"if through hindsight the jury determines that the product's design embodies excessive
preventable danger,' or, in other words, if the jury finds that the risk of danger inherent
in the challenged design outweighs the benefits of such design."
The jury was to consider among other relevant factors, the gravity of the danger
posed by the challenged design, the likelihood that such danger would occur, the
mechanical feasibility of a safer alternative design, the financial cost of an improved
design, and the adverse consequences to the product and to the consumer that would
143
 result from an alternative design.
On this second prong(方面), the defendant had the burden of producing evidence
and persuading the trier of fact that the product should not be judged defective. Plaintiff
and amicus argued that this second prong was equivalent to demanding a showing of
negligence. The court disagreed. In many cases it is true that a showing of defect "may
also demonstrate that the manufacturer was negligent in choosing such a design. As we
have indicated, however, in a strict liability case, as contrasted with a negligent design
action, the jury's focus is properly directed to the condition of the product itself, and
not to the reasonableness of the manufacturer's conduct."

Soule v. General Motors Corporation(汽车被撞，地板凹陷进去戳伤原告脚，

起诉制造商)

Supreme Court of California, 1994

8 Cal.4th 548, 882 P.2d 298, 34 Cal.Rptr.2d 607.
• BAXTER, JUSTICE.
Facts Plaintiff: Soule
Defendant: General Motors Corporation
Soule (plaintiff) was driving her 1982 Camaro when she was struck by another vehicle near the
left wheel of her car. The collision bent the Camaro’s frame and tore loose the bracket that attached
the car’s wheel assembly to the frame. The wheel collapsed inward and hit the underside of the “toe
pan,” the slanted floorboard area beneath the pedals, causing it to crumple. Soule sustained
permanent injuries to both of her ankles. After the collision, the Camaro was purchased by a salvage
dealer, and except for the bracket assembly, no part of the vehicle was retained as evidence. Soule
sued General Motors Corporation (GM) (defendant) alleging that a defective design of the Camaro
allowed the left front wheel to break free and smash the floorboard into Soule’s feet and ankles. At
trial, the jury was instructed that in order to impose liability upon GM, Soule was required to show
that the Camaro failed to perform as safely as an ordinary consumer would expect. The jury found
for Soule and awarded $1.65 million in damages. GM appealed and argued that the trial court erred
in instructing the jury on the “ordinary consumer expectations in a complex design-defect case.”
The court of appeals affirmed the jury’s verdict, and GM appealed.
Procedural Plaintiff prevailed at trial, and the Court of Appeal affirmed the judgment.
History
Issue Is the use of the “ordinary consumer expectations” test appropriate in cases where the evidence
does not permit an inference that the product’s performance did not meet the minimum safety
expectations of ordinary users?
Reasoning 1. GM 认为难以确定 causation，法院认为这个不是核心
2. GM 认为 consumer expectation test 不行，product Liability Advisory Council, Inc. (Council)
也这么觉得
3. 法院认为 Within these limits, the test remains a workable means of determining the existence
of design defect.

144
 4.但法院认为 jury should not have been instructed on ordinary consumer expectations. 因为
Indeed, both parties assumed that quite complicated design considerations were at issue, and that
expert testimony was necessary to illuminate these matters. Therefore, injection of ordinary
consumer expectations into the design defect equation was improper.
5. but the error caused no actual prejudice, thus the judgment is affirmed.

No. Each side presented numerous experts in areas such as biomechanics, metallurgy,
orthopedics, design engineering and crash-test simulation. Soule submitted crash test results and
other evidence to show that similar Camaro accidents did not generally produce wheel bracket
failure and resulting toe pan deformation. Soule’s expert metallurgist testified that the failed
bracket on the Soule’s Camaro had excess “porosity” caused by improper welding techniques
and that Ford’s Mustang, as an alternative design, provides protection against such problems.
GM’s experts provided contrary testimony. The trial court instructed the jury that GM is liable
for Soule’s “enhanced” injuries caused by a design defect while it is being used ways an ordinary
consumer would expect and it fails to perform safely.
In Barker v. Lull Engineering, 573 P.2d 443 (Cal. 1978), the court held two alternative ways
to provide defective design. In some cases “ordinary knowledge” as to a product’s
characteristics may permit an inference that the product did not perform as safely as it should.
However, a complex product, even when it is being used as intended, may often cause injury in
a way that does not meet ordinary consumers’ reasonable minimum assumptions about safe
performance. More specifically applied to the facts here, the ordinary consumer of a car simply
has “no idea” how it should perform in all foreseeable situations, or how safe it should be made
against all foreseeable hazards. Under Barker, a product is still defective if its design embodies
“excessive preventable danger” that is, unless “the benefits of the design outweigh the risk of
danger inherent in such design.” But this determination involves technical issues of feasibility,
cost, practicality, risk, and benefit which are “impossible” to avoid. In those cases, the jury must
consider the manufacturer’s evidence of competing design considerations. Further, the ordinary
consumer expectations test is reserved for cases in which the everyday experiences of the user
permits a conclusion that the product’s design violated minimum safety assumptions and is thus
defective, and expert witnesses are not needed to demonstrate what an ordinary consumer would
expect. By the same token, the jury should not apply the ordinary consumer expectations
test to those cases when a producst’s use does not meet the minimum safety expectations of
ordinary users. In such cases, the jury must engage in the balancing of risks and benefits, as
required by Barker. Thus, jury instructions based on the ordinary consumer expectations prong
of Barker are not appropriate, where, as a matter of law, the evidence would not support a jury
verdict on that theory. Here, Soule’s theory of design defect was technical and mechanical in
nature requiring the examination and behavior of several obscure components of her Camaro
under complex circumstances. However, the trial court’s injection of the ordinary consumer
expectations test into the design defect equation was harmless and the jury would not have come
to a different conclusion. The judgment of the trial court is affirmed.
Holding NO
The trial court erred when it instructed on the consumer expectations test for design defect. ...
However, [the] error caused [no] actual prejudice. Accordingly, the judgment of the Court of
Appeal, upholding the trial court judgment in favor of plaintiff, is affirmed.

145
 Harmless error: not affect the outcome.
Rule
The use of the “ordinary consumer expectations” test is not appropriate in cases where the
evidence does not permit an inference that the product’s performance did not meet the minimum
safety expectations of ordinary users.

3.1 The consumer expectation test:

-The ordinary users or consumers of a product may have reasonable, widely

accepted minimum expectations about the circumstances under which it should perform
safely. A product may be found defective in design if the plaintiff demonstrates that the
product failed to perform as safely as an ordinary consumer would expect when used
in an intended or reasonably foreseeable manner."
-In some cases, therefore, "ordinary knowledge ... as to ... [the product's]
characteristics" [section 402A], may permit an inference that the product did not
perform as safely as it should. If the facts permit such a conclusion, and if the failure
resulted from the product's design, a finding of defect is warranted without any further
proof. The manufacturer may not defend a claim that a product's design failed to
perform as safely as its ordinary consumers would expect by presenting expert evidence
of the design's relative risks and benefits.

In some collisions, the car is supposed to be injured to protect the safety of your life.
If the jury don’t have the knowledge of this expectations, then using this test is not
appropriate.

3.2 Risk utility/benefit test

Under Barker, a product is still defective if its design embodies “excessive

preventable danger” that is, unless “the benefits of the design outweigh the risk of
danger inherent in such design.”
Focus on Not the conduct of the defendant, but the product itself.
Because the ordinary consumer doesn’t know about the design.
In this state, the burden of prove is not on the defendant.
But in other states, the burden of prove still on the plaintiff.
Focus the marginal benefit

3.3 From consumer expectations to the risk-utility test.

Relationship between consumer expectations test and Malfunction:

When the court states that the consumer expectations test is proper for cases in which

146
"the circumstances of the product's failure permit an inference that the product's design
performed below the legitimate, commonly accepted minimum safety assumptions of
its ordinary consumers," does it mean that the consumer expectations test is congruent
with section 3? Under this interpretation, the consumer at minimum expects that the
product will not malfunction.

From consumer expectations to the risk-utility test:

If a product does not malfunction, what does the ordinary consumer reasonably
expect about its safety performance? Consider footnote 4 in Soule, where the court
discusses the "reasonable safety expectations" of a well-informed hypothetical
consumer and concludes that she is "better served by the risk-benefit prong of Barker."
An ordinary consumer who is well informed about the relevant issues would expect the
product design to pass this prong of Barker, and so the concept of reasonable consumer
expectations provides a rationale for the risk-utility test in cases that do not involve
malfunctioning products. See M. Geistfeld, Principles of Product Liability 44-48 (2d
ed.2011)

3.4 Reasonable alternative design (“RAD”) Related to the risk utility

test

"The reasonableness of choosing from among various alternative product designs and
adopting the safest one if it is feasible is considered the heart of design defect cases."
在各种可供选择的产品设计中进行合理选择，并在可行的情况下采用最安全的
设计，是设计缺陷案例的核心。When you are weighing the benefit, it is the better
design to balance the safety and other thing.
"The essential inquiry, therefore, is whether the design chosen was a reasonable one
from among the feasible choices of which the manufacturer was aware or should have
been aware."
HOW: The approach in Banks has been formalized in the Products Liability
Restatement section 2 cmt. f, which requires the plaintiff to "prove that a reasonable
alternative design would have reduced the foreseeable risks of harm.” Sometimes "the
feasibility of a reasonable alternative design is obvious and understandable to lay
persons and therefore expert testimony is unnecessary to support a finding that the
product should have been designed differently and more safely." Other products already
on the market may serve "a similar function at lower risk and at comparable cost." (One
exception to the necessity for a RAD involves the malfunction theory of defect; the
other exception is for the irreducibly unsafe product discussed in note 8 infra.)
最常见的方法：看其他的制造商的 design；看那个制造商自己的 design 方案，
如果有 A、B、C， 获得专家证言证明他选择 A 是不合理的。
Rule of law in Soule(Soule 用的方法): An injured person is not foreclosed from
proving a defect in the product's design simply because he cannot show that the
reasonable minimum safety expectations of its ordinary consumers were violated.

147
 Under Barker's alternative test, a product is still defective if its design embodies
"excessive preventable danger", that is, unless "the benefits of the…design outweigh
the risk of danger inherent in such design" [1. But this determination involves technical
issues of feasibility, cost practicality, risk, and benefit [], which are "impossible" to
avoid [ ]. In of such cases, the jury must consider the manufacturer's evidence of
competing design considerations [] and the issue of design defect cannot fairly be
resolved by standardless reference to the "expectations" of an "ordinary consumer."---
the everyday experience of the product's users permits a conclusion that the product's
design violated minimum safety assumptions and is thus defective regardless of expert
opinion about the merits of the design.
-Can plaintiff prove a RAD by invoking one product category to show that another
category, by comparison, is unreasonably dangerous?
NO, e.g. you cannot argue that a convertible car (敞篷车 no roof car) is not a
reasonable design compared with car that designed to have roof.

- Distinguishing one product category from another

- The irreducibly（不能降低的） unsafe product（这个 rule 主要是说就算没找

到 alternative, 也可以 recover）
Despite cases like Dreisonstok, courts have not ruled out the possibility that the
dangers that inhere in a category of products could render any product within the
category unreasonably dangerous or defective, regardless of its particular design
features. 法院并没有排除这样的可能性，即某类产品所固有的危险可能会使该类
产品中的任何产品变得不合理地危险或有缺陷，而不管其具体的设计特点如何。
Consequently, the Products Liability Restatement recognizes a narrow exception to
the RAD requirement in cases of the irreducibly unsafe product.
O'Brien v. Muskin Corp., 463 A.2d 298 (N.J.1983) Viewing the evidence in the light
most favorable to plaintiff, even if there are no alternative methods of making bottoms
for above-ground pools, the jury might have found that the risk posed by the pool
outweighed its utility.
但也有洲拒绝或者限制这个 rule。

Camacho v. Honda Motor Co., Ltd.（摩托车没有护腿板被伤）

Supreme Court of Colorado, 1987.

741 P.2d 1240.
• KIRSHBAUM, JUSTICE.
Facts Plaintiff: Camacho
Defendant: Honda Motor Co., Ltd.

148
 Camacho (plaintiff) suffered leg injuries when the motorcycle he was driving was in an
accident. Honda Motor Co. (Honda) (defendant) designed and manufactured Camacho’s
motorcycle. Camacho sued, claiming that Honda was strictly liable for a defective product, based
on Honda’s failure to provide crash bars or other leg protection devices that were available. The
trial court granted Honda's motion for summary judgment. The court of appeals affirmed, finding
the danger to be within an ordinary consumer’s contemplation when purchasing the motorcycle.
Procedural The trial court granted Honda summary judgment. The court of appeals affirmed on the ground that
History the danger "would have been fully anticipated by or within the contemplation of the ordinary user
or consumer."
Issue
May a manufacturer be held strictly liable for a product’s design defects that create a danger
that is within the contemplation of the consumer who purchases it?

Reasoning
Holding Yes. The proper test for strict liability for a design defect in this jurisdiction is not whether a
consumer contemplates the danger created by a design defect, but whether the product is
unreasonably dangerous based on the totality of the circumstances.

Under the crashworthiness doctrine, an automobile manufacturer may be liable either in

negligence or strict liability for injuries sustained in an accident, where a manufacturing or design
defect caused or enhanced the injuries, though not the accident itself. A manufacturer has a duty of
reasonable care in the design and manufacture of automobiles and motorcycles, which includes a
duty to exercise reasonable care to minimize the severity of injuries suffered in foreseeable
collisions by employing reasonable, cost-acceptable safety features.

This court has previously adopted the Restatement (Second) of Torts, § 402A, in determining
a manufacturer’s liability for a defective product. Comment iof section 402A states that strict
liability applies only where a product’s defective condition makes it unreasonably dangerous to
consumers, over and above the dangerousness contemplated by an ordinary consumer. However,
this court disagrees that the consumer contemplation concept of comment i is the best test to
determine whether a product is unreasonably dangerous.

This court has found in previous cases that the fact that a product’s dangers are open and
obvious to the consumer is not a defense to a claim that a product is unreasonably dangerous. This
rejected open and obvious test is substantially similar to the consumer contemplation test applied
by the trial and appellate courts in this case.

The focus should be on the nature of the product under the totality of the circumstances,
rather than on the consumer’s or the manufacturer’s conduct. In Ortho Pharmaceutical Corp. v.
Heath, 722 P.2d 410 (Colo. 1986), this court noted that the consumer contemplation test for
determining whether a product is unreasonably dangerous is especially inappropriate where the
danger and the available alternative designs must be established by technical or scientific

149
 information. In addition, the manufacturers of complex products have greater access to this
necessary information than the ordinary consumer.

Ortho identified seven factors to weigh in determining whether a product is unreasonably

dangerous:

(1) the product’s usefulness and desirability; (2) the likelihood that the product will cause
injury and the seriousness of such an injury; (3) the availability of a safer substitute product; (4) the
manufacturer’s ability to eliminate the product’s dangers without making it less useful or too
expensive; (5) the consumer’s ability to avoid the product’s danger through careful use; (6) the
consumer’s likely awareness of a product’s inherent dangers because of an obvious condition, or
the existence of warnings or instructions; and (7) the feasibility of the manufacturer either raising
the price of the product to spread the burden of potential loss, or carrying liability insurance.

Here, there is some evidence that Honda could have included crash bars on its motorcycles at
an acceptable cost without reducing the product’s utility, and that its failure to do so therefore made
the motorcycle unreasonably dangerous. Thus, summary judgment was improper. The judgment is
reversed, and the matter remanded for further proceedings.

Dissent.
The test found in Ortho, which is used by the majority here, is appropriate for products whose
danger is defined by technical or scientific information, and which are unavoidably unsafe in some
manner, such as prescription drugs. The appropriate test for determining whether design defects
render ordinary products unreasonably dangerous is the consumer contemplation test found in
comment ito section 402A. A product is unreasonably dangerous if it is dangerous to a greater extent
than would be contemplated by an ordinary consumer who purchases it. An ordinary consumer
knows that a motorcycle can be dangerous. Here, Camacho could have purchased a different
motorcycle with greater safety features.
Discussion.
The unreasonably dangerous test is the standard applied to defective design suits. §
402A of the Restatement of Torts adopts this approach as well. However, not all jurisdictions use
this test. In Cronin v. J.B.E. Olson Corp., 8 Cal. 3d 121 (1972), the California Supreme Court held
that a product defect did not have to make the product unreasonably dangerous for strict liability to
apply. For the most part, states follow the Restatement approach over Cronin.

Rule A manufacturer may be held strictly liable for a product’s design defects that make the
product unreasonably dangerous for consumers.

3.5 crashworthiness（防撞）doctrine (enhanced injury)

-In Roberts v. May, [583 P.2d 305 (Colo App.1978)], the Court of Appeals recognized
the applicability of the "crashworthiness（防撞）" doctrine in Colorado. Under this
doctrine, a motor vehicle manufacturer may be liable in negligence or strict liability for
150
injuries sustained in a motor vehicle accident where a manufacturing or design defect,
though not the cause of the accident, caused or enhanced the injuries. (Defect: design
would cause you collision and suffer greater injury as a result of without the design,
and be responsible for the additional injuries/ enhanced injuries)
Products Liability Restatement section 16 cm.d, provides that once the plaintiff
proves that enhanced injuries occurred, the burden of proof on their magnitude is placed
on the defendant. The result is that if the defendant is unable to prove the amount of
enhanced injuries, it will be liable for the entirety of the plaintiff's harm, subject to
comparative responsibility apportionment discussed at p. 638, infra. To trigger this rule,
the plaintiff must prove that the defect caused at least some compensable/enhanced
harm and a expect would say it comes from the collision. 只要 plaintiff prove 了，这
个责任就转去了 defendant。

3.6 When “open and obvious”, use what test? (以及 courts 看法)

-The court thinks that the absence of the leg guards is “open and obvious”
Two tests relevant: Consumer expectation test and risk utility test.

If the defect is open and obvious, which one should be used?

Consumer expectation test: In this case: (defendant’s arguments:) because the defect is
obvious, so the customer knew. And there’s other manufacturers provide other
motorcycles with leg guards. And I understand but I still want to buy it.
- (court 对于这个 doctrine 的看法)A consumer is justified in expecting that a product
placed in the stream of commerce is reasonably safe for its intended use, and when a
product is not reasonably safe a products liability action may be maintained. Of course,
whether a given product is reasonably safe and, therefore, not unreasonably dangerous,
necessarily depends upon many circumstances.
These considerations strongly suggest that the consumer contemplation concept
embodied in comment i, while illustrative of a particular problem, does not provide a
satisfactory test for determining whether particular products are in a defective condition
unreasonably dangerous to the user or consumer.

3.7 When “open and obvious”, use what test? Risk utility test

[Balancing risk and utility]---risk utility test

Risk utility test could still be used in defect “open and obvious”
In Ortho we noted that the following factors are of value in balancing the attendant
risks and benefits of a product to determine whether a product design is unreasonably
dangerous: (even using the consumer expectation test, we can still use the risk utility
test)
(1) The usefulness and desirability of the product—its utility to the user and to the

151
public as a whole.
(2) The safety aspects of the product- -the likelihood that it will cause injury and the
probable seriousness of the injury.
(3) The availability of a substitute product which would meet the same need and not
be as unsafe.
(4) The manufacturer's ability to eliminate the unsafe character of the product without
impairing its usefulness or making it too expensive to maintain its utility.
(5) The user's ability to avoid danger by the exercise of care in the use of the product.
(6) The user's anticipated awareness of the dangers inherent in the product and their
avoidability because of general public knowledge of the obvious condition of the
product, or of the existence of suitable warnings Or instructions.
(7) The feasibility, on the part of the manufacturer, of spreading the loss by setting the
price of the product or carrying liability insurance.
The factors enumerated in Ortho are applicable to the determination of what
constitutes a product that is in a defective unreasonably dangerous condition.

Applying the risk-utility test:

B<PL
D(defect) = UP （ untaken precaution ） =SB （ safety benefits ） > Cost （ costs of
safety/utility）

-Food Products
Some courts use a foreign/natural test to determine when food is defective.
Mexicali Rose v. Superior Court, 822 P.2d 1292 (Cal. 1992)：The majority would have
permitted all three theories if the harm had been caused by a "foreign" object, such as
a piece of glass or wire.
The Products Liability Restatement takes a different approach to food defects. Despite
rejecting the consumer expectations test for design defects, the Restatement revives that
test for food cases, and draws largely on cases involving customers who choke on
chicken bones in chicken salad or fish bones in chowder. Though plaintiffs in these
cases might have claimed a manufacturing defect, it was difficult to tell if this was an
aberration from norm or an intrinsic (albeit unwanted) part of a designed dish. Section
7 provides that "a harm-causing ingredient of the food product constitutes a defect if a
reasonable consumer would not expect the food product to contain that ingredient."

-Based on a survey of the case law, one court concluded that:

Some form of a risk-utility test is employed by an overwhelming majority of the
jurisdictions in this country. Some of these jurisdictions exclusively employ a risk-
utility test, while others do so with a hybrid of the risk-utility and the consumer
expectations test, or an explicit either-or option. States that exclusively employ the
consumer expectations test are a decided minority.

4 Safety Instructions and Warnings

152
 After having considered the design of the product, we turn to the search for defects
based on the words instructions and warnings- that accompany (or are omitted from the
product, whether on the package, on the product or in an insert that comes with the
product. These words may reduce risk by instructing users in how to obtain the benefits
from the product's intended use and in the care required for safe use. Words may also
alert potential buyers and users to irreducible dangers in the product, dangers that
cannot be reasonably reduced by the manufacturer nor avoided by consumers no matter
how careful they may be. Warnings of side effects of pharmaceuticals（药物的副作
用） are common examples of the latter. Keep in mind these differing roles of warnings
as you proceed through this section.
A threshold issue: Common knowledge and the duty to warn. If the ordinary
consumer already knows about the risk in question, the manufacturer has no duty to
warn.

Hood v. Ryobi America Corp. (没管说明书，取下锯子的保护罩被伤)

United States Court of Appeals, Fourth Circuit, 1999.

181 F.3d 608.
• Before WILKINSON, CHIEF JUDGE, and WIDENER and KING, CIRCUIT JUDGES.
• WILKINSON, CHIEF JUDGE.
Facts
Plaintiff: Hood

Defendant: Ryobi America Corp.

Hood (plaintiff) purchased and used a saw manufactured by Ryobi America Corp. (Ryobi)
(defendant). Despite at least seven clear, simple warnings not to do so in the manufacturer’s
manual, Hood removed the blade guards from the saw and used it for home carpentry. The
warnings stated that using the blade guards was necessary to avoid “severe injury” and “possible
serious personal injury.” Hood lost part of his thumb and lacerated his leg due to an accident
caused by using the saw without blade guards. The saw blade detached from the saw and struck
Hood. He brought suit against Ryobi alleging the company failed to comply with its duty to warn
because the warnings about using blade guards did not explain the consequences potentially
resulting from failure to use the guards. He stated that he was unaware of dangers from the saw
blade detaching from the saw, but that Ryobi was aware of this danger because it had previously
occurred to other users. Additionally, Hood alleged Ryobi was negligent and the saw was
defective. The trial court granted summary judgment for Ryobi, and Hood appealed.
Procedural In Hood's diversity case hel raised claims of failure to warn and defective design under several
History theories of liability. On cross-motions for summary judgment the district court entered judgment
for the defendants on all claims, finding that in the face of adequate warnings Hood had altered the
saw and caused his own injury. [] Hood appeals.
Issue Must an adequate warning always explain what will happen if a warning is not followed?

153
 (What is the extent of the warnings)
Whether a manufacturer will be liable for failing to warn about dangers from misusing
a product if it provides a warning but does not list in detail all possible consequences
associated with product misuse?
Reasoning Some commentators have observed that the proliferation( 增 加 ) of label detail threatens to
undermine the effectiveness of warnings altogether.
Holding No. Ryobi issued a reasonable warning of potential danger from using a saw without blade
guards, and is not liable for damages to Hood.
A manufacturer does not have a duty to warn about all potential consequences associated with
misusing a product, but only has a duty to provide a warning that is reasonable under the
circumstances.
In determining whether a warning is adequate, courts should consider whether the benefits
of a more detailed warning outweigh the costs of requiring the change. Hood’s argument
that the cost of requiring Ryobi to print a more detailed warning label is minimal is rejected.
Research exists showing that the more convoluted(错综复杂的) a warning label, the greater
potential for the message of the label to be lost due to all the text. A warning label listing every
possible consequence from every possible misuse of a product runs the risk of being too
technical and dense to be adequately read and understood.
In contrast, Ryobi’s warnings about “severe injury” and “possible serious personal injury” are
clear and unequivocal. They state the misuse of the product (removing the blade guards) and the
harm that could result (severe or potentially serious personal injury). A reasonable consumer
reading these warnings would be adequately warned that potential danger could result from
removing the blade guards. Ryobi has sold thousands of saws with these labels, and had only
two documented incidents of harm such as that caused to Hood stemming from misuse of the
product.
Additionally, Hood provided no evidence of an overarching societal benefit from requiring
Ryobi to supply a more cluttered label. Ryobi provided adequate warnings as a matter of law,
and is not liable for injuries suffered by Hood.
The decision of the trial court is affirmed.
Rule A manufacturer does not have a duty to warn about all potential consequences associated with
misusing a product, but only has a duty to provide a warning that is reasonable under the
circumstances.
-【Rule of Law】A manufacturer may be liable for placing a product on the market that
bears inadequate instructions and warnings or that is defective in design. Moran v.
Fabergé, Inc., [332 A.2d 11 (Md. 1975)];
Maryland does not require an encyclopedic warning. Instead, "a warning need only
be one that is reasonable under the circumstances." Levin v. Walter Kidde & Co., [248
A.2d 151 (Md. 1968)1.
A clear and specific warning will normally be sufficient-"the manufacturer need not
warn of every mishap or source of injury that the mind can imagine flowing from the
product.
In deciding whether a warning is adequate, Maryland law asks whether the benefits
of a more detailed warning outweigh the costs of requiring the change.

154
4.1 The standard for adequacy.

According to the court, an adequate warning must be "reasonable under the

circumstances."
In determining whether a warning is adequate, courts should consider whether the
benefits of a more detailed warning outweigh the costs of requiring the change.
Leading formulation supplied by Pittman v. Upjohn Co., 890 S.W.2d 425, 429 (Tenn.
1994):
A reasonable warning not only conveys a fair indication of the dangers involved, but
also warns with the degree of intensity required by the nature of the risk. [I Among the
criteria for determining the adequacy of a warning are:
1. the warning must adequately indicate the scope of the danger;
2. the warning must reasonably communicate the extent or seriousness of the harm
that could result from misuse of the [product;
3. the physical aspects of the warning must be adequate to alert a reasonably prudent
person to the danger;
4. a simple directive warning may be inadequate when it fails to indicate the
consequences that might result from failure to follow it and,
5. the means to convey the warning must be adequate.

Content of the communication：

If the manufacturer merely warned "use product safely to avoid injury," then doing
so would clearly be inadequate. An adequate warning conveys whatever detailed
information the consumer must know in order to use the product safely.

-Information costs

-Method of communication
In addition to the content of a warning, courts consider the method by which the
manufacturer communicates that content to the user. (e.g. Spanish)

4.2 Causation and the "heeding（留心/听从）presumption."

A number of states have adopted a presumption that the ordinary consumer will read
and heed an adequate warning. This "heeding presumption" places the burden on the
defendant to show that the user would not have followed an adequate warning if one
had been given.

-Interplay of design and warning

When, if ever, can the supplier choose to give a safety instruction instead of

155
 redesigning the product to make it safer? Assume that in Camacho, p. 594 supra, Honda,
after rejecting the advice of its marketing department, had placed in large print on every
motorcycle that lacked leg guards the following conspicuous statement: "WARNING.
THIS PRODUCT CONTAINS NO LEG GUARDS. ANY ACCIDENT IS LIKELY TO
CAUSE THE OCCUPANT SERIOUS LEG INJURIES." Might this have affected the
design-defect issue in Camacho? As this question suggests, warnings effectively make
product risks open and obvious to the consumer.
As Camacho illustrates, even for dangers that are patent（明显的） to the ordinary
consumer, the manufacturer can still be liable for defective design. Consequently, a
warning about a particular product risk does not necessarily absolve the manufacturer
from the duty to eliminate that risk with a reasonable redesign of the product. In the
design part of the case, the Hood court declared that Maryland imposed "no duty to
predict that a consumer will violate clear, easily understandable safety warnings such
as those Ryobi included with this product."
A warning affects how consumers use the product and therefore the amount of risk
that is the subject of the manufacturer's design decision, leading the court to conclude
that "whereas an adequate warning will avoid liability on a failure to warn theory, it is
but one factor to be weighed in the balance in a design defect case."

-Products dangerous for another exposed class (adult and child)

Sometimes a product that is appropriate for one class of consumers is dangerous for
another group that is exposed to the product. (e.g. Children)

4.3 The addressee.

An important question in judging the need for, and adequacy of, warnings is to whom
they are addressed. The normal rule is that they must reach the person who is likely to
use the product. Thus, under the sophisticated user doctrine, a manufacturer has no duty
to warn when the class of foreseeable users already has specialized knowledge of the
danger.

State v. Karl（被告通过中间医生卖药，认为自己不需要 warning）

Supreme Court of Appeals of West Virginia, 2007.

220 W.Va. 463. 647 S.E.2d 899
• DAVIS, CHIEF JUSTICE.
Facts Dr. Wilson prescribed the drug Propulsid to Mrs. Gellner, and she died three days later.
Propulsid was manufactured and distributed by Janssen (defendant). Mrs. Gellner’s estate
(plaintiff) filed a products liability claim against Janssen. The circuit court denied Janssen’s
motion for summary judgment, which argued that under the learned intermediary doctrine
it had fulfilled any duty to warn Mrs. Gellner by providing warnings about Propulsid to Dr.

156
 Wilson. Janssen sought a writ of discretionary review to determine whether this jurisdiction
should adopt the learned intermediary doctrine.
Procedural History August 26, 2004, Jansen filed a motion for summary judgment asserting that, under the
learned intermediary doctrine, it had fulfilled its duty to warn by providing warnings
regarding Propulsid to Dr. Wilson. [The circuit court denied Janssen's motion by order
entered on June 13, 2006. [Jansen sought discretionary appellate review, which was
granted.]
Issue Does a drug manufacturer fulfill its duty to warn consumers of a product’s risks
by providing warnings to physicians, under the learned intermediary doctrine?
Reasoning 1.医药环境的改变，商家直接把药卖给消费者。We, however, find such changes to be
a significant factor in deciding this issue, especially the impact direct-to-consumer
advertising has had on the physician/patient relationship.
2.引用 New Jersey 对于 doctrine 的反驳
Holding/Reasoning No. A drug manufacturer should be held to the same duty to warn consumers of a
product’s risks as other product manufacturers.
This court declines to adopt the learned intermediary doctrine, which would create an
exception to a drug manufacturer’s duty to warn consumers about a drug’s risks if the
manufacturer properly warns the prescribing physician of such risks.
Courts adopting the learned intermediary doctrine have found that a manufacturer can
reasonably assume that, where a drug is properly labeled and carries instructions and
warnings, the prescribing physician will use his own judgment in the best interests of the
patient.
Justifications previously offered for the learned intermediary doctrine include: (1) the
difficulty in warning ultimate prescription drug users; (2) patients’ reliance on their
physician’s judgment in choosing prescription drugs; (3) the physician’s control over
selecting appropriate drugs; (4) the belief that physicians are in the best position to warn
patients; and (5) concern that direct warnings to users would interfere with the patient-
physician relationship.
These justifications are outdated and unpersuasive, given the more recent proliferation of
advertising to ultimate prescription drug users, and the use of the internet to obtain
information on prescription drugs. Direct-to consumer advertising in particular has
eliminated all of the previous justifications given for the learned intermediary doctrine.
Changes in drug marketing are reflected by the number of exceptions to the learned
intermediary doctrine recognized by courts. Even the Restatement (Third) of Torts
recognizes exceptions to the doctrine. There is no benefit in adopting a doctrine that would
require numerous exceptions. In addition, it is not unreasonable to require drug
manufacturers to provide warnings directly to ultimate users, where it is the manufacturers
who benefit from drug sales and possess knowledge of potential harms, and the ultimate
users who bear the significant risks of using those drugs. This court finds that it is in the
general public’s best interest to require that drug manufacturers be held to the same duty
to warn consumers of a product’s risks as other product manufacturers. Janssen’s writ is
denied.
Rule A manufacturer has a general duty to warn consumers about the risks of their products.
Concurrence Because drug manufacturers have a ready forum in which to warn ultimate drug users about

157
 the risks of their products, in the form of direct-to consumer advertising, they should not
be exempt from a manufacturer’s general duty to warn.
Dissent Whether the learned intermediary doctrine should apply is a question that should depend
on the unique circumstances of each individual case. The doctrine should apply where the
drug at issue was not the subject of mass advertising, or where the physician did in fact
assume the role of a learned intermediary in recommending a particular drug’s use.
-Major negligence claim: medical malpractice (if they didn’t inform the risks before the
surgeon; informed consent;)

4.4 About the learned intermediary doctrine

1.the Only state expressly reject this doctrine. Notwithstanding the majority's
tallying of courts that have accepted and not accepted the learned intermediary doctrine,
Karl is the first decision by a state high court to reject it.

2. The traditional reason for having the learned intermediary doctrine.

“(1) the difficulty in warning ultimate prescription drug users; (2) patients’ reliance on
their physician’s judgment in choosing prescription drugs; (3) the physician’s control
over selecting appropriate drugs; (4) the belief that physicians are in the best position
to warn patients; and (5) concern that direct warnings to users would interfere with the
patient-physician relationship.”

3. (different jurisdictions have different views, 对于这个 doctrine 有的赞同有的否

认 )"The learned intermediary doctrine provides an exception to the general rule
imposing a duty on manufacturers to warn consumers about the risks of their products."
The learned intermediary doctrine stands for the proposition that a drug
"manufacturer is excused from warning each patient who receives the product when the
manufacturer properly warns the prescribing physician of the product's dangers." []
Hence, a drug manufacturer's duty to warn consumers about the dangers of its
prescription drugs extends only to the prescribing physician or healthcare provider, who
acts as a "earned intermediary" between the manufacturer and the ultimate consumer
and assumes responsibility for advising individual patients of the risks associated with
the drug.

4.5 Pharmaceutical design defect claims.

For the most part, the risks of pharmaceuticals are addressed through warnings. In
part, this is because, drugs that may be beneficial for one class of patients can be
dangerous for another.
This issue is addressed by the Second Restatement in an inscrutable comment,
comment k, which exempts "unavoidably dangerous products" from strict liability

158
 because they have benefits that necessarily come with dangers that cannot be eliminated.
Comment k caused considerable confusion for the courts, which the Products Liability
Restatement sought to resolve by providing in section 6 (c) that:
A prescription drug or medical device is not reasonably safe due to defective design
if the foreseeable risks of harm posed by the drug or medical device are sufficiently
great in relation to its foreseeable therapeutic benefits that reasonable health-
careproviders, knowing of such foreseeable risks and therapeutic benefits, would not
prescribe the drug or medical device for any class of patients.
Under this approach, thalidomide cannot be defectively designed because of its
therapeutic benefits for one class (lepers), despite the risk posed to another class
(pregnant women).

-Allergic reactions.
Courts have treated allergic reactions as a separate class of harm, often holding that
a manufacturer has no duty to change a product's design to guard against allergic
reactions when the product's benefit to the public outweighs the harm it may cause to
the idiosyncratic few.
Liability for failure to warn may be imposed, however, when the number of allergic
sufferers is substantial, although some courts do not even require a substantial number
before imposing a duty to warn. Comment k to section 2 of the Products Liability
Restatement states: "Essentially, this reflects the same risk-utility balancing undertaken
in warnings cases generally."
The following case discusses the question of liability where the claim is that there was
a failure to warn even though the information about the risk that came to pass was
unknown (and not reasonably knowable) at the time the product was distributed. The
court bases its decision on the implied warranty of merchantability, which under
Massachusetts law is "congruent in nearly all respects with the principles expressed in
the Restatement (Second) of Torts § 402A" rule of strict products liability. Back v.
Wickes Corp., 378 N.E.2d 964, 969 (Mass.1978).

Vassallo v. Baxter Healthcare Corporation(尖端技术在那时候检测不出来)

Supreme Judicial Court of Massachusetts, 1998.

428 Mass. 1, 696 N. E. 2d 909.
• Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY and MARSHALL, JJ.
• GREANEY, JUSTICE.
Facts In February 1977, Florence Vassallo (plaintiff) underwent breast implantation surgery
and received silicone-gel implants manufactured by Heyer-Schulte Corporation. Baxter
Healthcare Corp. (Baxter Healthcare) and Baxter International, Inc. (Baxter International)
(defendants) eventually assumed responsibility for breast-implant products manufactured
by HeyerSchulte. In 1992, Vassallo had a mammogram after complaining of severe chest
pain. The mammogram revealed that her left breast implant had ruptured, and her right

159
 implant contained small holes through which silicone gel was leaking. Vassallo suffered
permanent tissue scarring, chronic inflammation, and problems with her immune system
due to the silicone-gel leakage. She and her husband brought suit against Baxter Healthcare
and Baxter International. She stated that if she had known of the risks associated with gel
leakage, she would not have had the procedure. Additionally, evidence was introduced at
trial showing that Heyer-Schulte knew of the possible risks associated with leakage of
implants at the time they were received by Vassallo, and did not inform her of all the
potential risks. The jury found that the defendants had actual or constructive knowledge of
the risks of breast implants at the time they were given to Vassallo and also found the
defendants liable for negligence. Baxter Healthcare and Baxter International appealed.

[Plaintiff claimed that silicone gel breast implants, manufactured by a company since
bought by defendant, had been negligently designed, accompanied by negligent product
warnings, and that they breached the implied warranty of merchantability, with the
consequence that she was injured. Her husband claimed loss of consortium. A jury returned
verdicts on the negligence and warranty counts in favor of the plaintiffs. On direct appeal,
the court upheld the judgment entered on the negligence verdict.]
Procedural History
Issue May a defendant be held liable for breach of the implied warranty of merchantability for
failure to warn or provide instructions about risks that were not reasonably foreseeable at
the time of sale or could not have been discovered by way of reasonable testing prior to
marketing the product?
Reasoning
Holding/Reasoning No. A defendant may not be held liable for breach of the implied warranty of
merchantability for failure to warn or provide instructions about risks that were not
reasonably foreseeable at the time of sale or could not have been discovered by way of
reasonable testing prior to marketing the product.
This rule represents the majority view among most jurisdictions. In contrast, the
minority(pure strict liability rule/hindsight rule) view regarding the duty to warn under
the implied warranty of merchantability presumes that a manufacturer was fully informed
of all risks associated with the product at issue, regardless of whether this was actually the
case at the time of sale, and imposes strict liability for failure to warn of these risks.
The minority view is unfair for manufacturers because it imposes liability for
unforeseeable risks from foreseeable product use. Unforeseeable risks by definition are
those for which a manufacturer is incapable of issuing a warning. This is because the
manufacturer has no knowledge of these risks, and could not obtain this knowledge even
through reasonable testing. A fairer approach is to impose liability upon the manufacturer
for all risks that are within its actual or constructive knowledge because those risks could
be learned upon reasonable testing.
The minority rule is abolished, and the majority rule is adopted.
In this case, however, Baxter Healthcare and Baxter International cannot take advantage
of this new rule. The jury found them liable for negligence, and this conclusion is supported
by the record. Further, the jury found the defendants had both actual and constructive
knowledge of the risks inherent in siliconegel breast implants at the time of implantation

160
 in Vassallo. Accordingly, the decision of the trial court is affirmed.
Rule [Quimbee] A defendant may not be held liable for breach of the implied warranty of
merchantability for failure to warn or provide instructions about risks that were not
reasonably foreseeable at the time of sale or could not have been discovered by way of
reasonable testing prior to marketing the product.
A manufacturer will be held to the standard of knowledge of an expert in the appropriate
field and will remain subject to a continuing duty to warn (at least purchasers) of risks
discovered following the sale of the product at issue.

4.6 用 Hindsight approach 吗

business 降低风险的两种方法:
1. Insurance（Problem using this method）: They have to use previous data to define
the money charged. And there’s no data, if the risk is not foreseen at that time, totally
unknown risks）；
2. they analyze what they’re doing and look for cost effective ways of risk reduction.

Latency problem, there’s no way can deal with it.

-A hindsight(事后聪明) approach
（指代 strict liability）

4.7 State of the art (最先进的技术)

According to the Products Liability Restatement section 2 rptrs. note to cmt. d, "the
term 'state of the art' has been variously defined by a multitude of courts. For some, it
refers to industry custom or industry practice; for others, it means the safest existing
technology that has been adopted for use; for others it means cutting edge technology,"

4.8 Post-sale warning obligations.

Even if defendants are not liable for the unknown risks that cause injuries after their
product is marketed. do they have an obligation to warn once the first hint of trouble
appears? If not, when does the obligation arise? The Vassallo court suggested that
manufacturers have a continuing duty to warn after sale.
the court rejected defendant's first argument that it owed no duty as to dangers
discovered after the sale. The court noted that most states to address the issue had
recognized such a duty, although other courts had rejected a post-sale duty.

161
4.9 Subsequent remedial measures.

When a defendant manufacturer takes steps, after an accident, to make the product
safer, rule 407 of the Federal Rules of Evidence prohibits the plaintiff from using those
subsequent remedial measures to prove that the product was defective or the
manufacturer negligent.

5 Defenses

Early in the development of strict products liability, courts recognized that the
consumer's "misuse" of a product could absolve the manufacturer from liability.
Unfortunately, the term proved to be confusing because it was employed to perform
several functions without courts fully articulating those multiple meanings.
Normally, foreseeable misuse is not a defense. RAD may lower the foreseeable
misuse.
（This quarter, negligence 没完全讲完的情况下，开始讲了 product liability.）
Indeed, some of those misuses were not truly affirmative defenses, but instead
addressed whether plaintiff had established a prima facie case of products liability:
1: The issue of product misuse can be relevant to whether a defect existed in the
first place.
Based on the crashworthiness doctrine, courts have extended the design obligation
beyond intended uses to foreseeable ones, which includes car crashes. Based on the
concept of foreseeability, the manufacturer is obligated to design or warn against
foreseeable misuses of the product, the type of conduct at issue in Ryobi, p. 609 supra.
The extent of uses that a manufacturer must anticipate can be affected by the
marketing scheme employed.
2: A second, and not entirely unrelated, reliance on the misuse doctrine is with
regard to proximate cause.
3 Finally, the term "misuse" is often invoked by courts to describe unreasonable
but foreseeable consumer behavior——a true affirmative defense.
When section 402A was promulgated in the 1960s, contributory negligence barred
the plaintiff's recovery in negligence actions. This rule posed a problem in product cases.
If plaintiffs could never recover for foreseeable product misuse, then this bar to
recovery would effectively eliminate the manufacturer's obligation to consider the risk
of foreseeable product misuse when designing the product.
Consequently, section 402A cm. n, which is discussed in the next case, sharply
limits the role of contributory negligence in product cases. Today, comparative fault or
responsibility（比较过错原则 Compare the defendant’s and plaintiff’s） is applied in
the products liability context in the overwhelming majority of states. Product misuse
no longer necessarily bars recovery, but issues now emerge about what, exactly, should
be compared. The following material addresses common situations in which courts
must make such a comparison and further discusses the treatment of defenses to

162
 products liability in the Second Restatement and in the subsequent Products Liability
Restatement.

Because product cases have raised issues in the prima facie case unlike those we have
previously considered, it should not be surprising that differences might appear in the
area of defenses, as well. As you read this section, consider whether the crucial lines
are (1) those that divide product-derived harms from others, (2) those that separate strict
liability from negligence, or (3) those that distinguish among personal injury, property
damage, and economic harm. State statutes may explicitly cover products liability as in
the case below-or courts may extend either common law or statutory principles of
comparative fault to products cases.

Comparative Negligence
(Pure)Comparative negligence: Even plaintiff is more negligent than the defendant,
the plaintiff can still be recovered (P:99.9%; D:0.1%, then the plaintiff can recover
damage✖0.1%)
(Modified)Comparative negligence:
1. “less than”: P has to be less negligent than the D. (P: 49.9%; D: 50.1%). P:50%,
D:50%
2. “less than or equal to”: P:50%; D: 50%
*3 种方法在不同的 jurisdiction 都有用

5.1 Contributory Negligence, Comparative Responsibility, And

Assumption of Risk

General Motors Corp. v. Sanchez（原告停车车没有合适地采取安全措施，车

本身也有 defect，导致死亡，适不适用比较责任）

Supreme Court of Texas 997 S.W.2d 584 1999

Facts Lee Sanchez, Jr. bled to death from injuries sustained when his Chevy pickup truck,
manufactured by General Motors Corporation (GM) (defendant), rolled backward and
pinned him between the open driver’s side door and a gate. Sanchez’s family, his wife, and
his estate (plaintiffs) brought a products-liability claim against GM, alleging a defect in the
truck’s transmission. Although there were no witnesses to the accident, the plaintiffs

163
 theorized that Sanchez had exited the truck to close the gate, leaving the truck door open
and the engine running, and had mistakenly shifted into an intermediate position between
gears. As he walked toward the gate, the gear shift slipped into reverse, and the truck rolled
backward into Sanchez. The truck's owner's manual included a discussion of safety
measures to take upon exiting the truck to ensure that the truck would not move when
parked. These safety measures included setting the parking brake, placing the truck
completely in park, turning off the engine, removing the key from the ignition, and pulling
down on the gear shift to ensure that the parking gear was fully engaged. Although
Sanchez's father testified at trial that Sanchez probably read the owner's manual, the
plaintiffs' experts all agreed that Sanchez had not performed any of these recommended
safety measures before exiting the truck. The experts further agreed that if Sanchez had
performed any one of the safety measures, the accident would not have occurred. The jury
found that the transmission was defective and that GM had failed to give an adequate
warning, but that Sanchez was 50 percent responsible for the accident.
The trial court disregarded （因为他们觉得这个不是 defense）the finding that Sanchez
was partially responsible and awarded the plaintiffs $8.5 million in damages. The court of
appeals affirmed. GM appealed to the Texas Supreme Court. On appeal GM argued, among
other things, that the trial court improperly refused to apply comparative responsibility to
reduce the plaintiffs' recovery. The plaintiffs contended that comparative responsibility did
not apply in their action based on strict products liability because Sanchez's negligence
was nothing more than the failure to discover or guard against a product defect.
Procedural History
Issue Does comparative responsibility apply to reduce a plaintiff's damages in a strict-
products-liability action if the plaintiff's negligence is something other than the failure to
discover or guard against a product defect?
Reasoning
Holding/Reasoning Yes. Comparative responsibility applies to reduce a plaintiff's damages in a strict-
products-liability action if the plaintiff's negligence is something other than the failure to
discover or guard against a product defect.
In Keen v. Ashot Ashkelon, Ltd., 748 S.W.2d 91 (1988), this court held that a plaintiff’s
failure to discover or guard against a defect is not a defense to a strict-liability claim and
will not limit a plaintiff’s damages. At the time Keen was decided, Texas’s comparative-
negligence system applied only to negligence cases and did not extend to strict-liability
claims.
After Keen, the civil code’s comparative-negligence provision was changed to one of
comparative responsibility, under which a plaintiff’s damages are reduced by his or her
percentage of responsibility. The new statute includes claims for strict liability and applies
to any conduct on the plaintiff’s part that violates a legal duty of care.
（本院的看法） A consumer has no legal duty to discover or guard against product
defects. To impose this type of duty would defeat the purposes of strict liability. However,
although a consumer has no duty to discover or guard against product defects, he must still
take reasonable precautions, and a plaintiff’s conduct other than a failure to discover or
guard against a defect is subject to comparative responsibility.
In this case, the truck’s manual described several safety measures to take when exiting

164
 the truck, including turning off the engine, removing the key, placing the truck in park, and
setting the parking brake. Sanchez did none of these things before exiting the truck, and
the plaintiffs' own experts agreed that taking any one of these safety precautions would
have prevented the accident. Sanchez, as a driver, had a duty to operate his truck safely
and to take reasonable precautions to secure the vehicle before exiting, regardless of any
known or unknown product defect or dangers. Sanchez’s negligence was thus unrelated to
the product defect, in contrast to a mere failure to discover or guard against a defect. There
was sufficient evidence to support the jury’s finding that Sanchez breached his legal duty
to exercise ordinary care and that he was 50 percent responsible for the accident. The
appellate court's judgment is reversed, and the matter is remanded with instructions to
reduce the plaintiffs' award of actual damages by 50 percent.
Rule Comparative responsibility applies to reduce a plaintiff's damages in a strict-products-
liability action if the plaintiff's negligence is something other than the failure to discover
or guard against a product defect.
-（这一大段就是说，最开始的时候过失发现/保护不是严格责任 defense， 但是
1987 变了，根据承担责任的比例来减少损害赔偿，而且还把这个范围扩大了，包
括 negligence 和 strict liability）
Keen v. Ashot Ashkelon, Ltd., [748 S.W.2d 91 (1988) (failure to discover or guard
against a defect is no defense to a strict liability claim)], such negligence does not
constitute a defense to strict liability.
[Before 1987, negligence cases were submitted under the statutory comparative
negligence system. Keen was decided at the time this statute was in effect, but it did not
apply to Keen because the statute only governed negligence actions and Keen included
a strict liability claim. Hence, Keen was decided under common law principles-
including "the rule in comment n to § 402A of the Restatement (Second) of Torts, that
negligent failure to discover or guard against a product defect is not a defense."
（change of our statutes： change the “comparative negligence” to the “comparative
responsibility”为什么要这么做？11:40 因为 jury 会 confused，因为都用 negligence
的话，虽然我们考虑原告有无 negligence，但是 defendant 始终是在 strict liability
的 concept 下，也即对于被告而言，没有 negligence，也会让被告的律师钻空子说
他没有 fault，因此用 comparative responsibility 更加合适）In 1987, the Legislature
changed Chapter 33 from comparative negligence to comparative responsibility. Under
comparative responsibility, a court reduces a claimant's damages recovery by the
"percentage of responsibility" attributed to him by the trier of fact. The new statute
expressly included suits based on strict tort liability. It defined "Percentage of
responsibility" as the percentage that a party "cause [d] or contribute [d] to cause in any
way, whether by negligent act or omission, ... [or] by other conduct or activity violative
of the applicable legal standard" the harm for which damages are sought. Thus, as the
emphasized language indicates, the new statute applies to a claimant's conduct that
violated the duty to use ordinary care or some other applicable legal standard. （court
接受了这个 statute 吗？没有）
The statute merely says that if a claimant breaches an existing duty, then comparative
responsibility shall apply. Accordingly, if a plaintiff's failure to discover or guard
against a product defect breaches no duty, the statute does not apply.

165
 （不同意了这个）Thus, Keen's viability after the 1987 revisions depends on
whether a plaintiff in a strict liability case has a duty to take steps to discover and guard
against product defects. [A later court] refused to recognize such a failure as a defense,
relying in part on comment n to section 402A of the Restatement (Second):
Contributory negligence of the plaintiff is not a defense when such negligence
consists merely in a failure to discover the defect in the product, or to guard against the
possibility of its existence. On the other hand the form of contributory negligence which
consists in voluntarily and unreasonably proceeding to encounter a known danger, and
commonly passes under the name of assumption of risk, is a defense under this Section
as in other cases of strict liability. If the user or consumer discovers the defect and is
aware of the danger, and nevertheless proceeds unreasonably to make use of the product
and is injured by it, he is barred from recovery. （本院更加倾向于考虑这两点之间
的东西，见下图的 spectrum）

（本院不这样认为）We note that comment "n" was not carried forward in the
Restatement (Third). The position of Restatement (Third), section 17(a), is that a
plaintiff's conduct should be considered to reduce a damages recovery if it fails to
conform to applicable standards of care, similar to the Texas 1987 statutory scheme.
However, comment d to Restatement (Third) states: [When the defendant claims that
the plaintiff failed to discover a defect, there must be evidence that the plaintiff's
conduct in failing to discover a defect did, in fact, fail to meet a standard of reasonable
care. In general, a plaintiff has no reason to expect that a new product contains a defect
and would have little reason to be on guard to discover it.(朝着“Failure of discover”
前进)

（本院的观点）We believe that a duty to discover defects, and to take precautions

in constant anticipation that a product might have a defect, would defeat the
purposes of strict liability. Thus, we hold that a consumer has no duty to discover or
guard against a product defect, but a consumer's conduct other than the mere failure to
discover or guard against a product defect is subject to comparative responsibility.
Because we conclude that a consumer has no duty to discover or guard against a
product defect, we next determine whether the decedent's conduct in this case was
merely the failure to discover or guard against a product defect or some other
negligence unrelated to a product defect.

本院事实上拒绝了仅仅以这两个点就去定义。。 （本院更加倾向于考虑这两点之
间的东西，见下图的 spectrum） ：
Contributory negligence can be Categorize into 2 parts:
1.Failure of discovery
2. Assumption of Risk(原告知道有 risk，还这样做)

166
-The comparative exercise

-Enhanced injuries
In many cases, plaintiffs do not allege that the product defect caused the entirety of
their injury, but simply that it enhanced what would otherwise have been a less serious
harm.

-Apportionment among defendants

5.2 Other Affirmative Defenses（Disclaimers）

Disclaimers and contractual waivers.

(大部分法院采取的方法)The Products Liability Restatement addresses the validity

of disclaimers in section 18: "disclaimers and limitations of remedies by product sellers
or other distributors, waivers by product purchasers, and other similar contractual
exculpations, oral or written, do not bar or reduce otherwise valid products liability
claims against sellers or other distributors of new products for harm to persons." This
section adopts and extends comment m to section 402A of the Second Restatement,
which stated that "The consumer's cause of action in tort] ... is not affected by any
disclaimer or other agreement. ..." The Products Liability Restatement section 18 cmt.
a justifies this rule on the ground that "it is presumed that the ordinary product user or
consumer lacks sufficient information and bargaining power to execute a fair
contractual limitation of rights to recover."（但是如果是 equal bargain power，也可
以用 disclaimer or waiver，但是很大部分情况下没有 equal bargain power）
Courts, however, have adopted distinct approaches regarding the enforceability of
disclaimers. By far the most prevalent one is consistent with the Products Liability
Restatement, although some courts distinguish between disclaimers of negligence
liability, recall Hanks, p. 464 supra, and strict liability. Thus, in Westlye v. Look Sports,
Inc., 22 Cal.Rptr.2d 781 (App. 1993), the court held that express assumption of the risk
would bar plaintiff's negligence action but not her strict liability claim for the failure of
her ski boot bindings to release when she fell. The court reasoned that "one purpose of
strict liability in tort is to prevent a manufacturer from defining the scope of his
responsibility for harm caused by his products." Allowing a defense of disclaimer in the
products area would contravene(违反) this fundamental end of strict liability. By
contrast, in Money v. USA Hockey, Inc., 77 F.Supp.2d 859 (N.D. Ohio 1999), rev'd on
other grounds, 5 F.App' 450 (6th Cir.2001), the court held that a disclaimer barred a
strict liability claim against a hockey equipment manufacture

Statutes of repose（除斥期间）区别于statute of limitation

Statutes of repose are similar to statutes of limitation in that after the passage of a

167
 specified period of time, a claim is barred unless previously filed. Statutes of repose are
different in that the time begins to run when the product is first sold (or sometimes when
manufactured), rather than when the claim accrued, as with statutes of limitation.

Preemption（优先适用原则）

As we saw in Chapter VII, an increasing number of federal statutes and regulations

are reducing the scope of state tort liability. The principal case on the preemption
defense, Riegel, p. 488 supra, involved a defective product claim, although there was
no legal significance to the underlying tort claim being a products liability action. Most
recent Supreme Court decisions on preemption of tort claims have occurred in the
products liability context. See Chapter VII, Section C.

7 Product/Service Hybrid Transactions

Royer v. Catholic Medical Center（植入人造膝盖，发现有缺陷，原告起诉

医生被拒）

Supreme Court of New Hampshire, 1999.

741 A.2d 74.
• BROCK, C.J.
Facts Catholic Medical Center (CMC) (defendant) sold and surgically implanted a prosthetic
knee in Royer (plaintiff). The prosthetic knee had to be removed, and a new one
surgically implanted, after it was discovered that the original prosthesis was defective.
Royer sued, claiming that CMC was strictly liable because it had sold him a prosthesis
with an unreasonably dangerous design defect. The trial court dismissed CMC, finding
that it was not a seller of goods for strict products liability purposes. Royer appealed.
Procedural History
Issue May a health care provider be held strictly liable for supplying a defective prosthesis in
the course of providing health care services?
Reasoning
Holding/Reasoning No. A health care provider may not be held strictly liable for supplying a defective
prosthesis in the course of providing health care services. As noted in § 402A of the
Restatement (Second) of Torts, a defendant is subject to strict liability for injuries caused
by an unreasonably dangerous defective product only if the defendant is engaged in the
business of selling the product. A defendant who only provides services is not similarly

168
 liable, unless he or she violates some legal duty. This court disagrees with Royer’s
characterization of CMC as primarily a seller of the prosthetic knee. A majority of
jurisdictions that have addressed this issue have found that health care providers
primarily render a service and are not sellers for strict liability purposes.
A patient such as Royer does not enter a hospital to purchase a prosthesis, but rather
to obtain treatment. The provision of a prosthesis is merely ancillary to such treatment.
The reasons strict liability was adopted include the practical impossibility of proving the
negligence or fault of a mass manufacturer of goods, the lack of a contractual
relationship between manufacturers and consumers, and the fact that a mass
manufacturer is better able to spread the economic risks among its consumers. This is
not a case in which there is no possibility that someone other than the manufacturer
created the design defect. There is no indication that CMC modified the prosthesis(假
体). (但其实也有让医院承担 strict liability 的 argument：e.g.：)
In addition, holding a health care provider strictly liable for design defects in
prostheses would result in higher costs for all health care consumers. Finally, any
reasons in support of strict liability for health care providers are outweighed by the need
in the medical services context to be innovative and experimental, the dependence on
factors beyond a medical professional’s control, and the lack of certainty of the desired
medical result. This court therefore finds that a health care provider is not a seller of
goods, and may not be held strictly liable, where it supplies a defective prosthesis in the
course of providing health care services. The trial court’s grant of CMC’s motion to
dismiss is affirmed.
Rule A defendant is subject to strict liability for injuries caused by an unreasonably
dangerous defective product only if the defendant is engaged in the business of selling
the product.

-In New Hampshire, "[o]ne who sells any product in a defective condition unreasonably
dangerous to the user or consumer or to his property is subject to [strict] liability for
physical harm thereby caused" if, inter alia, "the seller is engaged in the business of
selling such a product." [section 402A] If the defendant merely provides a service,
however, there is no liability absent proof of a violation of a legal duty.

169