Negligence

Standard of Care

1. due care - every person has a duty to act as a reasonable person of ordinary prudence would under those circumstances
   1. The greater the foreseeable risk, the greater the duty of care may be. If the risk is not foreseeable, no duty is established.
   2. Common carriers have a higher duty than a reasonable person.
   3. The social utility of the act will be balanced against the risk of harm.
   4. The reasonable man must often anticipate the negligence of others, especially drivers and children.
   5. Hammontree v. Jenner, 97 Cal.Rptr. 739 (Ct. App. Cal. 1971)
      The issue was whether strict liability should apply to an epileptic who was suddenly stricken by a seizure while driving when he had been taking all medical precautions and the seizure couldn't be anticipated. The court held that negligence is and should be the standard for unconcious drivers, and in this case, Jenner was not negligent.
   6. Brown v. Kendall (Mass. 1850)
      This case established the negligence doctrine of liability out of thin air. Defendant was trying to break up two fighting dogs with a stick. The dogs came at him, he backed up and in drawing back to strike again, he hit plaintiff in the eye with the stick. Court held: if a lawful act was unintentional, defendant is not liable unless he failed to exercise due care.
   7. Adams v. Bullock, 125 N.E. 93 (N.Y. 1919)
      D could not be expected to foresee that a child would electrocute himself by swinging an 8' wire, thus he had no duty. Policy: The possible precautions they could have taken were all infeasable, and the social utility of the trolley line was also considered important.
2. risk calculus and the Learned Hand formula
   1. B < P*L implies Negligence. If the Burden of a given precaution is less than the Probability of a loss times the expected Loss (avg loss in avg accident) then there is a duty to take that precaution. What should he have done given what he knew at the time, not after the accident occurred? This formula is a "common sense" formula that should direct people to the optimal amount of accident prevention measures, where total cost of prevention plus total cost of accidents is minimized.
   2. United States v. Carroll Towing, 159 F.2d 169 (2nd Cir. 1947)
      D had no bargee on board during busy harbor time, someone else improperly secured the barge to the pier, the boat sank. L. Hand writes for the court that in this case, the burden of having a bargee on board was less than the reasonably expected accident risk * expected loss. Carroll Towing was thus negligent in this debut of the Learned Hand Formula, B < PL.
1. Reasonable Person (objective) standard - duty to act as a reasonable man would in the same circumstances
   1. Would a reasonable person of ordinary prudence in the position of D, have conducted himself in the same way? This represents the general level of the moral judgement of the community. What the community feels ought to ordinarily be done, not necessarily what is done. External standard by which to measure defendant's level of due care.
   2. Circumstances taken into consideration
      1. a child is held to the standard of a reasonable child of the same age, intelligence, and experience (R2d283A) unless he is engaged in an adult activity such as driving.
      2. physical handicaps wil be taken into account, for example, a blind man will be held to the standard of a reasonable blind man.
      3. knowledge and skill: one is usually held to a higher standard if they are a member of a specific profession, although a truck driver was excepted in Fredricks v. Castora. One must employ reasonable attention and caution of the reasonable man as well as any "superior qualities and facilities which he himself has. Rest. 2d Torts Sect. 298 Comment d.
      4. emergencies are special cases where the amount of care can be lower
      5. drunkenness and other mental problems will not affect the duty required - it would be too difficult a standard to administer.
      6. Vaughn v. Menlove, 132 Eng.Rep. 490 (1837)
         This case established that diminished mental capacity is not an exception to the reasonable person standard. Menlove was a retard who piled hay in a manner that created a fire hazard. He was held liable, because not to have held him liable would have left an unclear rule.
      7. Roberts v. Ramsbottom (Q.B. 1980)
         D will not be liable only if his actions are "wholly beyond his control." Defendant had a seizure prior to driving but was aware of his diminished capacity so he was negligent in doing so anyway.

   The judge and the jury - matters of law and fact.

   1. Judges can limit jury discretion when they think that no reasonable juror could find for the Plaintiff or when as a matter of law the case must be decided one way. The jury decides on the facts and whether there was a breach of duty in those circumstances. Andrews.
      1. Baltimore & Ohio Railroad Co. v. Goodman, 275 U.S. 66 (1927)
         As a matter of law, a person hit by a train at a crossing was negligent. "he must stop and get out of his vehicle" -J. Holmes
      2. Pakora v. Wabash Railway Co., 292 U.S. 98 (1934)
         Pakora limited Goodman to its facts. Cardozo wrote for the court "extraordinary situations may not wisely or fairly be subjected to tests or regulations that are fitting for the common-place or normal." A jury should decide what is reasonable under the circumstances. They would be local and more familiar with the facts of the situtation.
      3. Akins v. Glens Falls City School District, 424 N.E.2d 531 (N.Y. 1981)
         Court decided 4-3 that as a matter of law a 24 by 50 foot backstop meets the reasonable care required of the operator of a baseball field.
   2. Custom plays a role in establishing due care, but it is not conclusive
      1. Custom is not despositive but can provide some evidence of negligence.
         1. level of expectation of safety features - People will expect the customary level of safety features. If someone reasonably relies on a safety feature that isn't there, there may have been a duty. Trimarco.
         2. creates an expectation of behavior - if the custom is to act one way and D acted another, that can be evidence of negligence
         3. notion of collective wisdom - If everyone is doing it, it must be right! Right mom?
         4. shows feasibility of conduct - If many others are doing it, it removes the excuse if too difficult or expensive.
      2. Andrews v. United Airlines, Inc., 24 F.3d 39 (9th Cir. 1994)
         In a de novo review, the court decided that a jury should decide whether UAL had done enough to prevent falling bags from injuring passengers. As a common carrier, UAL had a heightened duty to guard against even small risks, and a jury could reasonably decide that UAL had done enough or that they should have done more. Rapidly changing conditions make it more appropriate for jurors who have been airline passengers to decide.
      3. Trimarco v. Klein, 451 N.Y.S.2d 52 (1982)
         A tenant was injured when he fell through a thin glass shower door in his apartment. The custom for some time had been to use tempered glass, although not at the time the building was built. A custom is not necessarily conclusive evidence of negligence, it still has to be reasonable under the circumstances.
   3. Statutes - violation of a safety statute may be negligence per se
      1. If the statutory violation is the factual cause of the accident, and the intent of the statue was to prevent this type of harm to this class of person, D won't be allowed to argue the legislature set too high a standard.
      2. Martin v. Herzog, 126 N.E. 814 (N.Y. 1920)
         The court held that the failure of the defendant to turn his lights on, an unexcused violation of a safety statute, is negligence in itself. A jury won't be allowed to minimize his blame.
      3. If the statute is general, such as one to promote public order, justifications can be offered for deviation from non-safety statutes.
      4. Tedla v. Ellman, 19 N.E.2d 987 (N.Y. 1939)
         The statute requiring pedestrians to walk on one side of the street was intended to promote public order, not necessarily safety. If obeying the statute will subject you to more imminent danger, you may be excused from obeying it.
      5. Statutory violations may be excused if the violation was the lesser of two evils or if D couldn't avoid the violation even if careful.

   Proof of Negligence

   1. Three types of evidence
      1. direct evidence - witnesses
      2. circumstantial evidence - allows inferences
      3. real evidence - recordings, or physical items
   2. Notice is requried for negligence
      1. 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 ot permit defendant's employees to discover and remedy it. See Negri v. Stop and Shop, 480 N.E.2d 740 (N.Y. 1985)
         
      2. Gordon v. American Museum of Natural History, 492 N.E.2d 774 (N.Y. 1986)
         Plaintiff failed to prove constructive knowledge of a dangerous condition on the part of the museum. The paper he claimed to have slipped on was clean, indicating it wasn't there long.
   3. res ipsa loquitur: "the thing speaks for itself" It says P has met burden on production, creates an inference of negligence when you cannot prove negligence. It only for when there is no other evidence of negligence and allows P to go to the jury. Inference can be strong or weak depending on the case, occasionally it will be a rebuttable presumption.
      1. Byrne v. Boadle, 159 Eng.Rep. 299 (1863)
         A barrel of flour rolled out of a window and hit P in the head. This case created the res ipsa loquitur doctrine because there was no evidence available to show negligence other than that the guy was hit in the head and that doesn't normally happen. The accident itself is prima facie evidence of negligence. If there are any facts inconsistent with negligence, the defendant has the burden of producing them.
      2. Anderson v. Service Merchandise Company, Inc., 485 N.W.2d 170 (Neb. 1992)
         A light fixture fell from the ceiling and injured P while shopping. Svc. Mdse. had a non-delegable duty to provide safe business premesis. Thus, it was responsible for any accidents on its premises since it had exclusive control of the place.
      3. Ybarra v. Spangard, 154 P.2d 687 (Cal. 1944)
         P went in for appendicitis, came out with terrible shoulder pain. The court held that if a person is unconscious during a medical procedure and they receive an injury unrelated to the procedure then if the accident:
         1. usually does not happen in the absence of someone's negligence,
         2. must be caused by something in the exclusive control of the defendant, and
         3. plaintiff is not contributorily negligent
         the Plaintiff will be allowed to go to the jury. Plaintiff had no way to determine which of multiple defendants was at fault, and the defendants had all the information in their control, so the burden of production was put on them in this case to explain their actions. Generally courts require that there be no direct evidence of D's conduct as a threshold for res ipsa to apply.
      4. As a general rule, res ipsa doesn't apply against multiple defendants if the evidence indicates only that an identified one of them is guilty, however, in an exploding bottle case, P was allowed to use it against a manufacturer and a retailer in an exploding bottle case. Loch v. Confair.
      5. two standards for res ipsa
         1. inference of negligence - allows but does not compel the jury to conclude there was negligence
         2. presumption of negligence - defendant must prove lack of negligence with a preponderance of the evidence
      6. P's contributory negligence is a complete defense if the jurisdiction doesn't have comparative negligence.
      7. look for a grossly defective product suit brought in negligence rather than strict liability.

   Special case of medical malpractice

   1. The specialized knowledge and skill of doctors is taken into account, but doctors are held to the standard of the reasonable practitioner of their field, the level of skill required is that of the minimally qualified member in good standing.
   2. Custom is despositive in medical malpractice cases. If there is more than one reputable method, jury can't find negligence if one of the accepted methods was used.
   3. Sheeley v. Memorial Hospital, 710 A.2d 161 (R.I. 1998)
      In a suit against an obstetrician for complications resulting from an episiotomy, the court abandoned the old "similar localities" rule and allowed expert testimony from a board certified doctor. A national reasonable doctor standard for doctors was adopted, that of the "reasonably competent practitioner in the same class to which he or she belongs, acting in the same or similar circumstances."
      Note: this case indicates a policy shift from protection of rural doctors to protection of rural patients
   4. Connors v. University Associates in Obstetrics & Gynecology, Inc., 4 F.3d 123 (2nd Cir. 1993)
      Connors had fertility surgery and lost all function in her leg. The court allowed a res ipsa loquitur instruction to allow her to show negligence by inference because she was unconscious when the injury occurred. Normally res ipsa loquitur cases are because the negligence is obvious from the circumstances to a normal person. In medical malpractice cases, the court will allow the jury to be educated by expert witnesses as to the standard of care.
   5. Informed consent is required prior to medical procedures. A doctor is required to disclose what the reasonable patient would want to know, taking into account what this particular patient has indicated special concern about. Causality is still required, P must show that the decision to undergo treatment would probably have been different.
      1. Korman v. Mallin, 858 P.2d 1145 (Ak. 1993)
         Plaintiff had significant scarring following elective breast reduction surgery. She sued claiming lack of informed consent because the doctor had verbally minimized the risks of scarring after she expressed concern. The scope of disclosure was held to be what a reasonable patient would need to know to make an informed and intelligent decision.
2. Contributory negligence is usually a complete defense.

Duty

1. General - The long term movement is away from duty based on special relationships (inkeeper-guest, carrier-passenger, etc) and toward a general duty of due care to all. Custodial relationships still create a higher duty, however. There is no duty other than ordinary care unless there is: special relationship, assumption of duty, foreseeable risk, negligent entrustment.
2. Obligations to Others
   1. There is generally no duty to act unless there is a special relationship or one has assumed the duty.
   2. Duty will be limited to a reasonable and manageable extent in order to prevent a flood of lawsuits, to protect potential defendants from too many lawsuits, etc.
   3. Harper v. Herman, 499 N.W.2d 472 (Minn. 1993)
      Harper dove off Herman's boat into shallow water and broke his neck. The court held that Herman had no duty to warn Harper, a guest on his boat, that the water was shallow because the dangers of water should be readily apparent to all.
   4. A superior knowledge of danger without a duty to warn doesn't constitute negligence. See Menu v. Minor (holding that cabbie who picked up driver of car stalled on interstate had no duty to person who later hit that car)
   5. Farwell v. Keaton, 240 N.W.2d 217 (Mich. 1976)
      Farwell and Keaton were out drinking and they got into a fight from which they both ran. Farwell was beaten up and later Keaton returned and brought him to his grandparents house where he left him in the driveway. The court held that Keaton had a duty to aid Farwell both because of their special relationship (drinking buddies) and because he assumed the duty by voluntarily going to his aid. Neither is strong enough to stand alone, but together they were enough for the court to find a duty.
   6. H.R. Moch Co. v. Rensselaer Water Co., 159 N.E. 896 (N.Y. 1928)
      No common law tort action available to users of city water. Water Co. failed to supply adequate water to hydrants, exacerbating fire damage, but just because they provide a service doesn't mean they have a duty to do so.
   7. Strauss v. Belle Realty Co., 482 N.E.2d 34 (N.Y. 1985)
      The court held that ConEd had no duty to Strauss to provide lighting in the building's common areas because he was not their customer in that area. They were grossly negligent as a matter of law during a blackout, but publicy policy drove the limitation of liability to a "controllable and foreseeable degree," the court was afraid of the large amount of tort suits that might result from finding a duty here.
   8. Enright v. Eli Lilly & Co., 570 N.E.2d 198 (N.Y 1991)
      The court held that liability for drug exposure is limited to the woman and her fetus, not to the third generation. Liability must be confined within "manageable limits."
3. Obligations to Control the Conduct of Others
   1. One can incur an obligation to control another when there is a special relationship between D and P or D and 3rd Party, particulary when the harm is very foreseeable, and public policy concerns require a deterrence of future harms.
   2. Tarasoff v. Regents of the Univ. of California, 551 P.2d 334 (Cal. 1976)
      This case stretches the duty to warn to new situations. The court held that society's interest in selective disclosure of risks to others was more important than the interest in doctor/patient confidentiality. The special relationship, degree of foreseeability, and policy of preventing future harm were all important. "We conclude that the public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins."
      Note: Tarasoff was limited by later courts to situations where the harm was not self-inflicted and where the potential victim wasn't specifically identified.
   3. Vince v. Wilson, 561 A.2d 103 (Vt. 1989)
      The court held that it was a matter for the jury to decide whether Ace Auto, it's president, Gardner, and Aunt Wilson were guilty of negligent entrustment by either selling to or paying for an automobile for a drug abusing youth who had failed his driving test several times and had no license to drive. Suit was brought by a third party who was injured by the youth in a car accident.
   4. Randi W. v. Muroc Joint Unified School District, 929 P.2d 582 (Cal. 1997)
      A teacher who had had prior charges and complaints of sexual misconduct was hired by a school and subsequently sexually assaulted a student. The student sued the former employers of the teacher because they wrote glowing recommendation letters which highly recommended him for his "outstanding rapport" with students and failed to mention the misconduct allegations. The court applied the Rowland factors and held that there was a duty to not misrepresent the facts in writing a letter of recommendation if the misrepresentation would create a "substantial, foreseeable risk of physical injury to the third persons." Dicta: No duty to third persons w/o physical injury or some special relationship.
   5. Reynolds v. Hicks, 951 P.2d 761 (Wash. 1998)
      Defendants were sued for negligently providing alcohol to their underage nephew via an open bar at their wedding party. He left the wedding and was involved in a car accident with another drunk driver, both having BAC of 0.17. The court upheld summary judgement for defendants, holding there was no duty to the third party. The policy of deterrence favors finding liability, but the statute prohibiting serving minors exempts cases where the parents are present, and the intent of the law is to protect the minor, not others.
4. Landowners and Occupiers
   1. The duty of a landowner to others is either dictated by the common law status relationships, or by the Rowland rule (adopted by Cal. and a few others) of a duty to act as a reasonable man in view of the injury risk to others. Foreseeability, burden of precautions, and fairness must be balanced, if F is high enough and B is low enough, there may be a duty.
   2. Common Law status relationships
      1. trespasser - generally no duty to trespasser, but one cannot have traps set up to harm them.
      2. licensee - duty to warn of risks
      3. invitee - duty to inspect for dangers
   3. Carter v. Kinney, 896 S.W.2d 926 (Mo. 1995)
      Carter attended an early morning bible study at the home of the Kinneys and slipped on some ice, breaking his leg. The issue is whether he is an invitee or a licensee, because the duty to a licensee is less. The court held that he was a social guest (licensee) and that the Kinneys had a duty to make safe or warn of dangers of which they were aware, but no duty to investigate, as they would have for an invitee.
   4. The duties for conditions on the property can be considered similar to nonfeasanse, and the duties for activity on the property can be considered similar to misfeasance. In Bowers v. Ottenad, the court held that reasonable care is required for activities with a licensee and for conditions on the property, the duty to a licensee is only to avoid willful and wanton injuries.
   5. Rowland v. Christian, 443 P.2d 561 (Cal. 1968)
      Plaintiff was a social guest and was seriously injured when a faucet handle broke. The court abandoned the trespasser/licensee/invitee common law rules and adopted the test of "whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others." In replacing the common law rules, they substitued a list of policies including foreseeability, degree of certainty, closeness of connection of conduct to injury, preventing future harm, burden of care, etc, the court may have merely made the policies subsititute for the status with the same results. The difference is that the jury gets to weigh the policies rather than the judge deciding the status.
   6. Williams v. Cunningham Drug Stores, Inc, 418 N.W.2d 381 (Mich. 1988)
      Plaintiff was shot during a robbery of the drug store he was shopping in when he ran out of the store after the robber. He sued, claiming that the store had a duty to provide "armed visible security guards to protect the invitees from the criminal acts of third parties." The court found no such duty existed because the merchant has little ability to control crime in his store, and shouldn't be liable for the general level of crime in the community. Shifting the loss caused by crime from one innocent victim to another is improper. See Davis v. Allied Supermarkets, Inc.
   7. In Taco Bell, Inc. v. Lannon the court affirmed a plaintiff's verdict, holding that the burden of doing certain protective measures such as video cameras, drop safes, etc. was low enough given the foreseeability and gravity of harm of crime.
   8. In Boyd v. Racine Currency Exchange, the court held that there was no duty to comply with the demands of a robber when the clerk is behind bulletproof glass and the robber has a gun to the head of a customer and demands that the access door be opened. The court didn't want to create an incentive for future hostage taking.
5. Intrafamily Duties
   1. Parents are generally immune to negligent claims related to their children.
   2. Zikely v. Zikely, 470 N.Y.S.2d 33 (N.Y. App. Div. 1983)
      Child sues parent on negligent supervision claim. Appellate court ruled that the case was properly dismissed because parents are immune to negligent supervision claims from their children. The court declined to create an exception because it would become too unworkable for the court to interject itself into the family relationship. There is always an affirmative act to be found in a negligent supervision claim.
      Policies: keep judiciary from excessive interjection into family relationship, potential fraud problems, preserve family resources for all members, avoid getting the court involved in the difficult task of setting proper levels of supervision, avoid creating conflict and disharmony between family members.
   3. Notes
      1. One way to get into this situation is where child is injured in an accident, the defendant makes a third party claim against the parent for negligent supervision.
      2. California adopted a reasonable parent standard in Gibson v. Gibson. Arizona did in Broadbent 907 P.2d 42 (Ariz. 1995).
      3. No similar immunity for grandparents, siblings, and others. See Broome v. Horton, 372 N.Y.S.2d 909 (1975).

Nonphysical Harm

1. Emotional Harm
   1. To be compensated for emotional harm, generally one must either have physical impact or a physical symptom such as a miscarriage, or be within the zone of danger.
   2. K.A.C. v. Benson, 527 N.W.2d 553 (Minn. 1995)
      Woman was examined twice by an HIV infected doctor who wore two pairs of gloves to minimize the risk. When she found out, she sued for negligent infliction of emotional distress, and the court upheld dismissal of the claim because she wasn't actually exposed to HIV. The court said the plaintiff must show she (1) was within a zone of danger of physical impact; (2) reasonably feared for her own safety; (3) suffered severe emotional distress with attendant physical manifestations. As a matter of law, the court said she was not within the zone of danger because she wasn't actually exposed to HIV.
      Policies: court is concerned about proveability and fraud, and wants to promote stability and predictability, also fears a flood of litigation which would drain funds which might go to those actually infected.
   3. Exceptions to injury requirement: mishandling of a corpse or botched burial
      1. Gammon v. Osteopathic Hospital of Maine, Inc., (Maine 1987)
         Man gets severed leg in bag of his deceased father's "personal effects" from defendant, sues for severe emotional distress. The court abandoned older artificial distinctions, instead choosing to allow the jury to protect against fraud and decide if the defendant's conduct reasonably could be expected to harm the "ordinarily sensitive person," thus adopting a reasonable man standard.
   4. Compensation for emotional harm due to injuries of another
      1. Portee v. Jaffee, 417 A.2d 521 (N.J. 1980)
         A 7-year-old boy was trapped between an elevator door and the wall of the shaft. His mother looked on for 4.5 hours as police attempted to rescue him. He died while still trapped. Portee sued for negligent infliction of emotional distress. In reversing summary judgement against Portee, the court adopted a four part test: (1) death or serious physical injury of another caused by D's negligence; (2) a marital or intimate familial relationship between P and injured person; (3) observation of death/injury at the scene; (4) resulting severe emotional distress.
         Policies: Stating a need to limit liability to a controllable level, the court enumerated the four items so that harm would be reasonably forseeable and to protect against fraudulent and "weak psyche" claims. Many states still use a 'zone of danger' test, a physical manifestation test, or limit to married couples, but N.J. adopted in 1994 a general foreseeability test.
   5. Johnson v. Jamaica Hospital 467 N.E.2d 502 (N.Y. 1984)
      P's daughter was kidnapped from D hospital. P sued for emotional distress. N.Y. uses a zone of danger test, so P couldn't sue for their emotional distress. D only has duty to direct victim, but because the baby was returned unhurt, and emotional distress would be impossible to prove, there is no emotional distress claim here.
      Policies: Custodial relationship hospital-baby makes a stronger case for duty here. However, the court doesn't want to invite "boundless liability for indirect emotional injury."
   6. Notes
      1. Most courts have allowed awards for Extreme Emotional Distress from knowledge of impeding death, such as plane crashes, even (stupidly) awarding damages to a dead victim's family.
      2. Mishandling corpses and telegrams that incorrectly inform of a family member's death are two exceptions to the zone of danger or physical manifestation requirements.
      3. Many courts recognize claims for misdiagnosis. See Chizmar v. Mackie, 896 P.2d 196 (Alaska 1995).
2. Wrongful Birth and Wrongful Life
   1. Greco v. United States, 893 P.2d 345 (Nev. 1995)
      Woman sued doc because he was negligent in not diagnosing her then fetus with cistic fibrosis. She was denied the opportunity to abort the fetus so she sued for malpractice. Offsetting damages is too complicated here, so the court awarded "extraordinary medical and custodial expenses." Courts have not allowed the child to recover for "wrongful life," but the parents are allowed to recover for excess costs, pain and suffering. Difficulties arise in these cases because we don't want courts evaluating handicaps and value of a life. Will there be a deterrent effect? What are the reasons for compensation here? Is the emotional suffering sui generis (obvious to all)? The court doesn't want to send a message to such children that they are unwanted.

Causation

Cause in Fact - "but for" the act, it wouldn't have happened

1. Causation is an important gatekeeper to keep out weak cases because juries are often predisposed to find for P.
2. Stubbs v. City of Rochester, 124 N.E. 137 (N.Y. 1919)
   Stubbs got typhoid, apparently from contaminated drinking water. The court held that he didn't have to eliminate every other possible cause of the disease because it would be impossible. P must only show reasonable certainty as his burden of proof.
3. Falcon v. Memorial Hospital, 462 N.W.2d 44 (Mich. 1990)
   Falcon died from an amniotic fluid embolism after giving birth. Her estate sued claiming doc's failure to put in an IV that would have given her a 37.5% chance of survival in that situation constituted a loss of opportunity of 37.5% minus the chance of survival w/o the IV. Court held that loss of a substantial opportunity is compensable. In this case, 37.5% of a wrongful death claim would be reasonable.
4. Mauro v. Raymark Industries, Inc., 561 A.2d 257 (N.J. 1989)
   P was exposed to asbestos and has some thickening of the lungs. He seeks compensation for increased cancer risk, but court denies recovery for 20-43% increased risk of cancer, stating that it must be more likely than not that he will suffer the damage. Concerns are that courts will be flooded with cases, many from people who will never get cancer. Save the money for those who actually get cancer, also, don't want to award windfall for those who don't get it and only partial damages for the people who do get it.
5. The old joint and several rule of liability is slowly being abolished in favor of right to contribution under state statutes. Comparative fault is also on the rise.

Multiple Defendants

1. Summers v. Tice, 199 P.2d 1 (Cal. 1948)
   Tice and Simonson were hunting quail when they fired simultaneously at what they thought was a quail, but hit Summers instead. It was impossible to determine from the two pellets that struck Summers who was at fault, so the court shifted the burden to defendants because they were both negligent and may have better information. Court doesn't want to exonerate them when they were both negligent. If there are more defendants, the burden probably doesn't shift because then its too small a chance that any one person is guilty.
2. Alternative liability - when P can show that each of two Ds was negligent, but only one could have caused the injury, the burden shifts to each D to show the other caused the injury.
3. Substantial factor test - in cases where two negligent acts combine to produce a result where either one would have sufficed, the tortfeasor will be held liable if his negligence was a substantial factor in producing the harm. Policy: deterrence and don't want to let D get away with commiting his wrong, even if the other cause was a natural, non-negligent cause.
4. Hymowitz v. Eli Lilly & Co., 539 N.E.2d 1069 (N.Y. 1989)
   Ely Lilly was one of hundreds of companies that produced the estrogen replacement DES. DES produces a signature disease in children born of women who took DES. Because of the long dormancy of the disease, it is impossible to determine which manufacturer made the pills that P took. The court completely abandons causation here, choosing to impose liability based on creation of risk, even if D can prove it didn't produce the pills causing the harm to this particular P. Market share liability is used here, holding D liable for the percent of damages corresponding to his share of those drugs produced in the (usually national) market.
5. Market-share liability - defendants will be held for the proportion of damages corresponding to their share of the market
   1. Some states use a local market, some use a national market.
   2. Only NY disallows exculpatory evidence, in other states, if you can prove you couldn't have sold the defective product, you're off the hook in that case.
   3. A "substantial share" of the market must be sued, probably more than 50%. Shares will be inflated to add to 100% for compensation purposes.
   4. some courts have chosen instead to apply enterprise liability when there is some sort of industry wide cooperation, this is more likely to make defendants joint and severally liable.
   5. this is less likely to work for different products, such as lead paint, because the harms can be caused by other factors, where the cancer caused by DES is unique to it.

Proximate Cause (legal cause)

1. Unexpected harm
   1. Steinhauser v. Hertz Corp., 421 F.2d 1169 (2nd Cir. 1970)
      P was hit by a rental car owned by D. P's kid became schizophrenic after the accident, requiring hospitalization and medication. The child had some evidence of prior history, including molestation, a severe concussion, and an eating disorder. Evidence indicated she had a "prepsychotic" personality. The issue here is whether the accident caused the schizophrenia or merely aggravated an existing problem. Citing several cases where D took his victim as he found him, the court reversed a jury verdict for D, remanding for a new trial, stating that damages should be discounted if she'd have gotten it anyway, but D's role in precipitating the schizophrenia amounts to legal cause.
   2. Polemis D's agent drops a plank which starts a fire. Court ruled that D is liable for all damage caused directly from the dropped plank, including a fire sparked from the plank which was completely unforeseeable. Because D is negligent, he's responsible for all damages, both foreseeable and not. "If the act would or might cause damage, the fact that hte damage it causes is unexpected is immaterial, so long as it is directly traceable to the negligent act." One must be a victim of the negligence, and then you can collect on all unforeseeable damages.
   3. The Wagon Mound, (1961)
      D chartered ship The Wagon Mound, and while taking on bunkering oil, a large quantity was spilled into the harbor. They made no effort to disperse it, claiming they didn't think it could burn when on the water. Two days later it caught fire and severely damaged P's ship. General rule is that one must be responsible for the probable consequences of his act. Determining the scope of liability using the same test as to determine negligence is simple and fair. Just because of some trivial damage cause by the spilled oil congealing, D shouldn't be liable for the unforeseeable fire days later, even if a direct result of thier act. The fire wasn't foreseeable, thus the oil spill was not the proximate cause of it.

Unexpected Victim

1. Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (N.Y. 1928)
   Agent of D pushed a passenger to aid his entry onto a departing train, causing his package to fall to the tracks. The package contained fireworks, and the ensuing explosion injured P, 30ft away, by causing some scales to fall on her. Agent may have been negligent toward passenger, but not to distant P. The issue here is whether his negligence to passenger can give rise to liability to P? In a closely divided court, Cardozo wrote the majority opinion holding that D was not liable, since he was not negligent wrt P, and the explosion was unforeseeable. This is negligence in the air as far as P is concerned. No duty to P is violated. Famous dissent by Andrews said one has a duty to protect society from risk of harm, so D should be liable.
   Cardozo: you are responsible for the class of Ps w/in danger zone, proximate cause is everything directly caused.
   Andrews: Duty to all society proximate cause limited by practical politics, convenience, justice, but not all directly caused.
1. P's negligence may be superseding if it is not foreseeable.