TORTS TA SESSION10/28 & 10/30

◼ Write a Note like Naomi Sheiner and you could be cited by the Ninth Circuit

MARKET SHARE

“Market Share Liability” Key Issues

Q’s to Ask Hymowitz

Is it a signature disease? Yes

Is the product identical? Yes

Can the defendant be exculpated? No

Can the plaintiff prove specific Negligence?

Yes

How are missing defendants being dealt with?

Several Liability

Which market? National

◼ Holding a physician liable for damages when he diminishes or destroys a patient’s likelihood of survival ◼ Limited to malpractice cases▪Reliability of experts and statistical evidence▪A competent party is present on the liability side▪There are common issues in the field

◼ Further limited to actual death▪Theoretically inconsistent ▪Not functional as a deterrent

LOST CHANCE

◼ Second step of causation analysis – weeding out some of the causes that we caught in causation-in-fact net

◼ Third Restatement § 29 : HWF^R▪ “Harms that result from the risks that made the actor’s conduct tortious”

PROXIMATE CAUSE – SCOPE OF L

◼ Unforeseeable Plaintiffs▪ Think of people placed in a foreseeable zone of danger

◼ Unforeseeable extent of harm▪ Thin skull rule – take your plaintiff as you find them▪ Exceptions when the plaintiff would be the cheapest cost avoider

◼ Unforeseeable type of harm▪No liability for this now▪ Think of a plank scraping a ship v. causing an explosion

◼ Unforeseeable manner of harm▪ This is likely to turn on issues of timing▪ The idea is you know the type of harm your N will cause, but it is

produced in a different way.

PROXIMATE CAUSE - FORESEEABILITY

◼ Calabresi - Proximate cause seeks to place the burden on the cheapest cost avoider▪ The goal is to minimize (Plaintiff’s accident costs + Defendants

mitigation costs)▪ Passing loss to whom?▪Knows risk▪Knows how to avoid the risk▪Knows L▪Getting the most bang for your buck approach▪What’s missing?▪ Everything else. No discussion of morality and social norms

CHEAPEST COST AVOIDER

◼ “Ultrahazardous” activities▪ Rylands v. Fletcher▪ Two factors: degree of danger posed + commonness in the area

◼ Second Restatement: “Abnormally dangerous” activities▪ Three dangerousness factors▪ Degree of risk▪ Degree of harm▪ Inability to reduce risk exercising reasonable care▪ Two commonness factors▪ Uncommonness ▪ Appropriateness in the area▪ Final factor: value to community▪ Indiana Harbor Belt v. American Cyanamid

◼ Third Restatement § 20: three factors▪ Foreseeable risk of harm ▪ Harm risked is severe▪ Not a matter of common usage

Don’t forget: SL still requires causation

STRICT LIABILITY - EVOLUTION

Theories of SL◼ Reducing information and error costs◼ Influencing activity level and research decisions◼ Promoting insurance / cheapest cost avoidance◼ Satisfying rights-based norms of responsibility

Negligence v. SL – What’s at stake?

STRICT LIABILITY - MODERN