Torts Quarter 2 Outline

8/2/2019 Torts Quarter 2 Outline

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1. Proximate Cause

a. Physical InjuryRyan v. NY Central RR (NY 1866): RR started a fire that spread to s house and

then on to others. No recovery for , damages are too remote. That the fireshould spread is not a necessary or usual result. The result depends on accidentalcircumstances, such as degree of heat, state of atmosphere, condition and

materials o the adjoining structures and the direction of the wind. cannot beheld responsible for these circumstances. If Z cant recover then A cant recover.Narrow interpretation of ordinary and natural result. Seen as arbitrary. Idea thatwind and similar factors intervene is generally rejected.

Coase: Every harm is shared.If the land was not well kept or prone to fire, this can affect liability.Least cost avoider: if it costs $100 for the RR to install spark guards, and $10 to clear

land, then the land should be cleared.Smith v. London & South Western RR- RR held liable for fire that caught on RRs

piles of grass trimmings and spread to s cottage. Piles deemed negligent so RR

was responsible for the resulting damage.City of Lincoln v. Albatross: found that the acts of the cause the damage in a way

that such a consequence as in the ordinary course of things would flow from theact.

Jones v. Boyce- a forced to act in a dangerous manner by and hurt, will beliable.

Mauney v. Gulf Refining Co- Contradicts Boyce and Tuttle, by saying that if theaccident was not foreseeable by the , then they are not liable. This is narrow def.of foreseeability as Williams says The test of foreseeability does not require allthe details of what happens to be foreseeable; it is enough if it is foreseeable ingeneral outline

Berry v. Sugar Notch Borough (PA 1899): was speeding on a street with a weaktree during a windstorm. The tree fell on the car, injuring . Judgment for , courtrules that s speeding does not affect right to recover as it was not a cause of theharm. Gorris v. Scott: Similar to Berry, the unpinned sheep washed overboard; no

liability because statute not designed to prevent this loss.Coincidence principle: negligent behavior does in increase risk. Accident is

coincidental.Dillon v. Twin State Gas & Electric: trespasses on bridge, and falls from girder. ,

power company, installed wires without safety coating running along bridge. fellfrom bridge and was killed by electric shock from wires. is liable for negligent

installation of wires. If would have died anyway, damages are limited to thosecaused by shock. If would not have died, damages are the difference betweenvalue of life lived without shock and with shock.

Hypo: ship is headed to Mars Colony Omega. If someone negligently kills apassenger on the way to the ship, but then the ship explodes anyway, does thismean the person is not liable for the death? No, the passenger might decide not toget on the ship anyway. Think about it the other way around: what if negligently hits s car on her

way to launch. is not hurt, only delayed, and misses take off. Ship explodes.Can recover the damages avoided by ? No.


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Prince: RR takes woman too far and puts her in hotel. A lamp explodes. not liablefor harm since this could have happened at any hotel. Coincidence principle.

Hines v. Garrett: RR took past her stop, she was raped twice on her walk back toher last station. held liable, area was obviously very dangerous.

Sometimes a court will conflate damages and liability because the damages areexorbitant.

Hypo: house full of Ming vases catches fire: There is the Vosburg argument, butmaybe the owner should have insured them or put them in a museum.

If they were in a museum then the RR would know to be careful there.Brower v. NY Central & Hudson RR (NJ 1918): RRs negligence in crashing into cider

cart is not negated by the thieves that stole the cider. The thieves were interveningactors, but the theft was foreseeable, so the RR is liable by proximate cause,especially since they had two armed detectives guarding their cars. Dissent: Theintervening act here was unforeseen and so RR should not be liable. Watson v. Kentucky and Indiana Bridge & RR: Endorses Brower dissent.

The Second Restatement Approach Two positions on third party intervention on 2nd restatements substantial

factor test

448- The first actor is not negligent for the conduct of an intervening actor,unless the actor should have realized the likelihood that such a situationmight be created, and that a third person might avail himself of theopportunity to commit such a tort or crime.

449 If the likelihood that a third person may act in a particular manner isthe hazard that makes the actor negligent, then that second act, if it isinnocent, negligent, intentionally tortuous, or criminal does not prevent theactor from being liable for harm caused as a result.

442B. Intervening Force Causing Same Harm As That Risked By ActorsConduct. Where the negligent conduct of the actor creates or increases therisk of a particular ham and is a substantial factor in causing that harm, the

fact that the harm is brought about through the intervention of another forcedoes not relieve the actor of liability, except where the harm is intentionallycaused by a third person and is not within the cope of the risk created by theactors conduct.

281: If the actors conduct creates a recognizable risk of harm only to aparticular class of person, the fact that it causes harm to a person of adifferent class, to whom the actor could not reasonably have anticipatedinjury, does not render the actor liable to the persons so injured.

Restatements position is that the should be liable because the third partyexploited the dangerous condition created by the .

Watson was repudiated by Britton v. Wooten (fired worker ignited RRs spilledgasoline, criminal intent did not matter, only the foreseeability of the act) whichdid not relieve the for stacking flammable materials outside of a grocery store,though arson may have been the igniting factor.

The Third Restatement Approach 29: An actors liability is limited to those physical harms that result from

the risks that made the actors conduct tortious

When a force of nature or an independent act is also a factual cause ofphysical harm, an actors liability is limited to those harms that result fromthe risks that made the actors conduct tortuous


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the harm, and b) there is no rule of law relieving the actor from liability because ofthe manner in which his negligence has resulted in the harm. Substantial factor: has such an effect in producing the harm as to lead

reasonable men to regard it as a cause, using that word in the popular sense,in which there always lurks the idea of responsibility, rather than in the so-called philosophic sense

3rd Restatement rejects all permutations of the substantial factor, intervening causeand supervening cause language.

Marshall v. Nugent and Trucking company (1st1955): Truck owned by oilcompany cut a corner and forced the s car off the side of the road. Truck driver,Prince, offered to pull s car back onto the road and told him to go around thecorner to warn oncoming traffic of the blockage. The , Nugent, then travelingnorthbound, found his way blocked and in an attempt to avoid hurting anyoneskidded his car into a fence which he glanced off, hitting and severely injuringhim. Princes negligence constituted an irretrievable breach of duty to the . Theinjury suffered by Marshall was not remote, either in time or place, from thenegligent conduct of s servant. Jury returned verdict for Nugent and another forMarshall against the oil company. Affirmed Proximate cause: It would bedisproportionately burdensome to hold culpable actor potentially liable of all theinjurious consequences that may flow from his act, i.e., that would not have beeninflicted but for the occurrence of the act. This is especially so where theinjurious consequence was the result of negligence merelythe court tries toconfine the liability of the negligent actor to those harmful consequences whichresult from the operation of the risk, or of a risk, the foreseeability of whichrendered the s conduct negligent. It is impossible for a person to predict inadvance just how his negligent act would work out to anothers injury, but this isnot a bar to recovery. Should go to jury. Test: Confine liability of a negligent actor to those harmful consequences which

result from the operation of the riskthe foreseeability of which rendered

the s conduct negligent. liable before the disturbed waters have become placid and normal again,

even if s eventual injury is bizarre indeed and impossible to predictThree major tests:

Polemis: Directness test, every harm from negligence is recoverable. Palsgraf: Foreseeability test, specific. The risk reasonably to be perceived

defines the duty to be obeyed

Marshall: Liability for the consequences of an accident before the return tonormalcy. Just because harms are direct does not mean they are subject torecovery.

Overseas Tankship (UK) v. Morts Dock & Engineering (Wagon Mound No. 1) (1961Australia High Court): Original trial found for . appeals. Appeal allowed. hadnegligently discharged oil. The wind carried the oil to the s wharf. Supervisorordered no welding or burning in the area. He made some inquiries to themanager of the Cal Tex Oil company, this information and his own knowledge,satisfied him that the oil was not flammable and instructed his men to resumewelding operations and to take care that nothing flammable should fall into the oil.About 2 and a half days later the s wharf was destroyed when the oil caught fire.Seeks to overturn Polemis: if the is guilty of negligence, he is responsible for allthe consequences whether reasonably foreseeable or not. Introduces theconception that the negligent actor is not responsible for consequences that are


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In this case, the court found that the Plaintiff met the requirements to achieverescuer status. The rescuer doctrine was developed for public policy reasonsbecause rescuers should be anticipated and should not be barred from bringingsuit. There is no reason that this policy should not apply to situations where amanufacturer causes the danger. Therefore, for the rescuer to show causation,they only need to show that the defendant proximately caused the danger and thatthey were injured as a result of their actions as rescuer. It is a possibility thatSuzukis negligence caused the Defendant drivers accident and therefore they

should not be protected from liability to the Plaintiff.Review:

Intervening actsa. May break the causal chainb. But, expect reasonable response, even if badc. Not all intentional intervening acts break chaind. Act v. Omissione. Acts under compulsion

Coincidence principle Good type v. Bad type

Alternative regulatory regimea. Social normsb. Reputation costsc. Government (ex ante or ex post) regulation

b. Emotional DistressTwo lines of defense:

Denies any connection between the distress and the s conduct, blaminganother event for the s emotional harm

Holds that even if the s conduct is the cause in fact of the s injury, thatconduct is not the proximate cause

Mitchell v. Rochester Railway (NY 1896): was waiting for a car to arrive when ahorse car of the came down the street and stopped so close to her that she wasbetween the horses heads when it stopped. This frightened her, she fainted,resulting in a miscarriage and illness. cannot recover for injuries induced byfright. If this class of cases were recoverable it would open up action which iseasily feigned without detection where damages rest on conjecture or speculation.

No personal injury (could not have been reasonably anticipated had nocontrol)

Flood of litigation (this implies that the judiciary is unable to make importantdistinctions in general.

Where is the line? Does Mitchell come out differently if horse slobber hit ? Cite: Porter(NJ 1906): something Kenney(NH 1925): mouse hair on roof of mouth Turnage (GA 1928): horse poop

Dillion v. Legg (CA 1968): Child was hit by a truck while crossing the street. Threeclaims result: 1) WD by mother for child; 2) Emotional distress of mother(dismissed as not within zone of danger); 3) Emotional distress of sister. Factorsto consider when discovery the s foreseeability: distance from accident See v. Learn about


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Whether and victim were closely related or distantly linkedZone of Danger test:

Narrow: Damages only if threated with bodily injury (Dulieu) Broad: Damages if immediate family witnesses the accident (Dillon)

Evolution of case law: No recovery for emotional distress Damages for ED only if physical injury

. . . if physical touching (like poop) . . . if fear for oneself (then damages for fear for others too) . . . if parent (or sibling?) in zone of danger . . . depends . . .

Hypo: is driving down 57th Street. , driving the same direction, negligently but

gently strikes her from behind, causing no damage to s vehicle. , believingshe has struck and killed a small child on a bicycle, collapses at the wheel. loses consciousness and hits her head on the steering wheel. wakes fromher coma weeks later; she suffers headaches and severe psychologicaldamages as a result of thinking about killing a child. sues for NEID; what

result? Williamson v. Bennett(NC 1960): no liability. Casual connections, while they

may run through the victims instinctive and non-cognitive responses, do notrun through the visions of ruination that are in essence self-generated.Epstein, Causation and Corrective Justice: A Reply

Line drawing: Tobin (NY 1969): no recovery for mother who heard screech of brakes and

arrived moments later extends logically to caretakers who just hear thenews

Elden (Cal. 1988): no recovery for lover who was also injured in same crash(given states interest in promoting marriage); cf. Dunphy(NJ 1994)

Coon v. Joseph (Cal. 1987) (no recovery for gay life partner, even when seesintentional assault)

Thing (Cal. 1989): must be direct observation by someone close and suffersbeyond that which would be anticipated in a disinterested witness

Dziokonski (Mass. 1978): parent can recover if at scene or arrives shortlythereafter

Engler(Minn. 2005): mother can recover for her fright but not PTSD fromthreat (in same incident) to her son

Grotts (NY 1993): no recovery for niece raised by aunt from age 11 Lee (Ga. 2000): jury must separate harm caused by witnessing death of child

from typical harm from hearing about lossRestatement Third:

46 Negligent Conduct Directly Inflicting Emotional Disturbance on AnotherNote 4: RTT 46(b)

An actor whose negligent conduct causes serious emotional disturbance toanother is subject to liability to the other if the conduct:

a. places the other in immediate danger of bodily harm and theemotional disturbance results from the danger; or


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b. occurs in the course of specified categories of activities, undertakings,or relationships in which negligent conduct is especially likely tocause serious emotional disturbance

i. Examples: Telegram announcing death, Mishandling corpse,Mouse in food, Misdiagnosis of serious illness, Hospital losingbaby, Severe mistreatment by employer, Severe mistreatmentby spouse.

Majority rule P can recover from D for negligence that causes mental anguish Molien (Cal. 1980): recovery for damage, including divorce, arising from false

diagnosis of syphilisCan parents of P in Molien recover too?

What if parents also treated by same doctor? Yes:Marlene F. (Cal. 1989) (same psychiatrist); Burgess (Cal. 1992) (same

OBGYN)

No if no contractual privity (Huggins (Cal. 1993) (wrong prescription))

2. Strict Liability

a. FoundationsIn a world without friction costs, there is no difference between SL and negligence.Why negligence? In most cases the facts of negligence are clear, so if you have the

more aggressive liability rule, then you can neutralize any uneasy feelings aboutliability.

The Thorns Case (Hull v. Orange)(YB 1466): trimmed thorn bushes adjacent to sproperty and came onto s property to collect the thorns, trespassing. liable fortrespass. Demonstrates an example of strict liability for damages related totrespass. The intent to do the act was sufficient.

Controversial, but Thorns points to strict liability.Millen v. Fandrye: Dog continued to chase sheep on neighbors land after chasing

them off his masters land. Land owner sued dog owner, finding for citingThorns case since the act of chasing the sheep was lawful and it cannot beexpected that the dog would be recalled instantly.

Hard case:Harm caused by s dog occurs to Ts land while chasing s sheep off sland. Should T be able to recover against ? Yes, but can sue to indemnifylosses.

Morris v. Platt: Shop owner who was getting robbed accidentally shoots third party.Finding for .

Tithe Case: sued when farmer placed the corn in the field for . moved the cornto the s barn, where it was destroyed. tried to justify actions on the groundthat the corn was in danger of being destroyed by beasts in the field. Court did notaccept argument. If a third party interferes and the item is destroyed then theymust be held liable, because if the item had been destroyed without interference,then the would have grounds for recovery.

Inevitable accident defense (wouldnt work under SL): History

Weaver v. Ward: Weaver sued Ward; they were skirmishing for muskets and Wardaccidentally hurt Weaver. This is strict liability recovery: The analysis is a factual


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one, involving the questions: 1) whether Defendant acted; and 2) whether Plaintiffwas injured in some way as a result of that action.

Gibbons v. Pepper: was on an out of control horse that hit and injured . Lowerand upper courts for . Inevitable accident defense not available though tried toshout and warn .

Modern ResponseButigan v. Yellow Cab: Court repudiated with defense in intersection collisions,

noting that an accident may be unavoidable or inevitable where it is caused by asuperior or irresistible force or by an absence of exceptional care which the lawdoes not expect of the ordinary prudent harm.

McWilliams v. Masterson: man who killed his wife and injured family while drivingduring snowstorm and hitting cattle and going in front of truck was given anunavoidable accident instruction. is the driver of car, is the truck driver. Cattleowners received same jury instruction. Rule of vicarious liability for animals.

Rough progression of Negligence from Inevitable Accident (Butigan): Strict liability Defense based on proof of exceptional care (inevitable accident rule) Defense broadened so proof of ordinary care allowed as a defense Burden switched to to show negligence

Scott v. Shephard (Squib case): is liable though he did not throw the squibdirectly at the .

b. Animals Prevailing rule is negligence Exceptions: wild animals, and animals known to be dangerous. Gehrts v. Batteen (SD 2001): Domesticated dog owned by bit , it was an 18 mo St.

Bernard. Judgment for , dog had no history of dangerous behavior. Negligence

standard, not strict liability. Black-letter law:

o Strict liability for two categories: Wild animals (done on a species by species basis) Animals known by owner to have dangerous propensity:

Old rule: one free bite Other ways to determine

Baker v. Snell: A man who sicked a dog on someone else was not held vicariouslyliable through his master, since it seemed that the attack was an assault perpetratedby the servant.

Woods-Leber v. Hyatt Hotel PR: Hotel not liable for mongoose attack since they didnot own, control or know of mongoose.

Rubenstein v US: US not held liable for attack of wild animals in national parks. Thepark also warned the is writing of the danger of camping in the park, dischargingduty to warn and showing that assumed the risk.

RTT 21 excludes cats and dogs from strict liability because of:o Frequency of claims, size of damages, reciprocity, fear of animosity given

asymmetric ownership; history of disputes.o Includes livestock under strict liability, but not harms that are not reasonably

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Williams v. Goodwin: was wrkng in his garden when s trespassingbull attacked him.

Denver v Kennedy- zoos cannot be held strictly liable for attack. However it wasfound that the zebra pit was inadequately constructed.

Collier v. Zambito- family dog bit visiting child. No recovery since the dog had notdisplayed vicious tendencies.

Ferrara v. Marra- a pit bull attack. Court did not want to impose strict liability,because that would create a precedent of SL for all pit bull owners.

Gibbs v. Jackson - totaled her car when she crashed into a horse that hadwandered into the road. No liability was found since the judge did not want tointerfere with the free range rule which allows livestock to wander on publicgrounds.

Garcia v. Sumrall- Noted the division of authority on the question and opted for ahigher standard, taking the view adopted in Colorando and Wyoming that requires to show some overt and unlawful at on the part of the which tends to increase thenatural propensity of cattle to wander and to direct them upon the premises ofanother

Lazarus v. Phelps- intentional tort only when the owner places the cattle on his landin a manner which makes it substantially certain that they will stray.

RST 524: does not allow contributory negligence. RTT 25: reduces damages.

c. Ultrahazardous Activities Nitro example. Harm is not within the risk. Spano v. Perini Corp (NY 1969): = Spano, owner of a garage in Brooklyn which

was wrecked by a blast. = Davis had a car in the garage. = joint venture who wasconstructing tunnel near the garage, contracted with the city of NY. Explosives aretreated as SL. Judgment for .

o Booth v. Rome- proof of negligence was required unless the blast wasaccompanied by an actual physical invasion of the damaged property. Strict liability for Ultrahazardous activities forces the actors to bear the cost of

inevitable damage and gives them incentive to take caution. 519 RST 520 RST

o It doesnt matter whether the dangerous thing is used for profit or not.o Does not need to be used on s propertyo If reasonable care will not eliminate risk, then there is strict liabilityo If the thing is in common usage strict liability will not be imposed (a car vs

tank, for example)o It the use is a value to the community, then the risk may not be treated as

abnormal.o American Law Institute, Restatement (Third) of Torts: Liability for Physical

Harm 20 RST

o strict liability is assigned when reasonable care does not eliminate the riskassociated with an abnormally dangerous object.

What is Ultrahazardous?o Fireworks, pile driving, crop spraying, transportation of gasoline


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o Not: Providing electricity, selling handguns, airplanes, transmitting naturalgas.

Indiana Harbor Belt RR v. American Cyanamid Co (7th Cir 1990): Who should playfor the clean up of the Cyanamid spill in Chicago. = IHB = American Cyanamidco. Where the harm is a result of negligence, and not the inherent properties of asubstance, then negligence regime is sufficient to prevent future harm. BUT- theinherentdanger did lead to damage/suit. There wouldnt have been any danger,worry, or preventative action having to do with the spill if the chemical was not

inherently dangerous. If the tank had been full of water we would not be havingthis suit. Reversed and Remanded in favor of .Does not matter who pays, really.

520 factorso (a) existence of a high degree of risk of some harm . . .o What does Posner say? Accident not attributable to dangerous properties of

acrylonitrile, like corrosivenesso (b) likelihood that the harm that results from it will be greato What does Posner say? The accident did not cause an explosion and destroy

the possible evidence of negligence as in Siegler v. Kuhlman (exploding fueltruck obliterated P and her car)

o (c) inability to eliminate the risk by the exercise of reasonable careo What does Posner say? [I]f a tank is carefully maintained the danger of a

spill of acrylonitrile is negligible.o (d) extent to which the activity is not a matter of common usageo What does Posner say? Not much . . . District court: not frequency but

number of firms/people (very few persons ship 20,000 gallons ofacrylonitrile by tank car . . . [s]uch a shipment is not a matter of commonusage.)

o (e) inappropriateness of activity to the place . . .o What does Posner say? Hub-and-spoke system makes this inevitable.

rerouting is no panacea because of distance and/or quality tradeoffo

(f) extent to which the value to the community is outweighed by itsdangerous attributeso What does Posner say? Not much . . .

Posner claims that if there is residual harm expected after the exercise of due care,then strict liability is more desirable

o Is this right? Not necessarily. Need to inquire into the impact on accidentvictims incentives.

Madsen v. East Jordan Irrigation Co., (UT 1942): Shock from a blast frightenedmother minks and they killed their young. Mother minks broke causal chainbecause minks action was unanticipated, so strict liability does not apply, butnegligence.

d. Nuisance RST 821D: A private nuisance is anontrespassory invasion of anothers interest

in the private use and enjoyment of land. Substantial or unreasonable interference. must prove:

o s land use substantially interfered with s use and enjoyment of her lando s land use was unreasonable

Typical nuisance categories:o Noise (blasting)


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Kuzniak v. Kozminski: moved his coal and wood shed close to the s propertyline, where it blocked the light and air to the s windows, partly out of malice. Butcourt did not enact spite fence doctrine because the shed had a useful purpose.

Single owner test: what will create the most profit. Rogers v. Elliot (MA 1888): Bell ringer. Nuisance liability must not be regulated by

the effect on a particular person, but by an ordinary person. If ones right to use hisproperty were to depend upon the effect of the use upon a person of particulartemperament or disposition, or upon suffering from an uncommon disease, thestandard for measuring it would be so uncertain and fluctuating as to paralyzeindustrial enterprises. Judgment for .

o RST: There is liability for a nuisance only to those who whom it causessignificant harm, of a kind that would be suffered by a normal person in thecommunity or by a property in normal condition and used for a normalpurpose (This means people with no sense of small could recover for anuisance smell).

Belmar Drive-In Theater Co. v. Illinois State Toll Highway Commission: s operateda toll-road service center that was adjoined to the s outdoor movie theater.Theater complained that the Toll booths lights interfered with movie watching.

Court ruled for under extra sensitivity test. Page Country Appliance Center v. Honeywell, Inc: Honeywell installed a computer

whose radiation interfered with TVs in s store. Extrasensitivity test did not workbecause having a TV was not an exceptional condition. Finding for .

Ensign v. Walls (MI 1948): s dog breeding business was considered a nuisance bythe court. Coming to the nuisance is not an absolute defense.

o Why Coase doesnt take care of this: collective action problem, many peoplewith a small interest in the dogs.

Bove v. Donner-Hanna Coke: sought to enjoining the operation of s coke over.Court rejected request for an injunction because the moved into the area knowingthat it was an industrial area. Court did not want to interrupt business.

o This is the minority view: what justifies it? An opportunistic can move in,file an injunction and magically raise property value. Wouldnt the marketaccount for this? Wouldnt be such a deal.

Escobar (MA 1992): The s knew there was a bakery business propertys locationand the s business activities.

Spur Industries v. Del Webb Development (AZ 1972): Allowing injunction in partbecause of presence of innocent purchasers in development.

Boomer v. Atlantic Cement Co (NY 1970): Suit alleging injury to property from dirt,smoke, and vibration from plant. Injunction granted on the basis that where anuisance has been found and where there has been any substantial damage shownby the party complaining an injunction will be granted. But they do not want to shut

the plant down entirely, so they opt to grant the injunction conditioned on thepayment of permanent damages to s which would compensate them for the totaleconomic loss to their property present and future cause by s operations.

Anonymous (1536): A can sue for a nuisance, even if the nuisance has thepotential to or does harm the greater population, if he is especially hurt by thenuisance.

532 Madison Avenue Gourmet Foods, Inc. V. Finlandia Center, Inc (NY 2001): Thesouth wall of a building collapsed, shutting down 15 blocks of Manhattan, resultingin lost business for stores. Court holds that a landowner does not owe a duty to


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Dissent: The concrete was negligently manufactured and so the should be able torecover.

Strict liability ruined personal airplane business. How to solve:o Cap on damages, change SoL, conservative proximate cause regime (problem

here?), liberal contributory negligence/assumption of risk regime, liberalsuccessor liability rules.

General Aviation Revitalization Act of 1994 (GARA) Cafazzo v. Central Medical Health Services, Inc. (PA 1995): Hospital and a physician

cannot be held subject to strict liability under Restatement of Torts (2nd) 402A, fordefects in a product incidental to the provision of medical services because they are notsellers. Imposing liability on hospitals would not effect change on a manufacturing levelso the only reason to award damages here would be to compensate the .Affirmed for. (Issue is not that it was a negligent choice or installation, but defective product).

Test (Francioni v. Gibsonia Trucking):o 1. Which members in supply and marketing chain available for redress?o 2. Incentive to safety?o 3. Cheapest cost avoider?o 4. Most efficient risk bearer (spreading losses)?

Tillman: used equipment dealer selling crane as is not liable under 402A.

c. Product Defect Law:

o is not required to prove specific defect.o Can be circumstantial:

E.g., blender blade flies off on first usage; computer bursts into flames afterowning it one month

must show product didnt work as intended; exclude alternative theoriesnot attributable to

o Third Restatement 3: Circumstantial Evidence Supporting Inference of ProductDefect recovery without proof of specific defect can be found when harm is a) of the

kind that ordinarily results from product defect and b) was not solely theresult of causes other than the product defect existing at the tie of sale ordistribution.

Like res ipsa Speller v. Sears, Roebuck and Co (NY 2003): s sued Sears, who sold them a refrigerator

that they maintain was defective and caused a kitchen fire. There is a battle of experts, sexperts say that the fire started in the upper right quadrant of the fridge where there is aconcentration of wiring. A Whirlpool expert conceded that if the refrigerator had caught

fire it was the result of a defect. A two part test from Codling v. Paglia allows the to provePL circumstantially by:

o 1) proving that the product did not perform as intended ando 2) exclude all other causes for the products failure that are not attributable to

defendants.o If s proof is insufficient with respect to either prong, then the jury may not award

damages unless the IDs a specific flaw. The wiring that may have been to blamewas destroyed in the fire: evidence problem. argues that after they came forwardwith evidence suggesting an alternative cause of the fire, s were foreclosed from


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Torts Quarter 2 Outline

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