V.A. The economics of torts (definition, types, deterrence: injurer, victim, ex ante vs. ex post)

V.B. Causation and foreseeability (proximate, coincidental, redundant, statistical, dual)

    Liability as an incentive for efficient behavior - harm
    yWinn Dixie Stores, Inc. v. Benton 576 So.2d 359  (1991) (B&S liability found for not cleaning up floor)
    Drake v. Lerner Shops of Colorado 145 Colo. 1 (1960) (B&S--liability not found because you accept some risks)

    Last clear chance
    y-Davies v. Mann, 10 M. & w. 547, 152 Eng. Rep. 588 (1842). (Marks) C70 [you must take advantage of the last clear chance to avoid harm--how does it differ from butterfield v. forrester? in this case the plaintiff caused the obstruction, and collected damages from the rider. here contributory negligence applies unless the other party has a last clear chance and fails to take it]
    m+British Columbia Electric Rail Co., Ltd., v. Loach, 1916 1 A.C. 7193 (1916) - [a case in which the rail co. could have avoided the accident despite the negligence of the cart driver, so guilty despite negligence of cart driver. not much different from perin and does not mention last clear chance; does mention contributory negligence. added in C&U to illustrate that last clear chance is not decisive either, since the cart driver did have the last clear chance]
    yPerin v. Nelson and Sloan 119 Cal.App.2d 560, 259 P.2d 959 (1953) - last clear chance (B&S) [clear exposition of what last clear chance is and liability if you have it]

    Proximate cause
    yCentral of Georgia Ry. Co. v. Price, 106 Ga. 176 , 32 S.E. 77 (1898), where the plaintiff was dropped off at her station as a result of the negligence of the railroad, and and ended up in a hotel where she was injured when the mosquito netting covering the bed caught fire. (F191n) [good case of lack of foreseeability; also focuses on proximate cause--the hotel is liable, not the RR]
    m+Palsgraf v. Long Island Railroad Company 248 N.Y. 339 (1928) (Duty of Care, Issues of Foreseeability and 'Causality') (pdf, Marks) (C315, F106) [close decision, 4-3. Majority dismisses complaint due to lack of foreseeability, but the behavior was negligent and the decision suggests that it isn't necessary to consider remote outcomes. does define proximate cause and neglgence. friedman calls it an "implausible chain of causation." for details, see john noonan. persons and masks of the law 127 (1976). this would seem to fail the Hand test. C calls it one of the "most famous cases."]

    Lack of foreseeability
    m+Blyth v. Birmingham Waterworks, 11 Exch. 781, 156 Eng. Rep. 1047 (1856) (Marks) - the question was whether a water company had been negligent in failing to bury its water pipes deep enough to prevent them from bursting because of frost and damaging the plaintiff's home. P169 [an early case, did not find negligence since not reasonable to anticipate such a severe frost]
    m+Adams v. Bullock, 227 N.Y. 208, 125 N.E. 93 (1919) (Cardozo, J.) (Marks) - a 12-year-old boy, while crossing a bridge over the defendant's trolley tracks, swung an 8-foot-long wire over the bridge. [a short and clear case about a trolley firm that abides by its mandate and could not have foreseen any particular risk at a bridge compared to anywhere else--no negligence or liability found; else it would "be an insurer"] P169

    Coincidental:
    yBerry v. The Bourough of Sugar Notch, 191 Pa. 345 , 43 A. 240 (1899). (Marks) The provision of the ordinance that the trolley violated was "that the speed of the cars while on the streets of the borough should not exceed eight miles an hour."  F191 [good example of coincidence--brief and well-argued by the court.]

    Redundant:
    yKingston v. Chicago & N. W. Ry. Co. 211 N.W. 913 (1927) [A good example of redundant causation--makes the point that two known tortfeasors are each responsible for the entire loss. Friedman would dismiss damages in this case on eocnomic grounds. It specifically dismisses cook case]
    nCook v. Minneapolis, St. Paul & Sault Ste. Marie R. Co., 98 Wis. 624 , at page 642, 74 N. W. 561 , 566 (40 L. R. A. 457 , 67 Am. St. Rep. 830 ). (F192n) [this case is long and tedious and appears to be more remotel related than kingston]
    [from Cook: The theory upon which compensation goes to an injured person from another whose negligence proximately caused the injury, is not that of punishment for the wrong, but that, in justice to such person, compensation is due for the damages caused to him by such negligence, so far as the same can be reasonably ascertained. Where the wrong of one person concurs with that of another under such circumstances that the injury would not result without the concurrence, it is reasonable to hold each liable for the entire loss, because the same would not have occurred if the negligence of either were absent. Notwithstanding the concurrence of the two causes, each, in a sense, under such circumstances, is the proximate cause of the loss, because there is responsible human causation back of it, without which the injury would not have happened. Again, where two causes, each attributable to the negligence of a responsible person, concur in producing an injury to another, either of which causes would produce it regardless of the other, it is reasonable to say that there is a joint and several liability, because, whether the concurrence be intentional, actual or constructive, each wrongdoer, in effect, adopts the conduct of his co-actor, and for the further reason that it is impossible to apportion the damage or to say that either perpetrated any distinct injury that can be separated from the whole. The whole loss must necessarily be considered and treated as an entirety. But where a cause set in motion by negligence reaches to the result complained of in a line of responsible causation, and another cause, having no responsible origin, reaches it at the same time, so that what then takes place would happen as the effect of either cause, entirely regardless of the other, then the consequence cannot be said, with any degree of certainty, to relate to negligence as its antecedent; requisite intelligent causation necessary to legal liability is wanting, leaving no ground, in reason or in law, for it to rest upon.
    where an injury accrues to a person, by the concurrence of two causes, one traceable to another person under such circumstances as to render him liable as a wrongdoer, and the other not traceable to any responsible origin, but of such efficient or superior force that it would produce the injury regardless of the responsible cause, there is no legal liability. No damage in such circumstances can be traced, with reasonable certainty, to wrongdoing as a producing cause. The one traceable to the wrongdoer is superseded by the other cause or condition, which takes the place of it and becomes, in a physical sense, the proximate antecedent of what follows.
    Friedman: Tortfeasors who are unlikely to be judgement proof, in clear cases of redundant causation, where there is no risk of conspiracy, ought not to be held liable--whether the two agencies were human or one of them natural.]

    White v. Jones, ([1995] All E.R. 691 (H.L.)) a man of 78, who had cut his daugh-ters out of his will, decided to reinstate them and instructed his solicitors to draw up a new will. The solicitors dilly-dallied without excuse and as a result when the man died two months later the new will had not yet been prepared. So the daughters got nothing, and they sued the solicitors--and won. (P186) The difference between this case and Rickards is that in this case the econom-ically apt solution--solicitors' liability coupled with restitution by the recipients of the windfall--may be feasible, as it was not in Rickards because of the large num-ber of those recipients. In White, the will could have been reformed4 so that the original legatees were made to transfer their legacies (or so much of those legacies as necessary to carry out the decedent's intentions) to the intended legatees. If the transfer caused any cost (other than the loss of the legacies) to the original legatees--they may have altered their position in reliance on having received the legacies--they would have a claim against the solicitors for that loss. (P186)
    nScholes v. Lehmann, 56 E3d 750 (7th Cir. 1995). For example, if a charity innocently received a donation from someone who had obtained the money for the donation through securities fraud, the charity would have to return the money because it had not given consideration for it, any more than the original beneficiaries in White v. Jones gave consideration for their legacies. It would be a case of what the law calls "constructive fraud." (P186n) [interesting but does not bear on whether a tort occurred; Posner case]

V.C. Liability

V.C.1. Negligence (Hand formula, reasonable-person standard, custom, contributory and comparative negligence)

Negligence and the Hand rule
    yUnited States v. Carroll Towing Co. 159 F.2d 169 (1947) (Standard of Due Care) (pdf, Marks, B&S) (P168n, C333, F198) Judge Learned Hand stated that "an actor is negligent if the cost of an omitted precaution is less than the probability of harm multiplied by the extent of the harm caused by the omission." (F198n) [actually used the formula]
    For contemporary applications of the formula, see:
    nCross v. Berg Lumber Co., 7 P. 3d 922,936 n. 3 (Wyo. 2000)  [this is more a case of damages, restitution]
    m-Brotherhood Shipping Co. v. St. Paul Fire & Marine Ins. Co., 985 F. 2d 323, 327-329 (7th Cir. 1993)  [a Posner case--very much in the spirit of Hand. Hand's is clear too, so may not be worthwhile, since no new issues raised]
    mBammerlin v. Navistar Intl. Transport. Corp., 30 F.3d 898, 902 (7th Cir. 1994) [it's a product liability case, so maybe useful for that purpose, but it does not add anything new in terms of Hand rule--just a brief example.]
    nI & M Rail Link, LLC v. Northstar Navigation, Inc., 198 F.3d 1012, 1016 (7th Cir. 2000). (P168n) [just refers to the Hand rule--it's an outdated bridge case; nothing novel]
    m-Hendricks v. Peabody Coal Co.  115 Ill. App. 2d 35, 253 N.E.2d 56 (1969) A 16-year-old boy was seriously injured while swimming in the defendant's abandoned strip mine, which had become filled with spring water. (P170) [it's a minor and this speaks to that, but it doesn't illustrate a new principle
    Wagon Mound (No. 2), Overseas Tankship (U.K.), Ltd. v. Miller Steamship, [1966] All E.R. 709, 718 (Privy Council). (P170n)

Custom
    ySaglimbeni v. West End Brewing Co. 274 A.D. 201; 80 N.Y.S.2d 635 (1948) (Marks) (P172n) [good example of how custom does not imply lack of negligence]
    mThe T.J. Hooper, 60 F.2d 737 (1932) [an equally good example of due care vs. reliance--custom is not enough; a Learned Hand case--not worth assigning both]

Joint causation
    yDunn v. Hoffman Beverage Co., 126 N.J.L. 556 (1941) - evidence that courts are concerned with the problem of joint causation (F214n) [very harsh rule that an accident is not enough--you must determine who caused it; a bottler or the retailer in this case]

V.C.2.  Victim fault (contributory negligence, comparative negligence, assumption of risk, duties to trespassers, restitution)

Contributory negligence
    yButterfield v. Forrester, King's Bench, 11 East 60 (1809) (Marks, B&S) C69 [very early case--not excused from blame if you don't exercise ordinary care, despite negligence of another party--the plaintiff was the rider, who was hurt and denied damages. the key here was contributory negligence, prevented recovery]

Comparative negligence
    nMurray v. Fairbanks Morse, 610 F.2d 149 (1979) [long and brings in products liability, so it's not a focused case]
    mDobson v. Louisiana Power & Light Co., 567 So. 2d 569, 574-575 (La. 1990) [a comparative negligence case of a tree trimmer who probably should have known better. cited by posner as an updated hand rule case, but it works well as a comparative negligence case. consider looking for a better one.]]

Assumption of risk
    yOrdway v. Superior Court 198 Cal.App.3d 98 (1988) [B&S - jockey case; you assume risk of racing] focuses clearly on assumed risk
    nKelly v. Checker White Cab 131 W.Va. 816 (1948) (B&S - assumed risk because of failure to exercise opportunity to get out of the cab)

V.C.3. Strict liability (strict liability, product liability)

    yEscola v. Coca Cola Bottling Co., 24 Cal. 2d 453 (CA, 1944)- (B&S) (C307, F214) - the coca cola bottle that exploded (injuring the waitress who was transferring the bottles to the refrigerator) had been out of refrigeration for"at least thirty-six hours" in Fresno, California. The case was heard (on appeal) in July, but I have not been able to find out at what time of the year the accident happened.) [but still, temperature should not make the bottle too weak to handle the pressure--this is a good case which discusses presumptive liability res ipsa loquitor, and dissent discusses strict liability]
    m-Plummer v. Lederle Labs., 819 F.2d 349, 356 (2d Cir. 1987) (concluding that compliance with federal consumer notification regulations precludes application of strict liability but may be used to establish negligence) (F80) [dismisses an award for polio on the basis of sufficient warning despite lack of full risk disclosure and failure to suggest precautions--not sure that it illustrates a substantial enough point]
    m-Toner v. Lederle Labs.,732 P.2d 297, 311 n.12 (Idaho 1987) (arguing that FDA certification should constitute non-negligence per se) (F80) [Lederle argues for exemption from comment k but it is only exemption from strict liability, not from negligence; mamufacturers are still responsible for safe production--it's an exception from strict liability][Per Grundberg v. Upjohn: Kearl was overturned by the California Supreme Court in Brown, 751 P.2d at 470. Since Brown, the rule in California is that all prescription drugs are entitled as a matter of law to an exemption from strict liability claims based upon design defects. Idaho adopted and to some extent refined the Kearl approach in Toner v. Lederle Laboratories, 112 Idaho 328, 732 P.2d 297 (1987), a case addressing a suit against the manufacturer of a vaccine to immunize against diphtheria, pertussis, and tetanus ("DPT"). Toner required the drug manufacturer to prove at trial, on a case-by-case basis, that the benefits of the drug outweighed the risks at the time of marketing. 732 P.2d at 305-09. To qualify as an "unavoidably unsafe product" under this approach, "there must be, at the time of the subject products' distribution, no feasible alternative design which on balance accomplishes the subject product's purpose with a lesser risk."]
    nGonzales v. Surgidev Corp., 899 P.2d 576, 590-91 (N.M. 1995) (stating that compliance with regulations will not preclude award of punitive damages) (F80) [the company had not taken advantage of a loophole]
    m-briefBrown v. Superior Court, 44 Cal. 3d 1049, 245 Cal. Rptr. 412, 751 P.2d 470, (1988), the court addressed claims brought by plaintiffs who sued drug companies for injuries allegedly arising from their mothers' in utero exposure to diethylstilbestrol, a synthetic hormone marketed for use during pregnancy. [this is a great and important case regarding probabilistic liability. it also addresses comment k. It is too long to assign if I assign multiple cases though. consider assigning a brief. it's decisive in DES cases] -- the court ruled for the defendants
    n--too long On the other hand, Grundberg v. Upjohn Co., 813 P.2d 89 (Utah 1991) gives judicial deference to regulatory compliance (F80)
    m+McDaniel v. McNeil Lab. Inc., 241 N.W.2d 822 , 828 (Neb. 1976) rejects a strict liability theory in a case where defendant adhered to FDA regulations. (F80) [rejects strict liability and allows a defense based on FDA approval but notes it is not decisive; fairly short and all in one place
    m+Turner v big Lake Oil Company, 128 Tex. 155; 96 S.W.2d 221 (1936) - denial of strict liability for reservoirs (F200) [specifically discusses fletcher v. rylands in detail. controversial--makes dam owner liable only for negligence]
    Fletcher v. Rylands L.R. 1 Ex. 265 (1866) -- the most famous of early cases on the choice between negligence and strict liability. (F221) - strict liability prevails in England (F200)
    m-Guille v. Swan, 19 Johns. Ch. 381, 10 Am. Dec. 234 (1822). Hot air ballooning ? [8k. this is actually not no liability but assumption of liability because of assumption of risk given initial choice; its not negligence but is causation for which injurer is held liable]

V.C.4. Joint torts (contribution, indemnity, respondent superior, sexual harassment, successor liability)

    ySummers v. Tice 33 Cal. 2d 80 (Supreme Court of California, 1948) -- Dual Causation  (Marks) F192 [a good, clear example of joint causation]
    from Summers v. Tice: Christensen v. Los Angeles Electrical Supply Co., 112 Cal.App. 629 [297 P. 614], holding that a defendant is not liable where he negligently knocks down with his car a pedestrian and a third person then ran over the prostrate person. That involves the question of intervening cause which we do not have here. Moreover it is out of harmony with the current rule on that subject and was properly questioned in Hill v. Peres, 136 Cal.App. 132 [28 P.2d 946] (hearing in this Court denied), and must be deemed disapproved...
    Cases are cited for the proposition that where two or more tort feasors acting independently of each other cause an injury to plaintiff, they are not joint tort feasors and plaintiff must establish the portion of the damage caused by each, even though it is impossible to prove the portion of the injury caused by each. (See, Slater v. Pacific American Oil Co., 212 Cal. 648 [300 P. 31]; Miller v. Highland Ditch Co., 87 Cal. 430 [25 P. 550, 22 Am.St.Rep. 254]; People v. Gold Run D. & M. Co., 66 Cal. 138 [4 P. 1152, 56 Am.Rep. 80]; Wade v. Thorsen, 5 Cal.App.2d 706 [43 P.2d 592]; California O. Co. v. Riverside P. C. Co., 50 Cal.App. 522 [195 P. 694]; City of Oakland v. Pacific Gas & E. Co., 47 Cal.App.2d 444 [118 P.2d 328].)
    If defendants are independent tort feasors and thus each liable for the damage caused by him alone, and, at least, where the matter of apportionment is incapable of proof, the innocent wronged party should not be deprived of his right to redress. The wrongdoers should be left to work out between themselves any apportionment. (See, Colonial Ins. Co., v. Industrial Acc. Com., 29 Cal.2d 79 [172 P.2d 884].) Some of the cited cases refer to the difficulty of apportioning the burden of damages between the independent tort feasors, and say that where factually a correct division cannot be made, the trier of fact may make it the best it can, which would be more or less a guess, stressing the factor that the wrongdoers are not in a position to complain of uncertainty. (California O. Co. v. Riverside P. C. Co., supra.)
    m+Ybarra v. Spangard 25 Cal. 2d 486 (1944) (Marks) P257 17K res ipsa loquitor cases: (9 Wigmore, Evidence [3d ed.], § 2509, p. 382; see, also, Whetstine v. Moravec, 228 Iowa 352 [291 N.W. 425, 432]; Ross v. Double Shoals Cotton Mills, 140 N.C. 115 [52 S.E. 121; 1 L.R.A.N.S. 298]; Maki v. Murray Hospital, 91 Mont. 251 [7 P.2d 228, 231].) [a clear case of both joint causation and of explicit coverage of res ipsa loquitor]
    The decisions in this state make it clear that such circumstances raise the inference of negligence, and call upon the defendant to explain the unusual result. (See Ales v. Ryan, 8 Cal.2d 82 [64 P.2d 409]; Brown v. Shortlidge, 98 Cal.App. 352 [277 P. 134].)
    refers to "absolute liability" as in turner v. big lake oil.
    y-Sindell v. Abbott Laboratories, 26 Cal. 3d 588, 607 P. 2d 924 (1980), a DES case. (P184n) [refers to Summiers v. Tice and Ybarra] [at least do a brief--it's 15 pages and a good read; comment k is only in the dissent. it establishes probabilistic causation and that's what it focuses on]

V.D. Damages (earning capacity, value of life, deterrence vs. insurance, overcompensation, punitive, expected (eggshells), incentives (permanent))

    yHunt v. K-Mart Corp. 981 P.2d 275 (1999). A products liability case was filed against K-Mart after Plaintiff fell from a defective office chair. At the trial, Plaintiff presented evidence from a psychologist and an economist who valued her damages from ìloss of enjoyment of life.These experts calculated Huntís hedonic damages by assessing a percentage of loss suffered by her in each area of her life on a "loss of pleasure of life scale" and then inserting those percentages into a formula which translated the losses into actual dollar amounts. According to the expert testimony, the monetary value of Norma's loss of enjoyment of life was $228,526.The Supreme Court of Montana upheld the introduction of this evidence. June 3, 1999. (F100n) [11k -- upheld on a technicality; no objection filed in time--allows hedonic damages]
   yWycko v. Gnodtke, 361 Mich. 331,339, 105 N.W. 2d 118, 122 (1960) - valuing children [28k abbr. covers philosophical arguments and common law precedent. allows  a larger judgment but later rulings labor to keep this from saying that the case allowed anything but a rough estimate of pecuniary loss]
    nBreckon v. Franklin Fuel Co., 383 Mich. 251,268, 174 N.W. 2d 836, 842 (1970). (P197n) - valuing life [94k--continues to allow only pecuniary loss. claims wycko does not rewrite statute and that only pecuniary loss is allowed. the decedents were a couple with grown daughters. could not get loss of companionship dollars.]
    yRickards v. Sun Oil Co., 23 N.J. Misc. 89, 41 A.2d 267 (1945) the defendant's negligence put the only bridge between an island and the mainland out of commission. Merchants on the island who saw their business dry up as a result of the collision sued the defen-dant but lost, on the "theory" that pure economic loss is not recoverable in an accident case. The theory doesn't make much sense, but the result may. Although the island merchants did lose money, their loss was a gain to mainland merchants who picked up business from the island merchants when customers could no longer reach the island. Since the defendant could not seek from the mainland merchants restitution of the gains he had conferred upon them, it would have been punitive to make him pay the losses of the island merchants. The damage to the bridge was a net social loss, but one recoverable in a suit by the owner of the bridge. But the analysis is incomplete. It leaves out of account the customers. (P185) [Posner puts it under causation and foreseeability] [15k case discusses 'natural' (foreseeable) and proximate. a very interesting economics issue raised and not accurately analyzed by Posner. but in vosburg, the court notes that you are responsible for all damages, not just foreseeable damages. foreseeable is relevant to negligence, but not to size of damages]]

    yVosburg v. Putney, 80 Wis. 523, 50 N.W. 403 (1891) -- eggshell case; the result is legal rule that still survives: A tortfeasor takes his victim as he finds him. (F217-8) [16k -- as rewritten. full opinion is not as clear as might be imagined, since the key part of the opinion is obscure, listed as the last in a case that was sent back for retrial.]

    Punitive damages
    Huckle v. Money, 2 Wils. 205, 95 Eng. Rep. 768 (C. P. 1763) - One of the earliest reported cases involving exemplary damages. [A]rose out of King George III's attempt to punish the publishers of the allegedly seditious North Briton, No. 45. The King's agents arrested the plaintiff, a journeyman printer, in his home and detained him for six hours. Although the defendants treated the plaintiff rather well, feeding him "beef steaks and beer, so that he suffered very little or no damages."
    Wilkes v Wood (1763) (F207n)
    Merest v. harvey, 5 Taunt 442, 443, 128 Eng. Rep. 761, 761 (1814). - The grouse hunting case (F207n)
    m-Silkwood v. Kerr-McGee Corp.,769 F.2d 1451, 1458 (10th Cir. 1985) (upholding a punitive damages award despite defendant's compliance with federal nuclear safety regulations) (F80) [interesting but not a precedent--sent for retrial; best to put under damages; put under strict liability by F]
    mStone Man, Inc. (d) v. Green (p), 435 S.E.2d 205 , 206 (Ga. 1993) holds that punitive damages generally are not available when defendant has complied with applicable regulations governing conduct at issue (F80) and [a brief punitive damages case--notes that you can be liable despite compliance with laws

V.E. Intentional torts (private counterparts to crimes, defamation)

    Bird v. Holbrook (4 Bing. 628, 130 Eng. Rep. 911 (C.P. 1828) owned a valuable tulip garden about a mile from his home. (P204-5) since spring guns do not discriminate between the thief and the innocent trespasser, they deter owners of domestic animals from pursuing their animals onto other people's property and so increase the costs (enclosure costs or straying losses) of keeping animals. The court in the Bird case implied an ingenious accommodation: One who sets a spring gun must post notices that he has done so.... The analysis thus turns out to be the same as in a negligence case--the archetypal unintentional tort case. (P205)
    yKemezy v. Peters, 79 F.3d 33 (7th Cir. 1996). (P207) - punitive damages [14k abbr.: discusses issue of ability to pay in punitive damages]
    Jones v. E. Hulton & Co., [[1909] 2 K.B. 444, aff'd, [1910] A.C. 20.] the author of a fictitious newspaper story accidentally gave a character in the story the name of a real person, Artemus Jones, who sued for libel, and won by showing that his neighbors thought the article was about him. (P208)