Introduction
Intentional Torts
Privileges
Policy issues
Negligence
Damages
Vicarious liability
Strict liability
Products liability
Index of tort cases
Tort cases

NEGLIGENCE

4 STEP PROCESS:
1) Did the D fall below the standard of care?  Did D negligent act negligently?
2) Was Ds negligence cause in fact of Ps injury?
3) Was negligence the proximate cause of Ps injury?
4) Is there something special about this kind of situation where D won't be held liable even if 1-3 exists?

I. PRIMA FACIE CASE

A. Standard of Care
1. Alternative Standards
2. General Standard
a. Balancing Test
b. Notice Variations (exceptions to the reasonable person standard)
1. Children
2. Emergency R(2nd) §296
3. Physical Disability

c. How to Determine [Violation of Statute] R(2nd) §286

d. How to Determine by Custom (TJ Hooper & Ellis)

e. Special Standard of Care for PROFESSIONALS

f. Informed Consent

3. Proof of Negligence

a. Expert Testimony

b. RES IPSA LOQUITUR ("The Thing speaks for Itself")      
NEGLIGENCE

I. PRIMA FACIE CASE
* To establish a prima facie case for Negligence, the following elements must be proved.

1. Duty - The existence of a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury.

a. General Principle:
* A duty of reasonable care is owed only to persons within the foreseeable zone of danger created by D's negligence.

2. Breach - Breach of that duty by the Defendant.

3. Proximate Cause - The breach of the duty by the Defendant was the actual & proximate cause of Plaintiff's injury.

4. Damage - The Plaintiff must show Actual Damage to the Plaintiff's person or property.

A. STANDARD OF CARE

1. Alternative Stds.

a. Reasonable Woman (Not in negligence but in other areas - ie sex discrimination)
Toys R Us
b. Best judgment
Vaughn v. Menlov

2. General Standard

a. Plaintiff must show that the Defendant's conduct imposed an Unreasonable Risk of Harm on the Plaintiff.
Brown v. Kendall

REASONABLE CARE
Major Rule:
* An actor must take reasonable care in conducting his or her activities to prevent an unreasonable risk of foreseeable harm to others.
* What is "reasonable" will depend on the risk of harm involved and the practicability of preventing it.

b. Test - The test is whether a "Reasonable Person" would have recognized the risk, and striven to avoid it. RS(2nd) §291
* Weirum v. RKO General

* The actor is NOT required to take all possible measures to eliminate every conceivable risk, ONLY reasonable measures to avoid reasonably foreseeable risks - nothing more.

c. The Learned Hand Balancing Test
* According to this analysis, the reasonableness of precautions taken or omitted will depend on the severity of the harm that might occur in their absence, the likelihood of that harm actually occurring, and the burden (the cost) on the D to take such precuations.
* A handy way to keep in mind the various factors that the jury is called upon to consider.

* Negligence was a funciton of 3 variables:

[B < L x P]
100<200 Negligence
200<100 No Negligence

B = Burden which Defendant would have had to bear to avoid the risk.
L = The gravity of the potential injury
P = The probability that harm will occur from the Defendant's conduct.

(1) Example: U.S. v. Carroll Towing Co.
* Case in which Judge Learned Hand announced his negligence test.
Facts:
* P's barge sank after it came adrift, b/c of impropertly tied lines, and collided with a tanker.

Held by Judge Learned Hand:
* Liability depends on whether the burden to avoid the loss is less than the product of the loss's probability and severity (P < PxL).

* The risk and the danger were sufficiently great enough that P should have borne the burden of having a watchman on board.

Example: Washington v. Louisiana Power and Light Co.
Facts:
* P was executed by power line after coming into contact with in his backyard.
Held:
The balancing process focuses our attention on the fact that the possibility of an accident appeared to be slight beforehand and the precautions against such slight risks would be costly and burdensome b/c such risks exist in great number and have not usually been considered unreasonable or intolerable

(2) Calculating `B'
1. Is not only a function of the cost to the defendant, but also the broader Social Utility of the conduct, which he would have to forego.

2. The courts ask the Question "Would society be better off if all Defendants in the same position were permitted to act D did, or were instead required to change their conduct so as to avoid the kind of risk which resulted in injury to P?"

(3) Foreseeability:
* The "probability of harm" item in B < P x L, is often discussed in terms of foreseeability.  If the risk is one that a reasonable person would not anticipate (one that is not reasonably foreseeable), then it is not negligent for D to fail to avoid it. D is required only to possess ordinary foresight, NOT to possess a crystal ball.

(4) Social Value of D's Activity:
* The reasonable person standard recognizes that, the creation of some risks may on balance be reasonable if the activity is socially valuable.
* The act is negligent if the risk is of such magnitude as to outweigh what the law regards to be the utility of the conduct.

Ex: Weirum v. RKO General, Inc.
Facts:
* DJ contest, accident results from reckless driving of contestant.
Held:
* If seriousness and the likelihood of danger outweigh the utility of the conduct, then D owes a duty of care (D should have foreseen the possibility of an accident occurring).

(1) Law and Economics:

* The Hand test is an economic theory of negligence:
(a) If the cost of safety measures exceeds the benefit in accident avoidance to be gained by incurring that cost, society would be better off, to forgo accident prevention
(b) If, on the other hand, the benefits in accident avoidance exceed the costs of prevention, society is better off if those costs are incurred and the accident averted, and so in this cse the enterprise is made liable, in the expectation that self-interest will lead it to adopt the precautions in order to avoid a greater cost in judgments.

d. Notice Variations (exceptions to the reasonable person standard)

1. Children
a. A child must exercise the degree of care that a reasonable child of like age, intelligence, and experience would under like circumstances.

b. Subjective - This is subjective in that two children of the same age but different intelligence will not be viewed the same way.

c. Children engaged in adult activities
i. Where a child engages in a potentially dangerous activity that is normally pursued only by adults, he will be held to the standard of care that a reasonable adult doing that activity would exercise.

d. It is unlikely that a court would view a child below the age of 4 as having the capacity to be negligent.

2. Emergency - RS(2nd) §296

a. General rule: is to follow the std of care that a reasonable person would "under all of the circumstances" - This is one of them.

b. Standard is changed to act as the reasonable person would under the same emergency.  The idea is that he emergency leaves the actor little time for weighing options, and therefore the actor should not be held to the same degree of acumen as the person who has time for deliberate judgment.

Young v. Clark
Facts:
* P and D in rear end collision b/c of 3rd party sudden stop ahead in traffic.
Held:
* A person through no fault of their own, who is placed in a sudden emergency, is not liable so long as they exercised a reasonable degree of care.

Cordas v. Peerless Transportation Co.
Facts:
* Cab driver is held at gunpoint and jumps from cab.
* Ps are pedestrians hit by D's abandoned cab.

Held:
* Driver is not negligent, b/c he acted reasonably in the circumstance of emergency.

c. If the emergency situation is caused by Defendant's negligence, Defendant will be held negligent.

3. Physical Disability
a. General rule: is to follow the std of care that a reasonable person would "under all of the circumstances" - This is one of them.

b. Standard is changed to act as a reasonable person would have with that type physical disability.

c. Sudden disability  (see Cohen v. Petty)
i. A person who has a seizure or a heart attack for the first time will not be held liable.
ii. A person with a history of seizures or heart attacks and knows it might well be held liable for (ex driving and causing an accident.)
iii. If persons were held liable for sudden disability it would be like Strict Liability.

e. How to Determine [Violation of Statute] RS(2nd) §286

1. "Negligence per se Doctrine"
* The standard of care in a negligence case, when a statute has a sufficiently close application to the facts at hand, becomes the statutes's specific duty and an unexcused violation of the statute is Negligence.

* The Plaintiff must show:
a. Plaintiff is within a Protected Class.
* The Plaintiff must show that he is in the class of persons the statute was meant to protect.
  b. Particular Harm to be avoided.
* The Plaintiff must show that the statute was designed to prevent the type of harm that the Plaintiff suffered.

* Ex: Martin v. Herzog
Facts:
* Contributory negligence was alleged in P's operation of her buggy after dark without the statutory required lights
Held:
* Unexcused omission of the statutory-required lighting is negligence in itself.

2. Excuses for Violation of a Statute
a. Greater Risk of harm.
* A violation may be excused if compliance would have involved a greater risk of harm to the actor or to third persons than the path of noncompliance chosen by the Defendant.
* Ex: Tedla v. Ellman
Facts:
* P violated a statute, which required that she walk on the left side of the highway, and was killed.
Held:
* The statute may be subject to an exeption if disobedience is likely to prevent rather than cause the accidents, which the statute seeks to prevent.

3. Divisions between Judge & Jury
a. When a statute is violated, the task of evaluating conduct, usually performed by the jury, is taken over somewhat by the Judge.

b. This happens because Statutes particularize the std. of care and allow the Judges to make a decision on whether the std. was met as a matter of law.

f. How to Determine by Custom
1) Major Rule:
* Whether a particular practice or precaution is customarily taken in a community or an industry is usually relevant evidence of whether it is reasonable to do so, but it does NOT control.

2) General Principle:
* Evidence of custom can be introduced by either:

a) P to prove that D's conduct was unreasonable; or 
* "Defendant did not follow the safety-motivated custom that others in the same trade, business or industry follow".

b) D to prove that D's conduct was reasonable
* "I exercised due care by using the same procedures as everyone else in the trade or industry".

* Ex: Trimarco v. Klein
Facts:
* P is injured in P's apartment, in a fall against a shower door that is not made out of safety glass.
* P introduced proof that most landlards install safety glass in the showers in their apartment buildings as evidence that such a precaution is both practicable and worthwhile, and that D's failure to provide safety glass was negligent.
Held:
* Knowledge of customary practice is not enough to defend negligence, the jury must be satisfied with the reasonableness of the custom.

* Ex: T.J. Hooper
Facts:
* Owner of tugboat failed to install radio receiver; P caught in storm.
Issue:
* Whether adherence to a trade custom can be used as a defense.
Held:
* An industry may not set its own test for reasonableness.  When something is determined as a necessity, it should become reasonable practice.
* Custom or Usage may be introduced to establish a standard of care in a particular case, however, they do not establish a conclusive (decisive) Test.

* Ex: Helling v. Carey
Facts:
* D failed to administered glaucoma test b/c P was under 40, an age outside the age group at risk for glaucoma; P went blind.
Held:
* Where a burden of precaution is low, the standard of a profession will not exclude one from liability.

3) Policy:
* Custom should control b/c the nature of the free market is such that it will naturally regulate itself and will require D's to adhere to reasonable standards of safety to remain profitable.
* However, this does not always work b/c people may decide to may less money for a lessor standard and the law cannot allow this b/c they don't know the ramifications
g. Special Standard of Care for PROFESSIONALS
* The standard/custom controls for Doctors, but not for everyone else b/c of their training, nature of obligation, conduct codes, etc.
* In order to determine if Defendant acted reasonably:

General Rules of Law Governing Malpractice
(1) One licensed to practice medicine is presumed to possess the degree of skill& learning which is possessed by the average member of the med. profession in good standing in the community in which he practices, & to apply that skill & learning, with ordinary & reasonable care, to cases which come to him for treatment.  If he does not possess the requisite skill & learning, or if he does not apply it, he is guilty of malpractice.

(2) D did something forbidden or forgot to do something required by standard practice.
(3) The standard med practice in the community must be shown.
(4) Negligence must be affirmatively proven.
(5) Negligence must be established by expert med. testimony.
(6) D's actions departed from standard of community.

 1. STANDARD:
1) A professional is required to possess & exercise the skill & knowledge commonly possessed by members of the profession in good standing in the same or similar localities.

Ex: Boyce v. Brown
Facts:
* Dr. misdiagnosed injury to P's ankle.  Another Dr. fixed P's ankle.
Held:
* If a doctor does not depart form ordinary medical standards of the community, he is not negligent if treatment is unsuccessful.

2) Emerging Minority Position - National Standard:
* Some states abandoned the locality rule b/c it is no longer justified in view of:
a) the uniform standards of skill and knowledge now imposed through national licensing examinations and board certification, 
b) the ready availability of transportation and communication between rural and urban practitioners; and
c) the explosive growth in information technology occasioned by the advent of computers and the internet

3) "Respectable Minority" Issue:
* Courts recognize that medicine is an inexact, evolving science that can involve substantial disagreements among its practitioners.
* Some courts have held, therefore, that it is enough if a Dr. followed the cours of a "respectable minority" of doctors.
* Other courts have been more restrictive, requiring that the doctrine applies only when ther is more than one acceptable treatment or procedure

2. PROOF
a. Burden is on the Plaintiff to establish Negligence.

b. Only way to show is through EXPERT TESTIMONY.
* Expert must show:
1. The standard conduct in the profession; and
2. Defendant departed from it.
3. Doctor, in a MedMal, would say "No respectable minority would have failed to perform".

c. BUT, sometimes the standards may be negligent

* In Helling, a glaucoma test was not performed because it was not standard practice to perform the pressure test to those under 40.
Held: 
* it is the duty of the courts to say what is required to protect patients, and that the standards of a profession may be negligent.

d. Respectable Minority: you do not need 51% of the profession, you can have a respectable minority.

e. Informed Consent

Three elements:
(1) Failure to inform patient of material risks and alternatives
(2) Causation
(3) Injury

(1) Physician fail to inform of material risks or alternatives (breached a standard of care).

a. A doctor must disclose to the patient all risks inherent in the proposed treatment which are sufficiently Material that a reasonable patient Would take them into account in deciding whether to undergo the treatment, provided that the patient's Well-Being would not be unduly disturbed by such disclosure.

Ex: Scott v. Bradford 
Facts:
* P had hysterectomy.  While in surgery, D removed a syst on ovary.  P later had a condition as a result.
Held:
* A doctor must inform his patients about options and risks. 

b. What would reasonable physician have done? 
* Large risk-small cost to inform; 
* risk vs. cost to inform [B< Px L]

(2) Patient would have made a different choice had adequate information been provided (causation); and

a. If an undisclosed risk was serious enough (Material) that a reasonable person in the patient's position would have withheld consent to the treatment, the doctor has breached his duty.

b. The patient must show that he would have probably declined the treatment.
* Some courts have applied a "reasonable patient" standard.
* Note: the jury does not have to accept the patient's testimony if they believe it is not credible.

(3) Undisclosed risk materialized I harm (damages)

(a) What std. do we use for determining what is Material.
(i) In most jurisdictions, the standard of care is professional standard - materiality is a matter of the information that an ordinary member of the profesion in good standing in the same or a similar lociality would provide to a patient in the circumstances.

(ii) A minority of jurisdictions has begun to apply a Patient-oriented standard - what a reasonable patient would want to know.

Ex: Scott v. Bradford  
* This case did away with the "reasonable patient" standard & decided that what counts is what the patient himself would have done.

* In order to prove negligence of informed consent P would have to get a Doctor to say "No respectable minority would have failed to perform".

(b) Defenses
1. Patient should have known or a Reasonable Person should have known the risks, etc.
2. Telling the patient would have been detrimental to the patient for possibly affecting his decision, etc.
3. In an emergency, Ps may not be in a condition to determine for himself whether treatment should be administered.

3. Proof of Negligence

a. Expert Testimony
1. Federal Rules of Evidence

Rule 702 - A person with specialized knowledge may testify as an expert witness.
Rule 703 - Facts or data that an expert witness testifies upon may be those perceived or made known to him at or before the hearing.
Rule 704 - Testimony on the ultimate issue is admissible except as to the mental  state of the parties.
Rule 705 - Expert may testify w/out prior disclosure of the underlying facts.
Rule 706 - The court may appoint an expert witness.
- Experts are entitled to reasonable compensation.
- The court has the discretion of informing the jury that an expert witness is court appointed. 

b. RES IPSA LOQUITUR ("The Thing speaks for Itself")
Major rule:
* When direct evidence (an eyewitness) of D's negligence is lacking, the court will allow the jury to infer negligence from circumstanctial evidence when the circumstances indicate that he accident more likely than not was caused by D's negligence.

1. Requirements for the application of the Doctrine.
* Kambat v. St. Francis Hosp.
Facts:
* D operated on p and left large surgical pad inside her.
* P died as a result.
Held: 
* Listed below

(1) Seldom Occurs W/out Negligence
* P must demonstrate that the event is of a kind which ordinarily does not occur except through the negligence of someone.
(2) In Defendant's Control.
* P must show that what caused the injury was in the Exclusive Control of the D.
(3) Rule out P's Contribution.
* P must show that his injury was not due to his own action.
*Only some courts*
(4) Accessibility of Information
* Some Courts require that P show that the knowledge of what actually happened is more readily Accessible to D.

2. Burden
* P does not have to demonstrate that there were no other possible causes of the accident.  P must merely prove the more than 50% probability that there was negligence. 

3. P's Particular Evidence
a. In order to demonstrate that the negligence is more probably that of the D, the P is required to produce evidence Negating Other Possibilities.

Ex: Escola v. Coca Cola Bottling Company
Facts:
* P is injured by a soda bottle that explodes.
Held:
* If condition of instrument has not changed since leaving hands of D, or P must show that there were no intervening causes, then RIL apply.
 

Ex: Boyer v. Iowa High School Athletic
Facts:
* P sat in Ds bleachers watching high school game. Bleachers folded and fell.  P injured.  Bleachers were under the control of D.
Held:
* If D has exclusive control over the occurrence, such that this would not have ordinarily occurred if reasonable care had been exercised, D is liable, and RIL applie.

Ex: Shutt v. Kaufmans
Facts:
* P sits in chair in Ds store.  Metal shoe rack fell on P's head.
Held:
* If P has a means to establish negligence, RIL does not apply.

4. MULTIPLE DEFENDANTS

Can RIL be applied? [Sometimes].

a. YES: if the D's all had an integrated relationship as professional colleagues, and all had a responsibility for patient's safety.
Ybarra v. Spangard
Facts:
* P receives an appendectomy.
* Sustains a serious shoulder injury as a result.
* P demonstrates that at least 1 of the D's must have been Negligent, but because he was unconscious cannot identify which 1.
Held:
* RIL is applicable.  D's must bear burden of rebutting the evidence by telling what happened.
b. NO: if the D's are strangers to each other & have only an ordinary duty of care to the P, no RIL

5. Application of RIL
* Once RIL is applied, the case may go to the jury or judge may give a directed verdict.

a. Jury - The jury will look at how convincingly the P has met the three requirements and decide.
b. In some courts the burden of persuasion is shifted to the D to rebut and if D fails, he loses.

II. CAUSE - IN - FACT

1. After showing negligence, P must first show that D's conduct was the actual "cause in fact" of the injury, second P must show that the conduct proximately caused the injury.

2. Major Rule:
* P must prove by a preponderance of the evidence (more likely than not) that D's negligence was a cause-in-fact of P's injuries.

TESTS

a. "But For" Test - Sine qua non
* the injury to P would not have occurred "but for" the act or omission of D

Example
* The failure of D to make lifeboat more accessible is negligent; however, D's negligence was not the actual cause of P's death.  P's death would have occurred regardless of whether D was negligent.(Ford v. Trident)

b. Substantial Factor Test - Multiple Independent Causes

1. Concurrent Causes
* The "But For" test applies where several causes/acts combine to cause the injury, but none of the acts standing alone would have been sufficient.  

2. The "But For" test is inadequate to determine causation in fact under certain circumstances, where several causes concur to bring about an injury - and each alone would have been sufficient to cause the injury - it will be sufficient if D's conduct was a "substantial factor" in causing the injury.

Definition of "substantial factor":
* Where there are mutiple contributing causes to P's injuries, D's conduct will be deemed a cause-in-fact if it was substantial factor in bringing the about.

Ex: Scafidi v. Seiler
Facts:
* D prescribed meds to prevent premature birth
* P had premature baby anyway and baby died.
Held:
* Assuming risk of harm, the "substantial factor" test is to be used to determine causation based on pre-existing condition, deviation and harm.

Ex: Kingston v. Chicago & N.W. Ry.
Facts:
* D's train starts a fire.
* The fire merges with another fire and burn P's property.
* The fire started by D would have been sufficient to burn P's property.
Held:
* D is liable eventhough P's Property would have burned anyway.  D's conduct played a substantial part.
Rule:
* Where each of the fires individually are "substantial factors" in the resultant loss, then liability can extend to both causes, and one tortfeasors is NOT excluded merely b/c another party could also be liable for the damage

c. Burden of Proof
1. The P bears the burden of proving that the D actually caused his injury, just as he must bear the burden of proving the other parts of his prima facie case.
* However he must demonstrate this actual causation merely by a preponderance of the evidence (More likely than not)
* Tennesee Trailway v. Ervin

2. Burden Shifts to D's
* Where 2 or more people have been negligent, but uncertainty exists as to which one caused P's injury, the burden of proof shifts to D's & each must show that his negligence is not the cause.

Ex: Summers v. Tice
Facts:
* P, D1 & D2 go hunting.
* D1 & D2 negligently fired their shotguns in the direction of P, who was struck in the eye with the pellet from one gun.
* It is not known from which gunshot was fired.
Held: 
* The burden is on each of the D's to show that it was the other's shot that hit P.

* Brock & Daubert) Daubert has a 4-part test to check reliability of evidence)

3. Why the cause requirement?

a. Moral / Non-Instrumental
1. As long as no harm is caused, negligent conduct will not expose the actor to liability.
2. It limits an actor's exposure to liability.
3. Fairness, Proportionality of Punishment.

b. Utilitarian / Instrumental
1. Sorts out worthy cases from the unworthy.
2. Helps to determine the amount of recovery.
3. Deterrence
4. Market deterrence: You can be negligent as long as you pay for it.

4. Possibility Cases

a. Injured Plaintiff
1. Will courts allow P to win on basis of statistics alone?
* Smith v. Rapid Transit
Held: 
* statistics alone not enough to identify D; however in medical and environmental cases rely more on statistics

2. Can P's prove that the injury more likely than not was caused by Ds (even combined Ds) faulty conduct?

a. Statistics show doubling of disease rate, which means that it is as likely as not that any one P's diseases came from Ds.
i) This is basic causation rule

3. Approach of courts in medical malpractice cases is to consider whether D's conduct was a substantial factor in producing the P's harm. If it was, then P recovers full damages for harm equivalent to the chance that it was caused by the D. Scafiti and Falcon loss of chance is split of authority, particularly outside of medical malpratice

* Loss of a chance Cases
Ex: Falcon v. Memorial Hosp.
Facts:
* P had an embolism during birth and died
* If D had placed intervenous line in, P could have been saved
Held:
* When Ds act constitutes a loss of substantial opportunity (37.5%) of avoiding physical harm, and therfore failing to measure up to standard of care, D is liable

4. Once a P has introduced evidence that a D's negligent act increased the risk of harm to P, and that the harm was in fact sustained, it becomes a question for the jury as to whether or not that increased risk was a substantial factor in producing the harm.

5. Does there have to be a 51% chance showing? Some courts do not require 51% and relax the standard.

Ex. Scaffidi, Smith v. Rapid transit

b. Increased Risk of Plaintiff

1. Most courts don't allow recovery for this. Must be reasonble probability that a quantifiable disease will occur.
Ex: Ayers  (Cancerphobia)
Facts:
* Ps well water contaminated by toxic waste in town't water.
Held:
* A person cannot recover damages for increased probability of potential risk of injury when probability is unknown and fear not manifested by bodily injury, but they may recover for future medical survellance.

a. Parisitic recovery - recovery if P can show physical impact on them in form of immune system of sub-cellular damages (Potter v. Firestone and Ayers)
i. unclear what will constitute enough impact

b. Non-parasitic recovery - P must show that fear stems from knowledge - corraborated by experts- that P will more liekly than not get disease in the future due to whtever D did (Potter)
i. Emotional Distress - You need actual physical injury, proof of actual physical injury & sickness.

2. Med Surveillance - most courts allow recovery when reasonably medically neccesary

5. Multiple Defendant Cases
* Summers, Ybarra, Kingston

THEORIES
* To show negligence even though can't pinpoint exactly which Ds was responsible for negligence

a. Alternative Liability
1) Burden of proof shifts to the D
2) P must prove all Ds are negligent
3) All Ds in lawsuit and before the court
4) Prefer small # of Ds
5) Imposes joint and several liability (damages split, but if one cannot pay, the other is responsible for 100%)
* Joint: D joined in single unit
* Several: D's each liable in full for damages

b. Concerted Action
* Hold all D's liable because they in some way worked together.
* Courts require some showing of a Tacit understanding.
* Must be some explicit agreement to commit some act that is tortious and someone has to do something pursuant to that agreement
* Joint and several liability

c. Enterprise Liability
* All Ds acted negligently
* Ds delegated some safety functions to trade association
* Ds still responsible b/c it was considered that they were all working together
* The burden of proof shifts to D
* Joint and several liability

Ex: Hall v. DuPont de Nemours & Co.
Facts:
* Ps unable to identify the Ds of unsafe blasting caps b/c it blew up.
* The six Ds comprise virtually the entire American blasting cap industry 
Held:
* Since it appeared that Ds' blasting caps were made to meet industry-wide safety standards set by their own trade association, Ds could be liable for the joint control of the risk of accidental explosion

Ex: Santiago v. Sherman-William
Facts:
* Lead paint in P's house, poisoned P
Held:
* D is not liable when he supplies an ingredient for the product, but does not manufacture the product.

d. Market Share Liability
(Sindell, Smith v. Eli lilly)
* We do not know which D's negligence caused the P's injury.
* Must have substantial share of the Ds, or 1 D.
* Each D is only liable for their portion.
* A D can exculpate himself by showing that...
1) he did not sell or make the product at that time, or in that area, or
2) the product was used in a way not intended for use

* Must be able to prove the case and every element of negligence, except Ds' identity.
* Burden of proof shifts to D

Ex: Sindell v. Abbott
Facts:
* Mom took DES to prevent miscarriage
* P's child developed medical condition
* Case in California where concept of market share liability was first developed by the California Supreme Ct.
Held:
* D may be held liable for their percentage of the market of a product that damaged P unless they can prove no share in that market.
* Factors to support the application of Market Share Theory of Liability:
1) When the harm-causing agent (DES) is produced from an identical formula, each DES manufacturer's product poses the same risk of harm to its users.
2) The harm-causing agent (DES), or Ds' product could not be traced to any specific producer.

Ex: Smith v. Eli Lilly
Facts:
* Mom took DES during pregnancy
* P's child developed medical condition
Held:
* Market share allows for recovery for injuries caused by DES when Ds named are a substantial portion of the market and they produced DES for use during pregnancy

PREREQUISITES
(1) How many D's need to be included in the suit?

(2) The rest of the Prima Facie case
* Need to prove that the product caused P's Injury & D's all acted negligently.

a. Effects of having Market Share Rule work
a. Shifts burden of persuasion to D (except in NY)
* This is a claim for fairness
* NY says D can only escape liability if it proves that the company never sold the product for the particular use.

b. How do we assess the share of liability of each D?
Washington
* Do it on a local basis.
* Assume equal shares unless D's prove otherwise.
* It is willing to do a Nat'l Market. California
* Nat'l Market. N.Y.
* Nat'l Market for that specific purpose.  Wisconsin
* Does not say but uses Market Share analysis to determine comparative fault.

c. What do you do about absent D's or ones who have empty pockets or parties who are not sued?

Ex: $1,000,000 in injury

% D's A B C   

30 Dow $300,000 $333,000 $363,000
25 Mon $250,000 $275,000 $292,500
15 Diamond $150,000 $165,000 $181,500
10 Uniroyal $100,000 $110,000 $121,000
10 Hercules $100,000 $110,000 $0

10 not named in suit
_________ ________ ________
$900,000 $1000000 $1000000

A = Apportioned according to Market Share.
B = Up-graded for the portion of the market not represented in order to fully compensate the injure party. (Joint and several liability)
C = Hercules is out of business & the others pick up the balance. (Real joint and several liability - Michigan court - eac pay the responsible amount, as well as pick up the rest)

* California & NY: 
* Pick column A, but the markets used may be different. 
* Ex. CA, Local, NY, or National

* Washington: 
* Could be A if there is specific proof, but also could be B if proof is not sufficient.

* Wisconsin: is not clear.
d. In what sort of cases, other than DES, will market share liability be used?
* Asbestos
* Blood

CONSIDERATIONS
a. Joint & Several Liability
b. Burden of Persuasion
c. Broad & Narrow Policy

Broad
* What are the strengths, Pros-Cons of the societal implications.

Why shouldn't Market Share Liability be applied:
* Will deter further research & good products will not be produced.
* Accident Cost reduction.
* Deterrence
* Loss Spreading
* Fairness
* Institutional Competence let the legislature decide.

Narrow
* What are the strengths, Pros-Cons of this particular case.

6. Valuation Cases
* All D have to pay for is what D took away from P (life expectancy)
* You take P as you find him (Eggshell head rule).

a. D's argument, She should only be paid to the time of her death.
* She would have suffered the injury anyway.

b. Plaintiff should receive damages for the loss up until the time of her death, not for what her life is worth at the time.

c. Why should D only have to pay for what he caused?  
* Actual Deterrence

Ex: Dillon v. Twin State
Facts:
* Boy is electrocuted as he falls from bridge.
* Is D liable for not insulating the wire?
Held:
* D is liable for what would have happened & what D's negligence caused to actually happen.
* D is liable for damage when there is conscious and prolonged suffering