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have protected them better.
5. Wright v. Webb, 56 LW 2319 (1987).
A woman was criminally assaulted in a motel parking lot. She sued the motel for
negligence for failing to protect a business invitee.
B. Unreasonable Behavior—Breach of Duty
Emphasize:
Judge Learned Hand’s definition of negligence (unreasonable behavior).
Sidebar 10.6—“Medical Malpractice Crisis”
Examples of Negligence
Emphasize:
That the failure to exercise reasonable care can cost a company substantial sums.
Willful and Wanton Negligence
Emphasize:
That a special type of aggravated negligence is willful and wanton negligence.
The significance of this type of negligence is that the injured plaintiff can recover
punitive damages as well as actual damages.
Sidebar 10.6—“Strip Search Hoax Costs McDonald’s $6.1 Million”
Case for Discussion:
1. In 1999 the accounting firm Ernst & Young LLP agreed to pay Cendant Corp. $335
million to settle a negligence lawsuit alleging that the firm failed to detect an accounting
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Additional Matter for Discussion:
According to the Institute for Medicine of the National Academy of Science (1999),
medical malpractice accounts for between 44–98 thousand patient deaths annually.
C. Causation in Fact
Emphasize:
The definition of cause in fact. Point out that courts leave questions of cause in fact
almost entirely to juries.
The concept of joint and several liability.
Cases for Discussion:
1. Mitchell v. Gonzales, SO18678 (1992).
A boy who could not swim had ridden a surf-board craft into a lake with an older friend.
The boy drowned. The estate sued the friend and the friend’s parents for lack of proper
supervision. The jury was instructed that the death must not have occurred “but for” the
negligence.
2. The New York Court of Appeals adopted the market share liability theory in Hymowitz
v. Eli Lilly and Co. (4/4/89).
3. Zafft v. Eli Lilly and Co., No. 65685, 9/11/84.
4. Minnich v. Ashland Oil Co., 53 LW 2468 (1985).
In a case involving two sellers of a flammable chemical, the Ohio Supreme Court ruled
5. Abel v. Eli Lilly and Co., 343 N.W.2d 164 (Mich. 1984).
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The Michigan Supreme Court in a DES case ruled that when the plaintiff brings all
possible tortiously acting defendants into court, but only one defendant actually caused
plaintiff’s injury, that the burden shifts to the defendants to prove that they did not cause
the injury. Otherwise, they have joint and several liability.
D. Proximate Causation
Emphasize:
That defining proximate causation in terms of foreseeable risk creates further problems
about the meaning of the word foreseeable.
Sidebar 10.8—“Explosion on the Long Island Railroad”
Cases for Discussion:
1. McPeake v. William T. Cannon, Esq. (1/26/89).
A man was convicted of rape and immediately jumped to his death through a courtroom
2. Isaacs v. Huntington Memorial Hospital, 53 LW 2464 (1985).
The California Supreme Court overruled prior California cases that had established the
rule that a land owner is not required to anticipate criminal activities on his or her
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How the doctrine of contributory negligence has been modified by comparative
responsibility. Ask the students what meaning this has to the business community.
Assumption of Risk
Emphasize:
The distinction between assumption-of-the-risk and contributory negligence. Use the
two doctrines to explain how legal doctrines sometimes overlap.
Cases for Discussion:
1. Law v. Superior Court, 56 LW 2416 (1988)
The plaintiff was injured in an automobile accident and sued the defendant. The
defendant argued that the plaintiff’s lack of seat belt use should be considered in
reducing damages under Arizona’s comparative negligence law. The plaintiff argued
that lack of seat belt use did not cause the accident.
2. Lowe v. Estate Motors, Ltd., 56 LW 2108 (1987)
An automobile passenger injured in an accident sued the manufacturer of the
automobile for defective design and uncrashworthiness. The manufacturer raised the
passenger’s comparative negligence in failing to wear a seat belt.
3. Martin v. Johns-Manville Corp., 14 PSLR 11 (1986).
An asbestos-injured plaintiff sued.
4. Murray v. Ramada Inn, 56 LW 2517 (1988).
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The plaintiff was injured while diving into a motel swimming pool.
5. Insurance Co. of North America v. Pasakarnis, 415 So.2d 447 (Fla. 1984).
Defendant’s car struck plaintiff’s. Plaintiff was thrown from his car and injured.
6. Almost all states have adopted comparative responsibility in one of its forms.
However, the Supreme Court of Alabama specifically rejected it and kept
contributory negligence as a bar to recovery.
IV. Strict Liability in Tort
Emphasize:
That strict liability is a catchall phrase for all legal responsibility for injury-causing
behavior that is neither intentional nor negligent.
A. Strict Products Liability
Emphasize:
That a major type of strict tort liability is strict products liability, for the commercial
sale of defective products.
That there are two kinds of defects: production defects and design defects.
That under strict products liability, contributory negligence is not a defense but
assumption of the risk is.
That in recent years many states have changed or modified the rules of product liability.
Sidebar 10.9—“Tort Reform”
That currently in most states, design defect cases are decided according to
reasonableness standards.
Case 10.4: Branham v. Ford Motor Co. 701 S.E.2d 5 (S.C. Sup. Ct. 2010)
Additional Matters for Discussion:
Asbestos litigation continues to be a product-liability mainstay. Said W.R. Grace &
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Co.’s senior litigation counsel: “Virtually every company involved in traditional basic
industries is a potential defendant in asbestos litigation.” A January 27, 2003, article in
the Wall Street Journal reports that there was once over 3000 products with asbestos in
them. Currently, there are some 8000 companies named in asbestos litigation with over
200,000 pending claims.
In 1999 American Home Products Corp. agreed to pay as much as $3.75 billion to settle
a 1995 study from the National Bureau of Economic Research, Inc., in states that pass
tort reform productivity and employment rise by 7 to 12 percent.
In 2003, there were more than 10,000 mold-related lawsuits pending.
For a look at one possible products liability trend, try “Trial Lawyers’ Next Target: The
Paint Industry,” WSJ, 10/18/99, p. A49 concerning lead-based paint. According to the
New York Times, 9/6/03, silicosis lawsuits are growing by tens of thousands.
B. Ultrahazardous Activity
Emphasize:
That in most states, the courts impose strict liability in tort for types of activities they
call ultrahazardous.
Sidebar 10.11—“The Great Molasses Flood”
Additional Matter for Discussion:
Some states have labeled certain breeds of dog, such as Rottweilers and Pit Bulls to be
dangerous animals. Would a student still be comfortable owning one of these in light of
the potential liability?
C. Other Strict Liability Torts
Emphasize:
How the increase in dram shop act cases illustrates changing social attitudes.
Strict liability for common carriers and the five defenses available to common carriers.
IV. Damages (LO 10-3)
Emphasize: