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Case: Truong v. Nguyen1
Facts: On a warm California day, there were about 30 personal watercraft (jet skis) operating on
Coyote Lake. The weather was fair and visibility good. Anthony Nguyen and Rachael Truong went for
a ride on Anthony’s Polaris watercraft. Cu Van Nguyen and Chuong Nguyen (neither of whom were
related to Anthony) were both riding a Yamaha Waverunner. Both jet skis permitted a driver and
passenger, each seated. The two watercraft collided near the middle of the lake. Rachael was killed,
and the others all injured.
Rachael’s parents sued Anthony, Cu Van, and Chuong, alleging that negligent operation of their
watercraft caused their daughter’s death. The defendants moved for summary judgment, claiming that
assumption of the risk applies to jet skiing. The parents appealed, arguing that jet skiing was not a
sport and Rachael never assumed any risk.
Issue: Does assumption of the risk apply to jet skiing?
Excerpts from Judge McAdams’s Decision:
In a sports context, [assumption of the risk] bars liability because the plaintiff is said to have assumed
the particular risks inherent in a sport by choosing to participate. Thus, a court need not ask what risks
a particular plaintiff subjectively knew of and chose to encounter, but instead must evaluate the
fundamental nature of the sport and the defendant’s role in or relationship to that sport.
In baseball, a batter is not supposed to carelessly throw the bat after getting a hit and starting to run to
first base. However, assumption of risk recognizes that vigorous bat deployment is an integral part of
the sport and a risk players assume when they choose to participate. A batter does not have a duty to
another player to avoid carelessly throwing the bat after getting a hit.
Even when a participant’s conduct violates a rule of the game and may subject the violator to internal
sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter
fundamentally the nature of the sport by deterring participants from vigorously engaging in activity.
Coparticipants’ limited duty of care is to refrain from intentionally injuring one another or engaging in
conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the
sport.
It appears that an activity falls within the meaning of ‘sport’ if the activity is done for enjoyment or
thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a
potential risk of injury.
As a matter of common knowledge, jet skiing is an active sport involving physical skill and challenges
that pose a significant risk of injury, particularly when it is done—as it often is—together with other
jet skiers in order to add to the exhilaration of the sport by racing, jumping the wakes of the other jet
skis or nearby boats, or in other respects making the sporting activity more challenging and
entertaining. In response to the plaintiff’s complaint that the trial court erroneously assumed that the
litigants were contestants in some sort of consensual competition event and/or spectator sport, [we
conclude] that the doctrine applies equally to competitive and noncompetitive but active sports.
Plaintiffs urge [that] Rachel was merely a passenger on the Polaris and was not actively involved in the
sport. The record supports the conclusion that riding as a passenger on a personal watercraft [is
participating in a sport], because it is done for enjoyment or thrill, requires physical exertion as well as
elements of skill, and involves a challenge containing a potential risk of injury. The vessel is open to
the elements, with no hull or cabin. It is designed for high performance, speed, and quick turning
maneuvers. The thrill of riding the vessel is shared by both the operator and the passenger. Obstacles in
the environment such as spraying water, wakes to be crossed, and other watercraft are part of the thrill
of the sport, both for the operator and the passenger.
The summary judgment is affirmed.
1 67 Cal. Rptr.3d 675, 156 Cal.App.4th 865. California Court of Appeals, 2007.
Question: What is assumption of the risk?
Answer: Assumption of the risk is a defense to a negligence claim, whereby a person who
Question: Is the court saying that death is an obvious danger when jet skiing?
Answer: Not necessarily. What the court is saying is that Rachel voluntarily participated in a
Question: But Rachel was a passenger on a jet ski out for fun on a warm afternoon, how is that
engaging in a sport?
Answer: The court made it clear that jet skiing is a sport, regardless of whether it is competitive
Strict Liability
Some activities are so naturally dangerous that the law places an especially high burden on anyone
who engages in them. A corporation that produces toxic waste can foresee dire consequences from its
business that a stationery store cannot. This higher burden is strict liability. There are two main areas
of business that incur strict liability: ultrahazardous activity and defective products. Defective products
are discussed below, in the section on product liability.
Case: New Jersey Dept. of Environmental Protection v. Alden Leeds,
Inc.2
Facts: The Alden Leeds company packages, stores, and ships swimming pool chemicals. The firm
does most of its work at its facility in Kearns, New Jersey. At any given time, about 21 different
hazardous chemicals are present. The day before Easter, a fire of unknown origin broke out in
“Building One” of the company’s site, releasing chlorine gas and other potentially dangerous
by-products into the air. There were no guards or other personnel on duty. The fire caused $9 million
in damage to company property. Because of the potentially dangerous gas, the Department of
Environmental Protection (DEP) closed the New Jersey Turnpike along with half a dozen other major
highways, halted all commuter rail and train service in the area, and urged residents to stay indoors
with windows closed. An unspecified number of residents went to local hospitals with respiratory
problems.
Based on New Jersey’s Air Pollution Control Act (APCA), the DEP imposed a civil fine on Alden
Leeds for releasing the toxic chemicals. The appellate court reversed, finding that there was no
evidence the company had caused the fire or the harm, and the case reached the state’s high court.
Issue: Did the company cause the harm?
Excerpts from Justice Coleman’s Decision: The court affirmed that the APCA is a strict liability
statute and that there must be a causal nexus between the defendant and the harm. It reversed the
appellate court’s holding that the storing of hazardous chemicals by Alden Leeds does not satisfy that
nexus. The DEP does not have to prove that the chemical operator started the fire. In 1962, this Court
adopted the proposition that "an ultrahazardous activity which introduces an unusual danger into the
community should pay its own way in the event it actually causes damage to others." An actor who
chooses to store dangerous chemicals should be responsible for the release of those chemicals into the
air. That Alden Leeds lawfully and properly stored chemicals does not alter that conclusion. The risks
attendant to the storage of dangerous substances counsel in favor of precautions to prevent their
2 153 N.J. 272; 708 A.2d 1161; 1998 N.J. LEXIS 212; 46 ERC(BNA) 1447 (Supreme Court of New Jersey 1998)
release. Alden Leeds took no such precautions. On the day of the fire, there was no one stationed at
the plant to alert the authorities as soon as a fire or other unforeseen calamity erupted. There was no
response to the alarm that sounded. The law imposes a duty upon those who store hazardous
substances to ensure that the substances on their property do not escape in a manner harmful to the
public. Regardless of what started the fire, it was the knowing storage of chemicals by Alden Leeds
that caused the release of air contaminants once the fire reached the chemicals.
Question: Who won?
Question: Did Alden Leeds start the fire that led to the release of toxic fumes?
Question: Why?
Question: They why is Alden Leeds liable?
Question: What did Alden Leeds do that subjected it to strict liability?
Answer: It stored various hazardous chemicals on its property. The court stated “the law imposes a
Question: Alden Leeds is in the business of selling chemicals and it stored them lawfully! Does this
mean it is liable for any harm those chemicals cause while they are on its property?
Question: How is that fair?
Answer: The law only applies strict liability to certain ultrahazardous activities. Those who engage in
Question: How does a person who engages in such activities protect itself from liability?
Answer: First, it goes without saying that it must follow all laws regulating such activities. Second, it
Question: Wouldn’t such insurance be expensive?
Question: Is that fair?
Answer: Consider the alternative. If the company does not obtain insurance and cannot compensate
Question: How far should strict liability go? Suppose a tornado struck Alden Leeds, released
poisonous gas into the atmosphere, and killed twenty people. Should the company be liable?
Answer: It appears that the majority here would answer “yes.” In their view, it is the storage
Product Liability
Negligence
In negligence cases concerning goods, plaintiffs typically raise one or more of these claims:
Negligent design
Negligent manufacture
Failure to warn
You Be The Judge: Boumelhem v. Bic Corp.3
Facts: Ibrahim Boumelhem, aged four, began playing with a Bic disposable lighter that his parents had
purchased. He started a fire that burned his legs and severely burned his six-month-old brother over 85
percent of his body. Ibrahim’s father sued Bic, claiming that the lighter was negligently designed
because it could have been childproof. He also claimed failure to warn because the lighter did not
clearly warn of the danger to children.
The Boumelhem court considered evidence and analyses from several other cases against Bic. The court
noted that consumers use over 500 million disposable lighters annually in the United States. Each
lighter provides 1,000 to 2,000 lights. During one three-year period, children playing with disposable
lighters started 8,100 fires annually, causing an average of 180 people to die every year, of whom 140
were children under five. Another 990 people were injured. The average annual cost of deaths, injuries,
and property damage from child-play fires was estimated at $310 to $375 million, or 60 to 75 cents per
lighter sold. Bic had acknowledged in earlier litigation that it was foreseeable lighters would get into
children’s hands and injure them. Bic had also agreed that it was feasible to make a more
child-resistant lighter.
The trial court relied on a Michigan case. In Adams v. Perry Furniture Co.,4 four minor children had
died in a fire started when one of them was playing with a Bic lighter. The Adams court had found no
negligent design and no failure to warn, and it dismissed all claims. The trial court in the present case
followed Adams and dismissed Boumelhem’s claims. He appealed.
You Be the Judge: Did Bic negligently design its disposable lighter? Did Bic negligently fail to warn of
the lighter’s dangers?
Argument for Boumelhem: Your honors, the Adams court decided the issues wrongly. There is a
reason that new plaintiffs are back in this court, the year after Adams, raising related issues against
Bic: the company is killing hundreds of children every year. In its efforts to maximize corporate profits,
it is literally burning these children to death and injuring hundreds more. That’s wrong.
Bic has acknowledged that its disposable lighters can and will get into the hands of children. Bic
knows full well that its product will injure or kill a certain percentage of these children—very young
children. Bic has admitted that it could design a childproof lighter, and it knows perfectly well how to
include effective warnings on its lighters. But rather than improve product design and give effective
warnings, Bic prefers to do business as usual and litigate liability for injured children.
We ask this court to rule that Bic breached its duty to design and manufacture a lighter that will keep
our kids safe, and breached its duty to warn.
Argument for Bic: Your honors, the Bic Corp. is as horrified as anyone over the injuries to these
children and the deaths of other kids. But Bic is not responsible. The children’s parents are responsible.
We sympathize with their grief, but not with their attempt to pass parental responsibility onto the
shoulders of a corporation. There are several reasons Bic is not liable in this case.
First, the Adams court decided the matter, and that precedent is binding.
Second, Bic has no duty to design a different lighter. The test in design defect cases is whether the
risks are unreasonable in light of the foreseeable injuries. Young children can hurt themselves in
countless ways, from falls to poisonings to automobile injuries. There is one answer to these dangers,
and it is called good parenting. The parents who bought this lighter purchased it because it could start a
fire. The moment they purchased it, they assumed the obligation to keep it away from their children.
These are useful products, which is why Bic sells hundreds of millions per year. Other consumers
3 211 Mich. App. 175 Michigan Court of Appeals, 1995.
4198 Mich. App. 1 (Mich. Ct. App. 1993).
should not be forced to pay an outrageously high price for a simple tool, just because some parents fail
to do their job.
The failure to warn argument is even weaker. The law imposes no failure to warn when the danger is
obvious. Every adult knows that lighters are potentially dangerous, if misused, or if passed on to
children. No one would be helped by a warning that said, “This lighter starts fires. Don’t give it to
children.”
Holding: Judgment for Bic on both issues.
Question: In negligence cases concerning goods, plaintiffs typically raise what 3 issues?
Question: What is the test in design defect cases?
Strict Liability
In strict liability, the injured person need not prove that the defendant’s conduct was
unreasonable.
Case: Daniell v. Ford5
Facts: See the chapter opener.
Connie Daniell argued that Ford was both (1) negligent because it did not warn her that there was no
opening mechanism in the trunk and (2) strictly liable for this design defect. Ford sought summary
judgment.
Issue: Was Ford negligent in failing to warn Connie of the missing latch? Was Ford strictly liable for a
design defect?
Excerpts from Judge Baldock’s Decision:
Under strict products liability or negligence, a manufacturer has a duty to consider only those risks of
injury which are foreseeable. A risk is not foreseeable by a manufacturer where a product is used in a
manner which could not reasonably be anticipated by the manufacturer and that use is the cause of the
plaintiff's injury. The plaintiff's injury would not be foreseeable by the manufacturer.
The purposes of an automobile trunk are to transport, stow, and secure the automobile spare tire,
luggage, and other goods and to protect those items from elements of the weather. The design features
of an automobile trunk make it well near impossible that an adult intentionally would enter the trunk
and close the lid. The dimensions of a trunk, the height of its sill and its load floor are among the design
features which encourage closing and latching the trunk lid while standing outside the vehicle. The
plaintiff's use of the trunk compartment as a means to attempt suicide was an unforeseeable use.
Therefore, the manufacturer had no duty to design an internal release or opening mechanism that might
have prevented this occurrence.
Nor did the manufacturer have a duty to warn the plaintiff of the danger of her conduct, given the
plaintiff's unforeseeable use of the product. The risk is obvious. There is no duty to warn of known
dangers in strict products liability or tort. Moreover, the potential efficacy of any warning, given the
plaintiff's use of the automobile trunk compartment for a deliberate suicide attempt, is questionable.
The automobile trunk was not defective under these circumstances. The automobile trunk was not
unreasonably dangerous within the contemplation of the ordinary consumer or user of such a trunk
when used in the ordinary ways and for the ordinary purposes for which such a trunk is used.
The defendant's Motion for Summary Judgment is granted.
Question: Why didn’t the manufacturer have a duty to warn the plaintiff of the danger of her conduct?
5 581 F. Supp. 728 U.S. District Court, New Mexico 1984.
Question: When is a risk not forseeable by a manufacturer?
Multiple Choice Questions
1. Two cars, driven by Fred and Barney, collide. At trial, the jury determines that the accident was
90% Fred's fault and 10% Barney's fault. Barney's losses total $100,000. If he lives in a state that
uses contributory negligence, Barney will recover ________________.
(a) $0
(b) $10,000
(c) $50,000
(d) $90,000
(e) $100,000.
2. Assume the same facts as in question 1, except now, Barney lives in a state that follows
comparative negligence. Now Barney will recover _____________________.
(a) $0
(b) $10,000
(c) $50,000
(d) $90,000
(e) $100,000.
3. Zack lives in a state that prohibits factory laborers from working more than 12 hours in any 24
hour period. The state legislature passed the law to cut down on accidents caused by fatigued
workers.
Ignoring the law, Zack makes his factory employees put in 14 hour days. Eventually, a worker at
the end of a long shift makes a mistake and severely injures a coworker. The injured worker sues
Zack.
Which of the following terms will be most relevant to the case?
(a) Res ipsa loquitur
(b) Assumption of the risk
(c) Negligence per se
(d) Strict liability
4. Randy works for a vending machine company. One morning, he fills up a vending machine that is
on the third floor of an office building. Later that day, Mark buys a can of Pepsi from that machine.
He takes the full can to a nearby balcony and drops it three floors onto Carl, a coworker who
recently started dating Mark's ex-girlfriend. Carl falls unconscious. Which of the following can be
considered a factual cause of Carl's injuries?
(a) Randy
(b) Mark
(c) Both Randy and Mark
(d) None of the above
5. For this question, assume the same facts as in question 4. Now determine which of the following
can be considered a proximate cause of Carl's injuries?
(a) Randy
(b) Mark
(c) Both Randy and Mark
(d) None of the above
Case Questions
1. At approximately 7:50 pm bells at the train station rang and red lights flashed, signaling an express
train’s approach. David Harris walked onto the tracks, ignoring a yellow line painted on the
platform instructing people to stand back. Two men shouted to Harris, warning him to get off the
tracks. The train’s engineer saw him too late to stop the train, which was traveling at
approximately 99 mph. The train struck and killed Harris as it passed through the station. Harris’s
widow sued the railroad, arguing that the railroad’s negligence caused her husband’s death.
Evaluate her argument.
Answer: Harris was a trespasser and as a result the railroad had no duty of due care to him. The
railroad would be liable only if it caused Harris's death by reckless or intentional conduct. There
2. Ryder leased a truck to Florida Food Service; Powers, an employee, drove it to make deliveries. He
noticed that the door strap used to close the rear door was frayed, and he asked Ryder to fix it.
Ryder failed to do so in spite of numerous requests. The strap broke, and Powers replaced it with a
nylon rope. Later, when Powers was attempting to close the rear door, the nylon rope broke and he
fell, sustaining severe injuries to his neck and back. He sued Ryder. The trial court found that
Powers’ attachment of the replacement rope was a superseding cause, relieving Ryder of any
liability, and granted summary judgment for Ryder. Powers appealed. How should the appellate
court rule?
Answer: The case was reversed and remanded for trial. Powers v. Ryder Truck, 625 So. 2d 979,
1993 Fla. App. LEXIS 10729 (Fla. Dist. Ct. App. 1993). Whether an event is a superseding cause is
3. A new truck, manufactured by General Motors Corp., (GMC) stalled in rush hour traffic on a busy
interstate highway because of a defective alternator, which caused a complete failure of the truck’s
electrical system. The driver stood nearby and waved traffic around his stalled truck. A panel truck
approached the GMC truck, and immediately behind the panel truck, Davis was driving a
Volkswagen Fastback. Because of the panel truck, Davis was unable to see the stalled GMC truck.
The panel truck swerved out of the way of the GMC truck, and Davis drove straight into it. The
accident killed him. Davis’ widow sued GMC. GMC moved for summary judgment, alleging (1) no
duty to Davis, (2) no factual causation, and (3) no foreseeable harm. Comment.
Answer: Summary judgment for GMC denied. General Motors Corp. v. Davis, 141 Ga. App. 495,
233 S.E.2d 825 (Ga. Ct. App. 1977). GMC owes a duty to everyone on the highway since the
4. You Be the Judge: WRITING PROBLEM When Thomas and Susan Tamplin were
shopping at Star Lumber with their six-year-old daughter Ann Marie, a 150-pound roll of vinyl
flooring fell on the girl, seriously injuring her head and pituitary gland. Ann was clearly entitled to
recover for the physical harm, such as her fractured skull. The plaintiffs also sought recovery for
potential future harm. Their medical expert was prepared to testify that, although Ann would
probably develop normally, he could not rule out the slight possibility that her pituitary injury
might prevent her from sexually maturing. Is Ann entitled to damages for future harm? Argument
for Ann: This was a major trauma, and it is impossible to know the full extent of the future harm.
Sexual maturation is a fundamental part of life; if there is a possibility that Ann will not develop
normally, she is entitled to present her case to a jury and receive damages. Argument for Star
Lumber: A plaintiff may not recover for speculative harm. The “slight possibility” that Ann could
fail to develop is not enough for her to take her case to the jury.
Answer: The expert should not have been permitted to testify, because there was only a slight
possibility that Ann would fail to develop normally. If there had been a substantial possibility that
she would not develop normally, then evidence could have been admitted concerning a reasonable
5. Irving was a lawyer who prepared income tax returns for Maroevich. Irving agreed to draft a will
for Maroevich, leaving all of the property to Maroevich’s sister, Biakanja. When Maroevich died,
the probate court refused to accept the will because Irving had failed to have the signatures
properly witnessed. As a result, Biakanja inherited only one-eighth of the estate. She sued Irving,
who defended by saying that he had no duty of due care to Biakanja because all of his dealings
were with Maroevich and none were with her. Do you agree?
Answer: Irving loses. Biakanja v. Irving, 49 Cal. 2d 647, 320 P.2d 16 (1958). Although Irving was
working only for Maroevich, he could easily foresee that Biakanja would be injured by an improper
6. Texaco, Inc., and other oil companies sold mineral spirits in bulk to distributors, which then resold
to retailers. Mineral spirits are used for cleaning. Texaco allegedly knew that the retailers, such as
hardware stores, frequently packaged the mineral spirits (illegally) in used half-gallon milk
containers and sold them to consumers, often with no warnings on the packages. Mineral spirits are
harmful or fatal if swallowed. David Hunnings, aged 21 months, found a milk container in his
home, swallowed the mineral spirits, and died. The Hunnings sued Texaco for negligence. The trial
court dismissed the complaint, and the Hunnings appealed. What is the legal standard in a
negligence case? Have the plaintiffs made out a valid case of negligence? Remember that at this
stage, a court is not deciding who wins, but what standard a plaintiff must meet in order to take its
case to a jury. Assume that Texaco knew about the repackaging and the grave risk but continued to
sell in bulk because doing so was profitable. (If the plaintiffs cannot prove those facts, they will
lose even if they do get to a jury.) Would that make you angry? Does that mean such a case should
go to a jury? Or would you conclude that the fault still lies with the retailer, the parents, or both?
7. Boboli Co. wanted to promote its “California-style” pizza, which it sold in supermarkets. The
company contracted with Highland Group, Inc., to produce 2 million recipe brochures, which
would be inserted in the carton when the freshly baked pizza was still very hot. Highland
contracted with Comark Merchandising to print the brochures. But when Comark asked for details
concerning the pizza, the carton, and so forth, Highland refused to supply the information. Comark
printed the first lot of 72,000 brochures, which Highland delivered to Boboli. Unfortunately, the hot
bread caused the ink to run, and customers opening the carton often found red or blue splotches on
their pizzas. Highland refused to accept additional brochures, and Comark sued for breach of
contract. Highland defended by claiming that Comark had breached its warranty of merchantability.
Please comment.
Discussion Questions
1. Imagine an undefeated high school football team on which the average lineman weighs 300 pounds.
Also, imagine a 0-10 team on which the average lineman weighs 170 pounds. The undefeated team
sets out to hit as hard as they can on every play, and to run up the score as much as possible.
Before the game is over, 11 players from the lesser team have been carried off the field with
significant injuries. All injuries were the result of "clean hits" – none of the plays resulted in a
penalty. Even late in the game, when the score is 70-0, the undefeated team continues to deliver
devastating hits that are far beyond what would be required to tackle and block. The assumption of
the risk doctrine exempts the undefeated team from liability. Is this reasonable?
2. Should the law hold landowners to different standards of care for trespassers, social guests, and
invitees? Or do the few states that say, "Just always be reasonable," have a better rule?
3. Are strict liability rules fair? Someone has to dispose of chemicals. Someone has to use dynamite if
road projects are to be completed. Is it fair to say to those companies, "You are responsible for all
harm caused by your activities, even if you are as careful as you can possibly be?"
4. People who serve alcohol to others take a risk. In some circumstances, they can be held legally
responsible for the actions of the people they serve. Is this fair? Should an intoxicated person be
the only one liable if harm results? If not, in what specific circumstances is it fair to stretch
liablility to other people?
5. In the near future, we will rely increasingly on robots in daily life. Honda has predicted that by the
year 2020, it will sell as many personal robots as it does cars. It is likely that these robots will be
capable of many household tasks, such as folding laundry and tidying rooms. How do these
automated beings fit into existing tort law? When a robot malfunctions unforeseeably and causes
harm, who should be at fault?
