Torts I

11 October

• Implied assumption of risk. Used to be mostly used as a defense in industrial liability injuries. That got to be so scary that we put together workers comp statutes.
• Murphy v. Steeplechase
  Consensus in the class that it's pretty obvious you might fall down on this thing.

  Interesting that this was a reversal of a lower court opinion: so someone else was able to find differently. The jury instructions were really sympathetic to the plaintiff.

  Now Coney Island was a playground for the working class people of NY, and times were very tough in 1929. That may have had something to do with it.

  Remember that the appellate court is supposed to be deferential to the trial court on the matter of fact interpretation. This is a standard Cardozo technique, though. And maybe the Flopper was indeed a dangerous thing.

• So what kinds of risks can we expect people to expect? The various baseball issues. See note 6 on p. 480: Davidoff regarding recovery for baseball injuries. So one edge here might be whether a risk is known or necessary. But how are we going to keep this simple? We don't want to have to get into who knows what, etc. And we don't want to have to be requiring that people prove what one another don't know.
• The Murphy opinion is unclear as to whether this is an absolute bar (i.e., even recovery for negligence is barred). After this case, recreational sports people found themselves pretty vulnerable-- they'd have trouble recovering. "The timorous may stay at home" was the industry standard until 1974: Sunday prevails on a claim of negligence against a ski resort. This was a chilling event for the industry: what happened to Murphy? Basically, this was a pendulum effect: the sports boom had brought out all kinds of less experienced injury prone people, and the sports industry had more or less absolute immunity under Murphy. We began to see statutory controls implemented. Now folks who run risky activities is to make risks explicit to patrons (e.g., mountain climbing). There's a relationship, essentially, and we don't presume that patrons know the risks, however obvious. That's the only way to make sure they've assumed some risk: we don't completely absolve either side, but we impose a duty on the hosting agency.
• Note also sports with others: p. 478, note 5 (Knight). There's a sort of assumption of risk framework here. But then we get Lestina (same note), which says you can have negligence (many factors listed): some case-by-case analysis is still required.
• So, maybe first establish negligence. Then mitigate that via assumption of risk. That would be better,
• Davenport
  So the plaintiff knew the dangers. And maybe was a little negligent. The defendant was also negligent, maybe. So we find comparative/contributory negligence mingled with an assumption of risk analysis. Which is it?

  The assumed risk and contributory negligence areas overlap here. And we get this express/primary implied/secondary implied assumed risks.

  Even though the plaintiff might knowingly face a risk, we don't want to 100% excuse the defendant. Some courts have gotten rid of this assumption of risk altogether, and just looked at everything through the lens of contributory negligence.

  But some courts do still honor assumption of risk as a defense to the allegation of negligence. In express cases, it might be a complete defense. In others, in might reduce recovery (if the defendant negligently assumed the risk). Either way works, but comparative negligence is probably more exam-worthy.

• Levandoski v. Cone
  The firefighter rule: firefighters are licensees, and all the landowner has to do is not injure them wantonly or wilfully.

  And after all, when you're rescuing people, you're probably not expecting extreme care from your host.

  So this is sort of like an assumption of risk case in the sense that the rescuers accept the risks of their professions.

  Was the defendant negligent? He wasn't in the right, but does fleeing always expose a pursuer to risk? Probably he ran into the forest hoping the cops wouldn't follow. So maybe there is such a thing as non-negligent flight from an officer?

13 October

• Strict liability! It's back! Remember it from the first day of class? It's a different approach than negligence.
• Fletcher v. Rylands
  This case was more important for the idea it generated than it was for its actual impact on US law. This case really put strict liability on the map-- before this, it was just about escaping animals and stuff.

  Note that Rylands sort of gets the shaft here: he suffered loss from this incident as well. But Rylands was a wealthy guy. And the original diggers were judgment-proof.

  Use-of-land cases can be complicated, because of relationships just like the mine-shaft intermingling. Recovery for land-use accidents are sort of period pieces: a product of the time when they arose.

  There was a big and very deadly dam-busting flood in 1863, so this was an issue that was very much on peoples' minds.

  The famous statement: "we think that the rule of law is that the person who for his own purposes brings on his lands..."

  But the bottom line here is that we've got strict liability: there's no need to establish fault-- the incident itself means that they are liable.

• Rylands v. Fletcher
  Again, there's no concern about negligence: the defendant is just strictly liable.

  Strict liability is triggered when we've got the "non-natural use of the defendant's land." So these cases deal with improvements, etc., not naturally occurring conditions.

  Don't interpret this over-broadly. This exception to the negligence rule wasn't meant to cover any time there's any land-use whatsoever. All land-use activity involves non-natural use, after all.

  Note that all of the examples listed in the lower court involve damage to neighboring property owners. Other courts take this rule to mean not just "anything brought onto the land," but a use that is ultra-hazardous. But that imputes a lot to these two opinions-- it's certainly narrower than what the lower court had in mind, at least.

  So the real rule is something along this spectrum:

  anything that excapes .... damage to neighbors .... ultra-hazardous

  US courts rejected Rylands, because it seemed too harsh. See note 3, p. 513. Strict liability was seen as an obstacle to progress and improvement. So, again these cases are a product of their times and places. See, also note 4 on p. 513: there's nothing un-natural about the storage of water in TX. What's a problem in one country isn't in another.

• Over time, of course, positions got more moderate. English courts started clarifying "non-natural use." And in the US, even though courts were loathe to embrace Rylands, courts started to begin finding exceptions to the rule that there's no liability in the absence of negligence. See, e.g., Guille v. Swan, cited in Indiana Harbor Belt: an 1822 case. So the notion was around even before Rylands.
• Sullivan
  The blasting cases. There's a chronology: Hay, for example. The defendant has a right to dig a canal. The plaintiff has a right not to have his house damaged. The plaintiff's right triumphs.

  Sic utere tuo, basically. Then, in Losee, we have no liability. Why not follow Hay? Because the exploding wasn't intentional. That's what gets us out of strict liability here.

• Booth: Note 4 on p. 517. A railriad is blasting, in a non-negligent manner, but the plaintiff's property is damaged. Defendant is not liable, because damage was from the concussion, not blasting debris. So when the damage is indirect, we have no liability. And public policy supports this: we need railroads.
• So there are exceptions to negligence when there's direct or intentional damage.
• R1T (1938) comes out and says strict liability is proper for ultra-hazardous activity. Then R2T (decades later) has six factors for identifying "abnormally dangerous" activity. This is note 6 on p. 519, by the way. R3T (p. 526) sort of combines the two.
• Indiana Harbor Belt Railroad Co. v. American Cyanamid Co
  Due care may have prevented the accident, so why not apply the law of negligence? Indeed. This sort of follows Losee, in a way. Fault trumps strict liability, in other words.
• Strict liability has appeal today, in environmental damage cases. See note 4 on p. 514: Ventron. Unleashing dangerous substances gets you strict liability. This is an explicit endorsement of Rylands. Kind of amazing, really, since NJ was one of the first to openly reject Rylands back in the day. Even if they did not intend to pollute, or adhered to the standards of the time, those who poisoned the land must pay for its cure.
• This policy is about risk allocation: we want to incent optimal safety.
• But is it fair to make non-negligent people pay? Would just an "utmost care" standard be better? We're only penalizing people who imposed the risk, after all. The one who "inflicts the boom." But all the same, it's not corrective justice: we're not trying to get people to behave better. It's more of a collective justice concept: when others suffer because of your abnormally dangerous activities, they get compensation.
• Strict liability is not popular among those of an entrepreneurial bent, because risk has always been a part of every venture.