Tort Cases

1
Tort Cases

• Lecture 19

2
Todays Topics

• Concluding words about Paradox of Compensation
• Joint and Several Liability -- Union Stock Yards
  v. Chicago, Burlington and Quincy RR
• Product Liability
• Assumption of Risk -- Lamson v American Axe
• Winterbottom v. Wright
• McPherson v. Buick Motor
• Escola v. Coca Cola

3
Paradox of Compensation

• Note similarity of the Paradox in contract and
  tort law -- over reliance v. lack of precaution
  by victim
• Both are examples of moral hazard that occurs
  when individuals insure themselves -- once you
  are insured there is no incentive to act
  responsibly
• Corrective -- limitations on reliance damages
  and the use of contributory negligence rules
• Juries are asked to judge whether acts represent
  negligence, can they set the right thresholds?

4
Vicarious Liability

• Your employee causes harm to another, is the
  employer liable for the damages the employee has
  created?
• Yes they would be -- they are vicariously liable
• Should an employer be held liable for an
  employees action if the employee falsely told an
  employer he was qualified for a job and wasnt.
  And because they were unqualified, they harmed a
  customer?

5
Many Tortfeasors

• What is a plaintiff to do if more than one party
  caused or may have caused the harm? For example,
  an operation goes badly but you are not sure
  whose actions truly caused the harm.
• A jointly liable party is responsible for the
  entire loss they in part caused
• A severally liable party is responsible for only
  the proportional share of the loss that they
  caused

6
Jointly and Several

• May proceed against all tortfeasors or may elect
  to sue one or more of them for their loss
  irregardless of their proportionate liabibility
• Plaintiffs usually sue the defendant with the
  deepest pockets
• Can the defendant who loses turn around and sue
  other tortfeasors to have them contribute to the
  settlement?

7
Union Stock Yards v. Chicago, Burlington and
Quincy RR (1905)

• Facts The railroad delivered a car to the
  terminal that had a defective wheel. After the
  terminal took over the car from the railroad, the
  wheel broke and an employee of the terminal was
  injured. The employee sue and won damages from
  the terminal. Now the terminal seeks to have the
  railroad contribute for damages they have had
  to pay.
• Court ruled the terminal could not recover a
  portion of its damages from the railroad (Opinion
  by Day but Holmes is on the bench)

8
Product Liability

• Clearly an important if not controversial part of
  tort law. Product liability occurs when a
  manufacturer sells a product and the product does
  not work and causes harm to the customer.
• Should the customer be able to recover damages
  even though the product is no longer under the
  control of the manufacturer?
• Has the manufacture caused the harm? The question
  is usually answered in terms of whether there was
  manufacturing error or a design flaw.
• Is there an issue of contributory negligence?

9
A Short History

• Until 1916 -- the principle of privity
  dominated the law, you were barred from suing
  remote suppliers of goods (no direct
  contractual relationship with injured party)
• With McPherson, the US courts reject privity in
  its entirety and imposed a negligence rule on
  remote seller
• With Escola, a third stage is entered where
  strict liability is imposed on sellers. This
  period ends with the 2nd Restatement of Torts by
  ALI.
• A fourth period was entered in 1998 with the 3rd
  Restatement whose effects are only now being felt
  -- product liability suits are down.

10
Lamson v. American Axe (1900)

• Facts While at work, an axe falls from the racks
  where painted axes were placed to dry. Lamson
  complained to his supervisor that the old racks
  were unsafe. His supervisor told him that his
  choice was to continue to work or quit. Later an
  axe fell on Lamson.
• Issue Did Lamson assume the risk of the job by
  continuing to work and consequently gave up his
  right to recover?
• Court found for American Axe (Holmes wrote the
  decision)

11
Winterbottom v. Wright (1842)

• Facts Wright has contracted with the
  Post-Master General to supply coaches to carry
  the mail. Wright in the contract promises to
  maintain the coaches. Atkinson knowing of this
  contract, contracts with the Post-Master General
  to supply horses and drivers for the coaches.
  Winterbottom one of Atkinsons drivers is using
  one of Wrights coaches and it breaks down
  causing him to be thrown from the coach and
  suffering injuries.
• Court rules for Wright on the basis of no privity
  of contract between Winterbottom and Wright.

12
Thomas v. Winchester (1852)

• Facts Gilbert purchases a bottle of extract of
  dandelion from Winchester. Mrs. Thomas falls ill
  and her doctor prescribes a medicine containing
  extract of dandelion. She purchases it from
  Gilbert unfortunately the bottle of dandelion
  contains belladonna (a deadly poison) not extract
  of dandelion.
• Court rules that Thomas can recover from
  Winchester as an exception to Winterbottom
  because of the danger posed by the belladonna.

13
McPherson v. Buick (1916)

• McPherson buys a new Buick from the dealer.
  Driving his new car, the wooden wheel shatters
  (it was found to be defective) throwing McPherson
  and causing injuries. The wheel was not produced
  by Buick but by another firm. There was evidence
  provided that Buick should have discovered the
  defect.
• Court ruled for McPherson based upon Buicks
  failure of inspection even though it bought them
  from a reputable manufacturer. Buick was
  negligent and hence responsible for McPhersons
  injuries.

14
Escola v. Coca Cola (1944)

• Facts Escola was a waitress whose duties was to
  stock the refrigerator with Coca Cola bottles.
  After being delivered (36 hours), as she was
  stocking the bottles one of them exploded and
  injured Escola.
• Court by ruling for Escola clearly stated that a
  manufacturers negligence should no longer be a
  question for a plaintiff to recover. In
  Traynors opinion, the manufacturer should face
  an absolute liability since they know that it
  will be used without inspection.

15
For Next Lecture

• Topic Damages in Tort Actions
• Reading Assignment
• Cooter and Ulen Chapter 9 (pages 389 to 398)
• OShea v. Riverway Towing (case on web)
• McDougald v. Garber (case on web)
• Kemezy v. Peters (case on web)