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Torts II
University of Georgia School of Law
Peltz, Richard J.

A.      Res Ipsa Loquitur – the thing speaks for itself
1.       Restatement (2d) of §Torts 328D
1.             Rule – If P can establish prima facie ril case, he need not prove by direct or other evidence the specific conduct of D which was negligent.
(a)           his injury was caused by an instrumentality or condition which was under D’s exclusive management or control at the relevant time.
(b)           in the ordinary course of events, P’s harm would not have occurred unless D was then and there negligent.
2.             Inference is allowed when you have a not ordinary event occurring after negligence.
                3.             Suggested negligence is within the scope of the duty to the D
4.             Question of law if it applies and then jury makes the reasonableness determination.
                                –               Higher courts show great deference to jury verdicts
A verdict will be upheld upon even a scintilla of evidence
A verdict based on speculation would not be upheld
5.             O’Connor v. Chandris Lines, Inc.
                a.             husband’s top bunk on ship broke & collapsed on wife
b.             How duty breached? Beds don’t ordinarily just fall unless someone has done something wrong
c.             don’t know what they did wrong but breach is inferred b/c must have done something – res ipsa loquitor
6.             Londono v. Wash. Metro Area Transit Auth.
                a.             r.i.l. common in escalator cases
b.             don’t know what caused cut on leg but more likely than not, something defective w/ escalator occurred.
                7.             event does not ordinarily occur absent negligence
                8.             other causes have to be sufficiently eliminated – P bears burden of proof.
                9.             To defeat r.i.l. – need to come up w/ good alternative situations
                10.          either get negligence or r.i.l. – not both
   11.           Common carrier liability grew out of industrialization, heightened duty of common carrier to passengers. Burden shifts in those cases to the common carrier having to prove they were not negligent rather than the plaintiff passenger having to prove that the carrier was negligent
·         Majority rule is permissible inference
·         Minority rule is burden shifting
Majority Rule – permit the jury to make the inference
Minority Rule – Burden shifting (defendant must show no duty or no breach) (better for plaintiff)
·         Shifting the burden doesn’t do much to change the outcome over the permissive inference rule when it comes to the jury, the judge instruction that it is ok to infer the defendant was negligent is powerful
·         Difference between the rules is technical
·         Jury also must decide the 4 elements of negligence as well
·         Res Ipsa is a concept of proof rather than a rule, the actual tort is negligence, the way to prove the duty and breach is through Res Ipsa Loquitur – RIL is not a cause of action
·         As a matter of policy, we want to use RIL when we know the defendant is responsible but there is no direct proof
Remember that res ipsa is more concept than rule.  But inasmuch as it is a rule, here are the elements (drawn from the Restatement approach), which we’ll call our majority rule.
RES IPSA LOQUITUR may be invoked when:
(1) the event does not ordinarily occur absent negligence;(2) other possible causes, including the conduct of plaintiff and third persons, are sufficiently eliminated by the evidence;
(3) the indicated negligence is within the scope of defendant’s duty to plaintiff.
The latter element is arguably redundant of the general rule of negligence, but serves to remind us that RIL does not render the duty element a dead letter.  In the four-part negligence test, RIL may be said to stand in for duty and breach, but not causation and injury.
Some jurisdictions still formulate the RIL “rule” to refer to the exclusive control of the defendant over the instrumentality of injury.  Historically, this requirement precluded the operation of RIL in cases of multiple defendants.  But that limitation is little observed today.  Typically even a court that uses the exclusive control language will work around the limitation in a case of multiple defendants through a device such as “common duty.”  Also, the adoption of comparative fault in cases of joint liability (next week) has had a deleterious effect on the application of exclusive control.
The key practical question that arises once RIL is invoked is what effect it has.  We’ll say that as a matter of majority rule, RIL entitles the plaintiff to a jury instruction that the jury may draw inferences as to the defendant’s responsibility for the negligent condition.  Note that the “may” is permissive, not mandatory.
The Restatement leaves the effect of RIL to the trial court, indicating that a viable alternative effect would authorize the court to instruct the jury to draw a certain inference (which might or might not be dispositive on the facts; another issue, besides breach, such as causation, might remain as a jury question of fact).  Also, we must acknowledge that because of the historical confusion with burden-shifting, some courts will allow RIL to establish a rebuttable presumption of defendant’s negligence, thereby shifting the burden of proof to the defendant to show nonliability.  Consider that the inference instruction might not be all that different in practical effect from the rebuttable presumption.
Note that in litigation involving a plaintiff’s RIL theory, the plaintiff typically will plead two separate counts of negligence, one predicated on RIL, and another not, even though both counts contemplate the same occurrence of injury.  The defendant may move to dismiss the RIL claim, and if defendant prevails, the plaintiff can still struggle to prove negligence on the other count in the traditional fashion.
1.                   Price v. Halstead
a.       Joint venture – association of 2 or more people to carry out a single business enterprise for profit, for which purpose they combine their $, property, effects, skill & knowledge
b.       Joint enterprise – no business motive underlying the parties efforts
c.        Substantial assistance or encouragement – for harm resulting to a third person from the tortious conduct of another, one is subject to liability if he ..(b) knows that the others conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself
d.       P wants to hold passengers of car liable for negligence – partying in car when they hit another vehicle.
2.                   Rest. Section 876
a.       Liability to third party when you didn’t commit the act:
                                                                           i.      Common design (joint enterprise) – does tortious act in concert w/ other pursuant to a common design
                                                                          ii.      Gives substantial assistance to other in accomplishing a tortious result and his own conduct, separately considered constitutes breach of duty to third person.
                                                                        iii.      Knows that the other conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so conduct himself
3.                   Hypo: A & B are shooting across a public road at an animal (neg. by statute) and A hits animal and B hits a person driving. Is A jointly liable? Yes. B/c A knows (iii).
4.                   Hypo A and B are going to burglarize C’s safe. A is mastermind, B is actually going to burglarize. A liable b/c common design and substantial assistance.
a.       What if B burns house down to destroy evidence, and A didn’t anticipate that. A still generally liable b/c substantial assistance in original breach of duty and foreseeable breaches occur w/in conduct
b.       If B is a firebug and does it for no reason and A doesn’t know of the tendency, A is not liable under 876(iii) or (b)
5.                   Hall v. E.I. Dupont
a.       Blasting caps causing injury to children
b.       All companies making blasting caps did not do anything jointly
c.        Judge Weinstein said possible to infer sufficient joint control b/c the D, acting independently, adhered to industry wide standard or custom w/ regard to safety of blasting caps.
d.       Hall can’t show which one so says industry is guilty
e.        It is then D’s responsibility to prove it was not them.
6.                   Market Share Liability – pay damages in the amount of their share of the market
a.       Judge Made Law
7.                   Joint Tortfeasors – those who are jointly and severally liable to P. It is not necessary that their tortious conduct concur in time or place. It includes those who are merely vicariously liable .
8.                   Divisible Damages – if diff. persons are each responsible for separate, identifiable parts of P’s harm, absent concert of action, each is liable only for the harm traceable to him.
9.                   Indivisible Harm:
a.       Traditional Rule (Joint & Several): if two or more persons are responsible for the same harm, all whose tortious conduct is found to be a proximate cause of that harm are jointly and severally liable for all of P’s damages. P may sue one, some or all, obtain judgments for the full amount of his damages against a

foreseeable consequences in strict.
                                B.            Intervening Cause
a.             conduct by some third person, or an event which occurs, after D’s tortious conduct, and operates with or upon D’s conduct to produce P’s injury.
b.             Rule – if (1) intervening cause was foreseeable or (2) the intervening cause was not foreseeable but the consequences were of the type which D could foresee as resulting from his conduct, the intervening cause will not operate to relieve D of liability. But if both the intervening cause and the resulting consequences were not foreseeable, it is called a superseding intervening cause and D’s tortious conduct is not deemed to be a proximate cause of P’s injury.
c.             Foreseeable Intervening Causes (may include):
1.             Weather (non-extraordinary)
2.             Negligence by third persons
3.             Criminal conduct could be so foreseeable that it would not be superseding if D’s conduct exposes P to a greater than normal risk of such conduct or if exposure to such risks is what makes D’s conduct tortious.
4.             If D’s conduct causes P to become insane, D is subject to liability for P’s self-inflicted harm resulting from insanity.
5.             Rescuers
6.             Efforts by P to mitigate the effect of his injury
7.             Further harm – disease contracted or subsequent injuries
d.             Foreseeable consequences – Rule – if result is foreseeable w/in risk created by D’s conduct, unforeseeable intervening cause does not supersede D’s liability w/ following exceptions:
1.             where unforeseeable intervening cause is malicious and intentional criminal act of third person
2.             where third person, who has duty to act, discovers the danger and has sufficient time and opportunity to prevent harm but fails to do so.
3.             Suicide is a superseding intervening cause if the person who committed suicide is not driven by an irresistible impulse, ie insanity
4.             Extraordinary Acts of Nature will be superseding if the damage caused is different from that which was threatened by the defendant
e.             Even if an intervening cause is foreseeable, defendant is not liable unless defendant’s act created or increased the unreasonable risk upon which the intervening cause would act
4.             Read v. Buckner
–                      1895 statute to regulate animals
–                      motorcycle accident caused by goats in the highway
–                      statute initially not meant to deal with motor vehicles but when later amended, did not change so now can assume it deals w/ motor vehicles.
–                      Don’t have to talk about breach, if some of conditions are not met in restatement for making statute a rule of law in tort, instead of saying there’s no breach, say there’s no causation. Incorporates more than just breach concept, tries to cover duty and causation as well.
–               Duty, breach and causation are really all the same thing.
–               If you find that there is a break in the causal chain, you really don’t have a breach of the duty.
5.             Landes & Posner
–                      animals washed overboard on ship b/c not equipped w/ pens as required
–                      if pens had been on ship, animals would not have washed overboard
–                      court excused the D from liability b/c the statute did not create a duty to avoid the type of accident that occurred (it was to avoid disease).
–                      Bad economic decision
–                      Legislative rule is now going to be applied in all courts, everyone will have to have the pens regardless of the health of animals and would thus go against the intent of the legislative rule (why restatement is the way that it is)