Chapter Seven | Negligence, Causation and Res Ipsa Loquitur

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Chapter Seven | Negligence, Causation and Res Ipsa Loquitur

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“A manufacturer’s duty to produce a safe product, with appropriate warnings and instructions where necessary, rests initially on the responsibility each of us bears to exercise care to avoid unreasonable risks of harm to others.” (Hall v. E.I. DuPont)
“Negligence is the omission or failure to do something which a reasonable man would do or doing something which a reasonable and prudent man would not do under the same or similar circumstances.” (see Restatement, 2d Torts)
A classic case from the common law provides an insight on the issue of the reasonable man.

Case Study: Cordas V. Peerless Transportation Co.

Procedural Posture

Plaintiffs brought an action for damages in the City Court of New York, (New York) against defendant cab company in an action alleging negligence.

Overview

A chauffeur driving a cab owned by defendant cab company abandoned his vehicle while it was in motion after he was threatened by his passenger, a thief with a pistol who was fleeing from the scene of a crime. The passenger also abandoned the vehicle and then, the unattended cab injured plaintiffs, a mother and her two children. Plaintiffs filed a negligence action against defendant cab company. The court found in favor of defendant. It said that defendant was suddenly faced with patent danger, not of its own making, and the court presumed defendant abandoned the vehicle involuntarily. It said that the law does not hold one in an emergency to the exercise of that mature judgment required of him under circumstances where he has an opportunity for deliberate action. It found defendant’s actions reasonable under the circumstances.

Outcome

The court found for defendant cab company in an action for negligence where it said that defendant could not be found negligent when it was suddenly faced with patent danger, not of its own making, and the court presumed defendant’s response was done involuntarily.

Negligence

In general, negligence involves proof of unreasonable conduct, which is the cause in fact, and proximate or legal cause of injury to the plaintiff. The plaintiff must both plead and prove that specific acts or omissions of the defendant were negligent. The traditional elements of proving negligence are a proof of a duty of due care; breach of that duty; causation; and damages.

Negligence can arise in numerous ways and standard principles of negligence now apply fully and clearly to individuals who design, manufacture, and sell products. These areas include inspection, processing, packaging, warning, designing, or marketing of products, or of the service portion of a transaction involving a product.

At the end of trial, judges are required to charge a jury relating to the law on negligence. For example, the jury instructions found in the case of Garnes v. Gulf & Western Manufacturing Co. provide:

“You are instructed that it is the law that the manufacturer of a machine has a nondelagable duty to make a machine that includes necessary safety devices. You are instructed that it is the law that the manufacturer has a duty to produce a safe product with warnings and instructions where necessary.”

Courts will employ the standard of the reasonable man or the reasonable person in the position of the manufacturer, or designer, or marketer. Wilson v. Piper Aircraft reminds us that in product cases, expert testimony or evidence will be required in most cases—and absolutely in any case involving medical malpractice, or medical negligence—where an expert would be expected to testify what a reasonable medical practitioner in the same or similar community under the same or similar circumstances would or would not do. The court concluded:

“We conclude that the plaintiff had the burden to prove by expert medical evidence what a reasonable medical practitioner of the same school and same or similar community under the same or similar circumstances would have disclosed to his patient about the risks incident to a proposed diagnosis or treatment, that the physician departed from that standard, causation, and damages.”

The standard for a manufacturer in a design case is straightforward: Did the manufacturer exercise all reasonable skill and knowledge concerning the design of the product as would
other designers under the same or similar circumstances? A manufacturer must keep abreast of recent scientific and technological developments, and may be required to conduct tests or research to learn about any inherent dangers in their products. Taylor v. Wyeth Labs indicates that a manufacturer will be held accountable under a standard of professional skill and knowledge:

“A manufacturer is held to such reasonable skill, knowledge, and diligence as that of the experts in the filed to design and produce a product that is reasonably safe for its intended and foreseeable use. Ignorance of risks which were scientifically knowable or known at the time of sale or manufacture, or design; and failure to act is no defense and may, in itself, constitute negligence as an omission.”

The Restatement, Section 395, and Comment F embody this principle:

“A manufacturer who fails to exercise reasonable care in the manufacture of a chattel which, unless carefully made, he should recognize as involving an unreasonable risk of causing physical harm to those who use it for a purpose for which the manufacturer should expect it to be used and those whom he should expect to be endangered by its probable use, is subject to liability for physical harm caused to them by its lawful use in a manner and for a purpose for which it is supplied.”

“The particulars are (1) the adoption of a formula or plan which, if properly followed, will produce an article safe for the use for which it is sold, (2) the selection of material and parts to be incorporated in the finished article, (3) the fabrication of the article by every member of the operative staff no matter how high or low his position, (4) the making of such inspections and tests during the course of manufacturer and after the article is completed as the manufacturer should recognize as reasonably necessary to secure the production of a safe article, and (5) the packing of the article so as to be safe for those who must be expected to unpack it.”


Formula Or Plan = Design Fabrication = Manufacture

What about the negligence of a manufacturer in cases involving a duty to warn? Generally, as we have seen, there is no duty to warn in a case of a patent or obvious danger. However, a case of a latent defect, a duty to warn arises. This dichotomy goes back to the consumer expectations test that we have previously discussed: If the defect or danger is patent or obvious, a manufacturer will not be required to issue a warning because the consumer has no expectation of receiving a warning and the consumer would not really receive anything of value or importance in the warning that he does not already know.

The issue of “to whom is the duty owed” was discussed in the famous Palsgraf case. Judge (later Justice) Cardozo adopted a restrictive view of duty in his foreseeability formation. In contrast, Judge Andrews, who served on the New York State Court of Appeals with Judge Cardozo, viewed the matter as one of causation and not duty and adopted what has been termed as the direct connection test, with “practical limitations in both time and space.” According to Judge Cardozo, this issue is one for the court to decide as a matter of law; according to Judge Andrews, the issue is always one for the jury!

 

Palsgraf V. Long Island R.R. Co.

248 N.Y. 339, 162 N.E. 99 (1928)

CARDOZO, C. J. . . . Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform many feet away. The scales struck the plaintiff, causing injuries for which she sues.

The conduct of the defendant’s guard, if a wrong in its relation to the holder of the package, was not a wrong in its relation to the plaintiff, standing far away. Relatively to her it was not negligence at all. Nothing in the situation gave notice that the falling package had in it the potency of peril to persons thus removed. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. Proof of negligence in the air, so to speak, will not do.’ * * * Negligence is the absence of care, according to the circumstances.’ * * * The plaintiff, as she stood upon the platform of the station, might claim to be protected against intentional invasion of her bodily security. Such invasion is not charged. She might claim to be protected against unintentional invasion by conduct involving in the thought of reasonable men an unreasonable hazard that such invasion would ensue. These, from the point of view of the law, were the bounds of her immunity, with perhaps some rare exceptions, survivals for the most part of ancient forms of liability, where conduct is held to be at the peril of the actor. * * * If no hazard was apparent to the eye of ordinary vigilance, an act innocent and harmless, at least to outward seeming, with reference to her, did not take to itself the quality of a tort because it happened to be a wrong, though apparently not one involving the risk of bodily insecurity, with reference to some one else.

This does not mean, of course, that one who launches a destructive force is always relieved of liability, if the force, though known to be destructive, pursues an unexpected path. It was not necessary that the defendant should have had notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the ordinarily prudent eye.’ * * * Some acts, such as shooting are so imminently dangerous to any one who may come within reach of the missile however unexpectedly, as to impose a duty of prevision not far from that of an insurer. * * * Even to-day, and much oftener in earlier stages of the law, one acts sometimes at one’s peril. Under this head, it may be, fall certain cases of what is known as transferred intent, an act willfully dangerous to A. resulting by misadventure in injury to B. * * * These cases aside, wrong is defined in terms of the natural or probable, at least when unintentional. * * * The range of reasonable apprehension is at times a question for the court, and at times, if varying inferences are possible, a question for the jury. Here, by concession, there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station. If the guard had thrown it down knowingly and willfully, he would not have threatened the plaintiff’s safety, so far as appearances could warn him. His conduct would not have involved, even then, an unreasonable probability of invasion of her bodily security. Liability can be no greater where the act is inadvertent.

The law of causation, remote or proximate, is thus foreign to the case before us. The question of liability is always anterior to the question of the measure of the consequences that go with liability. If there is no tort to be redressed, there is no occasion to consider what damage might be recovered if there were a finding of a tort. We may assume, without deciding, that negligence, not at large or in the abstract, but in relation to the plaintiff, would entail liability for any and all consequences, however novel or extraordinary. * * * There is room for argument that a distinction is to be drawn according to the diversity of interests invaded by the act, as where conduct negligent in that it threatens an insignificant invasion of an interest in property results in an unforeseeable invasion of an interest of another order, as, e. g., one of bodily security. Perhaps other distinctions may be necessary. We do not go into the question now. The consequences to be followed must first be rooted in a wrong.

The judgment of the Appellate Division and that of the Trial Term should be reversed, and the complaint dismissed, with costs in all courts.

ANDREWS, J. (dissenting).

Assisting a passenger to board a train, the defendant’s servant negligently knocked a package from his arms. It fell between the platform and the cars. Of its contents the servant knew and could know nothing. A violent explosion followed. The concussion broke some scales standing a considerable distance away. In falling, they injured the plaintiff, an intending passenger. Upon these facts, may she recover the damages she has suffered in an action brought against the master? The result we shall reach depends upon our theory as to the nature of negligence. Is it a relative concept–the breach of some duty owing to a particular person or to particular persons? Or, where there is an act which unreasonably threatens the safety of others, is the doer liable for all its proximate consequences, even where they result in injury to one who would generally be thought to be outside the radius of danger? This is not a mere dispute as to words. We might not believe that to the average mind the dropping of the bundle would seem to involve the probability of harm to the plaintiff standing many feet away whatever might be the case as to the owner or to one so near as to be likely to be struck by its fall. If, however, we adopt the second hypothesis, we have to inquire only as to the relation between cause and effect. We deal in terms of proximate cause, not of negligence.

Res Ipsa Loquitur

“Res Ipsa Loquitur”, as translated from the Latin, means “The thing speaks for itself.” This doctrine arises when the plaintiff attempts to prove negligence through circumstantial evidence, because the plaintiff is unable to show any specific acts of negligence on the part of a defendant. The application of res ipsa loquitur permits the court to shift the burden of proof to the defendant to explain his/her conduct in an attempt to avoid the imposition of liability.

The Escola case (an exploding bottle case) discusses the issue of the application of res ipsa loquitur. In order to apply the doctrine, two conditions must be met:

  • The defendant must have exclusive control over the thing causing injury (in the case of a product, at least at the time it was made);
  • The injury is of such a nature that it would not ordinarily occur in the absence of some negligence.
  • The plaintiff was not contributorily negligent.

The plaintiff must prove that the condition of the instrumentality had not been changed after it left the defendant’s possession and that the plaintiff him/herself had exercised reasonable care. At this point, the burden of proof is shifted to the defendant to show that he/she was not negligent, since the defendant has superior knowledge so as to make it reasonable for him to come forward with the required proof. Pay special notice to the concurring opinion of Justice Traynor in Escola alluding to absolute liability, a theory not formally adopted until 1963. Because of the influence of Justice Traynor, it has been said that strict liability may be based on the same inferences as is res ipsa loquitur!

The doctrine of res ipsa loquitur cannot ordinarily be applied in cases where there is direct evidence of the cause of the injury.

Escola v. Coca Cola Bottling Co. of Fresno

24 Cal.2d 453, 150 P.2d 436 (1944)

GIBSON, Chief Justice. . . . Plaintiff, a waitress in a restaurant, was injured when a bottle of Coca Cola broke in her hand. She alleged that defendant company, which had bottled and delivered the alleged defective bottle to her employer, was negligent in selling bottles containing said beverage which on account of excessive pressure of gas or by reason of some defect in the bottle was dangerous * * * and likely to explode.’ This appeal is from a judgment upon a jury verdict in favor of plaintiff.

Many authorities state that the happening of the accident does not speak for itself where it took place some time after defendant had relinquished control of the instrumentality causing the injury. Under the more logical view, however, the doctrine may be applied upon the theory that defendant had control at the time of the alleged negligent act, although not at the time of the accident, provided plaintiff first proves that the condition of the instrumentality had not been changed after it left the defendant’s possession.

Upon an examination of the record, the evidence appears sufficient to support a reasonable inference that the bottle here involved was not damaged by any extraneous force after delivery to the restaurant by defendant. It follows, therefore, that the bottle was in some manner defective at the time defendant relinquished control, because sound and properly prepared bottles of carbonated liquids do not ordinarily explode when carefully handled.

The next question, then, is whether plaintiff may rely upon the doctrine of res ipsa loquitur to supply an inference that defendant’s negligence was responsible for the defective condition of the bottle at the time it was delivered to the restaurant.
An explosion such as took place here might have been caused by an excessive internal pressure in a sound bottle, by a defect in the glass of a bottle containing a safe pressure, or by a combination of these two possible causes. The question is whether under the evidence there was a probability that defendant was negligent in anyaof these respects. If so, the doctrine of res ipsa loquitur applies.

Although it is not clear in this case whether the explosion was caused by an excessive charge or a defect in the glass there is a sufficient showing that neither cause would ordinarily have been present if due care had been used. Further, defendant had exclusive control over both the charging and inspection of the bottles. Accordingly, all the requirements necessary to entitle plaintiff to rely on the doctrine of res ipsa loquitur to supply an inference of negligence are present.

It is true that defendant presented evidence tending to show that it exercised considerable precaution by carefully regulating and checking the pressure in the bottles and by making visual inspections for defects in the glass at several stages during the bottling process. It is well settled, however, that when a defendant produces evidence to rebut the inference of negligence which arises upon application of the doctrine of res ipsa loquitur, it is ordinarily a question of fact for the jury to determine whether the inference has been dispelled. * * *

The judgment is affirmed.

SHENK, CURTIS, CARTER, and SCHAUER, JJ., concurred.

TRAYNOR, Justice.

I concur in the judgment, but I believe the manufacturer’s negligence should no longer be singled out as the basis of a plaintiff’s right to recover in cases like the present one. In my opinion it should now be recognized that a manufacturer incurs an absolute liability when an article that he has placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to human beings. MacPherson v. Buick Motor Co., * * * established the principle, recognized by this court, that irrespective of privity of contract, the manufacturer is responsible for an injury caused by such an article to any person who comes in lawful contact with it. * * * In these cases the source of the manufacturer’s liability was his negligence in the manufacturing process or in the inspection of component parts supplied by others. Even if there is no negligence, however, public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. It is evident that the manufacturer can anticipate some hazards and guard against the recurrence of others, as the public cannot. Those who suffer injury from defective products are unprepared to meet its consequences. The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business. It is to the public interest to discourage the marketing of products having defects that are a menace to the public. If such products nevertheless find their way into the market it is to the public interest to place the responsibility for whatever injury they may cause upon the manufacturer, who, even if he is not negligent in the manufacture of the product, is responsible for its reaching the market. However intermittently such injuries may occur and however haphazardly they may strike, the risk of their occurrence is a constant risk and a general one. Against such a risk there should be general and constant protection and the manufacturer is best situated to afford such protection. The retailer, even though not equipped to test a product, is under an absolute liability to his customer, for the implied warranties of fitness for proposed use and merchantable quality include a warranty of safety of the product. * * * This warranty is not necessarily a contractual one * * * for public policy requires that the buyer be insured at the seller’s expense against injury. * * * The courts recognize, however, that the retailer cannot bear the burden of this warranty, and allow him to recoup any losses by means of the warranty of safety attending the wholesaler’s or manufacturer’s sale to him. Much would be gained if the injured person could base his action directly on the manufacturer’s warranty.

In the food products cases the courts have resorted to various fictions to rationalize the extension of the manufacturer’s warranty to the consumer: that a warranty runs with the chattel; that the cause of action of the dealer is assigned to the consumer; that the consumer is a third party beneficiary of the manufacturer’s contract with the dealer. They have also held the manufacturer liable on a mere fiction of negligence: ‘Practically he must know it [the product] is fit, or take the consequences, if it proves destructive.’ * * * Such fictions are not necessary to fix the manufacturer’s liability under a warranty if the warranty is severed from the contract of sale between the dealer and the consumer and based on the law of torts * * * Warranties are not necessarily rights arising under a contract. * * * And it is still generally possible where a distinction of procedure is observed between actions of tort and of contract to frame the declaration for breach of warranty in tort. * * * On the basis of the tort character of an action on a warranty, recovery has been allowed for wrongful death as it could not be in an action for breach of contract. * * * As the court said in Greco v. S. S. Kresge Co., ‘Though the action may be brought solely for the breach of the implied warranty, the breach is a wrongful act, a default, and, in its essential nature, a tort.’ Even a seller’s express warranty can arise from a noncontractual affirmation inducing a person to purchase the goods. Chamberlain Co. v. Allis-Chalmers, etc., Co., * * * ‘As an actual agreement to contract is not essential, the obligation of a seller in such a case is one imposed by law as distinguished from one voluntarily assumed. It may be called an obligation either on a quasi-contract or quasi-tort, because remedies appropriate to contract and also to tort are applicable.’ * * * As handicrafts have been replaced by mass production with its great markets and transportation facilities, the close relationship between the producer and consumer of a product has been altered. Manufacturing processes, frequently valuable secrets, are ordinarily either inaccessible to or beyond the ken of the general public. The consumer no longer has means or skill enough to investigate for himself the soundness of a product, even when it is not contained in a sealed package, and his erstwhile vigilance has been lulled by the steady efforts of manufacturers to build up confidence by advertising and marketing devices such as trade-marks. * * * Consumers no longer approach products warily but accept them on faith, relying on the reputation of the manufacturer or the trade mark. * * * Manufacturers have sought to justify that faith by increasingly high standards of inspection and a readiness to make good on defective products by way of replacements and refunds. * * * The manufacturer’s obligation to the consumer must keep pace with the changing relationship between them; it cannot be escaped because the marketing of a product has become so complicated as to require one or more intermediaries. Certainly there is greater reason to impose liability on the manufacturer than on the retailer who is but a conduit of a product that he is not himself able to test. * * *

The manufacturer’s liability should, of course, be defined in terms of the safety of the product in normal and proper use, and should not extend to injuries that cannot be traced to the product as it reached the market.

Section 328D Of The Restatement Of Torts

Section 328D sets forth the following elements of proof of res ipsa loquitur:

“It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when a) the event is of a kind which ordinarily does not occur in the absence of negligence; b) other responsible causes, including the conduct of the plaintiff and third person, are sufficiently eliminated by the evidence; and c) the indicated negligence is within the scope of the defendant’s duty.”

causatioN

In both strict liability and negligence cases, the plaintiff must prove that the defect was a cause in fact of the injury. The issue of causation (causation in fact or legal cause) may be especially problematic in negligence cases. Under Section 431 of the Restatement, the plaintiff must prove that the negligent conduct is the legal cause of the harm to another. This is determined by showing:

• The defendant’s conduct is a substantial factor in bringing about the harm, and
• There is no rule of law or legal excuse relieving the actor from liability (i.e., no defense exists).
In addition,the plaintiff must show that the cause was proximate. Lord Bacon described proximate cause as follows: “In jure, non remota causa sed proxima spectator,” which may be translated as “In law, the near cause is looked to, not the remote one.”
There are two traditional formulations of the proximate cause test:
• But for, or sine qua non, is the basic, common sense test, still used by most courts. The plaintiff must prove that the injury would not have occurred had there not been the negligent act or omission of the defendant, or if the defect had not existed. This is essentially a negative test: The defendant’s conduct is not a cause of the event if the event would have occurred without it.
• If two or more factors exist (two or more possible causes), then courts use the “substantial factor” test to determine if both parties have caused the injury. This test is sometimes used where there are concurrent causes—where two or more factors come together to cause an injury. In DeLuryea v. Winthrop Laboratories, an inadequate warnings case, the court used the term proximate cause and stated that each cause may contribute to the plaintiff’s harm.
One of the causes need not be the sole cause of the injury – just that it has contributed as a substantial factor to the plaintiff’s injury. In a case where a court has found concurrent causes of a plaintiff’s injury, both parties are jointly and severally liable for any injury. What this means
is that the plaintiff may look to both defendants jointly for the damage (joint liability). In some states, a jury may decide to apportion damages to reflect each party’s percentage of liability or

fault. The rule of joint and several liability also permits a plaintiff to seek recovery from one defendant, in effect, holding that one party responsible for paying the entire judgment (several liability), leaving it to a defendant to seek contribution from a joint tortfeasor.
One final note… might an intervening cause that occurs after the initial negligent act serve to cut off the liability of the original negligent actor or tortfeasor? This aspect of causation involves foreseeing the normal consequences created by an actor’s negligent conduct. Several events are generally considered to be within the area of foreseeable conduct and thus would not terminate the responsibility of the original actor for their consequences.
Rescue cases
Suppose that a rescuer is injured coming to the aid of an individual who has been injured
as a result of a defective product? A little background is in order. First, there was a strange anomaly regarding certain rescuers under the common law. Under the common law of most states, so-called lay (nonprofessional/volunteer) rescuers who were themselves injured by the same defective product as the person whom they were intending to rescue are considered as foreseeable plaintiffs, and thus the rescuer could bring a suit in products liability against the manufacturer of the product that was defective. However, a majority of courts denied recovery to a professional rescuer under these circumstances, simply on policy grounds. Concerning the issue of injury to either a lay or professional rescuer by the negligent act of a third party during the rescue, it appears today that such an injury is foreseeable as to both professional and non- professional rescuers and the negligent act would not be considered as an intervening cause. The party creating the defective product could be found liable for all of these injuries.
subsequeNt iNjuRy oR illNess
A subsequent injury or illness to a plaintiff caused by the plaintiff’s weakened condition has been held to be foreseeable.
effoRts to aveRt haRm
Efforts by the plaintiff to avert harm are seen as reasonably foreseeable.
NegligeNt meDical tReatmeNt
Even subsequent negligent medical treatment by a third party has been held to be foreseeable and thus not intervening.
Products LiabiLity: a ManageriaL PersPective
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NegligeNce, causatioN aNd Res ipsa loquituR
coNtRibutioN aND iNDemNity
In looking at the issue of joint and several liability raised in the discussion of proximate cause,
a comparison must be made with the concept of contribution. Contribution is a rule that distributes the loss among the various tortfeasors by requiring each to pay his/her proportional share, based on their percentage of liability? Contribution is accomplished through a process called impleading, seeking to force a party to pay their rightful share of any judgment.
Indemnity is a legal principle that shifts the loss from one tortfeasor who has been compelled to pay despite the lack of any fault to another who should bear it instead. This may be accomplished by a contractual provision providing for indemnity or through operation of law.

questioNs
1. A chauffeur working for the defendant, Peerless Transportation Co. abandoned his vehicle while it was in motion because he was being threatened by his passenger, a thief wielding a pistol. Subsequently, the unattended cab ran up onto a sidewalk and injured the plaintiff, Cordas. Cordas filed action under the theory of negligence.
a. Is Peerless Transportation Co. liable?
2. The plaintiff, Palsgraf, was standing on a platform of Long Island R.R. Co. after buying a ticket. A man with a package was trying to catch a train. To get on, he was pulled on by one guard in the train and pushed off the platform by another guard. However, he lost his package during this effort. The package fell onto the track where it was struck by the train prompting it to explode because it was filled with fireworks. The shock of the explosion caused some scales to hit and injure the plaintiff. Palsgraf filed a suit against Long Island R.R. Co. for negligence.
a. Does negligence apply? If so, how?
b. Does proximate cause apply? If so, how?
c. Is the Long Island R.R. Co. liable? Upon what theory?
3. Escola, the plaintiff, was waitressing in a restaurant and suffered injuries when a bot- tle of Coca Cola broke in her hand. She claimed that the defendant, Coca Cola Bottle Co. of Fresno, provided her employer with a defective product due to its excessive gas or some other defect, which caused it to explode.
a. Does the doctrine of Res Ipsa Loquitur apply? If so, how?
b. Was Coca Cola Bottle Co. of Fresno negligent?
c. Is the product defective?
d. Is Coca Cola Bottle Co. of Fresno liable?
4. Find a case that features either contribution or indemnity. Prove it using their defini- tions and formulations.
5. Suppose a defective platform at a train station causes a waiting passenger to fall on the track and become injured. Subsequently, a Good Samaritan rescues the passenger from an oncoming train but also sustains injuries in the process. Can the Samaritan bring action for negligence against the manufacturer of the defective platform?