CHRISTENSEN v. SWENSON et alBAPTIST MEMORIAL HOSPITAL SYSTEM V. SAMPSONBETHEL v. NEW YORK CITY TRANSIT AUTHORITYMcDOUGALD v. PERRYSHEELEY v. MEMORIAL HOSPITALMATTHIES v. MASTROMONACOThe Test for the Availability of a Private Right of ActionCommon-Law NegligenceA. Fraud and Negligent MisrepresentationHEINS v. WEBSTER COUNTYCriminal ActivityResisting the Robbery and Apprehending Perpetrators---COMMERCE BANK v. AUGSBURGERNotes and QuestionsChapter IVB. Economic HarmNotes and QuestionsNotes and QuestionsBENN v. THOMAS9. Several cases have involved secondary harm during transportation to the hospital for needed attention. In Pridham v. Cash & Carry Bldg. Center, Inc., 359 A.2d 193 (N.H. 1976), plaintiff, who had been seriously injured by defendant's negligence, died when the ambulance driver transporting him to a hospital suffered a heart attack and the ambulance swerved into a tree. The trial judge charged that the defendant was liable for further injuries resulting from "normal efforts of third persons in rendering aid . . . which the other's injury reasonably requires irrespective of whether such acts are done in a proper or in a negligent manner." The charge was upheld on appeal from a plaintiff's judgment. If medical services "are rendered negligently, the rule based on questions of policy makes the negligence of the original tortfeasor a proximate cause of the subsequent injuries suffered by the victim." The ambulance trip was a "necessary step in securing medical services required by the accident at Cash & Carry.” See also Atherton v. Devine, 602 P.2d 634 (Okla. 1979), in which the aggravation occurred when the ambulance was in an accident with another vehicle. In holding that proximate cause was a jury question, the court did not mention which driver was negligent. Should that matter?C. PreemptionNotes and QuestionsP. 501. Replace pp. 501-04 with the following.Notes and Questions (after Soule)Notes and Questions [after Camacho]D. Safety Instructions and WarningsHOOD v. RYOBI AMERICA CORPORATIONNotes and QuestionsEDWARDS v. BASEL PHARMACEUTICALSNotes and QuestionsVASSALLO v. BAXTER HEALTHCARE CORPORATIONNotes and QuestionsG. Beyond Products?Notes and QuestionsARAMBULA v. WELLSIIIABNotes and QuestionsNotes and QuestionsNotes and Questions1. What does the concurrence add to the majority opinion? How do the dissents differ from each other? What is the problem with the seven factors that Alabama reviews when the damages in a in a punitive damages case are claimed to be excessive?TortsSupplementary MaterialsFall 2000R. L. RabinPage 16. Add at end of note 4.5. Suggestions for further reading appear throughout this book. Three general books on tort law will be helpful on the doctrinal issues discussed. D. Dobbs, The Law ofTorts (2000); F. Harper, F. James, Jr. and O. Gray, The Law of Torts (2d ed. 1986)(6 vols.); Prosser and Keeton on Torts (5th ed. 1984). Throughout the book, cases and notes will refer to relevant sections of the Restatement of the Law of Torts (4 vols. 1934–39) and the Second Restatement (4 vols. 1965–79). A Restatement (Third) of Torts: Products Liability was promulgated in 1998. A Restatement (Third) of Torts: Apportionment of Liability was published in 2000. The Restatement is an unofficial effort to summarize the decisional law on a subject. It is prepared by the American Law Institute, a group of lawyers, judges, and scholars. The intellectual foundations of tort law are explored in K. Abraham, The Forms and Functions of Tort Law (1997); J. Davies, L. Levine, and E. Kionka, A Torts Anthology (2d ed. 1999); S. Levmore, Foundations of Tort Law (1994); and R. Rabin, Perspectives on Tort Law (4th ed. 1995). The litigation process is explored in L. Grossman and R. Vaughn, A Documentary Companion to a Civil Action (1999). D. The Parties and Vicarious Liability1. Plaintiffs. Hammontree involved an adult plaintiff. Her age, physical condition,and occupation would have been relevant to her damage recovery. In other situations it may be more difficult to find the proper plaintiff and to measure the recoverable loss. If a minor is hurt, suit generally will be brought on her behalf by her parent or guardian, and adamage award will be divided so that the minor will recover for any permanent physical harm (though the money will be placed in trust for her) and her parent will recover medical expenses borne on the child’s behalf. It is now generally held that an infant who is born alive may sue through a legal guardian for harm suffered before birth. This problem is well discussed in Woods v. Lancet, 303 N.Y. 349, 102 N.E.2d 691 (1951).Recoveries in cases of death are regulated by statute because under early commonlaw the death of either the plaintiff or the defendant terminated the lawsuit. The death of the defendant now rarely causes the abatement of otherwise valid lawsuits. As for a deceased victim, two separate interests are involved: the victim’s interest in her own bodily security and her dependents’ interest in continued economic support and in other factors we shall consider later. The first is protected by “survival” statutes that allow the estate of the deceased to bring suit for any harm for which the deceased could have sued had she survived. This would include such items as medical expenses, lost wages, and pain and suffering up to her death. The second interest is generally recognized through “wrongful death” statutes. One common pattern provides that an action may be brought 1by and on behalf of legally designated beneficiaries, usually close family members or next of kin, to recover for the pecuniary loss that the death has caused. Generically these statutes are called Lord Campbell’s Acts, after the first such statute adopted in 1846 in England. The survival and wrongful death interests may be vindicated in a single action.In a lawsuit on behalf of a dead victim the actual plaintiff is usually an administrator (administratrix) or executor (executrix). An administrator is named by the court to handle the affairs of one who died intestate (with no will). If the deceased has lefta will, it usually names an executor to handle the settling of estate matters, including bringing and defending lawsuits. In these cases the deceased may be referred to as the decedent, as plaintiff’s intestate, or as plaintiff’s testator.Why is Maxine Hammontree’s husband a co-plaintiff? Although the property damage to their jointly-owned business is one