This is the tape of brief example Clarkson v. Orkin Exterminating Co ., Ine, Facts: Mrs. Clarkson purchased a house that Orkin had contracted with her predecessor in title to retreat the house in the event that the termites and the moisture problems developed. On the process of selling the house, Mrs. Clarkson incurred the cost of repairing the moisture problem and the termites that caused water damage to the draining system. Issue: Did Orkin behavior violate the unfair Trade Practices Act? Holding: No, the South Carolina Unfair Trade Practices Act may be violated only if the presentation was to the capacity or effect or tendency to deceive. However, in the case presented, Mrs. Clarkson knew the true state of affairs and Orkin's certification had no tendency to repair the work done. Therefore, there is no support In the South Carolina law for the proposal that a service person violates the unjust trade practice if he does his work badly or overlooks something which might have fascinated his attention. Reasoning: Mrs. Clarkson was entitled to a proper performance by Orkin of its contract, which was to check and treat again if an invasion was found. That promise was not correctly performed, and Mrs. Clarkson is unrestricted to any damage she suffered by the motive that non-performance. because she knew of the termite invasion one day after Orkin failed to notice it, her damage would actually be limited to the cost of the examination by the other exterminator plus the cost of any retreatment she might have procured. 432 CHAPTER I] baseball programs. 'W'here the assumption of rislc is implied, consent is manifested by the plaintiff's continued presence after he or she has become aware oFthe danger involved. The plaintifrr'impli edly consents to take his or her chances concem ing the defendant's negligence. For example, baseball Fans who sit in unscreencd seats at the ballpark know that balls and even bats may sttilre them; they implicitly agree to take a chance of' being injured in this manner. @ l'lorth Carolina is one of the sir: states that continue to follow the contributory negligenceassumption of risk approad't. Readers can find CarolynAfford v. Wanda E. Lon-em. a North Carolina case that illustrates how con- tributory negligence works, on the textbooks website. Comparative Negligence in states that allow the contributorywhy defense, the entire loss is placed on the plaintiff even when both the plaintii and the deFendant are contributo tily negligent. For this reason, most states now detemrine the amount of' damage by comparing the negligence of the plaintiff with that of the deFendant. Under this doctrine of' comparative negligence, a negligent plaintiff may be able to recover a portion of the cost oFan injury. In negligence cases, comparative negligence divides the damages between the parties by reduc ing the plaintilTs damages in proportion to the extent ofthat person's contributory fault. The trier of Eact in a case assigns a percentage of the total fault to the plaintiff, and the plaintiE's total damages are usually reduced by that percentage. For example, a plaintiH' who was considered to be 40 percent at fault by the trier of fact would recover $1,2U if the total dantages were deter mined to be 32,0130. Introduction to Baker v. East Coast Properties, inc. Plain'led Balcer is legally blind and is afflicted widt many medical issues, including diabetes and Parkinson's disease. He has difculty wall-ting and frequently falls. t the time he sustained the injury that was the subject oF this lawsuit, Halter rented an apartment that was specically designed for people with medical problems like his. He sued his landlord for injuries he allegedly received when agents of the landlord entered his apartment and triggered an alanrt, starding the sleeping Baker. Baker alleged that he was injured when he fell try ing to get to the door. The landlord's defense was that its entry was not the proximate cause of'Ealcer's injuries, and it moved for summary judgment. 1What follows is the trial court's ruling on the sum maryjudgrnent motion. Alfred L Baker v.EastCoast Properties, lnr. camwssc-rr-rusmu EupenorCowtofDehnom November 1'5, 2'0\" Johnston. J. Plaintiff Alfred Batter ['Baicer'i rented an apartment in Greenwood Ana Apartments {'Greenwood Acres'} from Defendant East Coast Properties, Inc. ['East Coast'}. Baker brought suit. claiming that he sustained injurisn as a remit. of negligence on the part of East CoasL Baker contends that East Coast's unarmed and unatrtholized entry inlao his apartment triggered an audible self-installed alarm attached to his front door. According to Batter, the sound of the alarm startled hirn awake. caming him to get out ofbed and Emserpendy fall ashe attempted to get to the front door. East Coast. moves for summaryr judgment against Baker, arguing that it was not reasonably foreseeable that East. Coast's entry into Baker's apartment would rauft. in Halter falli'tg and sustai'ting hjuria. East Coast further argues that even if its actions were neg ligent, Baker's installation of the alarms constitutes an intervening and superseding carneuu Fachral Background The following facts are set forth in the light most favorable to Baker, as the non-moving party. Baker rented an apartment in Greenwood Acres from East Coast, owner and landlord of the apartment complex. Greenwood Acres provides housing spa cifitally for the elderly and those with ambulatory difculties. Baker, himself, is legally blind and suf fers from numerous health problems, including CG PD, diabetes , prostate cancer, and low back pain. Baker has also been diagnosed with Parkin son's disease. As a result of his Parkinson's disease, Baker exhibits ambulatory dysfunction which causes him to fall down frequently because his knees buckle. Since moving to Greenwood Acres in zone, Baker claimed that maintenance personnel employed by East Coast repeatedly had entered his apartment without permission. During one of these unauthorized visits, Baker claimed that his cable box had been stolen. As a rult of the numerous unauthorized entries into his apartment, Baker purchased and installed an audible motion-sensitive alarm to hang on the interior front doorknob. When activated, the alarm would sound only ifthe door was opened.... Therefore, according to Baker, he would only setthe alarm if he was home so that he could be alerted when someone entered his apartment. (in Mard'l 13, zone, at approximately 9:00 a.m., Louis Desposito ['Desposito'j, East Coast's maintch nance man, arrived outside Baker's apartment. Dapoto, who was accompanied by a re tedtnician from Simplex Grinnell, planned to conduct maintLL nance and inspections of the complex's fire suppres sion system, including equipment in Baker's unit. Baker contends that he never reoeived oral or written notice that maintenance personnel would need to access his unit. The parties dispute whether Disposito knocked onthedoororrangthedoorbell before usingthe master key to enter Baker's mit. 1|liliewing the facts in the light most favorable to Baker, however, the Court will aume that Desposito's entry in Baker's aparbnent was unannoLInced and unauthorized. As Despostto unlodced Baker's front door and opened it, the alarms immediately sorunded.... According to Baker, he was startied awake by the sound of the alarm and jumped out of bed to see who was in his aparbnent. Baker took aboutthree steps and fell to the ground when his legs gave way. As a result of the fall, Baker claimed to have sustained head and neck injues. Baker managed to get back on hb feet and proceeded to the front door to see who was attempting to enter his apartment... THE LA':|"I.|I DE TDRTS 1133 Disambn {women-Law Negligence In ordertotablish a prima facie case of negligence, the plaintiff mmtshorwti'latthe defendant's neg! igent actor 01'\"in breached adutyofaire mvedto plaintiff in a waythat proximately caused plaintiff injury.... 'Sum maryjudgment can be appropriate in a negligence action ifIthe] [pllaintiffl] fail[s] to establish the elements of negligence by a preponderance ofthe evidence"... Here, in determining whether summary judgment is appropliate, the Court's inquiry must focus on two issu: {1} whether East Coast bread'led any duty it owed to Baker; and {2} if so, wl'retl'ler its bread] was the proximate cause of Baker's injuries. Duty and Bread:- Under Belaware law, one's 'duty of re' is measured in terms of reasonableness.... Che has a duty to act as a reasonably prudent person would act.... In dening the parameters of one's duty, the Court has incorporated the principle of foreeability.... The duty encompames protecting against reasonably foreseeable events... Here, the relevant inquiry is whether it was rea- sonably foreseeable that East Coast's conductthat is, East Coast's allegedly unauthorbzed and unannounced entry into Baker's apartmentwould result in Baker's injues. Absent a 'nding that sud'l a result was rea- sonably foreseeable, East Coast :annot be said to have breached any duty to Baker under the circumstances. East ltlloastarguesthat itwasnotreasonablyfore seeahle that Demosito's 'knocking on the door and r'ng- ing [Baker's] doorbell for several milutes and opening his door yelling 'maintenance', would rault in Baker's self- installed alamas going off, startling him awake, resulting in his atternpttowalk when he was notphysitally :apable todoso.' Therefore, EastCoastcontendsti'tatitcrw-edno dityto Baker u'lder these chuntstanca. Baker disputes East Coast account of events, claiming that Desposito neither knocked on the door nor rang the doorbell. Instead, Baker claims that with out authorization or annomtcement, Disposito entered Baker's apartment, triggered the alarm and caused injury by startling Baker. According to Baker, bemuse East Coast was aware of his ambulatory diffi- culties as well as his plior compla'vtts regarding unau- thorbzed inbusions into his aparbnent, it was reasonably foreseeable that Baker may be injured due to East Coast's unannounced entry. Intervening and Emersedtng Carnation Although a quation of fact exists as to the manner of East Coast's entry into Baker's apartment, the Court need not resolve this factual dispute. Even if the Court 434 CHAPTER I] were to nd that East Coast's entry was mtauthorized and unannounced, Baker has failed to establish that the injuries he sustained were proximately caused by East Coast's conduct. Delaware applies the traditional 'but for' deni- tion of proximate cause.... Proximate cause is that which 'brings about or produces, or helps to bring about or produce the injury and damage, and but for whid'i the injury would not have occurred.'... In other words, proximate cause exists if "a natural and conn uous sequence, mvbroken by any efcient intervening cause, produce the injury and without wl'lid'i the result would not have occuned.'... The mere occurrence of an intervening cause, however, does not automatically relieve the original tortfeasor ofliability.... In detennining whether the chain of causation stemming from the original tortiour. conduct is broken, the relevant inqtiry is whether the intervening act was reasonably foreseen or reasonably anticipated by the original tortfeasor.... If the inter vening act was not reasonably foreseeable, then the act constitutes a superseding cause and the initial tortfeasor is relieved of liability.... East Coast argues that Baker's actions constitute an intervening cause that supersedes any alleged neg Iigerrt conduct by East Coast. According to East Coast, Baker's installation of the alarm on his front door was neither anticipated nor reasonably foreseeable by East CoasL Baker's own conduct, East Coast contends, was the sole proximate cause of Baker's injuries. In response, Baker claims that East Coast's negligenoethat is, East Coast's unauthorized and unannounced entry into his apartmentwas the proximate cause of his injuries. At his deposition, Baker admowledged that the sole reason he fell was because he was startled out of bed by the sound of the alarm. The alarm operated precisely as Baker intended. When the door opened, the alarm sounded. According to Baker, when the alarm sounded, 'it woke [him] up and startled [him]." In response to the sound of the alamr, Baker testied that he 'jumped out of bed, made about three steps and fell' because his 'Iegs gave way.' The Court nds that Baker's act of installing the alarm onthe front door was neither reasonably fore seeable nor reasonably anticipated by East Coast. Baker testied that hes-aw no reasonto inform East Coast that he had installed the alarm on the front door. Viewing the facts in the light most favorable to Baker, the Court nds that the sounding of the alarm constitutes an intervening cause whid'l relieves East Coast of liability. ltl".|'hi|e it is undisputed that the alarm would not have sounded but for East Coast's entry into the apartment, it was the audible sound emitted from the alarm that directly caused Baker's injuries. It was not reasonably foreseeable that Baker would install a device that would cause him to panic to such an extent that he would forget that he was unable to walk without assistance. Therefore, the causal chain of lia bility stemming from any negligence on behalf of East Coast was effectively broken by Baker's intervening and superseding act. Comparative Negligence Even absentthe intervening and smerseeing cause, the Court finds that Baker's own contributory negligence bars his recovery. Under Delaware's comparative negli- gence law, a plaintiff cannot recover if he acted more negligently than the defendant... In other words, 'if the plaintiffs contributory negligence is 51% or greater, it is an absolute bar to recovery according to the Delaware statute.'... However, 'if the plaintiff's contrir'iutory negligence is 50% or less, the plaintiff is permitted to recover, althoughthe recovery is reduced proportionally.'... Summary judgment may be granted in favor [of] the defendant if the tlial judge determines that 'no reasonable juror could nd that the plaintiff's negligence did not erroeed the defendarrt's'... At his deposition, Baker adcnowledged that his ambulatory dysfu'Iction, a side effect of his Parkinson's disease, posed sigr'lical'rt problems with his ability to stand and walk. Acmrdhg to Baker, he would fall fre quentlyasa rault ofhis ccmeition. Bakerwaskeenly awane ofthephysirl limitations mused by his Parkinson's. The Courtnds, as a matter of Iawbased on un- disputed facts, that Baker's contributory negligence installing the alarm without notice to East Coast, whirh caused him tojurnp up out of bed and take "three steps" despite the fact that he suffered from physical limitations which prevented him from walking without instanceis greater than any negligence allegedy committed by East Coast. Conclusion Baker has failed to establish a prima facie case of negli gence on the part of East Coast. Hav'ng considered the facts in the light most. favorable to the rut-moving party, the Court nds that the alarm, installed by Baker, corstitiites an intervening and steierseding muse whid'l relieves East Coast of Iiabiity. The Court is cognizant of the factthatbut for East Coast's entJ'y intothe apart- ment, the alarm wotld not have been triggered. How- ever, the Cou'tnds, as Baker mceded, thatthesow'vzl emitted from the selfinstalled alarm {of 'WI'Iid't East Coast had no notice} direcdy camed Baker's injuries. Additicv'tally,ti've Court finds as a matter oflaw based on mvdisputed facts, that Baker's contributory negigence i1stalling the alarm and attempting to wak without assistance darite his physiril Iinritaonserrceeds any negligence of East Coast.Therefooe, pursuantto Delaware's comparative negligence statute, Baker is barred from recovery. THE LAW OF TDFtTS 1135 THEREFORE, East Coast's Motion for Summary Judgment is hereby GRANTED... IT IS SO ORDERED. The Honorable Mary M. Johnston Case Questions 1. Do you agree with the court with respect to proximate causation in this case? 2. Why did the court n.||e in favor of the defendant? 3. Based on what you have read, do you agree with the court that no reasonable jrror could nd that the defendant was more negligent than the pla'ertiff'? Negligence and Product liability Plainti can recover in negligence by proving that a manufacturer's conduct violated the reasonable person standard and proximately caused injury. The manufacturer's allegedly tortimis conduct could relate to any aspect of product design, manufactur ing, quality control, packaging, or wan1ings. In product liability suits, it is often dililicult to prove the defendant's act or omission that caused the plaintiffs injury. Thus, in the interests ofjustice, courts developed the doctrine of res ipsa quuitur l[althe thing spealcs for itself"). This doctrine permits plaintiffs to prove negligence circumstantially if the following facts are proved: [I] the defendant had exclusive control over the allegedly defective prod uct during manufacture; {2] under normal circurn stances, the plaintiff would not have been injured by the product if the defendant had exercised ordinary care; and [3} the plaintilfs conduct did not conuib ute signicantly to the accident. From the proved facts, the law penrrits the jurors to infer a fact for which there is no direct, explicit proofthe defen dant's negligent act or omission. The trialjudge will instruct the jurors that the later:r penrlits them to con sider the inferred ct as well as the proved cts in dDCiCllg WhithCI [TIE defendant \"'35: negligent. Duty to Warn The following case illustrates typical problems asso ciated wid'r law suits in which the plaintiff alleges a negligent failure to warn. Pr manufacturer's duty to warn consumers depends on the nature of the prod uct. 1Warnings are unnecessary for products that are obviously dangerous to everyone cnives, saws, and lireamis]. However, for products that may contain hazards that are not obvious, manufacturers have a duty to warn ifthe average person would not have lcnown about a safety hazard. [f the plaintiff is knowledgeable about the hazard that the waming would have addressed, the manufacturer's negligent failure to warn would not have proximately caused the plaintiE's injuries. Thus in such cases the extent of the plaintiffs actual knowledge ofand familiarity with the hazard and the product are relevant to the issue ofcausation. Leased 1r. Sears Roebuck lite... hr. 33?]:th .725 ULS. Comtoprpeah, rstCirmit ' Mardri'l', 1M5 Crumb-ell. Chief Judge. This is an appeal from jury verdicls totaling $1.3 million entered in a product liability suit against defendants Sears, Roehudr. E Co. and Pittway Corporation. The actions were brought by Albin Laaperi as administrator ofthe estatesof his three sons, all ofvrhorn were killed in a re in their home in December 19315, and as father and next friend of his daughter, Janet, who was injured 435 CHAPTER I] in the tire. Plaintiff's theory of recovery was that due fendants had a duty to warn plaintiff that a srnoke detector powered by house current, manufactured by Pittway, and sold to Laaperi by Sears might not operate in theeverrt of an electrical re caused bya short circuit. Defendants contend on appeal that the district court erred in denying their motions for directed verdict and judgment notwithstanding the verdict; that the admis- sion into evidence of purportedly undisclosed expert testimony violated Fed. ft. Civ. P. SEE-{e}; and that the award of $3550,\" for injuries to Janet Laaperi was exoessive and improper. We afnn the judgments in favor of plaime in his capacity as administrator of the estates of histhree sons, but vacate the judgment in favor of Janet Laaperi, and remand for a new trial lim ited tothe iue of her damages. In Mardl 19TH, plaintiff Albin laaperi purd'rased a smoke detector from Sears. The detector, manufac- tured hy the Pittway Corporation, was designed to be powered by AC [electrical] EUITEI'I'L Laaperi installed the detector himself in one of the two upstairs bed rooms in his home. Earty in the morning of December 2?, limit, a fire broke out in the Laaperi thme. The three boys in one of the upstairs bedroorrrswere killed inthe blaze. taapeli's 13-year-old daughter, Janet, who was sleeping in the other upstairs bedroom, received bums over 12 percent of her body and was hospitalized for three weeks. The uncontroverted testimony attrial was thatthe smoke detector did not sound an alarm on the night of there.Thecauseoftherewas laterfoundto bea short credit in an electrical cord that was located in a cedar dosetin the boys' bedroom. The Laaperi home had two separate electrical circuits i1 the upstairs bedrooms: one that provided electricity to the outtets and one that powered the lighting tinctures. The smoke detector had been connected to the outtet circuit, which was the cir cuit that shorted and art off. Eerause the circuit was shorted, the ACopemted smolce detector received no power on the night ofthe tire. Therefore, although the detectoritsel'fwas in no sense defective {hdeed afterthe re the charred detectorwas tested and foundtobe operable], no alarm sounded. laaperi brought this diversity action against de fendants Sears and Fittway, aerting negligent design, negligent marmfacture, bread1 of warranty, and neg- ligent failure to warn of inherent dangers. The parties agreed that the applicable law is that of Maad'ru- setts. Before the claims went to the jury, verdicts were directed in favor of the defendants on all theolia of liability other than failure to warn. Laaperi's claim under the failure to warn theory was that he was unaware of the danger that the very short circuit vd'tid'r might ignite a re in his home could, at the same time, incapacitate the smoke detector. He contended that had he been warned of this danger, he would have purd'rased a battery powered smoke detector as a backup or taken some critter precaution, each as wiring the detector to a cir cuit of its own, in order better to protect his family in the event of an electrical re. The jtay returned verdicts in favor of Laaperi in all four actions on the failure to warn claim. The jury as- sased damages in the amount of 853,9\"?! in each of the three actions brought on behalf of the deceased sons, and HEEWD in the action brought on behalf of Janet taaperi. The defendants' motions for directed verdict and judgment notwitl'rstanding the verdict were denied and defendants appealed. Defendants contend that the district court erred in denying their motions for directed verdict and judgment n.o.v. First, they claim that they had no duty to warn that the smoke detector might not wort: in the event of some electrical tires. Second, they maintain that even ifthey had sud-I a duty, there was insuf- cient evidence on the record to mow that the failure to warn proximately caused plaintist damages. We address the arguments in lm. A. Duty to lr'll'hm We must look, of course, to Massad'rusetts law. While we have found no cases with similar facts in Massa- d'lusetls [or elsewhere}, we conclude that on this record a jinywould be entitJed to nd that defendants had a duty to warn. In Massad'msetts, a manufacturerI can be found liable to a user of the product if the user is injured due to the failure of the manufacturer to exercise reasonable care in warming potential users of hazards associated with use of the product.... The mamrl'acturer can be held liable even if the product does exactly what it is supposed to do, if it does not warn of the potential dangers inherent in the way a product is designed. it is not necessary that the product be negligently designed or manufactured; the failure to warn of hazards associated with fore seeable uses of a product is itself negligenoe, and if that negligence proximately results in a plaintist injuries, the plaintiff may recover.... IIllet'endants nuke no argument that the duty of Sears is any different from that of Piltway, the actual manufacturer. in the present case, Sears advert'sed the smelre detector as a \"Sears Early ee Fire Mama." Pittway Earp. was not mentioned any- where in these advertisements or in the 12-paqe owner's man- uat packaged with the detector. Where a seller puts out a product namrlachrred by another as its own, the setter a: sub- ject to the same liability as though it were the nunufacth rer.... The sole purpose of a smoke detector isto alert occupants of a building to the presenoe of fire. The failure to warn of inherent nonobvious limitations of a smoke detector, or of non-obvious lircumstanc in which a detector will not function, can, we believe, 'o'eate an unreasonable risk of harm in that the inha- bitants of a structure may be lulled into an unjustied sense of safety and fail to be forewarned of the exis- tence of a re."... In the present Else, the defendants failed to warn pun2hasers that a short drcuit whid'l causes an electrical fire may also render the smoke detector useleg in the very situation in which it is ex pected to provide protection: in the earty stages of a re. We believe that whether such a failure to warn was negligent was a question for the jury. To be sure, it was the re, not the smoke detector per se, that actually killed and injured plaintiff's chil- dren. But as the Second Circuit recently held, the manufacturer of a smoke detector may be liable when, due to its negligence, the devioe fails to work: Ntl'voughadefectmustbea sLbstantialfactaorin musing a plaintiff's injLIirs, it is clear that a 'manu factwer's liability for injulies proximately mused by these defects mould not be Iimitedto {situations} in whid'lthe defectcausestheaccident, butd'tould ex tend tositiiations in whid't the defect caused injuries caller and abovethat whid'l would have occurred from the arIident, butforthe defective design.' It istiuethat, unlikethe above,therewas no defect ofdesig'tormanufaclure in thiscase. Eutthere was evi- dencefromwhidsitcculd be hfenedthattheabsence of a warning enhanced the harm resulting from the re. Plaintiff ttied that if he had realized that a 51m dr cuit that caused an electrical re might at the same time dible the smoke detector, he would have purchased a back-Ls} battery-powered detector or wired the detector in mestion into an isolated circuit; thus minimizing the danger that a remusing short Iircuit would render the detector inoperative. We nd, therefore, a su'ffirierrt connection between the diild'en's deaths and inju'y and the absence of any warning. Defendants contend that the disti'ict court never theless erred in denying their motions because, they claim, the danger that an electiiral re will ir'IcapaIitate an elediic-powered smoke detector is obvious. They pointoutthatanyonepureiasingadevice poweredhy home EIECtI'ItBI cu'rent will necessalily realize that if the mrrentgoesorffforany reascn'tthe devtewillnotwprk. In Maachusetts, as elsewhere, a failure to warn amounts to negligenoe only where the simplier of the good known to be dangerous for its intended use 'has no reason to believe that those for whose use the THE LAW DF TORTS 43? rhettel is supplied will realize its dangerous condition.'... Where the risks ofthe product are discernible by casual inspection, sud'l as the danger that a knife can cut, ora stove burn, the consutrer is in just asgo-od a position as the manufacturer to gauge the dangers associated with the product; and nothing is gained by shifting to the manufacturer the duty to warn. Thus, a manufacturer is not required to warn that plating one's hand into the blades of a potato diopper will cause inju'y, ... that permitting a tl'veeyear-old d'lild to ride on the anning board of a moving tractor risks injury to the d1ild, or that ring a BB gun at another at close range can injure or kill. If a manufacturer had to warn consumers against every such obvious danger inherent in a product, '[tlhe list of obvious practices warned against would be so long, it world fil a volume"... Defendants ask us to declare that the risk that an electrical re could incaparitate an ACpowered smoke detector is so obviosz that the average consumer would not benet from a warning. This is not a trivial argument; in earliersome might say sounderdays, we might have accepted it... lflirtssenseoftl'recun'entstateoftJI'retortla'lnrin Massadusetls and most other jurisriclions, however, leads us to conclude that, today, the matter before us poses a ju'y question; that 'obviousnas' in a situation sudi asthis would be'b'eated bythe Maad'tmetts courts as presenting a question of fact, not of law. To be sure, it would be obvious to anyone that an electrical outage would cause this smoke detector to fail. But the average purd'iaser might not comprehend the specic danger that a recausing electriml problem can si'nul taneously knock out the c'ro..|it into whid'l a smoke detector is wired, musing the detectorto fail atthe very moment it is needed. Thus, while the failue of a detector to function as the rml't of an electriml mal- function due, say, to a broken power line or a neigh- borhood pmer outage woukl, we think, be obvious as a matter of law, the failure that ocoirred here, being associated with the very riskrthfor wind] the device was purchased, was not; or so a jury could find. We think that the issue of obviousness tothe average consumer of the danger of a fire-related power outage was one for the jury, not the court, to detennine. In the present case, the jury was specically instructed that if it found this danger to be obviom it should hold for the defendants. It failed to do so. 3. fausaorr While, asjust discussed, the danger the detector would fail in these circumstances was not so obvious as to eliminate, as a matter of law, any need to warn, we must also consider whether Laaperi's specialized 1133 CHAPTER 1] electrical knowledge constituted a bar to his own recovery.... [P]|aintist specialized knowledge is immaterial to whetl'ler defendants had a duty to want, since that duty is dened by the knowledge of the average purd'laser. Hut plaintiff: espertise is relevant to whether defendants' failw'e to warn mused plain- tiff's damaga. Even though defendants may have been required to provide a wam'ng, plaintiff may not recover if it an be shovm that bemuse of his above average loiowledge, he already appreciated the very danger the warning would have desoibed. ln sud'i eventtherewouldbenocorevectionbetweenthe negligent failure to warn and plaintist damages. Defendants here presented considerable evidence suggesting that Laaperi, who was something of an electrical handyman. knew of the danger and still took no precautions. Laapeli. however, offered evidence that he did not know of the danger, and that he would have guarded against it had he been warned.... Selfserving as this testimony was. the jury was free to credit it. In reviewing the denial of a motion for directed verdict or judgment n.o.v., we are obliged to sayI that the district court erred in denying detende motions for directed verdict and judgment n.o.v., for the jury could have believed Laaperi's testimony in the collomry quoted above, among other evidence, and concluded that had he been property warned. Laaperi would have instituted different re detection methods in his home to protect his family against the danger that his smoke detector would be rendered useless in the eventof a rerelated poweroutage. He". ... Considering Janet's injuries alone. apart from the horrible native of her brothers' deaths, we find the award of 950511] was so grossly disproportionate to the injuries of Janet Laaperi asto be unconscionable. It is therefore vacated. The judgments in favor of Albin Laaperi in his capacity as aduinistrator of the Etates of his three sons are afrmed. In the action on behalf of Janet Laaperi, the verdict of the jury is set aside. the judg- ment of the district court vacatedI and the cause re manded to that court for a new trial limited to the view the evidence in the light most favorable to the issue of damages. verdict winner... In light of this standard, we cannot 5o ordered. Case Questions 1. What wamhg should the defendants arguably have given the plaintiffs under the facts of this case? 2. Would the outcome in this case have been different if Alt-in Laaperi were a licensed electrician? Q 1li'lr'hat would utilitalians think of'the doctrine of res ipsa loquitur? lmputed Negligence lthough people are always responsible For their own acts, one nray be held liable For the negligence of another by reason of some relationship existing between two parties. This is termed imputed negligence, or vicarious liability. lruputed negligence results when one person [die agent] acts for or represents another [the prin cipal} by the latterls authority and to accomplish the latter's ends. Pt common example is the liability of employers for the torts that employees comrrrit in the scope of their employment. One should talce a liberal view of the scope OfCmPlOE'III-Cl'lt CDHCEFL lJ-CCE'IJSE 'lIl'lE basis EDI vicarious liability is the desire to include in opera tional costs the inevitable losses to third persons incident to carrying on an enterprise, and thus distribute the burden among those beneted by the enterprise. Generally, an employee would not be within the scope of employment {1} if the employee is en route to or item home, {2} if the employee is on an undertaking of his own+ {3} if the act is prohibited by the employer, or {4} if the act is an unauthorized delegation by the employer {in which case the employer would be directly liable}. One generally is not vicariously liable for the negligent act of an independent contractor. Independent contractors are those who contract