Fall 2010 Kault Torts Outline

8/3/2019 Fall 2010 Kault Torts Outline

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Fall 2010 Torts Outline Prof. Kalt

Torts:

A tort is a civil wrong that the law provides a remedy Torts must be proven by a preponderance of the evidence Three Types:

o (1) intentionalo (2) negligento (3) strict liability

Chapter 2: Intentional Torts

Elements of an intentional tort:o (1) Intent intends the consequences of his conduct if:

(a) his purpose is to bring about those consequences; OR (b) he knows with substantial certainty that the consequences

WILL result from his actions.

Mistake does not vitiate intent irrelevant Insanity is also irrelevant, neither is recklessness

o (2) do not require damages to establish liability Five torts where intent transfers (under writ of trespass): battery, assault,

trespass to land, trespass to chattels, and false imprisonment

o Transferred intent (1)if intended to commit 1 of the 5 classic intentional torts and

ends up committing another, the intent transfers

Or (2) if intends to commit tort against one person, but commitsit against another, intent transfers

Battery:o (1) intento (2) to cause a harmful or offensive touching with another person, a third

party, or an object one is holding

incidental touching is not applicable if person is hypersensitive and doesnt know, they cannot be held

liable

o AND (3) that the harmful or offensive touching did occur.

Assault:


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o (1) acted with an intent to cause a reasonable apprehension (meansexpectation) in of an imminent batter;

o AND (2) that intentional act caused to suffer a reasonable apprehensionof an imminent battery.

False Imprisonment:o (1) acted with an intent to confine or restrain someone in a bounded

area;

types of restraint and reasonableness: physical barrier, actual orthreat of harm, moral persuasion, and authority.

o AND (2) the unlawfulness of such restraint. Can be restrained by acts or words, that he fears to disregard

o Minority Rule for False Imprisonment: substitute actual harm instead ofknowledge of confinement

o Majority Rule for False Imprisonment: intent to confine, know that one isrestrained (dont have to remember being confined) in a bounded area,

without legal authority.

o False Arrest: a subset of false imprisonment can show that an arrest was proper if there was lawful authority

to arrest and was later convinced of the offense for which he was

arrested.

could also prevail by having a warrant, or probable cause Intentional Infliction of Emotional Distress:

o (1) extreme and outrageous conduct by the o (2) with intent to cause to suffer severe emotional distresso (3) causing severe emotional distress

no transferred intento Minority rule in some jurisdictions, recklessness suffices for intent

Trespass to Lando Can occur above, below, and directly on the land (near the surface)o (1) intent by to physically go on the lando (2) physically invading s real property ( must be possessor or owner)o (3) without s authorization


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Trespass to Chattels classical intentional tort (allows transferred intent)o (1) intent by to use or intermeddle with a chattel o (2) chattel is in possession of anothero (3) this results in either

(a) impairing the chattels condition, quality, or value (b) depriving of the use of the chattel for a substantial period of

time

(c) completely dispossessing of the chattel; OR (d) harm to or a legally protected interest of s.

Conversiono An intentional exercise of dominion over a chattel that so seriously

interferes with the right of the owner to control it that the may justly be

required to pay the the full value of the chattel.

Distinct from trespass to chattels recovery of total amount ofchattel for conversion (full value of chattel) rather than just

recovering amount of diminished value (the result of the harm)

Damages are a required element No transferred intent

o Types of interferences that may constitute conversion: Wrongful acquisition, wrongful transfer, wrongful detention,

misusing, severely damaging, substantially changing

Good faith purchasers are not liable

Chapter 3: Privileges

There are several privileges that a can establish as an affirmative defense foran action that would otherwise be an intentional tort.

Mistake if reasonable, does not change anything. Doesnt have to be right, justreasonable, if unreasonable.changes everything.

Consent:o is not liable for an otherwise tortious act if consented to s acto Can be expressly spoken or written, or implied by contexto Consent given by mistake is valid unless induced the mistake

(misrepresentation, fraud, or duress) or otherwise knew the was giving

consent based on a false pretense


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o To a criminal act is not valid

Self-Defense/Defense of People (can be justification or excuse)o is not liable for a tortious act if:

(1) it was performed under a reasonable belief by that he isbeing or is about to be attacked;

AND (2) constituted a reasonable force Reasonable to use force, and amount was reasonable Retaliation is not allowed Verbal provocation is irrelevant Reasonable mistake does not vitiate the privilege

o Some states require retreat when doing so is reasonably safeo Typically not required to retreat when to retreat from his home

Defense of Otherso If a 3rd party would have been privileged to use self-defense, is

privileged to use reasonable force on the 3 rdpartys behalf.

Reasonable mistake does not vitiate the privilege.

Defense of Propertyo is privileged to use reasonable force to prevent the commission of a tort

against his property.

o A mistake will vitiate the privilege, even if it was a reasonable mistake, if was acting pursuant to a privilege of his or her own (i.e. a repo man).

Recovery of Propertyo may be privileged to sue reasonable force to recover a chattel, as

opposed to relying on legal process.

o must be in an uninterrupted fresh pursuit of . o Mistake even a reasonable one vitiates the privilege, expect for

shopkeepers who reasonably suspect shoplifting (Shopkeepers Exception)

Necessity / Public Necessity / Private Necessityo may commit an intentional tort against if reasonably necessary to

avoid injury or damage. The threatened damage must be:


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(1) natural/external (2) substantially more serious than the interference with interest AND (3) sudden, unexpected, and temporary.

o Public Necessity: is acting to prevent threatened damage to the publicat large, privilege is absolute and need not pay for damages caused to

s property

o Private Necessity: is acting to protect a personal interest, he mustcompensate for actual damage to s property, but under the law he is

still privileged to act as he did.

Authority of Lawo Police officers, military personnel, prison officials, regulatory inspectors, or

officials at mental health facilities may act under authority of law,

engaging in conduct that otherwise would be tortious.

Disciplineo Privilege of parents to discipline their children also covers those who are

temporarily responsible for them.

Amount of force that is acceptable would be less than what wouldnormally be acceptable for a parent to use.

Chapter 4: Negligence

A must generally prove that had a duty to to exercise some level of care,and breached that duty, causing damage to .

The omission to do something which a reasonable man, guided upon thoseconsiderations which ordinarily regulate the conduct of human affairs, would do

or doing something which a prudent and reasonable man would not do.

o Cannot be held liable for accidents Classic Formula of Negligence:

o Dutyo Breacho Causation causation in fact and proximate causeo Damages

No nominal damages Contributory Negligence the is claiming the s conduct was negligent and

that the s negligent conduct also contributed to the cause of s injuries.


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Standard of Care:o Use subjective testing would I have known?o Use Objective testing would the ordinary prudent person have

known?

The reasonable prudent person A person of ordinary intelligence, perception, and memory

with the physical characteristics, abilities, and disabilities of

the actor, and any relevant additional specialized

knowledge, skills, or experience that the actor has.

Mental characteristics are irrelevant Forgetfulness does not excuse negligence

Lapse of time causing forgetfulness = no negligence Constructive knowledge = what someone should have known

o To establish the standard of care there are 2 elements: (1) constructive knowledge (2) actual knowledge, skills & training

The Sudden Emergency Doctrineo Event must be unforeseen, sudden, and unexpected

For Children: mostly subjective standardo Used by a majority of jurisdictions usually stated what is reasonable to

expect of children of like age, intelligence, and experience.

Max. age is 17o In many states children under a certain age cannot be held negligent

MI age is 7.o If child is engaged in adult activities, motorized vehicles or heavy

equipment, are held to the more objective adult standard.

The Learned Hand Test: to determine reasonable careo Weighs the costs and benefits of the reasonableness of the actiono Conduct falls below reasonable care when B < PL

B = burden (cost of precaution directly, reduced usefulness,societal costs) , P = probability of harm, L = magnitude of the

injury if it were to actually occurred.

A Customary Practice (Custom)o Used as evidence of the care (or lack) exercised by a reasonable person in

that context.

Persuasive evidence, not necessary or sufficient


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In Professional Cases, custom is the standardo Locality Rule:

Majority similar community in similar circumstances test whichis designed to balance the need to avoid evaluating a general

practitioner in a rural area by the same standards as a specialist in

an urban teaching hospital.

Minority Some jurisdictions have adopted a national standard,especially for specialists who are certified by a national board

within their specialty areas.

The reasonable prudent person standard is objective with some subjectivecomponents. A person of ordinary intelligence, perception, and memory, with

the physical characteristics, abilities, and disabilities of the actor, and any

relevant additional specialized knowledge, skills, or experience that the actor has.

o General mental characteristics are not taken into account Insanity is not a defense in most states If you treat sudden mental incapacity like a physical cause, not

negligent. I.E. Alzheimers (deformation of brain, physical not

mental)

o Neither are deficiencies in the actors specific knowledge and experience.o Voluntary intoxication is not a defense

Professionals (doctors, lawyers, pilots, and other jobs that require lots oftraining and education and have significant internal coherent standards) are

subject to an objective standard that dispenses with the usual language of

reasonableness.

o Held to ordinary member of the profession (not average) They are expected to exercise the skill, knowledge, and care

normally possessed and exercised by other members of their

profession. Specialists are subject to the standards of other

ordinary members of their specialty, if specialty is relevant to case.

Standard must be established by an expert witness.

Medical Malpracticeo Liability cannot be premised on a mere disagreement or a failure of

technique or tactics


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o Most cases define the professional standard as that which doctors in thesame or a similar locality do. Some states use a national standard.

Elements of Negligence ofInformed Consent: (1) the duty to inform (all material risks must be disclosed,

no bright line rule separating the material from the

immaterial).

(2) causation requires that the plaintiff would have chosen not to

receive the treatment or chose a different treatment

had the alternatives or material risks been made

known to him

(3) injury risk must actually materialize, injured as a result to

submitting to the treatment

o Defenses to this: a physician may plead and prove plaintiff knew of risks,full disclosure would be detrimental to patients best interests , or an

emergency existed requiring prompt treatment and there was no time to

receive consent.

o In most states, doctors are held to the regular malpractice duty of care forprofessionals (we require plaintiff to show that the ordinary level of

professional care (the customary practice) mandates disclosure.) A

significant minorityof states subscribe instead to a reasonable patient

rule under which a doctor must disclose material risks.

o Doctors also have a duty to disclose any profit or research interests oftheirs underlying their treatment.

Informed Consent Rule:

Canterbury Duty Minority Rule, SIGNIFICANTo What the reasonable patient would like to know (material risks, not things

patient should know)

Baseline Duty Majority Rule, the reasonable doctor testo The information that the reasonable doctor usually tells patients about a

particular procedure

Baseline Causation Minority


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o If patient was going to have surgery anyway (w/o being told risks), resultwould have happened anyway

o Subjective the patient wouldnt have had the surgery, had they knownthe undisclosed risks normal human nature to not have had the surgery

Canterbury Causation Majorityo Show patient wouldnt have had procedure and a reasonable patient

wouldnt have had surgery had they known the risks.

Duty and the Role of The Legislature

Negligence per seo Act is negligent because it violates the statuteo Ordinances/Administrative Regulations treated in same way, lesser weight

The basis upon which a court seeks to select/reject a criminal statute as astandard of care for tort law is:

o (a) the injury at issue is of the sort that the statute meant to prevent (theharm) (this sort of harm)

o AND (b) that the victim is of the sort that the statute meant to protect (this sort of victim)

o (c) must also decided if the statute is appropriate for translation into acivil duty.

Some factors they must consider include: Whether it creates difficulty in proving causation; Whether it creates a new duty; Whether it provides liability that is too strict (detached from

defendants level of care)

Whether it provides for disproportionate liability; Whether it represents too vague of a duty.

Majority Opinion of NPS duty and breach are automatically established forunexcused violations of a usable statute.

Minority Opinion defendant can do anything to prove he was not negligent. Excuses, which the defendant has the burden of proving include:

o Incapacity or reasonable inability to comply, reasonable lack of knowledgeof violation (ignorance of facts, not law), emergency, and greater harm

from compliance than violation.


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Minority Opinion 1 defendant can argue not just a specific excuse but generallythat he exercised reasonable care.

Minority Opinion 2 only evidence of unreasonableness, as if it were just acustom that was violated.

Proof of Negligenceo Prove that (1) there was actual or constructive knowledgeo (2) the condition posed an unreasonable risk of harmo (3) defendant did not exercise reasonable care to reduce or eliminate the

risk, AND

o (4) defendants failure to use such care proximately caused injuries.

Three Burdens of Proof for Plaintiff:o (1) the burden of pleading allege sufficient facts in complainto (2) burden of producing enough evidence to avoid a directed verdict

direct evidence is not required (makes it easier) circumstantial evidence is OK

proves a point through inference If a reasonable jury could draw the inferences that a party

is trying to establish, then it is permissible for the jury to

rest its decision on the evidence that produced those

inferences, however, circumstantial it may be.

o (3)the burden of persuasion persuade that there is a preponderance ofthe evidence in their favor

Res Ipsa Loquitor Let the Thing Speak for Itselfo It is a negative inference.o If plaintiff cannot show what exactly defendant has done, it may suffice to

show defendants negligence through negative inference, namely that

(1) the accident is of a type that normally would not occur unlesssomeone was negligent;

(2) AND defendant exercised substantial control over whatevercaused the injury.

Helps plaintiff survive a motion to dismiss for lack ofevidence


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Chapter 5: Causation in Fact

Two tests: The But-For Test & The Substantial Factor Test

Sine Qua Non Without which noto The but-for cause, negligence is a cause in fact of the harm to another if it

was a substantial factor in bringing about the harm

Compare: (1) world as it exists and (2) world which tort didntoccur, if both look the same, no cause

o The fact that one thing is a cause-in-fact does not mean that a secondthing isnt as well. IT doesnt matter whether a cause is sufficient or not;

what matters is that it was necessary.

Could not have occurred without it.o There must be a causal link

The negligence at issue must be something that makes the resultmore likely. A but for cause will not establish causation-in-fact if it

is a mere coincidence

o When is a but-for cause not sufficient to establish causation in fact? When it is a mere coincidence!

o What are three instances in which a but-for cause is not necessary toestablish causation in fact?

Sufficient causes Substantial Factor Test

Multiple Negligent Defendants Market Share Liability

To Prove but-for Causationo Plaintiff must produce evidence to argue that defendant more likely than

not caused the injury.

Probable other causes are not irrelevant, but they are not enoughto say it wasnt a but-for cause

o Neither evidence that (1) defendant could possibly have caused the injury,nor (2) defendant was 50% or less likely to have caused the injury, will

suffice by itself to get the case to a jury.

o Mathematically, one can say that plaintiff must at least show that theprobability of the harm that occurred was more than twice as high with

defendants negligence than it would have been without it.


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o Post hoc ergo propter hoc not sound evidence or argument

Concurrent Causes - The Substantial Factor Testo Two causes that are both sufficient causes of the injuryo A rare occasion in which when the two events cancel each other out so

that no liability could be sought by plaintiff (neither are but-for causes is

because both causes are sufficient, which is good enough to show that it is

a substantial factor), causation can be based on whether an individual

cause was a substantial factor in causing the harm. This is an alternative

to the but-for test, and it avoids allowing a defendant who otherwise

would be liable from getting out of it just because another defendant did

something negligent too.

Use only for a converging fires type example

Multiple Sufficient Causeso Where there are multiple possible negligent causes and no possible way

for plaintiff to pinpoint which it was, the inability to sort out which it was

will not necessarily deprive plaintiff of the ability to recover. Instead, a

court may simply shift the burden of proof to the multiple negligent

defendants.

Market Share Theory to apportion liabilityo Many ways to use it, used for Sindell, a drug liability in which there were

195 companies that manufactured it, but 5 companies accounted for 90%

of the market. Those five companies were brought to court and each paid

their share of the damages according to their market share percentage.

Chapter 6: Proximate Cause

Is less a matter of fact and logic than it is a matter of how broadly the courtwishes to allow a defendant to be held responsible for damages that he causes-

in-fact. Some courts will place limitations on liability in terms of duty.

(1) Foreseeability what is the scope of the risk?o Whether the injury was a foreseeable result of the defendants negligence

Within the scope of risk the defendant created? Often a jury question


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o In many states it is often asked if the type of accident was foreseeablerather than the way it occurred or the magnitude of the injury

o The more foreseeable it was, the more likely the defendant was theproximate cause.

o Following Palsgraf, (dynamite fell out of passengers hands at train stationwhile worker was helping him on, fell and exploded, injured Palsgraf

because a scale fell on her more than 30 feet away from the accident) we

may also ask whether the scope of the risk extends to the plaintiff in a

positional sense.

i.e. if a defendant negligently crashes his car into another , apedestrian who gets mangled on the sidewalk next to the accident

is closer to the scope of the risk than is a person three blocks away

that was hit with glass.

o In many cases, the jury could decide either way because they fall into theintermediate category and the jury will generally be given the chance to

do so.

o The area within which liability is imposed is that which is within the circleof reasonable foreseeability.

(2) Directness the extent to which other causes intervene an Interveningcause is things that are second/subsequent causes of injury

after the was negligent.

o a cause in fact, some ICs are SCs A supersedingcause is an IC that is so responsible for causing harm that it

cuts off s liability as a proximate cause. An IC that forces a conclusion that

defendants negligence was not a proximate cause of the injury.

An IC is more likely to be superseding if it is unforeseeable. AN IC is more likely to be superseding if it is independent of s negligence as

opposed to flowing from it.

A criminal act or an intentional tort by a 3 rd party is not necessarily SC, but theyare likely to be.

More likely does not mean certain, Foreseeable and dependent interveningcauses may turn out to be superseding; extraordinary and independent ones may

not.

The test to determine if an intervening force constitutes a superseding cause:o (1) is IC foreseeable from s negligence or w/i scope of the risk?


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If NO, IC is more likely to be an SCo (2) is the IC dependent on s negligence?

If NO, IC is more likely to be SCo (3) is the IC a criminal or intentionally tortious act?

If YES, much more likely to be SC The Rescue Doctrine:

o Danger invites rescue; if reasonable, will never be a SCo To be a rescuer:

(1) the was negligent to the person rescued and such negligencecaused the peril or appearance of peril to the person rescued

(2) the peril or appearance of peril was imminent (3) a reasonably prudent person would have concluded such peril

or appearance of peril existed, AND

(4) the rescuer acted with reasonable care in executing the rescueo I.E. Attempt to alleviate harm caused by , go to hospital, doctor commits

malpractice, original is liable. It is foreseeable

Most of the time medical malpractice is not SC

Second injury caused by weakened condition resulting from first injury, it isforeseeable that if you injure someone, they will be in a weakened state, will not

be a SC, and will be liable. Things to take into account in this situation are: (1)

length of time, (2) location and nature of second injury, (3) reasonableness of s

conduct, and (4) character of the second accident.

(3) Public Policy Exceptionso There are public policy exceptions in which there might otherwise be

proximate cuase but the courts in some states declare that there is not, as

a matter of policy. Most of these cases can also be understood

alternatively as restricting not proximate cause, but duty.

i.e. social hosts and victims of their drunk-driving guests, damagesthat will eventually occur to yet-to-be-conceived people

Majority drinkers voluntary consumption of alcohol andnegligence, means host is not liable

Allows liability for serving liquor to a minor Minority liability for social host


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Majority if did not exist (pre-conception), cannot bePC of injury

Minority might be PC (difficult to establish)Chapter 12: Defenses

(1) Plaintiffs Conduct:

Majority: modified comparative negligence (both) Minority pure comparative negligence Smaller minority (4states) contributory negligence Mechanics of Apportionment jurors inform court to (1) what % of fault was

attributable to each party and (2) how much damage each claimant suffered.

o The Court then computes the damages.

(1) Contributory Negligence (4 States use) (AL, MD, VA, NC, & WashingtonD.C.)

o barsplaintiffs recovery based on the fact that the plaintiffs negligencecontributed to the happening of the accident.

This is the common law adoption; burden of proof on . A complete bar to recovery for the . Not a defense to an intentional tort or when the engaged in

intentional, wanton, or willful/reckless conduct.

Certain statutes abrogate the defense.o Now rejected in the overwhelming majority of states, contributory

negligence precludes from prevailing if he was at all a negligence cause

of the injury, regardless of the extent of s negligence.

Several exceptions are carved out, such as allowing to recover if had the last clear chance to prevent the injury.

(1) The Doctrine of Last Clear Chance who had the lastclear chance to avoid injury? Thought is that the had the

opportunity to avoid the accident after the opportunity as

no longer available to the , the is the one should bear

the loss. Whole loss is placed on one party or another.

Some courts restrict use to cases where washelpless and unable to avoid danger created by s

negligence

Others permit its use if was merely inattentive tothe danger


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(2) Remote Proximate Cause s negligence wasnt theproximate cause to the harm

(2) Comparative Negligence/Comparative Fault (46 States use someform)

o the law compares s fault with that of and reduces s damagesaccording to the measure of fault.

o Not a defense to an intentional tort.o Three Types:

Pure (13 States) s damages are reduced in proportion to the %negligence attributed to . ( responsible for 90% damages, can

recover 10)

Modified- (30 states) (a) not greater than: =50% form s responsibility is

not more than 50%, s recovery is reduced by the % of

fault attributable to as long as s fault is not greater

than the fault of the s.

if is greater than s, barred recovery. (b) not as great as:


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(2) s tort was an intentional tort (3) the injury was medical malpractice, OR (4) the contract waives application of a safety statute.

o Comparative negligence statutes do not affect Express Assumption of theRisk, but may affect Implied Assumption of the Risk.

(2) Implied does not apply anywhere, except where contributory negligence isstill allowed- almost all comparative negligence states thus almost all states

have rejected the doctrine of Implied Assumption of the Risk, instead, they either

say has no duty toward such a , or they subsume the question into the

general comparative negligence analysis. Still valid in contributory negligence

states (4).

o (1) must have actual knowledge of the risk,o (2) have an appreciation of its magnitude, ando (3) must voluntarily encounter the risk.

Encountering a risk while acting pursuant to a reasonable necessitymeans that the encounter was not voluntary and assumption of the

risk does not apply.

o It is all or nothing, if it applies, is barred.o Two Categories:

(1) Primary Assumption of the Risk where the owes no duty tothe or where the did not breach the limited duty owed to the

rather than that assumed the risks inherent in the activitiy.

was not negligent because he owed no duty or did notbreach the duty to

(2) Secondary Assumption of the Risk cases where the actsvoluntarily but unreasonably to encounter a known risk

an affirmative defense to a breach of duty owed to (1) Pure/strict Assumption of Risk

o reasonable but bars recovery (2) Qualified Assumption of Risk

o unreasonable but bars recoveryo Majority implied assumption of risk does not remain an affirmative

defense separate and apart from contributory negligence.

(3) Statutes of Limitation


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Procedural rules limiting the time has to file a lawsuit. The Statute of Limitations is subject to waiver ( it is a use it or lose it argument

for the ), and equitable tolling.

o I.E. In most states, the SOL clock begins only upon s constructiveknowledge of the injury and s apparent negligent causation of it.

o Some states require knowledge of s negligence; others require onlyconstructive knowledge of the injury.

o Other uses of tolling are where the victim is a minor child, and where has fraudulently concealed the injury or his own conduct.

Continuing Tort Doctrine allows suit for an entire continuous tort, starting theSOL count when the tort ends. One big violation, instead of multiple.

Discovery Doctrine o The cause of action accrues and the SOL commences to run when the

patient discovers or should have discovered the injury.

o Many ways to distinguish the discovery. adopted by a majority of states, limits the application to foreign

objects to all medical malpractice cases.

Tolling o When the statue of limitation clock begins runningo Minors tolling stops when the minor reaches her majority or when

incompetent becomes competent

Some jurisdictions allows appointment of guardian to begin thetolling, some it does not because it does not remove the disability.

o Some jurisdictions recognize equitable tolling where has fraudulentlyconcealed the injury from the .

Statutes of Reposeo Cannot be waived, no tolling. Time begins when acts, once time runs,

the is no longer liable.

o Give a firm outer bound for the timing of suits. They are not subject tothe discovery rule or to waiver. They are substantive, where SOL is

procedural. The clock for them starts when performs the action in

question, regardless of when the injury occurs or is discovered.

(4)Immunity gets complaint dismissed even if liable.

(1) Spousal Immunity:


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o Most states have at least partially abrogated spousal immunity.o Many eliminate immunity only for things like intentional torts, car

accidents, and obvious exceptions where the beneficial relationship that

immunity purports to protect is absent.

(2) Parent/Child Immunity:o Most states have abrogated it, at least partially.o Many keep the immunity (or limit the duty) for actions that are core

parental activities.

o Others eliminate immunity only for things like intentional torts, caraccidents, and obvious exceptions where the beneficial relationship that

immunity purports to protect is absent.

o Parental Privilege - Universal concept that children may sue their parentsfor personal injuries caused by intentionally wrongful conduct.

Majority hold parents are not liable for negligent supervision oftheir child whether stated in terms of a limited parental immunity,

parental privilege, or lack of an actionable parental duty to

supervise.

Minority allow children to sue parents for negligent supervisionunder a reasonable parent standard.

Even in those situations where immunity has been abrogated, spouses andparents may face a LIGHTER DUTY in negligence cases.

(3) Charitable Immunity:o majority of states have abolished this immunity making these institutions

liable for their own negligence and for the negligence of their agents and

employees when acting within the scope of their employment.

o minority have made incursions, but have not abolished it completely. (1) abolished for charitable hospitals, but not for religious institutio (2) limit to recipients of charity (3) abolishes immunity if is covered by liability insurance

(4) Employer Immunityo worker compensation statutes confer immunity from tort liability on the

employer and co-employees. Even if negligent, tort liability cannot be

liable.

(5) State and Local Government Immunityo in most states, governmental immunity has been voluntarily waived, at

least partially, by the government.


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o Many states waive immunity for proprietary actions.o Even when it is retained, governmental immunity is generally limited to

discretionary duties. Immunity as to ministerial duties is rare.

Discretionary duties are those where the government is acting toestablish policy. Ministerial acts are proper duty from the manual.

o Even without immunity, a government may not owe a duty to a particularcitizen. When it undertakes a duty, it must perform it non-negligently.

i.e. 911 call for assistance, must act on it. (6) Immunity by the United States

o The Federal government, like many states, has a general waiver ofimmunity, but with numerous exceptions.

Where waiver applies, it allows suits against the government fornegligence by public officials (suit is against government, not

agent)

(7) Public Officers Immunityo Legislators and judges get absolute immunity for torts committed in the

scope of their positions. Other officials typically only get qualified good

faith immunity, though some states give total immunity to these officials.

The immunity only extends to discretionary actions, not immune atall for their ministerial actions.

Chapter 7: Joint Tortfeasors

(1) Joint and Several Liabilityo each is liable for all the damages to the o Three context in which J&S is applied if the jurisdiction allows J&S:

(1) s acting in concert; (2) vicarious liability or (3) an indivisible harm. a concurrent tortfeasor

i.e. the negligent conduct of more than one actor combinedto cause an indivisible harm to . Man trips another man,

he falls to ground, biker runs over him, breaking his leg.

Both are responsible for the damages.

o J&S has been scaled back because of comparative negligence. The mostimportant issue in J&S liability is who bears the risk of an insolvent

the other who is 100% liable for the damages to .


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o Many states still have J&S, many others restrict it only for non-economicdamages; for s with less than a certain amount of fault. For certain

torts, or for certain s (such as vicariously liable ones).

o (2) Satisfaction and Release

o If has already collected full payment from one joint tortfeasor throughjudgment or settlement, there is full satisfaction and cannot proceed

against any other joint tortfeasors. The settler may proceed against them

though, to obtain contribution.

o Partial satisfaction does not preclude s suit or collection against allremaining joint tort feasors, but the amount obtained from the partial

satisfaction is subtracted from any judgment against them.

Any partial satisfaction is credited to all parties who are liable. Collateral Source Rule payments not made by, or on behalf of the

tortfeasor are not credited to the benefit of the tortfeasor.

o This reduction may be pro tanto or by % (pro rata). Some states use onereduction method, some the other.

Pro rata puts the risk of the initial settlement being good or bad onthe plaintiff.

Pro tanto puts it on the other defendants shoulders. I.E. if There is a $1M settlement. 1 is 40% liable, 2 is 60%. 1

settles for $300K.

Pro Tanto 2 pays $1M-300K= 700K will only ever recover the judgment amount.

Pro Rata 2 pays $1M -40%(amount 1 was liable)=600K Can be lower or higher, could recover more than

the judgment

o Test for full satisfaction: (1) whole judgment money (2) what s thought they were settling for.

o If has received money from a collateral source because of the injury,in most states this is not subtracted from a judgment as a partial

satisfaction would be.

Majority payments not made by or on behalf of party, notcredited to the benefit of the tortfeasors. They dont from total.

Minority payments made will subtract from total amount $ due.


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o In a majority of states, if settles with and releases one joint tortfeasor,this does not preclude suit against the other joint tortfeasors unless the

release so specifies that it is a full release. The court will interpret the

contract to determine the partialness of the satisfaction/release and

whether it was in good faith.

A joint tortfeasor is not released by a covenant not to sue.o

(3) Contribution and Indemnityo Applies ONLY to jurisdictions that still have Joint and Several liabilityo a who is J&S liabile can seek contribution for damages against other

joint tortfeasors. It is not required that the have sued these other joint

tortfeasors, but it is required that the could have sued them.

i.e. if immune by , cannot sue for contribution. There is no right of contribution among intentional tortfeasors. In most states, a good faith settlement renders the settler immune

from contribution from other joint tortfeasors.

o Majority doesnt choose who to get suit, can seek contribution fromall responsible parties.

o Minority chooses who to sue, can only seek contribution from them.o Majority if they settle in good faith, also immune from contribution

claims

o Minority good faith doesnt matter, can seek contribution still A joint tortfeasor who bears no fault can seek full reimbursement from the real

bad guy, this is called indemnity. Examples include a negligence-free employer

recovering from an employee for whose negligence he was held vicariously liable.

A similar arrangement may be made through contract, for parties who have some

fault from parties who have none but agreed to pay.

o Occurs: (1) give rise to a cause of action for indemnity insurance contract

i.e. a hold harmless clause in a contract (2) a right to indemnity

i.e. employer for employee

(4) Apportionment of Damages


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o A will not be held J&S liable with another who causes a subsequentinjury merely because it is difficult to apportion the causation of damages.

The first will only be potentially liable for the second injury to the extent

that his tort can be proven to have caused it (in fact and proximately)

o Where J&S liability may apply for an indivisible injury, the burden shifts to to establish apportionability and avoid J&S liability.

o To apportion damages, first reduce the damages into individual indivisibleinjuries. Then apportion liability separately for each one, so that no

defendant pays for discrete injuries he did not cause.

o Apply J&S liability, if available, to applicable defendants and applicableinjuries.

Chapter VIII: Duty of Care

If he did not use ordinary care and skill in his own conduct with regard to thosecircumstances, he would cause danger of injury to the person or property of the

other, a duty arises to use ordinary care and skill to avoid such danger.

o Three areas in which a duty of care is central to establish liability: (1) failure to protect plaintiff from a 3rdpartys act (2) negligent act causes non-physical harm (3) negligent act causes loss to the unborn

1. Privity of Contracto it is no longer always impossible for plaintiff C to recover for the

negligence of A when A breached only a contractual duty it owed to B. We

now say that you owe a duty to those who might forseeably be injured by

your negligent affirmative acts.

Nonfeasance (failure to perform an act that is required by law) not performingthe contract gives a right to sue only in contract, not tort.

o I.E. you do nothing, duty arose from the contract, no contract = no duty.Cannot sue in tort law.

o Exceptions to treat nonfeasance as misfeasance when: A public utility or common carrier (has a general duty) A person entering into a contract in bad faith Special relationship establishes a duty


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Misfeasance (the wrongful exercise of lawful authority) which includesperforming the contract improperly, but also lying about nonfeasance,

fraudulently entering a contract with no intention of performing, or partial

performance can be addressed in a tort action.

o Exception: In most situations, lawyers owe a duty only to their clients.

o when the defendant misperforms the contract the possibility of recovery isgreatly augmented.

i.e. fulfill promise, just mess up contract in a way that injuresplaintiffable to sue under that.

FailuretoAct:

No general duty to protect (Common Law), but there are exceptions:

Moral and Humanitarian considerations may require one to render assistance to another

who has been injured, even though the injury was not due to negligence on his part and

may have been caused by the negligence of the injured person.

Failure to render assistance in such a situation may constitute actionablenegligence if the injury is aggravated through lack of due care.

To determine if theres a duty:o Engage in analysis that weighs and balances factors of:

The nature of the underlying risk of harm (forseeability andseverity), the opportunity and ability to exercise care to prevent

the harm, the comparative interests of and relationships between

or among the parties, and the societal interest in the proposed

solution.

Consider scope of that duty (the risk of harm involved andpracticality of preventing it).

o In almost every state, there is no general duty to rescue. There are several significant exceptions, including:

(a) business invitors, (b) bosses (c) person creating the harm (even if not negligent) (d) person controlling the instrumentality of harm (e) person who has induced reliance on an expectation of

rescue and caused harm as a result.


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The duty to take affirmative action to control the conduct of a 3rd person mayarise when:

o (1) the defendant stands in a special relation to the plaintiff that requireshim to exercise affirmative care to protect him against the conduct of a 3 rd

person.

o (2) the defendant stands in a special relation to the 3 rd person that giveshim a power of control over that persons actions. He is required to use

reasonable care to exercise that control to prevent the 3 rd person from

injuring the plaintiff.

In all cases, the defendant is liable only for failure to exerciseordinary care. Either have no duty or ordinary care duty.

Defendant may have a duty to protect plaintiff from a third party, which cancome from: (1) a special relationship between defendant and plaintiff (common

carrier, customer on premises, inn keeper and guest, temporary legal custodian

and the charge, parent), or (2) a special relationship of control or responsibility

between defendant and the third party (i.e. psychiatrist and patient who kills

plaintiff, boss, and worker who hurts customers) Once the duty applies, though,

defendant only needs to be reasonable to avoid breach.

When a persons omission causes the plaintiffs personal injury, the courts havewidely recognized the duty. If economic, no duty.

Emotional Distress:

The Impact Rule where a definite and objective physical injury is produced asa result of emotional distress caused by defendants negligent conduct, the

plaintiff in a properly pleaded and proved action may recover damages for such

physical consequences to himself notwithstanding the absence of any physical

impact upon plaintiff at the time of the mental shock.

o Defendants standard of conduct is measured by reactions of a normalperson. Most jurisdictions do not apply this rule.

o Where a person has narrowly escaped imminent harm, the courts haveallowed recovery upon a demonstration of ensuing mental disturbance.

Minority must have physical harm to recover for emotional distress, no case ofpure emotional harm. Need contemporaneous physical impact to recover.


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Majority a causal relationship between fright and the injuries are definitephysical manifestations of the emotional impact: two exceptions

o (1) Minority rule death telegram rule (federal allowed if physical harmresults)

o (2) negligent interference with dead bodies hypersensitivity does not apply here, must be reasonable

o Must HAVE: (1) plaintiff was so upset there was a physical manifestationof emotional distress, and (2) reaction was normal and reasonable.

Once established the line to recover, hyper sensitivity may recoverif thats something considered reasonable.

To recover for negligent infliction of emotional distress (NIED), plaintiff no longerneed to have a contemporaneous physical impact. However, if there are not

contemporaneous physical injuries, the emotional reaction must manifest itself

with definite and objective physical effects before plaintiff can recover.

Additionally, it must be shown that a normal person would suffer an emotional

reaction passing the same threshold (though once that is shown, plaintiff can

recover for the entirety of his emotional reaction). Remember, though, that if

there is contemporaneous physical harm, though, plaintiff can recover for the

emotional harm if it is significant, but without these extra showings.

To recover for NIED from witnessing an injury to another, many states requirethat plaintiff herself have been in the zone of danger of physical injury (the Zone

of Danger Rule thing that injured the 3rd party, could have injured you because

of the proximity to the accident, if not in zone, then no recovery, Range varies).

A strong trend, however, is for states to require instead that plaintiff witness the

actual impact on the victim, be a close family member of the victim, and suffer

more distress than a typical bystander would. (must witness the accident

happening, be present and observe the impact, 3rd party must be a close relative,

not a friend of coworker, and the reaction must be worse than a normal person

would have.) (I.E. watch your kid get hit by a bus, or watch the neighbors kid).

Unborn Childreno Injuries Suffered in Utero:

Majority a viable fetus can typically recover for injuriessustained in utero if it is born alive. (Viability Rule) (exception of


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Viability rule is that a mother does not owe general duty to her

fetus). It can also recover (through a wrongful death action) if it is

not born alive, at least for post-viability injuries. Parents can

recover for the damages that they themselves suffer in either case.

Minority death of a person applies only to include individualswho were born alive, and thus unborn children cannot recover.

o Wrongful Birth Suits Majority if a child is born, and but for defendants negligence the

parents would have aborted it because of a defect, allow parents to

recover. Damages may include emotional injury, extra cost of

child-rearing caused by the defect, or in some places the entire

cost of child-rearing, but the plusses of parenting may be

subtracted from these damages.

o Wrongful Life suits: Minority:Only a small minority of states allow the child to sue for

wrongful life suits. Those that do generally limit damages to the

medical expenses presented by the defect. They do not allow

recovery for the existential torment of a traumatic life, however,

because the alternative of non-existence is considered to be even

worse (or at least incommensurable) as a matter of law.

some allow for wrongful pregnancy some allow for child-rearing costs.

Majority: do not allow for wrongful lifeo Wrongful pregnancy usually from informed consent violations or botched

sterilization. The damages typically include the costs (including pain and

suffering) from pregnancy and labor. Some states allow damages for child

rearing costs, but only when the parents reason for not wanting a child

was economic.

Chapter 9: Owners and Occupiers of Land

4 Kinds of Plaintiffs, generally with a reduced duty.

(1) Outside the Premises:o Majority Defendant landowner has no duty to protect a plaintiff off of the

premises from natural occurrences on/from defendants land.

Exception: for things involving human agency or trees, defendantowes a duty of ordinary care if he has knowledge or constructive


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knowledge that a tree may cause damage. Liable if he knows or

should have known that the tree is defective and fails to take

reasonable precautions.

Once a landowner alters a condition of his land, it becomes anartificial one for the purposes of tort law and the owner must

exercise reasonable care for the protection of those outside the

premises.

o Ordinances requiring removal of snow and ice are construed to be a dutyto the municipality, not any private individual.

Some courts extend this liability to individuals. (2) On the Premises

o (A) Trespassers generally no duty.o Exceptions: All require at least ordinary care.o Majority willful or wanton, anticipated/constructive knowledge owe duty

of RPP.

(1) Anticipated Trespassers - In most jurisdictions, defendant owesa duty of care to known or anticipated trespassers. Jurisdictions

vary as to what duty is owed they range from a duty not to

wantonly injure up to a duty of reasonable care, with many

jurisdictions in between.

A trespasser whose presence has been discovered. Defendant is liable for injury to a trespasser for conduct that is

willful or wanton (failure to use ordinary care).

Some states hold that there is no liability even to a discoveredtrespasser unless the defendants conduct is willful or wanton.

Majority of states have now discovered willful and wantonas a limitation and have held that when a trespasser is

detected, there is a duty to use ordinary care to avoid

injuring him by active operations.

Active operations are machinery in motion or awarning against it.

(2) Trespassers on a limited area of the land exercise reasonablecare. (3) Tolerated intruders RR company that fails to take steps

to prevent trespassing, it would be burdensome, expensive, and

perhaps futile, is not an indication that it consents to the entry. (4)


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Dangerous conditions obvious to the owner and to trapped

trespassers in peril (duty of rescue owed).

Minority the courts have developed a special rule in RR casesrequiring the defendant to be on the lookout for trespassers where

their presence is foreseeable and the activity carried on involves a

high degree of danger to them.

(3) Licensees:o A licensee is someone on defendants property for his own purpose,

though it is too easy to dispute whose purpose is being served, so it is

probably best just to be categorical here: Licensees include social guests,

solicitors, and basically anyone who is not an invitee.

Two categories: (1) the bare licensee salespeople, social visitors who

drop in without an express invitation.

Less of a duty owed to ordinary licensees. (2) ordinary licensee social guests

takes premises of his host as he finds them. Owner has a duty towarn of any hidden dangers, unknown to the guest of which the

owner has actual knowledge and to refrain from injuring his guest

willfully or wantonly. If it is an open and obvious issue, then they

cannot be held liable.

o 3Parts to duty owed to a licensee: (1) warn of hidden danger, unknown to guest that owner has

actual knowledge, (2) refrain from willful or wanton injury to

visitors, and (3) active operations to exercise ordinary care.

o Majority the defendant, in conducting active operations, is under a dutyof reasonable care toward licensees. Duty extends not only to licensees

who are discovered, but to those whose presence might reasonably be

anticipated.

o Minority no duty to a licensee except to refrain from inflicting willful orwanton injury.

o If defendant landowner knows about a dangerous, latent condition on hispremises that a visitor is likely to encounter, he is under a duty to warn

the licensee about it.


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A social guest does not become an invitee merely by providing an incidentalservice to defendant.

Defendants duty to a licensee is to not be willful or wanton, and to warn ofhidden dangers that are unknown to the licensee but actually known to

defendant. A higher duty reasonableness is owed to an invitee.

When defendant is conducting active operations on his property, he owes aduty of reasonable care not only to invitees but to licensees, and to known

trespassers.

Child licensee: there may be an obligation to inform a child licensee about a riskwhen there would be no duty with regard to an adult. If child is you, a warning

may be in sufficient protection.

(4)Invitee: (things open to the public)

business visitors: customers, employees, delivery, repair, etc. Note that despitethe common use of the word business here, homeowners may have invitees too

Goes on the land in furtherance of the owners business. Enters premises bypermission, but for their own purpose.

o Duty owed to invitee is greater than a licensee.o The owner of the premises has a duty to exercise reasonable care in

keeping the premises reasonably safe for use by the invitee.

o Duty may be extended to include the responsibility to protect the inviteefrom criminal acts by 3rd parties.

Invitee status has limits. If you stay past the basis of your invitee status, and/orgo past the physical area of your invitee status, you may become a licensee (or

maybe even a trespasser).

o Sometimes there is an unreasonable risk of harm to an invitee even with awarning. A warning by defendant of the presence of a hazard will not

necessarily make defendant free of liability. Ordinary care might require

more than that.

The Attractive Nuisance Doctrinea defendants limited duty to trespassersmay be heightened to children under this doctrine. The danger must be artificial

and cause physical harm. Defendant must have constructive knowledge that (1)

children are likely to be on the premises (attracted by the attractive nuisance,


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which is not necessarily the thing that is dangerous); and (2) the dangerous

condition must present a very unreasonable risk of serious bodily harm. The

child must be unaware of the hazard or the level of risk it presents because of his

or her youth. This only establishes duty, though: if the doctrine applies,

defendant need only exercise reasonable care.

Applies to artificial conditions highly dangerous to trespassingchildren

Cannot be a natural condition on the land.

Many states have abolished the categories of licessee versus invitee and justapply a duty of reasonable care to both.

o Minority abolish categories of trespasser or non-trespasser. Reasonableness still varies by context, so this does not set

trespassers and licensees on exactly the same footing as invitees

Persons Privileged to Enter Irrespective of Landowners Consent:o Public employees or officials are privileged to enter and could insist upon

doing so even if the landowner made an objection.

Emergency services licensees Meter readers invitees.

Some jurisdictions get rid of the distinction between licensee and invitee.

Lessor and Lessee:

Majority: a general rule of no duty from lessor to lessee, modified by a series ofexceptions. It is sufficient that the lessor has information that would lead a

reasonable person to conclude that the danger may exist, and that if he does he

must disclose the information to the tenant.

Number of courts have utilized an implied warranty of habituality to create a dutyon the part of the lessor to deliver the premises in a habitable condition.

o Exculpatory clauses put forth by lessor is void.o Landlord liable to tenant when:

Few courts have extended the warranty of habituality to includesecurity. Some courts have focused exclusively on similar

incidents, and others look to totality of circumstances to determine

forseeability.


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Undisclosed dangers conditions constructively known to lessor andunknown to the lessee

Conditions dangerous to persons outside the premises Premises leased for admission of the public Common areas of use for the lessee Where lessor contracts to repair Negligence by lessor in making repairs

In most jurisdictions, landlords owe no duty to guests of their tenants other thanin certain exceptional situations. Taken together, we will say for our class that

these exceptions translate into something like the landlord owing the guest the

duty when the tenant doesnt know about or lacks control over the danger. In

some states, this has been largely swept away and the landlord owes a general

duty of reasonable care.

o Minority: landlord must exercise ordinary care toward his tenant andothers on the premises with permission.

Damages:

Three kinds of monetary damages

(1) Nominal Damages a small sum of money (usually $1) awarded to provehe won the case.

(2) Compensatory Damages intended to compensate the victim for the injuryo Economic (Specific), non Economic (general)o collateral source rule is applied when the plaintiff receives compensation

from any source collateral to the tortfeasor.

o Apply discount rate, plaintiff wants low DR, high inflation; defendantwants high DR and low inflation ($1 worth more today than a $1 tmw)

(3) Punitive Damages intended to punish the defendant and to deter otherso do not reflect plaintiffs loss. ARE TAXABLE.o Majority a standard of clear and convincing evidence required.

For negligence establish willful and wanton conduct by C&Cevidence. Same for strict liability.

A necessary but not sufficient one.o Available for intentional torts, generally not awardedo Discretionary damages, dont have to be awarded by jury. o Must win inorder to get punitive damages.


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o Violates Due Process to have a punitive damages award disproportionateto compensatory damages. Good proportion is 4 CD to 1 PD.

Can only punish for what was done to a specific plaintiff.o Plaintiffs wealth could be relevant to P.Damages. If wealth is relevant

then it is admissible. I.E. Google v. Kalt, PD for Google, $1000 not a

deterrent but to Kalt it would be.

o Some courts allow insurers to pay PD, but MANY dont.

Tort law attempts to redress injury only through the rough method of lump-summoney damages.

Upon an arguably excessive damages award, on defendants motion, a court canorder a new trial or remittitur (giving plaintiff the option of accepting a lower,

reasonable award, or rejecting it and opting instead for a new trial). The

standard for excessiveness is whether a reasonable jury could have awarded this

amount. Courts might also put this as whether the award shocks the judicial

conscience, or if the award was a result of passion or prejudice by the jury.

Future damages typically require expert testimony on likely future needs,counterfactual career paths, discount rates, etc. Experts also may testify on the

reasonable value of services, for both past and future damages. Some courts fix

the discount rate, usually between 0-3%. Others calculate it ad hoc.

Personal injury damages generally are not taxable, but other compensatorydamages are, and punitive damages generally are.

If plaintiff unreasonably fails to mitigate damages, he cannot recover thatincrement.

Damages for physical harm to property are based on FMV assuming an openmarket, voluntary sale, leisurely seller, and willing buyer at time and place of

injury. A reasonable additional amount is allowed for sentimental value for some

items.

Doctrine of Avoidable Consequences a rule that does not allow recovery ofthose damages that plaintiff could have avoided by reasonable conduct on the

part of the plaintiff after a legal wrong has been committed by defendant.

Chapter 11: Wrongful Death And Survival

Every state now allows for wrongful death suits. Depending on the jurisdiction,either the personal representatives of the estate or the next of kin bring the suit.

Damages may be measured, respectively, from the decedents perspective


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(mainly lost earnings) or from survivors (mainly lost of support and services, and

in some cases, emotional damages).

Most states no longer terminate a cause of action upon the death of one of theparties. This applies both to cases in which the death is related to the issue of

the suit, and those where it is not. In the former cases, some states combine

survival and wrongful death to allow decedent to recover in a single case for

losses and suffering before death as well as post-mortem damages.

Survival statute reverses the common law rule by providing that a cause ofaction for personal injury survives the death of the plaintiff or the defendant or

both. Majority of states allow the action to survive. Few states allow IIED.

Wrongful death a new cause of action created by the death of an individual dueto the tortious conduct of another.

o Comparative Negligence plaintiff or decedents % of fault is subtractedfrom the defendants % of fault and that is the award.

In modified comparative negligence systems, recovery by thatbeneficiary is precluded if the threshold is reached.

Chapter 13: Vicarious Liability

Often called imputed negligence A is negligent, B is not, C is injured by As negligence by reason of some

relationship between A and B, B is responsible for As actions, although B has

played no part in it, has done nothing to aid or encourage it, and in fact may

have done all that he possibly could to prevent it.

Liable for torts committed when lending someone your car.

Respondeat Superiorlook to the person higher upo An employer may be liable for the tort of his employee, regardless of

whether or not the employer is free from tortious conduct himself. The

employees negligence must arise within the scope of the employment.

Dont forget that the employee can be sued for the tort as well. This is

where people lose points of exam!

o Vicarious liability for the torts of the employee when the employee wasacting within the scope of employment at the time of the tort:

(1) prove person was employee (2) acting w/n scope of employment (3) prove person committed tort


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Generally a short answer question on exam, usually aboutthe 3rd element.

As a separate (non-vicarious) matter, the employer may be liable under a regularnegligence theory (i.e. negligent hiring or supervision) in addition to or instead of

vicarious liability.

If the employees negligence occurred on a frolic during work hours, but toofar outside the scope of the enterprise the employer is not liable. But the

employer will be liable if it is a minor detour of a sort that the employer expects

and or tolerates.

o Frolicabandonment of employers business while in pursuit ofemployees own personal business

o Detourslight deviation from employers own business for employeesown reasons LIABLE.

There is only vicarious liability for an intentional tort by an employee when it wasmore directly within the scope of the employment than with negligence.

o I.E. battery by a bouncer at a bar.

Independent Contractorso Not subject to supervision, dominion, or control of the main corporation or

person, and therefore, the employer is notliable for the ICs torts.

Exceptions: (1) nondelegable duties,

liabile only within scope of the contracto for example, car brakeso cannot escape liability by hiring an ICo I.E. car safety, proper maintenance, building

design, crimes, etc.

(2) apparent authority, one who expressedly or impliedly represents that

another party is his servant or agent may be held

vicariously liabile for the latters negligent acts to the

extent of that representation

(3) inherently dangerous activities


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the exception for inherently dangerous activitiesdoes not apply when the independent contractors

negligence is deemed collateral to the inherent risk

of the activity.

o If company is negligent in selecting IC, then liable. Joint Enterprise to impose vicarious liability upon one person who is engaged in same activity

with another person commiting the tortious act.

o Not employee/employer relationship but a partnership I.E. car accident, mom dies, husband survives, had it been on

ranch business, would have been liable if the wife were acting

within the scope of the ranch business

MAJORITY: must be a commercial enterprise, and must have hadcontrol over activities of enterprise, not a silent investor

Bailmentso A bailment does not make a bailor vicariously liable for the acts of the

bailee in the use of the chattel

Exception : Most states make you vicariously liable for lendingsomeone your car (generally by statute)

Not a car rental, but informal lending of the caro Family Car Doctrine

If parents furnished child with the car, then they are liable too.

Imputed Contributory Negligenceo Contributory Negligence is minority rule.

Exceptions: Driver and passenger Husband and wife Parent and child

The symmetry test, if negligence can be imputed, contributorynegligence will be also.

For comparative negligence still impute it, take % fault ofvictim away from the person, up until the 50% rule.


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o Vicarious liability not only imputes negligence but also may imputecomparative negligence. That is, if X would be charged with Ys

negligence vicariously were X a defendant, he will be charged with Ys

negligence when he (X) is a plaintiffi too, and thus will have his recovery

reduced or eliminated. X stands in Ys shoes either way. This is generally

limited, however, to vicarious liability relationships involving control (i.e.

respondeat superior, non-delegable duties, and joint enterprise, but not

car owner/lender).

Chapter 14: Strict Liability

The defendant must pay damages although the defendant neither intentionallyacted nor failed to live up to the objective standard of reasonable care that

traditionally has been at the root of negligence law.

Remember that even if defendant is subject to strict liability for engaging in anactivity, plaintiff still must establish causation in fact, proximate cause, and

damages before defendant will be liable. Proximate cause is harder to establish

for strict liability than it is for negligence.

3 Categories: Animals, Abnormally Dangerous Activities, and Defective Products

Wild Animalso If the animal injured anyone and the animal must injure you in a wild

animal way

I.E. a badger mauling you YES, tripping over a goat NOo Generally, owners of wild animals are strictly liable for damage they do.

Domestic Animalso If the owner knows of should have known that a domestic animal has

vicious propensitites abnormal to its class, this is sufficient to classify that

animal with wild ones and impose strict liability.

o There is also strict liability for domesticated animals of known (orconstructively known) vicious tendencies. The damages must not be from

something collateral, like tripping over the animal. It must be from

something animal about the animal.

Abnormally Dangerous Activities


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o Conducting abnormally dangerous activities subjects the performer tostrict liability for damages it causes. The determination of abnormal

danger is generally based on Restatement 520, which looks to the risk

and magnitude of harm, location, commonness, value to the community,

and most importantly, whether reasonable care would not prevent serious

harm. IN other words, we perform a society-wide cost-benefit analysis for

the activity in question, and if the benefits are significant but the costs are

great and hard to avoid, we impose strict liability for the activity.

o The person who for his own purposes brings on his lands and collects andkeeps there any thing likely to do mischief if it escapes, must keep it in at

his peril, if not, then liable.

Natural v. non-natural Natural typical/usual way to use land, if natural to log on

land, and someone is injured, not strictly liable

If unusual/unnatural strict liabilityo Majority - The Rule of Rylands the defendant will be liable when he

damages another by a thing or activity unduly dangerous and

inappropriate to the place where it is maintained, in the light of the

character of that place and its surroundings.

To determine if activity is abnormally dangerous: (a) existence of a high degree of risk of some harm to the

person, land, or chattels of another

(b) likelihood that the harm that results from it will be great (c) inability to eliminate the risk by the exercise of

reasonable care

(d) extent to which the activity is not a matter of commonusage

(e) inappropriateness of the activity to the place where it iscarried on

(f) extent to which its value to the community is outweighedby its dangerous attributes

A-C = PL, D-F = B BPL strictly liable Firearms are not inherently dangerous, blasting is typically.

Limitations on Strict Liabilityo To be strictly liable, it must be a proximate cause of the injury.


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Strict for SL > N > Intentional Torto Comparative negligence and (in the rare places where it has not been

abolished) implied assumption of the risk are defenses to strict liability.

Contributory negligence is not.

Chapter 15: Products Liability

The liability of a manufacturer, seller, or other supplier of a chattel, to one withwhom he is not in privity of contract, who suffers physical harm caused by the

chattel. Liability may be upon warranty, or it may be based on strict liability.

Liability for dangerously defective products might be under a plain negligencetheory, a warranty theory, or strict liability. Not all states allow all methods in all

cases, but negligence is always available as a possibility.

The negligence standard for products liability is that the manufacturer owes aduty of care to foreseeable users of the product, regardless of privity of contract,

if the product would be likely to cause injury if negligently made. If that duty is

breached, causing damages, defendant is liable. This doesnt really vary from our

existing understanding of negligence

(1) Manufacturers making material representations about their products that turnout to be false are strictly liable for damages caused by reasonable reliance on

those representations. Privity is irrelevant. This is express warranty.

o Liabile the original act of delivering an article is wrong, when, becauseof the lack of those qualities which the manufacturer represented it as

having, the absence for which the consumer would ordinarily use it.

Exception: When the case is not an isolated instance, but generalin its character, and the existing rule does not square with justice.

o For express statements to qualify and safety made in advertising, onlabels, and in brochures or other literature accompanying the product, or

documents shpped to be transmitted to the ultimate purchaser, there was

an express warrantly to the purchaser.

Contract always wins.

(2) Under implied warranty, a seller or manufacturer impliedly warrants thatan item sold is reasonably fit for the general purpose for which it is manufactured

and sold. The manufacturer is strictly liable for damages caused when this

warranty is broken. Privity is irrelevant. A consumer can bargain away this


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implied warranty (such as by buying a product with a very limited express

warranty), but it must really be bargained away (that is, there must be some

choice). In most states that use plain strict liability (discussed next), however,

implied warranty is not really used anymore.

o Implied warranty arises if the buyer, expressly or by implication, makesknown to the seller the particular purpose for which the article is required

and it appears that he has relied on the sellers skill or judgment, an

implied warranty arises of reasonable fitness for that purpose.

(3) Strict Liability in Tort

A manufacturer is strictly liable in a tort when an article he places on the market,knowing that it is to be used without inspection for defects, proves to have a

defect that causes injury to a human.

o To establish liability just prove that he was injured while using the productin a way that it was intended to be used as a result of a defect in design

and manufacture of which plaintiff was not aware that made the product

unsafe for its intended use.

o Only a few jurisdictions do not recognize a cause of action for strictliability for personal inury caused by a product.

(2) Product Defects

Manufacturing defectso Under both analysis, strict liability is there if it was there from the

manufacturer.

o The Second Restatement ( 402A) simplified strict liability for defectiveproducts by eliminating all vestiges of contract theory. In these states, a

manufacturer is strictly liable for defective conditions in its products that

are unreasonably dangerous and that damage plaintiff, and that were not

materially altered after leaving manufacturers control (i.e., the defect

must have been present when the product left the manufacturers hands).

o The Third Restatement distinguishes between manufacturing, design,and warning defects. It maintains strict liability for manufacturing

defects (which are defects in which there is a material deviation from the

intended design of a product), but not for design or warning defects.

Negligence is available for all three types of defects, though.


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Design Defectso If SL applies, no implied warranties. If negligence, maybe.o Are those that stem from the manufacturing specifications; the inherent

design of the product gives it dangerous propensities. Some states follow

the Second Restatement and apply strict liability to design defects along

the lines of 402A.

402A: Special Liability of Seller of Product for Physical Harm toUser or Consumer

(1) One who sells any product in a defective conditionunreasonably dangerous to the user or consumer or to his

property is subject to liability for physical harm thereby

caused to the ultimate user or consumer, or to his property,

if

(a) the seller is engaged in the business of sellingsuch a product, and

(b) it is expected to and does reach the user orconsumer without substantial change in the condition

in which it is sold

(2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the

preparation and sale of his product, and

(b) the user or consumer has not bought the productfrom or entered into any contract relation with the

seller.

o Even under Second Restatement , strict liability for defective design is notavailable for widely used products with well-known risks, or other obvious

risks. Negligence liability is still available for these categories, though.

Most follow reflect the Third Restatement and apply a negligence standard.o Product Defectiveneso 1: Liability of Commercial Seller or Distributor for Harm Caused by

Defective Products

(a) one engaged in the business of selling or otherwise distributingproducts who sells or distributes a defective product is subject to

liability for harm to persons or property caused by the defect.

o 2: Categories of Product Defect


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A product is defective when, at the time of sale or distribution, itcontains a manufacturing defect, is defective in design, or is

defective because of inadequate instructions or warnings. A

product:

(a) contains a manufacturing defect when the productdeparts from its intended design even though all possible

care was exercised in the preparation and marketing of the

product;

(b) is defective in design when the foreseeable risks of harmposed by the product could have been reduced or avoided

by the adoption of a reasonable alternative design by the

seller or other distributor, or a predecessor in the

commercial chain of distribution, and the omission of the

alternative design renders the product not reasonable safe;

(c) is defective because of inadequate instructions orwarnings when the foreseeable risks of harm posed by the

product could have been reduced or avoided by the

provision of reasonable instructions or warnings by the

seller or other distributor, or a predecessor in the

commercial chain of distribution, and the omission of the

instructions or warnings renders the product not reasonably

safe.

Requires the plaintiff to prove that the product is defective in design. the ideathat something is wrong with it that makes it dangerous.

A plaintiff has the burden of proving:o (1) the product was defectiveo (2) the defect existed when the product left the hands of the defendant,

and

o (3) the defect caused the injury to a reasonably foreseeable user. Widely distributed products could only be subject to liability for a defective design

if a plaintiff proved that a reasonable alternative design was available.

o Cannot say it is defectively designed if the risks are well-known, and havehigh utility of usage.

Design defect can be proven by the risk/utility balancing test. Most states useR/U. Althouh some use R/U in a strict liability analaysis, as a practical matter,


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R/U just reduces the analysis to negligence. Some states use instead, or in

addition, the consumer expectation test: there is a defect only if a consumer

has a reasonable expectation as to use or performance or safety therein of the

product, which the product fails to meet.

Like res ipsa loquitor, defect may be established by evidence that the harm thatoccurred was of a kind that ordinarily occurs only because of a product defect for

whith the manufacturer was probably responsible, and by sufficiently excluding

other possible causes. Also, defect may be established in a way similar to

negligence per se, by showing that a product violates some relevant safety

statute or regulation.

Most states require that before a design can be ruled defective, that there be apractically and economically feasible alternative design that would have avoided

the risk in this case.

The risk-utility analysis:o Appropriate when the product may function satisfactorily under one set of

circumstances, yet because of its design present undue risk of injury to

the user in another situation

o Factors: The usefulness and desirability of the product The safety aspects of the product The availability of a substitute product The manufacturers ability to eliminate the unsafe character of the

product without impairing its usefulness or making it too expensive

to maintain its utility

The users ability to avoid danger by the exercise of care in the useof the product

The users anticipated awareness of the dangers inherent in theproduct and their avoidability, based on warnings or public

knowledge

The feasibility (on manufacturers part) of spreading the loss bysetting the price of the product or carrying insurance

Majority rule many use risk-utility analysis Minority rule some use the consumer expectations test

o The consumers expectations test recognizes that the failure of theproduct to perform safely may be viewed as a violation of the reasonable

expectations of the consumer


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i.e. use a lawnmower as a hedge trimmer Most jurisdictions require that the plaintiff prove an alternative feasible design in

order to prove design defect.

o Majority no requirement for a reasonable alternative designo Minority better way to make it and that way is non-negligent, but the

way they are currently making it is negligent, liable for defect.

A few courts have held that open and obvious or patent danger is an absolutedefense to a design defect case

o Most reject and consider as one factor of the risk-utility test

Warnings Defecto A good warning has:

1) stands out, ability to be noticed 2) notion of the 2 informed risks of harm (the what?) 3) usage to case harm (how?) inform to avoid/minimize risk

o There is liability for inadequate warnings or instruction if there is aforeseeable risk of harm that could have been reduced or avoided by an

adequate warning. Some states follow the Second Restatement (strict

liability and negligence available) but most reflect the Third (negligence

only). Adequacy of a warning is based on the warning getting peoples

attention, informing them of the risk, and informing them how to avoid it.

o Lack of constructive knowledge of the risk is generally a defense (even tostrict liability) for failure to warn. Conversely though, there is a

continuing duty to warn of subsequently discovered damages, subject only

to a negligence standard (even in strict liability jurisdictions).

o Risks that are obvious do not require an additional warning theobviousness of the danger is its own warning, by definition.

o For an individual plaintiff to establish causation, he or she must be able toshow that an adequate warning would have prevented the damages. This

means that a sophisticated user may not need as much warning. It also

means that someone who doesnt follow directions may not be able to

establish causation.

o Majority : Knowledge or knowability is a component of strict liability forfailure to warn. Most find that there is no duty to warn of obvious dangers

or of risks that are generally known.

Inadequate warning plaintiff will lose if you cant show causation


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Allows defendant to get to specifics on plaintiff. Directions count as warnings.

o For pharmaceuticals: most courts hold that warnings and instructionsshould be provided to the physician, who is a learned intermediary

between the drug company and the patient and the best person to

understand the patients needs and assess the risks and benefits of a

particular course of treatment

Learned intermediary rule warning is for doctor not you, as longas it is sufficient for the doctor, it is fine.

o In many jurisdictions, plaintiff is entitled to a presumption that the userwould have read and heeded an adequate warning.

Make warning for least capable foreseeable user.o Post Sale Duty Many courts impose a duty on the manufacturer to

provide post-sale warnings about risks that are discovered or that develop

after the sale.

Very few courts have extended a manufacturers post-saleobligations beyond a duty to take reasonable steps to provide

warnings.

Proof: Uses quasi-res ipsa loquitor for the Third Restatement

o Plaintiff must prove: (1) that the product that injured the plaintiff was, in fact,

manufactured by defendant.

(2) that the product was defective and plaintiff was injured as aresult.

(3) that the defect was present in the product at the time of thesale and was not introduced by a distributor or installer or repairer.

o Can use direct or circumstantial evidence.o Most jurisdictions provide that violation of a product safety statute or

regulation makes the product defective as a matter of law defect per se.

The fact that the product went wrong may give rise to a

Fall 2010 Kault Torts Outline

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