Torts OutlineI. TortsII. Intentional Torts

a. Batteryi. Requirement of Fault (Intentional or Negligent)

1. Injury is not enough, there must be fault.a. McAfoos

i. Ct held that 3 year old boy who drove a tricycle and hit P was not at fault b/c a 3 year old is too young to have intent and too young to reason. Thus, not intentional or negligent.

2. Rationalea. avoids a floodgate of lawsuitsb. don’t want to deter activity: loss of freedom or deter econ. activityc. requires personal responsibilityd. moral judgment: society realizes that accidents happen

ii. Elements of Battery

1. Intent to cause a harmful or offensive contact2. Harmful or Offensive Contact Results

1. Intent to cause a harmful or offensive contacta. Purpose ORb. Knowledge of Substantial Certainty

i. Have knowledge to a substantial certainty that a offensive or harmful contact would occur .

1. Has to be a high % of certainty—90%+2. As the % drops, no longer intentional, becomes negligent.3. is a subjective test, not a objective reasonable person test.

ii. However, knowledge can be proven thru circumstantial evidence.iii. Garratt v. Dailey

1. D’s intent to cause harm to P by moving the chair can be satisfied by either purpose or knowledge of substantial certainty.

iv. Either purpose or knowledge can be inferred from the facts/circumstances.

1. HYPO: Praying Brick Dropper—as time goes on fewer and fewer people about—dependent on time and place to fulfill substantial certainty.

c. Doctrine of Extended Consequencesi. D is responsible for the consequences of his tort.ii. For intentional torts, cts are generally not worried about the

foreseeability of the consequences; thus, the liability is potentially limitless.

iii. HYPO: Teacher throws empty coffee cup. Student drops out of school.

d. Transferred Intent (3 Types)i. Same tort against a different person—if you have the requisite

intent to A but hit B, you transfer the intent from A to B1. No foreseeability requirement.2. HYPO: thinks he is tackling Barnum but it turns out to be

Bailey.3. Davis (Gun and motorcycle)

ii. Different tort against the same person

iii. Different tort against a different person—i.e. transferring an intent to commit assault to battery.

1. Alteiri (Rock in backyard)

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a. D threw rock into a backyard intended to scare someone else, hits P.

b. Ct. held D satisfied intent elementiv. Transferred Intent Applicable to:

1. Assault2. Battery3. Trespass to Land4. False Imprisonment5. Trespass to Chattel

v. Transfer intent does not apply to 1. IIED and 2. Conversion.

vi. Mistake1. If there is a mistake, the burden rests w/the actor.

a. HYPO: A intended to hit B, but ended up hitting B’s twin brother.

e. Children and Intenti. Whether or not a young child is capable of having purpose or

knowledge depends on the individual characteristics (age, maturity, etc…) of the child… normally yes.

ii. Rule of 7s1. younger than 7 incapable of negligence as a matter of law2. 7-14 presumed incapable of negligence3. Minors over 14 presumed capable of negligence.4. Followed in a few states, most states deal with a child’s

capabilities on a case by case basis,f. Mental Deficiency Does Not Negate Intent

i. Generally, cts don’t care how or why D has the requisite intent, as long as D has it.

ii. Polmatier (Insane kill father-in-law)1. P killed his father-in-law while he was legally insane.2. Cts still held him liable b/c he had the intent, or purpose to

cause H/O contact.iii. HYPO:

1. A who is insane, thinks he is Napoleon and that B, the nurse who confines him is an agent of Wellington, preventing his arrival on the battlefield. Hits nurse and fractures her skull. Is he liable?

a. Has Purpose, therefore has Intent,b. Has Contact resulting in injury.c. Therefore is liable.

2. A has an epileptic seizure, hits B.a. No volitional act.b. No indication of purpose or knowledge.c. Has contact and Injury but no Intent.d. Therefore no liability.

iv. Policies1. When 2 innocent persons must suffer a loss, the loss

should be borne by the one who caused it.2. Relatives of the insane will keep an eye out for him (to get

his estate).3. D can’t pretend insanity and leave V with no redress for

injuries.g. “Dual Intent”—Majority Rule

i. RULE: To be liable for an intentional tort, D must have a duel intent of (Majority Rule):

1. Intent to cause contact AND2. Intent that contact be H/O, not just intent to cause

contact.

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ii. D had to appreciate that the contact he was causing would be H/O to V.

iii. White 1. D, suffering from Alzheimer, struck V in the jaw during a

violent episode.2. Ct. found D not liable b/c D did not appreciate the H/O of

her conduct. Also, nurse assumed responsibility.iv. HYPO: Pinching Italian on the bus in US. Custom, no intent for

H/O contact.v. HYPO: Airport Reunion--A hugs B and B suffers broken rib. Not

liable for battery b/c no intent to cause H/O contact, just contact.vi. Minority: Duel Intent not necessaryvii. Alternative: RP test to see if D had the intent to cause H/O

contact.1. HYPO: Amorous Football player—still liable but turns

subjective (Intent) test into objective test (Negligence).2. Harmful or Offensive Contact Results

a. Reasonable Person Testi. Snyder (Dr pulled down nurse’s head)

1. Ct. held Dr’s pulling down of nurse’s head close to the surgical opening and verbal abuse was a contact that was offensive to a reasonable sense of personal dignity.

b. Knowledge That Contact is Offensivei. Cohen (P can’t be seen unclothed)

1. P informed D-Dr that due to her religious she cannot be seen unclothed by a male. Ct. held that D, by failing to live up to that agreement, satisfies the “legally offensive” contact element.

c. Volitional Acti. Act must be voluntary, not reflexive.ii. HYPO: Large football player throws (100 lbs weakling) into pool

and hits someone in the pools and breaks his arm. has no intent and no voluntary act.

d. “Physical Contact”i. Traditionally, the tort of battery requires a physical contact.ii. Some cts, however, have included contact made by smoke.

1. Leichtman (Smoke)a. D’s intentional act of blowing smoke in ’s face

(an ardent anti-tobacco advocate) on a radio show does constitute battery.

b. DJ also sued for aiding and abetting.iii. HYPO: Sending someone poison

1. Doesn’t have to physically touch, just cause a H/O contact.

e. Extension of Bodyi. An object physically in contact w/D is considered an extension of

D’s body.ii. HYPO: Teacher yells and spits at student, student blocks spit

w/book held by student—still battery.iii. HYPO: Fischer—snatching plate for someone’s hand is also

battery.f. P need not to be aware of the H/O contact.

i. EXAMPLE: If D kisses P when she was sleeping.g. Causation

i. D’ conduct must directly or indirectly result in P’s injury. 1. EXAMPLE: D throws a rock at P, misses but hits a

window. The glass shatters and injures P. D is liable b/c he set the shattering of the glass in motion.

ii. D’s act must do more than simply put P in a place in which some totally independent and unexpected force may injure her.

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1. EXAMPLE: D is chasing P. A rock falls off a building and hits P. D is not liable b/c D’s act did not set the falling of the rock in motion.

iii. Damages for Intentional Torts1. Nominal Damages—If you meet the elements of the (intentional) tort you are

entitled to $1; then you can pursue punitive damages2. Compensatory Damages-- made whole

a. Medicalb. Pain and sufferingc. Lost wages

3. Punitive damagesiv. Purposes and Policies

1. Protect Bodily Autonomy

b. Assault

i. Elements of Assault

1. Intentional Infliction of Apprehension of an H/O Contact2. Requsite Apprehension of H/O by V

a. D must be aware of the assault at the time it was committed.b. The apprehension must be to D’s own person, not her home, property, or a

third person.ii. Parameter or “Picky Rules” for Assault

1. Imminence Requirementa. Apprehension of immediate harm

i. If the harm is not imminent, then it could be IIED.ii. Dickens (threatened D to leave the state)

1. D lured P into rural area, beat and threatened him for sleeping w/D’s daughter. D told P to go home, pack, and leave the state, or else he would be killed.

2. Ct. held that b/c the threat was not immediate, it was not assault.

b. DISTINGUISH: Threats of future harm is IIED.2. Words Alone and Overt Act

a. Mere words alone are not enoughb. However, any overt act together w/words is sufficient

i. EXAMPLE: finger pointingc. Words can also negate intent.

i. HYPO: Graying Prof.---Student to teacher: If you weren’t full of gray hair, I’d hit you.

3. Reasonable Apprehensiona. The apprehension must be reasonableb. An objective test

i. HYPO: Sleeping Beauty—No assault; no apprehension of imminent harm.

4. Improper Conditionsa. When D gives V an alternative to the threat, it is still an assaultb. EXAMPLE: “Your money or your life?”

5. Fear v. Apprehensiona. Fear is not necessary, just an apprehension of a H/O contact is needed.b. EXAMPLE: Devito attempts to punch the Rock.

6. Apparent Abilitya. All you need is the apparent ability to cause a H/O contact.b. EXAMPLE: Liable even if you were using a fake gun to carry out the H/O

threat.iii. Purpose and Policies (Interest Protected)

1. Mental tranquilityc. False Imprisonment

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i. Elements:1) Intent2) Actual Confinement3) Knowledge of Confinement4) Confinement against the person’s will—no consent

1. Intent2. Actual Confinement

a. No physical restraint or physical barrier necessary—only confinement.

i. Words Alone Can Be Sufficient1. Threats of imminent physical force to P or members of

her immediate family.a. Threats of future harm is not sufficient.

2. Words asserting legal authority may be sufficient even w/o any accompanying physical movement.

a. McCann v. Wal-Marti. P and kids were shopping. D suspected

P of stealing a week ago, and confined them.

ii. Ct held that even though P was not physically confined, the element is still satisfied b/c P referenced the police and stood over them, so that a reasonable person would believe that they would be detained physically if they attempted to leave.

b. EXCEPTION: The Sheriff says don’t leave the state/country. There is a boundary around you but you can still go about your normal activities, therefore, not confinement.

b. No Reasonable Means of Escapei. If P is confined, he has an obligation to use a reasonable means of

escape.1. HYPO: P confined in dorm room w/ window. If the room is

on the first floor, then reasonable. If the room is on the second floor, then not reasonable.

ii. But P is under no duty to take any risk to her body or property by attempting to escape.

iii. Unlawful Demand1. Compliance w/D’s unlawful demand is not deemed a

reasonable means of escape.c. Duress of Goods

i. EXAMPLE: When D takes P’s tangible goods, and, as a result, P must stay to get the good back, P is confined under duress.

d. Area of confinement must be restrictede. Excluding someone from some place is not FI

i. HYPO: Police says, “Don’t leave the country” is not FI.3. Knowledge of Confinement

a. EXCEPTION: Doctrine of Extended Consequences--If the confinement injures P, then knowledge of confinement is not required.

i. HYPO: P drunk, cops drive them out of town instead of arresting them. P has no recollection of confinement. P is struck by car near where he was dropped off.

ii. HYPO: Baby in bank vault. Baby has no knowledge, but if injured, the D is liable.

4. Confinement against the person’s will—no consenta. Knowledge of Confinement (3) and Confinement against the person’s

will (4) can be inferred from the evidence if P does not remember.

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i. HYPO: P drunk, cops drive them out of town instead of arresting them. P has no recollection of confinement. (3) and (4) can be satisfied by evidence that may show P was kicking and screaming, or resisting.

b. Withdrawal of consent to confinementi. If you agree to the confinement you can withdraw at anytime

unless the withdrawal causes detriment to the other party.ii. HYPO: D is flying his airplane and P agrees to ride along. Half

way into the flight, P wants out.1. P cannot sue b/c doing so would cause a detriment to P.2. If in car, however, P can sue b/c it would have been very

easy for D to let P out. ii. Defenses to FI

1. Recover Chattela. At C.L. a right to detain to recover chattel if it is foundb. If the chattel is not discovered then no defense to detain at C.L.c. May have aright to detain to recover chattel under statutory law.

iii. Interests Protected1. Freedom of movement2. Mental tranquility

d. Intentional Torts Against Property1) Trespass to Land2) Trespass to Chattel3) Conversion

i. Trespass to Land1. Elements

a. Intent to Enter Propertyi. Mere Intent to enter the property

1. Intent means purpose or knowledge to enter land, not purpose or knowledge to commit trespass

2. Strict Liability; C.L. property rights—the right to exclude others.

3. HYPO: D forgets address of party and walks to the wrong house. D trespassed b/c D deliberately entered on the property.

ii. Failure to vacate1. Once the consent to be on property runs out, D is a

trespasser.iii. Does not have to be by a person, an object will do.

1. Rodgers: (6 month lease and the cement base.) After lease expires removes fence but forgot to remove the cement base. Farmer hits the base with a tractor and is killed. This is trespass.

2. wife can sue under the doctrines ofa. Extended Liability (Extended Consequences).b. Transferred Intent—transferring the intent form

the trespass to the battery. See Alteiri.b. Entry on Land of Another

2. Interest Protecteda. Land owner and occupier’s exclusive possession—right to exclude others.

ii. Trespass to Chattel1. Elements

a. Intent to interfere w/personal propertyb. Interference w/ personal property

i. Actual harm to property ORii. Lost of use

2. Remedy6

a. Actual Damages—this does not require actual physical damage, loss of use can substitute.

3. Traditional View:a. Only tangible chattel

4. Modern View:a. Can be intangible

i. HYPO: Clogging email servers w/spamiii. Conversion

1. Elements:a. Intent to exercise Substantial Dominionb. Substantial Dominion over the chattel

2. Factors to differentiate Conversion form Trespass to Chattel--A trespass to chattels to a higher degree.

a. Extent and duration of controlb. ’s intent to assert a right to the propertyc. ’s good faithd. Harm donee. Expense or inconvenience caused

i. HYPO: negotiating to buy a car with the car salesman. They take his key and won’t return them. Makes wait around for a couple of hours. Court held had converted the car and the keys—dominion by controlling access.

1. Most courts would not agree—not long enough time to convert.

ii. HYPO: If more than 1 set of keys, then conversion of keys.iii. HYPO: Joyriding with another’s dog

1. Trespass to chattel for the car and the dog.iv. HYPO: Same but the car crashed and the dog injured.

1. May have Conversion to the car if substantially damaged.2. Dog—actual injury (more chance to recover)—Trespass to

Chattel3. Remedy

a. Full market value to propertyb. Once D has exercised substantial dominion, then D has in essence bought

it, unless P wants it back.c. HYPO: Your close aunt dies and is cremated. Thief steals the urn. You

chase him and he drops the urn and the wind blows the ashes away.i. Converted Urn ($10) and ashes (?).

ii. Parasitic Damages1. Can recover for emotional distress damages that attach to

another intentional tort.2. Applies only to intentional torts.

4. EXCEPTION: D cannot be liable for conversion if he is a bona fide purchaser. Note: Only applies to fraud, not theft

a. HYPO: B steals from A and sells to C. C buys in good faith—thought B had a right to sell.

i. A can sue B or C for conversionii. Good Faith of purchaser is irrelevant.

b. HYPO: B defrauded A and sells toCi. A can sue B for conversion but not C, assuming that C bought in

good faith--had no knowledge of the fraud.ii. Since B had title by fraud he had something to sell C, assuming

that C bought in good faith.

e. Intentional Infliction of Emotional Distress1) Intentional or Reckless2) Extreme or Outrageous Conduct3) Actions of the causes the Emotional Distress4) Resulting in Severe Emotional Distress

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i. Elements1. Intentional or Reckless

a. Purpose or Knowledge to a substantial certainty that ED would occurb. Reckless—a high risk of harm

2. Extreme or Outrageous Conducta. Relationship b/t Parties

i. Power Imbalanceii. EXAMPLE: Employer and Employee

b. Totality of the circumstancesi. Cts will consider the totality of circumstances, not each isolated

incident.c. Vulnerability

i. EXAMPLE: Racial Slursii. Taylor (Sheriff w/racial slurs)

1. D, a sheriff, called P-deputy racial slurs, and D received harassing phone calls as a result.

2. Ct held that usually mere insults are not enough; the power dynamics of the workplace contributes to the E/O of the conduct.

3. Exception: Common carriers (i.e. public utilities, innkeepers, public carriers) are held to a higher standard because the serve the public—court stated public officials should be held to a higher standard.

4. Close case because only one incident—not a general rule.iii. Hypersensitive People

1. If has knowledge of ’s vulnerability and proceeds, is liable.

2. If had no knowledge of ’s vulnerabilities, usually E &O conduct will take care of the situation.

d. Repetitioni. A certain conduct by itself may not qualify as E/O, but repetition of

the conduct may make it E & O.ii. GTE (Manager’s repeated abuse)

1. D-manager engaged in a patter of grossly abusive, threatening, and degrading conduct.

2. Ct held that it was the severity and regularity of D’s conduct that made it E/O.

iii. HYPO: JC Penny’s daily phone calls, and collection agency. e. Insults

i. Generally, there is no liability for mere insults.1. EXCEPTION: Common carriers

3. Actions of the is the cause of the Emotional Distress4. Severe Emotional Distress

a. Testimony from Dr is helpful, but if none, then jury will up themselves in P’s shoe and evaluate from D’s conduct.

b. Apologiesi. D can argue that an apology may mitigate P’s severe emotional

distress.

ii. IIED as a stand alone tort--DISTINGUISH: Pain and Suffering, Duress1. IIED is a stand-alone tort where the emotional harm is the only harm, while P/S

and Duress are “parasitic”, meaning that they are emotional harms that are only recoverable when attached to a physical harm.

a. Winkler (sexual advances)i. D (senior pastor)would put arms around P, and make sexual

advances.ii. Ct held that even though the statute of limitations for battery had

already passed, P can still sue for IIED b/c it is a stand-alone tort.

iii. Interest Protected8

a. Mental Tranquilityiv. 3rd Party IIED

1. Requirements1) Presence2) had knowledge of ’s presence

a. Presencei. P must be present at the time the conduct occurred.

1. If P suffered no bodily harm, then P must be an immediate family member.

2. If P also suffered bodily harm, then P can be anyone present at the scene.

ii. No transferred intent for IIED or conversion.iii. EXCEPTION: Child Molestation Cases

1. P is the parent, and he was there at the immediate aftermath rather than present at the scene.

a. But what is immediate aftermath?iv. EXAMPLE: D breaks urn w/ashes while P is not present. P cannot

cover for 3rd Party IIED, but can recover for Conversion + P/Sv. EXAMPLE: P finds dead body of wife at home. P can’t recover for

IIED b/c he wasn’t present at the killing, but P can recover for trespass + P/S.

vi. Homer (wife was seduced by Dr.)1. D took advantage of and seduced P’s wife while when she

was hospitalized, resulting P’s divorce. P sued D for 3rd Party IIED.

2. Ct held that since P was not present, he cannot recover.b. Knowledge of Presence

i. Generally, 3rd Party IIED is only limited to persons that were not only present at the time, but are known by D to be present, so that the mental effect can reasonably be anticipated by D.

ii. EXAMPLE: D beats P’s father. D sees P watch then continues the beating. D can recover for 3rd Party IIED. But if D did not see P, then no recovery b/c no knowledge of presence.

iii. CA RULE: Either P was present or D knew and directed conduct to cause P’s IIED.

2. Related Subjecta. When P is not present, he cannot recover for 3rd Party IIED, but he can

often times recover for an intentional tort + P/S (parasitic)b. EXCEPTIONS: Also courts have relaxed the rule for

i. Coming upon dead bodiesii. Child molestation cases.

3. Policiesa. Greatly limits the number of people who can recover.b. Presence element makes the conduct more E/O.c. Knowledge element goes to intent.d. Prevents a wife who learns of husband’s death from suing 10 years later.e. Ensures genuine claims.

III. Privileges (Defenses)a. Self-Defense

i. You can defend yourself if you are attackedii. Reasonable Force Paradigm

1. The force used must be reasonable under the circumstances2. KEY: Proportionality—as much as needed to repel.

iii. Deadly Force1. Can only be used when threatened w/deadly force or great bodily harm.2. Only when responding to the act, not later—no retaliation.

iv. Retreat Before Using Deadly Force9

1. Majority: You have to retreat, if it is safe to do so, before applying deadly force a. Exception: unless you are in your own home.

2. Minority: Never need to retreat3. If a safe retreat is not certain, then no duty to retreat.

v. Reasonable Mistake of Fact1. If it was a reasonable mistake of fact, then its O.K.

a. EXAMPLE: D gets into a fight in bar, and his opponent leaves. Someone says he is in the parking lot. When D is getting into his car to leave, he hears footsteps, so he turns around and punch. The person D hits is a police officer. P sues for battery. D can claim self-defense b/c it was a reasonable mistake of fact.

vi. Resisting unlawful arrest is a privilege of self-defense. vii. Threat of unreasonable force is allowed even though the use of the force is not.

b. Defense of Othersi. You can defend another as long as with Reasonable Force.

1. Reasonable under the circumstances2. Proportional3. No retaliation

ii. Mistake1. EXAMPLE: A defends B by hitting C; however, C was defending himself from B’s

aggression.a. Majority: reasonable mistake in defense of others O.K.b. Minority: you take the risk

c. Defense of Personal Propertyi. Recapture of Chattels

1. You have a right to use reasonable (but not deadly) force to recapture chattel. The person you are stopping has no right to resist. If they do resist, then you have the privilege to respond in self defense.

ii. Hot Pursuit1. must be in “hot pursuit” in order to invoke the privilege of “recapture of chattels”.2. If not in “hot pursuit”, then the only remedy is court action.

iii. Mistake1. At C.L. if you make a mistake you have no privilege, therefore at C. L. a mistake

results in a battery, assault or false imprisonment.iv. Merchant’s Privilege (Rst §120--adopted by statutes—general rule)

1. If a merchant has a. a reasonable belief that A has stolen something,

i. No probable cause until suspect tries to leave w/o paying or manifest control over the property with unequivocal intent to steal.

b. he has the right to detain A for a reasonable investigation.i. Reasonable Investigation is extremely hard to determine—a very

nebulous test.1. Thus, Lawyers usually suggest: 2. call security3. don’t stop them until they attempt to leave; the damages

are too great, so don’t take the risk. c. Even if the merchant was wrong, as long as it was a reasonable belief and

reasonable investigation, then the merchant is not liable.2. Pacific Tea Co. (Shoplifting)

a. D suspected P of shoplifting and forced him to manager’s office where he was search w/o discovery of stolen items. P sued for FI.

b. Ct. held D liable b/c according to the evidence, D did not have a reasonable belief that P stole something b/c he didn’t see P take the item, he didn’t check the shelf, and he stopped P before he even attempted to leave the store.

c. Court refused to adopt the Merchant Privilege Rule and applied common law—wouldn’t have mattered in this case because did not see the theft and method of detainment was not in a manner to conduct a reasonable investigation.

d. Defense of Real Property10

i. Reasonable Force1. A property owner can use reasonable force to defend real property.

a. Generally has to first ask trespasser to leave before escalation of force is permitted. He cannot at the outset inflict harm on a trespasser

b. However, a trespasser has no right to resist.c. Thus, if trespasser resists physically, Owner can defend with escalation of

force.d. Generally, Owner cannot use deadly force to defend property, but can use

deadly force to defend its occupants (people).2. Katko (Spring gun)

a. D has a farmhouse that was repeated broken into so D set up a spring gun. P breaks in and is shot. Nobody is home.

b. Ct held deadly force cannot be used to protect property.3. Brown (watermelon thefts)

a. P, along w/friends, went to D’s property to steal watermelons. P spilt from his friends. D fired gun away from where he thought everyone was, but hit P.

b. Ct. held that D was never threatened. Thus, he had no right to use deadly for just to protect property.

c. D threatened to use deadly force, but the result was deadly force was used.

i. Can you use the threat of deadly force to defend property? YES, if reasonable.

ii. Transfer of “Privileged Intent”1. Transfer Intent of a privileged intent (Defense of Property--

Assault) to complete a tort.a. Not argued but one could be made that if the

original acct is privileged (not wrong) there should be no transfer of intent because there was no wrongful intent to transfer.

b. EXAMPLE: D had the privilege to threaten deadly force to protect property, but what happens if that threat ends up being a battery?

ii. Mechanical Device1. Generally, D cannot use a mechanical device that inflicts deadly force to defend

property.a. Restatement §85: no privilege to use force…unless the intrusion threatens

death or serious bodily harm…A possessor of land cannot do indirectly and by a mechanical devise that which, were he present, he could not do immediately and in person…(i.e. can use mechanical device that inflicts deadly force if you suppose that if D was present at the scene, he could be used deadly force.)—problem is that no one is there to make an assessment.

e. Disciplinei. Parent, or anyone who has custody of a child, can use reasonable force and confinement

to discipline the child.ii. Generally, parents have a huge leeway in “reasonable force.”iii. Others more limited; i.e. teachers, school bus drivers

f. Consent—to understand the consequences --Ability to weigh the circumstances. 1) Entering into Consent2) Extent of Consent—Extended Consequences3) Scope of Consent4) Effectiveness of Consent5) Treatment of Medical Consent

i. Entering into the Consent1. Expressly

a. Oral or Written2. Implied Consent

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a. Through Actionsi. EXAMPLE: Immigrant lifting arm on Ellis Island to be inoculated.

b. From the Circumstancesi. Reasonable appearances—not the subjective state of mindii. Social Norms

1. HYPO: Austin & Berwyn—the amorous couple and the broken neck.

c. Consent--a fact for the jury to decide.3. Implied by Law

a. EXAMPLE: Emergencyii. Extent of Consent; Extended consequences

1. If there is consent to the contact, there is consent to anything that follows including unforeseeable consequences—the flipside of Extended Consequences.

2. An affirmative defense--consent negates the harmful intent.a. HYPO: Austin & Berwyn—the amorous couple and the broken neck.

iii. Scope of the Consent1. Conditional

a. EXAMPLE: Family blood to be used during operationb. Ashcraft (consent to operation conditional on family blood)

i. P consented to an operation on the condition that family blood would be used. It was not, P was infected with HIV and P recovered for battery—because he transfusions exceed the consent given.

2. Geographic

a. EXAMPLE: consents to left ear/right ear operated onb. Kennedy (Dr found cyst and operated w/o consent)

i. P consented to appendectomy, but D-doctor after the incision found cysts in the area and performed the additional operation. D is not liable b/c

1. the additional operation was in the area of the original incision--same geographic area,

2. D was incapable of giving consent at the time and no one with authority to consent was immediately available.

ii. A broad reading of consent1. Assume that patient would consent2. Assumes that patient would not want to have 2 operations

where one would have sufficed.3. Temporal

a. Consent can expire after a period of time (i.e. lease)b. EXAMPLE: Base of snow fence left on land after lease had ended.

iv. Effectiveness of Consent1. Incapacity

a. Person incapable of understanding or weighing risksi. EXAMPLE: Small child

b. Reavis (can’t resist sex)i. P can’t resist sex, but D didn’t know, therefore it is treated as

consent-- D can act on the apparent consent without committing a tort.

ii. But if D knows about P’s incapacity, then P’s apparent consent is treated as no consent--D acting on P’s consent would a tort.

c. Consent of minorsi. It is generally assumed that minors may consent to a number of

touchings appropriate to their age.d. Unconscious—no consent.e. Intoxication???

2. Statutes--Criminalitya. Majority of courts hold the consent to illegal acts is ineffective. Thus, if A

and B were prize fighting, they can sue each other for battery.

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b. Other cts hold that no one can find a cause of action on an illegal act—not an issue of consent. Thus, cts would sometimes bar V who participated in crime.

i. EXAMPLE: V participated in an illegal abortion. V cannot recover.c. EXAMPLE: Child labor statute or statute prohibiting prizefighting w/o

license3. Fraud, Misrepresentation, or Coercion

a. EXAMPLE: Criminal points gun and says “Give me your money,” which V does. Coercion, thus no consent.

b. EXAMPLE: D’s failure to disclose she has herpes.c. Doe v. Johnson

i. D-Magic withheld material fact (HIV) from P, thus she was unable to evaluate and accept the risks—therefore P’s consent to sex was ineffective.

ii. Material Facts: Must be disclosed even if not asked.4. Medical Consent

a. EXAMPLE: Medical consent—consent to the operation but not informed as to the nature or material risks of the operation.

i. Today usually treated as negligence.5. Revoked

g. Necessity—Privileges not based on P’s conducti. Public Necessity

1. Traditional and Majority Rulea. One is privileged to enter another’s land if it is, or of the actor reasonably

believes it to be, necessary to avert an imminent public disaster.--A person is not liable for destroying another’s property if it is necessary to prevent an imminent public disaster.

i. A complete defenseii. No compensation.

b. Surocco (destroyed house to stop fire)i. D (city) destroyed P’s house to stop the spreading of a fire.ii. P sued not for the house but that he could have retrieved more

items out of the house.iii. Ct held D is not liable due to the law of public necessity—held that

the goods in the house where subject to the same necessities as the house.

2. Modern Rulea. When there is a taking of private property for public necessity, the taking is

justified but compensable under the 5th Amendment.b. If damage done by the state is negligent, then it is not covered under the

5th Amendment.c. Wegner (SWAT).

i. 2 suspected felons escaped and entered P’s house. The SWAT team severely damaged the house in an attempt to capture them.

ii. Ct. held that taking was justified, but compensation must be given so not to burden the innocent party.

iii. Scope of the Rule1. Only applies to intentional torts2. and the P must be an innocent party—property NOT part

of the criminal enterprise.a. Otherwise, the owner created the problem and

there is no duty to compensate.3. Distinguish Surocco and Wenger

a. In Surocco not tearing the house down would have increased the fire creating a larger public hazard.

b. In Wegner, the damage to the house does not necessarily reduce the danger of a public hazard—may not have been necessary to apprehending the two criminals inside.

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ii. Private Necessity1. Traditional Rule

a. Necessity Factors--a fact for the juryi. Danger to person or propertyii. The only way to save yourself is to avail yourself of someone

else’s property.iii. The danger is created by an independent force—not by actor’s

actions.b. The defense of necessity trumps the defense of property.

i. Ploof (tied boat to dock)1. P was sailing w/family in a storm. P tied boat to D’s dock

(private necessity). D untied the boat (defense to real property), and the boat was destroyed and people injured. P sued for trespass to the boat and claimed D had a duty to let P dock there.

2. Ct. held that an entry upon land of another may be justified by necessity.

3. The trespass to land is trumped to private necessity—negates the defense to real property.

c. If it is a necessity, a private citizen may use P’s property, but if he damages it, he must pay for it.

i. Vincent (Ship stayed on dock to save cargo)1. D repeatedly tied his cargo ship to P’s dock during a storm

to prevent D’s ship from floating away. The ship damaged P’s dock.

2. Ct. held D must pay for the damages b/c D availed himself to P’s property in order to save his own, more valuable property.

a.2. Rationale

a. Rationale: Unjust enrichment.i. The party claiming the privilege of private necessity has to pay.ii. They benefited and putting the burden on the other party is unjust.iii. Applies if the party asserting the privilege benefited or not---they

imposed risks (by an affirmative act) on the other party, hoping for a benefit, and therefore should bear the risk of paying if there is damage to the other party.

Negligence: Prima Facie Case--REQUIRES PHYSICAL HARM!1) Legal Duty—did the have the obligation to act reasonably toward the 2) Breach of Duty—failure to exercise the amount of care a RPP would--the core of negligence3) Actual Cause—negligent act must be the cause of injury4) Proximate Cause—legal cause—even if there was duty, breach and actual cause, we may limit liability by finding no proximate cause5) Damage—physical injury

Apply Prima Facie Case1) First to , then 2) to

I. Legal Duty—the Standard of Carea. RPP Test : Did the act as a Reasonable and Prudent Person under the circumstances?

Determined by the jury.i. the standard of care remains the same under all circumstances .

1. Stewart: Court holds that the lower court did not err in refusing to give the jury instructions that “a high degree of care” was required. There is a single standard of care for negligence—the RPP.

2. Lyons: Respondent struck a car that suddenly pulled out in front of him, killing the driver. Lower court allowed the jury instruction on “emergency doctrine”. State Supreme court rejects, hold that the standard of care is the RPP and that no special instructions are necessary.

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a. “Emergency Doctrine” instructions are redundant—RPP is the standard, and

i. in an emergency people do not have time to thinkii. broadening the spectrum of the amount of care that would be

reasonable.b. they favor the by emphasizing the nature of the circumstances too much.

ii. The amount of care required varies with the circumstances.1. Changes proportionately w/the level of danger/risk2. risk=the probability of harm.

a. Stewart (repairing fuel tank)i. P helped D repair a fuel tank, and it exploded, injuring P. Ct

stated that ordinary care is the care a RPP would use under the circumstances.

3. Circumstancesa. Internal—characteristics of the abctorb. External—characteristics external to the actor

i. I.e. emergency.iii. The risk must be foreseeable for a person to act unreasonably

1. No foreseeable risk, then cannot act unreasonably.iv. Physical Characteristics

1. The RPP has D’s physical characteristicsa. Shepard: Blind trips over a raised concrete slab on the public sidewalk in

front of the ’s business. A person laboring under a physical disability such as defective vision is not required to exercise a higher degree of care to avoid injury than is required of a person under no disability. Ordinary care in the case of such a person is such care as an ordinarily prudent person with a like infirmity would have exercised under the same or similar circumstances.

b. Roberts: blind man operates a concession stand in the Post Office. Knocks down a person on his way to the bathroom—did not use his cane even though he had it in his stand. Court dismissed the complaint. Hold that the standard of care is what a ordinary reasonable man would take if he were blind. Under this standard it was not unreasonable for the to rely on his facial sense for a short trip to the bathroom in a familiar and crowded place.

2. Rationalea. Don’t want to hold people to a standard that they cannot meet

3. Memory, Knowledge, Experiencea. Public Policy dictates that we assume that the RPP has a minimum of

certain traits of mental capacityi. Intelligenceii. Perceptioniii. Attentioniv. Knowledgev. Memoryvi. Judgment

b. Thus, person w/inferior knowledge will be held to RPP c. Higher standard is taken into account for superior Memory, Knowledge,

and Experiencei. Hill (Tractor operator and D fell off)

1. D instructed his sister to hold on to a ladder on the outside of an earth moving machine during a demonstration. The machine hit a mound and she was thrown forward and run over and killed by the machine. D was held to a higher standard in operating a earth-moving machinery b/c of his experience with them--he had operated it for several seasons.

ii. HYPO: Country Road-- remembers sharp turn in the road due to great memory—if accident at the turn, give the RPP superior memory (or just knowledge of the turn) ???

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iii. HYPO: Paint Thinner—stores paint thinner in the garage. is of lower intelligence and lights a cigarette in the garage and it explodes. As a matter of public policy we will assume that the RPP has certain minimum characteristics, even if they exceed those of the .

iv. HYPO: D’s tire was worn and blew out injuring the P. P knows nothing about tires—claims that spouse takes care of it. Still liable because RPP has certain minimum knowledge including tires—common knowledge, especially if you drive a car. RPP must have common knowledge.

v. HYPO: Broken Carburetor-- car stalls and runs into him and is injured. Fuel line broke because it was worn-- claims that should have known about it because of the leaking fuel and the smell. Carburetor probably outside of common knowledge—RPP does not have to have specialized knowledge, only common knowledge.

1. The problem is deciding what is common knowledge.d. Rationale

i. Public needs to expect a minimal amt of M, K, E4. Intoxication

a. If the is voluntarily intoxicated then we apply the RPP of the unintoxicated/sober person.

i. D can’t impair himself, and hide behind the RPP testii. D can’t claim there is an emergency when D created the

emergency.b. If involuntarily intoxicated, then apply the RPP standard with the actor’s

characteristics.???5. Mental Incapacity

a. Not taken into account. Don’t take into account D’s mental impairment, and apply the RPP test w/o impairment.

i. Creasy (mental diseases and popped P’s back)1. D had Alzheimer’s and other mental diseases and kicked

P-Nurse, popping her back. Ct held D to RPP standard w/o regard to his incapacity. The court further held that a person employed to care for a patient known to be combative due to Alzheimer’s disease has no cause of action for injuries sustained in doing so.

b. Rationalei. Allocates losses b/t 2 innocent parties to the 1 that caused itii. Provides incentive for his heirs to retrain himiii. Refrain people from faking mental disabilitiesiv. Avoids problems of assessing D’s disabilityv. Forces D to live in the real word.

6. Age (Children)a. RPP test takes on the precise characteristics of the child: “The Duty of the

child to exercise the same care that a reasonably careful child of the same age, intelligence, maturity and experience would exercise under the same or similar circumstances.”

i. Take into account child’s age, intelligence, maturity, training, and experience.

ii. RPP for children does not have a minimum level of mental capacity, experience, etc.

1. ascertain what they actually are. 2. Since children mature at differently it would unfair to hold

a child to a standard that is not achievable.iii. Thus, if the child is almost 18, he should be held to RPPiv. Each state has a bottom line (usually 3 or 4) that a child is

incapable of negligence.b. Rationale

i. Kids mature at different rates16

c. EXCEPTIONi. When the child engages in adult or inherently dangerous

activities.1. Usually has to so with the operation of motorized vehicles.2. Robinson (Snowmobile)

a. D was driving a snowmobile. Ct held him to an adult standard (RPP) b/c it was a inherently dangerous activity.

ii. Rationale1. Protects the safety of the general public2. Discourages kids, or parent from allowing their kids, from

engaging in dangerous activities.

b. Negligence as a Matter of Lawi. Judge-Made Rules of Law

1. Judge decides as a matter of law what the RPP should do, so the jury does not need to decide.

a. To be able to stop within the range of your lights.i. Marshall v. Southern Railway (1950)

1. P hit a trestle support at night after avoiding a car coming the other way. Judge dismissed the suit because as a matter of law, P should have been able to stop within the range of his lights. Not being able to do so was negligence. Jury didn’t need to apply RPP test.

b. Stop, look and listen Rule—Contributory negligence per se not stop, look and listen at RR crossings.

i. Baltimore & Ohio Railroad(1927)

c. These rules are mostly not followed today.i. Chaffin v. Brame(1951)—rejecting range of light rule.

1. P blinded by the lights of an oncoming car, ran into an unlighted truck blocking the right lane. The court rejected the “range of lights” rule and reasserted the RPP standard—what would a reasonable person have done in the circumstances—thereby allowing the decision for the P to stand (no contributory negligence).

ii. Pokara v. Wabash Railroad(1934)—rejecting the Stop, look and listen Rule.

2. PROBLEMSa. The ct does not have the background experience necessary to frame a

general rule. They are reactionary and are not able the gather information before it sets the rule. Only the legislature can do that.

ii. Negligent Per Se (Legislative-Made Laws, Violation of Statute)1. Legislature declares by statute how a RPP would act.2. Effect of Violation of Statute

a. Majority: violation of statute equals negligence (unless a legally acceptable excuse is presented). If there is a valid excuse, then the jury gets to decide.

i. Martin (Need lights on buggy)1. D driving at night crossed over the line and struck the P’s

buggy, killing him. P’s buggy was driving without lights, in violation of a statute, which required all vehicles driving at night have lights. The court held that P’s violation of the statute was per se negligent and upheld the reversal of the P’s award and the remand.

b. Minority: violation of statute just evidence of negligence, so the ct leaves it up to the jury to decide.

c. CA: jury is instructed that D is presumed to be negligent if he violated the statute.

i. Rationale17

1. Presumably, the legislature’s enactment of the statute is well informed since they are able to do extensive research.

3. EXCEPTIONS (cts refuse to use statutes to define negligence)a. Interpretation

i. The ct may interpret the statute differently or have exceptions in them based on common law.

1. Telda (Safer to walk on wrong side of road)a. P violated the statute by walking on the wrong

side of the road because the traffic was heavier on the other side. The ct concluded that it was safer to walk on the wrong side, and under common law, this crime was excused when following the statute would be more dangerous.

b. Excuses; 5 Categories—If the excuse fits w/in one of the 5 categories then the excuse can be submitted to the jury. If it is successful it may act as a complete excuse—no negligence.

i. reasonable due to incapacityii. neither knows or has reason to know iii. Inability to comply after reasonable diligence iv. emergency not due to his own conductv. greater risk of harm if statute complied with

1. Impson (forgetting @ sign not an excuse)a. D tried to pass a car within 100 feet of the

intersection; the car tried to turn left and was struck by the truck, injuring some passengers and killing one. The trial court held the violation of a statute forbidding passing within a 100 feet of an intersection made this cases negligence as a bmatter of law—negligence per se—entered a judgment for the P. Court of Appeals held that since the D submitted excuses (forgot, signs too small, etc…) for violating a statute, the matter of negligence should have gone to the jury. The State Supreme Ct reversed and reinstated the Trial Court decision holding that the excuses where not legally acceptable. Not within one of the 5 acceptable excuses categories.

c. Childreni. General Rule: determining negligence per se through the

violations of statues, generally do not apply to children.1. Rudes (child crossed w/o using crosswalk)

a. P (eight years old) was struck by a car when he crossed a control expressway w/o using the crosswalk, a violation of the statute. The Trial Court held that the violation of the statute was negligence per se and denied all recovery. The State Supreme Court reversed holding that a child of eight could not be declared contributory negligent per under the general rule—applied the rule of 7s. There were no facts to support the uses of the adult standard. Remanded for a new trial.

ii. Exception: if the specific child knew the statute. 1. On a case by case basis 2. Apply the children’s test (A.I.M.T.E.)-- age, intelligence,

maturity, training, and experience3. Thus negligence per se is only applied to children if the

child knows of the statute and is mature enough to understand the statute.18

d. Invalid or Defective Statutesi. Ct can still use it b/c the ct isn’t using the statute itself, but just

what it represents, which is the legislative determination on proper conduct.

4. Licensing Statutesa. General Rule: Violation of licensing statute is generally not negligence.

i. EXAMPLE: Driving w/o a valid driver’s license doesn’t mean you’re driving negligently.

b. The evidence can be introduced; however, the violation, in itself, is not negligence per se.

5. Invalid Statutes—invalid on a technicalitya. Violations of a technically invalid statue are still evidence of negligence per

se. 6. For a Statute to Apply as a Standard of Care

a. The Injured Party must be within the Class of Persons the statute was intended to protect AND

b. Class of Risk/Harm (Type of injury) suffered must be the class/type the statue was intended to prevent

i. Wright (dog biting)1. P was attacked and injured by a dog shortly after the dog

was released early from quarantine for biting another person. Ct held that P was w/in the class of people the statute protected. (class of persons protected was “members of the community”) It was not clear that the P’s injury was within the class of harm as it was not clear that he was bitten or if he was harmed in some other way. (Class of Risk was being bitten by a dog and quarantining the dog to see of it had rabies).

ii. Heaver (Parking on wrong side of road)1. D parked on the wrong side of the street to be able to talk

out of her car window to a friend who was with a child. When she departed she ran over the child who somehow managed to get under her car. P’s argued that D was per se negligent because she had parked her car on the wrong side of the street. Court rejected the argument holding that the child was not in the class of persons protected—the protected class included only pedestrians and drivers who act in reliance upon the orderly flow of traffic.

a. This holding is based on an assumption that the accident would have happened even if the D had obeyed the statute—not necessarily a valid assumption.

b. The use of such assumptions gives the court a large degree of discretion in determining who is in the Class of Persons.

c. Exam Analysisi. Is the statute violated?

ii. Does V fall w/in class of persons protected?iii. Does the injury fall w/in the type of injury protected?

II. Breach of Dutya. Risk must be foreseeable

i. Risk: probability of harm1. D not required to foresee a risk that is so low as to be nonexistent, especially

considering the alternatives.a. Indiana Consolidated Insurance (Lawn mower)

i. D started lawn mower inside the garage and burned it down. Appellant argued 3 allegations of negligence on the Respondent’s part.

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1. Filling the tank2. Starting the Toro lawn mower in the garage3. Failing to push to Toro out of the garage when it caught on

fire.The court held that the facts favored the Respondent and he acted in a reasonable mannerbecause:

1. He testified that he had filled the tank carefully; admitted that some split but it was small enough that it would have evaporated—More importantly this point cannot be brought up on appeal, it is a jury question and not reviewable on appeal.

2. Starting the mower inside the garage was reasonable—garages are designed and commonly used to start vehicles. It is not foreseeable that this mower would catch fire at this particular time—the risk was so low as to make ignoring it reasonable.

3. It is not reasonable to require a person to risk injury to save property. Therefore, the R was not required to push the burning Toro out of the garage.

ii. Exception: Obvious Risks—Some risks are so obvious that there mere existence is adequate warning and thus discharges the ’s duties.

a. Halek (Elevator pulley)i. A mesh cage around D’s elevator pulley protected P-mechanic from

getting caught. P attempted to retrieve a bolt w/o removing the cage. Ct held that some risks are so obvious that their mere existence discharges the landowner’s duty of care. Nonetheless, the trial judge finding of negligence was not “clearly erroneous”.

b. Did D act reasonably in light of the risk—risk/benefit anlysis--Nature of the Harm & Probability v. Cost of Alternatives

1. Cost of alternativesa. Rule: If the nature of the harm is severe, then the probability does not

have to be high to justify taking the precaution. If the probability get really high (i.e. a substantial certainty) then the tort becomes an intentional tort.

b. Factorsi. Low cost

ii. Available at the timeiii. Not inconvenient

c. Bernier (Light pole)P was injured when a car knocked over a light pole constructed by D—combined negligence. Ct ruled that D was negligent b/c

i. They knew from experience that it was foreseeable risk that a car would hit and knock over a pole.

ii. There were low cost, not inconvenient precautions available to the D—could have strengthen the pole at a low cost—versus the known risk of a car hitting the pole and it falling over and injuring someone.

Cost of alternative design v. benefit of saving livesd. HYPO: Gasoline drum-- sell gas drum to that explodes when the cap is

opened. There was a highly improbable but foreseeable problem with the cap which caused the explosion. Since the Degree of Harm is so severe, the low risk is within the range of being negligent—greater the harm, the greater the amount of care required.

e. HYPO: Hammer 1--, ’d employee is hammering a bolt; had not provided any safety goggles. The bolt breaks and hits in the eye resulting in loss of the eye. Rule: Nature of the Harm & Probability v. Cost of Alternative. Here, the harm is severe and the probability great versus the low cost, conveniently available precaution. Therefore ’s actions (not providing safety goggles) would be considered unreasonable and thus negligent.

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f. HYPO: Hammer 2—Same facts but the already blind in one eye. Nature of the harm is more severe (he will be blind) but the Risk is lower as he has only one (instead of two) eye vulnerable. The Cost of Alternative is still low and would probably result in a finding of negligence.

2. Social Utility of Conducta. Parsons (Garbage truck and horse)P was thrown from a horse when D’s garbage truck made a loud noise. Ct considered the high social value of D’s act (the vital public service of collecting garbage) favored in ruling that D was not negligent. “D not negligent merely because he uses a machine that produces noises necessary to its regular operation, even though fright of horses might be foreseeable.”

b. Giant Food (chasing shoplifter and knocking down cusomer)c. P was knock down by shoplifter who was being chased by the D’s

employee.d. P argued that the D was negligent in pursuing the shoplifter because it was

foreseeable that the shoplifter would run into the store’s customers. The court rejected the argument holding that the fact the injury was foreseeable does not by itself show negligence…Rather, the “degree of risk of harm to invitees must be weighed against the privilege” to protect one’s property. The court held the D was not negligent.

3. Carroll Towing Analysis--Hand Formulaa. If B < PL, then actions unreasonable—negligent

If B > PL, then actions reasonable—not negligenti. where B=burden ($ cost of precautions/avoiding the accident, including

the loss of social utility), P=probability (of harm), L= (extent of) injuryb. Expressed in dollar amts. If B < PL, then it is economically better for every to

take the precaution. c. In intentional torts, P will be very high and B will be very low (socially useless)d. Rationale For:

i. Efficiency1. Making the tort system reflect this2. gives people an $ incentive to avoid the damage

e. Rationales Against:i. can’t put a dollar amount on everythingii. life is worth more than the dollar valueiii. usually don’t know the probabilityiv. assumes that these factors are the only ones jurors look at

f. Workabilityi. Cost of injury v, Cost of Alternative (here we may lose some

social utility)ii. We don’t just apply the formula

1. no statistical data2. hard to calculate social utility

but it is still a valuable insight into the problem—factors that go into determining reasonableness.

iii. What the jury evaluates1. Negligence when the took action (foreseeability), not at

the time the harm occurred.2. i.e. What could have known at the time of decision , not

what he knew after the injury.iv. Formula will work for Intentional Torts but the Probability (P)

must be extremely high (i.e. a substantial certainty) and the Burden (B) must almost always be less.

g. Alternatives to Risk-Utility Balancing (Hand Formula)i. Intuitionii. Statutory prescriptioniii. Judgesiv. Custom—could argue that this is what we have now. Most people act

reasonably and custom is what most people so; Custom=Reasonable21

v. Moral Rule; do unto others and you would so unto yourself.h. Reasonableness Factors

i. Probability of Harm ANDii. Nature of Harm

VERSUSiii. Cost of Alternative, including the loss of social utility

i. Carroll Towing (Bargee)i. P was negligent for the lack of a bargee constantly on board; because

the burden of keeping a bargee on the barge was less than the probability and severity of injury in a crowded wartime harbor.

c. Assessing Responsibility when more than One Person is Negligent.i. Joint and Several Liability

1. Each liable for the full amount2. favors --making the whole is the goal-- bears the risk when one cannot pay

their share of damages.3. each could pay more than their % of fault

ii. Several Liability: Comparative Fault1. only liable for their own portion of fault.2. bears the risk when one or more s cannot pay their share.

iii. Contribution1. 1 paid all the judgment.2. 1 can demand from 2 for their share of damages.3. Note: at C.L. we had pro rata contributions (each pays an equal share).4. This system works well until we introduce ’s % of fault—settlement issues.

d. Proof of Negligence i. Standard of Proof is by the Preponderance of the Evidence.

1. Gift v. Palmer—( hits child but no witnesses)a. hit a child but did not notice it until he looked in the rearview mirror.

There were no witnesses. The diver was not sure of his speed, other obstructions or other circumstances. It was a bright clear day, the street was broad, and there were no cars parked on the side of the street that the child came from. Not enough evidence to prove by the preponderance of the evidence that the was negligent.

2. Upchurch v. Rotenberry—Car swerves off road and hits a tree)a. Rule: Where there is conflicting testimony, the jury can choose which

to believe and as long as there is sufficient evidence for that position, the appeals court will uphold the judgment.

b. swerved off the road and hit a tree killing her passenger.i. ’s case—

1. Some evidence of alcohol use by the prior to the accident.

2. evidence of hitting the tree at a high rate of speed—42 to 60 mph.

3. no skid marks4. The tree was a 160 ft away from the road.

ii. ’s case—1. Testimony at the time form stated that she swerved to

avoid an animal2. reasonable reaction to the circumstances—emergency

doctrine.iii. Court upholds the lower courts (jury) decision for the .

1. Can only deal with the facts in the record (on appeal).2. Therefore cannot infer facts (on appeal).

c. Forsyth v. Joseph—(truck hits car at high speed)i. Appellant’s truck hit the Respondent’s car, after skidding 129

feet. The speed at impact was 55 mph (which was the speed limit) and the R’s car was knocked 20 to 25 feet through a fence and spun 90degrees. The court held on this evidence that the Appellant was negligent partly because of excessive speed.

d. HYPO: A dark and stormy night and the utility box22

i. walking down an alley on a dark and stormy night. Runs into a utility box that is mounted 70” from the ground that measured 20”x10.5”.

1. Issue: Was it reasonable for the utility company to place the box in the alley at that height?

2. Court held here that the utility company was unreasonable and held them liable—a close call

3. Process—enough proven by the for the Jury to find for the .

ii. Expert Witnesses1. If the appropriate standard of care is within the realm of common knowledge and

everyday experience, then the plaintiff need not introduce Expert testimony to establish the right amount of care.

a. Shannon (thumb in slide)i. P-Child got his thumb caught on a slide rail and ripped it out of

her hand as she slid down the slide—the slide rails had open ends. No expert testimony necessary b/c the appropriate care was w/in the realm of common knowledge.

b. Hammons v. Poletis (towel bar and the crumbling wall)i. P took hold of the towel bar in the bath in the ’s motel. It pulled

out of the wall and he fell suffering a back injury. Parts of the wall came out with the towel bar revealing the wall to be moldy and putty like. Jury found for the . The appeals court upheld stating that the jury could reasonably infer, “based on common knowledge and ordinary human experience, that the moisture had to have accumulated behind the tiles for more than a short time for the wall to assume that appearance.” NO expert testimony was required. The jury could have further inferred from the facts that would have found and repaired the situation if he had been exercising reasonable care.

iii. Trial Procedures1. Standard of Proof—Preponderance of the Evidence=Greater Probability (more

than 50%)2. Burden of the Prima Facie Case

a. On the b. By a preponderance of the evidence

3. Decider of Facts—the Jurya. Jury’s function is to evaluate testimony and decide what to accept—i.e. the

Jury has to evaluate conduct.4. Equipoise—when the Jury is split 50% to 50%--therefore the wins.5. Procedural devices for raising issues of proof: i.e. when there is not enough

evidence to prove negligence.a. Nonsuits-- can move (sometimes called a demurrer)b. Summary Judgments and Directed verdicts.c. 5 types of evidence

i. Direct evidenceii. Circumstantial Evidence; infer fact B from fact A

1. The jury’s function is to accept or reject the inference by evaluating the evidence and conduct—the credibility of the evidence.

iv. Inferences and Credibility1. Slip and Fall Cases: The Banana Peel

a. What can be inferred from the facts.i. New banana peelii. Old, grungy and black banana peel—says it should have been

cleaned up by owner/.1. dropped and was aware –left it there—created the

dangerous situation.2. aware of the problem but took no action—actually

aware.23

3. didn’t know but should have known about the situation—constructive notice.

2. Rule: In slip and fall cases the must show that that the eithera. Created the dangerous situation orb. Had actual or c. constructive notice of a dangerous condition.

i. Should have knownii. The risks so high that the should have taken preventative

measures iii. HYPO: Bean at the Market-- slips on a bean at the market.

states that the area was mopped 2 minutes before the fall.1. Does this case go to the jury?

a. ’s mopping could have missed the bean2. How long was the bean on the floor?

a. No evidence. 3. Therefore the case doesn’t go to the jury.4. In these circumstances, I fit happens all the time, the is

on constructive notice.a. High risk/probability of accidentb. Therefore the should prevented it by placing a

mat/rug, etc.i. Loss of social utility—harder to shopii. Also additional risk of someone tripping

over the mat.

3. Actual and Constructive Knowledgea. Thoma v. Cracker Barrel (Puddle on the floor)

i. slipped and fell on a puddle in ’s restaurant. The water spot was in a high traffic area. Only employees carried drinks in this area. Witnesses in the area and employees in the area did not either see or hear anyone drop drinks in the area. claimed the puddle was large; 1’x2’. The potential implausibility of the ’s claim caused the Trial court granted summary judgment for the . Despite the conflicting testimony, the appellate court reversed holding that is was for a jury to determine which facts to believe.

ii. Principal evidence that was on constructive notice.1. Spill was in an areas where employees would frequently

go in and out—should have noticed.2. In an area where things could be spilt; place prone to

spills—should have looked more often.iii. Small details are Important

1. Manager testified he saw no spill.a. Should not be treated as dispositive.b. A question for the jury to decide.

2. Does the size of the spill allow you to infer that it should have been noticed—depends on where the spill was.

v. Custom1. Custom is evidence of negligence but is not conclusive. If custom goes to

the action/inaction alleged to be negligent, that evidence is admissible. a. Can be submitted by either or .b. Can be accepted or rejected by the jury.c. Duncan (Treated wood)

i. Custom to use treated wood for exterior steps but not required by code. was injured when the stair collapsed. The custom was admissible b/c it is establishes an accepted practice in the industry and could establish a standard by which ordinary care may be judged even when it exceed statutory/regulatory safety standards.

1. Custom assumes what people generally do is reasonable.24

d. COMPARE: The T.J. Hooper (Tugs)i. Ct’s held that the alleged custom of not having radio’s on tugs

was not a general custom at all. The court further held that “there are precautions so imperative that even their universal disregard will not excuse their omission”--reasonable prudence is not always common practice.

2. Only admissible when custom established for safety reasons—Rope case???

vi. Safety Manuals1. Safety Manuals are not the absolute measure of due care—not an automatic

breach—but can be used as evidence of negligence—but not conclusive,a. Generally stronger than custom because created for safety purposes.b. Traditionally: not admissible b/c of hearsay.c. Modern: admissible as evidence of negligence but not conclusive.

i. McComish (Paper-making machine)1. was killed in the construction of a large (two block long

and two storied high) paper machine when an “A” sling assembly collapsed and fell on him. The engineer testified that the “A” sling was not properly constructed, testimony partially based on safety manuals and codes. The State Supreme court overruled the appellate court (which held that the manuals were inadmissible as hearsay) holding that the standard of care was the RPP. The safety manuals are not a standard of care, merely evidence of the measure of care.

e. Res Ispa Loquitur—“The thing speaks for itself.”i. Elements--Rule

1. An accident that does not normally (more likely than not) occur in the absence of negligence.

a. Not applicable when actual negligence could be determinedi. Cts will not accept Res Ipsa when P had the ability to find out

the actual cause of the accident.1. Warren (Kids in car)

a. Kids got in D’s car and the car rolled over P. Res Ipsa could not be used b/c P could have had the car checked out after the accident to determine the actual cause of the accident.

b. Applicable even when Alternative Explanations are availablei. P is not barred from invoking Res Ipsa when P offers alternative

evidence to prove negligence. Res Ipsa is only barred when the alternative evidence gives a complete explanation, not just one of several possible explanation

1. Widmyer (Airplane crash)a. P and D offered expert testimony to explain the

cause of the airplane crash, but the court did not consider this to be a complete factual account. This did not preclude P from using Res Ipsa since it can also be assumed that in the present state of air technology, an airplane crash does not normally occur in the absence of negligence. Jury could reasonably conclude that the did not contribute to the negligence—passengers were not pilots and had an interest in their own safety.

2. The instrumentality of action was in the exclusive control of Da. Relaxing of the exclusive control element--Modern version of the control

rule: strict exclusive control is not necessary—only that it is more likely than not.

i. Giles (Elevator Operator)

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1. P-elevator operator was operating the elevator when a chain malfunctioned. D who had been hired to service the elevator was obviously not in exclusive control of the instrument but D’s control was more like than not and therefore sufficient to warrant an inference that D was more likely responsible for the incident than anyone else.

3. P did not contribute to the accidenta. At C.L. contributory negligence by the was a complete defense for the

--precluded any claim by the .ii. Evidentiary Effect of Res Ipsa

1. Res Ipsa is a form of circumstantial evidence and it gives rise to an inference.

a. The jury can draw that inference but is not required to.2. Presumption that was negligent.

a. Presumption of negligence is rebuttable by the .b. If there is no rebut on the presumption of negligence, then the jury must

find for the .c. If the rebuts by a preponderance of evidence ,then the jury can draw the

inference or not.3. Presumption’s effect on the Burden of Proof.

a. Rule: Res Ipsa will get a case to the jury despite a lack of direct evidence to support the ’s claim of ’s negligence.

4. Classic Case: Byrne (Barrel falls on the passerby)a. was walking along the road—doesn’t remember after that. Witnesses

state that a flour barrel fell and hit him on the head knocking him out. The ’s shop is adjacent to where the accident occurred and has an upper story warehouse where flour barrels are stored. No direct evidence but the barrel falling speak for itself—it was likely that there was negligence—res ipsa loquitur. The Exchequer court reversed the lower court’s dismissal for not providing any direct evidence and found for the .

5. Can you use Res Ipsa?a. HYPO: Bug in the Coke Bottle: she opens up Coke and finds a bug.

i. Yes—fulfills the 3 elements of the test.b. HYPO: Bottle of Coke explodes.

i. No—out of control of manufacturerii. Unless can prove that the bottle was handled properly after

leaving the manufacturer’s control (standard of proof less).c. HYPO:A and B collide and headlight shatters and hits .

i. No—2 s and no control over negligent act.d. HYPO: Farmer and wife go to livestock auction in a 2-story building. Wife

waits downstairs chatting. A 600 lbs steer falls through the ceiling and hits her.

i. Yes; does not normally occur in the absence of negligence.e. HYPO: Fertilizer Plant explodes.

i. Yesf. HYPO: Human Toe in chewing tobacco.

i. Yes g. HYPO: Woman goes in for oral surgery and wakes up with a broken finger.

i. Yes—386 NYS 218f. Professional Standard

i. RULE: Under the circumstances, D must adhere to the customary practice in the community, i.e. customary medical practice.

1. Custom is the professional standard, while custom in non-medical cases is only evidence of negligence.

2. Replaces the RPP3. Established by expert witness testimony, not by the jury.

a. Conflicting experts becomes a jury question4. Parameters of the standard:

a. Schools of Medical Thoughtb. Specialists

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ii. Proof Needed to Determine the Professional Standard.1. Need Expert Testimony to establish the Customary Practice of Medical Care.

a. Walski v. Tiesengai. D’s expert witness only testified to what he would have done

under the circumstances, not the customary practice in the field; thus, the expert testimony was not sufficient to establish that the doctor violated the professional standard of care—that he was negligent.

2. Exceptions:a. Common Knowledgeb. Hospitals are not held to medical standards

3. Treatises by themselves are not sufficient b/c it does not relate to the exact circumstances and does not prove causation.

a. Smith v. Knowlesi. P did not provide expert testimony. It only cross-examined D

and referred to treatises, which were minimally sufficient to establish the requisite standard of care. They did not demonstrate that the departed from this standard and there was no testimony to that effect. Also, no expert testimony to the causation elements of the ’s claims.

iii. Locality Rule1. Strict Locality Rule

a. Customary standard of medical care in the Communityi. Problem of proof.

1. In a rural community few number of expert witnesses.2. They may all know each other and may not be willing to

testify against each other—conspiracy issues.2. Modified Locality Rule

a. Customary standard of medical care in a Similar/comparable Community.i. Avoids the issues of finding expert witnesses in rural areas.ii. Vergara v. Doan

1. Malpractice during delivery. No such thing as customary medical practice in this area. Ct applies the Modified Locality Rule. Court upholds lower court ruling for the . The jury disagreed with the ’s expert testimony concerning the customary medical practice.

a. Court cites factors—vague and unclear standardi. Locality—only one of the factorsii. Availability of facilitiesiii. Doctor specialist or generalistiv. Advances in the profession

3. New Modern Rulea. Degree of care, skill, and proficiency exercised by reasonably careful,

skillful, and prudent practitioners in the same class to which he belongs, acting under the same or similar circumstances.

b. Rationale: i. The differences in skill and equipment b/t urban cities and rural

areas are no longer so large.iv. Specialists

a. Locality rule does not apply.b. Nationwide standard--Community of specialists

i. Do not need a specialist in the field to testify, just someone who has knowledge of the customary practice in the circumstances and can testify to the standard.

v. Good Samaritan Statutes1. Usually a very broad statute that varies by state and it covers any licensed

individuals who are acting in good faith.a. Hirpa (Dr. helped P in hospital)

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i. D-doctor went to the aid of P whom he had no duty to treat. Ct held that the Good Samaritan statute applies even though the treatment took place inside a hospital as long as D had no pre-existing duty to act and it was during an emergency. If there was a pre-existing duty then there is a duty under doctor-patient relationship, contractual duty, hospital rules and other factors.

vi. Res Ipsa Loquitur in Medical Cases1. Elements

a. Some event that does not ordinary occur unless there is negligenceb. The instrument was in the exclusive control of Dc. P did not contribute to the accidentd. Not applicable in the majority of medical cases.

2. Difficulty of Proofa. Need expertise--expert witness

i. Establish standard of care and its violation.1. The specific customary practice in the instance.2. Testimony that the violated the standard.

ii. Establish Foundation for Res Ipsa.1. to establish that the injury does not occur does occur in

the absence of negligence.a. Kelly (Enema)-- suffered a anal hematoma after

an enema was applied. argued that such an injury was within the common knowledge of a layman that it does not occur in the absence of negligence. Court rejected the argument, holding that in a patient where the injury can be attributed to a pre-existing condition (here a history of hemorrhoids) expert testimony is need to establish the elements for Res Ipsa.

iii. Establish Foundation for common knowledge exception.1. Salathiel v. State-- has a tube inserted into his nose for a

bile study program—it ended up making a hole in his cibriform, discharging cerebrospinal fluid--’s olfactory nerve had to be severed during surgery to correct the situation. Expert testimony was required to allow the ordinary laymen to reach a conclusion on his common knowledge.

a. Here, that the injury was remote from the site of the tube insertion and

b. that the injury is not normally a risk of such a procedure and

c. that the procedure can inflict such an injury.d. Like operating on the wrong leg.

b. Exception: Common Knowledge, ie. Operates on the wrong foot.

3. Extending RIL --Multiple sa. RULE: Where a receives unusual injuries while unconscious and in

the course of medical treatment, all the defendants who had any control over his body or the instrumentalities which might have caused the injuries may be properly called upon to meet the inference of negligence by giving an explanation of their conduct.—can use Res Ipsa. If P was under the control of multiple Ds, then all D’s are presumed to be negligent unless proven otherwise even though P cannot prove by a preponderance that any one had exclusive control of the instrumentality.

i. Ybarra (unconscious operation)1. D’s back injured during an appendectomy--operation. Ct

allowed P to use RIL to charge all members of the team even though she did not know which of the operating and 28

care team had exclusive control of the instrument. Trial court allowed Res Ipsa and held against all the s. (court of Appeals reversed) State Supreme reversed Appellate court and upheld the trial court’s decision.

b. Rationalesi. Forces D to talkii. Ds were responsible anyways since P was under their total

controlc. Strictly limited to this fact situation.

i. under the care of a group who were responsible.ii. unconscious therefore cannot prove what actually happened.

vii. Informed Consent1. Battery Theory

a. Schloendorff—a surgeon that performs an operation without his patient’s consent commits an assault, for which he is liable in damages

i. Patient must be of sound mind and an adult.b. Rationale—Bodily Integrity

2. Negligence Theorya. Rule: A physician must disclose all significant medical information that

the physician possesses or reasonable should possess that is material to an intelligent decision by the patient whether to undergo a proposed procedure.

i. Information a physician should reasonably possess is that information possessed by the average qualified physician or by the qualified physician practicing that specialty.

1. Information to be conveyeda. More than just the risk of the procedure.b. Also alternatives and corresponding risks.

i. This must included more dangerous alternatives.

c. Also risk if no procedurei. Truman v. Thomas-- D (’s Dr. for over

6 years) repeated advised P to get a pap smear but D refused. D did not inform the P of the purpose or the risks of not having one. D died of cervical cancer. Ct held if P refused the procedure D had duty to inform her of the material risks a reasonable person would want to know of refusing the procedure.

d. No duty to convey statistical life expectancy information.

i. Arato v. Avedon—Patient diagnosed with cancer—surgery ineffective. Cancer terminal in a short time—statistically. P asked Dr. for the truth but the Dr. referred P to some experimental treatments that had some record of success. P died without having his finances in order resulting in tax and business losses. Court held that the had no duty to disclose statistical life expectancy information because it did not concern risks of the procedures.

ii. Not really an informed consent case—general medical customary practices

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iii. Case is about financial arrangements not taken.

ii. What information a physician should reasonable possess is determined by expert witness testimony.

iii. Materiality is the significance that a reasonable person would attach to the discloses risk or risks in deciding whether to submit or not to surgery or treatment.

b. Harnish-- underwent an operation to remove a tumor in her neck and her hypoglossal nerve was severed resulting in total tongue loss. claimed that the physician and hospital failed to inform her of the risk of loss of tongue function and since the purpose of the operation was cosmetic, she would have not gone forward with it if she had bee properly informed of this risk. Trial court dismissed in favor of s but the State Supreme court reversed (as to the physician and the hospital) using the Negligence Theory of Informed Consent.

3. Proof of the Elements in Harnisha. Court uses a 2 part causation tests

i. That a would have not one forward with the operation if she had known the risks AND

ii. That a Reasonable Person would not have gone forward with the operation either.

1. People with idiosyncrasies do not recover under this test.2. Contrary to the policy of bodily autonomy.

4. Application of Informed Consent Standardsa. Professional Standard

i. Customary practice in the medical field + Objective causation test

ii. Wolley v. Henderson-- was injured in a back operation when the got the wrong interspace between the vertebrae and tore the encasing spinal tissue—a normal risk in the procedure. claimed he was not informed of the risk. Trial court instructed jury that was entitled to disclosure of risks that a reasonable medical practitioner would make. Jury found for . Appellate court upheld citing three factors.

1. Professional standard must be used in a medical malpractice case.

2. There might be Therapeutic reasons for withholding information from the patient

3. Producing this evidence puts very little burden on the as he must produce other medical testimony on other issues.

Also the court held that the must prove causation by the objective test—a reasonable person would have refused the procedure if fully informed.

b. Patient Standardi. Harnish Rule + Subjective and Objective causation test.

1. Material Information and Alternatives2. Subjective Test : P would have refused the procedure if

fully informed.3. Objective Test: A Reasonable Person would have refused

the procedure if fully informed.5. Exceptions to Informed Consent

a. Patient had procedure before--knows the risksi. EXAMPLE: 6th tummy tuck

b. Therapeutic privilegei. The Physician is not required to disclose if he knows that the

disclosure would by harmful to the patient.ii. Rarely used

1. What if the Dr. is wrong?iii. Only applies where the information would result in harming the

patient.30

c. Emergencies

Brown v. Dibbell (p. 365)—comparative fault and informed consent???Medical Injury Compensation Reform Act of 1975???

g. Exam analysisi. P’s case is almost always focusing on alternative conduct available to D.ii. See if alternative conducts exists, and its cost.iii. Weight the cost against the benefits.

h. Exam analysis on proof of negligencei. Find what the relevant facts areii. Draw inferences from the factsiii. Determine based on the facts if D acted reasonably

III. Actual Cause and Harma. Harm--General Rule: There must be injury and the negligent act must be the cause of the

injury.i. The question of cause is a question of fact for the jury.

ii. The need for proof of the Harm.1. Copeland-- with a history of neck and back injuries and physical problems is

involved in a car accident. He claims that the accident caused neck and back injuries. Jury held for the and the Appellate court held that there was sufficient evidence to support the jury’s decision.

a. No evidence of injury from the accident, b. Therefore no causation or damages.

b. “But For” Testi. Rule: But for the ’s negligent action, the would not have been injured.

1. Salinetro (X-Rays)a. The , unbeknownst to her was 4 weeks pregnant. She was involved in an

auto accident and had an X-ray. The did not ask her if she was pregnant and took the X-ray. Later, the suspected she was pregnant-this was confirmed by her doctor. The Dr. advised terminating the pregnancy since the fetus had been exposed to X-rays. She sued the Radiologist for negligence. The court held, even if assuming that the had breached the customary standard of medical care, there was no actual cause. But for the not asking if the was pregnant, the would have not been injured. Since the did not know she was pregnant, she would have answered no and the X-ray would have been taken anyway with the same result.

2. Jordan (Doesn’t look into the rearview mirror and backs into crouching husband)a. gets into here car and back out of the driveway without looking her

rearview mirror. Her husband was squatting behind the car at the rear bumper and backed onto her. No liability, because of no actual cause—but for the not looking in the mirror, the would have not been injured—if had looked in the mirror, she still would not have seen him and the same injury would have resulted.

ii. Problems with “But For” Test: 2 or more defendants.1. Indivisible Damages

a. Rule: We will treat an injury by multiple parties as indivisible where fault cannot be apportioned with reasonable certainty.

i. Both s held to have caused the whole and single injury.ii. Landers (contaminated lake)iii. The fishes in P’s lake all died when saltwater and oil flowed into

the lake from 2 different Ds. Ct ruled the damages were indivisible so both liable for the full amt.

b. HYPO: Flying tire—Auto accident and tire flies off and hits the . Only one indivisible injury.

c. HYPO: Dead dear—A hits deer; leaves it in the road. B hits the deer and hits . One indivisible injury.

d. HYPO: P gets hit by 2 different Ds consecutively—Employee knocks down . cannot move arms or legs. Police come and pick up the and throw him in the paddy wagon—he hits his head. Court held indivisible injury—but enough evidence here to apportion fault—only need credible evidence.

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2. Rationale.a. Either D would have caused the full damageb. But we could not prove under “but for” test and neither would be liablec. Therefore we hold the injury as indivisible and hold both/all s liable.d. At C.L. this would be considered joint and several liability.

c. Substantial Factor Testi. Rule: Was the D’s negligence a substantial factor in causing P’s injury?ii. Anderson (twin fires merge and burn down his home)

1. property burned when afire caused by ’s train merged with other fires of unknown origin. The court held the ’s fire was a substantial factor in causing the injury to the and held the liable even if the other party could not be ascertained.

2. Classic indivisible injuryiii. Majority Rule is But For and use the Substantial Factor test when needed.???iv. CA: Substantial Factor Test Only???

d. Proof: What was caused:i. Pre-existing state of at time of ’s negligent act.

1. Rule: Look at the at the time ’s negligence causes injury—state of the at that time is a baseline for injury.

a. Actual cause is based on a premise.b. The negligent act affects the baseline of damages and causation,

i. Must articulate the precise negligent act to determine breach and therefore negligence.

2. Dillon—(Boy on the Bridge get electrocuted)a. Boy climbs the girders on a bridge. He looses his balance and grabs a

hold of an uninsulated electrical wire as he falls. He is electrocuted and killed as he falls. The court held the fact the he was falling to his death or serious injury bore on the issues of liability and damages.

i. The issue is what did the ’s negligence cause? (having uninsulated wires)

1. Would the have died anyway? Would the have been injured anyway?

2. Here the would have either died or been gravely injured despite the ’s negligence.

3. If had lived but been maimed, the would have been liable for the difference between a maimed life and death.

4. If the would have died anyway, the would have been liable only for the few seconds more that the would have lived if he had not been electrocuted.

ii. Alternative Liability (Shifting the Burden)1. When 2 or more parties are negligent and cause a single injury but their probability

of causing the injury is the same, then the ct will hold all of them to be liable and shift the burden of causation (by a preponderance) to each D to prove that he was not the cause of the injury.

2. The higher the number of Ds, the less likely cts will use alternative liability.3. Summers (Hunting)

a. 2 Ds fired shots at a quail but one of the shots injured P’s eye. Ct found both Ds were negligent so held both liable, and each D had the burden to exonerate himself.

e. Market Sharei. Applies only to fungible products

ii. Each D will be held liable in proportion to its market share.iii. In the long run, each D will be liable for his proportion of damage—no worse off than if

we could figure out who each sold to.iv. NOT a concept of J & S liability—it is several liability

1. Too many s to try to apply Alternative Liability.2. Different than Ybarra in that all s are in breach

v. Eli Lilly1. Several manufacturers sold a drug (DES) that years later caused cancer in the

female children of the mothers who took it. cannot prove which manufacturer

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she bought the drug from. Causation problem b/c impossible to link each P with a D so ct applied the market share theory.

vi. Problems with Market Share Theory1. Orphan Shares: Companies no longer in existence?

a. Leave their share out ORb. Others pay more

2. Disproving Causation3. How to Define Market: Local/National? Usually National

f. Lost Chancei. This is a recovery for the loss of the chance of recovery, not wrongful death. The harm

(damages) is the loss of chance of recovery, not loss of life.1. “but for” D’s negligence, P would have had X% (<50%) of survival.

ii. Recognizing a new type of damage: Damage Formula1. % loss x full recovery = damages (partial recovery)

iii. Relaxed Causation—uses the Substantial Factor Test1. If P can establish by a preponderance that ’s negligence was a “substantial”

factor in causing ’s injury (lost chance) then the can recover.2. P’s burden is relaxed… <50% of survival is still sufficient for recovery

a. For a wrongful death suit, the would have to have proved that he had a more than 50% chance of survival.

iv. Wollen (cancer w/ 30% survival)1. P would have had a 30% chance of survival if not for D’s negligence. P is able to

recover for his loss chance.v. Fennell (40% CT Scan)

1. P went to emergency room for CT scan, but was not seen by D for a long time. P would have had a 40% of survival if not for D’s negligence. Court rejects the Lost Chance Theory and affirms the judgment for the . It is up to the legislature to adopt Lost Chance Theory, not for the courts.

IV. Proximate Causea. Rationale: A policy determination of where to end the legal limits of liability (as opposed to actual

cause which is a factual determination of where liability ends)b. Situations where Proximate Cause issues arise.

i. Bizarre situationsii. Unforeseeable or unlikely harmiii. 1--2 scenario

1. 1 is negligent and something happens, then2. 2 is negligent and only then is the injured.

c. Proximate Cause Approaches1. Risk Rule: is liable only to

a. For the types of injuries (class of risk) risked by his negligence and b. To the class of persons risked by his negligence.

i. Foreseeability: D is not liable unless a reasonable person should have foreseen injuries of the same general type that occurred and the general class of persons who would suffer them.

ii. Medcalf (Broken Buzzer)1. Ct held that P, who was attacked as she waited outside

the condo, was not w/in the type of injuries risked by D’s negligence.

iii. Palsgraf (Train)1. Man carrying a package was trying to board a moving

train. Two guards tried to help him up and the package became dislodged and exploded (the package carried fireworks). The shock of the explosion knock over some scales which struck the . sue the RR for negligence—the actions of the guards. Ct held that P was not w/in the class of persons risked by D’s negligence.

iv. Manner of Injury1. There is some leeway in the manner in which the injury

occurs. The manner of the injury does not generally have 33

to be foreseeable, but at some point, the manner will be so unforeseeable that it will be outside the scope of risk. NOT A MECHANICAL TEST

a. Hughes (Manhole)b. leave a open manhole lighted by a burning

kerosene lamp. Kids climb down manhole and out. They knock the lamp in and there is an explosion that knocks a kid in; he is burned climbing out by the hot ladder rails. Burns were a foreseeable risk but the manner in which they occurred in an unforeseeable manner. Court held that the unforeseen manner was not a defense as long as there was a foreseeable risk. They also stated the manner could be considered a variant of the foreseeable.

c. Doughty (Exploding covers)d. knocked the lid into a vat of molten liquid heated

to 800 degrees. There was no splash (the primary danger) but after two minutes the vat exploded due to a chemical reaction with the material of the lid. Ct held that P’s injuries, caused by the explosion by an unknown chemical reaction, was not a foreseeable risk created by D’s negligence and therefore no breach.

2. If there was no foreseeable risk, then there was no breach of duty; thus no need to analysis PC.

2. Direct Cause Rule: No Intervening Causes (No longer followed)a. If D is negligent, then D is liable for any injuries it was the direct cause of

(no intervening causes).b. Broader than the Risk Rule.

ii. Intervening Causes and the Scope of Risk1. D1 – D2 Scenarios (both at fault)

a. 2 intervenes between 1’s negligent act and the ’s injury.i. ANALYSIS--is it supervening?

1. What were the risks that made 1 negligent?2. If it was exposure to 2’s negligent or intentional acts,

then 1 is negligent and is still liable.b. Intervening Causes--Intentional Torts

i. (Watson): (RR:Spilt gasoline and the tossed match)1. If D2 acted intentionally, then D1 is not liable. But if D2

acted negligently then D1’s negligence would be held liable if the risk was foreseeable.

a. Cases turns of the Risk Principle: foreseeability.2. 1 (RR) derailed and spilled gasoline from a tanker. 2

threw a match in to the area and there was an explosion. If 2 acted for the purpose of causing the explosion than 1 is not liable.

ii. Hines v. Garrett: young lady let off at the wrong RR stop 1. The RR missed the young lady’s stop and let her off at the

wrong stop. She had to walk back to her stop though an area the RR knew to be dangerous; she was attacked by criminals. The court held that the ’s negligence was the very act of exposing the to the risk of attack and intervening causes did not lessen the ’s liability— was held liable.

iii. Concord Florida: (Cafeteria arson and the missing fire escapes)

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1. was held liable when an arson fire burned his cafeteria injuring the s. was negligent in designating fire escapes and in other violations of the fire code.

c. Suicide Cases—Suicide as an intervening cause (-)i. HYPO: is negligent and hits doctor. Dr. has seizures and later

kills himself. Family sues ii. Courts split on how to treat this issue

1. Intentional Tort2. Risk Rule3. Thin Skill Rule

iii. Usually turns on whether the was acting rationally or not1. If rationally then no liability2. If irrational then liability.

d. Direct Cause View: NOT FOLLOWEDi. D1 not liable b/c D1 not the direct cause.

e. Risk Rule type approach (Modern):i. What were the risks that made D1 negligent AND was what D2

did foreseeable? 1. Generally, the more deliberate D2’s act, the less

foreseeable it is.2. Precise manner of D2’s act need not be anticipated.

ii. Derdiarian (Worker not properly barricading site)1. D is the PC b/c the risk was that a driver may negligently

drive into the work site and injure the workers.iii. Mechanism Rule

1. What was the foreseeable risk when 1 acted negligently?

2. How did they come to fruition in 2?3. If too bizarre in the mechanism of injury then no

liability to 1.a. Some flexibilityb. In describing the risk, the more you describe how

the accident will happen with specificity the more you limit the proximate cause.

c. ’s lawyer would want to describe the risk of injury as broadly as possible.

4. Ventricelli (Rental car w/defective trunk)a. rents a car—the trunk is defective. Tries to

close/fix it while parked in a parking lot. Court hold this risk unforeseeable--D is not the PC. Here the accident occurred in a parking space. The accident would have still happened if the trunk was functional and was merely putting items in it.

2. Termination of Risk or the Responsibility has Shifteda. has reached a position of apparent safety (situation stabilized, became

normal) after 1’s negligence and before 2’s negligenceb. 2 has the opportunity to take charge of the situation.c. 1 negligence happened so long ago that responsibility has shifted to

another--2d. HYPO: Blasting Caps

i. D1 made blasting caps but D2-mother knew of it but let her kid to keep it and trade it with P-friend. D1 not liable b/c D2 broke the causal connection.

e. HYPO: Servicing defective producti. If D1 negligently manufactures a defective product and D2

services it for a long time and had the opportunity to fix it. The length of time and knowledge will shift the burden to D2.

3. Intervening Forces of Naturea. Usually involves 2 issues: 1) AC problems, and 2) Unforeseen P.

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i. HYPO: Helen Hunt gets hit by an improperly erected sign that was blown away by a tornado.

4. EXAM: Analyzing Intervening Causesa. STEP 1: Are 2’s negligent acts foreseeable within 1’s negligence? If

yesb. STEP 2: Was the Mechanism through which 2 caused the harm within

1’s foreseeability?c. ???NOTE HOLE

d. Special Proximate Cause Rules (clear and certain rules, no need to litigate foreseeability)i. Rescue Doctrine

1. Danger Invites Rescuea. A rescuer can recover from D whose negligence prompts the rescue

even if the rescuer is not w/in the class of persons risked by D’s negligence.

b. Wagner (RR rescuer)i. Ct held that even though P was not w/in the class of people

risked by D’s negligence, D was the PC of P’s injuries b/c D’s negligence created the peril that created the need for the rescue.

ii. Rescue is deemed foreseeable within the Class of Risk (type of injury).

1. The negligent act is deemed the proximate cause of the rescuer’s injury.

2. A per se Proximate Cause rule.iii. Limits on the Rescue Doctrine

1. Instinctive rescue not needed2. Must be unbroken continuity3. Rescuer’s contributory negligence allowed but usually

tempered by the Emergency Doctrine.ii. Thin Skull Rule (Unforeseeable extent of harm)

1. RULE: Take your victim as you find them.a. Initial injury must be foreseeable—i.e. negligence for initial injury.b. Can recover for Physical and Economic Aftermath.

i. P can usually only recover for physical harm. If physical harm, P can also recover all quantifiable injures (lost wages, etc…)

c. Hammerstein (Old man diabetes on the Hotel’s upper floor)—Elderly suffering form diabetes stayed at the ’s hotel. Hotel knew that he was a diabetic and that it was difficult for him to walk up stairs. placed on an upper floor because no rooms where available on the ground floor—there was an elevator. In the early morning the fire alarm went off and the had to walk down from the 4th floor—he twisted his ankle. He also developed a blister on his foot which progressed due to his diabetes into gangrenous infection. Court held that the underlying injury was foreseeable and therefore the was liable, even though the extent of the injury may not have been foreseeable.

d. EXAM: the more specific you characterize the risk, the more likely it is not w/in the foreseeable risks (and vice versa)… argue BOTH ways w/facts.

e. This is consistent w/the Risk Rule as long as you define the risk broadly.f. D, however, has the duty to take reasonable steps to mitigate damages.g. HYPO: Weightlifter Hypo

i. P was slightly physically injured but suffered psychological harm due to personality quirk; therefore, D liable for both--P’s physical & psychological harm.

h. HYPO: Great Chicago Fire i. Mrs. O’Leary (or her cow) starts a negligent fire, burns down all

of Chicago—Thin Skull Rule would hold her liable for all.i. Limitations

i. Palsgraf—Where the injury occurs a long distance from where the negligent act took place.

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ii. NY One House Rule (Fires)—only liable for one house next door in a fire.

iii. Rural Areas—much broader area of liability.

iii. Subsequent Medical Negligence1. D (who caused the original accident) is liable for subsequent injuries or death

occurring during the course of medical treatment related to those injuries, including transportation. D is liable all the way thru the doctor’s malpractice (or recklessness and intentional torts).

a. A per se ruleb. LIMITATION: if 2’s negligence is wholly unrelated to 1’s negligence.

2. Anaya (helicopter crash in Griffith Park)a. D liable for the P’s death during a helicopter crash when D was being air-

lifted to the hospital.iv. Accident Consequences

1. D is liable for everything that happens after the accident until the original risk has terminated—“thing have returned to normal.”

a. Marshall (left part of truck on road after accident)

V. Damagesa. What Injury did D cause?

i. Dillon Rule: D did not deprive P of a normal life expectancy but one too short to be given damages or one w/ very limited earning capacity.

VI. DEFENSES: Negligence--Plaintiff’s Conduct

a. Contributory Negligencei. Common Law: Any negligence on part of P will be a total bar to recovery.

i. Butterfield (Fast Rider in the dark hits a pole across the road—19th Century England)1. D not liable b/c P was also negligent in causing the accident.

ii. Courts will generally try to find a way to avoid or minimize contributory negligence1. Higher bar of negligent conduct, i.e. reckless or wanton2. Last Clear Chance Rule

a. If the was negligent at the last clear chance to avoid the injury to , then contributory negligence is not a bar.

b. Comparative Faulti. RULE: can be contributory negligent and still recover but ’s recovery will be

reduced by the negligence attributed to him1. Brittan (underground tank)

a. 16 year old installing an underground tank in an excavation that was neither sloped or shored up. Jury found the 49% negligent and the supervisor 51% negligent. Therefore, the $10,000 damage determination was reduced to a $5,100 award to the .

ii. Pure Systems1. P can recover even if P’s negligence exceeds D’s negligence up to 99.9%.

iii. Modified Systems1. P’s negligence must be equal to or less than D’s negligence

a. Look at P’s fault compared to all Ds or each D.2. Risk-Utility Formula (ala Carroll Towing): The higher the costs to avoid the

unreasonable conduct, the less negligent the is because the ’s actions are more reasonable.

a. Wassell (Motel Rape)i. It would have been much cheaper for P not to open the door

than for the owner to install a security system. (belies the fact the motel owner could have warned the , an out-of-towner, that it was a dangerous area and that she should be careful about opening her door late at night.)

c. The Effect of Comparative Fault on Common Law Principlesi. Doctrine of Last Clear Chance

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1. No longer used in most jurisdictions b/c it is just treated under comparative fault.

a. Davies (P getting stuck on RR)ii. Rescue Doctrine (P-Rescuer sues D-Cause of accident. P was negligent in his

rescue) Split in authority1. Common Law: Rescuer cannot be contributory negligent unless he was

reckless (encourages rescues)2. Comparative Fault: Rescuer will be attributed some fault; thus would not get

full recovery if he was negligent.iii. D’s Intentional or Reckless Conduct

1. Contributory negligence is no defense when D has committed an intentional or reckless tort.

iv. P’s Illegal Activities (covered under public policy, not contributory neg.)1. If crime is serious, then argument has a lot of force to absolutely bar recovery.2. If crime is not so serious, then probably no bar.

a. Barker (Kid making pipe bombs)v. Causation and Proximate Cause

1. P’s negligence must also be the AC and PC of his injuries.2. EXAM: Discuss whether P was negligent (Carrol Towing), then argue both

sides on whether P’s negligence was the cause of the injuries or accidents.vi. RIL

vii. Indemnity1. Shifting of liability—all or nothing. Unlike contribution, which is the sharing of

liability.a. 1 is liable for 2’s liabilityb. i.e. Employer/Employee: an employer, though liable for an employee’s

negligence, has a right of indemnity against the employee.2. Comparative fault does not affect indemnity.3. Subsequent medical negligence

a. 1 causes the accident and 2 performs malpractice--1 still liable for both.

b. This situation not affected by comparative fault—same under C.L. and Comparative Fault.

viii. Joint and Several Liability1. Common Law: each D will be liable for a pro rata share of the damages.2. Comparative Fault: each D will be liable for only his share of the fault.3. DISTINGUISH: American Motorcycle Association (Motorcycle accident)

a. Tee-age boy hurt in a motorcycle accident in a race run by the AMA—sues the AMA. AMA seek to join the parents on a claim that they were negligent and should share in the liability—under pro-rata contribution. Court rejects this argument and allows J&S liability under a comparative fault scheme.

b. Ct kept J&S liability even under comparative fault c. Rationale: the issue is who bears the risk of an insolvent . Here

the courts find the other s bear the risk—goal of making the whole.d. JDXs split on this issue.

4. Statutes limiting J&S liability:a. EXAMPLE: CA’s where J&S liability is allowed for economic damages

(Objectively verifiable, i.e. lost wages, medical expenses, etc.) but not for non-economic damages (i.e. pain and suffering).

ix. Settlement and Contribution1. Common Law

a. Effect of Release : if you release 1 D, you release all Ds.b. Covenant Not to Sue : To get around the release, P just grants a

covenant not to sue, instead of a release, so P is able to recover from the other Ds. Then, if P tries to sue D1, then it is a breach of K.

2. Modern Rulesa. You can release 1 D and sue the others.

i. Contributions (for indivisible injuries):1. Common Law: pro rata, equal amount by each D.38

2. Comparative Fault: Apportioned according to % of fault.

a. To precluded contribution, a settlement agreement must be a good faith settlement.

b. Where has a judgment against 1 and 2 and 1 and settle for less than the amount of 1’s liability, the settlement must be in good faith to bar 2 seeking contribution from 1.( because in a J&S JDX, could sue 2 for the portion 1 id not pay.)

x. Immunity v. Fault and Absent Defendants1. Price (boy on bus)

a. The was suffering whiplash from a previous accident was riding on the ’s bus. A 4 year old boy walking in the bus aisle holding his father’s hand suddenly pulled the bus’ emergency brake, causing serious injury to the . The Jury apportioned fault boy 80%, father 10% and bus driver 10%. Court held that a child under 6 is incapable of negligence (No fault) and apportioned his share pro-rata among the remaining s. Therefore, D2 and D3 are apportioned 100% of the liability and P fully recovers.

b. This is a case of no fault, not immunity. If the boy was immune, then P would not be able to fully recover (in a several JDX)), since his percentage of negligence would still count, but would be removed--P would just not be able to recover that part.

2. The Non-presenteda. HYPO: injured by 1, 2 and 3. Only sues 1 and 2 because 3

is ’s friend.b. 3’s fault would still be determined just not collected. would only be

able to collect 1 and 2’s portion of fault—not 100%.xi. Comparing Negligence w/ Intent

1. Can negligence be compared w/intentional torts when it comes to comparative negligence?

a. Depends on statute:i. Plain meaning

1. If it mentions fault, then yes.2. If it only mentions comparative negligence, then no.

ii. How the statute was amended.2. Bassett (Felon hit P in roadblock)--YES

a. was driving through a road block when they were struck by 2’s car –he was trying to evade the police. The police at the roadblock failed to warn even though they saw 2 approaching the roadblock. sued the police (1) and not 2. The court held the statute’s language “in any measure negligent” to included intentional torts. Therefore 1’s negligence could be compared w/ D2’s intentional tort and omitting 2 from the verdict was against the legislative intent of the statute.

3. Turner (Psychiatrist fails to warn nurse about a dangerous patient)--NOa. nurse and psychiatrist worked at hospital together. The had

worked with the patient Williams and knew him to be violent. failed to warn the about William’s violent tendencies and was injured by Williams.

b. Court held that ’s negligent conduct should not be compared with William’s intentional tort in determining comparative fault where the intentional tort is the foreseeable risk created by the negligent . The court remanded the case consistent with the Jury’s verdict of 100% fault to the .

xii. Defendant’s Duty to Protect Plaintiff1. The defense of contributory negligence is not available to the where

had a duty to protect the from harming himself

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i. This is a class of cases where the ’s duty is protecting the from his own negligence and therefore, the court will neither apply contributory negligence nor comparative fault.

ii. At C.L. contributory negligence would have barred any recovery.

iii. Under comparative fault, P would be able to cover, but for a lower amount.

2. Bexiga (P injures hand on power punch press)a. is a power punch press operator. His right hand was injured when

he place it in the punch press accidentally and press the foot pedal activator. There were no guards or other safety devices on the press. He sued the company.

b. Court held that the defense of contributory negligence was not available to the where had a duty to protect the ’s from harming himself (by installing safety devices). Remanded for a new trial.

3. McNamara (Mentally ill patient hangs himself in hospital)a. While confined in a state hospital, the decedent hanged herself and

died. sued on her behalf and the court held that “there can be no comparative negligence where the ’s duty of care includes preventing the self-abusive or self-destructive acts that caused the injury…”

d. Assumption of Riski. Expressed Assumption of the Risk

1. Contractual usually in writing but not necessary—if oral, then must still have the elements of a K.

a. Boyle (Dr said there will be risks)i. patient went to doctor for alternative cancer treatments.

Dr. disclosed treatment was not FDA approved and there were no guarantees of success. pursued the treatment and died within a year—estate sued. Court held that the jury should have been instructed that there could have been an express assumption of risk and is barred form any recovery, even without a written document.

2. Must be voluntarya. Tunkl (Hospital’s negligence and the required waiver)

i. The hospital will not treat unless the signed a release form absolving the “from any and all liability for the negligent or wrongful acts or omissions of its employees...” is injured by the hospitals negligence.

ii. Court holds that in essential services (like medical treatment), a compulsory assumption of risk is not voluntary and therefore invalid.

1. Public Policy considerationsb. Ciofalo (Accident at the gym and the exculpatory clause)

i. fell near the pool at the ’s gym and sued. moved for summary judgment on the basis of the an agreement in the ’s membership contract—exculpatory clause in which the assumed full responsibilities for any injuries which might occur, including injuries due to ’s negligence.

ii. The court upheld the exculpatory clause as an assumption of risk because:

1. the requirement of “express language” was clear 2. and there was no overriding public policy interest

or special relationship.c. Jones (Sky-diving and the crashed plane)

i. was injured sky-diving when the plane he was riding in crashed shortly after take-off. He sued for simple negligence as well as willful and wanton misconduct. moved for summary judgment on the negligence count on

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the basis of an exculpatory clause signed by the . countered that the contract was invalid as it was a contract of adhesion and that the exculpatory clause was invalid in any event.

ii. Court held that 1. Contract was not one of adhesion—did not show

disparity of bargaining power between the parties AND

2. That the exculpatory clause is not valid as to willful or wanton negligence but can be applied to ordinary negligence IF

a. Not contrary to public interestb. Fairly entered into (voluntary) ANDc. Unambiguously expressed the parties’ intent.

Thus the is barred by the exculpatory clause as to the simple negligence charge—assumption of risk.

3. Balancing of 6 factors to decide if one can assume the risk (Tunkl)a. Is the business suitable for public regulation?

i. The more regulated, the more public the business, the more restricted to waive rights—assume the risk

b. Is the service of great importance?i. I.e., Medical service more important than going to the gym.

c. Open to the members of the Public?i. Less likely to uphold waiver of rights.

d. Is there a decisive disadvantage in bargaining power and the Essential nature of the service.

i. The greater the disparity of bargaining power, the more likely the court will not enforce the K (waiver).

e. Can P pay extra and not sign the waiver?f. Is P placing himself under the control of D (thus subject to their

carelessness)?i. The more the is under defendant’s control, the less likely a

court will enforce the waiver—K.1. Ciafalo (gym) still had autonomy as opposed to Jones

(skydiving).4. Whether or not P can waive D’s liability and assume the risk often depends on

public policy. Traditionally, common carriers and public utilities were held to a higher standard of care; therefore, they could not be waived.

ii. Implied Assumption of the Risk1. Elements

a. Knowledge of Risk (Appreciating the risk)i. General Rule: Subjective testii. Minority: Objective

1. (Crews)-- worked for the gas company. He answers a call to a construction site where a gas main has broken. He is injured in trying to fix the gas main. argues that had assumed the risk (knowledge of the risk and voluntarily encountered). counters that he wasn’t aware of the specific risks. Court hold that the risk was obvious-- should have known the risks. ( had worked for the gas company for over 20 years and smelled the gas previous to the explosion, a smell he admitted alerted him to a danger).

b. Voluntarily Encounter (able to weight the risks and make a choice)i. Ex. Fireman’s Rule

2. Primary implied assumption of riska. Based on entering into a relationship

i. No duty for D to protect P due to a K (i.e. sporting event)1. understands that the defendant will not protect

against certain risks.41

2. has no duty to protect against these risks3. No liability because no duty (no prima facie case) as

opposed to Assumption of Risk which is an affirmative defense.

4. Same outcome (no recovery by b. EXAM ANALYSIS: Entering into sport doesn’t mean there is no duty; it

just means there is no duty for certain kinds of risks. Thus, must decide where the “no duty” line is drawn. (rules of the sport?)… question of competition v. recovery.

i. Sunday (Novice Skiing accident)—the was a novice skier.. He hit a hidden bush on the bunny slope and was severely injured—he was rendered a quadriplegic. The argued that assumed risk when he engaged in the sport. Court affirms the lower court ruling for the . They state that where there is primary assumption of risk there is no liability to the because there is no negligence on the part of the to begin with; there is no duty to begin with and therefore no breach. Here the did assume some risk but not that he would be exposed to this particular danger on a novice trail. Therefore the did have a duty to keep the trail clear. (the bush in the middle of the bunnyslope was within the care of duty of the )

ii. Kahn (Swimming coach and the bad dive)-- is injured in a shallow dive at a swim meet. She claims that the coach coerced her into doing the dive even though she feared doing the dive and was not properly trained to do the dive. Court applies the reckless standard to the coach and remands to the lower court.

3. Secondary Assumption of Riska. owed a duty of care to .b. breaches dutyc. goes on and voluntarily encounters the riskd. Unreasonable encounters the risk (Carroll Towing)???

i. is at faultii. Under comparative fault can get a reduced (partial)

recovery.e. Reasonable encounters the risk

i. No bar to Full recoveryii. Turcotte (Horse racing)-- is severely injured in a race when

he is thrown from his horse after he is fouled. Court uphold the judgment for the defendant. They hold that assumption of risk is defined prospectively; the in advance gave his consent to relieve the of an obligation of conduct toward him. I.e. , violation so of the rules in racing are within the scope of engaging in the sport.

1. Cases usually turn on what is customarily accepted.

a. Which obligation does the assume and relieve the of?

b. Which duties does he not?c. What is the zone of no duty?

i. Difficult to ascertain.d. Proximate cause and Duty tell you the

same thing.iii. Gauvin (College hockey)—The was butt-ended by the

resulting in injuries—the required surgery and lost his spleen. Although the violated a safety rule, the jury found he was not reckless and the Court upheld.

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1. Ct rejects assumption of risk in sports cases (rejected by the legislature).

2. Adopts analysis of the ’s duty under the circumstances.

3. Adopts the standard of recklessness because lower standard would have a chilling effect on the competitive playing of the sport.

a. Reckless—totally outside the range of ordinary activity.

e. Limited Duty Rulesi. 2 Concepts of Duty

1. General Standard2. Specific Duty: case by case

ii. Common Carriers and Host Drivers1. RULE: Common carriers have a higher duty--just short of insuring safety2. Doser (Bus Driver)-- bus involved in an accident and the was injured. No

showing that the was negligent. Court holds the bus driver (common carrier) to a higher standard.

iii. Guest Statutes 1. RULE: being transported without paying.

a. Driver only liable for willful or wanton misconduct, not for negligence

i. No duty to act reasonablyii. Overturned.

iv. Landowners1. Trespassers

a. Undiscovered Trespassers—RULE: duty is to avoid willful, wanton, or willful conduct or activity.

i. Footpath Exception--If there is a footpath on the property, then you owe a duty of reasonable care b/c people trespass there all the time.

b. Discovered/”Should Know” Trespassers: Once an owner knows or should know there is a trespasser, then there is a full duty of reasonable care.??? When the owner becomes aware of the trespasser, he does not owe a full duty of care but is required to act upon the information he knows or should have known.

i. Gladon (Rapid transit train case)--P was drunk was beaten up and ended up on train tracks. The train braked but ran over him severing his legs. Court holds that was an invitee when he entered the station. He became at trespasser when he went on to the tracks. Thus the only owed him a duty to avoid injuring him by willful or wanton conduct. Once they discovered him on the tracks RTA’s duty shifted to a full duty of care. Here driver () could use the Emergency Doctrine to justify the response.

c. No Duty to Inspect—RULE: owner does not have any duty to look for trespasser; just can’t ignore evidence of trespassers.

2. Licenseesa. Permitted to enter but not there for the benefit/purposes of the

landowner (i.e. social guests)b. Duty: reasonable care to any situations that the owner knew or

should have known on the facts available.i. Affirmative duty of care in carrying out activities on the

landii. The willful—wanton rule is applied to conditions on the

land.3. Invitees

a. Duty—Full duty of reasonable care

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b. Traditionally: Business purposes versionc. Modern: Adds Public invitation version

i. Premises open to the public even though there is no business purpose (i.e. parks, recreational activities)

ii. EXAMPLE: Arkansas Bridgeiii. Only an invitee only while he is on part of the land upon

which his presence is desired.4. Child Trespassers

a. Attractive Nuisance Doctrinei. Modern Rule (3 Elements): Owner owes a duty of care to

trespassing children where:1. trespass by children foreseeable2. owner knows or show know of the danger3. reason to think the child, by reason of his age, will

not be able to protect himself.4. EXAMPLE: R.R. Turntable: by building the turntable

the RR lured kids to the property. Thus, the child is not a trespasser

5. Doesn’t apply if not attracted onto property by a certain feature and injured by it.

ii. RULE: does not apply to natural conditions—harder to control natural conditions.

1. DISTINGUISH: acid lake, kids were deemed trespassers b/c they were already trespassing on the property before they were lured by the lake.

iii. NOTE: this only satisfies the duty element; there may still be no breach under Carroll Towing analysis.

5. Natural Conditions/Common Hazardsa. General Rule: Landowners are not liable for natural conditions of

land, but may be liable for artificial ones.b. Common Hazards

i. RULE: Attractive nuisance doctrine does not appy to “common hazards”

1. i.e., fire and open pools of water.2. Recovery sometimes allowed for swimming pools

and hidden embers.6. Open and Obvious Dangers

a. RULE: A landowner will not owe a duty to warn of an open and obvious danger: no duty

i. The danger is so obvious that the will see and protect themselves—no reason to put a duty on the .

ii. Duty determination as a matter of law, not a finding for the jury.

iii. O’Sullivan (shallow end of pool was obvious)-- dived into the shallow end of the pool and was injured. He argued not a limited duty rule but an assumption of risk, therefore the issue at hand should have gone to the jury (problem with this argument is that this scenario fall into primary assumption of risk—no recovery). The Court rejects and finds no duty due to an open and obvious danger.

1. KEY FACTS: is a Landowner—concern about imposing duty on a landowner.

a. Constricting property rights and their use of their land.

b. Exception i. RULE: If the landowner should anticipate that what

entering person is doing on the land will lead to his harm from an open & obvious danger the Landowner still has a duty. We will treat as contributory negligence

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under comparative fault on the ’s part--can obtain partial recovery.

1. K-Mart and mirror: should have anticipated that the customer will be distracted.

2. Watermelon—Pile of watermelons on the floor in the grocery store. trips over them. Court hold that the distraction of the was foreseeable, therefore, Open & obvious danger not enough to limit duty.

7. Duty to Persons Off the Land (by activities on the Land)a. Natural/Artificial Distinctions

i. Natural—RULE:1. There is no duty to the people off the property

caused by natural conditions from inside the property (i.e. tree falling, land slides, etc.)

ii. Artificial—RULE:1. If owner undertook an activity on the land, he now

owes a duty in cases of injury off the land by that activity. --he owes a full duty of care.

b. Then: Urban and Rural Distinctioni. Natural conditions exception only applies in rural areas.

ii. Owes a duty in urban areas.???1. i.e. tree in city falls???

iii. Better to argue under breach1. In urban areas, more people, higher risk, easier to

inspect.2. In rural area, fewer people, lower risk and difficult

to inspect.8. Firefighter’s Rule

a. RULE: Landowner does not owe a duty of care to a firefighter injured on the land fighting the fire (i.e., doing his duty).

i. Also applies to the police.b. EXCEPTIONS:

i. If the negligent act that started the fire violates an ordinance, the landowner has a duty.

ii. If the risk that injures the firefighter/officer at the scene is not the risk that was the reason they were called for, there is a duty.

1. HYPO: OC Firefighter case--Firefighter could recover from the LL b/c the toxic chemicals was an additional risk. If DIFFERENT risk, then P can recover.

iii. Pinter--9. Abolition of Categories

a. RULE: The distinction between the classification (trespasser, licensee and invitee should be abolished.

i. Rowland—CA has a peculiar rule at this time; landowner nit required to warn of a known concealed dangerous condition. injured by a cracked porcelain faucet handle that the knew was damaged. Court abolishes categories stating that;

1. Reasonable people do not vary their conduct depending upon the status of the injured party.

2. Rowland Factors:a. Proximate Cause b. Moral blame attached to D’s conductc. Policy of preventing harmd. D’s prevalence/availability of insurance

3. CA: LL owed a general duty of reasonable care to all individuals on their property. However, the argument is whether LL acted reasonably under the circumstances.

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b. Rowland Rule was adopted by 25 JDX but many kept the trespasser rule.

c. Abolished categories but still can use them as factors for the jury to consider.

i. Scurti (man climbs under fence)—RR had a fence around their property. They knew that it might be dangerous but did not maintain. 14 year old boy crawled through a hole in the fence and was electrocuted in the railyard.

1. Even though NY had abolished the categories, they are still relevant in determining whether or not D BREACHED the duty.

a. i.e., the fact that the was on the property without permission and therefore his presence was not foreseeable to the can go to the jury.

10. Limited Duty: Landowner and Occupiersa. Recreational Use Statutes

i. RULE: If you open your property to public recreation w/o the public having to pay, then you only owe a duty as you would a trespasser.???

ii. RULE: A duty of care is owed to those who have paid to enter or been expressly invited (as opposed to merely permitted). Otherwise liability id only for willful or malicious failure to guard or warn against a dangerous condition.

b. Lessor’s Dutiesi. C.L. RULE: Lessor’s have no duty except

1. In common areas retained by the Lessor.2. Lessor undertakes under the lease to maintain

(under K).3. Lessor repairs negligently.4. Lessor is aware of a dangerous condition but

doesn’t inform the lessee a. duty until the lessee discovers the

dangerous condition himself.5. If the property is going to be leased to someone

who is going to hold it out for use by the public.ii. Lessor’s are by definition landowners but they have

granted the right of occupancy to the Lessee.1. The lessor no longer has superior present

property rights.iii. Exceptions:

1. Pagelsdorf (broken dry rotted balcony railings)—Court as a matter of public policy rejects the C.L. rule and adopts a standard of ordinary care.

2. Now liability will depend on the particular circumstances.

a. Argue before the juryb. No longer a matter of lawc. Only question—was there a breach

i. Foreseeability of injuryii. Lessor’s ability to access property.

3. Becker v. IMF Corpb.—held landlord’s strictly liable for injuries on their property. Similar to product liability.

a. OVERTURNED—Returned to standard of general care.

v. Limited Duty: Nonfeasance

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1. Basic Rule: no duty to take affirmative action for another’s protection. If you don’t act, then you owe no duty. If you do act, you owe the appropriate duty of care, usually the standard duty of care—negligence.

a. Construed very narrowlyb. Many exceptions

c. Yania (taunting P to jump)--Ct held that the mere fact that D enticed and saw P in a position of peril did not impose a legal duty to rescue him. Separated the issue of enticing and issue of not rescuing. Here the was no affirmative duty to rescue.

d. CONTRAST: Newton—the was hired to dig wells. He did so but left the excavations unlighted at night. The ‘s carriage was drawn into one of the unlighted excavations and the was injured.

i. The court found the had committed misfeasance, not nonfeasance, for the improper mode of performing his work—he dug improperly without taking the proper steps for potection.

e. HYPO (the parking brake)—Driver sitting in the car and doesn’t set the parking brake. The car is rolling and someone is behind the car. The driver does nothing. Here the driver is committing misfeasance.

f. HYPO (the parking brake 20 minutes later)—the same facts except the car rolls 20 minutes later and the driver is watching from the house and does nothing. If nonfeasance, then there is no liability.

g. Rationale for nonfeasancei. No interference with autonomy

1. When there is a duty (tort)a. reasonable person either changes behavior orb. Buys insurance

ii. Defendant didn’t create the risk1. Doesn’t always hold up.

iii. Counterview1. Must balance the ramifications of nonfeasance

(impact on victim or his family) versus the defendant’s autonomy.

2. Exceptions to the Basic Nonfeasance Rule:a. Caused Injury

i. South (Collision b/t truck and train)--’s truck collides with a train. The engineer did not assist the because he did not want to soil his new jacket. The Court held that the engineer was liable for the aggravation to the ’s injuries that resulted form his withholding of aid.

1. RULE: A person who knows or has reason to know that his conduct, whether tortuous or innocent, has caused harm to another has an affirmative duty to render assistance to prevent further harm. Liable for aggravation of injury.

ii. Maldonado (D’s employees telling others not to help)-- attempted to board ’s freight train as it was moving. The bumped the train as he was doing so causing him to fall under the train resulting in severe injuries. The did not aid the and yelled at bystander not to aid him as well.

1. RULE: There is an independent duty to aid when harm is caused by D or through its instrumentality; if the ’s failure to assist aggravated the injury, the can be liable, even if the is not the legal cause of the original injury (as per South rule).

b. Caused Risk of Injury

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i. HYPO: Deer—Car hits and kills deer. Too heavy to move, drives off. Next car comes and hits the dead deer and is injured. The first driver has a duty because he created the risk.

1. RULE: Creating a risk will give rise to a duty.c. Rendering Aid: How much action is need to create a duty?

i. HYPO: Burning Car—pregnant woman in a car crashes and the car is burning. Police arrives immediately, calls fire department and starts directing traffic—doesn’t attempt to rescue. When the woman is finally pulled out she dies from her injuries. The estate sues the policeman claiming that he had a duty to rescue. Court holds that he had no duty. Not enough action was taken directly at woman to give rise to a duty.

ii. Restatement: No Worse Position1. RULE: There us no duty if the ’s action put the

in no worse position than before the ’s action2. Kreig (the landlady and the suicidal tenant with a

gun)---The noticed VH with a gun. She took the gun away and put it on top of a cabinet and made arrangements to take VH to the doctor later. VH retrieved the gun and shot himself. The court held that the was not liable because

a. ’s actions did create a duty to prevent suicide AND

b. If the had a duty, her action placed VH in no worse position than before she took the gun for him.

d. Special Relationshipsi. Determinate Relationships

1. RULE: Already had a relationship before the incident

a. Carrier-Passengerb. Innkeeper-Guestc. Landowner-Inviteed. Custodian-Warde. Employer-Employee

2. HYPO (The pre-employment physical)-- takes a pre-employment physical. The tests detect cancer but the is not told. It could have been treated with full recovery if he had been told at that time. Could argue that there is an affirmative act—taking the test. Therefore the employer was liable to that act.

ii. Indeterminate Relationships1. RULE: Relationship arises from the circumstances

of the incident such as a common undertaking.2. Farwell (scoping out the girls)--D and V had a special

relationship since they were engaged in a common undertaking; therefore, D had a duty to render aid.

iii. EXAM: If possible, argue for both relationships.

vi. Limited Duty: Contract and Duty1. Unenforceable Promises

a. OLD RULE: A promise is not enough to create tort liability.i. Thorne(forgot to buy Insurance for the ship)-- failed to buy

insurance for a boat co-owned by the and . had promised to buy insurance but never took action. Court held that a promise was not enough to over come the nonfeasance.

1. Problems under tort48

a. Nonfeasanceb. No the actual cause—not getting the

insurance is not the actual cause of the ship sinking.

c. The damages were economic not physical—THIS PART OF THE LAW IS STILL FOLLOWED.

d. Today you might be able to recover under the Reliance principle in K law but the damaged would be quite different.

2. Enforceable Promisesa. Old RULE: NO duty in torts under K law.b. Leavitt (falling plaster)—Physical injury to tenant by falling plaster,

after landlord was told of the problem (loose plaster) but failed to repair. Court held no liability because damages for personal injury were too remote and not within the contemplation of the parties to the K. may recover for the cost of making the repairs but not for personal injury.

c. MODERN/ RST 2d RULE: If entering into enforceable K, it may give rise to a duty in torts despite nonfeasance.

i. RULE: If K was intended to protect one party against physical injury, then entering into that K can at the same time give rise to a duty under torts. (majority)

ii. Rst RULE: A lessor of land is subject to liability for physical harm caused to his lessee and other upon the land with the consent of the lessee or his sub-lessee by a condition of disrepair existing before or arising after he lessee has taken possession if

1. the lessor , as such, has contracted by a covenant in the lease or otherwise to keep the land in repair

2. The disrepair creates an unreasonable risk to persons upon the land which the performance of the lessor’s agreement would have prevented and

3. the lessor fails to exercise reasonable care to perform his contract.

4. Mobil—The -lessee counterclaimed for an injury suffered after the failed to repair (leaking roof) after notice. The was required by the K to repair after notice. The court rejected the old rule and applied the Rst 2d rule to commercial leases (did not say that it excluded commercial leases).

3. Limiting Tort Duty by Ka. RULE: You can K away your tort liability as long as the K is

clearly written; otherwise, you may only be K away your K liability.

i. DCR (Burglar alarm)—the had a contract with the for a burglar alarm. The alarm was susceptible to being easily disarmed and was, resulting in loss to the . The K limited damages to $50. The sued the for failure to warn that the alarm could be easily disarmed. The Court held that the monetary damage limit only applied to the K loss. It did not apply to this claim, which was a torts claim.

b. RULE: Only suits for physical damages can be brought under Torts.

c. Southwestern Bell (the missing yellow pages ad)-- sued in torts and K because the had not published an ad the had contracted for. The court reversed holding that a tort action could not be brought for purely economic damages or for nonfeasance.

4. Promises to 3rd Parties49

a. OLD RULE: 3rd parties not in Privity to a K may not sue in torts for injuries resulting from a breach of that contract.

i. Winterbottom (the un-maintained carriage)—the was injured by the Postmasters carriage because it was not properly maintained by the . The court rejected the claim, holding that a 3rd party not in privity to the K could bring an action for injuries in tort.

1. NO LONGER FOLLOWED—the requirement of privity is no longer good law.

b. RULE: Courts are wary of the consequences of unduly extending liability outside the; i.e., creating duty to third parties.

i. Moch (low water pressure and the burned building)—The contracted with the city to provide water at sufficient pressure for the fire hydrants and other public functions. The pressure for the fire hydrants was inadequate to put out the fire in the ’s building and it burned to the ground. The court rejected that the could sue for the breach of the contract.

ii. Strauss (black out and the basement accident)-- injured during blackout for which the was grossly negligent. However the court holds no liability because the was injured in the basement of the apartment which is a common area held by the landlord and the did not have a K for electricity in the basement.

c. RULE: In a K, there may be a duty to a 3rd party if the purpose of the K is to protect the 3rd party. In determining if there is a duty the courts will look to the following factors:

i. Reasonable connected and anticipated relationship;ii. particularity of assumed responsibilities under the K

and evidence adduced at trial;iii. displacement and substitution of a particular safety

function designed to protect persons like P; andiv. a set of reasonable expectations of all the parties.

1. Palka (the service K and the falling fan)--/Servicemaster was liable for P’s injuries b/c the nature of the K was to maintain the fans and the hospital had K away its duty to P to D. Ct looked at the follow factors:

2. NOTE: There is a smaller pool of ’s in this category and therefore less of a chance to undermine fundamental expectation on the K.

5. EXAMa. Contract and Duty

i. Old School—Privity Limitation—Winterbottom1. No longer followed

ii. Later: Limiting Liability—Moch, Strauss,iii. Palka factors

1. Reasonable connected and anticipated relationship;2. particularity of assumed responsibilities under the K

and evidence adduced at trial;3. displacement and substitution of a particular safety

function designed to protect persons like P; and4. a set of reasonable expectations of all the parties.5. NOTE: There is a smaller pool of ’s in this category

and therefore less of a chance to undermine fundamental expectation on the K.

b. 3 variables : Tort and Ki. Misfeasance/Nonfeasanceii. Privity/Non-privityiii. Physical/economic harm

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c. Parties in Privityi. If misfeasance: no problem

1. Affirmative act, have to act reasonablyii. If Nonfeasance: Duty if foreseeable harm to

1. K is one where if fails to perform, is put at riska. Most courts will find that had a duty.

2. Unless you K around the liability with language in the K

a. Assumed risk clauseb. Does not apply to 3rd parties because they

were not party to the Kd. Parties not in Privity

i. If Misfeasance and Physical Harm1. Liability likely

a. More likely because there was an affirmative act—misfeasance

b. But balanced against the concern over wide spread liability (i.e., Moch)

ii. If Nonfeasance and Physical Harm1. Difficult area

a. 3rd party to Kb. More likely under Palka type case

i. K designed to protect who are 3rd parties to the K

ii. knows going into the K that the K was designed to protect 3rd parties.

iii. Smaller number of ’s and therefore the scope of the liability is narrower.

2. NO BLACK LETTER RULE—HAVE TO MAKE THE ARGUMENTS.

6. Action as a Promise or Undertaking (Non-contract promises)a. RULE: if a party assumed a duty to a special class of persons,

and having gone forward with performance of that duty in the past, has an obligation to continue its performance; the must have relied upon this performance.

i. Promise (implied or expressed) of a limited duty to a specific class of persons AND

1. The duty is limited and the scope of the duty is defined by what the promised.

ii. The relies upon that promiseiii. The is liable if his failure to perform the promise

results in physical injury to the .b. Florence (the missing crossing guards)—c. Kirchner (Police failed to call in the carjacking report)-- was

carjacked. This was witnessed by two people who reported it to a police officer. He failed to call in the report. The was injured. The Court held that the was no liability even though there was a promise. The promise was to the two witnesses. Furthermore there was no reliance on the part of the on the police officer’s promise. (no direct contact between the and the , therefore no reliance).

d. HYPO (the crossing guard and the two mothers)—there has been a crossing guard at the crossing for two weeks but there is no crossing guard today. 2 kids cross the street and are hit.

i. One mother knew of the crossing guard.1. Here RELIANCE and therefore liability

ii. The other mother did not know of the crossing guard.1. Here NO RELIANCE and therefore no liability.

e. If there is a duty, what is the nature or scope of the duty?i. HYPO—Kids cross the street and go to the 7-11. The

crossing guard sees that there is a robbery in progress an 51

the 7-11. He could have stopped the kids but does not. Instead he runs away.

1. Here no duty—beyond the scope2. Only a limited duty, not a general duty, defined by

what the promised.vii. Duty to Protect 3rd Parties

1. The issue: Duty owed to protect because of eithera. ’s relationship to ORb. ’s relationship to the other party.c. If you prove duty you must still prove breach and cause (actual and

proximate)i. Related to previous duty material.

ii. Related to previous proximate cause material.2. Rules for determining Duty

a. Specific Harm Rule: Landlord has no duty unless knowledge of a specific, imminent harm.

i. Narrow scope of liabilityb. Prior Similar Incidents Rule: Past history of criminal activity in

the area that would put the landowner on noticei. Expanding the scope.

c. Totality of the Circumstances Rule: Surmise from the surrounding area.

i. No prior incidents requiredii. Most common approach

iii. Wider foreseeability test1. Wider scope.

d. Balancing Test—balancing foreseeability of the harm against burden of imposing a duty to protect against criminal acts of 3rd parties.

i. High foreseeability of harm required.ii. Shifting the Carroll Towing analysis from breach to duty.

1. Taking analysis that juries would normally make and making it a question of law—determined by judge.

2. Rationale:a. Arguments for Limiting liability

i. Areas where the test is met are usually crime plagued, low income areas where the landlord/merchants can afford the burden the least.

ii. A public problem should be dealt with by society and not by individual businessmen.

b. Arguments Against Limiting Liabilityi. The ’s are doing business and

should internalized the cost as part of doing business.

iii. Pocesai (robbery at Wal-Mart)-- was robbed at the Wal-Mart parking lot. It was not dark. The store is not in a high-crime area but was adjacent to one. Only two incidents in the parking lot in over 6 years. One very late, 1am, considerably after the store was closed. Another involved and employee’s purse being snatched by her husband. The court applied the balancing test and determined that Wal-Mart was not liable—lack of foreseeability of a high foreseeability of harm.

iv. HYPO (the dimly lit parking garage and he unsolved murder)—Woman parks in a dimly lit parking garage at the airport. She is later found murdered. Evidence that she was kidnapped at the parking but the murderer was never caught. Husband sues the parking garage operator.

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Introduces evidence from an exert witness—Security expert—that the lack of lighting may have contributed to the kidnapping. Court held that could not prove ACTUAL CAUSE (but for).

1. RULE: Generalized testimony (i.e., expert witness) is not sufficient to prove actual cause.

v. EXCEPTION—RULE: there is no duty to give out property because someone is threatened.

3. Special Relationship Rulea. RULE: In the absence of a special relationship, a person (i.e.,

landowner/host) has NO duty to protect another from criminal acts by 3rd persons.

1. Special Relationships2. Carrier-passenger3. Innkeeper-guest4. Business invitor-invitee5. Custodian-ward6. Employer-employee—only if the employee comes

into a position of imminent danger and this is known to the employer.

ii. Social Guests1. Parish (late night knock and the injured guest)—late

night knock at the door. The opens the door without inquiring who it was (the area is a high crime area). Three men rushed in and in apparently searching for drugs or money. They shot the three times. The court held no liability on the ’s part because of no special relationship.

iii. Independent Contractors1. Hosein (the independent contractor cab driver and the

missing bullet-proof glass)—The lease a cab from the . The cab was not equipped with bullet-proof glass and the was shot and killed. The court held that a independent contractor was not a special relationship.

iv. Teachers and Administrators1. Maraquay (students sexually abused by teachers)—

The court held that a special relationship existed between a student and a teacher and administrators and therefore the could sue.

a. In general the teachers and administrators substitute for the parents.

i. Attendance is mandatory ANDii. The students are not able to fend

for themselves.b. Teachers have a duty to act reasonably

under the circumstances, i.e., to report the abuse to the administration and/or to intervene.

c. Principals have a duty to intervene.2. Geographic Limit of the Special Relationship Duty:

a. RULE: The duty does not have a geographic limit per se.

i. It must be foreseeable and ii. the duty has to relate to the

teacher’s role as a substitute for the parents—the special relationship.

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3. Special Rule: If you are open for some you are open for all.

a. Fazzolari (girl dropped of early at school is attacked)-- was dropped off early as usual by her mom. The school was often opened early by the janitors and teachers and students were often there early for extracurricular activities or preparation—no notices were posted with the school hours.. She was attacked her in the bushes off the school grounds. The court could not hold the school liable on landlord duties to an invitee because the attack occurred off the school grounds. The court held that the school in being open for others was open for the . Therefore the school had a special relationship to the student and it still had a duty even though the attack technically took place off the school grounds.

v. Duties of Colleges1. RULE: Generally a college is under no duty to

protect the students from themselves.a. Colleges are not parents ANDb. Most college students are adults.c. Colleges may still have a duty as a

landlord.4. Defendant’s Relationship with Dangerous Persons

a. RULE: If a lessor has i. knowledge of a dangerous situation (i.e., a tenant) and

ii. the ability to control the situation, he then has a duty to third parties to do all he can to get rid of the dangerous situation (tenant).

iii. Rosales (the shooting tenant and the knowledgeable landlord)—The landlord knew that the tenant sometimes fired a gun in the backyard and did nothing about it. The tenant fired the gun and hit and killed the child. The sued the landlord and the court held that the landlord had liability because he had knowledge and control of the situation and was under an obligation to remove the dangerous condition and did not.

b. Parents Duty to control Childreni. RULE: A parents duty to control children arises when:

1. They have knowledge of a specific Dangerous habit.

a. Very specific habitb. Courts reluctant to hold liability unless

very specific habit.2. AND they have an ability to control.

a. Not usually the problemc. Doctor’s/Therapist’s duty to 3rd Parties

i. RULE: Once a therapist/doctor does in fact determine, or under the applicable professional standard, that a patient poses a serious danger to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger.

ii. Tarasoff (the therapist and the victim)—A therapist was told by his patient that he was going to kill a classmate. The therapist told the campus police who interrogated the patient and released him. He then murdered the classmate. The

54

Court held the therapist liable and held that he was under an obligation to warn the victim.

iii. Thompson (the threatening inmate)—A inmate had threatened to kill a child on his release. He did in fact kill a child when he was furloughed. The court held that the county was not liable because the threat was not specifically directed at an identifiable victim.

iv. DiMarco (the doctor and the failure to warn about sex)—V was exposed to a blood sample that may have contained hepatitis. Her Dr. instructed her that if she was symptom free for 6 weeks that she was not infected. After remaining symptom free for 8 weeks, she resumed sexual relations with her boyfriend. She was in fact infected and transferred hepatitis to her boyfriend. The boyfriend sued. The court held that the physician’s duty “extends to those within the foreseeable orbit of harm” and that the Dr. was liable to the boyfriend for not warning him through the patient about refraining from sex.

5. Negligent Entrustmenta. Rule: Negligent Entrustment results when an owner, having

knowledge of person’s incompetency, entrusts an automobile or some other dangerous item to another with permission. (Foreseeable harm)

b. West American Insurance (lending your car to your drunk friend)—The had been drinking for hours with his friend. lent his car to his friend, even though he had reason to know that his friend was drunk. The friend crashed the car into a house. The court allowed the suit against the on the basis of negligent entrustment.

c. Vince (Aunt lent money to her incompetent nephew)—The court allowed a suit against an aunt that gave her nephew money to buy a car. The aunt knew that the nephew was an extremely bad driver, having failed the driving test several times, and that he abused alcohol and other drugs. The court allowed the case to also proceed against the seller who also had the same knowledge.

d. Alcohol and 3rd Partiesi. RULE: One who sells intoxication beverages for on the

premises consumption, has a duty to exercise reasonable care not to sell liquor to a noticeably intoxicated person.

1. The duty from the tavern owner to the 3rd person who may be injured by the drunken patron.

2. Overrules C.L. that held that a tavern owner was not civilly liable for a 3rd person’s injuries that are caused by a intoxicated patron.

ii. Brigance (Bartender serving drinks to a drunk patron)--D’s duty arose from him knowing that the drinker was drunk and was going to drive, yet still served him drinks. D’s duty is to P, not to the drinker.

iii. Social Providers1. Less likely that social hosts will have a duty b/c he is

less able to control or monitor the intake of all guests. Further, as a policy argument, it effects social gatherings.

f. Negligent Infliction of Emotional Distressi. Categories

1. Emotional distress from risks of physical harm.a. To persons put at harm.b. To 3rd parties at risk.

2. Emotion distress independent of physical risk.55

ii. Emotional Distress from Person Put at risk of Physical Harm.1. Old RULE: Physical Impact Rule—To claim for emotion distress, the

must have been physically struck.a. Mitchell (pregnant woman almost trampled by horses)—The court held

that a woman who was frightened by horsed that almost trampled her could not sue for NIED because she was not actually struck, even though her fright caused her to miscarry.

i. Need the Impact, then can sue for NIED and for parasitic damages.

2. Physical Manifestation Rulea. RULE: To sue for emotional distress, there must be a physical

manifestation or evidence of physical harm of the distress.i. NO impact required.

iii. Emotional Distress Independent of Physical Risks (pure emotional distress)1. Pure Emotional Distress

a. RULE: The likelihood that an emotional injury is genuine can be found in the facts.

i. No impact requirement.ii. No physical manifestation requirement.

iv. Thin Skull Rule for NIED1. RULE: When a ’s negligent actions aggravates a pre-existing condition,

the victim will be compensated for the full extent of the aggravation--the Thin skull rule applies in NIED.

a. Miley ( emotional problems exacerbated by an auto accident)—the court held the liable for the full extent of the ’s aggravation.

v. Emotional Distress from risk of harm to 3rd parties.1. Zone of Danger Test

a. Emotional Distress b. Caused by fear of physical injury to one’s selfc. Fear must be expressed contemporaneous with the incident.

i. Grube (RR employee suing for seeing V die)—RR engineer collides with a car. He sees the fear on the victim’s face as the train strikes his car. He suffers ED, including physical manifestations at the scene. He sues for NIED. Court applies the test above and finds that the cannot recover because he was not in danger of his own safety.

2. Dillon Factorsa. was at the scene of the accidentb. ED resulting from sensory and contemporaneous observance of

the accidentc. and victim were closely related

i. Immediate family (parent, child, sibling, spouse)3. Thing Test

a. closely related to victimi. immediate family members only (parent, child, sibling

spouse—not fiancé)b. Present at the scene of the accident at the time it occurs and is

aware that it is causing injury to V.i. An argument that the heard and was aware of what

happened may be sufficient—some sensory perception.c. As a result, suffers serious emotional distress that is beyond the

reaction of a disinterested witness and which is not abnormal response.

4. Direct Victim Testa. Due to a pre-existing relationship between the and , before the

acts, can anticipate that would be Emotionally Distressed if acted negligently (foreseeability).

i. KEY: Pre-existing relationship b/t P and D, not P and V.b. Burgess (Mother and the botched delivery of the baby)--The Thing test

doesn’t apply b/c there is a pre-existing relationship b/t the D-doctor 56

and P-mother. The Direct Victim test applies based on a breach of duty assumed by the D or imposed on the D as a matter of law, or that arises out of a relationship b/t the 2.

5. Loss of Consortiuma. RULE: Spouses can recover for other spouses

i. Parents generally cannot recover for a childii. Generally, children can’t recover for a parent.

1. Must prove loss of support, services, love, companionship, sexual relationships, etc…

2. Boucher--Parents can’t claim loss of consortium of a child.

vi. Emotional Distress Independent of Physical Risks (pure emotional distress)1. Recovery for ED without danger—traditional areas

a. Erroneous Death Messagesb. Mishandling/mutilation of Corpses

i. Relatives can recover2. Possible Expansions of Misinformation

a. Misdiagnosis of a disease that a patient doesn’t have.i. Heiner (AIDS)--Ct didn’t recognize the claim but jurisdictions

are spilt on this.3. General Foreseeability (growing minority)

a. RULE: a cause for NIED will rise under circumstances where serious or severe ED to the was the reasonable consequence of the ’s negligent act or omission.

i. Applies standard negligence test to NIEDii. Difference from standard negligence case

1. No physical harm2. Purely emotional harm.

iii. Consequence must be reasonable foreseeable.iv. The Emotional Distress must be severe.

b. Sacco (falsely accused of theft by former employer, thus arrested)—Applies the standard negligence test to ED. A very large expansion of liability.

4. Fear of Future Injury (CA)a. Fear of Cancer/AIDS

i. RULE:1. Actual exposure as a result of the ’s breach of

duty owed to , AND2. More likely than not will get cancer

ii. Exception: if the ’s conduct amounted to oppression, fraud or malice, then the does not have to meet the “more likely than not standard”.

b. Potter (Firestone)--’s water was contaminated by toxic chemicals--fear of getting cancer. To prevail, the court holds that the must show the he was actually exposed and the fear from the Knowledge is corroborated by science—that more likely than not you will get cancer.

c. HYPO: Macy’s w/ needle in coat--Used Potter analysis but can also argue regular negligence due to the stab, then parasitic damages for the fear. (EXAM)

d. Hartwig (cleaning lady and the used needle)—A cleaning lady was stuck be a used needle in the non-medical trash. It was suspected that she may have been exposed to AIDS and Hepatitis—but not sure that the was exposed. sues for NIED.

i. Courts allow recovery but only for the period of uncertainty—until the situation is cleared.

ii. Ct didn’t follow Potter b/c P can still recover b/c P was required to live as if he had AIDS for 6 month while the tests get confirmed.

iii. Most courts would require actual exposure.

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VII. FORMS OF STICT LIABILITYa. Vicarious Liability

i. “Scope of Employment” Principle1. Control Test

a. The employer controls the action of the employee (puppet) during their period of employment.

2. Doing the Master’s Work Testa. Act done while doing the master’s work, no matter how irregular or

with disregard to instructions.b. Riviello (Chef w/knife)--D was held liable for its employee b/c the

employee was out promoting the company.3. Incident to Enterprise Theory

a. Incident to carrying on an enterprise. b. W/in scope of employment?c. Fruit (life insurance salesman at bar)

4. Going and Coming Rulea. Traditional Rule: Not in scope of employment when going to work or

going home from work.b. Exceptions:

i. Incidental Benefit1. Hinman (Policeman)--The employee was w/in the

scope of employment b/c the employer was getting a benefit when the employee was going to work. Also, the employer paid for travel expenses.

2. Faul (construction worker)--Unlike Hinman b/c the employer did not compensate for travel expenses.

ii. Special Hazards1. Argue that in going and coming, the employee has to

encounter special hazards. Distance alone is not enough.

iii. Dual Purpose Doctrine1. The employee in going and coming is serving his own

purpose, but also serving a purpose for the employer.2. HYPO: Getting shelf measurements on the way to

work and getting into a drag race.5. “Frolic and Detour”

a. The employee at work, but while there, does something for their own purpose, such as running a personal errand. At some pt, his work will not be related to employment.

b. Restatement: Re-entry does not occur until the employee is “reasonably near the authorized space and time limits” and also acting w/intent to serve the employer’s business.

6. EXAM: Argue both sides whether or not w/in scope of employment.

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7. Scope of Employmenta. DEF: furthering the employer’s interest

i. Thus, telling the employee not to do something is not enough to get it out of scope of employment.

ii. Edgewater (burned down hotel)--Employee’s smoking was merely incidental while he was engaged in the work for the employer (filling out expense report).

iii. HYPO: Postman eating lunch w/friend is still w/in scope b/c he was guarding the mail.

ii. Intentional Torts of Employees1. Lisa M Tests:

a. Foreseeabilityb. Motivating emotions

i. Motivating emotions were fairly attributable to work-related events or conditions

c. HYPO: Police raping drunk woman. Found liable b/c of his power of authority and the vulnerability of the victim.

iii. Employers who are not Masters1. “Borrowed Servants”

a. Kastner (Backhoe)--No liability b/c it is the person who “borrows” the servant that is liable, not the person who allows the “borrowing.”

2. Independent Contractora. Employer is generally not liable for the torts of an independent

contractor.b. An independent contractor is one who has control over the details.c. EXCEPTION: The employer is still liable for Non-Delegable Duties.

i. Inherently Dangerous Activities1. i.e., crop dusting. Etc.

ii. Statutory Duties1. i.e., Safety precautions 2. Employer not negligent but liable for the Independent

Contractor’s negligence.3. Employer could also be additionally negligent for

hiring the Independent Contractor but this is not an issue of vicarious liability.

iv. Other Forms of Vicarious Liability1. Partnerships

a. Each partner is treated as an agent for the other.2. Joint Enterprise

a. Elements:i. Agreement expressed or implied; and

ii. Agreement must be fore a common purpose (usually not social);

iii. Equal right of control.3. Entrustment of Vehicle

a. Lending someone your car (now covered by statute)4. Concert of Action

a. Usually applies to illegal purposes5. Family Purpose Doctrine

a. Only applies to cars only that are loaned w/in the family. Also superceded by statute.

6. Imputed Contributory Negligencea. S doing the master’s work, is negligent while driving car and hits A. A

sues M (liable under vicarious liability—prove within scope of employment and prove that S was negligent). If A was also negligent can M counter sue for damages? YES

b. Both Ways RULE: Contributory negligence is attributable to M either when M is or a .

b. Strict Liability59

i. Rylands Tests1. Mischief Test (Court)

a. S.L. if collects on the land and esapes.2. Natural /Non-natural Use Test (House of Lords)

a. S.L. if non-natural (artificial) use on the land and causes harm to another.

ii. Direct/Indirect Test (Sullivan)1. Trespass to person, like the old writ of Trespass, required direct injury.

iii. Exner Test: Ultra-hazardous Activities1. RULE: Strict Liability will be applied to Perilous activities whose risk cannot

be eliminated though due care.2. Rejects the direct injury requirement; can recover for indirect injuries as

well.iv. MODERN RULE: RST 2d--Balance of 6 Factors R.2d 614

1. The existence of a high degree of risk of harm2. The likelihood that the harm that results from it will be great3. The inability to eliminate the risk by using reasonable care4. The extent to which the activity is not a matter of common usage5. The activity’s inappropriateness to the place where it is carried on; and6. The extent to which the activity’s value to the community is outweighed by

its dangerous attributes.a. Balancing Test--Theoretically all equalb. Posner (7th Circuit)—inability to eliminate risk is the dispositive factor,

otherwise it is negligence and not Strict Liability.v. Prima Facie Case for SL

1. Proximate Causea. The Wild Animal RULE: Only liable for injuries connected with the

characteristics of the animal.i. I.e., Only strictly liable for harms that made the activity a strict

liability activity in the first place. b. HYPOS

i. Mink—Blast vibrations causes mother mink to devour young. S.L. but not the proximate cause: blasting danger from flying debris or vibrations—damage from those causes.

ii. Rifle shoots at the Dynamite Truck—Intentional Tort obviates S.L. for the dynamite.

iii. Yukon Equipment (the stolen dynamite and the covering explosion)—intervening crime does not relieve of S.L.

1. Intervening Causesa. Restatement Rule

i. D1 would still be strictly liable. It doesn’t matter it there in an intentional intervening cause as long as the harm done was the kind that made the activity subject to strict liability in the first place.

ii. However, some cts have refused to hold D1 strictly liable if D2’s intentional act is too unconnected.

iv. Stolen Dynamite—used to kill a person—No S.L. to the Dynamite Company.

vi. Defenses1. Contributory Negligence--NOT a defense

a. not charged with negligence therefore cannot be charged with negligence either.

2. Assumption of Riska. Yesb. Treat under comparative fault

3. Comparative Faulta. Contributory negligence allowed under a comparative fault regime.

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b. Allowed even though SL does not require fault.c. Products Liability

i. Liability of Chain of distribution for Physical harm caused by a defect in a product.1. Manufacturer, Distributor and Seller all liable.2. Developed in part from the concept of implied and express warranties.

ii. Types of Losses1. P.I. to user or property other that product—YES2. Economic loss from defective workmanship—NO

a. Pure economic loss, therefore under K law.b. EXCEPTION:

i. RULE—if the product because of a defect destroys itself and something or someone else, you can recover for both.

ii. If only the defective product is damaged and there is no other harm, the courts are split.

1. As long as there is physical damage, you can recover for both.

2. No, no different than not working properly.3. Component Products

a. Where the component is defective and damages the larger product, the courts are split.

i. Economic loss, therefore no S.L.ii. Could also be categorized under the Exception of a

defective product destroying another product.iii. Elements if the Prima Facie case.

1. Defect in the product2. Actual cause—injury due to defect3. Proximate cause4. Damage

iv. Manufacturing Defects (Coca-cola)1. Elements

a. The product was in fact in a defective condition, unreasonably dangerous for its intended use;

b. Such defect existed when the product left D’s control; andc. The defect was the PC of the injury sustainedd. ACe. ***NOTE: no duty and no breach analysisf. PROOF: relatively easy to prove once you establish that the defect existed

when it left the manufacturer b/c you just have to show how all the other ones work, but just not this one.

2. Foods (Mexicali Rose)a. Majority: Consumer Expectation Test (Jackson)

i. Objective test--What do the consumers expect to find when biting into it.

b. Old View: Natural/Non-natural Distinctionv. Design Defects

1. Consumer Expectation Test (Jeep Rollbar)a. Failed to perform as safely as an ordinary consumer would expect when

used in an intended or reasonably foreseeable manner.b. Has to be expectations based on everyday usage; thus no need for expert

witnesses.2. Crashworthiness Test—RULE: manufacturers are liable for harms caused by

defective products that are put to “foreseeable use”, even if unintended by the manufacturer.

3. Risk-Utility Test (Knitz): Majoritya. Like Carroll Towing, risk of inherent danger outweighs the benefits of such

designb. P can use evidence of better alternate designsc. Used for bystanders (b/c they don’t have any expectations), new products,

and products that an ordinary customer would not have an expectation b/c they don’t know enough about it.

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4. Risk-Utility with Burden Shift (Baker): Minority: CAa. Shifts the burden of proof (that the benefits of the design outweigh

the risks) to D after P shows that the injury was proximately caused by the design of the product.

5. Hindsight Negligence Test (Wilson): Odd balla. Whether a reasonably prudent manufacturer would have so designed and

sold the article in question had he known of the risk involved which injured P. Use Carroll Towing analysis.

b. Used only when there is new information. W/o the new information, it would just be a regular negligence claim.

6. Products that perform as Designed--Need for “Defect” (Bullets)a. RULE: have to prove that the product was defective, not that it was

inherently dangerous.7. Special Case of Drugs

a. R.2d 402: Unavoidably Unsafe Productsb. RULE: no design defect for prescription drugs.

i. Some products are just unavoidably unsafe.c. But can have liability under manufacturing defect and information

defect.i. If the danger/side-effects of the drug unknown, then there

wouldn’t be a information defect for failure to warn.ii. If the side effects were known then there could be a failure to

warn issue.vi. Information Defects (failure to warn)

1. Two types of warningsa. Danger--There is a risk

i. but sometimes a risk can be so obvious that it satisfies this part of the test.

b. Danger with alternatives--There is a safer alternative that the user may not know about (Liriano)

2. How cts deal with causation (AC)a. Heeding Presumption

i. If D had been given the warning, the ct presumed that P would have altered his conduct.

b. Burden Shiftsi. Shifts the burden of proof to D.

3. Location and Presentation of Warning (Smoke Detectors)a. RULE: Warning must be reasonably clear.

i. Factual content, expression or communication or in form or in mode of communication

ii. Must contain facts necessary to permit the reasonable person to understand the danger and in some cases avoid it.

iii. Must have sufficient clarity and sufficient force and intensity to convey the nature and extent of the risk to a reasonable person.

b. Warning must be clear, forceful, and convey more information than a pure negligence test.

c. Sufficiency of Warningi. Focuses entirely on what the warning says as opposed to pure

negligence cases where the focus in on what a reasonable manufacturer would do.

d. Difference b/t Negligence and S/L Warnings:i. More clearii. More information and detailiii. Need warning for lower risks than negligence (Polio Hypo)

4. When is a warning required?a. RULE: may have to warn for remote risks.

i. HYPO Polio vaccine and the 1 in a million risk—Court hold that you still have to warn—not every court would have rendered that decision.

5. Who must warn62

a. General Rule: Only need to warn the ultimate usersb. Prescription Drugs

i. Learned Intermediaries Rule:1. Only need to warn the learned intermediaries

(doctors), then the doctors as professionals, would have to warn the ultimate user.

2. Also applies to bulk goods: to those who supply goods in bulk and those who supply to sophisticated buyers.

ii. EXCEPTIONS: A duty to warn directly 1. Mass vaccinations2. Where the government requires.

6. Defensesa. Contributory Negligence

i. Minority RULE--(Bowling)1. No defense where failure to discover or to guard2. 2ndary Assumption of Risk—unreasonable--barred

ii. Majority Rule1. Under Comparative Fault

a. CA: contributory negligence can be used to lower P’s recovery under comparative fault even though theoretically there is no fault to compare since it is a S/L case.

b. Comparative Fault among si. Allowed to apportion % among s even though SL is not fault

based—(Safeway—the defective shopping cart)c. Assumption of Risk—defense under secondary.d. Rst. 3d—a warning is not sufficient to preclude an action for design

defect.e. Misuse—not really a defense but speaks to ’s Prima Facie case

i. Unforeseeable—precludes discoveryii. Foreseeable

1. negligently fails to discover defecta. Maj—comparative faultb. Min-full recovery

2. voluntarily assumes riska. Unreasonably—

i. Maj--comparative faultii. Min—no recovery

b. Reasonably—full recovery7. Who does PSL apply to—hybrid transactions

a. The essence of the Transaction test: more like a sale or more like a purchase.

b. Newmark—perm gone badc. United Blood—tainted blood

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