Civil Procedure of Tort Cases

1. Complaint2. ∆'s motion to dismiss3. ∆'s answer - deny π allegations and/or assert an affirmative defense. 4. Pre-Trial

a. Discoveryb. Motion for Summary Judgment (by the defense)

5. Triala. π and ∆ plead their case. b. ∆'s motion for directed verdict (moc. Jury instructions d. Jury verdict

6. Post-Verdict Motionsa. Motion for judgm fent notwithstanding the verdictb. Motion for new trial

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Intentional Torts

Transferred Intent: when defendant wants to commit an intentional tort against a particular individual, but ends up hurting the plaintiff, the intent is transferred from the original intended victim to the plaintiff. The ∆’s egregious state of mind in the original and intended situation transfers to the actual harm of the unintended victim.

Intent may be transferred in assault, battery, false imprisonment, trespass to land, and trespass to chattels.

Single transfer of intent: the defendant aims a single tort to person A, but ends up committing the same tort against person B.

Double transfer of intent: the defendant aims to commit a single tort against person A, but ends up committing a different tort against person B.

Punitive Damages: o Minority – Noo Majority – Yes

Damages: Nominal Damages - to vindicate the plaintiff's rights. The basis for further damages

(punitive and compensatory). Punitive Damages - to punish the ∆ and to deter future occurrence. Compensatory Damages - to put the plaintiff back into the same position before the tort

occurred. o ∆’s financial status does not mattero the act by the ∆ must be the direct cause of the π’s harm in order to recover

compensatory damages.

Battery

ROL: A volitional act by the defendant which is the cause of harmful or offensive contact, done with the intent to cause harmful or offensive contact.

1. Act by ∆2. Cause3. Harmful or offensive contact to π4. Intent

a. Knowledge testb. Purpose test

5. Cause6. Harm to π

a. Physical harm b. Nonphysical harm

1-4 = nominal and punitive damages5-6 = compensatory damages

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 1. Act by ∆2. Cause 3. Harmful or offensive contact to π

a. Harmful contact: i. Frey v. Kouf: friends at a bar. ii. Vosburg v. Putney

b. Offensive contact: offensive contact is said to occur when the contact offends a reasonable sense of personal dignity. i. Cohen v. Smith: Orthodox Jews who said the wife could not be seen unclothed

by another male. ii. Fisher v. Carrousel Motor Hotel: African American had plate smacked out of

his hand during reception. 1. Actual physical contact is not necessary to constitute battery, so long as

there is contact with clothing or an object closely identified with the body. iii. Paul v. Holbrook

 4. Intent

a. Purpose test: did the ∆ act for the purpose of causing harmful or offensive contact? i. Paul v. Holbrook: the co-worker purposefully touched Paul to cause harm

because she had told him that she did not want him touching her. b. Knowledge test: did the ∆ know that the harmful or offensive contact was

substantially certain to result?i. Frey v Kouf: ∆ had knowledge that throwing a glass in the direction of another

person would substantially result in harmful contact. ii. Cohen v. Smith

 5. Cause 6. Harm to π

a. Physical harmb. Nonphysical harm

Assault

ROL: A volitional act by the ∆ that causes the plaintiff reasonable apprehension of imminent harmful or offensive contact, done with the intent to cause the apprehension of imminent harmful or offensive contact.

1. Volitional Act by ∆2. Cause3. Reasonable apprehension of harmful or offensive contact4. Intent to cause apprehension of harmful or offensive contact

a. knowledge test

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b. porpose test5. Cause 6. Harm to π

a. Physical b. Nonphysical

1-4 = nominal and punitive damages5-6 = compensatory damages

 1. Act by ∆2. Cause3. Reasonable apprehension of harmful or offensive contact

a. This apprehension must be the type of fear normally aroused in the mind of a REASONABLE person. (Picard v. Barry Buick)

b. McCraney v. Flanagan: Crown and coke. Π must be aware in order to be put in apprehension of a harmful or offensive contact.

c. Castiglione v. Galpin: Galpin held shotgun on knee while yelling at Castiglione. There cannot be a successful claim for assault based on words alone, but there can be a successful claim if the words are coupled with the present ability to carry out the threats.

d. Words alone cannot cause apprehension4. Intent to cause apprehension of harmful or offensive contact

a. ∆ acted for the purpose of causing apprehension of harmful or offensive conductb. ∆ knew that apprehension of harmful or offensive contact was substantially certain to

occur5. Cause6. Harm to π

a. Physicali. Picard v. Barry Pontiac: in order to recover compensatory damages, the

physical injury must directly or indirectly result from the assault (or battery)b. Nonphysical

Future threats of harm: NOT an assault, but can bring about an IIED claim Conditional threat: NOT an assault because the π has a choice, BUT it becomes actionable (turns

into an assault) when the ∆ threatens excessive/more force than is reasonable under the affirmative self-help defense.

False Imprisonment

ROL: An intentional act that causes the victim to be confined or restrained to a bounded area against the plaintiff’s will, and the plaintiff knows of the confinement or is injured thereby.

1. Act by ∆

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2. Cause3. Confinement4. Intent to cause confinement (purpose test or knowledge test)

a. ∆ must intend to confine the π, orb. ∆ must know with substantial certainty that π would be confined by ∆’s actions.

5. Cause6. Harm to π (physical or non-physical)

1-4 = nominal and punitive damages5-6 = compensatory

1. Act by ∆2. Cause – was the ∆’s action the direct cause of the false imprisonment?3. Confinement

a. Physical barriersb. Physical forcec. Threat to apply physical forced. Duresse. Legal custody

4. Intent to cause confinement (purpose test or knowledge test)a. ∆ must intend to confine the π, orb. ∆ must know with substantial certainty that π would be confined by ∆’s actions.

5. Cause6. Harm to π (physical or non-physical)

An assumption is not sufficient to support a claim for false imprisonment. Herbst v. Wuennenberg – The πs never asked to leave, they just assumed that they were

unable to leave. They were never yelled at and they were not fearful that she would harm them. They also never said that they didn’t want to be there. Not a successful claim for false imprisonment.

Victim must be aware of the false imprisonment.

Trespass to Land

ROL: The intentional interference of another’s possessory interest in real estate.

1. Act by ∆2. Cause3. Interfere with π possessory interest in real estate

1. ∆ enters the land in possession of another or causes another person or thing to do so,

2. remains on the land without consent, or3. fails to remove from the land a thing which he is under a duty to remove.

4. Intent to enter land (purpose or knowledge test) (proof that the ∆ intended to enter the land)

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1. The intention required is an intention to enter upon the particular piece of land in question, irrespective of whether he knows or should know that he is not allowed to enter.

2. Jacque v. Steenberg Homes, Inc. – they knew that the land belonged to Jacques and deliberately drove on the land anyway. Nominal and punitive damages given because of the malice on the part of Steenberg Homes.

5. Cause6. Harm to land (or Emotional Distress?) (prove the diminution or fair value of the property

OR cost to repair land)1. The nominal damage award represents the recognition that actual harm has

occurred.

Mistake of fact is not a defense. Punitive damages usually not given for mistaken trespass to land because you cannot

show malice on the part of the defendant. Typical jury instruction:

o The π had ownership/law possession of the propertyo ∆ interfered with their exclusive right to possession of the property, by

entering/causing an object to enter the π’s lando ∆ intended to perform the act that amounted to the unlawful invasion of π’s

propertyo ∆ had no authority or right to do the act that amounted to the unlawful invasion of

π’s property You cannot get punitive unless you are awarded compensatory damages.

o Rational for compensatory requirement: if the individual cannot show actual harm, he or she has only a nominal interest, and society has little interest in having the unlawful, but otherwise harmless, conduct, deterred, therefore punitive damages are unnecessary.

Trespass to Chattels

ROL: Intentional interference with the π’s right of possession to the chattel.

1. Act by ∆2. Cause3. Interference with π's possessory interest in personal property 4. Intent to interfere with π's possessory interest in personal property

a. Purpose testb. Knowledge test

5. Cause6. Harm to π's personal property (physical harm; nonphysical harm in some jurisdiction)

The measure of damages is the actual diminution in its value caused by the interference.

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Conversion – Forced Sale

ROL: An intentional act by a defendant that causes the destruction of or a serious and substantial interference with the plaintiff’s chattel.

1. Act by ∆2. Cause3. Appropriation of π's personal property 4. Intent to "appropriate"

a. Purpose test: b. Knowledge test:

 5. Cause6. Appropriation of the π's personal property

a. Physical harm, nonphysical harm

The value of the goods is converted.

Intentional Infliction of Emotional Distress (I.I.E.D)

ROL: An intentional or reckless act amounting to extreme and outrageous conduct that causes the plaintiff severe emotional distress.

Act by ∆ Extreme and outrageous conduct. Conduct is so outrageous in character and so extreme in

degree as to go beyond all possible bounds of decency. Intent

Purpose Test Knowledge Test

Cause in FactProximate Cause

Direct victim πo Severe emotional distress

Indirect Victim πo Severe E.D. + C.R. + “present”o Resulting physical manifestations + not CR + “present”

Resulting Severe Emotional Distress  YOU CAN ONLY RECOVER COMPENSATORY AND PUNITIVE DAMAGES 

Extreme and outrageous conduct: the conduct should be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded

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as atrocious and utterly intolerable in a civilized community. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.

o Defendant’s conduct should be judged in the light of the effect such conduct would ordinarily have on a person of ordinary sensibilities.

Π’s particular susceptibility to emotional distress is not relevant, unless the ∆ has knowledge of the particular susceptibility.

o Defendant’s conduct should be judged in the light of the effect such conduct would ordinarily have on a person of ordinary sensibilities.

Π’s particular susceptibility to emotional distress is not relevant, unless the ∆ has knowledge of the particular susceptibility.

Different ways to determine if there is emotional distress: o If the π suffers a resulting physical injury, much more likely. o If the ∆ continues behavior that the π has asked the ∆ to stop.o Look around to see how people around the π react to the situation.

Expert testimony:o Minority – requires expert medical or scientific proof of serious mental injury.o Majority – Miller, Ca - expert testimony is not essential because other reliable

forms of evidence, including physical manifestations of distress and subjective testimony, are available.

Affirmative Defense for Intentional Torts

Consent

ROL: One who effectively consents to conduct of another intended to invade his interests cannot recover in an action of tort for the conduct or for harm resulting from it.

Types of Consent?Express - verbally or in writing

Conditional Consent: Ashcraft v. King: Daisy's mom gave conditional consent for the surgery, so long as they only used family blood.

Implied by Fact The ∆ believes, under the surrounding circumstances, the π gave them consent, even

though it was not verbal. Implied by Law - emergency doctrine in Shine v. Vega

Shine v. Vega: Catherine had asthma and the doctor said he had consent to treat her because it was a medical emergency. Doctor lost.

A patient's refusal of treatment can never be overridden by "consent in law" If, and only if, the patient is unconscious or otherwise incapable of giving consent,

and either time or circumstances do not permit the physician to obtain the consent of a family member, may the physician presume that the patient, if competent, would consent to life-saving medical treatment.

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 Terms of Consent?Did ∆ comply with the term of consent? Yes or No Was Consent Void?

1. πs consent was obtained by fraud or duress?2. Consent by a mentally incompetent π?3. Consent by a immature minor?

a. Rule of 7’s1. 1-6: incompetent2. 7-13: presumed incompetent3. 14-18 [21]: presumed competent4. Capacity exists when the minor has the ability of the average person to

understand and weigh the risks and benefits. 4. Consent to an illegal act

a. Majority rule: consent is void (∆ cannot successfully claim an affirmative defense because you cannot consent to an illegal act)

1. Policy reason: you don’t want people to be allowed to make contracts between private parties to break or ignore the law.

b. Minority rule: consent is valid c. Restatement: consent is valid unless criminal law protects π’s class

The assumption of the risk doctrine is the equivalent of consent.

Self-Help Defenses for Intentional Torts

Defense of Property

ROL: A defendant is permitted to use reasonable force to prevent a plaintiff from committing a tort against the defendant’s property.

1. Necessity?Trespass by π?∆ demanded that they leave? (unless demand would be futile)AND ∆ reasonably believed force was necessary?

2. Reasonable Force?Comparable force, but NOT death or serious bodily harm. Can depend on age, size, etc. of π and ∆.

Maddran v. Mullendore – old lady who refuses to let meat workers pass through easement. As long as ∆ does not act maliciously, they can use reasonable force to protect their

possessory interest in their property.

Vancherie – restaurant owner beats up a sailor with a club.

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The amount of force used by the restaurant owner was not a reasonable amount of force.

Self-Defense

ROL: An actor may use reasonable force to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him.

Necessity?Assault, Battery, False Imprisonment by π?[Duty to retreat?]∆ reasonably believed force was necessary?

(Fear must be subjective AND objective)

Reasonable Force?Comparable, including death or serious bodily harm.Depends on age, gender, size, etc. of π and ∆

Detailed Self-Defense

Necessity?Assault, Battery, False Imprisonment by π?[Duty to retreat?]

o A ∆, in their own dwelling place or place of business, where he has a right to be, is not required to retreat in the face of a threatened assault in order to be able to plead self-defense

∆ reasonably believed force was necessary? (Subjective and objective standard)

Reasonable Force?Comparable, including death or serious bodily harm.Depends on age, gender, size, etc. of π and ∆

o Use of a deadly weapon is authorized if the conduct of the trespasser under all the circumstances is such as to produce in the mind of a person of reasonable prudence and courage an apprehension of assault involving serious bodily harm.

o Words alone do not justify the use of deadly force, but such words, if accompanied by an actual offer of physical violence reasonably warranting fear of serious bodily harm, may be an integral part of a plea of self-defense.

∆ cannot have a successful self-defense claim if they are at fault in provoking the difficulty.

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Defense of Others

ROL: An actor may use reasonable force to protect another from harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon a third party.

Prima Facie: Necessity?

A, B, FI, by π to “other”?[duty to retreat?]∆ reasonably believed force was necessary?

1. From “others” perspective; or2. From ∆’s perspective *

Reasonable Force?Comparable, including death or serious bodily harm. Depends on age, size, etc. of

1. π and “other”; or2. π and ∆ *

Detailed Necessity?

A, B, FI, by π to “other”?[duty to retreat?]∆ reasonably believed force was necessary?

1. From “others” perspective (traditional rule); or2. From ∆’s perspective (modern rule) *

The ∆ must have a well grounded belief that the assault is about to be committed on another family member.

The necessity of the defense must be immediate...attacks made in the past, or threats for the future, will not justify defense-of-others.

Reasonable Force?Comparable, including death or serious bodily harm. Depends on age, size, etc. of

1. π and “other”; or2. π and ∆ (modern rule)*

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Felony Arrest

ROL:

Necessity?Felony by π (A, B, FI, Trespass to L or C, or Conversion)Did the ∆ have reasonable cause to believe it was a felony? (Was the ∆ present at the time

of the felony?)Did the ∆ reasonably believe that force was necessary?

Reasonable Force?Comparable

Felony of minor violence not death or serious bodily harmFelony of major violence including death or serious bodily harm

Intentional Torts and Strategic Considerations

Intent and Bankruptcy A judgment for wilful and malicious injury is non-dischargeable in bankruptcy. Specific intent: π must prove that ∆ intended the precise injury that occurred. (vs.

purpose, where π must prove that ∆ intended the act that caused the injury)

Intent and Children Punitive damages are generally not recoverable against an immature minor unless you

can show that they are mature. Common Law:

o 1-6: No liabilityo 7-13: Presumed not liableo 14-17 (21): Presumed liable

Parental Vicarious Liability A parent can be held vicariously liable for their child’s intentional tort of which their

insurance policy could pay out. Public Policy: to encourage parents to deter their children from such conduct in the

future.

Workers Compensation

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A π can bring a cause of action for injuries sustained on the job and workers’ compensation will cover the injuries as long as the π was acting within the scope of employment.

If the injury is covered by workers’ compensation, you cannot bring a tort claim against the employer.

Employer Vicarious Liability An employer may be held vicariously liable for both the intentional and negligent acts of

an employee that is committed within the scope of employment ( § 219). The defendant servant has to be doing the job that he is hired to do and must do it within those time and space limits (§ 228). If the servant commits an intentional tort, the master is liable if they could foresee it (§ 228 (d)).

§ 228. General Statement

(1) Conduct of a servant is within the scope of employment if, but only if:

(a) it is of the kind he is employed to perform;(b) it occurs substantially within the authorized time and space limits;(c) it is actuated, at least in part, by a purpose to serve the master, and(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.

(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

Ira S. Bushy Test – broad foresight test. Can the employer foresee that this could happen within the scope of employment? Three factors – assurance of compensation, deterrence, loss spreading.

o Mary M. - broado Lisa M. – ultrasound technician. Deterrence is not a factor if it is not foreseeable.

Restatement §228 o LA (Majority) – supervisor who stabs fired employee.

The fight was reasonably incidental to the performance of the supervisor’s duties in connection with firing the employee, it occurred on employment premises and during the hours of employment.

o Maine (Minority) – road rage employee. ignores “at least in part,” act must be motivated by a purpose to serve the master.

§ 219 (d): The ∆ was aided in accomplishing the tort by the existence of the agency relation.

o Costos v. Coconut Island Corp. – employee used his access to key cards to gain access to a hotel room and rape the π

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A.D.A (Abnormally Dangerous Activity) – Strict Liability

ROL: A person is strictly liable for any damages that result from their abnormally dangerous activity.

A) Act by the ∆B) Abnormally dangerous activity (Second Restatement)

1) High degree of risk2) Great gravity of harm3) Risk can not be eliminated4) Not a matter of common usage5) Location is inappropriate 6) Value to community

C) Cause in factD) Proximate cause (“scope of the risk test,” “foreseeability test”)E) Harm to π Compensatory damages ONLY for physical harm, cannot recover damages

for emotion/psychological harm.

Second Restatement – majority rule Restatement Third – minority rule

o High degree of risko Great gravity of harmo Risk cannot be eliminatedo Not a matter of common usage

A.D.A is an AND-factor test, #1-6 must be proven for majority. o #1-4 must be proven for minority

Activities that are usually always A.D.A:o Explosiveso Blasting o Crop dustingo Storage of highly explosive gas vapors o Storing of nuclear waste or nuclear bombs

Strategic considerations: o Strict liability is covered by liability insurance policies. o Punitive damages are not available.

Wild or Vicious Domesticated Animals – Strict Liability

ROL: A person is strictly liable for any damages inflicted by their wild or vicious domesticated animal.

A) Act by ∆

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B) ∆ is in possession of a wild or vicious domesticated animalC) Cause in factD) Proximate causeE) Harm to π – Compensatory damages only

Strategic Considerations Chart

Tests of Intent Punitive Damages

Dischargeable in Bankruptcy

Liability Insurance Coverage

Parental Vicarious Liability (wilfull/malicious)

Minority Majority Minority Majority Specific Intent Yes Yes No No No YesPurpose Test Yes Yes No Yes No YesKnowledge Test No Yes No Yes No Yes

Transferred Intent

No Yes Not? Yes Yes? Yes?

ADA No No Yes Yes YesWild Animal No No Yes Yes YesNON-INTENTIONALSubjective Recklessness

Yes Yes Yes – but drunk driving is not dischargeable

Yes Yes Yes – if defendant knew of the risk

Objective Recklessness

No No Yes Yes Yes Yes??

Negligence No No Yes Yes Yes NoStrict Liability No No Yes Yes Yes No

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Negligence ROL: Failure to exercise the care that a reasonably prudent person would exercise in a similar situation. A breach of duty that is the actual and proximate cause of the plaintiff’s injury.

Prima Facie: Act by ∆Negligent Act

a) NPS or Reasonable Person Standardb) Dutyc) Breach

Cause in FactProximate CauseHarm to π

Strategic Considerations: No punitive damages It is dischargeable in bankruptcy Covered by liability insurance Not a wanton or malicious act, so usually not parental vicarious liability

Negligence Per Se (majority) v. Evidence of Negligence Per Se (minority)

ROL:

Negligent Act Duty: Duty to comply with a criminal safety statute

Breach: o Judge’s Question – Is the statute applicable?

Is the statute a safety statute? Is it applicable to the π? Is a violation of the statute excused? Did the ∆ prove that the ∆ did not violate the statute?

o Jury’s Questions – If you find the ∆ violated the safety statute, then you must find that the ∆

committed a negligent act. (majority) Note: if the violation of the safety statute is only “evidence” of negligence,

then the jury may find that the ∆ committed a negligent act. (minority)Cause in FactProximate CauseHarm to the Plaintiff

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Reasons a ∆ is excused from following a safety statute: The violation is reasonable because of the actor’s childhood, physical disability, or

physical incapacitation He neither knows nor should know of the occasion for compliance He is unable after reasonable diligence or care to comply He is confronted by an emergency not due to his own misconduct. Compliance would involve a greater risk of harm to the actor or to others.

READ NOTE ON PAGE 457.

Reasonable Person

1. Objective Standard: 2. Physical and Mental Characteristics:

a. Minor Children: (1) A child is held to the standard of a reasonable person of the same age,

intelligence, and experience, UNLESS the child is engaged in an adult activity.

(2) A child under the age of 5 is incapable of negligence. (a) Dangerous activity that is characteristically undertaken by adults

(Restatement)A) Driving a car, dirt bike, snowmobile, anything with a

motor.b. Physically Disabled Persons: You do attribute their physical disability to a

reasonable person standard. (1) What would a reasonable blind person do in the same or similar situation?

c. Mentally Disabled Persons: We do not attribute mental illness to a reasonable person standard.

(1) It would be difficult to have a “reasonable crazy person standard.” (2) Exception: Alzheimer patients. They have no duty to anyone, so long as

they are institutionalized. d. Sudden Physical Impairment:

(1) Epilepsy – first time is a pass, but once you have knowledge of the impairment you are responsible for acting how a reasonable person with knowledge of that impairment would act.

(2) Heart attack, seizure, etc...usually not liable. 3. Custom: 4. Emergencies: A person who, through no fault of their own, is placed in a sudden

emergency, is not chargeable with negligence if the person exercises a degree of care which a reasonably careful person would have exercised under the same or similar circumstances.

Duty

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I. Duty of Reasonable Care: a. Defendant has a duty to do what a reasonable _____ person would do under

_____ circumstances. i. If ∆ has superior knowledge, they must be compared to what a person with

that superior knowledge would do in a similar circumstance.

II. NO Duty:a. ∆ is a child under 5 (or 7)b. ∆ is suddenly disabledc. ∆ is an (institutionalized) Alzheimer patientd. π is a trespasser e. For Acts of Nonfeasance, UNLESS:

∆ undertakes rescue voluntarily ∆ is the cause-in-fact of π’s harm ∆ is a “social companion” of the π ∆ has a duty to protect the π ∆ has a duty to control a third person, so as to protect third parties

III. Limited Duty (Landowner and/or occupier) – π is a licensee.IV. Duty of Reasonable Care (LO &/or O) – π is an invitee.

Duty to Protect the Plaintiff: (employees, patrons, o Rule: Although business owners are not the insurers of their patrons’ safety, they

do have a duty to implement reasonable measures to protect their patrons from criminal acts when those acts are foreseeable. (GENERALLY there is no duty to protect others from the criminal activities of third persons.

Duty to Control a Third Person Parental Supervision:o Restatement:

Parents have a duty to exercise reasonable care so to control one’s minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent:

Knows or has reason to know that he has the ability to control his child, and

Knows or should know of the necessity and opportunity for exercising such control.

The duty to take reasonable measures to control the child arises when the parent knows or should know of the need to control the child and has both the ability and the opportunity.

o To determine whether the parents acted reasonably: The appropriateness of the parent’s response to specific acts of prior

violence The reasonableness of subsequent general efforts to control the child

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Whether the parents should have foreseen the need to prevent the specific incident at issue

The reasonableness of the parent’s efforts to do so. Employer’s Duty to Control a Third Person:

o A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if

The servant is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant or the servant is using a chattel of the master, and

The master knows or has reason to know that he has the ability to control his servant, and knows or has reason to know of the necessity and opportunity for exercising such control.

Medical Malpractice - Doctors Duty to Disclose to Patients: o Doctors have a duty to disclose all pertinent information regarding available

choices with respect to proposed therapy and the dangers inherently and potentially involved in each.

A patient is denied the opportunity to weigh the risks when there is an emergency, or when the patient is a child or incompetent.

o Doctors do not have a duty to disclose relatively minor risks inherent in common procedures, when it is common knowledge that such rusks inherent in the procedure are of very low incidence.

o The test is an objective one: what would a prudent person in the patient’s position have decided if adequately informed of all significant perils.

Medical Malpractice – Doctors Duty of Care to Patients: o Doctors are under a duty to use the degree of care and skill that is expected of a

reasonably competent practitioner in the same class to which he or she belongs, acting in the same or similar circumstances.

Any doctor with knowledge or familiarity with the procedure, acquired through experience, observation, association, or education, is competent to testify concerning the requisite standard of care and whether the care in any given case deviated from that standard.

Negligence Liability of Landowners and Occupiers (Duty to πs)

Historical Rule Modern Rule(Minority)

Modified Modern Rule (Majority)

Π Trespasser ∆ owes no duty (assumption of the risk doctrine)

∆ owes a duty of a reasonable person

∆ owes no duty

Π Licensee(on premise w/ permissions, social guest)

∆ owes no duty OR ∆ owes duty to warn or to make safe as to known dangers

∆ owes a duty of reasonable care

∆ owes a duty of reasonable care

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Π Invitee ∆ owes ordinary duty of reasonable care

∆ owes a duty of reasonable care

∆ owes a duty of reasonable care

Child Trespasser – p 478

You are converted from a licensee to an invitee when you bring/give material benefit to the homeowner.

You are presumed to be a trespasser until you can prove you have permission to be on the land.

If the trespasser is committing a crime, then the trespasser is owed no duty of care.

Unreasonable Risk of Harm: P must show that D’s conduct imposed an unreasonable risk of harm.

o One of the ways the risk of conduct can be reduced is by giving adequate warnings of danger. If D fails to give a warning of a danger that he knows about, and the warning could have easily been given, the mere failure to warn can itself constitute negligence.

Breach

Did the ∆ do what a reasonable _____ person would do under a _____ circumstances?

Judge’s Questions: (1) Was there a foreseeable chance of harm? (∆ knew or should have known)(2) Was there an unreasonable risk of harm? (Magnitude of the risk outweighs utility

of ∆’s conduct)(a) Likelihood of harm and gravity of harm, vs. (b) Cost of precautions and [utility of ∆’s conduct]

(3) NOTE: custom is evidence relevant to the judge’s questions Middelton v. Reglolds Metal: the cost of putting up a plastic bottle was

next to nothing. The ∆ should have known of the risk because they had done this many times before.

Jury’s Questions: (1) Did ∆ do what a reasonable _____ person would have done under _____

circumstances? (2) NOTE: custom is evidence of negligence

Custom: o A ∆ can use the custom as a defense for negligence, to show that they were not

being negligent.

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o Just because there is a custom does not mean that is enough to excuse negligence, the custom may not be to the standard of what a reasonable person should have done.

T.J. Hooper – the steamboats did not have radios, and it was not custom for the boats to have radios. The judge said that the custom wasn’t enough, a reasonable person should have had a radio on their boat.

Determining when a crime is foreseeable: Specific Harm Rule: Landowners do not owe a duty to protect patrons

from the violent acts of third parties unless they are aware of specific, imminent harm about to befall them.

Prior Similar Incidents Test: Foreseeability is established by evidence of previous crimes on or near the premises.

Totality of the Circumstances Test: Takes additional factors into account, such as the nature, condition, and location of the land, as well as any other relevant factual circumstances bearing on foreseeability.

Focuses on the level of crime in the surrounding area. Tends to place a greater duty on business owners to foresee the risk of criminal attacks on their property.

Balancing Test: In determining the duty that exists, the foreseeability of harm and the gravity of harm must be balanced against the commensurate burden imposed on the business to protect against the harm. The greater the foreseeability and gravity of harm, the greater the duty of care that will be imposed on the business.

Causation

Cause-In-Fact

But-For Test: Had ∆ not acted negligently, π’s injuries would not have resulted. Substantial Factor Test: Was ∆’s conduct a substantial factor in the harm caused?

Proximate Cause

ROL: The general rule is that the defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. (foreseeability)

Tests: Policy Test: Open to any policy arguments to show ∆’s conduct was a proximate cause

of the harm to π. Direct Consequences Test (Derderian): Was there a direct connection between the act

and the harm, without too many intervening causes?

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Foresight Test (Palsgraf. If π is too far out, not proximate cause): By the exercise of prudent foresight, could the result/harm be foreseen?

o A defendant owes a duty of care only to those who are in the reasonably foreseeable zone of danger.

Scope of the Risk Test: was the π’s injury within the scope of the risk?o An actor is negligent if he ignores foreseeable risks. o Is the risk that caused the harm one that the ∆ could have anticipated when he

committed the negligent act?

Precedents – Foreseeable/Unforeseeable Intervening Forces: (∆ will be liable) (1) Π is rescuer of ∆

(a) Wagner v. International RY Co.: The wrong that imperils the life of the victim is also a wrong to the rescuer.

(2) Subsequent medical treatment to π(a) Weems v. Hy-Vee Food Stores: A tortfeasor is responsible for injuries which

result from his or her negligence, including subsequent medical treatment needed as a result of the injury.

(b) In order for an intervening act to become a superseding cause, it must not have been a normal consequence of the original tortfeasor’s acts or must not have been reasonably foreseeable.

(3) Π is an eggshell π(a) ∆ takes the π as he finds him; if π, unbeknownst to ∆, is more susceptible to

injury than the average person, ∆ is still liable for all injuries that result from the negligent act.

(4) Π is a direct victim of E.D. and(a) Π has resulting physical manifestation of E.D., or(b) π has serious E.D.

Superseding cause: An unforeseeable, intervening cause that breaks the chain of causation between the initial wrongful act and the ultimate injury, and thus relieves the original tortfeasor of any further liability.

o Ex. Criminal acts and intentional torts of third parties, but only where they are unforeseeable under the facts or circumstances.

o Unforeseeable, naturally occurring phenomena.

Policy Test: Does it seem right to hold the ∆ responsible? Where they too far away? Etc.

Recklessness

ROL: When the defendant’s breach of duty for reasonable care under the circumstances results in the plaintiff’s injuries.

Act by ∆o Reckless Act

Duty

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Duty of reasonable care - ∆ had duty to do what a reasonable ____ would have done under ____ circumstances.

Breach Judges Question

o Highly foreseeable risk of harm? (∆ knew or really should have know the risk of harm)

o Highly unreasonable risk of harm? High likelihood? High gravity? VS Cost of precautions? Value of ∆’s conduct to the

community? Jury’s Question

o Did ∆ do what a reasonable ____ person would have done under ____ circumstances?

Cause in fact Proximate cause Harm to π – physical harm

o If π has emotional distress, then R.I.E.D. is proper claim.o If the π wants to recover punitive damages, the π must prove that the ∆ knowingly

created a chance or harm or knew that there was a chance of harm.

Subjective recklessness - ∆ knew of risko Best strategic consideration because you have access to punitive damages and

liability insurance. Objective recklessness - ∆ should have know of the risk Strategic Considerations:

o If the π wants to recover punitive damages they must prove that the ∆ knew that there was a chance of harm.

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NIED (Negligent Infliction of Emotional Distress)

ROL:

Act by ∆Negligent Act

Cause in FactProximate Cause

i) Direct Victim(1) Physical impact to π (N.Y.) (Mitchell), or (2) Π has resulting physical manifestation (RPM) (N.Y. w/ exceptions) (Battalla), or

(a) EXCEPTIONS: mishandling of a corpse (Johnson)(3) Π has serious E.D. (CA) (Moliene) – no physical manifestations necessary

ii) Indirect Victim(1) Π was in the zone of danger (AMAYA), or(2) Π has RPM and closely relates to victim (CR) and is “near” (Dillon), or(3) Π has serious E.D. and closely related to the victim and “present” (Thing)

Harm to π

E.D. Damages = Compensatory

RIED (Reckless Infliction of Emotional Distress)

ROL:

Act by ∆Reckless Act

Cause in FactProximate Cause

i) Direct π(1) Severe E.D.

ii) Indirect π(1) Severe E.D. and closely related and “present”(2) Resulting physical manifestations and not closely related and “present”

Harm to π

E.D. Damages = Compensatory and Punitive

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Affirmative Defenses to Recklessness and Negligence Traditional affirmative defenses barred the π from recovery. Modern jurisdictions have adopted comparative fault, which allows the π to still recover,

but reduces the amount they are able to recover.

Contributory Negligence

ROL:

Act by πNegligent Act by π or CNPS (Contributory Negligence Per Se)

Duty – π knew or should have known of risk of harmBreach – π acted unreasonably

Cause in FactProximate CauseHarm to π

Duty in Contributory Negligence Per Se: 1) Is this a safety statute?2) Is it a safety statute designed to protect the class of people to which the π belonged?3) Did the π suffer the type of harm that the statute aimed to prevent?4) Is the π excused?

Telda v. Ellman: Not following the safety statute to walk against traffic. Excused from following the statute because walking against traffic at the time would have been more dangerous, which was what the statute was trying to prevent to begin with.

Impact of Comparative Fault on C.N.:(1) Bars recovery, OR(2) Reduces recovery

(a) Pure comparative fault – opens up the ability to recover for every π who is C.N. up to 99%

(b) Modified Comparative Fault:(i) 50% bar – π is able to recover so long as they are not above 49% at fault. (ii) 51% bar – π is able to recover, even if they are equally at fault as the ∆, so

long as they are not more at fault.

Contributory Recklessness

ROL:

Act by πReckless Act by π

Duty

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BreachCause in FactProximate CauseHarm to π

NO SUCH THING as contributory recklessness per se

Coleman v. Hines: π was drinking with ∆ and knew that ∆ was drunk. Π was contributory reckless when they got in the car with the ∆, even after the π had been offered a ride by her sober employer.

Assumption of the Risk

Express A.R.: π consented to the the negligent act. Recovery is barred. Tunkl formula for determining whether an exculpatory agreement violates public policy

an agreement is invalid if it exhibits some or all of the following characteristics: o It concerns a business of a type generally thought suitable for public regulation.o The party seeking exculpation is engaged in performing a service of great

importance to the public, which is often a matter of practical necessity for some members of the public.

Examples: hospitals, schools, housing (public and private), public utilities. Does NOT apply to health clubs, spas, recreational sports, sky diving, etc.

because they do not provide essential services and do not fall within the categories that implicate public interest concerns.

o The party holds itself out as willing to perform this service for any member of the public who seeks it, or any member coming within certain established standards.

o The business has an advantage of bargaining power against any member of the public seeking its services.

o As a result of their superior bargaining power, the business does not give the purchases an option to negotiate (either they sign the form, or they don’t receive treatment)

o As a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or the seller’s agents.

Implied A.R: π knew of the risk of harm AND π acted voluntarily.

Impact of Comparative Fault on Implied A.R.: Π knew of the risk of harm and acted reasonably go to “no duty” under ∆’s negligent

act. (also known as primary assumption of the risk) Π knew of the risk of harm and acted unreasonably go to contributory negligence

under comparative fault. (a.k.a. secondary assumption of the risk).

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Products Liability

ROL: One who sells any product in a defective condition to the user or consumer is subject to liability for physical harm thereby caused to the ultimate user.

Act by ∆Defective Product

1. “Defect” (CA) (Minority) (Cronin) (pro π)2. Defective + Unreasonably Dangerous (Majority) (R/T2d. § 402 (a)) (pro ∆)3. Ordinary Consumer Test (CA + R/T2d.) (design defects only) if NO then go to Barker

Test4. Barker Test (CA) (puts burden of proof on ∆) (design defects only)

Cause in FactProximate CauseHarm to π

Anyone in the chain of distribution can be a ∆ in a products liability case – the manufacturer, the wholesaler, or the retailer.

Policy For Products Liability: Deterring manufactures from selling defective products. Πs are in need of more protection. It is very difficult for a π in a products liability case to

prove negligence. ∆ will spread the loss among consumers by ∆ raising the prices of products. Manufacturers can afford the protection.

Manufacture Defect: When a product is manufactured and comes out different then the other products. (“Deviation from the norm” test)

Restatement of Torts § 402 (a): one who sells any product in a defective conditions unreasonably dangerous to the use is subject to liability for physical harm thereby caused to the ultimate user or consumer, if

o The seller is engaged in the business of selling such a product, ando It is expected and does reach the user or consumer without substantial change in

the condition in which it is sold.

Design Defect: A product is manufactured as the manufacture intended, but that still presents a danger of personal injury or property damage to the π.

Ordinary Consumer Test: The π must prove that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. If π can prove this, they win. If π does not satisfy the ordinary consumer test Barker Test

Barker Test: balances the danger the design threatens with the utility to society. o If the π can prove that the product’s design was the proximate cause of the injury,

the ∆ must prove that, on balance, the benefits of the challenged design outweigh6

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the risk of danger inherent in such design. (If the ∆ cannot prove that, then the π is able to recover).

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