TORTS 1 OUTLINE. Bernabe

I. Introduction A. Torts, the goals of tort law and the theories of liability

1. Introduction p1-42. Brown v. Kendall p6-10:

-Dogs fighting. -Introduces concept of negligence, tort law no longer JUST intentional actions.-Plaintiff has burden of proving that Defendant’s conduct negligent. Defendant’s conduct that which must be evaluated.

3. Spano v. Perini p13-15-NYC Blasting; force causes damage to Plaintiff’s garage.-Neither Intentional Tort, nor Negligence, but…-STRICT LIABILITY: LIABILITY WITHOUT FAULT

4. Note 3, p.155. Abraham 1-20

B, The concept of damages1. Introduction p5192. Notes 1-4 p519-5203. Notes 5-27 p531-5394. Notes 1 & 3 p547-5485. Damages to property p548-5506. Punitive damages p550-551; Notes 3 & 7 p562-5637. Chemerinsky online

II. Liability for damages caused by intentional conductA. The concept of intent

- Intent: underlying common element of all intentional torts. If plaintiff wants to claim an intentional tort, must prove that defendant’s act was volitional.- Intent proven in 2 ways.

(1) Willful purpose: Defendant must have desired to cause some physical or mental effect on Plaintiff.(2) Substantial Certainty: Defendant knew ‘with substantial certainty’ that tortious event would result from his conduct.

1. Substantial Certainty-Garratt v. Dailey p17-20

- kid pulled chair out from babysitter, causing her injury. Jury found that kid did not mean harm.

-Issue: Can Plaintiff bring cause of action for an intentional tort when she cannot prove the intent to harm?-Holding: YES. If Defendant acted with SUBSTANTIAL CERTAINTY that pulling the chair would result in Plaintiff falling, satisfies element of intent.

- DEF’s desire to harm different from DEF’s desire to cause prohibited contact. Both satisfy intent.

2. Transferred Intent-Talmage v. Smith p28-29-Defendant threw stick at direction of a boy who was on his roof, missed him, but hit another boy who was out of DEF’s sight, unaware he was there.- Issue: Whether element of intent is satisfied when Defendant’s conduct was not against the Plaintiff but against someone else.-Holding: YES. Doctrine of Transferred Intent; a Defendant acting with the intent required to establish liability for an intentional tort to one person will be liable to some other person with whom the DEF did not mean to be involved if the DEF’s actions affect that other person. -can transfer intent between 5 intentional torts (Battery, assault, false imprisonment, trespass to land, trespass to chattels).

3. Understanding Torts 2-6 (recommended)

B. Some examples of causes of action based on intentional conduct1. Battery: 4 ELEMENTS

1-Volitional Act,2-INTENT: with intent to cause a contact with another person that is harmful or offensive,3-CAUSATION: causes such a contact directly or indirectly,4-INJURY: the contact is either harmful or offensive

-offensive contact=contrary to a reasonable sense of dignity.

Types of Touching that Constitute Battery- Unconsented.- Objective standard for offensiveness: brushing by someone on the El vs.

grabbing someone’s ass on the El- Touching something other than Plaintiff’s body: When Defendant touches

Plaintiff with an object, when DEF causes PTF to come into contact with something (like the ground), or when DEF touches something intimately associated with PTF, ie what the PTF is touching.

- Fisher v Carrousel Motor Hotel p35-36: Black guy at a conference, employee grabs plate away from him and calls him an offensive racist term-Issue: Whether Plaintiff can bring a cause of action for battery when DEF does not contact the person directly, but rather touches an object that Plaintiff is holding.-Holding: YES. Indirect contact satisfies contact element so long as it is offensive or harmful.

d. Understanding Torts p6-9 (rec’d)f. A note on “vicarious liability”- Definition: in some circumstances, a non-negligent person must pay for consequences of others’s actions. Why? Most times when the one doing the act is employee.

1)Best Torts Roadmap 2) Abraham p190-192

2. Assault: Interest protected: emotional well-being, protect against fear.-3 ELEMENTS of Assault.

1-VOLUNTARY Act: DEF willfully and voluntarily acts;2-INTENT: to cause Plaintiff to expect imminent apprehension of harmful or offensive contact,

-Intent required for assault is to make PTF feel fear, expectation, or apprehension.- Different from intending to touch PTF.

3-CAUSATION: Causes such apprehension either directly or indirectly.-Threat must be immediate to satisfy intent for assault.- DEF’s Capability: must seem capable of fulfilling the threat. PTF must have reasonable belief that DEF will carry out threat.

-Western Union Telegraph v. Hill p37-39: Clock repairman drinking, said wanted to ‘pet’ her, reached at woman customer across counter top, she recoiled. -Issue: Whether it must be shown that DEF capable of committing battery to satisfy reasonable apprehension-Holding: YES. For there to be reasonable apprehension, must prove that DEF. capable of fulfilling threat.

b. Notes 4 & 7 p39c. Understanding Torts p9-14 (rec’d)

3. Intentional infliction of emotional distress: 4 Elements1-Intentional or Reckless Act

-Intentional: PTF must prove that DEF intended to cause emotional distress by conduct.-Reckless: Deliberate disregard of a high degree of probability that an injury will result.

2-Extreme and Outrageous Act-Outrageous: Beyond what’s tolerable in society.

3-Causation between Act and…4-Plaintiff to feel severe emotional or mental distress

- used to have to manifest self physically, not so much anymore-so severe that no reasonable person can be expected to endure.

-. Harris v. Jones p57-60: DEF is boss, makes fun of PTF for having stuttering problem. PTF says aggravated stuttering problem.Issue/Holding: DEF’s conduct did NOT satisfy elements of IIED; #3 and #4 not satisfied. All 4 Elements must be met to make prima facie case. b. Notes 1 & 2 p56-57c. Note 10 p63-64-Note: NOT a tort that qualifies for transferred intent.

d. Taylor v. Vallelunga p64-65: daughter witnesses father get beaten, unbeknownst to the DEFs. -Issue: Whether PTF can support cause of action for Intentional Infliction of Emotional Distress when cannot prove that DEF knew she was present during act of beating, nor could she prove that they knew of father-daughter relationship at time of beating.-Holding: NO. PTF needs to prove INTENT; prove intent by proving that DEFs knew she was present and knew of familial relationship.

e. Understanding Torts p21-28 (rec’d)

4. False imprisonment: 4 ELEMENTS1-VOLITIONAL Act2-INTENT: to confine person within boundaries set by Defendant3-CAUSATION: person is confined4-AWARENESS: Plaintiff aware of own confinement.

a. Big Town Nursing Home v. Newman p40-41: Man kept in nursing home against his will for several days, kept with crazies. -Holding: YES, Confinement against PTF’s will=False Imprisonment.

b. Parvi v. City of Kingston p42-44: Cops took a drunk to a city golf course, so he could walk it off. PTF does not recall all details, due to intoxication.Issue: Whether lack of recollection is same as lack of awareness.Holding: NO. PTF can bring cause of action for false imprisonment, because even if does not recall, he was aware AT THE TIME of confinement (However, with lack of recollection, difficult to prove)

c. Understanding Torts p14-18 (rec’d)

5. False Arrest: type of False Imprisonment; -Enright v. Groves p46-48: Cop arrested woman for not producing her ID after saw her dog running without leash in the park.-Issue/Holding: if placing under arrest, must be for an actual violation.

6. Causes of action based on the interference with property rightsa. Trespass to chattels and conversion-Trespass to Chattels: 3 Elements:

1-Volitional Act2-INTENT to cause an interference with Plaintiff’s chattel.3-CAUSES or interference directly or indirectly.

1) Glidden v. Szybiak p75-76: Little girl played with DEF’s dog, dog bit her. DEF said she trespassed on chattel, preventing girl to sue for negligence.

Issue: whether Little Girl’s engaging dog can be called trespass on chattel, which would excuse the dog biting her.Holding: NO. Dog not in danger. In order to show little girl was trespassing, she must’ve *impaired chattel’s condition, quality, value*. Otherwise, no Trespass to Chattel.

-CONVERSION: 3 Elements:1-Volitional Act2-INTENT to cause interference with PTF’s chattel,3-CAUSES destruction or serious interference with chattel directly or indirectly.

3) Restatement Torts 222A p85-86: What Constitutes Conversion: intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be

required to pay the other the full value of the chattel. Important factorsextent and duration of dominion or control, actor’s intent to control inconsistent of other’s right to control, actor’s good faith, harm done to chattel, inconvenience and expense to other.

4) Restatement Torts 223 p86: Ways of committing Conversion-acquiring possession, ie stealing chattel-damaging or altering chattel, ie intentionally breaking-using chattel, ie -receiving chattel, ie purchasing a stolen chattel-disposing of chattel-misdelivering chattel, ie delivering it to wrong person-refusing to surrender chattel

Pearson v. Dodd p81-84: Sen. Dodd’s ex-employees took files after hours, gave to journos to make copies, then returned. Journos then used info to write stories.-Issue: Whether Sen. Dodd can bring a cause of action for Conversion when DEF/journos used info from the Xeroxed docs that were returned without Sen. Dodd knowing that they were even gone.-Holding: NO. a) Sen. Dodd was NOT substantially deprived of his property (docs), since they were returned without his knowing they were gone, thus not inconvenienced by the docs absence. And b) the info from the docs that was used in the newspaper not for monetary gain, invention, commerce; thus info does not qualify as something that can be converted. No real monetary value to the info on docs, so there is no remedy Court can give to PTF.

**NOTE on Conversion and Trespass to Chattels. When figuring which cause of action, factors are 1-extent of contact, and 2-duration of contact. DIFFS:*Trespass to chattelMinor interference with PTF’s property. Remedysmall.*ConversionDEF inflicts significant harm to PTF’s interest in his property. RemedyFair market value of item that was converted, ie taken or used.

5) Problem #1 Supp. p16) Understanding Torts p18-21 (rec’d)

b. Trespass to land: 3 Elements-Volitional Act-INTENT to cause physical invasion of another’s land

-intent to cause harm not required.-intent to trespass not required.

-CAUSES such invasion, directly or indirectly.

-NOTE: for Trespass to Land, injury or damage NOT a required element in order to bring a cause of action.

1) Dougherty v. Stepp p66-67:DEF surveyed PTF’s unenclosed land, thinking it was his. Did no damage to land.*Issue: Whether PTF can bring a cause of action for trespass to land when DEF’s unauthorized entry was accidental and did no harm.*Holding: YES. Any unauthorized entry is a trespass to land, so long as DEF’s conduct is voluntary. No damage needed to bring a trespass to land action. The trespass itself is the injury.

2) Bradley v. American Smelting p68-70: PTF, land owner, suing DEF, smelting co, for trespass bc of emitted residue that falls on his land.*Issue: Whether PTF can bring a cause of action for trespass to land when DEF when that which enters PTF’s land is a molecular by-product emitted from DEF’s factory.*Holding: YES, but ONLY if molecules accumulate on land. If molecules dissipate, then cannot bring action for trespass, only for nuisance.-Policy: PTF must show actual and substantial damages to bring action in cases like these, weighed against the benefit of what factory produces.

3) Note 2 p70: Nuisance protects PTF’s use and enjoyment of land. Courts require actual damage, do NOT require physical invasion onto land.

C. Privileges in cases of intentional conduct-Argument by DEF for why their conduct should be excused from tortious liability, ie, privilege.1. Consent:

a. EXPIRED CONSENT; Rogers v. Board of Road Com’ers p72-73: Municipality placed snow anchors on PTF’s land with their consent. When Spring, forgot one. PTF ran it over w lawnmower and died.

*Issue: Whether PTF can bring a cause of action for trespass of land when they had consented to that trespass in allowing municipality to place snow anchors on land.*Holding: YES. The consent defense does not stand bc the consent was only good for period of time when snow was falling. That consent was revoked once snow-season was over.

b. CONSENT IN SPORT: Hackbart v. Cincinnati Bengals p92-94: NFL game, DEF intentionally struck PTF after play was dead, injuring PTF. *Issue: whether PTF impliedly consented to DEF hitting him after play was dead bc sport is inherently violent.*Holding: NO. Consent is determined by **Rules and Custom of game**. If tort was outside of custom of game and outside of rules, for a jury to decide if conduct was tortious, or to determine “where the line is.”

c. MEDICAL CONSENT: Mohr v. Williams p94-97: PTF consented for doctor/DEF to operate on right ear. While ‘under,’ doc did surgery on left ear.*Issue: Whether doctor can use consent defense against battery when consent was for operating on different organ.*Holding: NO. In medical treatment, patient has, with a couple exceptions, complete autonomy over own body.-Exceptions: emergencies, patient unconscious and immediate doctor action required, discovery and extension of operation.

d. CONSENT UNDER FALSE PRETENSES: De May v. Roberts p99-100: Doctor and untrained asst. helped PTF give birth, she assumed asst was a doc.*Issue: Whether PTF can revoke consent for battery after it occurs upon discovering that DEF actually was not who the PTF thought he was.*Holding: YES. Consent is revoked when PTF discovers that DEF’s self-characterization was deceitful.

e. Understanding Torts p30-33 (rec’d)

2. Self Defensea. Notes on Self Defense p103-107: Reasonable belief, reasonableness of conduct,

equivalency of conduct, defense must be similar from initial act that is being defensed. Immediacy

b.c. Understanding Torts p33-36 (rec’d)

3. Defense and recovery of propertya. Defense by use of mechanical means: In defending one’s property, cannot use

deadly force unless that deadly force is being used proportionally.1) Katke v. Briney p107-110: PTF invaded DEF’s house, tripped up

mechanical gun, shot him, injured.*Issue: whether DEF can defend property against uninvited invaders with weapon of deadly force.*Holding: NO. PTF’s trespass is not grounds to defend with deadly force, only justified when deadly force is proportional to what one is defending against.

2) Notes 1-4 p110-111: Privilege to defend land limited to reasonable force.

3) Katko poems online

b. Recovery of Property: Prop owner has a ‘fresh pursuit’ right to recover prop when taken by another, as long as it is with reasonable force. However, after time has elapsed, owner has lost ‘fresh pursuit’ right, must pursue remedy legally.

1) Hodgeden v. Hubbard p113-114:Merchant immediately realizes that item just sold on bad credit. Found ‘buyer’ and took item away.

*Issue: Whether DEF has a right to recover prop that was just sold on fraudulent terms.*Holding: YES. DEF has right to re-possess stolen prop peacefully, or with reasonable and proportional force.

2) Notes 1-6 p114-115

c. Shopkeeper’s privilege against claims of false imprisonment: Storekeeper has privilege to detain a person suspected of shoplifting. Detention must be brief, must have reasonable grounds for suspecting crime.

1) Bonkowske v. Arlan’s Dept Store: Woman claiming false imprisonment when security guard asks her to empty contents of her purse bc she was suspected of stealing.

*Issue: whether there a shopkeeper can defend against a false imprisonment action by detaining a suspected thief for a brief time. Holding: YES. Policy; Shopkeeper’s privilege is allowed to defend against false imprisonment claims when searching suspected thieves but not finding contraband. Also, allows shop to better police own store from thieves.

2) Notes 1-2 p117-118

d. Understanding Torts p36-39 (rec’d)

4. Necessity: when one is given privilege to take or use another’s prop.a. Public necessity: When a public entity takes over private prop.

1) Surocco v. Geary p118-120:Mayor or San Fran ordered PTF’s house burned in order to stem spread of a raging fire.

*Issue: Whether public entity can defensibly sacrifice private prop in order to save or stem destruction of more prop*Holding: YES. Burden is on DEF to prove necessity. Individual rights give way to right of impending necessity.

b. Private necessity: Property owner has no right to use force to repel a person who seeks to use property in a situation where private necessity privilege applies.

1) INFLICT HARM TO AVOID GREATER HARM: Vincent v. Lake Erie Transportation Co p121-123: DEF’s boat on PTF’s dock, heavy storm prevented boat from leaving, waves knocked boat against dock, caused damage.

*Issue: Whether DEF liable to pay damage caused by using PTF’s property out of necessity.*Holding: YES. DEF has privilege to use PTF’s prop to save self from danger, but takes on liability for cost of his staying, like in this case, the dock.

c. Understanding Torts p39-41 (rec’d)

5. Justification: A bullcrap defense, per Bernabea. Sindle v. NYC Transit Authority p128-129

III. Liability for damages caused by negligent conductA. The concept of negligence: Conduct less careful than applicable standard of care

requires to protect people from unreasonable risk of harm. Standard of care (usually)=reasonably prudent person under same circumstances. In determining negligence, must determine the conduct of the Defendant. Plaintiff has burden of proving Defendant’s conduct, as well as… 5 Elements:-Duty to use reasonable care-Breach of Duty

-Cause in Fact -Proximate Cause-Injury- look at individual elements of cause of action, Plaintiff must satisfy all elements to make a prima facie case1. Introduction2. Brown v. Kendall p6-10: Dogs fighting, DEF separates dogs w a stick,

accidentally hits PTF in eye. -Holding: NOT intentional, should instead evaluate whether DEF’s conduct was that of a reasonably prudent person. If not, then is at fault and liable.

3. Injury itself does not prove negligence; Cohen v. Petty p10-12: DEF driving, PTF a passenger, DEF has a heart attack, loses consciousness, crash, PTF injured.-Holding: Driver did not breach his duty. Driver’s illness was without warning, DEF had no preponderance to illness. PTF could not show that DEF breached duty by driving.

4. Foreseeability; Blyth v. Birmingham p134: PTF sues city bc weather got extremely cold and sewers froze, causing flood in PTF’s home.-Issue: whether DEF had a duty to foresee that the sewer was not safe under normal conditions.-Holding: NO. Weather was extreme, DEF could not have foreseen that weather would be that cold. DEF acted reasonably and prudently.

5. Public Good vs. Danger it creates; Chicago B. & Q.R. v. Krayenbul p138-139: Kid at a railroad station, injures self on unlocked turntable.-Issue: Whether DEF breached duty to act reasonably prudent and to avoid unreasonable risk by keeping a piece of heavy machinery unlocked and accessible to children.-Holding: YES. RRs provide benefit, but that is not license to be careless. If DEF can maintain benefit without curtailing use, should do so. Not doing so=breach of duty.

6. Restatement (2d) Torts 291-293 p144-145-Rest 291; Unreasonableness: When act is one that a reasonable person would see as risky to another, that risk is unreasonable, act is negligent if the risk is such that it outweighs the utility of that act, or of the particular manner that it is performed.-Rest 292; Factors, Utility of Conduct: social value of conduct, chance that interest will be advanced or protected by conduct, and if interest can be advanced or protected by another less dangerous means.-Rest 293; Factors, Magnitude of Risk: social value, extent of chance, and # of persons whose interests likely invaded if risk becomes harm.

7. Understanding Torts 43-45, 59-66; Negligence: when cost of accident exceeds cost of precautionary measures.

8. David Owen, The 5 Elements of Negligence. See 5 elements above.

B. Elements of the cause of action for damages caused by negligent conduct1. Duty, breach, and the concept of ‘standard of care’

a. The standard of care: DEF’s conduct to be measured with the conduct of the reasonably prudent person in same circumstances. The reasonably prudent person does NOT create unreasonable risk of harm to others.

(1) Conduct compared to objective standard; Vaughn v. Menlove p145-147: DEF stacked hay adjacent to neighbor’s property, a fire hazard, fire, damage.-Issue: Whether DEF can defend self from liability from negligence by arguing that his conduct should be evaluated as compared to his own capabilities, and not compared to the conduct of reasonably prudent person.-Holding: NO. The standard of care is NOT determined by DEF’s own judgment. Rather, is determined by the judgment of the reasonably prudent person. It is an objective standard. PolicyIf was subjective, would swallow up negligence law. Impossible to ask jury to ascertain as to DEF’s own judgment.

(2) Understanding Torts p45-48, 54-56, 58

b. The standard of care during an ‘emergency’: There is no ‘emergency doctrine.’ DEF’s conduct still must be compared to that of rpp under same circumstances

(1) DEF’s conduct during an emergency; Cordas v. Peerless p154-157: Cabbie is held up at gunpoint, escapes moving car, car injures PTF. -Issue: Whether driver breached his duty to operate car as a reasonably prudent person would-Holding: NO. Circumstances were such that a reasonably prudent person would abandon a moving vehicle to save own life. Reasonable conduct + Circumstances.

(2) Understanding Torts p49-50

c. The standard of care in special cases: Modifications in evaluating DEF’s conduct as compared to reasonably prudent person under same circumstances.

(1) Children: a Different Standard of Care used as a Model to compare DEF’s conduct

(a) Robinson v. Lindsay p161-163: DEF a 13 yr old child, operating a snow mobile, towing PTF, injures her.-Issue: Whether a child’s conduct should be compared to the conduct to the reasonably prudent person’s conduct-Holding: Generally, NO. In evaluating the conduct of a child, generally do NOT use rpp test; but rather jury is asked to evaluate the child’s conduct as compared to the conduct of a child of the same age, experience, maturity level, and intelligence.

-A subjective standard of care, but one the Court makes in order for Policy Reasons: kids do not have the experience or the wherewithal to act as a reasonably prudent person, should only be held to the standard that they should be capable of.

-Exception to children’s standard of care: when child is engaged in adult (or inherently dangerous) activities that require the judgment and special skill of an adult, then the child’s conduct is compared to the conduct of the RPP.-In order for jury to use the RPP standard of care rather than children’s standard, the PTF must show that the conduct of child was inherently dangerous.

(b) Prob #2 Supp.(c) Understanding Torts p56-58

(2) Physical Disabilities: Jury instructed to consider whether the actor’s conduct met with standard of care of RPP with actor’s disability in same circumstances.(a) Roberts v. Louisiana p157-158: Blind man walks without

cane, bumps into DEF, injured-Issue: whether DEF’s conduct did not meet w the standard of care

(b) U. Torts p50-51

(3) Mental disabilities: DEF held to RPP standard of care.

(a) Mild exception to Mental Disabilities Standard of Care; Breunig v. American Fam Ins Co p165-167: DEF driving car, has an insane delusion, causes her to collide into PTF’s car.-Issue: Whether insanity can be a defense to comparing DEF’s conduct to that of RPP.-Holding: Generally, no. Mental disability can ONLY be a defense if an insane delusion occurs without warning and is not foreseeable (similar to Cohen v. Petty). Otherwise, the DEF’s conduct is still compared to conduct of RPP, regardless of mental disability (insanity, mental retardation, etc).

(b) U. Torts p51-53

d. Arguing what the reasonable prudent person would have done under the circumstances: What sources do we use to find the ‘standard of care’?

(1) Rules of Law: Courts sometimes attempt to develop precedents that detail what constitutes careful behavior in specific situations.

(a) Pokora v. Wabash Ry. Co p200-203: Driver did not follow the procedure of approaching a RR crossing as defined by Supreme Court 7 years prior.-Issue: Whether PTF did not act w ordinary care by not following the defined protocol of the Supreme Court in approaching a RR crossing.-Holding: NO. Unusual situations should not be governed by ‘tests and regulations that are fitting for the commonplace or normal.’

(2) Common Knowledge: The RPP is assumed to have knowledge typical of people in community

(a) Duty to maintain a car; Delair v. McAdoo p148-149: DEF’s tire blew out while passing PTF, causing accident. DEF’s tires were extremely worn-Issue: Whether DEF has duty to KNOW that worn tires lead to blowouts.-Holding: YES. Worn tires create unreasonable risk. It is common knowledge that driving with bad tires creates unreasonable risk of harm. Thus, DEF breached duty.

(3) Custom: Compare the conduct of DEF with the conduct of others in DEF’s line of work, trade, industry, etc.

(a) Trimarco v. Klein p 150-153: PTF suing DEF bc bathtub glass broke, not made of shatter-proof glass, saying use of such glass had become customary by landlords. Custom=standard of care.-Issue: whether the PTF can support a cause of action for negligence by showing that DEF had breached his duty of keeping apartment tenant safe from unreasonable harm by establishing the custom in the landlord industry was to install shatter proof glass.-Holding: YES. Plaintiff must first establish prevailing custom in industry in order to show duty to later prove that DEF breached that duty.

(b) U. Torts p66-67: PTF must show that the harm that the custom was developed to avoid is the harm that was suffered. If DEF compliant w Custom, usually good enough to show compliance w duty, not always though, bc jury could find custom unreasonably risky.

(4) Violation of Statute: Negligence Per Se. When DEF’s conduct is compared NOT with conduct of RPP, but rather compared with what a safety statute says. (a) Stachniewicz v. Mar-Cam p206-208: PTF suing bar for

breach. DEF served people alcohol who then injured PTF, PTF arguing breach of duty for violating statute.-Issue: Whether the violation of a statute is necessarily a breach of duty

-Holding: NO. In order for the statute to be used as the standard of care, ie for PTF to show that DEF liable by Negligence Per Se, must satisfy 3 conditions: 1-statute must be precise in defining how DEF should act, 2-Plaintiff’s injury must be in the class of injury against which statute intends to protect, and 3- The Plaintiff is in the class of people which the statute seeks to protect.

-Here, the statute was to protect against DRINKERS, so PTF could not use that as standard of care. However, the Regulation was intended to guard against barroom brawls, which is what injured the PTF, so that is applicable.

(b) Conduct of DEF compared w Criminal Law statute; Perry v. SN and SN p215-221: DEF did not report child abuse, violated Criminal Statute to report suspicious activity related to child abuse.-Issue: Whether PTF can support a cause of action for negligence per se by showing that DEFs had violated a criminal statute-Holding: NO. Criminal statute prescribes no duty of conduct under tort law. In this case specifically, duty to help, goes against (most) tort law. Policy: could be disproportionate punishments btn criminal law courts and tort law courts.

(c) Negligence Per Se in Action; Martin v. Herzog p222-223: PTF’s decedent drove a buggy at night without lights on.-Issue: Whether buggy driver was negligent per se by not having lights on while driving at night, thus in violation of statute.-Holding: YES. This statute instills states one element of duty to drive safely. Statute is 1-Precise, 2-Intends to protect drivers like DEF, and 3-Intends to protect against these situations.

-BC decedent contributed to negligence, PTF cannot recover.

(d) Notes 2-4 223-224

-2: Negligence Per Se: must be declared by judge, NOT jury. -3: some states treat violation as ‘presumption’ of negligence, which becomes negligence per se unless presumption rebutted, ie excuse for violation statute.-4: Minority of statesviolation of statute treated merely as evidence of negligence, left to jury

(e) Excusing Conduct opposite from statute; Zeni v. Anderson: PTF walking along path bc sidewalk was snowy and icy. Hit by DEF’s car. DEF says contributory negligence, cites statute, PTF was in violation. -Issue: Whether PTF in this case can rebut negligence per se-Holding: YES. In this case, PTF rebutted presumption of negligence per se, that she had violated the sidewalk statute bc it was safer to walk on street rather than sidewalk bc was dangerous.

(f) U. Torts p83-90

(5) Is there a (limited) duty to ‘act’?: No duty to help one in need. Exceptions: -once one does decide to help, takes on duty to act like RPP. –Duty to help if creates the need for help. -‘special relationships;’ imposes duty to help. Ie innkeeper, transportation companies, schools to students, etc.

(a) Perry v. SN and SN p215-221: see above, no duty to act.

(b) Universities; duty to act? Hegel v. Langsam p417-418: University has NO DUTY to monitor private lives and decisions of students.

(c) Note 1A p418

(d) When Non-negligent conduct obligates DEF to help; LS Ayres & Co v. Hicks p420-421: PTF on DEF’s store’s escalator, got caught in it, caused injury.

-Issue: Whether store had a duty to help when kid got stuck in escalator, even though not caused by DEF’s negligence-Holding: YES. Special Relationship of shop and invitee creates duty to help.

(e) U. Torts p107-115, 119-123(f) Blog entries under ‘Duty to act’

2. The standard of care in cases of ‘professionals’a. In general: For our purposes, a profession is a job/calling that reqs a

certain level of specialized studying, typically reg’d by state, reqs approval by state, licensed, etc. Many courts use a trade’s Code of Conduct as an expression of professional duty.

(1) Objective Standard of Care: Heath v. Swift Wings p168-170: DEF crashed plane, killing PTF’s decedent, suing for negligence.-Issue: Whether DEF’s conduct in flying plane ought to be compared to his own abilities.-Holding: NO. As a Professional, must exercise requisite degree of learning, skill, and ability of profession with reasonable care. Must be compared to standard of care of all pilots, not to own subjective ability.

b. Cause of action for attorney malpractice(1) Attorney’s Standard of Care; Hodges v. Carter p173-175.

Lawyers’ Professional Standard of Care: 1-Possess required degree of learning, skill, and ability to practice and which others ordinarily possess; 2-Will use best judgment; and 3-will exercise reasonable and ordinary care in using skill. -If act accordingly with the CUSTOM that professionals follow locally, not negligent.

(2) Note 6, p176: PTF must be able to prove that would’ve recovered if not for the attorney’s negligence.

(3) Prob #3 Supp.(4) U. Torts p101-103

c. Cause of action for medical malpractice(1) The standard of care

(a) Morrison v. MacNamara: Urethral q-tip test; to stand or to sit? Local custom, to stand. National Standard, to sit. For a nationally certified lab, bound to follow the national custom.

(b) U. Torts p92-96

(2) Medical Malpractice Reform(a) Debate on Caps on Med. Malpractice Awards(b) Baker, The Medical Malpractice Myth(c) Salvi, Why Med. Malpractice is Wrong(d) Public Citizen, the Great Med. Malpractice Hoax

(3) Cause of action for lack of informed consent(a) Mohr v. Williams p94-97(b) Note 1 p97(c) Duty of doctor to inform patient of material risks of

procedure. Scott v. Bradford p185-189. 3 approaches to question of duty: 1-based on what practice of profession believes it to be a risk and how profession acts (most consistent with tort law); 2-subjective standard of duty based on if that particular Plaintiff would’ve liked to have known about a risk (view of this court, not so popular otherwise), 3-Based on notion of whether ‘reasonable prudent patient’ would’ve liked to have knows about the risk (Majority View).-Causation approaches in these types of cases: PTF must show that of not for lack of info about risk, would not have gotten procedure. 2 approaches to this issue: 1-subjective approach, whether PTF says would’ve gone thru with procedure or not. Becomes question of credibility. (Court uses this) 2-Objective approach, whether ‘reasonable prudent patient’ would’ve rejected in the same circumstances (Majority approach). -Under “patient rule,” for PTF to prevail must show 1-a nondisclosure of a material fact by the DEF, 2-that had there been proper disclosure she would’ve rejected the treatment, and 3-that undisclosed adverse effects occurred.

(d) Duty to Disclose. Moore v. Regents of U. of CA p191-194. Dr was using patient’s cells for research use. Doctor

must disclose if using patient’s cells/organs because patient has right to know if doctor has any other interests besides the health of the patient.

(e) U. Torts p97-101

(4) Cause of action for ‘failure to act’(a) Duty to Warn a 3rd party. Tarasoff v. Regents of U. of

CA p432-435. Doc’s patient said was gonna kill Tarasoff, he did not warn her. Patient killer her. Her parents sue doctor for not taking reasonable steps to warn Tarasoff. Court agreed, saying right of confidentiality btn patients and therapists does not outweigh rights of potential victims. In doing so, drops the typical med malpractice standard of local custom by instead using a cost-benefit analysis used in non-med negligence cases.- raises other questions: to what extent should the doctor help the 3rd party? What is an acceptable way to help 3rd party?

(b) Prob #4 Supp.(c) U. Torts p115-117

3. Proof of Negligence; proving the argument of breach of dutya. Introduction: types of evidence. Proving, providing evidence to

support argument to win the case with jury.b. Expert Testimony: only kind of witnesses who can give testimony

about their OPINION based on their expertise. (1) Med. Malpractice context. Boyce v. Brown p177-180. Expert

testimony in this case: ‘not what I would’ve done, but that’s just me,’ not strong enough to show a duty to X-Ray. Expert Testimony must strongly show that a-there was a duty to perform in some way according to standard, and b- not acting according to that duty is a breach.

(2) Yeoman, Putting Science in the Docket

c. Circumstantial Evidence: Banana cases. State of banana tells trier-of-fact about whether DEF breached their duty by allowing to sit there for an unreasonable amount of time.

(1) Goddard v. Boston & Maine RR p230-231(2) Anjou v. Boston Elevated p230-231(3) Joye v. Great Atlantic p231

(4) Ortega v. Kmart p231-233(5) U. Torts p71-74

d. Res ipsa loquitor: the thing (accident) that speaks for itself. Allows PTF to suggest to a jury that they can make an inference that does not include evidence of conduct of the DEF. The result does not and cannot occur unless it is by negligence. 1-accident doesn’t happen unless there is negligence, and 2-the DEF was negligent. -Limited circumstances; DEF must be under exclusive control.

(1) Byrne v. Broadle p237-238(2) McDougald v. Perry p240-244(3) Exclusive control: Larson v. St Francis Hotel p246-248. Res

ipsa loquitur does not apply, bc DEF was not in exclusive control of that which caused injury. Hotel, guests.

(4) 3 Ways of Procedural Effect of Res Ipsa Loquitur. Sullivan v. Crabtree p254-257. 1-warrants an inference which jury may draw on or not, on their judgment. 2-raises a presumption of negligence which requires jury to find Negligence, if DEF does not rebut that presumption, 3-raises presumption AND shifts burden of proof to DEF. DEF must prove by a preponderance of all evidence that injury was not caused by negligence. -This court chooses 1st approach. So how is this any different than proving a case in the ordinary way? Allows PTF’s claim to survive the motion to dismiss; establishes prima facie case.

(5) Extension of Res Ipsa to med. Malpractice. Ybarra v. Spangard p250-253. Patient went in for surgery. When awoke his shoulder was fucked up. Couldn’t prove conduct fucked him up, so was able to bring cause of action against all people in the room by res ipsa, burden of proof shifted on all the people operating. Do this bc there is an interest btn DEFs to protect each other; extension of res ipsa to multiple tortfeasors incents all DEFs to give testimony to find conduct that did in fact cause injury. NOT a popular decision.

(6) Best, Torts Roadmap, Chart on Effects of Res Ipsa Loquitor(7) U. Torts p74-81, 96

4. Cause in Facta. The Concept: PTF: “but for the DEF’s conduct, injury would not

have occurred” vs. DEF: accident would’ve happened regardless of my negligence.” DEF would win.

(1) “But for” vs “would’ve happened anyway.” Perkins v. Texas & New Orleans Ry. Co. p259-261. PTF must make connection btn Cause in Fact and the Injury.

(2) Concurrent Causes. Hill v. Edmonds p282. Passenger in car. Negligents: Parked tractor + driver of car. Where separate acts of negligence combine to directly produce a single injury, each tortfeasor is responsible for entire result, even if each one’s act alone did not cause.

(3) Prob #5 Supp.(4) U. Torts p181-184

b. Proving cause in Fact(1) In General: 2nd burden; winning a jury trial

(a) Proving Casue in Fact. Gentry v. Douglas Hereford Ranch p263-266. Steps that shoter tripped on were in shitty condition, but shooter testified that he did not know how he tripped. Does not prove cause in fact, that steps caused him to trip.

(b) Other reasons for injury? Reynolds v. Texas & Pacific Ry p262-263. Fat woman falls down stairs. DEF says lots of other reasons why she fell besides DEF’s negligence. Court: PTF not required to eliminate all other reasons (though it helps build case), since DEF’s negligence increased likelihood of PTF’s fall.

(c) Possible v. Probable. Kramer Service v. Wilkins p267-268. PTF developed cancer at spot where a piece of glass at hotel pierced skin. Doctor said it was “possible” that cancer could’ve arose from the cut. Not enough to prove Cause in Fact, must be Probable.

(d) Wilder v. Eberhart Note #2 p269.

(2) Application of the analysis in cases of concurrent causes(a) Hill v. Edmonds p282. See above.(b) Concurrent Causes, 1 unknown. Anderson v,

Minneapolis p283-284. 2 fires, 1 of unknown origin. DEF: damage would’ve happened anyway, from fire of unknown origin. Court: not fair for DEF to escape liability just bc fire of unknown cause happened to be there. DEF’s negligence still was a cause in fact of fire. Kind of an exception to “even if” defense.

(3) Problems of proof in cases with concurrent causes(a) 2 actors, 1 tortfeasor, don’t know who? Summers v.

Tice p285-286. Both DEFs shot at a quail simultaneously, but only 1 hit PTF. Small # of potential tortfeasors (2). Like the Ybarra v. Spangard/Res Ipsa case, shifts burden of proof onto potential tortfeasors, and if cannot prove they did not cause injury, then liable. Both shooters contributed to a circumstance that deprived PTF from identifying who shot him.

(b) Market Share Liability. Sindell v. Abbott Labs p287-290. Same problem as Summers, drug (DES) caused injury, but more makers, PTF cannot id tortfeasor, and not all makers were part of suit, so Court rejected that analysis. How apportion liability? By making each maker pay according to what their market share was for that drug. Also, ALL used exact same formula (and thus, same conduct), and injury could’ve only been from using this drug.

(c) U. Tortsp184-188

5. Legal Cause (Proximate Cause)a. Introduction. Will Scope of Liability include or exclude the

Plaintiff’s claim?- General agreement; exact manner in which injury takes place does not need to be foreseeable, not a key factor, as long as it is so extremely out of ordinary that it is not longer a foreseeable result of risk created. Also, if EXTENT of injury is not foreseeable, does not really matter. For example, Natasha Richardson’s death, if it was a result of negligence and caused by a pre-existing injury, does not matter

(1) DES case with grand-daughter. Enright v. Eli Lilly p349-353. Grand-daughter had injuries from grandma using DES. Court draws the line of liability only to Mother and Daughter. Injury to Grand-daughter not direct and not foreseeable in order to maintain a claim.

(2) Atlantic Coast Line v. Daniels p293(3) U. Torts p191-193

b. Development of analysis to determine proximate cause.

PROXIMATE CAUSE IF INJURY IS A FORESEEABLE CONSEQUENCE OF THE RISK CREATED BY THE NEGLIGENT CONDUCT OF THE DEFENDANT.

(1) In Re Polemis p300-301. Just used a Cause in Fact analysis. (2) Overseas v. Morts (Wagon Mound #1) p302-305(3) Cardozo. Palsgraf v. Long Island RR p308-316. Platform

worker pushes a passenger who is carrying an unmarked package onto a moving train. Causes package to fall, fireworks in package, explode, cause scale to tip and injure Mrs Palsgraf. -Denies PTF’s claim, says that Mrs Palsgraf’s injury was NOT a foreseeable consequence of the risk created by train worker’s conduct (of pushing a passenger onto train carrying unmarked package). -The employee owes a duty only to the person whose injury is a foreseeable consequence of negligent conduct.

(4) Prob #6 Supp.(5) Carlson, Tales of the Unforeseen. Cartoons of Palsgraf.(6) U. Torts p199-200, 126-128, 200-204

c. Application of doctrine(1) Duty to Warn. Ayers v. Johnson & Johnson p6-10. Baby

inhales baby oil. Gets super-fucked up as a result. Issue: whether the baby’s injury was a foreseeable consequence of the risk created by the negligent conduct of the maker not putting a warning on the bottle that warns of this injury if inhaled. Court says Yes.

d. Intervening cause(1) In General

(a) Liability when intervening act of 3rd person. Derdiarian v. Felix Contracting p325-327. PTF/worker, DEF/subcont’r. work on street. 3rd person driver drives into work area, causes injury to PTF. Issue: whether PTF’s injury was the foreseeable consequence of the risk

created by the negligent conduct of DEF (by not creating more of a barrier btn work area and traffic). Liability turns upon whether the intervening act is a normal and foreseeable consequence of the situation created by the DEF’s negligence. o If intervening act of 3rd person is NOT foreseeable, it

is a superseding act that breaks causal nexus.o An intervening act may not serve as a superseding

cause, and relieve actor of responsibility, where risk of intervening act occurring is the very same risk which renders the actor negligent.

o Superseding combination ONLY when unforeseeable subsequent event combines with Unforeseen type of resultant harm.

(b) U. Torts p196-199

(2) Criminal and intentional conduct(a) 3rd Party Criminal Act. Watson v. Kentucky & Indiana

Bridge p329-331. Tanker derails and spills gasoline. 3rd Party Duerr lights a match and drops it, not sure if does so intentionally (and thus criminally) or on accident. Foreseeable that a fire would occur after a gas spill. However, UNforeseeable if fire was started intentionally.

(b) Foreseeability of Terrorist Activities. In Re Sept 11 Litigation Supp. If criminal acts foreseeable, then satisfies proximate cause foreseeability test

(3) Rescuers: where a PTF is engaging in conduct necessitated by DEF’s conduct that put 3rd party at risk, is rescue foreseeable? (a) “Danger invites Rescue.” Wagner v. International Ry

Co Supp. Peril and Rescue: 1 transaction, unbroken continuity between the 2. When injury occurs, rescue is foreseeable. Wrong that imperils life also imperils the rescuer. Rescuer’s conduct is foreseeable ONLY to extent that in rescuing, he is not foolhardy/grossly negligent, or else his conduct is treated as a superseding event for which the DEF is not liable (DEF’s typical defense).

(b) McCoy v. Am. Suzuki Motor p338-341. (c) Problem #7 Supp.

(4) Suicide(a) Is suicide foreseeable? Fuller v. Price p335-336. If killed

self from an impulse, then foreseeable consequence if risk created from DEF’s negligent conduct. If killed self after thinking it through rationally, then NOT foreseeable. -Whether the suicide was a foreseeable consequence of the risk created by DEF’s negligent conduct.

(5) Misuse of a product: If PTF misused DEF’s product in injuring self, DEF is not liable unless PTF’s misuse was foreseeable. (a) Ford Motor Co. v. Matthews p775-776.

e. Shifting Responsibility p360

6. Limits to causes of action even if injury is foreseeable: Limited duties of care

a. Introduction(1) Duty of Social Host. Kelly v. Grinell p344-347. DEF gave

driver some booze and then let him drive. Hit PTF. Does DEF, as a social host, have a duty to 3rd party PTF? -The elements of a prima facie case are satisfied. Court Majority finds there is a duty to monitor the intake of guests.-Dissent: Hard to impose a duty on social hosts. Policy; beer is good. Social hosts not licensed to watch for drunkenness. Lots of times people serve themselves. Also cannot spread the costs of liability in business costs.

b. Emotional Distress(1) In General; strictly emotional in and of itself, without any

showing of physical imposition.(a) Harmful Emotional Reaction. Daley v. LaCroix p450-

454. DEF drove a car into some power lines on PTF’s property that caused explosion, and caused emotional fright to PTF. PTF can support a claim absent physical impact if can prove a definite and objective physical injuryis produced as a result of emotional distress.

(b) U. Torts p146-152. “Impact Rule” no longer followed, can support claim for emotional distress absent physical impact. -“Zone of Danger”: most states allow recovery from mental distress if PTF was 1-at risk of phys. Impact, and 2-suffered a phys. Manifestation of the distress.

(2) Cause of action of emotional distress of a bystander(a) Thing v. La Chusa p456-461. 1-closely relation to injury

victim, 2-present at scene of injury-producing event at time injury occurs and aware that it is causing injury to the victim, and 3-as a result suffers serious emotional distress beyond what a disinterested 3rd party would suffer. - Dillon v. Legg rule: 1-PTF located near scene, shock resulted from direct emotional impact on PTF from sensory and contemporaneous observance of accident, and 3-PTF close relation to victim.

(b) U. Torts p151-156(c) Marek, Pet poisoning suits looking to up the ante

c. Pre-Natal Damages. Cases where the injury and event that causes injury happens before birth.

(1) Wrongful Conception; whether to recognize a claim for injuries sustained to a fetus that comes out as a stillborn as a result of negligent conduct. Endresz v. Friedberg p464-467. A plaintiff cannot support a wrongful death claim for the death of a stillborn child. In order for there to be ‘death,’ there must first have been ‘life.’ Life=being born and surviving on its own.-Most jurisdictions say can support a wrongful death cause of action once the baby is VIABLE inside the womb.-3 main choices of when to recognize claim: conception, viability, birth.

(2) Wrongful Life; Wrongful Birth. Procanik by Procanik v. Cillo p469-476. Wrongful Birth cause of action where child is born with birth defects and the parents allege that the child would not have been conceived or would have been aborted if DEF had provided proper prenatal care. The injury is depriving the mother of the choice of having an abortion. Majority of courts allow parents to recover unusual costs of child rearing.

Recognized as a result of legalization of abortion; parents must say would’ve had an abortion in order to satisfy ‘but-for’/’even-if’ test. Court recognizes that DEF doctor caused the BIRTH, but should only pay the extra costs of defect.-Wrongful Life: Cause of Action brought by child. The injury that the child is claiming is being born, as compared with not being born at all. Most jurisdictions won’t recognize this claim, because a life impaired is better than no life at all.

(3) Prob #8, supp.(4) U. Torts p156-162

7. Limits to cause of action imposed by statutea. Cause of Action for Wrongful Death: A wrongful death action can be

brought against a tortfeasor by individuals specified in a wrongful death statute. Action seeks compensation gor harm that death of original victim has caused to the plaintiffs.

(1) Maragne v. States Marine Lines Inc p565(2) Selders v. Armentrout p 573(3) Prob #9 Supp p 16(4) IL Wrongful Death Act Supp p 16. Whenever death of a

person is caused by wrongful or negligent act, and such an act would have, if death did not ensue, entitled injured decedent to maintain an action , then in such a case the person who would’ve been liable for injury had death not ensued, will be liable for damages. No Wrongful Death action can be brought if decedent had brought a cause of action with respect to same incident and it was already settled or judgment had been rendered.-Wrongful Death action to be brought by and in names of personal reps of deceased, and amount recovered shall be for the exclusive benefit of surviving spouse and next of kin of deceased. Can be for economic and non-economic damages. -if next of kin is under 18 yrs old, can wait as long as 2 yrs to bring claim once 18th bday.

(5) Understanding Torts 162-167

b. Cause of Action under Survival Statute: a survival action is brought against a tortfeasor on begalf of the original victim’s estate, seeking damages for claims that the original victim would have been allowed to make personally if he had not died.

(1) Survival action in addition to wrongful death action. Murphy v. Martin Oil p 578. Decedent’s estate could support claim for damages for injury and damages suffered from injury, but before death.

(2) IL Probate Act – Actions which survive Supp p17(3) U. Torts p168

C. Defenses in cases of negligence

1. Defenses based on the passage of time: Full defenses if plaintiff does not comply with time period specified in statute.

a. Statute of limitation. Typical statute of limitations requires that a suit in negligence be commenced within 3 years of occurrence of injury. Many states, shorter statute of limitations for intentional torts.

(1) Medical Malpractice; statute of limitations. Teeters v. Currey p 614. Statute does not begin to run until the negligent injury is discovered, or should have been discovered. Does NOT run from when DEF actually inflicted injury.

(2) Notes 1 & 3 p 617: Complete bar to recovery.(3) Note 15 p 584

b. Statute of Repose. Typical Statute of Repose states that no relief may be granted on a claim related to injuries caused by alleged negligence in construction of a building if claim is made more than 10 years after termination of the construction project. Statutes of repose can also apply to medical malpractice or products liability.

(1) Note 14 p 620. Stems from concept that a person is no longer responsible for a past act. Some states have decided they are unconstitutional.

2. Defenses based on an evaluation of the plaintiff’s conducta. Contributory Negligence. Takes Plaintiff’s conduct into account.

(1) Ptf’ negligence a complete bar to recovery. Butterfield v. Forrester p 586. If PTF was below the standard of care, cannot recover damages from DEF.

(2) PTF’s conduct discussion. Note 1 p 588. Options available in law in how to treat PTF’s negligence if contributed to his injury:

-Contributory Negligence: completely bar PTF from recovering.-Could ignore PTF’s conduct completely.-Adopt both of above and create certain exceptions.-Comparative Negligence/Comparative Fault: Compare PTF’s fault and reduce compensation accordingly.

(3) Davies v. Mann p 591(4) U. Torts p 230-234

b. Comparative Negligence: has mostly replaced Contributory Negligence as a way to evaluate Plaintiff’s conduct.

(1) McIntyre v. Ballentine p 592 (I-IV only). Assigns percentage of negligence. -3 Approaches to Comparative Negligence.1-“Pure”: PTF’s damages reduced in proportion to the percentage of his negligence.2-Modified1: Plaintiff’s negligence cannot exceed DEF’s negligence to recover (can be equal).3-Modified2: PTF’s negligence must be less than DEF’s in order to recover.-Pure most consistent with tort law principles, but some form of Modified approach is used in majority of jurisdictions.

(2) Prob 10 Supp p 17(3) IL statute on limitation on recovery Supp p 18. IL says for PTF

to recover, PTF’s negligence cannot exceed 50%(4) IL jury instruction in tort action Supp p 18(5) U. Torts p 234-237

c. Assumption of the Risk(1) Implied: In most jurisdictions, concept of implied risk has been

‘eaten up’ by doctrine of comparative negligence. -Implied Primary Assumption of Risk: Small group of situations, where DEFs owe either no duty, or reduced duty of care to PTF. Because society has lessened DEF’s usual obligation to be careful, courts have sometimes said that PTFs assumed risk of injury. Applied in contributory and comparative negligence jurisdictions. Full defense under both.

-like at a baseball game. Limited duty. In Comparative Negligence context, particular PTF’s knowledge and

other aspects of PTF’s conduct have no relevance to protection that doctrine gives to certain DEFs.

-Implied Secondary Assumption of Risk: when a jury permitted to infer from PTF’s conduct that the PTF had chosen to assume the risks connected with the conduct the PTF had chosen to undertake. Usually not treated as a full defense.

-3 Elements: 1-PTF knew and understood the risk, 2-voluntarily subjected self to risk, 3-acted in a way that showed consent.-Under Comparative Negligence context, 2 types of implied secondary assumption of risk; reasonable or unreasonable. Reasonable: PTF’s risk taking was reasonable. No defense. Unreasonable: PTF’s risk taking unreasonable. Possible Defense.

(a) Rush v. Commercial Realty Co.(b) Blackburn v. Dorta(c) U. Torts 237-244

(2) Express Assumption of Risk. Contractual in nature.(a) Complete bar to recovery. Defer to whatever contract

waiver says. Seigneur v. National Fitness Ins. p 601.

d. Defenses in death cases. Same as in any other torts case. (1) Notes 11-13 p 582(2) IL Wrongful Death Act Supp p 19(3) U. Torts p167

e. “seat belt defense” 3 approaches(1) Best, Torts Roadmap. P 222-223.

1-irrelevant2-conduct of PTF an eg of PTF not taking precaution, bar to recovery.3-evaluate PTF’s conduct of not wearing seatbelt in same way as comparative negligence analysis.

3. Defenses based on the relationship between the partiesa. Introduction p 621

b. Spousal immunity

(1) Eliminating spousal immunity. Freehe v. Freehe p 622. Immunity reflects old law; married couple ‘one body,’ ‘tranquility of home,’ justice thru divorce or criminal courts, collusion into making insurance company pay. But those reasons are no longer persuasive.

(2) U. Torts p 245-246

c. Parental immunity(1) Immunity while children of minority age, can sue for torts

against parents when are adults. Renko v. McLean p 625. parent-child relationship protected, state doesn’t want to tell parents how to raise their children. Can child sue once become an adult for a tort that occurred when child was a minor? NO. threatens the policy reasons for immunity in 1st place. Only prolongs time when can sue.

(2) U. Torts p 246-247

d. Governmental Immunity(1) Introduction

(a) Municipal and State Governmental Immunity overturned. Ayala v. Phil. Bd. of Pub. Ed. p 637. Why immunity? ‘king can do no wrong’ mentality, govt cant ‘spread the cost of negligence’ like a business can, would be an ‘infinity of actions,’ ‘better individual suffers an injury than public suffers an inconvenience.’-Now, govt functions not curtailed, and much of the costs are covered by insurance, no support for ‘infinity of actions’ claim, vicarious liability.

(b) U. Torts p 247-249

(2) Federal Torts Claims Act: recognizes right of people to sue the Federal Govt for injuries done by Federal Employees.1-Certain Limitations. PTFs required to exhaust administrative or other mechanisms before bringing suit, not doing so is a jurisdictional issue. No jury trial. No punitive damages. No strict liability claims (PTF must show fault). 2-Plenty of circumstances where retain immunity (torts from govt’s money management, transmission of postal matters, against military personnel BY military personnel. (a) Notes on Fed. Torts Claims Act p 653-657.

(b) Discretionary Conduct excluded from FTCA. Deuser v. Vecera p 648. 2 Step Inquiry in determining if Fed Govt immune. If government employee’s conduct was 1-discretionary (ie specifically not in the manual, not a prescribed duty), and 2-if the discretion is the kind that their conduct was meant to serve and shield (social, economic, political goals). -Policy reasons for excluding discretionary functions: Separation of Powers; Courts should not scrutinize exec-branch conduct that relates to political decision making, ie allocation of governmental resources, what types of govt conduct best serves public.

(3) Municipalities’ limited duty: Free to allocate resources to different areas without having to be answer to claims of negligence in not protecting certain constituents.-No duty to individual, duty to everyone (which means duty to no one?)(a) No duty to individual. Riss v. New York p 642, Ms Riss

was threatened by dude, she told cops and they did nothing, then he followed thru with his threat. Sued cops. Claim not recognized, no duty to individual.

(b) Note #4 p 648(c) Duty on Municipality when PTF justifiably relies on

their acceptance of duty. DeLong v. Erie County p 644. PTF called 911, “help is on the way.” PTF properly relied on 911’s statement, that reliance on them actively taking on the duty to the individual, can support cause of action.

(d) U. Torts p 123-125

D. Issues in Cases of Multiple Tortfeasors1. Joinder: Deals with question of who can Plaintiff sue within 1 suit?

-Old Rule: can only join DEFs who acted in concert with each other.-NEW RULE: can join 1-those who acted in concert with each other, 2-those who acted independently to cause an ‘indivisible’ injury, and 3-when DEFs acted independently to cause ‘divisible’ injuries from 1 accident.-“indivisible”: cannot prove which tortfeasor caused which part of PTF’s injury.

a. Bierczynski v. Rogers p 361

b. Notes 1-3 p 362. PTFs permitted, not REQUIRED to join DEFs together. PTF has right to choose which tortfeasor to sue, and which tortfeasor to not sue.

-DEF can bring claim for Contribution against DEFs not brought into PTF’s suit.-“cross-claim”: claim that is filed by person in a suit against someone else in the lawsuit, both of whom appear on same side of letter ‘v.’ eg) DEF1 v. DEF2. PTF1 v. PTF2.-“counter-claim”: a claim filed by people already in a lawsuit, but who appear on opposite sides of ‘v.’ eg) when suit is A v. B, counter-claim is B v. A.-“third-party claim”: a DEF filing a suit against party who was not in original suit. DEF in 1st case takes in title of “3rd Party PTF,” and DEF in 2nd case has title of “3rd Party DEF.” type of “cross-claim.”

c. Notes 7-8 p 364d. Note 4 p 388e. Problem #11 Supp p 19

2. Satisfaction: PTF has a right to recover up to the value of his injury, but not beyond that value. That value determined by a jury, or by settlement.

a. Bundt v. Embro p 371: PTF got injured and settled with NY. Now suing highway repair company that obstructed view of stop sign. If DEF was a joint tortfeasor, then DEF cannot be found liable. Why? Bc PTF has already received full value of Satisfaction in settlement with NY.

-If DEFs are not joint tortfeasor will DEF be obligated to pay. b. Collateral Source Rule: Applies when PTF receives compensation

from anyone besides tortfeasor (like own insurance company). When PTF receives benefit from a collateral source, PTF still has right to recover the value of that benefit from the DEF.

-Rule has been modified in a minority of jurisdictions; some say DEF liable, minus amount PTF recovered from collateral source. (1) Note 9 p 374(2) Notes 2-4 & 6 p 542(3) U. Torts p 226-227

3. Release: Settlement. Right of PTF to let tortfeasor go (usually in context of a settlement for money).-Generally, release of 1 DEF does not release anyone else unless 1-joint tortfeasors acting in concert, or 2-specifically releases other DEFs.

-‘covenant not to sue’: PTF does not surrender his claim, but contracts not to sue on it. If does sue, DEF can counter-claim for breach of contract.

a. Cox v. Pearl Investment Co. p 374b. Notes 1-5 p 376

4. Joint and several liability: From whom, and for how much can PTFs recover from? Joint and Several Liability: PTF can recover 1-from which ever tortfeasor PTF wants to sue, and 2-for any amount up to value of Satisfaction. -so if PTF sues 1 of 2 tortfeasors and that tortfeasor is found liable, that tortfeasor must pay whole value of injury, regardless of other tortfeasor’s value toward injury.-Several Liability: DEF only responsible to the proportion of own negligence.

a. Joint and several Liability. Coney v. JLG Industries p 364. b. Bartlett v. New Mexico Welding Supply p 366c. McIntyre v. Ballentine (V) p 596d. Notes 1, 3-4 p 368e. R3d Torts 17: Joint and Several or Several Liability for

Independent Tortfeasors Supp p 25-27. 5 TRACKS!-Track A: Pure Joint and Several Liability-Track B: Pure Several Liability-Track C: Hybrid; begins with joint and several for independent tortfeasors who cause indivisible injury. Places risk of a tortfeasor’s insolvency on all who bear responsibility, including PTF. An insolvent tortfeasor’s comparative share of liability is reallocated to other parties in proportion to their level of negligence. Supposed to be an equitable mechanism against insolvency.

-To re-apportion share of liability when a DEF is insolvent; add up total share of solvent DEFs, and take that number and divide it into each actor’s percentage of negligence. The new number is that actor’s new percentage of liability. -Track D: Hybrid of joint and several, imposed on independent tortfeasors whose percentage of comparative negligence exceeds a certain threshold. Tortfeasors who are below that threshold are severally liable. This Track responds to concern that protects those who have comparative a small level of negligence from paying an overly harsh amount of the value of Satisfaction.-Track E: Hybrid, where type of harm is deciding factor in deciding whether to use joint or several.

f. Problem 12 Supp p 27g. U. Torts p 205-207

5. Contribution and indemnity: -Suit for Contribution can only exist in a Joint and Several jurisdiction, cannot exist in a Several Liability jurisdiction. In Joint and Several, a DEF is suing a tortfeasor who was not brought into original suit to recover portion that DEF paid MORE than his level of negligence. Allows for DEF to recover for liability apportioned to him that he is not responsible for. In a Several liability j’n, DEF can only pay his level of negligence and no more.

-DEF can sue for Contribution not until he pays the PTF damages in original suit.

-Indemnity: A complete transfer of entire burden of a judgment that one party has paid. Happens when a DEF is liable despite being completely free of fault.

-Like in cases of Vicarious Liability, employer pays the judgment, but the employee may be liable to employer for full amount.

a. Contribution. Knell v. Feltman p 383b. Contribution case dismissed where a tortfeasor has immunity in

tort from PTF. Yellow Cab Co v. Dreslin p 386. DEF sues other tortfeasor, who was PTF’s husband. DEF has right to sue for Contribution, except when other tortfeasor has immunity from liability against PTF. Reasoning in this case is that if husband paid Contribution, would be coming out of PTF’s pocket.

c. Notes 4-6 p 372d. Note 4 p 372e. Problem 12 Supp p 27f. IL Joint Tortfeasor Contribution Act Supp p 27.

a- Where 2 or more tortfeasors to an indivisible injury, right of Contribution among them, even if judgment has not been entered against them.b- Right of Contribution only exists in favor of a tortfeasor who has paid more than his pro-rata share of liability.c- When a Release or a Covenant Not to Sue is given in good faith to 1 or more tortfeasors, it does NOT discharge any of the other tortfeasors from liability, unless its terms so provide, but it reduces the recovery on any claim against the others to the extent of any amount stated in the release or covenant, or in the amount actually paid, whichever is greater.

d- Tortfeasor who settles is discharged of all liability from any Contribution case by any other tortfeasor.e- A tortfeasor who settles is NOT entitled to recover Contribution from any tortfeasor who did NOT settle. f- Insurance company can pay for a tortfeasor.

g. IL Code of Civil Pro – Right of Contribution Supp p 28. For Negligence torts, all DEFs found liable are jointly and severally liable for PTF’s expenses. Any DEF whose fault is less than 25% of total fault is severally liable for damages. Any DEF whose fault is 25% or more of total fault will be held jointly and severally liable.

h. Indemnity. Tolbert v. Gerber Industries Supp p 29. There is not an indemnity relationship btn manufacturer and installer.

i. U. Torts p 208-214

IV. Liability for damages caused without fault: Strict liabilityA. Introduction: DEF does not have to be at fault for PTF to recover. Strict liability is imposed without need for PTF to prove DEF’s fault. PTF can only bring a claim under a theory of Strict Liability under limited circumstances. 3 Categories of Strict Liability: 1-Damages caused by Animals, 2-Damages caused by abnormally dangerous activity, 3-Products Liability.

1. Spano v. Perini p 132. Strict Liability Analysis. Foster v. Preston Mill Co. p 710. The injury was a

foreseeable consequence of the risk created by the risk that makes the activity abnormally dangerous.

-So here, the injury of a commercially-bred mink mother killing her kittens due to explosions far away is NOT the kind of injury that makes the explosions from far away ‘abnormally dangerous.’ -To bring a claim for Strict Liability for an injury suffered as a consequence of an abnormally dangerous activity, PTF’s injury must have been caused by the hazards the risk of which led to describing DEF’s conduct as ‘abnormally dangerous’ in the first place.

3. U. Torts p 251-252

B. Damages caused by animals: 2 Ways Animals can cause damage. By 1-trespassing and doing damage to property, or 2-by causing physical injury to people.

1-trespassing animals: if escape and do damage, can bring strict liability claim against owner.

2-Animals causing physical injury. Character of animal important. “wild” or “domestic” animals. If ‘wild’ animal, court recognizes Strict Liability. Leads to categorization dilemma for certain animals (python? Monkeys?)-If ‘domestic’ animal, Strict Liability if owner knew or should have known that animal had a propensity to attack (not necessarily a prior bite). 1. Section on damages caused by animals p 686-6912. U. Torts p 253-256

C. Damages caused by abnormally dangerous activities: 6 Factors in determining if an activity is abnormally dangerous, making actor strictly liable: 1-Great risk of harm, 2-Harm would ensue if risk materialized, 3-risk created by activity not preventable by exercising due care, 4-activity was NOT a matter of common usage, 5-activity was inappropriate to the place in which it took place, and 6-value to community of activity is not great enough to offset unavoidable risks.

-Note: Not necessary to meet all 6 Factors to support a claim. 1. Policy Behind Imposing Strict Liability. Note 8 p 709. anyone who creates an

abnormal risk of harm to neighbors, responsibility of relieving against that harm when it does occur. Liability applies to activity carried on with reasonable care and is of such utility that risk involved cant be regarded so great or unreasonable as to make it negligence. Issue of whether activity is subject for Strict Liability is for Court, NOT for jury to decide. -NOT negligence, bc value to community is sufficient, activity is not wrongdoing.

2. Strict Liability Deterrence. Indiana Harbor Belt RR v. American Cyanamid Co. p 702. Apportionment of Strict Liability supposed to encourage actor to try to prevent accidents in ways other than exercising due care; possibly by shifting to another locale where less risk of harm (5) or by reducing scale of activity to minimize # of accidents (6). -‘abnormally dangerous (or ultra-hazardous)’ refers to the activity, NOT to the substance.

3. U. Torts p 256-265

D. Introduction to products liability1. Definition of ‘Product.’ R3d Torts 19 Supp p 31. A tangible personal property

distributed commercially for use or consumption. Services, and human blood and tissue are NOT products.-3 Elements of Products Liability Claim: 1-Injury, 2-from a “product,” 3-ID the DEF (can be anyone from the manufacturer to the merchant). -Policy: Law that seeks to have manufacturer/seller stand by product.

2. U. Torts p 268-270, 299-304

3. Cause of action based on negligence

4. Cause of Action based on breach of warranties: Concept of Warranties originally from Contracts Law. Courts have imported those concepts into Tort Law; a PTF can support a claim in Tort Law based on a Contract Law concept. However, Courts reluctant to allow DEFs to import defenses from Contracts.

a. Express Warranty: UCC 2-313. A seller’s or manufacturer’s specific statement about a product’s features or attributes. Statement must be expression, representation of Fact of Quality, not ‘puffing’ or opinions. (1) Privity not needed to support claim. Baxter v. Ford Motor Co p

718. ‘Shatter-proof Windshield.’ PTF entitled to support a claim against manufacturer despite absence of privity of contract btn PTF and manufacturer (in contract with dealer).-PTF must say that the claim that was breached in the warranty was a factor in purchasing the product.

(2) U. Torts p 312-314, 308-311b. Implied Warranty: 2 kinds of implied warranty.

(1) Implied warranty of fitness for a particular purpose. UCC 3-313. 1-buyer wants goods for a particular purpose, 2-seller knows about purpose, 3-seller recommends a certain good, 4-buyer relies on the seller’s recommendation. For a claim, under this argument, seller must have represented product in a way that was asked for.-‘occasional sellers’ NOT exempt from this cause of action.

(a) Mclaughlin v. Michelin Tire Supp p 31.(b) U. Torts p 316

(2) Implied warranty of merchantability. Goods are required to be ‘fit for the ordinary purposes for which such goods are used.’

(a) Example of violating warranty of merchantability. Henningsen v. Bloomfield Motors p 722. Buyer’s wife driving, and all of a sudden, steering wheel malfunctions and steers her right into a wall. Can’t bring claim under Express Warranty. Nor directly under Implied Fitness for a Particular Use (if did not ask for dealer’s recommendation). However, make argument that in steering malfunctioning, did not meet the standard of the product’s ‘ordinary purpose.’

-‘occasional sellers’ exempt from this cause of action.(b) Notes 3-5 p 727(c) U. Torts p 314-315

c. Disclaimers and limitation of remedies: A Disclaimer has meaning in Contracts, but NOT in tort law. Also, claim must be filed within 90 days if case to be brought in Contract. NOT in Tort, see next section.

(1) U. Torts p 317-322

6. Cause of Action based on Strict Liability in Torta. Introduction

(1) Timely Notice? NOT HERE! Greenman v. Yuba Power p 732. Not needed in Tort claim.

(2) Note 8 p 737(3) Special Liability of Seller of Product for Physical Harm to

User or Consumer. R2d Torts 402A p 736. -1: one who sells product in defective condition unreasonably dangerous to user or consumer is subject to liability for physical harm thereby caused to ultimate user or his property, if a- seller in business of selling product, and b- product is expected to and does reach consumer without substantial change in condition in which it is sold. -2: Rule 1 applies although a- seller has exercised all possible care in prep. And sale of product, and b- user has not bought product or entered into any contractual relation with seller.

(4) U. Torts p 271-273, 278

b. Type of Defect(1) Product Defectiveness. R3d Torts 2 739-740. Product

defective when at time of sale or distribution contains manufacturing defect, is defective in design, or defective due to inadequate instructions/warnings. A) Manufacturing defect when product departs from its intended design even though all possible care was exercised in preparation and marketing of product.

-Not much controversy about this one.-Compare product to its own specifications. If fell short of those specs, then strict liability.

B) is defective in design when foreseeable risks of harm posed by product could’ve been reduced or avoided by the adoption of a reasonable alternative design by seller.

-this suggests that in order to support a claim in strict product liability for defective design, PTF must also bring an alternative design. Majority of Courts maintain that it is not a complete defense, but merely a factor.-“Consumer’s Expectations Test”: -DEFs suggest using a Risk/Benefit Analysis: if benefits outweigh the risks, manufacturer not liable. -Some Courts use 1, some the other, some both.

-Diff btn ‘Manufacturer Defect’ and ‘Design Defect?’ costs to maker are huge if design defect, as it means every product made with that design is now defective. With ‘manufacturing’ defect, only a single product, batch, etc.

(2) U. Torts p 279-282(3) Issues in Design Cases

(a) Risk-Benefit Analysis; will making product safer eliminate its social value? O Brien v. Muskin Corp p 750.

(b) Stewart Reaffirming strict liability for product design cases Supp 33-40

(c) U. Torts p 273-278

(4) Issues in Warnings cases(a) U. Torts p 280-295(b) Pharmaceuticals. The learned intermediary doctrine.

Warnings and instructions to be told to doctor (the learned intermediary), who communicates these to the end-user. Relieves drug companies of liability. -Courts have decided to hold drug companies liable, given these reasons.i) Notes 11-12, 14-16 p 763ii) U. Torts p 305

(c) Direct to consumer advertising

7. Defensesa. Plaintiff’s Conduct – Comparative Negligence

(1) U. Torts p 296-297b. Preemption

(1) Preemption Supp p 52: Based on Federalism. If a drug or product is FDA-approved, a manufacturer cannot be held liable under state strict product liability law, bc when State Law vs. Federal Law, Federal Law wins.

(2) Note 4 p 783