Torts Final Outline

TORTS FINAL OUTLINE

What is Torts Torts is about compensating someone who was wronged at the fault of another

Torts Criminal

P v. D (private law brought by private people) State v. D (wrongdoer) (public counterpart of tort law)

Burden of proof = a preponderance of evidence (just over 50%)

Beyond a reasonable doubt

Goal = compensating ($), vindicate sense of justice - right/ wrong (get a lawyer not a gun),sense right and wrong, shaping future conduct, since no healthcare, use torts

A function of tort = peacekeeping, so can come to ct to vindicate your right -- use legal means not react on your own

Punish/ deter antisocial behavior (fines to state (not usually to the victim), jail)

Overlaps with punitive damages - but very rare in tort 4-6% cases go to trial

Fault based systemo (other than strict liability - which is small area

Torts =Common law system (not like Civ Pro - rule based) - uses cases -uses community standards - which change over time

Legal Analysis Torts starts from common law of England, all

case law Been around for so long, consensus

Ex: Tort of battery (Not every crime gets criminally prosecuted - so use torts (ex: class actions- state can't address these all)

Crime of battery (bring both)

Broad issues:Tort tax - can't compete with other countries - so worried --- + we don’t have healthcare - so use tort lawsuits

Healthcare problem Paying more b/c of tort liability PRO = we have safer product (no toys with lead)

Goal of tort law

1) Fairness/ Corrective justice - Correct wrongs, injustices, that have occurred in the course of human interactions

o Achieve fairness for its own sakeo Correct past wrongso Tort judgments are ends in themselves

2) Safety/ Instrumental perspective create incentives for actors to behave more carefully in the futureo (not correct past wrongs) but to deter future losses o Reduce future injurieso Tort judgments are means to the end - achieving a less dangerous (more

prosperous) society 3 basis of liability

1) Intentional conduct - intentionally hurt someone else (who should pay? The one causing the harm)o What is in their head - infer from substantial evidence- proving they meant to hurt

them 2) Negligent misconduct - the standard of a reasonably prudent person - who weighs the

risk and benefits of what they're going to do - doesn’t require perfect safety - but calculated riskso Taking an unreasonable risk with someone's safety - so you pay o Ex: Car crash

Hard part is what is below or above the standard of care - subjective state of mind doesn’t matter

Use expert opinion (ex. Dr with malpractice) 3) Strict liability - no intentional misconduct (yes intentional conduct) and no negligence -

engaged in an activity which itself creates a substantial risk o Even if carried out with all reasonable care, you need insurance to cover it if it goes

wrong o Blasting (blowing up buildings)o Even if you took care, you're liable o Keeping wild animals (monkey)o Nuclear reactor o Aerial pesticide use - ruining organic farmers crops

Product liability is a hybrid - negligence and strict liability

KNOW

Intentional torts = subjective standardo For INTENT consider the specific D's subjective state of mind (NOT a reasonable

person)o D has to know to a substantial certainty that the consequence will happen (not that

it could or might happen) Negligence - Objective standard

Determining Damages (SEE DAMAGE TAB)

Time Limits:

Statutes of limitations Intentional torts = shortest time - w/in 1 yr of P discovering the injury

o Statute of Limitations 1 yr for assault and batteryo Sometimes want to say I meant to do it! (so SOL runs sooner, then your off the

hook)o Then punitive damages

Unintentional, fault based torts = 2 yrso Starting time varies, either when injury occurred, when P discovered injury etc. o 2 yrs for negligence (lasts longer)o Look at the Graveman - which tort rules the situation

Less money, but get quickly and don’t have to prove fault Tolled - the Statute of Limitations doesn’t start to run, if victim is under legal disability,

starts when disability ended Statutes of Repose = 4 - 6 yr time periods that begin to run upon an event occurring other

than discovering injury to the P Ex: Product Liability actions can't be brought 6 yrs after sake of defective product

(regardless when injured) Constitutional?

Intentional Torts: Interference with Persons and Property

o Intent Restatement 8A : Intent- actor desires to cause the consequences of his act, OR

he believes that the consequences are substantially certain to result from it Intentional Torts = intentionally with no provocation hurt someone

State of mind matters Evil state of mind intending to cause serious harm -----> to innocent

intent to cause trivial contact with someoneo When liable is it because:

Ct disapproves of the conduct Ct disapproves of what D was thinking Or both

Don’t need foreseeability for intentional torts If A intends tort + causes an unintentional tort - still in trouble Can be indirect causation

Can't insure against intentional torts Don’t want to let people do intentional torts knowing they have

insurance for it Statute of Limitations

1 yr for assault and battery Sometimes want to say I meant to do it! (intentional SOL runs

sooner, then your off the hook) Then punitive damages

1. Intent is limited to the CONSEQUENCES of the act rather than the act itself INTENTIONAL torts are subjective standard - what was he THINKING

Garratt v. Dailey 5 year old boy who moved chair that P was about to sit down ino Did Brian have intent? = (no desire) did have KSC consequence (harmful or offensive

contact) would result? -- what was he thinking at the time of the act?o NOTE: yes he intended the act (he meant to move the chair) that’s NOT ENOUGH

JX SPLIT = some ct require intended contact to be harmful/offensive other jx - intending contact that then turned out to be offensive is

enough EX: Contact = He knew she'd hit the ground OR Harmful contact = he knew

she'd hit the ground and be hurt (doesn’t need know break hip) - depends on the jx

o What is the evidence that he knew she'd hit the ground

If he was thinking, I hate her, I want her to break her hip = YES harmful contact (DESIRE)

I love Ruth, I moved it before I saw she was sitting, I tried to move it back so she wouldn’t fall = (NO - didn’t know she'd fall)

I knew she was going to sit, but I thought she'd just stand back up = (NO KSC will fall) o Reasonableness doesn’t matter, he could be naïve, IF HE really thought

she could stand back up - no intent, Its knowledge to a substantial certainty that WILL occur

I knew she might fall, but I hoped she wouldn’t get hurto Not substantially certain, just he knew of a risk, not sure would happen -

NO I knew she'd almost certainly fall, I know it hurts when you fall, but I didn’t

know shed break a hip Probably enough -Knew to substantial certainty would have contact - and

knew would hurt {don’t need to know exact injury of breaking hip}

2. Intent and diminished capacity: Children: liable for their own intentional torts if they had intent to cause consequences

o Parents =not liable for tort of children, CAN be liable themselves if negligent for failing to supervise

o sue child b/c want to recover from parents homeowners insurance policy Some states have statutes imposing liability on non-negligent parents for the

malicious or wilful acts of their kids - with dollar cap on liability (limited liability) Mentally Retarded and Insane people : YES liable based on intent as long as they are

capable of formulating in their mind the intent to hurt/cause consequences

McGuire v. Almy [mentally ill women hits caretaker - still battery even though she's insane woman] [use to show when threats used to show intended battery- the mental patients threats were used as evidence of her intent]

Look to surrounding circumstances to determine if the patient intended to hurt someone/something! (here had intent said would kill caretaker)

YES BATTERY - treat same as anyone - good policy: 1) compensate victim

Insane person should have to pay their resources not fair to make victim pay

2) shape behavior, encourage safety - parents watch kids, caretakers watch patient = layer of caution

Vigilance of caretaker {Caretaker may have consented - if you consent to working with insane

person and if your hurt can't sue} P did NOT "assumed the risk" when she entered the room when D was in crazy state

o no previous attack in last 14 monthso P feared D would hurt herself with furniture parts

3. Liable for Mistakes - Conversion action

Ranson v. Kitner (1889) - Wolf Dog Case Conversion (destroying someone property - need to show Intent) -not a transferred

intent action mistake doesn’t get you off hook, you intended to cause consequence + it

happened -- so you pay Act: pulling triggerIntent: (1) Desire to cause consequenceso Intended to kill + destroy that animal - and hit THAT animal (no need transfer -

hit what intended) didn’t intent to kill a dog but that doesn’t matter

WHY- liable when mistake - b/c have to be MORE CAREFUL Better than holding victim liable

4. Intent can transfer between torts AND between persons

Doctrine of Transferred Intent Transferred intent = between P's

o If you intent the result to someone, and cause to someone else you're still liable

Hits wrong person And between Torts

Intends to cause apprehension (assault), but hits them (pays as if intended battery)

Intends to cause imminent apprehension but then hits a dog Driver pays - conversion

States of mind that work for transferred intent

o Battery =Desire cause harmful/ offensive contact (to P or another) OR knew with substantial certainty would

o Assault=Imminent apprehension of harmful contacto False imprisonment= Desire to confineo Trespass land= Enter land5. Trespass chattels (personal Property) = Intermeddle with personal property

o IIED - now allows TI in Restatement 3rd o The Restatement, Third - IIED applies in part for transferred intent

Ex: upset ex girlfriend calls Mike w/ untrue story that his daughter died gruesomely but Mike's friend Bill answers and hears the whole story

Caryn subject to liability even though she intended to harm Mike not Bill

No transferred intent yet in IIED b/c no one uses Restatement 3rd yet

o NO TI for conversion

HOW To Do AnalysisHypo - driving car mean to hit A and hit B

Intending a battery for A - but don’t hit him

Do analysis for what actually happened A = assault (go with tort A actually suffered)

Act - driving car towards A Intent for assault --- DCC (of battery) Effect - assault= imminent apprehension of harmful or offensive contact

B get hit (battery - do what actually happened)Act - drove car towards himIntent - intended harmful contact to A which transfers to BEffect - battery -harmful or offensive contact

Talmage v. Smith Trespass boys sitting on sheds -owner throws stick @ boy on roof, stick

hits boy on ground Owner liable for battery - transfer intent = between people

o Act - threw sticko Intent – testimony that D desired to have the stick hit Smith boy which would

cause pain; transferred intent to Talmadge boyo Harmful contact – Talmadge boy hit in the eye- lost vision; impairment and

pain satisfy harmful contact requiremento Causation – throwing the stick caused P’s eye injuryo Damages – compensatory for medical expenses, lost vision, pain and suffering

Policy = He shouldn’t get off the hook b/c chance circumstances it hit someone else

CAN'T Insure

Cant insure against intentional tortso Don’t want to let people do intentional torts knowing they have insurance for it

B. Battery Restatement 15 Harmful Contact

Bodily harm is any physical impairment of the condition of another's body or physical pain or illness

See Comment a: any alternation even w/o harm 19 Offensive Contact

A bodily contact is offensive is it offends a reasonable sense of personal dignity

Battery = D's intentional act cause a harmful or offensive contact with P's person YOU MUST have actual physical contact between P + something for battery P has burden to prove all elements - If P misses an element P loses Patients didn’t know at time, and find out later - still can be battery

o A kisses B while B is asleep = that is offensive contact battery o Even though you didn’t know it at the timeo NOT an assault b/c you didn’t see it coming o Would be only BATTERY CAN HAVE BATTERY without ASSAULT

Elements

Act : External manifestation of D's will (need to physically do something) Intent -

o (1) Desire to cause consequences, or (Subjective, what was D thinking, must desire consequence not act) intending to do the act of moving chair not enough (not intent to shoot the

gun, pull the chair out etc.) NEED TO KNOW SPLIT RULES

jx split- some ct require intended contact to be harmful/offensive other jx - intending contact that then turned out to be offensive is

enough EX: Contact = He knew she'd hit the ground OR Harmful contact = he knew she'd

hit the ground and be hurt/cause pain (doesn’t need know break hip) - depends on the jx

Ex: Ex: retarded guy in Kmart attacks P - Ct says he didn’t need to intend to cause harmful contact, just intent contact was enough for battery

Piano teacher touch student = battery b/c contact jxo (2) knowledge to a substantial certainty that consequences will result or

(not that it might happen, or probably, you need to think its substantially certain - virtually inevitable - extremely high risk and you knew it - you did it anyway (not just high risk, but knows its pretty much inevitable)

(throw a bomb in the carriage - you say only meant to hurt the king, but obviously will hurt the Queen)

o (3) transferred intent Effect -

o (1) harmful contact (physical contact causing impairment, pain, illness, alteration of the bodily structure) or

Ex: Dr gives you an injection (alteration of bodily structure) Not intent to harm Ex: dr - cuts someone to do surgery - not "hurt" person

o (2) offensive contact (physical contact that is offensive to a reasonable sense of personal dignity)

Did the D know it would be offensive contact to you (b/c of your religion etc.) (Note: Contextual - what are the social conventions at the time)

Causation : Direct or indirect causal connection between the act and the effecto Loose causation for intentional torts - easier o Just connection between act and effect -

can be a long time frame in between, lots of intervening events etc. (mailing poison chocolates) doesn’t matter if intervening events etc.

o indirectly (touch or with an object, or mail package, hire hitman etc. -D caused it (even if didn’t do it)

Direct = punches someone Indirect = you're not touching the person --- can be intervening things - you hit

the string tht caused ball to drop -- ending with contact - and you knew it (let your tiger lose)

Move chair, someone falls Throw ball at someone

Damages -nominal, compensatory, punitive

Nominal damages - allowed to vindicate a right = $1.00 Vindicate your rights (if you've been wronged) (men whistle at women)

One role is peace keeping -rather than self help measures like using your gun

Nominal damages - token to show P won Bring for nominal if also punitive nominal only when no compensatory Battery - NOMINALS FINE - just no lawyer would take it Assault - Don’t need to prove have compensatory - get nominal Practically you wont bring anything nominally unless trespass to land

Compensatory =

D pay, compensate P

Have to intend the consequences (not just the act) Mostly for intentional tort Compensatory damages - compensate P for loss Economic losses for personal injury = medical + rehabilitation expenses past

and future Noneconomic losses = intangible, pain and suffering and mental upset past,

present, future Market value P's property has been diminished

Wrongful death statutes - recovery for death Survival Statutes - recovery for losses incurred by victim btwn injury and

death Compensatory = funeral and burial costs

Punitive damages = only for terrible conduct - rare case Despicable conduct / horrible/malicious/ antisocial behavior can hook nominal damages on punitive when tortious behavior is especially outrageous Awards too big violate 14th Amendment Due Process Justifications:

o Compensatory damages may not be enough to deter bad actors from this kind of bad behavior

o Allows to bring a case where not enough damages to make worthwhile for lawyer to take

o Society can express outrage against D's conducto Compensate D for their legal fees

Political debateo Corporate D's say threat of huge punitive damages discourages

innovation o Many states imposed limits on punitive damages - either a cap, or a

multiple # of the compensatory damages amounto If too high, may violate due process

Offensive contact - offensive to reasonable standardBrzoska v. Olson - Dentist practicing has AIDS/ HIV - battery? No.Issue= would touching by HIV dentist offend a reasonable sense of personal dignity? (No) Effect:

1) NO harmful contact = (no pain, illness, physical impairment) 2) No offensive contact = (offensive to reasonable sense of personal dignity)

reasonableness= usually question of fact -for jury

here Ct decide as matter of law - only 1 conclusion can be reached = unreasonable to be offended here b/c no exposure , incidental touching for consented to procedures insufficient for battery claim in absence of channel for HIV infection

Rule= w/o actual exposure to HIV the risk of transmission is so minute that any fear of contracting AIDs is unreasonable

Only offensive if results in actual exposure to HIV

Ct Takes it away from jury- would feed AID hysteria / phobias Just b/c feared doesn’t mean reasonable

Minority of cts allow recovery from distress suffered during window of anxiety while

waiting for test results

Don’t need to foresee the ultimate injuryVosburg v. Putney

D 11 yr old kicks - P 14 yr old boy- in leg (then loses leg via infection) P may recover all damages even though D lacked foreseeability of ultimate injury

Plate snatching case = yes battery - Offensive invasion of his personFisher v. Carrousel Motor Hotel

Flynn snatches plate from Fishers hand and shouts a Negro can't be served in the club Fisher not touched, didn’t say feared injury (assault) but was highly embarrassed and hurt

in front of his associates1) Battery even w/o physically touching body if you contact object closely identified with the body

Item is regarded as part of the person - anything held in hand - cane, clothing etc. Offensive contact -

o Invasive when yanking something from personal possession (so touching YOU or something close to you - factually based- Grabbing clothing is invasion)

o Had no privilege to take his plate (not like homeless guy in restaurant) Damages

o No medical expenses, no wage loss - but want to compensateo Punitive and compensatory damages - for humiliation and indignity = general

damageso Compensatory damages for humiliation o Goal - compensate + Tort law evolves to guide behavior, deter bad behavior

(point of punitive damages)2) Employer can be liable in 4 instances:

Principal authorized the doing and manner of the act, or1. You hired them to beat someone up + they do

Agent was unfit + principal was reckless in employing him, or1. Hire bus driver who has lots of speeding tickets

Agent employed in managerial capacity and was acting within the scope of employment {doesn’t matter that boss didn’t approve this conduct- boss liable}

Employer or a manager of the employer ratified or approved the act1. Afterwards you OK'ed it - good job here's a bonus

Respondeat Superior (vicarious liability) Employer NOT usually liable for intentional torts of employees

o Unless ratify after the fact, or negligent hiring - know engages in bad behavior, or is a manager

Respondeat superior - teacher hurts student- Ucdavis not responsible b/c not action supposed to do with in scope of job

IF boss knew employee drinks on job and harasses women - then negligent retention Vicarious liability of employers

o Employers may be liable if negligent hiring and retention / or manger (Fisher case - was manager, in Western case - wasn’t w/in his job to pet and love people

RULE = Employer is liable for the tortious conduct of its employee that's within the scope of the employmento EX:

o If greyhound has bald tires and bus crasheso Sue Greyhoundo They created risk unreasonably

o If was negligence of employee un beknowst to Greyhound - - Still Greyhound liable + person

o Even w/o fault on companies (Greyhounds) part Liable for foreseeable negligence torts (within reasonable scope of

risks) For intentional torts -employers not usually responsible since not

part of job to beat someone up (not a normal risk of doing business)

Not with scope of employment (MAYBE though - if you're hiring a crazy bouncer and he beats

someone)ASSAULT -

Assault = unlawful attempt to commit a battery - P has fear of imminent battery + seems will happen if not preventedo

Battery = physical contact Assault = "touching the mind"

Can sue when learn after CAN'T sue if learn after (can sue for Criminal assault instead)

Elements

Act Intent

SPLIT - like with battery --- intend to cause imminent apprehension of CONTACT or harmful offensive contact(It probably wont pertain to the facts - don’t put it in just to show you know it)

EFFECT - imminent apprehension of harmful or offensive contact

Explained:

Imminent: Needs to be about to happen unless you duck or run away Conditional Threats = "your money or your life" = imminent threat of force NOT a phone call that "I'm coming over in an hr" (=future threat = not imminent)

Maybe will make intentional tort of emotional distress Words alone not enough - Words and circumstances - if the words under those

circumstances are enough - Just "I hate you I want to beat you up" words aren't enough

Insulting words alone or solicitation for sex not enough - can think D didn’t intend to do it- b/c lacks imminence --- need some kind of contact to go with it

o Words + gesture could be enough = had hand in pocket to look like a gun == need gesture or surrounding circumstances - P needs to really experience it

Apprehension : P must believe the act may result in imminent contact UNLESS prevented by self defense, flight, or intervention of outside force

Not fear: P does NOT have to believe that the act will be effective Scrawny person hitting big guy The big guy doesn’t have to be scared - just that he thinks its going to actually

happen (imminent apprehension will actually be hit) Can be unreasonable - if A intends, and B feels, even if b/c B is a coward Threat enough : doesn’t need to be able to carry it out [future threats of harm do not cause imminent apprehension of harmful contact] no need

to take evasive actions can have battery w/o assault (if didn’t see it coming, asleep etc.) doesn’t have to be completed (an assault and battery) Doesn’t have to be in rude or angry manner - Western - He claims he felt good and

amiable For assault has to be done TO YOU (if witness on other people bring IIED)

Effect: imminent apprehension of harmful or offensive contact

Even if it is not possible to make contact, D still liable for assault if P felt imminent apprehension (Western Union Telegraph)

If he intended her to feel Doesn’t matter if the counter was too long --- if he intended it and she felt it The fact that is was impossible doesn’t matter

If very impossible - 2 floors - she didn’t feel IMMINENENT apprehension

Unreasonable (but real) apprehension countsI de S et ux. v. W de S--W beats tavern door with hatchet -wife sticks head out window, W keeps going = assault

(No battery - not touched/ hurt) Assault - Depends on P + D's subjective state of mind jury think: did he intend cause

apprehension and did she really experience it?

o If the P's view is unreasonable BUT real - that’s enougho Look at external facts matter to prove state of mind

Doesn’t matter if D could have actually done it, but affects the jury if window by door- YES he intended/ she felt If he was 3 floors down and she's upstairs - that’s not imminent enough

o But if weak door, and that’s the only escape then maybe yes = jury question

Whether or not he was close to hitting her influences the jury outcomePolicy:

Don’t want P to have to get hatchet to defend self Deter bad behavior - hitting doors with hatchet

Western Union Telegraph Co. v. Hill

"come behind the counter into D's office so he could love and pet her", reaches for her, she jumps back

Act - reacheso Insulting words alone or solicitation for sex not enough - can think D didn’t intend to

do it b/c lacks imminence --- need some kind of contact to go with it (the reaching)

Intent - KSC - will cause offensive contact (yes b/c she's married) Effect - yes she jumped back = experienced apprehension ( had to move or duck to avoid

it - tells jury she thought would happen and he did intend it )

2) D liable under respondeat superior? (NO -was b/c Sapp's own sensuous desires -not approved before, ratified after or within scope of employment ) FALSE IMPRISONMENT Elements:

Act Intent Effect - confinement within boundaries fixed by the D which the P is conscious of OR

harmed by Causation Damages

Means of Confinement: (Confined via….)

Physical barriers - in a room, or car Physical force - someone drags you or ties you to chair Threats - say if you leave room I’ll beat you4. Duress - if immediate family is under harm or property then you feel can't leave room 5. Asserted legal authority - 6. Refusal to release when under a duty

RULES "fixed boundaries" can be mental {can't leave area in this open field} P must know of confinement OR be harmed by it

o If not harmed, but conscious that confined even for 30 seconds -countso If your asleep and locked in, but when you wake up its been unlocked - NO False

imprisonment {if not conscious of it, (asleep) but get harmed somehow - and learn later - can sue} Mostly shop lifting cases Confinement w/in boundaries must be complete = Physical barriers - in a room, or car Is complete confinement even if there is a reasonable means of escape (UNLESS the

person knew of the means of escape) "if you leave this room I'll beat you = false imprisonment, but is it also assault?

(conditional threat = usually NOT assault

Actual or apparent physical barriers Done via :

o overpowering physical force OR submission to physical force- someone drags you or ties you to chair

o OR submit to threat to apply physical force to person (P) when P tries to go beyond the area of confinement -threats - say if you leave room I’ll beat you

Duress - comment a only says if immediate family is under harm or property then you feel can't leave room (silly its not more - students etc.) "consent" to confinement under duress - threat harm to member of family, or property -

Asserted legal authority - Someone pretending to be legal authority- so you submit Refusal to release when under a duty - If you're under a duty to release or help release by

proving means of escape and doesn’t = liable Examples:

involuntary confinement to nursing homes Confined to hospital for unreasonable time wrong mental diagnosis Debtors detained (arrested) until pay bill Customers/ employees detained for questioning when suspected of shoplifting

Grant v. Stop-n-Go Market of TX, Inc Manager thinks stole cigarettes, on videotape, "pulls him back", calls cops [use when shopkeeper has privileged to conduct reasonable investigation of somoene's apparent theft]

Effect = confinement within boundaries fixed by D, P aware of or harmed by via:Means of Confinement

Physical barriers - Felt confined in store Physical force = if grabbed him (not clear)3. Duress - NO 4. Threat - Must show threat would inspire a just fear of injury to his person, reputation or

propertyo Said calling police - felt fear - so stayed

5. Asserted legal authority - maybe - shopkeepers privilege (reasonable confinement for reasonable duration)

6. Refusal to release when under a duty - N/A

Shopkeepers Defense/ Privilege = Common law rules and Statutes -many states have- gives merchant special privilege to detain suspected shoplifters for investigation

(1) a person who reasonably believes that another person has stolen or is attempting to steal property is privileged to (2) detain that person in a reasonable manner and (3) for a reasonable time- to investigate ownership of the property o Stores actions must be reasonable under the circumstances - decided by trier of facto Resendez = says 10-15 minutes detention is reasonable as a matter of law - without

deciding outer parameters W/O the privilege, If guard misjudges and suspect NOT guilty = then store can face false

imprisonment action With Privilege = protected if had Reasonable suspicion- doesn’t have to be right

Merchant defense - if acted reasonably + had probable cause; California Penal Code 490.5 {privilege for:}

Merchant, Theatre owner, Employee of library May detain person for reasonable time to conduct investigation in reasonable manner if

probable cause to believe … Can use reasonable amount of non-deadly force to protect self, prevent escape, or loss of

items Can examine "stolen items" which are in plain view May request person voluntarily surrender item, if refuse can do a limited and reasonable

search by those authorized to make the detention in order to recover the itemo Packages, handbags, shopping bags, NOT CLOTHING on person

May be requested (NOT be required) to show proof of identity If wont stop video taping - can refuse admission, or request person leave + give refund

Intentional infliction of emotional distress (IIED) is newer - only 50 yrs oldEvolution of Common Law

Originally = no recovery allowed for emotional distress Assault allowed for recovery for imminent apprehension of harmful or offensive contact Parasitic Recovery where another tort proven -- Fisher case - plate grabbing - was

connected -so technical battery - his damages were mental humiliation (tacked on to fact pattern for battery - existing tort)o Always could recover from ED in battery, assault, and false imprisonment

Special relationship c ould support recovery for emotional distress = common carriers hotel/traino Special Rule for Common Carriers and Innkeepers

They're held to a high standard of care -easier to get IIED cause of action

Ex: conductor insults passenger - says would give 2 black eyes if not on work = IIED even though was just a gross insult

This exception is endorsed by Restatement 48 1934 Restatemen t allowed recovery for negligently inflicted physical injury resulting from

intentionally inflicted emotional distress (heart attack, miscarriage)o when actor should have foreseen that the emotional distress would lead to physical

harmo So P's would allege physical harm = upset stomach/vomit

o Intentionally engaging w/ foreseeable physical injury could recover Physical injury so no sham claims

o Ex: jumping on casket -someone has heart attack 1947 Restatement allowed recovery for intentionally inflicted ED without physical injury

o Jury can weed out fake claimso Common law afraid of fake claims

in 2003 - Ct recognized IIED in marriage - note special caution is required when seeking IIED in marriage setting

State Rubbish Collectors Ass'n v. Siliznoff (In dicta Ct adopts new restatement 1947- w/o physical injury) [CA Cts 1st gave IIED own tort action in State Rubbish Collectors Assn v. Siliznoff w/ Judge Robert Traynor - Held that D caused the P suffer severe fight and that’s enough for the tort ] {in dicta?}

D forced to pay dues -"better pay or else", threatened to beat up unless make arrangements to pay, beat up, cut tires, burn truck

D scared, became ill, vomited, missed work Not assault b/c future threat of violence, Not battery didn’t touch him, Not false

imprisonment - he went to meeting on his own and didn’t keep him, not duress- need threat to family or property

Theory here cites 1934 Restatement - foreseen that will cause mental distress causes physical injury (he vomited)

CT announce in dicta where the law is heading = 1947 Restatement - don’t need physical injury

Under new Restatement - show extreme and outrageous behavior - don’t need physical injury

Ct concern of meaningless claims - so make boundaries to:

1) distinguishing true from false claims 2) distinguishing trifling annoyance from serious wrong

Elements:ACT - Extreme and outrageous conductIntent- Intent or recklessness Effect- Severe emotional distress

Causation-Damages- ACT

Extreme and outrageous conduct = Legal standard - an ordinary person would say "Outrageous" - high standard more than just an Acto Normal reaction = "outrageous" {average person would think very bad}

Ex: taking pictures of dead bodies, threatening to beat someone up and burn truck

o Can't just be tortious, or aggravated - Must be so outrageous in character and extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community

o NOT mere insults, indignities, annoyances, petty oppression, or trivialities. One must be expected to be hardened to a certain amount of rough language and occasional acts that are inconsiderate and unkind

Abusive language and insult not enough (Slocum)o Comment F = extreme + outrageous conduct arising from actors knowledge that the

person is peculiarly susceptible to emotional distress b/c of physical or mental condition. Conduct can be heartless, flagrant and outrageous when acts in face of such knowledge. Must be a major outrage

Jury decides if extreme/ outrageous o Exception - {easier to meet} for common carriers - carrier, hotel, theatre, telegraph

office = special relationship = duty of courtesy o But NOT all areas of business

In grocery store can just leave - but In a hotel you're stuck there

Intent Intent or recklessness, not transferred intent - desire to cause consq. Or knowledge to substantial certainty {distress is sub. certain to result from his conduct} OR Recklessness (which is new here) still subjective standard - not whether reasonable

person would have know, but did this person in fact know there was a high probability and they went ahead and it did anyway - need evil state of mind - deliberate disregard of a high probability o Recklessly - in deliberate disregard of a high degree of probability that the emotional

distress will followo Recklessness is subjective standard - the D needs to know it was high probability -

THEY realized it and did it anyway (still subjective standard -little below needing substantial certainty - high probability)

Effect Severe emotional distress

CT very demanding- Cts worried about people lying and exaggerating, so require proof that P suffered severe ED

EX: 340 hang up phone calls = outrageous, but not severe enough ED when single parent nervous, can't sleep, stress etc.

EX: D videotaped 16 yrs old undressing - yes extreme - but not severe enough = embarrassment, loss trust in men, only dress in windowless rooms - was JNOV {so jury said yes, and CT took it away from jury?}

NEED both extreme and outrageous conduct AND severe emotional distress - {b/c someone could be stoic/ laugh it off, and not experience the severe emotional distress, then shouldn’t recover}

Causation- must be causal connection between the wrongful conduct and the emotional distressDamages - no nominal - need compensatory damages b/c need severe emotional distress - so Compensatory and punitive ONLY

need compensatory, punitive likely since extreme and outrageously bad behavior No nominal, punitives are particularly valuable

Note: Sometimes even though would be IIED, not b/c- First Amendment Rights

liability depends on if speech was for private or public concern (public being political, social, or community concerns) If public matters, so D has right to free speech

Must prove EFFECT -suffered Serve Emotional Distress/ CT decidesHarris v. Jones [use when humiliation from D conduct not sufficient to establish severe emotional distress]

D ridicules P stuttering (ACT - yes outrageous) (intent- yes intend distress Can have IIED without physical injury - but here: No severe emotional distress - Dr one time for pills - not enough (already ill

tempered wife says) supervisor made anxiety worse - but not enough showing of severe change in

your mental tranquility Lesson 1- kind of proof from lawyer not great - needed medical testimony from his dr

To show had effect of severe emotional distress - testimony from Dr Lesson 2 - cts more willing to step in a police it so jury wont be swayed (jury may slide

over how he didn’t have severe emotional distress if the conduct (act) was really bad) In IIED Ct more likely to take from jury and rule Directed Verdict (MSJ)

Heightened scrutiny by the Ct b/c Don’t want to interfere with legal rights Or deter socially useful conduct that caused emotional harm Or impinge on free speech

EX: Would Fisher have right to IIED if Flynn hadn't touched the plate, just said racial slur?

{NO- b/c insults usually not enough, AND Fisher would have to have severe emotional reaction)

Extreme - -- back then (racism) just rude not extreme Intent- yes

Severe ======== would it hinge on this(on Fisher's reaction) Cause- yes Damages - sure

Act - must be Extreme and Outrageous - not words aloneSlocum v. Food Fair Stores of Florida [insults/ rude words not outrageous enough to support action for IIED]

Employee said "if you want to find out the price you'll have to find out in the best way you can, you stink to me", P Has heart attack -

Act - extreme and outrageous conduct = NO Abusive/rude language and insult doesn’t count (even is yes to other elements)

Note: grocery store not common carrier special relationship - you can leave the store

TRESPASS TO LAND=If one intentionally enters land possessed by another (even if mistake) POINT=Possessor of real property has right to exclusive possession

o permanently affixed = real property (windows, doors, desks in room) treeo Personal property/ chattel = can move - is one way to look at it

ElementsAct: external manifestation of D's will

If someone loses control of car and ends up on your property = NOT trespass {b/c not intentional entry - Not volitional}

Intent: (1) desire to cause consequences OR (2) knowledge to a substantial certainty that consequences will result OR (3) transferred intent

Intent to be on THAT land, you don’t have to know that its someone else's land --- to test title in adverse possession cases - the D really thinks its their land (intent to be on that piece of land)

Want real owner to be able to sue the trespasser even if was good faith trespass b/c don’t want them to adversely possess your land

just has to intend to be on the person's land, doesn’t need intent to invade other's interests, doesn’t matter if trespasser knew/ didn’t know was entitled to enter or not = his thoughts/ beliefs/ good faith DON’T MATTERo purpose or motive - just needs know entering land

Transferred intent:o Ex: intended put fence on A's land, puts in on B's land, B hits with mower and dieso Ex: was trying to punch someone, stumbled on their land = transfer to trespass to

landEffect: Intrusion on land in possession of another

intrusion on land, didn’t remove something on land (note throwing trash on someone land, and pollution

cases - you know for a substantial certainty will go onto someone's land) Roll bolder/ item on someone's land Liable even if his presence causes no harm to land, possessor or anything or person... liable irrespective of whether he thereby causes harm if he intentionally

(a) enters land in the possession of the other, or causes a thing or third person to do so Causing a 3rd party (like a surveyor sent over to find where property line is =

trespassing) An item left on the land

(b) remains on the land, or(c) fails to remove from the land a thing which he is under duty to remove

Trespass beneath ground, above in air space (plane yes if close and interferes substantially with the other's use and enjoyment of his land

remedy given if actor interferes with Possessors interest in excluding others from his land o Even if Possessor benefits from the trespass, and even if harmless trespass

Causation: direct or indirect causal connection between the act and effect EX: pollute ground water, it seeps into your land, wind carries it Pollution - oil tanks leaking in ground - use trespass since its intrusion into people's land

Damages: nominal, compensatory, punitive Really only tort for nominal b/c want title from adverse possession issues Adverse possession -Occupy land for time and pay taxes on land its yours So for Trespass to land - to test title, to prevent adverse possession - so for nominal - its

not about getting $1 its about saying its your land If harm done to land (ruin lawn) compensatory --- (sends surveyor - no harm

nominal)

Nuisance

Trespass intrusion of your land v. Nuisance is interference w/ quiet enjoyment of your land (we wont cover nuisance)

When air/ pollutants enters property - close to tort of nuisance - right to land possessor to be free from unreasonable interference with the use and enjoyment of her property

Rogers v. Kent County Board of Road Commissioners (failure to remove) D had license to place snow fence in P's field + should remove fence and anchor posts at

end of each winter season left a steel anchor post, P mowed thrown off mower + died Act - failing to remove (failing to act is an act) Intent at time to remove the post = intent to leave the post there? NO

o At time trespass occurred - no intent just was an oversighto Argued negligence and Trespass -Johns says NOT A TRESPASS b/c

accidently left it there (lacks intent)o Rogers case - felt like negligence case but arguing for Trespass b/c government

immunity (didn’t mean to leave it there= negligence) o Point is leaving something there when right had expired

Trespass to Chattels = always bring with conversion

Act- external manifestation of D's willIntent- (1) desire to cause consequences (2) knowledge to a substantial certainty that consequences will result or (3) transferred intentEffect - harmful intermeddling with personal property of another justifying $ damages

Intentional interference with the personal property of others Causation- direct or indirect causal connection between the act and the effectDamages - compensatory, punitive (unlikely)

Depends on seriousness of interferenceo If interference is minor, and D pays only the value of the harm caused to the chattel

Conversion - bring with Trespass to ChattelAct-external manifestation of D's willIntent- (1) desire to cause consequences (2) knowledge to a substantial certainty that consequences will result, NOT transferred intentEffect - substantial interference with personal property of another justifying the requirement that D pay the full value of the property to the P

Restatement 222A conversion is an 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.

Causation-direct or indirect causal connection between the act and the effectDamages - compensatory (full value) punitive (likely if bad faith is a factor)

If interference is serious, P has option to retain the chattel and recover the value of the harm from the D, or relinquish the chattels to the D and recover its fair market value o Note: YOU DON’T GET BOTH - you have to give up the car to get the full $

If bad faith is conversion- they have to buy the item and punitive damages likely once bad faith then conversion = punitive damageso get full value of property - pay for whole thing - whole car

Must be Harmful: Must be damage to the chattel to have a tort Unlike with trespass to land, here not liability/legal protection for action of harmless

intermeddling

Harmless intermeddling with property is NOT actionable {how can it be harmless - isn't taking it away from other a harm -- maybe harmless if person doesn’t care or know??}o If harmful have to pay for what used (flat tire etc.) - damageso {just harmless when playing with some ones item/ dog?}

Which to use:

always bring these together - always plead in the alternative/ inconsistent they slide as question of degree -

o Extent/ duration

Restatement 222A(2) In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important:

(a) the extent and duration of the actor’s exercise of dominion or control;(b) the actor’s intent to assert a right in fact inconsistent with the other’s right of control;(c) the actor’s good faith;(d) the extent and duration of the resulting interference with the other’s right of control;(e) the harm done to the chattel;(f) the inconvenience and expense caused to the other.

EXAMPLES

o Ex: student takes your book, 5 minutes, spills coffee on it and returns it = trespass to chattel - liable for harm to chattel

o If student takes book for 2 months (didn’t know not hers) then returns it = conversion - pay full value for book

o Also conversion if knowingly took your book (b/c needed a textbook) = intent to appropriate the book (even if just 1 hr = so serious, P can demand D has to pay value of book)

I take your book , I thought it was mine,

I intentionally took the book Doesn’t matter didn’t know it wasn’t mine

(desire to cause the consequence -Mistake doesn’t matter

Trespass to Chattel Conversion

Act Act

Intent - 28 states of mind (TI tort) Desire or KSC (knowledge to substantial certainty)

Effect harmful intermeddling with personal property

Serious interference with personal property justifying forced sale

Causation Causation

Damages- compensatory Compensatory (full value) possibly punitive if bad faith

Glidden v. Szybiak [no trespass to chattel] dog bites girl, no trespass to chattel on dog b/c dog not harmed - so she isn't barred from recovering

NO recovery for harmless intermeddling, Toby not hurt so NO trespass to chattel - she can pursue a tort action (not precluded by statute)

Restatement 218- intentionally intermeddles with a chattel (personal property) if chattel is impaired, possessor deprived of use, bodily harm

Intel Corp. v. Hamidi ("spam" case) NO harm, no trespass D sending mass emails is NOT Trespass to Chattel Same as Glidden case- NO HARM (to Toby dog, or here to computers)

D's interference must have caused some injury to the chattel or P's rights in it No nominal damages and need actual damage for cause of action Here NO damage caused - other than tech support spending time to try to block the

emailso No interference with computer functioning (if overburdened computers then YES)o NO property interest in their employee's time (not personal property)

Its about impairment of chattel and employees are NOT chattelRULE: trespass to chattels does not encompass an electronic communication that neither damages the recipient computer system nor impairs its functioning. I. The Monster Intentional Tort

Began in 1789 w/ country founding - only used lately

Abdullah v. Pfizer, Inc. 2nd Circuit, 2009 (pg 68) [Alien Tort Statute (ATS) 28 USC 1350 - allows aliens to sue for monster intentional torts]

Pfizer + Nigeria government didn’t get informed consent and didn’t disclosure the experiment/ risks

SUED under ATS alleging experiments violated international law Q- Was this a violation of the law of nations?Here looking (not at treaty) but at law of nations

To decide look to 84 countries sign on to this (international convention- what have countries signed onto?)

4 covenants adopted by most of the world 1) achieved universality so fair to say met law of nations - YES (don’t give experimental

medicine without consent) 2) Specific - can't be vague and unenforceable - YES - you need consent in their language 3) mutual concern - people would care - yes b/c medical issues can spread, and hurt

medical research Ch 2: Privileges/ Defenses

PRIVILEGES = Affirmative defenses for intentional torts Privileges to Intentional Torts

1. Consent2. Self-Defense3. Defense of Others4. Defense of Property5. Recovery of Property6. Private Necessity7. Public Necessity8. Legal Authority9. Disciplining Children

Privilege = one owes NO legal duty to refrain from so acting, special circumstances where the D may escape liability for what would otherwise be a valid case

o Conduct would normally be prohibited but under the circumstances is permitted

ORDER On EXAMo 1st P shows prima facie case (Go thru Act, intent, etc.)o 2nd D shows affirmative defenses / privileges ( then D must reply and can rebut, and

allege affirmative defenses)o D had burden to produce proof to support privilege and persuade trier of fact of

its validity

One time privilege does NOT function as an affirmative defense (but destroys the prima facie case) is with offensive batteryo EX: kissing stranger would be offensiveo But if stranger consents then eliminates prima facie case - then NO offensive

contact- {rather than being an affirmative defense, it eliminates the prima facie case}

o {normally prove case, then show defense, here would be NO case}

A. Consent (1) Consent is willingness in fact for conduct to occur.

Shown by action or inaction and need not be communicated to the actor = did the P agree - so from Words or Conduct and infer what they were thinking

if words or conduct are reasonably understood by another to be intended as consent, there is apparent consent =effective as consent in fact

Consent = subjectively willing for conduct or consequences to occur

o Usually communicated consento OR if D can prove the willing state of mind did exist (apparent)

Rules If you consent - cannot recover for harm resulting from conduct consent must be

(a) by one with capacity to consent or person empowered to consent for him, and(b) to the particular conduct or substantially the same conduct

if give conditional consent or consent restricted as to time, area, or in other respects is effective only within the limits of the condition or restriction o If actor exceeds consent, then liable for the excess

upon termination of consent -effectiveness terminated Invalidates Consent= Mistake, Misrepresentation, or Duress(2) if A induced to consent by substantial mistake concerning nature of the invasion of his interest or the extent of harm to be expected, and mistake is known to B or is induced by B's misrepresentation the consent is not effective for the unexpected harm or invasion(3) consent not effective if given under duress Consent Analysis

Was there actual willingness? {P ok / willing to have conduct happen} Was there express consent? {words - "yes ok"} Was there implied consent? {thru P actions} Was the conduct w/in the scope of consent? {did D end up doing more than P agreed

to}{can't do surgery on left ear} Was the consent invalidated by:

o Mistake? {misunderstood nature invasion/ extent of harm - has to be known by D or induced by D}

o Misrepresentation? {___________}o Duress? {immediate family or property may be harmed}o Lack of capacity? {child, retarded}

Consent Invalidated by Lack of Capacity

Invalidated if: o P under temporary or permanent diminished mental abilityo P incapacitated - like intoxicated o P is minor - wont allow if consent carries a risk of substantial

injury Mature minor doctrine to decide what age can give consent

look at age, ability, experience, education, training, degree of maturity

Or just have to reach a certain age (18) Minor consent to sex on case by case basis for tort

Implied/ Apparent Consent Counts = Apparent consent has same weight as actual consent O'Brien v. Cunard Steamship Co. (MA 1891) (pg 76) [NO battery b/c apparent consent]

Boat from Ireland to Boston,, girl raised arm, vaccine = skin reaction/sick 1) Prima facie case

Elements for Battery and Assault 2) Affirmative defense = Consent (apparent/ implied consent)

example of apparent consent even if she didn’t want it, overt acts made it look like she was OK with it, so conclude she consented and dr is protected

{Could say consent invalidated by:} 892B - was it misrepresented to her (said had to have vaccination) , mistaken (let

her believe she had to have vaccine - don't give quarantine option, she held a mistaken belief b/c of their misrepresentation), acted under duress(thought had to consent or wouldn’t be able to get off boat)

Implied consent /apparent consent - But was it really - didn’t look at her situation - she was operating under mistake induced by D's misrepresentation

She was 17 and couldn’t read, and not in 1st class area - in steerage (she couldn’t read signs about vaccines)

Implied Consent/ Assume Risk In SportsHackbart v. Cincinnati Bengals, Inc. 10th Circuit, 1979 (pg 79) (trial ct held implied consent)P hit in back of neck by D - illegal hit for footballQ for jury - is it not actionable b/c P Consented?

Trial Ct = violence is integral part of game = implied consent to getting hurt when they play

Assumption of risk and contributory fault = Hackbart had accepted the risk he would get injured in the game

Football is inherently dangerous Question =does the player consent to injuries caused by conduct not within the rules

of the gameo (trial Ct didn’t consider this question - remand for new trial)

Implied consent to what's in the rules and what you know happens - people hit outside the rules etc.

Where the line to draw between what's in the general customs of the game and what's allowed

1) Battery Act - hits in neck/headIntent - yes - hitting him on purpose to hurt himCause - yes2) Defense - football is inherently dangerous {and consent to that when play}Note: Not everything is fair game, if goes beyond rules and customs of the game (ex. Pulling a knife)

This Hitting him could be found to be beyond the rules and customs Is a jury question its grey area

Amateur and Recreational Sports

Question - should rules and customs of game override tort liability? Ex: Avila v Citrus Comm College - baseball - pitcher threw ball at head - against game

ruleso dismissed claim of battery

b/c customary way to retaliate, Player consents that may get hit when plays

What about games among friends- implied consent?o Knight v. Jewett - YES implied consent violent conduct in flag football, but not

conduct so reckless is outside range of ordinary activity for that sport injured person assume the risk to injuries by participating? (assumption of

the risk)

Cts apply assumption of risk doctrine to sports and recreation cases Cts apply consent concept in relations to intentional tort claims

Medical battery - yes battery (surgery is infliction of bodily harm) but is a privilege Medical -Consent so not batteryChristman v. Davis VT 2005 (pg 84) [lesser oral surgery done than what consented to - not battery b/c Dr. privileged by consent]Facts

P consented to tissue graft D decided to do flap procedure instead

Rationale Consent to a particular conduct or substantially the same conduct bars recovery for

batteryo Battery - when No consento Lack of informed consent = medical malpractice = If gave consent but lacked info

on alternatives and risks/ benefits of procedure o Negligence - if failed to disclose a risk

Did less than was authorized to do, treatment is within bounds of consent Dr. needs to be able to exercise their medical judgment

YES Battery=Act - yes cut mouthIntent - harmful contact - altering bodily function - yes he intended thatCausation - yesDamages - yes

No negligence - since Dr. did act reasonably - lesser included treatment Food for Thought Battery

Mohr v. Williams -case of overreaching beyond consent- P agreed to surgery on right ear, but Dr decided surgery was needed on left ear = P wins for battery {usually need same point of incision to be privileged}

NO Battery Kennedy v. Parrott - appendectomy - Dr finds ovarian cyst- punctures it - cut blood clot

- leg problem = NO Battery b/c it was right for Dr to puncture it when surprisingly finds it - would have been bad to exposure P to 2nd surgery to do same thingo {here, already within surgery finds something harmful to P, and takes care of it,

different than performing on a different part of body - different ear}

Murphy v. Implicito - said Don’t use a cadaver bone in spine surgery - Dr exceeded consent - Dr. liable for battery for using cadaver bones, but not $ for failed surgery since bone didn’t cause failure

Battery b/c didn’t TRULY consent Perry v. Shaw - P denied breast enlargement twice, then when medicated before

surgery she signed consent -NO consent Hensley v. Scokin - surgery wanted nasal tubes for anesthesia - she knew he said he'd

decide and she stayed for operation doesn’t mean she consented o need oral disclosure over just the contract

Bundrick v. Stewart - signed broad consent form, NO battery when resident Dr did surgery

Johns paper on - Off label prescribing - prescribe non FDA use - (started aspirin for heart disease)

Yes, allow but I want to know if there one that’s on label Dr.s don’t always know- believe pharmaceutical companies

De May v. Roberts (Michigan 1881) (pg 90) [consent to medical treatment procured through deceit]

Poor married woman giving birth Dr brings random guy - consent but via mistake induced by D's misrepresentation so

NOT consent, is Battery P has legal right to privacy / sacred occasion D acted with deceit P recover for shame and mortification learning the truth {like fisher

v. carrosell - have a real battery - offensive contact - then can recover for the emotional distress}

Consent was invalided - Restatement 892b (supplement) - induced by substantial mistake - induced by the others misrepresentation o No affirmative misrepresentation o But he had obligation to disclose it then === jury found in favor or woman

Yes Battery Act - holding her handIntent - know to a substantial certainty offensive contact

Consent Invalidated by Fraud Dr got her consent via deceitful, fraudulent conduct Bowan v. Home Life Insurance (1957)- Insurance guy did "exams" on women - consent

invalid b/c consent was thru fraudulent misrepresentation that he was a Dr. RULE - the misrepresentation must be about something that affects the intrinsic

nature and quality of the invasion or harmo Misrepresentation of collateral facts NO ex- say give $20 for medical experiment

and doesn’t pay, you still consented question w/ news reporters lying to get access to film something

Consent Invalidated by Duress

Ct invalidates consent if given to protect self or loved one from physical harm Ex: Hutchinson v. Brookshire Bros. police officer made person suck 10 gallons of

gasoline out of his car b/c couldn’t pay for it. Had hand on gun, said do it or else come with me- up to jury if duress

NO duress w/ priest and women in marriage counseling having sex- was consensual (even though she claimed she couldn’t consent b/c his influence as counselor)

Economic pressure = duress? Like boss says have sex or will be fired RULE - when duress is present, consent is vitiated {destroyed/ doesn’t count}

o {if consent was given under duress, its like you did NOT give consent} Grager v. Schudar (ND 2009) (pg 94) [duress case]

Jailor has sex with female inmate consent is NOT a complete defense - if b/c of duress For criminal liability - yes strict liability - Jailor always wrong even w/ consent Contributory fault does not bar recovery unless fault was as great as all others

combined who contributed to injury So make new common law - mix criminal statute and comparative fault Using statutes = (abnormal for torts) in ND used 2 statutes 1) strict liability crime for

guard sex with inmate 2) comparative fault statute - not about intentional tortso Neither really apply, but merged them together

Jury can consider her age, power relationship, mental capacity etc. (how real was this consent)

Jury can minimize the damages- To determine the amount of damages look at those factors

Consent Invalidated by Lack of Capacity Invalidated if:

o P under temporary or permanent diminished mental abilityo P incapacitated - like intoxicated o P is minor - wont allow if consent carries a risk of substantial injury

Mature minor doctrine to decide what age can give consent look at age, ability, experience, education, training, degree of maturity

Or just have to reach a certain age (18) Minor consent to sex on case by case basis for tort

--------------------------------------------------------------------------------------------------------------------------------------------------Negligence - P has to plead and prove:1) duty of reasonable care - what does reasonable person do, and how did D depart from that

Ex: drive 65mph, if go over breached duty2) breach of duty was the-3)Cause in Fact - of the injury (but for cause- would it have happened

4) proximate cause - question of policy - is it fair to hold D liable or some reason that their breach of care -shouldn’t have to pay5) Damages - no nominal - must prove compensatory = rarely punitive Informed Consent = a negligence cause of actionDoctrine of informed consent -used to be up to dr. to tell patients whatever they want - interest in patient autonomy b/c dr. don’t know everything

Duty of reasonable care AND duty to inform patients SPLITS - in favor of dr. - b/c hindsight on part of P - costly

Duty: to disclose all material risks likely to affect a patients decision

Majority - reasonable dr standardMinority - reasonable patient standard (CA)

Breach: Failure to disclose material riskCIF: if given all of the info, would they have consented?

Majority: reasonable person standard (CA) Minority: patients personal decision

Informed ConsentDuty - disclose all material risks likely to affect a patient's decision. Split in authority

Majority- reasonable dr standard - what a reasonable dr would disclose - Dr wants to disclose just what they normally do - usually less than what Patient would want disclosed = what a dr customarily doesGenerally - must have expert - to say this is what a reasonable dr in same of similar community would have done

Minority - reasonable patient standard - what material risks would a reasonable patient wants to know (jury decides what a reasonable person would think) (judgment calls) (CA) - more patient autonomy

Breach - failure to disclose material risk (did dr disclose it or not, so Dr put it in writing)Cause in Fact -{Was the dr failure to disclose the cause of your injury -Or would you have done it even if you knew all info} if given all of the info, would they have consented?

Majority; reasonable person standard - (CA view) -what most reasonable people would have done --- was the Dr failure to inform have stopped most people from doing it- don’t want {the specific P} 2nd guessing -"{Oh I wouldn’t have done it - just bc bad risk materialized - hindsight coloring perception not fair to dr

Minority: this patients personal decision - no this is there autonomy - THIS patient wouldn’t have gone thru with the surgery if knew material risks, even if reasonable patient would have

Proximate Cause: Damages - compensatory, rarely punitive CA

reasonable patient standard for duty (full disclosure standard) Dr standard for cause in fact (you can't say I wouldn’t have done it anyway)

Scott Case Exceptions:1) full disclosure would have been detrimental to the patients best interest or

Really only if P can't make a rational decision2) an emergency existed requiring prompt treatment and patient was incapacitated or3) P knew of the undisclosed risks

Something's we all know - very obvious risk Scott v. Bradford (OK 1980) (pg 99) [use reasonable patient test for duty] [consent founded upon inadequate information regarding risks = consent not adequately informed]Looks at duty and breach (if know the facts) and cause in fact Procedure

o Verdict for D here, but later will use the doctrine of informed consent o Announce in dicta - hadn't yet officially adopted the doctrine

Facts Had hysterectomy - urine leaks - 3 more surgeries to fix it Claim - lack of informed consent = wouldn’t have done it if knew alternatives to surgery

availableIssue

OK use doctrine of informed consent as basis for medical malpractice (YES)Rationale

To consent to medical treatment - need adequate information, alternatives available, risks = duty on Dr. to informo Battery - if Dr. performs without any consento Negligence - if Dr. gets consent but breached his duty to inform/ disclose

Right to decide what'll be done with your own body Duty to disclose enough so that patient knows enough to make an intelligent choice =

RULE = full disclosure of all material risks to treatment must be madeo "material" IF would likely affect the patients decision (is a question of fact)

Negligence action b/c lacked of informed consent 1st element: duty to disclose Pg 101 - reject reasonable dr standard

Want a standard based on the patient And question of its material - don’t have disclose non material things

Instead examine the credibility of the P's testimony {where they claim wouldn’t have had the surgery}

P must prove prima facie case and D must prove privilege - For medical malpractice action suing under lack of informed consent P must prove:

1) Lack of informed consent Elements:o 1) duty to inform= Dr. failed inform of material risk before getting consento 2) causation - if had been informed would Not have consented (lack of informed

is cause of injury) Causation - the P would have chosen no treatment or alternative if risks

were made known (if still would have chosen surgery, no causation)o Must be causal connection between breach + injury

o 3) injury = the undisclosed risk did happen, and was injured b/c of treatment 2) Dr. Defense if say P knew all risks, full disclosure would have been detrimental, or

was emergency o Privilege to dr. not to disclose =

what everyone should know, or what P already knows If disclosure is "best of the P" where disclosure would alarm an emotionally

upset or apprehensive P3. Or in an emergency

This is dicta/ opinion only - since new duty being put on Drs. So for cases after this one

Note: Lawyers have duties - confidentiality and can't represent if conflicting interests - can be

waived with informed consent of client Lawyer must communicate material risks and alternatives available

Legislating Informed Consent

States pass Statutes about informed consent Some use Canterbury reasonable patient test Most states use reasonable dr. test (like NY)

o 1) lack of informed consent - failure disclose alternatives/ risks that a dr. under similar circumstances would have disclosed

o 2) can only recover if - non emergency treatment or diagnostic procedure involves invasion

o 3) reasonably prudent person would not have undergone treatment if informed

Informed Consent; Doctors but not Hospitals? Cts will hold the Dr. but not the hospital liable when failed informed consent 2 ways hospital is liable when dr. fails give informed consent:

o 1) Dr. employee of hospital - liable under respondeat superior o 2) when hospital acting as research institution conducts clinical testing on

humans No bright line rule for how much need to disclose Moore v. Regents of UC - (used spleen etc. to make cell line)

o RULE = Dr. must disclose any personal interest he may have that is unrelated to the patients health that may affect his personal judgment

Often dr not employees of hospital, have privilege to work there on their own- so not superior respondeat

Some Radical Ideas: Broadening Informed Consent

Scholars argue that Drs. And hospitals should have duty to reveal statistical data on relative risks + track records of success

Dr should reveal their experiences and success ratio b/c dr. experience is a factor in patient deciding (should refer to someone else is

inexperienced etc.)

Currently dr. doesn’t have to inform patient about alternative treatments not covered by HMO

Lots of divergence in what Dr.s think needs to be disclosed, and same among different patientso Negative incentive - dr get less money if refer to specialists (child with poison oak

not treated correctly b/c didn’t seek specialized care)------------------------------------------------------------------------------------------------------------------------------------------------ B. Self-Defense

Force used must be reasonable given the actions of the other Must reasonably believe the other person is about to inflict force If D makes a reasonable mistake, still protected by privilege See Restatement for retreat Rules

Courvoisier v. Raymond (CO 1896) (pg 107) [appearance matters approach]D sleeping, people trying break into jewelry store belowD shoots to scare rioters awayCop (P) comes, D doesn’t hear it’s a cop and shoots him in stomach

If the jury believed D would have been justified in shooting a rioter, must determine if D mistook the cop for a rioter, and if that mistake was made, was it excusable (based on the circumstances) then judgment for D

For necessity self defense D must satisfy the jury that he acted honestly using force, + fears reasonable under the circumstances

Hold/ Disposition can find was self defense, even if cop wasn’t assaulting him - reasonable belief - self

defense privilege- get benefit of reasonable mistake - he can use deadly force if he mistakenly believed it (jury decides if was reasonable mistake)

Here no fault, so usually no liability - harsh to innocent Po Now cop has stomach injury + didn’t do anything wrong, and he may get nothing

= innocent victim

Self-Defense in the Restatement, Second, of Torts Justified in using force to defend self Ex: robbery with fake gun D shoots robber (P) and is justified by self defense

Force used must be reasonable given the actions of the other Must reasonably believe the other person is about to inflict force If D makes a reasonable mistake, still protected by privilege See Restatement for retreat Rules

63 Self Defense by Force not threatening death or serious bodily harm

(1) An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, 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. (2) Self-defense is privileged under the conditions stated in Subsection (1), although the actor correctly or reasonably believes that he can avoid the necessity of so defending himself,

(a) by retreating or otherwise giving up a right or privilege, or(b) by complying with a command with which the actor is under no duty to comply or which the other is not privileged to enforce by the means threatened.

65 Self Defense by Force Threatening Death or Serious Bodily Harm (1) Subject to the statement in Subsection (3), an actor is privileged to defend himself against another by force intended or likely to cause death or serious bodily harm, when he reasonably believes that

(a) the other is about to inflict upon him an intentional contact or other bodily harm, and that (b) he is thereby put in peril of death or serious bodily harm or ravishment, which can safely be prevented only by the immediate use of such force.

(2) The privilege stated in Subsection (1) exists although the actor correctly or reasonably believes that he can safely avoid the necessity of so defending himself by

(a) retreating if he is attacked within his dwelling place, which is not also the dwelling place of the other, or(b) permitting the other to intrude upon or dispossess him of his dwelling place, or(c) abandoning an attempt to effect a lawful arrest.

(3) The privilege stated in Subsection (1) does not exist if the actor correctly or reasonably believes that he can with complete safety avoid the necessity of so defending himself by

(a) retreating if attacked in any place other than his dwelling place, or in a place which is also the dwelling of the other, or(b) relinquishing the exercise of any right or privilege other than his privilege to prevent intrusion upon or dispossession of his dwelling place or to effect a lawful arrest.

Section 70 - 71 = limit of excessive force - only liable for excess force used

Case =Can hit a cop if unlawfully arresting you - now mostly done away with right to resist unlawful arrest

You Started the Fight In some jx, you start fight, no right to self defense Ex: Root v. Saul - Saul provoked the attack by 1st slapping Root (after Root smoking

cigar in Saul's house) so when Root got hurt from Saul's headlock, no defense

RULE =aggressor doctrine D who is initial aggressor loses right to self defense unless he abandons the fight and gives notice that he's done soo {Joe slaps Ted, then Ted retaliates and Joe "in self defense" shoots Ted NO b/c

Joe started it} Exchanged with comparative fault = conduct apportioned

o (reduces the amount of damages that a plaintiff can recover in a negligence-based claim based upon the degree to which the plaintiff's own negligence contributed to cause the injury)

RETREAT East says have to retreat West says don’t Restatement pg 111 -

o For lethal force have to retreato Can stand ground in house

C. Defense of Others-split -

If defense of someone else is reasonable --> it is privileged If D made a mistake and the other person did not need to be defended --> D is liable

for harm done

If D made a mistake and the other person did not need to be defended = D is liable for harm done

wont allow mistaken belief even if was reasonable = act at your own peril {so if you messed up, your liable}

b/c don’t want people getting into things they don’t know - stay out - if you get involved your liable for any harm caused

v. Restatement view - Johns likes - if make reasonable mistake you get protected -

should step in and help people if someone's in danger - go help them (if make reasonable mistake shouldn’t get in

trouble) v. you shouldn’t butt in when don’t know what's going on Restatement - to protect the intervener If defense of someone else is reasonable = it is privileged

Are Would be Rescuers Privileged to Intervene?

Intervening actor privileged to same extent as the one threatened would be privileged to defend themselves o Requires more justification to use deadly force

Cts uphold most often for family members and acquaintances (also strangers) D. Defense of Property

Katko v. Briney (spring gun in farm house)- aim spring gun at legs - you can't use deadly force to protect your stuff - b/c what if it’s a kid, or someone in need (trapped in snow storm)

D rigged gun to bed in bedroom P' s thought house was abandoned, get jars from it P hit in right leg above ankle

ISSUE does the D have right to set up shotgun trap (NO)

o What is reasonable under the circumstances - if excessive wont be privileged - here no danger to people living in the house

NO deadly force to protect property, value people over property Had people been living there, can use lethal force

RULE = law values human safety above rights to property, no privilege to use force for death/ serious bodily injury UNLESS also a threat to D's personal safety which justified self defense. Spring guns only allowed if the D was present and he could use that same kind of force

Mere trespass not sufficient for deadly force How to protect your property then?

o Dog with warning signs o Sirens or safe traps

Can't set up a death trap= could have been kids entering E. Recovery of Property

can use reasonable force to recover a chattel tortiously taken by another so long as the rightful possessor acted promptly in hot pursuit after dispossession or after timely discovery of it

NO Force likely to cause death or SBH =Reasonable force (no death or serious bodily injury force)

Mistakes are not privileged =Party recovering must be rightShopkeeper’s privilege: shopkeepers can detain a customer if it is 1) in a reasonable manner, 2) for a reasonable time, and 3) with a reasonable belief that P has stolen something

Shopkeepers can reasonably recover items- have a privilege to recover their property

F. Necessity Private Necessity

Allows damage to someone else’s property in an effort to save your own Act should be reasonable The act is privileged BUT D must pay for damage done Private necessity = (boat tied to dock)- has privilege to do what would have been

trespass - but has to pay for it - incomplete privilege - you have a right to be there - dock owner can't throw you out

Public Necessity:

Usually used to prevent a massive natural disaster No government compensation for damage done Taking =Government has to pay you for taking Public necessity = If public necessity - destroy your goods - don’t have to pay

Vincent v. Lake Erie Transportation Co. (MINN 1910) (pg 122)[boat owner makes risk-utility decision- boat or dock get more damaged + gets conditional privilege to take another's property] [privilege to take another's property to save one's own]

D ties boat to P's dockRULE - private necessity- D has to compensate for damages

Rules regulating property rights are suspended by forces beyond human control Boats are chattel (mobile) Dock is real property (can't move) w/o necessity = WOULD have been trespass to land- b/c had permission to use dock but

was revoked and D stayed anywayo (P will argue the Snow Fence case - keeping something there when should have

removed it) Note: public necessity would have been different - Sovoko v. Gary case - to keep fire from spreading - for public necessity- they don’t have to compensate if destroy the property - (but can have special bills- legislature to pay - but not required to)

In private necessity have to pay

Sacrificing Property to Save Entire Communities Destroys property of another to save (not his own property) but to prevent loss of life

of save a town from destruction Ex: Destroy a home to make firebreak

o D was privileged - not liable - b/c prevented all of San Fran from being destroyed necessity

Ex: throw someone's things overboard keep boat from sinking necessity

Injuring, Maiming, or Killing to Save LivesTicking time bomb problem - torturing terror suspects

Can you torture 1 who knows about the bomb that if it goes off kills thousands?o Privilege of necessity

Defense of necessity when facing terrorism Or when explorers marooned in a cave, kill and eat humans to survive

Homeless people use necessity b/c say have to sleep outside G. Legal AuthorityApplies to public officials when acting within limits of their rolesPrivilege to arrest IF done lawfully

Privilege to enter private property BUT liable for harm done to property

Privileges of public officials to effect lawful arrestso With reasonableness requirement of the 4th Amendment

If arrest without probable cause or warrant - can be liable for torts Privilege to enter private property = NOT trespass

o If harm property government can be liable - Constitution taking clause - can't take w/o compensation

H. Disciplining Children

Parents: privileged to use reasonable force to discipline children Teachers and school officials: may use reasonable physical force to subdue a child in

order to maintain order and control in a school setting o See book for discussion on when force can be used as a punishment in school

Spare the Rod and Spoil the Child

Privilege to parents to use reasonable physical force to discipline their children Custodians in loco parentis may have right to use corporal punishment NOT babysitter Teachers and school officials can use reasonable corporal punishment

Ex: Hawaii - was it battery? - v. principal taped 7yr old head to a tree= excessive use of force - - was a 1983 for 4th Amendment violation

Teacher's Privilege: The Constitutional DimensionIngraham v. Wright (1977) (corporal punishment OK)

SCOTUS held that corporal discipline in schools doesn’t go against 8th Amendment cruel and unusual punishment or the due process clause of 14th Amendment o The punishment must be reasonable in light of:

The seriousness of the offense Attitude and past behavior or child Nature and severity of punishment Age and strength of child Availability of less severe but equally effective means of discipline

o Excessive physical discipline = civil and criminal sanctions

State legislature - strongly discourages or bans it in many stateso Some states allow force to subdue not punish

I. An Umbrella Justification DefenseSindle v. New York City Transit Authority (NY 1973) (pg 131)Kids on busy nuts, threatens to take to police - False imprisonment - OK THOWas privileged though? Reasonable under the circumstances? (YES)

Justified under the circumstances Sindle case - justification case - rowdy kids on bus, --- tort law reasons by analogy= allow behavior under those circumstances - create a privilege out of it

NEGLIGENCE Objective - D did not need to INTEND to cause harm Reasonable person standard = what a hypothetical reasonably prudent person would do

under the circumstances Harm - P must suffer an ACTUAL Harm to recover (unlike Intentional Torts (trespass land,

offensive battery= invasions but not HARM to P)

Negligence Cause of Action - P must prove 5 elements 1. Duty = Reasonable care under the circumstances [avoid causing harm to another]

a. Rely on jury for common sense what's reasonable2. Breach = failure to use reasonable care3. Cause in Fact = D's failure to use reasonable care was a substantial factor in causing harm

to P (but for cause)4. Proximate Caus e = For fairness and policy reasons, D should be required to compensate P

a. if acted unreasonably and hurt someone =yes payb. harder with odd facts/ intervening factors

5. Damages = Compensatory. Punitive in very egregious casesa. (no nominal damages - were all negligent all the time, but if no harm no foul)

General Standard of Care: Negligence BalancingWhat should be the duty? ( What is Reasonable) NO DUTY -clean yardLubitz v. Wells -golf club in yard, NOT negligent. Big burden always pick up (small risk harm) Obviousness of the danger puts user on notice (No duty)Killeen v. Harmon Grain Products - toothpick retailer not liable - fault of careless user

B<PL then Negligent Look at facts of

case

B = Burden of taking precautionsP = prob harm will occurL = gravity of resulting injury

Risk utility balanceRisk outweighs benefit (of not acting

If Burden to take precautions small & lots chance of harm occurring with grave injuries, duty owed

Done by JURY Think $ (Cost of prevention) v. Cost of harm/ lawsuit

US v. Carroll Towing Co. Judge Learned Hand - D breached duty

D left barge alone, broke free from dock, hit tanker -which lost its flour Held Bargee had Duty make sure Barge didn’t crash, breached by leaving unattended

(Know ppl tie and untie boats to navigate) Small/No burden to tend to boat

Washington v. Louisiana Power & Light Co. D didn’t breach a duty

P electrocuted on power line D knew risk of injury but NOT unreasonable risk

o B (to bury lines) BIG > P harm, small, L injury big 46 states w / comparative fault -Could have said 75% P's fault, 25% Power Co fault

What's Reasonable in Emergencies - Duty to do what reasonable under THOSE circumstances (unless you cased emergency)Cordas v. Peerless Transportation Co. -cab driver jumps out cab going b/c robbers in car SUDDEN Incapacity

Stroke/ heart attack/ faint - cause accident -NOT negligent if condition could not have been foreseen o Not sudden mental breakdown (never really "sudden"

Follow Customary PracticeTrimarco v. Klein -shattered bathtub glass, L duty breached?

Custom a factor, NOT DISPOSITIVEo Not following custom -tends show DIDN’T use DUE CARE = o Following Custom maybe STILL negligent (custom not safe - custom to jaywalk)

No custom to do something, doesn’t mean don’t have to do ito T.J Hooper tug boat negligent b/c didn’t have radio on board (even though not

custom to) Limits innovation =Afraid change from what's custom, fear found negligent Overinvest - hospitals afraid liable, so overinvest in precautions - becomes custom - now

everyone has to spend that much Reasonable person test = what would a reasonable person have done under the same or similar circumstances

BELOW NORMAL BRAINS Ignorance is no excuse (liable)Vaughn v. Menlove Haystack on fire (He thought was reasonable, don’t care) Reasonably prudent person wouldn’t do that

Things Reasonable Person Knows Car parts working -Delair v. McAdoo- bald tires, cause accident, Negligent (Duty to check

parts) Habits of humans and animals, and forces

o Ex: get kite out of tree, don’t grab power line Smell a gas leak, shouldn’t strike match Don’t pick up newborn puppy- b/c mother will be mad Common law

MENTALLY DISABLED - held to NORMAL Person standard (Except for patient harming caregiver in institutionalized setting - no duty there to be normal person) Physically Disabled Reasonable Person - act as reasonable person with same CONDITION wouldRoberts v. State of Louisiana Blind guy -no walking stick - bumps fragile guy in Post Office

Act as reasonable blind man - YES - NO breach Religious PersonNO RECOVERY or AVOIDABLE INJURIES

Ex: wont take medicine b/c of religion and injury gets worse Ex: wont get blood transfusions - ct needs to look at religion - not just if reasonable within

religious beliefs - look at religion + risks to decide if reasonable choice Can consider religion as a factor

KidsGenerally : reasonable kid of same age, intelligence, experiencesException: less than 5 years old can't be negligentException: Adult activity - normal reasonable person: Stevens v. Veenstra - 14 years old driver ed, liable b/c adult activity = which activity depends on Community Standards

Adult = snowmobile, motor scooter, GUNS= SPLITMinority: Rule of 7s- Illinois (0-7 no negligence) (7-14 child standard) (14+ adult)

Expert

D says has superior knowledge- People RELY on it - take extra knowledge into account when deciding if acted reasonably

Professionals (Heightened) Reasonably prudent Professional with good standing in community

o Will need expert (In Similar community) to testify what Prof. should know/ whether this prof negligent

o Not liable if ONE Dr. would do differently- follow all reasonable Prof in community If 2 reasonable choices, not liable for picking 1 and bad outcome Held to this standard when in Dr/Patient relationship (otherwise Dr act normal person)

Helling v. Carey (Glaucoma) didn’t follow Medical Custom

Dr doesn’t test her eyes, that was Normal standard of care for community/ custom

Ct steps in says - SHOULD have duty here (B<PL) (burden test small compared to Serious eye injuries) -

DR liable (Odd not legislative decision to impose eye tests) CT sets the Standard of Care

Judicially Determined Standards of Care

Usually JURIES set standard of what was reasonable under circumstances Ct shouldn’t make blanket rules (varies by case) - Legislature can

o Baltimore v. Goodman - Holmes =if not sure train coming, standard = get out of car and look

Later case, Ct holds P liable for not getting out of car - dumb b/c that’s too dangerous in some situations

Ct uses Risk -Benefit analysisTimpte Industries Inc. v. Gish Ct decided NOT negligent design of trailer

Johns =Question of fact = was trailer negligently designed - should go to JURY to analyze Are there feasible alternative designs?, utility of design v. the risk = to JURY

Ct Borrows Statute to show standard care owed (what duty owed)-Negligence Per Se

Role of cts in setting the standard of care by borrowing the governing rule from either criminal statutes or administrative regulations

Judge sets the minimum standard of care - uses statutes and regulations Legislature already said action is unlawful, so Ct agrees

o Statute may not provide civil liability Don’t win whole case proving statutory violation, - need causation Using v. Borrowing

o Can use applicable statute if specifically gives a civil remedy (ex: Consumer Safety ACT - says if injured b/c act Violated can recover damages

o Borrow statute that doesn’t say Civil Liability - but Ct uses it to show DUTY

Violate Statute = Negligence Per Se Actor negligent if w/o excuse violates a statute to protect against that type of accident,

and victim within class of people to be protected Excused - when good reason not follow statute (more reasonable to break the law)

o Ex: snow on sidewalk, so walking on road, then hit by caro Walker went against statute, (walk on sidewalk) but its OK b/c she acted reasonably

under the circumstances

Ex: State statute says if vehicle disabled put warning sign 100 feet behind car. If not, person

can't stop in time, and accident. Failure do that is negligence per seo w/o the statute his failure would just raise a jury question as to if he was negligent

Vehicle code violations - if you hit someone, you need to stop = criminal sanction - o No civil liability in statute, but use in Ct to establish D did owe a duty (to stop)

Statute for not sexually assaulting mentally ill in group homes -

o Statute is to protect against THAT Type of accident, and protect THOSE people even though not civil statute

Martin v. Herzog - car didn’t keep right, buggy had NO lights on ,no excuse/reason = Violates statute all buggies need lights, so Negligent Per seo Cardozo- an unexcused violation is negligence per se jury MUST find its negligent

Borrowing Statutes1. When should a Ct borrow statute to establish the standard of care in a negligence action?

o Statute imposes a specific duty to protect ppl, P in class to be protected, accident was the harm to be prevented

1. Does the statute impose a specific duty for the protection of others?2. Was the P within the class to be protected by the statute3. Was the accident of the character the statute was designed to prevent4. Did the D breach the statutory duty?

[Note: Causation is a separate issue]

2. When a statute is borrowed, what procedural effect will it have? Violation of statute =1. Evidence of Negligence : An unexcused violation of a statute is evidence of

negligence for jury to consider. Jury hears evidence of allegedly negligent conduct, takes statute into account,

and decides what the appropriate standard of care should be Statute like custom (relevant but not binding)

2. Rebuttable Presumption of Negligence: Violation of an applicable statute creates a rebuttable presumption of negligence which can be overcome by showing reasonable care.

Creates a prima facie case for negligence- can be rebutted by evidence that a reasonable person would have acted that way

If D shows was reasonable, statute doesn’t play role {is this just an EXCUSED violation?}

3. Negligence Per Se : An unexcused violation of an applicable statute is negligence and jury must find breach of duty. (Martin v Herzog)

Judge decides if statute was applicable, directs a verdict on standard of care Jury just decides if actor violated statute and if negligence had causal

connection to harm suffered3. Is the statutory violation excused

1. Actor is incapacitated; (Heart attack while driving, minor, retard)2. Actor neither knows nor should know of the occasion for compliance; (taillight out)3. Actor is unable after reasonable diligence or care to comply;4. Actor is confronted by an emergency not due to the actor’s misconduct; (good tires

blow, wet streets, breaks suddenly fail, sudden dust storm, driving on left to avoid hitting a kid)

5. Actor would create a greater risk of harm by compliance.i. (law says walk facing traffic, but for some reason would be more dangerous

here)

Statute used as Evidence of Negligence (Not Negligence Per se)Reque v. Milwaukee & Suburban Transport Corp.

P injured when fell getting off the bus parked more than 12 inches from curb Statute - bus must be within 12 inches)

o Class be protected/ Harm to be prevented Harm intended = avoid cars hitting bus (NOT so exiting ppl don’t fall)

So just use statute as evidence Stachniewicz v. Mar-Cam Corp. Negligence Per Se

Bar fight, bar owner violated Liquor Control Statute/regulationo Harm = to prevent alcohol abuse/ bar fightso Class = bar patrons

Causation issues - hard show that 1 extra drink served caused Guy to fight patron

Violation of Licensing Statutes- NOT Negligence per se, if didn’t cause the injury Ex: nurse not licensed, works on you, = not negligence per se

o Her non licensure wasn’t cause of injury Ex: Brown v. Shyne (1926) chiropractor didn’t have license - said could treat disease- P

went paralyzed -o improper to tell jury that practicing w/o license is evidence of negligence

Ex: License doesn’t matter - if you run the SOL and weren't a licensed lawyer, same as if you were a licensed lawyer- negligent b/c let the SOL run

Impson v. Structural Metals, Inc. (TX 1972) [unexcused violation - so negligent per se]

Criminal statutes prohibits passing within 100 feet of intersectiono Harm= collision from passing too close to intersection, Class- other drivers

Truck driver passes in no pass zone, accidento Driver knew of intersection, and no passing law, no excuse or emergency

Complying with Statute doesn’t mean NOT Negligent

Statutes set minimum standards of care but a reasonable person might take more precaution

Ex: speed limit 50 - ok if normal, NOT when snowing

Proof of Negligence: Res Ispa Loquitur "The thing speaks for itself"

Circumstantial evidence using a preliminary fact to create the inference of negligence (duty/breach) even when you don’t know what happened

1. Accident is of a kind which ordinarily does not occur in the absence of someone’s negligence

2. D is probably responsible for the negligence which caused the accident; instrumentality

was in D’s control*3. P did not contribute to causing the accident4. Information about the accident is more readily available to the D

Ex: Scissors in stomach - don’t know which person left it there = use expert testify whose to blame

like passenger on train when collision, or person walking on street hit by falling object)

Byrne v. Boadle Barrel flour falls out window D's warehouse injures P Someone did something wrong to have the barrel come out of the warehouse - most

reasonable and likely inference is it was a warehouse worker Barrel flew out the D window --> ??? -----> ??? ------> D was negligent

Singh v. United Cerebral Palsy of NYC, Inc. Door senor fails, Door closes on P

1. Not normal accident w/o negligence2. D responsible for doors (still exclusive control even though other co. work on door too)3. Not P fault4. D has info on doors - notice of defect

Restatement 3rd Gets rid of exclusive control

Ex: a toe in the chewing tobaccoo Manufacturer canned in warehouse --Shipped somewhere--Sold to retail store--

Bought by customer yes in different people's control, not exclusive control, but manufacturers fault) We don’t really mean exclusive control - its who was probably in control or negligent at

the time

Ybarra v. Spangard Know by name, still law in CA P appendectomy, unconscious body pulled on table - neck/shoulder injury - doesn’t know

what happenedo Since unconscious can't say WHICH D, and dr wont tattle on each other

"exclusive control" means right of control (ok if touched by more 1 person)o jury decides who is most likely responsibleo burden shifts to D to come forward with the explanation

Better than not letting P recover at all

Holding - where an unconscious patient suffers injury to an unrelated body part during surgery, the D's have the burden of proving that they were not negligent and did not cause the patients injury (All D's with control over his body or instruments)

Policies:1) compensate vulnerable P2) recognize heightened duty of care in special relationships and3) overcome conspiracy of silence

Giant departure from exclusively rule - normally P must prove WHO (which D) Majority of cts reject Ybarra

Once you get res ipsa what does it do? What is the procedural impact?

Changes from P explains, jury decides to P WINS unless D can rebut

Sullivan v. Crabtree - jury doesn’t have to find for the P (res ipsa is evidence not JMOL every time used)

Crabtree truck driver, flips, duno why P wants use Res Ipsa to say he must have been negligent

What procedural effect of using res ipsa? P says = If Res ipsa applies I win, unless D can prove he was negligent - should get

judgment as a matter of law for duty and breach D saying NO JMOL - it just permits a jury to find in your favor - its just evidence - gets to

the jury- but doesn't compel a finding in your favoro b/c the inference could be very compelling in some cases, and not so much in others

Rule: o Sometimes res ipsa just gets you to the jury (Signh)o Sometimes all the way to a JMOL (Byrne)

It depends on the facts and case - sometimes inference so strong, ct finds jury has to find in P's favor, or not a strong so the jury COULD find for P but doesn’t have to

Majority rule = res ipsa is like other circumstantial evidence - sometimes very powerful - but not alwayso Permits but does not require an inference of negligence - unless so strong would be

granted in any case (even w/o res ipsa) Shifts burden of proof from P to D -- on duty and breach (res ipsa a way to prove

BREACH) -- otherwise couldn’t get to the jury b/c couldn’t solve your elements Jury still needs to find damages (did the barrel actually hit you and cause your

damages) negligence in the air doesn’t give rise to liability (coming close to hitting a

biker, you're not negligent- must have actually happened- just b/c barrel flys out window- not negligent if it didn’t CAUSE the damage)

That was all Proving Breach- Duty of care and breach (1st 2 things) ---- really goes to breach (we think they did something wrong)Res Ipsa is circumstantial evidence FOR BREACH (can get JMOL on that element) Duty - reasonable care not to let barrels fly out of warehouseBreach - ---normally P has to show Employee X was drunk and stumbled and threw barrel -- but since we don’t know that = now infer it from circumstantial evidence

DEPENDS - sometimes so obvious you win JMOL for breach

Other times jury decidesCause in Fact --- did the barrel cause the injury (but for cause)Proximate Cause --- not did it cause it - but how far back trace responsibility?

But for the nail, no horse shoe, no rider, no war, lost kingdom --- wont go that far back The butterfly effect --- yes but for, but too far back

Damages

But-For Causation(Cause in Fact): Not just did D cause the harm, did the breach of D's duty cause P's harm

o Q fact for jury - use evidence/ expert testimony BURDEN on P: prove to preponderance of evidence (tick over 50%, more prob that

not)that D breach of duty caused P's injuryo Gets benefit of doubt with facts (speed of train etc.)

"Post hoc ergo propter hoc" =after this, therefore because of this= WRONG o after this doesn’t mean b/c of this (could be coincidental)

Note: worse D's breach/ fault - will go to jury even on thin causation evidence + if D breached a duty designed to protect against the risk the P was exposed to - to jury on thin evidence

IF accident would happen w/o D Breach, not CIF (Being Negligent (Duty/Breach) not enoughPerkins v. Texas & N.O.R [yes train negligent, but accident would happened anyway - not CAUSE]

Car driver was negligent driving on the tracks and it was the proximate cause of the P's death

Train negligent speeding - 37 not 25- but would have hit car on track regardlesso But not actionable b/c NOT cause in fact, not a " substantial factor in bringing

about the harm" D Breached Duty (proper rescue) but that wasn’t the Cause of InjuryFord v. Trident Fisheries Co [breach of duty (not having safety boat) didn’t CAUSE death of P]

P was climbing stairs on boat, windy, P thrown overboard D breached duty to have properly tied safety boat - took a while get it down to search for

P Doesn’t matter! P already disappeared (lack rescue boat not CAUSE him to fall in)

Ex: P falls out of tree, D doesn’t get help, NOT CIF of P injury

D's Breach Greatly Multiplies Chance of P Harm = CIFReynolds v. Texas & Pacific RY [yes, she may have fallen anyway, but D's negligence greatly multiplied chance of accident to P]

Fat P in bright sitting room -Train coming - told HURRY- rushed down stair - no light no handrailo CLAIM _ P would fall even w/o lack handrail/darkness

Failure to take precautions (duty- breached) and that’s the harm that happened =increased probability

RULE - Where negligence of the D greatly multiples the chance of accident to the P, and naturally leads to that harm, the mere possibility it may have happened without the negligence is NOT sufficient to break the chain of cause and effect between negligence and the injury

Common Carrier - duty safe conditionso When discussing the duty/ breach could find a safety Statute (building codes)

saying buildings need well lit (no civil remedy in statute (not negligence cause of action)- meant for regulating building safety, but use to show they were below code)

Help show jury - this breach of duty was CIF

Was Failure to Warn - the CIF?

Obvious risk - NO DUTY to warn Risk not clear, but D can prove P knew of risk- then failure to warn NOT CIF Rebuttable presumption that P would read warning provided

o D can rebut = show P wouldn’t have read/heed warning

Technical Proof: expert testimony - D's Conduct Capable of Causing the P's Harm?Kramer Service, Inc. v. Wilkins need medical experts - say CIF

Piece Broken glass over hotel door, falls hits P in head, gets cancer there D CIF of scratch, NOT CIF of cancer (less damages to pay out)

o Cause of cancer unknown (not the D)1) post hoc propter hoc - NO, bad theory - just b/c temporal relationship, not cause and effect2) Need expert testimony to support your theory - when beyond lay jury knowledge (like what causes cancer)

Can't use Probabilities

Well that was the only bus line working at 1AM must been Cause (NO) could be private buses etc. o Just b/c good chance statistically, not enough

Daubert: Expert Testimony

Q - is D's conduct capable of causing harm? When can expert testimony reach jury (too lax = all junk science gets in, too strict - wait

until everyone accepts science, wait too long)

1932 Frye v. US -Ct Standard = science must have gained general acceptance in that particular field

Daubert: Fed Rules of Evidence (RULE 702) - rejects Frye's general acceptance rule, require the evidence to be reliable scientific knowledge that will assist the trier of fact

The trial Ct should considera. Is it scientific knowledge that can be tested? - can replicate itb. Has it been subjected to peer review and publication?c. What is the known or potential error rate?d. Has it achieved general acceptance? (Frye)

o (doesn’t have to achieve all 4, judge just considers all these) Abuse of discretion review (not usually overturned)

Frye had higher standard but cts loose about meeting the standard Daubert test is applied more rigorously -- cts stricter when letting evidence in

Hard to meet Daubert Standard: Keep evidence from reaching JuryRider v. Sandoz Pharmaceuticals Corp [toxic tort case]

P claims DRUG caused postpartum hemorrhagic strokeo Expert testimony of CIF excluded - based on speculation not scientific methodo Research not on point (similar class of drug, show high blood pressure, not stroke)

Issue of too strict standard? Keep too much out? PT= juries can be swayed and harder to sort things out hearing it orally v. judge can read

and think about it (and decide keep out from jury)

State Cts can follow Daubert or not (can keep Frye) 20 states use Daubert (Fed Rules 702) 12 use Frye ------D could remove to Fed Ct to use 702

Loss of Chance (to recover)/ Increased Risk of Harm - delay in diagnose/ CIF of PREMATURE deathHerskovits v. Group Health Cooperative of Puget Sound

D negligent - fail diagnose lung cancer timely = caused 14% reduction in chance of survival

What's injury?o If death = D not liable, CIF death was lung cancero If lost chance of survival - D was the CIF of THAT injury

Goes to jury - to see if D increasing risk was substantial factor brining harm/death (CIF)o Dr damages would be for premature death (not death)- so loss earnings b/c died

earlyMinority = recovery barred if P chance survival was under 50% anywayMajority = loss to chance to jury decide

70% chance to survive, dies b/c dr. negligent, full recovery would been $100K, Dr. pays $70K

Two (or More) Negligent Actors Concurrently (or Successively) Cause the P's HarmJoint and Several Liability Indivisible Harm- 1 harm from P and D's negligence together

Ex: 2 independent hunters negligently shoot near P, #1 hits left eye, #2 hits right eye - together P blind, o Together jointly and severally liable for P's total blindness

2 Independent Actors, cause 1 indivisible harm, both 100% responsible Hill v. Edmonds

D1 Truck negligently parked side road no lights P =PASSENGER in car (D2) negligently hits truck, speeding

o Both acting independently = concurrent causation Concurrent causes combine to produce 1 indivisible injury to P - each responsible for

the entire result (100%) even though his act alone may not have caused it = Joint and several liability

Joint and Several Liability Arises when....1. Defendants acted in concert to cause the harm (Joint Tortfeasors)

o ex. drag racing - 2 cars, 1 hits P, both liable (vicarious liability) - had all agreed to participate

2. Defendants acted independently but caused indivisible harm- it is impossible to allocate the harm to either defendant’s conduct

Joint: defendants can be joined in same action (P doesn’t have to join them)Severally: defendants are each liable in full for the plaintiff’s damages although the plaintiff is entitled to only one total recovery

Each D is responsible for the entire result even though his act alone might not have caused it

Historical rule - Joint and several liability -- if 2 or more negligent D's causing 1 injury , P go after both, or just 1 for all 100%

TODAY if D1 overpays can go after D2 (contribution)

2 causes - either would have produced harm - either pay 100%Kingston v. Chicago & N.W. RY.

Fire from train sparks + Fire from unknown origins = either alone would have burned down P's house

Each D liable for 100% (Train pays)o Unless 2nd fire from nature, then train not liable

When One of Several Negligent Actors Clearly Harmed the P, But we Can't tell Which One ONLY 1 of 2 D's caused Harm, Burden Shifts to D to prove NOT himselfSummers v. Tice

Quail hunting, D1 and D2 shoot at P--independent actors-both negligently shooting, only 1 hit P but hold D's as joint tortfeasors both 100% unless a D can show wasn’t him

P can't prove to preponderance of evidence was 1 or the other (over 50%) - shift burden to Do ONLY when 2 D's 50/50 situation

Market Liability - rarely appliedSindell v. Abbot Laboratories (Don’t have every D who could done it in Ct room)

P mom took DES (prevent miscarriage)o Can't prove which D (200 drug manufacturer to blame)

Can't use Summers - Alternative Liability Theory = more than 2 ppl, not all in Ct Can't use Concert of Action Theory -Drug Cos not acting in concert/assisting each other Can't use Industry wide Liability/ Enterprise liability -(Blasting cap guns- only 6 Manu's) Create Market Share Approach (Justice Mosk)- Drug Co Liable for their share of market,

% DES they sold o 5-6 companies produced 90%, hold those ones liable (if produce 30% DES pay 30%

damages) Has to be a substantial amount of market (can't sue 10% of industry)

o Changes burden of proof from P having to say which D, still need prove DES caused injury/Daubert standard for letting in evidence

Doesn’t work for paint, guns, asbestos Has to be fungible product (all exactly same) = unlike guns

Sindell: Market Share Liability (SEE SLIDE)D1 - 1% market share - pays $1,000D2 - 4% market share - pays $4,000D3 15% market share - pays $15,000D4 30% market share - pays $30,000D5 40% market share - pays o (if can prove did not sell the drug to P) 90% market share D's pay $50,000 Then P only gets $50,000, Damages were 100K

Can be CIF and NOT Proximate Cause A negligent, hits curb, tire pops B has to slow down passing pulled over A B hit by C in intersection later on/far away -

o CIF - but for A negligence, B wouldn’t been in intersection at that moment but A not PROX cause of B injury (C is)

Proximate Cause = is it fair to hold D responsible

Are we justified imposing liability?o Were events Freakish or extreme?o Unforeseeable event?o Intervening actions?

Restatement = foreseeability (JOHNS = that is 1 factor)

Liability Limited to Reasonably Foreseeable ConsequencesD liable for foreseeable ongoing risk caused from his NegligenceMarshall v. Nugent

D truck driver negligent into Car lane - cars blocking rd P (car passenger) goes up hill flag away new cars

o Gets hit Q jury if D proximate cause (D didn’t HIT P but CIF b/c had he not been neg. no reason for

P to walk up hill in 1st place) Foreseeable to D that causing accident, then P be hurt by car b/c accident blocks rd (D

responsible for ongoing risks)

Ex: Glass soft drink explodes, (foresee cut on glass, fall from liquid) P not cut, 5 min later slips D liable Harm that occurred not FORESEEABLE RISK from D's negligenceDemers v. Rosa

D lets dog roam (breach duty)- foreseeable risk = dog bite etc P cop has come get dog, FALLS on ice after dog already in cop car (not foreseeable risk of

roaming dog)

The 3rd Restatement = SCOPE of Liability Is the risk that materialized the risk that the D created? (within the scope of the risks that

come from D's negligence) Yes =within his scope of liability

CT Sets LIMITS

Ex: DES injuries only go back 1 generation (to the P in utero when mom took drug) Spreading fire - 1 lot over (rest should have bought insurance)

Don’t need foresee the EXACT way the harm happens (harm within scope of foreseeable harms)

Ex: foresee a violent act could occur, even if didn’t foresee rape Ex: if train breached duty foresee hit another train - don’t need foresee it will go in circle

and hit in back FLAMING RAT - D negligent has unsafe work space no ventilation -Foreseeable risk =

explosions, worker get injured. When worker injured - D prox. Cause, doesn’t matter exactly howo [detail] Rat gets soaked in gasoline, runs near flame - sets room on fire, P burned

Eggshell Skull Rule D take his P as he finds him

Negligent D responsible if his acts made pre-existing condition worseo Liable for FULL extent of injury

EX:

o Hemophiliac - bleed worse- and even though you couldn’t foresee it - your still responsible

o Pregnant person - miscarriageo Heart attacks

McCahill v. New York Transportation Co. D cab driver hits P - only broken knee, but dies from Alcohol Withdrawal (delirium

tremens) D = PROX Cause of P DEATH

o D's actions set in motion events = death, responsible (pay less for damages - shorter life expectancy if Person would died of disease) BUT D shortened P's life

Fragile Psyche: usually can't recover for preexisting mental problems being exasperated by D

o Bartolone allowed b/c had 4 dr. testify Bartolone v. Jeckovich

4 car crash caused by D. P breakdown - disabled him mentally (3 psychiatrists and 1 neurosurgeon testify)

Pre-existing schizophrenic illness exacerbated by accident - D liable

EggShell Skull Rule + Property - take boat as is - your liable If can foresee harm, don’t need foresee EXTENT of harm - liable for everything In Re Polemis & Furness, Withy & Co (1921)

D could foresee dropping plank could cause damage boat Liable even though fragile condition on boat (not foreseen) - leaked vapor - plank causes

explosion ruins boato (don’t always go this far, proportionality matters)

Hold have to foresee extent of damage Overseas Tankship (wagon Mound) 1961 - overruled Polemis

D not liable for damage not foreseen to that extento unforeseeable - couldn’t foresee the whole pier burning down o (said unforeseeable b/c P's employee was welding- and if had been foreseeable-

than P at fault for welding on that pier! Then P can't recover all)

Liable for more injuries from Medical Care Any time D neg actions cause foreseeable risk P will need medical care - D liable for harm

from medical care (foresee could be medical malpractice)o Ex: helicopter needed to get P to hospital, and crashes - D liable for P death

P gets infections in hospital or pneumonia P falls walking on crutches

Negligence Per Se and Proximate Cause

If Statute borrowed that P in class to be protected, and harm was harm to be prevented Statutes designed to prevent foreseeable risks

o Use at DUTY STAGE

Palsgraf v. Long Island RR (NY 1928) (pg 297) [KNOW] Andrews (who lost) + Cardozo- duty Q

P on RR platform, Worker pushes a man onto train, package falls, explodes, knocks over scale on P

Jury for P, now on review P losesCardozo - DUTY analysis "Foreseeable P analysis"

In Duty/ Breach section, if could not foresee THAT P being hurt, you're not liable to themo Have a duty to protect people you could foresee being injuredo Couldn’t foresee harm to P, NO DUTY owed her/ breached

Only foresee harm to guy pushing onto train (maybe negligent to him)

Dissent- Andrews -"Proximate Cause analysis" DUTY to everyone in world (reasonable care- not to harm) Breach DUTY to 1 person (guy with package) and Breach duty to ALL OTHERS INJURED

regardless of foreseeabilityo At proximate cause stage, jury can decide at some point to cut it off based on his

hints (common sense)

Analysis Duty = reasonable care not harm people (safe train procedures) Breach = yes push guy onto train

o Cardozo - NO Breach to P lady (unforeseeable P) CIF = YES (she wouldn’t have been hit w/o pushing guy onto train) (Cardozo says doesn’t

matter no duty to her) Proximate cause = Andrews - should go to jury - common sense/ fairness issue

Proximate Cause Hints (beyond foreseeability) Distance in time + place (both usually useless) Foreseeability of kind, extent and manner of injury Proportionality of risk to injury Directness v. intervening factors Tort policies: compensation, deterrence, peacekeeping Economic consequences: risk spreading (make bad guy pay), insurance (you should have

insurance), burden on industry (don’t want to cripple industries - too expensive to litigate) Administrative convenience and efficiency Common sense, fairness, justice (reflect values of the society at the time)

Restatement 3rd - Scope of liabilityThomas v. Kaczinski

D leaves trampoline out, blows on road, P crashedo Lower Ct =Cardozo approach would be= no DUTY owed to random P

(unforeseeable), D not liable

Use Restatement 3rd new rule - say D is liable (call prox cause SCOPE OF LIABILITY question)o Duty = not leave crap on road (B<PL ( easy to secure your trampoline, put a chair on

it)o Breach - left trampoline unsecure [yes]o CIF - of injury [yes]o Scope of liability - liable if the risk you are worried about, is what occurs

(Foreseeability analysis) Liable if the risk that happens is 1 that made it negligent in the 1st place Ex: Give Gun to little kid = foreseeable risk = shoot someone, (not liable for

injuries if kid drops gun on toes) Trouble = making risk too narrow (only most dangerous risk)

Scope liability = Don’t have to pay Economic HarmThe Buffalo River Fiasco

D negligently let ship loose, knocks down bridge, dams river = floodingScope Liability - Foreseeable boat will cause Property damage (D has to pay it)

Not foreseeable the "economic harms" = lost business deals b/c bridge closed

Intervening/ Superseding cause Events between D's Neg and P injury

o Some supersede = make it so D's negligence NOT prox cause anymore

Intervening Causes1) foreseeable or unforeseeable

Bar tries to attract ppl to get drunk -someone gets hurt = foreseeable2) Dependent or independent

If intervening cause dependent on D's negligence - doesn't supersede -o medical malpractice at ER -o 2nd collision occurring

3) Nature of the intervening causea) Natural causes foreseeable (wind - blowing fire, or carrying items into road) = so don’t destroy D's liability ---- if freakish cuts off liability (freak snowstorm)b) Human causes

1. Reasonable? Someone reasonably comes to help P, and is hurt - D LIABLE (dependent,

foreseeable, reasonable)2. Negligent?

Medical malpractice (if really bizarre will cut off liability ) wrong leg will count still liability

3. intentional misconduct? Malicious? Criminal? Railroad spills gas, Arsonist throws match it - Couldn’t foresee someone bad

would come make it more interesting

Today Crime NOT always supersede - - crime happens - its part of the risk you took

Intervening cause DOESN’T Supersede D's negligence if:

Foreseeable Dependent - medical malpractice Reasonable

May supersede if Criminal action

Intervening Negligent Human - DOESN’T supersede D negligenceDerdiarian v. Felix Contracting Corp.

Driver negligent didn’t take seizure meds, crashes into work site D (BOSS) still liable -Duty - safe site, Breached, CIF, Prox Cause

o (Show Duty/ Breach b/c Mt Vernon ordinance - need barricades/ flags/ lights at site) = EVIDENCE of negligence

o Intervening act was foreseeable (if no barriers, someone could crash into site)o DON’T have to foresee details (that someone miss meds has seizure - flaming rat)

Intervening Human Neg. doesn’t cut off Manufacturers liabilityBarry v. Quality Steel Products, Inc.

Roof worker falls off platform = Defective bracket Under Restatement 3rd

o Duty - make safe bracketso Breachedo CIF - yes caused P fallo Scope of liability = (Think - what's foreseeable risk - defective bracket = someone

fall injured) (foreseeable risk materialized)

BUT Intervening human negligence - employer used wrong size nail on bracket doesn’t cut off manufactures liability --- Boss and Manufacturer pay % - comparative

fault

Criminal Acts (may supersede ) - JURY question Watson v. Kentucky & Indiana Bridge & R. Co.

D RR tank, negligently leaks gaso Duerr throw match in gas = injury

JURY decided if was maliciouso If innocent - RR liable b/c could foresee someone throw cig in streeto If criminal- may supersede b/c not foresee evil person

Ex: some criminal acts should be foreseeable No locks on apartment, foresee robber

Suicide NOT always Criminal/ Superseding event ( jury q)

Some communities more conservative suicide is always superseding Fuller v. Preis

P in car accident, hits head on window, seems fine, then has seizures, kills self D may be liable for death

o Prox Cause of his death/ b/c of accident has mental disturbance o Don’t need proof of mental disease/ irresistible impulse (used here)

If driver hit / killed him - YES liable If in coma then dies - YES liable If in a coma and in will to be taken off support - YES liable

o Why different here with suicide? (Actually less damages - for wrongful death, avoid more pain and suffering costs)

"Danger invites Rescue" - liable to rescuer too Wagner v. International Railway[emergency doctrine - what's reasonable in that emergency - and Danger invites rescue rescuers is foreseeable P, D is liable to P and rescuer

Cousin falls off train, P goes to find him-gets HURT IF cousin fell b/c D negligent , then D liable to rescuer too

Cardozo Danger invites rescue -rescuer is foreseeable P (and rescuers not always careful -

emergency situation) (Andrews = train has duty to all ppl, once breach to Cousin, breached to all injured)

Good Samaritan Law

CA - trained health professionals trying to help not liablePurpose

D liable if your hurt - if hurt in attempt of rescuing someone (not slip on ice on way there) If just gawking - D not liable if your hurt

Who has "Duty" Market Share Liability - doesn’t work for GunsHamilton v. Beretta U.S.A. Corp

P's Theory is their flooding the market with guns - foreseeable guns will get illegally sold NO DUTY to P to use care in marketing /selling guns NO Market Share liability for all gun makers

o Not fungible, not uniform marketing BOOZE =Social hosts

Minority - liability for social hosts Majority imposes liability on professional providers not social hosts (not liable to

passenger in drunk guys car)

o Parents out of town can't be liable unless did something negligent - just leaving 17 year old home alone for weekend is not negligent

Dr Duty tell Medicine Side effect

Doctor need to tell Dr if the drug will impair the persons driving ability o If don’t, and person gets in accident - Dr liable to 3rd party

Duty = Q of fairness

NO duty for bank personnel to give into robbers demand (not liable that robber killed someone) o Q is NOT whether a criminal event is foreseeable, but whether a duty exists to take

measures to guard against itAdvanced Scope of Liability Rules (Cut off liability even though D negligent)

D has duty, breaches/is negligent, P foreseeable + harmed, YET LIMIT liability (how far does D have to pay- how liable is D)

Policy reasons for limits - cut off liability even though D negligento Ex: NOT prox cause for all purely economic harm that D was CIF for

{(D Liable - but then not MORE liable b/c failed to rescue?}{? Is this ch about damages?}

NO Duty to RescueGeneral Rule = no duty to rescue another (even if easy and not dangerous to the rescuer) when you didn’t create the riskExceptions

1) D's conduct created the peril to P - car crash, you crashed the car - duty to your passenger2) D's instrumentality caused injury to Po Something they owned cause it o 5 year old got fingers caught in escalator --- even though nothing wrong with

escalator3) D's voluntarily undertook a precaution or rescue that either

1) induced reliance by P or Ex: 911 operator told her to stay put in house, then guy breaks in kills her

2) deterred others from helping Life guard says I got it, others don’t get involved, D liable for exasperating

injuries4) D and P have a special relationshipo Employer- employeeo Family members

Parent child yes Siblings maybe

Not even husband wife is definiteo Teacher -student

Depends on age of student Kindergarten YES

o Jailor- jailee --- they can't get help so obligation there (prisoner can't get himself help)

o Common carrier - passenger --- also with IIEDo Innkeeper - guest ---- also with IIED (1900 century b/c no cell phones, no entrenched

in the law) o Tortfeasors - victim -- see #1o Business - invitee --- someone on the premises for the owners benefit (a customer) -

more when Taco Bell case - not as widely recognized

No liability for failing to rescueYania v. Bigan

Worker jumps in deep ditch (peer pressure) Co-Workers NOT negligent - b/c NO DUTY To rescue him

Extend Liability - YES Duty Rescue - Business/ Invitee relationshipBaker v. Fenneman & Brown Properties Inc.

Guy passes out in Taco Bell Taco Bell claims 1) didn’t cause peril 2) not their instrument (chocking on their food etc.) Yes duty assist - call 911 (Small burden) - you're getting their business/ $

Don’t extend liability to co-workersStockberger v. United States

Guy in diabetic shock, drove self home/ injured No liability for co-workers - too big burden to be liable to him/ drive him home

Therapist has Duty to Warn (B/c Special Relationship)Tarasoff v. Regent of University of CA (CA 1976) (pg 375) [Know by Name!]

Crazy tells Therapist will kill Tarasoff D-Therapist doesn’t warn her - IS LIABLE

o Death proximately caused by his failure to warn D - owes duty to all foreseeable P's (could be hurt) - need control crazy or warn

o Like DR liable if 3rd party infected b/c DR didn’t control infection in patient Act as a reasonable professional would do (Suicide or hurt someone - has to report that)

CA Evidence Code 1024 = no privilege {not to report} if Psychotherapist thinks patient dangerous to self or othersCA Civil Code 43.92 - protects Therapists

No liability to psychotherapist for fail to warn or protect UNLESS 1) serious threat of physical violence 2) against a reasonably identifiable victimo CALL victim AND law enforcement

Then not liable

Has Lawyer Confidentiality Run Amok?

Lawyers not liable to tell if client says wants to kill Lawyer client duty of confidentiality

CH 8 Affirmative Defenses- B: Non Conduct Based Defenses Police not liable for failing to Rescue, (LIKE EVERYONE ELSE)Riss v. City of New York (NY 1968) (pg 536)

Police don’t protect Riss, D throws lye in her face - burn/scars Police NOT LIABLE for failure to protect

o Up to Cops how spend resourceso Up to legislature to impose liability on cops - or every crime victim sue cops for not

protecting them Immunity - gov employee - discretion - how spend $ (IF begin rescue and reliance - yes liable)

Split -whether to let people recover for purely economic injuryMAJORITY: no recovery for economic loss without property damage

not loss to society - just transfer of wealth (1 store closed, another gets its business) Still a Duty, limit is how much have to pay - how liable Keep things foreseeable (can't foresee all the ppl who will have economic harm)

Testbank D Testbank boat spills, contaminates waters, Fisherman out of work! Majority rule: D ONLY liable for property damage - foreseeable harms (Duty, breach, CIF) NOT prox cause for liability for economic harm-- (lost profits from

being out of work etc. too many Unforeseeable P's) ALLOW recovery for FISHERMAN (foreseeable will be economically harmed)

o Need bright line rule on where to stop recovery = {ripple effect of lots economically injured}

o Ppl have insurance for property damage - so sue to recover

Can be really unfair: only commercial fisher can recover

A restaurant B commercial shrimper

C bait store

E hot dog

F garage G grocery Dry cleaner

NOTE: if property harm can tack on economic harmo A struck by boat, can get BOTH

Exception: D Liable for Pure Economic Harm (not fear of limitless liability)

J'Aire Corp v. Gregory P = restaurant, D = general contractor- didn’t fix AC in time, restaurant closes and losses $. P can recover since D KNEW would lose $ if can't open (foreseeable)

Minority Rule : recovery available if economic injury was to a foreseeable P People Express Airlines

D negligent spill chemicals - airline can't operate lose $ (economic w/o property damage) D duty of care to identifiable class- known to suffer from its negligence (NOT random

public)o Allow recovery for foreseeable P'so Geographically limited, jury decides whose in class

Limitations on Recovery for Emotional DistressNegligent Infliction of Emotional DistressConflicting rules:Impact rule - Need physical impact/contact with you to recover (fright not enough)

Mitchell case - pregnant women between 2 horses - not touched so no recovery for miscarriage, (if tail brushed her could recover)

condom in salad had impact with other food she ate- has been stretched far Still exists, even in CA but doesn’t get you very far can get silly/arbitrary - condom and

leaf of lettuce =impact

Zone of danger rule --- don’t need impact but need be in zone of danger = 1) In danger of physical impact, 2) Reasonably fears for own safety, 3) Suffers serious emotional distress b/c of that fearo mother -on sidewalk can't recoverno threat bodily harm (even though witness daughter

run over)

intentional infliction of ED P show suffered severe emotional distress, need not be threat to physical body

Negligent infliction of ED NEED threat to physical bodily harm

o Exceptions (don’t need threat of physical bodily harm)1. Negligent Mishandling of Corpses2. Negligent mishandling of Genetic Material (Invetro DNA)3. Special Relationships

Ex: Dr/Patient relationshipo Wrong test resultso Psychiatrist give info outo Stillborns - mom recover though no harm to HER

Lawyer/ client relationship - P spend unneeded days in jail Contractual relationships=Insurance/ insured

SPLIT: being in zone enough or need physical resulto Restatement 2d require physical consequences from the ED ----triggers heart attack,

strokeo Restatement 3d does NOT require physical consequences -if in peril probably TRULY

have ED

Physical injury rule - NO impact needed/touched, but NEED direct and objective physical consequence/ injury

A) zone of danger and B) special relationships Daley v. LaCriox - D crashes into electric line, loud explosion near P house, sues NegIED -

CAN RECOVERRule - definite and objective physical injury caused b/c ED from D's negligence - can recoverNo physical impact needed (touched) BUT need physical consequence (injury)

Here, P has chronic psychoneurosis triggered by loud noiseDissent - Neurosis not a physical injury - not objective o need to then have definite physical injury (miscarriage, heart attack, etc.)

Bystander cases (Thing v La Chusa)

Direct victim rule ----- CA case, Dr incorrectly diagnoses a spouse as having syphilis, and had to tell the other spouse --- telling patient and patients spouseo Family counseling - counselor sexually abuses kid - that breach extends to the whole

family

The Bystander Dilemma

Witness can recover w/o IMPACT and own personal injury from D's negligenceAllow Bystander recovery if 3 factorDillion v. Legg leads to THING the current CA case, Restatement 3rd adopts Dillion = zone of danger, special relationships

Mom sees kid run over, not within Zone of Danger -(on sidewalk) CA says zone of danger rule is too artificial - look at FACTORS/ foreseeability

1) how near P to accident2) ED from observation (not hearing later) -but ppl push on this - observe what (kid on ground? etc)3) P/ Victim closely related

Recovery for kid died =don’t need NIED here, have PERSONAL INJURY Family can recover in 2 ways1. Survival action = victim survives for a period of time then die (from original injury or

another reason) o Family can recover for medical expenses, lost wages, for period

2. Wrongful death - after the death -say wage earning spouse- Father killed instantly -recover his income/ funeral expenses

Family has wrongful death action

2nd girl injured in street can RECOVER for her personal injury - pain and suffering THIS IS about Mom's recovery - when Mom didn’t have her own personal injury------- just ED injury

Limit Bystander moreThing v. LA Chusa (CA) not pro P -(tighten up Dillion requirements)

P mom near son accident, not witness If NO physical impact/injury then need:1. P related to victim close blood/ marriage2. P at scene/ witness accident

Harm to Unborn ChildrenPossible Cause of Action1) prenatal injury : all jx allow a child to recover for injuries received before birth (baby survives but injured) 2) Prenatal wrongful death: Three -way split in authority

1) Majority - allow recovery where the baby was viable Werling v Sandy D medical providers negligence caused Stillbirth

If fetus VIABLE (can survive out of womb) - can recover for wrongful deatho Otherwise Dr off hook for negligence to fetus

Viable b/c ROE - State interest in 3rd trimester - fetus treated like Person2) Minority - allow recovery even before viability 3) Minority - (CA) no recovery unless the child is born alive

1934 Statute for wrongful death didn’t consider unborn babies, so respect what legislature has done - babies wasn’t intended - CA SCOTUS said Legislature can fix it (and they haven't)

3) Wrongful birth: action for parents = D's negligence deprived of ability to abort, or NOT gotten preg in 1st place

[botched sterilization, or prenatal testing didn’t disclose issues with the kid] D = Dr/ Heath care personnel Ex: Dr negligently messed up vasectomy - had 2 kids 1 deformed, get only costs for special

upbringing costs of deformed child - not normal every day expenses, since benefits of kids outweighed ordinary costso 3 dissents - "dr didn’t do them a favor"

Family with 9 kid - don’t want more - had vasectomy -failed- baby #10 Dr performing the surgery was negligent CA says Dr has to pay - all damages proximately caused

Recover wage loss, $ in pregnancy etc. Split in authority as to recognition and damages, CA allows all "proximate damages"

Some jx allow recovery, some don’t Where recovery is allowed, the measure of damage varies

CA allows all proximate damages (don’t know what that means) costs of pregnancy and birth costs of raising the child costs of raising the child minus the benefits parents emotional distress

extraordinary expenses of raising a disabled child (but not a healthy child)

4) Wrongful Life: ONLY for disabled kids - action brought by or for defective CHILD - w/o Dr. neg wouldn’t been born

very few jx allow recovery, more than 26 have rejected any recovery, Whose going to pay for these expenses? (not "shouldn’t been born" issue = expensive

CA allows recovery for special damages (med bills etc.)-Procanik by Procanik v. Cillo P = infant (parents barred by SOL)

Dr negligently failed to diagnose his mom with German Measles in 1st trimester of pregnancy

Kid born with congenital rubella syndrome (defects) Duty - diagnose mom Breach - yes CIF - yes neg was reason born deformed Prox Cause - fair to hold D liable for special damages Special damages - medical expenses for defective child were predictable, certain and

recoverable General damages (Pain and suffering) too speculative

Special Damages = economic damages - include what an expert will testify to - like need 17 surgeries - dr will say how much that costs, need physical therapy, car made for disabled, ramp, wheelchair, home care, lost wages

ALL $ - economic loss/ cost (here) - costs beyond what normal kid costs

Generals = non economic - pain and suffering - Emotional Distress (w/o pain) humiliation indignity -- your ability to live a happy life but no one can say "you're miserable $100 worth) it’s a jury Q

Owners and Occupiers of LandA. Duties Owed to Entrants on the Land

Common law - sliding scale of responsibilities depending on if the entrant's category A persons status entering the land defines the scope of legal duty landowner owes

Duty of Defendant to:

Trespasser : no duty to make premises safe; duty not to be wanton; duty of reasonable care once trespasser is discovered; exception for childreno Attractive nuisance - if will attract kids, protect them (RR near playground)o Restatement 2nd, liability to child trespasser for physical harm resulting when:

a. possessor knows or has reason to know kids likely to trespassb. Area has unreasonable risk of death or serious bodily harm to childc. Kids wouldn’t realize the riskd. B<LP - burden on possessor slighte. Possessor fails reasonable care to eliminate danger/ protect kids

o Ex: kids walking near train, 1 pulled under - losses legs, RR not liable b/c c) even kids know dangers of trains

Licenses: no duty to make premises safe; duty to warn of known dangerous conditions (unknown to P)-o (Don’t have to look for issues but if you know you have a trapdoor must warn)o Ppl You allow on your premise =Social guestso PPL you tolerate on premise = Post mail, paper boy, girl scouts, ppl allowed on land

for shortcuts, charity solicitors Invitee : full duty of reasonable care to make premise safe = Inspect one's premise for

dangers o You invite them, have to make premise safeo Business invitees - buy insurance so if someone gets hurt at your business you can

compensate themo Members of public come for purpose land is held open to public

NEED TO KNOW THIS GRID

Owners or occupiers duty No duty/minimal duty Warn of known dangers Reasonable care

Trespasser X

Licensee X

Invitee X

Trespasser = No Duty of careLicensee = Duty to make safe dangers KNOWN to ownerInvitee = Duty to exercise reasonable care to protect against both known dangers and those which would be revealed by inspection

Majority of USA - these categories still persist

Some cts get rid of license / invitee but keep trespass distinction CA uses reasonable person across board - no categories

Lose "Invitee" status when leave area invited to be inGladon v. Greater Cleveland Regional Transit Authority

P buys train ticket, get on tracks, train runs over claims TRAIN negligent (depends what duty train owed)

P is invitee when on land that invitation extends to ONCE out of intended area = licensee/ trespasser

o D doesn’t owe duty of reasonable care NOTE: same outcome if use reasonable person approach - not reasonable to be out of

intended area, no duty care owed to you (you're a trespasser) Ct retains CategoriesCarter v. Kinney

P goes to D house bible study, slips on ice formed at night P claims invitee = D has to inspect premise for dangers D claims licensee - only warn of KNOWN dangers (THIS WINS) - D not liable

o Licensee - social guest, no material benefit to owner CA Rejection of the Categories

CA abolish categories - always use duty of reasonable care under circumstancesRowland v. Christian (KNOW NAME)

P social guest = licensee, injured hand on broken faucet knob D had duty to warn KNOWN dangers not obvious to P (Q is was obvious, if yes D not liable) same result w/o categories

CA Legislative Cutbacks

Exception to FULL reasonable care 1. the moving train exception = No recovery if attempting to get on or off moving train2. the felony exception = No recovery to person committing a felony on the land - unless

possessor acted in a willful or wonton manner or willfully failed to guard against a dangerous condition on the premises

Restatement 3rd, uses Rowland, abolish categories - use general reasonableness standard

Does distinguish between ordinary and flagrant trespasserso Ordinary = duty of reasonable care o Flagrant= limited duty, no wanton willful harm, and reasonable care if trespasser is

imperiled (helpless or unable to protect self)

Injury on the premise1. Category approach

a. Trespassersb. licenseesc. invitees

2. Reasonable Prudent Person (RPP) (Rowland) no categories3. Compromise; Restatement 3d get rid of licensee /invitee distinction, keeps trespasser

distinction - ordinary v flagrant

CA = Rowland + State Legislative Statutes (modify Rowland a bit)Categories

Injury on the premiseInjury off the premiseL/T3rd party crime

Special Rules Limiting Possessor's Liability : INJURED on PREMISE

Limits to landowner liability1. Firefighter rule: firefighters/police are treated as licensees2. Recreational use rule: not liable for an accident to someone on your land if you open it up

for free and public recreational use Liable for negligence in conducting activities and creating artificial conditions that cause

injuries outside the property Not liable for natural conditions that cause injuries outside property

o Exception: trees

The Firefighter's Rule

Firefighters or police who entered another premise to perform their functions = licenseeso Owner ONLY has to make safe KNOWN dangerso Johns thinks they should be able to sue since worker comp stinks

Recreational-Use Statutes Land owner opens land to public for FREE -not liable (unless do something maliciously to

hurt ppl)

Duties Owed to Those Outside the Premises1. Artificial conditions/ activities: Liable for negligence in conducting activities and creating

artificial condition not natural to land, (increased danger) cause injury to ppl off premiseo Stadium liable for foul ball hitting someone in street - reasonable to use NETSo Gutter, water freezes on sidewalk, someone slips - Reasonable to prevent harm

(salt)2. Natural conditions -

1. Generally Not liable for (heavy snow storm) cause injury to ppl off premise2. Trees - historically not liable, now maybe

a. Restatement = rural v urban - forest v. sidewalk by schoolb. Reasonably Prudent Person - Consider: actual knowledge, duty to perform

reasonable inspection, rural v urban settingTaylor v. Olsen - RURAL - no DUTY

Injured by fallen tree in road Liable for trees? DEPENDS on FACTS

o If 1 tree, near school etc. should inspect = B<LPo Danger not obvious, in wooded area = Not liable (B> LP)(giant burden to have to drill

into all trees), not custom to drill all trees Not reasonable to have duty here

Landlord liability to Tenants

1. Traditional Common Law Rule: Lessor had no duty to persons injured by negligent condition of premises (LL immunity)

2. Restatement Second: No liability to either T or guest for injuries arising from defective conditions on the premise

Exceptions Undisclosed dangerous condition known to lessor (Rotten floor board) Conditions dangerous to those outside of the premises (nuisance to kids walking to

school) Premises leased for admission of the public (leases land w/ playground for public) Parts of the land retained in lessor’s control (T can't fix that area - pool, laundry room) Conditions lessor contracts to repair (if K'ed to fix it, must) Conditions lessor negligently repairs

Modern Trend: Duty of reasonable care under the circumstances

RPP standard - LL liable bad stairsSargent v. Ross

P's daughter falls over railing, D= LL (grandparents) =liable Used to be LL liable for areas under their retained control

o Dumb b/c LL wont fix area (doesn’t want say its under her control) HOLD- LL like everyone else, must exercise reasonable care not to subject others to

unreasonable risk of harmo Unreasonable = Restatement 2 factors, B<LP formula, foreseeable risks

LL should have foreseen stairs risky for kids Family immunity - falling out of favor

If kid hadn't died - IMMUNITY= can't sue grandparents - then insurance not paying your medical bills

BORROW STATUTES =Legislature had adopted implied warranty of habitability (range - no hidden defect --keep premise in good repair)= if LL breach shows negligence per se

Like building codes - shower door - to establish Landlord liability (don’t give direct Civil Action)

Premise Liability: Securing Against 3rd Party Crime

Generally No duty to protect against Criminal conduct by 3rd parties Public premise: market, stores, bars -YES duty to protect Customers = provide

"reasonable security" to prevent crimeo Will prolly evolve to RPP

Posecai v Wal-Mart Stores, Inc. P robbed in Sam's Parking lot S Store - NOT LIABLE Rule: ONLY duty protect when the criminal act was reasonably foreseeabl e to the owner

of the business 4 approaches To determine when a crime is foreseeable:

1. Specific harm rule = aware of specific imminent harm about to fall on customer2. Prior Similar Incidents = foreseeability is established by evidence of previous crimes

on or near the premise3. Totality of the circumstances test = most common = additional factors= location of

the land, past crimes etc.

4. Balancing test = CA - b/c totality test seen as unfair = balance the foreseeability of harm against the burden of imposing a duty to protect against the criminal acts of 3rd persons (B<PL)

a. Not foreseeable w/o prior crimesb. Economic/ social impact of more securityc. Rule the greater the foreseeability and gravity of the harm, the greater the

duty on the business

The Causation Question: Would it Have Made Any Difference? IF negligence in providing inadequate security was CAUSE of the criminal assault --- if too

speculative NOT sent to a jury

Battery Nominals allowed, no lawyer takes case tho

Assault Nominals allowed

False imprison

IIED NO nominal

Trespass YES NOMINALS (to deter adverse possession)

Tress Chattel NO nominals (need damage to property)

Conversion NO nominals (need damage to property)

Rules If compensatory = no nominal Punitive ONLY when D's conduct should be punished and deterred

Negligence MUST show compensatory Punitive rare

o NO Nominals

Damages

Nominal Damages: not available for negligence Compensatory:

o General (non-economic) Past and future physical and mental pain

Must be conscious to recover Permanent disability and/or disfigurement

o Special (economic) Past and future medical expenses Loss of future earnings and earning capacity

MICRA limits medical malpractice damages to $250,000 Collateral Source Rule Duty to mitigate

nominal damages -Purpose: vindicate a right, token to show P won, peacekeeping, get lawyer not gun = $1.00Can Bring with: punitive

Available for intentional torts where no actual damages were sufferedo Trespass land -prevent Adverse possession - test titleo Battery - offensive contact - men whistle at women

NOT: with compensatory damages NOT for IIED cases NOT for negligence (no harm - no negligence)

Punitive (exemplary) (= make an "example" of someone) - scale to wealth of the DRare- ONLY where D's conduct should be punish and deterPurpose: Despicable conduct / horrible/malicious/ antisocial behavior, outrageous

deter bad actors from this kind of bad behavior (teach the egregious wrongdoer a lesson) Allows to bring a case where not enough damages to make worthwhile for lawyer to

take Society can express outrage against D's conduct Compensate D for their legal fees

Constitution restrictions Awards too big violate 14th Amendment Due Process

Political concerno Corporate D's say threat of huge punitive damages discourages innovationo Many states imposed limits on punitive damages - either a cap, or a multiple # of the

compensatory damages amount

o CA show malicious, despicable conduct - proven clear and convincing evidence {like 75%}more than 50% (not preponderance)

Owens -Illinois, Inc. v. Zenobia P must prove by clear and convincing evidence that D acted with actual malice

Cal Civ Code 3294 - As a matter of state law P must prove by clear and convincing evidence that D has been guilty of fraud, oppression, or malice

Constitutional [Due Process] restrictionsSINGLE DIGI T RATIOState Farm Mutual Automobile Insurance Co. v. Campbell (2003) (pg 766) [Can NOT consider nationwide conduct (scheme to cap payouts on claims by refusing settlements) in a State punitive damages claim]

Insurance bad faith. Award: $1M compensatory and $145M punitive. U.S. Supreme Court held that the award could not be based on national activity and

injury, but only in-state activity and injury.

IF exceed a single-digit ratio between punitive and compensatory damages (Due Process issue)Use BMW v Gore guide posts

1. Degree of reprehensibility of defendant’s misconduct: 2. Disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award 3. Difference between the punitive damages awarded by the jury and the civil penalties authorized/imposed in comparable cases

Philip Morris USA v. Williams jury can consider harm to others but not award $ on that

Compensatory damagesPurpose: Compensate P for loss, pay to make P wholeHarm to Property = market value of property,

Ex: car breaks, and you get the market value of that carPersonal Injury:o Special Damages (economic)(pecuniary) = compensate victim for economic

consequences of the injury - medical expenses, lost earnings, cost of custodial care Past medical expenses Future medical expenses = don’t really know, use expert evidence dr.- very

speculative, don’t know what the future will bring - or miracle cure means they don’t need 17 operations after allo rehabilitation expenseso Drs, counselors, sociologists, plastic surgeryo Private tutoring

Past Wage loss/ Loss of future earnings OR loss of earning capacity o Ex: can't work - must avoid stress, can't move wello Note: in many jx can add damages for shortened life expectancy ( Separate

from reduced earning capacity)o Recover for reduction in noneconomic value of being alive, regardless

of if person is capable of earning an income

o General damages (non economic) (Intangibles) = compensate for physical and emotional consequences of the injury like pain and suffering and loss of ability to engage in certain activities

Past Pain and suffering pain from burn/ surgeries Mental and emotional trauma

o Bed wetting, nightmares, refuse sleep alone, withdrawalo Dr and psychiatrist said has emotional illness and retarded mental

growth Future pain and suffering

Future operations, more infections, shorter life expectancy, bad social life

3. Permanent disability and disfigurement Disability = lost ability to walk, walk, see - even if doesn’t hurt/not painful Dismemberment = loss of limb Disfigurement= change in appearance, burnt face

When Settling - Damages are affected by how likely D be held liable and severity of Ps injuries

Worth more to have more serious injuries and weaker liability- then strong liability + weak injuries

1. Damages for Personal Injury Not Excessive DamagesAnderson v. Sears, Roebuck & Co.

Defective Sears heater - house on fire, infant P burned Mom = $250K, Dad = $23K, P= $2mill D claims excessive - needs evidence of excess

o If excessive Ct can order new trial unless P agrees take less $ - set by Ct = Remittitur

TEST for excessive: Maximum recovery rule = whether the verdict of the jury exceeds the maximum amount the jury could reasonably find o If within reason, trial judge should defer to jury

Excessive Damage reduced via Remittitur ( different tests used) Richardson v. Chapman

2 P women hit by D trucker D claims future medical costs too high, no evidence for $11,000,000 - Richards expert

said $9,570,034o Ct reduce to be consistent with trial testimony

Excessive TESTS used: 1. it falls outside the range of fair and reasonable compensation, or2. results from passion or prejudice, or3. Is so large that it shocks the judicial conscious

Shouldn’t have reduced damages: expert gave conservative #s/ basic care Jury is allowed to compensate more for things not included in expert calculations , they

did and now ct goes against themo Was still reasonable w/in range

Damage Caps

Need set limits, since damages speculative Concern of Medical Malpractice driving up health care costs CA legislature created MICRA damage cap (1985)

o ONLY IN medical malpractice cases - P MUST BEEN injured in medical (not car crash etc.)

o CAP is on generals ( non economic damages) = pain and sufferingo Limit = $250K

Medical expenses {specials/economic} 500,000

Wage loss {specials/ economic} 500K

Pain and suffering (Any non economic losses)

Cap set by legislature at 250K 250K

Subtotal 1,250K

Lawyer Fees (1/3 or more if goes to trial) -416K

Total $844,000

Measuring Economic Loss (SPECIALS)

medical expenses wage loss + reduced earning capacity In most jx can choose:

o Wage loss = specific income lost to P both past and future OR

o Reduced earning capacity = an estimate of lost present and future ability to work regardless of specific wage losses (impairs power to earn living)

If not a wage earner - like homemaker - cts allow recovery for value of the services injury prevents P from doing - mom 3 got $527,659 (replacement cost of future services) - or can recover lost earning capacity

Expert testimony - if had a job - to say expected income stream over time your injured 1) investment returns Many cts reduce the final award to account for interest will get

investing 2) inflation Some cts adjust awards up - know cost rise in the future 3) taxes - Damages not taxed as income, but Ct doesn’t lower award to account for this

Noneconomic Losses (GENERALS)

Past/ future pain and suffering Up to JURY within reasonable limits to say how much P should be compensated

o Expert testimony to say certain elements of the pain will continue, or future medical care will entail pain and suffering

CONSCIOUS - Only get $ for pain P actually experiences so P must be conscious (McDouglad v Garber)o Ex: P dies a short time after the accident, matters for pain and suffering if P

conscious or not before died

Loss of Enjoyment of Life " hedonic damages" (part of Pain and suffering + CA has cap for generals so doesn’t help to plead more if medical)- (can plead if car crash) Need AWARE for pain/sufferingMcDougald v. Garber

P has C-Section/ Tubes tied, Oxygen deprivation = comatose state P/Husband Sue for medical malpractice CAN'T get pain and suffering b/c P can't experience/appreciate the pain

So the victim (P) is not truly being compensated/ made whole (compensatory not punitive)

Some degree of cognitive awareness is a pre-requisite to recovery for pain and suffering

Shouldn’t separate out loss of enjoyment of life from pain and sufferingo Argue loss of enjoyment of life is not about your "physical pain and suffering" - but

compensating that you can't do things you love/ enjoy in lifeo But CT says "suffering" includes missing out of your life Only should be separate for a reason - like more accurate compensation - here no

better if separate Why separate out "disfigurement" from "pain and suffering"

Dissent Doesn’t matter if you're aware of pain - its an objective fact- You are not getting to enjoy

your life so you have suffered that damage

Techniques to help jurors measure value of Noneconomic Losses (Pain and Suffering) No matter what jury uses - must meet test of reasonableness 1 Formula = Per diem argument = divide P's pain and suffering into discrete units of

time (days, hours, minutes or seconds) and assign $ value to each unit then multiply by how long P has endured and will endure - to get total for pain and sufferingo CA ok with formulao If jury wrong, ct reduces and appellate ct reviews

Generally NOT Reduced to present value - since no known market anyway

Did not follow the Collateral Source RuleCoyne v. Campbell

P(Dr) in car crash, gets free medical treatment by colleagues. CAN'T recover that $ from D. o Minority rule= gratuitous services given by relatives, neighbors and friends are

NOT compensable (You didn’t pay it, don’t get it from D- pt make P whole not windfall)

Majority Rule:

Most cases = insurance situation, Collateral Source Rule: payment (of medical bills) from collateral sources (insurance,

employee benefits, gov aid) do not reduce the amount recoverable from D in a personal injury action

Normally medical care covered by insurance (not Friends) You pay premium Insurance covers you Get in accident, have medical bills = INSURANCE not You, pay the medical bills Insurance Co. puts a lien on your recovery - to pay them back

Subrogation clause in insurance = if you recover for what they paid you, you have to pay them back

Since Insurance knows can recover some $ in lawsuit, charge everyone less for premiums

(so just having paid your premium doesn’t cover it) (Are times Insurance doesn’t get reimbursed (no lawsuit)

Ex: someone getting cancer, insurance wont get reimbursed Or single car crashes - insurance doesn’t recover for that

Negotiate the lien - with the insurance company (pay back less to insurance b/c they get to your attorney they save money not hiring their own)

6. JURY doesn’t hear about all this, have P recover, but then P turns it over to Insurance

Collateral Source Rule

Generals 100K

Medical 20K

Verdict 120K

Attorney fees -40K

Medical lien (to insurance co) -20K

Net to P $60K

Negotiated Med Lien

Verdict 120K

Attorney fees -40K P 33,333, Med 6,666

Negotiated lien -13,334

Net to P $66,666

Discount on Medical Bills

In CA - if P gets discount on medical bills (reduced to 50%) can only recover from D the 50% actually paid

P's Duty to Mitigate/ Avoidable ConsequencesZimmerman v. Ausland - D's expert said knee injury could be fixed with easy surgery, up to jury if believe the expert (if reasonable to have surgery)

Avoidable consequence doctrine / duty to mitigate damages = duty on P to act affirmatively and reasonably after the accident to minimize the harm D's conduct caused

P does NOT have to do the surgery but if was reasonable to have surgery, recovery limited to what damages would be if did the surgery (disability remaining after surgery)

Jury decides reasonableness of P not doing surgery = risk utility analysis like B<LPo SPLIT on whether jury can hear evidence of P's religious beliefs for why resists

treatment Burden on D to prove P didn’t mitigate damages

Measuring Recovery for Harm to Property

Market value of property which has been destroyed so P can buy another At time/ place item was destroyed

Wrongful Death and Survival (Recovery) - can bring both

Historically no recovery for wrongful death/ wage loss or anything Legislature adopts (so statutes vary by state)

Not a new cause of action-JUST about whether you get the damages (Think what cause of action would bring if had lived - battery, neg, mal practice etc. -

now family brings)o Could be a battery that causes a wrongful deatho Drunk driver = negligence - breached duty to drive drunk - was cause etc. and you

can recover b/c they died that’s a wrongful death action

Wrongful death: P must die b/c of accident/injury Action to recover for damages survivors suffer as a result of the death

o Loss of supporto Loss of serviceso Loss of love, comfort, and companionshipo Funeral expenses

spouses, parents, children of deceased (even out of wedlock)o NOT Couples living out of wedlock, o No stepkids

Parent recover for wrongful death of child IF o Child NOT marriedo Child does Not have children

Survival: Doesn’t matter what die from

Action to recover for the damages the decedent suffered before death (stand in P's shoes)

Ex: Car accident P in hospital month, die 1 month later (maybe from random heart attack or b/c car accident) o Accident ----------------------------------dies

Recover:

o Wage losso Medical expenseso Property damageo Pain and suffering (split in authority)

NO pain/ suffering, P's dead! (CA) Yes pain/suffering it was experienced before death

Decedents estate recovers, heirs

Moragne v. States Marine Lines, Inc. - creates a Common Law action for Wrongful death (no Statutory remedy) ( there is an action under general maritime law for death caused by violation of maritime duties) Selders v. Armentrout measure of damages for wrongful death of a minor child should be extended to include loss of society, comfort, and companionship of the child

Broader damages than just medical/ funeral expenses Kids worth more than just economic/ wage loss

Murphy v. Martin Oil Co. can recover for Survival and Wrongful death

Statute of limitations negligence: 2 years (if seems longer, use this as defense) Defenses Based on Plaintiff's Conduct

1. P established prima facie case for recovery2. DEFENSE = P's OWN negligent conduct contributed to her injury (reduce what D has to

pay)a. P failed to act reasonablyb. P assumed the risk of injuryc. P failed to mitigate damage

Old Days:Contributory Negligence = if P at fault at all= complete bar to recoveryButterfield v. Forrester

D leaves pole in road P riding on horse TOO violently - injured via pole reasonable ordinary rider would have avoided pole, P's fault so barred

Last Clear Chance: P negligent, but Negligent D had LAST opportunity to stop the harm, so P can recoverAbandon - 1960's mostly legislature - use comparative

o Alabama, MD, NC, VA, TN remain contributory Comparative NegligenceMcIntyre v. Balentine [TN adopts modified comparative fault]

Car crash, both P+D drinking and speeding 50-50 fault TN adopts modified comparative fault via CT

o Explains modified/ pure

CA - same as McIntrye - CT adopted comparative fault (but PURE) CA at legislative impasse - couldn’t get it passed b/c between pure or modified - CA Leg never responded - ok with pure form

Add up all D's %'s

1 P=25% and 3 D's each 25% =---- its 25 v 75 P can recover (in either jx) In CA each D responsible for their share of damages

Pure Modified Kept contributory

Minority (13 states) Majority (33 states) 4 states

CA + Restatement 3rd

P can recover regardless of P's % of negligence(P 90% at fault, gets D's 10%)

P can recover when: P's % is not MORE than D (50 or under

OK) (once P reaches 51% barred) P % is LESS than D's -49% or under

OK(once P reaches 50 barred)

Alabama, MD, NC, VA

What Counts as Fault

For P to be partly at fault, P's actions must be CIF and PROX Cause of her harm If P acts ILLEGAL then maybe full bar (contribution)

Alami v Volkswagen of America, Inc. P drunk driving, crash, Widow sues D for defective car -- claim= this defect could kill even sober drivers

Assumption of RiskExpress A/R - When K - expressly agree to assume risks (can't sue for negligence)

contractual agreement (K law) that P will not hold D liable for tortious conduct, enforced if not against public policy

P agreed to exculpate (excuse) the D from liability for negligence Uphold b/c

a. D acts in reliance that P will not hold D liableb. Agreement in advance specifies the scope of the conduct covered by the

contractual exculpationStelluti v. Casappenn Enterprises, LLC -injured on bike at gym, D not liable b/c exculpatory agreement

Implied A/R - Tort doctrine that D will not be held liable where P voluntarily assumed a known risk

1. Primary implied A/R: D owes no duty to P to use due care, so affirmative defenses is complete

o Mostly recreational activities - complete defense = D doesn’t owe dutyo Either no duty, or use comparative fault (to say if P partly at fault) - don’t need

AOR2. Secondary implied A/R : D owes a duty to P to use due care, P acts (can use comparative

fault)a. P Knowingly and voluntarily encountered the riskb. Address in damages, if P to blame - reduce % damages D pays

Don’t NEED PAR/SARBlackburn v Dorta Primary/Secondary implied AOR All merged into comparative fault (not separate)

NOTE = CA DOES have PAR (unlike this case) Instead of PAR just say NO DUTY owed anyway - so no negligence action Secondary implied assumption of risk becomes merely a Contributory

Negligence affirmative defense (Under Comparative Negligence, P may partially recover)

Don’t need PAR ex: P can't prove D had a duty

o Ex: Social guest fell in unfenced pool and drown Landowner NO DUTY to make property safe for social guests - just warn of

hidden dangers D had NO LEGAL DUTY, so no breach, NOT liable --- don’t need say P assume

risk of poolo Baseball fan hit with ball

o B > LP (burden of netting all in too high) -no duty, D NOT Negligent as matter of law

Ex: if P sues b/c injured b/c jerky traino Then D uses "affirmative defense" of PAR - saying well P assumed the risk when got

on the train Duty - -- operate train safely (NO duty keep from having train jerk - that’s inherent in

activity) Breach ------- no breach for normal jerking on train

o Based on the facts of the case - need know facts - to answer if a duty/ breached Ct says No need for PAR - no breach of a duty = no need for affirmative defense

o Duty is Q of law for Ct to decide- Ct could just say - in touch football NO DUTYo Don’t need go thru whole analysis then at end bring an affirmative defense for

DUses PAR (like CA)Turcotte v. Fell (P barred recovery, D owed no duty b/c athletic and recreational activities

P jockey injured when falls off participate in the event its actual consent implied by the act of participating D not reckless/ intentional

o Like Consent / Hackbart case - defense for battery

P Duty to MITIGATE DAMAGES/ Avoidable Consequences

P CAN'T RECOVER for current state when could have mitigated their damageso Ex: knee surgery or disabledo If reasonable patient would have undergone surgery - P can't recover for lifetime

disability DON’T have to change jobs to mitigate damage (can't be farmer, don’t have get new job)

Seatbelt Defense

P can only recover what damages would have if was wearing seatbelto Wear helmet

IMMUNITIES - are really hard and complicated

3 basic types1. family immunities - historically family members can't sue family member for their injuries

a. Ex: if car crash -your kid in car gets hurt - so kid needs to sue you for liability insurance

NOW it is allowed - if you were negligent - kids can sue you - Kids recovering under insurance policy

2. Charitable immunities Not true for big charities - hospitals - still malpractice/ good will lots of trucks on

road - have to cover their risks Charities have to buy insurance just like everyone else

3. Government immunities 1) suing government entity itself - historically King could do no wrong, so

Government not liable for anything USA rejects that - know the Government can do wrong - car crashes in

government vehicles - should have to compensate - so victim not paying Forest ranger at park etc.

All statutory - Tort claims statutes - procedure under which sue the government

Government self insured - or can buy insurance SOL for neg is 2 years

But on State government 21 days - must faster If suing Fed government go to different cts - for Tort claim statute

Government discretion - may not be liable2) Individual government actors get immunity

1) absolute immunity - no matter what even if willfully maliciously etc. - limited to judges, DA, legislature, prosecutors

Judges taking bribes to send people to jail - immune! So bad. Policy reason = in any law suits someone disappointed/ angry - shouldn’t

let all those people sue the judge Johns dislikes this

2) qualified immunity - police officers

To protect officer acting in good faith but mistakenly - good faith exercise of duties in a gray area

State of mind of officer - clearly established law a reasonable officer would have known

If reasonable officer wouldn’t have known no immunity

SOL DEFENSES SOL begins when the injury occurred - NOT when you discover it

Dr with seizures afterward - nope, just b/c u didn’t know at time, doesn’t save you

Tolling provisions - suspends the SOL for time Military service overseas - didn’t get lawsuit on file - wait until you come home Coma -

Always assume shortest SOL applies Better to file, and then dismiss than wait too long

Ch 10 Strict Liability Intentional Torts/ Negligence = liability based on wrongful conduct/fault Strict liability =liability without fault

o Caused harm even if NO intent, and used REASONABLE care Historically 3 activities

1. Wild Animals -(Lion) Don’t care if you had the best lion cage - if lion gets out - you pay even if you were

NOT negligent You pay for any harm it causes

2. Blasting3. Abnormally dangerous activities

Possession of Animals

1. Wild animals - owners are strictly liable for injuries caused by wild animalso Exception - public zookeepers (still liable for negligence but not strict liability)

2. Livestock - state variations, Often strictly liable where:o the animal is trespassing or o the owner knew of dangerous propensityo Damage to property if escaped

Exception - open range zones (don’t need fence/ keep in)3. Pets

o Common law: strictly liable only where owner knew of dangerous propensityo Statutory variations

Every dog doesn't get 1 bite - you can know dangerous if growling / aggressive Can't just be based on the type of dog (say oh well every pit bull is dangerous)

Abnormally Dangerous Activities

An activity is abnormally dangerous if:1. It creates a foreseeable and highly significant risk of physical harm even when

reasonable care is used, and2. It is not one of common usage

Nuclear reactor, toxic disposal, electric power sources Abnormally dangerous activity - can't be made safe, are inappropriate for location

Where are you geographically Can't make damn in England - maybe OK in TX where dry and need store water

As technology evolves, things may not be as dangerous - blasting is safer now Fletcher v. Rylands (KNOW)- deciding what Abnormally dangerous activity is

D built reservoir to get water, tunnels underneath land DIDN’T KNOW, water ran into P's land, damaged his mines

D STRICTLY liable (no negligence, no intent)WHY

Water is likely to do mischief it is escapes = dangerous activity (to collect water)o If there is an accident, high prob of harm will come

Used land for non natural use (unreasonable)

Strict liability cause of action ACT- D engages in strict liability activity

o Ownership of animalso Blastingo Abnormally dangerous activity

CIF -Activity is the cause in fact of P's injury PROX CAUSE- Activity if the proximate cause of P's injury

o Foreseeable risk - not if bizare/ freakish thing happens Damages

Products LiabilityElements1) proper D = manufacturer, seller, distributer, = original chain of distribution2) Defect (manufacturing, design, warning)3) CIF4) Prox Cause5) Damages

Say PRODUCTS LIABILITY - its NOT really Strict Liability (have to prove defect - goes

beyond strict liability)o Especially in Restatement 3rd - its really negligence

Winnerbottom v Right D didn’t keep mail coach in good repair, driver got hurt, said driver can't recovery b/c no K

with them1916 Van v Buick

Don’t need be in privity If your negligent and reasonably injures someone - your liable

Implied warranty - liable even if your express warranty says you're not liable for making defective goods

Express warranty would say only liable for broken windshieldo NO, imply a warranty you are liable for person going blind

If you negligence creates foreseeable risk of injury to someone torts = you're liable

Products liability action/ elements: NEW PRODUCT (not garage sale) 1. D is a manufacturer or seller in the original chain of distribution of the product (duty)

o Manufacturer, wholesaler, retailer, whoever in original chain Person in chain that only imported dangerous product - has indemnity against

person manufacturing it (so you can get compensation from guy up the chain)2. Product is defective

1. Manufacturing defect - P just has to show product didn’t come out right (missing a bolt)

Hard to prove b/c product 1) unique 2) destroyed2. Design defect - pinto with gas tank under rear bumper)

Restatement 3rd - negligence standard - P prove reasonable alternative design (AT the time was it unreasonable?)

CA- trainer - TODAY is known dangerous? Can use hindsight1. Consumer expect - normal products2. Risk benefit test complex (reasonable alt. designs?)

Restatement 2 - Posner "unreasonably dangerous" - like neg, says not neg

Other JX reject Restatement 3rd Prentis v Yale case = forklift sold to workplace in 1952, and accident in 1970 -

hard to prove risk benefit in 1950 - Show risk benefit and reasonable design alternative - so in 1950 show wasn’t

reasonable, and there was an alternative deisgn Some with Restatement - say have to follow reasonable design, some don’t -

Vautour

3. Warning defect - can't get out of liability by labeling the risk If is a reasonable risk can't eliminate - and can make it safer with warning

Drugs - classic example - want the drugs even if have risks - but have to warn of it

Danger of over warning - if make too elaborate no one will read the

warning - not effective3. CIF Defect is the cause in fact of damage to P4. PROX Defect is the proximate cause of Ps damage5. DAMAGES P suffers personal injury or property damage

Restatement 3 section 2a- Manufacturing Defect

A product contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product

(CAME OUT WRONG) Peanut Jar Defective (came out wrong)Welge v Planters Lifesavers Co - peanut jar shatters (had knifed off label)

1. 3 D's - Kmart - sold jar, Planters filled jar, maker of jar itselfo All in original chain of distribution

2. Manufacturing Defect - P doesn't have to exclude EVERY other thing could made jar break (seems obv was

jar)o know wasn’t due to mishandling after purchase

Design Defect Greeman v Yuba - Liable w/o negligence

If the product in hindsight is defective You have to pay even if at the time you didn’t know

Trainers approach - look backwards -even if everyone though was fine liable w/o negligence

Restatement 2nd 402a - Posner - defective condition if unreasonably dangerous But Posner said Greeman was the 1st example of 402a (even though Greeman came out

1st)CA and restatement battle - Like Trainer better Restatement 3d Sect 2b: A design defect exists when:

The foreseeable risks of harms posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design and

Learned hand - negligence (Trainer wouldn’t like)

o The omission of the alternative design renders the product not reasonably safePrentis Case - before Restatement - but same as restatement

Vautour

Hurt on leg press machine workout

Warning on machine said stops had to be locked - weren't he was injured Product should have been made as if don’t look at warning ((HUMAN factors)

o P doesn’t have to prove Reasonable Alternative Design(RAD) Too costly

Use RAD as a FACTORo Other factors jury weigh to see if defective design

Usefulness Can reduce danger Warning - avoid unreasonable risk of harm

Potter-Tools - do have to show reasonable design alternative - P came close - using rubber mounts could reduce vibration 3 fold

Don’t ALWAYS need reasonable alternative design [The 2 Prong Test for Design Defect] Soule v. General Motors Co.,(CA 1994) (637)

Crash, wheel breaks free smashed floorboard into ankles defectively design

o Consumer expectation - common thingso Risk utility - complex

Defective Design1. negligence approach (Prentis) (even though Restatement 3rd came after)2. restatement 2nd 402A (Potter) product is "unreasonably dangerous" to the ordinary

consumer w/ ordinary knowledge; RAD a factor among others in risk utility analysiso Query - imputed knowledge v negligence?

3. Restatement 3d 2(b) rejected in Vautour and Potter) negligence standard requiring P to prove RAD with exceptions; rejects consumer expectation test (pro D)

4. CA: Soule v Gen Motorso Complex products where consumers lack safety expectations : with hindsight, risk of

danger in the design outweighs the benefit of the design with RAD a factor in this analysis OR

o Products where ordinary consumers have safety expectations: product fails to perform as safely as an ordinary consumer would expect

D. Should Product Categories be Declared Defective?

Some times has utility (above ground pool) Was slipperyness a defect - jury call

Should say too risky/ defective O'Brien v Muskin Corp (NJ 1983) (pg 646) [relates to tobacco case - sometimes the product is not worth the risk - if can't make safer just don’t make it]

Defective design above ground pool Based on risk utility analysis, a defendant may be liable for a design defect even if his

product complied with the existing level of technological advances at the time of design. RISK benefit test Factors relevant to this decision include:

o (1) The usefulness and desirability of the product; o (2) The safety aspects of the product; o (3) The availability of a safer substitute product; o (4) The ability of the manufacturer to eliminate the unsafe character of the product; o (5) The user’s ability to avoid danger; o (6) The anticipated awareness of the user of the inherent dangers of the product and

their avoidability ando (7) The feasibility of the manufacturer spreading the loss.

Adamo v Brown TOBACCO

Companies negligent - should used less tar Had used light cigarettes as alternative design Negligence

o Duty -o Breach - b/c manufactured reg cigso CIF - huge here - how show if she'd smoked lighted cigs would be better

On Defect - issue is whether P showed there was an alternative feasible designo YES feasible, but doesn’t serve same function - so less desirable

Warning Defect (negligence standard everywhere) Product is defective b/c of inadequate when:

o Foreseeable risk of harm could have been reduced or avoided o (like Learned Hand - foreseeable and reasonable precautions)

Whether there is a warning defecto What are foreseeable risks

Like BPL Burden of a warning - SMALL

But over warning distracts so not an effective warning How big has to be

Restatement 3d Section 2(a) Warning Defect A product is defective b/c of inadequate warnings when the foreseeable risks of

harm could have been reduced or avoided by the provision of reasonable warning by the D and the omission of warnings renders the product not reasonably safe

(Basically negligence - do what reasonable person would do) - reasonable= negligence

CA language - Anderson- if warning NOT adequate in light of scientific knowledge - NOT reasonable - not foreseeable - unreasonable = But CA wont use word reasonableness

So for warning - can't warn what don’t know of so basically a negligence standard

Anderson Hindsight Liability: Does NOT apply to warning defects in CA (unlike design defect, warning liability is a subjective standard—J. Mosk would call it negligence)

a. Anderson: State of the Art Evidence is probative in a failure to warn casei. Whether, at the time asbestos placed on the market, D knew of the danger

ii. J. Most bright-line rule: If P alleges that...1. (a)Defendants had Actual Knowledge—State-of-the-art evidence properly

excluded2. (b)Defendants had Constructive Knowledge—State-of-the-art evidence

from D MAY rebut this claim

o A reasonable person would have warned and knew ---- so this is same Just use "adequate" not "reasonable"

NO different than negligebce What you KNEW at the time - do BPL - burden of warning none since you knew

o That is a reasonable prudent person would do

If provide adquate warning - someone would have read it and been OKo Can disprove that - say wouldn’t have read the warning

PRESUME would have read ito D would have to prove wouldn’t have read it

Union Pump case - causation question

Fire b/c pump, ends, P walks over pipes big boots falls Claims warning defect was the CIF/ PROX Cause her injury? Comparative fault will kick in here - P foolish for walking over when fires out - so maybe

90% at fault

PROVENeed prove defectThen prove cause in fact (substantial factor bringing injury or but for cause)

Some go to damages Some jx (CA) still do prox cause

o All things Andrews worried Unforeseeability Policy reason to cut off liability Distance in time and place Bizarree - unforeseeable ----------will cut off liability (See Paslgraf dissent)

Then Damages

Most jx use proximate cause - will use Andrews analysis

Prox cause usually not problem unless freakish intervening so not exact foreseeable resulto Ex: if airbag goes off when driving - know / foresee will crash

-------------------------Webb v Napstar (VT)

P riding tractor, dad driving factor, son standing on draw bar Tractor re-ended by car (drunk driver) P legs injured

Trial ct - verdict for D Claim - no red tail lights (just white) Claim - no place for passenger

o Design Defecto And Warning Defect --- no warning not to ride with field light on - since could, P

assumed was right Comparative principles allowed

o Why Greeman didn’t want to have to prove Negligence b/c manufacture will keep making defective product (cheaper) than stopping

Even if P not standing on bar, defective light could have caused accident anyway

Comparative Fault new doctrine - product liability was NO fault - now comparative fault -

how compare fault v no faulto Liability for manufacturing defect without negligenceo Not neg of D v neg of Po Have NO fault v. Negligence (apples and oranges) conflicting theories

CA says juries can handle it Most jx had comparative fault (NOT Called comparative negligence)

o Defective product compared to P negligence Hold

Doesn’t matter apples and oranges SHOULD use comparative fault

o Achieves fairness Don’t want D to get off just b/c P negligent b/c next time same thing could

happen without negligent P If VT is modified jx - P will get 0 b/c fault was more than 50%

Torts Final Outline

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