INTENTIONAL TORTS: TRESPASS TO PERSON, LAND AND CHATTELS

IntentAct (contracting muscle)Intent Proper (knowing your finger is on a trigger)Motive (pointing gun at your enemy)

Intent RST§8AA person acts with the intent to produce a consequence if:(a) the person acts with the purpose of producing that consequence; or(b) the person acts knowing that the consequence is substantially certain to result.

Illustrations:1. A throws bomb into B's office to kill B. A knows C is in the office. A does not desire to injure C, but knows his act is substantially certain to do so. C injured. A liable to C for intentional tort.

BATTERY

Battery: Offensive ContactIntentOffensive contact

Can result from touching clothing/cane/extension of personConsciousness on part of plaintiff not necessary as distinguished from assault

Illustrations:1. A, a surgeon, while B is under anesthesia, makes an examination of her person to which she has not given her consent. A is subject to liability to B for battery but not assault.3. A, with no intention of wetting anyone, throws water out of his window. He knows B is walking down the street and of the strong probability that the water will wet B. A is not liable to B if a small quantity of water splashes in his face but does him no bodily harm.4. A throws dirty water from his window at B who is walking on a street below. A few drops fall on B's hand but do him no bodily harm. A is subject to liability to B.

Vosburg v. PutneyIf the intended act is unlawful, the intention to commit it must necessarily be unlawful. If your intent proper is to commit an unlawful act, then your intent is unlawful.

CONVERSION

Possession or right to possessionIntent*Substantial interference (extent of invasion important – total deprivation of rights, total destruction)Damages

Due care on def’s part is not a defense. Innocent purchase of stolen goods is still conversion.

Moore v. Regents of the Univ. of Cal.Doctrine of conversion does not apply to bodily tissues because patient did not expect to retain the cells.

TRESPASS TO LAND

Trespass qcf (real property)Possession Intent (proper – intent to complete physical act – no blameworthiness needed)Direct Invasion (water counts)

Liability For Intentional Intrusions On Land RST§158One is liable for trespass, regardless if he does not cause harm, if he intentionally(a) enters land in the possession of the other, or causes a thing or a third person to do so, or(b) remains on the land, or(c) fails to remove from the land a thing which he is under a duty to remove.

Illustrations:1. A, against B's will, forcibly carries B upon the land of C. A is a trespasser; B is not.5. A erects a dam, intentionally causing water to flood B’s land. A is a trespasser.6. A intentionally shoots gun over land in B's possession, near the surface. A is a trespasser.

Douherty v. SteppThere is trespass if the D didn’t damage the land but only entered P’s property. No mistake of fact defense – even though D thought land was his own, he’s still liable.

TRESPASS TO CHATTELS

Trespass dba (to chattels)Possession or right to possessionIntentInterferenceDamages (as opposed to trespass to land) Liability To Person In Possession RST§218One who commits a trespass to a chattel is liable to the possessor of the chattel if, but only if,(a) he dispossesses the other of the chattel, or(b) the chattel is impaired as to its condition, quality, or value, or(c) the possessor is deprived of the use of the chattel for a substantial time, or(d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest.

Illustration:1. A, a police officer, mistakenly tells B that his car is under police custody but does not interfere with the car. An hour later the mistake is discovered. A is liable to B. 3. A leaves his car parked in front of a store. B releases the brake on A's car and pushes it three or four feet, doing no harm to the car. B is not liable to A.4. B, desiring to play a joke upon A, pushes A’s car around the corner where it cannot be easily seen by A. A comes out for his car, and fails to discover it for an hour. B is subject to liability for trespass to A.

Intel Corp. v. HamidiElectronic communication is not trespass to chattels if there’s no damage to personal property itself, the computers.

DEFENSES TO INTENTIONAL TORTS

ConsentNo tort – no prima facie case. Battery is offensive/harmful contact but not all non-consensual touching constitutes battery – if done in “spirit of pleasantry” (implied consent). *You know consent is implied by looking to relationship, social conventions, etc. When, under circumstances, individual’s reasonably conveys consent.

Emergency DoctrinePatient must be unconscious, incapable of consent, and without an agentTime is of essenceReasonable person would consent.

Mohr v. Williams Nonconsensual surgery is battery even though there is no negligence and no bad intent, because there was no emergency situation.

INSANITY

One who has deficient mental capacity is not immune from tort liability solely for that reason.

McGuire v. AlmyAn insane person is liable for damage, regardless of blameworthiness, regardless of nature of mental condition. When one of two innocent parties must pay, the actor is default.

SELF-DEFENSE

Actor need not wait till the blow is struck – he must reasonably believe another is about to inflict harm. Only use force necessary to protect against harm – reasonable force. Actor may act to prevent harm to 3rd person within reason. Actor need not retreat.

Mistake vs. AccidentIn mistake, defendant acted intentionally, but under erroneous belief that circumstances justify his conduct. For example, a man enters property thinking it’s his own.In accident, defendant unintentionally acted. For example, horse carries man onto another’s property.

Courvoisier v. RaymondA person is privileged to act in self-defense if the surrounding circumstances would lead a reasonable man to believe that he was in danger of losing his life or of receiving great bodily harm, even if the man mistakenly believed the danger was present.  

DEFENSE OF PROPERTY (uninhabited) realtyPossessionRequest to depart unless unreasonableReasonable force

Defense of Property P&K§21 Same considerations as self-defense – force must be reasonable. Interest in peaceful possession justifies protection by self-help; the force used must be reasonably necessary and not excessive. Barbed wire may be OK but deadly devices, such as spring guns, are not.

Bird v. Holbrook The privilege of defense of property does not apply when the property owner uses a spring gun without notice and harms an innocent trespasser. It's inhuman to catch a man by causing injury. If the intruder enters forcibly, a warning is necessary only if it is safe to give one. When the intrusion is peaceable, a warning is necessary. 

RECAPTURE OF CHATTELS

Recapture of ChattelsPossessionWrongful taking—without claim of rightReasonable force (“hot pursuit” required; a “speedy remedy”) Recapture of Chattels P&K§22Privilege is restricted to extreme cases where the emergency justifies the risk of the breach of peace, as when there's a wrongful dispossession by force/fraud and a prompt repossession. Force must be reasonable, i.e. after a verbal request if possible. If the owner only suspects the chattel was taken (shop owner suspects person of shoplifting) owner cannot detain person.

Recapture of Land P&K § 23If the owner can regain his possession peacefully he should wait his opportunity rather than use force but force is defined differently in different jurisdictions.

Kirby v. FosterThe privilege of recapture of chattels does not apply to an actor who takes by force money when it was taken under a good faith claim of right. Here, there was no wrongful taking. If there is a dispute over the money, the dispute should be handled in court, not by physical violence. Money is not a chattel.  

NECESSITY

Danger to life or propertyReasonable action Liable for damages when protecting private property

Necessity P&K§24One acts with necessity when he acts to prevent a threatened injury from force of nature or some other independent cause. “Public” necessity protects the common good and justifies the defendant completely so long as the emergency is great and he acts reasonably. “Private” necessity protects the person, his property, or a third person and does not justify the defendant; he must pay for the damage. An honest mistake does not destroy the privilege.

Private Necessity RST§197  (1)  One is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to(a)  the actor, or his land or chattels, or(b)  the other or a third person, or the land or chattels of either, unless the actor…has reason to know that the [third person] is unwilling that he shall take such action.(2)  Where the entry is for the benefit of the actor or a third person, he is subject to liability for any harm done…

Ploof v. Putnam The doctrine of necessity allows the trespass to property and chattels when life or property would be in danger without the trespass. A person may use reasonable force against another who attempts to prevent the trespass.

Vincent v. Lake Erie Transp. Co. The privilege of necessity does not allow a person to escape liability for damages to another's property when the act was committed to protect private property. You are liable for damage to another’s property.

EMOTIONAL AND DIGNITARY HARMS: ASSAULT

Assault P&K§10 intentional act creates an apprehension (not fear) of an imminent harmful or offensive contact (no actual contact necessary)

o pl must be aware of contacto apparent ability to carry out threat – pl has to believe there’s a threato apprehension has no relation to fear – dignitary harm

Illustrations:1. A, a scrawny individual, attempts to strike B, the heavyweight champion. B is not at all afraid of A, is confident that he can avoid any such blow, and in fact succeeds in doing so. A is liabile to B.

Tuberville v. Savage“Assault is an attempt to offer to beat another, without touching him”: there must be intention as well as an act to make an assault. Recovery is allowed without actual harm b/c an assault is inchoate violence.

EMOTIONAL AND DIGNITARY HARMS: OFFENSIVE BATTERY

Offensive Battery1) Intention to cause harmful/offensive contact (not necessarily to the person – extension of the person

covered as well) (intent element is satisfied even if the def only intends to cause apprehension of imminent contact)

2) Offensive contact directly/indirectly results (not necessarily w/that person’s knowledge) (spitting in the fact, forcibly removing a hat) (gray area: tap on shoulder, jostling)

Battery: Offensive Contact RST§18 (1)  Actor subject to liability to another for battery if (a)  he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b)  an offensive contact with the person of the other directly or indirectly results. What Constitutes Offensive Contact RST§19 A bodily contact is offensive if it offends a reasonable sense of personal dignity (it would offend the ordinary person and not one unduly sensitive as to his personal dignity). Illustrations of Intent Necessary:1. A aims a blow at B with a heavy stick. A bystander checks A’s arm so that the stick merely grazes B's body, doing no harm. A is subject to liability to B.3. A intentionally throws a bucketful of water over B. C is known by A to be standing arm in arm with B. A neither knows nor has reason to know that D is in the vicinity of B. As A throws the water, D unexpectedly approaches B and the water drenches B, C, and D. A is subject to liability to all three.

Infliction of Mental Distress P&K§12 liability for conduct exceeding bounds tolerated by decent society of a nature calculated to cause serious mental distress

Alcorn v. MitchellBattery with a malicious, willful, or wanton intention, even w/o real damage, is treated as an invasion of dignity, and therefore, a battery.

EMOTIONAL AND DIGNITARY HARMS: FALSE IMPRISONMENT

False Imprisonment1. Intent to confine plaintiff 2. Boundaries fixed by actor – restraint must be total3. Actual confinement against pl’s will4. Plaintiff’s awareness of confinement5. No damages necessary

Bird v. JonesWhen there are no fixed boundaries, false imprisonment must include some personal menace or force accompanying obstruction. There must be complete boundaries, not a simple restriction of movement (i.e. restriction in one direction but not the other).

EMOTIONAL AND DIGNITARY HARMS: THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Intentional Infliction of Emotional Distress1. Intentional or reckless conduct2. Extreme or outrageous behavior3. Severe emotional distress4. Reasonable distress (sometimes)

Infliction of Mental Distress P&K§12 liability for conduct exceeding bounds tolerated by decent society of a nature calculated to cause serious mental distress

Illustrations:1. As a practical joke, A falsely tells B that her husband has been badly injured in an accident. B suffers severe emotional distress. A is subject to liability to B for her emotional distress.3. A is invited to a swimming party at an exclusive resort. B gives her a bathing suit which he knows will dissolve in water leaving her naked in the presence of men and women whom she has just met. A suffers extreme embarrassment, shame, and humiliation. B is liable to A.

Wilkinson v. DowntonWhen someone commits a willful or reckless act which causes severe emotional distress in a person in an ordinary state of health and mind, the malicious intent to cause injury is imputed.

STRICT LIABILITY AND NEGLIGENCE: HISTORIC/ANALYTIC FOUNDATIONS: TRESPASS AND CASE:

Trespass and Trespass on the caseTrespass = immediate harmOn the case = indirect harm

Scott v. ShepherdIf the original trespass is committed and the natural and probable consequence of that act was injury to someone then the act is illegal and the actor is liable for all consequences, direct or consequential.

Intervening Causes P&K§44 Intervening cause: a cause which comes into active operation in producing the result after the negligence of the def. Def is liable only if the intervening cause is “foreseeable” (if one leaves key in car and thief runs over innocent bystander, car owner not liable).

STRICT LIABILITY AND NEGLIGENCE IN THE LAST HALF OF THE NINETEENTH CENTURY

Unavoidable Accident P&K § 29 A person is not liable for an occurrence not intended and unforeseen which could not be prevented by the exercise of reasonable precautions (a driver who is attacked by a swarm of bees).

Abnormally Dangerous Activities: General Principle RST § 519(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous (foreseeable). 

Considerations:--inappropriateness of the activity to the place where it is carried on; and--extent to which its value to the community is outweighed by its dangerous attributes.

Illustration:1. A, with reasonable care, carries on blasting operations in a closely settled rural district. A has no reason to know of the presence of B's mink ranch nearby. The noise of the blasting frightens the mink and the fright causes them to kill their young. A is not subject to strict liability to B for the loss of the mink.

Brown v. KendallIf an act is lawful, unintentional, and conforms to standard of reasonable care there is no liability for an unavoidable accident.

Rylands v. FletcherWhen someone has something in/on his land that can cause damage, even if the escape is lawful and occurs w/o his knowledge or willfulness, if it infringes on another’s right, he is liable for the natural and anticipated damages, unless it occurs through the other’s default or an act of God.

STRICT LIABILITY AND NEGLIGENCE IN MODERN TIMES

Unreasonable Risk P&K§31 Negligence: conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. Unavoidable accidents don't count (unprecedented weather, etc.). We consider social value of actor's interest (justified to dash in front of a train to save a life, but not a hat; we allow the use of dangerous machinery if it benefits society).

Bolton v. Stone (fence around cricket field)When determining negligence, injury must be reasonably foreseeable and the risk of injury must be substantial enough that a reasonable man would have taken steps to prevent the danger.

Hammontree v. Jenner Liability of actor who causes an accident after suffering unconsciousness as a result of a known illness is not determined by strict liability, but the principles of negligence.

NEGLIGENCE: THE REASONABLE PERSON 

Negligence1. Duty to conform to standard of conduct to protect others against unreasonable risk2. Breach , or failure to conform to standard3. Causation between conduct and injury4. Damages

Reasonable Man Standard External, consistent and objective formula Community ideal of reasonable behavior Blind person held to blind person standard No allowance made for mental illness, unless sudden onset of illness Children held to same standard as a reasonable person their age, unless child engages in adult activity

(driving). Those of high knowledge/skill held to higher standard

Vaughn v. Menlove (negligent haystacking) A man should use his property so as not to injure others (duty), and when his acts fall below the standard of conduct of a man of ordinary prudence (breach), he is liable for the consequences of his neglect (causation and damages).

Roberts v. Ring (77 y/o man who shouldn’t be driving + 7 y/o kid who jumps IFO his car)Certain qualifications to the reasonable man standard are made (children must act as reasonable children; blind must act as reasonable blind; physically infirm must act as reasonable physically infirm) but generally standard is objective.

Daniels v. Evans (teenager driving motorcycle)When a minor is engaged in dangerous activities inappropriate to his age, experience, and wisdom, he is held to the standard of reasonable care applied to adults engaged in that activity.

Breunig v. American Family Ins. Co. (woman w/ mental history thinks she’s batman)Generally insanity is not a defense to negligence except when it is such that if affects a person’s ability to understand the duty of adhering to a standard of reasonable care or ability to adhere to the standard of care is impaired and there was no forewarning of being subject to insanity.

Fletcher v. City of Aberdeen (blind man who falls into construction zone)The conduct of an actor w/ a disability is negligent only if it does not conform to that of a reasonably careful person with the same disability.

Robinson v. Roche, Bayerque & Co.Drunkenness of plaintiff is not a defense to defendant’s negligence. A person may be required to anticipate that persons who are ill or intoxicated may wander into places of danger.

Denver and Rio Grande R.R. v. PetersonStandard of care is constant regardless of wealth of either party.

NEGLIGENCE: CALCULUS OF RISK

Intervening Causes P&K§44 Comes into active operation in producing the result after the negligence of the def. Def is liable only if the intervening cause is “foreseeable” (leaving key in car and thief runs over innocent bystander, car owner not liable).

Unforeseeable consequences P&K§43--Negligence involves foreseeable risk. But should the defendant’s responsibility extend to unforeseeable consequences of the defendant’s negligent act (ex: a car crash causes someone to be shot)? --In Eckert, Cardozo holds that rescuers are always foreseeable. The defendant who negligently endangered one person is liable to another injured during rescue.

Assumption of Risk P&K§68Three types of assumption of risk. In each, actor acts "voluntarily" and the benefit outweighs risk.

Express consent: P gives D express consent to relieve D of obligation of conduct toward P. Ex: entering into a lease or contract.

Duty: P enters into some relation w/ D, w/ knowledge and appreciation that D will not protect him against future risks. Tacit or implied consent. Ex: accepting employment, sitting in a ballpark, getting in a car w/ a known drunk driver.

Misconduct defense: P is aware of a risk that's already been created by D's negligence, yet chooses voluntarily to proceed. Ex: walks over debris on sidewalk carelessly left there. Does not apply when there's no other alternative for the P (the neighbor’s hog case).

 Negligence RTT:LPH§3 A person acts with negligence if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person's conduct lacks reasonable care: 1) the foreseeable likelihood that it will result in harm, 2) the foreseeable severity of the harm that may ensue, and 3) the burden that would be borne by the person and others if the person takes precautions that eliminate or reduce the possibility of harm.--Balancing test: Conduct is negligent if its disadvantages outweigh its advantages, while conduct is not negligent if its advantages outweigh its disadvantages.  --To establish the actor's negligence, it is not enough that there be a likelihood of harm; the likelihood must be foreseeable to the actor at the time of conduct.

Blythe v. Birmingham Water Works (water spigot froze and damaged house)Negligence is failure to use degree of care that a reasonably prudent person would in the same situation, which is based on the ideally efficient behavior and does not include preparation for unprecedented or unanticipated events.

Eckert v. Long Island R.R. (guy injured rescuing child from train)In the event of a rescue, there is an independent duty to child and rescuer, even if child was negligent, unless rescuer was rash in his belief as to whether he could save the child without serious injury to himself.

Terry Formula – how reasonable is it to rescue? Can’t make a statistic based on one incident. Magnitude of risk Utility of risk – how likely the rescue will bePrincipal object – value of the rescuer Necessity of riskCollateral object – value of the rescue

Hand Formula: The probability of the accident occurring, the gravity of the injury that results, and the burden of adequate precautions must be weighed to determine

United States v. Carroll Towing Co. (barge knocked into 5 other barges & the bargee was absent)The circumstance surrounding an accident must be considered when determining whether someone is to be held liable for damages.

NEGLIGENCE: CUSTOM

Custom RTT:LPH§13 (a) An actor's compliance with the custom of the community, or of others in like circumstances, is evidence that the actor's conduct is not negligent but does not preclude a finding of negligence.(b) An actor's departure from the custom of the community, or of others in like circumstances, in a way that increases risk is evidence of the actor's negligence but does not require a finding of negligence.

Application of the Reasonable Person Standard P&K§33 Custom: custom is evidence to be considered, but is not conclusive. It is what the community regards as

proper. But sometimes it arises out of indifference (“customary negligence”). Thus, the custom must be “learned reason.”

Emergency: an actor confronted with a sudden, unexpected event calling for immediate action is not held to normal standards if he acts unreasonably given the circumstances.

Anticipating Conduct of Others: a person may be required to take precautions against the negligence of others (intoxicated person may wander into a place of danger) but there is a cost-benefit analysis.

Shifting Responsibility: the defendant may not be required to take precautions when the defendant is free to assume that someone else is responsible (ex: a laborer relies on his supervisors to set out warning signs). But the risk may be so great that it’s the def’s responsibility also.

Titus v. Bradford, B. & K.R.R. (guy falls off of railroad b/c it wasn’t secured properly; but it was custom)Within an industry, the customary usages, habits and risks of business determine the standard of care required to meet the standard of ordinary care threshold with respect to negligence, because custom is a reflection of what others expect of an actor. Lack of custom is a prima facie case of negligence.

The T.J. Hooper (radios on tugboats)Compliance or departure with custom within an industry should be evidentiary, but not prima facie evidence of ordinary care or lack of ordinary care.

Canterbury v. Spence (guy falls out of bed at hospital) Scope of physician disclosure requires that any information that is material to a patient’s decision concerning medical procedures be revealed to him, according to a reasonable prediction of a particular patient’s needs by the doctor, not according to the general medical community custom.

Disclosure standard - serves a social welfare purpose, danger of paternalism must be balanced(1) Reasonable (don't need to include obvious, irrelevant info)(2) Objective (prudent person's decision)(3) Exceptions (emergency - patient incapable of consent, therapeutic - threat to patient's wellbeing)

NEGLIGENCE: STATUTES AND REGULATIONS

Violation of Statute P&K§36It is negligent to deviate from the standard fixed for all members of a community through a statute. But we must question whether the legislation is constitution, whether it applies to the situation, and whether the statute has been violated. For ex: a train runs on a Sunday, against a statute for public peace, and kills a cow. The violation of the statute is not the proximate cause of the injury. The harm suffered must be the kind which the statute was intended, in general, to prevent. Some statues are simply unreasonable (6mph driving).

Statutory Violations As Negligence Per Se RTT:LPH§14An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor's conduct causes, and if the accident victim is within the class of persons the statute is designed to protect.

When Standard of Conduct Defined by Legislation or Regulation Will Be Adopted RST§286The court may adopt, as the reasonable man standard, the requirements of a statute whose purpose is found to be exclusively or in part(a) to protect a class of persons which includes the one whose interest is invaded, and(b) to protect the particular interest which is invaded, and(c) to protect that interest against the kind of harm which has resulted, and(d) to protect that interest against the particular hazard from which the harm results.

Excused Violations RTT:LPH§15An actor's violation of a statute is excused and not negligence if:(a) the violation is reasonable in light of the actor's childhood, physical disability, or physical incapacitation;(b) the actor exercises reasonable care in attempting to comply with the statute;(c) the actor neither knows nor should know of the factual circumstances that render the statute applicable;(d) the actor's violation of the statute is due to the confusing way in which the requirements of the statute are presented to the public; or(e) the actor's compliance with the statute would involve a greater risk of physical harm to the actor or to others than noncompliance.

Traditional standard of implied rights (statutory)(1) Must be a member of protected class(2) Injury must be of the type protected against

Anon. Wherever a statute enacts anything or prohibits anything for the advantage of any person that person shall have remedy to recover the advantage given him/satisfaction for injury done contrary to law by the same statute

ThayerNoncompliance with a statute counts as negligence per se.

Osborne v. McMasters (mislabeled poison)Violation of a statute is negligence per se when injury that it was designed to prevent to someone whom it was designed to protect is proximately produced by neglect, because negligence is the breach of a legal duty, whether that duty is imposed by common law or statute.

PROOF OF NEGLIGENCE: PROBLEMS OF PROOF: RES IPSA LOQUITUR

Circumstantial Evidence--Res Ipsa Loquitur P&K§39To prove negligence, proof is required; evidence from which reasonable persons may conclude that it’s more likely than not that the event was caused by the def’s negligence. Res ipsa loquitor is a reasonable conclusion, from the circumstances of an unusual accident, that it was probably the def's fault. Where the thing is under the management of the def or his servants, and the accident ordinarily does not happen when the def uses proper care, then that’s reasonable evidence that he accident arose from negligence. The event must be unordinary, it must be caused by something in exclusive control of the def, and it must not have been due to a voluntary action / contribution on part of pl. In Ybarra v. Spangard, res ipsa loquitur was applied against all of the docs and hospital employees though it was clear that some weren't responsible; the outcome was against all def because they were unable or unwilling to explain.

Res Ipsa Loquitur RST§328D(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when(a) the event is of a kind which ordinarily does not occur in the absence of negligence;(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and(c) the indicated negligence is within the scope of the defendant's duty to the plaintiff.

(2) It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn.

(3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached.

Res Ipsa Loquitur RTT:LPH§17The factfinder may infer that the defendant has been negligent when the accident causing the plaintiff's physical harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which the defendant is the relevant member.

Res Ipsa Loquitur: "The thing speaks for itself"(1) Accident must be of a kind which ordinarily does not occur in the absence of someone's negligence(2) It must be caused by an agency/instrumentality within the exclusive control of the def(3) It must not have been due to any voluntary action or contribution on the part of the plaintiff(4) Factor sometimes considered: evidence of events more accessible to defendants than plaintiff

Byrne v. Boadle (barrel of flour falls out window)Negligence can be inferred by circumstantial evidence demonstrating that an injury occurred while under the control of the defendant and the injury was one which would not normally occur in the normal course of activity while reasonable care is exercised.

Presumption v. Inference: “must” v. “may” assume existence of one fact from the existence of another

Ybarra v. Spangard (during operation, something wrong happens; all held liable)In determining liability under res ipsa loquitor when there are several defendants who are potentially liable and several instrumentalities/possibilities for negligence, everyone is liable for a failure to protect plaintiff from unnecessary harm while under their care unless doctrine of respondeat superior (where the principal is liable for the torts of his agents) is enacted.

CONTRIBUTORY NEGLIGENCE

Contributory Negligence Defined RST § 463 Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause co-operating with the negligence of the defendant in bringing about the plaintiff's harm.--Completely bars the plaintiff’s recovery (P&K 65) Causal Relation Between Harm And Plaintiff's Negligence RST § 465 (1) The plaintiff's negligence is a legally contributing cause of his harm if, but only if, it is a substantial factor in bringing about his harm and there is no rule restricting his responsibility for it.(2) The rules which determine the causal relation between the plaintiff's negligent conduct and the harm resulting to him are the same as those determining the causal relation between the defendant's negligent conduct and resulting harm to others.

RTT:LPH § 9If an actor is confronted with an unexpected emergency requiring rapid response, this is a circumstance to be taken into account in determining whether the actor's resulting conduct is that of the reasonably careful person.

Butterfield v. Forrester (plaintiff riding horse “violently” hits pole put across road by def)Contributory negligence bars recovery, because the final cause is the ultimate cause of the injury. Had plaintiff been going slower, he would have seen the pole.

Negligence - conduct creates undue risk of harm to others, requires duty/obligation of conduct to another personContributory Negligence - conduct creates undue risk of harm to actor, requires no duty (really contributory fault)

Gyerman v. US (sacks improperly stacked)Plaintiff told someone about stacks, but then kept working – his act was not negligent. Proof of contributory negligence falls on defendant, and in order to prove contributory negligence, he must show that the plaintiff’s conduct fell below a standard of care required for his own protection and was a legally contributing cause of plaintiff’s injury. Duty can be imposed and mitigated by employment contract, industry custom, practicality of abandoning a task for safety reasons, clarity as to imminence of danger, and availability of authority to inform.

Derheim v. N. Fiorito Co. (plaintiff wasn’t wearing a seatbelt in car accident)Even though wearing a seatbelt significantly reduces severity of injury, if there is no statute requiring seatbelts, there is no seatbelt defense.

Imputed contributory negligenceWhen people are involved in a joint enterprise (i.e. business partners), if one partner is contributorily negligent, that bars the other partner from fully recovering. By reason of some relationship between A and B, the negligence of A is charged to B even though B had nothing to do with it and may have tried to stop it.

CONTRIBUTORY NEGLIGENCE: LAST CLEAR CHANCE

Last Clear Chance: Helpless Plaintiff RST § 479 A pl who has negligently subjected himself to a risk of harm from the def's subsequent negligence may recover for harm caused thereby if, immediately preceding the harm, (a) the pl is unable to avoid it by the exercise of reasonable care, and(b) the def is negligent in failing to utilize with reasonable care his then existing opportunity to avoid the harm, when he

(i) knows of the pl's situation and realizes or has reason to realize the peril involved in it or(ii) would discover the situation and thus have reason to realize the peril, if he were to exercise the vigilance which it is then his duty to the plaintiff to exercise.

 Last Clear Chance: Inattentive Plaintiff RST § 480 A pl who, by the exercise of reasonable vigilance, could discover the danger created by the def's negligence in time to avoid the harm to him, can recover if, but only if, the defendant(a) knows of the pl's situation(b) realizes or has reason to realize that the pl is inattentive and therefore unlikely to discover his peril in time to avoid the harm, and (c) thereafter is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm RST § 503A pl whose conducts is in reckless disregard of her own safety his barred from recovery against a defendant whose reckless disregards of the pl's safety is a legal cause of the pl's harm.

Fuller v. Illinois Central R.R. (70 yr old wagon driver hit by train that didn’t warn him/slow down)Contributory negligence will not defeat an action when the defendant’s exercise of reasonable care would have avoided the accident causing injury. Last Clear Chance doctrine = negligence after contributory negligence after negligence (sole responsibility on person w/last clear chance to avoid injury)

ASSUMPTION OF RISK

Assumption of risk - narrowly defined (Prosser)Must know risk is present Must understand its natureChoice to incur risk must be full and voluntary

Lamson v. American Axe & Tool Co. (hatchet fell from a badly built rack)A plaintiff assumes the risk of injury if the likelihood of injury does not depend on someone else’s negligence but on the permanent conditions of surroundings, plaintiff’s continued presence in them, and his rejection of the opportunity to exit those conditions.

Murphy v. Steeplechase Amusement Co. (the flopper)There can only be voluntary assumption of risk if the risk of injury can be foreseen, only when dangers are obvious and necessary.

COMPARATIVE NEGLIGENCE

Degrees of Care; Aggravated Negligence P&K § 34 Amount of care demanded is proportional to apparent risk. Great dangers require great care. "Willful," "wanton," or "reckless" conduct is an act of unreasonable character in disregard of a known or

obvious risk that was so great as to make it highly probable that harm would follow, usually accompanied by a conscious indifference to the consequences.

Comparative Negligence P&K § 67 Three types of comparative negligence:

o Pure: A pl's contributory negligence reduces his damages in proportion to his fault; Criticism: allows a major wrongdoer to recover against a minor one if his injuries were more severe

o Modified: "50% System"; pl's contributory negligence does not bar recovery so long as it remains below half of total fault. If pl's fault exceeds threshold amount, the pl takes nothing. If pl's fault falls below threshold amount, pl's damages are reduced proportionately to his fault.

o Slight-gross: the pl's contributory negligence is a bar to recover unless his negligence is "slight" and def's by comparison is "gross."

Effect Of Plaintiff's Negligence When Plaintiff Suffers An Indivisible Injury RTT:AL § 7Plaintiff's negligence (or the negligence of another person for whose negligence the plaintiff is responsible) that is a legal cause of an indivisible injury to the plaintiff reduces the plaintiff's recovery in proportion to the share of responsibility the factfinder assigns to the plaintiff (or other person for whose negligence the plaintiff is responsible).

Li v. Yellow Cab Co. (crossed 3 lanes of oncoming traffic to make left turn, guy who hit him was speeding)Pure comparative negligence assesses liability in direct proportion to fault, but different forms of comparative negligence are available.

JOINT AND SEVERAL LIABILITY

Joint liability: Situation where each of several obligors, anyone can be responsible for entire loss where others are unable to paySeveral liability: Each person has an obligation parallel to that of others - share of any judgment against one party is not increased by default of anotherJoint and several liability: Any situation where obligors are joint to obligee, and bear several liability amongst themselves

Right of plaintiff against each def, and rights of defs against one anotherEither tortfeasor is liable for entire loss

Joint Tortfeasors: Concerted Action P&K § 46All those who, in pursuance of common plan to commit a tort, actively take part in it, further it by cooperation/request, lend aid, etc., are equally liable.  Joint Tortfeasors: Joinder of Defendants P&K § 47Two or more persons may be joined as def's in same action at law where the two defendants have produced a single result.  Joint Tortfeasors: Judgment and Satisfaction P&K § 48An unsatsified judgment against one tortfeasor does not bar an action against another. Pl may bring separate suits, pursue each to judgment, and elect to enforce either or both.

  Joint Tortfeasors: Contribution P&K § 50Majority of American courts refuse to permit contribution among joint tortfeasors even where independent, although concurrent negligence had contributed to a single result. There is a lack of sense justice in this rule, that allows entire burden to be shouldered on one when two were equally responsible. As a result, most states have passed statutes permitting contribution among joint tortfeasors.  Joint Tortfeasors: Indemnity P&K § 51 An order requiring another to reimburse in full one who has discharged a common liability.  Effect Of Release Of Or Payment By Or On Behalf Of One Of Several Tortfeasors RST § 885 (1) A valid release of one tortfeasor from liability for a harm, given by the injured person, does not discharge others liable for the same harm, unless it is agreed that it will discharge them.(2) A covenant not to sue one tortfeasor or not to proceed further against him does not discharge any other tortfeasor liable for the same harm.(3) A payment by any person made in compensation of a claim for a harm for which others are liable as tortfeasors diminishes the claim against the tortfeasors, at least to the extent of the payment made, whether or not the person making the payment is liable to the injured person and whether or not it is so agreed at the time of payment or the payment is made before or after judgment. Reallocation Of Damages Based On Unenforceability Of Judgment RTT:AL § 21 § C21 (a) Except as provided in Subsection (b), if a defendant establishes that a judgment for contribution cannot be collected fully from another defendant, the court reallocates the uncollectible portion of the damages to all other parties, including the plaintiff, in proportion to the percentages of comparative responsibility assigned to the other parties.(b) Reallocation under Subsection (a) is not available to any defendant subject to joint and several liability pursuant to § 12 (intentional tortfeasors) or § 15 (persons acting in concert). Any defendant legally liable for the share of comparative fault assigned to another person pursuant to § 13 (vicarious liability) or § 14 (tortfeasors who fail to protect the plaintiff from the specific risk of an intentional tort) may not obtain reallocation of the liability imposed by those Sections.

Union Stock Yards Co. v. Chicago R.R. (terminal and r.r. inspected and missed defective part)One of several wrongdoers cannot recover from another wrongdoer even if the first was compelled to pay damages for whole injury, unless they are not equally at fault (although a plaintiff can fully recover from either party). Plaintiff can get full recovery from either defendant, but a defendant can’t turn around and sue the other defendant if they are equally at fault; if one def is more at fault than the other, you can.

American Motorcycle v. Superior Court (claim against motorcyclist’s parents)There should be partial indemnity among concurrent tortfeasors on a comparative fault basis. Otherwise burden of insolvency would fall on plaintiff who is generally less culpable (violation of his duty to himself rather than his duty to others). If there’s comparative negligence, and there’s two tortfeasors, D1 is 10% at fault, the D2 is 60% at fault and P is 30% at fault, each D can be liable for 70% of the liability.

VICARIOUS LIABILITY

Vicarious Liability P&K § 69 By reason of relationship between A and B, negligence of A is charged against B, although B played no

part in negligence, nor encouraged it, or did everything to prevent it. Same rules applied as negligence, even though it seems like strict liability. Justifications: cost internalization (one who is a better position to control another must bear the loss, that

person can absorb and distribute loss); risk avoidance (employer has incentive to be careful in selection, instruction & supervision of his servants).

  Automobile Owners and Others P&K § 73 An owner is liable to have insurance and cover the risk of accident, rather than the driver, because the owner should be responsible for entrusting the car to an unsuitable driver.

Servants: Restatement (Second) of Agency § 228 (1) Conduct of a servant is within the scope of employment if, but only if:

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

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

Ira S. Bushey & Sons v. US (drunk sailor flooded drydock)Vicarious liability with respect to respondeat superior encompasses the behavior of an employee that is within a very broadly defined scope of employment.

CAUSATION: CAUSE IN FACT

What Constitutes Legal Cause RST § 431 The actor's negligent conduct is a legal cause of harm to another if(a) his conduct is a substantial factor in bringing about the harm, and(b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.

Factual Cause RTT:LPH § 26 Tortious conduct must be a factual cause of physical harm for liability to be imposed. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct (but for).

Persons Acting In Concert RST §876 For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he

(a) does a tortious act in concert with the other or pursuant to a common design with him, or(b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.

CAUSATION: CAUSE IN FACT CONT’D

Apportionment Of Liability When Damages Can Be Divided By Causation RTT:AL § 26(b) (b) Damages can be divided by causation when the evidence provides a reasonable basis for the factfinder to determine:

(1) that any legally culpable conduct of a party or other relevant person to whom the factfinder assigns a percentage of responsibility was a legal cause of less than the entire damages for which the plaintiff seeks recovery and(2) the amount of damages separately caused by that conduct.

Proximate Cause: Causation in Fact P&K § 41 Proximate cause is the limitation of the actor’s responsibility to those damages closely connected with the

act. Cause in fact directs the factfinder to compare what did occur with what would have occurred in a

hypothetical condition. But-for Rule: an act/omission is not a cause if the event would have occurred without it (failure to have a

buoy is not the cause of death). The def’s conduct is a but-for cause if the even would not have occurred without his conduct. But-for test doesn’t work when two causes concur to cause an event and neither cause alone is sufficient.

Substantial factor rule: def’s conduct was a material element in bringing about event.  

NY Cent R.R. v. Grimstad (barge not equipped w/safety equipment, captain drowned)In order for the barge owner to be negligent, the lack of safety equipment must have been a “but for” cause of the captain’s death as well as a substantial factor in it. Therefore if the probability of the captain drowning would have been more than 50% even w/life saving equipment, the lack of it is not a substantial factor/but for cause of his death.

Zuchowicz v. US (overdose caused medical condition which caused death)In order to show causation, there must be evidence that the defendant’s negligence more likely than not caused the injury complained of (so the overdose of medicine more likely than not caused the medical condition) – results in over and underpaying. If a negligent act was deemed wrongful b/c that act increased the chances that a particular type of accident would occur and a mishap of that very sort did happen, this was enough to support a finding by the trier of fact that the negligent behavior caused the harm.

General Electric Co. v. Joiner (PCBs and lung cancer)Standard of review of trial court’s evidentiary rulings is abuse of discretion, but with respect to scientific evidence, judges must evaluate whether theoretical underpinnings of method must yield testable predictions by which is can be falsifiable, studies are acceptably published in peer review, there is a known rate of error that can be used in evaluating the accuracy of the assertions, and method is generally accepted within the scientific community.

Herskovits v. Group Health Coop (survival rate reduced by late diagnosis)Total recovery is not allowed but recovery for loss caused by decreased survival is, even when negligence is not more likely than not the cause of death, but rather results in the deprivation of a significant chance of survival.

Summers v. Tice (two hunters shoot at the same time)When defendants are simultaneously and similarly negligent and it is more likely than not that negligence of either defendant could have caused plaintiff’s injury, the burden of determining individual contribution should rest on them rather than on plaintiff, so he can fully recover from either.

CAUSATION: CAUSE IN FACT CONT’D

Apportionment Of Harm To Causes RST §§ 433A (1) Damages for harm are to be apportioned among two or more causes where

(a) there are distinct harms, or(b) there is a reasonable basis for determining the contribution of each cause to a single harm.

(2) Damages for any other harm cannot be apportioned among two or more causes.

Burden Of Proof RST § 433B (1) The burden of proof that the tortious conduct of the defendant has caused the harm to the plaintiff is upon the plaintiff. Except: (2) Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor.(3) Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm.

Alternative Liability RST §433B Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff only by one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm. The theory of alternative liability dictates that tortfeasors who act in concert will be held jointly and severally liable for the plaintiff's injury unless the tortfeasors are able to prove that they have not caused the harm. Skipworth v. Lead Industries (lead poisoning, home circa 1870)The theory of market share liability means that although there is no proven liability, all defendants must pay their proportionate share of the damages based on their share of the market. However, certain requirements must be met for market share liability to apply: (1) injury or illness occasioned by a fungible product (produced w/same specs and w/same formula), (2) injury or illness due to design hazard (each manufacturer incorporates this hazard in proper production), (3) inability to identify specific manufacturer bringing about plaintiff's illness/injury, and (4) joinder of enough of manufacturers to represent a substantial share of the market (in principle, the standard is the same whether there is a substantial proportion or not).

Products Liability: Proof P&K § 103 The plaintiff has burden of evidence to show that it’s more likely than not that: 1) the plaintiff’s injury was attributable to the defendant’s product, 2) the product was defective at the time of the damaging event, 3) the defective condition was the cause of the damaging event, 4) the defective condition existed at the time the defendant surrendered possession, and5) the defective condition was a proximate or legal cause of the damaging event. Requirements for market-share liability (each def liable proportionally to share of market): 1) injury occasioned by a fungible product (identical to all other def's product), 2) each drug has same defect, 3) can't identify which one caused injury, and 4) all potential def’s are joined.

PROXIMATE CAUSE (HEREIN OF DUTY): PHYSICAL INJURY

Proximate Cause: Scope of the Problem P&K § 42Issues of Proximate Cause:

Whether liability should extend only to foreseeable risks,or to all direct consequences and indirect but foreseeable consequences

Whether scope of liability is to be dealt with as duty or cause Courts usually don’t mean proximate cause when they say proximate cause Apportionment of Damages Should the defendant be liable for all results he could not reasonably foresee? Intervening Causes

Relation to Duty: Was the defendant under a duty to protect the plaintiff? If the def was not under a duty, he may not be liable.

Unforeseeable consequences P&K § 43 Issues regarding unforeseeable consequences

How do you define what is foreseeable? What if the defendant fails to guard against a foreseeable harm (negligently causes a car crash) and

unpredictable consequences follow (someone gets shot)? Present state of law is undecided with respect to whether negligence extends only to tthose within a definite

areaTraditional Rules

No def should be liable for consequences which not reasonable person would expect to follow from the conduct.

Def is liable only if the harm suffered is the "natural and probable" consequence of the act. - natural means not surprising.

NY Courts have arbitrary rule of “time and space” proximity – all other courts reject this. Restatement says that the def is not liable for consequences which, looking back, seem highly

extraordinary. Policy Consideration

The one who occasioned the loss should bear responsibility (corrective justice) Social policy: should the defendant bear the loss simply because our civilization is complex? Strict liability – defendant should be liable for all acts, regardless of foreseeability (Epstein – to the extent

of the harm) Administrative cost: if we allow liability to infinity, the law becomes unpredictable. Instead, set strict

rules to limit liability.

Statement Of The Elements Of A Cause Of Action For Negligence RST § 281 The actor is liable for an invasion of an interest of another, if:

(a) the interest invaded is protected against unintentional invasion, and(b) the conduct of the actor is negligent with respect to the other, or a class of persons within which he is included, and(c) the actor's conduct is a legal cause of the invasion, and(d) the other has not so conducted himself as to disable himself from bringing an action for such invasion.

… c. Risk to class of which plaintiff is a member.If the actor's conduct creates a recognizable risk of harm only to a particular class of persons, the fact that it causes harm to a person of a different class, to whom the actor could not have anticipated injury, does not render the actor liable to the persons so injured.  

PROXIMATE CAUSE (HEREIN OF DUTY): PHYSICAL INJURY, CONT’D

What Constitutes Legal Cause RST § 431 The actor's negligent conduct is a legal cause of harm to another if(a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.

Intentionally Tortious Or Criminal Acts Done Under Opportunity Afforded By Actor's Negligence RST § 448 When an actor’s negligent conduct creates a situation that which affords an opportunity for a third person to commit a tort, then the act of that third person is a superseding cause of the harm, unless the original actor realized or should have realized the likelihood that the situation might be created and that a third person might avail himself of the opportunity to commit the tort. (Brower wagon theft case) Risk Of Physical Harm Not Generally Increased By Tortious Conduct RTT:LPH § 30 An actor is not liable for physical harm when the tortious aspect of the actor's conduct was of a type that does not generally increase the risk of that harm.

Ryan v. New York Central (negligent fire spread through neighborhood)A proximate cause is defined as being “not remote” in negligence, which implies that there are not intervening factors outside the defendant’s control. (Not liable for non-contiguous properties.)

Cause in fact tests:But for Substantial factor (concerns legal significance rather than factual quantum - policy considerations)

 Proximate cause tests:

Substantial factorHarm within the risk (prevention of risk is reason for duty - harm unrelated to duty = not proximate cause)Foreseeability (foreseeable consequences are natural and probable consequences - consequences within the scope of the original risk so that likelihood of occurrence was a factor in making the def negligent in the first place)Direct consequences

Berry v. Sugar Notch Borough (windstorm knocked over shaky tree)Proximate cause implies that an injury was a natural and probable result of the negligence. Although the negligence may have increased the risk of injury indirectly (i.e. the not speeding car may not have been in the same spot when the tree fell), the causal linkage must be direct enough to say the result is foreseeable given the breach.

Brower v. New York Central (wagon and train crash, contents of wagon stolen)Although an intervening cause may occur, it does not necessarily break the chain of causation if the intervention is still within the foreseeable consequences of negligence. If it is not a superseding intervening cause, it is merely a concurrent cause which is not sufficient to break the chain of causality.

Wagner v. International Ry. (cousin thrown off moving train)Because “danger invites rescue” and as long as the rescuer is not wanton or reckless, even if rescuer is unforeseeable and rescue is no longer an “instinctive” act, the negligent actor who caused the situation for which rescue is required is liable for harm to the rescuer. A risk cannot be assumed when the alternative is to allow the harm to occur.

PROXIMATE CAUSE (HEREIN OF DUTY): PHYSICAL INJURY, CON’TD

In Re Polemis (ship leased, plank fell, fire started) (Overturned)If a reasonable person would foresee that an act would cause damage, there is negligence. If the act is negligent, it is immaterial that the damage it in fact causes is not the type or extent of damage expected. As long as the damage is directly traceable to the negligent act and not due to the operation of independent causes having no connection with that act, and it is foreseeable that there will be some harm, liable for any extent of that harm, and if some kind of harm is foreseeable, liable for any harm, even if not the particular type foreseen.

Palsgraff v. Long Island R.R. (package explodes on train platform)Foreseeability means that the potential harm must be within the risk or be the natural and probable consequence of the risk. The risk that is reasonably perceived defines duty. Negligence must be considered in terms of injured party, not in the abstract, so if the harm to the party was not a foreseeable (natural and probable consequence) of the risk, there is no negligence to that party.

Marshall v. Nugent (collision, plaintiff warning oncoming traffic is hit by truck)Proximate cause has limitations because holding one person responsible for everything that happens as a but for result of his negligent act is impractical and unfair. The liability of a negligent actor is confined to harmful consequences resulting from the risk, the foreseeability of which rendered the def's conduct negligent . What is foreseeable is the general character or type of harm, not the particular method of its occurrence. When the risks created by the actor’s negligence are not yet removed, and the injury received by the plaintiff is not remote in time or space, and has occurred "during" the negligence of original negligent actor, the actor is liable.

Overseas Tankship v. Morts Dock (Wagon Mound I) (carelessly discharged oil set fire to dock later)Overturns Polemis: Man must be considered to be responsible for the probable consequences of his act because consequences that are natural or necessary or probable should have been foreseen (reasonable man would have foreseen the consequences and therefore had a duty not to cause them; he should have met standard of care).

FORESEEABILITYConsequences:

1. Type of harm: only held liable for injury of same general kind that they should have reasonably seen and acted to avoid

2. Manner of harm: general character/type of harm and not its precise nature, detail, or manner of occurrence

3. Extent of harm: if can see nature of harm done, even if extent of that harm is larger than was foreseeable

Plaintiffs: 1. Plaintiffs harmed: not held for unforeseeable plaintiffs: no duty and hence no negligence toward the

unforeseen plaintiff (unsettled in US), only to plaintiffs of same general class of those toward whom harm can be foreseen

PROXIMATE CAUSE (HEREIN OF DUTY): EMOTIONAL DISTRESS

Negligent Infliction Of Emotional Disturbance Resulting From Bodily Harm To A Third Person RTT § 47 An actor who negligently causes serious bodily injury to a third person is subject to liability for serious emotional disturbance thereby caused to a person who:(a) perceives the event contemporaneously, and(b) is a close family member of the person suffering the bodily injury.

Physical Harm Resulting From Emotional Disturbance RST § 436 (1) If the actor's conduct is negligent as violating a duty of care designed to protect another from a fright or other emotional disturbance which the actor should recognize as involving an unreasonable risk of bodily harm, the fact that the harm results solely through the internal operation of the fright or other emotional disturbance does not protect the actor from liability.(2) If the actor's conduct is negligent as creating an unreasonable risk of causing bodily harm to another otherwise than by subjecting him to fright, shock, or other similar and immediate emotional disturbance, the fact that such harm results solely from the internal operation of fright or other emotional disturbance does not protect the actor from liability.(3) The rule stated in Subsection (2) applies where the bodily harm to the other results from his shock or fright at harm or peril to a member of his immediate family occurring in his presence. Negligence Resulting In Emotional Disturbance Alone RST § 436AIf the actor's conduct is negligent as creating an unreasonable risk of causing either bodily harm or emotional disturbance to another, and it results in such emotional disturbance alone, without bodily harm or other compensable damage, the actor is not liable for such emotional disturbance.

Negligent Conduct Directly Inflicting Emotional Disturbance On Another RTT:LPH § 46 An actor whose negligent conduct causes serious emotional disturbance to another is subject to liability to the other if the conduct: (a) places the other in immediate danger of bodily harm and the emotional disturbance results from the danger; or (b) occurs in the course of specified categories of activities, undertakings, or relationships in which negligent conduct is especially likely to cause serious emotional disturbance. Limited Duty: Mental Disturbance P&K § 54 Historical Concerns

How to measure mental disturbance, How to show proximate cause between negligence and harm, Open the floodgates of litigation, Danger that claims of mental harm will be falsified, Perceived unfairness of imposing liability on a defendant whose conduct was negligent for consequences which appear remote from “wrongful” act

Prosser’s Response Mental suffering is no more difficult to estimate monetarily than physical pain, Even though serious

consequences usually only follow if there’s a predisposing condition, the law is not for the protection of the physically sound alone, No great flood of litigation has occurred.

Rules Majority of courts: no recovery where the def’s N causes mental disturbance with no physical injury. Some

courts recognize cases of genuine and serious mental distress alone, with no accompanying physical injury (as when a phone company erroneously sends a message that a family member has died)

Dillon v. Legg (mother/sister witnessed death of daughter/sibling)“Impact rule” and “zone of danger” rules are defunct. The foreseeability of risk is the chief element in determining whether defendant owes a duty to plaintiff: whether plaintiff was near the scene, whether the shock resulted from direct emotional impact from observance of accident, and whether there was a close relationship between plaintiff and victim. This way, the negligent actor is no liable for remote and unforeseeable consequences.

AFFIRMATIVE DUTIES: THE DUTY TO RESCUE

Duty P&K § 53 Duty is a question of whether the defendant is under obligation for the benefit of the plaintiff. In negligence, there is always a duty to conform to the legal standard of reasonable conduct. Changing social conditions lead to new duties. Courts will find a duty where reasonable persons would

recognize the duty would exist.  Limited Duty: Acts and Omissions P&K§56

Misfeasance is an act where the defendant created a new risk of harmo liability extends to any person who reasonably anticipates the harm

Nonfeasance is an omission or failure to protect the plaintiff from the harm, where the defendant has made the situation no worse.

o it’s necessary to find some relation between the parties, such that social policy justifies a duty to act.

o Courts are “shocking to the extreme” in their refusal to hold a person liable for failing to rescue one in danger. The issue is the difficulties of setting any standards of unselfish conduct required (slippery slope)

Exceptions to the general ruleo Duty to aid common carrier/passenger, ship/seaman, employer/employee, host/guest,

shopkeeper/visitor, jailer/prisoner, etc.o When you affirmatively act, you have a duty not to worsen the situation: “The good Samaritan

may find himself mulcted in damages, while the priest and the Levite who pass by go on their cheerful way rejoicing.”

o If the def has made the situation worse, either by increasing the danger, by misleading the pl into thinking the danger was removed

o If the def deprives the pl of help from other sources Owners and Occupiers of Land: Trespassing Adults P&K§58

Possessor of land is not liable for injury to a trespassor when the owner fails to put his land in a safe condition.

However, frequent trespass upon a limited area where def knows of frequent entry and should exercise care.

Discovered trespassers: def is liable once trespasser's presence is known, landowner must refrain from injury by willful/wanton conduct; but if the trespasser is perceived to be in a situation of peril/danger & the landowner is notified, there is a higher duty.

 Owners and Occupiers of Land: Trespassing Children P&K§59

There are conflicting interests between the freedom of the use of land and the protection of children. Negligence is determined by weighing the probability and the gravity of the possible harm against the

utility of the def's conduct and the cost and trouble of reducing the risk Landowner or occupier, rather than parent, is often in best position to protect straying child against dangers

on the land In cases of "attractive nuisance," the landowner is liable, but only w/ unnatural conditions If child is old enough to appreciate the danger, the owner is not liable. Owner must have been able to anticipate that a child would trespass and get injured. Owner must known of dangerous condition, or have reason to know of it.

AFFIRMATIVE DUTIES: THE DUTY TO RESCUE, CONT’D

Artificial Conditions Highly Dangerous To Known Trespassers RST§337 A possessor of land who maintains on the land an artificial condition which involves a risk of death or serious bodily harm to persons coming in contact with it, is subject to liability for bodily harm caused to trespassers by his failure to exercise reasonable care to warn them of the condition if(a) the possessor knows or has reason to know of their presence in dangerous proximity to the condition, and(b) the condition is of such a nature that he has reason to believe that the trespasser will not discover it or realize the risk involved.

Duty To Aid Another Harmed By Actor's Conduct RST§322 If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm. Duty Of One Who Takes Charge Of Another Who Is Helpless RST§324 One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by(a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor's charge, or(b) the actor's discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him. Negligently Preventing Assistance RST§327 One who knows or has reason to know that a third person is giving or is ready to give to another aid necessary to prevent physical harm to him, and negligently prevents or disables the third person from giving such aid, is subject to liability for physical harm caused to the other by the absence of the aid which he has prevented the third person from giving. Duty Based On Prior Conduct Creating A Risk Of Physical Harm RTT:LPH§39 When an actor's prior conduct, even though not tortious, creates a continuing risk of physical harm of a type characteristic of the conduct, the actor has a duty to exercise reasonable care to prevent or minimize the harm.

Duty To Another Based On Taking Charge Of The Other RTT:LPH§44 (a) An actor who, despite no duty to do so, takes charge of another who reasonably appears to be: (1) imperiled and (2) helpless or unable to protect himself or herself has a duty to exercise reasonable care while the other is within the actor's charge.(b) An actor who discontinues aid or protection is subject to a duty of reasonable care to refrain from putting the other in a worse position than existed before the actor took charge of the other and, if the other reasonably appears to be in imminent peril of serious bodily harm at the time of termination, to exercise reasonable care with regard to the peril before terminating the rescue.

Buch v. Amory (child injured after trespassing on factory land)Negligence is actionable only where there is a neglect of a legal duty. There is no legal duty to rescue or prevent a wrong, because acts of misfeasance are seen as increasing a risk, where nonfeasance does not affect the risk already present.

Montgomery v. National Convoy (truck stalled at foot of icy hill)Liability will attach if the act of omission of a duty owed another, under the circumstances, is the direct, proximate and efficient cause of the injury. It is incumbent on defendants to take such precautions as would reasonably be calculated to prevent injury when original risk has been caused by him or if he has volunteered to warn. The affirmative duty is to act reasonably even after non-negligently creating a hazardous situation in a public place.

GRATUITOUS UNDERTAKING

Negligent Performance Of Undertaking To Render Services RST§323 One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or(b) the harm is suffered because of the other's reliance upon the undertaking.

 Duty Based On Prior Conduct Creating A Risk Of Physical Harm RTT:LPH§39 When an actor's prior conduct, even though not tortious, creates a continuing risk of physical harm of a type characteristic of the conduct, the actor has a duty to exercise reasonable care to prevent or minimize the harm. Duty Based On Undertaking RTT:LPH§42 An actor who undertakes to render services to another that the actor knows or should know reduce the risk of physical harm to the other has a duty of reasonable care to the other in conducting the undertaking if:

(a) the failure to exercise such care increases the risk of harm beyond that which existed without the undertaking, or(b) the person to whom the services are rendered or another relies on the actor's exercising reasonable care in the undertaking.

Marsalis v. LaSalle (bit by possibly rabid cat)One who voluntarily undertakes to care for, or to afford relief or assistance to, an ill, injured, or helpless person is under a legal obligation to use reasonable care and prudence in what he does. Reasonable reliance on an agreement means waiving other rights to care for self.

SPECIAL RELATIONSHIPS

General Principle RST§315 There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless

(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or(b) a special relation exists between the actor and the other which gives to the other a right to protection.

 Duty Of Parent To Control Conduct Of Child RST§316 A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others [intentional tort] or from so conducting itself as to create an unreasonable risk of bodily harm to them [negligence], if the parent

(a) knows or has reason to know that he has the ability to control his child, and(b) knows or should know of the necessity and opportunity for exercising such control.

 

SPECIAL RELATIONSHIPS, CONT’D

Duty Of Master To Control Conduct Of Servant RST§317A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if

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

(b) the master(i) knows or has reason to know that he has the ability to control his servant, and(ii) knows or should know of the necessity and opportunity for exercising such control.

 Duty Of Possessor Of Land Or Chattels To Control Conduct Of Licensee RST§318 If the actor permits a third person to use land or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor

(a) knows or has reason to know that he has the ability to control the third person, and(b) knows or should know of the necessity and opportunity for exercising such control.

 RST§319. Duty Of Those In Charge Of Person Having Dangerous PropensitiesOne who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm. Duty Of Person Having Custody Of Another To Control Conduct Of Third Persons RST§320 One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal power of self-protection or to subject him to association with persons likely to harm him, is under a duty to exercise reasonable care so to control the conduct of third persons as to prevent them from intentionally harming the other or so conducting themselves as to create an unreasonable risk of harm to him, if the actor

(a) knows or has reason to know that he has the ability to control the conduct of the third persons, and(b) knows or should know of the necessity and opportunity for exercising such control.

 Duty To Third Persons Based On Special Relationship With Person Posing Risks RTT:LPH§41 (a) An actor in a special relationship with another owes a duty of reasonable care to third persons with regard to risks posed by the other that arise within the scope of the relationship.(b) Special relationships giving rise to the duty provided in Subsection (a) include:

(1) a parent with dependent children,(2) a custodian with those in its custody,(3) an employer with employees when the employment facilitates the employee's causing harm to third parties, and(4) a mental-health professional with patients.

Tarasoff v. Regents (murder after counsel reported dangerous propensity)Once a therapist determines, or should reasonably have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to all persons who are foreseeably endangered by the conduct, with respect to all risks which make the conduct unreasonably dangerous. Warning of or controlling someone else's conduct usually only required in cases of "special relationship" between actor or potential victim and third party.

TRADITIONAL STRICT LIABILITY: ANIMALS

Strict Liability: Basis of Liability P&K§75 Strict liability is like “liability without fault” in that the actor does not have intent or negligence (the def has

not even departed from a reasonable standard of care) Strict liability is usually imposed where the defendant’s activity is unusual and abnormal in the community,

and the danger of the activity is very great, even if it’s conducted with the greatest caution.  Strict Liability: Animals P&K§76

Those who keep animals that are obviously dangerous are strictly liable, even if the animals are carefully kept.

The keeper of animals likely to roam and do damages is strictly liable for their trespasses; generally not applied to cats or dogs.

Keepers of domestic animals are only liable if the keeper has reason to know of a dangerous propensity.  Strict Liability: Extent of Liability P&K§79

In general, strict liability will never be found unless the def is aware of the abnormally dangerous condition or activity and has voluntarily engaged it.

Some limitations are set. In general, strict liability is confined to consequences which lie within the extraordinary risk whose existence calls for special responsibility. The class of persons who are threatened by the abnormal danger, and the kind of damage they are expected to incur, limits strict liability.

When harm to a trespasser/licensee on the def's land is foreseeable, the def is strictly liable, as when he keeps a vicious dog on his property. Unless the licensee or trespasser was aware of the risk.

Def is relieved form liability by the independent act of a 3rd person which he could not have foreseen or prevented.

 Liability For Trespass By Livestock RST§504 (1) Except as stated in Subsections (3) and (4), a possessor of livestock intruding upon the land of another is subject to liability for the intrusion although he has exercised the utmost care to prevent them from intruding.(2) The liability stated in Subsection (1) extends to any harm to the land or to its possessor or a member of his household, or their chattels, which might reasonably be expected to result from the intrusion of livestock.(3) The liability stated in Subsection (1) does not extend to harm

(a) not reasonably to be expected from the intrusion;(b) done by animals straying onto abutting land while driven on the highway; or(c) brought about by the unexpectable operation of a force of nature, action of another animal or intentional, reckless or negligent conduct of a third person.

(4) A possessor of land who fails to erect and maintain a fence required by the applicable common law or by statute to prevent the intrusion of livestock, can not recover under the rule stated in Subsection (1). Harm Done By Abnormally Dangerous Domestic Animals RST§509 (1) A possessor of a domestic animal that he knows or has reason to know has dangerous propensities abnormal to its class, is subject to liability for harm done by the animal to another, although he has exercised the utmost care to prevent it from doing the harm.(2) This liability is limited to harm that results from the abnormally dangerous propensity of which the possessor knows or has reason to know. Intrusion By Livestock Or Other Animals RTT:LPH§21An owner or possessor of livestock or other animals, except for dogs and cats, that intrude upon the land of another is subject to strict liability for physical harm caused by the intrusion. 

TRADITIONAL STRICT LIABILITY: ANIMALS, CONT’D

Wild Animals RTT:LPH§22 (a) An owner or possessor of a wild animal is subject to strict liability for physical harm caused by the wild animal.(b) A wild animal is an animal that belongs to a category of animals that have not been generally domesticated and that are likely, unless restrained, to cause personal injury. Abnormally Dangerous Animals RTT:LPH§23An owner or possessor of an animal that the owner or possessor knows or has reason to know has dangerous tendencies abnormal for the animal's category is subject to strict liability for physical harm caused by the animal if the harm ensues from that dangerous tendency.

Gehrts v. Batteen (secured St. Bernard puppy bites girl)If animals are dangerous by nature (species by species determination) even if there is no prior knowledge that a particular animal is dangerous, strict liability is the rule. If an owner knows or has reason to know that a particular animal is dangerous even if as a species it is not dangerous by nature, there is also strict liability: would not necessarily know of dangerous propensities because of biting but by growling, snapping, etc. If an animal is not dangerous by nature, or not known to be dangerous the owner can still be liable but that liability is based on negligence, as long as there is reasonable care there is no liability.

ULTRAHAZARDOUS OR ABNORMALLY DANGEROUS ACTIVITIES

Strict Liability: Abnormally Dangerous Things and Activities P&K§78 The def is liable when he damages another by a thing or activity unduly dangerous and inappropriate to the place where it is maintained, in the light of the character of that place and its surroundings.  Trespass to Land P&K§13 Trespass and Private Nuisance Distinguished

Any intentional use of another's real property, without authorization and without a privilege by law to do so, is actionable as a trespass without regard to harm, the utility of the def's conduct, and the reasonableness of the def's. conduct.

An intentional and nontrespassory interference with the use and enjoyment of another's real property is actionable as a private nuisance only if the interference proves to be substantial and unreasonable.

 Abnormally Dangerous Activities: General Principle RST§519 (1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous. Abnormally Dangerous Activities RST§520. In determining whether an activity is abnormally dangerous, the following factors are to be considered:

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;(b) likelihood that the harm that results from it will be great;(c) inability to eliminate the risk by the exercise of reasonable care;(d) extent to which the activity is not a matter of common usage;(e) inappropriateness of the activity to the place where it is carried on; and(f) extent to which its value to the community is outweighed by its dangerous attributes.

 

ULTRAHAZARDOUS OR ABNORMALLY DANGEROUS ACTIVITIES, CONT’D

Ground Damage From Aircraft RST§520A If physical harm to land or to persons or chattels on the ground is caused by the ascent, descent or flight of aircraft, or by the dropping or falling of an object from the aircraft,

(a) the operator of the aircraft is subject to liability for the harm, even though he has exercised the utmost care to prevent it, and(b) the owner of the aircraft is subject to similar liability if he has authorized or permitted the operation.

 Contributing Actions Of Third Persons, Animals And Forces Of Nature RST§522 One carrying on an abnormally dangerous activity is subject to strict liability for the resulting harm although it is caused by the unexpectable

(a) innocent, negligent or reckless conduct of a third person, or(b) action of an animal, or(c) operation of a force of nature.

 Assumption Of Risk RST§523 The plaintiff's assumption of the risk of harm from an abnormally dangerous activity bars his recovery for the harm. Contributory Negligence RST§524 (1) Except as stated in Subsection (2), the contributory negligence of the plaintiff is not a defense to the strict liability of one who carries on an abnormally dangerous activity.(2) The plaintiff's contributory negligence in knowingly and unreasonably subjecting himself to the risk of harm from the activity is a defense to the strict liability. Plaintiff's Abnormally Sensitive Activity RST§524A There is no strict liability for harm caused by an abnormally dangerous activity if the harm would not have resulted but for the abnormally sensitive character of the plaintiff's activity. Abnormally Dangerous Activities RTT:LPH§20 (a) An actor who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity.(b) An activity is abnormally dangerous if:

(1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and(2) the activity is not one of common usage.

Spano v. Perini Corp. (explosion wrecked a garage)Overturned rule of Booth which held that proof of negligence was required unless there was actual physical invasion of property, but in blasting cases defined as an ultrahazardous activity, the one who engages in blasting must assume responsibility and be liable without negligence for any injury he causes to neighboring property.

NUISANCE: PRIVATE NUISANCE

 RST§ 821D. Private NuisanceA private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land.

P&K§87: Nuisance: Private Nuisance Private nuisance is interference with the use and enjoyment of land. Examples of private nuisance: blasting/vibration, flooding, pollution of a stream, unpleasant odors, smoke,

dust, gas, loud noises, excessive light, fear of contagion from a tuberculosis hospital, etc. Distinction from trespass: trespass is an invasion of the plaintiff's interest in the exclusive possession of his

land, while nuisance is an interference with his use and enjoyment of it. Private nuisance committed only if:

o 1) def acted with intent of interfering with use and enjoyment of land, o 2) there was an interference, o 3) damage of substantial degree, and o 4) it was an unreasonable interference (not necessarily unreasonable conduct).

 Nuisance: Substantial and Unreasonable Interference P&K§88

Interference must be substantial and unreasonable (offensive, seriously annoying, or intolerable) according to normal persons living in the community. Mere annoyances won't do.

D is usually liable when the pl suffers an economic loss from the harm to land. The interference can be unreasonable even when the def's conduct is reasonable. It simply means that the

def must pay for the harm that was knowingly inflicted on the plaintiff. For example, the operator of a coal plant must compensate the pl for harm as a cost of doing the business.

 Nuisance: Remedies P&K§89

Three remedies for nuisance: o damages o equitable relief by injunction (can be granted even before damage occurs)o abatement by self-help (allows entry upon the land of another and use of all reasonable force to

terminate the nuisance, even by destroying valuable property) Nuisance: Interference with Use and Enjoyment of Private Property--Negligence and Strict Liability P&K§91

Four types of losses involved in the use and enjoyment of lando physical harm to lando physical harm to occupiers of lando mental annoyance and physical discomfort, and o economic loss.

 Who Can Recover For Private Nuisance RST§ 821E For a private nuisance there is liability only to those who have property rights and privileges in respect to the use and enjoyment of the land affected, including(a) possessors of the land,(b) owners of easements and profits in the land, and(c) owners of nonpossessory estates in the land that are detrimentally affected by interferences with its use and enjoyment. Significant Harm RST§ 821F There is liability for a nuisance only to those to whom it causes significant harm, of a kind that would be suffered by a normal person in the community or by property in normal condition and used for a normal purpose.

 NUISANCE: PRIVATE NUISANCE, CONT’D

General Rule RST§ 822 One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land, and the invasion is either(a) intentional and unreasonable, or(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities. Type Of Conduct Essential To Liability RST§824 The conduct necessary to make the actor liable for either a public or a private nuisance may consist of

(a) an act; or(b) a failure to act under circumstances in which the actor is under a duty to take positive action to prevent or abate the interference with the public interest or the invasion of the private interest.

 Intentional Invasion—What Constitutes RST§825 An invasion of another's interest in the use and enjoyment of land or an interference with the public right, is intentional if the actor

(a) acts for the purpose of causing it, or(b) knows that it is resulting or is substantially certain to result from his conduct.

 Unreasonableness Of Intentional Invasion RST§826 An intentional invasion of another's interest in the use and enjoyment of land is unreasonable if

(a) the gravity of the harm outweighs the utility of the actor's conduct, or(b) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible.

 Gravity Of Harm—Factors Involved RST§827 In determining the gravity of the harm from an intentional invasion of another's interest in the use and enjoyment of land, the following factors are important:

(a) The extent of the harm involved;(b) the character of the harm involved;(c) the social value that the law attaches to the type of use or enjoyment invaded;(d) the suitability of the particular use or enjoyment invaded to the character of the locality; and(e) the burden on the person harmed of avoiding the harm.

 Gravity vs. Utility—Conduct Malicious Or Indecent RST§829 An intentional invasion of another's interest in the use and enjoyment of land is unreasonable if the harm is significant and the actor's conduct is

(a) for the sole purpose of causing harm to the other; or(b) contrary to common standards of decency.

Boomer v. Atlantic Cement Co. (community wants injunction on cement plant operations)Traditionally, the rule was that where there is a nuisance and substantial damage, an injunction is granted, even if there is a disparity in economic consequences of injunction and nuisance. But if an injunction means holding one cement plant to a higher standard than the rest of the industry, and payment of permanent (current and future) damages to plaintiffs will "fully" compensate them, injunction is unwarranted.

NUISANCE: PUBLIC NUISANCE

Public Nuisance RST§ 821B (1) A public nuisance is an unreasonable interference with a right common to the general public.(2) Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:

(a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or(b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or(c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right.

 Who Can Recover For Public Nuisance RST§ 821C (1) In order to recover damages in an individual action for a public nuisance, one must have suffered harm of a kind different from that suffered by other members of the public exercising the right common to the general public that was the subject of interference.

Nuisance: Public Nuisance: Remedies Available to the State P&K§90 Public nuisance is an act or omission which obstructs or causes inconvenience or damage to the public in

the exercise of rights common to all people. Includes interference with the public health (a malarial pond), safety (storage of explosives), morals

(houses of prostitution), peace (loud noises), comfort (bad odors), convenience (obstructing a highway), etc.

The nuisance must affect an interest common to the general public, rather than one or several individuals, but it need not effect the entire community to be a public nuisance.

 Anon. (blocked highway that plaintiff used frequently)If one man has a private action, then every man has a private action and the defendant would be punished hundreds of times over. But if one person has a substantial harm above and beyond that of the other people, he should be allowed to bring an action for his personal damages where all the other people who were not more harmed more than each other should not.

532 Madison Ave v. Finlandia (building collapse affected commerce in area)Public nuisance is conduct that amounts to a substantial interference with the exercise of a common right of the public thereby offending public morals, interfering with the use of a public place or endangering public health or safety. There is only a private right to action when there is a public nuisance when it is shown that plaintiff suffered a special injury beyond that suffered by the community at large.

DAMAGES: PAIN AND SUFFERING

DAMAGESTypes of Damages

(1) Non-pecuniary: physical and emotional consequences of injury (pain and suffering, loss of enjoyment)(2) Pecuniary: economic consequences of injury (medical expenses, lost earnings, custodial care costs)

Components:Pain and sufferingExpensesLost earnings

McDougald v. Garber (damages for comatose patient)“Some level of awareness” is standard for non-pecuniary damages. If the goal is compensation of victim not punishment of wrongdoer, money damages for pain and suffering and loss of enjoyment cannot go beyond "actual" compensation for injury. When there is no awareness of loss of enjoyment, there can be no compensation for that loss. Separation of damages for loss of enjoyment and pain and suffering is impractical in calculating damages.

RECOVERABLE ELEMENTS OF DAMAGES: ECONOMIC LOSSES

O’Shea v. Riverway Towing (lost wages computation for towboat cook negligently injured)Computation must take into account the current wages, income taxes, annual expected percentage of increase in wages, expected years of work remaining, and the discount to present value, as well as any "mitigation" (potential alternative employment). The computation must take inflation into account at both ends or at neither end.

CONTINGENCY FEES

Pl's atty takes compensation only out of the funds the pl recovers. Pros:

o enables pl to pursue meritorious claims even w/o funds. o feared abuses won't occur since lawyers can choose cases w/ greatest chance of success. o can give incentive against bringing frivolous lawsuits.

Cons: o stirs up needless litigationo allow a lawyer to collect enormous payments when settling easy cases

FEE SHIFTING

--Atty's fees are rarely awarded - only when one side advanced a claim/defense that was frivolous or malicious.

SALES OF TORT CLAIMS

Today tort law forbids outright total sale of claims but partial sales (contingent fees) are allowed.   Pros

o Victims would be able to receive immediate and certain compensation. o Compensation would be less dependent on the tort victim's ability to withstand delay and

uncertainty. Cons

o If he sold his claim, he'd have no incentive to appear sympathetic and deserving before a jury. But to counter this, there could be a "cooperation clause." Or pay in installments.

WRONGFUL DEATH Each state statute sets its own measure of damages for wrongful death actions. Early on, states severely

limited recovery out of fear of jury's sympathy. Today, no state has a dollar cap though a few cases have special limitations.

Irony: it is cheaper for the def to kill the victim than maim her for life.

LOSS OF CONSORTIUM

Loss of consortium occurs when the person does not die but is injured such that he no longer functions as he used to.

Today, American courts allow wives and husbands to sue for loss of consortium. Debate now centers around suits by children whose parents have been injured/killed.

Generally, unmarried couples are not granted action for loss of consortium unless they have a common-law marriage.

PUNITIVE DAMAGES

Measure of punitive damagesReprehensibility of misconduct (retribution)Defendant’s wealth Profitability of misconduct (not only to plaintiff, but to all those not before the court)Litigation costs (fully and truly compensated)Aggregate of all criminal/civil sanctions against def (worry of overkill)Ratio between potential for harm created by conduct (maliciousness/blameworthiness) and actual damages to plaintiff (punitive damages v. actual damages)

Kemezy v. Peters (punitive damages in a 1983 suit)The plaintiff has the right to bring in evidence of defendant’s wealth, but to make that presentation mandatory for plaintiffs would be very detrimental to defendants. However, usually such evidence is not presented until liability is determined.

PRODUCTS LIABILITY RULES(1) when there is a defect in the production of a product, the rule is strict liability(2) when there is a design defect (all of products are defective b/c improperly designed), the rule is negligence (unreasonably designed)(3) when there is a warning defect (consumer is not properly warned about dangers of product), the rule is negligence