Torts Outline - Intentional Torts & Negligence

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    Elizabeth C. KretzsingerTorts Section 3Fall 2011

    I. Chapter 1 Development of Liability Based Upon Fault

    Introduction Tort comes from the Latin word tortus, which means twisted, and the French

    word tort which means injury or wrong. A tort is a civil wrong, other than abreach of contract, for which the law provides a remedy. This area of lawimposes duties on persons to act in a manner that will not injure otherpersons. A person who breaches a tort duty has committed a tort and may beliable to pay damages in a lawsuit brought by a person injured because ofthat tort.

    Tort has been principally a part of the common law. Modern Tort Law Beyond the Casebooks Into the Field of Public Debate Major Purposes of Tort Law:

    o 1. To provide a peaceful means for adjusting the rights of parties whomight otherwise take the law into their own hands

    o 2. To deter wrongful conducto 3. To encourage socially responsible behavioro 4. To restore injured parties to their original condition, insofar as the

    law can do this, by compensating them for their injuryo 5. To vindicate individual rights of redress

    Historical Originso There is one theory that it originated with liability based upon actual

    intent and actual personal culpability, with a strong moral tinge, andslowly formulated external standards that took less account of

    personal fault.o A more generally accepted theory is that the law began by imposing

    liability on those who caused physical harm, and gradually developedtoward the acceptance of moral standards as the basis of liability.

    o An alternative theory is that there has been no steady progressionfrom liability without fault to liability based on fault.

    o Forms of Action Two common law writs are the genesis of tort law the writ of

    trespass and the writ of trespass on the case, often calledaction on the case.

    It was through action on the case, rather than through trespass,that most of modern tort and contract law developed.

    Trespass, because of its quasi-criminal character, required noproof of any actual damage, since the invasion of the plaintiffs

    rights by the case, which developed purely as civil remedy,there could ordinarily be no liability unless actual damage wasproved.

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    II. Chapter 2 Intentional Interference with Person or Property

    Voluntary Act- an external manifestation of an actors will.

    All intentional torts require a voluntary act!Intent- the actor activelydesires to cause the consequences of his acts, or theybelieve that the consequences are substantially certain to follow their act.

    1. Elementso a. Actively desire the consequences of the acto b. Knowing the consequences of their actions are substantially certain

    to result.

    2. Noteso a. These no do not negate intent:

    Good faith Mistake of fact (you have the wrong idea about something) Insanity

    o b. Doctrine of Transferred Intent: 1. The idea that when an intentional tort is committed, as long

    as the defendant held the necessary intent with respect to oneperson, he will be held to have committed an intentional tortagainst any other person who happens to be injured. All tortscan have transferred intent.

    2. Intent can transfer from person to person and from tort totort.

    o c. If an insane person can form intent, they can be liable and if aninsane person has the means for remedy it should be passed to thembecause it is unjust for the innocent person to suffer that burden.

    Battery - Intentional infliction of a harmful or offensive contact with a person or anextension of that person or anything practically identified with it.

    1. Elemento a. Intento b. Person/extension of persono c. Harmful or offensive contact

    2. Noteso a. Victim does not have to be awareo b. Look at act not consequenceso c. Physical harm is not required; damage to personal dignity is

    sufficiento d. Does not have to be done in anger, can be a joke; anger is not a

    prerequisite.o e.Aggressor Doctrine - one who starts an altercation cannot recover

    unless there is excessive force. If excessive force is used to retaliate,then defendant would no longer have a justification for self defense.

    o f. Words combined with an act can show intent.

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    Assault- Intentional placing of another in reasonable apprehension of receiving animminent battery.

    1. Elementso a. Intento b. Reasonable apprehension of a batteryo c. No significant delay (imminent, immediate)o d. Must be aware, conscious

    2. Noteso a. Intent:

    1. Active desire for apprehension of harmful contactor 2. Knowing with substantial certainty that apprehension of

    harmful contact will followo b. Victim mustbe aware or be harmedo c. Has to be immediate, not in the futureo d. Words alone are not enough, must be accompanied by overt acto e. Words may undo acto f. A Threat to a third party is not an actual assaulto g. Only need apparent present ability, not actual present ability

    3. Weaknesso a. Not immediate/imminent

    False Imprisonment- Total and intentional restraint or detention of the physicalliberty of another through boundaries without legal justification. (Boundaries can bemental or physical).

    1. Elementso a. Total restraint or detentiono b. Intento c. Awareness or harm

    1. Awareness conscious of the occurrence at the time youcan be blackout

    o d. Unlawful 1. Not privileged like a police officer 2. Do not have the persons consent

    2. Noteso a. Threats of future action are not enough!o b. Look at alternative means of escape:

    1. Barriers can be mental or physical ex. Threats to make you stay in a city.

    2. Risk associated with escape 3. Knowledge that the alternative means of escape existed.

    o c. Lawful (privileged) if: crime has been committed, they have a searchwarrant, they had authority to arrest, etc.

    o d. Officer has to have probable cause for arrest to be made or theymust get a search warrant.

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    o e. Moral persuasion does not constitute false imprisonment. Ex. staying to exonerate yourself

    o f. Intent: 1. Actively desire to confine 2. Know with substantial certainty the act will cause

    confinement

    Intentional Infliction of Mental Distress - One who by extreme and outrageousconduct intentionally or recklessly causes severe emotional distress to another.

    1. Elementso a. Intent/reckless

    1. Intent: actively desire or know with substantial certainty 2. Reckless: knowledge with substantial certainty that there is

    a high probability or likelihood that the results will occuro b. Affirmative act: conduct must be extreme and outrageouso c. Causation: causal connectiono d. Emotional distress must be severe (more than what a reasonableperson would be expected to endure)

    Factors: intensity, duration, 2. Notes

    o a. Extreme Outrageous Conduct: goes beyond all bounds of decency,and is to be regarded as atrocious, and utterly intolerable in a civilizedcommunity.

    1. However, liability does not extend to mere insults,indignities, threats, annoyances, petty oppression, or othertrivialities.

    2. Main Points: a. Actual apparent power to affect a persons interest

    o Ex. if cop says he is taking you to jail; notextreme or outrageous by virtue of his authority.

    b. Knowledge ofpersons susceptibility to emotionaldistress

    o Ex. Nickerson: crazy lady searching for pot ofgold

    c. Privileged conduct in a permissible wayo Ex. a landlord

    o b. Must be a causal connection between wrongful conduct and theemotional distress.

    o c. Emotional distress must be severe: seeks professional help,becomes ill, nervousness, shameful, humiliated, paranoid, fearful,anxious, nauseous, worried, cant sleep or eat, etc.

    o d. Factors: 1. Look at duration and intensity 2. Reaction must be justifiable and reasonable 3. Know of susceptibility

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    4. For people not related, there must be physical harm, ifimmediate family physical harm is not necessary.

    5. Defendant must be aware of third parties presence.Trespass to Land intentional invasion or intrusion into a legally protected

    immovable interest of another. 1. Elements

    o a. Intent to entero b. Invasion/intrusion into a legally protected immovable interest

    1. Can be on property, above property, below property, andupon property.

    o c. Unauthorized a thing (tangible, intangible) a third person the failure to remove something OR to continue presence once consent has been terminated.

    2. Noteso a. Nuisance - interference with enjoyment and use of property; to sue

    for a nuisance there must be actual damageso b. Air travel is a trespass only if it enters into immediate reaches of the

    air space next to the land and interferes substantially with the use andenjoyment of the land.

    o c. Without consent - can be limited in time, space and purposeo d. Do not need damageso e. Consider if it helps society at largeo f. Continuing trespasso g. Multiple trespasseso h. There must be a legal interest in the land to recover

    Ex. Landlord, renterTrespass to Chattel - Intentional invasion consisting of intermeddling,dispossessing or using of the movable property of another

    1. Elementso a. Invasion, which is prohibited (intermeddling, dispossessing, using)o b. Intent actively desire to intermeddle, disposes, or use the

    movable, OR be substantially certain to intermeddle, disposes, or usethe movable.

    o c. Movable propertyo d. Possession belonging to anothero e. Damages

    a. Impaired in its condition, quality, or value b. Dispossess the other of the chattel c. Deprived of use for substantial amount of time d. Bodily harm to possessor or something that possessor has a

    legally protected interest in (person or thing)

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    2. Noteso a. One can use reasonable force to someone who is trespassing to

    chattel, but cannot recover for it.o b. Property can be tangible/intangible (computer signal)o c. Intermeddle intentional physical contact with the chattelo d. Dispossession is permanent (which would then probably make it aconversion)

    Conversion intentional exercise of dominion or control over a chattel, which soseriously interferes with the right of another to control it and therefore can recoverthe full value of the chattel.

    1. Elementso a. Intent actively desire to intermeddle, disposes or use the movable,

    or be substantially certain that their actions will intermeddle,disposes, or use the movable.

    o b. Complete or substantial dominion or deprivation of rights of thechattel.

    o c. Seriously interferes with the right of another.o d. Conversion of property to be your own: theft, removal of chattel

    from one place to another, transfer of possession without authority,withholding possession, destroying or altering the chattel, improperuse of chattel, asserting ownership over chattel, etc.

    2. Noteso a. For damages ask for full amount of chattelo b. More severe than trespass to chattelo c. Can occur in 2 ways:

    1. If the chattel itself is physically harmed OR 2. If you value what might be contained in the chattel

    o d. Difference is degree: Totally Deprived: Conversion (totaling a car) Partially Deprived: Chattel (wrecking a car)

    3. Defenseo a. Good faith took chattel in good faith

    III. Chapter 3 Privileges

    Consent- Implied or expressed consent to intentional interference with person orproperty.

    1. Requirements to consent:o a. Informed consent: have to know and understand what you are

    consenting to.o b. Have to have capacity (sound mind and cannot be

    underage/infancy).o c. Consent is vitiated under fraud or duress

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    2. Objective Manifestation - if it reasonably seemed to one in Ds position thatP consented, consent exist regardless of Ps subjective state of mind.

    3. Implied consent look at the circumstances because this is based oncircumstances.

    4. Exceeding scope - even if P does consent, D will not be privileged if he goesbeyond the scope of that consent.

    o Exceptions are: unconsciousness, incapacitated, intoxicated, mentalillness, infancy, emergency situations.

    o Exceeding scope constitutes a battery. 5. Medical care providers may act in the absence of express consent if:

    o 1. The patient is unable to give consent unconscious intoxicated mentally ill incompetent

    o 2. There is a risk of serious bodily harm if treatment is delayedo 3. A reasonable person would consent to treatment under the

    circumstances; ando 4. The physician has no reason to believe this patient would refuse

    treatment under the circumstances.

    Self Defense - Anyone is privileged to use reasonable force (force that is orreasonable appears to be necessary) to defend himself against a threatened battery.

    1. Aggressor Doctrine - LA's aggressor doctrine precludes tort recoverywhere the plaintiff acts in such a way to provoke a reasonable person to usephysical force in fear or anticipation of further injury at the hand of theaggressor plaintiff, unless the person retaliating has used excessive force to

    repel the aggression. 2. Appropriate times to use deadly force (factors):

    o Generally, one is not justified in using a dangerous weapon in selfdefense if the attacking party is not armed but only commits batterywith his fists or in some manner not inherently dangerous to life.

    o a. When the fear of danger of the person attacked is genuine andfounded on facts likely to produce similar emotions in reasonablemen.

    o b. Reasonable man to believe that the employment of a dangerousweapon is necessary, and that he actually so believes.

    o c. All facts and circumstances must be taken into account to determinethe reasonableness of the actors belief, but detached reflections or apause for consideration cannot be demanded under circumstanceswhich their nature requires split second decisions.

    o d. Various factors considered to determine reasonableness of theactions of the party being attacked are:

    1. Character and reputation of the attacker 2. Belligerence of the attacker

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    3. Large difference in size and strength of the parties 4. An overt act by the attacker 5. Threats of bodily harm 6. Impossibility of a peaceful retreat

    3. Consider in analysis if the other party had the ability or duty to retreat. 4. Comparative fault two parties are at fault so damages are proportionedappropriately.

    o a. Pure comparative fault P 95% negligent, so they can recover 5%o b. Modified comparative fault you have to be < 50% at fault if youre

    the P 5. Contributory negligence if you contributed to the injuries you are banned

    from recovery

    6. La. Civ. Code art. 2323o a. Neg & neg you get a reduction based on Ps own faulto b. Sets out comparative fault regimeo c. Neg. vs. intentional tortfeasor no reduction in recovery (for the P)

    1. Retaliation - The privilege is one of defense against threatened battery, and notone of retaliation. When the battery is no longer threatened, the privilegeterminates; and thereafter the original victim himself becomes liable for battery

    2. Reasonable Belief- The privilege exists when the defendant reasonably believesthat force is necessary to protect himself against battery, even though there is infact no necessary. This is an instance in which a reasonable mistake on the part ofthe actor will protect him

    3. Provocation - If the abusive words are accompanied by an actual threat of

    physical violence reasonably warranting on apprehension of imminent bodily harm,one may be privileged to defend. Words do not constitute a battery.

    4. Amount of Force - the privilege is limited to the use of force that is or reasonablyappears to be necessary for protection against a threatened battery. To justifyresistance with a deadly weapon, defendant must have a reasonable apprehensionof loss of life or great bodily injury.

    5. Retreat- The defendant may stand his ground and use deadly force, and even killhis assailant. The victim may use deadly force if there is the slightest doubt, ifreasonable, that the retreat can be safely made, and in determining whether hisdoubt is reasonable every allowance must be made for the predicament in which hisassailant has place him in.

    6. Injury to third party - So far as transferred intent is concerned the privilege ofself-defense is carried over, and the defendant is held not to be liable to the thirdparty in the absence of some negligence toward him. Affirmative defenses arepleaded and proved by the defendant.

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    Defense of Third Persons & Property - a person can use reasonable force todefend property (land or chattel).

    1. A possessor of land does not have the privilege to use force intended orlikely to cause death or serious harm against another whom the possessor

    see about to enter his premises or meddle with his chattel, unless theintrusion threatens death or serious bodily harm to the occupiers or users ofthe premises.

    2. If someone takes your property you are allowed to use reasonable force toregain your chattel.

    3. The privilege to defend ones land against an intruder is limited tounlawful intrusions. Thus, there is no privilege to use force to defend againstthose who are authorized to enter.

    4. As in the case of self-defense, the privilege to defend property is limited tothe use of force reasonably necessary to the situation as it appears to thedefendant.

    5. When the invader threatens the personal safety of the defendant of hisfamily, the defendant may use deadly force if it is necessary in thecircumstances.

    6. There is also a privilege to use reasonable force to prevent the commissionof a crime.

    o Must warn firsto D is protected by reasonable mistake regarding whether force is

    necessaryo Deadly force reasonable only if reasonably believes that death or

    serious harm will occur

    Defenses of Others - a person may use reasonable force to defend another personagainst attack.

    Reasonable Mistake -o The intervener steps into the shoes of the person he is defending, and

    is privileged only when that person would be privileged himself. If itturns out that he has intervened to help the aggressor, he is liable.

    o D is privileged to use reasonable force to defend another even whenhe is mistaken in his belief that intervention was necessary so long ashis mistake was reasonable

    Recovery of Property deadly force cannot be used to protect or recoverproperty because lifes value out ways the value of the property.

    o A person may use reasonable force to recover property which isfraudulently obtained from him.

    o A merchant who reasonably believes an individual has stolenproperty from his store may detain the individual for a reasonableinvestigation of the facts: SHOPKEEPERS PRIVILEGE = Must havereasonable belief and conduct a reasonable investigation. May notleave premises.

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    Necessity Public Necessity - The individual rights of property give way to the higher

    laws of impending and apparent necessity. An individual who destroysanothers property in good faith and under apparent necessity of preventing

    further harm, is not personally liable in an action by the owner of the

    property destroyed. Private Necessity One who damages the property of another as a result of

    private necessity (defending himself or third party) is liable for damages tothat property.

    o Liable because they made decision to protect own property at risk ofanothers property being damaged.

    o It does not help the public at large and the one who caused damagereceived a benefit.

    Authority of Law o An example is arrest. Seizure of one person which must be reasonable

    and with probable cause or a warrant that is fair on its face. Otherwise

    it is false arrest. Discipline There are relations where the necessity of some orderly

    discipline gives persons who have the control of other the privilege ofexercising reasonable force and restraint upon them

    o Examples are parent/child, or teacher/student as long as its notexcessive.

    Justification A reasonable detention imposed to prevent another frominflicting personal injuries or property damage is lawful.

    II. NEGLIGENCE

    14. NEGLIGENCE Negligence Elements

    o A duty to use reasonable careo A breach of that dutyo Causation

    Cause in fact AND Proximate cause

    o Actual loss or damage resulting to the interest of another Conduct, which is reasonable and has low probability of resulting in harm to

    others is not negligent.

    Negligence is the omission to do something which a reasonable man, guidedupon those considerations, which ordinarily regulates the conduct of humanaffairs, would do or doing something which a prudent and reasonable manwould not do.

    15. STANDARD OF CARE (REASONABLY PRUDENT PERSON)

    Vaughan v.

    Standard of care: this is the objective reasonable person standard todetermine if there has been gross negligence.

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    o Must use this objective testbecause with a subjective test there areno benchmarks.

    o A person is to proceed with such reasonable caution as a prudent manwould have exercised under such circumstances.

    o We ought rather to adhere to the rule which requires in all cases aregard to caution such as a man of ordinary prudence would observe.

    Delair v.

    NUANCE: It is commonly held that the reasonable person will not forgetwhat is actually known, and that forgetfulness does not excuse negligence.But when distracted attention, lapse of time or other similar factors make itreasonable to forget, it can be found that there is no negligence.

    Trimarco v.

    formulating the general expectation of society as to how individuals will actin the course of their undertakings, and thus to guide the common cense ofexpert intuition of a jury of commission when called upon to judge orparticular conduct under particular circumstances.

    what is usually done may be evidence of what ought to be done, but whatout to be done is fixed by a standard of reasonable prudence, whether itusually is compiled with or not

    Courts must in the end say what is required; there are some precautions soimperative that even their universal disregard will not excuse their omission.

    Even though something may be customarily done it must still be reasonable the jury must be satisfied with the reasonableness of the practice. (Stillusing reasonable prudent person).

    Cordas v.

    NEGLIGENCE: the failure to exercise that care and caution which areasonable and prudent person ordinarily would exercise under likeconditions or circumstances.

    The circumstances provide the foil by which the act is brought into relief todetermine whether it is or is not negligent. (Circumstances help determinethe negligence).

    NUANCE: to qualify as a sudden emergency, the event must be unforeseen,sudden, and unexpected. AKA the duty of care is measured differently inextenuating circumstances.

    o SUDDEN EMERGENCY DOCTERINE is merely an expression of thereasonably prudent person standard of care. It expresses the notionthat the law requires no more from an actor than is reasonable to

    expect in the event of an emergency.- ***HAS been on the final before

    Roberts v.

    In terms of a disabled person their SOC is to operate in the same reasonableand prudent way that another disabled person would act.

    The SOC applicable to handicapped people is that they must take thoseprecautions that ordinary, reasonable persons would if they were similarlyhandicapped.

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    Robinson v. It would be a monstrous doctrine to hold that a child of inexperience and

    experience can come only with years should be held to the same degree ofcare in avoiding danger as a person of mature years and accumulatedexperience.

    The care or caution required is according to the capacity of the child, andthis is to be determined, ordinarily, by the age of the child. A child is held onlyto the exercise of such degree of care and discretion as is reasonably to beexpected from children of his age.

    The standard used by a majority of jurisdictions usually is stated to be whatis reasonable to expect of children of like age, intelligence and experience.

    o This means that more may be required of a child of superiorintelligence.

    o After the judge has determined which standard, the jury applies it tothe particular set of facts.

    In this case the child was engaged in an inherently dangerous activity so hewill be held to the SOC of an adult.

    POICY ISSUE: as deterrence; there would be the same amount of damagedone if an adult had committed the act.

    Breunig v.

    Not all types of insanity vitiate responsibility for a negligence tort. The effect of the mental illness or mental hallucination must be such as to

    affect the persons ability to understand and appreciate the duty which restsupon such understanding and appreciate the duty which rests upon him todrive his car with ordinary care, or if the insanity does not affect suchunderstanding and appreciation, it must affect his ability to control his car inan ordinarily prudent manner. And in addition, there must be an absence ofnotice or forewarning to the person that he may be suddenly subject to sucha type of insanity or mental illness.

    POLICY BASIS: of holding a permanently insane person liable for his tort is:o (1) Where one of two innocent persons must suffer a loss it should be

    borne by the one who occasioned it:o (2) to induce those interested in the estate of the insane person (if he

    has one) to restrain and control him; ando (3) the fear an insanity defense would lead to false claims of insanity

    to avoid liability.

    This is the only exception for insanity in tort law.

    16. THE PROFESSIONAL

    Heath v. The specialist within a profession may be held to a standard of care greater

    than that required for the general practioner.o Nevertheless, the professional standard remains an objective

    standard.

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    Basic principle: the reasonable prudent person takes on the profession of theactor and an objective standard is applied.

    o The standard is expressed in objective form the knowledge, training,and skill of an ordinary member of the profession in good standing.

    Hodges v.

    A professional (in this case an attorney) who acts in good faith and in anhonest beliefthat his advice and acts are well founded and in the bestinterest of his client is not answerable for a mere error of judgment or for amistake in a point of law which has not been settled by the court of lastresort in his State and on which reasonable doubt may be entertained bywell-informed lawyers.

    Conversely, he is answerable in damages for any loss to his client whichproximately results from a want of that degree of knowledge and skillordinarily possessed by others of his profession similarly situated, or fromthe omission to use reasonable care and diligence, or from the failure toexercise in good faith his best judgment in attending to the litigation

    committed to his care. Three areas where an attorneys conduct may be questioned:

    o 1. Possession of knowledge or skill.o 2. Exercise of best judgmento 3. Use of due care

    Boyce v. Proof that a professional violated the standard of care usually must be

    established by expert testimony, unless the negligence is so obvious that it iswithin the common knowledge and experience of lay jurors.

    Morrison v.

    In medical malpractice a term referring to ordinary negligence concepts in thearea of medical diagnosis, treatment, and the like, the duty of care isgenerally formulated as that degree of reasonable care and skill expected ofmembers of the medical profession under the same or similar circumstances.

    17. RULES OF LAW AND VIOLATION OF STATUTE

    RULES OF LAWPolora v.

    Standards of prudent conduct are declared at times by courts, but they aretaken over from the facts of life.

    o The courts are coming up with what SOC of duty they thought wasowed.VIOLATION OF STATUTE

    Osborne v.

    Where a statute or municipal ordinance imposes upon any person a specificduty for the protection or benefit of others, if he neglects to perform thatduty he is liable to those for whose protection or benefit it was imposed forany injuries of the character which the statute or ordinance was designed toprevent, and which were proximately produced by such negligence.

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    There is a two step process to determine if the statute is applicable tothe SOC.

    o 1. Must determine what type of harm the statute was designedto protect against?

    o 2. What class of people was the statute designed to protect? Ubi ius ibi remediumA. APPLICABILITY OF A STATUTE

    Stachniewicz v.o A violation of a statute or regulation constitutes negligence as a

    matter of law when the violation results in injury to a member ifthe class of persons intended to be protected by the legislation andwhen the harm is of the kind which the statue or regulation wasenacted to prevent. A party seeking to charge the other with violation of the statute

    is a member of the class the legislature intended to protect. Because state legislative history may be scanty and also

    difficult to obtain there may be wide latitude for a court todecide who is in the class or what was the hazard that the

    legislature had in mind.

    Ney v.o The injury must have a direct and proximate connection with the

    violation of the statute before liability will be held to exist. It is theexistence of this cause and effect relationship which makes thenegligence of the defendant actionable.

    o If at the time of the negligence, the criminal act might reasonablyhave been foreseen, the causal chain is not broken by theintervention of such act.

    o THIS CASE WAS HERE TO ILLUSTRATE how to determine whatkind of harm the statute was trying to prevent.

    B. EFFECT OF STATUTE Martin v.

    o When a statute applies to the facts, an unexcusedviolation isnegligence per se which must be declared by the court and not

    left to the jury.o Effect of statute once you find a statute applicable what affect

    does it have on the case. Zeni v.

    o What effect to give to the violation of a statute into three groups (A C):

    o A. Violation of statute as rebuttable presumption: The excuses may not necessarily be applicable in a criminal

    action, since, in the absence of legislatively-mandated civilpenalties, acceptance of the criminal statute itself as a standardof care in a civil action is purely discretionary.

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    Liability without fault is not truly negligence, and in theabsence of a clear legislative mandate to so extend liability, thecourts should be hesitant to do so on their own.

    o B. Violation of statute as negligence per se:o C. Violation of statute as evidence of negligence:o D.Application of statutory standard to this case:o (1) An excused violation of a legislative enactment or an

    administrative regulation is not negligenceo (2) Unless the enactment or regulation is construed not to permit

    such excuse, its violation is excused when: (a) the violation is reasonable because ofthe actors incapacity; (b) he neither knows not should know of the occasion for

    compliance; (c) he is unable after reasonable diligence or care to comply; (d) he is confronted by an emergency not due to his own

    misconduct;

    (e) compliance would involve a greater risk of harm to theactor or to others.18. PROOF OF NEGLIGENCE: CIRCUMSTANTIAL EVIDENCE

    A. COURT & JURY: CIRCUMSTANTIAL EVIDENCE

    Goddard v.

    Evidence proves a fact and from that you might logically and reasonablyestablish that another fact exists.

    Anjou v.

    The object that caused the harm, based on its condition, shows that theemployee should have been on notice of its existence and cleaned it up.

    Joye v Here there was not sufficient evidence to show that the defendant could have

    been on notice of the dangerous condition.Jasko v.

    The basic notice requirement springs from the thought that a dangerouscondition, when it occurs, is somewhat out of the ordinary.

    In this case however, the operating methods of a proprietor are such thatdangerous conditions are continuous or easily foreseeable, the logical basisfor the notice requirement dissolves. Because the situation is dangerous andthey should know that already because they created it.

    Side notes on notice:1. If it just happened no notice.2. It happened a while back notice.3. Cant tell if it just happened or not &/or no one told you no notice.4. Accident is foreseeable? Then you were already on notice the circumstantial

    evidence does not have to be evaluated.

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    B. RES IPSA LOQUITUR

    Means thatthe thing speaks for itselfByrne v.

    This is an instance of res ipsa loquitur, here the mere fact of the accidenthaving occurred is evidence of negligence.

    Larson v. The court sets forth the test for applicability of the doctrine for a plaintiff to

    make out a case entitling him to the benefit of the doctrine he must prove:o (1) That there was an accidento (2) That the thing of instrumentality which caused the accident was at

    the time of and prior thereto under the exclusive control andmanagement of the defendant

    o (3) that the accident was such that in the ordinary course of events,the defendant using ordinary care, the accident would not havehappened

    The doctrine of res ipsa loquitur applies only where the cause of the injury isshown to be under the exclusive control and management of the defendantand can have no application.

    Plaintiff must fail, if the evidence does not show that the injury was the resultof the former cause, or leaves it as probable that it was caused by one of theother.

    There is a general agreement that the fact that an automobile leaves thetravelled portion of the highway and overturns, or crashes into a stationaryobject, is enough, in the absence of explanation, to make out a res ipsaloquitur case against the driver.

    In this case there was not a case for res ispa loquitur because there was noway the hotel could have had exclusive control of the furniture in each room.

    Ybarra v.

    20. CAUSATION IN FACT

    PROOF OF CAUSATION

    Reynolds v.

    Where the negligence of the defendant greatly multiplies the chances ofaccident to the plaintiff, and is of a character naturally leading to itsoccurrence, the mere possibility that it might have happened without thenegligence is not sufficient to break the chain of cause and effect between thenegligence and the injury.

    Kramer v. It is not enough that negligence of one person and injury to another coexisted,

    but the injury must have been caused by the negligence.

    Post hoc ergo propter hoc is not sound as evidence or argument. Nor is itsufficient for a plaintiff, seeking recovery for alleged negligence by anothertoward the plaintiff, to show a possibility that the injury complained of wascaused by negligence.

    Possibilities will not sustain a verdict. There must be a better foundation.

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    CONCURRENT CAUSES

    Hill v. Where separate acts of negligence combine to produce directly a single injury

    each tortfeasor is responsible for the entire result, even though his act alonemight not have caused it.

    o This was a concurrent cause because the plaintiff and the defendantcontributed to the accident.Summer v.

    It has been held that where a group of persons are on a hunting party, orotherwise engaged in the use of firearms, and two of them are negligent infiring in the direction of a third person who is injured thereby, both of thoseso firing are liable for the injury suffered by the third person, although thenegligence of only one of them could have caused the injury.

    They are both wrongdoers both negligent towards the plaintiff. The same reasons of policy and justice shift the burden to each of the

    defendants to absolve himself if he can - relieving the wronged person of the

    duty of apportioning the injury to a particular defendant, apply here wherewe are concerned with whether plaintiff is required to supply evidence forthe apportionment of damages.

    o They shift the burden to the defendants so they have to prove that itwas not them.

    Sindell v. This court held that:

    o (1) Summer v. did not apply because not all the defendants werebefore the court, and

    o (2) there was no concert of action among the defendants. The cost of an injury and the loss of time or health may be an overwhelming

    misfortune to the person injured, and a needless one, for the risk of injurycan be insured by the manufacturer and distributed among the public as acost of doing business.

    A defendant may be held liable for a somewhat different percentage of thedamages then its share of the appropriate market would justify.

    22. PROXIMATE OR LEGAL CAUSE: Limitation of Liability

    Atlantic v.

    proximate and naturalhave come into use as setting the limits beyondwhich the courts will not look in the attempt to trace the connection between

    a given cause and a given effect. reductio ad absurdum may be promptly established by calling to mind that, if

    the injured person had never been born, the injury would not have happened. Cause in fact: the case and effect relationship between the defendants

    tortious conductand the plaintiffs injury or loss.o Deals with the but for consequences of an act.

    The defendants conduct is a cause of the event if the eventwould not have occurred but for that conduct.

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    o Uses either the but for test (only one actor) or the substantial factortest (more than one actor).

    Proximate cause: concern a determination of whether legal liability shouldbe imposed where cause in fact has been established.

    o Proximate or legal cause is a policy decision made by the legislatureor the courts to deny liability for otherwise actionable conduct basedon consideration of logic, common sense, policy, precedent and our

    more less inadequately expressed ideas of what justice demands or ofwhat is administered possible and convenient.

    o Factors: Natural Foreseeable Ordinary and natural Remoteness

    Ryan v. General principle that every person is liable for the consequences of his own

    acts. He is thus liable in damages for the proximate results of his own acts,but not for remote damages.

    Policy language: to sustain such a claim as the present, and to follow the sameto its legitimate consequences, would subject to a liability against which noprudence could guard.

    Bartolone v. (used on a previous test) Egg shell rule: a defendant must take a plaintiff as he finds them and hence

    may be liable for aggravation of a pre-existing illness. Nor may defendants avail themselves of the argument that plaintiff should be

    denied recovery because his condition might have occurred even without theaccident.

    This doctrine applies only to the proximate cause issue, NOT to thedetermination of negligence or strict liability.

    In re Arbitration Between Polemis and Furness, Withy & Co., Ltd.

    Once the act is negligent, the fact that its exact operation was not foreseen isimmaterial.

    Consequences which follow in unbroken sequence, without an interveningefficient cause, from the original negligent act are natural and proximate.

    23. INTERVENING CAUSES AND RESCUERS:

    Derdiarian v.

    Where the acts of a third person intervenebetween the defendants conductand the plaintiffs injury, the casual connection is not automatically severed.In such a case the liability turns upon whether the intervening act is a normalor foreseeable consequence of the situation created by the defendantsnegligence. If the intervening act is extraordinary under the circumstances,not foreseeable in the normal course of events, or independent of or farremoved from the defendants conduct, it may well be a superseding act

    which breaks the casual nexus.

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    When a superseding event occurs the courts have decided that the courtsshould cut off liability.

    o A person is not responsible for extraordinarily negligent interveningacts of third persons.

    o A plaintiffs own conduct can constitute an intervening cause thatbreaks the casual connection between defendants negligence and theinjury. However, in order to be a superseding cause, a plaintiffsconduct must be more then contributory negligence that would berelevant in apportioning negligent conduct.

    Watson v.

    The mere fact that the concurrent cause or intervening act was unforeseenwill not relieve the defendant guilty of the primary negligence from liability,but if the intervening agency is something so unexpected or extraordinary asthat he could not or ought not to have anticipated it, he will not be liable, andcertainly he is not bound to anticipate the criminal acts of others by whichdamage is inflicted and hence is not liable therefore.

    It is probably impossible to state any comprehensive rule as to when adefendant will be liable for the intervening criminal act of a third person.

    Criminal conduct will break a casual chain unless the duty imposed is toprevent a criminal act.

    Unforeseeable, extraordinary, malicious, criminal conduct will break thecasual chain.

    Fuller v.

    A jury to sustain a finding of negligence must be presented with sufficientevidence to conclude that the person was injured by defendant's negligence.

    Precedent of long standing establishes that public policy permits negligenttort-feasors to be held liable for the suicide of persons who, as the result oftheir negligence, suffer mental disturbance destroying the will to survive.

    An act of suicide, as a matter of law, is not a superseding cause in negligencelaw precluding liability.

    In deciding in a wrongful death case whether an accident was the proximatecause for a suicide, the only authentic issue is whether the suicide was an"irresistible impulse" caused by the accident.

    An issue for a jury is whether a defendant's negligence substantiallycontributes to a plaintiff's death. A jury does not have to find that this is theonly cause. Often, there is not a sole cause for suicide.

    McCoy v.

    The rescue doctrine is invoked in tort cases for a variety of purposes in avariety of scenarios. The doctrine, as here asserted, allows an injured rescuerto sue the party which caused the danger requiring the rescue in the firstplace.

    To achieve rescuer status one must demonstrate: (1) the defendant wasnegligent to the person rescued and such negligence caused the peril orappearance of peril to the person rescued; (2) the peril or appearance of perilwas imminent; (3) a reasonably prudent person would have concluded such

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    peril or appearance of peril existed; and (4) the rescuer acted withreasonable care in effectuating the rescue.

    A rescuer must show the defendant proximately caused his injuries is inkeeping with general principles of liability.

    For the original defendant's wrongdoing to be the cause in fact of plaintiff'sinjuries, the original negligence of the defendant, which placed him in hispresent imperiled predicament, must be an active factor in the course ofevents which ultimately culminates in injury to the plaintiff.

    The defendant's actions are the cause in fact of plaintiff's injuries if thedefendant's wrongdoing produced the injuries complained of and anyintervening cause was reasonably foreseeable. If, on the other hand, theintervening cause was unforeseeable then it will break the causal connectionbetween the defendant's negligence and the plaintiff's injury and negate afinding of cause in fact.

    24. PUBLIC POLICY

    Kelly v. In most cases the justice of imposing a duty is so clear that the cause of action

    in negligence is assumed to exist simply on the basis of the actor's creation ofan unreasonable risk of foreseeable harm resulting in injury. However, moreis needed, more being the value judgment, based on an analysis of publicpolicy, that the actor owed the injured party a duty of reasonable care.Whether a duty exists is ultimately a question of fairness. The inquiryinvolves a weighing of the relationship of the parties, the nature of the risk,and the public interest in the proposed solution.

    Whatever the motive behind making alcohol available to those who willsubsequently drive, the provider has a duty to the public not to create

    foreseeable, unreasonable risks by this activity. A host who serves liquor to an adult social guest, knowing both that the guest

    is intoxicated and will thereafter be operating a motor vehicle, is liable forinjuries inflicted on a third party as a result of the negligent operation of amotor vehicle by the adult guest when such negligence is caused by theintoxication.

    Enright v.

    It is the court's duty to confine liability within manageable limits.25. CONTRIBUTORY NEGLIGENCE

    Butterfield v.

    This case developed the rule ofcontributory negligence.o As long as the defendant's act was not "reckless or wanton," recovery is

    completely barred, even in cases of extreme negligence, where the plaintiffdoes not exercise ordinary care for their own safety.

    Under contributory negligence, the plaintiff gets $0. Later on, this rule was modified so that the plaintiff could get some

    (although not 100%) recovery, even if they did not exercise ordinary

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    care.o Awarding percentages of damage based on comparative fault is known as

    comparative negligence.

    26. COMPARATIVE FAULT (Comparative Negligence)

    McIntyre v. There are two basic forms of comparative fault which are referred to as either

    "pure" or "modified." In the "pure" form, a plaintiff's damages are reduced inproportion to the percentage negligence attributed to him; for example, aplaintiff responsible for 90 percent of the negligence that caused his injuriesnevertheless may recover 10 percent of his damages. In the "modified" form,plaintiffs recover as in pure jurisdictions, but only if the plaintiff's negligenceeither (1) does not exceed ("50 percent" jurisdictions) or (2) is less than ("49percent" jurisdictions) the defendant's negligence.

    The Supreme Court of Tennessee rejects the pure form of comparative faultand adopts a system of modified comparative fault, the "49 percent rule." So

    long as a plaintiff's negligence remains less than the defendant's negligencethe plaintiff may recover; in such a case, the plaintiff's damages are to bereduced in proportion to the percentage of the total negligence attributableto the plaintiff.

    The adoption of the comparative negligence system in Tennessee makes thedoctrines of remote contributory negligence and last clear chance obsolete.In cases of multiple tortfeasors, plaintiff will be entitled to recover so long asplaintiff's fault is less than the combined fault of all tortfeasors. Also, thedoctrine of joint and several liability is rendered obsolete.

    27. ASSUMPTION OF RISK

    ImpliedRush v.

    Assumption of risk is not a defense in LA Implied assumption of the risk is applicable only when a plaintiff voluntarily

    encounters a known risk.

    Assumption of the risk requires actual knowledge of a particular risk,appreciation of its magnitude and voluntarily encountering the risk.