TORTS

I. WHAT IS TORT LAW?

A. Torts are wrongs recognized by law grounds for a lawsuit.

1. The is at fault b/c he intends harm or takes unreasonable risk of harm.

2. The ’s wrong must result in harm to another person or entity according to the law.

B. Tort claims can be broken down into:

1. The interests they protecti. Physical injury to person or propertyii. Dignitary & emotional harmiii. Economic harm

2. And the level of culpability they requirei. Serious wrongdoing (intent or malice)ii. Negligence (the lack of reasonable care)iii. Strict liability

3. Fault = to cause, legallyi. Fault is wrongful, inappropriate, blameworthyii. Fault can be purposely or negligently; deliberate or careless

4. Van Camp v. McAfoos: No liability w/o fault for a child engaging in childish activities.

C. Principles of Liability

1. Central principle of torts is the shifting of cost from π to

2. Two theoretical reasons:i. The person caused the injury (strict liability)ii. The person who caused the incident for a morally blameworthy reason (fault-based

liability)

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INTENTIONAL TORTS

I. INTENTIONAL TORTS – BATTERY

D. ELEMENTS:

1. Act by

2. Intent (actor desires to cause consequences of act or is substantially certain that the consequences will result from his action—purposeful or knowledge, RS) to cause:

i. Harmful contact orii. Offensive contact or iii. Imminent apprehension of such a contact (intend to assault)

a. Dual Intent: intent to contact π in order to harm or offend the π (White v. Muniz)

b. Single Intent: Intent to contact contact turns out to be harmful or offensive (Wagner v. State)

iv. Substantial certainty test: Intent can be shown by demonstrating the actor had “substantial certainty” that his action would result in contact.

v. Recklessness: “when a person’s conduct creates a known risk that can be reduced by relatively modest precautions” (Restatement (Third) Torts §2)

vi. Can be transferred from intended to unintended victim. (Stoshak)

3. Causing

4. Contacti. Directii. Indirect

a. Object connected w/ π’s body counts as person (i.e. cane)b. π’s Knowledge of contact not required (compare w/ assault) c. Foreign Substance: §18C if actor causes π to come into contract with a

foreign substance in a manner that will harm/offend that will be a battery

5. That is eitheri. Harmful orii. Offensive §19

a. Objective Test: If offends dignity of a reasonable person ori. Would offend ordinary person

ii. One not unduly sensitive b. Via prior knowledge, knows π will be offended by contact

i. If sensitive to offense unreasonably—must notify

6. Intent (to harm or to offend) +Touching + Consequence (physical harm (§13) or offensive contact (§18)) = Battery

i. had a particular intentii. a particular consequence resulted

E. Battery NOTES:

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1. Child Liability : May be liable for torts they commit as long as π can prove intent

2. Parental liability i. If liability is permitted by statute, or, if parent at faultii. Common law proscribes no guaranteed liability just being parentiii. Statutes usually require

a. Child’s tort must have been committed willfully or wantonlyb. Damages are limited

iv. Not easy to win on claim of parental negligent supervision

3. §16: Extended liability principle for an intentional tort: the conscious wrong-doer is liable for all damages caused, not merely those intended or foreseeable (unforeseeable damages apply)(intentional tort thin skull rule)

i. Sometimes there is a benefit to pleading a negligent tort: Statute of Limitations, ’s insurance coverage.

F. Battery Cases

1. Synder v. Turki. “I’m working in a hole here!”ii. Expands harm for battery to include offensive contacts.

2. Cohen v. Smithi. Offensiveness includes religious objections (Jehovah and blood transfers, religious

woman and no male touching) and it will be battery if it is made known that the action will be offensive

3. Mullins v. Parkview Hospitali. Intern performs procedure against the π’s wishesii. π no knowledge of the lack of consent & was under no obligation to inquire as such

in her position no intent.4. A.R.B. v. Elkin

i. Kids battered and sexually abused by Dad—judge only awards nominalii. Battery s are entitled to compensation “for bodily pain, humiliation, mental

anguish, & other injuries that occur as a necessary & natural consequence of the tortuous conduct.”

a. w/o having to prove, just what is fair and reasonable.5. Garratt v. Dailey

i. Child pulls chair out from aunt, “tries” to get it back under hera. The boy’s age was not a factor, except in judging his experience, capacity,

& understanding.ii. Substantial certainty test: Intent for battery can be proven by demonstrating the

actor had “substantial certainty” that his or her action would result in contact. iii. Recklessness: “when a person’s conduct creates a known risk that can be reduced

by relatively modest precautions” (Restatement (Third) Torts §2)6. White v. Muniz

i. Old woman hits caregiver in jaw during diaper changeii. One must appreciate the harmfulness of their contact in order to be liable for the

intentional tort of battery.a. Look into eyes of π, no special rule for elderly

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iii. Dual Intent: Intent to contact π in order to harm or offend the π (Col.)7. Wagner v. State

i. Crazy man, w/o intent to harm or offend, only contact hits womanii. Battery requires intent to contact only

a. Then determine if contact is harmful or offensive (regardless of the actor’s intent to do so).

iii. Single Intent: Intent to contact contact turns out to be harmful or offensive (Utah)

8. Stoshak v. East Baton Rogue Parrish SchoolI. Teacher hit during breakup of a fightii. Transfer of intent: intent of the π trying to hit original victim is transferred to .

9. Bask v. Scherzeri. Mother hit the face breaking up fight between two boysii. Restatement (Second) of Torts §16iii. The transfer of intent applies to these two trying to hit one another and

unintentionally hitting third party—even if they were not aware she was in the vicinity.

10. Polmiater v. Russi. When intends to harm the π, but does so b/c of insanity, ordinary rules of battery

apply. Insanity is not an excuse from tort liabilities. (RS agrees)ii. Public Policy Reasoning:

a. don’t want to encourage the immunity of insane people b. went to encourage families to confine. c. When two innocent people suffer a loss, it should fall on the one who

caused the loss.

II. ASSAULT ELEMENTS (§21)

A. ELEMENTS

1. Act by Δ i. Mere words are not sufficient.

2. Intending to cause: i. Imminent reasonable apprehension of such a bodily contact; orii. A harmful bodily contact; oriii. Offensive bodily contact.

3. π is put in reasonable apprehension of imminent batteryi. Apprehension is knowledge: the π must know that assault is taking placeii. The imminence clause is included to provide an opportunity/motive for to go to

the authorities, hide, or seek helpa. No significant delay

iii. Apprehension determined by objective standard.

B. Assault Notes

1. Often, assault proceeds a battery

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i. Yet, you can have an assault w/o a battery ii. & a battery w/o an assault (think about it), iii. or both together

2. An assault consists of touching the mind, not the body, and therefore the recoverable damages are for mental trauma and distress.

3. π must reasonably apprehend an imminent touching.

4. Imminent apprehension: “the apprehension created must be one of imminent contact, as distinguished from any contact in the future.

i. ‘Imminent’ does not mean immediate in the sense of instantaneous contact… It means no significant delay.”

5. Transferred intent applies to assault.

C. Assault Cases:

1. Collison v. Medleyi. Crazy family shows up in trailer for talking w/ daughterii. The apprehension must be one that would normally be aroused in the mind of a

reasonable person, & the tort is complete w/ invasion of the π’s mental peace.

III. FALSE IMPRISONMENT ELEMENTS (§§35-41)

1. Act by Δ

2. Intent to confine

3. π is confined/restricted to a limited/bounded area (w/ no knowledge of a reasonable means of escape) by:

i. Physical Force (against π/π’s family) orii. Threats of Immediate Harm (to π/π’s family/property) oriii. Actual or Apparent Physical Barriers (includes refusing the release π when duty to

do so) ora. Assertion of Legal Authority (McCann v. Wal*Mart) orb. Other Duress

4. π must want to leave (Hardy v. LaBelle’s Distributing Co.)

5. π must have either known of the confinement or been harmed (physically)i. π is conscious of the confinement orii. π is harmed by it (physically)

B. False Imprisonment Cases:

1. McCann v. Wal*Mart Stores, Inc.

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i. Wal*Mart employees thought little McCann was a shoplifterii. The induced reasonable people to believe either that they would be restrained

physically if they sought to leave, or that the was claiming lawful authority to confine them until the police arrived, or both.

2. Hardy v. LaBelle’s Distributing Co.i. The individual may be restrained by acts or merely by words, which he fears to

disregard. Here there is ample evidence to support Hardy was not unlawfully held against her will:

ii. You must try to leave or make clear you want to leave to qualify for false imprisonment.

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I. INTENTION AFFLICTION OF EMOTIONAL DISTRESS ELEMENTS

C. Restatement (Third) of Torts §45:1. “An actor who by extreme & outrageous conduct intentionally or recklessly causes severe

emotional disturbance to another is subject to liability for that emotional disturbance & if that emotional distress causes bodily harm, also for the bodily harm.

D. Direct Victim of Emotional Distress

1. acted intentionally/recklessi. Intentionally: acts w/ the purpose of causing severe emotional distress or acts

knowing that severe emotional distress is substantially certain to resultii. Recklessly: actor knows of the risk of severe emotional distress (or knows facts

that make risk obvious) and fails to take precaution that would eliminate or reduce the risk

a. Burden is slight relative to the magnitude of risk, thereby demonstrating actor’s indifference

2. Act is extreme and outrageous. i. Factors to consider:

a. Exceeds all bounds of decency accepted in a civilized society (GTE Southwest v. Bruce)

b. Regular, repeated, or continued after protestc. Abuse of Powerd. Against a vulnerable or sensitive (known to π)

3. ’s Acts Caused the Emotional Distressi. Must show causation from ’s conduct to π’s distress

4. The Resulting Emotional Distress was Severei. Severe: so bad that no reasonable person should be expected to endure it (Cf Jones

v. Clinton)ii. High Standard of Proof (e.g. more than π’s claim that she is distressed is needed—a

palatable effect is require) To weed out fakers courts look for π to show:a. Loss of workb. Medical attention/medicinec. Psychological treatmentd. Physical, bodily harme. Expert testimony

E. Third-Party Victim of Emotional Distress1. Δ acted intentionally/recklessly towards X3 2. π is Present 3. Δ is aware that π is present or is reckless about π’s presence 4. Act is extreme and outrageous5. π must either:

i. Be a family member of X3 or

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ii. If not a family member, experience distress that results in bodily harm

F. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS NOTES:

1. Vicarious liability: Your employee is generally your liability though not usually for intentional torts except when they are operating in some attempt to achieve employer’s goals.

2. A person can not be held liable for exercising a legal right even when they know it will cause emotional distress

3. First Amendment Considerationsi. Free speech claims can protect tortfeasorsii. Can divine punishment threatened by a priest/rabbi—or the threat thereof be a tort

for intent to cause emotional distress?

G. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS CASES:

1. GTE Southwest v. Brucei. The severity and regularity of ’s abusive and threatening conduct brings his

behavior into the realm of extreme and outrageous. a. beyond all possible bounds of decency, & to be regarded as atrocious, &

utterly intolerable in a civilized communityii. Conduct such as being regularly insulted, intimidated, & threatened is not typically

encountered, nor expected, in one’s employment, nor should it be accepted in a civilized society.

2. Jones v. Clintoni. Additional element: “the π’s emotional distress was so severe in nature that no

reasonable person could be expected to endure it.”ii. The court sees Clinton’s conduct as a mere sexual proposition, relatively brief in

duration, did not involve any coercion, or threats of reprisal & abandoned as soon as π made it clear it was unwelcome.

3. Homer v. Longi. Dr. Long used confidential trust to seduce Homer’s wifeii. There is a presence requirement for a 3rd party to claim intentional infliction of

emotional distress aimed at another.iii. Third Party Rule: When A acts on B. C must be present & needs a plus factor:

(1) family member or (2) bodily harm, to sue for intentional infliction of emotional distress.

a. Rare exceptions:i. Relationship of target to π

ii. Relationship between person committing action and the πiii. The egregiousness of the conduct

IV. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

A. If there is physical harm you can always include emotional distress damages

B. The Fright Claim (for a “near miss”)1. is negligent2. π is not physically hurt by that negligence

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3. but, π is (really) scared for his safety (Grube)i. Tests:

a. An impact test: if there was any contact, then there would be a filter for the court (primitive, but some states retain it)

b. A Zone of Danger Test: the ’s negligence placed the π in danger of physical injury, and b/c of that danger the π suffered emotional harm.

i. RS Third §46c. Subsequent observable physical manifestation is demanded by many

courts and some require strict symptomality (no self-reported symptoms)

C. The Grief Claim (Bystander)1. is negligent2. X is badly physically hurt, or killed, by that negligence3. But, π is (really) bummed or sad b/c of this

i. Three Dillion-Thing restraints:a. Near in space (have to perceive)b. Near in time

i. In Cal. have to see it in real timeii. but in Mich., before the body has been removed

c. Near in family relationshipd. + Serious Emotional Distress

ii. Many courts demand a subsequent observable physical manifestation, and some require strict symptomality (no self-reported symptoms)

D. WE JUST NEED TO SEARCH FOR A LIMITING PRINCIPLE.1. Pre-existing Dr.-patient relationship w/ foreseeable harm from negligence in Burgess

E. Courts in Tenn. (Camper v. Minor) pulled a Rowland and went back to RPP standard

F. TOXIC EXPOSURE: To recover for toxic exposure, a π must show, in absence of physical injury, the fear is: (Potter v. Firestone Tire)1. Result of ’s negligent breach of duty to π2. π was subject to toxic substances which threaten cancer AND3. Based on scientific evidence it is more likely than not that you will develop the cancer Or4. Show that the was particularly despicable and culpable

i. A π suffering bodily harm need not allege physical manifestations of her mental anguish (RS §456). (Norfolk & Westwern RR)

ii. Once found liable for ‘any bodily harm’ a negligent actor is answerable in damages for emotional disturbance resulting from the bodily harm or from the conduct which causes it. (RS § 456). (Norfolk & Westwern RR v. Ayers)

G. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS NOTES

1. RS Third §46: Fright Claimsi. A person whose negligence conduct causes “serious emotional disturbance to

another is liable ifa. the ’s negligence places π in “immediate danger of bodily harm” orb. the negligence occurs:

1. in the performance of particular categories of undertakings such as caring for and disposing of dead bodies or

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2. in connection w/ the relationship in which the is in a position of power or authority over the π or in “which serious emotional disturbance is otherwise likely.”

2. RS § 46(b): Bystander/Grief Claimsi. For member’s of immediate family

a. Who is presentb. Whether or not the distress results in bodily harm

ii. For any other person present at the timea. If such distress results in bodily harm

3. A little hurtin’ goes a long way… If the negligently causes physical injury to the π, the π can recover all damages that result including damages for pain, suffering and emotional harm.

4. When a π falls in-between fright and grief (Grube), it would change this to a test of foreseeability and then we would be able to cut through the analysis and get to a bottom line decision—a minority of courts have done this.

i. Some courts eventually recognized the zone of danger exception from Grube. As long as part of the fear was for his/her own safety.

5. The point of grief claims is to find a limiting principle and then Dillion-Thing become less important:

i. Typically, negligent mishandling of dead bodies are typically allowed for negligent infliction of emotional distress.

a. In Christensen v. Superior Court, crematory was harvesting organs instead of adhering to burial rituals. A relationship was found.

ii. Negligent death messages of siblings typically give rise to a cause of action.

iii. Negligent false disease (AIDS) results, no danger of physical injury, but a preexisting relationship. Courts are divided.

6. Toxic Exposure: Public Policy Reasons: the emotional distress caused by fear of cancer is not generally compensable in negligence action:

i. Overwhelm the courts w/ tons of πs and compromise the availability of insurance for toxic liability risks (judicial administrability)

ii. Threatens medical field and future risks of drugs (deterrence)iii. Limit ability and availability of funds for actual cancer sufferers (economics and

moral)iv. A definite and predictable threshold will maintain consistency from case to case

(firm rule)v. Limit the class of πs for emotional fear (judicial administrability)

7. Toxic Exposure—better to have physical harm: πs in almost all states who seek substantial damages for emotional harm for fear of contracting some disease have an incentive to plead their case as involving actual physical injury, w/ the emotional distress as a parasitic element of damages.

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8. When the π is actually exposed to HIV, recovery for the resulting distress does not seem to be a problem even if the π suffers no actual harm.

i. Recovery is limited to harms inflicted in the window of anxiety: the time before testing indicates no AIDS.

H. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS CASES:

1. Grube v. Union Pacific Railroadi. Train engineer crashed into car, but no fear for himselfii. The essential elements for recovery under the zone of danger test are that π must be

within the zone of danger and suffer imminent apprehension of physical harm, which causes or contributes to the emotional injury.

iii. Grube did not establish that he feared for his personal safety at any time.a. Can’t get grief claim—he’s not related.

2. Thing v. La Chusai. Woman heard her son was struck by an automobile and rushed to the scene to find

him dead. Court held she could not recover.ii. π may recover damages for emotional distress caused by observing the negligently

inflicted injury if and only if, the π:a. Near in Family: Is closely related to the injury victim: by blood or

marriage, relatives residing in the same household, or parents, siblings, children and grandchildren of the victim

b. Near in Time/Space: Is present at the scene of the injury producing event at the time it occurs and is then aware that it is causing the injury to the victim

c. Serious Emotional Distress: As a result suffers serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.

3. Burgess v. Superior Courti. Woman’s baby is born w/ brain damage b/c of Dr.’s negligenceii. This case is different than typical bystander claim. B/c there was a pre-existing

relationship w/ the Dr. that makes the π a “direct victim” and there would be foreseeable harm of distress b/c of negligence.

iii. A direct victim’s case is based on a breach of duty assumed by the or imposed on the as a matter of law or that arises out a of a relationship between the two.

a. We don’t need Dillion-Thing, b/c the relationship is a limit on the bystander principle

4. Siegel v. Ridgewellsi. There was no proof of harm from the possibility rabbi ate non-Kosher sushi.

5. Washington v. John T. Rhines i. Decaying body at funeral—wife suesii. Court held that the π was not in the zone of danger, she cannot claim negligent

infliction of emotional distress when her husband’s body was not properly embodied.

a. Schechter thinks this is wrong b/c there is a limiting principle available b/c there is a pre-existing relationship.

6. Boyles v. Kerri. Showed sex tape

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ii. A standard of severe distress is inadequate b/c it is a degree for which a test would be needed not an either/or proposition. It would be impossible to set an appropriate barrier.

a. No special relationship here.7. Camper v. Minor

i. Cement driver hits girl, then sues her for neg. infliction of emo. distressii. MINORITY: This is the Tenn. position to abandon all the negligent infliction of

emotional distress standards and return to the standard negligence analysis: reasonably prudent person.

iii. Court added the new requirements of:a. Severe emotional distressb. and medical proof

iv. Rowland of emotional distress8. Potter v. Firestone Tire & Rubber

i. To recover for toxic exposure, a π must show, in absence of physical injury, the fear is:

a. Result of ’s negligent breach of duty to πb. π was subject to toxic substances which threaten cancer ANDc. Based on scientific evidence it is more likely than not that you will

develop the cancer Ord. Show that the was particularly despicable and culpable

9. Norfolk & Western Railway v. Ayersi. Asbestos victimsii. A π suffering bodily harm need not allege physical manifestations of her mental

anguish (RS §456).iii. Once found liable for ‘any bodily harm’ a negligent actor is answerable in damages

for emotional disturbance resulting from the bodily harm or from the conduct, which causes it. (RS § 456).

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I. DEFENSES TO INTENTIONAL TORTS

I. SELF-DEFENSE

1. Non-deadly Force (§63) is allowed when:i. Reasonable apprehension ii. Imminent

a. Reasonable belief of circumstances and strict time element (Thomas v. Bedford)—no verbal enticement §70

iii. Battery iv. Defender has no duty to retreat

a. But excessive force is not acceptable, must only use force reasonable to repel

2. Deadly force (§65) is allowed when:i. Reasonable beliefii. Imminent

a. Reasonable belief of circumstances and strict time element—no verbal enticement §70

iii. Force is likely to cause death or serious bodily harmiv. Harm can only be prevented by the immediate use of such force v. Actor has no duty to retreat if

a. Actor cannot safely retreat or b. Actor is present at his dwelling orc. Actor is carrying out a lawful arrest

i. Or else a duty to retreat before using deadly-force

3. Defense of a Third Person (§76) i. Actor is privileged to defend a third person when

a. Third person has privilege for self-defense and b. Intervention is necessary to protect third person.

J. Notes on Self Defense:

1. Rule : One is privileged to use reasonable force to defend against harmful or offensive bodily contact and against confinement

i. Restatement §70: available if the actor correctly or reasonably believes to be necessary for his protection.

2. Reasonable deadly force : ’s privilege extends only so far as reasonably necessary to prevent death or serious harm.

3. Retreat: if attacked, not required to retreat, yet some states do have a reasonable retreat requirement.

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4. Excessive force : The privilege covers only reasonable force, any excessive force is unprivileged & the is liable.

i. A who continues the “defense” after the fight is over is likewise liable. (Touchet v. Hampton)

5. Verbal Provocation : generally not sufficient to raise self-defense.

6. Assault & imprisonment in self-defense : the RS specifically recognizes that one may be privileged, given appropriate facts, to commit what might otherwise be an assault or false imprisonment in self-defense, §67.

i. §70 also includes a caveat of a harmful or offensive contact that itself would not be privileged.

7. Defense of the Third Persons : May defend others on the same basis of self-defense as long as the belief that the attack on the third party is reasonable it is privileged under §76.

K. Self Defense Cases:

1. Touchet v. Hamptoni. Angry, threatening former employee walks into old boss’s office and gets

pummeled by him for 20 secs.ii. ’s act can be justified as self defense if there was an actual or reasonably apparent

threat to his safety & the force employed was not excessiveiii. mere words, even those designed to excite or irritate, “cannot excuse a battery” in

the name of self defense, a. plus he used excessive retaliating force

2. Thomas v. Bedfordi. Teacher hit student 3 or 4 times in “project” roomii. Corporal punishment, if allowed by state law, cannot be unreasonable or excessive

—must be reasonableiii. Aggressor doctrine will not apply when the retaliation is 10-15 minutes later

L. DEFENSE OF PROPERTY

1. Shopkeepersi. RS: Can detain, with immunity, if: (§120A not in red book)

a. There is a reasonable cause to believe the person stole (§120A)b. The manner of the detention and the actions taken in an attempt to detain

must be reasonablec. The length of time of the detention and the actions taken in an attempt to

detain must be reasonableii. Common Law: Can detain if on your premises:

a. π is committing a felony in your presence or b. π is committing a misdemeanor that is a breach of peace or c. π stealing

i. “detain at your peril”—false imprisonment liabilityM. Defense of Property

1. Non-Deadly Force i. Personal use of force allowed if: §77

a. Belief that Intrusion is not privileged: and

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i. Intrusion is not privileged orii. Intruder negligently causes actor to believe its not privileged

b. Reasonable belief that intrusion can only be prevented or terminated by force and

c. Request to stopi. Actor made a request to stop or

ii. Actor reasonably believes request will be useless oriii. Actor reasonably believes substantial harm will be done before a

request can be madeii. Mechanical Device allowed if: §84

a. Use is Reasonably necessary andb. The particular device is reasonable and c. Device is known by probable intruders because:

i. It is customarily used for such a purpose or ii. Reasonable care is taken to make its use known

iii. Deadly Force via a Mechanical Device §85 (Katko)a. Reasonable belief of imminent force is likely to cause death or serious

bodily harm.i. Deadly force is not a reasonable amount of force for defending

property, as a matter of law (human life = ∞)b. And harm can only be prevented by the immediate use of such force

N. Defense of Property Notes1. TX. and AZ. shield a from liability when he uses deadly force to prevent burglary among

other crimes.O. Defense of Property Cases

1. Peters v. Menard Inc.i. Chased possible thief around and then off property into riverii. Court allowed immunity from liability as long as reasonableness categories were

met and allowed it carry over to a chase off the premises in attempt to detain (includes a continuing pursuit)

2. Katko v. Brineyi. Owner of disrepair home sets up spring gunii. No immunity for spring guns even when the π was committing an illegal act.

Deadly force is not an allowable protective measure. There must be imminent threat of great bodily harm (can only do what you’d be able to do in person).

P. CONSENT ELEMENTS

Q. Consent, of π, is a defense unless/if:

1. Duress or coercioni. By virtue of inequality of power (prisoner, employee)ii. Credible physical threat

2. Incapacity ( must be aware of it)i. Mental disability (Saucier ex rel Mallory v. McDonalds), intoxication,

underageii. Where capacity is crucial, standard is either: acts at his peril or is

protected if reasonably thought π had capacity

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3. Fraud- w/ regard to a material element (e.g. $ or timing doesn’t usually negate)i. Procure consent by lying or concealing material info.

4. Illegality of act

5. Act in excess of consent given

R. Obtaining Consent

1. Express/Expliciti. Verbally or in writing give someone consent to commit a tort they are

exempt from liability.

2. Implied i. Objective theory: implied from observable manifestations ii. From π’s behavior as reasonably interpreted by (O’Brien)iii. Consent implied by law in medical emergencies

S. CONSENT NOTES

1. Consent has scope: can sue an invited guest for going uninvited to attic2. Therapists are statutorily banned from relations w/ their patients in some states3. Employers face scrutiny when an inferior is reliant on a job4. Age-based consent for minors is dependent on their age5. A mentally disabled adult may not be able to consent to sexual affairs6. Exceeding the Scope of the Conditional Consent:

i. Medical battery involves doctors exceeding scope of patient’s consent and the ordinary rule is that it is battery when a Dr. treats a patient w/o the patient’s consent, or in excess of the scope of a patient’s consent—specific consent control general consent

a. may not apply in emergency situations when consent is unavailable b. or when patient is too intoxicated to understand situationc. when a third party is designated to give consent for an incompetent, should

they choose?i. what is in best interest of the person

ii. what the person would do if competent7. Mistake : to avoid the effect of manifested consent, the π’s mistake must be “about the nature

and quality of the invasion of conduct”i. Collateral mistakes about time or price do not nullify

8. Courts are unsure if consent to illegal acts is possiblei. RS rejects any view that consent is ineffective and provides that consent is

generally effective and that a statute may be made criminal b/c it often induces consent by pressures from which the legislature is trying to protect

T. CONSENT CASES

1. Robins v. Harrisi. Prison guard raped prisoner in shower

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ii. There is no consent claim when one party has a position of power over of the other 2. Ashcraft v. Kind

i. Girl, 16, requested only family blood for transfer, hospital gave from general supply and she got AIDS

ii. This exceeded the consent she had given and she had a battery claim against the hospital

3. Kennedy v. Parrotti. Dr. did other work while he was inside patient for the one procedure she had

consented toii. Dr. couldn’t know exact condition before he got in, so consent will be considered

“general in nature”a. only applies when patient or other party is unable to give consent

iii. Court saw express consent to appendectomy and implied consent to operate on anything else in the area (default rule in case)

4. Doe v. Johnsoni. Ervin Johnson knew or should have known he had HIV and didn’t warn Doe and

she got HIVii. One who knows he has a venereal disease and knows that his sexual partner does

not know of his infection, he commits battery by having sexual intercourse5. O’Brien v. Cunard S.S.

i. Woman on ship did not tell Dr. she did not want to be revaccinated, but everyone else was and he pricked her

ii. In determining consent, one can only be guided by overt acts and the manifestation of feelings. If outwardly appears to consent—no liability.

V. PUBLIC AND PRIVATE NECESSITY ELEMENTS

A. Public Necessity: §196 1. An absolute defense for an actor who in the face of an imminent emergency destroys property

(or else no Good Samaritan)2. One is privileged to enter land [or to interfere w/ chattels] if

i. Reasonable belief that act is necessary to advert ana. Imminentb. Public disaster

3. Note: no individual liability, in some states state will pay damages

B. Private Necessity §197: One is privileged to enter/remain on land in the possession of another if:1. The actor has a reasonable belief the act is necessary to avert imminent harm to

i. the actor, his land, or his chattels, or,ii. to the other or third person

a. unless the actor has reason to know that person he intends to benefit would be unwilling for him to act

2. When act is in benefit to actor or third person, actor is liable for any harm done, except when harm was the result of tortious or negligent conduct of possessor

3. In cases of emergency, private necessity is a defense to technical trespass even though you are liable for actual damage.

C. NECESSITY NOTES

1. Arrests and Searches: officers are privileged to enter land and execute a search or arrest warrant (not privileged to allow news media w/)

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2. Public Rights : Common-carrier has privilege to enter appropriate portions of the premise as long it does not deny rights of the public to patronize.

i. can enter a restaurant and not be held a trespasserii. can even, limitedly, campaign in malls on public issues

3. Life > Property. One may sacrifice the personal property of another to save his life or the lives of his fellows.

4. Private Necessity: There is no liability for a right to take refuge of life and property5. Torts as Economics: Under Vincent, you could act as if you own both assets and make an

efficient-economic decision b/c the actor is forced to internalize costD. NECESSITY CASES

1. Surocco v. Gearyi. Great fire in SF, mayor blew up man’s house to prevent spreadii. Necessitas inducit privlegium quod jura privata: At times of peril, the individual

rights of property give way to the higher laws of impending necessity. a. The judgment of the decider is regulated by his own understanding of the

exigencies of the case. Necessity must be clearly shown. 2. Wegner v. Milwaukee Mutual Insurance

i. Police destroy a house where a drug dealer is hiding outa. The public policy is in ’s favor and “private property shall not be taken,

destroyed, or damaged for public use w/o just compensation” under Minn. Const.

ii. Individuals should not be forced to bear public burdens alone3. Ploof v. Putnam

i. Family tries to dock sloop during storm, ’s servant unmoorsii. Necessity justifies entry upon land & personal properties & interferences that

would have otherwise been trespass now create a duty not to expeliii. One may sacrifice the personal property of another to save his life or the lives of

his fellows4. Vincent v. Lake Erie Transportation

i. was unloading, storm came, tightly fastened boat to dock and continued to do so despite damaged and ruined the dock

ii. Ordinary rules regulating property were suspended b/c it was beyond human control, but the was directly to preserve his property at the expense of the π’s—π is entitled to compensation

a. Dissent: (Schechter liked) if one is going to enter into K to have ships moored at dock for economic benefit, he should be willing to accept responsibility for damage via tempest

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VI. PRIMA FACIE NEGLIGENCE

A. Negligence may be any conduct that creates an unreasonable risk of harm to others, it is actionable when the risk comes to fruition in actual harm. General principle of our law is that loss from an accident must lie where it falls.

B. Elements of Negligence

1. Dutyi. Was it owed to the π specifically?ii. What was its nature, scope, definition?

2. Breach of the duty

3. Factual causationi. π must show led to the actionii. it wouldn’t have happened w/o ’s action

4. Proximate cause/Legal cause/Scope of responsibility

5. Damagesi. Can’t recover for technical harm to your rights like in intentional torts, must show

damages

VII. DUTY OF CARE — HRP

A. The Hypothetical Reasonable Person1. The duty owed by all people generally is to exercise care that would be exercised by a

reasonable & prudent person under the same or similar circumstances to avoid or minimize risks of harm to others. The reasonable person exercises care only about the kinds of harm that are foreseeable to reasonable people & risks that are sufficiently great to require precaution.

i. The standard remains the same whether the danger is high or low; what changes is the amount of care that a reasonable person would take.

B. Factors that count for lowering/altering the “like circumstances”1. Physical disability §283C2. Short people, obese3. Superior skill or training4. Superior knowledge or intelligence §289B

C. Factors that do not count for altering the “similar circumstances”1. Intoxication2. Mental illness/insanity §283B3. Stupidity

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D. The child standard of care = act as a hypothetical child of similar age, experience & intelligence (AEI) under similar circumstances.1. It is a subjective standard, it is customized for each individual child and is a pro- standard.

(trial-and-error learning)2. Does not apply for children engaging in inherently dangerous/adult activity. They are then

help to HRP standard. (Robinson v. Lindsay)i. Rule of Sevens: For some courts: 14+ are presumed capable of negligence, 7-14

are presumed incapable of it, and 7 and below are incapable of negligence as a matter of law.

ii. Most states hold that very young children, 3 and under, are simply incapable of negligence. For the RS Third it is children under 5.

E. DUTY OF CARE — HRP NOTES

1. Rule of physical impairments: “The conduct of an actor w/ physical disability is negligent only if it does not conform to that of a reasonably careful person w/ the same disability.” RS §283C

2. Old Age: Old age is not taken into account in setting the standard of care.3. Intoxication: An intoxicated person owes the same care as a sober person, & that if his overt

conduct would be negligent in a sober person, it is also negligible in a drunken one.4. Sudden implication: If person’s alleged negligence is caused by a sudden physical

incapacitation that is not foreseeable, there should be no liability.5. Insanity Does Not Alter Standard : people w/ physical disability are conscious of their

limitations and can compensatei. Can not ask the jury to put themselves in the shoes “of a reasonably prudent crazy

person acting under similar circumstances”6. Superior Knowledge: Is an altering like circumstance b/c we will not go below the standard of

an average reasonable hypothetical person, but will ratchet it up. We want people to perform their best.

F. DUTY OF CARE — HRP CASES

1. Stewart v. Mottsi. Stewart was helping Motts w/ car at Motts’ shop, it exploded on Stewartii. There is no heightened standard for ordinary people: the level of care required

increased proportionately w/ the level of danger in the activity & left it to their discretion. “The greater the danger, the greater the care which must be exercised.”—but w/in the standard.

2. Bjorndal v. Weitmani. woman hit a van when looking for her fatherii. The general negligence standard encompasses any legitimate concerns about

“emergency” circumstances w/o “wise & unwise” language being written into the standard of care.

3. Shepherd v. Garden Wholesale Inc.i. Woman w/ bad vision trips on sidewalkii. The standard of care is what an ordinarily prudent person w/ a like infirmity would

have exercised under the same or similar circumstances.4. Creasy v. Rusk

i. Insane patient kicks caretakers leg and her back pops

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ii. The general duty of care imposed on adults w/ mental disabilities is the same as that for adults w/o mental disabilities w/o regard to the alleged tortfeasor’s capacity to control/understand the consequences of his actions.

a. Yet, Court sees care-giving to mental patients as a one-way street and the duty of care here is only for Creasy to take care of Rusk.

5. Hill v. Sparksi. had 8 years of experience w/ earth scrappers, yet let π sit on oneii. The standard of the reasonable man requires only a minimum of attention,

perception, memory, knowledge, intelligence, and judgment in order to recognize the existence of the risk. If the actor has in fact more than the minimum of these qualities, he is required to exercise the superior qualities that he has in a manner reasonable under the circumstances.

6. Robinson v. Lindsayi. 11-year-old girl lost thumb when 13-year-old drove her on a snow mobileii. When the activity is inherently dangerous, as in the operation of a powerful

mechanized vehicle, the child should be held to an adult standard of care. This protects children from excessive liability when acting like children, but discourages immature individuals from engaging in inherently dangerous activities.

a. Cf. Hudson-Connor v. Putney (driving a golf car does not require adult skills involve requisite danger)

7. Breunig v. America Family Insurance Companyi. Crazy woman drove into a truck thinking her car could flyii. Since these mental aberrations were not constant the jury could infer she had

knowledge of her condition and the likelihood of a hallucination just as one who has knowledge of heart condition knows the possibility of an attack.

a. Would not hold liable if no foreseeability.8. Cervelli v. Graves

i. Specially licensed truck driver tried to swerve past on icy roadii. If the actor has in more than the minimum HRP qualities, he is required to exercise

the superior qualities that he has in a manner reasonable under the circumstances. The standard becomes, in other words, that of a reasonable man with such superior attributes.

a. The degrees of licenses do not create a higher standard for possessors of each successively higher license, but a jury question (not a question of law) if his experience gave him superior knowledge or skill.

G. DUTY OF CARE—LANDOWNERS ELEMENTS

1. What injured the π?i. affirmative activities = π injured by activityii. conditions on the land = static condition

2. Inviteei. Enters w/ permission and w/ the purpose of conferring pecuniary benefit on the

landowner. (classic example = customer in store)ii. Enter b/c the property has been declared open to one and all.iii. π injured by activity : ordinary care (reasonable care under the circumstances)iv. π injured by static condition : ordinary care

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a. including a duty to conduct a reasonable inspection to discover and correct hazards

b. if a hazard is obvious, no action may be necessary unless entrant is likely to be distracted (O’Sullivan v. Shaw)

3. Licenseei. Enters w/ permission to premises that are not generally open to public.

a. Includes social guestsii. π injured by activity : ordinary care (reasonable under circumstances)iii. π injured by static condition : limited duty to protect against a harm from a (1)

concealed condition, (2) the existence of which is known by the landowner. (concealed = not open and obvious)

a. sometimes phrased as a duty to protect only from willful or wanton injury.b. No foreseeable harm = no duty to warn.

4. Discovered Trespasser/Foreseeable Trespasseri. π injured by activity : ordinary care §334ii. π injured by static condition : only owes a duty to protect only from a condition that

is §335:a. artificial, b. highly-dangerous (a really high degree—like death), c. concealed, and d. known to the land-occupier.

iii. Sometimes phrased as a duty to protect from willful or wanton injuryiv. Attractive nuisance applies if π is a child.

5. Undiscovered Trespasser i. π injured by activity : No Dutyii. π injured by static condition : Generally no duty.

a. Sometimes phrased as a duty to protect only from willful (i.e. intentional), or wanton (i.e. reckless) injury.

b. For children of tender years, duty to protect from artificial conditions if trespassing can be anticipated and children cannot appreciate danger for themselves under “attractive nuisance” rule.

6. Common law: Half of states follow the traditional common-law rules:i. Landowners owe a duty of reasonable care to all invitees.ii. Landowners owes trespassers or licensees only the duty to avoid intentional,

wanton, or willful injury (undiscovered, no imminent danger)a. Landowner’s may enjoy a privilege to use reasonable force to expel the

trespasser to, for example, defend his property.iii. If the landowner discovers the presence of the entrant and the fact that he is about

to encounter danger:a. Some courts say the landowner who fails to act reasonably in the face of

this known danger to an entrant is guilty of wanton or willful misconductb. Others say the landowner owes a duty of reasonable carec. Either way, the liability for failing to act w/ reasonable care in light of the

known situation

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iv. Some courts impose a duty of care upon landowners who have not discovered the actual presence of a trespasser, provided the landowner knows trespassers frequently use a limited area.

v. When performing affirmative acts, a landowner will often be held to a duty of reasonable care once he knows a trespasser is present. In the case of licensees, the landowner is said to owe a duty of reasonable care to all licensees in carrying out activities on the land.

7. The Attractive Nuisance Doctrine: when dealing w/ a child, the duty of care is to exercise reasonable care to prevent injury from a foreseeable artificial danger.

i. RS§ 339: Landowner is liable to children trespassing b/c of an artificial condition if:

a. It is likely children are to trespassb. It will involve an unreasonable risk of death or serious bodily harm to such

childrenc. Children, b/c of their youth, don’t recognize risk involvedd. Utility of maintaining the condition and burden of eliminating it are slight

compared to the risk to the childreni. B<PL

e. Landowner fails to exercise reasonable care or otherwise protect the children

ii. Limited to children of tender years, as they are the ones that won’t be able to perceive dangers for themselves.

a. Teenagers are expected to understand risks for themselves

H. DUTY OF CARE—LANDOWNERS NOTES

1. RS §333 says no matter how one becomes a trespasser, the liability is the same. Duties owed to a trespasser or licensee is the same under common law.

2. For open and obvious dangers, there is not a question of assumption of the risk nor contributory negligence, but of “no duty.” (A Stinnett for landowners).

3. No foreseeable harm = no duty to warn.4. Modern Approach to Landowner Duty (Rowland v. Christian)

i. In states that have dropped the distinctions for reasonable care standard:ii. Old factors still have some probative value. Property owners maintain the right to

develop property for profit and enjoyment, even though there will be dangerous conditions on it as a result.

a. He must take reasonable measures to prevent injury to those whose presence on the property can reasonably be foreseen.

b. There should not be an unreasonable burden on the use of property since all that is required is reasonable care. The can show that it would have been unreasonably burdensome to do more (B<PL).

c. Plus, when a π entered w/o permission, it will factor in that he trespassed. i. It may well demonstrate that the π’s presence was not foreseeable at

the time and place of the injury.iii. Many courts retained the limited-duty-trespassers rule even though they dropped

the licensee-invitee distinction

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iv. Third RS: all entrants are owed a duty of reasonable care, except in “exceptional cases,” then provides that land possessors owe “flagrant trespassers” only a duty not to intentionally, willfully or wantonly injure.

5. Recreation on Private Land Statues: Most states have now passed statues dealing w/ recreational users on private land and waters (not gov.). They retain the landowner’s special immunities as to any non-paying recreational user. Typically only gross negligence or willful or wanton misconduct creates liability.

I. DUTY OF CARE—LANDOWNERS CASES

1. Gladon v. Greater Cleveland RTAi. Gladon ends up on tracks—driver couldn’t stop once she saw his shoesii. Traditionally, a landowner owes a trespasser or licensee no duty except to avoid

injuring him by willful or wanton or reckless conduct prior to discovery. He was a trespasser or licensee (it does not matter for injury situations if he trespassed volitionally or not) and not an invitee.

2. Bennett v. Stanleyi. Child falls into swamp pool on ’s propertyii. The Attractive Nuisance Doctrine: when dealing w/ a child, the duty of care is to

exercise reasonable care to prevent injury from a foreseeable artificial danger. iii. The key elements should be whether there is a foreseeable “unreasonable risk of

death or serious bodily harm to children.” Even when there is an attractive nuisance, the landowner merely must act w/ ordinary care.

3. O’Sullivan v. Shawi. Guest dives into shallow end and hits head on ii. Where a danger would be obvious to a person of ordinary perception and judgment,

a landowner may reasonably assume that a visitor has knowledge of it and, therefore, “any further warning would be an empty form” that would not reduce the likelihood of resulting harm.

iii. Since no harm was foreseeable, then there is no duty to warn.4. Rowland v. Christian

i. Landowner didn’t warn guest (licensee) of dangerous handleii. The landowner distinction system unjust and resorted to the reasonable standard of

care. iii. Yet, the old system still factors in as the “under the circumstances” clause can

bring into the consideration the nature of the entrant.

VIII. DUTY OF CARE—MEDICAL MALPRACTICE ELEMENTSA. Medical Malpractice

1. Duty: The Medical Standard of Care: common care of other practitioners i. A doctor’s acceptance of the patient represents an undertaking of care by the

doctor.ii. Medical Malpractice:

a. Error in executionb. Error in medical decision making (ex ante)

i. Diagnosisii. Treatment

2. Breachi. Expert testimony orii. Medical res ipsa loquitur:

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a. The event in question must be of the kind which does not ordinarily occur in the absence of negligence

b. The agency or instrumentality causing the harm must have been w/in the exclusive control of the (eased standard)

3. Causation: use “but-for” causation or use loss of chance approach

B. Nurses: Courts now seem to assume that nurses are held to the standard of nurses in similar practice.

C. Hospitals: In performing their duties, hospitals owe a duty of reasonable care under national standards fixed by the Joint Commission on Accreditation of Hospitals.

D. Pharmacists: Most states hold that pharmacists owe their clients no duty to warn of side effects that the physician has prescribed in an excessive dosage or that a drug is counter-indicated, even though the patient may be seriously injured if the prescription is filled.1. The pharmacist is liable only if he voluntarily undertakes to give appropriate warning and

negligently fails to do so.2. Some courts have held that a pharmacist owes a duty to warn when serious contraindications

are present or the drugs prescribed carry inherent risk.E. Other callings, occupations, or activities: Courts often state that the prudent person standard of

care by referring to the care that should be exercised by a reasonable person in the ’s occupation or status as a shorthand way of referring to the circumstances.

F. Architects, engineers, accountants and attorneys: For a learned profession or skilled trade, the reference is to the custom or standard of the profession itself—the professional setting is part of the circumstances in a reasonable person standard. 1. Expert testimony may be required to establish the risk and establish that the risk was a violation

of professional standards.G. Educational Malpractice: Intentional or negligent torts may be sued under reasonably prudent

person standard. When the alleged educational malpractice is the product of training, testing, promotion, failure, or classification of the student, the courts have not merely refused to provide a protective professional standard, but said there is little duty or none at all.

H. Res ipsa loquitur : exclusive control is nullified in medical malpractice actions where the injury can reasonably be attributed to a pre-existing condition, an allergic reaction or some other frailty (Kelly v. Hartford Casualty Insurance)1. Expert testimony allows for the middle ground between extreme negligence and minor

consequences to be established by res ipsa. (RS Third §17)I. Normal medical res ipsa loquitur : as a matter of common knowledge, the π’s injury is more likely

than not to have resulted form negligence.

IX. NONFEASANCE ELEMENTS

A. Duty to Rescue

B. Under the common law, one person owes another no duty to take active or affirmative steps for the other’s protection.

1. General rule is no (Yania, π jumps into water and drowns, has no duty) 2. Duty if there is Special Relationship: imposes a duty

i. custody importantii. carrier-passengeriii. innkeeper-guestiv. landowner-lawful entrant

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v. employer-employeevi. school-studentvii. landlord-tenantviii. custodian-person in custodyix. a joint social endeavor (see Farwell and Podias)

3. Duty if takes chargei. Once begins a rescue, he has a duty to perform it reasonably.

a. (Some states have passed Good Samaritan statutes eliminating liability for mere negligence)

ii. only liable if he leaves π in a worse position.a. Compare initial position v. final position orb. Compare position in rescuer’s hands (best point) w/ final point

4. Duty if caused π’s perili. “caused” in the sense of the proximate cause, ii. wouldn’t apply in Yania b/c it wasn’t foreseeable Yania would put himself in a

perilous/dangerous situation 5. Ad-hoc cost-benefit analysis (the Hand formula) (Posner yes, Schechter no)

i. People would be deterred from being altruistic ii. Undertaking a rescue creates threat of negligence liability for failed rescue & unable

to draw circle of tortfeasors6. Common exceptions (a.k.a. a duty is created):

i. If a person knows or has reason to know that his conduct, whether tortious or innocent, has caused harm to another person, he then has a duty to render assistance to prevent further harm.

ii. If a person has created an unreasonable risk of harm, even innocently.iii. If a statute or ordinance requires a person to act affirmatively for the protection of

another.

C. NONFEASANCE NOTES

1. Misfeasance in Rescue: when you’ve chosen to do something, the gov. can tell you to do it like a reasonably prudent person

i. if you start to rescue and abandon, then you will have breached your duty ii. Good Samaritan Law no liability for a rescuer who performs his rescue carelessly.

(Md. = police, firemen, hospital employees, EMTs, Ski Patrol)2. The RS Third §43 says that when a person voluntarily begins to take charge of an imperiled

and helpless person, he has assumed a duty to take charge in a reasonable manner.3. RS Third §44(b): where the discontinues aid, there is liability if the , by acting

unreasonably, has left the victim in a worse position than existed before the took charge.i. §44(a): when a person voluntarily takes charge of an imperiled and helpless person,

he has assumed a duty to take charge in a reasonable manner.4. Court applies Hand formula in Podias, but that is a breach analysis:

i. The NJ Court is covertly waiving the no duty rescue and applying the Hand formula.

ii. Yet, they are only doing so in an instance where the parties are more than innocent bystanders—where the instrumentality of injury in this case (the car) was operated for a common purpose and the mutual benefit of s, and driven by someone they knew to be exhibiting signs of intoxication.

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D. NONFEASANCE CASES

1. Yania v. Bigani. Yo! Yania you won’t jump over this strip mining hole…ii. There is no duty to rescue someone in peril.iii. No other duty created for Bigan: It is not foreseeable that w/o being able to tread

water someone, w/ full possession of all his mental faculties, would jump into water (engage in a perilous activity).

2. Wakulich v. Mrazi. Drinking contest w/ 16 year old girl; when she was done they aided (removed

vomit-soaked blouse/gave pillow), but did not call hospitalii. Rescue once undertaken, must be performed “reasonably.”

3. Farwell v. Keatoni. Drink beers, hit on girls, get your asses kicked, drive around w/ buddy injured and

unconscious—hit up some restaurants tooii. Where the π and are in a special relationship, the will have a duty of

reasonable care whether or not the had anything to do w/ creating or increasing the risk of harm to the π.

a. In Farwell, the relationship: for the evening, special in the sense that people in general did not and could not have shared it.

b. Farwell comes out as re-crafting the general rule (in Mich.): any “relationship” should be grounds to establish a duty to rescue, but you have no duty to rescue strangers

4. Podias v. Mairsi. Head back to Monmouth U and hit a motorcyclistii. A duty of care to rescue is created when “caused” the π to be in the peril in the

first place. (Mairs)iii. Liability for interfering w/ π’s ability to obtain assistance: Even where the original

danger was created by innocent conduct, no fault of , there may be a duty to make a reasonable effort to give assistance and avoid further harm where the prior innocent conduct has created an unreasonable risk of harm to the π. (Mairs’ Friends)

a. “the mere knowledge of serious peril, threatening death or great bodily harm to another, which a might avoid w/ little inconvenience creates a sufficient relation to impose a duty of action.”

X. NEGLIGENCE PER SE

A. π’s “Borrowing Statutes”1. These statutes have their own cause of action, even though they don’t technically apply.

B. negligence per se is actually small “n” negligence, it replaces the duty and breach of duty, if the did not follow the statute1. For negligence per se

i. The statue must define the standard of conductii. The statute must be there to prevent this “type of harm”iii. π is w/in “class of persons” the statute was there to protect

a. public-at-large does not usually count

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iv. Violation must have been proximate cause of injury

C. RS §288A: an excused violation of a legislative enactment is not negligence. 1. Unless the regulation does not permit excuse, violation is excused when:

i. the violation is reasonable b/c of the actor’s incapacity;ii. he neither knows nor should know of the occasion for compliance;iii. he is unable after reasonable diligence or care to comply;iv. he is confronted by an emergency not due to his own misconduct;v. compliance would involve a greater risk of harm to the actor or to others

D. RS §288B: (1) unexcused violation of the statute which court lets define the standard of care is negligence in itself 1. (2) if court doesn’t adopt it as standard of care, may still bear on issue of negligent conduct

E. NEGLIGENCE PER SE NOTES

1. Neglience per se is not applicable to all statuesi. The doctrine applies only to statues that declare conduct unlawful but are silent as

to civil liability.2. The rule’s effect on the duty of care:

i. Unexcused violation of such statutes, subject to some qualifications, “negligence per se.”

ii. Meaning violation of the statute actually determines the actor’s negligence (supplanting the usual common law standard of care)

3. The public at large is usually not considered a specific protected class. Many courts say that an unidentifiable class cannot be given per se effect.

4. Jurisdictional variations:i. Some states make violation of such a statute some evidence of negligence that may

be considered by the jury, rather than regarding the statute as setting the standard of care.

5. Statutory instruments covered by the rule:i. Courts usually apply the negligence per se rule to violations of city ordinances and

even to violations of administrative regulations as well as to state and federal statutes.

6. Jury Instructions : Must convince the judge to allow negligence per se, it is an argument attached to the jury instructions

7. New Causes of Action : When the statute creates a wholly new obligation and does not in itself purport to create a new cause of action, courts tend to give the statute no tort law effect at all.

8. Licensing statues don’t usually proscribe conduct—they don’t tell us how to behave. And aren’t generally used for negligence per se.

F. NEGLIGENCE PER SE CASES

1. Martin v. Herzogi. The unexcused omission of the statutorily-required lights on the buggy signals

negligence itself.2. O’Guin v. Bingham County

i. Kids were playing in a landfill and were killed; it was by a schoolii. For negligence per se

a. The statute must be there to prevent this “type of harm”

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b. π is w/in “class of persons” the statute was there to protect3. Impson v. Structural Metals Inc.

i. Driver in violation a Texas driving statute and hit the car ahead of him trying to make a left

ii. was not able to introduce excuse that he forgot the sign was there—his act was an inexcusable violation.

XI. BREACH OF DUTY

A. Breach of duty (small “n” negligence) §§ 289-293, §295A, §328D

B. Allege, specific, Unreasonable Conduct (AUC)--How to evaluate reasonableness?1. Assessing Risks and Costs §§291-293

i. Reasonable to ignore extremely improbable events ii. Reasonable to do things that are normally done iii. Reasonable to value more valuable thing (e.g. life over property) (Indiana

Consolidated Insurance v. Mathew)iv. No Duty to warn against the obvious (Stinnett)v. Custom (not controlling w/ regard to reasonableness The T.J. Hooper) §295vi. Reasonable for some time pass before clean up (applied to slip and fall Thoma)

2. Hand Formula B < PL Carroll Towingi. Breach = Burden of Prevent < (Probability of Loss * Cost of Loss)ii. B = burden

a. spend $ b. allow a different loss c. opportunity cost

iii. P = probability of lossiv. L = cost of loss

C. Negligence is overt conduct that creates unreasonable risks that a reasonable person would avoid. The risk of harm is unreasonable when a reasonable and prudent person would foresee that harm might result and would avoid conduct that creates the risk.1. Conduct may include a failure to act, if action is required.

D. BREACH OF DUTY NOTES

1. Courts use foreseeable to mean that harm was not only foreseeable but also too likely to occur to justify risking it w/o added precautions.

2. Harm is unforeseeable means though harm was foreseeable on the facts of the case, the reasonable person would not have taken action to prevent it b/c the risk of harm was low and harm was so improbable that a reasonable person would not have taken safety precautions

3. AUCS : phrase in terms of “failure to…” (include in all breach essays!)4. The obviousness of danger : “The obviousness of a risk may make the likelihood of its

materialization so slight that there is no need to try to eliminate the risk.”5. RS Third: the major factors in analyzing whether conduct is negligent are: “the foreseeable

likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm that may ensure, and the burden of precautions to eliminate or reduce the risk of harm”

6. Sleight of Handi. Juries are not instructed in the Hand formula.ii. Most appellate courts do not use this formula in review either.

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iii. Isn’t a substitute for breach of duty b/c it doesn’t apply in many situationsiv. The “P” term is impossible to know ex antev. The “L” and “B” terms could also be vaguevi. Some things can’t be “monetized”

a. Human life, or the last spotted owlvii. The tunnel vision problemviii. Ignores distributional concerns

a. Bill Gates lamp post company, $10,000 to prevent one injury at $5,000ix. emphasizes wealth and money over human liberty

7. Estimating costs or benefits . Almost any activity has some benefit and almost any safety precaution has some costs, although one safety precaution—a warning of danger—is usually almost costless. A warning may be due even if the danger is small.

8. Memory and Hand Formula : The actor needs only to consider those risks that would be taken into account by a reasonable person. This is why courts discuss whether harm is “foreseeable,” they limit liability to cases in which the actor can recognize a risk or danger. Can’t be expected to remember everything either.

9. In slip n’ fall cases, we look at whether the employees created the dangerous situation and if not, whether they promptly mitigated the dangerous condition. It is a jury determination.

i. Three theories of slip and fall negligence:a. The created and failed to take reasonable actions to abate the hazard (spilt

sauce by waiter)b. The did not directly create the condition but discovered, or should have

discovered, a condition created by others (often called “constructive notice”) and failed to take reasonable steps to prevent injury from that condition

c. The ’s mode or method of business operations made it foreseeable that others would create a dangerous condition and the failed to take reasonable measures to discover and remove it (a grocery’s self-serve of beans)

10. RS Third §13(b): “a person’s departure from the custom of the community, or of others in like circumstances, in a way that increases the risk is evidence of that person’s negligence but does not require a finding a negligence.”

i. Custom can prove:a. Harm was foreseeableb. The knew or should have known of the riskc. That the risk was an “unreasonable” one unless the customary precaution is

taked. That a safety precaution is feasible

II. If the custom is not necessarily b/c of safety, then the needs to show why and how the non-custom caused a foreseeable risk of injury which the others customarily avoid.

III. TJ Hooper: custom does not always = standard.11. ’s employees failed to mop up a spill promptly.

i. If there was an odor or a color, there would be an interpretation of promptness as a shorter period of time than a colorless, odorless spill.

ii. When the substance has been on the floor for a relatively long time, the jury is permitted to conclude that a reasonable person should have discovered and remedied it.

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iii. There is a serious proof problem for slip and fall πs, the courts have edited standards to try and help.

E. BREACH OF DUTY CASES

1. Pipher v. Parselli. Crazy passenger grabbed wheel of truck, not once, but twiceii. AUCS: He failed to admonish, to pull over, to put in back seatiii. A driver owes a care of duty to his passengers b/c it is foreseeable that they may be

injured if the driver crashes.iv. It is not unreasonable to ignore remote or unlikely risks, reasonable people take

more precautions as reasonable risk becomes more foreseeable. 2. Indiana Consolidated Insurance Co. v. Mathew

i. Blows up brother’s lawnmower in brother’s garageii. AUCS: Failure to properly fuel mower, to start mower in garage, to push mower

out of garage once a fireiii. It is reasonable to do what is customarily done and it is reasonable to preserve life

over property.3. Stinnett v. Buchele

i. Dr. didn’t provide safety equipment for semi-experienced rooferii. AUC: Failure to provide safety appliances.iii. It is reasonable to fail to provide safety equipment when the employee has more

safety knowledge than the employer.iv. It is reasonable to ignore “obvious” or apparent damages (b/c other can protect

themselves)v. It is reasonable to not protect someone who knows enough to protect himself.

4. Bernier v. Boston Edison Co.i. Wild accident leads to lamppost hitting post-coital teensii. AUC: Failure to include a rebar or otherwise make strong enough a lamp post

located in high traffic areaiii. The foreseeability here was high. It had happened before on these kind of roads.

The more foreseeable an incident is, the more culpable the negligent becomes.iv. The other crucial evidence is the cost of building sturdier poles. You want to show,

as π did, that it is not much more expensive to make them safer.5. U.S. v. Carroll Towing

i. Barge sank when bargee was not on boardii. AUC: Failure to have bargee on boardiii. If B<PL is then is negligent; when…

a. B = ’s costs of accident preventing precautionsi. salary of relief bargee

b. P = probability of accident occurring if no precaution is takingc. L = How “bad” the injury is… (in $s)

6. Thoma v. Cracker Barrel Old Country Store, Inc.i. Woman slipped in a puddle at Cracker Barrell—no one noticed itii. AUC: Failure to not spill liquids, failure to clean up promptlyiii. To recover for a “slip and fall,” a π must show that the premises owner either

created a dangerous condition or had actual or constructive knowledge of a dangerous condition. Jury Q.

7. Wal-Mart Stores, Inc. v. Wrighti. Woman tried to use Wal Mart store manual to set standard of care

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ii. Store can set standards that exceed ordinary care (subjective), but it doesn’t make the lawful degree of care more than ordinary (it is an objective test for everyone)

iii. failure to follow a party’s precautionary steps or procedures is not necessarily failure to exercise ordinary care.

8. Duncan v. Corbettai. Guy fell through friend’s stairsii. AUC: failure to have custom of wood, though met ordinanceiii. Proof of a general custom and usage tends to establish a standard by which

ordinary care may be judged even where an ordinance prescribes certain minimum safety requirements, which the custom exceeds.

9. The T.J. Hooperi. Ship lost a barge b/c it didn’t have a radioii. AUC: Failure of tugs to have radios on board (wasn’t custom)iii. While common practice usually represents reasonable practice, that doesn’t make it

the standard. The cost of having a radio is low (B), and therefore it is unreasonable/negligent not to have one.

a. In some cases, universal neglect of a precaution does not make it reasonable to not pursue one.

XII. RES IPSA LOQUITUR

A. Res ipsa loquitur: the mere fact of the accident having occurred is evidence of negligence—“the thing speaks for itself”

B. Res Ipsa Loquitur 1. Event usually doesn’t happen in absence of negligence

i. Proved by:a. Common knowledge of community (Byrne)b. Expert testimony (Persinger)c. Prove that negligent conduct is more likely than non-negligent conduct

(Warren)2. The instrumentality or agent which caused the accident was under the exclusive control of the

i. Other “reasonable causes” are sufficiently eliminated The being sued is

probably the one who committed the mystery breach The has exclusive control.

ii. Loosely interpreted concept. §RS 17a. It is enough if, exclusive control or not, the was one of the person who

was probably negligent.

3. Eliminate Third Partiesi. No inference of negligence when third-party (hotel guest) was just as likely to

commit act (throw chair) as (Larson v. St. Francis Hotel)

4. Eliminate π as a cause

C. RS Second, §328D, says the π must prove:i. The event is of a kind which ordinarily does not occur in the absence of negligenceii. Other responsible causes, including the conduct of the π and the third persons are

sufficiently eliminated by the evidence

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iii. The indicated negligence is within the scope of the ’s duty to π.2. Function of court to determine if jury can reasonably infer it and function of jury to determine

whether it may be used (only when a different conclusion could reasonably be reached).

D. If the explanation is complete, res ipsa loquitur cannot be invoked.

E. RES IPSA LOQUITUR NOTES

1. In res ipsa loquitur cases, the π proves nothing and asks the jury to infer using their common knowledge or the word of an expert that the incident would not have occurred in the absence of negligence.

2. Most courts allow res ipsa as long as π doesn’t have a complete explanation of what happened. Some courts force waiver of res ipsa after the introduction of concrete evidence.

3. Res ipsa is a defensive tactic, it helps a π to survive a directed verdict and get to the jury4. Does not shift burden of proof from π to .5. π must show that negligence is more likely than not, and when jury’s won’t have adequate

common knowledge there is a directed verdict for the .i. Judge’s and jury’s life experiences (rarely actual data) are used in these judgments.

6. When ’s don’t offer testimony though they have relevant facts, courts can treat it as if adverse evidence was presented.

7. If the π relies on res ipsa loquitur and the has evidence that explains the cause of the accident, the jury can find against the π.

8. Res ipsa loquitur is applied to injury resulting from taking a seat on chairs, bar stools, and even bleachers.

9. “the exclusive control requirement is thus subordinated to its general purpose, that of indicating that it probably was the ’s negligence which caused the accident.”

i. Comparative fault is limited its applicationii. Usually when there are two s who are in control, such cases tend not to show

which was negligent: more information is needed (but in cases like Collins, it can be overridden)

10. RS Second §17: “If two parties have an ongoing relationship pursuant to which they share responsibility for a dangerous activity, and if an accident happens establishing the negligence of one of the two, imposing res ipsa loquitur liability on both is proper.”

F. RES IPSA LOQUITUR CASES

1. Byrne v. Boadlei. π walking down street, hit in head w/ barrelii. AUC: Don’t know (guess: unfastened barrel, drunk employee)iii. When there is an act that does not ordinarily (more often than not) occur without

negligence, the π can ask the jury to make an inference that res ipsa loquitur there was a negligent act in the exclusive control of the and without negligent acts by π or a third-party.

2. Koch v. Norris Public Power Districti. House burned down when power lines fell in clear weatherii. π may rely on res ipsa loquitur b/c power lines do not normally fall w/o fault on

behalf of the company that maintains them iii. it can be applied in the absence of a substantial, significant, probable explanation

3. Cosgrove v. Commonwealth Edison Co.i. Sparking power lines fall and a few hours later a fire occurs b/c of leaking buried

gas line—π’s are injured

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ii. Res ipsa only for gas company, there was an intervening force that created electric company’s “conduct”

iii. A ruptured gas line feeding a fire does not ordinarily occur in the absence of negligence. has superior knowledge and a duty/responsibility to explain.

4. Warren v. Jeffriesi. Car backed out of driveway and into ditch w/ kids in itii. To invoke res ipsa loquitur the π must prove that negligent conduct is more likely

than the non-negligent conduct.5. Persinger v. Step by Step Infant Development Center

i. 18-month-old fell and broke femur at daycareii. An expert’s testimony can fill the void in a case where it is not common knowledge

that the injury doesn’t usually occur w/o negligence.a. To invoke res ipsa loquitur the π does not need eliminate all of the other

possible occurrences—π must only render “less probable all inconsistent conclusions.”

6. Barbie v. Minko Construction i. Two companies had control of door frame that hit teacherii. Res ipsa loquitur is not available b/c no evidence exists demonstrating that any

particular entity or individual had exclusive control of the mullion bar.7. Giles v. City of New Haven

i. The exclusively maintained and inspected the elevator, but the π was the operator who may have been comparatively neg.

ii. Control is flexible. It is enough that the is under a duty to which he cannot delegate to another.

iii. Exclusive control can be established even though the operator used the instrumentality—it is up to the jury.

8. Collins v. Superior Air-Ground Ambulance Servicei. Elderly woman to hospital, returns 5 days later w/ broken legii. where there are only two s who had consecutive control over the π, and either one

could have caused the injuries, and both are named in the complaint, it is sufficient to raise the inference of res ipsa loquitur.

XIII. CAUSE IN FACT

A. For fourth element of negligence, the π must prove, not only that she suffered legally recognized harm, but that the harm was in the fact caused by the .

B. Causation Tests1. “But for” Test: Δ’s conduct is not a cause if event would have occurred without it RS § 432(1)

i. Multiple “But for” Causes: Δ doesn’t have to be sole “but for” cause, if two tortfeasors are “but for” causes, both are liable under Substantial Factor Test. § 439

2. Substantial Factor Test –used when “But for” test gives unsatisfactory results § 432(2)i. A breach is a substantial factor if: had it been the sole and only breach—it would

have been sufficient to cause the harm.a. Substantial factor test is reserved for cases in which the conduct of each of

two or more tortfeasors is insufficient to cause the harm.3. The Proportionate Causation Theory : the present value of the life/property at the time of the

negligent act will be the damages measured.

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4. Loss of Opportunity Doctrine : a medical malpractice form of recovery which allows a π, whose preexisting injury or illness is aggravated by the alleged negligence of a physician or a health care worker, to recover for her lost opportunity to obtain a better degree of recovery. (probably need an expert to prove)

i. as a result of ’s negligence, the π was deprived of at least a 51% chance of a more favorable outcome

ii. permits πs to submit their case to the jury if they demonstrate ’s negligence more likely than not “increased the harm” to the π or “destroyed a substantial possibility” of achieving a more favorable outcome

iii. the lost opportunity for a better outcome is, itself, the injury for which the negligently injured person may recover

5. Substantial Possibility . π recovers 100% if he had a 51% chance of living, otherwise recovers $0. (Fennell) (adopted it because less “number of errors.”)

a. threshold that the ’s negligence more likely than not “increased the harm” or “destroyed a substantial” possibility of a better outcome.

C. Multiple s1. Joint & Several Liability of 2 s

i. act in concert (2 guys carrying couch)ii. produce an indivisible harm (the drop breaks π’s foot)

a. s are joint & severally liable:b. Thereby the π would collect from whichever he chose and then let the

cross-claim for the contribution to be settled between the s.c. π cannot collect more than full damages.d. If one is insolvent (no insurance, no assets) or immune to tort liability,

under joint and several liability, the co- could get stuck with the whole bill and no opportunity for contribution

iii. Under the common law , both would be 50% liable.iv. Under joint and several liability w/ proportionate consideration , each would have to

pay the % that was their liability when they deal w/ each otherv. Proportionate Liability , at any point, the π can levy only the % of liability owed

from each vi. Unascertainable causation: when π won’t be able to prove more than 50% on

either (and achieve preponderance of the evidence), the s have the burden shifted on them—as both were negligent (Summer v. Tice)

2. Comparative Faulti. The rules in most states allow faulty parties to recover, but damages reduced in

proportion to her fault.ii. Apportionment among s: based on how negligent, each side pays for that % of

damages

D. CAUSATION IN FACT NOTES

1. In but-for cause in fact cases, the π always claims “but-for,” and the responds with “even if, I had been careful, you’d still have gotten hurt.”

2. Two persons causing separate or divisible injuries: under the but-for rule, more than one actor’s conduct can be causal, and if two injuries are separate, liability can be apportioned by causation. Each tortfeasor will be liable for the harms that tortfeasor caused and no more

3. Two persons causing a single indivisible act: If both parties are but-for causes of the π’s single injury, they are both liable.

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4. Some s not a but-for cause of all injury: If a doctor extends harm, he is only a but-for cause of the extended harm, while the original injurer is a but-for cause of both.

5. Liability w/o but-for causation: i. Respondent superior liability: the telephone co. is liable for its driver’s on-the-job

negligent driving that causes the π’s injury (vicarious liability)ii. Conspiracy or in concert cause of harm: all are liable, though only one of the

conspirators is a direct cause of the harm6. RS Third supports substantial factor test7. Increased Risk Showing Causation : When a π might be harmed for many reasons, the ’s

failure to provide a safety measure is often permitted for juries to find that the ’s negligent act or omission was a cause in fact of the π’s harm.

i. Where such a strong causal link exists, it is up to the negligent party to bring in evidence denying but-for causes and suggesting that in the actual case the wrongful conduct had not been a substantial factor.

8. When a group of persons are hunting, or using firearms, and two of them are negligent in firing in the direction of a third party who is injured thereby, both are liable for the injury suffered.

9. Causal rules are not changed, must protect the π against the loss of substantial chances. If survival = 40%, & the ’s negligence more likely than not eliminated that chance, is liable for the loss he caused—the chance.

i. In damages = 40% of the damages if liable for death. 10. A fetus’s increased risk of future harm is not a “present injury” which fetus could have brought

an action for damages against the . i. Distinguished from Dillon b/c catheter pieces in heart are a present injury.

E. CAUSATION IN FACT CASES

1. HALE V. OSTROW

I. Π WAS WALKING ON SIDEWALK, BUSHES BLOCKED, LOOKED TO STREET, FELL

ii. AUC: Failure to trim their bushes off of the blocked sidewalkiii. For cause in fact, the court must look at whether the injury would have happened

“but for” the ’s act. It is not necessary that ’s act be the sole cause of the π’s injury, only that it be a cause.

2. Salinetro v. Nystromi. Dr. did not ask if pregnant before X-ray, she would have said “no”ii. AUC: Failure to ask π if she was pregnant.iii. But for the Dr.’s failure to ask, there still would have been an X-ray—no causation

in fact.3. Landers v. East Texas Salt Water Disposal

i. Two sources at same time kill fish in lakeii. Just because two separate acts by separate parties caused an indivisible injury, the π

will not be barred from proceeding against them in court. Their wrongdoing is a merged caused and the substantial factor test (as opposed to the but-for test), is applied.

a. Substantial factor = liability, despite but-for test if both ’s actions would have been substantial enough (in the absence of the other’s actions) to have caused the harm itself.

4. Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Railwayi. Two fires merged and destroyed π’s house

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ii. Negligence cannot be barred just because two substantial factors (two fires) combine and cause indivisible damage.

5. Dillion v. Twin State Gas & Electric Companyi. Boy falls off bridge, grabs electric wires—diesii. Proportionate causation: the present value of life/property is from time of the act.

6. Summer v. Ticei. Two hunters shoot and hit member of their hunting partyii. Both were negligentiii. In cases of unascertainable causation (one of the s caused the harm, but it is

unknowable which one), the burden of proof—preponderance of the evidence (51%)—is switched to the s—joint tortfeasors are left to work out the apportionment of damages

7. Lord v. Lovetti. π was not diagnosed for spinal injury and therefore not immobilized and denied a

“better” recoveryii. Loss of chance: allows a π, whose preexisting injury or illness is aggravated by the

alleged negligence of a physician or a health care worker, to recover for her lost opportunity to obtain a better degree of recovery.

a. The π may recover for the value of the lost opportunityi. threshold that the ’s negligence more likely than not “increased the

harm” or “destroyed a substantial” possibility of a better outcome.

XIV. PROXIMATE CAUSEA. PROXIMATE CAUSE ELEMENTS

1. The is not liable unless a reasonable person in ’s circumstances should have foreseen that his conduct risked harm of the general type that occurred to a foreseeable person who is w/in the zone of danger

i. For proximate cause: under the circumstances a reasonable would have foreseen a risk of harm

ii. If a reasonable person would foresee no harm to anyone as a result of his actions we do not need to reach the proximate cause issue.

iii. Foreseeability as to who, what, when, and where is within the scope of risk.

2. Proximate Cause exceptions: (CHECK ALL)

i. Scope of Risk Rule: is only liable if the injury which occurred is within the scope of the risk he created (Medcalf) §442(a)

ii. Highly Extraordinary §435, (Palgraf)a. unusual, unexpected, unforeseen, and unforeseeable

iii. Unusual manner: the will be liable even if the manner in which the harm was brought about was unforeseeable §435 [usually pays] (Hughes)

iv. “Thin-skull”: beyond foreseeable scope of injury-liable for injuries to π w/ egg-shell conditions §461

a. s act must be one that would cause harm to a normal personi. there is liability for any thing after that harm follows even if the

subsequent harm was not foreseeableb. Or if the knew or should have known about the π’s susceptible condition

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v. Intervening Act of Third Persona. Intervening Crime/Tort : When the very thing that the negligence fails to

protect, is the act done by the intervening cause it will not be a superseding cause.

b. Intentional/criminal: liable if the criminal intervention was foreseeable and duty was to protect against harm caused §§ 442, 449

i. Criminal acts are not superseding causes if (Gaines-Tabb)1. the situation provides a temptation to which a recognizable

percentage of persons would yield2. the temptation is created at a place where persons of a

peculiarly vicious type are likely to be.ii. If the intervening agency is something so unexpected or

extraordinary as that the could not or ought not to have anticipated it, he will not be liable and certainly he is not bound to anticipate the criminal acts of others.

c. Negligent/reckless: liable if the harm foreseeable and ’s negligence increases that risk §§ 442, 447 (Derdiarian)

vi. Location a. Time & “Termination of the Risk”: no liability if π reaches a place of

apparent safety. (Pittsburgh Reduction Co.)b. Place

i. Liability if π is in a particularly vulnerable location b/c of negligence. (Deriarian).

ii. No liability if π could just have easily been in “apparently safe”/same location b/c of a non-negligent cause. (Ventricelli could have been behind his rental car loading up trunk)

B. PROXIMATE CAUSE NOTES

1. A jury question.i. It is a question of fact, but becomes a question of law when the mind of a fair and

reasonable person could reach only one conclusion.2. RS Third: “An actor’s liability is limited to those physical harms that result from the risks that

made the actor’s conduct tortious.” §293. The harm that occurred to the π must be of the “same general nature as the foreseeable risk

created by the ’s negligence.”4. The risk rule is just or, at least, logical. IF liability is imposed only for negligence and

negligence creates only a risk of harm A, then liability should be limited to harm A. Any other result would be a species of strict liability.

5. The modern Palsgraf result: The question of the limiting principle is a question of fact and deciding under the proximate cause locution. Yet, it is a foreseeability/“who”/scope of risk test that is applied. It only becomes a question of law when no reasonable person could have foreseen it.

6. Palsgraf dissent’s Negligence locution (liability for harm to an unforeseen victim): i. A person who is negligent to any class of persons is negligent to everyone who is

in fact injured7. Palsgraf dissent also argues for the practical politics test (his response to Cardozo stopping

liability w/ foreseeability—practical politics is not maintained):i. Whether there was a natural & continuous sequence between cause and effect.

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ii. Was one the substantial factor in producing the other?iii. Was there a direct connection between them, w/o too many intervening causes?iv. Is the effect of cause on result not too attenuated?v. Is the cause likely, in the usual judgment to produce the result?vi. Can by prudent foresight, it be foreseen?vii. Is the cause too remote from the cause in time and space?

8. Rescue Doctrine: Cases have generally agreed that the rescuer can recover from the whose negligence prompts the rescue. The rule includes cases in which the negligently injures or endangers himself and the π is injured in attempting a rescue.

9. Risk must be an injury or harm—do not use “splash” as a risk, use an injury: “scalding” (Schechter peeve) for assessing scope of risk Qs.

10. The Thin Skull Rule : The fact that the harm was much worse than anyone would have expected does not limit liability. The “takes the π as she is,” or whatever extra damages the π might have suffered b/c of a pre-existing condition.

i. Thin skull victim’s injuries are basically unforeseeable. The foreseeable doctrine (foreseeable person, foreseeable kind of harm) is inconsistent w/ the thin skull rule (eventual harm is unforeseeable)

11. The thin skull cases do not impose liability w/o fault, the ’s acts must have been one that would cause some harm to a normal person, or the must have been at fault b/c he knew or should have known of the π’s susceptibility to a condition.

i. The π still has the burden of proof by preponderance of evidence that the actually caused harm that aggravated pre-existing condition.

12. A broader principle: a may be liable for the full extent of a π’s harm, even where the extent of that harm was unforeseeable, where the other elements of a prima facie case are established.

13. The proximate cause of an injury is that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces an injury, and w/o which the injury would not have occurred.

i. A superseding cause breaks the casual chain.ii. An intervening act of some second tortfeasor should relieve the first tortfeasor of

liability only when the resulting harm is outside the scope of the risk negligently created by the first tortfeasor.

iii. If the intervening agency is something so unexpected or extraordinary as that the could not or ought not to have anticipated it, he will not be liable and is not bound to anticipate the criminal/tortious acts of others.

14. In determining whether intervening criminal conduct is foreseeable, and thus within the scope of the risk, courts sometimes say that the π’s burden of showing foreseeability is “heightened” or that the “foreseeability of the risk be more precisely show” in such cases.

15. Intervening criminal acts don’t waive liability when the very negligence alleged consists of exposing the injured party to the act of causing the injury.

i. i.e. leaving tenants key where rapists could obtain them16. Suicide : The traditional rule—where a π intentionally attempts to commit suicide, that act is

superseding cause, freeing from liability for negligence.i. In Delany, the purposeful act of suicide will be deemed the legal cause of a

decedent’s injury unless the ’s negligence rendered the decedent unable to appreciate the self-destructive nature of the suicidal act or is unable to resist the suicidal impulse.

ii. Restatement §45 uses a flexible test of must have special relationship w/ decedent and induce the “uncontrollable illness” through a tortious act

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C. PROXIMATE CAUSE CASES

1. Medcalf v. Washington Heights Condominium Ass’ni. Buzzer broke and tenant’s friend was criminally attacked waitingii. The harm must be within the foreseeable scope of risk created by the ’s negligent.

It is a question of fact, but becomes a question of law when the mind of a fair and reasonable person could reach only one conclusion.

2. Abrams v. City of Chicagoi. City didn’t send ambulance for pregnant woman, friend drove her to hosp., honked

through red lights, cocaine-intoxicated driver crashes into themii. When the risk could not have reasonably anticipated it is not sufficiently foreseeable.

When millions of people safely perform the act each year and the risk is not within that scope or foreseeable.

3. Palsgraf v. Long Island Railroad Co.i. Woman standing on train platform, conductor pushes man onboard and his

firework-filled box explodesii. Duty of care runs to foreseeable victims. This uses a “who test” of scope of risk:

only those who are foreseeable to be harmed can succeed on a suit for negligence. iii. Nothing in the situation to suggest to the most cautious mind that the parcel

wrapped in newspaper would spread wreckage throughout the station. iv. Dissent: Proximate cause is not a matter of foreseeability alone—it is a range of

factors of public policy, & a rough sense of justice (see practical politics above) [See the modern result of Palsgraf above]

4. Wagner v. International Railwayi. Man fell into gorge b/c of RR negligence, cousin climbed in to save himii. the rescuer can recover from the whose negligence prompts the rescue.

5. Larrimore v. American National Insurance i. Statute: don’t lay out poisons, tenant gave coffee shop rat poison, it explodedii. No negligence: the must do something beyond ignoring a statue and the π must

show that his injury was caused by harm, which it was the purpose of the statute to protect (duty to that kind of π, to protect against these kind of injuries).

6. Hughes v. Lord Advocatei. Boys kicked a lamp into manhole, burnt by explosion via vapors—not burnt via

explosion of liquid keroseneii. When the damage was foreseeable, the manner/mechanism by which it comes to

pass is an immaterial variant on the final damage.7. Doughty v. Turner Manufacturing

i. Burn by splash was the foreseeable risk, π burned by eruptionii. Almost identical to Hughes, but comes out the other way, b/c the risk of explosion

was not of the same kind as if from a splash—and therefore not foreseeable. New and unexpected (needed science to know of /foresee eruption).

8. Darby v. National Trusti. Don’t swim b/c of disease from rat poison, but the man drownsii. was not liable b/c even though Weils disease was unpleasant, it does not support

a claim for damages resulting from a quite different cause. 9. Hammerstein v. Jean Development West

i. Man twisted ankle during errant fire drill turned into bad infection b/c of his diabetesii. Thin Skull Rule: The extent of the infection on π’s leg may not have been

foreseeable but the underlying risk should have been.

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10. Delaney v. Reynoldsi. Foreseeable Risk “Accidental” gunshot woundii. Materialized Injury “Intentional” suicide by deranged GF (see above)iii. When the intervening cause is foreseeable, the causal chain of events remains intact

and the original negligence remains a proximate cause of π’s injury. 11. Gaines-Tabb v. ICI Explosives, USA, Inc.

i. sold Tim McVeigh’s partner explosive-grade fertilizerii. Criminal act was superseding b/c it was unlikely vicious people went to this

fertilizer store and only one fertilizer bomb of this kind in last 28 years, therefore it was such a slight risk that it was unforeseeable

12. Estate of Long ex. Rel. Smith v. Broadlawns Medical Centeri. An intervening force which falls squarely within the scope of the original risk will

not supersede the ’s responsibility.13. Derdiarian v. Felix Contracting

i. Negligent barrier and traffic pattern to protect Derdiarian and his enamel—driver w/ seizure (didn’t take pills) comes through barrier

ii. An intervening act may not sever liability as a superseding cause where the risk of the intervening act occurring is the very same risk, which renders the actor negligent (π was in a position of heightened danger).

14. Ventricelli v. Kinney System Rent A Cari. Trunk kept popping open, Ventricelli got out to fix it and hit from behindii. The harm was not foreseeable, under the circumstances (π was in a safe location),

for the negligent act committed by the . It falls outside of the scope of the original risk and the intervening negligence was a superseding cause.

15. Marshall v. Nugenti. π gets out of car to flag down passing cars after truck driver negligently forced π to

pull over—he is hit ii. After an act of negligence there may be a window of time when π is exposed to a

heightened state of injury. And if the injury occurs during that time, the will be found negligence, and the intervening cause will not supersede—a jury Q.

16. Pittsburgh Reduction Co. v. Hortoni. Mother knew her kid had found fireworks, kid trades them to another who blows

off handsii. The termination of risk idea emphasizes that the can reach a position of apparent

safety, b/c enough time has passed or a significant event has occurred, to break the casual connection. The liability is terminated though the fault is not.

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D. DAMAGES 1. Compensatory

i. Economic (requires a prediction of the future): judge has to predict inflation and deduct interest returns

a. Medical billsi. this included loses that have already occurred and that will probably

occur in the futureii. future monitoring costs

b. Lost income i. For adults, they use current income information and inflation

ii. For children, they use demographic and familial informationii. Non-Economic

a. Pain & suffering (including mental and emotion pain)b. Loss of enjoyment of life are inherent w/in (some courts have said the π

must be conscious to receive)c. this included loses that have already occurred and that will probably occur

in the future2. Punitive

i. Virtually all states will only authorize punitive damages only when a tortfeasor has acted maliciously or willfully or wantonly in causing injury.

a. It can add deterrence and perhaps some punishment

E. DAMAGES NOTES

1. An award of damages may be set aside as excessive or inadequate when, and not unless, it is so excessive or inadequate as to be the result of passion prejudice, mistake, or some other means not apparent in the record. If it shocks the conscience, it necessarily follows that the award was the result of the above conditions. (Holden v. Wal-Mart Stores, Inc.)

2. The theme of tort damages is that the wrongfully reduced the π’s net assets, tangible and intangible, and should be required to restore them.

3. Our main assets, as humans, are not in the form of money but in the form of good health and freedom from pain. Although pain is not quantifiable, freedom from pain has economic value.

4. There must be proof of actual harm and causation for a negligence claim to succeed even if only for nominal damages. (Right v. Breen)

5. Nominal damages are damages in name only—usually $1 or 6 cents.6. Physical Pain and Suffering: Even though there is no longer physical pain, the negative

emotional reactions are recoverable. (per diem measurement by jury)7. Money for pain and suffering is a legal fiction.

i. When the money damages have no meaning or utility to the injured person, there is not compensation. There is then no pleasure in giving it away or spending it. And for some courts, there must be “some level of awareness” in order for the π to recover.

8. Monitoring Costs: Some courts have allowed medical monitoring damages even when there was no physical harm and no emotional claim was allowed. Yet others insist on actionable physical harm before medical monitoring can be attributed to the .

9. Most damage caps are on non-pecuniary damages, which limits attorney’s fees.

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i. Typically, only a particular ’s damages are capped, but the π can recover beyond the cap from multiple parties.

10. Constitutional Challenges to Tort Caps: i. An injured π can’t be asked to reduce the burden of reducing insurance costs for

society as a wholeii. It is arbitrary to select a specific group for special attentioniii. No alt. redress or even assistance is provided for the injured π; π shoulders the

burden of others w/o a quid pro quoiv. Caps are themselves arbitrary, esp. when injuries may be quite different than those

affectedv. No showing is made that the caps will actually resolve the supposed insurance

crisis11. A number of recent cases have upheld claims that tort caps violate jury trial rights, due process,

equal protection, or that they contravened the Americans with Disabilities Act12. Abolishing Pain and Suffering Damages

i. The theory: when companies have to pay pain and suffering they pass the cost on to consumers. Yet, the consumer cannot get the product at a cheaper price by renouncing any claim to pain and suffering damages.

a. Rebut: Overall, a purchase of pain and suffering or accident insurance is cheaper than going through the tort system.

13. Punitive Damages: (Supreme Court suggested cap at 4:1 or single digits)i. Awarded only for misconduct coupled w/ a bad state of mind or at least a reckless

disregard for the rights of othersa. Punishment or retribution or deterrence

ii. Judge decides if jury can decide punitive damages. Jury decides if they should be levied and the amount & is normally allowed to hear evidence about the wealth, income and profits of a .

iii. Not per se unconstitutional.iv. Traditionally proven by preponderance of evidence.

a. Some jurisdictions moving to clear and convincing evidence.b. s must be vicariously responsible.

v. Courts sometimes say that punitive damages cannot be awarded unless the π suffers actual harm or recovers actual damages.

vi. Punitive damages should be reasonably proportional to actual damages.14. Two themes for limiting punitive damages: enhance the methods for measuring the awards or

limit the number of cases in which punitive damages can be awarded.

F. DAMAGES CASES

1. Martin v. United StatesI. Two young boys injured by negligently maintained power linesII. Courts need to determine economic damages including future economic damages,

which proves difficult. Damages for lost income will be determined by demographic and familial information. Medical damages will include future costs determined by an expert witness.

2. McDougald v. GarberI. Woman was in a permanent comatose w/ little brain function

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II. Lost enjoyments of life, or hedonistic damages, are not separate from pain and suffering damages. A π must have some level of awareness for recovery of lost enjoyment damages (inherent w/in pain & suffering).

3. State Farm Mutual Auto Insurance Co. v. Campbelli. Collusive scheme to not settle for policy holders (Court allowed inappropriate out-

of-state evidence)ii. The punitive award was neither reasonable nor proportionate to the wrong

committed. It was an irrational and arbitrary deprivation of property. And thereby violated Due Process. (Point: Const. limits on punitive exist too)

iii. Applied Gore Rule for punitive damagesa. The degree of reprehensibility of the ’s misconduct

i. Physical or economic, reckless disregard, person was financially vulnerable, repeated action, accident or not

b. Disparity between actual harm suffered and punitive damages awardedc. The difference between the punitive damages awarded by the jury and the

civil penalties authorized or imposed in comparable case.4. Philip Morris USA v. Williams

i. Woman sued cigarette company for killing her husband—$32 million punitive damages awarded

ii. The Supreme Court found that punitive damage awards based on a jury’s desire to punish a for harming non-parties violated Due Process.

XV. DEFENSES TO NEGLIGENCE

A. Defenses to Negligence

1. Plaintiff Faulti. Contributory Negligence: All or Nothing Fault Regimes: No recovery if π failed to

use ordinary care (Butterfield: π road horse too fast and hit ’s pole) a. If a third-party is injured as a result: the rider would be a superseding

intervening cause and eliminate prox. causeii. Exception:

a. has a Duty to protect π from his own negligencei. Repetitive Work (Bexiga)

ii. Bexiga Rule: You are responsible for the duty to protect people from harms that only you can protect them from. Even if they are negligent, for public policy reasons liability can be waived if there is an exclusive duty to protect idiots.

iii. if the π had no duty to exercise care to protect her/him self1. π = Child

iv. π = Disabled v. see all roles Outline, p. 43

iii. No duty: RS provides that in light of principle or policy, πs (like s) might sometimes have “no duty” to act reasonably in self-protection.

2. The Comparative Negligence Doctrine: π’s recovery is reduced by his own percentage of responsibility. (Wassell v. Adams) The choice of law has a huge effect though…

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i. Pure Comparative Fault Rule: NY Rule: The amount recoverable shall be diminished in the proportion, which the culpable conduct attributable to the claimant bears to the culpable conduct that caused the damages.

a. go strictly by the #s, π always recovers somethingb. even if π is more negligent, he can still recover

ii. Modified Comparative Fault Rule: Wis. Statute §895.045: Contributory negligence does not bar recovery if the negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributed to the person recovering

a. π > 50% π gets zerob. π ≤50% π’s damages reduced

i. North Dakota rule1. π ≥ 50% gets nothing2. π ≤ 50% reduced

3. Entitlementi. π has no duty to protect himself b/c of person autonomy (e.g. a landowner can use

his land as he pleases with out being contributory negligent—Leroy Fibre)

4. Waiver: π agreed through a K to relieve of liability (won’t sue)

5. Assumption of Risk/Reduced Duty i. Express

a. Not allowed when:i. Unconscionable

ii. Against Public Policyiii. Would allow waiver for negligent essential services (Tunkl v.

Regents of Univ. of Calif.)iv. Injury was out of scope of K (Moore v. Hartley Motors)

ii. Implieda. Primary: Traditional assumed risk rules found tacit consent when the π,

knowing of the risk and appreciating its quality, voluntarily chose to confront its inherent risks

i. ’s duty to not increase inherent risks—don’t be reckless (Avila)ii. low duty/no breach: NO recovery

b. Secondary: The π is accepting a ’s negligent when the is not behaving as a reasonably prudent person would.

i. The same as express waiver of the risk.1. It is implied though from the π’s conduct:

a. π knows of ’s negligentb. π acts voluntarily

ii. Comparative fault resultsc. Beyond Sports: For common carriers, a passenger assumes the risk of

necessary lurches, stops and starts as part of the inherent risks as part of travel (Washington Metropolitan Area Transit Authority v. Cross)

6. Criminal Activity: no recovery from harm resulting from participating in an illegal activity

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B. DEFENSE NOTES

1. Minority Rule of Contributory Negligence is all-or-nothing rule. Even minor fault on the part of the π or extreme fault on the part of (unless wanton or reckless).

2. Butterfield/contributory negligence justifications:i. The fault principle: Stinett: no liability to protect from obvious and apparent

dangersii. The proximate cause : if he hit a little girl, who then sued Forrester. Butterfield

would be an unforeseeable superseding intervening cause.iii. Negligence

3. RS (THIRD) OF TORTS, APPOINTMENT OF LIABILITY

i. §8 Factors for Assigning Shares of Responsibilityii. Assigning shares of responsibility: the fact-finder assigns comparative percentages

of responsibilitya. a general, neutral termb. fault or misconduct can be misleading

iii. Causation and the scope of liability: conduct is relevant for determining percentage shares of responsibility only when it caused the harm and when the harm is w/in the scope of the person’s liability.

iv. Factors in assigning shares of responsibility:a. How unreasonable under the circumstancesb. The extent to which the conduct failed to meet the applicable legal standardc. The circumstances surrounding the conductd. Each person’s abilities and disabilitiese. Each person’s awareness, intent or indifference w/ respect to the risksf. Comparative strength of the causal connections is:

i. the timing of each person’s conduct in causing the harmii. and a comparison of the risks created by the conduct and the actual

harm suffered by the πg. Mental-state factors may be considered for apportioning responsibility.

v. This is the prevailing viewpoint.4. Usually jury determines apportionment of responsibility, but in some cases the courts disclaim

the π’s recovery altogether on superseding grounds.i. I.e. when the π’s behavior is so bizarre or out-of-character that it is considered a

superseding cause. (see Wright below)5. Court apportionment of separate injuries : Comparative fault reductions be inappropriate when

the π and the cause separate injuries6. The Mitigation of Damages Rule: The avoidable consequences or mitigation of damages rule

traditionally requires the π to minimize her damages by reasonable efforts and expenses.i. I.e. when the π’s foot is bruised by , but she unreasonably refuses to take

antibiotics.7. Courts are generally divided on the suicide as contributory negligence issue.8. Patients who may have negligently injured themselves are nonetheless entitled to subsequent

non-negligent medical treatment & to an undiminished recovery if such subsequent treatment is negligent.

9. In contributory, a π’s disability or vulnerability might be especially important if:i. The knows of the π’s disability which prevents or inhibits the π’s care for himselfii. The π’s risky conduct endangers himself but not others.

10. The policies involved when judges limit comparative fault:i. Plaintiff incapacity: the π lacks total or partial capacity for self care

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ii. Structural safety: due to systematic differentials in knowledge, experience, or control, the can be expected to take better care of π’s safety than can the π

iii. Role definition: ’s obligation is to care for even a negligent π b/c of ’s responsibilities as a professional rescuer

iv. Process values: litigating the comparative fault defense would harm litigants, create unmanageable litigation or produce statements of relative fault where such statements are problematic

v. Fundamental values: a determination of comparative fault would encroach on fundamental, sometimes constitutional values

vi. Autonomy and self risk: π’s conduct risked only harm to self and as such receives more latitude for π’s choice

11. No duty: RS provides that in light of principle or policy, πs (like s) might sometimes have “no duty” to act reasonably in self-protection.

12. Ignore Express Assumption of the risk when:i. Unconscionable: contracts that shock the consciousii. Against public policy: it runs against the policy of the state

a. Why? No consideration (bargaining power all on one side), public needs a service, will not allow immunity from essential services to be performed non-negligently

13. To analyze a waiver: Two-prong step to take on a waiver.i. First claim is it unenforceable b/c it was an essential service where there was no

bargaining power?ii. Second prong is to interpret the contractual language to see if the injury was

covered by the release?14. RS THIRD OF TORTS: APPOINTMENT OF LIABILITY § 2

i. “In appropriate situations, the parties to a transaction should be able to agree which of them should bear the risk of injury, even when the injury is caused by a party’s legally culpable conduct. That policy is not altered or undermined by the adoption of comparative responsibility. Consequently, a valid contractual limitation on liability, w/in its terms, creates an absolute bar to a π’s recovery from the other party to the K.”

a. no apportionment allowed15. States continually use case-specific inquiry to strike down pre-injury releases on public policy

grounds (innkeepers, statutory limit, parental right to waive child’s tort rights)16. Can’t contractually waive recovery for recklessly or intentionally caused injury: would be

offensive to public policy.i. Releases in recreational activities are usually upheld as long as they are clear and

unambiguous.17. The RS’s position on implied assumption of the risk:

i. If the reasonably believes that the π has accepted the risk, the may not be negligent at all in relying on the π to achieve safety.

ii. RS recognizes a separate and complete defense based on “contractual” assumption of the risk.

18. Primary assumption of the risk : a owes no duty to protect the π from particular harms. In a sporting context, it precludes liability for injuries arising from those risks deemed inherent in the sport. (low duty/no breach)

i. ’s duty to not increase inherent risks—don’t be recklessa. Inherent risks are the obvious or inherent risks of a sport.

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ii. A π will have engaged in an activity where the has a lower standard of reasonably prudent care.

iii. This isn’t an affirmative defense, it just isn’t negligence (w/ lower duty)a. But why a lower duty of care?

i. Established, in athletic situations we apply lower standards.ii. By their very nature sports should be rowdy and aggressive.

19. Secondary Implied Assumption of the Risk: arises when the still owes a duty of care, but the π knowingly encounters the risk attendant on the ’s breach of that duty.

i. The π is accepting a ’s negligent when the is not behaving as a reasonably prudent person would.

ii. The same as express waiver of the risk.a. It is implied though from the π’s conduct.b. We determine the implied assumption from:

i. π knows of ’s negligentii. π acts voluntarily

iii. Schechter picks up a friend and is drunk. Yet, the friend knows he is drunk and still takes the ride.

a. yet, if the π needed to go to the hospital (it would not be voluntary)iv. Secondary implied assumption of the risk results in a comparative fault analysis:

secondary assumption of the risk is contributory negligence.20. If you have primary assumption of the risk no recovery.

i. If you have secondary assumption partial recovery.ii. Know there will be drunk drivers on parkway, which type?

21. Trend: “personal injury cases arising out of an athletic event must be predicated on reckless disregard for safety.”

i. Where one sports participant sues another for an injury sustained during the sport, the π must prove that the acted recklessly or worse.

22. State legislatures have begun passing statutes to protect particular groups of s. i. For example, one state has a skiing is inherently dangerous statute.

23. Primary assumption of the risk or limited duty rules are routinely applied to bar claims by spectators injured by risks inherent in the games, such as a foul ball or errant puck.

C. DEFENSE CASES

1. Butterfield v. Forresteri. π had been riding negligently through the streets and hit pole of ii. When the π is unreasonable in his conduct that led to the harm, it will be

contributory negligence and he will be barred from recovering.2. Wassell v. Adams

i. Woman let in rapist in bad neighborhood w/o checking who it was—sued motel owners for not warning or providing better security

ii. The comparative negligence doctrine: π’s recovery is reduced by his own percentage of responsibility.

iii. The comparative analysis, under Posner’s utilitarian view, uses the cost to the to avoid his AUC compared to the cost to the π to prevent the negligent act. The party with the lower cost would be more negligent—proportionally. B < PL.

a. Posner’s approach is not common. RS Third, Apportionment of Liability §8 (above) is prevailing.

3. Wright v. NYC Transit Authority

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i. By city’s negligence man got into conductor’s car—stuck his head out window in subway tunnel

ii. The π’s contributory negligence was so unpredictable and unforeseeable that it wasn’t within the scope of risk of the ’s negligence. The act was a superseding intervening cause.

a. The π’s behavior is so bizarre or out-of-character that it is not for the jury to determine the percentages of negligence, as a matter of law it is considered a superseding cause.

4. Bexiga v. Havir Manufacturing Corp.i. there were two widely-known safety devices that would have prevented boy’s

injury when doing mechanical, repetitive task jobii. A π’s contributory negligence should be ignored, for policy reasons, when ’s duty

was to protect π from this very negligence. It would be anomalous to hold that the has a duty to install safety devices but a breach of that duty results in no liability for the very injury the duty was meant to protect against.

iii. Bexiga may stand for you are responsible for the duty to protect people from harms that only you can protect them from.

a. It is a good deterrence public policy to require manufacturers to make harm-proof machines to protect idiots.

5. Christensen v. Royal School District No. 160i. π, a student, was sexually abused by a teacher—principal was able to be suedii. A π can’t be comparatively negligent if the π had no duty to exercise care to protect

her/him self. A child lacks the capacity to consent to the sexual abuse and is under no duty to protect himself or herself from being abused.

6. Leroy Fibre v. Chicago, Milwaukee & St. Paul Railway i. π kept flax by train tracksii. In instances, a π has a right or entitlement to engage in certain activities w/o being

held contributory negligent.7. Tunkl v. Regents of the University of California

i. Tunkl signed an agreed with the hospital owned by the , absolving its employees “from any and all liability for the negligent or wrongful acts or omission of its employees”

ii. When a service is essential and there is no bargaining power on the part of the π, then the waiver will be found void as to public policy.

8. Moore v. Hartley Motorsi. Took the ATV training class but hit a bump on course and injured after signing

express consent formii. When there is no essential service, the π can look to the language of the contract

and determine whether the release covered that harm.9. Avila v. Citrus Community College District

i. Avila was beamed in a gameii. In sports and recreational activities, there is a primary implied assumption of the

risk by the π. In these instances, the ’s duty is to not increase the inherent risks [don’t be reckless]. Low duty/No Breach.

a. Inherent risks are the obvious or inherent risks of a sport.b. It is not an affirmative defense, it just establishes a lower duty of care

making it harder to prove negligent.

XVI. DUTY TO PROTECT FROM THIRD PARTY HARM ELEMENTS

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A. Duty to protect against third parties? [relationship + foreseeability = duty]1. Triangular relationship: — Third Party Creating Substantial Harm — π (ultimate victim)

B. Relationship 1. Relationship with π

i. Landownersa. Duty to invitees (e.g. stores have a duty to protect customers from

foreseeable criminal acts, Posecai, and to tenants)b. NO DUTY to licensees/trespassers

ii. Custodial Relationships (e.g. teacher-student Marquay)iii. RS Relationships:

a. common carrier—passenger (§314)b. innkeeper—guestc. business invitor—inviteed. voluntary custodian—protectee

i. employer-employee (§314B)ii. school-student (RS Third)

iii. landlord-tenante. K between parties (case law)f. statute regulating their dealings,g. the superior knowledge of one of them, h. international law

2. Relationship with dangerous personi. Psychotherapist: duty to warn foreseeable specifically-named victims from patient

(Tarasoff)ii. Negligent Entrustment: results when an owner, having knowledge of person’s

incompetency, or recklessness, entrusts a dangerous object (car, gun, alcohol) to another with permission to use it. Owner must have constructive knowledge to be liable to V.

iii. Parents: duty to control child if she knows or has reason to know of a specific dangerous habit.

iv. Bars/Dram Shops: The DUTY for ALCOHOL providers:a. Not to serve people who is intoxicatedb. Not to serve minors

C. Foreseeability1. Specific Harm Test (old approach): only a duty if aware of a specific imminent harm2. Totality of Circumstances Test (majority): looks at nature, condition, location of land, prior

incidents, crime in surrounding area, broad standard. i. Some Courts: duty where harm is either imminent or when some physical

altercation has already begun on the premises.3. Balancing Test (minority): court balances the foreseeability and gravity of harm against burden

to decide if there is a duty. Higher the degree of foreseeability, the larger the burden. P < BLi. Schechter sees this as merging duty and breach and as a policy decision to protect

businesses from liability.a. Duty is a question of law; breach is a question of fact.

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4. Other factors to consider: known character, past conduct, tendencies of person whose intentional conduct causes the harm, temptation/opportunity situation affords him, gravity of threatened harm, possibility another will assume responsibility, burden of precautions

D. DUTY TO PROTECT FROM THIRD PARTY HARM NOTES

1. Restatement § 314: No duty to affirmatively protect another from criminal harm, absent one of the special relationships:

i. common carrier—passengerii. innkeeper—guestiii. business invitor—inviteeiv. voluntary custodian—protectee

a. When there is one of these relationships and a reasonably foreseeable risk of physical harm arises w/in the scope of that relationship, there is a duty to exercise reasonable care to protect from such risk or to render first aid when he knows they need it.

v. Third Restatement § 40 adds special relationships:a. employer-employeeb. school-studentc. landlord-tenantd. “business or other possessor of land that holds its premises open to the

public w/ those are lawfully on the premises” (alteration)2. RS § 314B recognizes employer-employee duty, but only if the employee comes into a position

of imminent danger and the employer knows iti. Risk must arise w/in the scope of the employment relationship

3. Relationship might also arise from: i. K between partiesii. statute regulating their dealings,iii. the superior knowledge of one of them, iv. international law.

4. Four Foreseeability Creating Duty Approaches for Businessesi. Only when there knowledge of an imminent dangerii. Prior similar incidentsiii. Totality of the circumstances (Majority Approach)

a. Factors: nature, condition, and location as well as other relevant factors weighing on foreseeability

iv. Balancing Test (Poseci)v. Some recent cases also find a duty: where harm is either imminent or when some

physical altercation has already begun on the premises.5. In Stewart v. Federated Dept. Stores, liability upon a retail store for murder of a customer in

parking garage b/c the unguarded garaged, consistently filled w/ customers laden w/ packages, was an “invitation to violence.”

6. In LAC v. Ward Parkway Shopping Center, the π raped in shopping mall. Mont. S.C. held “foreseeability does not require identical crimes in identical locations.”

7. Employers (including school districts) are normally liable for the torts of their employees, provided the torts are committed w/in the scope of their employment.

i. If employee is acting for purely personal reason, the liability is doubtful.8. Colleges: courts have generally refused to impose upon universities any duty to protect or

guide new students w/ respect to the pleasures and dangers of sex, alcohol, drugs, or even, over-study.

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9. Landlords: In Funchess v. Cecil Newman Corp., court did not impose liability on landlord for non-working intercom as landlord was not in position to protect and the installation of security device did not create a duty.

i. Yet, in Kline v. 1500 Mass. Ave. Apt. Complex, -landlord owed a duty of care to protect his tenants from attacks by third persons based on standard of care when π moved in.

a. If the lessor brings in dangerous third persons as tenants or visitors to tenants, the case is easy for imposing a duty.

b. Many cases impose a duty of reasonable care on landlords to maintain common areas in a reasonably safe condition for tenants.

c. A duty of care is owed to tenant’s guest to protect from attacks in common areas, in some states.

10. Parents: liable only for failing to control some specific dangerous habit of a child of which the parent knows or should know in the exercise of reasonable care. Just b/c child is “rough” does not establish liability.

i. π must show more than a parent’s general notice of child’s dangerous propensity. A π must show that the parent had reason to know w/ some specificity of a present opportunity and need to restrain the child to prevent some imminently foreseeable harm.

11. In Eisel v. Board of Education of Montgomery County, the court held that public school counselors in Md. were under a duty to use reasonable means to attempt to prevent the suicide of a student once they were on notice of suicidal intent.

12. AIDS: Doctors, health care providers, blood suppliers may be prohibited from revealing that a person AIDS or even that he has a risk: do not have a duty to let sexual partners or needle-buddies know.

13. Drs: NY has held that a physician owes a non-patient no duty of care unless the physician’s treatment of that patient is the cause of the non-patient harm.

a. Duty to inform family if give one member polio vaccine.b. No duty to inform if a family member has hepatitis C.

14. Negligent Entrustment: a person in control of a chattel owes a responsibility not to entrust that chattel to a person whom the entruster knows or should know is apt to use it in a dangerous way.

i. Once that duty of care is imposed, the negligent entrustment case is just like any other negligence case—same elements.

a. i.e. lending a drunk neighbor your car keysii. Most cases involve products that could be operated by the entrustee, such as cars,

guns, cigarette lighters, & alcoholiii. A negligent entruster may be liable not only to third persons injured by the

entrustee, but also to the entrustee himself.15. In Vince v. Wislon, the court held that the π, injured in an accident w/ an incompetent driver,

stated a claim against the driver’s great aunt who provided money to buy the car knowing that her grand nephew was substance abuser who had failed the driver’s test many times.

16. In West v. East Tenn. Pioneer Oil, the court held that a convenience store could be held liable on a negligent entrustment theory when its clerk sold gasoline to a clearly intoxicated motorist and helped pump the gas.

E. DUTY TO PROTECT FROM THIRD PARTY HARM CASES

1. Iseberg v. Grossi. Attorney-client relationship; third-party/ex. bus. partner threatened to kill

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ii. An affirmative duty to warn or protect against the criminal conduct of a third party may be imposed on one for the benefit of another only if a special relationship exists between them.

2. Posecai v. Wal*Mart Stores, Inc.i. Wearing $19,000 in jewels to the Wal*Mart parking lotii. Accepts Balancing Test: address the interests of both business proprietors and their

customers by balancing the foreseeability of harm against the burden of imposing a duty to protect against the criminal acts of third persons. (B < PL)

a. The foreseeability of the harm and the gravity of harm must be balanced against the commensurate burden imposed on the business to protect against the harm. Rarely applied w/o prior incidents.

b. Schechter sees this as merging duty and breach and as a policy decision to protect businesses from liability.

i. Duty is a question of law; breach is a question of fact.3. Marquay v. Eno

i. Students were being sexually abused by teachersii. Employees who share such a in loco parentis relationship (supervisory

relationship) and,a. acquire actual knowledge of abuse (or who learn of facts which would lead

a reasonable person to conclude abuse) b. are subject to liability if their level of supervision is unreasonable and is a

proximate cause of a student’s injury.iii. Limited to periods when parental protection is compromised

4. Reichert v. Atleri. A deadly and somewhat predictable Western/showdown/bar fightii. The court held that the negligent failure of the bar owners to protect the decedent

from foreseeable harm should have been compared to the actions of the assailant and held that the bar owners were liable only for their proportionate fault.

iii. Proprietor, who holds out his business for public entry, is subject to liability to guests who are upon the premises and who are injured by the harmful acts of third persons if, by the exercise of reasonable care, the proprietor could have discovered that such acts were being/about to be done, and could have protected against the injury by controlling the conduct of the other patron.

5. Tarasoff v. Regents of University of Californiai. Distinguished: patient specifically named the victimii. The therapist need only exercise that reasonable degree of skill, knowledge and

care ordinarily possessed and exercised by members of that professional specialty under similar circumstances.

a. Creates a duty to rescue for psychotherapist: No privilege for patient confidentiality if psychotherapist has reason to believe that patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and disclosure is necessary to prevent the threatened danger.

iii. In Hedlund v. Superior Court of Orange County, Tarasoff was expanded to the victim’s son, who was emotionally upset at seeing his mother attacked.

6. Brigance v. Velvet Dove Restauranti. One who sells intoxicating beverages on the premises for consumption has a duty

to exercise reasonable care not to sell liquor to a noticeably intoxicated person. It is not unreasonable for the tavern owner to foresee the unreasonable risk of harm to

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others who may be injured by such person’s impairment ability to operate an automobile.

XVII.LOSS OF CONSORTIUM

A. Loss of spouse’s (or very limited certain other family members’):1. Services done at home2. Loss of society (means you must show the meaningfulness of your relationship)3. Loss of sex (must show physical relationship)

B. When one spouse is injured in a way that tends to diminish the ability of the partners to take pleasure in each other’s company—in conversation, sports, travel, sexual relations, or any other pleasure of life—the other spouse has a loss-of-consortium claim.

C. The concern of allowing this is always increased liability (insurance).

D. Sometimes parental consortium (Ferriter v. Daniel O’Connell’s Sons)1. Sometimes child consortium (more for their work, than society) (Boucher—denied)2. Furthest seems to be Grandparents

E. LOSS OF CONSORTIUM NOTES

1. Consortium claims are traditionally said to derive from the claim of the physically injured spouse. Can’t recover more than claim from which it is derived.

i. The contributory negligence of the injured spouse will bar or reduce the consortium claim just as it will bar or reduce the injured spouse’s claim.

2. Parents of an injured child have not generally been allowed to recover for intangible harm such as loss of society or companionship.

3. Until ’94, courts pretty consistently rejected consortium claims by unmarried consorts, some courts now allow such claims

i. In Calif., by statute, domestic parents are entitled to recover damages for negligent infliction of emotional distress to the same extent that spouses are entitled to do so.

a. Usually of the same sex, though4. Animals: Courts have generally rejected emotional distress liability based upon either breach

of K or negligent damage to property. There is not liability for emotional damage for almost or actually killing an animal.

5. Meledy was an institutional competency rationale: Ill. abolished common law marriage so therefore the court cannot recreate an element of it via tort liability.

i. Judicial administrability concern—how long do people have to be living together to allow such a claim?

a. Well that’s what court’s are there for.i. Rebut w/ example: for consortium you need to show marriage, loss

of service, and the meaningfulness of your relationship (productive physical relationship and enjoyed their company so that it is loss of society)

F. LOSS OF CONSORTIUM CASES

1. Medley v. Strongi. Penis amputation

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ii. The unmarried cohabitant has available all claims other than those specifically-based on marriage. The court does not want to extend the liability so far and create “foreseeable plaintiffs” theory in the way the π suggests.

2. Boucher v. Dixie Medical Centeri. Denied parent’s consortium claim for adult child who suffered negligent brain

damage. The fear was increased liability and inability to get insurance. a. But Utah had no spousal loss of consortium claim, yet it did have child loss

of consortium claim.3. Ferriter v. Daniel O’Connell’s Sons

i. Allowed loss of parental consortium claim in 1980.ii. Courts are split.

XVIII. IMPUTED NEGLIGENCE/VICARIOUS LIABILITY

A. Respondeat Superior: Vicarious Liability: a limited form of strict liability in which one person or entity is held legally responsible for the fault-based torts of another. 1. Goals of Vicarious Liability (policy)

I. prevention of future injuriesII. assurance of compensation to victimsIII.equitable spreading of losses caused by an enterprise

B. General Rule: Employers are liable for the torts of their employees committed within the scope of employment.

a.       Rationale: Spread foreseeable risks as a cost of doing business; compensate innocent π; encourage safety

b.      Factors to determine whether Ee is acting w/in scope of employment:(1)   Ee furthering the enterprise of Er(2)   Er exercising control over Ee

c.       Fruit v. Schreiner: Guy @ mandatory conference where he was encouraged to mingle w/ other participants.  He is driving back from a bar @ 2am, and hits a car.  Held: Δ was acting w/in the scope of his employment.  Δ’s co would benefit from Δ’s activities and they took the risk by telling their Ees to socialize. (1)   Ct may also be attempting to spread the risk through insurance—compensate the

injured victim and make businesses buy insurance to cover their risk of doing business.2.      Exceptions:

a.       Coming and Going Rule: Employer not liable for Ees coming and going from work(1)   Lundberg v. State: Husband killed while driving to worksite 80 miles away.  Held: Er

not liable when Ee is coming and going from work—even if in furtherance of work.(a)    Minority/dissent: If travel is job-related + creates a risk to others, maybe it should

be covered.b.      Frolic and Detour Rule: Not liable if Ee on frolic and detour (i.e. not work-related).c.       Intentional torts: Er generally not liable for intentional torts of Ees

(1)   Rationale: Generally unforeseeble(2)   Exceptions: If Er is put on notice; injury is FORESEEABLE (e.g. prior activities of the

Ee)(a)    e.g. Bar owner knowingly hires an overly-aggressive bouncer with a history of

violent behavior.

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3.      Distinguishing vicarious liability from primary liabilitya.       Respondeat Superior liability: Negligence of Ee imputed to Erb.      Primary Liability: Er engages in negligent conduct/does something wrong.

(1)   e.g. If a bus co hires a person w/ bad driving record who hits car.  The bus also has poorly maintained brakes.  The bus co is primarily liable for negligently hiring a bad bus driver and for not maintaining brakes.

(2)   e.g. π sexually assaulted in group home.  Er primarily liable for negligently hiring that Ee and not sticking to regulations.  Er vicariously liable for actions of Ee. 

B.     Independent Contractors1.      General Rule: Employers not liable for the torts of independent K

a.       Murrel v. Goertz: G was an independent contractor who made monthly collection for Δ publisher.  G was in an argument with π, and hit π.  π injured and sought damages.  Held: Publishing co (Δ) had no control or contact w/ G over the physical details of the work. (1)   Test: the amount of control Δ has over worker(2)   Criticism: Are corporations escaping liability by contracting out work?  Er getting

financial benefit while creating a risk to the public.2.      24 exceptions to the rule (evolving area of law)

a.       Maloney v. Rath: Δ’s car collides w/ car driven by π.  Accident caused when Δ’s brakes failed.  Δ’s mechanic had negligently fixed Δ’s brakes.  Who is liable?  Held: Independent contractor will be held liable if a dangerous instrumentality is involved in order for the π to recover (Rest.).  However, here, also a statutory duty to keep brakes in good repair & independent contractor’s negligence is NOT a defense, so Δ is liable.  BUT…Δ can then indemnify mechanic. (1)   This is NOT strict liability.  π must still prove that someone was negligent.

C.     Joint Enterprise1.      4 elements:

a.       Agreement: Express or implied among members of groupb.      Common purpose carried out by groupc.       Community of pecuniary interest in that purposed.      Equal right of control of enterprise by all members

2.      Popejoy v. Steinle: Mother and daughter driving to get a calf.  On the way, they hit π.  Mother is killed.  π later experiences pain and attempts to collect from the now-dead husband’s estate on a theory that the husband and wife were furthering a joint enterprise by getting the calf.  Held: Husband not liable b/c π failed to demonstrate that the husband had any pecuniary interest to the calf.  The calf was to be raised by the daughter, and all profits would be given to her.

D.     Bailments: Renting/lending someone use of something1.      Majority: No liability to lender unless negligently entrust another with his property.  Not

liable for the torts of the borrower.a.       Negligent entrustment = primary liability

(1) e.g. giving your keys to a drunkb.      Exception: Statutory liability

(1)   Shuck v. Means: π injured when car was rented from Hertz to C, but driven by M.  Held: Hertz is liable b/c Minn. Vehicle Code: “Owner is liable for accidents if car loaned to someone.”(a)    Rationale: Encourage owners to obtain insurance, and also encourage over-

insurance b/c car renters are aware that renters will violate the rental agreement.

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