Torts

Chapter 1: -5 major purposes of tort law 1. Provide a peaceful way for people to settle matters without taking law into their own hands 2. Deter wrongful conduct 3. Encourage socially responsible behavior 4. Restore injured parties to their original condition by compensating them for their injury 5. Prove individual rights of redress (seek compensation) -Historical origins are unclear -Actual intent and actual personal culpability -Began as a way to impose liability on those who cause harm -evolved into accepting of moral stands as the basis of liability -Courts not always interested in moral responsibility of defendant, rather keeping peace between individuals by offering an alternative outlet The thought of man shall not be tried, for the devil himself knoweth not the thought of man In all civil acts the law doth no so much regard the intent of the actor, as the loss and damage of the party suffering. -Law has changed -Used to be issuance of writs to bring defendant to court -King would have to order the writ -Genesis of tort law are 1. Writ of trespass -Criminal character, royal courts assumed jurisdiction over breaches of Kings peace -Not only punishment for crime, but also compensation to plaintiff -Prison or pay a fine 2. Writ of trespass on the case, action on the case -appealing to Chancellor for special writ if current writs didnt cover crime -was the main cause of tort law -Trespass dealt with direct and forcible injuries -Case dealt with other tangible injuries to person or property (almost secondary) -Trespass required no proof because criminal conduct of invading plaintiffs rights was a tort -Case required proof

-In modern law there is a requirement to prove damages except in: assault, offensive but harmless battery, false imprisonment, and trespass to land Hulle v. Orynge (1466) -Must repay damages even if doing a lawful activity and something happens that you did not mean to happen Eg. House damages neighbors house, stick hurts bystander why defending yourself Weaver v. Ward (1616) -Blurs the line between trespass and action -Have to have felonious mind in order to be a felony, but could still be trespass Brown v. Kendall (1850 Mass Supreme Court) Facts: dog fight, defendant picks up stick to break up fight and injures plaintiff -Trial judge said only ordinary care was needed if it was a duty to break up dog fight, but if it was a proper and permissible act then extraordinary care must have been used -Jury returned verdict for plaintiff, defendant alleged exceptions Issue: Is an unintentional act considered trespass? If so to what extent is he liable? Rule: Action is trespass if it is vi et armis (force of arms), action on the case if the action results on secondary result -Plaintiff must prove either intention was unlawful or defendant was in fault (injury was avoidable and conduct of defendant is not free from blame) -Ordinary care is not definable, It is that kind and degree of care which prudent and cautious men would use, such as is required by the exigency of the case, and such as is necessary to guard against probable danger.

Application: Reasoning: Must determine how responsible the defendant is in an action that is unintentional. -If damage is of immediate effect of defendant then force of arms applies trespass -If consequential than case -Dicta is not law, but we think that direct act of force is sufficient to maintain an action of trespass, whether the act was lawful or unlawful, neither willful, intentional, or careless -Applying previous to case defendant should be ok if both were using ordinary care, plaintiff was not, or neither were -Would be an accident if defendant used ordinary care and it was a duty

-Would be liable if not a duty and did not use extraordinary care, defendant must prove he was Cohen v. Petty (1933, Court of Appeals of DC) Facts: Plaintiff was riding in defendants car and claimed he did not use reasonable care and drove recklessly and in excessive rate of speed and crashed into embankment. Plaintiff received permanent injuries, trial judge directed verdict and plaintiff appeals. 4 witness, plaintiff and her sister and defendant and his wife. Plaintiffs got thrown out of vehicle. Speed 35-45mph. Wife said to defendant whats wrong because he felt sick. Plain tiff did not see what happened before crash. Wife said husband said oh, Tree (Teresa), I feel sick and he fainted. He ate late breakfast, no lunch, no history of fainting, and felt fine until it happened. Issue: Was trail court justified in taking case from jury? Application: Reason: Sudden illness cant be used against a person and no evidence of history of fainting Lovert v. Pack: defendant knocks into driver seat and causes crash, not liable because act not with volition Bushnell v Bushnell: falling asleep at the wheel is negligence unless sudden Kohler v. Sheffert: Being unconscious at time of crash does not excuse prior negligence Eleason v. Western Casualty and Surety Co: liable if history of illness (seizure Moore v. Capital Transit Co.: no liability if no history Spano v. Perini Corp. (Court of Appeals of New York, 1969)
Facts: Spano owned a garage that was wrecked by blast. Davis owned a vehicle contained within Spanos garage, and subsequently suffered damage from the blast. Perini Corporation, joint defendants, were engaged in building a tunnel under contract with New York City, using blasting operations. Issue: Whether a person, who has sustained property damage, caused by nearby blasting, can maintain an action for damages without a showing that the blasting company was negligent? Rule: Yes Application: Blasters are liable for damages they cause blaster is absolutely liable for any damages he causes, with or without trespass Intentional setting off explosives * * *, blasting, in an area in which it was likely to cause harm to neighboring property similarly results in absolute liability. One who engages in blasting must assume responsibility, and be liable without fault, for any injury caused therein.

Rule: Court rejects Booth and utilized Hays v Cohoes Co., and Heeg v Licht. The rule which exonerates a party engaged in a lawful business, when free from negligence, has no application. The blasting company has the right to blast, and the property owner has the right to undisturbed possession. When in conflict the former must yield to the latter, as the more important of the two. Trespass has been a cause of action, whether an injury occurred or not, for damages. Punitive damages are awarded even in the absence of actual damages. Chapter 2 Garratt v. Daily (1955) Facts: Plaintiff Ruth Garratt claims that defendant Brian Dailey deliberately pulled a chair out from under her and resulting in a broken hip. Defendant claims that he took the chair and tried to put it back when he saw she wanted to sit. Trial court only listened to testimony of Brian and claimed he did not have any willful or unlawful purpose and did not have any intent to injure the plaintiff, or any intent to bring about any unauthorized or offensive contact with her person, Brian Dailey did not have purpose, or design to perform a prank or to effect an assault and battery upon the person of the plaintiff. Plaintiff appeals seeking payment or new trial. Issue: Is a person liable for battery when they do not have intent to cause injury? Rule: Battery: intentional infliction of a harmful bodily contact upon another -Section 3.a "It is not enough that the act itself is intentionally done and this, even though the actor realizes or should realize that it contains a very grave risk of bringing about the contact or apprehension. Such realization may make the actor's conduct negligent or even reckless but unless he realizes that to a substantial certainty, the contact or apprehension will result, the actor has not that intention which is necessary to make him liable under the rule stated in this Section." Not enough to just have intent, there must be a known certainty that the act will bring about harm Application: If Brian knew that his action would cause harm, even if his intent was not to harm then he would liable. If Brian did not have knowledge of the possible results of his action then he is not liable. Conclussion: Under the facts presented Brian was not guilty, but the court requested the lower court to reinvestigate the situation and if it found otherwise than previously believed it should be reversed. Person should have known that something could happen but did not foresee the result. Would be held responsible How young a child would you consider of this type of intent?

Spivey v. Battaglia (Florida SC 1972) Facts: Battaglia teased plaintiff Spivey by grabbing her around her neck and giving her hug that resulted in sharp pains and the paralyzing of the left side of her face. Battaglia is sued for negligence and assault and battery. Battaglia believes his actions were assault and battery and the case cant be tried because of statute of limitations for A and B is 2 years. District court agrees with Battaglia. Spiveys appeal

Issue: Can the case be tried on the grounds of negligence? Rule: Where a reasonable man would believe that a particular result was substantially certain to follow, he will be held in the eyes of the law as though he had intended it. It would thus be an assault. Application: The law does not care if one intends to cause harm with regards to assault. It is concerned with if an ordinary person would be certain that an injury would result from an action, not just a foreseeable risk. Most people in Battaglias spot would not think that their action would result in somebody getting paralyzed. Conclusion: Battaglia might not have committed an assault, but under the definition of negligence he could be liable. Court rules in favor Spivey. Would seem crazy that person would admit to crime, except that there is a statute of limitations Statute applies from time of accident, for example a car crash -What about if there is continued pain after a surgery and another doctor finds a surgical tool inside -Race locator, ordinary doctor would not have left it, reasonable person would not have discovered it but would know something is wrong and goes to new doctor who finds it -If no sense of origin than there could be an extension of time of discovery -If not a valid reason than case cant be brought forward Not an intentional tort teasor in case of Battaglia McGuire v. Almy If plaintiff had not gone into the room and the insane person had injured themselves there might be a course of action against the nurse because her duty was to protect the patient from harming herself. -Failure to act when there is a duty to act is negligence If a passerby hears a scream and rushes in and gets hit. He may not have a duty. Public policy of holding her liable for hitting because the consequences would be dire. Mentally deranged would walk the streets because no incentive to keep them from hitting people. Ranson v. Kitner (Appeallate Court of Illinois 1889) Appellants were hunting wolves and accidently killed Appellees dog because it was similar looking. Still liable for the wrongful death. Even though their actions were in good faith, still have to pay for their damages. 8/29 Vocab Plaintiff dismissed: no cause of action Directed verdict: No question of fact for jury to decide, one side has prevailed without question -Judge tells Jury how to decide case -Appellate court cant reinstate judgment because no Jury, must send it back JNOV: Judgment not withstanding verdict: when judge does not think a reasonable person could have came to the conclusion that the Jury did

-Appellate court can reinstate the judgment of jury Remand for Reversed and remanded: Majority: Concurrence: Dissent: Action on trespass Trespass to chattels: personal property (goods) of an individual Ransom v. Kittner: shooting a dog instead of wolf\ -D claimed mistake, but that was all he claimed -He should have claimed that he intentionally shot the blurred the object but I did so because it was coming towards him and he thought there was rabid wolf around. He had no choice but to shoot bc there was not enough time to investigate. Trespass to land Damages: Nominal: May have a case that only seeks to establish something like property lines, or vindicate name Compensatory: Must pay for the loss that the plaintiff has suffered -Future of life is what determines what the damages are -Old and sick is worth less than young and bright Punitive Damages: punish the Defendant Exemplary: Make example of a defendant to deter other tortfeasors Intent: Not the legal injury that plaintiff suffered -Its the necessary intent to commit tort For Garret v. Daily: the ability to forsee that if he pulled the chair from under her than he should have seen that if she fell it would have been an unpermitted contact with her body and ground. What if it was a running game? -Almost like P is giving consent -Not to injure No bad motive Remittur: Judge said the payment is to large and wants to lower the amount Addictur: Judge wants to add more and D can accept or have new trial

P has to prove against D -Elements of the cause of action If D did not make any defense -In civil law can be found guilty of tort with unloaded gun, in criminal law there would not be a verdict if it can be proved

Western Union Telegraph Co. v. Hill (Court of Appeals, Alabama, 1933)

-Name of case changes in some jurisdictions when the defendant is seeking the appeal and get listed first Respondeat Superior: In certain circumstances an employer will be held liable for the torts committed by an employee in the scope of their employment -some say the earliest form of enterprise liability -Deeper pocket: so long as employee was in scope of employment, his employer can be held liable, even if they werent involved -Western Union can be held liable, even though they did not commit the offensive -This is called vicarious liability -Actual negligence would be if employers action leads to the tort -Western Union did not run background checks -On a frolic: when the employee did not act within the scope of his employment, could only sue the person who committed the crime -Hypo: Bus driver leaves route and gets into accident, he was not following procedure and company cant be held liable -Bus driver follows route and hits a passenger who acts for change because so many do and rules state no change -Bus company is liable because he thinks he is furthering the business goals Why can the company be held liable if lets say the Bus Company has no neglegance, (ie., background checks, no history of attacks, customer first policy)? -If liability was not imposed on employer than there would be no reason to do background checks. -Seems unfair if the company is not negligent -Duty imposed on company to insure safe bus -Why should the company still be held liable? -No matter how careful the hiring process is or safeguards are the company engaged in the business knowing that there is a risk that an employee will commit a tort -Can factor in the risk of accidents into the cost of its good or service -Can spread the loss over the population using the good or service -Increase the price of the good so that the company will have the ability to cover a tort -rainy day fund -Why should passenger who is not being negligent be unable to recover because the defendant would be unable to pay (bus driver) -Could be difference between products and services -A company that does everything to prevent these incidents should not be held liable for uncontrollable human factor -If too many costs put onto products perhaps it would become too expensive for buyers -Company cant remain in business if they cant meet the requirements -Could have a negative impact -There is insurance for companies -Premises Liability: Business invitee is owed the highest level of experience, Hill had a valid reason for visiting the Western Union shop bc her clock was broken

Facts: Sapp a worker attempted to grab Plaintiff when she came in to get her clock fixed. He also asked her to come behind the counter so he could pet her and love her and would fix her clock. Jury ruled in favor of plaintiff and d appeals. Issue: Did the defendant commit an assault? Can the company be held liable for the actions of the employee? Rule: Assault is an unlawful attempt to commit a battery, incomplete by reason of some intervening cause. An action that creates a state of impending fear for the plaintiff that a battery will take place, unless something prevents it. Application: The physical situation in which the assault took place tend to indicate that it would have been difficult for Sapp to reach the plaintiff because of the size of the counter. If there was no counter than it would have been possible for him to reach her. Conclusion: This was a battery because if it was not for the counter Sapp would have reached the plaintiff. Wallace v. Rosen (Court of Appeals of Indiana, 2002) Wallace v. Rosen (2002) Facts: Wallace was delivering homework to her daughter at her high school and was talking to her and her friends when there was a fire drill. A week before there was a real fire and this drill was unannounced. Rosen was not sure if it was a real fire or not, but had reason to have heightened duty. Rosen saw people standing together at the top of the stairs and blocking the way for students. She tried to get her attention to get her to move and had to touch her back to convey the message because of the noise. Wallace claims she was pushed, slipped, and fell down the stairs. Wallace submitted instructions for civil battery, but judge rejected it. Hypo: Wallace is not a parent and visiting the school, no permission. What if she isnt blocking the staircase? What if there was no history of fires and drill was planned. What if D was not a teacher but a bystander? Procedural History: Wallace submitted instructions for civil battery, but judge rejected it. Court ruled in favor of school and Rosen on negligence count. Wallace appealed. (page 632 note 2) Issue: Can recklessness and negligence (doesnt matter if person didnt mean to cause harm, reasonable man consequences) be factored into a battery charge? Rule: the Indiana pattern Jury Instruction for the intentional tort of civil battery is: the knowing or intentional touching of a person against their will in a rude, insolent, or angry manner. There is a difference between negligence and intent -The line has to be drawn by the courts at the point where the known danger ceases to be only a foreseeable risk which a reasonable person would avoid and becomes in the actor a substantial certainty. Application: For battery to be an appropriate instruction there has to be evidence that Rosen touched Wallace in a rude, insolent, or angry manner, not that she intentionally touched her. There is a level of consent to contact in the world. In certain arenas there will be contact made that is ordinary contacts which are customary and reasonably necessary o the common intercourse of life. The test is what would be offensive to an ordinary person, not unduly sensitive as to personal dignity.

The situation on the stairwell would be considered a crowded world. It is reasonable for people who stand and block a stairwell during a fire drill to expect some contact. Rosen had a responsibility to her students to make sure they could exit the building. Her contact with Wallace cant be said to have been done in a rude, insolent, or angry manner. Conclusion: Battery requires the intent of action. There are situations in which a person should be expected to receive contact and in certain situations contact might even be necessary. Restatement of Torts (2nd 1965) 13 Battery: Harmful Contact An actor is liable for battery if (a): actor intends to cause a harmful of offensive contact with another person, or an imminent apprehension of a contact (b): harmful with the person directly or indirectly occurs 18 Battery: Offensive Contact 1. An actor is liable for battery if (a): actor intends to cause a harmful of offensive contact with another person, or an imminent apprehension of a contact (b): harmful with the person directly or indirectly occurs 2. An act which is not done with intention states in (1, a) does not make the actor liable to the other for a mere offensive contact with the others person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm This is a complicated definition because it depends on what offensive and intent means Garret v. Daily: definition of intent McGurie v. Alamay: insane still held liable for battery Vosburg v. Putney: egg shell plaintiff theory, take the plaintiff as you find them -Once you establish that an individual is a tort feasor, you can hold them liable if what they did cause the damage Hypo: Spivey v. Battigla, instead of peralysis the person has an aneurysm, they are liable if it brings it about If you committed a battery (unpermitted and offensive contact with the body) than why are you held liable? -Defends against violating the bodily autonomy -Even if the victim has a condition that the defendant did not know about, the injuries from the contact are a result of violating the Ds bodily autonomy Hypo: If a person is germaphobe and somebody shakes their hand in a receiving line and the P suffers emotional distress can they recover? -Probably not because there was no physical harm Fisher v. Carrousel Motor Hotel, Inc. ( Texas Supreme Court, 1967)

Facts: Plaintiff was a NASA mathematician standing in line at a buffet luncheon and hotel employee ripped plate from hand and said that a Negro could not be served in the club. Was very embarrassed and hurt by humiliation in front of associates. Procedural History: Awarded $400 for humiliation and indignity any $500 in punitive damages. Trial court gave judgment for defendant not withstanding verdict. Plaintiff appealed to civil court of appeals and Supreme Court. Issue: Does battery also include harming ones dignity and not even touching the person? Rule: to constitute an assault an battery it is not necessary to touch the plaintiffs body or even his clothing; knocking or snatching anything from plaintiffs hand or touching anything connected with his person, when done in an offensive manner, is sufficient Morgan v. Loyacomo Damages for mental suffering are recoverable without the necessity of showing actual physical injury in a case of willful battery because the basis of that action is the unpermitted and intentional invasion of the plaintiffs person and not the actual harm done to the plaintiffs body. (Second restatement of torts) Application: Intentionally grabbing the plate is considered battery. Taking something from somebody is the same as touching. Personal indignity is the essence of the action for battery; the defendant is liable not only for contacts which do actual physical harm, but also for those which are offensive and insulting. Conclusion: Trial court erred by judgment not withstanding verdict. Grabbing the plate was a battery. The plaintiff is entitled to damages for mental suffering due to the willful battery, even in the absence of any physical injury. A person can be held liable for battery by grabbing something from another person without even touching their actually body and are liable for indignities caused by the action. Hypo: Plaintiff sues Defendant for $100,000 can the motor hotel be able to sue and recover from the active tort feasor. Lets say tort feasor was very rich and able to pay. Should the defendant who paid because of passive vicarious liability (Motor Hotel, Inc) be able to recover from the tort feasor? Yes because the defendant who is actually be held liable can sue the actual tort feasor for indemnity. Need to look at who is responsible for the action and who bears the actual loss. Employer could sue for the right to clear their name of being slandered as racist. Can recovery punitive and exemplary damages. Texas expanded the definition of battery Can have plaintiff v. D1 and D2 P v. D2 for D1 D2 v. D1 for indemnity Thinking ahead. Begin talking about assault, false imprisonment, p. 116 in connection with Hardy Intentional infliction of emotional distress: California SC expands battery to include emotional distress Where do you draw the line on who can recover for emotional distress? -Ie. JFK assassination announcement created severe emotional distress and it was intended -Intentional infliction of emotional distress was adopted by Restatement of torts and spread to other areas

8/31 -In most jurisdictions if both the P and D are negligent, the p is able to recover. -Litigation is not the most effective way of handling some matters. Cases can go really far. -How many complaints may the P bring against the D? -Can have 1 count for battery -negligence -Breach of statute -on and on -Facts must support the various counts -Can only recover the damages once -1 judgment and 1 payment -The reason that in the case of Fisher there was no claim of intentionally inflicting emotional distress because the Tort did not exist in Texas at the time. -Law in school district anti-bullying bill of rights -All public schools must adopt anti-bullying policies -Increase staff training -All complaints must be investigated and incidents must be reported -Educators who fail to exercise this can lose this job -Students have a right to intervene if they see bullying -What kind of Duty does this impose on students, teachers, etc -How does it confirm with freedom of speech, etc -Loyola student code which requires reporting cheating, what is reasonable belief of cheating? -Lets say school district investigates claims and finds nothing. Father gets mad at son for allegations. Bully gets more mad and seeks revenge. Could the school district be held liable? -Story of Judith Riss (Riss v. NY, pg. 669) -Engaged and broke off, afraid from revenge from ex-fianc. Police said they could not help because they didnt see an issue. He harmed her and she brought case against the police for not protecting her. -Ignore the actual injury happened. -What should a reasonable person been able to predict could happen. -Try and prevent the injury from happening. -Design a statute that would satisfy victims and potential victims and families, that the police, superintendent, teachers, administrator could live with and would be fair for alleged victim. -Hypo: I hate you and despise you because you are #1 in class, attractive, etc. Im going to report you for cheating. I heard somebody said x,y,z. It would distract most people trying to clear their name because they are accused of a negative. -Difference between Civil and Criminal battery charges

-Most lawyers do not want to sue for exemplary damages because they are usually removed upon review. Parvi v. City of Kingston Facts: Police found two brothers fighting and another was trying to stop things. Police took one of them to golf course and they left him to dry out. He woke up and walked into busy street and was injured. Trial court dismissed the case and appellate upheld. Issue: Does some consciousness of an event allow for the claim of false imprisonment. Rule: False imprisonment requires that the victim be aware of the imprisonment. Must know of the restrain or be harmed by it Application: P did not recall the events of the evening later on, but at the time of the incident he was aware that he was being taken somewhere against his will. Even if the Ps sentient state at the time of his imprisonment was something less than total sobriety, that does not mean that he had no conscious sense of what then was happening to them. Conclusion: Parvi was moved against his will and the injury that resulted from it can be used in a case against the D. -Case of woman who was arrested for stumbling around Ohare and claiming she needed her medicine -Her parents confirmed her story and police released her in a dangerous area and she is thrown off the roof and she was paralyzed. Were the police liable for negligence? -Doctors cant be held for FI if they make a mistake in diagnosing a person as mentally ill in emergency situation False imprisonment by shopkeeper Hardy v. LaBelles Distributing Co. Facts: Hardy was a temporary employee of LaBelles Distributing Co. and was accused of stealing property. She was brought into a room and questioned and agreed to a lie detector test. She sued for the being held against her will. Issue: Is there enough evidence to bring the case to trial? Rule: The two elements of FI are the restrain of a person against their will and the unlawfulness of such a restraint. The restraint can be physical or words. Application: Hardy was not detained against her will because she was not forced to stay in the room and claimed she would have went voluntarily to the room if she knew in advance what would happen. Conclusion: She was not detained against her will. Bonkowski v. Arlans Department Store (Ct. of App., Mich., 1968) Facts: Bonkowski (P) was questioned by a private policeman at Arlans (D) for allegedly stealing from the store. She was on the way back to her car when she was questioned (not in store). She emptied her purse out and provided sales slip for purchase of items. She sued the department store and Earl Reinhardt because she suffered psychosomatic symptoms, including headaches, nervousness, and depression. Arlands files suit against Michigan Security Police who provided Reinhardt.

Procedural History: Jury ruled in favor of P and awarded $43,750 for false arrest and slander. Ds accusations of J NOV were denied. They dont believe they should have to pay that much. Appeals. Issue: Can a merchant detain a person when they leave the premises for a suspicion of shoplifting? Was it reasonable to detain her? Rule: ALI, restatement 2nd 120a: merchants may detain a person who they reasonably believe shoplifted for an investigation. Application: Court thinks that there should be an expansion of the merchants doctrine. There might not be time to properly investigate the issue before the person leaves the premises. Must determine if off duty officer had reason to believe that P shoplifted and if he did was the investigation reasonable. Would be false arrest if Jury does not find that this was the situation. Conclusion: Remanded for new trial under the expanded understanding of a merchants right to investigate shoplifting. Can question somebody off premises if there is enough evidence to make the claim. Plaintiff can bring many claims: 1. False imprisonment 2. Slander (spoken lies) 3. False arrest 4. Intentional infliction of emotional distress -Can have many counts but only recover 1 time -Defendant can bring some defenses -Shoplifters privilege -must be able to bring a defense that proves that immediate action is needed -ie. A doctor in an emergency situation has to do X, even if X doesnt work -Shopkeeper is in this position and there is a suspected shoplifter about to leave the store -2 possibilities: 1. Stop the person from leaving in their car 2. Investigate the matter -Its an affirmative defense and the P must prove otherwise -Prove the claims -IIED: conduct was beyond a normal person -FI: total confinement without a reasonable mean of exit, have to know about the exit -Burden of proof is on the P -Shopkeeper must prove that the apprehension was based on a reasonable belief that the shoplifting has occurred, the investigation was in a reasonable manner, and reasonable amount of time -Reasonable is different for every case -Plaintiff can then claim it wasnt reasonable -Is there a duty for a fellow shopper to report a theft? -Probably not

-Stores are open to everybody to shop as a business invitee -Customers are owed the highest level of care -Could a person be falsely imprisoned in a moving vehicle? Sure, as long as you can prove that you were held in it against your will. -Sindle v. NYC Transit Authority (p. 43, note 7) -Cant claim false imprisonment if one could remain imprisoned and be safe, they cant recover for damages from escaping Intentional Infliction of Emotional Distress State Rubbish Collectors Assn v. Siliznoff (SC Cali, 1952) Facts: Siliznoff (P) was not a member of State Rubbish Collectors Association (D). P got a contract for rubbish collection from Acme which previously had a contract with a rubbish collector who was a member of D. Ds president and members threatened P to compensate its member for taking away his job or they will physically beat up P and burn his truck. P was coerced into signing the membership form and then signing an agreement to pay the member collector who previously worked for Acme. As a result of the threats, P got physically ill and missed several days of work. -Rubbish collectors are plaintiff -Defendant is proposing a counterclaim. -Often P is first to reach the courtroom. (Example. P could sue for negligence of D in car crash. D can sue for counterclaim that P was an intentional tort feasor by pulling gun and it caused emotional problems) -State Rubbish Collectors is suing for breach of contract of D -D is counterclaiming that there was assault and seeks to cancel the notes. -Could also claim assault and false imprisonment but cant -Assault: the claims were of future action -False Imprisonment: he was allowed to leave and not held against his will (Divison of law allows for counterclaiming, ie. Breach of contract vs. tort) Procedure: The jury awarded P $1,250 in general and special damages and $7,500 in exemplary damages. Exemplary damages were later reduced to $4,000. Issue: Can P recover for damages resulting not from physical contact, but from mental distress caused by D? Holding: Yes Rationale: D intentionally subjected P to distress that was so intense that it resulted in physical bodily harm to P. D could have reasonably foreseen that his threats to P could have resulted in physical harm and such actually occurred. In cases of torts such as assault, battery, false imprisonment and defamation, mental suffering frequently constitute the principle element of damages. -Would be ridiculous to not allow for recovery for instances of mental suffering when they are a majority of damages caused, but the Ds action fell short of producing physical damage. -Element is present in the current case and the P can recover for damages for the outrageous mental distress caused by D that resulted in physical harm. Affirmed.

-To make a claim of Intentional Infliction of Emotional Distress the action must be extreme and outrageous and the emotional distress must be severe. -Hypo: Would it be IIED if a person sends their mother in law a box with a snake if they knew she was afraid of snakes? -Typically we only look at if the conduct would cause severe emotional distress to ordinary person, but can factor in the personality of the person -Pot of Gold case allowed for D to be held liable for embarrassing somebody with eccentricities and history of mental illness. Lied told her that there was a pot of gold buried at X and when she opens the box its full of rocks. She is humiliated and distressed and contributed to her early death. -Pain and suffering can be recovered for even when there is not a physical injury -P v D tort: emotional duress pain and suffering Physical injury pain and suffering -Pain and suffering and emotional duress physical manifestations -How much will you protect the individual right of the plaintiff? -Does the pain and suffering have to correspond with physical manifestations? -The ability to prove severe emotional duress might be easier to prove with physical manifestations -Could a person be really hurt and not physically affected? -KKK rally in Skokie was a IIED because they meant to send message to Holocaust survivor. -What is legally sufficient evidence in Harris v. Jones?

-If it wasnt assigned in the reading and we didnt talk about it in the class, it wont be on the exam! 9/7 Make up on 9/23 10-12 Black letter law Trespass 1. Intentional -Comes from Tort of trespass -If accidentidly walks onto land it is negligence -Mistakes still count as violation 2. Physical invasion 3. Possession of land -Interest in possessionary rights of the land -Reclaim the right of exclusive right to the property 4. Damaged presumed -Single blade of grass -Triggers violation of exclusive use of land

5. Trespasser is strictly liable for all damages -Sometimes the trespasser may sue the land owner in certain instances -Whereby he broke the close -Defendant wrongly entered th o Nuisance - Different ways it can be created Intentional (loud music) Negligent (dog barking) Strict liability (blasting, etc) - Activities of actor affect possessors use and enjoyment of land - Must prove damages There is a balancing test between private rights and the interests of the public - Case of Boomer for example requires taking economic considerations into account Current politics about environmental standards and their economic impacts Second hand smoke and its impact Public nuisance

p. 69 note 4 -Can sue for nominal damages right to property Herrin v. Sutherland -Shooting over somebodys land is trespass -Also a nuisance Airplanes cant trespass because usually they are too far from the usable What if the person lives near an airport and the planes take off and land within the usable part of the property? - Would want to look into if the person was there before the airport was built US v. Cosby - Facts Farmer lived peacefully until US decided to built an airbase Planes were barely clearing the trees Claims that the chickens were committing suicide - Ruling Govt claimed that it was wartime and they needed to build an airfield to train piolets Cant get rid of because there is a clear importance for it Will give permanent damages for consequences of the building Sometimes the rights of the public must prevail Boomer v. Atlantic Cement Co., Inc. (Court of App. NY, 1970) - Farmers arguments Over time dust from cement production builds up on land and violates right to possession Farmers are growing food which is a public good

 Is there anyway to reduce the contamination Is everything being done to prevent problems? (This was state of the art in the case, nothing more that could be done to prevent dust) NY law claims that if $100 damages is proven then an injunction is mandatory - Defendants arguments Government can do discretionary things Factory creates jobs Nothing else we can do Provide a public good Made significant investment - What makes this case controversial o Factory must pay permanent damages Permanent damages o One time payment for putting somebody out of business Once a person is paid these damages they no longer can do anything about it Bradley v. American Smelting Co. (SC Wash., 1985) - Facts People lived near a smelting company and sued for trespass and nuisance from the emissions from the factory - Issue Was there intent to commit intentional trespass? They quote Gary v. Daley Substantial certainty Does intentional deposit of microscopic particles give rise to trespass and nuisance? Does there have to be proof of actual damages for trespass? What are the limitations for trespass? What is the effect of the theory of continuing trespass and the discovery rule in this context? Are the affirmative defenses of prescription and preemption by other state laws recognized? - Important to look at fact pattern Did the company know about the pollution and do everything to limit it? Are the defendants involved in an important trade? - Have to prove damages What are the damages? How can the plaintiff determine what all the damages will be? Need to have evidence, provide experts that claim damages will result from the paticles If a person thinks they can contract AIDS from shaking hands and somebody shakes that persons hand and it causes fear is NOT grounds for recovery Burden of proof is on the plaintiff to demonstrate that reasonable damages have occurred What about worry of defective pacemaker and it cant be removed? Would be a legitimate fear - Court ruled that they would not stop production unless there were damages - Hybrid cases involve creating distinction between two issues and cant apply black letter law Rogers v. Board of Road Comrs for Kent County (SC Mich. 1947) - Pursuant to a license, Defendant placed a snow fence and posts upon Plaintiffs husbands property with the understanding that it would be removed at the end of winter. Defendant did

not remove the fence at the end of winter, and Plaintiffs husband was killed by an accident involving the fences continued presence on his property. Plaintiff sued for trespass and negligence. - The license and agreement rendering the snow fences presence initially lawful did not bar an action for its presence after it should have been removed. Once consent or license to a structure or chattels presence upon ones land is effectively terminated, the presence may revert to a trespass. - If suing the government have to make sure it can be sued on the grounds - Plaintiffs husband died because of the breach of contract that they had with the govt - Limited time - Husband did not act negligent Could not see the post because of the grass Not negligent because he had no way of knowing if the government upheld their agreement - Proximate cause Why did the court not claim the fence was the cause? P. 74 Notes - Some cases in which you are not able to deny access to people so there would not be trespass - Public areas, etc - Could also create a situation in which owner must care for the person Liability is absolute - Even if person is not negligent can still be liable Trespass to Chattels and Coversion Glidden v. Szybiak - Defines what Trespass to chattels is - Can sue for the dog bite Not a trespasser to the land Business invitee The business had a responsibility to prevent dog bits No damage to chattel Conversion is different from damaging property through trespass Consider 2 cases - Thief steals gold watch and sells it If $15 then something fishy If sold for $7,000 then buyer is a bonified purchaser because bought with good intent Thought it was real because of the price Acted in good faith Owner of watch notices its gone can recover from the bonified buyer The thief did not have title to watch so could not transfer title Buyer beware is the message If the buyer were protected there would be no liability for ensuring that the object is legit - Con man claims the watch is not gold and buys it for cheap and sells it to bonfied buyer for $7,000 because its really gold Before the bonified purchaser gets into the act, the person who was conned can recind the sale Once the sale to the bonified buyer is complete, the conned owner cant recover Nazis stole things from Jewish homes during the 1930s/40s and heirs of true owner are trying to recover the property

- Usually the items have been already sold many times - They can be recovered because the title was not transferred Sometimes original owners had to sell it very cheaply - Hard for true owner to get back property because it was sold What is the right of the true owner to recover the property after it was stolen and passed through many hands? What rights do parties who were forced to sell have? Its fine and good to talk about the market value of the item Hypo: portrait was made of grandmother who was homely woman. It was stolen and while under control of thief it was destroyed. - P. 85 and 85, what makes a conversion Harm done to chattel If destroyed you bought it Can sue for chattel Not every force sale and conversion translates into damages Value of an item like a manuscript has value based on potential to publish it (time) Illinois will not give punitive damages of IIED, it will give compensatory - IIED is about outrageous conduct of the perpetrator - Outrageousness has already been recognized in proving IIED so cant punish them for that since its included compensatory Can bring claims against multiple people for many things can only recover one time for them Balancing

9/12 Exams - Based only on intentional torts - Does not focus on a small note - In 3 ways Judge Asked by client Asked by partner - No case names needed, some could be a shorthand Garret type intentional tort, where there is substantial certainty that a tort will follow - Can say as I explained earlier - Exam is on issue spotting Medical malpractice - Not a good term, doctors like negligence - Doctors usually dont testify against each other, conspiracy of silence Would you come forward if you see people taking bribes and giving bribes Case of 9/11 responders developing illnesses - Can they recover for their injuries; is their proof that they were injured from their actions?

Chapter 3: Privileges
OBrien v. Cunard S.S. Co. (Mass, SC 1891) Facts - P claims she was assaulted by doctor on ship who gave her a vaccine - Side-effects resulted, but debatable if vaccine caused it

- Trial court ruled in favor of P Issue - Did the doctor use force on the patient against her will? Rule Analysis - If patient showed consent on her behalf then doctor is not liable because he cant read what a person is thinking - Need for vaccinations because of smallpox and ship owner had doctor give vaccine to those who wanted it to, so they could avoid it later - Notices were posted and everybody was informed that there would an injection for those who did not have a mark - P did not a have mark, but claimed she was vaccinated - She didnt do anything besides say she was already vaccinated Held up arm and cooperated Conclusion - Doctor was not liable because patient did not make her feelings knows Class discussion - Case is about consent given when there is not obvious objection - Note about A threatening to hit B, if B sits there is that consent? Most states would say that A has no right to hit B - A person who kisses their fianc without consent? A first date? Stranger?

Hackbart v. Cincinnati Bengals, Inc. (US Ct. App., 1979) Facts - Hackbart (P, DB Broncos) was hit by Clark (D, HB Bengals) during a game out of anger - D claims that he did not intend to cause harm - Trial court ruled football was a violent sport and NFL punishments cover incidents Failed to notice that it was a loud stadium and incidents happen often Issue - Can a player be liable for conduct during a game in the court of law? Rule - Article 1.1C says players can not strike each other on the head, face, or neck Analysis - General customs of football does not approve of intentionally striking - Rules in place so the game stay orderly - Reverses decision and remands case - Battery does not require the intent to cause injury, its intending to do something if there is a substantial certainty that the action will result in an unpermitted contact with the person Conclusion - Courts can hear cases involving on field incidents Class discussion - Case about NFL fraudulently misrepresenting facts about concussions causing long term memory issues - Does the team doctor have an obligation to take a dizzy player and seriously investigate injury - What risks do young players (middle and HS) and their parents need to be made aware of? - Do they need a waiver to waive liability on behalf of children to play? - Sport has gotten much more violent and the goal is to take people out, part of the game

Do you permit the NFL to self regulate or does legislation need to help regulate? Do NFL players assume the risk of playing if they know the risks? Should it be a sport that is barred? Are there activities so dangerous that they should be prohibited? The injured person may be on tax payers tab - Consenting to dangers that are known - Does a coach have an obligation to take a player out if they complain of dizziness, but still want to play? - Informed consent: knowing the dangers of an activity and choosing to do it in light of the facts Notes on pages 98-100 are important and will come up again Battery is still acceptable to bring against a doctor, but usually negligence Schloendorff v. Society of New York Hospital: Cardozo said that every adult with sound mind has a right to determine for what happens to their body Malpractice is a microcosm for studying negligence - Most doctors do not enter the profession to do harm If a person comes into hospital in critical care the doctor can do whatever needed to save their life - Assumption is that a reasonable person would consent If a child comes in the parent can give the consent or without parent doctor could do it - Again assume what the reasonable person would want to happen If a person is of sound mind and person is able to understand what has happened to them and a procedure is needed they can chose whether or not to have it - Not assisted suicide, this is for a person with religious beliefs that prohibit some things The issue is when a person is not in sound mind, but has some beliefs Case of catholic priest not wanting to have his life artificially prolonged by extraordinary means of treatment if there was no reasonable hope for recovery. - What is extraordinary care? - Hydration and nutrition given through tubes is not considered to be extraordinary to the church For assisted suicide there is a long of requirements (only 4 states allow it) Case of train engineer who is driving train when suicidal man jumps in front of train - Engineer claims that he was so shaken up he could not work, that man made him a killer - Would this be IIED? Under Cardozos definition of rights to a body shouldnt a person have the ability to say they want to die in the way they chose? Not have to kill themselves painfully, but go to sleep. If you are suing for something that you did not give consent for it is battery If suing for fraud it is for negligence Judicial Notice: judge making an assumption De May v. Roberts (SC, Mich., 1881) Facts - Scattergood accompanies the Doc to a house call because of the bad weather - After the incident it was discovered that Scattergood was not a doctor The issue is that a doctor should inform about identity Assumption that husband would not have allowed Scattergood in if he knew who he was Class discussion - Not in the 1880s and people are not so modest about delivering a baby

- Lots of students are usually present when procedures happen in hospital - What if you travel to a hospital and want a specific doctor to perform the procedure, but somebody else does? - What if a medical salesman who is trained in a piece of equipment and is asked by doctor to use it? - Judicial notice can be controversial Does it take power away from Jury If a judge knows a fact can he use it Man injures himself at subway claiming lose step and judge was there that day and knows the stair was not lose Can judge use his knowledge? If a Judge was earlier a doctor can he use his knowledge? - How much information has to be given by defendant to claim there was informed consent? Somebody in hospital being given pills that were not for her benefit, but part of trial and not told that - Sue for battery Is consent to an illegal act a valid consent? Self-defense Ransom v. Kittner (mistakingly shooting dog instead of wolf) would have been different if the dog was charging at you and there was a report of rabid wolf there would be a valid claim Defense of Property Katko v. Briney (SC, Iowa, 1971) Facts - P is a thief and trespasser who targeted an unoccupied building (not a residence) - Signs saying no trespass - D is the owner and sets up a booby trap with shotgun - Trap because there was no sign or notice to enter at own risk - Trap is designed to punish a tort feasor who breaks the close - P is shot in the legs and sues for damages Reasoning - The fact that the gun was set up as a punishment, not deterrent is the issue - A possible option would have been to put up a sign that warns of a gun, and if a trespasser still wants to enter the gun would not be a punishment Class discussion - Sign might be effective in keeping people out - Not able to threaten somebody with more force than is necessary - Texas is creating litigation that will make it harder to bring frivolous lawsuits If a P loses in a claim they have to pay D - Case of Depue v. Flateau Inviting somebody in to dinner on a cold winter night and he complains of feeling ill Asked to stay overnight, but was refused and sent him out and put him in the sleigh Woke up in bad shape and case went to jury because of negligence What is the obligation of a social host? Was it because the D put the P into the sleigh or because he didnt let him stay What if the invitee has TB and wants to stay?

9/14/11 Cant use excessive force when it comes to defending property Children may be privileged to enter property because they dont understand damage - Reasonable force under the circumstances When defending property, not your life, you are able to use reasonable force How can you protect yourself? - Tags that set off alarm - Permanent ink that ruins garment if it is removed - Bells go off when person comes in Can give rise to claims of discrimination if a person is denied because of what they look like Failure to act may be negligence Case of infecting a person with a sample is an intentional tort - Guadamalans injected Determine if penicillin was useful in fighting infection - US prisoners being tested by a trial drug for shorter sentence - At what point is there an obligation to tell those in a control group that a drug is working so they can try and use the drug Must have a control group in studies though Balance of need to prove a drug can work and need tests to prove it Control groups help prove it - Tuskegee syphilis study Mohr v. Williams (SC, Minn., 1905) Facts - P (patient) consulted D (doctor) about an ear issue - Doc found a problem in R ear and recommend surgery, she agreed - When in surgery Doc found that the R was not serious but there was a problem with the L ear - Did surgery on it and fixed it - Sued for battery - D appeals JOV, but is denied - New trial granted on grounds that damages (14,322.50) were excessive and both parties appeal Issue - Does an unplanned, non-emergency procedure constitute a battery? Rule Analysis - Doctors have a skill and will use it in good judgment - No law allowing him right to free medical procedures - No law should be rendered that would impede a doctors ability to perform emergency procedures - Surgeon knew about left ear because of family physician who made patient aware of it and advised surgery, which patient did not object to at time - Cant accept Ds claim that it was not assault and battery, because there was no consent and the procedure was not an emergency - He is not a criminally liable because there was not an unlawful intent - P should recover based on injury inflicted, beneficial nature of the operation, and good faith of doctor Conclusion - Doctors can be held liable for an unauthorized procedure if it is not a medical emergency

 Notes - There was not negligence, there was the right to be left alone Brandiess idea that you can be left along When no legal responsibility to act but a good semaritian moves into to help - Case of boy in car accident being dragged away because the car was going to explode - What if the car did not explode and by moving him he is paralyzed? Can he sue for being treated by non-medical workers? Defense could be they were acting in good faith under the situation and they believed they had to do what they did Surocco v. Geary (SC Cali., 1853) Facts - P sues D for tearing down his house - D is a public officer who claims he had to do it because of a fire and it would have spread - P claims that D prevented him from removing property - Unsure if he could or not, but the opportunity to try was denied Issue - Is a person who tears down anothers home in good faith to save neighboring buildings liable for action? Rule Analysis - There is a long history of destroying property in order to save more - Common law has roots in natural law and things that would normally be torts become necessity - Property owners are not a good judge when their property poses a threat Conclusion - A house on fire, or nearby homes, which would spread the fire become a nuisance, which is lawful to abate. Private rights of individuals yield to considerations of general convienence, and interests in society - In cases where an individual must act against anothers right it must be regulated by their judgment as to the exigencies of the case - Congress can pass laws dealing with how compensation can be awarded and how destruction must take place Sometimes legislation can compensate those who lose property Constitutional provisions preventing taking private property for public use without compensation do not apply to actions under police power to protect the public against the spread of contagious diseases or devastating fires and floods, or other exigencies. If the house was in a remote area in which a burning home does not pose a threat beyond the few homes the D would be liable because tearing down a neighbors home to save his was just putting more value on your own property than anothers, tearing down the neighbors home did not serve a more public purpose D can bring an affirmative defense of a privilege to do what he did - P can claim that D exceeded the privilege and if the judge agrees than he can recover - If not there is no recovery People tend to act without regard to the law in times of emergencies because they are compelled by factors that may not be in accord with the law - For example a person jumping onto the NY subway tracks to hold a person down so train would pass over them

- Starving people on a boat may turn to cannibalism Vincent v. Lake Erie Transp. Co. (SC, Minn 1910) Facts - Steamship was moored at a dock to unload cargo and storm rolls in Storm was an act of G-d, Vis Major - It was not safe to navigate because of conditions and tugboats couldnt get the ship out - D tried to get out but couldnt get out - Tying the boat to the dock has a public goal of preventing injuries to others (boat toss around and hit other boats) and private goal of not losing the boat (floating away) - Ties the boat really tightly and ropes were replaced as they frayed Reasonable under the circumstances - It was privileged conduct because of the circumstances - Boat hit the dock because it was moored and the waves kept knocking it into it - Vincent sues for damages Issue - Can a person be held liable for damages when they use private property out of necessity? Rules Analysis - No issue of trespass when you venture onto private property out of necessity (bad storm, etc) - D used the property of the P in order to preserve his own property - In matters of preservation of life there is a system of compensation, so in cases of property also applies - Ploof v. Putnam: right to trespass when distress, but will liable for damage while using property If the property owner denies you use and injury results they are liable for damages - Not a case where the actions were by acts of G-d or property being menanaced by plaintiff - Issue was that a person valued their property over that of an other Conclusion - Will be liable for damage to property Discussion - Unjust enrichment If I take something from somebody else to benefit from it, its an unjust enrichment because you did not acquire it justly - Ploof v. Putnam Boat is anchored to a private persons dock because of storm Has a right to anchor there because of threat to life Threat to life trumps the rights to property By casting off the boat D is liable for the damages because the boat has a right to be there If boat remained and damages happen the P would liable Similar to Deplu because D sent away P when P had a necessity to remain If boat had not been tied to dock there would have been more damages which echos the Surraco case because a boat adrift is a nuisance by posing risk to others This is an incomplete privilege - Person is not acting irresponsibility because reasonable person would act in this manner - Under circumstances the property owner cant eject them because of risks - Can be held liable for damages caused by the necessity to remain because it was not a just acquisition

 If you dont tie the boat will be liable for being negligent by disregarding his property and in turn the property of others - If he didnt have time to secure the boat because of risk to his life he would not be liable If a road is blocked and you go on private property to go around then you will probably be liable, unless there was no alternative (ie. A sign saying cross over to other side) Can you take the life on another to save your own life? - Business tycoon not giving $1 million to a extortioner threatening to drop a box of explosives and after failing to talk him down he drops it. He jumps behind a bystander? Permissible? Essentially bottom line is that you cant take the life on another to save your own If threat to your life or threat of force denies a reasonable person the ability to resist the action you can use it as a defense - Many criminals at Nuremberg made claims that they had to do what they did or would have been at risk - Disgusting Discipline Lets say in Wallace v. Rosen that a child was acting up when the teacher thought there was a real fire, how far could she go to contain the child? What about a parent spanking their child? With allegations of child abuse you must be careful in asking questions because children like to please Justification Sindle v. New York City Transit Authority (NY Ct. App. 1973) Facts - Kids are acting up on a bus and causing damage and the driver says he is taking them all to juvenile hall - P was a student on the bus and sues for false imprisonment Reasoning - One is justified in restraining or detaining another in a manner reasonable under the circumstances to prevent personal injury or damage to property, and evidence regarding such justification should not have been excluded in evaluating this claim of false imprisonment - A parent, guardian, or teacher entrusted with care of a child is justified in using that physical force reasonably necessary for discipline or the childs own welfare - It is the Defendants burden to plead and prove justification. - The Court introduces the defense of justification for the use of physical force. In finding justification, the Court focuses upon the bus drivers role as the supervisor of the students on the bus, creating a special relationship between the parties. The Court also notes that the burden is on the Defendant to prove justific

Recap of Intentional Torts We started with new vocabulary In cases that are challenged there is an appellant and appellee Know the role of the restatement - Not primary, but very influential in the law Cases from other authorities are not law until adopted as law, but are persuasive

Assault Battery Trespass to land False imprisonment Trespass to chattels - Conversion IIED Complete autonomy that the plaintiff has is different than emotional autonomy Can be assaulted without seeing the damages so adopt IIED - The behavior of the D must have been so outrageous that it was outside the pale - Severe distress must be caused to the P Motive does not matter in these incidents, can have good faith and still be an intentional tort feasor Intent to be ITF is not to intend to cause the injury that resulted, its having enough knowledge to be substantially certain that Damages is a separate issue from the injury and in cases like Trespass may only recover nominal damages Can have damages reduced

9/19 Negligence Negligence is a tort and unless D has a defense he is a tortfeasor If the elements are not proved then the actions can be careless, but this is not negligence Negligence means that the plaintiff was able to show more likely than not that the defendant owed a duty and failed to honor it The plaintiff will also have to overcome any affirmative defenses that the defendant The tort of negligence has a 4 part test - The defendant owes the plaintiff a duty of care - The defendant in being reckless breached the duty of a standard of care What is reasonable conduct? Take facts into account The term used to be what a reasonable man would do in the situation 3 ways to show a breach Prove a situation in which the defendant violated a statute If the statute does not include remedies then here is why we should get restitution P can ask the judge to instruct the jury that the conduct of the defendant was so reckless it was a breach of duty When the carelessness is so obvious there is no need for expert witness Res Ipsa Loqiuter: the thing speaks for itself (i) If the negligence is so obvious the judge can rule himself - The injury resulting from negligent behavior caused the injury Proximate cause is the boundary for where liability for injuries end Combination of public policy and pragmatism prevent one from recovering The plaintiff obviously wants to draw the line after their fact pattern The defense wants to establish proximate cause ended before the fact pattern Defense wants to establish that the injury resulting from the conduct was not foreseeable - The conduct resulted in damages

 Legal interested protected by law The damages must be enough to put a momentary value on them compensatory damages Punitive damages are sometimes allowed If behavior was outrageous (i) Example of Ford not changing the Pinto when Duty - Usually a duty is assumed when there is a conflict of negligence between a P and D - There is no contract entered ensuring that a person is liable for the duty They could sign a contract stating that under the law there is no duty, but agree to a duty Maguire v. Alamy: nurse voluntarily accepted job of watching mentally ill person She had a duty to go into the room - A person may never agree to a duty, but it is imposed by the society Doesnt matter if a driver doesnt want to be liable for a boy who runs in front of car Society dictates motorists must be careful - Hypo: an accountant creates a bad balance sheet. Who was the accountable negligent towards? The business? Investors? New employees? - Can a person recover? Must be a duty to that client Hypo: a badly written will Is there a duty owed to somebody beyond the client? The client will not be suing for sure because the will is not read until the client is dead Was the will prepared for the benefit of the recipients? (i) Third party beneficiary in contract (ii) In torts is there a duty - Hypo: go to doctor and get wrong diagnosis (really TB) Is the doctor liable? His breach caused you to get infected and there are damages you suffered Is there ability for others to recover? Starts with family? People at work? Planes? Illinois legislature stated that nobody beyond the plaintiff can recover - What about secondary asbestos? Worker comes home with asbestos on his uniform and wife comes in contact with the actual material Breach - Hard to determine sometimes if the conduct was so outrageous it was a breach - Impulse for self preservation can translate into negligence Allow for conduct in extreme situation A cab driver jumping out of a moving vehicle when held at gunpoint - What would a person of that same category do? Compare 2 children of the same age Causation - Not so easy to prove causation

- Defense will try and state that there were other factors that led to the accident - Contributary negligence Did the plaintiffs conduct contribute to the injuries? Brown v. Kendall - Plaintiff can prove everything and defense admits it, but they can claim that the plaintiff was just a little negligent and if its proved the case is barred - Now the law except 4 states do not bar a case for contributory negligence Judge and jury have continuing roles through the case and so the steps are not merged Duty is always a question of law for the judge - If the claim is not protected under law he can dismiss the case from the onset Causation is usually for the jury to decide because of the facts United States v. Carroll Towing Co. (US. Ct. App. 1947) B><LP B is burden - What was a defendant do to behave reasonably under the circumstances - L is the loss or injury - P is the probability or likelihood that it will happen The defendant has obligation to take precautions when the potential loss is death, even if it is not a high probability If the injury is minor, but the probability is almost certain there is an obligation to prevent it - Defendant makes canned peas that are likely to cut a person every time its opened These are judgment calls - Strapping in for a 2 block drive? - Stay overnight when there is a bad storm If early in day before things are bad probably will drive home If bad at night probably not Cases look at what should have the defendant done in retrospect? - What is the burden to the defendant opposed to the potential injuries and likelihood of those injuries Lubitz v. Wells (SC. Conn., 1955) Facts - Lubitz (P) was playing with Wells (D) at his house when D hit him it face with a golf club - Club belonged to Ds father and was left laying in the backyard for some time - P sues for negligence because D didnt warn him he was going to hit him and hold Ds father liable because he should have known the club to be dangerous Issue - Is a person liable for negligence if they should know there is a possibility of a danger? Rule - No, a golf club is not obviously and intrinsically dangerous - The probability was low because child never played with it - Burden was not that hard to remove it though Discussion - What if the father knew that the child played with the club a lot? Probably liable because he knew the probability was higher - What about if the object was a big branch?

 If it just fell there is probably not liability because might not know it was there If it fell 5 days ago and child likes swinging things it should be removed or there could be liability The burden to check a backyard at least 1 time in 5 days is not hard - What if it is a loaded shotgun? Child never had history with the shotgun, so father doesnt know how he will handle it The potential loss is much greater because it can kill much easier Probability might not be great, but because the potential loss is so great and its the possession of the D the burden is very small Put it somewhere where it cant be interfered with Blyth v. Birmingham Waterworks Co. (Court of Exchequer, 1856) Should have the water company anticipated the really deep level of frost? No, cant be liable for something that was beyond what a reasonable person would have anticipated in their position. Discussion - What about architect designing a building in NY with earthquake safeguards? The loss is high, but the probability is low Whats the burden for the company to build the safeguards in? We should not stop the building of skyscrapers because its important What limits should be placed? - How long should a product last? Capitalism will by default phase out older models for newer improved models How long should a person expect a thing to last for before replacing? There are roads, bridges, tunnels, etc in the US that are not up to standards - Buildings are now being designed to withstand a plane attack It hopefully will not happen, but because it has happened there is a possibility - What about instead of frost there are just old pipes that break - What if the El platform fell United States v. Carroll Towing Co. (US. Ct. App. 1947) Facts - Case in admiralty Libelant Barge owner Bargee (person who should be on the barge) - Conners Co owned a barge and chartered it to the Penn Railroad Co., which carried flour owned by the US - Carroll Towing Co. negligently shifted a mooring line that caused the boat to leave the pier - Boat hit a tanker and a hole was created in the ship - Carroll claims they did not know the damage to the barge because no bargee was present - Trial court divided damages because of contributory negligence Issue - Is their liability when the defendant did not know of the situation? Rule - B>< LP Application - Bargee should have been on the boat unless he had an excuse

 Legal excuse has to reflect the rule of the case - There was a likelihood of damages if the boat broke free and the pier was very busy so the person should have been there Grimshaw v. Ford Motor: Pinto case - Ford attempted to put monetary burden into the formula of BLP - Thought it would be more economically beneficial to pay damages as they happen instead of repairing the Pinto - Court said you cant put business interests ahead of human life Restatement of torts adds a social value to the definition of BLP Social value of making money for stockholders must yield to social value of human lives 9/21 The formula for assessing negligence is very cut and dry B><LP Defendant thinks what is the Burden to me to do something opposed to potential damages that can ensue and what the probability is Must act in a reasonable manner - What is reasonable? The ability to understand that something should be foreseeable - What is foreseeable Under the circumstances - What is normal circumstances Depending on who you are representing different circumstances will be emphasized The reasonable person should have foreseen the unreasonable risk they were subjecting others Its hard to say something is not foreseeable The Pinto case was something that should have been foreseeable - Ford knew that cars can get rear ended and that placing a gas tank there was likely to cause more of an injury - Balancing corporate interests against human limbs - Have to prove that conscious disregard for reasonable behavior was done with malice Ford was slammed with punitive damages - Many designs and engineering concepts are put into a vehicle - The more features put into the car the more it costs Ford wanted to create a car that could be sold under a certain price and still make a certain profit - They failed to put in some essential features that were not a high burden to Ford to include - Think about the safety features that were not included to produce a car under $2000 and 2000 lbs Safety vs affordability and gas efficiency - Ford knew there would be some accidents but did not think that there would be so many that they should have altered the design - Car will not be as safe when it weighs less than other cars - Within the balance of corporate vs. personal rights the potential risks to human life must prevail In addition to balance of BLP there is also a balance during the products creation Case of woman who develops glaucoma after doctor failed to give her a test Helling v. Cary - P claims test was only $3 and should have been done - D can claim many Hundreds of things that can be tested Not common practice to test for

 P had no history or condition that doctor should have anticipated her needing the test Extent of the chance that such interest can be adequately advanced or protected by another and less dangerous course of conduct Restatement of Torts - HYPO: vaccine that combines 4 in 1, but results in some deaths because of reaction is not ok because there is an alternative to give them separately What about a medicine that cures a disease that was earlier incurable but poses risks Should punitive damages be allowed in civil cases or only in criminal cases? Pipher v. Parsell (SC, Delaware, 2007) Facts - Pipher (P) was in car with Parsell (driver and D) when they got into an accident - They were 16 - Another passenger grabbed the wheel and D did not react to the situation - 30 seconds later another grabbig - P claims D was negligent because he should have fixed the problem Issue - Does failure to react to a potentially dangerous situation constitute negligence? Rule - Definition of negligence Application - Driver of car owes a duty of care to passengers because damages are very possible if an accident occurs - If the actions of a passenger that cause an accident are not foreseeable than the driver is not liable - In this case the driver was aware of the passengers conduct and failed to take steps to protect occupants of the car Conclusion - When a 16 year old is engaged in an adult activity that is dangerous, we hold them to the same standard as an adult. Notes - Page 140 #5 Discussion - Is the passenger under an obligation to speak up - Is this an emergency situation? - What if there was no way for the driver to eject the unruly passanger Chicago, B. & Q.R. Co. v. Krayenbuhl (SC, Nebraska 1902) Facts - 4 year old boy was playing on a turntable at a rail yard and lost his foot when it swung around because the locking mechanism broke - Company is supposed to keep the turntable locked, but often disregarded - Court is upholding reasoning for liability of rail company Issue - Is a party liable for negligence when damages occur to a trespasser? Rule - Ordinary care Application

- Businesses serve a public good and ordinances are designed so that the good of the general public outweighs the good of specific individuals that could get hurt - However, in situations when a business or landowner knows that there are people using their property illegally, they have an obligation to ensure that injuries will be kept to a minimum - The amount of effort required to keep the yard safe was minimal compared to its benefit - The turntable at the rail yard was not very secure and it was easy for it to come loose and injure the boy - Rail company is liable for damages because they should have had the foresight to protect against an injury like that Conclusion - In every case they should be such as a man of ordinary care and prudence would observe under like circumstances Discussion - For P Employees were negligent and should have protected the yard The ability to keep it locked was not hard The turntable is an attractive nuisance - For D Parents were not watching the child When should we draw the line for what risks need to be prevented against Might have been negligent in leaving the turntable locked, but primary responsibility was for the parents to watch A child under 7 cant be found to be negligent 7-14 can be found to be negligent Above 14 will usually be held to be negligent Oldest person to be excused from negligence is 17 when he dived into pool without checking the depth Attractive nuisances are something that a child will be drawn to but not understand the dangers associated to it - Owner is not required to remove it, but it must be protected - Term has fallen out of favor because of its definition Children can come onto the property for their own reasons and only once on the property can they see the object A person need not be attracted to it, can just stumble upon it by trespassing on property Children are not as mature as an adult Do we have an obligation to protect children from damages when it interferes with your use of your property - Child out at 7-8pm is not a normal circumstance - People are used to pools - Child entered a closed event, but doesnt excuse the host from not locking it Liability for intentional tort and negligence is different because of the foresee ability - Intentional torts are doing something that you know will happen For example a child reaching their arm out towards a person is knowing that they want to touch them - Negligence is foreseeing the consequences of an action A lot more analysis is required in doing something

 Vaughn v. Menlove - Important because it establishes the ordinary man doctince People are held to the standard of care that a man of ordinary prudence would use under the situation - Its not a contract, the duty is imposed after the fact, a person does not have to be aware of the situation Delair v. McAdoo (SC Penn., 1936) Facts - Car accident resulted when Ds car hit Ps car - P sued for negligence of D driving with defective tires - Many witness confirmed that the tires were extremely warn beyond use - P won and D appealed claiming JNOV Issue - Is a person liable for driving with defective tires? Rule Application - Cars are very common and use requires a certain knowledge of the parts, especially tires - Ordinary individuals know that tire worn through to the fabric is dangerous Very dangerous if worn through in several places - All drivers must be held to these facts - Hazard is too great to allow these cars on the highway - If millions are driving cars and they can become dangerous and deadly in a second, then the rule for who is negligent must be firm To many people are at risk Conclusion - The law requires drivers and owners of motor vehicles to know the condition of those parts which are likely to become dangerous where the flaws or faults would be disclosed by a reasonable inspection Discussion - The damaged tire can create injuries and the probability of injury is higher - The burden is not high to replace the tire - The burden would be to inspect the tire the fact that the tire is bald is evidence that a lot of time has passed since the defendant inspected the car - Probability of bald tire exploding is high and the burden to check the vehicle every once in a while is not very high - Different story if driving was strict liability and a person had to check tires every time they drove Notes - Duty to find out what a purple traffic light is - If children do not have the same mental development as adults, what do we do about mentally incapacitated? A 20 year old man with the mind of a 10 year old. Should he be viewed as child under the following circumstances? A: defendant Is he liable for his actions B: plaintiff

If he trespassed was it as though he were a child We know children cant take the same precautions as older people, should this extend to other parties What about a person who has the early stages of dementia What used to be safe might not be safe anymore - Trimarco case of injuries from broken glass - What if the landlord went around and put notification of old style class on each door as a caution and allowed tenants to elect to have it replaced at cost of the landlord? Would that satisfy the requirements? Questions to think about? - Trimarco: warning and offer to replace - How far will we go in liability for negligence to protect some classes Mentally ill Dementia

9/23/11 Attractive nuisance pgs. 213-215 - Used to be held liable if a child is lured to your property and is injured Now child can discover the attraction once they trespass (no prior knowledge to entering) Restatement of Torts 339 deals with this - A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the if: (artificial can be a manmade object, not just a natural thing like a lake) The place where the condition exists in one upon which the possessor knows or has reason to know that children are likely to trespass Should know and has reason to know are different Should know does not require evidence of activity reason to know is not as subjective The condition is one of which he possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and Tort law limits property rights Must make sure you keep property safe The children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and At what age should they be able to tell? How can you know the age of the children trespassing? Should you assume they are all incompetent The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and B<LP when there is a risk to children The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children The legal question is whether or not parents are liable of contributory negligence when they know their children are trespassing on dangerous property and face dangerous risk Duty breach causation (proximate cause) injury damages

Trimarco v. Klein (Ct. App. NY., 1982)Custom of the industry is probative Facts - Trimarco was badly injured when glass bathtub enclosure shattered - P believed that the glass was tempered safety glass from appearance and common practice Since 1950s shatterproof glazing materials had been used in bathrooms Federal publications warned of dangers of using regular glass in hazardous locations like bathtub enclosures Ds managing agent agreed that since 1965 it was customary for landlords to use safety glass when replacing broken glass or at request of tenant Incident was in 1976 so at least 20 years had passed since its use - Appealate dismissed claiming that unless D received notice of danger from P or by reason of similar accidents in the building he is not liable for negligence Issue - Is a defendant liable for damages when he failed to comply with customary practices, but no warning was given to him? Rule - Prudant man Analysis - Landlords are responsible for fixing problems because tenants dont have the means to - When a common practice removes dangers from an activity (by doing it more safely) it can be used as a benchmark for what acceptable behavior is Those not following the practice can be found to be negligent - Common practice can be relied upon to establish basic standards of carefulness Reflects the judgment, experience, and conduct of many Shows the feasibility of the practice because it shows how preventive measures can be employed reasonably Allows other to learn of the safe way of doing things - Common practice does not constitute a test for negligence Jury must be satisfied with its reasonableness - Lots of evidence was more than enough to indicate that a jury could determine the reasonableness of safety glass Conclusion - When proof of an accepted practice is accompanied with evidence that the defnant conformed to it, this may establish due care - When proof of a customary practice is coupled with a showing that it was ignored and thtis departure was a proximate cause of the accident it may serve to establish liability Notes - Usually reasonable prudence is common prudence, but not always - Sometimes the courts need to determine the precautions because they are so needed, and even if the common practice is contrary to them they must be obeyed and failing to is negligence. Discussion - Can have a defendant conform to industry standard or depart from industry standard - Failure to replace breakable glass is negligence - Learned Hand quote reasonable prudence is usually common prudence, but not a measure. Entire industry can fail to adopt new measures. Their own tests for standards are not enough. There might be some precautions so necessary that universal disregard will not excuse omission.

- Industry as a whole can use a custom to low to be a reasonable standard of care and be found liable for failing to meet a standard of care - One thing that the custom of the industry does establish is what is available Cant claim that you use really safe material when its not used by the rest of industry due to lack of invention because its lying - Would it have made a difference if landlord put a sticker that claimed the glass as breakable and upon tenants request it could be replaced at cost of glass, no profit for landlord? - What about if a babysitter is watching the child when the damages occur - The case was reversed for new trial because of the statute that was used did not apply to situation at the time (only pertained to construction after a certain year, and construction or incident happened before Crisis not of your making - Sometimes situations arise that you cant control Not being drunk because you made the choice What if you didnt know you were drinking alcohol? Cordas v. Peerless Transportation Co. (City Court., NY 1941) Facts - P is suing Peerless Transportation Co. because of damages sustained when a limo hit them - Limo driver jumped out of the limo because he was held at gunpoint by a thief - Limo was out of control and hit the family - D is sued for negligence Issue - Is a person held liable for negligence when they are acting in unusual circumstances? Rule - Prudent man test Analysis Conclusion - People are not held to the same standard of care in emergency situations, so what is negligent under normal situations may not always be negligent in emergency situations not of the actors making Discussion - Since the reasonable man is the average person you do not have to be a hero - Under an emergency situation do not have to use the same judgment as you if you have time to think about it - Who is a reasonable person? Is a reasonable woman different from a reasonable man? In criminal law women are claiming they are different and comes into play in self defense Battered women cant do things sometimes because husband would strike back (i) She has to act when he is asleep (kill him) Sometimes exceptions are made that women dont have to act in the same way Difference of premeditated murder and self defense How do they act in a crisis? What does an average person do in that emergency situation? Minors Different catagories Under 7

 7-14 14+ Subjective test of age, experience and intelligenceException Exception is not allowed in case when child is engaged in adult activity or potentially dangerous activity Sometimes teenagers arent able to recognize the proper percautions If a 17 year old boy dives into pool without checking depth 17 year old girl wants to be blond and buys kit and doesnt do a test patch and wait for reaction (i) If the product was marketed to teens then maybe instead of instructions there should be a warning Roberts v. State of Louisiana (Ct. App. La., 1981) Facts - Roberts was knocked over by a blind person working a concession stand at a Louisiana PO - Size difference - The blind man was not using his cane at the time - Roberts sued under 2 premisises of liability Respondiat Superior Negligence of state in supervising the safe operation of the stand Issue - Does a blind person face the same level of prudence as a regular man? Rule - Prudent man Analysis - There are several ways that a blind person can move about - Sometimes using a cane can be more of a threat Crowded places - Burson was familiar with the building and able to move about without the cane - Nothing indicates he moved about in a negligent way - A blind person must take precautions, be they more less, which the ordinary reasonable man would take if he were blind Conclusion - He was not negligent Discussion - Court thinks about Bursons adherence to safety precautions for himself, was not negligent for his own safety - If representing the plaintiff you would argue that Burson took measures for his own safety, but maybe not for safety of others in the lobby - This case does not absolve a handicapped person from a duty of care, it is shifted to the ordinary standard of care that people with that condition use What about mental disability? - NY subway keeps cars in a lot when not in use - On a very cold day one of the cars was not locked and a man slept in it overnight and was severely frostbitten

- Sues city of NY for failing to lock the door, it created an artificial attractive nuisance and since the man had the mental capacity of a 10 year old he should be protected under the standard applied to minors - Court rejected this claim that an adult with mental capacity of a 10 year old He is not a child because of his physical size and age He could go to places and do things a child is not able to do even if his mind is that of a child - City was not liable for negligence towards this man even though he had the mind of a child HYPO: P is damaged by D and P was not negligent and proves the 4 elemetns - Under McGwire vs. Alamey the defendant was liable because of equity towards the caretaker Did not use the mental disability as a shield - New situation in which the P is not a tort feasor, but failed to use standard of care to protect themselves from D because not enough time - Should the D be shielded because P failed to protect themselves Mental deficiency of either the plaintiff or defendant is not taken into consideration the way a physical handicap does - Standard of care does not change for mental deficiency - Is old age a physical or mental condition? If Alzheimers is tied to diabetes then there will be a lot more cases of Alzheimers Might change tort law Page 164: Lynch v. Rosenthal - Farmer hires worker who has mental capacity of 10 year old - When P is injured he claims that D did not use the required amount of care - Other lawyers said he knew that when he hired him he was not fit for the job Professional Liability Who is a professional? - Accountants - Teachers - Doctors - Lawyers Suits have been brought against law schools - Career services reporting average starting salary at $160,000 but didnt mention only 10% reported - Mention that you must keep 3.4 GPA to keep scholarship, but fail to state there is a curve so only some can keep it - Employment being high, but not stating what the jobs are When there is a duty to inform, failure to inform is negligent - Students in law school suits might have claimed that had the school informed them of the real statistics would have done something else - Would not have gone to that law school or chosen another university Tort of negligence of profession has be understood with fraud Charges were intentional in the law school cases involving not accurately releasing information in order to attract students US News and World Report - Ranks are based on many factors - Only collect stats of incoming freshman Some schools might attempt to ask for transfers of people initially rejected

 Take those with highest GPA and low LSAT and those with high GPA and low LSAT and have good median Professionals - Many catagories Doctorsboard certification Accountants Lawyers Engineers Architects Clergy Teachers Pharmacists Are para professionals? - Medical specialists have a higher standard - What about a LLM? JD/LLM higher standard than JD? - Elements of tort are more complex in professional negligence Duty To whom? Obvious to the client or patient How far will negligence extend beyond client or patient What about other people that suffer from the negligence of professional? (i) A lawyer drafts a bad will, can the intended beneficiaries sue for negligence (ii) A building falls down because of bad design 1. Can the people who work there sue for losing jobs? Breach Focus on breach of negligence Did the behavior deviate from the ordinary standard of care Do not use the average standard of care Would take into account the quacks and lower the standard of care Can be a breach of contract sometimes (a doctor agreeing to perform surgery to make a patient look like patty lamore) Doctor agrees to fix hand so you play piano like never before (i) Two fingers become 1, so only 4 to play with Boutique doctor practices Pay set amount a year for treatment and help when you call Might be more of a contractual issue Causation Trying to say that the injury would not have occurred but for the negligence of the defendant Hard to say that actions taken result in the damage Doctor might have done everything possible but the patient died because the disease was not curable Must prove that the injury would not have happened if there was not negligence and its hard Must prove that a person would not have died normally Client would have won the suit if there was not negligence What if a person has less than 50% chance of recovering, but if Dr. did something it would give me more of a chance is than negligence? Person will die from bad heart, if Dr. uses a stent there would be a 30% chance of recovering Damages

9/26 Negligence the tort includes all the elements - Duty - Breach - Causation - Injury If there is no duty on behalf of the defendant than his actions are irrelevant - Must establish all the elements of the tort - Example: there is no legal responsibility to save a drowning man so there is no duty No case Breach - Breach of standard of care - Standard of a reasonable person - Vaughn v. Mendlove We dont care if a person did their best, there is a minimum standard of care we require The standard of care is what the reasonable person would do in that place at that time In 1820 reasonable person didnt know about automobiles, 1940 they did Exceptions Children Under age of 14 usually Standard of care is based off of reasonable child of same age, intelligence, and experience (i) Standard is based off of children and then individualized to similar child The standard is not lowered when the child in engaged in an adult activity like driving a car (i) Adult activity (ii) Dangerous activity Handicapped Compare that person to other individuals with that disability and what the reasonable standard would be City must accommodate to the needs of handicapped or can be held liable for being negligent Mentally ill Even if Emergency situations What an ordinary person would do if they were faced in that situation (i) Jumping out of a moving vehicle Cant take a life to safe yourself - Standard of professionals Professionals are held to a standard of what ordinary people in their field would do Usually need experts to inform the jury what the standard is Sometimes the facts are so clear that a jury is not needed Statute of Limitations (typically 2 years) (i) Time of Discovery 1. Extends the period in which suit may be brough (ii) Every once in a while there is a situation in which a D was negligent but the plaintiff does not discover the injury until later 1. Boycee v. Brown the effects of the surgery was not discovery until 6 years later 2. Sometimes the courts will apply the time of discovery because its not fair to the plaintiff if they were unable to know the condition existed (iii) May also not know why you were injured

1. Could develop emphysema from exposure to asbestoses but not know when it happened (iv) To Refrom torts this discovery time could be cut out - Statutes of repose Defendants doctrine Typically when a product is sold its not warranted for the life of the product At a certain point the maker of a product cant be liable for damages stemming from it In Illinois its 10 years Causation - Causation in fact is what is we think of causation Must prove through science, experts, etc. that the action/product caused the injury Example Does smoking cause cancer? Did smoking cause cancer in this case? - Proximate cause How far will the defendants culpability extend Example The negligence of mrs. Oleary to watch her cow and it caused fire to burn neighbors property Could the whole city of Chicago file suit against her? No, because people would be afraid to do anything if so many people could make an action you for secondary effects - Cut off for proximate cause Intentional tort feasor with malicious intent has less leeway in cutoff for liability for proximate cause Intentional tort feasor Substantailay certain that the damages will happen the cut off will be farther down Negligent further down - Jury and judge cant establish the standard of a profession, must use an expert If there is a case of obvious deviation from standard then dont need an expert - Specialists have an even higher level of standard - Would a Walgreens doc in a box be held liable to level of a doctor if they are able to write prescriptions? The Professional Heath v. Swift Wings, Inc. (Ct. App. NC, 1979) Facts - Fred Heath was a pilot of a plane that crashed and killed all 4 on board - Crashed shortly after take-off - Wife of one of the victims testified that he was checking out the plane before takeoff - A free-lance (no bias towards a side) mechanical engineering consultant and pilot testified that based on calculations plane should have taken off with flaps and if a problem developed to land in a nearby field - Jury found D was not negligent upon instruction that negligence would be found if a he failed to use the same standard of care a pilot of his training and experience would have used Objectionable to compare pilots activity to a relatively trained pilot Irrelevant what his training is, hold him liable to the standard of objective - P appeals and wins - New case is ordered

Cant overturn the case because the jurys finding was found on bad instructions so the basis is not valid Issue - Is the standard of care a professional must use determined by their actions relative to other professionals with the same level of training and experience? Rule - New rule! Standard of care of the reasonably prudent man remains constant; the amount required varies depending on persons circumstances. (JOB) - Professional standard remains objective Application - People with special skills are held to a greater standard of care then ordinary people when engaged in that activity - One who engages in a business, occupation, or profession must exercise the requisite degree of learning, skill, and ability of that calling with reasonable and ordinary care. - Not good to impose different standard of care on different people for subjective factors - Should have applied a standard of care applicable to all pilots Conclusion - Ordered new trial to be held with the instructions of objective professional standard of care Notes and discussion - The reasonable prudent person takes on the profession of the actor and an objective standard is applied - The standard is objectivethe knowledge, training, and skill (or ability or competence) of an ordinary member of the profession in good standing - Law imposes the professional standard of care, although could be agreed upon in contract If not its a tort - Expert testimony is needed to help establish what the professional standard of care is because jury will not know it because of its technical nature Consequences of a member of a profession testifying against another is hostility between them Doctor who testifies against another doctor who was his friend got kicked out of private club and will be targeted if they make a mistake - Duty is even higher for specialists - Standard is not waived for professional doing something pro-bono - The objective standard is not the average person in the field, its the ordinary person The knowledge, training, and skill of an ordinary person 20% of the field might be quacks and factoring them into the average lowers the average standard of care Basing the standard off of the ordinary person starts with those with the minimal amount of training, knowledge, and skill needed - Hypo: A doctor promises to fix a patients hand because they need it for their profession and offers a normal procedure for $500 in which the doctor could be liable for negligence or a guaranteed special procedure for $5,000 that ensures perfect hand. If the hand isnt fixed would the doctor be liable? Probably so because they made a special deal that ensured the results Different than denying care entirely because of no insurance We want to provide a basic standard of care for everybody, but specialists can offer a higher level service for more money Have a higher tier of care available to those who can pay, but cant lower the standard that a general practitioner provides to those who cant pay

 ER cant not treat because of lack of money but they dont have to provide services that a specialist would do beyond what is necessary (i) Dont have to perform amazing plastic surgery - Hypo: A boutique doctor (small number of patients and more services) promises to always be available. What if he is not available - Have we gone too far in suing doctors? - Is there to much frivolous litigation? - Are juries awarding too much in damages? Health law is going to be really important because people are living longer and facing more problems Damages and Tort Reform - Looking to recover for damages that occurred from actions of defendant Nominal usually in trespass and libel Suit is more about recognizing rights of the plaintiff Compensatory Lost wages Medical bills Non-economic damages Pain and suffering Quality of life, etc Mental tranquility cant be guaranteed because everybody will face some mental hardships Intentional infliction of emotional distress Defendant acted in a clearly outrageous manner Can recover when there are no physical signs of damage if there is extreme distress caused Usually proved when there are physical manifestations of mental distress - The loser usually pays the contingency fee Corporate attorney gets billed by the hour Ordinary people cant afford to do this so the lawyer works for a contingency fee 1/3 of what the plaintiff is suing for If the lawyer loses he gets nothing - Defense of tort reform has 3 claims Wants to cap non-economic damages Its ok for the plaintiff to recover lost wages and medical bills Line has to be drawn somewhere within the field of non-economic damages Tort reformers also claim that cost of healthcare stemming from increased suits driving up the cost has driven out of some specialties and even the profession OBGYN: loss of life of child or mother is present and those suffering get very sad and want the doctors to pay Radiologists Doctors are practicing defensive medicine Ordering lots of tests to cover their base - Texas has capped non-economic damages at $250,000 Illinois has not passed it yet - Problems when lost wages might not account to a lot Older person Poor person Stay at home mother

What if a woman cant have children as a result of the procedure? She could still be a secretary and work even harder and longer because no children to watch. The damages might not affect their ability to work but affect their personal being and cause mental distress (i) Most people want to have children People might not have the ability to try their case under tort reforem (i) In Texas there would not be a lot of compensatory damages to claim so a lawyer will not want to take it. It costs ~ $100,000 to prepare case for trial, if the winnings are close its not worth it (ii) The loser has to pay the court fees in Texas so also a deterant In Illinois a plaintiff needs a signed affidavit confirming their claim of negligence Patients have to ask themselves whats needed and whats not needed For a family member you will want every test ran Doctors have invested in very expensive testing equipment with short lifespan and that might account for the higher cost of healthcare, not just threat of litigation Medical malpractice is only a tiny part of healthcare cost Tort reform could result in lawyers not trying cases involving malpractice, people will not be able to recover as easily, more negligent doctors will practice Doctors are not going to give as much advice because they will only give informed consent Ask them what they would do At the end of the day it will bar some people from having their day in court Caps on non-economic damages deny some from being able to try their case is not constitutional as found in Illinois Legislature interferes with right of jury trial

Hodges v. Carter (SC NC., 1954) Facts - Plaintiffs lawyers filed summons against insurance companies for damages to Ps shop from fire - They mailed the summons to the Insurance Commissioner of NC, instead of hand delivering them - Companies claimed this was not legal, IC could not accept service of process for a foreign insurance company doing business in the state - Trial court ruled in favor of P, SC reversed - P brings claim of negligence on behalf of lawyers for not serving the process correctly and some other reason Issue - Were Ds negligent in how they served the summons? Rule - Professional standard of care Application - Lawyers accept 3 responsibilities when accepting a case They possess the knowledge, skill, and ability needed for the job They will use their best judgment Exercise reasonable and ordinary care and diligence in using skill - Plaintiff failed to provide evidence showing contrary - It was a common practice for attorneys to mail summons instead of deliver them At least 2 decades - Right of IC to accept summons for companies doing business in state had not been test in state court

- Most lawyers of the state accepted that type of acceptance in the state - Got judicial declaration allowing it - An attorney is not liable for an error of judgment or for a mistake made on a point of law, when that point of law has not been settled by the highest court in the jurisdiction. - An attorney is liable for loss to the client that results from a lack of knowledge or skill that would ordinarily be possessed by others in the profession, failure to use reasonable care and diligence and failure to exercise good faith Conclusion Notes and discussion - Possession of knowledge or skill Professionals are not required to know everything, just what ordinary member would know - Exercise best judgment Not liable for mere error of judgment Cant misinstruct jurors by stating the definition as that persons best judgment because it may be below the ordinary standard The error in judgment is not a departure from the standard of care if the choice can be argued either way and has the claims to back it up - Use of due care Describes steps that are mechanical rather than discretionary so easier to test for - Lawyer representing indigent defendant in a criminal case is not immune from suit of malpractice - Plaintiff suffered loss and wanted to make claim from his 4 insurance policies and went to lawyers in good faith - Plaintiff expected that the lawyers would be able to handle the legality of serving the process properly - Court could have said that the service was properly done in accordance with the custom, but from this day onward it will be needed to be done differently - Court instead said its always wrong but the lawyers used good judgment Causation is hard to prove - If you take a patient who is very sick, his chance of recovery is terrible; he has less than 50% chance of recovering. You hope that you can cure him but he dies. Plaintiff cant prove the but for his negligence he would have survived. - Man jumps out of 10 floor window. Man on 4th floor shoots him. He is a malicious intentional tort feasor but the dames were probably low.

9/28 Error of judgment for lawyer - Hard to prove that a trial lawyer is negligent because a lawyer usually is following a strategy - Not good to always object because could make jury mad New issue - Does a lawyer hired for outside counsel have the same immunity that a government lawyer has? Personal injury lawyers are sued the most for negligence - Aside from missing the SOL the most common complaint is mixing client-attorney money Hypo: Skokie radiologist Leonard Berlin was at home and neighbor came over to show him a potentially broken risk. He opens his office and checks her out and tells her that it seems ok but see your doctor on Monday. Husband of woman called and told him he is suing him in the case along

with other parties. He faced criticism and insurance policy went up. He went into court and was told he was dismissed. Lawyer is entitled to represent a client and if the case is dismissed or lost the cost is that the lawyer lost the suit. Berlin claimed that the lawyer was negligent and alleged malpractice for a frivolous suit. Won at the trial court level but overturned at the appealate level because it was just a lost case. Only 2 instances in which a lawyer is liable for malpractice. 1) malicious prosecution 2) abuse of process. What about a policy to make lawyers liable for losing cases? Tort Reform - Caps on non-economic damages - $250,000 - Cap damages some states cap total damages at $5,000,000 - Loser pays Michael Jackson case - Have to prove that doctor caused the death of MJ. Beyond a reasonable certainty Doctors orders - Nobody used to question a doctors orders - Ted Kennedy thought people needed to know about the medicine they are taking so there are patient product inserts People were supposed to read it and call the doctor if they have a problem with it - Used to be a test of what a comparative reasonable doctor would have done Better bedside manners lead to less lawsuits, patients think better of their doctor and less likely to blame them Improve communication can lead to less litigation Insurance premiums are going up and it may cause problems in law - Companies may not be able to afford higher premiums so companies wont hire somebody with factors for future health problems Smokers Obese people Best example of Tort reform for a defendant Greedy lawyers, frivolous lawsuits and poor doctors People like doctors and doctors are sympathetic Patients are getting to much medical care as far as tests go - Defensive medicine is driving up the costs of healthcare - Doctors can get more money from insurance companies because it outweighs the risk negligence and that cost to an insurance company Ethics of drug salesmen - Doctors travel around and sell a drug - Push to disclose if a doctor is representing a certain drug - Doctors are less likely to accept these assignments rather than disclose these drugs Movement to disclose if an expert relied upon by a company is a paid consultant Lawyers for a law journal cant be paid but there is an honorarium - What if they are paid $20,000 to speak at a conference about the article and the conference is cancelled Essentially paying only for the article What measures would you recommend the president to keep costs down balancing the rights of patients and rights of doctors?

Boycee v. Brown Boyce v. Brown (SC., AZ 1938) Facts - Boyce had ankle pain in 1927 and went to Dr. Brown who performed surgery to fix a fracture - He continued to monitor her afterwards until the bone healed completely - He followed the standard procedure at the time - 1934 she went back saying her ankle hurt again - He wrapped it with adhesive tape and filed the edgoe of her arch support which he made her 7 years before and became so worn it was sharp - 1936 she went back again - Went to a different doctor who found upon X-ray that there had been necrosis of the bone - Sued for negligence of Dr. Brown Issue - Did the practice of Dr. Brown deviate from the proper standard of treatment in his medical community? Rule - Medical malpractice Person licensed to practice medicine is assumed to possess the skill and knowledge of an average doctor of good standing in the community he practices and to apply the skill and knowledge with ordinary and reasonable care. Lack of requisite skill and knowledge or failure to apply it is malpractice In order to be able to be held liable doctor must have done something that the recognized standard of good medical practice in the his community forbids or not done something the standard requires To sustain a verdict for malpractice the standard of medical practice in the community must be shown by affirmative evidence and without this a jury is not able to speculate what the standard is or how the defendant strayed from it Doctors are not assumed to be negligent, it must be affirmatively proven and the fact that a procedure was unsuccessful, did not produce the best results, or death of patient alone cant lead to a presumption of negligence or want of skill Expert medical testimony must establish that a doctor was negligent by deviating from proper standard of practice unless the negligence is so apparent anybody can recognize it Testimony of other doctors that they would have done the procedure differently is not sufficient to establish malpractice unless the treatment was outside the approved standard in the community Analysis - Dr. Kent said it was hard to determine when the condition reached the point at which the screw should have been removed - Claimed he would have thought arthritis as well (like D) if she came to him with the complaints but would have wanted an X-ray to be sure - Confirmed that the procedure originally done to heal the bone was in accordance with the standard of care and that the screw was usually not removed - Did not claim what the standard of care was in 1934 when she returned - He claimed that he would have taken an x-ray, but did not say failure to do so is deviation from proper standard of treatment - Plaintiffs argument that it was obvious negligence to not take an x-ray does not hold up True most people know that an x-ray is the best way to examine innards of a person without cutting them open, but cant say that x-ray is needed every time there is an internal problem

Costly and do not always give satisfactory diagnosis Other tests might be better Can end up costing the patient money and not offering any value Nothing indicates that an x-ray would be needed for a case of arthritis because thats what doctors believed it to be Conclusion - Not enough evidence to indicate that Dr. Brown deviated from common practice or failed to meet the standard of care and therefore negligence cant be proven Discussion - The fact that the plaintiff sat on the injury for 7 years hurts the claim of IIED because usually a person takes steps if there is something bothering them - What about the case of the ophthalmologist who did not perform a test for glaucoma because it was not standard of care and still held liable but overturned by Washington legislature? Too hard to predict what should be done and what is going on with a patient sometimes Medicine is not a science Too hard to say something in medicine speaks for itself - In 1930s patients might have full faith in doctor and not know what to do with pain Doctor might say not come back for 6 months In medical malpractice suit - Patient is injured - Wages are lost - Quality of life suffers - Plaintiff bares these costs if the defendant is not found guilty Cant guarantee success in the medical field because of all the variables - Procedures all have drawbacks - Not enough time Doctors do not know about tort law and think that if a patient doesnt get better or dies they will be held liable so they practice defensive medicine - What about a required seminar during med school about negligence and how to avoid liability? Fear prevents doctors wanting to treat some patients because they think they will be held liable somehow because the patient is in such a bad condition To prove negligence through deviation from standard of care an expert witness must be very specific and able to really prove that there was a problem Note 3 on page 186 is important when raice ipsa locotur pertains to medical malpractice cases Many possible ways to outfit an ambulance, not all will be used - Rich hospital could better supply an ambulance - Does a poorer rural hospital have liability for negligence if they cant provide ambulances with the same equipment? - Northwestern athlete was kept on ice in ambulance and was saved, but what if poorer place cant afford the ice? How much does an ambulance or hospital need to anticipate things that may happen, but probably wont happen? More people means higher probability of an injury, but equipment costs the same

10/5/11 In Illinois can face sanctions for a bad case - If a client is more contributory than not can be barred

- If contributory negligent will recover less Questions For Today Local issues in negligence - To establish local standard of care must have a local expert conspiracy of silence makes it hard to find an expert to testify sometimes - There is not really an issue with there being a lack of a national standard anymore since there are national medical boards that certify doctors More of an issue of funding, rural areas will have less funding then urban areas Informed consent - Can bring a case under battery Uninvited offensive contact with the body - Usually brought under negligence Doctor had a duty to not only inform the patient of the procedure, but inform the patient of what the risk is of not performing the procedure Patient must decide what to have done - Three tests Paternalistic test What would the reasonable doctor tell his patient Hard to find another doctor to testify Reasonable patient test What is the risk of the procedure vs. no procedure This patient Taking into account all the idiosyncrasies of the patient to counter why the person may appear to be acting unreasonable Jehovah witness not taking blood transfusion Patient has cancer in uterus but wants children so they elect to have it removed until they have children - When there are material risks there must be a test The issue is not that a patient would want to be a paraplegic The issue is what was the pain at the point of decision What are the risks of different procedures Had the patient known the risks of the procedure they would not have proceed - Would a patient want to know that the doctor has not had a lot of sleep? - Is there a conflict of interest between doctor and patient? - Does the doctor have a financial interest outside of normal scope of working as a doctor - Material risks are only relevant within the context of the situation Why is tort reform the main focus of lowering healthcare? - Litigation only figures in 2% of the cost of healthcare 98% of healthcare costs are from something outside of non-economic damages - Defensive medicine is a result of high costs Attempt to avoid litigation Rises the cost of services to patients 3rd party In Illinois a third party cant sue a doctor, only the patient - If a doctor fails to inform somebody that a person is psychotic and they are injured by them Dr. is not liable for failing to inform others of the patients condition Some cases will never go to court because the negligence is so clear - Sponge left in body, wrong limb amputated, etc

 Is there a duty to a being not conceived at time of incident? - Doctor gives 13 year old girls something that does not harm her, but her child has a severe disability Morrison v. MacNamara (Ct. App. DC, 1979) Facts - Morrison went to lab in DC for urethral smear test Test is invasive and was given while patient was standing up - Patient became disoriented and was injured when he fell and hit his head Lost sense of smell - P brought expert witness from Michigan that said that test is done sitting down or in prone position - D bought witnesses claiming that the local standard of care was for the test to be done standing - Jury was instructed that standard of care was based on local standard and entered judgment for D - P appeals Issue - Should the standard of care of that a doctor adheres to be based off the local standard of care? Rule - In cases of medical negligence involving procedures the standard of care is based off of the standard expected of members of profession in that locality Analysis - The locality rule is outdated Based on disparity in education and access to advances in medical science between rural and urban doctors Protect the doctors who could not be as well trained Doctors would not work in rural areas if they were held to the same standard as better trained doctors Patients in rural areas would not have access to healthcare Problematic Medical education has been updated and standardized throughout the country Protects doctors from malpractice in localities where the standard of care is lower Can even lead to substandard care because doctors will just measure up against other local doctors Rational for change DC is not an isolated rural location under the old definition National board of certification establishes a standard of care People trained in the national standard of care should be held to those standards of care Apply to medical labs Hospitals are held to a national standard of care and labs are very similar Staffed by doctors who are trained in accordance with national standard of care Have same opportunity to keep updated on changes in the standard of care Labs are part of hospitals often Both conduct the same tests Medical lab is nationally certified and advertise themselves as such so should be held to national standard Conclusion - Agree with the national standard of care Discussion - Patient fainted initially and was instructed to stand

- The doctor had responsibility for instructing the patient to sit because of the risk - Patient also had a responsibility to be on guard of risk that standing posed Scott v. Bradford (SC, OK, 1979) Facts - Scott underwent surgery for fibroid tumors on utuerus - Signed a consent form prior to surgery but problems ensued - Was not able to have children because of the complications - 3 surgeries to fix it - Sued for negligence - Claimed that if she was informed of the risks she would not have elected to have the surgery Issue - Is the doctor liable for failing to disclose all the risks of the procedure? Rule - Reasonable patient Analysis - To sustain a cause of action in a theory of informed consent, a patient must show that: * the physician failed to inform the patient of a material risk * the patient, if informed, would not have elected the treatment * the risks that were not disclosed resulted in injury to the patient. Conclusion - A new test instituted, no longer use the reasonable patient test - Use a subjective test based on what the patient would have done if they were fully informed of the risks Discussion - The procedure was not preformed improperly, it was done correctly If doctor was not found to be guilty of failing to disclose he would not be liable for negligene Would have been an accident Moore v. Board of Regents Facts - Moore had cancer and received treatment at UCLA by Dr. Golde - Asked to continue to return for tests on a semi-annual basis - Moore discovered his cells had be made into a commercialized cell line to fight cancer - Sued - Possible torts Informed consent Breach of fiduciary duty IIED Conversion Discussion - The point of issue for IIED is the continued trips to LA Expensive, must pay for travel, lodging, lose wages at work - There is a risk if Moore is allowed to keep his spleen There would be adverse effects on research because people would not consent to giving cells if they had value, researchers would be afraid to use cells because they would not know if they were legitimately obtained through consent

- Property rights Perhaps Moore could keep some interest in his cells, but not complete ownership - Public policy, good faith research efforts have to trump the personal rights of a person - How would you award economic damages? For sure the costs of travel, lodging, etc, done under false pretenses Harder to determine a proportion of the money His cells had to be developed so his share would not be as high If there is a onetime payment when would it be awarded - Hard to determine at what point the patient would not have consented Clearly would have wanted the spleen removed because it was a real danger Would probably not have consented to the continued testing at UCLA because it was done for research Special legislation - State legislation has no right to discriminate against victims of healthcare providers when other cases protect a broader class of tort feasor Jury verdict regarding compensation - Judicial act to review jury verdicts and review compensation with remitteter Legislature has the right to make new law and abolish old law Courts are limited to the facts of the case and situation presented - Judge cant bring in an expert to provide more information Language becomes important - Duty - Breach of standard What would the reasonable person do Breach of a statute - Causation - Injury Breach of statute - They are penal statutes and courts may apply it in a civil case - Its a substitute for what the community thinks the standard is - Easier for plaintiff to prove that a defendant violated a statute than departure from reasonable person Good to have fall back on reasonable person test because court may not use the statute in the case - The parties must be within the category the statute was designed to help - If plaintiff is in the class that is supposed to be protected then the p will claim the D owes him a duty - Must also show the interest, harm, and hazard fell within the scope Must still show that the defendants violation of the statute is the cause of the injury Does the statute permit an excuse? Those statutes that are designed to protect a particularly vulnerable class do not allow excuses - Child statutes - Poison labeling is an excusable duty, must always mark what they are The simply impose liability on the defendant, they do not look at contributory negligence

 Must show that the defendant was careless in violation of the statute, but does not establish negligence yet 10/10/11 Negligence per se Sometimes its advantageous to apply a penal statute to a civil case If it doesnt work try and use the reasonable person standard Proponent has to persuade the court that Im a member of the class the statute was designed to protect Certainty the buyer of chemicals is in the class a statute is designed to protect Product of constistancy in buyer and seller How far do you extend the purchaser - What if a parent buys unlabeled medicine for son? - What about a neighbor? Are they in the class - What if a dog could swallowed the poison? Didnt know it was poison and left it low down and dog drank it Probably wouldnt be in the protected class Is the interest protected? - For poison labeling is why its protected Harm/hazard - Harm is the loss of sheep, hazard is the spread of disease or pen? Have to prove the class, interest, harm and hazard All you have established is duty and the breach of a standard - Duty is the class - Breach is the violation of the statute Must show causation, proximate and legal causation and there are injuries Still not negligence, because most statutes enable excuses Some statutes dont permit an excuse - Doesnt matter if pharmacist is distract and forgets to label Consumer is dependent on the seller to label Page 217 has reasons a statute will not be enacted Page 236 has excuses Pokora v. Wabash Ry. Co (USSC 1934) Dont have to get out of the car and check because things could change between getting out and getting back in car Rule of law was that if a plaintiff was contributory negligent than they will not be able to recover We are dealing with a standard of conduct and when they are recognized they should be instituted to prevent future litigation Is an administrative standard good enough or should courts decide what is good Stachniewicz v. Mar-Cam Corp. (SC Org. 1971) Facts - Plaintiff is a patron of bar - Bars have dramshop rules which prohibit serving alcohol to intoxicated people - Plaintiff gets stepped on after a fight ensues

- Sues the dramshop because he has to protect patrons from third party Discussion - Cant sue the person who knocked him down because P didnt know - Was a violation of a statute and an administrative regulation - Statute makes it a violation to serve liquor to those already intoxicated Does not say anything about the injuries between the person who caused the injuries and who is liable Injured would have occurred already prior to the violation No link to breach of statute and injury because the person is already drunk So the statute is not what applies - Administrative regulations Prevents the recurrence of bar fights by not allowing people to act badly in a bar This is the violation that allowed the injury to occur - What about if a delivery man is injured? Probably included in the class under the regulation - What about a hold up man? They come in to rob the bar but get caught up in the fight - What if a patrons watch disappears? Personal property may not be in the interest of the regulation Section 288 is important - Court will not grant a regulation under these circumstances Ney v. Yellow Cab (SC Ill. 1954) Facts - Cab driver left cab running in the street - Thief hijacked it and it hit the plaitiffs car Discussion - Is the statue for not keeping a car running or have keys in them for public safety or traffic regulations - Unreasonableness of thief - Does the thief assume full responsibility - Theft is the proximate cause of any injuries, but may not be as reckless - Plaintiff could sue thief and cab driver for negligence and also cab company - Defendants agent made it more easy for a reckless person who has no reason for driving (adrenaline thief) so they are liable for it - On the other hand, its not a foreseeable result, so could claim its not a duty - If the cab driver was held up at gunpoint he violated the statute but he behaved reasonably within the excuse - Look at leopard skin convertible left next to high school? If its substantially certain that somebody would get in it, the owner of the car would be more liable for damages another driver committed - What makes the cab driver more liable is the foreseeable, thief is not a superseding cause, theft is totally foreseeable - Dont need to foresee a criminal act usually, but this case found that it should have been foreseen D was obligated to foresee the ability for a car to be stolen when the keys are left in it - Based on foreseeable danger - Foreseeability as root of negligence and intervening cause of a third party as liability

- Quote from Cardozo - A tense thief is more dangerous than a normal driver because of their adrenaline Perry v. S.N and S.N (Texas, 1998) Facts - Parents of children in daycare are brought claims of common law negligence and negligent per se against defendants for failing to report child abuse at the day care that the Ds friends ran - Trial court issued summary judgment for Ds motion claiming that P failed to state a claim for common law negligence and severed claims against them - Appeleate Court affirmed summary judgment but remanded for negligence per se - P did not challenge summary judgment for common law negligence Issue - Does the Texas statute requiring reporting child abuse create negligence on behalf of the defendants? Rule - People must file report with the police or the department of Protective and Regulatory Services if they have cause to believe that a childs physical or mental health or welfare has been or may be adversely affected by abuse Analysis - Must have a duty to be liable for a tort of negligence - Criminal statutes dont always correspond to a civil duty - Determining if this statute creates a duty to report child abuse to all who know or who have good cause to believe it Not just applying it to this case - Questions that must be answered in negligence per se case are Is the plaintiff in the class that the statute was designed to protect Are the injuries suffered of the type the statue was designed to protect against - Children were of the class statute sought to protect and injuries were of the kind that statute sought to protect against - Need to evaluate if its appropriate to impose tort liability - Tried solely on the basis of negligence per se in violation of the Family Code - There is no common law requirement to come to the aid of a third party and court is not being asked to impose this liability - In negligent per se cases the D already owes the P a duty through the statute Statute defines the duty of a person - Normally imposing a statute to impose liability already recognized by common law there is no new duty created - When there is statutory duty created without a common law duty, there is a new duty created and it could pose problems Even more so when the statute deals with inaction, opposed to action - Must evaluate factors to determine if the negligence per se duty should be adopted - Ct. Appeals said that legislature adopted the statute because it was practicable and desirable and it puts citizens on alert of required conduct Some penal statues may be to obscure to put public on notice, impose liability without fault, or lead to ruinous monetary liability for minor offenses - SC considered if the statute clearly defines required conduct Law stated that people who know or have good cause to know about abuse must report it D saw the abuse so its clear they had a duty

 However, person may only become aware of abuse through secondary sources and statues that condition difficult judgment calls does not clearly define conduct - Would imposing statutory duty create liability without fault? No, statute criminalized only the knowing failure to report Supports imposing - Would imposing the duty create liability disproportionate to the serious of the conduct? Yes, there is a difference in legislative history between committing child molestation and not reporting it. Much less severe penalty for failing to report abuse than actually committing it Cant hold non-informer liable for damages that abuser should be responsible since he did the actual act Wide range of people could be impacted - Is there a direct or indirect relationship between violation of the statute and injuries? Indirect, cant be liable - Precedent from other states does not impose liability in negligence per se Conclusion - Imposing negligence per se could not be limited to a specific class of people like those in the case, but rather across immense potential liability on broad class of people with an indirect relationship to the abuse it is not appropriate to adopt the Family Code section as establishing a duty and standard of conduct in liability. - P cant recover 10/12/11 How do you know when to accept a client, avoid malpractice? Applying penal statute to civil duty A) Penal Statute 1. Does not apply (legislature could have, but did not provide for civil remedy) Legislative intentno civil remedy 2. Court may still refer to the statuteas some evidence B) Law Proponent tries to persuade judge that statue should apply by claiming legislature intended to protect 1. Class \ 2. Interest \ 3. Harm /--------To which plaintiff belongs 4. Hazard / Judge determines questions of law, jury determines question of fact If court agrees sometimes called neg. per se Once judge determines that proponent is of the class the jury must rule in favor of them Jury decides facts based on law that judge decided C) Fact Questions Did defendant violate the statute? But still must have caused injury (damages) Deviation from standard defined in statute must have caused the injuries Is there a legally acceptable excuse? Judge can define what are acceptable excuses Jury decides if the facts of the case allow an excuse

Effect of Statute Martin v. Herzog (Ct. App. NY, 1920) Like Brown v. Kendall, if the plaintiff was negligent than they cant blame the defendant if Ps negligence contributed towards negligence. Unexcused violation is negligence If P was 5% responsible for the injuries and D 95% responsible, its barred 4 jurisdictions still completely bar a plaintiff if they are contributory negligent Persumptions - Permissible Inference Things which you infer from fact 1 If you destroy evidence after accident, may infer that the evidence was harmful - Rebuttable presumption Things we rely on everyday life Everybody is sane A child born alive is presumed to live on Things everybody should know If I havent heard from you in 7 years I can assume youre dead Child between 7-14 is assumed to be liable for negligence - Conclusive presumption A child under 7 is incapable of being held liable for negligence Doesnt matter there experience or knowledge Everybody is assumed to have knowledge of the law Others can be rebutted, conclusive presumption cant be rebutted Evidence - Real evidence The actual relevant evidenary object Ladder that broke Arm that was injured, etc - Demonstrative evidence Charts that show information X-rays, etc - Circumstantial evidence From Fact A may be able to make an inference of fact B - Res Ipsa loquitur Zeni v. Anderson (SC Mich, 1976) Facts - Zeni walked in street because the sidewalk was covered with snow Walked on a well used pedestrian path Safer method than walking on the sidewalk - Defendant hit her with car Might have been negligent because it was unclear if the windshield was foggy or not - D claims that driver violated statue requiring use of sidewalk if available - P claims that the sidewalk was unsafe and had to use the street Testimony confirmed it was probably safer

- Both are negligent in some way Issue - Was the nurse contributory negligent to the degree where she could not recover? Rule Analysis - The nurse had to use street, and not at fault Conclusion Discussion - Legal excuse exonerates person who violates the statute From Zeni case - Could be possibly an issue against the city because there were prior accidents and should have been on notice - What should a plaintiff do to mitigate damages? Should you walk on the snowy sidewalk or know the court will say its ok to walk in the street because its safer? - What is the responsibility that a person has to watch out for their own safety? Walk in the proper direction? Wear visible clothing? - In Brown v. Kendall and Martin case contributory negligence bars case - Page 103 note 9 and page 216 - Should conformance to any Federal legislation, act, or regulation be the standard for negligence when a state statute requires different conformance? Plaintiffs hold that in spite of conformance there could always be things not covered TJ Hooper Agencies also are underfunded to make standards in timely manner Ds say its easier to conform to 1 standard Comparative Fault - More common form of deciding contributory negligence opposed to complete bar for any c/n - Compares the plaintiffs contributory negligence with the negligence of the D Many jurisdictions will bar the P from recovering if the P was more than 50% contributory negligent Others are pure comparative negligence Recovery is based on percent the other side is negligent Recover all damages not caused by their c/n P is 98% c/n receives 2% - Illinois does not allow recovery if the P is more c/n than the D - Something bothers people that allows P to recover even if they were more negligent than the D - Example: $1000 in damages P c/n is 49% and D is 51% = 51% recovery of fees pure comparative negligence P 50% and D 50% = 0% recovery if recovery doctrine states p can recover so long as D is more negligent Jury may decide 50/50 without knowing that a draw would bar the case Not given the instruction because it would skew the verdict P is 51% v D 49% = 0% recovery if complete bar

Proof of Negligence Slip and fall cases are the bread and butter cases of tort law Proprietor of store owes highest standard of care to business invitee

 Its reasonable to hold defendants owe a duty of care to their customers Using BLP formula in cases of banana peels is determined by length of time - Hold owner liable for old blackened bananas because they were on the ground for a longer period of time and owner should have discovered and removed it to provide more safety for the customers - Dont want to hold owners for constantly monitoring the store because it would be too great a burden Periodically monitor a store - Yellow bananas are too fresh to hold an owner liable Owner must take steps to protect the premises as long as the burdens are not too high and wont be held liable Not respondiat superior, the employees dont create the situation - Usually a third party creates the dangerous condition, (ie., dropping banana) Constructive notice: employee is notified so agent is assumed to be notified Burden of proof on the plaintiff - Convince judge not to dismiss the case There might be something in the fact pattern that should allow the case to proceed - Convince judge enough to send to jury - Convince jury your version of the facts more probably than not is sufficient to allow recovery In tort law must prove what you are alleging - Particular defendant caused an injury complained of This section of the book deals with when you dont know what happened, can you rely on circumstantial evidence? What do you do when the evidence is missing? - If you cant prove it, you are usually out of luck Can have a negative inference drawn against a party if they fail to produce evidence - The other side has a right to test and determine the defects of the product Essentially if you cant prove it you are out of luck. - Was the judge right in sending the case to jury and did the jury decide correctly - Judge can say the evidence presented to jury is not sufficient for them to rule on Res Ipsa Loquitur Byrne v. Boadle (Court of Exchequer, 1863) Facts - P walked down sidewalk and barrel fell from window of store onto the P - Dismissed the plaintiff Analysis - The instrumentality was in the control of the defendant - Accident is the kind that does not normally occur in the absence of negligence - When c/n was a complete bar the plaintiff could not have been c/n Conclusion - Ps case should go to trial Discussion - D would have to provide evidence that they were not negligent Example, held up and thief pushed it out - Usually if the instrumentality is not in the control of the D, there is no res ipsa loquitor

 Sometimes could have a case (ie, brand new car veers of the road on a clear sunny day. Driver was following all rules and driving carefully. Must be a problem with the car because no other possible causes.) - How do we know if something doesnt happen in the absence of negligence? Judicial notice, everybody knows a barrel doesnt just fall unless the situation allows for it to fall 10/17/11 Its easier to apply tests to tort law cases, its harder in this area We will be looking at causation Its hard to assess monetary damages in a case that involves negligence like allowing a child to be born Plaintiffs helpers - Application of penal statute as standard of care judge determines if the statute applies short cut to reasonable care standard Does an excuse exist? Or is the statute designed to protect a class of people that are not able to protect themselves? Ie. No excuse for failing to label poisonstrict liability Also blasting Use it to prevent a case from being dismissed from lack of evidence Helps the P argue that a standard of care a D failed to meet If P fails to convince the judge there was a duty of care he can fall back and argue that the D failed the reasonable man test Might be harder to prove, but gives an option NOTE: if appel gives a statute on an exam she would be asking what components a plaintiff needs to argue for it to be adopted Is the plaintiff or defendant a member of the class, is this the harm, is this the hazard If you give the issues correctly and its within the legislative intent you will be ok Even in new york when cardozo says failing to use headlights is negligance per se its not enough Must show defendant violated the statute and the violation of the statute caused the injury Jury must find Did the plaintiff or defendant violate the statute? Did the violation of the injury cause the injury? (i) Was the action of the negligent party a proximate cause of the injury? 1. Is the injury too far to hold the violator liable? Can the party recover for the injuries (i) Sometimes there are limits on the injuries could be recovered (ii) Tort reform limits non-economic damages - Res Ipsa Loquitur Judge determines if it may apply Different from Respondeat superior Employee must have caused the injury in the scope of normal employment If the defendant is in exclusive control of the instrumentality that caused the injury and the injury is not of the kind that would be result except for negligence and the there was not contributory negligence Exclusive control = had the right of control Some states like Illinois allow recovery if there is contributory negligence if they have comparative negligence doctrines As long as the Plaintiff was less than 50% liable for the injuries they can recovery

 Its the force of the facts that give rise to the conclusive presumption of negligence Some things are so clear that there really isnt anything for a jury to determine, but if the case makes it to court the jury must take as presumption of negligence 2 trains collide on 1 track Doctor amputates the wrong limb Some things are less clear and may only be circumstantial evidence If you cant eliminate other legal reasons for an event then there is probably not res ipsa loquitur Example: On a bright sunny day, healthy and careful driver, drives a new car down a smooth straight highway without traffic and gets into accident No bad weather No sudden emergency No history of being a bad driver There could be a permissible inference of negligence since there are not many factors remaining that could be attributed to the crash Defendant would come back and claim that there could be a defect in a car Rebuttable presumption has some weight and if its challenged it can be accepted by a jury as more than an inference It should be accepted and defendant should come forward to challenge it Inference is something a jury can take into account Even if the judge allows the use of res ipsa loquitur the jury still has to find the actions caused the injury Res Ipsa loquitur is applied to the question did a defendant violate a standard of care? If its a presumption than yes defendant did violate a standard of care Approach to determining res ipsa loquitur Judge: may res ipsa loquitur be applied? What force is to be given in the case? If conclusive presumption jury must find (i) Example: by leaving an instrument in a young girls uturus we know its res ipsa loquitur. Shes not injured by it, but after getting married she cant have a child because the instrument caused scarring in the uterus. Can probably be found liable for the injury because the injury caused by the doctor was the proximate cause of the injury (ii) Same except the mother delivers a child pre-maturely because the scarring prevented carrying a child to full term. The child is born with handicapps, can he/she recover? Maybe not, doctors action would have had to be the proximate cause of that persons injuries. Hard to extend liability beyond the injured party. Defendants doctrines - DutyJudge determines if there is a duty Explain to the judge he has no duty to act a certain way - Legal cause Jury determines Theoretically actions of D set of chain of events that injured Plaintiff, but D claims should not be held liable for some reason Defense Public policy issue Not liable for every injury in a city wide fire that spreads Judge can give judgment nov if he doesnt believe jury was correct

Res Ipsa Loquitur McDougald v. Perry (SC, FL, 1998) Facts - P driving behind D who was driving a truck - Tire was held under Ds truck, but something went wrong and the tire flew out - Chain and mechanism holding the tire in was not updated during the life of the truck - Unsure how the tire came out - P claimed RIL, D claimed unsure what caused the accident Issue Rule Analysis - Tire would not have come out if the tire was properly held in place - Jury can make a permissible inference of negligence based on the facts - Can take notice of facts that everybody knows from past experiences Conclusion - D is liable Discussion - What is considered to be widely known? Might be important to have diversity on the bench because different people have different perspectives These different perspectives may apply to issues of RIL - Re-read the hypotheticals 3C: driver - Page 255 only examples Instrumentality in control of the defendant and accident does not normally happen without negligence - Tie this into our understanding of the facts Larson v. St. Francis Hotel (Ct. App. Cali., 1948) Furniture was not in the exclusive control of the defendant so P cant claim RIL What about if an injury happens to a college student on spring break where the hotel owner operates to provide fun for younger people? - The hotel owner knows they cause damage and needs to take steps to prevent future actions from occurring In common law nothing was worse than being found to be a joint tort feasor - Every defendant is jointly and severally liable - If a plaintiff sues multiple defendants and can show they are joint tort feasors it meant that the Plaintiff could pursue each D until he collected the amount he was seeking Could make a different monetary claim against each D Example seeking $100,000 D1 = $25,000, D2 = $25k, D3 = $25k, D4 = $25k Or D1 = $100k Defendant used to have to legal option if the P sought all the recovery from them or an unfair amount Court would say you were a tort feasor and have to solve the matters out of court

- Two ways to be found a joint tort feasor Court would say your negligence in contribution with others would cause a single indivisible injury Each D could be negligence in failing to act a certain way Liable for the specific injuries they cause In concert All the Ds are part of the same occurrence and are liable as 1 The wrong D could be held liable - Problems with this system If there are 4 Ds and each knows they could be fully liable for the injuries they will want to avoid being found liable Same situation with 4 Ds facing $100,000 in total damages D3 may offer a settlement of $5,000 in exchange of waiver to not being sued Or may offer to testify against another D P might be friends with a D and target the other 3 defendants - Support There can be more than 1 person responsible for an injury Why should somebody be exonerated who is part of the problem - Today a defendant can seek contribution from other defendants if they are held unfairly liable Not indemnity like an employer seeking to recover because of judgment they are responsible for from conduct of employee This is a situation in which the defendants are all tort feasors, but want the responsibility divided among the defendant Ybarra v. Spangard (SC Cali, 1944) Facts - Injury occurred to a healthy part of the body that was not in the scope of the surgery - Goes in for apenectomy, but ends up with injury to the sholder - Was made unconscious because of the anesthesiologist Not in the world of respondeat superior - Possible Ds include Dr. who recommended the patient, Dr. who performed the surgery, Dr. who manages the hospital, the anesthesiologist, and a nurse - Was injured during the surgery, but Ds claim not a single person can be found liable - P sues claiming its res ipsa loquitur Issue Rule Analysis - They have serial control of his person and are responsible for his wellbeing Conclusion Discussion - Is the court prejudiced against Drs because is known they dont like to testify against each other - Legally some of the staff are not responsible for the conduct for others - Not quite the same as the turkey mothers who each made turkey on their own - Policy arguments Completely vulnerable when unconscious and because of the actions of defendants there was an injury

They had serial material control of your person, and without their negligence he would not be injured Want people to be able to recover under these circumstances Usually a certain person will be identified as the person who commits the action that caused the injury - Possible result of the case is that the least culpable defendant could be liable for all the damages - Two bad alternatives Vulnerable plaintiff is unable to recover for damages that resulted from negligence Innocent defendant could be held liable for an unfair amount of damages - Example: Plaintiff died while in the care of 3 defendants Ds are tort feasors who are held jointly liable P is considered to be innocent and has no fault completely blameless Since there is a clear division between innocence and being a tort feasor any of the tort feasors should be liable - Problem with above example is that a negligent plaintiff can recover in most states Lets say P is 40% at fault and D1, D2, and D3 are each 20% liable Each D will want to only have to pay 20% because the P pays for his liability But what if one of the Ds is insolvent? Should the P give up that 20% of recovery? Should the 20% be divided among the other Ds? Who absorbs the insolvency of one of the defendants? P or Ds? - Basically want to smoke out the Ds and make them testify Old idea was that a plaintiff was able to pursue the defendants until he recovers Now that there is a comparative fault doctrine, does the doctrine of joint and severally liability still exist? Judge found against all of the defendants and they cant explain themselves Who should bare the risk that one or more of the defendants are judgment proof? - If 2/3 of defendants cant pay their 20% share then does the P only recover 20% or all 60% by making the other D take on the remaining damages?

10/19/11 Negligence - Duty - Breach - Causation In fact Proximate - Injury Causation in fact - Could cause (more probable than not) may need experts - Did cause Proximate legal cause - Assuming above, in unusual case, should the defendant be held liable? Question of causation is there a causal link between the defendants conduct and the injury Think about the question of causation in 2 parts - Could the action (drug for example), cause the injury? Not enough to say its possible

Will need evidence to prove the possibility Active bench Judge acts as the gatekeeper in determining who reaches the jury Not every quack can come into court and say vaccines cause Autism Negligence is a mixed question of law and fact - Did it in this case cause the injury? Railroad admittedly violated its own standard by speeding, but experts showed that even if they were travelling at the mandated speed the collision would have been unavoidable - The plaintiff responded that if the train was going at the proper speed there was a chance for the relative to cross in time. That argument did not hold because there was no evidence that he would have cleared the tracks, it was speculation If there was no dispute that the car was going fast then the argument could have worked Issues with causation in fact - There can be more than one cause Court will say in language a proximate cause Example: multiple defendants put chemicals in a stream, but not enough individually to pollute it But for - Its a cause if its a substantial factor A defendants negligence may combine with an act of G-d Example: fire could be caused by defendants negligence and bolt of lightening Its not a but for because there are 2 causes Was the defendants conduct a substantial factor? Proximate cause - Defense doctrine and limiting question - Arguing about if the defendant should be held liable - No precedential value - Persuasive advocacy to expand proximate cause if defending the plaintiff - Defendant is going to want to prevent expansion because of public policy Use common sense in determining if the action is linked to injury

Gentry v. Douglas Hereford Ranch, Inc. (SC Montanta, 1998) Facts - Guy carrying a rifle trips and discharges the rifle - Bullet hits women and she dies - Husband sues the Ranch (grandmother of wife owns the ranch) Analysis - Owner of the ranch has a duty to keep stairs clean because they know somebody will use them and could trip - Defendant could not remember where he was and there was no evidence of where he tripped Court cant accept that the tripped on the steps Kramer Service, Inc. v. Wilkins (SC, MS 1939) There is a legal difference between a probability and a possibility - Anything is a possibility - We move from the remote possibility to something more: If its probable then the defendant should have foreseen it - High probability has factual force

 What happens when something bizarre happens that should not have been foreseen? - Should the plaintiff who was injured not be able to recover? - Should the defendant pay for damages they cant foresee stemming from their conduct? Proof of Causation Reynolds v. Texas Railroad (Ct. App. La. 1885) Facts - Heavy women (250 pounds) told to hurry up because the train is coming - Stair case was extra dark because she emerged from bright room - She tripped on the stairs Discussion - It was a public carrier so they owed a special duty of care to their customers - In rural America you were dependent on innkeeper because there was no alternative Only 1 inn, 1 train, etc Herskovits v. Group Health Cooperative of Puget Sound (SC, Wash. 1983) Discussion - If its more probable than not that he will die of his injuries, what injury did the doctor cause in failing to treat the patient in time? Lost chance - For legal malpractice, it must be shown that had the lawyer not been negligent in the first case (ie, failing to observe statute of limitations) the client would probably more likely than not be able to win the case - Applying it to medical cases doctors shouldnt be liable if the patient had less than a 50% chance of surviving, but not so - How do you award damages it the instance of lost chance? Emergency room issues - Defensive medicine results in doctors sending more patients to ER for examination Outside consultation Pass on culpability - Poor get sicker because it takes longer to get treatment - Overall not good situation with more patients in ER and staff overworked 10/24 These set of cases deal with instances when the P is allowed to try case even when they do not have all the proof needed for usual negligence case Defendants are both careless, they expose P to risk - They are not both negligent because there is no causation and injury for both If P cant demonstrate who committed the act, the lack of proof would result in the case dismissed Similar to Ybarra because P could not indicate which D was negligent since he was unconscious California has always had an activist bench - Ybarra (1944) Res Ipsa was carried farther than usual Unlike in Summer v. Tice not all the Ds were careless - State Rubbish (1952) new tort IIED - Sindell (1980) all are held liable, even if the Ds are not 100% liable for the production

- Summers (1948) defendants are given the chance to exonerate themselves before they are found to be joint and severally liable Fixing the blunt end problems in medical care is equivalent to seatbelts solving deaths from traffic accidents - Would be a great way to prevent litigation Experts are needed when the subject matter is beyond what normal people know - Judicial review doesnt even extend if the judge knows about the subject (ie, judge was former biochemist) still cant rule on it In violation of penal statute its the judge who determines if it can be a standard in the case Duty is a judicial decision Expert testimony - Many experts only testify for one side Problem is that becoming a one sided expert can get you impeached from the case - Dont allow anybody who claims to be an expert to be allowed Must not only have credentials, but have the proof to speak about it For example expert conducted research on topic

Daubery v. Merrel Dow Pharmaceuticals (Ct App. 9th, 1995) Judge must do 2 things to determine if the expert testimony should reach the jury (p. 287) - The judge wants to know if the research supporting the testimony predates the litigation Was the research done in advance or for the purpose of litigation? - Was the research subjected to peer review? Judge used judicial notice when stating FDA was effective in approving drugs for use - Today the FDA is understaffed and today it may not be right all the time What should the role of public policy be when there are counter forces? Could this drug cause the malformation is the question being evaluated The question of did it cause the malformation is up to the jury Herskovits v. Group Health Cooperative of Puget Sound (SC, WA, 1983) Facts - Trial court granted summary judgment for D in case involving malpractice - P was not diagnosed with lung cancer in a timely manner - Had less than 50% chance of survival - The misdiagnosis resulted in a proximate cause of 14% reduction in chance of survival Issue - Is there a cause of action for a malpractice case when the patient who has less than 50% chance of survival is misdiagnosed and the chance of survival decreases? Rule - Once a plaintiff demonstrates that Ds acts or omissions increase the risk of harm to another, the evidence furnishes a basis for the jury to determine if the increased risk was a substantial factor in causing the harm Analysis - D argued that P must have had at least a 51% chance of survival before the misdiagnosis - Court rules that showing a 14% reduction in chance of survival is enough to have a case when it moved the chance of survival from 39% 25% - This does not mean P can recover everything Only damages from the premature death

 Conclusion - Reinstate the cause of action Discussion - Hard to extend it beyond medical malpractice - For malpractice cases involving lawyers must be able to prove you would win the case if it was properly handled Ie. Lawyer missed the SOL and case would have won = recovery - In criminal cases must get conviction reversed and target lawyer Class discussion - Is this similar to a person jumping from a 10 story window and being shot on the way down? Person is guaranteed to die, shooting them only makes it sooner - The court in this case is decided the way it was because although H was dying (less than 50% chance of survival) he still had a chance The misdiagnosis deprived him of the chance to survive by cutting down his chance of survival People want a chance to live - Doctors wouldnt care if they had very sick patient if they were not liable for diminishing patients chance of survival even if the chance was low - Cause in fact - The first question is at what point is the chance of survival to low to hold a doctor liable? - The second question is what damages do you award? Some patients live longer than expected and others live less Hold doctors liable for the period of time lost by the misdiagnosis Patient dies 2 months early, doctor is liable for that - Patient is not guaranteed to die of a illness even if they have a low chance of survival There could be an experimental procedure that works There could be a recovery - Think about the idea that law might not be designed on the basis all doctors are only motivated by not being sued Law is in place to hold the doctors who practice for adverse reasons liable for an expected conduct - Who gets the procedure? The sickest or the most likely to benefit? - What about an organ transplant? The sickest person needing an organ or the next on the list? Looking at cause in fact - Duty - Breach - Causation In fact but for the defendants conduct the injury would not have occurred Substantial factor ds action was a substantial factor in causing the injury Multiple causes/defendants 1. Concurrent joint and several liability? Acting in concert Causing a single individual injury Each tort feasor can be found liable for the whole 2. Or can responsibility be shifted from one D to the other?

- Or is mere vicarious liability? Ie, responiat superior - Multiple defendants acting alone Defendants dont know each other, both act independently (not in concert) to bring about the injury Summers v. Tice (SC, CA, 1948) Facts - P shot by D while on hunting party - Unable to prove which D shot him Discussion - Negligence is causation of injury without affirmative defense - One of the defendants is not negligent because did not injure the plaintiff Both were careless, but 1 was lucky - Different from Ybarra Summers Know nobody can explain it All defendants are careless Ybarra Probably knows who is liable for the damages Not all defendants are careless Sindell v Abbott Laboratories (SC CA, 1980) Class discussion - Synthetic estrogen pills were created in 1938 and made by a British doctor who was not allowed to claim patent No record of it, anybody could use it - Helps prevent miscarriage - Drug was marketed after the WWII (people wanted children) - Expensive, so people who took it were mostly wealthy Important in lobbying in NY - By 1952 became a common drug and marketed widely, but FDA also had reports that there were more issues than benefits - FDA did not withdraw the drug until too late - Mothers who took the drug were not themselves injured The daughters of the mothers began to develop unique type of cancer in late teens - Doctor began to worry because saw a few patients with the unique type of cancer - Mother told doctor that she took DES when pregnant, doctor confirms other mothers also did - Problem of SOL in NY Only 3 years, so way past the time the event occurred - NY allowed a revival statute that allowed Ps who did not know they were injured to file suit even if SOL ran Only some chemical cases allowed DES allowed - Pills used to be distributed by local pharmacist who used whichever company provided it - No way to tell which company provided the drug - Could show a link between drug and cancer so the could the drug result in cancer was satisfied - Blasting cap case

Blasting caps caused injuries Was destroyed so couldnt determine who made it There were only 6 companies in the US who made them and they had an association Failed to provide warnings Since they were all linked could hold them joint and several liability Problem was most of mothers who took DES didnt know which company made the pills 5 or 6 companies were responsible for 95% of the DES production What theory can you use to allow patients who didnt know the maker to bring the case to court? If you accept In DES case the manufactures were independent and didnt know each other reject in concert Cant hold them joint and severally liable If you accept they are in concert they are joint feasors and plaintiff can bring all manufactures as defendant They are joint and severally liable Would want to bring case against 1 defendant and collect (i) Make the defendant deal with seeking contribution from other defendants If they are all joint and severally liable collect market share from the defendants Not all the DES was being given for miscarriage Is market share for all cases of mothers using DES or only miscarriage use What years are part of the market share? Can you exonerate yourself by proving that you did not distribute the DES? No, cant prove that its not your drug Plaintiffs are mad because if they are joint and severally liable cant collect all from one Market share is beneficial to the defendants Defendants are mad because they are not able to exonerate themselves Will be held liable for the market share Page 362 case by Sol Whatler Granddaughters of DES mothers also developed problems from birth (mothers had development problems that caused birth problems) They are not allowed to recover even though there is a link because liability would extend to far Its artificial, could have limited the liability with granddaughters, but doesnt As long as defendants before court produce 90% of the pills its sufficient to hold them liable Still a 10% none of them made the pills This is not Paul v DuPont because they are not held joint and severally liable Cant collect all damages from 1 defendant Each manufacture is only responsible for their market share NY created a yearly grid of production in the state and a grid for the type of damage (infertility, cancer, etc) Plaintiff can only recover 90% of amount sought because there is only 90% chance of them making the drug To many other makers to include all as defendants (215)

10/26/11 DES daughters were already inutero when their mothers took the DES The granddaughters were not exposed to the DES enutero Plaintiff does not have all the information Ybarra also could fit in this Daubert

- Plaintiff knew who the defendant manufacturer was, but couldnt prove the drug caused the injuries - Can have multiple reasons for shortened limbs Sindell - Plaintiffs knew DES caused the injury, but couldnt show which defendant manufactured particular pill taken by mother Asbestos/lead paint - Asbesteoses is a singular disease, but products very in toxity - Lead paint causes injuries, but Enright v. Eli Lilly (Ct. App. NY, 1991) Facts - P was granddaughter of the DES taker - Ps mother developed problems with reproductive system and P was born early with health problems - Tries to sue maker of DES Issue - Can a generation not yet born recover for damages done to prior generation? Rule - Prior case did not allow recovery by P when mother was injured before P was conceived Analysis - Court reasoned this case is similar to Albala and the reasoning should apply - Court wanted to create manageable limits for liability - Public policy concern, people want rx, so cant be overly burdensome on developers They will not develop new drugs if they are afraid they will be sued - Plaintiff was not exposed to the drug in this case Plaintiffs mother was exposed while she was in the womb Conclusion - P is not able to recover Discussion - Duty = class - Breach (standard) Reasonable person Violation of statute - Cause in fact Could it cause the injury? Did it cause the injury Legal causes - Direct consequences: as long as there are not intervening causes a defendant is responsible for all evens that follow directly from the defendants carelessness Is the intervening cause foreseeable? Defendant held liable until they can prove a legal supersedeory cause took place BLP - Person will forgo a burden equal to the loss and probability If the loss is great, but the probability is small and the burden is not too large there is a burden In proximate cause cases there is little agreement between judges and cases Need to recognize when a problem is a proximate cause issue

 In Illinois there was a case where a daughter of a patient who was given the wrong blood type was able to recover because of the injuries even though they she was not conceived 10/31/11 Duty Breach Causation: fact and legally proximate Injury Unlike criminal law, tort law is not proportional - Momentary lapse in paying attention makes a person an inadvertent tort feasor The problem with simply stating inadvertent lapse of attention is that it fails to establish there was no reason for the lapse in concentration For every person on the exam that is brought as a tort feasor must go through the common law negligence test - Must also discuss any affirmative defenses and the role they played in the negligent act The goal of tort law is to compensate the wrongful tortuous act of another - Could be intentional or negligence Proximate Cause What factors should be considered by a judge to determine something has gone too far and liability must stop - Malicious intentional torts are different because consequences usually follow from the act Person intended to cause harm, doesnt matter if the consequence was not foreseeable You set something in motion - Answered could conduct cause injury and did it cause injury (yes to both) - Question is should the defendant be held liable for the injury What are some of the arguments - Policy implications Only need to look at present political system to know that people can have different ideas about what is advancing public policy - Foreseeability Defendants ability to foresee the consequences of his conduct While some things are not probable, but only possible (even remotely possible) if the seriousness of the loss is great enough we may require the defendant to take some burden that is fairly small to prevent the loss The greater the loss the less likely it must happen to make the defendant take action - The more removed it is from the act, cut off responsibility (time and space) - Direct consequence As long as the defendant was careless (like dropping plank) because it could cause injuries, you follow the results as long as they are directly related The falling board caused the spark (direct consequence of falling board) Unless there is a superseding casuse Example: original tort feasor will be held liable for all direct consequences and everything that follows from the harm to the plaintiff required to help the plaintiff Ambulance gets into accident taking victim of negligent person to hospitaldefendant is liable for the crash because it only happens as a result of the injury to the plaintiff in the first place

 Sometimes we dont care the way in which the injury took place, but the fact the type of injury was foreseeable is what matters - Using gasoline near open flame could cause an explosion - Didnt matter that a rat caught fire and caused the explosion Plaintiff is a pedestrian hit by negligent driver - Having put the plaintiff in a weakened state an ambulance will be needed to bring the patient to the hospital is foreseeable - Foreseeable that a doctor will need to treat the patient - Lets say the ambulance is delayed and leg is amputated - Defendant is liable for the amputation because its foreseeable that ambulance/doctor can be negligence - If the injuries are aggravated because of the ambulances delay, can sue the defendant Can imagine a fire spreading from boat to boat and eventually burning down the whole town in Polemis - Might be direct consequence, but it is outrageous to hold a defendant liable for all he fires even if they are direct consequences that could have been foreseen If injured using crutches as a result of injury, the injured person may be responsible for their own injuries if they were not careful in using them under the circumstances Recap of possible ways to find the limits for proximate cause - Direct consequences - Foreeeability - Public policy - Administration Palsgraf Page 325 Judge Andrews is talking about proximate cause and whether an event is directly related to the cause or were there too many intervening causes. Cant hold negligent At some point we must say there is a cutoff point Wagon Mound 1 and 2 They are very opposite Wagon Mound 1 - Facts Boat discharged oil into harbor, and caused a fire that destroyed the boat - The defendants did not know that the fire would come as a result of the discharge of the oil into the water - If the defendants servants should have know the oil posed a fire, the plaintiffs should have know that the oil could catch fire - The plaintiff continued to weld and could be said to be contributor negligent if they knew - Accepted by both sides Wagon Mound 2 - Duty was to not discharge oil carelessly There was no justification, it was a wrongful act - Why not say since there is no reason to do it, hold them liable The cases fit together - The boat that was careless would have gotten away with damages

 Direct consequences in Polemis - P would want it applied when the injury was a direct consequence that is foreseeability - D would say the consequences are too far removed Wagon Mound holds the seriousness of the loss should give the reasonable person a duty if the burden is small to prevent it Palsgraf v. Long Island R.R (Ct. App. NY, 1928) Facts - Man running to catch a train was pushed and pulled onto the train by agents of railroad - He was carrying a package that was wrapped and had no markings, but contained dynamite - Man dropped package while getting pushed and pulled onto train and dynamite explodes - Plasgraf injured when scales fell onto her from shockwave - Plaintiff wins and defendant appeals Issue Rule Analysis - Cardozo The accident was so unforeseeable that she could not recover She was not proximately close in space Since she was an unforeseeable plaintiff, the railroad owes her no duty - Andrews dissent Duty is owed to everybody Careless behavior to one person is careless to all people Breached the duty when helping the person get on the train Andrews cuts the liability off at proximate cause Andrews deferred to the fact finder and would not reverse the case as a matter of law Its a matter of expediency to cut the liability at a certain point Andrews says when the facts are murky and the jury has spoken he will not reverse it as a matter of law Conclusion Discussion - Possibly she is a business invitee - Would the case be different if Palsgraf was standing much closer than interpreted - Conflict of facts Was railroad negligent for trying to get the man on the train Would proximate cause assist in Palsgraf recovering - If the package had been labeled explosive do not drop then the railroad should have know there was a risk to everybody on the platform - Cardozo only deals with duty Does not even get to breach of standard or causation in fact The negligence standard is chronological and believes P did not satisfy the first step - Not a question of intent of legislature P was not a member of the class - Mrs. Palsgraf because the package is unmarked, and doesnt pose risk to anybody except for the P or perhaps person behind her if it falls on him, cant recover because the RR had no duty to her - The plaintiff wants the jury to decide the case

- Plaintiff would argue the package got caught on the wheels and dragged down the tracks and the friction set it off - If you held with Andrews most cases would go to the jury, most cases would hinge on facts - Andrews says we must draw the line at someplace - Maybe think about wagon mound, the burden of not hurrying a passenger could help prevent injuries Philosophically the defendant set off a chain of events - People might act in ways they wouldnt but for the defendants action - Still there must be a line drawn somewhere, not everybody can recover Cardozo - The package gives no indication there is a risk of danger so the plaintiff is not in the sphere of danger - There is no duty to protect the plaintiff Andrews - He doesnt care if she does/doesnt recover - He says the jury has spoken and the situation is not so extraordinary that he needs to step in to change the verdict as matter of law - The jurys finding is matter of expediency Can suffer extreme emotional distress from seeing a disaster, but say there is no duty Analyze where the issue of proximate cause comes up This is a plaintiff driven issue - They will argue an expanded version of duty Defendant will want to cut off the liability If you are negligent you are liable for the injuries and foreseeable event A tortfeasor is generally held liable for injuries which result in ordinary course of events caused by his negligence - Not too many intervening causes - Not if intervening cause is legally superseding - Not if plaintiff caused his own injuries - Not if some else took charge - Not for crime or intentional (tort) If you chose to rescue somebody and brave enough you will be protected against negligence Original tort feasor will be liable for the negligence towards of others if it stems from the negligence to the first person It is foreseeable if a person is weakened they are more prone to illness - Person on crutches falls and breaks other leg, D will be liable, unless P was negligent Must show they are unable to use crutches For keys left in the car - Must have something in the facts that make it likely the car will be stolen - Must show causal relation between leaving the car there and the injury What makes a thief more dangerous When thief first takes car there is adrenaline rush Ney v Yellow Cab Leaving cab with keys in it unlocked is negligent because can be stolen by person who has high adrenaline - At a certain point a thief is no longer a more dangerous driver

Yun v. Ford Motor Co. (SC NJ, 1994) Facts - Yun was driving a Ford vehicle when spare tire and parts related to it fell off - Yun stopped on the side and her father crossed a dark and rain slickened Parkway to retrieve them - On the way back to the van her father was killed by a motorist - Yun filed suit against the driver, maker of the car, manufacturer ofspare tire assembly, company that installed it, the dealer, and Kims Mobile Service Center - Kims changed the oil a month earlier and noticed a problem with the assembly but was instructed by Yun not to repair it because of insurance coverage from an accident - Plaintiffs want to overturn summary judgment for all Ds expect Driver who settled - Do not claim the specific capacity of each D, just proximate cause - Ford is dropped because they did not sell the car with the spare tire - Kim relied on argument of lack of proximate cause and that they were not negligent - Kim had no duty to repair it Issue - Was Yuns conduct a foreseeable action in response to the tire falling off if not fixed? Rule - Conduct is considered proximate cause if it sets off a foreseeable chain events, unbroken by any superseding causes, and is a substantial factor in producing the particular injury Analysis - This case presents extraordinary circumstances - Van safely reached the side of the road and could have been driven safely home so the decision to illegally cross the street was not something with common sense would do - The spare tire created a condition upon which subsequent intervening forces acted - This unreasonable action by Chang would supersede any product liability - Defendants could not foresee that a defective spare wheel assembly if known to the driver and not repaired would result in the person trying to retrieve it in a very dangerous manner after safely stopping the vehicle - Driving for 30 days with the broken attachment and crossing the Parkway, especially under the conditions of the case were intervening superseding causes that broke the chain of events Conclusion - Summary judgment affirmed Discussion - Plaintiffs conduct becomes sole proximate cause of his injuries - In most states if there is contributory negligence the claim will not be barred, but claim will be reduced Derdiarian v. Felix Contracting (Ct. App. NY, 1980) Facts - P was working at a construction site when a car hit him - Driver suffered epileptic seizure and lost control - P was splattered with 400 degree liquid needed for sealing gas main and burst into fire, but survived - Expert testified that the site should have had a barrier to prevent a car from entereing Also signs and 2 flagmen - P won at trial court and appellate court Issue

- Was the drivers conduct a superseding cause that severed the liability of the contracting company? Rule - A superceding cause, extraordinary and not foreseeable will sever the liability - An intervening act is not a superseding cause if the if the risk of the intervening act occurring is the very same risk which renders the actor negligent Analysis - Felix did not safeguard the site - A major hazard would be a car entering the site either negligently or by accident - The manner of injury does not need to be anticipated Conlcusion - Affirmed Discussion - Brought under tort law because P was an independent contractor - The ordinary person would take their medicine for epilepsy Most states can recover so long as negligence is not more than the defendant, others as great Assumption of risk is different from contributory negligent - Know the dangers of something but continue to use - May be reasonable or unreasonable to use it Under common law both contributory negligence and assumption of risk were complete bars Now that there is contributory negligence is based on comparison should assumption of risk also adopt this system? When the plaintiff understands the risk and voluntarily chooses to accept it, does the liability end?

11/7/11 Malicious tortfeasor at the very left part of the spectrum - This person really has no defense because they commit essentially a criminal act ( More to the right) Substantial certainty that the result would follow from unpermitted or offensive contanct (more to the right) Willful wanton negligence - Did the person know the Even if liability is cut off when the act is no longer intentional (no knowledge), there could be negligence (should have been on guard for possibility for injury) and the defendant would be liable - Leaving a car near a school with keys in it and its stolen and accident occurs - The owner could be negligent for leaving the car there (More to the right) negligent - To determine if its negligent look at what the reasonable person should know to be consequences of an act Example: shooting a gun can fit into different catagories - Shooting it down Michigan Ave. during lunch is malicious tort because its beyond obvious that there will be a lot of people that can be hit - Shooting it in the countryside is less malicious There are less people around but should know that its possible to hit somebody Substantial certain Negligence is not transferable - Plaintiff must qualify as member of the class whose injury should have been foreseeable to defendant

 Had the package in Palsgraf been marked it might have given notice to the D that somebody 30 feet away could be injured Since P did not qualify as foreseeable plaintiff there is no duty DES granddaughters are not in the class so no duty Andrews doesnt say Palsgraf should recover Was negligence because there was pushing and shoving of the person with the package (as reviewing court must view all facts as favorable to the plaintiff) Once there is negligence towards somebody there is a responsibility to not subject others to risk Since there is negligence it should go to the jury Cant say that there is a matter of law that he can overturn the case on, so the jury verdict must stand If you cant prove that something is foreseeable than look at BLP - P will say its met - D will say not met Once you determine a defendant is liable for the injuries of a P, he can be held liable for more Can argue that a defendant should foresee that if P is injured and others may need to treat him - Those that treat him could be negligent and should be foreseeable Could go against the doctor for the recovery though if you chose Can only recover as much as the jury finds (pick how you get it) - If a person maliciously attacks the plaintiff if they are laying on the ground cuts off liability for the act Plaintiffs Conduct Causal - Ps conduct Sole proximate cause of his/her injuries Contributorily negligent Assumed the risk Cardozo holds that everybody owes himself a duty to not put themselves in danger Still must show breach of standard, cause in fact, legal cause, and injury Ps disregard for his own safety breached a duty and partially caused the injuries - D must prove this because its an affirmative defense Some rational for barring the plaintiff - P didnt come in with clean hands - Each man for his own - Industrial revolution first time people gathered together outside of homes in factory Judge was not trustworthy of jury and was able to keep the case away from the jury Jury might find for the P who was a common worker, opposed to the factory Most states (except 4 and DC) allow for recovery even if P is partially responsible for his injury under certain circumstances Thought was people err and mistake by a person should not always completely barred Now there is a comparison contributorily negligence What is being compared? - Fault based on conduct? - Causal relationship between conduct and injury? Pure form: based on percentage of liability of injuries

- 90% liable = 10% recovery Modified form - Not as great (>49%) - Not greater (>50%) 2 negligent drivers get into collision and sue each other - The first to reach the courtroom becomes the plaintiff and the defendant files counterclaim When you adopt the doctrine of comparative negligence there is a possibility that each will have to pay each other Illinois follows >50% Butterfield v. Forrester gives a way of approaching the topic Butterfield v. Forrester (KB, 1809) Plaintiff was negligent because he failed to use ordinary care when driving the horses There was an obstruction in the road, but the Plaintiff was negligent by failing to avoid it because of negligence Damages - Duty to mitigate damages Must seek medical help if injured, cant just die - Duty to take adherence precautions P is killed in car accident, but failed to use seatbelt Expert comes in and says if P used seatbelt than there would only be minor damages Illinois does not allow a seatbelt defense, but in other states D will claim Ps failure to use the seatbelt aggravate the injury Davies v. Mann (1842) Last clear chance doctrine If the D had the chance to avoid an accident the P is no longer able to avoid, but fails to avoid the accident the D is liable McIntyre v Balentine (SC TN, 1992) Not so clear that this gets rid of last possible chance - If P is lying in the street and D seems him Doesnt matter how the P got there, D has a chance to do something about P v. D1, D2, D3 - Used to be easier to understand because P is innocent (if he was contributorily negligent would be barred) Innocent v Tort feasors - When there is comparative negligence the situation has changes If P was 30% liable for damages and D1 (20%), D2 (40%), D3 (10%) Seeking $10,000 can only recover $7,000 Should be able to recover for the injuries he didnt cause The D will also want to pay based off of what they did (based on fairness) Who should bear the risk if one of the D is insolvent (if D2 is insolvent who picks up the 40%) In Illinois there is still joint and several liability if the D is more than 50 negligent 11/9/11 The problems of intervening causation Not every intervening act will be legally independent

 There are 2 possibilities of intervening causes - It should be foreseeable - Superseding Caution: those are both conclusions Foreseeable - Negligence of rescuer - Further aggravation of injuries stem from negligence Must be a tort feasor before can talk about causation - To discuss causation that may not be foreseen must go through the negligence formula If there is no duty to the Plaintiff the case stops in its tracks Person is careless until they are a proven tort feasor by showing there was a duty and breach Once there is duty and breach must show cause in fact - Cause in fact must be more probable than not May be able to show it through res ipsa loqutor May need an expert witness, but they must clearly show its more probable than not (not just a remote possibility) This is the problem that most cases face - Could the instrumentality cause the injury? This question does not settle the matter, it makes a possibility - The important question is did the instrumentality cause the injury? Defendant will fight the causal connection because if the jury determines the instrumentality could and did cause the injury, it gives rise to future cases involving the matter There is no causal connection between the Ds conduct or product if the injuries could not stem from them To determine if there is proximate cause: - Look at the length of time between the incident and the injuries - Look at the physical distance between the actor/act and the plaintiff In Palsgraf the further she is from the accident the less likely there is a duty to her The more issues or problems in the case the harder it is for the case to be won fully - Negotiations will lead to lower settlement What are too many intervening causes Fuller v. Preis (Ct. App. NY., 1974) Facts - Dr. Lewis was in accident and suffered severe brain damage leading to seizures and strange behavior - Before the accident Lewis was fully healthy and never had seizures - After the accident he suffered 37 seizures - Committed suicide one day and P claims it was a result of the accident - Jury found for P - Appelate division overturned Issue Rule Analysis - The appellate court could not dismiss the case on the grounds the jury was not able to decide the cause of the suicide

- It would be illogical to say the jury could not hear the facts and determine if the suicide was done under a clear mental mind or as a result of degenerative brain damage Conclusion Discussion - Must look at the amount of time after the injury - The SOL is usually 2 years and begins to run after the traumatic injury If the person doesnt know about a potential injury the period may begin to run later In this case the SOL probably began to run after the seizures - Defendant arguments The defendant would ask if he went to the doctor If he went to the doctor, there might be a claim that the doctor as a well recognized member of the profession should have noticed the depression and seizures As the condition worsens why did they not consult a lawyer? Was he contributorily negligent for failing to see a doctor? Is there a duty on the daughter to take action when she knows her father is depressed and acts bizarre? Is it foreseeable that when her father has a seizures for 7 months and getting worse, he will become more depressed? Was he taking medication and did it have side affects McCoy v. American Suzuki (SC Wash, 1998) Facts - McCoy was driving down the road when there was accident and assisted - Lit flairs by request of trooper and held the flares to warn cars - Injured people and motorcycle taken away and trooper leaves - McCoy hit by hit and run driver and sues the injured people, state for negligence of trooper, and Suzuki for defective car Issue Rule Analysis Conclusion Discussion - What if the rescue worker is injured while trying to rescue a person committing suicide Can the victim sue the rescuer for saving him against his will? - Rescuer is always foreseeable, but who can he sue? - Can he sue the victim? - What if the rescuer is not acting in a reasonable manner? Person cant swim but tries to save a person and drowns. Can his estate sue for his death? Kelly v. Gwinnell (SC NJ, 1984) Facts Issue Rule Analysis Conclusion Discussion

- Dissent Nobody has to lecture the judge about the dangers of drunk driving but there are problems How do you know the person didnt take the alcohol for himself? What lengths must a host go to avoid the person from leaving? Contributorily Negligence In Illinois a child under 7 cant be held liable for contributorily negligence Assumption of risk - The act was voluntarily accepted - Adventuresome - Recognition of risk and voluntary acceptace Negligence is a careless act - Can be done by a reasonable person - Might be carless - The accident could be inadvertent Can enter into a contract that waives right to sue so it is an assumption of risk - Example would be agreeing to swim without a lifeguard and know the risks There is no necessity to use the pool, so the person releases the plaitiff - Called a primary assumption of risk - Express - Implied Seigneur v. National Fitness Institute (Ct. App. MD 2000) Facts - Woman joined a health club that had a waiver that members will not sue for damages - She had prior health issues and injured shoulder Issue Rule Analysis Conclusion Discussion - Exculpatory clause is unenforceable when: Assumption of risk used when the plaintiff voluntarily and knowingly partook in a dangerous activity - Exculpatory clause - Various situations with known risks There is another type of case when the defendant is a tortfeasor (negligently create an unreasonable risk) Strict liability was applied to cases where the conduct is outrageous and unreasonable - 2nd Rest. 40 2(a) - Contributorily negligence was not a defense to 402(a) strict product liability while assumption of risk is - Now contributorily negligence is a defense so the courts had to differentiate C/N and A/R When a jurisdiction adopts a form of contributory negligence Secondary assumption of risk When there is a possibility of factoring in the plaintiffs conduct to apportion damages based on it, the unreasonable assumption of risk seems like C/N and the reasonable A/R seems like express consent

Blackburn v. Dorta (SC FL, 1977) The concept of comparative negligence eliminates the need for the affirmative defense of implied assumption of the risk. Primary assumption of risk is stating the defendant is not negligent because there was no duty or D did not breach a duty Secondary assumption of risk is a defense when its established D breached a duty The idea of comparing the conduct of plaintiff v defendant is comparative negligence - Plaintiff C/N v. Defendant Negligence - This will make huge changes in the law - Plaintiffs conduct formerly A/R can be compared to Ds negligence - Either its reasonable and there is no further duty or it unreasonable then there A/R What if the defendants conduct is intentional? - For malicious tort feasor there is not argument for allowing affirmative defense bases on ps conduct - But what about a Garret v. Dailey type intentional tort feasor? Cant use comparative negligence because its not negligence, perhaps comparative fault What if neither negligent or intentional tort feasor but under strict liability? - The reason for strict liability is because of public policy Consumer is not longer able to determine safety of products Pre-packaged, nationally marketed Consumer knows statistically there will be a certain number of defective products despite the safeguards The producer who is in business should bear the cost because they can bear the cost across the price of the product Create a rainy day fund - Should a plaintiffs recovery be reduced what used to be A/R for using product that was dangerous and on the market? - Aside from using a product that is known to be dangerous, could be misuse of product - Doctor gives depression medicine to bald person because the medicine is known to fix baldness In Illinois allows joint and several liability if the defendant is more than 25% at fault 11/14/11 Duty to Act Default: no duty to strangers in absence of other circumstances (even doctors, p. 433) - Doctor has no duty Even if in a situation where somebody asks if there is a doctor and they dont help - But if doctor does steps forward there are good Samaritan laws that help protect them if they acted in good faith - Once a doctor accepts a patient, even without a bill, can be found negligent if acting badly - Rescuer is always foreseeable Creates a duty between the person who injures the victim and the rescuer - Governmental proprietary (p. 433, n4) Exceptions - Affirmative Reasonable reliance Promissory estoppel in contract-law

 Make a promise to somebody and they act on the belief the promise will be followed through with, the one who makes the promise is bound Example: Somebody has a party and person is drunk. Another person promises to take them home, but doesnt get them all the way home. Person leaves drunk 4 blocks from home and drunk is hit by car. The person would be held liable because they should have followed through Came forward and prevented others from helping so they took the responsibility - Special relationship Between actor and plaintiff Example: teacher in Wallace v Rosen had a duty to her students because of her role as a teacher Common carriers/innkeepers Owners of premises May owe duty to trespassing children Business invitees (i) Fat woman running down stairs (ii) Child bit by dog Between actor and 3rd person Special relationship between wife and sexual predator (husband) This usually hinges on knowledge and control Know the persons habits and control them so they dont cause problems - Plaintiff controls instrumentality No negligence, but duty to mitigate damages Child fell on the escalator and there was no negligence on behalf of the upkeep of it (not responsible for fall) Negligence asserted is that the business did not stop the escalator in time Will be liable for aggravated injuries (i) Burden of proof is on the plaintiff to prove aggravate injuries The actor who did not cause the injuries will not been found negligent for everything, just the aggravation that stems from his actions Once a plaintiff is injured you have an affirmative action of helping to mitigate the damages that perhaps the victims own negligence caused Nurse must go in to help patient who is in trouble Mguire v Alamy: Nurse had an affirmative responsibility to protect society and patient from the patients injuries. Somebody rushes in from the street to help does not have an affirmative responsibility, but may be a rescuer Example: person you invite to your home has a mental episode Duty would probably be to call the police Firefighter rule: if firefighter or police officer rush into help and they are harmed they cant sue because they have an obligation to act. Danger is assumed when they take the case Renslow v. Memonite Hosp Illinois made an exeption that mother/fetus relationship is so close that an unconceived fetus will be able to recover In 2009 that possibility was closed with Tedrick v Community Resource Center - Paranoid patient thought his wife was trying to poison him and he ends up killing wife - Rejects tarasoff because relationship between husband and wife is not as strong as mother and fetus Doctors cant be sued by wifes family

- NO DUTY TO NON-PATIENTS IN ILLINOIS JS and MS v RTH (SC NJ, 1998) This case is similar to SN v. Perry - Perry case involved whether a penal statute imposing a misdemeanor for failing to report child abuse when then they have reasonable belief or should have reasonable belief to know that they are being abused If there is an eye-witness then it appears clear - The SN case did not involve common law negligence This case involves negligence in failure to report Statutes requiring reporting of child abuse extends to people that have dealings with children - Basically anybody that comes into contact with children - Must be reported to child services, not police - Anybody not listed would be able to file as a privilege as long as the report is legitimate - In Illinois, anybody that interacts with children must report, anybody who knows/believes can report Discussion on case - For plaintiff Not appropriate for the man to be with the children that much - For defendant Parents should have a duty as well Tell wife that husband is spending a lot of time with the girls Ask girls what goes on in the barn Hypo: girls tell parents that they are uncomfortable with what he is dong Do the parents have a duty then? Probably more likely so - Is the horse farm an attractive nuisance and is he a dangerous conditions on the premises that the children are too young to be able to recognize the danger? If the farm is an attractive nuisance then the wife has a duty to keep the conditions safe - Girls are probably not old enough to be held contributorily negligent - What if husband is abusive and wife is afraid to leave or report him? Case resolution - There is a husband/wife confidentiality, but it does not extend to sexual abuse - The Court holds that if a spouse has actual knowledge or special reason to know of a likelihood of her spouse engaging in sexual abuse against a particular person, this spouse has a duty to take reasonable steps to prevent or warn of the harm. Additionally, a breach of this duty constitutes a proximate cause of the resulting injury. Conduct on her premises should have given her reason to know In section 339 of restatement on trespassing children uses reason to know also Owner of property is responsible for attractive nuisance when the owner knows or has reason to know that children are on property. An artificial condition draws the children there. The children are too young to understand the risk the danger poses Is the wife in this case similar to an owner of an attractive nuisance? What if the husband is abusive? - Wifes failure to report could be found to be a proximate cause of the injuries. Could be does not mean it was a proximate cause - The other option is that wife didnt foresee that husband would actually be a criminal in this way His actions would cut off liability

- If on exam there are potential negligent tort feasors that combine to cause injuries because of his acts and her failure to report could be proximate, or it could not be assumed to have known the extend of the contact - They can be held as joint tortfeasors Husband would clearly be held more liable than wife - They both could be tort feasors if she had a duty, breached the duty, and the breach in part caused the injuries - Or his activities were so unforeseeable they were the direct superseding cause of the injuries and the wife cant be held liable For the exam: Utopia is a state that has adopted a pure form of comparative fault and retained joint and several liability Illinois has modified form of comparative liability which is no greater Less than 25% only liable individually Tarasoff v Regents of U of California (SC, CA 1976) Facts - Poddar came from India and was untouchable there - Never was in a co-ed environment and was kissed by Tarasoff - Poddar was rejected by Tarasoff and told therapist he wanted to kill her - Therapist told the campus police but released him - P claimed failure to confine Poddar, in spite of his expressed intentions to kill Tarasoff, and failure to warn Tarasoff or her parents. - Defendants maintained that they owed no duty of care to the victim, and were immune from suit. Issue - Is there a duty to report? Concerns - When do you know a threat will manifest itself - Client/patient privilege changed because there became a duty Rule - There is no doctor/patient privilege if the psychotherapist has reasonable cause to believe that the patient is in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary t prevent the threatened danger Analysis - Conduct was foreseeable because parents would have taken actions if they know - There is an affirmative obligation based on what a reasonable therapist would do under the circumstances Discussion - What about if the person is threatening suicide? If it is a child then there is a duty - To commit somebody to hospital there must be a real clear reason (must be danger to himself or others) - If this duty can be imposed on some, why not all Penn State Issue - Is there a crime in failing to report an abuse to the police? - Is there a civil action?

- Statute of limitations Tolled until 18 and then 2 years to bring claims - Is the university immune because its government? Penn State football is a business practice, sovereign immunity should not be a bar 11/16/11 Emotional Distress - Physical injuryemotional distress/pain and suffering (parasitic damages ok) Unborn Children - Right to an abortion - Wrongful life - In utero damages - Viability/Live birth - Wrongful death Emotional distress - Tension between the judge who was highly educated, the fear the jury would be sympathetic to the plaintiff, and the attempt to control the jury by keeping the passion and emotionality out of the case - Control the kind of injury the plaintiff could present to prevent this from happening - Pain and suffering stemming from physical damages were accepted as legit (parasitic damages) - Sometimes the mental distress will not result in physical effects though - Assault used to be defined as being apprehensive of an imminent physical threat Had to be clear there was a physical threat (ie, punching somebody but missing) - The court of the garbage collector introduced IIED It was not assault because there was not specific threat Not false imprisonment because was allowed to leave - IIED: conduct must be beyond the pale of reasonable behavior and cause severe emotional stress - There is something called special knowledge extending liability If D knows P has a particular fear that ordinary person doesnt, would be liable Ie. Know somebody is afraid of snakes - Cyber bullying is difficult to determine - P. 416 - What about negligent infliction of emotional distress? Unborn children - If you have a constitutional right to terminate a pregnancy, failure to terminate it when ordered is a tort wrong - What do you do when the child never had a chance of being born whole Dr. did not cause the injuries Child should not have been born - Tay sachs, can be predicted if the parents go in for testing If the genetic counselor fails to detect it and the child is born with it Parents suffer greatly for emotional distress by having to raise the child to see him die and not have had the option to abort the child Sue for wrongful birth Could child sue for wrongful life? - There could be damages in utero, but when is somebody liable for damages to the fetus? NY adopts rule that life begins at birth, viability for life doesnt constitute life

 Illinois adopts viability There is no clear line drawn for where liability should be established Emotional distress - Negligent emotional distress can be caused by fear alone, without physical injuries Driver negligently hits a pole and causes power lines to fall and scares the P Can the P prove the damages caused mental injuries even without physical injuries? Case in the book talks about how there are developments in idea of suffering from traumatic experience (i) What about returning veterans? Athletes with head injuries? Fright is the proximate plight of the defendants conduct (i) Idea is fright is leading to physical injuries 1. Can we allow them to recover? - Question became do I need to show an impact before I can claim emotional distress? Dont need an impact because science understands that there can be mental distress Plaintiff has a high burden in proving the mental injuries - Bystander can suffered emotional distress, but its negligence Have to limit IIED - Bystander area approaches This used to be very limited, unless suffer a miscarriage no recovery D doesnt know who they impacted Impact rule Example: If crossing the street with child and negligently impacts them and mother has impact on her person. Can sue to recover for actually being hit and IED Zone Rule Mother is crossing the street with child and the driver negligently hits the child only If the mother can prove she was in the zone then she can claim fear from almost being hit and child being hit Mother on the sidewalk when the child hit, not in the zone, couldnt recover Expansion Court realized that both the impact rule and zone rule were based on the ideas that the plaintiff recovered not only because she was in the area, but because of what she saw 3 requirements Blood relations Sensory awareness of the injury when it happens (i) Cant be told of the injury from another party Distress must be greater than the casual observer - Hypothetical: woman looking out of her windows sees an accident. Becomes very afraid to leave and never leaves her apt anymore. Can she recover? It would be hard because she is not a relative to the parties. She may suffer greater than usual and witness it and it is foreseeable that somebody could see an accident happen if its in a residential street. Unborn Children - Birth is something the court determined could be determined - Every child has a right to begin life unimpaired by physical or mental defects resulting from the negligence of another - What about a pregnancy that is not wanted?

Go in to get sterilized and the procedure is botched. No other doctor would have done it that badly. If it fails and the couple has a child, what can be recovered? Is there an ability to mitigate damages with an abortion? No cant force an abortion What about adoption? Maybe Reasons for not wanting the child (i) Economic burden (ii) Just feel like enough children? Can make the choice to not want children and a elect to have a doctor perform a nonnegligent procedure? Every child has a right to be born unimpaired life, alcohol abuse issue Right of the fetus and right of the woman Some states will put mothers using substances into hospitals to prevent them from injuring their unborn child Does the mother have a duty to the child? Conduct is foreseeable, poses a clear danger, etc Liability outside the premises - Special duties were owed to invitee, licensee, and ? - Special right to own your property and use it how you want - Can keep a person off the property within limits - If an adult has no reason to be on property, you owe them no duty - If its a child (attractive nuisance) then there is a duty - If part of property is used for repeatedly may own a duty - But those all deal with someone coming onto the property Status can change in regards to property - Sign says dont enter, no trespass but person enters the property - If they trip and fall they will not be able to sue since they are a trespasser - If the trespasser gets invited in then he becomes a licenscee - If the person helps the trespasser with a job they become a business invitee - Tripping while leaving the property will result in a possible suit If you abolish all the categories than you are stuck with the ordinary person care standard What about the duty outside of the premises? - May seem that there is no right, but there could be circumstances that create a burden - If the property is next to a public highway and a condition on the property causes potential harm to the public highway, the landowner may have an affirmative obligation to take action - If there is a rotting tree from a prior logging operation, may have a duty to remove the tree - But if its a large property, and the owner isnt there, than there is not a requirement to always inspect, just need to inspect on a reasonable basis - What is the risk of the dangerous condition either happening or the severity of what could happen? This is a BLP situation - More likely that the tree will interfere with lots of people should act in a reasonable way under the circumstances Is the dangerous condition natural or artificial? - Duty when there is a golf club in the back yard is to make sure its safe based on BLP Golf club is not as dangerous as a gun - Baseballs being hit out of the park Its foreseeable they will be hit out and should have adequate measures to prevent them from interfering with the walkway

11/21 Premises liability - Duty owed to the person depends on their class Outside the premises Trespasser Licensee Invitee Outside the premises - Usually no duty is owed to people outside your premises, unless the owner could foresee than an injury could occur Taylor v Olsen (SC, Or, 1978) Facts - Driver injured when driving on a road and hit a tree that had fallen on the ground - Tree was rotten on the inside Issue - Did the owner have a duty to inspect the tree? Holding - The landowner did not have to continually inspect his trees on his property because it would create too large a burden - The owner would not that the tree was rotten on the inside Salevan v Wilmingon Park (SC DL, 1950) Facts - Baseballs were flying out of park and hitting people on the street Holding - The owner of the park was held liable because he was in the business of running the ballpark and knew balls were being hit out of the park - The owner took on the responsibility of ensuring the public safety because he built a fence indicating he knew about the risk the balls posed to the public who had a right to use the streets next to the park On the premises - Trespasser - Licensee - Invitee Trespasser - If the trespasser is on the land you owe them a duty to warn them if you discover them - If there is a constant trespasser you have a duty to warn them and keep the premises safely Sheehan v. St. Paul (7th Cir, 1896) Facts - Person injured when crossing railroad Holding - The railroad did not have a duty to ensure safety across all the tracks, they could create designated crossing points that they would be responsible for

 Child trespassers and attractive nuaisance 339. Artificial Conditions Highly Dangerous To Trespassing Children A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children. Courts adopted a doctrine to protect children as a special class because they are unable to take reasonable measures to ensure safety on their own Examples of attractive nuisance - Pools, snow pile, railroad stuff, etc - Way to deal with this is do analysis of the dangers of the situation and how the situation arose Parents at fault? - Consider the age of the child, experience, and Licensee v invitee - They are very similar because both are somewhat on the property with the owners knowledge - The main difference is the reason they are on the property - Licensee On the property for social reasons, entertainment, etc - Invitee Invited on the property to further your business interests - There is a very thin line between the two and status can change between the people - Keep in mind (for exam) what may have elevated or lowered somebodys status on the land Licensee - Social guests, people that come onto the land for social purposes - They are usually invited on the land by the landowner - Basic rules The duty is higher than that to a trespasser Duty to warn them of any hidden dangers you know of or should reasonably know of on the property Cant engage in wanton behavior that will endanger the licensee Barmore v. Elmore (Ill. Ct. App. 1980)

 Facts - P on Ds property because of Masonic lodge activities - Ds son went mental and tried to stab the P, but father restrained him - Son got away and managed to stab P Holding - The case differentiated between licensee and invitee - Could the person be a business invitee instead of a licensee? Possibly, but the P was already a member of the organization It would have been different if He had not joined because he would be there for business (joining) If he was the treasure (his job is to handle the finances) - If he was a licensee the duty would be to warn the person because a social guest - If he was an invitee not only would the owner have to warn the P of danger, but also prevent his son from acting Differences in phrases of duty to entrants on land - No duty - Should know What a reasonable person would investigate and should know about his property For a decaying tree should - Has reason to know There is a clue that the owner should be aware of Typically for children Artificial condition on the premises highly dangerous to children Pools are artificial and dangerous, but there is a balancing test of the owners interest and the safety of the children Dont have to close the pool, but make it safe - Knows (when inviting people on the premise) Latent danger that person invited on the premises doesnt know of The landowner knows that there is a risk If the person is a licensee there is not duty to investigate for things you dont know of Invitees have a reason to expect that the property is safe meaning the owner has a duty to reasonably inspect the property Some differentiate between licensee and bare licensee - Bare licensee is somebody that drops in without express invitation, not a trespasser though If a person is selling things door to door he is a licensee and if the homeowner buys something they become an invitee - Licensee until owner entered into the home because perusing their own purposes, the invitee status was given because the owner engaged in business dealings Business invitees - Come onto your land to further your business Expressly invited Implied invitee - Stores hold open a business to customers to either buy or look Have a duty to keep it safe for invitee Inspect the property - Person who invites people onto the property as social guest are not liable for as much

- What if the business provides a warning? Example stadium warns of fly balls. Would it be enough to make a person who fails to yield to the warning contribuitorily negligent? What about assumption of risk? Most jurisdictions have abolished the common law distinctions In Illinois the premises liability act got rid of the distinction between invitees and licensee Utopia is a place where all categories are merged (trespasser, invitee, licensee) Why might you abolish the invitee and licensee categories, but retain trespasser? - Would want to own the same duty to invitees/licensees - Trespassers would have an incentive to trespass if the categories are merged - Trespassers are intentional tort feasors, dont want to give them special treatment The duty that is owed is of reasonable care under the circumstances regarding your premises - Whats foreseeable, are the plaintiffs foreseeable Example: Katco v. Briney - Landowner knows that people are coming onto their property - What should the landowner do to protect the people from coming on? Do not need to remove or shut the shed - If you dont think people are entering the shed then there is no duty - The fact that people keep coming on the land may be CN/AR and would be affirmative defense Especially if you can show that you implemented several safeguards, but the people keep finding a way onto the land liability may not continue to extend to the landowner - Dont want to encroach on property rights of a person because landowner has right to enjoy their property in a lawful manner, so a warning alone may be enough For a child might need a picture, not words - Children under 7 cant be CN - Highly attractive artificial condition is foreseeable For the exam be prepared to handle the common law and utopia requirements

11/30/11 Torts seek to compensate an injured party, deter the defendant, and sometimes punish the defendant Garrat v Dailey: depending on the facts the child was either negligent or intentional tort feasor - If there is a substantial certainty that the tort will occur by pulling the chair away the woman would fall, it would be a battery. - If it was careless activity then it would be negligence. The child would be immune because to young for negligent. Negligent conduct exposed others to unreasonable risk. - Think analytically about tort law - Determine if the conduct is IT or negligent Activity could be wanton and negligent but it may not be intentional tort Must link the conduct of the defendant to the injury of the plaintiff - If the defendant did not cause the injury he is not negligent Fault, causation, and analysis run through the course - There is a difference between injuries and legal injuries Think about negligence in terms of reasonableness under the circumstances Torts and contract law - Can have an implied contract - Can also do it through conduct

- Nothing has to exchange hands, there could be a duty based on an assumption of obligation of care Based on policy Against public policy to release poor people from negligent claims in exchange for medical care Property and torts are also linked - Duty owed to people who enter the land Duty and regulation law - Statutes can impose strict liability on defendant to protect a group a people who cant protect themselves Failure to label medicine bottles Torts and evidence - What is allowed and whats not allowed Cause in fact - Did the activity cause the injury - There is a could it, but also needs a did it. Sceintic evidence is needed for medical cases Who is the defendant who did it? What was the specific harm? - Tobacco can cause lung cancer, but did the lung cancer in this case result from tobacco? - Did the plaintiff prove the cause in fact? Should the defendant be responsible? What is the scope of liability? - Proximate cause is a confusing term, but means what is the scope of liability. Should the defendant be liable for the damages? Shifting responsibility - There are multiple causes - They may be concurrent - When does responsibility shift? - If the responsibility shifts we say it is a superceeding cause - It can also apply to the plaintiffs own conduct How do people become joint tort feasors? - Vicarious liability Acting in concert Failing to comply with a common duty (respondiat superior) - Indivisible injury - What are the consequences of being a joint tort feasor? Can be held joint and severally liable If there are multiple defendants found to be tort feasors, the plaintiff can sue any of the defendants in whatever combination he wants to recover the damages The court found that since the goal of tort law is to allow P to recover the P should be able to determine how to collect his damages Some defendants may be insolvent so P should be able to collect from other D Defendant argues that if Ps responsibility is apportitioned and individual Ds can be apportioned, why should one be held liable for the damages of others. (THIS IS THE DEFENSE ARGUMENT) D could also recover in controbution

 A plaintiff may have contributed to his own injury so the question is should joint and several liability still exisit? - In Utopia there is comparative fault and joint and several liability - In Illinois D can only be liable for everything if they are 25%+ liable - In Illinois the plaintiff can recover as long as they are not more negligent than the D. 50/50 is ok. There can be multiple tort feasors that are not joint and severally liable. If a person wrongfully exposes a plaintiff to injury and as a result a series of unfortunate things occur to him in trying to save P, should the original tort feasor be responsible for the foreseeable negligence of others. - It may seem like joint tort feasors but it isnt. - HYPO: D1 is driver who injures P, D2: ambulance driver, D3 is doctor. Can roughly approximate what the injuries were from the driver. Also can determine what the aggravated injuries were from ambulance driver or doctor. Can sue each one for their part of the mistake. Could also sue the original driver for the foreseeable negligence of the following actors. If P gets pneumonia while in hospital D1 could be held liable because P was only in the hospital for that reason. - These Ds are not joint tort feasors though because they are not acting in concert so you could not sue them joint and severally liable. An intervening superceeding cause is something that is not foreseeable, and the harm is therefore not foreseeable There is not negligent cause in fact if an actor could not avoid the accident - Example would be even if train was going faster then the regulation allowed, the company would not be negligent if they could not avoid hitting the car even if they were within the allowed regulation Plaintiffs conduct and contributorly negligence - Utopia is a pure comparative fault state - Some jurisdictions bar, others are modified, some are pure comparative Modified has 2 levels P can recover as long as not more negligent than D = 50/50 P can recover as long as not as negligent as D = 49/51 - Failure of plaintiff to discover a defect is not a defense in product liability Plaintiff is lulled into buying the product because of ads, guarentees, etc Assumption of Risk - This is a complete bar to recovery - Elements Venturesomeness Voluntary (subjective undertaking) Each person has a different level of undertaking something Consent Assuming responsibly for yourself - Courts didnt like this defense because sometimes the P does not have an alternative Woman who falls through privy because of rotten floors is not A/R because no other option - The issue of consenting to assume the risk is harder to deal with Woman who joins health club and is shown the terms of club and agrees to go there Basically saying dont worry I will take care of myself - C/N was initially defined as failure to take reasonable steps to protect yourselfs, A/R was more of a voluntary activity

- New way to think about it - If a D is found to be negligent (duty, breach, causation, injury) the P has overcome any defense If D can raise affirmative defense it can break the case Conduct of Plaintiff Conduct of Defendant Contributorly Negligent Negligent comparative negligence -D would raise this as a defense to causation (not all states, pure, modified) Assumption of Risk (primary form still exists. This is when the D does not owe the P a duty of care so the P is acting in a way that dangers himself. No duty is based on policy arguments) Secondary A/R is similar to C/N because the D owes a duty and the P acts negligently. In Garret v Daley if the old lady failed to check before she sat down her recovery would be reduced. Pages 338-343 in the restatement. The restatement comes up with a new term, and they call it comparative responsibility. What is an officious intermeddler? - Somebody who has no reason to run into a situation, but does so and is injured - In the McGwire v Almy the nurse had a duty to rush in so not officious intermeddler - If a bystander runs into the house and is told the nurse is in there, but stills runs in and is injured he is probably not able to recover - Put this into the category of primary assumption of Risk There is no duty to be a rescuer, but if a person does try and intervene to save someone under good cause they could recover A rescuer can be held liable for negligence once they assume the duty of rescuing somebody - There might not be a liability if there is no other way the person could be saved

Plaintiffs contributory negligence which may be compared to the negligence of the defendant - Plaintiffs actions caused injuries to himself in part for the damages - Defendant is also partially responsible Why should the responsibility for an injury shift and where should the ultimate responsibility fall? Joint tort feasors D v D - Indemnity: all of the damages I paid on your behalf should be given ot me - Respondeat Superior: Ds employee As long as the employee is acting within the scope of his employment the employer could be held liable After the plaintiff has been paid, the employer can seek to recover for having to pay damages committed by somebody else (employee) - Joint tort feasors Possibility that a D would have to pay more than his share If so D would look for contribution, want to recover the excess damages he had to paid Looking to recover what he paid beyond his fair share