TORTS I. OUTLINE Exam: December 5, 20139 a.m.

Tort: 1A civil wrong other than a breach of (K), for which a remedy may be obtained, 3usually in the form of damages; 2A breach of duty that the law imposes on people who stand in a particular relation to one another. Timmons A private party sues another (Family of Nicole Brown v. OJ) Major purposes of tort law: Peaceful means for adjudicating the rights of the parties who could be prone to vigilantism; 2 deter wrongful conduct; 3Encourage socially responsible behavior; 4Restore injured parties to their original condition by compensating injury; 5 Vindicate the rights of Redress; 6 I. Development of Liability Based on Fault 1. Brown v. Kendall a. Facts: (P)s and (D)s dogs are fightingD hits the dogs with a stick to separate them, accidentally hits the P and injured him in the eye. b. Issue: Is the (D) at fault If the inflicted injury was an unintended consequence? c. H/R: The (D) is not liable for injury or damages because he took steps to prevent it and it was not foreseeable d. Additional: Forseeability 2. Cohen v. Petty a. Facts: (D) was driving, fainted (P) thrown through the roof of the car. b. Issue: Is (D) actionable? c. H/R: No actionable for negligence because no prior indication that the fainting spells were likely d. Rule: When the (D) is suddenly stricken with an illness there is no liability based on fault. Since there is no prior knowledge of the defect, the (D) cannot be held liable. 3. Spano v. Perini a. Facts: While building a tunnel for NYC the (D) set off a lot of dynamite and the resulting blast damaged the (P)s property. b. Issue: Is the (D) at fault? c. H/R: P can recover. d. Rule: You dont need evidence of negligence to assess the f ault in blasting. Intentional Torts: Intentional Interference With Person or Property a. Intent- The state of mind accompanying an act, esp. a forbidden act. Intent is the mental resolution or determination to carry out an act. b. To satisfy the qualifications of an intentional tort: i. There must be purpose or intent ii. OR a knowledge to a substantial certainty that an outcome will occur. c. There is a spectrum that ranges from Negligence (reasonable forseeability), to Recklessness (Highly likely that an event will occur, the (D) is aware of the risk), to Intent (There is purpose or knowledge to a substantial certainty that an outcome will occur. 1. Garratt v. Dailey a. Facts: (D) is a five year old boy pulled out chair from beneath (P) (P) was injured b. Issue: Is a minor liable for creating a tort of force (i.e. Battery)? c. H/R: Yes, The (D) knew that without the chair the (P) would fall (D) knew with a substantial certainty that the (P) would fall if the chair was not there when she went to sit. d. Rule: A tort may be deemed intentional if the (D) knew to a substantial certainty that a harmful or offensive contact would occurBattery is the intentional infliction of a harmful or offensive contact. e. HYPO: Timmons throws a marker and aims for someone. She doesnt think it will hit him but it does. Is this battery? i. SHE IS SUBSTANTIALLY CERTAIN IT WILL NOT HIT HIM IS IT STILL BATTERY? YES, HER PURPOSE WAS FOR IT TO HIM. 2. Spivey v. Battaglia (Bad Law)

II.

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e.

Facts: (P) and (D) were on a break at work, (D) knew that she was shy but insisted on giving her an unsolicited friendly hug. Half of ( P)s face became paralyzed. b. Issue: If there is no substantial circumstances or even reasonable forseeability is the (D) still liable for an intentional tort? c. H/R: The (D) is actionable for Negligence but for no intentional tort because he had no reason to expect the bizarre results herein. d. Rule: The intention must be for harmful or offensive contact not just the intent to contact. e. Additional notes: This is BAD LAW. TIMMONS NO LIKEY. Battery: An intentional and offensive touching of another without lawful justification. i. Elements of battery: 1. Intent 2. Contact 3. Harmful or Offensive ii. **Hypo: coach slaps the ass of a player leaving the field after a good play, also you get a hug from a classmate at a high school reunion. Is this battery? The intent element is satisfied in both, but is there battery? Thus determining whether or not an act is offensive could clog the courts. So the test has to be what would be offensive to a reasonable person that is not unduly sensitive to personal dignity. Restatement of the Tort: 13. Battery Harmful Contact: i. An actor is subject to liability to another for ba ttery if ii. (a) he acts intending to cause harmful or offensive contact with the person of another or a third person, or an imminent apprehension of such a contact, and iii. (b) a harmful (or offensive) contact with the person of the other directly or indirectly results. iv. (2) An act which is not done with the intention stated in subsection (1a) 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. 1. Cole v. Turner a. Facts: Turner committed battery against Cole. No clear facts are provided. b. Issue: Does the least touching of another in anger constitute a battery? c. H/R: Yes, any violence, struggle, or forcefulness in a rude or inordinate manner constitutes a battery. d. Rule: If there is any struggle to a degree that may do hurt then the (D) is liable for battery. 2. McGuire v. Almy a. Facts: (P) was a nurse hired to take care of an insane (D), who was mentally deranged and spent most of her time in her room. (D) threatened to kill the (P) is she entered the room, the (P) was going into the room in the scope of her employment and in an effort to protect the (D) from herself. b. Issue: Is an insane person capable of intent and are they liable for their intentional torts? c. H/R: Mentally ill are liable for their intentional torts if they are capable of having the intent in the first place. d. Rule: An insane person is liable if they are capable of having the required intent and then acting on it. Mentally ill are liable if they are capable of intent and acted under their intent for that tort. e. ****HYPO: What if the (D) thought that the (P) was going to kill her? MISTAKEN IDENTITY DOES NOT RELEASE LIABILITY. i. The same intent for the mentally ill usually applies to children. ii. This case qualifies for the second reason of tort law; compensation. This also encourages those that are in charge of the mentally ill to devote more care to their supervision. 3. Ranson v. Kittner a. Facts: Trespass to chattels; intentional interference with the property of another We can say that this was intentional because the intentionally shot an animal.

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b. c. d.

e. *Transferred Intent: - If the (D) intends harmful or offensive bodily conduct on A, but inflicts it on B than the (D) is still liable for battery. - There are three types of transferred intent: 1. Person A to Person B 2. Tort 1 to Tort 2 3. Person A, Tort 1 to Person B, Tort 2 4.

Issue: Are the (D)s liable for killing the dog if there was no intent to kill the dog and the (D)s thought that they were shooting and killing a wolf? H/R: yesmistake does not negate liability. Rule: (D)s good-faith mistake about person or property does not affect the intent of the tort of trespass to chattels. Mistake does not negate intent. Additional: This is our introduction to transferred intent.

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6.

Talmadge v. Smith a. Facts: (D) and (P) were playing in the woods on the (D)s proper ty. (D) was aiming a stick at another boy when instructing him to get off of the roof of a shed and hit the (P) by mistake. b. Issue: Can intent in battery transfer to another target? c. H/R: There is liability in that you intended to injure someone at all d. Rule: Intent can be transferred and an actor can be held liable because there was intent present in the first place. Wallace v. Rosen a. Facts: (P) brought suit against (D) for battery when the (D) contacted the (P) to get her attention during a school fire drill. b. Issue: Does an unwanted touching of a person blocking a stairway during a fire drill constitute a battery? Keep in mind that a battery requires intent. c. H/R: No, touching a person blocking a stairway during a fire drill (where there is a naturalness of agitation) applies to Prossers crowded world. The existence of a crowded world means that there is implied consent. d. Rule: In a crowded world unless the (D) has special knowledge to the effect of what would or what would not constitute harmful or offensive to an individual (P) the test is what would be offensive to an ordinary person not unduly sensitive as to personal dignity. e. ****Hypos: i. A friendly stranger hugs you on the street are they liable for battery? YES, SOCIAL IGNORANCE DOES NOT EXCUSE BATTERY. Intent is satisfied with the intent to contact not with the intent that the contact be harmful or offensive. 1. There are two options for intent when dealing with battery. Timmons says intent to contact. Minority of jx say that the intent must be to harmfully or offensively contact. So our (D) satisfies 1 but not 2. ii. Tackle football with friends is injury a battery? 1. No there is consentyou know what youre getting yourself into. iii. Stranger kisses a sleeping woman on the train is that battery? 1. Yes the circumstances are definitely offensive even though she is not aware. Fisher v. Carrousel Motor Hotel Inc. a. Facts: (P) In the line of the buffet at a work convention a hotel employee approaches the (P) and knocks his plate out of his hand while shouting a racial slur. b. Issue: Does the snatching of a persons plate with the use of a hostile racist epithet constitute a battery under the law?

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H/R: Yes, a (D) is actionable for battery if the contact that is harmful or offensive touches something that is intimately connected with the body so that it may be regarded as a part of the person. d. Rule: We learn that there is an exception to the rule of contact: To commit battery against any object that is so attached to the person that it may be considered part of the person I as though you are committing battery against the person. e. Additional notes: 1The tort of battery does not just act as compensation for physical injury, it also exists in order to handle issues of dignity OFFENSIVENESS. 2This also adds to our knowledge of how the courts work. The courts can stretch a rule to rule for the (P) or very rarely they can create a new tort. Assault: The interest protected by the tort of assault is the right to be free of fear or apprehension of imminent bodily contact. i. Elements of Assault: a. The (D) must act with the intent to place the victim in apprehension of imminent harmful or offensive contact or to make such a contact. b. The victim must have reasonably been in a place to suffer from the apprehension of harmful or offensive contact. c. ADDITIONALLY: the test for assault can be satisfied by intent to place the victim in apprehension of a harmful or offensive contact or to actually make the contact. d. A conditional threat is still an assault if the condition forces the P to give up her legal rights. 2. I de S et ux. v. W de S (1348) a. Facts: D came to the Ps house with the intention of buying some of the Ps wine. The tavern was closed and the D beat on the Ps door with a hatchet. The Ps wife opens the window and tells the D to stop; The D strikes the door again with the hatchet. b. Issue: Is this assault? No harm was done so why would the court allow for this action? c. H/R: Yes! Harm was done, it was offensive- the P was in apprehension of imminent contact. d. Rule: A D is actionable for assault if the P is put in apprehension of imminent harmful or offensive contact. e. Additional notes: The D is liable here under the doctrine of transferred intent the D meant to commit a battery but instead committed assault. 3. Western Union Telegraph Co. v. Hill: THERE IS AN IMPRECISION IN THE LANGAUAGE OF THE COURT HERE {EVERY BATTERY CONTAINS AN ASSAULT./ ASSAULT IS AN UNLAWFUL ATTEMPT TO COMMIT A BATTERY. a. Facts: Ds employee regularly fixes the Ps clock. Ds employee allegedly offered to pet the Ps wife. b. Issue: Is this assault? He was just talking to her and she was not really proximal enough for him to actually touch hera barrier separated them. c. H/R: No, apprehension of the harm must be reasonable by the P. There is no way that given the dimensions of the counter, the counter boy would have had the actual ability to touch the P. The Ps apprehension was not reasonable. d. Rule: For assault to occur there must be an intentional unlawful attempt to touch anothers person in a harmful or offensive manner such that it creates a wellfounded apprehension of imminent battery. Assault turns on whether the Ds act would place a REASONABLE PERSON in apprehension of IMMINENT H/O contact. e. ADDITIONAL NOTES: so does it matter for tort purposes if the D actually has the ability to harmfully contact the P? 1. NO> not for assault (Real looking toy gun) f. ***HYPOS:

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i. IF YOU WERENT A GIRL ID PUNCH YOU. Not an assault, the words used in the threat negated the imminence of the threat. ii. THIS GUNS NOT LOADED while waving a gun in my face. Still an assaultthere is an issue of trust due to the presence of the gun which renders the threat more imminent. iii. YOUR MONEY OR YOUR LIFE yes still an assault. Theyre relying on your apprehension in order to get your money and they are forcing you to give up you legal right to your property. iv. A MAN WITH A DISPROPORTIONATELY LARGE FIST IS WAVING HIS FIST IN MY FACE. Yes, this is still an assault There is a threat of imminent harm. v. SOMEONE FIRES A GUN AT YOU WHEN YOUR BACK IS TURNED AND THE BULLET MISSES YOU. IS THIS ASSAULT OR BATTERY? Neither- there was no contact so you cannot sue for battery and you were not in apprehension because your back was turned. INTENT AND APPREHENSION ARE KEY BUT FEAR IS NOT IMMINENCE is a necessity

False Imprisonmenti. Elements: intent, confinement to a bounded area, awareness of the restraint, possession of the Ps property. 1. Big Town Nursing Home Inc. v. Newman: a. Facts: The p was checked into a nursing home by his nephewwho signed a form that the P could be held against his will for any length of time. The nursing home put him on a locked ward with delinquent patients. He was taped within a chair and he was not allowed to use his phone or have any visitors unless the manager knew them. He tried to leave the home 5 or 6 times each was a fail and resulting in his subsequent stints in the restraint chair. b. Issue: Does the Ps commitment to the home constitute false imprisonment? c. H/R: Yes it does count as false imprisonmentthey held his belongings and he was unable to leave the home despite being aware of his confinement and being aware that he was restrained. d. Rule: Confinement to a bounded area is sufficient to constitute false imprisonment. The imprisonment began from the first time that he asked to leave. 2. Parvi v. City of Kingston a. Facts: Drunk man picked up by the cops, driven to a nearby golf course, dropped off wandered onto the highway and sustained injury. b. Issue: whether a P who is aware of his confinement at the time but does not subsequently remember it can be considered falsely imprisoned. c. H/R: Yes, he was falsely imprisoned because there is evidence to demonstrate that he was aware of his confinement at the time that it was occurring. d. Rule: If the P is aware that he is confined and or restrained at the time it is occurring then the is actionable for false imprisonment. 3. Hardy v. Labelles Distributing Co. a. Facts: The p was led into a room under false pretenses, she was informed that she was suspected of stealing a watch. She denied taking the watch and then agreed to take a lie detector test. The meeting lasted between 20 and 45 minutes. b. Issue: does this constitute FI? c. H/R: No, she followed the manager willingly and ones the door to the room was locked she said that she stayed willingly in order to clear her name. She would have followed him regardless of whether or not he had told her that she was being taken into the back to be questioned. [Moral Persuasion is insufficient for restraint]. d. Rule: Moral Persuasion is insufficient for restraint 4. Enright v. Groves

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Facts: A case of false arrest where the officer demanded that a lady show him her license while he tried to write her up or violating the leash laws with her dog and when she refused she was taken into custody. b. Issue: Is this arrest if she committed a crime just not the one that immediately precipitated her arrest. c. H/R: This is false imprisonment because it was the demand for the drivers license and her subsequent refusal that immediately precipitated her arrest. This is not a case of moral persuasion because the officer grabbed her arm and because Groves had apparent authority so she did not resist. When the P was taken into custody under asserted authority that is what constituted the restraint. d. Additional: False arrest is a type of false imprisonment. 5. Whittaker v. Sandford a. Facts: Lady wants to leave a cult that shes a part of and is offered passenger ship on a yacht owned by her cult leader. He holds her off shore within the cruise ship and attempts to convert her back to the cult. b. Issue: She voluntarily entered the ship is it still false imprisonment? c. H/R: Yes, it is false imprisonment. Despite the fact that she went onto the ship knowing that the yacht was owned by her cult leader she was still restrained and completely confined within the ship as she was not allowed ashore. d. Rule: If the guest is effectually locked up even if they are not physically so then it is still false imprisonment Intentional Infliction of Emotional Distress: The intent of the D to cause severe emotional distress to the P through extreme or outrageous conduct. There must be a causal connection between the conduct and the resulting distress and the emotional distress must be deemed to be severe. 1. State Rubbish Collectors Association v. Siliznoff a. Facts: A rubbish collector in N.Y. had a contract with the mob. The dude violated the contract and the mob is suing him for break of (k), the mob is saying that it is the State Rubbish Collectors Association. They beat him up and make him nervous to the point that he is throwing up. They threaten him and tell him that if he doesnt pay then they will harm him. Then they send him away. b. Issue: Is this assault? No? So what is this? c. H/R: This is not assault because it was a conditional threat (if you dont bring us the money we will break your face) And because the threats that the mob is using are not imminentthey will happen if he doesnt bring the money by x date. It isnt false imprisonment because they let him go at the end of the meeting. And because threats of future harm do not constitute restraint. d. Rule: P suffers extreme fright by intentionally producing such fright so as to produce a threat through coercive methods that id had no right to use. e. Additional Notes: It is as though the mob looked up the tort for assault and got as close to the letter as they could without actually being actionable for assault. This is also another example of the court influencing public policy and the law to get a just result and a punishment meted to the appropriate party. 2. Slocum v. Food Fair Stores of Florida: a. Facts: A store clerk is rude to a lady in the produce section. He didnt say anything that bad and she just sort of freaked out. She claims that she has a heart condition that is exacerbated by stress and pressure. b. Issue: Does assertion of deliberate disturbance of emotion state a cause of action. c. H/R: Not IIED. The court says that the verbiage needs to be so out of bounds of normative social standard that it is objective. The words have to be bad enough that they would cause severe emotional distress to the reasonable person and not just to a particularly sensitive P that is abnormally sensitive. d. Rules: A D is liable for IIED only when conduct exceeds all bounds, which could be tolerated by society. The conduct must be of a nature that is especially calculated to cause mental damage of a very serious kind. e. Additional Notes: This is clearly an attempt by the court to limit the scope of the new tort that it just created. Also, this is more of the court with public policy. This

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is sort of an interesting follow up to an old tort: Common Carrier cases [A historical artifact available only when the P and the D are in different social classes. Railroads, inns, service people could sue for breaches of courtesy this is a status tort] 3. Harris v. Jones: a. Facts: Harris had a speech impediment (severe stutter and a head nod). His supervisor at GM, Jones, the D mocked him causing distress which exacerbated his stutter and made him more nervous b. Issue: Does there need to be a causal connection between the conduct and the resulting distress. c. H/R: There needs to be a causal connection between the two. Because there is no evidence that the Ds actions did anything more than exacerbate a preexisting and already bad condition. There is also testimony that the Ps condition was already bad and that he was already taking medicine and seeing a doctor. The humiliation of the P was not so severe as to constitute severe that part of the claim requires sufficient evidence in order to justify its submission. d. Rule: In cases of IIED, the P must prove that there is a causal connection between the conduct of the D and the emotional distress of the P. e. Additional Notes: The Ps case failed because he could not demonstrate a causal connection between, the wrongful conduct and the resulting issue. He also could not demonstrate that the wrongful conduct was severe enough to be the cause of the distress. 4. Taylor v. Vallelunga: a. Facts: The P alleges that she was present at the time that her father was mugged and brutally beaten and that as a result she deserves recovery for the intentional infliction of emotional distress. b. Issue: What if the D did not know that the P was there at the time that the distress was caused? c. H/R: If the D does not know that the P is present at the time that the tort occurred then there is no room for recovery under the law. Because the D did not know that the P was present. There is no way that the P can prove intent. Transferred intent does not exist with the tort of IIED. Further there is no al legation that the Ds knew of the Ps presence or that the beating was administered to cause her suffering. d. Rule: The conduct of the D must be directed at the P with the Ds awareness. Trespass to Land: Elements: The D must have the intent to be on the land, and must actually be on the land. 1. Dougherty v. Stepp: a. Facts: D entered the land with survey chains and a survey crew and actually surveyed some of the land. Land was closed and the D thought that it was his land. b. Issue: Is the entry onto the land of another even if the D thought that it was his own a trespass even if the D did not mark or cut anything? c. H/R: Yes, mistake does not negate intentthe intent is only that the D intended to be on that land and not that the D intended to trespass on the land. From every such entry against the will of the possessor, the law infers some damage: if nothing more, the treading down of a shrubbery, grass or an herbage. d. Rule: It is an elementary principle that any unauthorized and therefore unlawful entry onto the close of another is a trespass. e. Additional notes: This brings us back to what we learned in Ranson v. Kittner about mistake negating intentwolf dog. i. From every such entry against the will of the possessor, the law infers some damage; if nothing more, then the treading down of grass, herbs or shrubbery. 2. Herrin v. Sutherland a. Facts: A shot was fired over the Ps land. The P wants the right to have to have no shooting over his land. He wants to own the airspace. b. Issue: Is the air upwards of a persons property still his property?

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H/R: Yes, the court reasoned that the standing and firing of a shotgun over the land of a P is a trespass because it interferes with the quiet undisturbed peaceful enjoyment of the P. d. Rule: The legal significance of land is an indefinite extension upwards as well as downwards; whoever owns the land possesses all the space upwards to an indefinite extent; such is the maxim of the law. e. Additional Notes: The interest in the possession of the land also extends below the surface and may present similar problems and similar limitations. The owner of the real estate is entitled to be free and unfettered control of his own land above , upon, and beneath the surface. Air travel is a trespass only if it enters into immediate reaches of the air space next to the land and interferes substantially with the others use and enjoyment of the land. Rogers v. Board of Commissioners for Kent County a. Facts: Road commissioners had obtained a license to place a snow face parallel to the roadway past the decedents farm. At the end of the season there was a snow fence post that was left in the ground in a meadow where the snow fence had been. When the grass had reached a considerable height the P went out to cut it. The cutter ran over the stake and the P flipped forward off of the tractor and died. b. Issue: Is a thing that is left on the Ps property actionable as a trespass? c. H/R: Yes, even though the D had permission to place the stake in the Ps land he did not remove it after the specified period of time permitted by the P. d. Rule: LAW OF RESTATEMENT OF TORTS: 160. Failure to remove a thing placed on the land pursuant to a license or other privilege: A trespass, actionable under the rule stated in 158, may be committed by the continued presence on the land of a structure, chattel or other thing which the actor or his predecessor in legal interest therein has placed thereon. (a) With the consent of the person then in possession of the land if the actor fails to remove it after the consent has been effectively terminated, or (b) Pursuant to a privilege conferred on the actor irrespective of the possessors consent, if the actor fails to remove it after the privilege has been terminated by the accomplishment of its purpose or otherwise. e. Additional Notes: trespass can arise today when a guest over stays their welcome; A privileged entry onto the land of another may be limited not only by time and space but also by purpose.

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III.

Privileges: a. Consent: consent does not have to be expressed; it can be indicated so that a reasonable person would believe that the P consented to the Ds intentional action. i. Does implied consent exist? It depends greatly on the particular circumstances of each case and on the social norms of a particular community: Are the norms of the community such that a normal person would believe that consent is given through either silence or body language. 1. Sometimes in a game there is an implied consent (tagbeing touched by someone else that is playing the game: there is an implied consent there) a. There are however limits to implied consent (football case) 2. CONSENT OBTAINED BY FRAUD IS NOT CONSENT: consent obtained by fraud as to the essential character of the act itself is not valid consent, however fraud as to a collateral material will not negate consent. ii. Huckbart v. Cincinnati Bengals: 1. Facts: Plaintiff was playing football and was his so hard over the back of the neck that both he and the D fell to the ground, both returned to their respective sidelines without complaint. 2. Issue: Whether or not a professional football player can be held liable for intentional harmful actions during the course of a gamebecause, consent.

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H/R: A case like this can go to the juryso yes. There are rules in the NFL about striking another player in the back of the headthis is arguably outside of the scope of the players employment? a. Also because the Ds conduct was expressly forbidden by the league the court decided that the P should be able to argue his case in front of a jury. 4. Rule: The intentional striking of another player in the face or from the trear is prohibited by the league rules as well as the general customs of the game. iii. Mohr v. Williams iv. De May v. Roberts: Self- Defense: i. Deadly force is the infliction of death or of serious bodily injury. ii. You are privileged to use REASONABLE force to defend yourself or third persons against a threatened battery anywhere where you may lawfully be. {This is one area where mistake does make a big difference; the use of reasonable force is okay only when you believe that force is really necessary}. 1. Why is mistake here treated differently? a. Self preservation is the first law of nature- self defense is an efficient way of allowing someone to maintain his bodily integrity. b. The risk of mistake is allocated to protect a persons right to bodily integrity. c. If the P acts in a way that the D reasonably believes that he is going to be battered than the burden of the and the fault are on the P. d. Privilege of defense is a privilege against a threatened battery. Once the threat is over then you no longer have the privilege of self-defense. Additionally the use of force is limited to that which would be reasonable in defense of the batterythe force of the self-defense must be proportional to that of the potential harm. Privilege of self defense only authorizes the use of force to prevent an imminent battery or one that is already happening it is not cool to try to use it in order to prevent future harm. e. ** GEORGIA SELF DEFENSE: You can use the use of deadly force if you reasonable believe that there is a threat to your life that is present and even if there is an option of retreat. There is no duty or requirement to retreat before you use deadly force [Stand your ground statute] Defense of Others: i. Defense of Property: i. Katko v. Briney 1. Facts: Katko was trespassing on the Brineys land and intending to rob their unused farmhouse. The Brineys had set a spring loaded shotgun to deter intruders. Katko broke into the house and triggered the gun fire that shot him in the leg and caused a permanent injury. 2. Issue: May an owner protect property with the use of deadly force? 3. H/R: No, the value of human life outweighs that of property and the property owner does not have the right to use deadly force unless he feels that the intruder threatens his life. In the present case there was no threat on Brineys life because the gun was spring loaded and he was not even there. 4. Rule: The value of human life and limb outweighs that of the propertythus while the D may use reasonable force in defense of property, he has no right to use deadly force and willfully and intentionally injure a trespasser in a manner that may result in death or serious bodily harm. 5. Hypos: The Brineys posted a sign that says: warning this property is protected by a spring gun. a. Verdict could have gone either way, in a minority of jx there is a modified rule protecting property if the owner gives the burgalar warning of deadly force. However in most jx you cannot consent away your right to not have deadly force used against you. 6. Hypo: 3.

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Katko broke into their home while they were home: i. If they could say that it was reasonable that they were using that force to protect their lives then they have a shot at winning their cases, despite the use of deadly force.

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Hypo: a. You think that you are shooting a ransacking bear but it is actually a person. i. There is no intent here for batterytransferred intent does not transfer from bear to person. This is probably negligence

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IV.

Necessity: i. Surocco v. Geary 1. Facts: P is suing the mayor of San Francisco for blowing up his house. The mayor says that it was necessary to prevent the spread of an already raging fire. The P is seeking compensation for the loss of the property that was destroyed claiming that given more time he would have been able to remove more of his belongings and save them. 2. Issue: Is the destruction of proerty under necessity and during a time of emergency in order to prevent more damage the civil liability of the destroyer? 3. H/R: No, the mayor is not actionable because the destruction of Surroccos property was necessary to stop the further spread of the blaze. The court says that the Ds action was privileged because the act was for the greater good of the public. There is policy reasoning here; the courts dont want to deter public officials from taking necessary actions in the event of emergency. 4. Rule: otherwise tortuous acts may be rendered non tortuous when necessity dictates that they be undertaken for the greater interests of society. 5. Hypo: The D destroys another party but he is not a public official is the act privileged? a. No they do not have the authority to authorize the blowing up of a house. Yes, we want to encourage people to make reasonable decisions that work for the public good. 6. Additional Notes: The privilege of public necessity is not limited to public officials but in order to invoke the privilege the actor must show: first that public rather than private interests were at stake. And second that he was reasonable in believe in that the action that he took was needed, and third that the action the D took was a reasonable response to that. ii. Vincent v. Lake Erie Transp. Co. 1. Facts: There was a really violent storm in the Ps harbordue to the nature of the weather the D was forced to leave his boat tethered using one of the Ps cables. Over the course of the night, the cables that were mooring the boat sustained damages. P is suing for recovery. 2. Issue: Who is liable for the damages is necessity causes the D to avail himself of the Ps property? 3. H/R: The D is liable for the damages because he prudently and advisedly availed himself of the Ps property for the purpose of protecting his own more valuable property then the P is entitled compensation for the harm that was done to his property. This is a case of private necessitythe Ds actions were necessary to protect only greater harm to his own personal property. 4. Rule: A party acting under necessity to protect his own life or property is still liable for the damages incurred to the property of another if the first party availed himself of the seconds property. 5. Additional Notes: The rule of private necessity can be invoked only when the D is threatened or reasonably appears to be threatened with serious harm and the response is reasonable in light of the threat. Actual damage is not required as in trespass to land. The difference between private necessity and self-defense is that in self defense you are privileged because you are protecting another human being and not property. Negligence: 1 The failure to exercise the standard of care that a reasonable prudent person would have exercised in a similar situation. 2any conduct that falls below the legal standard established to protect others against unreasonable risk of harm except for conduct that is intentionally, wantonly, or willfully disregarding of the rights of others. 3A tort grounded in this failure. a. History:

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b.

c.

i. Negligence was scarcely recognized as its own tort before the early part of the nineteenth century. With the industrial revolution and the increase in unforeseeable accidents the need was created for a new tort (the stimulation was the need arising out of machinery and railway cases) a. NEGLIGENCE TOOK THE SECOND FORM AS THE BASIS FOR UNINTENDED TORTS. Elements of Cause of Action: DUTY, BREACH, CAUSATION, DAMAGE i. A duty to use reasonable care; this is an obligation recognized by the law, requiring the actor to conform to a certain standard of conduct that will protect others against unreasonable risks. D must have a duty to use reasonable care. Under current law the element of duty needs reasonable care. The duty element is almost always met. The general rule regarding duty is that all persons have a duty to use reasonable care and to avoid injuring othersa failure to conform to the required standard is called the breach of duty. 1. Breach is the failure to use reasonable care. Sometimes the word negligence is just used to describe the breach. 2. Causation: There must be a reasonable close causal relationship between the breach of duty and the resulting damage. 3. Finally there has to be actual damage. Negligence requires that a loss be sustained in order to establish a claim. Nominal damages in order to vindicate a technical right cannot be recovered in an action for negligence. However if the Ds conduct threatens a P, then the P may be able to obtain an injunction to stop the activity as a nuisance. 4. ** There is another standard of negligence is the Conduct falls below the normal standard of care established by law for the protection of others against the unreasonable risk of harm. This standard applies to both the P and the Dcontributory negligence. If the Ps negligent conduct contributed to his injuries. A Negligence Formula: i. Lubitz v. Wells: 1. Facts: Wells left his golf club on the ground, child picked it up and swung it, hit his playmate in the face. 2. Issue: Is this negligence? 3. H/R: No, the object of a golf club is not so inherently dangerous as to be considered negligence if it is left on the ground in a yard. 4. Rule: In order to be actionable for negligence, the tool causing the injury must be obviously and inherently of a dangerous nature so that leaving it unattended would be unreasonable. 5. Additional Notes: While there is no case against the father there could be a case against the son for failing to look at where he was swinging the golf club. There is a possibility of finding the D here guilty for negligence if (a) the kid had done it before or (b) if the kid was an uncontrollable swinger and was always hitting people with stuff. ii. Blyth v. Birmingham Waterworks: 1. Facts: There was an especially bad storm and it broke a valve on a fire hydrant that caused damage to the Ps house. 2. Issue: If there are extraordinary circumstances is the D still actionable for negligence? 3. H/R: Not negligence, the D did not omit something that a reasonable man guided on these considerations would do and he did not do something, which a prudent or reasonable man would do. 4. Rule: A state of unusual and unexpected circumstances is not something that the reasonable person can prepare against and therefore a D is not actionable for negligence in the event of unexpected circumstances. 5. Additional Notes: Hypo** P is struck by lightning while playing on the Ds golf course. Should it go to the jury? Yeah, why wasnt there a loudspeaker announcement. What was the circumstantial distance from the club house. iii. Pipher v. Parsell: 1. Facts: There were three people in the car, the P, the D, and the crazy girl. The crazy girl grabbed the wheel and the car jerked. Then she did it again and the car rolled down an embankment causing the Ps injuries. 2. Issue: Is the driver negligent and liable for Piphers sustained injury?

11

H/R: He is charged to exercise the as having a duty to the same standard of care as an adult and did nothing to stop her or prevent her from grabbing the wheel of the car a second time. (There was no threatening to make her get out of the car, or making her move to the backseat, or even being like DUDE, STOP THAT! 4. Rule: When actions by a third party interfere with operator duty to the safety of the . There may be a breach of duty to either other surrounding parties or the public. 5. Additional Notes: How Timmons would argue defense: If reasonable care means that we take precautions against injuries that are likely to occur then this is a freak occurrence. (Response: there is forseeability here, he grabbed the wheel once and the driver tool no action to prevent it from happening again. a. Note 9: A dog bit a man in a bar. A reasonable person will take actions to prevent things that happen less then 51% of the time. A reasonable person would exercise sufficient care to prevent foreseeable injuries to others. Forseeability is required; it doesnt have to be a more often then not thing. Forseeability is not the only thingyou also need to look at the potential seriousness of the injury i. Danger consists in the risk of harm, as well as the likelihood of it and a danger calling for anticipation need not be of more probable occurrence then less. If there is some probability of harm sufficiently serious that the ordinary man would take precautions to avoid it, then the failure to do so is negligence. iv. Chicago, B. & Q.R. Co. v. Krayenbuhl 1. Facts: There was a railroad turntable between two railroad tracks. A kid was playing and he injured his ankle. 2. Issue: If the equipment is known to be dangerous then is it negligence to continue to use the potentially hazardous equipment? 3. H/R: It is not unreasonable to continue to use the equipment when the benefits of using the machinery outweigh the risks, This ruling is backed by public policy. However the D breached his duty of care by not locking up the turntable. The turntable was close to a path that was close to the general publiclocking it is a minor inconvenience but it is outweighed by the risk. 4. Rule: When the benefits out weigh the risks it is not unreasonable to use dangerous equipment that works for the benefit of society. 5. Additional Notes: Arguing for the Dthere was contributory negligence on the part of the child who knew that RR turntables are dangerous? v. United States v. Carroll Towing: 1. Facts: The barge (the Anna C.) was moored and tethered to a dock. The moorings broke and the barge drifted down river with her cargo in it but her attendant not. The barge drifted up alongside a tanker and no one noticed it. Then the propeller punctured a barge nearby and sunk is00 causing the ship to lose its cargo. 2. Issue: Who is at fault for the damages that occurred to the barge and for the cost of the cargo aboard the sunken ship? 3. H/R: The barge company is responsible. The company was supposed to have an attendant aboard the barge during working hours and had the attendant been there then he would have been aware that the barge had come unmoored and been able to prevent the damages. Restatement of the Tort: Restatement of the Torts (The Second) (1965): Utility: the quality of serving some purpose that benefits society 291: Unreasonableness; How Determined; Magnitude of Risk and Utility of Conduct Where an act is one which a reasonable man would recognize as involving risk or harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done. 292: Factors Considered in Determining Utility of Actors Conduct In determining what the law regards as the utility of the actors conduct for the purpose of determining whether the actor is negligent, the following factors are important: a. The social value which the law attaches to the interest which is to be advanced or protected by the conduct;

3.

12

b. c.

The extent of the chance that this interest will be advanced or protected by the particular course of conduct; The extent of the chance that such interest can be adequately advanced or protected by another and less dangerous course of conduct.

293: Factors Considered in Determining the Magnitude of Risk In determining the magnitude of risk for the purpose of determining whether the actor is negligent the following factors are important: a. The social value which the law attaches to the interests that are imperiled b. The extent of the chance that the actors conduct will cause an invasion of any interest of the other or of any class of which the other is a member. c. The extent of the harm likely to be caused by the interests imperiled. d. The number of persons whose interests are likely to be invaded if the risk takes effect in harm. Restatement of Torts The Third: Liability for Physical and Emotional Harm (2010) 3. Negligence: A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the persons conduct lacks reasonable care are the foreseeable likelihood th at the persons conduct will result in harm, the foreseeable severity of any harm that may ensue and the burden of precautions to eliminate or reduce the risk of harm. d. The Standard of Care: i. The Reasonable or Prudent Person: 1. Vaughn v. Menlove: a. Facts:D set up hayricks on the border of his property, bordering the property of his neighbor. He was warned several times of the fire hazard that the hayricks could cause, he said that he had insurance to cover any of the damages and when he was told to take his hayricks down he said that he would take his chances. b. Issue: Is the D actionable for negligence under a standard of individual knowledge or can there be a uniform provision for negligence? c. H/R: The D is actionable for negligence because the law requires a sort of uniformity of standard and the negligence must be evaluated under the standard of a reasonably prudent man. Even though the D himself did not start the fire it is as though he did because a reasonable person would know that hay is very flammable. d. Rule: Negligence is determined under the objective standard of what the reasonable and prudent person would do under the circumstances. 2. Delair v. McAdoo: a. Facts: P and D were driving next to each other when the Ds tire blew out causing him to swerve and hit the Ps car. Ds tires were visibly bald and two witnesses attested to the fact that they looked dangerous. b. Issue: is the D responsible for the for a malfunction that was caused by his failure to maintain a normal standard of care for his car. c. H/R: yes the law requires that the driers and owners of motor vehicles know the condition of the parts that are likely to deteriorate and to become dangerous and that the maintain them so that they do not become dangerous. d. Rule: Drivers and owners of cars are required to know the parts the flaws and faults that would be disclosed by a reasonable inspection. It can be assumed that they know f the dangers ascertainable by such an inspection. It is commonly held that the reasonable person will not forget what is actually known and that forgetfulness does not excuse negligence. But when tdistracted attention, lapse of time, or other similar factors make it reasonable to forget it can be found that there is no negligence. 3. Trimarco v. Klein a. Facts: The P was in the shower and was about to step out. He was in the process of sliding the sliding glass door open when the glass shattered and he sustained injuries and lacerations from the glass shards. At the time that the case took placer

13

4.

5.

6.

7.

most bathroom glass doors had been changed to conform to the new technology of shatterproof glass. b. Issue: Is the landlords failure to comply with the traditional industry standards of home renovation negligence/ c. H/R: The trial is remanded for further proceedings. d. Rule: Common acceptance or practice cannot make things that dont conform to the practice a definitive statement of negligence. Cordas v. Peerless Transportation: a. Facts: D was a taxi driver a thief fleeing from the scene of another crime hopped in his car held him at gunpoint and told him to drive. He jumped out of the car while it was still rolling and the car rolled into the P and her two kids. b. Issue: Was the taxi driver negligent for acting unreasonable in an emergency circumstance? c. H/R: The D is not negligent he was acting under emergency circumstances and there is a different standard of car required when acting under unforeseen and harrowing circs. d. Rule: In the event of emergency the D is to act in a reasonable and prudent manner such that a reasonable and prudent man would act the same under similar circumstances of emergency. e. HYPO***: Brakes are not working and the P jumps out of the car is that reasonable? NO!!! i. There is a general agreement that id the negligence is created by the negligence of the actor then the emergency doctrine does not apply f. Also why didnt the Ps sue the thief? HE IS A THIEF HE HAS NO MONEY$$ Roberts v. State of Louisiana a. Facts: P fell after being bumped into by a blind man who operated a concession stand in the same building as a post office. P is suing the state of Louisiana for the faulty operating of a concession stand and the determination of the blind mans negligence is crucial to determining the outcome of the case. b. Issue: was the Blind man negligent in walking without his cane along a familiar route in a familiar building? c. H/R: No he was not negligentthere was expert testimony that supported that it is normal for blind people in familiar circumstances to walk without the use of a guide dogg or a cane is they know their environment and travel the same path with a frequency. d. Rule: The blind man must take precautions that a reasonably prudent blind man would take under the same circumstances. Robinson v. Lindsay: a. Facts: 2 kids were playing with a snow mobile. One of the kids was sledding behind the snowmobile being driven by the other kid. The sledder s thumb was cut off by the tow-rope? b. Issue: What is the standard of negligence for children? c. H/R: this kid is actionable d. Rule: Children must act as a reasonable child of like age, intelligence, and experiencethis is not the same standard of care as for adults because children are encouraged to engage in childs play and somewhat risky and weird activities. e. Additional Notes: we hold children to an adult standard of care when 1. The child is engaged in an activity that is normally undertaken by adults or 2. When children are engaged in inherently dangerous activities. The decision between which of these criteria to apply is in determined by the judge at his discretion. i. The rationale behind this exception is that it discourages children from being unnecessarily hazardous. Parents and other adults need to be like No! youll be held to an adult standard of care!! Breunig v. American Family Ins. Co. a. Facts: Crazy lad hit the truck in front of her when she thought that she was batman and therefore that her car could fly.

14

Issue: Was this negligence if this lady was a crazy? H/R: this is negligence her condition was preexisting Rule: If there is sudden and unexpected insanity then there is no negligence and the D is not held to the standard of the reasonable person. But if there is preexisting knowledge that the D is crazy then youre still held to the reasonable standard. e. Additional notes; Why might members of the mentally disabled community favor this decision? i. Precautions temper the affect of mental illnesses ii. They can get more help from normal society members iii. Special standard of care requirements generally lead to more restrictions and less rights for the affected class of people. Also negligence applies to the mentally ill person and to their caretaker. ii. The Professionalin professional cases compliance with normal industry practice is determinitive. 1. Heath v. Swift Wings: a. Facts: Plane crashed immediately after take off. The estate of the mother and the brother is suing that ot the father so that the surviving daughter can get money from her fathers insurance company. b. Issue: What is the standard of care for a proffesional that establishes the parameters of negligence? c. Rule: The standard of care is that of the ordinary competent professional. However a specialist is held to the standard of care created by other specialists. 2. Hodges v. Carter: a. Facts: This is a fire insurance case. Rejected proofs of loss, denied liability, and declined to pay any part. The service was held to be invalid as service by mail. The P was left without recoursethe statute of limitations had run out. The P files a malpractice suit for professional negligence. b. Issue: What is the standard of negligence for attorneys? c. H/R: Complied with the standard practices in his jx. And was in possession of knowledge, exercised his best judgment, and used due care. d. Rule: An attorney who acts in good faith and in an honest belied that his advice and acts are well founded and in the best interest of his client is not answerable for a mere error in judgment or for a mistake in a point of law which has not been settled by the court of last resort in his state and on which reasonable doubt may be entertained by well informed lawyers. e. Hypo***: I just passed the bar (yay). I take on a pro-bono case(good for me) I am unsuccessful and I am sued for malpractice. Does she have a case for neg? i. Duty arises out of law and not payment. 3. THE DOCTOR CASES: compliance with customary practice and standards means that the D dr. is not in breach. a. Courts are more likely to find liability in issues of close mechanical negligence then in issues of negligence by professional judgment. b. The D can be liable whether the service is paid or unpaid. c. In determination of malpractice, the D must have failed to do something that the standard requiresthis must be established by expert testimonyordinary experience and common sense can only take the jury so far. i. Rejection of the locality rule/ the national standard of care. 1. Majority of jx. Support that that the medical standard is set by similar circumstances, similar care 2. Minority of jx. Support a national standard. d. Duty of informed consent: The D is in breach if he fails to disclose risks that an ordinary competent physician would disclose. i. Dr. VIOLATES DUTY is she fails to disclose what the ordinary patient would want to be disclosed. e. The P must prove: that the nondisclosure would have affected the judgment of a reasonable person

b. c. d.

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4.

5.

6.

i. Or that it would have affected his or her individual judgment you have to make the jury believe that though. f. A physician must disclose any personal interests thtaare unrelated to the patients health whether the interests are research or economic. Boyce v. Brown: a. Facts: In 1927 the P came to the D doctor to fix a broken ankle. The P came back for follow up visits for 4 weeks after and then returned twice more over the next ten years for consulatations. In 1936 the P goes to a new doctor and the new guy performs an X-Ray and removes the screw allowing the ankle to heal. P claims that the D was negligent in the X-Ray performed in 1934. b. Issue: Was the D negligent and why this time? c. H/R: The D was not negligent because the P failed to prove that he did something that the recognized standard forbidsunless the negligence was so grossly apparent that the laypeople would recognize it then you would need expert testimony. The expert testimony that the P appointed said that he personally would have ordered the x-ray but that it is not required by the standard. d. Rule: In medical malpractice, negligence must be grossly apparent and the medical practitioner must have failed to meet the standard of comparable professionals. e. Additional Notes: Why was the focus the 1934 visit and not the 1927? Her ankle healed firstthe P could have made the argument the doctor violated informed consent by not telling her that necrosis could happen. f. More Notes: Why didnt the P complain about the last visit to the Dr. in 1936 before she went to the other dr? It was only a couple of days of damages that would be awarded and the damages would not be worth the cost and hassle of the suit. Morrison v. McNamara: a. Facts: The p went to the dr. for an STD test, he was standing when it was performed and he fell and lost his sense of taste and smell. Local standard was to stay standing but the national standard was to sit down. The jury was given instructions that enumerated the local standards over the national standards. b. Issue: Is it negligence on the part of the doctor to apply the local rather than the national standard? c. H/R: The locality rule no longer applies; the standard of care for board certified medical professionals is national. The locality rule is old and was created to protect rural Drs. But needs to be put away because it does not elevate the standard of care. d. Rule: There are two approaches to articulating the standard of care in the locality rule: i. Other professionals dont have a locality rule and locality requires 1 local professional to testify against another. ii. Similar community, similar circumstances. Most jx hold this to be the standard only a minimum of jx support a national standard. Scott v. Bradford: a. Facts: The P came in for a hysterectomy, while the dr. was performing the surgery he noticed some tumors. He removed the tumors too causing the P to suffer incontinence. The Ps claim is for the violation of the duty of informed consent. The physician has a duty to inform the patient of the consequences and risks relevant to the surgery. b. H/R: This court takes a patient focused approach to breach. The patient must be informed of all material risks to surgery. The interest that the law is seeking to protect is the right of the patient to control the decisions of what will happen to her own body. i. The court goes one step further to allow that even if the reasonable patient would not have declined the procedure this patient would.

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7.

ii. There is a split in the view on breach between a physician focused standard: what the ordinary competent physician discloses. And the patient focused approach where the patient has the right to make any and all decisions pertaining to her own body. (The minority of jx are patient focusedwhat the reasonable patient would want to be disclosed) 1. Exceptions: 1. Where risks ought to be known by everyone 2. Emergency 3. Full disclosure would be detrimental to the patients overall well beingthis requires a narrow interpretation otherwise doctors would do whatever they want. c. Additional Notes: HYPO**: P proves that the dr. failed to disclose none of the exceptions applicable. What else must the P prove? i. Wouldnt have gone through with it had they been warned ii. And the risk that the P wasnt informed of actually occurred. d. There are two standards here for causation: the subjective: this patient, had he been informed, wouldnt have gone through with it. And the Objective: would the reasonable patient have forgone the treatmentthis takes away the autonomy of the patient. i. The subjective standard may not always be satisfiedthe jury may not believe the P. Moore v. Regents of UCLA: a. Facts: P was treated for leukemia, Dr. required follow up visits. The p later found out that the Dr. was patenting research based on the Ps condition. i. informed consent case: (problems) 1. no injury 2. probably still would have had the surgery ii. Prior to this case the standard for informed consent was the disclosure of the risk b. The physician failed to disclose personal interest unrelated to patients health that may have affected his personal judgment. The reasonable patient would want to be informed of the Dr.s conflict of interest. c. Rule: Physician must disclose any personal interest they have whether related to the patients health or not. d. Additional Notes: This could be applied to attorneyswhen a lawyer wants to take a high profile case for publicity when the best interest for the client would be to take a plea or to settle outside of court.

e.

f.

Rules of Law: i. Pakora v. Wabash Ry. Co. 1. Facts: P is driving a truck and approached a RR. Crossinghe couldnt see around a building he stopped and listedned but id not hear anything. He continued to drive and was hit by a train 2. Issue: What was the driver to do was he negl.? 3. H/R: he must do what is suitable for the ordinary person in his position to do. It was stupid to get out of the truck and look around because by the time that he was back in the truck the situation could have changed. Violation of Statute: [NEGL. PER SE] 1. Osborne v. McMasters: a. Facts: P dies from drinking unlabeled poison from the Ds drugstore and sold by the Ds employee in the course of her employment. b. Issue: Where the is a statute in place for the benefit of others if he neglects to perform a duty and the class of persons for whom the duty is imposed is injured is there negl.? c. H/R: Yes the statute has been enacted to protect that particular group of persons it is therefore negligent to not exercise the duty of care that is mandated by the statute. d. Rule: Vioation of the statute constitutes conclusive evidence of negligence

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i. The statute establishes a fixed standard by which the fact of negl. may be established. e. **Notes pp. 213 (Timmy likes this one): The significance of the statute in a civil suit for negl. lies in its formulation of a standard of conduct that the court adopts in the determination of liability. The decision of what civil standard should be still rests with the court. A statute becomes the standard to determine civil liability only when the court accepts it. In the absence of such a standard, the case goes to the jury, which must determine whether the D has acted as a reasonable prudent man in similar circumstances. i. When a legislative body has generalized a standard from the experience of the community and prohibits conduct that is likely to cause harm the court accepts the formulated standard and applies them. ii. Applicability of Statute: 1. Stachniewicz v. Mar-Cam Corp. a. Facts: The racist Indian case. There is a statute forbidding the serving of alcohol to patrons already intoxicated, despite this the bartender served an intoxicated patron of the alchy. b. Issue: Is the bar owner actionable for negligence and thereby liable for the consequences of the barroom brawl from his violation of the statute c. Rule: He is liable if the injuries would not have occurred except for the Ds violation of the statute i. Violation of the statue or regulation constitutes negligence as a matter of law when the violation results in injury to a member of the class of persons intended to be protected by the legislation and when the harm is of the kind which the statute was intended to prevent. 2. Ney v. Yellow Cab Co. a. Facts: D (taxi driver) left his car unattended without stopping the engine, locking the ignition, or removing the key. A thief stole the car and ran into the Ps vehiclecausing damage. P alleges that D was negligent under a certain statute. b. Issue: Could the harm that was caused to the P be reasonable foreseeable and was it the kind of harm that was intended to be prevented by the statute under which the P seeks damages? c. H/R: Yes, it is reasonably foreseeable. But the wrongful acts of independent third persons and not actually intended by the D, are not regarded by the law as natural consequences of the wrong and he is not bound to anticipate the general probability of such acts any more than a particular act by this or that individual. d. Rule: The intervention of a criminal act does not necessarily interrupt the relation of cause and effect between negligence and injury if at the time of the negligence the criminal act may reasonable have been forseen, then the causal chain is not broken by the intervention of such an act. 3. Perry v. S.N. and S.N. a. Facts: child abusers run a day careand in the Ps case there were people that knew of the abuse and failed to report it. b. Issue: whether the P is actionable for negl. based on violation of a statute requiring anyone knowledgeable to report abuse? c. H/R: The doctrine of negl. per se cannot be applied if the criminal statute does not provide an appropriate basis for civil liability. The court also held that ther was no fault and that there can be no liability without faultfurther the court held that the signs for child abuse are varying and obscure and that as a result it is difficult to pinpoint whether there is a duty to report. d. Rule: It must be otherwise appropriate for the use of the statute to justify the establishment that there was a breach i. Additional Notes: in most negligence per se cases there is already a common law duty (therefore the duty element has already been met) BUT THERE IS NO DUTY TO RESCUE UNDER TORT LAW

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ii. There is also the question over whether negligence per se if applied here would require a more serious punishment then the action allotted. For what harm would the Ds be held liable? Where is the limit? iii. The court also looks at liability without fault herethere can be no liability without fault. iv. Notice is only prohibited or required when conduct is clearly defined g. Proof of Negligence: i. Court and Jury; Circumstantial Evidence 1. Goddard v. Boston and Maine RR. a. P slipped on a banana peel after deboarding a train in boston and sued the RR co. b. Is the D liable for negligence? c. H/R: No the banana peel may have been dropped within a minute of the P slippingthe D is not liable. 2. Anjou v. Boston Elevated Railway Co. a. P slipped on a banana peel while walking along. b. Issue is the D liable for negl? c. H/R: The banana peel looked as though it had been there for a long time, it was black and gritty and it didnt have any yellow on it. Therefore it was clear from the appearance of the peel that it had been there for a while. Enough time that it should have been reasonably seen and moved by the Ds. The Ds leaving the banana peel there was a breach of the duty to keep the platform reasonably safe for passengers. Thus negligence 3. Joyce v. Great Atlantic and Pacific Tea Co. a. The P slipped and fell on a banana peel in an A and P. From the evidence of the bananas condition it is not clear whether the bana had been there for an hour or for a minute. b. H/R: if you cannot determine the length of time that a banana had been sitting on the floor then the D is not actionable. 4. Jasko v. F.W. Woolworth Co. a. P slipped on a piece of pizza and sues the D for negligence b. Is the D liable for the damages on the grounds that the Ds method of service was one that leads inescapably to mishaps thereby rendering notice as unrequired? c. Notice is not required when the operating methods are such that dangerous conditions are continuous and easily foreseeable. ii. Res Ipsa Loquitur: the elements of duty and breach can be inferred from the outcome. This doctrine usually applies in cases where large things have fallen on peoples heads. 1. This is a doctrine that permits but doesnt compel the inference of negligence under certain circumstances.p must still establish that the instrumentality of her injury was under the control of the D at the time that she was injured and that the accident wouldnt have taken place without the negligence of the one that was in control. 2. Byron v. Boadle (1863) a. P was injured by a bag of flour that fell from a window above the street b. There was no evidence that the D was aware or superintending the lowering of the flour. There is no direct evidence of negligence The mere fact that the accident occurred is proof enough of the negligence 3. McDougald v. Perry a. P an D were driving on the highway when the Ds spare tire flew out from under his truck and hit the P. The D had inspected the truck on the day of the accident but admittedly not every link of the chain b. There was no testimony that failure of safety chain and the spare tires exit onto the roadway would not ordinarily occur in the absence of the Ds neglige nce. c. A proper case analysis of the application of RIL: spare tire is the accident type which on the basis of common experience and general knowledge would not occur, but for the failure of the D to exercise reasonable care {RIL is particularly applicable in cases of wayward wheel accidents} The inference of negligence comes from the proof of circumstances of the accident

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V.

Larson v. St. Francis Hotel: a. P is struck in the head with an armchair that was thrown out of the window of a hotel. There were many witnesses but nobody saw where the chair came from, also no one saw the armchair before it was within a few feet of the Ds head, there was no Id of the chair even belonging to the D hotel. b. Does the doctrine of RIL apply? (RIL cannot be applied when it appears that the D is responsible for 1 out of 2 causes. c. Test for the application of RIL: i. P Must prove: ii. That there was an accident iii. That the thing or instrumentality of the accident was under the exclusive control of the D at the time of and prior to the accident iv. That the accident was such that ordinary course of events, the D using ordinary care, the accident would not have happened. d. THE REASONING HERE IS IMPORTANT: A hotel does not have exclusive control either actual or potential of its furniture. Moreover it cannot be said that the accident was such that in the course of ordinary events it would not have happened. e. HYPO: P is walking on a street under a hotel during the week of spring break. Is this RIL. i. If this is a normal hotel that is frequented by spring breakers then it is less of a burden on the D to bolt down the furniture than it is to constantly killed people. Under the circumstances of our hypo the focus shifts to the specific conduct that the hotel failed to take. RIL for when the P doesnt have evidence of particular conduct that a D should have taken. f. It is again really important to note that there is an element of exclusivity to the control. Note 4 on page 258: exclusive contol of the instrumentality is often too difficult to prove. Glass in a can of food is just as likely to be the canning company as it is to be the food production company. Other possibly responsible causes including the conduct of the D and the third persons must be proven as specifically under the control of the D. g. It is negligence if it is any more likely than not that it is attributable to the D. 5. Hypo: P is struck in the head by a coconut drink falling from the balcony above. Is this RIL? a. There is no evidence of exclusive control, so no. It however is definitely and event that would not ordinarily occur. 6. Ybarra v. Spangard: a. Appendectomy received care from Drs. And nurses. Eventually an injury to her arm incurred during her surgery caused paralysis. RIL? i. All she would need to prove negligence is expert testimony the problem here is with the element of exclusive control. It is not clear who was in control of her when the injury occurred. ii. The court has a policy with the problem at hand. Cannot rule in favor of the P without evidence of exclusive control. Without the aid of the doctrine a patient who received permanent injuries as a result of negligence would be entirely unable to recover unless the doctors and nurses in attendance voluntarily disclose the actor of the negligence and the facts that establish liability. b. **Ds are jointly and severally liable. In cases where the P unconscious during medical treatment and receives unusual injuriesthe can use RIL against all s that are possibly responsibleThis is an exception to the rule that RIL excludes the application of joint and several liability. Chapter 5: Causation in Fact: This works with the breach element for the tort of negligence. BUT FOR a. Sine Qua Non: *This is basically Latin for but for cause. An indispensible condition or thing; something on which something else necessarily depends. i. Perkins v. Texas and New Orleans R. Co.

4.

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b.

Facts and Backround: Train and car collision, the train was moving 12 mph faster then it should have been. The alleges that were it not for the unlawful speed of the train the train would have been able to stop in enough time to not hit the car. The was deemed to be negligent in driving on the train track when the train was coming and it is his negligence that was the proximate cause of the s injuries. 2. Issue: Was the negligence of the RR company a but for cause of the injuries to the ? 3. H/R: The negligent act of the train speeding was not a but for cause of the injuries sustained by the . There is no way to tell whether the car would have been able to escape the train had the speed of the train been slower. 4. Rule: A cause in fact must be a clear but for cause in order for the alleged actor to be held actionable for negligence. A proximate cause is a substantial factor in bringing about an injury and without which the injury would not have occurred. 5. **Hypo: A and B are in a car wreck. A drives a car that has been manufactured so that when it is rear ended the car explodes. B rearends A and the car explodes. Who is actionably by causation in fact? a. Both B and the manufacturer of the car could be found to be but for causes of the s injury and as such, it is important to note that there is no requirement that there be a single cause in fact of the s injury. There is room for an argument that implicates the other and brings in the requirement of responsibility. 6. There are hypos to run for this on page 270. Proof of Causation: i. Reynolds v. Texans and Pacific Ry. Co. 1. Facts: A corpulent woman fell down a narrow flight of stairs in an unlighted train car without a handle train car after she was descending. She alleges that but for the negligence of the RR Co. she would not have fallen. 2. The court held that though she may have fallen if the stairwell had been well lit and had a handrail that the lack of those two things was likely the cause of her injury. 3. Rule: Where the negligence of the greatly multiplies the chances of the accident to the and is of a character naturally leading to the occurrence, the mere possibility that it mught have happened without the negligence of the is not sufficient to break the chain of cause and effect between the negligence and the injury. The tendency of evidence must connect the act with the negligence. 4. Note 1, P. 272 Kirinrich v. Dredging Co.: A drowning man was thrown a life preserver, he failed to catch the rope and subsequently died. Would he have died if he had been thrown a life preserver instead of a rope? ii. Gentry v. Douglas Hereford Ranch: 1. Facts: slipped and fell around or about the steps of the rach cohe accidentally discharged the rifle on his shoulder and shot the s wife in the head. cannot remember where he was or what caused him to fall. says that the ranch owner was negligent in leaving the steps in a negligent manner and that the , Bacon, was negligent in the way that he was holding the rifle. bacon does not remember what he stumbled on or even if he was on the stairs at the time that the rifle discharged. 2. The cause of the negligence was unknown and cannot be considered the fault of the Ranch owners. The cannot prove that it was the negligent upkeep of the property that caused the accident and as such there is no cause in fact. If Bacon had remembered that he was on the stairs and that it was the negligent upkeep of the stairs that caused his fall then it is more likely that the could have recovered on the basis of causation in fact. a. Were this the case you would be able to make a decent argument for RIL, the only issue with that would be that you would have more than one and would therefore have trouble demonstrating exclusive control. 3. Rule: In an action for negligence a must produce evidence from which it can be reasonably inferred that negligent conduct on the part of the was the proximate cause of the s injuries. A suspicion is not enough to sustain an action or to defeat a motion for summary judgment. (Speculative statements do not raise an issue of material fact.

1.

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Notes P. 276: The possibility of the existence of an event does not tend to prove its probability iii. Kramer Service, Inc. v, Wilkins: 1. Facts: was hit in the head with a shard of glass that fell from the hotels transoms. The cut did not heal for several years and the later in life got cancer. The sued the for negligence because there was evidence that the transom had been in disrepair long enough that the hotel should have had it repaired. 2. Issue: Is the actionable for negligence if there is proof that the negligence was the cause and therefore there is proof that the caused an injury to the just not the injury that the is suing for. 3. H/R: No the is not liable for the injuries. Possibilities will not sustain a verdict. The allegation must have a foundation; expert testimony revealed at trial that there was no connection between trauma and cancer. The court claimed that if expert testimony could not claim an element of causation then there is no way that the judge or jury could find that there were elements of causation. *Distinguishing between when expert witnesses are required and when common sense is sufficient for the establishment of liability. a. There is insufficient evidence for the jury to find that but for the negligence of the maintaining things and causing the cut that the would not have developed cancer. 4. Rule: It is not enough that the negligence of one person and injury to another coexisted. The negligence must have caused the injury in order for an action to be valid. When undisputed, medical testimony must be accepted and acts upon in the same manner as other undisputed evidence. 5. Notes**: This brings up the post hoc ergo propter hoc fallacy a. Differentiation between this and the fat lady RR case, most people have fallen, most people have not cut their heads and subsequently gotten skin cancer. b. ****Should the judge permit the s experts to testify that since they are expressing their opinions in terms of possibility rather than probability? Yes the experts should have been permitted to testify because the need not prove another cause he need only to persuade the trier of fact that the s putative cause was not the probable cause. iv. **Herskovits v. Group Health Cooperative of Puget Sound: This is another probability v. possibility distinction. 1. Facts: Physician failed to diagnose the s lung cancer in a timely manner and as a result, he died. The main medical witness testified that if the hospital had employed proper treatment, the decedent would have had a substantial chance of surviving the attack. In the present case the s act or omission failed in a duty to protect against a harm from ano ther source. 2. Issue: whether an estate can maintain an action for professional negligence as a result of a failure to diagnose lung cancer in a timely and efficient manner. The estate can show a probable reduction in statistical chance for survival but cannot show and or prove that with timely diagnosis and treatment, the decedent probably would have lived a normal life expectancy. 3. H/R: Once a has demonstrated that the s acts or omissions have increased the risk of harm to another, such evidence furnishes a basis for the jury to make a determination as to whether such increased risk was in turn a substantial factor in bringing about the resultant harm. The majority held that the causation issue should go to the jury under a substantial factor instruction. a. The substantial factor approach simply licenses the jury to find for the on intuitive grounds, despite the likelihood that the negligence did not change the outcome. b. If the reduced the decedents chance of survival by %15, she should be held liable for %15 of the wrongful death damages.

a.

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c.

** Problems with the substantial factor test are that it overcompensates in every case in which the decedent would have died anyway, and under-compensates in every case where the delayed diagnosis would have caused the death. 4. Hypo** : We have 100 people who received negligently late diagnoses of lung cancer. Of those we have 75 who died. Out of those 75 we can say that there were 14 whose death was caused by the misdiagnosis. Then we have the 61 people that were doomed no matter what. Under the substantial factor instruction, all 75 people get damages. Because it will be impossible to differentiate who would be doomed. i. This case marked one of the first examples of the being able to recover in a medical malpractice case even though the could not prove that it was more likely than not that the malpractice had caused the death of the patient. A majority of jurisdictions require the to prove that he would have won the case, how much the award would have been, and that the award was collectible, but agreeing with the minority that the must plead and prove uncollectibility of judgment as affirmative defense. v. Daubert v. Merrell Dow Pharmaceuticals. Inc 1. Facts: Two s allege that birth defects of short limbs were a result of their mothers ingestion of the drug Benedectin during their pregnancies. There was no conclusive study to demonstrate that the drug was the cause of these types of defects. While the boys had scientific expert testimony to say that the drug was the cause there was not sufficient evidence to demonstrate a cause and effect relationship between the drug and the effects. 2. Issue: Can there be causation in fact in the absence of compelling scientific testimony and where the court is forced to rule on an issue for which there is little basis for a claim that the is at fault? 3. H/R: The s have failed to demonstrate their case through legitimate scientific evidence. There is a two part test: a. Whether the expert testimony reflects scientific knowledge derived from the use of the scientific method? b. Whether the proposed expert testimony is relevant in determining the case at hand. i. The court says that in determining the first part of the test that the judge needs to look at the particular thing that the proposed scientist wants to testify abouthave the developed research that is independent of that which is required for the research relevant to this litigation? Did they develop their opinions concurrent with doing research for this case? Then the court looks for specific proof that the scientific work had been subjected to peer review. Finally the court forces the experts to justify that they followed the scientific method according to at least a minority of other scientists. c. The court held that the s expert testimony was inadmissible because it failed the first part of the test. d. The court says that in order for the jury to reach a conclusion for the the evidence must show that there was not just an increase in the likelihood that the medicine cause the defects but rather that the risk was more than doubled., otherwise it is likely that the defects were caused by natural causes. 4. Rule: The must prove that his injuries are a result of the accused cause and not of some independent factor. The burden of proof and validity is on the one who brought in the expert. There must be the proof of general causation (toxin is capable of causing the medical condition) and then the proof of specific causation (that the toxin caused this specific s condition). 5. Rule:*****A possibility of causation is not enough for the issue to go to the jury there has to be a probability. Traditional majority treats death as a loss of the opportunity to survive. The loss of chance approach. Under the loss of chance approach if the jury determines that based on the survival rates, the s negligent conduct caused a 20% loss of survival then the must award the 20%, It must be an award that is proportional to the survival that is lost in the misdiagnoses.

c.

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d.

e.

Another type of case where the insistence on causes the loss of opportunity to recover is cases of toxic exposure. i. Hypo**: The was negligent in exposing the to a toxic chemical and there is research that shows that the exposure to a toxic chemical increases the chance of developing cancer. Or that the took a drug and there is an increased chance of defects. 1. Once there is evidence that the exposure can cause cancer, and the develops cancer, the is going to say that there is a cause and effect relationship. 2. The can say that cancer occurs even without exposure to the chemical and that the cannot prove that he would not have developed cancer anyway. 3. The way for the to get around this problem is the presentation of particularized evidence that links her cancer to the chemical. Maybe medical evidence that shows that there are unique symptoms in the whos cancer develops after the exposure. Or maybe there is a latency period or something. Or maybe the lacks the risk factors that many of the people who get cancer without exposure have. 4. But what if the doesnt have these particularized factors? What if there are just stats that indicate an likelihood of developing the cancer after the exposure? a. **What the Daubert court tells us is that you can get your case in front of a jury if the exposure more than doubled your risk. b. There is another possible approach. If the courts want to increase the number of the s that are eligible for recovery they could use the loss of chance approach. Some courts take this approach. Courts can treat the harm to the not as the getting of the cancer but rather of the increased risk of developing the cancer in a proportional amount to the percentage of the increased risk. i. There is a much higher chance of recovery on these grounds in cases of misdiagnosis instead of toxic exposure TE you need great stats. Or particularized factors. c. *The other lesson that you should take away from Daubert is that it is not easy to get a court to admit expert testimonyexpert testimony in causation is often pivotal and must provide that it is probable and not just possible that causation is there. Concurrent Causes: When there is more than one but for cause to an injury the causes are concurrent. i. There is no requirement that the be the sole but for cause of the injury only that he be a but for cause of the injury. 1. A tortfeasor may not escape responsibility simply because another act, either an innocent occurrence such as an ac of God or other tortious conduct may have been the cause of the injury. ii. Hill v. Edmonds: Whose negligence was the but for cause of the injury to the ? 1. Facts: The s car collided with a truck, the had four car lengths of room between her car and the truck, she could have slowed down or made a turn to avoid the truck before she hit it. The truck did not have any lights on and was sitting in the middle of the highway. 2. Issue: There are two but for causes so which is the immediate and actionable cause of the injury? 3. H/R: both of the parties are responsible for the injury; the P is responsible in that she failed to take measures to avoid hitting the truck and the truck was responsible in that it was sitting in the middle of a highway with no lights on. 4. Rule: Where there are separate acts of negligence that combine to produce a single injury, each tortfeasor is responsible for the entire result even though his act alone may not have caused it. iii. Anderson v. Minneapolis, St. P and S. St. M. Ry. Co: 1. Facts: The RR company had an engine fire that combined with another fire and the combination of the two fires burned down the house of the . 2. Issue: Where does the liability fall if it is unclear which fire caused the injury and the damage to the ? 3. H/R: Someone needs to be held accountable for this. The court cannot hold with the precedent of the Cook case where there was no liability because the causes of the damages

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f.

were indistinguishable and either party could have been held responsible. For policy reasons and for fairness on compensation of the , the must be held liable even though it is undetermined whether the fire would have caused the damage without the addition of the other fire. 4. Hypo**: Changing the facts of this case so that one fire was caused by 1 and the other was caused by 2. What is the difference between this and the Hill case? a. Either fire would have caused the injury on its own. Who is the but for cause? Neither since the issue would have been caused by either of the fires. b. So we have two possibilities: c. 1. Multiple insufficient causes: You can think of this as multiple necessary causes. When we have multiple insufficient causes both of them are but for. Each is insufficient on its own to bring about the injury but the negligence of each was necessary to bring about the injury. The court has to but for these. Then determining the cause is easy this is similar to the Hill decision. d. 2. Multiple sufficient causes: Neither of the causes is a but for cause because either is sufficient on its own to bring about the ultimate injury and damages. The answer here is that both of the s are liable so long as either cause was sufficient on its own to bring about the injury. i. So what is a substantial factor? There is no real test for this it is an instinct thing. 5. Hypo**: A rents a car to B with defective brakes. B negligently fails to apply the braks and hits C. Who is actionable here? a. Is A or B the but for cause of the injury? i. Neither A nor B is a but for cause of the accident. A would say that even if he (A) were not negligent then C would have been inured by Bs failure to apply the brakes. B would have said that he is not a but for cause because even if he had applied the brakes they would not have worked. b. Courts find coming up with an answer to questions of multiple sufficient causes difficult. The but for approach leads to an issue of two wrongs both without compensation for the injured. What the courts tend to do is use the substantial factor test which allows the jury to include that both parties are actually causes in fact. c. Note 3 on p. 294 i. Compare and contrast: 1. A stabs B with a knife and then C hits B over the head with a rock. Either injury would be fatal who is liable? 2. While the is suffering from terminal cancer, he is negligently hit by the s automobile and killed. 3. ** The first is a case involves intentional torts. Additionally in either of the first cases the was going to die immediately this is dissimilar to the in case 2 who is suffering from terminal cancer but whose death is not imminent. (a) What the caused was the premature death of the and the court is likely to say that the was a but for cause in awarding damageswhat the lost was the life expectancy of someone who is dying of terminal cancer. (b) When we talk about damages you might have heard that every human life is valuable but in terms of tort damages not every human life has the same value. In torts, damages are compensatory for what was taken away and that is determined by lost earnings. Problems in determining which party caused the harm: i. Summers v. Tice:

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VI.

Facts: At a hunting party, the two s shot at the same time and hit the in the eye. It is unclear which of the parties fired the shot that caused the damage to the s eye. 2. Issue: Who is held at fault for an injury if it is unclear which party caused harm? 3. H/R: They are both to be held at fault and they are to figure out themselves which of them is to pay more of the money to the so that his injury does not go without redress. 4. Rule: If the s are independent tortfeasors and thus each is liable for the damage caused by him alone, and at least, where the matter of apportionment is incapable of proof, the innocent wronged party should not be deprived of his right to redress. The wrongdoers should be left to work out between themselves any apportionment. a. In the even that neither of the s can demonstrate innocence then both are deemed to be jointly and severally liable. b. In the even that the s commit similar negligent acts where only one can be responsible the burden of proof shifts to the and they have to figure out which one of them pays. ii. Sindell v. Abbott Laboratories: 1. Facts: The Ps mom took an estrogen supplement while she was pregnant with the . There is scientific evidence that demonstrates that the s injury was caused by the taking of this drug. The does not know which company in particular produces the drug that he mom took so she is suing them all. 2. Issue: Can a that is unsure of who is at fault but certain that at least one of the s are at least in part responsible to make the pay for the injury if she is unsure which party is the cause? 3. H/R: The needs redress and all of the formulas that the companies used were identical. In addition the companies that the has taken to court are responsible for the production of 90% of this drug that has been produced. Each company is responsible in proportionality to the amount of the drug that it produced and pays that percentage of the damage. 4. Rule: Each manufacturers liability for an injury should be approximately equivalent to the damages caused by the DES that it manufactured. This is called a market share approach to liability. a. Problems with the market share approach: Some s will be liable for some of the stuff that they didnt dobut overall they probably caused some harm so the court doesnt feel bad about making them pay. b. It is important to note here that this approach only works because the formulas for the DES drugs that we are dealing with here are all identical. 5. The D is only responsible for their market share. Chapter 6: Proximate or Legal Cause: limiting the range of liability for the consequences of negligent acts based on the concerns of public policy and fairness. Basically where do we draw the liability line so that were not faced with a bunch of disconnected litigation where the cause is far removed from the effect. a. Atlantic Coastline v. Daniels i. Arbitrary limits have been set, and such qualifying words as proximate and natural have come into use as setting the limits beyond which the courts will not look at in the attempt to trace the connection between a given cause and effect. 1. Note 1. PP 303: In law it is not the remote cause but the nearest one that is looked to. a. Proximate means: next; nearest; immediately before or after in order*** very close or near. i. The lapse of time is but one element to be considered with the relevant facts of the case. b. Cause in fact refers to the cause and effect relationship between the s tortuous act and the s injury or lossthe but for consequences of the act. Taking that further, proximate or legal cause concerns a determination of whether legal liability should be imposed where the cause in fact has been established. Proximate cause is a policy decision made by the legislature or the courts to deny liability for otherwise actionable conduct based on considerations of logic, common sense, policy, precedent, and more or less adequately expressed ideas of what justice demands or what is administratively possible and convenient. 1.

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KEEP IN MIND** Proximate cause is a concept that cuts off liability even though there is cause in fact. Unforeseeable Consequences: i. Ryan v. NY Central RR Co. 1. Facts: There is a RR engine that is being kept in a woodshed, it ignites, duh, and burns down the woodshed and the neighboring houses. The is suing for recovery of damages for his house. 2. Issue: We already have a but for cause established the question is where do we draw the line of fault? Should this be able to recover because his house was burned down by an engine in a remote woodshed? 3. H/R: Anything beyond the burning of the woodshed is remote. Yes, the engine fire did cause the houses to burn down but it is a remote cause. a. But we all know that this is not remoteI mean come on. Its an engine in a woodshed. Its not that hard to imagine that something really shitty is going to happen with all that wood and coal and heat. SO why does the court draw the line where it does? i. The court wants to draw the line as close to the event as it possibly can. When negligence causes the fire the negligence is only the cause of the burning of the first building. This is known as the first building test: Notes pp. 306 4. Rule: A is not the proximate cause of remote and unforeseeable consequences of his breach. Keep in mind that remote and unforeseeable is dictated by policy ii. Bartolone v. Jeckovich 1. Facts: There is a car accident and the suffers whiplash, he cannot workout and subsequently has a psychotic breakdown. He sues the for both the whiplash and the psychotic break. We have established already that this is a but for cause. Expert testimony drew a link between this minor accident and the s subsequent psychotic break. 2. Issue: Was this consequence foreseeable? 3. H/R: This is the application of the eggshell sku;ll rule and the implication that you have to take your as he comes. This is an important exception to the idea of the remote and unforeseeable following from an accident to the s body the is completely eligible for recovery. Eggshell skull applies to s that have unusual physical and emotional consequences. Note 3 pp. 309 a. The problem with this is that it could cause over- deterrence. b. The is liable for all of the consequences and not just the foreseeable ones. BUT FIRST YOU MUST HAVE A BUT FOR CAUSE IN FACT. c. You also have to remember that the damages for an eggshell skull are less then those for a normal . d. Some jurisdictions limit the applications of this rule to award the s that have preexisting conditions. i. If a person with an eggshell skull does not take the appropriate precautions then they can be contributorily negligent. 4. Rule: In cases of the eggshell skull rule you must take you as they come and The is liable for all of the consequences and not just the foreseeable ones. iii. Polemis v. Furness: 1. Facts: The is on a ship and dropped a plank which ignited the petrol in the hold of the ship and burned and destroyed everything. 2. Issue: Due to the unforeseeable nature of the consequence, who is at fault? 3. H/R: whoever dropped the plank That was negligence that could have otherwise caused damages to the ship, the people or other things. 4. Rule: The fact that the event or act did not directly produce an unexpected result, does not relieve the person who is negligent from the damages that his negligent act directly caused. a. Or the consequences that follow in an unbroken sequence without an intervening or efficient cause form the original act and are natural and proximate. iv. Overseas Tankship UK v. Morts Dock and engineering Co. Wgon Mound #1:

2.

27

1. Facts: v. Wagon Mound 2 vi. Yun v. Ford Motor Co. 1. Facts: owner of a van knew that the spare tire on the back of her van was loose. The tire cam off and rolled across the highway coming to a stop on the far side by the median. The womans father got out of the van and was hit by a car while walking across the highway in an effort to retrieve a tire. 2. Issue: Is the ford company liable for the death of the s father during his effort to retrieve the tire? 3. H/R: The court ruled that the ford company is not the proximate cause of the fathers injury reasoning that his conduct in going to retrieve the part was highly unusual and a dangerous intervening factor as was the fact that the knew for 30 days that the mechanism of attachment for her tire was in need of repair.. Who crosses a dark rain sluiced road to retrieve a donut tire? 4. Rule: Intervening causes may interrupt the liability in a suit of proximate cause. 5. Dissent: The facts here are slanted. This should be a jury question. vii. Palsgraff v. Long Island Rail Road: This case is the super famous one about the dud with the dynamite. 1. Facts: The plaintiff was standing on a RR platform. A train stopped at the station and as it was departing two passengers jumped on. One made in on safely and the other was carrying a package and was helped onto the train by one of the RR co. employees. As he was losing his balance the employee gave him a push onto the train causing the passenger to drop his packacge which was full of dynamite. The dynamite exploded and the force caused a large set of scales at the other end of the platform to drop and they fell on the s head, injuring her. 2. Issue: Is this a proximate cause issue? 3. H/R: Cardozo: While there is a duty that is owed to the patrons of the train depot, it is a duty that is owed with regards to reasonable risk. This was not a case of foreseeable risk. NO ONE SAW THISCOMING. 4. Rule: This is an unforeseeable . No duty of care is owed to an unforeseeable . 5. Dissent: negligence should not be treated as a relative concept. Duty of care should be owed to and imposed on everyone else to prevent harm. As a policy statement this should be proximate cause. viii. Deridiaran ix. Watson v. Kentucky and Inidana Bridge and R.R. Co. 1. Facts: A tank car of gasoline derails, gas runs into the street and gasoline vapor is released into the air. The Duerr struck a match and ignited the gas vapor and dropped the match. There is some debate as to whether or not the explosion occrued before or after the gasoline hit the ground, and also whether the may or may not have said lets set the damn thing on fire. 2. Issue: Was Duerrs ,atch lighting a contributorily

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