TORTS OUTLINE

Unintentional Torts
I. Strict Liability
A. responsibility based on causation w/o regard to whether conduct inoles !ault
". abnor#ally dangerous actiities
$. har# by dangerous ani#als
%. so#e product liability
E. when special cri#inal statutes hae been iolated
II. Rec&lessness
A. $onscious disregard !or high ris& o! har#
". 'ossible punitie da#ages
$. "twn. negligence and intentional tort
III. Negligence
A. unreasonable conduct creating a !oreseeable ris& o! har#
". based on what a reasonable person would hae !oreseen/done
$. 'lainti!! #ust proe she sustained har# that is legally protected
%. 'lainti!! #ust proe de!endant(s actions caused the har#
E. %a#ages co#pensate all har# )physical* e#otional* econo#ical+
,. No punitie da#ages are possible
NE-LI-EN$E LA.
I. "reach o! %uty
A. -eneral $haracteristics
/. Reasonable $are Standard 0 reasonably prudent person under the sa#e or si#ilar
circu#stances
1. Rudolph v. Arizona BASS Federation 0 all &inds o! breaches o! all &inds o! duties
". E#ergency situations
/. Foster v. Strutz 0 should e#ergency 2ury instruction be gien3 $ourt says no
e#ergency instruction4 %e!endants accidentally bac& oer plainti!! when attac&ed inside
their truc& and 5uic&ly try to escape. $ourt says they had ti#e to assess the situation 0
reaction was not instantaneous )/67/8 seconds is too #uch+ $ourt doesn(t want to gie
instruction and oere#phasi9e this point
a. e#ergency situation 0 re5uires instantaneous response
b. e#phasis by 2ury instruction is only needed in the #ost e:tre#e and
instantaneous e:a#ples o! e#ergency
%. Reasonable .o#an . Reasonable ;an
/. no special standard 0 se:* age* strength are included in surrounding circu#stances
E. ;entally %isabled Indiiduals
/. ;ental illness is not a de!ense
7 easily !a&ed
7 indistinguishable !ro# personality nuances
7 di!!icult to deter#ine the nature* degree* e!!ect
7 courts don(t want to deal with it<
1. ;entally ill #ust learn to lie li&e the rest o! us
=. ;entally ill #ust hae so#eone with capacity to ensure they do no har#
>. Bashi v. Wodarz 7 %e!endant rear7ends =
rd
party then dries away and hits plainti!!(s
car. %e!endant clai#s sudden #ental illness* stating !a#ily history o! such. ;ental illness is
not a de!ense 7 It is easily !a&ed and o!ten indistinguishable !ro# personality nuances* e#otional
i#balance. It is di!!icult to deter#ine nature* degree* and e!!ect o! #ental illness and courts are a!raid
to deal with it. I! the #entally ill want to lie in this world they hae to lie by our rules. Those with
#ental illness should hae so#eone with capacity to ensure they do no har#
8. %i!!erent !ro# physical illness 0 this is a de!ense<
E. $hildren
/. $hild Standard 0 reasonably care!ul child o! sa#e age* intelligence* #aturity* training
and e:perience
1. Adult Standard 0 applies when child(s actiities are generally resered !or adults or
are inherently dangerous
=. Robinson v. Lindsay 0 snow#obile accident 0 generally adult actiity and inherently
dangerous when i##ature persons drie it 0 adult standard
,. "alancing Ris& . Unta&en 'recautions
/. ?and(s Liability 0 " @ 'L )burden o! lowering ris& @ probability in2ury will occur :
the leel o! in2ury/seriousness o! har#+
1. U.S. v. Carroll Towing Co. "argee is o!! the boat and boat gets away and sin&s.
$ourt holds bargee had no e:cuse !or 1/ hour absence !ro# barge 0 holds it is a !air
re5uire#ent that a bargee should be on board unless there is an e:cuse* during wor&ing hours
o! daylight. The burden o! lowering the ris& was less than the type o! har# : the probability
o! the har# occurring. "argee should hae been on board the ship.
=. !Carty v. "heasant 7 wo#an attac&ed in hotel roo# 0 attac&er co#es in through
loc&ed door leading out bac& o! roo# 0 court uses ?and(s Liability 0 'lainti!! wants better
loc&s* #ore security* notice to loc& doors* etc. $ourt says better loc&s wouldn(t #atter i!
door is unloc&ed )'lainti!! didn(t loc& her door+* no e!!icient plan !or #ore security is
produced by plainti!!* notice to loc& doors would be cheap but ine!!ectie since #ost people
hae co##on sense anyway. ' !ails to establish burden o! proo! 0 $ourt !inds !or de!endant
-. $usto#
/. Industry custo#s help de!ine reasonableness in the situation
a. #ager$an v. Copeland 0 construction wor&er !alls through hole 0 court
allows eidence that the custo# is to coer holes 7 helps de!ine reasonableness in
the situation* causation* breach
1. $usto#s aren(t standard o! care* but they do in!or# 2urors about reasonability
a. Tri$ar!o v. %lien 0 shattering glass door 0 custo# in place to pro#ote sa!ety
=. $ourts so#eti#es go against custo#
a. T.&. #ooper 0 boats without radios )custo#+ S?OUL% hae radios<
?. Special Audicial Standards 0 1 train cases
/. Balti$ore v. 'ood$an 0 drier should hae gotten out and loo&ed as necessary
1. "o(ora v. Wabash 0 court e:a#ines what conduct is really reasonable and custo#ary
I. Sa!ety Statutes and Regulations as standards
/. 17part test4
a. Is plainti!! in the protected class under the statute3
b. %oes the statute atte#pt to preent type o! har# plainti!! has su!!ered3
1. Negligence 'er Se
a. Statute beco#es the standard o! care and a iolation o! it B breach
b. #ost courts allow physical i#pair#ent as an e:cuse
=. E:cuses
a. incapacity o! iolator
b. iolator neither &nows nor should hae &nown o! occasion !or co#pliance
c. iolator is unable a!ter reasonable diligence to co#ply
d. iolator encounters an e#ergency not due to his own conduct
e. co#pliance inoles a greater ris& o! har#
C Ferrell v. Ba)ter 0 plainti!! is passenger in icy road crash and de!endant is the drier
crashing into a #ac& truc& 0 no e:cuse here 0 drier breached a duty to not speed and drie
care!ully
C Wright v. Brown 0 dogbite 0 statute about &eeping dogs loc&ed up !or /> days a!ter
biting so#eone intended to protect public* intended to preent
contracting a disease* not 2ust incurring bite 0 no negligence per se<
>. Negligence per se and the $hild Standard
a. Bau$an v. Craw*ord 0 &id iolates statute with bi&e w/out headlight 0 court
holds that #ost courts will not apply negligence per se to a #inor
b. you can(t use both standards at once
c. it depends on the 2urisdiction 0 "au#an uses the $hild Standard
A. 'roo! o! Negligence
/. $ircu#stantial 'roo!
a. Clar( v. %$art 0 grapes on the !loor had been there long enough !or % to
&now and clean it up )lane had been closed !or oer an hour and grapes had been
stepped on 0 so#eone &new about it at least an hour ago+
1. Res Ipsa Lo5uitur 0 the thing spea&s !or itsel!
a. Byrne v. Boadles 0 !alling !lour barrel 7 no other e:planation since it occurs
right ne:t to a !lour barrel warehouse 7 accident alone is pri#a !acie eidence o!
negligence
b. +aton v. +aton 0 #o#/daughter car crash 0 court establishes ele#ents )/
st

three+ and says a res ipsa instruction should hae been gien
c. = ele#ents 0 so#eti#es >
i. accident doesn(t nor#ally occur without negligence
ii. agent causing the accident was under %(s e:clusie control
iii. circu#stances indicate that the accident was not caused or
contributed to by the in2ured party
i. in!o about the accident is #ore accessible to % than '
C #arder v. Clinton 0 nursing ho#e oerdose 0 ' establishes all !our
ele#ents o! res ipsa and should hae gone to the 2ury
d. ,barra v. Spangard 0 ' goes into surgery !or appendi: and co#es out with
shoulder probs. 0 was unconscious so sues all possible de!endants and ' establishes
the ele#ents o! res ipsa
C there are #any possible de!endants
C rule beco#es whoeer had the right o! control rather than actual
e:clusie control 0 ' was unconscious and can(t &now* so sues all who had
access to hi#
D. Standard !or 'ro!essional ;alpractice
/. Negligent ;edical 'er!or#ance 0 deiation !ro# accepted practice
a. -ela.uez v. "ortadin 7 controersy oer doctor #onitoring strips during
birth or the legibility o! the strips or the negligence i! they were read 0 baby is born
w/cerebral palsy
0 court says New Trial because 2ury was gien instructions on 2udg#ent instead o!
deiation !ro# standard practice
0 whether or not a doctor did so#ething is a !act the 2ury #ust !ind and i! they !ind
he did those things negligently then he is liable
7 instructions #ust be tailored to the !acts and di!!erentiate btwn. 2udg#ent charges
and standard practice deiations
1. %octrine o! In!or#ed $onsent
a. "hillips v. #all 0 sterili9ation procedure
C ' was not in!or#ed o! continued pregnancy ris&s
C #edical e:perts testi!y % did eerything right
C no issue on negligent per!or#ance 0 ' had no e:perts
C $ourt institutes an objective test !or lac& o! in!or#ed consent 0
would a reasonably prudent patient* !ully adised o! the #aterial &nown
ris&s* would hae consented to the suggested treat#ent3
C Aury #ust !ind !acts and deter#ine under this test i! %r. properly
in!or#ed the patient o! all releant in!or#ation
b. Two Standards o! In!or#ed $onsent4
i. pro!essional #edical standard4 re5uire#ent to disclose those ris&s
which a reasonable #edical practitioner o! li&e training would disclose
under the sa#e or si#ilar circu#stances
C re5uires e:pert testi#ony
ii. lay standard4 #easured by a patient(s need !or in!o4 would a
reasonable person in patient(s position hae considered the
ris& signi!icant in #a&ing their decision3 .ould they still hae consented
to the proposed treat#ent3 0 2ury decides this
C no e:perts re5uired
c. -eneral list o! !acts re5uiring disclosure4
i. diagnosis
ii. nature/purpose o! proposed treat#ent
iii. probability treat#ent will be success!ul
i. !easible alternaties
. ris&s/conse5ucnes o! treat#ent
i. prognosis o! treat#ent is not gien
d. Attorney ;alpractice 0 S$ith v. Lewis 0 atty. didn(t do research
II. %uty
A. -eneral duty o! reasonable care
/. a!"herson v. Bui!( 0 'riity issues<<<
C #anu!acturer sold to dealer who sold to plainti!!
C wheel was de!ectie 0 #anu!acturer is liable because they &new =
rd
party
would be actually using car
C brea&s precedent and says #anu!acturer is liable to so#eone other than
i##ediate endee 0 also because they &new car could go 86#ph and a de!ectie
wheel would render the car inherently dangerous
1. 'recedent con!ined liability to i##ediate endees unless ite# is inherently dangerous
". Li#ited %uty to act* assist* or rescue
C #is!easance4 party(s actions caused ris& B you hae a clai#
C non!easance4 re!usal to act 0 not a cause B no clai#
/. e:ceptions where duty does e:ist4
i. dependency/interdependency relationships
ii. contractual relationships including agree#ent to aid
iii. when party oluntarily begins to assist
i. where a statute i#poses a duty to assist
. actie preention o! getting aid
C ,ania v. Bigan 0 guy 2u#ps in a hole and drowns 0 other guy has no duty to
help hi# een though he dared hi# to 2u#p 0 court says he is a co#petent adult and
was not !orced but 2u#ped oluntarily77 plainti!! incurred the ris& on his own
C Farwell v. %eaton 0 guy helps his !riend a!ter seeing hi# get beat up 0
assu#ed duty by olunteering his help and not !inishing it
1. Argu#ents !or No %uty
i. inter!eres with liberty to lie as we choose
ii. contradicts basic principles o! causation
iii. undercuts #orals by depriing us o! choice to #a&e #oral choices
oluntarily
i. creates serious process proble#s !or 2udicial ad#inistration
$. Owners and Occupiers o! Land
/. A$eri!an v. Ruval!aba 0 e#ployee(s son !alls o!! de!ectie stairs 0 court says he is a
licensee )no initation* no #utual bene!it* no pecuniary pro!it to %+ and that owner didn(t
hae actual &nowledge o! the de!ectie staircase 0 % said they neer had a sa!ety inspection
and so were neer #ade actually aware o! danger een though it was a blatant iolation o!
sa!ety codes
a. liability depends on in2ured party(s status )Status Trichoto#y+
i. initee 0 enters land with owners &nowledge and !or the #utual
bene!it o! both
C owner has a duty not to protect !ro# har#
ii. licensee 0 enters with owner(s consent and !or his own conenience
or on business with another party )not the owner+
C owner has a duty not to har# on purpose or with gross
negligence and to warn o! any dangerous condition owner has A$TUAL
&nowledge o!
iii. trespasser 0 enters without law!ul authority* per#ission* or
initation
C owner has duty not to har# on purpose or through gross neg.
b. 1 types o! liability
i. in2ury due to de!ect in pre#ises )Rualcaba+
ii. in2ury due to actiity/instru#entality o! the owner
/. Rowland v Christian 0 social guest cuts hand on sin&
C court oerrules trichoto#y and uses regular negligence to say owner owed a
duty
C court says trichoto#y doesn(t alter owner(s behaior anyway
1. Attractie nuisance ele#ents4
a. location o! condition is one upon which the possessor &nows or has reason to
&now that children are li&ely to trespass
b. possessor &nows or has reason to &now and which he reali9es or should
reali9e will inole an unreasonable ris& o! death or serious in2ury to such children
c. children* because o! youth* do not discoery condition or reali9e the ris& o!
har# inoled in #essing with it or co#ing within the area
d. the utility to the possessor o! #aintaining the condition and the burden o!
eli#inating the danger are slight as co#pared with the ris& to &ids
e. possessor !ails to e:ercise reasonable care to eli#inate the danger or
otherwise to protect children
%. %uty to protect against e#otional har#
/. = Rules
a. I#pact rule 0 old re5uire#ent that ' #ust su!!er physical i#pact
C it!hell v. Ro!hester 0 wo#an AL;OST hit by cart can(t recoer
een though she clai#ed e#otional trau#a and een physical
repercussions )#iscarriage+
b. Eone o! danger 0 old rule that ' #ust !ear !or her own li!e
c. Eone o! danger 0 current rule about witnessing har# to a relatie
1. $urrent Eone o! %anger 0 reasonable !oreseeability
a. clai#ant #ust be located near accident
b. clai#ant #ust su!!er shoc& resulting !ro# direct e#otional i#pact
conte#poraneous with incident 0 #ust see or hear it<
c. clai#ant #ust be closely related to icti#
d. in2ury to icti# #ust be SEFERE or een death
C Clohessy v. Ba!helor 0 #other and son witness death o! other son hit by car
and sue !or e#otional da#ages 0 court says they can i! they satis!y > re5uire#ents
o! reasonable !oreseeability aboe
7 this is the "ystander theory o! recoery
E. Independent %uty !or E#otional .ell7being
/. Recoery is !or pure e#otional distress unacco#panied by physical in2ury or een ris&
thereo!
1. "odily re#ains and )erroneous+ death noti!ication 0
a. li#ited to persons who contracted !or the disposition o! the body and their
i##ediate relaties
=. Other types4
C #edical #alpractice
C #isdiagnosis
C the!t o! a dog
C negligence o! a lawyer a!!ecting a custody battle
>. 1 Theories o! Recoery
a. "ystander 0 ' see&s to recoer as precipitant witness o! har# to another
b. %irect Ficti# 0 da#ages sought as result o! breach o! duty owed to ' that is
assu#ed by % as a #atter o! law* or because o! a relationship between the#
i. Burgess v. Superior 0 %r. owed pree:isting duty to ' )#o#+ and
child to delier baby without negligence due to doctor/patient
relationship
C da#age to baby caused e#otional distress
ii. #uggins v. Longs /rug Stores
C 'har#acist didn(t owe duty to in!ant(s parents )not patients+
C too #uch liability B bad policy
C 1 dissents 0 controersial case 0 policy issues #ay not be
that i#portant and the lac& o! duty to in!ant(s parents is probably crap 0
phar#acist &new in!ant wouldn(t be ad#inistering the drug to itsel! 0
instructions were !or parents<<<
iii. Boyles v. %err 0 ' wins against % who showed '(s se: tapes
C direct icti# theory 0 what relationship3
C Rule 0 clai# #ust be in connection with so#e other breach
so she #ay not recoer !or e#otional distress 0 no pree:isting
duty or relationship to 5uali!y
,. %uty to protect against ,uture %isease
/. a0!a v. Bee(il /
st
case0 possible AI%S e:posure !ro# scalpel used by ?IF positie
doctor
a. no eidence o! actual e:posure so no clai#
C actual e:posure is an ob2ectie standard to #easure !ear
C actual e:posure re5uire#ent preents !ear based on ignorance
or bad in!o
1. 1
nd
case 0 ?IF positie dentist 0 no actual e:posure eidence
C li&elihood !or contracting AI%S i! e:posed need not be de#onstrated to state a
clai# !or !ear o! contracting AI%S
=. Rulings 0 you #ust hae eidence o! actual e:posure o! disease<<
>. ' can only clai# !or ti#e btwn. actual e:posure and test results 0 a!ter results any
e#otional distress is unreasonable
8. "otter case rule 0 ' #ust proe she is #ore li&ely than not to contract disease
C court awards G !or cost o! e:tra #onitoring and preentatie care
-. Responsibility !or the $onduct o! Others
/. ;ental ?ealth pro!essionals( duty to =
rd
parties based on their special relationship
with the person posing a ris&
C Taraso** v. Regents o! U. o! $ali 0 patient &ills girl* dr. had predicted iolence
a. ,actors i#posing a duty
i. !oreseeability o! har#
ii. degree o! certainty that ' su!!ered an in2ury
iii. #oral bla#e
i. closeness o! connection btwn. %(s conduct and in2ury su!!ered
. e:tent o! burden to %
i. conse5uences to co##unity
ii. aailability/cost o! insurance
b. %r. had predicted har# and should hae warned plainti!!
c. No duty where no particular indiidual is threatened
d. unnecessary warnings are a reasonable price to pay to sae lies
?. %uty to protect against cri#inal actiity
/. $ertain relationships include this duty4
a. landlord/tenant
b. business owner/patron
c. hotel/guest
d. e#ployer/e#ployee
e. school/student
!. property owner/initee )enhanced !oresight re5uire#ent+
1. /T/ v. &ohnson 0 wo#an assaulted by alu#nus at !raternity party 0
landowner/initee duty possibility 0 #ost courts say a landowner has a duty to ta&e
reasonable care to protect an initee !ro# the cri#inal acts o! a =
rd
party
a. ,our !oreseeability tests
i. Speci!ic ?ar# 0 did owner &nown/should hae &nown the speci!ic
har# was occurring or about to occur
ii. 'rior Si#ilar Incidents Test 0 duty o! reasonable care i! eidence o!
prior si#ilar incidents o! cri#e on/near property shows the cri#e in
5uestion was !oreseeable
iii. Totality o! $ircu#stances Test 0 e:a#ine all circu#stances
including nature* condition* and location o! land* prior si#ilar eents
C this #ay be too broad<
C court in %T% case uses this approach and !inds that Se:ual
assault was e:tre#ely !oreseeable in a !raternity
i. "alancing Test 0 balance the degree o! !oreseeability o! har#
against burden o! duty to be i#posed 0 as !oreseeabiity goes up* so does
duty
I. 'ublic Agency %uty to 'rotect $iti9ens
/. Cu**y v. 1ew ,or( 0 police called to preent tenants and landlords !ro# !ighting 0
police told !ather they would co#e and didn(t 0 serious in2uries to '(s resulted
1. -eneral Rule 0 #unicipalities #ay not be held liable !or in2uries resulting !ro# a
si#ple !ailure to proide police protection
=. E:ception to -eneral Rule includes4
a. assu#ption o! duty by #unicipality to act on behal! o! in2ured party
b. #unicipality(s &nowledge that inaction could lead to har#
c. direct contact btwn. ;unicipality and in2ured party
d. party(s 2usti!iable reliance on #unicipality(s a!!ir#atie underta&ing 0 '
#ust be aware o! protection
C $u!!y(s lose 0 son had no contact and was not aware o! protection* #other and
other son did not rely on pro#ise o! protection )went about their day as nor#al and
ti#e had gone by so $u!!ys &new police weren(t co#ing+
III. $AUSATION
A. "ut7,or $ausation 0 but !or %(s negligence* '(s in2ury wouldn(t hae happened
/. Sowles v. oore 0 horses !all through ice and drown 0 no barriers put up by %
C $ourt !inds negligence but says horses would hae drowned anyway<
C no but7!or causation B no cause in !act
1. 1, Central RR v. 'ri$stad 0 #an !alls o!! barge with no li!e preserers and drowns
C $ourt says he couldn(t swi# 0 could hae been the cause
C een i! li!e preserers had been there* no way to say wi!e would hae gotten
one to hi# in ti#e or i! it would hae #ade a di!!erence 0 no causation
". Substantial ,actor Test 0 %(s negligence #ust be a substantial !actor a!!ecting '(s in2ury
C this test is #ore appropriate than but7!or in #ultiple cause situations
C delineates the ade5uacy o! proo! by preponderance o! the eidence
/. Corey v. #avener 0 1 #otorcycles scare '(s horse
C court says both %s are wrongdoers and both #ust pay
C each % is a substantial !actor* i! not the but7!or cause in !act
1. it!hell v. 'onzales 0 boy who can(t swi# drowns in la&e under poor superision
C court said 2ury needed a substantial !actor instruction
C but7!or instruction causes too #uch !ocus on inability to swi#* not enough on
%(s negligence
=. S$ith v. &C "enney 0 !a&e !ur coat catches on !ire in a gas station 0 coat was supposed
to be in!la##able
C -as station % said it was #ostly the coat #anu!acturers( !ault
C $ourt says no 0 gas station proided substantial !actor contributing to in2uries
and are also liable
$. 'roo! o! $ausation
/. $u#ulating proo! to identi!y cause in !act
a. 2ngersoll v. Liberty Ban( 0 husband w/pac&age !alls on old stairs
C ' says stairs were de!ectie* % says #an had heart attac&
C $ourt loo&s at all eidence )stairs* bruising* weight* etc.+
C '(s theory is #ore li&ely 0 ' has burden o! proo! to say theory is
#ost li&ely cause* not the ONLH cause
1. Unta&en 'recautions 0 'roing the $ounter!actual
a. Saelzler v. Advan!ed 'roup 344 0 ,edE: wo#an is attac&ed in apart#ent
co#ple: with open security gate and no dayti#e security guards
C $ourt says % breached a duty to ' but breaches weren(t cause
C security gates are !or &eeping out unauthori9ed people 0 ' can(t
proe assailants were unauthori9ed
C 1> hour security guards are e:pensie )policy concern<+ and there is
no eidence that their presence would hae stopped attac&
C '(s clai# is not #ore probable than not
C %issent4 court #ista&enly uses a but7!or test 0 '(s eidence shows
presence o! substantial !actors and should go to a 2ury
b. 5u!howi!z v. United States 0 wo#an dies !ro# disease due to prescribed
oerdose
C e:pert testi#ony ruled out other causes
C eidence that #edicine doesn(t cause disease* but OFER%OSE does
C $ourt says the e:act purpose o! prescribing drugs in li#ited a#ounts
is to preent this ery type o! har#
C .here %(s negligence greatly #ultiplies '(s ris& o! in2ury* and
would naturally lead to it* the #ere possibility that in2ury #ight hae
happened without negligence is not enough to destroy causation
=. ;ultiple 'arties 0 Apportion#ent o! %a#ages or Aoint Liability
a. Fugere v. "ier!e 0 '(s car hit !ro# !ront and then behind 0 can(t tell who
caused the #ost serious in2ury
C %s will be held 2ointly and seerally liable !or !ull a#ount
C i! good testi#ony e:ists o! who did what* it beco#es a 5uestion !or
the 2ury
%. 'roing .ho $aused the ?ar#
/. Alternatie Liability 0 burden7shi!ting rule
a. Su$$ers v. Ti!e 0 1 %s negligently shoot ' while hunting
C in2ury to eye is worse 0 who did it3 $an(t really tell
C $ourt says both are wrongdoers and can wor& it out btwn.
the#seles who pays what a#ount
C "y both !iring at sa#e ti#e* %s deprie ' o! eidence o! who caused
and thus both %s are said to hae caused
b. Barron v. artin6arietta Corp. 0 lea&y #issile canisters
C #orning crew e:posed to / lea&y ;;$ canister 0 no proble#
C a!ternoon crew e:posed to I ;;$ and I;I canisters 0 can(t tell
which canister was lea&ing
C not all possible %s are tortious and not all possible %s are sued<
Only ;;$ is sued
C 's only show ;;$ #ight hae caused* not #ost probably caused
C ;SA !or %s 0 i! ' ruled out other %s* they #ust proe ;;$ caused
1. ;ar&et Share Liability
a. #y$$owitz v. +li Lilly Co. 0 866J clai#s !or in2uries sustained due to drug
ta&en during #others( pregnancies
C two proble#s 0 statute o! li#s ran )legislation !i:ed this+ and !inding
particular #anu!acturers !or particular plainti!!s is i#possible )=66J %s*
so#e no longer in business+
C %s can(t battle out da#ages )too #any and they don(t &now
anything+* %s did not act in concert* but 's should still recoer
C ;ar&et Share approach 0 only substantial nu#ber o! %s #ust be
present )not all+* and each % who cannot proe not liable is liable !or K o!
da#ages B to their #&t. share
C liability is seeral only and is based on oerall ris& produced in
national #ar&et 0 not indiidual plainti!!s
IF. S$O'E O, LIA"ILITH
A. $onceptual "asis4
/. %irect $onse5uences Test 0 this rule is hardly used any#ore
a. In Re Arbitration btwn. 'ole#isL
C sailor drops plan&s into cargo o! ship 0 spar&s !ire and destroys ship
C spar&s were un!oreseeable 0 interening !orces can cut o!! liability
under this test* but only i! they were !oreseeable
C Sailor was held liable because his actions directly caused destruction
1. ,oresight Test
a. li#its liability basd on the ris&s that #ade the conduct unreasonable/negligent
in the !irst place
i. giing child a gun is negligent due to ris& o! hurting hersel!
ii. i! the child hurts hersel! by dropping the gun on her !oot 0 outside
scope o! liability 0 un!oreseeable in2ury
b. #ay be a scope o! liability issue i!4
i. arguably an un!oreseeable plainti!!
ii. arguably un!oreseeable conse5uences
iii. arguably interening conduct
". Applications to the ,oresight Rule
/. Un!oreseeable 'lainti!!s
a. "alsgra* v. Long 2sland RR Co
C ' in2ured at RR when another patron drops !irewor&s on trac&s 0
court says it is co#pletely un!oreseeable that a guard helping the guy
would &noc& out a bo: o! !irewor&s
C no eidence that guard could hae &nown o! the danger in pac&age
C no eidence that guard(s actions would !oreseeably har# ' on other
side o! the RR station 0 ' loses on scope o! liability
1. Un!oreseeable $onse5uences
a. &uisti v. #yatt #otel Corp or aryland
C hotel(s !alse !ire alar# 0 ' is short o! breath trying to e:it 0 has a
collapsed lung
C cleaning crew had negligently cleaned an oen 0 setting o!! alar#
C '(s in2ury was outside the Mgeneral danger areaN or Mgeneral class o!
har#N !ro# what could reasonably be e:pected to result !ro# negligence
C de!endant doesn(t hae to anticipate this EOA$T in2ury* 2ust the
general !ield o! har# 0 they #ight hae* so it goes to a 2ury
b. general rule4 as long as %(s negligence creates a reasonably !oreseeable ris&
o! the general &ind o! har# that be!ell the '* the e:act way or precise #anner in
which the har# occurs doesn(t #atter !or scope o! liability
c. ris& standard4 an actor should be held liable only !or ha#r that was a#ong the
potential har#s/ris&s that #ade the actor(s conduct tortious
i. e:cludes liability !or har#s su!!iciently un!oreseeable at the ti#e o!
the tortious conduct so that they were not a#ong the ris&s/potential har#s
that #ade the actor negligent
ii. this standard adapts better to de!endants with di!!erent standards o!
care 0 doctors* children* etc.
d. Three Types o! $ases4
i. har# is typical result o! negligence 0 plainti!! wins
ii. har# is so !rea&ish and strange that it #ust be un!oreseeable0% wins
iii. har# is arguably !oreseeable7so#e !rea&ish but insigni!icant !acts
=. Interening ,orces
a. cri#inal conduct o! a =
rd
person
i. !Clenahan v. Cooley
C % leaes &eys in the car* thie! steals car and crashes into another car
C court uses =7pronged test4
/+ %(s conduct #ust hae been a substantial !actor a!!ecting
'(s har#
1+ no rule or policy should reliee % !ro# liability because o!
the #anner in which the negligence resulted in the har# )statute
about not leaing &eys in the car 0 % was law en!orce#ent
personnel+
=+ har# was reasonably !oreseeable or anticipated by a person
o! ordinary intelligence and prudence
C % didn(t hae to !oresee e:act har# 0 2ust general type
C An interening act doesn(t supercede as to reliee original wrongdoer
o! liability as long as the interening act could hae been reasonably
!oreseen and the conduct was a substantial !actor
C statute to protect !ro# this ery type o! har# suggests !oreseeability
ii. "ri!e v. Blaine %ern Artista7 2n!. 0 court says 2ury should decide
C ' in2ured when pushed while wearing "ush #as&
C ' and % )#as& #a&er+ both say e:act har# is un!oreseeable* but that
% should hae !oreseen a per!or#er beco#ing i#balanced or tripping 0
politically controersial #as& around drun& people
b. shi!ting responsibility issue
i. !Laughlin v. ine Sa*ety Applian!es
C child nearly drowns 0 nurse i#properly uses Mheating bloc&sN while
!ire#an loo&s on een though his training told hi# how to properly use
the#
C bad instruction4 % is liable i! it was reasonably !oreseeable that the
bloc&s )w/o containers w/warning labels+ would !ind their way !ro#
!ire#en to an unwarned =
rd
party
C court says it is un!oreseeable that a trained !ire#an would be so
grossly negligent and !ail to warn o! har# 0 % gets new trial
ii. Bigbee v. "a!i*i! Telephone and Telegraph
C' in telephone booth hit by drun& drier 0 door 2a##ed trapping '
C booth in location where #any people speed
C court says due to preious incident* it(s not entirely un!oreseeable so
a 2ury #ust decide 0 possibly !oreseeable that de!ectie booth on
dangerous road poses ris&
$. E:ceptions to the ,oresight Rule
/. ;edical ;alpractice co#plications
a. Asso!iation *or Retarded Citizens v. Flet!her
C boy dies under negligent superision at ca#p 0 ca#p says poor #edical
treat#ent also caused wrong!ul death 0 court says it only aggraated* not caused the
in2ury
C type o! in2ury was speci!ically that which this type o! negligence would hae
!oreseeably caused 0 sei9ure in water resulting in respiratory disorder
C e:perts say he wasn(t #ore li&ely to surie w/di!!erent care
1. Eggshell 'lainti!!s 0 ta&e the plainti!! as you !ind hi#
a. "a!e v. 8hio /epart$ent o* Transportation
C ' is car accident icti# 0 swollen !inger co#plicated by diabetes and !inger is
a#putated 0 '(s disability doesn(t reliee % o! liability
C Eggshell rules also apply when %(s negligence physically in2ures a ' with a
pree:isting #ental condition and the physical har# aggraates the #ental condition
=. Rescuer Rule 7 an actor is usually liable !or in2uries sustained by a rescuer atte#pting
to help another person placed in danger by the actor(s negligent conduct
~ also when rescuing actor !ro# actor(s negligence
a. Sears v. orrison 0 wo#an in2ured while helping #an who dropped a cooler
on hi#sel!
C where a person has negligently #anaged his own person* he is liable !or the
,ORESEEA"LE $ONSEPUEN$ES
C when put in danger it is !oreseeable that so#eone else will try and help you
C though a rescuer has willingly helped 0 the actor is not e:cused !ro# liability
C ')rescuer+ can recoer unless their atte#pt was rec&less or rash
C assu#ption o! ris& bad )deters rescuing+ good public policy to protect rescuers
b. 8s!ar %lein "lu$bing and #eating v. Boyd
C "oyd had to wor& around the cloc& to clean 2ewelry 0 dust !ro# construction
O! installed water line
C "oyd deeloped carpal tunnel and sued !or property da#age and in2uries
C Trial court !ound !or "oyd and allowed an instruction on the rescue doctrine
C no rescue doctrine< "oyd(s property wasn(t in i##inent danger 0 rash action
C no pro:i#ate cause
c. Suicide
C$ourts will usually not hold so#eone liable !or another(s suicide4
C e:ception 0 negligence caused icti# to beco#e insane and the #ental
disorder created an irresistible i#pulse to co##it suicide
C Nor#ally courts deny recoery because they consider the suicide to be an
intentional act that brea&s the causal chain 0 but insanity7based suicide does not
brea& the chain because the decedent lac&ed sel!7control and could not hae acted
intentionally
%. ,ra#ewor& !or Analy9ing Scope o! Liability
C Is there a scope issue3
C Analysis o! scope o! liability
/. ,oresight Analysis
a. un!oreseeable plainti!!s and un!oreseeable conse5uences
C is plainti!! or class o! persons she is a #e#ber o!* within the scope o!
the ris&s created by the de!endant(s negligent conduct
C is the result within the scope o! the ris&s created 0 is it a !oreseeable
general &ind o! incident and har# to plainti!!
C need only !oresee general type o! har# and type o! person li&ely to
be in2ured
b. interening !orces and shi!ting responsibility
C is the interening act a !oreseeable ris& o! the original negligence
C % #ay assert reliance on due care o! another party to shi!t responsibility
1. E:isting e:ceptions to the !oresight test
a. C eggshell s&ull rule
C #edical #alpractice co#plications rule
C rescuer rule
b. Allen v. Shiro$a
C 1 de!endants in car accident 0 ' gets out to direct tra!!ic and is later hit by
his own car when a #inor tries to #oe it !or hi# 0 ' bla#es original de!endant
)caused initial accident+
C court thin&s this is too !rea&ishly un!oreseeable 0 two unli&ely eents co#bine
F. %E,ENSES AN% I;;UNITIES4
A. $ontributory Negligence
/. Butter*ield v. Forrester 6 'lainti!! ran his horse into obstruction le!t by %e!endant
C i! both parties were at !ault* recoery by either is barred
1. This de!ense arises a!ter plainti!! has established a pri#a !acie case o! negligence
against %
C bars recoery due to '(s conduct* not a !law in the pri#a !acie case
=. "urdens o! production and persuasion lie with the de!endant
C by preponderance o! the eidence
C show that ' !ell below releant standard o! care
C show '(s breach o! duty was a cause in !act and pro:i#ate cause o! '(s in2ury
>. Eeryone has a duty to e:ercise reasonable care !or her own well7being
C under this de!ense* i! ' is /K at !ault* ' cannot recoer anything
8. Only allowed when % is negligent )not rec&less or intentional+
I. Last $lear $hance 0 ' can still recoer !ully against % upon proo! that % was #ore
culpable because he had the last opportunity to preent the har#
Q. Not per#itted as a de!ense in conte:ts where '(s !ault was based on a statute )i.e. child
labor law enacted to protect a class o! persons !ro# their own inability to e:ercise sel!7
protectie care+
". $o#paratie ,ault 7 both a ' and % are at !ault* they share responsibility rather than hae
it !all all on one or other
C 'ure 7 negligent ' recoers so#e da#ages !ro# negligent % no #atter how #uch at
!ault the ' is
7 i! ' is RSK at !ault* ' can still recoer 1K o! da#ages
C ;odi!ied 0 '(s da#ages are barred i! '(s !ault is greater than %(s or B to %(s
7 ' >6K at !ault can recoer I6K o! da#ages
7 ' I6K at !ault recoers nothing
/. "asic 'olicy
a. #o**$an v. &ones 7 court replaces contributory negligence with pure
co#paratie !ault 0 says it is #ost !air
b. %octrine o! Aoidable $onse5uences4
C % need no pay !or any additional har# that ' could hae aoided
through reasonable care
1. ,actors in assigning percentages o! !ault
a. Wassell v. Ada$s
C court says rape icti# was RQK at !ault because she opened the door
to the rapist and let hi# co#e in and didn(t run away when she had the
chance
$. Assu#ption o! Ris&
/. E:press assu#ption o! ris&
a. usually in the !or# o! .aiers 0 bar plainti!!s !ro# recoery i! language is
clear and % was not grossly neg* rec&less* etc.* or against public policy
C used o!ten by charitable research hospitals* school district !or athletics*
uniersity sponsored club sports* etc
1. I#plied assu#ption o! ris&
C can be in!erred !ro# a party(s conduct and the surrounding circu#stances
C it is sub2ectie 0 courts loo& to the plainti!!(s state o! #ind
C =7part test4
7 &nowledge o! the ris&
7 appreciation o! the ris&
7 oluntary e:posure to the ris&
a. Bowen v. Co!hran
C guy lit his grill i#properly een though he had been e:pressly instructed not to
do it that way 0 grill e:plodes in his !ace
C court !inds de!initely contributory negligence* and i#plied assu#ption o! ris&
b. urray v. Ra$ada 2nns7 2n!
C #an dies into pool head!irst 0 dies !ro# in2uries 0 no li!eguard on duty
C court uses4 i#plied secondary assu#ption o! ris& 7 a !or# o! contributory
negligence/co#paratie !ault
7 ' &new o! ris& o! %(s negligence and assu#ed ris& and was also negligent hi#sel!
C e:press assu#ption o! ris& 0 not a!!ected by contributory !ault 0 still co#plete
bar to recoery
C i#plied pri#ary assu#ption o! ris& 0 % has no duty w/respect to inherent ris&s
or li#ited duty situation C a party enters into a relationship with another &nowing
and e:pecting that the other will not o!!er protection against certain ris&s arising out
o! the relationship
7 spectator at a baseball ga#e &nows he #ight be hit with a baseball
7 arena owners hae a li#ited duty to screen high7ris& areas and
nothing #ore
=. 'ri#ary Assu#ption o! Ris& 0 li#ited duty 0 operates to bar 'lainti!!s( action
a. Cheong v. Antablin
C two s&iers collide0neither acting rec&lessly* parties are coparticipants
C nature o! the sport helps de!ine any duty owed
C too #uch liability discourages sports co#petition 0 not good<
C general duty 2ust not to increase ris& to others
C concurring opinion says this is 2ust duty 0 not assu#ption o! ris&
INTENTIONAL TORTS<
I. OFERFIE.
A. The ;eaning o! Intent
/. -illa v. /erouen
C % points welding gun at '(s groin 0 he didn(t intend Mhar#N but he did intend o!!ensie
contact 7 this counts as battery 0 % &new his conduct was substantially certain to result in
o!!ensie or unwanted contact 0 doesn(t #atter he didn(t intend to cause the serious har#
1. White v. uniz
C ' )e#ployee o! assisted liing !acility+ sues elderly wo#an w/al9hei#ers !or
hitting her when she was trying to change her diaper
C does intentional tort re5uire that tort!easor intend har#!ul contact or 2ust
contact3
7 %uel Intent Rule 7 actor had to understand that his contact would be har#!ul
or o!!ensie and need not hae intended the har# that actually resulted !ro# the action )court
uses this one+
7 .hite . U o! Idaho Rule 7 icti# need only proe that a oluntary #oe#ent by the
tort!easor resulted in a contract which a reasonable person would !ind o!!ensie or to which
the icti# did not consent
C 2ury could !ind either way on intent 0 2ury erdict stands !or %
=. Aili** v. ar6Bal7 2n!
C e#ployer uses har#!ul che#ical in daily procedure 0 e#ployees get ery ill
C = step Fan ,ossen intent test4
/+ &nowledge o! e:istence o! dangerous condition
1+ &nowledge condition would cause substantial certainty o! har#* not 2ust ris&
=+ e#ployer &nowing all this re5uires e#ployee to per!or# dangerous
tas&/condition anyway
C Restate#ent leels o! intent4
7%irect intent 0 actor does so#ething which brings about the e:act result desired
7In!erred intent 0 actor does so#ething which he beliees is substantially certain
to cause a particular result* een i! the actor doesn(t desire that result )#ost
e#ployer torts !all here+
C e#ployee has the burden o! proing by a preponderance o! the eidence that the
e#ployer had actual &nowledge o! the e:act dangers which ulti#ately caused the in2ury
when de#onstrating in!erred intent
>. Leight$an v. WLW &a!or Co$$uni!ations7 2n!.
C % blows s#o&e in ' )anti7s#o&ing actiist+(s !ace on purpose
C this counts as battery
8. #all v. !Bride
C % is being shot at* so he shoots at the car intending only to hit the car
C % accidentally hits ' 0 court says this is at least assault* probably battery because o!
trans!erred intent
II. ASSAULT and "ATTERH and IIo!E%
A. %e!initions4
/. "attery0 har#!ul or o!!ensie contact to your person 7 protects these interests4
7 physical integrity
7 dignitary interest
1. Assault0 reasonable apprehension o! i##inent har# or o!!ensie contact to your
person 7 protects #ental state o! indiiduals 0 !reedo# o! wrong!ul apprehension
7 threats o! har#!ul or o!!ensie contact/!alse i#prison#ent
7 unaailable when #i:ed with aggressie conduct
7 unaailable when erbal abuse is unrelated to physical contacts
)o!!ensie* insulting* unciili9ed conduct doesn(t count+
=. Trans!erred Intent0 intention to hit O with roc&* but roc& hits H instead 0 still counts<
7 intent to scare O but instead you hit O and scare H 0 both O and H hae clai#s
7 intent to &ic& 0 results in un!oreseeable in!ection 0 you are liable !or in!ection
anyway because you intended the har#
". $ases4
/. /i!(ens v. "eryear
C % beats up '* threatens with castration* death* and says i! ' doesn(t leae the
state % will &ill hi# 0 statute o! li#itations barred assault and battery 0 ' clai#ed intentional
in!liction o! e#otional distress
C outrageous conduct intentionally or rec&lessly causes seere e#otional
distress to another is sub2ect to liability !or such e#otional distress* and i! bodily har# to the
other results !ro# it* !or such bodily har# as well
C physical in2ury is not necessary and !oreseeability doesn(t #atter with intentional tort
C eidence o! battery and assault lent #erit to clai#s that threat to &ill really had a serious
i#pact on '(s e#otional state
1. -etter v. organ
C ' is in her an when % co#es to her window and acts li&e he(s going to hurt
her* #ade threats* had ability )dar&* with #ale !riends* ' was lone !e#ale+ to hurt her 0 she
later swered to aoid hi# and crashed
C ' could hae gotten away* but the ability to aoid !uture har# doesn(t
preclude the assault
$. IIo!E% in %iscri#ination $ases
/. Brandon v. County o* Ri!hardson
C transse:ual is raped and later &illed 0 sheri!! interiews her harassingly
)"oys %on(t $ry case+
C $ourt says ' #ust show = ele#ents !or IIE%4
/+ intentional or rec&less conduct
1+ conduct was so outrageous in character and so e:tre#e in degree as to
go beyond all possible bounds o! decency and is to be regarded as atrocious and utterly
intolerable in a ciili9ed co##unity
=+ conduct caused e#otional distress so seere that no reasonable person
should be e:pected to endure it 0 all are !ound satis!ied and % pays bigti#e<
1. Al!orn v. Anbro +ngineering7 2n!.
C E#ployer yelled racial slurs and !ired ' in !ront o! other wor&ers
C ' su!!ered physical ail#ents as a result o! the e#otional har#
C $ourt says ' was especially susceptible* %(s conduct was intentional )% &new ' would
be especially susceptible 0 #inority sub2ected to racial slurs+
C this counts as IIE%<
=. Swenson v. 1orthern Crop 2nsuran!e7 2n!.
C ,e#ale ' harassed by #ale boss 0 court loo&s at two !actors
/+ %(s position o! authority oer '
1+ %(s &nowledge o! '(s condition )recoering alcoholic 0 susceptible to stress+
>. Logan v. Sears7 Roebu!( 9 Co.
C ?o#ose:ual #an oerhears M5ueerN re#ar& oer the phone w/%
C court uses "A% reasoning to say this doesn(t count as IIE%* could hae said4
7 non intentional )#aybe rec&less+
7 not so outrageously o!!ensie in a decent co##unity
7 didn(t cause e#otional distress<<<<<<<<<
7 No i#balance o! power
7 No course o! conduct 0 this was a one7ti#e incident
7 No Dnowledge o! susceptibility or ulnerability )#aybe+
8. NO TRANSFERRED INTENT WITH IIED!!!
III. ,ALSE I;'RISON;ENT AN% TRES'ASS TO $?ATTELS/$ONFERSION
A. ,alse I#prison#ent 0 Wal6art v. Co!(rell
/. Ele#ents4
/+ will!ul detentioin
1+ without consent
=+ without authority o! law
7 Shop&eeper(s 'riilege4 when a person reasonably beliees
that another has stolen or is atte#pting to steal property* that person has
legal 2usti!ication to detain the other in a reasonable #anner and !or a
reasonable ti#e to inestigate ownership o! the property
1. $usto#er is called into bac& !or search 0 security guard #a&es hi# re#oe a bandage
coering a surgical wound 0 court says !irst two ele#ents are !ul!illed* =
rd
is !ul!illed because
chec&ing under the bandage was unreasonable 0 search was o&
". Trespass to $hattels T $onersion 0 United States v. Arora
/. % ta#pers with '(s cell cultures 0 trespass to chattels or conersion3
C Restate#ent ,actors4
7 E:tent and duration o! the actor(s e:ercise o! do#inion or control*
7 actor(s intent to assert a right in !act inconsistent with other(s right o! control*
7 the actor(s good !aith*
7 e:tent and duration o! the resulting inter!erence with other(s right o! control*
7 har# done to the chattel* the inconenience and e:pense caused to the other
1. $ell culture was destroyed* seriously inconeniencing an i#portant pro2ectBconersion
IF %E,ENSES AN% 'RIFELI-ES
A. $onsent
/. #ogan v. Tavzel
C % husband in!ects ' wi!e during MconsensualN se: 0 % &new o! disease and didn(t warn
C $onsent to se: doesn(t e5ual consent to ris& o! disease
C lac& o! &nowledge B no consent
1. #ellriegel v. Toll
C boys are horsing around 0 % !alls on ' and brea&s his nec& during play
C insu!!icient eidence o! battery pri#a !acie case because4
7 %(s actions did not constitute o!!ensie touching
7 %s( actions were consented to by ' in horseplay Myou can(t throw #e inN
7 % had no intent to cause har#!ul or o!!ensie contact
7 ' assu#ed the ris& o! in2ury associated with horseplay
=. Reavis v. Slo$ins(y 0 re#anded bac& to trial on bad consent instruction
C ' sues !or se:ual harass#ent and IIE% by her dentist boss 0 % says was all consensual
C actual or apparent consent 0 '(s words and actions con!licted and she gae neither &ind
C ine!!ectie consent 7 no capacity to say no 0 #inority or special circu#stance
7 adults can gie e!!ectie consent unless /+ % &nows or has reason to &now o! 1+ so#e
special circu#stances inhibiting this
7 childhood abuse B ine!!ectie consent in this case )but % said he didn(t &now+
". Sel! %e!ense and %e!ense o! Others 7 co#plete de!ense to an intentional tort i! de!endant
used reasonable !orce that she reasonably belieed was necessary to preent i##ediate har#
/. Bradley v. #unter
C #an with iolent reputation harasses )threatens and curses+ % in her restaurant
and won(t leae her Alone )% had had preious trouble with this guy+ 0 so % )old lady+
shoots hi# as he is co#ing toward her 0 her actions were reasonable<
1. &uarez6artinez v. /eans
C % pours beer on ' while he sleeps and is holding a tractor pin )weapon+
C ' gets up and they !ight 0 % started it by assaulting )#aybe battering+ '
C % won(t get sel!7de!ense because he started it and entered '(s ho#e uninited
=. %e!ense o! Others 0 sa#e rules as sel!7de!ense* #ust be reasonable and i! you protect
the instigator o! an altercation* it doesn(t count under this de!ense 0 instigators can(t clai#
sel!7de!ense or de!ense o! others
$. %e!ense o! 'roperty
/. %at(o v. Briney
a. general rule0you #ay not in!lict death or great bodily har# to protect property
b. % set up spring7gun in boarded up house to shoot anyone entering the roo# 0
shoots ' as he enters )trying to steal+
c. no indication !ro# outside that gun e:isted
d. ' wins 0 har# was too great !or protection o! property alone 0 nobody lied
in the house or was ho#e at the ti#e
%. Necessity
/. +ilers v. Coy
a. Ele#ents o! Necessity4
/+% #ust hae acted under the reasonable belie! that there was a danger
o! i##inent physical in2ury to the ' or others
C social wor&er said ' was not dangerous* but court assu#es he is in light
#ost !aorable to %
1+ the right to con!ine a person in order to preent har# to that person
lasts only as long as is necessary to get the person to the proper law!ul
authorities )didn(t atte#pt to get authorities+
=+ the actor #ust use the least restrictie #eans o! preenting the
apprehended har# )% handcu!!ed ' to a bed+
b. ' is !alsely i#prisoned by !a#ily trying to deprogra# hi# 0 !a#ily says they
hae a necessity de!ense because ' was suicidal 0 but % doesn(t satis!y the last two
ele#ents 0 ' wins
1. Rossi v. /el/u!a
C child runs into %s yard to aoid a dog* but then is attac&ed by %s two dogs
C Statute says owner is liable unless icti# was co##itting trespass
C court says she trespasses out o! necessity and eli#inates %(s i##unity
=. -in!ent v. La(e +rie Transportation Co.
C %(s boat stays doc&ed at '(s doc& during terrible stor#7causes da#age to doc&
C court says no necessity because % chose to presere the boat at the e:pense o!
the doc& and should pay !or the da#ages )trespass to chattels+
F. TRES'ASS TO LAN% 7 inter!erence with the e:clusie right o! possession o! another regardless
o! !ault or will!ulness
A. Creel v. Cri$
/. $reel cut down trees because Loelady represented that they were hers and
hired hi# to cut the# down 0 in which case she is responsible !or the da#ages 0 court #a&es
her pay it all<<
C Intent to har# is not necessary 0 2ust intent to enter propertyL