Torts Outline

I. Development of Liability Based on Fault

A. Definition of tort and tort law (What is a tort?)
i. Tort: civil wrong, other than a breach of contract, for which the law provides a remedy
B. Primary function of tort law? *on midterm*
i. Deter vigilante justice
ii. deter wrongful conduct
iii. encourage socially responsible behavior
iv. restore injured party to original state, as much as possible, often times with money
v. vindicate individual rights of redress (remedy)
vi. promote widespread distribution of losses by encouraging purchase of liability insurance
C. Historical Origin of Tort (2 differing opinions on the origin)
i. Started off with imposing liability based upon intent (fault/culpability), and then moved
towards no fault liability
ii. Started off with imposing liability for injury with no fault, moving toward liability with
fault (acceptance of moral standards as basis of liability)
D. The Writs
i. Writ of Trespass: When injury is caused by direct immediate contact, regardless of intent
(someone throws log and hits person)
ii. Writ of Trespass on the Case (action on the case): When injury is caused indirectly and
non-forcefully, regardless of intent (someone throws log and person trips over it later)
E. Three bases for tort liability
i. Intentional Conduct
ii. Negligence
iii. Strict Liability (neither intentional or negligent)

II. Intentional Interference with Person or Property

A. Intent
General Considerations
a) Intent is one of three possible bases for imposing tort liability. There can be no
intentional tort liability without intent
b) Definition Two ways to establish intent:

by showing D acted willfully, or with purpose or design to cause a

specific tort

by showing D acted with knowledge to a substantial certainty that such

conduct (tort) would occur. (Spivey v. Battaglia discusses knowledge, and
Garret v. Dailey - substantial certainty)

c) Children can be held liable for intentional torts, starting around age 3-4 (Garret v.
Dailey five yo commits battery by moving chair, knowing P would fall)
d) Mistake of Fact does not negate or destroy intent. Thus, as long as the plaintiff can
show that the defendant acted with intent, it will not matter that the defendant's
actions were based on a mistake of fact. (Ranson v. Kitner D shot P's dog, thinking
it was a wolf)
e) Insanity mentally ill persons can beheld liable or responsible for committing an
intentional tort as long as the plaintiff can prove that the defendant had formed the
requisite intent to commit the tort. (McGuire v. Almy insane woman hits caretaker
with table leg)
f) Transferred Intent In some instances, intent to commit one tort will transfer over
and be available to be used in an action against D for the commission of another tort.
(Talmage v. Smith man hits boy in the eye w/ stick, meant to throw at another boy)

D has intended tortious conduct towards one person and a different tort is
completed on the same person, OR where initial tort or a different tort is
completed on a brand new victim.

Initial and resulting tort must be Assault, Battery, False Imprisonment, Trespass
to Land, or Trespass to Chattels

Initial tort must be incomplete

If tort which D intended to commit on person A is carried out (ie scare person
by shooting at them), and this tort is completed, person B may not use
transferred intent if they are subsequently injured by D's actions (ie hit by
bullet which scared person A).

However, may be able show that D has substantial certainty that B would
be injured, but only if D was aware of B's presence (Talmage v. Smith )

g) Inferred Intent Intent can be inferred from a situation. i.e. Bicycle rider runs down
person on sidewalk when there was plenty of room to go around.
B. Intentional Torts
i. Battery
a) Elements

D acts intending to cause a harmful or offensive contact or an imminent

apprehension of such a contact, OR

A reasonable person would be substantially certain that harmful or

offensive contact would occur, AND

harmful or offensive contact does occur

b) Additional Considerations

P does NOT need to be conscious for battery to occur

Contact with objects that are imminently connected with the P is sufficient

The Crowded World rule, in which a certain amount of offensive contact is

unavoidable, such as bumping into someone or tapping them on the shoulder

Full extent of injury does not have to be foreseeable

Does NOT matter if D is trying to help P when contact occurs, as long as P does
not consent

c) Public Policy: Designed to protect P from intentional and unpermitted contacts.

Dignitary Tort: No damages need to be actually proven

d) P entitled to nominal damages if tort is proven

ii. Assault
a) Elements

1. The defendant acts with the intent to cause an imminent (immediate)

apprehension (mental awareness) of a battery AND (or substantial certainty
that this would happen)

2. The plaintiff has apprehension of the battery (sees it coming) AND

3. The defendant had the apparent ability (possible ability) to cause the
battery upon the plaintiff.

b) Additional Considerations

Proximity: D has to be close enough to P for a reasonable person to conclude

that contact may occur. P feels the need to take defensive action (duck, run,
etc.)

Words alone are generally not sufficient.

Unless D is talking about specific unlawful conduct

* Not every battery includes an assault (ie. P doesn't anticipate the battery)

c) Public Policy: Designed to protect P from intentional apprehension of a battery.

d) Dignitary Tort: No damages need to be actually proven

P entitled to nominal damages if tort is proven

ii. False Imprisonment

a) Elements

1. D acts with intent to restrain/confine the P (w/o legal justification), AND

2. P is physically restrained/confined to a fixed or bounded area

3. P has not reasonable means of escape

P is aware of the confinement

b) Additional Considerations

Refusal to admit or allow entry is NOT sufficient

Confinement to a whole state may be sufficient, but not whole country

If P can exit the way he entered, no confinement

Does NOT matter if D intended confinement as a prank

P not expected to escape if it causes physical danger to P, exposure (nudity),

material harm to clothing, or danger of substantial harm to another.

Means of escape not reasonable if it is unknown and not apparent to P.

P may not receive damages if injured through escaping by unreasonable

means

Fear of losing job not sufficient to render P's behavior involuntary

Restraint must be physical and not a moral influence (boss questions

employee about stolen watch, but never tells her she can't leave office)

Retention of P's property may constitute restraint

A person cannot make a claim of false arrest if they are convicted for the
crime for which they were arrested. However, if the person is convicted of a
different crime than the one for which they were arrested, and it is discovered
that the police did not have legal authority to arrest the person, then there is
action for false arrest.

Police can arrest using a warrant OR probably cause, first or second

hand.
Citizens aiding a police office in a false arrest can also be held liable.

False imprisonment occurs when defendant takes on duty, but will not
perform it to allow the plaintiff leave a confined area.

c) Public Policy: Designed to protect P from unlawful restraints on movement or

mobility.
d) Dignitary Tort: No damages need to be actually proven

P entitled to nominal damages if tort is proven

iii. Intentional Infliction of Emotional Distress

a) Elements

1. D acts w/ intent, substantial certainty, or recklessness to cause severe

emotional distress to the P, AND

2. D's conduct is extreme and outrageous, AND

Conduct exceeding all bounds usually tolerated by decent society

3. There is a causal connection between D's conduct and P's emotional

distress, AND

4. Emotional distress suffered by P must be severe

severe disabling emotional response

No reasonable person under circumstances would be expected to endure

b) Additional Considerations

Insults are generally not sufficient, unless they are repetitive over an
extended period of time and are extreme and outrageous.

EED does not have to physically manifest, but it does help to show a causal
connection

Taking advantage of a persons known sensitivity may elevate reasonable

conduct to extreme outrageous

Third parties may not claim IIED unless D knew 3rd person was present and
acted w/ intent, sub certainty, or recklessness to cause EED to 3rd person

May not need to be in view (hearing is sufficient)

Parents of sexually abused child need not be present

Unprivileged interference w/ corpse of loved one is classic example of IIED

Does NOT matter if intent was to prank P

Mere solicitation of sex not sufficient

Extra protection given to pregnant women

Filing of frivolous lawsuit not sufficient

c) Public Policy

Designed to protect P's right to be free to serious, intentional, and

unprivileged invasions of his / her mental and emotional tranquility

iv. Trespass to Land

a) Elements

1. D acts intending (directly or indirectly) w/ substantial certainty to enter

onto land of another

2. Entry onto the land of another occurs

1. Additional Considerations

What is land? Soil, buildings/structures, fixtures, trees/plants

Even if no extreme damage is caused, law infers that some damage is caused,
even if it's just the treading down of grass or shrubbery

nominal damages awarded under common law. Assists is deterring

adverse possession

Even if D entered P's land for useful purpose, action for trespass still exists

Entry must be from tangible mass. Intrusion from things like light, sound,
vibrations only justify claim of nuisance

Nuisance and trespass may be applied concurrently

For invasion by invisible particulates there is a 4 part test

1. invasion affecting exclusive possession

2. intent to invade land
3. knowledge that invasion will violate P's right to exclusive possession
4. substantial damage to land

NO presumed damages for this type of invasion

Actual damage must occur, ie plants, trees, grass, die... water on or

under the land is contaminated, paint of the house is peeling from
chemicals, etc

Accidental entry is not sufficient (ie accidentally throwing ball onto land)

If D sticks arm over fence or D's eves overhang P's property, this is sufficient

For trespass to airspace, entry needs to occur with in immediate reaches of

P's land (ie. Airspace P is actually using)

Action is valid if entrant moved beyond the scope of land owners invitation
(veterinarian student who also was secretly filming for TV station)

Public businesses cannot restrict entrance based on discrimination

D is liable for any damages which occur during trespass, even those which
are unforeseeable (D held liable when man drove over left behind fence
post w/ riding mower, fell off, and died.

Trespass may be committed by 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
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
pursuant to privilege conferred on the actor irrespective of the possessor's
consent, if the actor fails to remove it after the privilege has been
terminated, by the accomplishment of its purpose or otherwise.
Code of Fed. Reg. Title 14 Aeronautics and Space

Except when necessary for takeoff and landing, no person may operate an
aircraft below the following altitudes:

a. Anywhere. An altitude allowing, if a power unit fails, an emerg.

landing w/o undue hazard to persons/property on the surface

Over congested areas. Over ay congested area of a city, town, or

settlement, or over any open air assembly of persons, an altitude of
1,000 feet above the highest obstacle within a horizontal radius of
2,000 feet of the aircraft

Over other than congested areas. An altitude of 500 feet above the
surface, except over open water or sparsely populated areas. In those
cases, the aircraft may not be operated any close than 500 ft to any

person, vessel, vehicle, or structure.

Helicopters, powered parachutes, and weight-shift-control aircraft. If

the operation is conducted without hazard to persons or property on
the surface

A helicopter may be operated less than the minimums prescibed

in paragraph (b) or (c) of this section, provided each person
operating the helicopter complies with any routes or altitudes
specifically prescribed for helicopters by the FAA; and

A powered parachute or weight-shift-control aircraft may be

operated less than the minimums prescribed in paragraph (c) of
this section

Public Policy: Designed to protect right to exclusive possession of land.

ii. Trespass to Chattel

a) Elements

1. Defendant intentionally and w/o permission acts to inter-meddle w/ chattel

of another
2. Inter-meddling causes damage.
chattel is impaired as to is condition of value
deprived for substantial period
results in bodily harm to possessor or harm to some person or thing
which the processor has a legally protected interest.

b) Additional Considerations

Chattel: Personal property: property that can be moved... not attached to the
structure

Inter-meddling: intentionally bringing about a physical contact with the

chattel in owned OR in possession of another.

Designed to deal with MINOR interferences. Conversion deal w/ permanent

deprivation or complete destruction.

Reasonable force allowed to protect chattel for inter-meddling

Mistake is no defense

Transferred intent doctrine IS applicable

Actual damage is required, so no nominal damages can be awarded

If chattel is damaged, P is required to keep it and sue for damage/harm done

P does NOT have to own chattel, only possess it

b) Public Policy

Designed to protect one's interest in being free from intentional interferences

with his/her possession of chattel.

ii. Conversion
a) Elements

D acts (or commits an act) with the intent to exercise dominion and control
over the chattel of another, AND

the act results in a serious interference with the others rights to own or
possess the chattel.

b) Additional Considerations

Damage is the full fair market value at the time the conversion occurred

Nominal damages may be awarded

Anyone in possession of chattel can make claim. Ownership not required.

Good faith and mistake are not valid defenses (D mistakenly delivers chattel
to imposters; D buys stolen goods)

For fraudulent conveyances and merchants who deal in goods of that

kind - subsequent bona fide purchaser cannot be held liable for
conversion.

Return of chattel unharmed may result only in nominal damages

Transferred intent doctrine is NOT valid

Return of chattel may reduce damages, but does NOT negate liability

If conversion is by mistake, P must be aware that someone else is exercising

dominion and control

Theft is ALWAYS conversion, even if chattel is returned before P realizes it

was gone

Total destruction of chattel is conversion

If P wants to KEEP chattel, they should bring action of trespass to land,

because conversion is effectively a forced sale of the chattel from P to D

c) Public Policy

designed to protect ppl from serious intentional interferences with chattel, so

much that a judicial forced sale is required.

II. Defenses / Privileges

A. Consent
i. Definition: Voluntary agreements by a person with the possession and exercise of
sufficient mental capacity to make an intelligent choice to do something proposed by
another.
ii. Consent can be expressed or implied:
a) Express In writing, verbally affirming or rejecting
b) Implied Displayed by P's outward actions, behavior and conduct, in context of

the circumstances

ie. P gave no resistance/objections when physician administered vaccine,

after witnessing other women receiving the vaccine

ie. If local custom allows public passage over private land and land owner
does not act to prevent or bring action for trespass, this may constitute
implied consent.

iii. Consent cannot be given to being punched in the face, because a reasonable person
would not give consent to this.
iv. Contact Sports
a) Although some offensive and harmful contact is to be expected, players do not
consent to ALL batteries during a game, specifically not to intentional batteries
which are prohibited by the rules of the game.

Was there intent?

Did the D violate the rules of the game?

v. Consent to Medical Procedures

a) When is implied consent given to doctor for surgery?

Patient is unconscious, intoxicated, or of unsound mental capacity and

treatment is necessary for the preservation of their life and limb (life
threatening emergency situation).

In the course of an operation where P has already given consent, and the
doctor finds a condition in the same area that was unanticipated and would
seriously threaten the P's health or life if not removed.

b) Physicians normally need informed consent from patients, which requires:

Telling patient what procedure he/she is going to do

Telling patient the risks associated with the procedure

Telling patient the alternative methods of treatment
After patient knows all of this AND agrees, there is express consent.

a) Patients can place limits on consent, such as the scope of a procedure, who can
be part of the procedure, withdrawing consent in the middle of the procedure,
and do not resuscitate orders.
b) Patients may withhold consent for emergency medical treatment based on
religious beliefs, as long as they're conscious at the time.
c) Parents must provide consent for minors, except in emergencies.

Court may overrule parents withholding of consent based on religious

beliefs, but only in life threatening situations

Parents may consent to minor being an organ donor

Parents may NOT consent to non-therapeutic treatments which may

endanger minor's safety.

d) Consent is NOT valid if it is based upon fraud, deceit, or misrepresentation

However, fraud, deceit, or misrepresentation has to be related to the

essential character of the act itself rather than a collateral matter.

e) Consent is invalidated if P is incapable of expressing rational will

ie. Extremely intoxicated

B. Self Defense
i. Elements
a) Person has a reasonable belief in the need to use force to stop an imminent
battery
b) Person uses the amount of force allowed under law

Amount of force which reasonable under circumstances, up to death

consider age, size, relative strength of aggressor

c) Once aggressor retreats and there is no imminent threat of a battery, the privilege
expires

Retaliation by victim would then be treated as battery to the aggressor

d) Mistake does not destroy the privilege. If a reasonable person would have
believed an imminent battery would occur, the privilege is still allowed even if
an innocent party is mistaken for an attacker.
e) Provocation by language alone is generally not sufficient to privilege a battery,
unless P reasonably believes that bodily harm is imminent.
f) Use of deadly force is only allowed when P has reasonable apprehension of loss
of life or great bodily injury.
g) Retreat

Common law Defendant must retreat to the wall before using deadly
force

Majority Defendant can stand their ground and use deadly force

In the Home Neither Maj or Min require retreat in the home

Castle doctrine extends privilege to stand your ground to any place

where person has right to be (ie. Home, work, etc.)

h) Injury to Third Party

If innocent 3rd party is injured while person is defending themselves, the

transferred intent doctrine does NOT apply.

C. Defense of Others
i. Elements
a) Person has a reasonable belief in the need to use force to stop an imminent

battery to a 3rd person

b) Person uses the amount of force allowed under law

Amount of force which reasonable under circumstances, up to death

consider age, size, relative strength of aggressor

c) Mistake and Injuries to 3rd Parties

Two Theories

Defendant steps into shoes of victim...

Defendant protected as long as he/she has reasonable belief in the need to

use force to protect the victim.

D. Defense of Property
i. Property owners may use reasonable force to protect their property from unlawful
entry
ii. If property is not occupied, owner cannot use deadly force, setting up booby traps
and alike
iii. If property is occupied, owner can use deadly force if someone unlawfully enters,
especially if believe their own or family's safety is in danger.
a) Likely unlawful entry would happen at night in this case
iv. If invasion of property is peaceful, not force may be used until after intruder has
been asked to leave.
v. Posted warnings generally do not permit land owner from using excessive force to
protect unoccupied property
E. Recovery of Property
i. Owner of property may use reasonable force under the circumstances to recover
property

ii. Owner must be in fresh pursuit, which approximately 48-72 hrs

iii. After fresh pursuit period ends, owner has to resolve through legal system
F. Shopkeepers Privilege
i. Merchants have a privilege to use force to detain a suspected shoplifter, as long as the
merchant reasonably believes a theft has occurred and detains and questions the
suspect under reasonable terms (manner and time).
ii. Detaining suspect for longer than an hour is probably unreasonable
iii. Cannot demand payment or signed confession in return for releasing suspect
iv. Shopkeeper may stop suspect after they leave the store, but only if they are still close
to the store, such as in the parking lot

G. Public Necessity
a) In an emergency situation that poses (to a reasonable person) an imminent danger
to a large number of individuals, privilege exists to damage, destroy, or use the
property of another to prevent the danger from occurring AND
b) The person who exercises this privilege cannot be held liable for damages to
the property
H. Private Necessity
a) In emergency situation which poses imminent danger to the life or property of an
individual, or small group of persons (private), they will be privileged to
damage, destroy, or use the property of another to prevent harm from occurring,
BUT
b) Those who exercise this privilege CAN be held liable for damages to the
property

c) The danger can NOT be caused by the person who exercises the privilege
d) Owner of property being affected cannot kick person off their land or later bring
action for trespass if entry occurs due to private necessity
I. Discipline
i. Parents and those in charge of minors can use reasonable force to maintain order
ii. Teachers can also use some amount of reasonable force to maintain order in the
classroom
iii. Military can use force and discipline members in it's ranks and this is all regulated
by military law.
J. Justification
i. The court will accept it when the D clearly should have been able to do what they did,
but the facts don't fit into any of the other privileges
ii. Applies to people such as flight attendants, pastors, etc.
a) Those who may occasionally need to use some force to maintain order
**************************************Midterm**************************************
II. DAMAGES
A. Types of Relief Available in Civil Lawsuits (Three Types of Money Damages)
i. Equitable Relief (non monetary)
a) Injunctions/restraining orders
b) declaratory judgments
ii. Nominal Damages small sum of money awarded to the P in order to vindicate
rights, put judgment on record to prevent D from acquiring prescriptive rights, and
carry a part of the costs of the action. Amount of award is unimportant bc it's mostly
symbolic (can be $1).
iii. Compensatory Damages Closest financial equivalency to the injury/harm suffered

by the patient.
a) Intended to make P whole again
b) Restore P to position before injury occurred
c) P is NOT taxed for compensatory damages
iv. Punitive Damages Additional sum above compensatory damages meant to punish
D and deter wrongful conduct by other parties.
v. Punitive damages are considered income so they are taxable for P. Also tax
deductible for D.
B. Hierarchy of standards of proof
i. Preponderance of evidence 51% < clear and convincing 75% < beyond a reasonable
doubt 95%
C. Four basic principles of compensation
i. purpose of compensatory damages is to restore plaintiff to pre-injury status as far as
possible
ii. money is the only tool available to the jury for making the plaintiff whole again
iii. damage awards are all inclusive: past, present, and future injuries are considered in
awarding a lump sum.... only one bite at the apple.
iv. Judicial review of jury verdicts in civil trials is limited: most jurisdictions only allow
judicial review if award is so low or high that it shocks the conscious
D. Compensatory Damage awards (general considerations)
i. gen rule.. the successful P is entitled to recover damages to compensate her for the
losses proximately resulting from the D's tortious acts or omission
a) injury to property: value or prop lost or cost (conversion) or repair damaged prop
(trespass to chattel).
b) Personal Injury: 2 types of compensatory damages

General - non-economic: pain and suffering, emotional distress,

embarrassment, loss of life's enjoyments (consortium).

Special P's out of pocket economic losses... can come up with an actual
number. Lost wages, health care expenses, etc.

P cannot recover unless if costs incurred from tortious injury, treatment

was unnecessary, or medical fees were excessive (unreasonably high
hourly fees).

E. Personal Injury Damages (Compensatory)

i. Anderson v. Sears, Roebuck & Co. - Defective space heater made by D burned down
P's home causing severe injuries to P and her infant child. P sued D for negligence
and jury awarded P $2,980,000. D's motion for remittitur was denied after judge
concluded jury had awarded a reasonable amount.
a) photographs of plaintiff: are they prejudicial? Yes, but still allowed to
demonstrate to jury the injuries sustained.
b) presence of injured child in the courtroom: is child allowed to attend on trial?
Even though it is prejudicial, yes, she is allowed... unless she is actively trying to
be disruptive.
c) Types of Evidence used to support claim for damages?

Demonstrative evidence: Photographs, charts, etc.

Witness testimony: eye witnesses, based on personal personal knowledge

Expert testimony Testimony for more complicated evidence: from treating

doctor, psychiatrist, economist, social worker

ii. Richardson v. Chapman Both P's were in car struck from behind by D's employee.
One P suffered seriously injuries resulting in quadriplegia and the other suffered a

facial laceration. Quadriplegic awarded 22M and other P awarded 100K. Upon
remittitur, SC determined jury's award of 1.5M for quadriplegics future medical
expenses was unreasonable (based on economic expert testimony) and reduced by
1M to more closely match estimate. Court also concluded that jury should have only
awarded 50k in damages for facial laceration bc it was more appropriate for pain and
suffering in light of evidence.
iii. Maximum Recovery Rule - trial judge determines whether the damages awarded
by the jury exceed the maximum amount the jury could have reasonably awarded,
and if it does, the trial judge can reduce the amount of damages awarded on request
by D through remittitur.
iv. Judge can also increase the amount of the award if he/she thinks it's unreasonable
through additur.
v. Judge may use the threat of awarding a new trial in order to compel P to accept
remittitur.
vi. Jury can award more than P asked for, as long as amount is reasonable
vii. Five elements of damages:
a) past physical and mental pain,
b) future physical and mental pain,

No recovery for anxiety over paying medical bills

P must be conscious after injury (esp applicable if they died at time of injury)

Damages generally NOT awarded for FEAR of contracting a disease, but

may be awarded for actual exposure.

c) future medical expenses

Anticipated costs presented by expert testimony (doctors and economists).

No damages for reduced life expectancy

d) loss of earning capacity, and

according to objective tables of income. Can be adjusted for inflation.

e) permanent disability and disfigurement.

viii. No damages for litigation induced stress
ix. Some jurisdictions allow damages to be recovered for loss of enjoyment of life
x. Some jurisdictions allow jury to take inflation into account, but generally this is
limited to economic damages only.
F. Judicial Control of Compensatory Damages
i. 1. Trial Judge (through motion for new trial) can disturb the jury's findings on the
amount of damages only if the verdict is so excessive or so inadequate as to
demonstrate the jury acted contrary to the law (ie passion, prejudice, rather than
according to instructions).
a) Note: court can set aside the verdict and grant a new trial on both liability and
damages (or it can allow the liability portion of the trial to stand and orders a
new trial on damages).
b) If judge decides to grant new trial on damages alone, in order to avoid the cost
and hassle he may condition the granting of a new trial in the following manner:

Remittitur: in cases of excessive verdicts, the court may grant a motion for
new trial which is conditioned upon the P's refusal to accept a lesser amount.

Additur: In cases where the verdict is inadequate or excessively low, the

court although less frequently, may grant a motion for new trial conditioned
upon D's willingness to pay a larger sum.

G. Legislative Control of Jury Awards for Compensatory Damages

i. Tort Reform Measures (statutory limitations)
a) caps on damage awards- limiting amounts of recovery in medical malpractice
cases, non-economic damages, claims against the government
b) increasing standard of proof: may change the SOP - ie from preponderance of
evidence to clear and convincing
c) Modification of collateral source rule: Legislature can change rules allowing
evidence of payments received by P from a collateral source.

* Illinois has legislation permitting award to be reduced by 50% for collateral

source payments for lost wages and 100% for medical bills.

H. Collateral Source Rule Trial court must exclude from evidence payments made to the
injured P from sources collateral to the D.
i. Benefits received from collateral sources do not subtract from the amount of damages
P is entitled to receive.
ii. Collateral sources may include: gratuitous or discounted medical services, medical
insurance, life insurance, disability insurance, employee benefits (sick leave,
vacation pay), or governmental benefits.
iii. ie. P negotiates w/ hospital for a 50% reduction in medical expenses. D is NOT
allowed to introduce this as evidence for the jury to consider in determining special
damages.
iv. * If family member gratuitously cares for P, then P is entitled to receive
compensation bc the care was a gift to P and not to D.

v. D will often argue that P is getting a windfall when using collateral source rule.
However this is rarely true, because:
a) P has usually paid the insurance premium and has lost sick leave;
b) Attorney's fees take a substantial portion of P's recovery.
c) Subrogation - insurance generally requires that a P participate in lawsuit on
his/her behalf brought by the insurance co. against the D. Proceeds of the lawsuit
are paid back to the insurance co. (some of money may actually go to insurance
co.)
d) Allowing the full amount assists the jury in properly awarding damages for the
P's injuries.

Exceptions: impeachment of the P's testimony that he/she had paid for the
medical expenses, herself;

The P has placed her financial condition at issue...

D can question whether P's financial condition is not a dire as they claim

vi. Loss of Consortium: Court may recognize claim by P's spouse for loss of conjugal
relations, society, companionship, household services, etc. during the time which P
is recovering or for a permanent loss.
vii. Parties are generally not awarded attorney's fees.
viii. Attorney's representing Ps work for a contingent fee.
ix. Many settlements are payed in a lump sum, but sometimes D will pay a structured
settlement (periodic).
I. Mitigation of Damages

i. P has a duty to mitigate damages (doctrine of avoidable consequences) does not

allow recovery of those damages that P could have avoided by reasonable conduct
on the part of the P after a legal wrong has been committed by D.
ii. Test for whether P has acted reasonably in not receiving medical treatment (ie
surgery) to reduce injury (if P is claiming injury is permanent)
a) 1. nature/hazard of operation
b) 2. probability of success
c) 3. cost of procedure
d) 4. pain
e) 5. risk
iii. Can limit recovery for lost wages as well as pain and suffering
J. PUNITIVE DAMAGES
i. Terminology: Exemplary damages, vindictive damages, smart money
ii. What are they? Additional sum over and above the compensation of the P for the
harm suffered.
a) Purpose: punish the D, warning D not to repeat conduct, and deterring others
from wrongful conduct
iii. Punitive damages are constitutional.
iv. Test: D conduct must show reckless disregard for rights of others (willful,
wantonness, recklessness). *** Needs to be reckless conduct or intentional conduct,
but not merely negligent.
v. Creatures of Common Law legislature can modify or abolish them.

a) P has no right to punitive damage award.

b) Jury has COMPLETE discretion to refrain from awarding punitive damages,
even when there is proof of intentional/reckless conduct.
c) States are allowed to redirect a portion of punitive damages away from P into a
separate fund, and perhaps even eliminate punitive damages all together. (Does
not amount to constitutional taking. Cheatham.)
vi. Evidentiary proof required: clear and convincing evidence standard (75%)
a) higher than negligence (preponderance of evidence - 51%)
vii. Intentional torts/reckless conduct. Punitive damages are permitted when the D has
committed an intentional tort or has acted recklessly.
viii. Negligence. Punitive damages generally are not allowed for conduct that is merely
negligent even if the conduct causes severe damage.
ix. Compensatory Damage award as prerequisite. Generally, a compensatory damage is
required before a punitive damage award is given.
a) May be allowed w/ only nominal damages

ie. P was awarded punitive damages w/ only nominal damages when D

committed intentional tort of trespass by driving bulldozer over P's land after
P repeatedly refused to give D permission to do so.

x. NOT available against estate of deceased tortfeasor.

K. Amount of Punitive Damages
i. Constitutionality: SCOTUS finds punitive damages are constitutional, UNLESS there
are way too high. They impose a three part test:

a) 1. Degree of reprehensibility of D's conduct (how bad was it)

D's conduct is so reprehensible as to warrant the imposition of further

sanctions to achieve punishment.

b) 2. The ratio between comp and punitive damages

Only single digit ratios are permissible

c) 3. Difference between the punitive damages awarded by the jury and the criminal
penalties authorized or imposed in comparable cases.

Seems to be least binding element of the test.

Upon remand in State Farm v. Campbell, LC reduced punitive damages

from 145M to 9M, which was a 9-1 ratio w/ the 1M award of
compensatory damages. SCOTUS reasoned that the punitive damages
were too high because although State Farms actions were reprehensible,
they did not justify such a huge award, which was at a ratio of 145-1 w/
the compensatory damages. Also, the state SC was effectively trying to
punish State Farm for behavior which took place out if its state AND had
little connection to the injury to the P, and SCOTUS though this was
bogus. Apparently the LC on remand didn't decide to pay too much
attention to the third element of the rule though, since the applicable
criminal penalty was 10k max.

d) SCOTUS rules in a maritime case that ratio should be 1-1 for compensatory and
punitive damages. This is not binding on the states, but is influential, especially
when punitive damages are exceedingly substantial.
e) * Illinois has a 3-1 ratio set by legislation and adheres to the clear and

convincing standard.
f) Some jurisdictions consider the D's wealth in determining the amount of punitive
damages.
g) Some jurisdictions allow for the D to show that they have been criminally
punished for the same wrong in order to lower the award of punitive damages.
However, the D's counsel may not take advantage of this because it amounts to
admitting to the wrongdoing.
h) * Vicarious liability for Punitive Damages: Most courts take the position that the
principal vicarious individual or corporation is only liable for punitive
damages if the principal authorized or ratified the act, was reckless in employing
or retaining the agent, or the agent was employed in a managerial capacity and
was acting in the scope of employment.
i) Insurance Covering Punitive Damages: Jurisdictions are split as to whether
insurance companies should be held liable to cover a tortfeasor's punitive
damages. Some jurisdictions have concluded that a the punitive damages are
meant to punish the wrongdoer, so the burden should not be shifted to others in
the form of higher premiums. Other jurisdictions hold that the wrongdoer must
pay a higher premium for this type of insurance, which is an effective
punishment and deterrent within itself.
III.

NEGLIGENCE
A. Definition
i. Conduct that falls below the standard of care established by law for the protections of
others against the unreasonable risk of harm.

ii. The failure to exercise the level of care that a reasonably prudent (ordinary,
reasonable, prudent) person would exercise under the circumstances, or do
something that a reasonably prudent person would not do.
B. Elements
i. Duty (question of law)
ii. Breach of Duty
a) Look at facts to see if duty has been breached
iii. Causation
a) Actual Cause (cause and effect)
b) Proximate Cause (reasonably foreseeable)
iv. Damages
C. Leaving a golf club lying on the ground on one's own property does NOT constitute
negligence if someone else uses it to injure another person.
i. However, may be negligence if it was a loaded shotgun (other inherently dangerous
weapon).
ii. Courts cautious not to disturb rights of property owners... would open up the
floodgates to litigation otherwise.
D. Negligence is the omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs, would do or
doing something which a prudent and reasonable man would not do.
i. Reasonable person is expected to act with reference to the average circumstances.
(temperature in ordinary years).
ii. Waterworks co. not held liable because the temp causing the main to break was

record breaking low... so a prudent person wouldn't anticipate having to construct

water main to withstand this temp.
E. A drivers failure to prevent dangerous foreseeable actions of a passenger may constitute
a breach of duty of care to other passenger and the public and therefore be grounds for a
claim of negligence.
a) Where the dangerous actions of the passenger are NOT foreseeable, then there is
no breach of duty.
ii. Passenger jerked wheel of car two times eventually causing care to crash and driver
only laughed it off after the first time rather than taking action to prevent it
happening again.
a) If driver would have only jerked the wheel once causing the crash, prob no
negligence for driver. (bc action prob not foreseeable)
iii. In this jurisdiction it was law that drivers owed a duty to protect passengers because
it is foreseeable that they may be injured if, through inattention or otherwise, the
driver involves the car they are operating in a collision.
a) D's defense could raise argument of contributory negligence, since P could have
also stopped passenger from jerking the wheel.
iv. * The test is not of the balance of probabilities, but of the existence of some
probability of sufficient moment to induce action to avoid it on the part of a
reasonable mind.
F. People have a duty to use reasonable care to make premises safe, considering the
following:
i. character and location of the premises

ii. purpose for which premises are used

iii. probability of injury therefrom
iv. precautions necessary to prevent such injuries
v. the relations that the precautions bear to the beneficial use of the premises (will the
precautions create a burden on using the premises?)
a) D held negligent when child was injured playing on railroad turntable bc the
switch was not padlocked, only held with a pin and P was likely an anticipated
trespasser... if just a trespasser, then prob no DOC.

Cost of padlocking the switch was minimal. Although inherent danger of

railroad is great utility and therefore acceptable, the cost of preventing the
danger was minimal in comparison to the possible risk.

vi. Cost vs. Benefit: Owner of a vacant lot w/ pond is not required to fence property or
fill in pond in order to make it safe, because the cost and burden upon the owner of
the lot would outweigh the potential danger. However, the owner of a vacant lot
which has an open well may be negligent if a child falls into the well and the owner
knows children play on the lot, because the danger under the circumstances
outweighs the slight inconvenience of boarding up the well.
vii. Risk v. Utility: Society benefits greatly from railroad system, and there is a certain
amount of inherent danger in this utility, but it is acceptable.
a) When the benefits outweigh the risks, D owes no duty
b) * But when risk outweighs the benefit and prevention is not cost prohibitive, then
D does have duty.

viii. * In determining whether a D has acted reasonably under the circumstances, a

court can consider the cost for acting reasonably.
a) D held not negligent when car crashed through insufficient and dilapidated guard
rail bc at the time (1920s) it would have been cost prohibitive for government to
install sufficient guard rails on all roads.

Would be decided differently today considering it is much cheaper now to

install guardrails.

G. Court in determining negligence may apply the hand formula

i. When B is less than P x L, then D will owe a duty of care to the P.
a) B= burden, P=probability of harm, L=gravity of harm
b) Only works well when Burden is 0... ie in the case of US v. Carroll Towing
where gov had contracted for someone to be on barge during daytime. Contract
made burden 0.
H. Different Methods of Determining Negligence
i. The Risk-Utility Method
a) Where an act is one that a reasonable man would recognize as involving a risk of
harm to another, this 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.

Factors determining risk and utility are balanced. If the risk outweighs the
utility, then the act/conduct is negligent.

ii. R3d of Torts (similar to the Hand Formula) - KNOW THIS

a) a person acts negligently if the person does not exercise reasonable care under all
circumstances. Primary factors to consider in ascertaining whether the person's
conduct lacks reasonable care are:

the foreseeable likelihood that the persons conduct with result in harm

foreseeable severity of any harm that may ensue

the burden of precautions to eliminate or reduce the risk of harm

I. THE STANDARD OF CARE

i. The failure to exercise reasonable care UNDER THE CIRCUMSTANCES.
a) Makes negligence more elastic by considering the circumstances
b) Who is the reasonable person and what should we know about them?
ii. The standard of whether a person has acted negligently is OBJECTIVE and not
SUBJECTIVE.
a) The defendant will be judged against how a reasonably prudent person would
have acted under the same circumstances.
b) The reasonable person is both male and female... The person on the street, the
person who reads the paper, magazines, rides the bus, drives a car, mows the law,
the plain, ordinary, every-day, person....
iii. A reasonable person, whether car owner or not, is assumed to know that when a tire
is worn through to the fabric, that the tire is defective and may be dangerous to drive
on.
a) * The law required the driver and owners of motor vehicles to know the
condition of those parts of their cars that are likely to become dangerous where

the flaws or faults would be disclosed by a REASONABLE INSPECTION. The

law expects drivers and owners of cars to understand the danger of the defects
that can be discovered by a reasonable inspection.

*Jury is just a well qualified to pass judgment as to the risk of danger in the
condition of an article in universal use (eg tires) under a given state of facts
as an expert.

b) Other things reasonable people are expected to know

wood and paper will burn

gravity what goes up must come down

roads/highways are slippery when wet

memory: not forgetting something for a reasonable period of time

c) Does NOT matter if D has come into contact with the information common in a
particular community....

Person from city disturbs wild animal

person from warm climate hasn't driven in snow

iv. Custom and Usage SOC

a) When certain dangers have been removed by a customary way of doing things
safely, the custom may be used and proved to show that D or P has fallen below
the required standard.
b) For example when proof of an accepted practice is accompanied by evidence
that the D conformed to it, this may be sufficient evidence to establish that the D

aced with due care

c) likewise, when proof of an accepted practice is accompanied by evidence that the
D ignored it, this may be sufficient evidence that D did NOT act w/ due care.
v. However, a common practice or usage is not CONCLUSIVE evidence of negligence.
Before it can be, the jury must be satisfied with its reasonableness.
a) TEST: Is the custom reasonable?

What's the risk of not following the common practice/custom?

Is the shower glass likely to break and cut someone?

What's the cost?

Will cost cause landlord to have to go into bankruptcy to afford replacing

the glass?

vi. * Custom and usage CAN be used as evidence to establish a breach of duty, but only
if the custom is reasonable.
a) Custom if for drivers to driver on right side of road... but if there's a huge
pothole, then then custom is not reasonable.
b) D may present a custom or usage in order to show that they were acting
reasonably... but again the custom must be reasonable under the circumstances
still.

Custom of railroad works standing on cars when connecting is not reasonable

when cars are icy.

c) If custom violates a statute, then the statute prevails.

J. SOC Under Emergencies

i. One who is in an emergency situation is not held to exercise the mature judgment
required of a person who operates under circumstances that allow him or her the
opportunity to take deliberate action (well-reasoned).
a) What is an Emergency?

Event must be unforeseen, sudden, and unexpected.

i.e. Rays from setting sun is common and expected... no an emergency.

Examples of emergencies: encounters w/ black ice on highway, falling

boulders, swooping airplanes, darting children and animals.

b) Person must still act reasonable, just in the CONTEXT of the emergency.
c) Emergency doctrine does not apply if D acted to cause the emergency.
d) D must ANTICIPATE some emergencies, such as children darting in front of car
in a school zone / when seen walking on sidewalk, or hydroplaning when it is
raining.... These circumstances are not unexpected/unforeseen.
K. SOC for People w/ Disabilities
i. One who suffers from disabilities is held to exercise or to take the precautions which
the ordinary reasonable man would take if he were suffering from the same physical
disability (eg blindness, deafness, physically handicapped, etc).
a) Hold handicapped people to level of care as a reasonable/prudent person with
their same handicap.
b) At common law it was NOT extended to mental disabilities... only physical.
c) Voluntary intoxication is NOT considered a disability.

L. Children are are under duty to exercise same care as child of his age, intelligence, and
experience.
i. * UNLESS the child is engaging in inherently dangerous activities, in which case
they will be held to the same standard of care expected of the reasonably prudent
ADULT person.
a) Def of inherently dangerous: activities which could cause grave danger to others
or the minor themselves.

Examples of inherently dangerous activities: driving a car, motorcycle,

scooter, playing golf...

Special standard for children was applied: riding bicycle, building fire
outdoors, downhill skiing.

ii. * This means that more care may be expected of a child w/ superior intelligence.
iii. Minimum age for negligence is around 4 years old and maximum is 17.
M.SOC for Insane People
i. GENERAL MAJORITY RULE: People with mental illness are judged by standard of
reasonably prudent person who is sane. No exceptions.
ii. Wisconsin rule (minority) - Provides an exception if sudden mental incapacity
equivalent in effect to such physical causes as a sudden heart attack, epileptic
seizure, stroke, or fainting should be treated alike and not under the general rule of
insanity.
a) * Really, this is just talking about an emergency situation, because it is
unanticipated and out of D's control.

N. SOC for the Professional

i. Professionals are those who undertake any work that calls for special skill (usually
requiring special training and licensing). Broad definition... not just doctors and
lawyers... i.e. engineers, accountants, plumbers, etc.
ii. GENERAL RULE: Professional are held to standard of care of a person with
knowledge, training, and skill (or ability and competence) of an ordinary member of
the profession IN GOOD STANDING. (objective test, rather than subjective test
comparing D to professional w/ similar skill, training, experience)
a) P must produce expert testimony to establish the standard of care, UNLESS the
negligence is so obvious that the layman (jury) is capable of judging for
themselves (sponge/scissors left in patient after surgery). Burden to establish
SOC is on P, but evidence to establish SOC can be provided by EITHER parties.

D may try to establish professional SOC which is diff from what P claims.

iii. Gen Rule: Mere error of judgment by professionals does not fall below SOC
a) If lawyer acts contrary to statute, prob does fall below SOC, even if following
custom, bc statutes always trump custom.
b) *when attorney engages in practice and take on a client, he represents that:

he or she possesses the requisite degree of learning, skill, and ability

necessary to the practice of his/her profession; and...

exert best judgment in the litigation entrusted; and

exercise reasonable and ordinary care and diligence in the use of skill and in
the application of his/her knowledge to his client's cause.

iv. Professional negligence is the equivalent of malpractice

O. Establishing the SOC for Doctors, Nurses, Laboratories
i. P must produce EXPERT WITNESS to testify and establish the objective SOC....
NOT the subjective standard by ONE other doctor, but the SOC followed by the
profession. (Exception is for when negligence is so obvious that it can be identified
by a layman. i.e. leaving sponge/scissors in patient).
ii. Depending upon jurisdiction, there are THREE methods for establishing medical
SOC.
a) 1. Strict/Basic Locality Rule: doctors conduct measured by other doctors in the
same locality or same community.
b) 2. Modified Locality Rule: measured by conduct of other doctors in same or
SIMILAR communities. (ie Chicago and New York... LA and Chicago... etc.)
c) 3. National Standard of Care: conduct measured by national standard of care....
standardized training through a system of national accreditation and certification
(Specialists are held to this standard).

Justification for following National SOC is that locality rule is based upon a
time when establishing a national standard was not practical due to restraints
on traveling and accessibility of information... not the case today.

Strict and modified locality SOC also poses issue of whether or not
communities are actually similar, awards communities w/ doctors of lower
quality, and makes obtaining expert witnesses difficult.

P. Physicians duty of INFORMED CONSENT

i. Doctor has DUTY to obtain patients INFORMED CONSENT

ii. DUTY OF INFORMED CONSENT: If doctor breaches this DUTY, patient's
consent is VOID and the doctor will be responsible for the consequences
iii. What is the duty of informed consent?
a) 1. Doctors explains the nature of the procedure; and
b) 2. discusses alternative methods of treatment; and
c) 3. explains the material risk involved if the doctor performs the treatment

material if it is likely to affect patients decision

d) 4. must inform patient of any personal interests unrelated to the patient's heath,
whether research or economic, that may affect the doctor's medical judgment.

Exceptions

1. risks are already known by patient or everyone

2. disclosure would be detrimental to health of patient

3. emergency situations where the P is in no condition to determine what

treatment should be given (unconscious, in shock, etc).

e) *Two approaches in evaluating whether a doctor has effectively complied with

the duty of informed consent:

** MAJ RULE- Doctor Focused Standard: what reasonable doctor believes

the patient should know

MIN RULE - Patient Focused Standard: what reasonable patient would want
to know

This SOC will have to be established through expert testimony

*However, if P is bringing a cause of action for battery and not

negligence, then no expert testimony is necessary bc the only
question is whether the patient knew and authorized the procedure
(ie. Doctor operates on patients left eye when consent was only given
to operate on right eye).

IV. NEGLIGENCE PER SE

A. A statute can be looked to as the standard by which negligence may be determined:
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 courts accepts the
formulated standard and applies them:
ii. A violation of the statute establishes prima facie evidence of negligence:
a) 1. Duty question of law *
b) 2. Breach of Duty facts *
c) 3. Causation facts
d) 4. Damages
B. * Short hand approach to establishing the elements of duty and breach of duty
C. establishing negligence through a violation of statute is a separate approach to
establishing negligence (there can be a duty under the common law and under statute)
D. Negligence per se - The violation of a statute is the 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 statute, and when the harm/injury is is the type of injury meant to be

prevented by the statute (this is a judicial determination).

E. * Courts apply a two part test for applying a statute as the standard of care
i. P is a member of class of persons for which the statute was meant to protect
ii. P's injury was the kind of injury for which the statute was designed to prevent
a) ONLY ESTABLISHES DUTY AND BREACH
iii. * Courts have a large amount of discretion when deciding whether a statute applies
for a claim of negligence per se. Can look to the legislative history for help
determining whether the P is in the class of people intended to be protected and
whether the injury was the type meant to be prevented by the statute.
a) ** Statutes may have DUAL purpose... doesn't have to limited to preventing only
one type of injury or protecting one type of person. (statute against muffler cut
out meant to prevent harassing noises AND noise which interferes with safe
driving).
iv. * If criminal statute involved, then judge must determine whether imposing tort
liability for violation of the criminal statute is FAIR, WORKABLE, AND WISE
a) Civil courts not bound by criminal law
b) Can choose to adopt criminal law statutes if it's a good fit
c) Is there a corresponding common law duty of care? - most important to consider
d) If not, it is likely that following the criminal statute would be disruptive.
e) List of considerations for applying criminal law statutes:

1. is there a corresponding DOC at common law?

2. Is it practical and desirable to use the criminal law statute? Does the
statute give adequate notice of what conduct is required of them? Is it
obscure? Does it clearly define the prohibited conduct?

3. does it create liability without fault?

4. Ruinous liability disproportionate to seriousness of the D's conduct?

5. whether injury is the direct or indirect result of a violation of the statute?

v. In cases involving negligence per se, the court must consider whether D's violation of
the statute is the proximate (foreseeable) cause of P's injury.
a) Most of the time, a criminal act by a third party is considered an intervening
cause and negligence is passed to the criminal, UNLESS the criminal act is
FORESEEABLE.

i.e. Leaving keys in car while running... foreseeable that criminal could steal
the car and injure a pedestrian if keys are left inside while car is running...
which is a violation of a statute.

F. Effect of Negligence Per Se

i. Three possible approaches
a) * 1. MAJORITY - The UNEXCUSED violation of a statute is negligence per se.

D is allowed to offer an excuse. If he/she does not do this, the court can
declare the violation is negligence as a matter of law.

* Jurors have NO discretion to disregard the unexcused violation of the

statute.

* Common excuses allow by courts

violation is reasonable bc of actor's incapacity

neither knows of nor should know of the occasion for compliance

tail light goes out while driving

he in unable after reasonable diligence or care to comply

he is confronted by an emergency not due to his own misconduct

compliance would involve a greater risk of harm to the actor or to others

walking on the snow covered sidewalk/side of the street

b) 2. Violation is negligence per se.

no excuses allowed (minority approach)

c) 3. Violation is evidence of negligence

jury has role in deciding whether to use statute for evidence. (Also minority)

V. Circumstantial Evidence and RES IPSA LOQUITUR

A. Definiteion of RES IPSA LOQUITUR: The thing speaks for itself....
i. The mere fact that the accident occurred is evidence of D's negligence
ii. Based of common sense INFERENCES
B. It is a rule of circumstantial evidence. It is a method of indirect proof of negligence
(duty, breach, causation, damages)
C. Provides a common sense inference of negligence where direct proof of evidence is
lacking, provided that certain elements consistent with negligent behavior are met.
i. * TEST: 3 parts
a) 1. Instrumentality causing injury is within the exclusive control of the D
b) 2. The event/accident would not normally happen if proper care was observed
c) 3. The injury must not be due to plaintiff's voluntary actions
D. How are these elements established?
i. Look to past experiences and general knowledge held by members of the community

a) * This can be demonstrated through witness and/or expert testimony... may also
just be a common sense inference. See below:
b) i.e. elevators don't just fall, planes don't just crash, ceilings don't just collapse,
roller coaster don't just derail... UNLESS there is negligence.
c) Some event do commonly occur w/o negligence... i.e. people fall down stairs,
tires blow out, etc.
d) If injury is attributable to SEVERAL sources, then RIL does NOT apply, bc D
did not have exclusive control.

Exclusive control is not limited to the actual physical control of the

instrument that causes P's injury, rather it also applies to those with the right
to control - hotel guest have RIGHT to control furniture in their room... and
could throw it out the window.

E. * Allows introduction of circumstantial evidence in order to survive pretrial motions and

make it to trial phase
i. Glue which allows complaint to go to trial, especially when P lacks solid evidence
ii. Does NOT guarantee P will prevail... they will still need to produce some evidence
during the trial.
F. Circumstantial Evidence: Testimony not based on actual personal knowledge or
observation of the facts in controversy, but of other facts from which deductions are
drawn, showing indirectly the facts sought to be proved.
G. Banana example:
i. If Banana is yellow? It's ripe

ii. Green? Not ripe.

iii. Brown? Going bad.
iv. Black? Rotten.
a) Reasonable people can deduce/infer these things and it can lead to further
inferences... such as how long the banana has been sitting around.
H. RIL MAJORITY AND MINORITY VIEWS *** On Exam***
i. Majority
a) * It creates an inference of negligence (permissible inference) which the jury
may draw or not as their judgment may dictate.
b) Memorize def of inference

* A logical and reasonable conclusion of a fact not presented by direct

evidence but which, by process of logic and reason, a trier of fact may
conclude exists from the established facts.

ii. Minority
a) 1. it creates a rebuttable presumption that requires the jury to find (or conclude)
negligence if the D does not produce evidence sufficient to rebut the
presumption
b) 2. it creates a rebuttable presumption and shifts the burden of proof to the D to
come forth with evidence to show that he or she was not negligent.
I. * There is general agreement that the fact that a car leaves the road and crashes into a
stationary object is enough, in the absence of explanation, to make out RIL against the
driver.

J. * If multiple Ds are involved and P was unconscious at time of injury it would be

impossible for him to figure out who was responsible for the injury w/o witness
testimony.
a) Therefore court may apply RIL in order to compel the Ds to testify and show
individually that they are not at fault, or they will be held jointly negligent.

Method used by courts to smoke out the negligent party

* This is a minority approach.

VI. Breach of Contractual Duties

VII. Contractual duty
A. an area where contract and tort law intersect
B. historically, the K action developed later than tort liability. Its arrival allowed for
another avenue of recovery for the P.
C. as a result it became necessary for courts to try to figure out whether P's actions fell
under K law or tort law.
i. This distinction was important for several reasons
a) jurisdictional purposes
b) statute of limitations (K v. torts)
c) Damages (only tort law provides punitive damages)
d) Defenses (K recognizes infancy and statute of frauds)
e) Remedies (summary judgment, attachment, arrest)
D. Can duties of care under tort of negligence arise out of K relationships?

i. YES!
a) Product liability actions
b) misrepresentations (fraud)
c) K arrangements (where party agrees to do something and a breach of the K
results in harm to the P) (US v. Carroll Towing Co.)
d) Professional Malpractice Actions (K and Negligence)
E. Three approaches taken by Courts in determining whether to allow the P to sue and
recover under K or tort law:
i. Allow the P to choose the venue and the cause of action
ii. Court determines the cause of action
iii. Distinguishing between misfeasance v. nonfeasance. The court looks to whether D's
failure to honor the K provisions results in misfeasance and nonfeasance
a) What is misfeasance: Active conduct which works a positive injury to others
(When D misperforms the K)

If the D's actions constitute misfeasance, then the possibility of recovery

under negligence is greatly increased

Privity not required

iv. nonfeasance: inaction or a failure to take steps to protect P from harm (when there is
only the promise to do something and a breach of the promise)

Generally, only K action lies w/ nonfeasance

* K requires privity

v. What is privity?
a) That connection of relationship which exists between two or more contracting
parties. (direct contractual relationship).
b) Required to bring action based on K alone...
vi. Example of nonfeasance: Mechanic (D) has K w/ postmaster to maintain coaches. D
fails to properly maintain coach, which breaks down and injures driver (P). No
privity between D and P... only D and P's employer. Since D did not take any
POSITIVE action which injured P, only K claim available, which is not possible w/o
privity. P is out of luck.
a) Courts concerned with opening floodgates of litigation, since hypothetically anyo
pedestrian injured by coach could also bring action against D w/o the
requirement of privity.
vii. EXCEPTION TO THE RULE OF PRIVITY PRODUCT LIABILITY
a) Product manufactures are liable REGARDLESS of privity when:

1. It creates a thing which poses danger to life or limb if negligently made;

2. The manufacturer is aware of this probable danger;

3. The manufacturer is aware that the danger will be shared by others than
the immediate buyer (i.e. 3rd party end user, not just the distributor).

4. The product will not be tested further by the purchaser or 3rd party end
user.

Buick (D) used defective wheel sourced from 3rd party manufacturer
in building a car, which caused injury to end user P. There was no

privity between D and P because of middle man auto retailer, but

court found for P due to Buick's responsibility to construct safe cars...

This is the grandfather of product liability cases.

viii. If D has given their assurance that an action has been properly carried out, then this
will constitute misfeasance.
a) Nonfeasance exists where D has really done nothing at all.... D FAILS to take
action.
ix. Utility Companies
a) Generally citizens cannot bring action of negligence against a utility company for
failure to adequately supply a utility UNLESS the utility co produces a defective
product (i.e. tainted water).

Many times P is not in privity w/ D (only in privity w/ city)

However, courts view producing a defective product (tainted water) as

misfeasance bc the lack of action goes so far as to constitute a positive action
resulting in injury.

F. Malpractice and Privity

i. A person must be in privity of contract before he or she can sue a professional for
malpractice.
a) EXCEPTION: An attorney may be liable for damage caused by his or negligence
to a person INTENDED to be BENEFITED by the attorney's performance,
despite a lack of privity of contract between the attorney and the party to be
benefited.

I.e. if attorney botches a will and assignees receive nothing as a result, the
assigned could sue for malpractice.

VIII. AFFIRMATIVE DUTIES TO ACT

A. There is NO duty of care to come to the rescue, aid, or assist someone in peril.
i. Doctor's Hippocratic Oath is a MORAL obligation, and is not legally enforceable.
Doctors can even evaluate P and then refuse to provide services if they want w/ out
negligence.
B. Universities do NOT owe a duty of care to protect the private lives of its students
i. *However, universities DO owe DOC to protect students' safety will in class or in
dorm.
C. EXCEPTIONS
i. Special Relationship between P and D
a) common carriers and patrons (in-keepers, public utilities, airplanes, railroad, etc.)
b) captain and crew (can't watch crew drown)
c) employer and employee

*only during course of employment

d) custodian and those in custody (jailor and prisoner)

e) land owner and person entering onto land (trespasser, licensee, invitee)
f) teacher and student
g) husband and wife
h) parent and child

ii. Special Relationship between D and 3rd party who injures P

a) Psycho-therapist and patient: Therapist has affirmative duty to notify P of
potential harm if D is aware of the danger posed by patient (3rd party) and D has
the ability to control the patient's actions.

No liability for breach of confidentiality as long as they make a diagnoses

following acceptable professional standard of care.

iii. P is injured by instrument under control of D

a) Escalator injures child... department store should take reasonable steps to prevent
further injury. (shutting off escalator in reasonable amount of time).
b) D creates dangerous condition w/o negligence, duty exists for D to take
reasonable precautions against other people being injured...
iv. D's negligence has caused injury to P
v. Voluntary assumption of duty
a) i.e. Once you begin he performance of rendering aid, you must see it through.

When D voluntarily attempts to aid P, which relies upon the aid their
detriment.

Reasoning is that you may have dissuaded another person from attempting to
help.

Employer (D) gives medical screening and fails to notify employee of

disease.

911 rescue calls...

* main idea is that P relied upon D's assumed responsibility to act and the
reliance was to P's detriment.

vi. Affirmative Duty Statutes

a) Hit and Run Statutes: Requiring a driver involved in accident to stop and provide
aid.
b) Hospitals: Requiring Emergency Rooms to provide medical screening / exam and
stabilization of patients who show up at the emergency room.
c) Good Samaritan Statutes: Designed to encourage doctors and medical
professionals to render service by limiting liability when acting as a good
Samaritan.
IX. DOC Owed to Occupiers of Land: Trespassers, Licensees, and Invitees
A. Outside of Land (Natural vs. Artificial Conditions)
i. Land owners have no DOC to protect persons outside of premises from injury by
NATURUALLY OCURRING things on the property.
a) i.e. foul swamp, falling rocks, normal flow on surface water.
b) EXCEPTION: Defective trees which show signs of being defective... no leaves
in the summer, leaning, no bark, rotted out, etc. Land owner.

Land owner is liable for negligence if he knows, or should have known, that
the tree is defective and fails to take reasonable precautions.

ii. Land owner DOES owe duty of reasonable care to persons outside of premises from
injury caused by ARTICFICAL conditions on his/her land.
a) i.e. Anything to do w/ building on land, parking lot where water collects, planting

trees next to highway, building baseball stadium.

B. On the Land
i. DOC Owed to TRESSPASSERS
a) Who is the trespasser?

Someone who willfully and unlawfully enters upon land of another w/o
permission.

* Land owner owes NO DOC for UNDISCOVERED trespassers.

Undiscovered trespassers assume the risk of their injuries.

* For DISCOVERED trespassers, land owner has duty to exercise

REASONABLE CARE.

Land owner does not have to be on look out.

Duty only arises once trespasser is discovered, at which point landowner

must make all reasonable efforts to prevent injury to others by means
UNDER THEIR CONTROL.

b) Licensees

Who is the licensee?

Persons who come onto land to further their OWN agenda

i.e. Social Guests, Salesmen, Incidental Services

DOC is to warn the licensee of any latent dangers which are UNKOWN
TO LICENSEE, but which the landowner is aware.

c) Invitee

Who is the invitee?

Person who enters land (w/ express or implied invitation) in furtherance

of the owners business.

Persons who enter onto land w/ goal of providing something valuable to

the land owner.

i.e. business customers, patrons at concerts, etc.

no purchase needed by customers

Who are public invitees?

Persons attending free public lecture/concerts

church services and meetings

college reunions

public places of amusement

municipal parks and playgrounds

public libraries, rest stops, swimming pools

public golf courses, community centers

State and Federal land (washinton dc mall)

d) * DOC to INVITEES

Landowner owes duty of reasonable care to the invitee to:

1. inspect the premises to make them safe

2. repair or fix dangerous conditions

*basically owner has affirmative duty to make premises safe for

invitees

e) * If invitee enters part of the business which you they do NOT have permission
to enter they become a trespasser or licensee, depending on whether the owner
has given permission, and in either case the DOC shifts.
f) Duty to invitees not necessarily discharged by posting warning signs. Owner must
take affirmative action to remove any obvious hazards as long as it's not to
difficult to do immediately.
g) Child Tresspassers

Owed a higher DOC than adult trespassers

A possessor or land is subject to liability for physical harm to children

trespassing thereon caused by an artificial condition upon the land if

the place where the condition exists is one upon which the possessor
knows or has reason to know that children are likely to trespass, and

the condition is one which the possessor knows or has reason to know
and which he realizes or should realize will involve an unreasonable
risk of death or serious bodily harm to such children, and

the children, because of their youth, do not discover the condition or

realize the risk involved in intermeddling with it or in coming with tin
the area made dangerous by it, and

the utility to the possessor of maintaining the condition and the

burden is are slight as compared with the risk to children involved,
and

* the possessor fails to exercise reasonable care to eliminate the

danger or otherwise to protect them

If children have never entered the premises and there's no reason to think that
they would, recovery may be denied.

A precise warning will discharge the landowners duty, at least for kids that
can read.

h) Fire Fighter and Police

Generally considered licensees, which land owner owes duty to warn about
hidden dangers which land owner knows or should know about.

i) Lessor and Lessee

At common law lessor owes NO DOC of lessee or others entering the land,
for defective conditions at the time of the lease.

* Exceptions

Where undisclosed dangerous conditions (natural or artificial) are

unknown to lessee but known to lessor (and lessor is aware lessee will
not discover)

dangerous conditions to persons outside of the premises (defective trees

and artificial conditions)

where premises is leased for admission to public (lessor must inspect and
repair before possession is transferred to lessee)

Areas of premises that are under lessors exclusive control (common

areas, laundry rooms, courtyards, etc)

when the lessor contracts to repair (assumption of duty)

when lessor negligently made repairs and lessee didn't know the repair
was negligently made.

X. CAUSATION
A. Causation in fact
i. Cause and effect of D's conduct and P's injury
a) *If conduct did not happen, injury would not have happened.
ii. Two Tests for establishing causation if fact
a) 1. But/For Test

Used when only ONE possible cause of P's injury.

Conduct will not be cause IF injury would have occurred w/o conduct.

b) Substantial Factor Test

Used when there are multiple possible causes

D's conduct is a cause of the event if it was a substantial factor (material

element) in bringing about the harm

D's negligence will be a substantial factor if the injury/harm to the P would

not have occurred w/o the factor. Could have caused P's injuries alone.
B. PROXIMATE CAUSE
i. Whether the harm that occurs is a foreseeable result of D's breach of duty.
ii. Palsgraf v. Long Island
a) Majority - Judge Cardozo

P must be in zone of danger/apprehension in order for D to owe a duty of

care.

Not necessarily a matter of distance, rather a matter of whether the injury

was a foreseeable consequence of D's actions.

Since package was not labeled fireworks it was not foreseeable that
pushing passenger would ever lead to an explosion which would then
injure P.

b) Dissent Judge Andrews

Thinks Cardozo is considering DOC when that is NOT the issue, bc the
matter at hand is causation.

As long as P can trace her injury back to D's negligent conduct, P should
prevail, unless there is some sort of intervening event (i.e. act of God)

iii. * Proximate Cause Test

iv. A policy based method of cutting off liability when Ds conduct is only remotely
connected to Ps harm.