c

 


  

Intent: A person acts intentionally where:

1.?he desires to cause the consequences of his act, or
2.?the consequences are substantially certain to result from it.

The Intent Requirement

1.?Specific Intent ± exists when the defendant acts desiring his conduct cause
the resulting consequences

General Intent ± exists where the defendant acts knowing with

substantial certainty (a somewhat lesser degree than specific intent) that
his conduct will cause the resulting consequences.

Transferred Intent ± exists when the defendant intends tortious conduct

against one party but the resulting harm is caused upon another party.
Transferred Intent applies only to the following torts: False
Imprisonment, Trespass to Land, Trespass to Chattel, Assault, and
Battery. [FiT TAB] [BIC FATT]

The Act Requirement

1.?There must be an external manifestation (some evidence that a message
got from the mind to the body, a perceptible movement or failure to
move) and
2.?involvement of the will (some evidence that the external manifestation was
volitional and not the result of a reflex).

INTENTIONAL TORTS- (FAT BITCH)

a.? BATTERY
b.? ASSAULT
c.? FALSE IMPRISONMENT
d.? INTENIONAL INFLICTION OF MENTAL DISTRESS
e.? TRESPASS TO LAND
f.? TRESPASS CHATTEL
g.? CONVERSION



 
A.?Definition: protects a person's bodily integrity, the right to be free from
intentionally inflicted contact that is harmful or offensive.
??

? ?
An actor is subject to liability to another for battery if (1) he acts
intending to cause a harmful or offensive contact with the person of the
other or a third person, or an imminent apprehension of such a contact
and (2) a harmful contact with the person of the other directly or
indirectly results.
C.?Intent to Act:
(1) An act is a non-reflexive intended muscular movement that is an
external manifestation of will regardless of whether the reasons for the
intended act are irrational
(2) External manifestation - something that can be perceived, even
standing still.

D.? Defining Injury and Harm
a.? Injury is the invasion of a legally protected interest, which must be
intended.
b.? Harm is the loss or detriment suffered which need not be intended
or foreseen.
c.? Offensive-offends your dignity, found upsetting, rude, insulting

E.?An act which is not done with intent does not make an actor liable to the
other for offensive contact with the other¶s person although the act
involves a reasonable risk of inflicting it and, therefore, would be
negligent or reckless if the risk threatened bodily harm

F.? è
 




The act of the defendant must cause, and be intended to cause an
unpermitted contact.

?c





 ? (1) Intent is the desire to cause consequences or the belief that
consequences are substantially certain, regardless of whether the
resulting injury was the one intended or whether the reasons for the
intention are irrational.

1. Battery requires that the actor intended to cause a contact that is
harmful or offensive. Freedom from intentionally inflicted harmful
contact is the interest that law is trying to protect.
2. The interest is different from the harms suffered. The actor need not
intend the harms suffered if the actor intended the contact.
Citing in Waters v. Blackshear - Œ



 


³The extent of the resulting harm need not be intended, nor even
foreseen.´
Example: Waters v. Blackshear "firecracker kids" pg.16

 
 , 591 N.E.2d 184 (Mass. 1992). Defendant Waters,
a minor placed and lit a firecracker in Plaintiff Blackshear¶s sneaker, also
a minor. Plaintiff sustained burn injuries. The court cited Œ




, 186 Colo. 149, 155 (1974), which found that o





    

      

Polmatier v. Russ "naked crazy guy kills father in law" (pg. 18)
 1. The plaintiff must prove that the def. acted. And act is an external
manifestation of the actors will.
2. The plaintiff must prove that the def. intended for the act to cause a
contact that is H or O.
3. If the def.¶s personal characteristics do not prevent the def. from
exercising his will or forming an intent, they are irrelevant.

è
 
, 537 A.2d 468 (Conn. 1988). Defendant shot and killed
his father-in-law while visiting the home of his in-laws. He claimed that
he was insane at the time. The court found that a muscular reaction is
always an act, unless it s a purely reflexive reaction in which the ³mind
and will have no share" Although the trial court found Defendant to be
insane, the court believes that the act was done by choice, an irrational
choice, but a choice nonetheless. The court further believed that
Defendant intended for the act to bring about harm to Plaintiff, as
evidence by the reasons and motives for his actions that Defendant
provided to police. The court cited comment c to § 895J of the
Restatement, which states that 
 
    

  
   

 
 
  
   



Restatement (Second) of Torts § 2 defines an act to denote an external

manifestation of the actor¶s will and does not include any of its results,
even the most direct, immediate, and intended.

Restatement defines intent to denote that the actor desires to cause

consequences of his act, or that he believes that the consequences are
substantially certain to result from it.

Citing Horton v. Reeves, 186 colo. 149

³The extent of the resulting harm need not be intended, nor even
foreseen.´

c

 


A.?Battery actions are based on claims that a defendant intended to cause a
contact that is harmful or offensive. Polmatier and Waters both involve
defendants who desired to cause the contact, though it is clear that intent
to contact may also be proved by demonstrating that the defendant was
substantially certain the contact would occur.

Polmatire and Waters both involve def. who desired to cause the contact,
though it is clear that intent to contact may also be proved by
demonstrating that the def. was substantially certain the contact would
occur.

 

 1. The external manifestation(some evidence that a message got from the
mind to the body, a perceptible movement or failure to move) and
2. Involvement of the will (some evidence that the external manifestation
was volitional and not the result of a reflex)

è 
The plaintiff must prove that the defendant acted.
The plaintiff must prove that the defendant intended for the act to cause
a harmful or offensive contact.
If the defendant¶s personal characteristics do not prevent the defendant
from exercising his will or forming intent, they are irrelevant.


c
  


 
Nelson v. Carroll "thug life, 50 cent" (pg. 23)
1. A battery may occur directly through an intentional contact (hitting
someone on the head with a gun ) or indirectly (bullet leaves a gun
accidentally as gun is raised with the desire to hit someone on the head)
2. If the intent requirement is met, liability extends to unintended and
unforeseeable consequences.
Sets forth in motion a chain of events.

0


. Defendant hit Plaintiff over the head with a gun and it
accidentally goes off. 

  
   



 
   

     



  c


  




 
 
      

Defining Injury and Harm

Injury(the invasion of a legally protected interest) which must be
intended
Harm (the loss or detriment suffered) which need not be intended or
foreseen

c
  


! "  #$%

Leichtman v. WLW Jacor Comm., Inc. "Smoke in Face" (pg. 28)
1. Battery included intent to cause an offensive contact
2. Offensiveness of a contact is determined by an objective test of what
would offend a reasonable sense of personal dignity.
Injured Bodily Integrity!!

¦
¦


 , 634 N.E.2d 697 (Ohio
Ct. App. 1994). Defendant blows cigar smoke into Plaintiff¶s face
knowing Plaintiff was an antismoking advocate. 

  



  

!  


 
   &


'
' 
      


Objective:
Subjective:

÷ !
 è , 330 S.E.2d 638 (N.C. Ct. App. 1985). Jokester taps
back of Plaintiff¶s knee causing her to fall and dislocate her knee cap.
 

 

 
  

 




 
   
&( 





' 
 
 







     




 


 Muniz 999 P.2d 814 (Colo. 2000). Elderly lady kicks nursing
home employee. c 

& 
 
 



 
)%



'

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'   

Dual Intent - (minority rule) In dual intent jurisdictions, the defendant must
intend both:
A.?That the contact will be harmful (or offensive). In non-dual intent
jurisdictions, the P only needs to show that the D intended contact, but
not whether he intended the contact to be harmful or offensive. This
removes from the jury a decision of the D's subjective intent regarding
whether the contact was harmful.

ÿ c

 


A.?Nominal damages are awarded in intentional tort cases where the plaintiff
suffered an inury but no harm, in order to establish the respective rights
of the parties. $.06/$1
B.? The principle of de minimis non curat lex limits plaintiffs right to recover
even nominal damages for trivial invasions of their interests.
Example: Taylor v. Barwick "jail guy gets hit in butt by guard" pg. 36
ù ?
 
   

Degree of reprehensibility of defendant¶s conduct
Disparity between actual and punitive damages
Comparison of punitive damages awarded and other civil penalties that
could have been imposed.
4.?Compensatory± for harms suffered
5.?Punitive damages ± intended to punish the defendant rather than to
compensate the plaintiff.
6.?Nominal damages ± awarded instead of compensatory damages when a
plaintiff has suffered injuries but no harm. Nominal damages can be
awarded when a plaintiff suffered injury, but no harm.


Definition: Protects one's interest in being free from the apprehension of
imminent harmful or offensive contact.

Restatement 2d Torts
Section 21. Assault
(1) An actor is subject to liability to another for assault if
(a) s/he acts intending to cause a harmful or offensive contact with the person
of the other or a third person, or an imminent apprehension of such a contact,
and
(b) the other is thereby put in such imminent apprehension.

Example:
D threatens to kill + leaves = no assault
D threatens to kill + leaves + gets gun and brings back = assault
D has gun at his back ± P has no apprehension = no assault

c
     c 




(1) Intent for assault requires that the defendant intend to interfere with
another¶s interest in being free from apprehension of imminent harmful or
offensive contact.
(2) The defendants conduct must be such as to arouse apprehension of present
rather than future contact in a reasonable person.
(3) Conditional language, threatening such contact unless the plaintiff
modifies his future behavior in some way, does not suffice to show assault.


 "#$
 %   &"'"#$%(
??
Threatened harm of physical harm must be imminent for conduct to be
characterized as an assault, regardless of the extent of the resulting emotional
disturbance. #
! 
÷ " ))
 %"#

Imminent v. Immediate
The apprehension created must be one of imminent contact, as distinguished
from any contact in the future. ³Imminent´ does not mean immediate, in the
sense of instantaneous contact, as where the other sees the actor¶s fist about to
strike his nose. It means rather that there will be no significant delay. It is not
necessary that one shall be within striking distance of the other, or that a
weapon pointed at the other shall be in a condition for instant discharge. It is
enough that one is so close to striking distance that he can reach the other
almost at once, or that he can make the weapon ready for discharge in a very
short interval of time. Restatement 2d of torts section 31 comment b.

Rest 2d Torts section 24

*
+!
$$ 
,
"In order that the other may be put in the apprehension necessary to make the
actor liable for an assault, the other must believe that the act may result in
imminent contact unless prevented from so resulting by the other¶s self-
defensive action or by his flight or by the intervention of some outside force."

Comment: What is not an apprehension. If the other, thought knowing of the

act done by the actor and realizing that it is intended to cause him a bodily
contact, believes, whether reasonably or unreasonably, that the means adopted
by the actor are in and of themselves incapable of effectively carrying out his
purpose, he has not been put in such an apprehension as is necessary to make
the actor liable.

Comment: Thus, is the actor, believing a revolver to be loaded, points it at

another and threatens to shoot him, the actor is not liable under the rule
stated in section 21 if the other believes that the revolver is unloaded. This is
true though the other is mistaken in his belief, the revolver is in fact loaded,
and the actor is only prevented from carrying out his purpose by a bystander
snatching the revolver from him.


#

 #*

+
$$ 
-

"b. Distinction between apprehension and fright. It is not necessary that the
other believe that the act done by the actor will be effective in inflicting the
intended contact upon him. It is enough that he believes that the act is capable
of immediately inflicting the contact upon him unless something further
occurs. Therefore, the mere fact that he can easily prevent the threatened
contact by self-defensive measures which he feels amply capable of taking does
not prevent the actor¶s attempt to inflict the contact upon him from being an
actionable assault. So too, he may have every reason to believe that bystanders
will interfere in time to prevent the blow threatened by the actor from taking
effect and his belief may be justified by the event. Bystanders may intervene
and prevent the actor from striking him. None the less, the actor¶s blow thus
prevented from taking effect is an actionable assault. The apprehension which
is sufficient to make the actor liable may have no relation to fear, which at
least implies a doubt as to whether the actor¶s attempt is capable of certain
frustration.

è   +
  


Apprehension is not the same as fear, and the plaintiff is not deprived of an
action merely because of being too courageous to be frightened or intimidated.

Plaintiff need not be aware the danger proceeds from a hostile human being..
If a concealed defendant sets off an explosion which puts the plaintiff in fear
of life or safety the same interest is invaded.

Apparent ability, or put another way, well-founded fear or apprehension of

harm, combined with an intent to instill that fear, was sufficient to support a
conviction for common law assault. The understanding reflected the general
 trend of combining the elements of common law criminal assault and
common law tort assault to form the definition of common law assault.

The general nature of the offense of assault is set forth in Porsser, Law of Torts
sec 10 (4th ed. 1971) as follows: The interest in freedom from apprehension of
a harmful or offensive contact with the person, as distinguished from the
contact itself, is protected by an action for the tort known as assault. No actual
contact is necessary to it, and the plaintiff is protected against a purely mental
disturbance of his personal integrity. Armes v. Campbell , 603 S.W.2d 249 (
tex . Civ. App., 1980)


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' 
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Π?
?
 ??
?" 
 )--,%
1) One who acts intending an assault is liable for battery if a harmful or
offensive contact occurs. One who acts intending a battery is liable for assault
if apprehension of imminent harmful or offensive contact occurs.
2) One who acts intending to batter or assault one person and batters or
assaults another is liable to the other for the invasion that person suffers.
Combining these in the context of this case, one who acts intending to assault
a person is liable to another person who suffers a battery from that act.
??
Restatement 2d Torts-Section 21. Assault
(1) An actor is subject to liability to another for assault if
(a) s/he acts intending to cause a harmful or offensive contact with the person
of the other or a third person, or an imminent apprehension of such a contact,
and
(b) the other is thereby put in such imminent apprehension.

ÿ 

 

 

 

1) An actor may relinquish his or her right to be free from harmful or offensive
contacts.
2) McQuiggan treats consent as an element of the tort: Consent prevents the
existence of a tort. The absence of consent is the gist of the action.
3) Consent and withdrawal of consent are inferred from the plaintiffs
manifestations of a willingness to be contacted and giving notice that all such
conduct will no longer be tolerated.
Example: Ñ.%%

"*

'÷  536 A. 2d 137 (Md. Ct. Sp.
App. 1987) "paperclip game-hurt eye"

Apparent consent will be ineffective as a defense if it was induced by
fraudulent concealment of risks or if the consent was mistaken about the
nature and quality of the invasion intended. The result is that there is no
consent.
Example: Hogan v. Tavzel "genital warts" (pg. 52)
 1. In the context of a fist fight as in other contexts, the reasonable appearance
of consent will be the basis for the defense.
2. Apparent consent may also be nullified as a defense if the other exceeds the
boundaries of contact to which the inured person consented.
Example: Richard v. Mangion "boys fight at swing rope"

CONSENT:
Agreement, approval, or permission as to some act or purpose, esp. given
voluntarily by a competent person; legally effective assent. (Assent-
Agreement, approval, or permission, esp. verbal or nonverbal conduct
reasonable interpreted as willingness.)

Consent is an affirmative defense to:

Assault, Battery , Other related torts such as, Defamation, Invasion of privacy,
Conversion, Trespass

Consent may be a defense to a crime if the victim has the capacity to consent
and if the consent negates an element of the crime or thwarts the harm that
the law seeks to prevent.

G èG**/0*G0 -CONSENT THAT IS CLEARLY AND UNMISTAKABLY

STATED.
Ñè¦G
/0*G0 -CONSENT INFERRED FROM ONE¶S CONDUCT
RATHER THAN FROM ONE¶S DIRECT EXPRESSION
0/ÑG
/0*G0 -A person¶s agreement to allow something to happen,
made with full knowledge of the risks involved and the alternatives. Patient¶s
knowing consequences of medical procedure and consents.

ÿ 
 ! 
ÿ! . è!è!c!
c/

èc
cè

1.

   A privilege is similar to that of a self defense in that

it is recognized for the defense of third persons. Example: When a master of
the household defends the members of his family, or his servants from attack.
Most of these cases involve members of the same family defending one
another or the relation of master and servant.
2. The Closest questions concern whether defendant used reasonable force in
the circumstances.

ÿ  
 "
 %0ocÿ!

(1) belligerence of the attacker;
(2) impossibility of a peaceful retreat;
(3) character or reputation of the attacker;
(4) difference in size and strength between the parties; (LARGE)
(5) overt act by the attacker; and
(6) threats of serious bodily harm.
 Example: Slayton v. McDonald "crazy boy get's shot when entering others
home"

1. Deadly force may be used in self-defense by a person threatened with force

inherently dangerous to life.
2. Test for permissible force is objective: fear must be founded on facts likely
to produce similar emotions in reasonable people.
3.A person threatened with deadly force is not obliged to retreat before
resorting to deadly force in self-defense.

  
 1
1. How much force the defendant is entitled to use and then
2. How much force the defendant actually used. The first question is answered
by identifying a level of force proportionate to the harm threatened.


#

 ,2

An Actor may use deadly force if he is ³put in peril of death or serious bodily
harm or ravishment.´

£
?
? 
One may use the same degree of force to protect others as one would be
entitled to use to protect ones self. The proportionality principle applies as
does the objective test for whether force was necessary.

c

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 ÿ
"  3#%

ACT REQUIRMENT
INTENT TO CAUSE DISTRESS
INTEND THAT DISTRESS TO BE SEVERE
ACT MUST BE OUITRAGEOUS

We will also discuss Reckless conduct

There is an Act requirement, that defendant's conduct be extreme and


, which is usually a jury question.

The test for outrageousness is the effect on an ordinary person in that

community with ordinary sensibilities unless defendant has knowledge of
the injured persons peculiar susceptibility to emotional distress.

The actor must c
  to cause distress that is severe.

Plaintiff must prove that he or she actually suffered   emotional

distress.

4    ÿ
   "  3ù%

645 P.2d 292 (Colo. Ct. App. 1982
(1) Defendant¶s conduct must be extreme and outrageous,
which is usually a jury question.
(2) Test for outrageousness is effect on ordinary person with
ordinary sensibilities unless defendant has knowledge of
the injured persons peculiar susceptibility to emotional
distress.
(3) If the defendant is in a position of actual or apparent
authority over the injured person, that is a factor to be
considered when evaluating the outrageousness of the
conduct.
(4) Outrageous conduct may be a single act or a series of
incidents.

     3, Rptr. 2d 540 (Cal. Ct. App. 1998)


 (*)$
5 #ù3$"c'
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6
 '6
Outrageous conduct is so extreme in degree as to go
beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a
civilized society. It must be so extreme that a
recitation of the facts of this case to an average
member of the community would lead him or her to
exclaim . . . Outrageous! The decision rests on what
an average member of the community would think.

  
 ÿ
"  3$%

7  5 ("  3$%8 S.W.3d 607(Tenn. 1999)6 6

Jurisdictions disagree about whether a plaintiff claiming intentional
infliction of severe emotional distress must introduce expert testimony
to prove that he or she actually suffered severe emotional distress. The
court says majority rule is that expert testimony is not required.

There is an Act requirement, that defendant¶s conduct be extreme and

outrageous, which is usually a jury question.

The test for outrageousness is the effect on an ordinary person in that

community with ordinary sensibilities unless defendant has knowledge of
the injured persons peculiar susceptibility to emotional distress. The
actor must Intend to cause distress that is severe* Plaintiff must prove
that he or she actually suffered severe emotional distress.

5  

8oc5

Be regarded as atrocious and utterly intolerable in a civilized society
 Reciting facts would cause average community member to exclaim
outrageous
It is so extreme in degree as to go beyond all possible bounds of decency
What would an average member of community think?

c

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( 
a)The person knows of the risk of harm created by the conduct or know
facts that make that risk obvious to anyone in the persons situation, and
b)The precaution that would eliminate or reduce that risk involves
burdens that are so slight relative to the magnitude of the risk as to
render the persons failure to adopt the precaution a demonstration of the
persons indifference to the risk.

ÿ  !(è (7  c  "  $#%

Conduct is reckless if an actor disregards a substantial probability of
serious harm associated with the actors conduct.

      y, 675 N.E.2d 249 (Ill. App. Ct.
1996)
Transferred Intent for Infliction of Emotional Distress (pg. 85)




  cc ÿ 





 1
1.The tribune's conduct was extreme and outrageous;
2.The tribune either intended its conduct should inflict severe emotional
distress, or knew a high probability existed its conduct would cause
severe emotional distress; and
3.the Tribune's conduct in fact caused severe emotional distress.




#
9*,"#%
Where [outrageous] conduct is directed at a third person, the actor is
subject to liability if he intentionally or recklessly causes severe
emotional
distress
a. to a member of such person¶s immediate family who is present at the
time, whether or not such distress results in bodily harm,
or
b. to any other person who is present at the time, if such distress results
in bodily harm.

 






   

  
 

 
  
 


1
 (a) family members who were present at the time of the defendants
conduct and
(b) non-family members who were present at the time of the defendants
conduct and suffered bodily harm in addition to severe emotional
distress.

The court (clearly) held that Mrs. Green stated a cause of action for
intentional infliction of emotional distress for its actions on December 31
and January 1st - -as they were clear claims for her (barring her from
seeing the son, featuring her private statements in the newspaper). The
court held that the other two incidents could not support
her cause of action for intentional infliction of emotional distress via
transferred intent, as she was not present at the time of the outrageous
conduct. So the only claims that were supported were the ones where she
was actually herself the victim of outrageous behavior.
The court also held that the doctrine of transferred intent would NOT
apply in this case to the other actions, specifically because she was not
present.

  
 

  :(  3ù*. #ù)#"7 


 )---% 6 
 6
Intention for trespass means that the actor must desire or be
substantially certain that his or her act will lead to an invasion of the
others interest in exclusive possession of real property. This intent is the
desire or substantial certainty of being at the place on the land where the
trespass occurred. It is the intent to enter upon the particular piece of
land in question, irrespective of whether the actor knows or should know
that he is not entitled to
enter.

(  ("!)-$ù%6  '6
A trespassers liability is not restricted to foreseeable damages. This result
is
consistent with the rules for assault and battery, where the tortfeasor¶s
liability is based on the interference with the victims interest, the injury
not the harm.

  




 
a)extent and duration of the actors exercise of dominion and control
b) the actors intent to assert a right in fact inconsistent with the others
right of control
c)the actors good faith
d)the extent and duration of the resulting interference with the others
right of control
 e) the harm done to the chattel
f) the inconvenience and expense caused to the other

5
    
 


8oÿ!

Barring owner access
Destroying the chattel
Obtaining possession by fraud
Taking chattel without consent

+ (  (;  6


 


' 

 
(6
The tort of trespass to chattels is designed to protect ones interest in
freedom from another¶s dispossessing or using or intermeddling with
ones personal property.
Dispossession interferes with another¶s possessory interest in the
property by acts such as taking control over the others property.

   
< 


   $,=  .)=-)"ÿ 7 )--*% 6(
6
While a trespass to chattel nominally covers the impairment of the
condition, quality, or value of chattels, the intentional tort of conversion
applies to acts that would otherwise be trespasses but are particularly
serious, ones that so severely interfere with the right of another that the
actor may justly be required to pay the other the full value of the chattel.


 ' 
       0

o ÿÿ c
(1) 

and duration of the actor¶s exercise of dominion and control
(2) ÿ 
>intent to assert a right of control;
(3) ÿ 
> good faith
(4) 

and duration of the resulting interference;
(5)   done to the chattel; and
(6) I     and expense caused to the other.

è 1è 
 è



: 
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5 ##)"7 

)-)=%
An actor who intentionally interferes with another's interest in
possession of land in an emergency in order to prevent harm to the actor
and the actors property is not liable for nominal or punitive damages as a
trespasser might be, but is liable to the possessor of land for all actual
damages caused.

7
 

c3$,è #2#*"c)-$-% 
 Public necessity doctrine: The common law gives those acting on behalf
of the public a privilege to enter private land when exercising reasonable
care in an emergency that protects them from all liability. State statutes,
as in this case, sometimes change this doctrine designating certain
officials who can act with immunity in an emergency and describing
conditions they must meet to
retain their immunity.

ÿ        
 , pg. 66

5    

1. Reasonable but not deadly force may be used to protect an interest in
property from reasonably perceived threat to that interest. From the
concurring opinion.
2. A person in possession of property has a privilege to use reasonable
force if necessary to eject a trespasser.
3. This privilege to eject a trespasser applies only after the possessor has
demanded that the other leave, unless the possessor reasonably believes
such a demand would be useless or too late to prevent substantial harm.

Negligence
A Plaintiff may recover damages if the defendant owed the plaintiff a ÿ</ to
act in a certain way,   ÿ the duty to act to the standard required,
and < ÿ some 7 to the plaintiff.

DUTY
BREACH
CAUSATION
HARM

Approaches to a STANDARD OF CONDUCT

1.)A defendants own sincere judgment;
2.)Reasonable person's conduct; or
3.)Detailed rules for activity.

6 è  6
  

ÿ   ?
 
 è  
  
Negligent conduct is conduct that is worse than the conduct a reasonable
prudent person would do.
A person who does the best that he or she can do may still be negligent, if his
or her conduct is less careful than a reasonable prudent persons conduct
would have been. #0%
Ñ

#

Reasonable prudence depends greatly on the knowledge an actor possesses or
should possess. Opening a crate of nitroglycerine with a mallet can be
 reasonable, if the chemicals dangerous qualities are reasonably unknown to
the actor. #è

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#

è  
1
  

B<PL

  
  
  

The "Learned Hand Test," though not explicitly part of a state's law, may be
useful in estimating the legitimacy of a jury's verdict. It may provide a sensible
method of defining reasonable conduct. #Ñ "
è #

  
 
 è  
  

 ÿ  c 



The reasonable care standard applies in cases that involve dangerous
substances and a specialized instruction requiring something like
extraordinary care is not necessary, since reasonable care in a context of high
danger will require care in proportion to the danger involved. #*! 

Ñ
#$%((

5c ÿ
0o ÿ7è
(a) Foreseeability of harm;
(f) extent of the burden to the defendant and the community of imposing a
duty;
(b) degree of certainty that the victim suffered the harm;
(c) Closeness of connection between defendants conduct and harm (proximate
cause);
(g) availability, cost, and prevalence of insurance.
(d) moral blame attached to defendants conduct;
(e) policy of preventing future harm;

  
!  '@
The party seeking the instruction had not been negligent prior to the
emergency,
The emergency had come about suddenly and without warning, and
Reaction to the emergency was spontaneous without time for reflection.

7  + 
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-Sudden emergency instruction is used in some jurisdictions to
encourage jury to be generous in evaluating conduct of actor who is faced
with a sudden emergency for which the actor has no blame.
-Critics believe the instruction is unwise, but many courts allow it.
-This court declines to overrule a case in which it was used, but urges
future courts to use it sparingly.

 
 B+ ' (

 If an actor's attributes such as attention, perception, intelligence, and
judgment are superior to those of a typical individual, those traits must
be considered in evaluating whether the actor's conduct has been
reasonable.
#

1 
#$%(2

Exerpt from Pediatrics

Snowmobiling is a popular family sport, with annual expenditures over 9
billion. The size and speed of snowmobiles make them potentially
dangerous to children. Pediatric snowmobile related trauma has not
been studied in the US. Nonfatal injuries most often involved ejection
from the snowmobile but striking stationary object was the most
common mechanism in fatal crashes. The review of state legislation
revealed that few age restriction or helmet laws exist. Children as young
as 8 years old may legally operate a snowmobile in some states. Often
restrictions do not apply to snowmobile use on private property, where
43 of pediatric snowmobile related injuries occurred. Head, neck, and
face injuries are common nonfatal injuries and are the most common
cause of death. State legislation often lacks age restrictions on private
property, and laws requiring helmet use are rare.

/
1  

 7  
A child's conduct should be evaluated with a standard that compares it to
conduct of a reasonably careful child of the same age, intelligence,
maturity, training and experience. This rule is withdrawn when a child's
activity is inherently dangerous. #
)

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(A TIME)
Age-same
Training
Intelligence
Maturity
Experience

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1 
:
8
A jury uses its own knowledge of children when it applies the child's
standard of care, but must base its fact finding on evidence that informs
it of the attributes of the particular child whose conduct it must evaluate.
#è 

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#$%

è 7
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For a physically disabled actor, the reasonable person test is applied with
reference to the disability.
 Notes: If you get drunk, then we will ignore it, and use the reasonable
person standard. "physical we take into account, mental we do not take
into account" It would be the reasonable person with that disability.

èè (   1

-Allocate losses between two innocent parties
-Provide incentives to those responsible for [them] to prevent harm
-Remove inducements to fake a disability
-Avoid administrative problems of assessing disabilities
-Forces person to pay if they are to live in the world.

PUBLIC POLICY REASONS For holding the mentally disabled to the same
standard of care: oè    
   
PFARA
1.Provide incentives to those responsible for them to prevent harm
2.Forces persons to pay if they ³are to live in the world.´
3.Allocated losses between two innocent parties
4.Remove inducements to fake a disability
4.Avoid administrative problems of assessing disabilities

Tort law ordinarily makes no allowance, in terms of a standard of care,

for an actors mental disability.

Courts may moderate this rule in particular circumstances, such as a

setting in which the mentally disabled persons opponent ought not to be
owed a duty by the mentally disabled person.

Notes: Mental impairments, sometimes the jury will take a sudden

mental impairment into consideration.

( 
To be reckless, conduct must involve an unreasonable or intentional
disregard of a risk that presents a high degree of probability that
substantial harm will result.

Notes: What kind of harm? What is reckless? They tell us what is

reckless, what is not reckless. Give many examples. Revolver holds 6
bullets, put it to head and click it, 1 in 6 chance, this is reckless because
there a chance of death. When u talk about losing a life it's hard to really
decide.

Notes: A person acts with recklessness in engaging in conduct if:

a)The person knows of the risk of harm created by the conduct or knows
facts that make that risk obvious to anyone in the person's situation, and
b)The precaution that would eliminate or reduce that risk involves
burdens that are so slight relative to the magnitude of the risk as to
 render the person's failure to adopt the precaution a demonstration of
the person's indifference to the risk.

è  1 *)3
è  
  Bÿ 
  
 
Industry custom is considered but not controlling, in professional cases
the industry custom is controlling.

For professional malpractice, custom sets the standard.

If expert testimony can establish the customary or accepted practice
standard in the profession, that standard fully describes the
professional's obligatory level of care.

5  8o5c7è

Work is intellectual and non-routine
Involves consistent exercise of discretion & judgment
Must not be standardized in terms of time
Position acquired by specialized study in school

Testimony about what should have been done, if it advocates deviation

from customary care, cannot overcome the controlling power of custom
(and ought to be treated as not relevant) "Osborne v. Irwin Memorial
Blood Bank"

'
( !
 6
 
  
 

  6
Professionals have a duty to exercise reasonable care.

Reasonable care is determined by comparing an actor's conduct with the

conduct of others similarly situated and with similar professional
training.

The court concludes that these propositions are different from saying that
the professions sets its own standard, since a jury could find that a
standard failed to recognize the state of medical science.

 :('  6

 6

Notes: Court looks at some of the policy. They don't want people to care
for themselves and avoid caring for the people.

The professional standard should be used where it will impose an even

higher standard of care than that of the reasonable prudent person.

The standard should be applied for actors whose callings have

professional obligations, relationships with clients, and freedom from
commercial pressures.
 #-<)2#")#%è  
The work must be predominantly intellectual and non-routine«
Involving the consistent exercise of discretion and judgment
And must not be standardized in terms of time.
The position also must require knowledge customarily acquired by
specialized study in an institution of higher learning.


   è  
  

:   ÿ 
The professional standard has been applied with locality rule, modified
locality rule, and national standard.
The national standard fits modern conditions best.


  7
Notes: Problem with strict - if u have to find an expert witness there may
only be 2 doctors in the little town. One dr. will not want to testify against
the other.
National standard of care- Doctor must be a professional, but under the
same circumstances.
1Strict Locality (page 433)
2Modified Locality Rule (example on page 433)
3National Standard.

Slide: The professional standard has been applied with locality rule,
modified locality rule, and national standard.

The national standard fits modern conditions best.

Geographic Scope of the Professional Standard

The strict locality rule particularly had drawbacks: it was hard to find
neighbor doctors to testify against neighbor doctors, and a small
community might indulge in specially poor practices.

The modified locality rule leads to waste of time and difficult decisions
about which communities are similar to each other.

Modern training makes a national standard appropriate. While applying

that standard, a jury may consider advances in the profession, availability
of facilities, and whether the defendant is a specialist or a general
practitioner.

Strict locality rule: measure the d conduct against dr. in the same
community (all drs. In FW)
Modified locality rule: measures defs conduct against drs. Of similar
localities (arlington, other cities of with same population, technology,
 + '
7
' 
? B 
67 6
Notes: You need expert testimony to prove the professional standard.
Physicians will not always be held to professional standards, when they
are doing normal layperson things, jury will see what is reasonable.

A common knowledge exception withdraws the requirement of expert

testimony about professional standards in some medical malpractice
cases.

Those cases involve gross lack of care, non-complex matters of diagnosis,

and custodial or routine hospital care.

c   

  
 6!  
  '   
 
 

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Slides:
Physicians owe patients a duty of informed consent that mandates
providing patients with information prior to patients agreeing to medical
work.

One view defines the needed information according to a professional

standard; another view asks what information a prudent patient would
want to have.

Causation is an element in these cases, so that whatever standard defines

the required information, a plaintiff who claims injury because of
inadequate information must show that the lack of information caused
the patient to undergo the procedure.

Measure dr.

!5

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 6(  6

(DBCD)
For Negligence you must:
Prove DUTY
PROVE BREECH
CAUSATION
DAMAGES

"IF A PERSON COMMITS A CRIME THEY ARE HELD TO A

DIFFERENT STANDARD"
 c 
 

 '  '

  

   

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Alabama's Supreme Court recognizes this doctrine, but elaborates it to

create a sub category of trespassers to whom a lesser duty is owed. The
subcategory is trespassers who enter the land to commit a crime.

7  
7 è'   6




  ÿ 6
Attractive nuisance doctrine protects some child trespassers from
application of the ordinary limited duty rules applicable to trespasser-
landowner cases.

A child's lack of knowledge of the risk is a crucial element, although the

restatement identifies a group of factors for application of the doctrine.

Swimming pools and ponds are not attractive nuisances??


  ÿ  c    (  6 &   

 6
The unreasonable danger aspect of the attractive nuisance doctrine can
be crucial.
Also, judicial resolution of the scope of danger can preclude application
of the attractive nuisance doctrine that would otherwise have allowed a
jury to evaluate the defendant's conduct.

  c 

 1+   6

 

 ' 6
A land entrant is an licensee if he or she is invited to enter or remain on
the land;
1.?As a member of the public for a purpose for which the land is held open to
the public; or
2.?For a purpose connected with business dealings with the possessor of the
land.

A land entrant is a licensee if he or she is invited in any other way of for

any other purpose. Social guests are usually licensees.

c 
1
Duty owed to invitee is to exercise ordinary care with respect to risks the
land possessor knows or should know with reasonable inspection.

Duty to licensee is ordinary care to warn about or make safe a danger that
the possessor knows and the licensee does not know«. More..

Example:    C  c'  


 
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    c  "ceiling falls on guy"

A land possessor owes invitee a duty to use reasonable care to protect an
invitee against an unreasonable risk of harm that the possessor ( '
 ( ' 

Notes: The "possessor" has a duty to warn of any forseeable dangers in

the home? When u have someone coming into ur home you may have a
release or waiver to release u from any accidents that occur, or forcing
them to pay for anything that they ruin in your home.
Duty - land possessors, special relationships like employee/employer, inn
keepers, duty is modified for professionals, etc...
Breech -
Causation-
Damage-
According to Cordozo you only have a duty if it was forseeable. Says u
have to build reasonable,

 . .

 

  c  6   
  6
To recover in a slip and fall case, a plaintiff must do more than show that
a hazard was on the floor of a defendant's premises. The plaintiff must
show that the hazard was unreasonable. This requires a finding that the
hazard was known or reasonably knowable to the defendant.

The constructive notice doctrine allows a plaintiff to satisfy the

reasonably knowable element with circumstantial evidence about the
hazard itself (supporting a finding that the hazard was on the floor for a
significant period of time)

The mode of operation doctrine allows a plaintiff to satisfy that element

with evidence showing the overall nature of the defendants enterprise
(supporting a finding that hazards are always likely to be on the floor.

Knew or should have known. We are going to look at the lapse of times,
how long were the items on the floor, and how long did the def. have to
move or clean the items.

!   !ÿ  
:  :.ÿc  6  ' 6
Land occupiers ordinarily have no duties with regard to natural
accumulations of snow or water. Also, in many jurisdictions, land
occupiers are free from obligations with regard to open and obvious
hazards.

   
 è


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   ( 

6
Landowners and occupiers owe a duty to invitees to protect them from
foreseeable criminal conduct by third parties. Courts use different tests
for defining the foreseeability required for this duty;   
 
 


 
  



 
  


    
1.?Undisclosed dangerous conditions known to lessor and unknown to lessee
2.?Conditions dangers to persons outside the premises present at time of
lease
3.?Premises leased for admission of the public.
4.?Parts of premises retained in lessors control.
5.?Instances where lessor contracts to repair.
6.?Instances of lessor's negligence in making repairs.

Landlords generally are immune from liability to tenants and tenants
guests for injuries related to dangerous conditions on the leased
premises, although a number of exceptions limit the immunity.

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Battery (single or double)
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The trespasser licensee invitee system has been hard to administer and
does not seem to provide fair results in cases involving legal entrants on
land.

The trichotomy is rejected and a two category system is adopted, treating

entrants in two classes; legal entrants and non legal entrants.

A duty of reasonable care is owed to legal entrants.


    . 
ÿ
 

'
  7
 Some jurisdiction like this one have eliminated the traditional landlord
immunity in landlord tenant suits and replaced it with a general duty of
reasonable care owed by landlords to tenants.

Slides:
A land entrant is an invitee if he or she is invited to enter or remain on
the land:
1.?As a member of the public for a purpose for which the land is held open to
the public; or
2.?For a purpose connected with business dealing with the possessor of the
land.

A land entrant is a licensee is he or she is invited in any other way or for
any other purposes. Social guests are usually licensees.

Duty a landowner owes to a
  is to refrain from intentional or

wanton injurious conduct.

Duty a landowner owes an  
 is to exercise ordinary care with

respect to risks the land possessor knows or should know with reasonable
inspection.

Duty a landowner owes a licensee is ordinary care to warn about or make

safe a danger that the possessor knows and the licensee does not know.

The trespasser-licensee-invitee system has become difficult to administer

and does not always provide fair results in cases involving legal entrants
on land.

The trichotomy has been rejected by courts and legislatures in many

jurisdictions, and a two-category system is usually adopted, treating
entrants in two classes: legal entrants and non-legal entrants.

A duty of reasonable care is owed to legal entrants.


Landlords generally are immune from liability to tenants and tenants
guests for injuries related to dangerous conditions on the leased
premises, although a number of exceptions limit the immunity.
1.?Undisclosed dangerous conditions known to lessor and unknown to lessee.
2.?Conditions dangers to persons outside the premises present at time of
lease.
3.?Premises leased for admission of the public.
4.?Parts of premises retained in lessor's control.
5.?Instances where lessor contracts to repair.
6.?Instances of lessor's negligence in making repairs.


      
0o5èè

 (1) Failure to disclose a dangerous condition known to the lessor and unknown
to the lessee;
(2) where lessor contracts to repair;
(3) premises is leased for admission of the public;
(4) parts of land retained in lessor¶s control;
(5) Existence of dangerous conditions to persons outside the leased premises
on the premises at the time of the lease;
(6) negligence by lessor in making repairs.


 ÿ

ÿ

   

1

  
.ÿ
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  1No duty to rescue (there are some exceptions.

   
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An individual has no duty to rescue or offer first aid to another
individual, but his general rule is subject to exceptions for innkeepers,
common carriers, and others who invite the public onto their land. Def.
covered by the exception must use reasonable care to aid a sick injured
individual.

Notes: Dr. could have a duty if they were a patient, if they caused the
accident, just because it is moral does not mean that u have to.




1
 
 
Alabama Code 6-5-332 (2002)
Liability of physician, dentist, nurse, or emergency medical technician for
rendering emergency care.

Mississippi Code 1972 Annotated 73-25-37 (1972)

Each statue is intended to provide that a person who is within its
coverage has limited liability for acts or omissions in rendering first air or
emergency care.

The Mississippi statute would apply to any person who gives emergency
aid. The Alabama statute has a long list of people covered but does not
have a phrase like or any other person as the Mississippi statute does.

 ÿ
0oc "(

88%
Severity of risks
Balance of social interest involved
Burden on Defendant
Relationship with parties
Inability of plaintiff to protect himself
Likelihood of occurrence
Foreseeability of harm
 Ability to comply with duty
Cost of providing protection
Economic benefit to defendant




1
 
 '



Differences among statutes. The Minnesota and Rhode Island statutes
apply to one who is at the scene of an emergency. The vermont and
wisconsin statutes apply when one has knowledge of another's peril,
regardless of how one acquires that knowledge. The descriptions of
required conduct provided in these statutes are quite similar. They
require reasonable assistance, and withdraw that requirement if the
bystander would be placed in personal danger by providing that
assistance.

In some states there are duties to exist. Or an actual duty to rescue.

Most jurisdictions are not doing this.

!
 
 
7   A(7
  
One who creates a situation of peril has a duty to an individual who
attempts to rescue in response to that situation. Normal proximate cause
rules apply in an action brought by a rescuer.
??
 


1.?The defendant was negligent to the person rescued, and such negligence
caused the peril
2.?The peril or appearance of peril was imminent
3.?A reasonably prudent person would have concluded such peril or
appearance of peril existed
4.?The rescuer acted with reasonable care in effectuating the rescue.

5   80oÿè

Defendant was negligent to the person rescued and such negligence
caused the peril
Acting of reasonable care by the rescuer
Peril or appearance of peril was imminent
Reasonably prudent person would have concluded that the peril or
appearance of peril existed

7 ÿ
5
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The firefighter rule bars professional rescuers like police or firefighters
from negligence based recovery against those whose negligent conduct
creates an occasion for their work.

è 

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When a mental health care professional identifies or should identify a
specific and immediate threat to a third party from the professionals
patient, the professional must exercise reasonable care to protect that
third party with a warning.

ÿ
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A parent is under a duty to exercise reasonable care so to control his
minor child as to prevent it from intentionally harming others or from so
conducting itself as to create an unreasonable risk of bodily harm to
them, if the parent
(a) knows or has reason to know that he has the ability to control his
child, and
(b) knows or should know of the necessity and opportunity for
exercising such control.

ÿ
7
 

 
 
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A master is under a duty to exercise reasonable care so to control his
servant while acting outside the scope of his employment as to prevent
him from intentionally harming others or from so conducting himself as
to create an unreasonable risk of bodily harm to them, if
(a) the servant
(i) is upon the premises in possession of the master or upon
which the servant is privileged to enter only as his servant, or
(ii) is using a chattel of the master, and

(b) the master

(i) knows or has reason to know that he has the ability to
control his servant, and
(ii) knows or should know of the necessity and opportunity for
exercising such control.

ÿ
     



 


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If the actor permits a third person to use land or chattels in his
possession otherwise than as a servant, he is, if present, under a duty to
exercise reasonable care so to control the conduct of the third person as
to prevent him from intentionally harming others or from so conducting
himself as to create an unreasonable risk of bodily harm to them, if the
actor
(a) knows or has reason to know that he has the ability to
control the third person, and
(b) knows or should know of the necessity and
opportunity for exercising such control.

ÿ
è ' 
  6(7
 

 6
 Physician who should have known patient had disease that is found in
geographic clusters had duty to warn patients family that they might be at
risk of contracting the same disease.

Physicians may be liable to persons infected by a patient, if the physician

negligently fails to diagnose a contagious disease, or having diagnosed
the illness, fails to warn family members or others who are foreseeable at
risk of exposure.

ÿ

  


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 886
1.?Negligent conduct by def.
2.?Some impact on the plaintiff due to the defendants negligent conduct
3.?Emotional distress suffered by the plaintiff
4.?Physical manifestations of the plaintiffs emotional distress.

The court compares the impact rule and zone of danger rules for
negligent infliction of emotional distress cases. It selects the zone of
danger rule.

c 
1
a.? Since fright alone does not give rise to a cause of action, the
consequences of fright will not give rise to a cause of action
b.? The physical consequences of fright are too remote and that the
requisite causal connection is unprovable.
c.? Public policy and expediency demand that there be no recovery for
the physical consequences of fright in the absence of a
contemporaneous physical injury ( fright is subjectgive, so it is too
easy to disprove thus it is a Pandora's Box)

4 ÿ  1
a.? Where negligence proximately caused fright, in one within the
immediate area of physical danger from that negligence, which in
turn produced physical consequences such as would be elements of
damage if a bodily injury has been suffered, the injured party is
entitled to recover.


   è
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Bystander Recovery allows an individual a cause of action for emotional
distress caused by seeing a person seriously injured by a defendants
negligence, even if the individual was outside the zone of danger created
by the defendants negligence, if the individual.
Sees the injury
At the scene
Close familiar relationship with the seriously injured person
 Example: kid sees his sister get run over by the garbage truck
"fiancee could not sue"
"dog gets shot does not count, it is property"

In Texas no IED alone, must be Tort along with that.


7    
Majority Rule: A plaintiff who suffers economic harm related to a
defendants negligent conduct but who is free from physical impact to self
or property related to that conduct has no cause of action for the
economic harm.


 
 
  0
  

 o
Plaintiff particularly foreseeable in terms of:
Type of person
Approximate member in the class
Certainty of their presence
Type of economic expectations that would be disrupted

Example: Wall falls down building on 55th Avenue in Madison Gourmet

"building falling"

Minority Rule: Mere economic loss claim may be actionable where the
plaintiff was particularly foreseeable in terms of type of person, certainty
of their presence, approximate numbers of those in the class, and type of
economic expectations that would be disrupted.

Example : an evacuation of a business leads to loss. People Express

Airlines Inc. v. Consolidated Rail Corp. "evacuation leads to loss"

5  è   5  
5  

) 5     -when a failed sterilization procedure leads to
the birth of a normal child.
# 5  
- Parents claim that they would have aborted the
pregnancy if they had received accurate genetic or diagnostic
information.
ù 5  - An action by a child who is born with birth defects.
4.Medical malpractice principles support a mother's recovery for unusual
expenses related to the support of a child born with birth defects, where
def. negligence prevented the mother from terminating the pregnancy.
2 


   affect when a person can recover and what
damages are recoverable.
6.These principles may cause physicians to be overly cautious and order
tests that are not necessary to protect themselves.
è  
 ( 
a.?Primary assumption of risk means that a defendant either owed no duty or
did not breach any duty because the risks were obvious to the plaintiff
could have chosen to avoid the risks by not participating in the activity or
the risks are inherent risks of an activity that can not be eliminated with
reasonable care.

   ' (
6(   



 
 
6
A statute that bars liability for injuries caused by an inherent risk of
skiing applies to risks that are desired by participants and risks that
cannot be eliminated with reasonable care.

A no-duty rule applies to operators of baseball facilities for inherent risks

associated with operating such a facility.
Example: Baseball


 
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Notes: But for is a very minimal test, such as in the baby being born early
because of the shunt. This case would pass the but for test. But for the
accident, no shunt, but for the shunt, no baby born early. What is the
limit to forseeability? This case adds to Palsgraf.

"Duty is typically limited to those types of plaintiffs and types of harms

reasonably foreseeable to a person in the defendant's position at the time
of the defendant's negligent conduct."

ÿ ?
?
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 ?  ?
?!  ? ?
   !??
"Generally, one person has no duty to aid or protect another. One
exception: a duty may arise if there is a special relationship between the
parties based on one person entrusting himself to the control and
protection of the other with a consequent loss of control to protect
himself."

Examples of Special Relationship (employer-employee, inn keeper-
guests, landlord-tenant, common carriers (planes, trains, automobiles,
boats), parent-child) there was no special relationship when he did not
pay.

One has some control over the safety of others. CONTROL is something
that we look for.
 Example of Cowboys Stadium and the basketball game. Cowboys you
would be paying to be there, basketball game you would not have to pay,
and there would not be control. If u paid money if you want to leave you
may not be able to come back, in this free event you could come and go as
you pleased.

No duty to help others but there are exceptions. A duty may be found if
there is a special relationship between the plaintiff and the defendant.

Duty to warn is good, but if you go out the back door, the movie theater
can't do anything to warn you.

  6
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& 
   
 DD6" #ùù%
Dram Shop statutes impose a duty on commercial vendors of alcohol to
third parties injured by intoxicated patrons, but states are split on
whether such a duty should be imposed on social hosts. The court in this
case finds imposition of such a duty unrealistic and impractical.

Notes: In Texas they limit the duty of care to the experts. Social host may
have a moral duty but no legal duty.

7& 
- Texas Rules: no social host liability)

7  
-Social host liability

ÿ  


  a duty on commercial vendors of alcohol

to third parties injured by intoxicated patrons, but states are split on
whether such a duty should be imposed on social hosts. The court in this
case finds imposition of such a duty unrealistic and impractical.

? 

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Exclusive civil remedy for damages in accident involving vehicle resulting
from negligent provision of alcoholic beverages by social host to person of
legal age.
a.? This act shall be the exclusive civil remedy for personal injury or
property damage resulting from the negligent provision of alcoholic
beverages by a social host to a person who has attained the legal age
to purchase and consume alcohol.
b.? A person who sustains boidly injury or injury to real or personal
property as a result of the negligent provision of alcoholic beverages
by a social host to a person who has attained the legal age to
purchase and consume alcoholic beverages may recover damages
from a social host only if:

1.?The social host willfully and knowingly provided alcoholic beverages

either:
 a.? To a person who was visibly intoxicated in the social hosts presence
or
b.? To a person who was visibly intoxicated under circumstances
manifesting reckless disregard of the consequences as affecting the
life or property of another, and

2.?The social host provided alcoholic beverages to the visibly intoxicated

person under circumstances which created an unreasonable risk of
foreseeable harm to the life or property of another, and the social host
failed to to exercise reasonable care and diligence to avoid the foreseeable
risk and
3.?The injury arose out of an accident caused by the negligent operation of a
vehicle by the visibly intoxicated person who was provided alcoholic
beverages by a social host.

   
 7
 
6

 

(     
6
1)Foreseeability of harm
2)Degree of certainty that the victim suffered the harm
3)Closeness of connection between defendants conduct and harm
(proximate cause),
4)Moral blame attached to defendant's conduct,
5)The policy of preventing future harm,
6)The extent of the burden to the defendant and the community of
imposing a duty, and,
7)Availability, cost, and prevalence of insurance.

When there is no precedent for imposing a duty on an actor, often

because a victim has a novel factual theory, courts consider a variety of
factors to decide whether it is sensible public policy to impose a duty.

è   
Defendant's conduct did not rise to the level of standard required and
Defendant did not act reasonably.

:
 



7
   A6
6
An unexcused violation of statute (a breach of a statutory duty) is
considered equal to negligence ("n") Negligence per se establishes the
duty and breach in a cause of action in negligence. The court reminds
that causation must still be proved.

Notes: Negligence per se does not mean you win, it is only a starting
point.
Example of Negligence per se no good in this case. Page 139. Guy dies in
the indoor swimming pool. Family sues hotel. Hotel is not held liable
 because even if they had CPR guy there, they don't really know how the
guy died.

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-For negligence per se to apply, the proponent must show that he or she
is a member of the class the statute was meant to protect and that the
harm suffered is the kind of harm the statue was meant to avoid.
-Proponent must establish that the statute actually was violated.
- "Negligence per se" They failed to meet the standard when they did not
put out the flashing lights, or other devices to warn others.

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1.?The defendant violated the particular statute
2.?The statute was enacted to protect a specific class of persons
3.?The plaintiff is a member of that class
4.?The plaintiffs injury is of the sort the statute was enacted to prevent and
5.?The statute was intended to regulate members of defendant's class.

5' 7
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Unless legislation was intended to prevent the type of harm that
occurred, proof of statutory violation has no relevance in a tort case.

(  5 A!#===
1)The procedural effect of proof of violation of a statute may depend on
the jurisdictions choice among three possibilities: conclusive proof of
negligence, proof of negligence that may be negated by excuse
(negligence per se), or merely some evidence of negligence
2)Where negligence per se treatment is appropriate, reasonable
ignorance of a statutory violation is recognized as an excuse.

Type of No excuse evidence Some excuse

Jurisdictions offered evidence
offered
Some Case may go to jury; Case may go
Evidence jury may find to jury; jury
negligence may find
negligence
Prima Facie Case must go to jury; Case must go
jury may find to jury; jury
negligence, or in may find
rebuttable negligence
presumption
jurisdictions, jury must
 find negligence
Negligence Case must go to jury; Case must go
per se jury must find to jury; jury
negligence may find
negligence.

Negligence per se: The statute must be designed to protect against the
kind of harm which occurred.

Prima Facie: The establishment of a legally required rebuttable

presumption. 2. A party's production of enough evidence to allow the
fact-trier to infer the fact at issue and rule in the party's favor.

Rebuttal: In court contradiction of an adverse party's evidence. 2. The

time given to a party to present contradictory evidence or arguments.

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Proof of compliance with industry custom is relevant to the question of
reasonableness of conduct, but is not controlling on that issue.

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"industry custom - kid got hurt on monkey bars at school"
"school monkey-ing with the monkey bars"

A safety code adopted by an industry group is admissible evidence that

can support expert testimony about the proper standard of care.

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A company's own rules or policies show the standard of care the actor has
chosen to impose on itself. Those rules or policies may represent care
greater than a reasonable care standard would require. Violation of one's
own safety standards is not necessarily equivalent to a violation of the
reasonable person standard.

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1)The type of injury was usually associated with negligence,
2)The defendant had exclusive control of whatever caused the injury,
3)The plaintiff had made not causal contribution to the harm, and
4)The defendant's access to information about the event was superior to
the plaintiffs.
(we use this when we do not know the facts. We are not sure what
happened so we use Res Ipsa Loquitur)
   6 

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6
It can't be proven but barrels are usually not dropped out of a window
unless someone was negligent in handling barrels.

Proof that an injury occurred in circumstances that make it very likely

that it was caused by a def. negligence can be treated as equivalent to
proof that a def. was negligent.

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6
a)The exclusive control element of the res ipsa loquitur doctrine can be
satisfied even if the def. is not in control of the injury causing
instrumentality at the time of injury, so long as the def. was in control of
it at a time when negligence related to the injury was likely to have taken
place.

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Courts may refuse to allow a res ipsa instruction where a plaintiff has a
factual theory of what the defendant did that was negligent and offers
evidence to prove the defendant was negligent in some particular way.

Expert inferred, in Dover he said pretty much what happened.


1 


 

Legal Cause: Cause in Fact

Negligence: Duty
Breach
Causation
a. cause in fact + Proximate Cause = Legal Cause
Harm and Damage

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We need Preponderance not Beyond a reasonable doubt!
Must be the accident caused by the negligence. You can have a zillion
causes in fact. There can also be more than one proximate cause or legal
cause.
 1)Plaintiff must prove, by a preponderance of the evidence, that the
defendants negligence was a cause in fact of the plaintiffs harm.
2)There may be more than one cause in fact here, both the defendants
negligence and the plaintiffs negligence were causes in fact.
3)Cause in fact means that the harm would not have occurred but for the
act in question, here, no harm if the railing had been higher
4)Where specific evidence is lacking, cause in fact may be inferred by
considering the likely ways the harm could have come about, the
likelihood of each course of events, and the role the act in question
played in each.

Here, the harm may have been caused by:

1.Suicide
2.the intentional act of a third party
3.being hit by a vehicle, or
4.accident

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Expert said either way, negligent or not, she would have still been hurt.
That's why it was not cause in fact. But-for-causation-test is really easy to
find.

Even if an actor was negligent, his or her act must separately be proved to
be a cause-in-fact.

7
 
 current tortfeasors, each sufficient to cause

the harm;

 

  
tortfeasors, plaintiff cannot
determine which caused the harm; and
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tortfeasors, each of whom contributed
inseparably to the plaintiffs harm.


 



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"Old doctrine" With the doctrine of But For test does not work, you will
have to see if there is an alternative that works.

1)Where the acts of two concurrent tortfeasors combine to produce a

harm to another and either act would have been sufficient to produce the
harm, the burden is on each tortfeasor to show that its act was not a legal
cause of the harm.

2)A tortfeasor in such a circumstance may show that its act was not a
legal cause by proving:
 a.? That the other contributing cause was not the result of a tortious act
or
b.? That the other's act created a force so much greater than the
tortgeasor's act that the torfeasor's act was not a cause of the harm.

Know if it was act of god, u can show that it was not the cause in fact




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If two forces are operating to cause the injury, one because of the
defendant's negligence, and the other not, and each force by itself is
sufficient to cause the injury. Then the defendant's negligence may be
found to be a substantial factor in bringing about the harm.

Look for More Likely than not rather than beyond a reasonable doubt.

When the acts of two or more, You can use but for test when there are
two negligent parties. It can happen.

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When the acts of two or more tortfeasors combine to produce a harm to
another and either act alone would have been sufficient to produce the
harm, each defendant may be found to have been a legal cause of the
harm if its act was a substantial factor in producing the harm.

The substantial factor test includes an evaluation of the number of factors

that contributed to producing the harm and the extent of the
contribution of each in a comparison of the relative importance of
multiple but for causes.

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Multiple sufficient causes
Substantial factor
Concert of action
Alternative Liability
Modified Alternative Liability(Market Share)

 

 
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a)does a tortious act in concert with the other or pursuant to a common
design with him, or
 b)knows that the other's conduct constitutes a breach of duty and gives
substantial assistance or encouragement to the other so to conduct
himself, or
c)gives substantial assistance to the other in accomplishing a tortious
result and his own conduct, separately considered, constitutes a breach
of duty to the third person.

For harm resulting to a third person from the tortious conduct of

another, one is subject to liability if

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1)Nature of the wrongful act. (if he bought the beer, )
2)The kind and amount of assistance
3)Relation of the parties
4)Presence or Absence of the Defendant
5)Defendants state of mind

 

 

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  !??Can't hold someone responsible if they don't have a duty.
Under the concerted action theory, an actor may be liable for the harm
caused by another if he:
a)does a tortious act in concert with the other or pursuantto a common
design with him or
b)knows that the other's conduct constitutes a breach of duty and gives
substantial assistance or encouragement to the other so to conduct
himself or
c)gives substantial assistance to the other in accomplishing a tortious
result and his own conduct separately considered, constitutes a breach of
duty to the third person.

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concurrent tortfeasors breach duties to the plaintiff
only one caused the harm and plaintiff cannot determine which one
each of the defendants created a substantially similar risk of harm
all of the tortfeasors who might have caused the harm are being sued by
the plaintiff

Where   of two independent, concurrent tortfeasors who

breached a duty to the plaintiff injured the plaintiff, but the plaintiff,
through no fault of his or her own cannot determine which one caused
the injury, the burden shifts to each defendant to prove it was not the
cause.

Jointly liable- both responsible for 100 percent. (many will be
responsible for 100 percent of plaintiffs loss).

Separately liable - held to your part of the damages



 



a)Concurrent tortfeasors breach duties to the plaintiff, and
b)Only one caused the harms and plaintiff cannot determine which one,
c)Each of the defendants created a substantially similar risk of harm.
Implicit in the third element is a requirement sometimes broken out a
fourth element,
d)All of the tortfeasors who might have caused the harm are being sued
by the plaintiff.

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For the alternative liability theory to apply,
1)All of the concurrent tort feasors whose conduct might have injured the
plaintiff must be joined in the action and
2)All must preset a similar risk of harm to the plaintiff.

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Difference with this case was that there were many def. and could not get
them all in court. They limited liability to those who marketed toward
pregnant woman. This was Not concerted action, because they were not
all planning this.
 1)Modified alternative liability loosens the requirement that all
wrongdoers must be before the court. States vary in how many must be
present; some require a majority, some require a substantial number.
2)Modified alternative liability loosens the requirement that all of the
wrongdoers breached a duty to the plaintiff.
3)Each def. is severally liable only for its market share or, for the portion
of the total risk that is created, rather than being jointly and severally
liable.
4)States vary in how market share is determined; some refer to national
market share while other attempt to determine the share of the market
that served the plaintiffs areas (such as plaintiffs state).

7
 



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1)Injury caused by fungible product made by all defendants,

2)Injury due to unreasonably dangerous product design,
3)Inability to identify specific manufacturer
4)Joining substantial proportion of relevant manufacturers, the fungible
products requirement reflects the equitable basis of imposing liability
based on market share when all manufacturers products created the
same risk.


 7
 

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(a) injury or illness occasioned by a fungible product
(b) injury or illness due to a design hazard
(c) inability to identify the specific manufacturer
(d) joinder of enough of the manufacturers


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1)Where malpractice reduces the chances of full recovery, states adopt
one of two rules for deciding how great the loss must be:
a)The plaintiff must prove by a preponderance of the evidence that he or
she was deprived of at least 51% chance of a more favorable outcome.
b)the plaintiff must prove by a preponderance of the evidence that he or
she was deprived of a substantial possibility of a more favorable
outcome.
2)States have adopted one of two rules for deciding how damages for
such a loss are calculated.
a)under the all-or-nothing rule, the plaintiff recovers full damages and
b)Under the percentage recovery rule, the plaintiff recovers damages
reduced to reflect the reduction in the probability of a more favorable
outcome.

This is a loss of opportunity.


 
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Most court apportion damages by valuing the chance of a better result as
a percentage of the value of the loss.

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Plaintiff can be awarded compensation for an increased chance of future
adverse consequences, as for decreased chance of recovery.

 

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Cause in Fact ("But-For" or and "Alternative")
And Proximate Cause
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Slide1:
1.?Even if an actor is negligent to another and even if the actor's negligent
conduct was a cause-in-fact of the plaintiff's harm, the actor is not liable
to a plaintiff unless the actor had a duty to the plaintiff.

An actor has a duty to a person if it is reasonably foreseeable that the

actors conduct would harm people in that persons position.
 Because there was no duty, there was no liability.

Causation was, therefore, not an issue in this case.

2.?The existence of a duty is a question of law.

3.?While harm to people in the plaintiff's situation must be foreseeable for
there to be a duty, the particular method by which the harm arose need
not be foreseeable.

Slide2:
Dissent:
Even if an actor is negligent to another and even if the actors negligent
conduct was a cause in fact of the plaintiffs harm, the actor is not liable
to a plaintiff unless the conduct was a proximate cause of the plaintiffs
harm, which is determined by a multi-factor test.

Slide 3:

1.?Was the act a "but-for" cause of the harm?

2.?Was there a natural and continuous sequence between cause and effect?
3.?Was the act a substantial factor in producing the harm?
4.?Was the harm a direct result of the act without too many intervening
causes?
5.?Was the effect of cause on the result too attenuated?
6.?Was the act likely to produce such a result?
7.?By the exercise of prudent foresight, could the result be foreseen?
8.?Was the result too remote from the harm in time so that intervening
causes are more likely to have affected the result?
9.?Was the result too remote from the harm in space so that intervening
causes are more likely to have affected the result

Slide 4:
Conflicting factual inferences on which the question of duty is based are
for the jury to decide, but the ultimate question of whether there is a
duty, given those facts, is a question of law for the court.

Notes in Class:
conduct was a prox. Cause
Multifactor Test was looked at.
Mcgrath: "You must establish a but for cause before looking at proximate
cause"
There was 9 relevant considerations when looking at this case.
Palsgraf: "Nothing bizzare, very clear of why we try to limit liability, on
whether there is a duty. General way to prove duty is the forseeability"
Exam: is there negligence? U must go through all the steps. Don't just
say no negligence. Work through all of the elements. DISCUSS all of the
elements«
è 

"a proximate cause is one which in natural and continuous sequence,
unbroken by any efficient intervening cause produces the injury and
without which the result would not have occurred"

The 


treates a defendants conduct that is a cause in fact

of a plaintiffs harm as a proximate cause if there are no intervening
forces between the defendants act and the plaintiffs harm.

The  

t treats a cause in fact as a proximate cause if the

plaintiffs harm was reasonablyu foreseeable.

The 


 


reats a defendants conduct as a proximate

cause of a plaintiffs harm if the conduct is important enough compared to
other causes of the harm to justify liability.

How do I know which one will be used?

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"But for Test is a crappy test" per McGrath

For the purpose of the proximate cause element, it does not matter
whether the harm was foreseeable. The direct cause test requires only
that the harm was directly traceable to the defendant's conduct rather
than the operation of some independent unrelated cause.

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Crappy "but for test" is met in this case.
There was no direct cause between landlord not providing water and her
burning herself.

Under the direct cause test, the intervention of an independent act will
prevent the defendant's act from being a proximate cause of the plaintiff's
harm.

Direct is usually a very simple test.


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To be a legal cause of a plaintiff's harm, an actor's conduct must be the
cause in fact and a proximate cause.
1)an actor's conduct is a proximate cause of the harm if the harm was
within the scope of the danger created by the defendant's negligence, or,
stated differently, if the harm was a reasonably foreseeable consequence
of the defendant's conduct.
2)it is not necessary that the exact sequence of events that led to the
accident were reasonalby foreseeable only the general type of harm that
resulted.

Negligence in this case was the design of the wall, and it was foreseeable
because it was around a lot of people.

5 
  8Question he asked?

7   è'  6 

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1)Duty is a question of law based on general consideration of whether the
defendant's conduct creates a zone of risk to others.
2)Proximate cause is a question of fact based on a specific question of
whether the defendant's conduct created the foreseeable risk of the harm
that occurred to the type of plaintiff that suffered.
3)Foreseeablity is "genuine foreseeability" or reasonable foreseeability,
not a foreseeable but improbable or freakish event.

(TEST) Problem #3? Shotgun given to kid, but it does not harm her. She
is only harmed by it falling on her toe.
"Must establish cause in fact, but that's not enough. Once you establish
cause in fact with but for test or alternative, then you find proximate
cause. If you are not told what type of jurisdiction, then you must discuss
all of them." He will give us red herrings but we have to look at it closely"

6
 
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6
 


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   6 
6
"the thin skull or eggshell plaintiff rule required def. to take their victims
as they find them.
Damages are not reduced by the fact that the plaintiff had a preexisting
condition making her more susceptible to harm.

Notes: Lady already had issues when the defendant hit her. He does not
have to pay for a back surgery that was already scheduled but he will pay
for whatever he exacerbated because of the accident. Must pay for
damages that were caused. Sometimes you will hit someone that was
already old, and was gonna die anyway but you would only pay them
what they had left? It is not foreseeable but you may still have to pay.
 Shabby millionaire-u see someone walking down the road, all drunk, old,
poor, you may think poor. If u hit him u probably don't think you would
have to pay a lot. He may be a shabby millionaire.

6ÿ
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Considering whether to extend liability beyond that which is reasonably
foreseeable, the court holds that where, as here, the damages resulted
from the same physical forces whose existence required the exercise of
greater care than was displayed and were of the same general sort that
was expectable, unforeseeabilty of the exact developments and the extent
of the loss will not limit liability.




 
a.?The number of other factors which contribute with one another in
producing the harm and the extent of the effect which they have in
producing it,
b.?Whether the actor's conduct has created a force or a series of forces that
are in continuous and active operation up to the time of the harm, or has
created a situation harmless unless acted upon by other forces for which
the actor is not responsible, and
c.?Lapse of time.

   ( c     
6 


 6
Slides: Substantial Factor
(a) the number of other factors which contribute with one another in
producing the harm and the extent of the effect which they have in
producing it,
(b) whether the actor's conduct has created a force or a series of forces
that are in continuous and active operation up to the time of the harm, or
has created a situation harmless unless acted upon by other forces for
which the actor is not responsible, and
c)lapse of time.

To decide whether an actors conduct is a proximate cause of another's

harm under the substantial factor test, consider
1.the number of other factors that contributed in producing the harm and
the extent of their effect,
2.whether the actor's conduct has created a force or a series of forces that
are in continuous and active operation up to the time of the harm, or has
created a situation harmless unless acted upon by other forces for which
the actor is not responsible, and
3.lapse of time. Since there can be more than one substantial factor, the
ultimate question is whether the actors conduct is substantial enough,
relative to other causes, to justify the imposition of liability.
 Notes: Substantial factor is an alternative to but for test. Gross failed to
clean her property, started fire, burned front street neighbors property
and vehicles. While taking elevator down property is ruined. But for test
says she is cause in fact of the accident, Direct test says no proximate
cause, Foreseeabilty test shows not foreseeable, Different tests get
different results

    
  6  ''

. 6
1.the substantial factor test focuses on whether the def. conduct
compared with other factors causing the injury was substantial enough to
justify holding the def. liable.
2.there may be many sub. factors and hence, proximate causes
3.the combination of other factors here contributions by other defendants
but potentially other "but for" causes as well may have such a dominant
effect that a particular def. conduct is un-substantial.
4.The restatement second test for substantial factor includes
consideration of the number of other factors which contribute in
producing the harm and the extent of the effect which they have in
producing it.



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Lapse of time;
Other factors that contributed in producing the harm and the extent of
their effect;
Whether the actors conduct has created a force or a series of forces that
are in continuous and active operation up to the time of the harm, or has
created a situation harmless unless acted upon by other forces for which
the actor is not responsible

  ?( 6

6
1.lapse of time between a def. conduct and a plaintiff's harm is a
consideration in determining whether that conduct is a sub. Factor in
producing that harm.
2.if other considerations point to defendant's conduct as being a
substantial Factor, a great lapse in time alone will not prevent that
conduct from being a substantial factor.
Notes:
Restatement on page 270.
"Experience has shown that where a great length of time, etc«" (check
this out)

   

  7
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6

Slide: under this combined substantial factor and foresee-ability

approach, an act is a proximate cause if, first, it was a substantial factor in
 producing the harm and, second, the result harm was reasonably
foreseeable.

Notes: He says the city was negligent in not cleaning ditches. Plaintiff
tried to use eggshell to make city liable. Take the plaintiff as you find him.
In this case we want to see if this drain ditch thing was the proximate
cause. They used two tests to try to determine if there was proximate
cause. Ended up using a combo but they did not do it correctly. Court
says this is a mixed approach.

"read questions carefully to see what standard I should use?"

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Slide: The intervening act of a third party, whether or not an intentional
tort, does not prevent a defendant's conduct from being a legal cause of
plaintiffs harm if the intervening act was reasonably foreseeable.

Notes: Every superseding act must be intervening, also must be

unforeseeable and highly extraordinary.
This was unforeseeable, but another's act will free

7   6

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Slides: States differ on whether an auto owner whose vehicle is stolen
because he or she left the keys in the vehicle will be liable for harms
caused by the intervening act of the thief.

Some courts deny liability altogether while others, including this court,
apply the superseding cause test to see whether the intervening theft
prevents the owner from being liable. Liability will be imposed if the
owners conduct was a substantial factor (proximate cause) and the
intervening act was reasonably foreseeable (no superseding cause).

notes: we want this to be unforeseeable so that cooley won't be liable.

Will it be foreseeable that someone will steal, accident, etc« The court in
this case takes the. Example page 282: dealership and leaving the keys in
the ignition, was this foreseeable. Maybe, there was a higher risks of
thiefs, this would be intervening, not superseding.

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Superseding must be unforeseeable.


 

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Trying to get proximate cause not "but for"
See page 289
 Slides: Adverse consequences of medical treatment, whether negligently
administered or not, are not a superseding cause of the tortious conduct
that gave rise to the treatment if the medical treatment was a normal
consequence of that conduct, reasonable foreseeable within the risk
created by the conduct.

 

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Jury should have had the chance to determine if this was highly
extraordinary.

Slides 1:
Restatement (second) of Torts Section 447
The fact that an intervening act of a third person is negligent in itself or is
done in a negligent manner does not make it a superceding cause of harm
to another which the actor's negligent conduct is a substantial factor in
bringing about, if
1.?The actor at the time of his negligent conduct should have realized that a
third person might so act, or
2.?A reasonable man knowing the situation existing when the act of the third
person was done would not regard it as highly extraordinary that the
third person so acted, or
3.?The intervening act is normal consequence of a situation created by the
actor's conduct and the manner in which it is done is not extraordinarily
negligent.

Slide 2: whether an intervening act is superseding cause is a jury

question.

Testimony must establish that the intervening medical treatment was not
normal., was not foreseeable, or was not within the scope of the risk
created by the original tortious conduct.

Apparently it is not enough to establish that the intervening conduct was

negligent, even highly negligent, insane, or inhumane.

Notes: Intervening
conduct by plaintiffs: generally third person.
Effect upon chain of proximate cause - drunk guy almost kills, someone
tries to resucitate and person dies, then drunk driver still at fault.

Damages must be proved

Compensatory damages
General-noneconomic
 Special-economic
Punitive
Nominal for intentional tort


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General points about damages:
1.?Appellate courts reverse jury findings on damages if jury abused its
discretion.
2.?Basis for awards are individual circumstances of individual plaintiff
3.?Awards in other cases are a general guide, but point (2) is more important
4.?Defendants take plaintiffs as they find them
5.?All courts may reduce jury damage awards (remittitur); some jurisdictions
do not permit courts to raise damages (additur).

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67.76
1.?Survival damages are awarded to the estate of the person whose death is
caused by the tortfeasors act.
2.?Wrongful death damages are awarded to those who depended on the
decedent for emotional or financial support.
3.?Who may recover each heading, the categories of damages for which
recovery is allowed under each heading, and caps on damages under
each heading are all governed by statute because neither type was
recoverable under the common law.

Notes: For test look up next of kin and decedents estate.
Additur - not available in federal courts..def. decides
Remittur - plaintiff decides

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1.?Majority opinion: Some states require medical expert testimony to support
claims for pain and suffering for subjective injuries, injuries with which
the type of pain claimed would not obviously be associated.
2.?Concurring/dissenting opinion: Pain (a jangling of the nerves,
consciousness of ones serious hurt) and suffering (worry or apprehension
concerning extent of injury) are subjective, not easily measured; measure
is the enlightened conscience of impartial jurors.


c   

 6  6
3.?Some states permit per diem arguments for pain and suffering amounts
arguments suggesting that the jury consider a specific dollar amount for a
 unit of time multiplied by the length of time the plaintiff will suffer the
pain. Some states don't allow these arguments at all.
4.?Some states allowing per diem arguments give juries specific cautionary
instructions that the dollar amounts suggested by the attorneys making
these arguments are not evidence and it is up to the jury to decide on the
proper pain and suffering award.

Find pros and cons on page 587.

 ÿ

  (..5 6 &
 
6
1.?In this state, damages for loss of enjoyment of life's pleasures are part of
the pain and suffering award, while in others they are separate; the
majority of states recognize compensation for hedonic damages.
2.?General damages, including hedonic, must be based on evidence specific
to the plaintiff. Most courts take the view that such generalized economic
testimony is not admissible.

 ÿ
7   è 


For all lost wages, the general rule is to compare what the earning
capacity before and after the accident for the remainder of the plaintiffs
working life.

Past wage loss: For wage loss prior to trial, practical approach is look at
work history prior to the accident, project those earnings to the time of
trial, and subtact wages the plaintiff actually earned.

Future wage loss: When figuring lost future wages, the award is, strictly
speaking, based on changes in the plaintiffs earning capacity. In practice,
consider the plaintiffs physical condition before and after injury, past
work record and consistency thereof, amount plaintiff would have earned
absent the injury and the probability that he would have continued to
earn wages over the balance of his working life.

+A('( A
1.?Inflation and lost future wages. This case is about how to take inflation
into account in calculating lost wages. Inflation enters the calculation at
two points:
a.? Adjusting wages from year to year to reflect increases in the cost of
living and likely cost of living wage increases and
b.? Determining what discount rate to use when deciding whether and
how to discount projected lost future wages to their present value.

These two questions are related. If future wages are to be discounted
to their present value (some states do not discount at all), the
 following rule is generally true: if projected wages are increased to
reflect the rate of inflation, a higher discount rate should be used
and it should be higher by the amount of the rate of inflation.
2.?Projected future wages should be increased to reflect the increased
productivity of the wage earner to the same extent that the wage earners
salary would have increased to reflect increased productivity, as long as
the estimates are not too speculative.


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è 
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Punitive damages are appropriate when act was committed with malice,
willfulness, or wanton and reckless disregard of the rights of others, when
the act was wrongful and attended with an insult or other circumstances
of aggravation.

  

1.?Punitive damages are intended to punish and deter.
2.?Punitive damages may be awarded when assault and battery is
accompanied by an element of aggravation such as malice, or oppression,
or gross and willful wrong, or a wanton and reckless disregard of
plaintiffs rights.



 
c      

The constitutionality of punitive damages must be evaluated under
guidelines established in BMW v. Gore:
a.? Degree of reprehensibility of defendant's conduct,
b.? Disparity between actual and punitive damages, and
c.? Comparison and punitive damages awarded and other civil or
criminal penalties that could be imposed for similar misconduct.


 
   

Degree of reprehensibility of defendant¶s conduct
Disparity between actual and punitive damages
Comparison of punitive damages awarded and other civil penalties that
could have been imposed.


&


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1.?The collateral source rule traditionally allowed a plaintiff to recover for
value of medical treatment even if the plaintiffs insurance company had
reimbursed the plaintiff. More generally, a tortfeasor may not reduce the
payment of a tort judgment by amounts of money or services received by
 the injured person from other (collateral) sources. No evidence of those
other payments may be offered in evidence.
2.?Legislation in many states has modified the collateral source rule and
allows some (varying) evidence of collateral benefits to reduce
tortfeasor's liability.

  7
  


Limits on damages may be challenged on constitutional grounds,
including, here, the state constitutional right to jury trial and the federal
constitutional rights to procedural and substantive due process.
3.?Court here finds the jury trial right limited to having the jury find facts,
not apply law such as the damage cap.
4.?With respect to procedural due process, the court finds that the plaintiff
was not denied notice or a reasonable opportunity to be heard.
5.?With respect to substantive due process, court here finds damage cap to be
economic regulation for which only a rational relationship to a legitimate
objective is required and finds that relationship.

+ ' <
Limits on damages may be challenged on constitutional grounds,
including here, the state constitutional right to a jury trial and due
process.
6.?Court here finds the jury trial right includes right to have jury determine
damages and no reason to limit that access to the jury for some plaintiffs
(those with damages above the cap) and not others.
7.?With respect to due process, the court here finds there is no real and
substantial relation between the statutory damage cap and any objective,
questioning whether there was a malpractice insurance crisis and
whether damage caps would make any difference if there was a crisis.


 $1 
 
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1.?A plaintiff is entitled to collect whatever portion of the recoverable
damages the plaintiff wishes from any of the jointly and severally liable
defendants, regardless of their relative degrees of fault,
2.?The doctrine of comparative contribution allows a defendant who has paid
more than its share to recover any overpayment form the other
defendants.

A jurisdiction might favor this joint several liability because


A   7
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c  6

When a plaintiff has collected more from a jointly and severally liable
defendant than that defendants share, that defendant may sue the other
defendants in a contribution action for the excess.
 The amount of each defendants share collectible (or payable) in a
contribution action is based on either a pro tanto share (equal division
per defendant) or, in many jurisdictions that have adopted comparative
negligence, a fraction based on relative degree of fault.

Pro Tanto????
Under old comm. Law, if one person was 1 percent responsible, you could
get all money from that one person and no one else would be sued.
Assumption of risk (mentioned test)

 

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6
 
'
  6
1.Individible harms are those caused by the combined acts of multiple
tortfeasors which cannot be attributed to a particular tortfeasor
2.When a plaintiff suffers indivisible harms, the plaintiff is unable to
meet his or her vurden of proving that a particular tortfeasor is a cause in
fact of a particular harm.
3.To escape liability for indivisible harm, each defendant bears the
burden of showing that its act was not a cause in fact of the harm.
4.Defendants who fail to meet this burden are either jointly and severally
liable or severally liable according to relative degrees of fault, depending
on the jurisdictions approach.

 ( (6'

 
'86

Notes: In this case only one negligent act caused the accident.
Alternative Liability.
Like Summers v. Tice. Only one person did it, we used the alternative
liability to find out negligence, but

Slides:
In cases involving application of exceptions to the cause in fact rules,
such as alternative liability (Summers v. Tice) one modification of joint
and several liability requires liability to be apportioned according to
relative degree of fault.

General points about damages;

1.? Appellate courts reverse jury findings on damages if jury abused its discretion.
2.? Basis for awards are individual circumstances of individual plaintiff.
3.? Awards in other cases are a general guide, but point (@) is more important.
4.? Defe. Take p as they find them
5.? All courts may reduce jury damage awards remittitur; some jurisdiction do not
permit courts to raise damages ____.

 "ÿèÿ%

A 
 to someone
A   of that duty
 
 -cause in fact )but for or an alternative)
And è 
 (substantial factor, foreseeability)
ÿ
ÿ 

ÿ 
 
 
  ' 

è
B
 
5 
 
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 ' "guy goes over the
train track and gets hit"
Notes: be aware that some states still use the contributory negligence
system.

Slide: Under the contributory negligence system, a plaintiff whose own

negligence is a cause of his or her own injury is barred from recovery.
    

 
 


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7   
 

è
B
 

è   
 negligence allows a contributorily negligent
plaintiff to recover some portion of his or her total damages as long as
the defendant's negligence was also a proximate cause of the accident.
The damages will be reduced by whatever percentage the jury assigns to
the plaintiff's negligence. 49% - less than 50

Modified Comparative - neglience has been adopted in two forms. In one

system, a neglient plaintiff is allowed to recover damages only if his or
her negligence is less than that of the defendant or defendants. In other
words, a 49 percent share of responsibility will allow recovery, but a 50
percent share will not. 50% - equally responsible
49% P can recover if it is less that 50 %.
50% Can recover is p is liable 50 or less. It can = def. negligence or be less
than.

Difference between-they want to make sure the plaintiff is less negligent

than the defendant.

7c
  
 
Notes: they looked at rail road, but that was federal law. The court does
not want to make a mistake so they rejected "pure" (where they assign a
percentage of negligence or fault to someone, and they pay that
percentage of estimated damages.

Slide: Contributory negligence has been widely rejected and replaced

with either pure or modified systems of comparative negligence.

ÿ   è'  
  .6

 


 '  6
 B<PL (Burden<potential Loss)??
B=how much would it cost, what is the burden
PL=what would the probability of loss be. (McGrath does not thing this is
good here"

Slide: The relative degrees of negligence of various parties can be

determined using the Learned Hand test to determine the extent to which
each departed from the standard of care.

?   c
 
 
 c  6  6

Notes: Wisconsin rule says plaintiff has to be less negligent than any of
the defendants. They fail to adopt this rule because depending on this
case it might not work. Wisconsin is the minority rule. The negligence of
each defendant is compared to the plaintiff¶s negligence separately.

Unit Rule: The negligence of all def. is taken together in making a

comparison to the plaintiff¶s negligence to determine if a def. is liable.
(Majority Rule): Neg. of all the def. are taken into account.

Slides:
In a multi-party modified comparative negligence case, the outcome may
be affected by choosing to compare the plaintiff's percentage either to the
total of all defendants percentages or to the percentage assigned to each
defendant.

Utah chooses to compare the plaintiff with the total of all defendants
shares using the unit rule and rejecting the individual rule.




#
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If the effects of the actor's negligent conduct actively and continuously
operate to bring about harm to another, the fact that the active and
substantially simultaneous operation of the effects of a third person's
innocent, tortious, or criminal act is also a substantial factor in bringing
about the harm does not protect the actor from liability.

( 

   
Contributory negligence jurisdictions have excused a plaintiffs negligence
in cases where the plaintiff was negligent and the defendant's conduct
was worse than negligent.
'Another doctrine that avoided application of the contributory negligence
bar was

  
 , excusing a plaintiff's
negligence when the plaintiff was in peril, could not escape it, the
defendant knew it, and the defendant acted unreasonably in failing to
avoid the harm.

 
  0èÿ+"! <  

 
 
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Peril from which the plaintiff could not escape
Harm occurred to the plaintiff
Avoidance of the accident by the Defendant
Defendant acted unreasonable or failed to avoid accident
Knowledge by the defendant that the plaintiff could not escape


  

1.?Plaintiff by her own negligence placed herself in a position of peril from
which she could not escape;
2.?Defendant saw, or by the exercise of reasonable care should have seen and
understood, the perilous position of plaintiff;
3.?Defendnat had the time and the means to avoid the accident if defendant
had seen or discovered plaintiff's perilous position;
4.?Defendant failed or refused to use every reasonable menas at her
command to avoid impending injury to plaintiff; and
5.?Plaintiff was injured as a result of defendant's failure or refusal to avoid
impending injury.

ÿ'   < 

 
 

A defendant's liability for willful and wanton misconduct can be reduced
to reflect a plaintiff's ordinary negligence under a comparative fault
system.

Under 

    the plaintiff is entitled to full

recovery.
Under   
   in some jurisdictions "  
% a
plaintiff is entitled to full recovery.
Under   
   in most jurisdictions (& 
%, a
plaintiff is entitled only to whatever recovery the jurisdictions
comparative negligence rules would provide if all parties had been
negligent.


 (0  
 

   



 

 
>   
1.?Endeavor usually thought suitable for public regulation.
2.?Service of great importance or practical necessity.
3.?Activity generally offered to public or to defined limited classes.
4.?Party invoking exculpation controls the bargaining.
5.?Contract is standardized with no opportunity for purchase of protection
against negligence for a reasonable fee.
6.?One who seeks services covered by the release will be under the control of
the furnisher of services.

 
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Exculpatory agreements (releases of future claims) are sometimes valid
contracts, but in certain situations courts will refuse to treat them as
valid.

    , "scuba diving waiver"

Courts will often analyze express assumption of risk cases from a plaintiff
perspective and apply very demanding criteria for effectiveness of a
release.

 
 
'  . èè

(1) endeavor of a type generally thought suitable for public policy;
(2) service of great public importance;
(3) contract is standardized ± no opportunity to purchase insurance
(4) activity generally offered to public or to defined limited class
(5) party invoking labor has control over bargaining
(6) party waiving right is under control and at risk for carelessness by the
other

c 
 
(

   7

Slide:
Plaintiff must have ( ' of the facts constituting a dangerous
condition
Plaintiff must ( 'the condition is dangerous.
Plaintiff must  
 the nature and extent of the danger
Plaintiff must 
 expose him/herself to the danger.

Notes: She was reasonable so not contributory negligent but she did
assume the risk knowing the harm. Difference on page 328.

    
  ( is a voluntary

taking of the risk, "qualified" adds an additional element that the person
was objectively unreasonable in exposing herself to the risk.

If the person was unreasonable either in taking the risk or avoiding the
risk after voluntarily confronting it, that may be both contributory
negligence and secondary implied
Implied assumption of risk requires that a risk is knownm, the danger is
appreciated, and the taking of the risk was voluntary - intentional and
voluntary exposure to a known danger created by the fault of the
defendant.

ÿ 
 

  è

 

Notes: know some states have complete bars to recovery

Conduct manifesting a willingness to assume a risk may be reasonable or

unreasonable depending on circumstances; consistent with the purpose
of comparative fault, all such conduct will be treated in the comparative
system.

(
DD  
Know about Secondary Implied!!!! Only TESTING ON OVERALL
ABOVE.
SEE SQUARE ABOVE.

Secondary implied assumption of the risk. There are four elements. See
square above. This is a defense.

Know difference between Primary and Secondary Implied assumption of

the risk.

Slide 2:
Modified Comparative Negligence
Plaintiff is only allowed to recover if his negligence is 

the defendant
6*-  
 6

Plaintiff is only allowed to recover if his negligence is 
  

 THE DEFENDANT.
62=è 
< 6

Slide 3:
Page 334
"It is contrary to the premise of our comparative fault system to require a
plaintiff who is fifty percent or less at fault to bear all of the costs of the
injury.

We therefore hold that a plaintiff is not barred from recovery by the

doctrine of assumption of risk unless the degree of fault arising there
from is greater than the negligence of the defendant.

Notes:
 The doctrine of secondary implied assumption of risk applies to those
risks created by the def. 334 We care if it is Primary or secondary, we can
get rid of it because of no duty. One has to have duty. Primary = duty,
breach, etc«

7

    
7    6
  

 
 6
Unreasonable failure to mitigate damages can be treated as fault that can
reduce or bar recovery under comparative principles.

+ (    ; c  6
 6

Unreasonable failure to mitigate damages can prevent recovery for any
damages that would have been prevented by mitigation.

'    
6   
  
 
'  



6
Failure to wear a seat belt May be treated as fault, and can thus reduce
recovery of a person injured in a vehicular accident. Minority Rule!!!

Notes:
Other two cases were about mitigating your damages after the accident.
This one was before the accident.

Slides:
Failure to wear a seat belt MAY be treated as fault, and can thus reduce
recovery of a person injured in a vehicular accident. Minority Rule!!!

c 

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6  
 
6
7 


Notes:
Can only sue when they say so.

Slides:
The Federal Tort Claims Act discretionary function exemption applies
when the acts alleged to be negligent:
1.?Are not compelled by statute or regulation and
2.?Involve an element of judgment or choice that is grounded in
consideration of public policy.

Notes:
Remember about the discretional
1.?Gov. is going to protect itself in terms of discretionary functions. Not going
to second guess their employees.
2.?However, if someone not doing their job, the fed. Gov. will have to pay.
 
  
 

 
Slides:
State Immunity: Some states also use the distinction between
operational and planning decisions to identify discretionary functions.

Slide:
Local government units are often immune from tort liability. One
common approach to applying the immunity asks whether the injury was
caused by a governmental or proprietary activity.

One approach to determine a proprietary activity is to examine if it

involves "maintenance or operation of the service being provided," as
opposed to activities undertaken for the common good, or exercises of
power imposed on the municipality.

!
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1" 
 

%

The reasons that justified interspousal immunity are not persuasive in
the 21st century. Parental immunity is a desirable doctrine in some
cases, but a variety of doctrines have developed to limit its applicaction.

c
 c 
1
Interspousal immunity- the reasons that justified interspousal immunity
are not persuasive in the 21st century.
Parental immunity is a desirable doctrine in some cases, but a variety of
doctrines have developed to limit its application.
California New York Tennessee-
Reasonable parent Duty owed to all Parental supervision






 E 1






  
  ' 
 

  


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Slide: Statute of limitations begins to run when the plaintiff reasonably
has notice that someone may have caused injury to the plaintiff.

+  
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6. 66 
 
6

Slide: Fraudulent concealment tolls(stops) a statute of limitations.

  + '
  

  

 The limitations period of a statute of repose may expire prior to the time
an injury occurs.


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c &  
 (    
Common Law Divided animals into two classes, wild and domesticated. It
imposed strict liability for injuries inflicted by wild animals, and imposed
strict liability for injuries inflicted by domestic animals when the owner
knew or should have known that the animal had harmful propensities.

  7 
Owner of a domestic animal will be subject to strict liability for injuries it
inflicts while
  


ÿ  


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High degree of risk.

Inappropriate where carried out.
Harm likely to be great.
Inability to eliminate the risk with reasonable care.
Not a matter of common usage.
Extent that value is outweighed by danger.

For example: Clark Aiken Co. v. Cromwell Wright Co.

The Rylands v. Fletcher innovation, strict liablity for one who brings
something unusual or non-natural onto his or her land that is likely to
cause harm to others if it escapes, is adopted in many American
jurisdictions.
??
+      
Restatement Second) six-factor test for imposition of strict liability can
identify conduct that imposes unusual, non-reciprocal risks. The test is
subject to lots of judgment calls in its actual application.

When something unreasonable happens they may not be liable. Like

someone running into the running building.

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è 
 

 7è   (7
   
Even if the victim of a product related injury had no contractual
relationship with the manufacturer, the victim is entitled to seek damages
for negligence despite the lack of privity between the manufacturer and
the victim.

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6  ÿ 
6
 

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Justice Traynors concurrence posits risk spreading, the calamitous effect
of product injuries on typical individuals, and the imbalance of
information between sellers and buyers as reasons to recognize strict
liability for product related injuries.

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cnjury
ÿefect in design or manufacture
<se of product in intended manner
ausal connection between defect and injury;
Plaintiffs lack of (nowledge of defect.


   / ' 
P states a claim against a man. By showing that he was injured using a
manufacturers product in a way it was intended to be used and was
injured as a result of a defect in design and manufacture that made the
product unsafe for its intended use, if the plaintiff was unaware the
defect.

7 
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A manufacturing defect exists when a particular unit of a product
deviates from its intended design or deviates from other ostensibly
identical units of the same product line.

7 ( è

 

'/ ( 
'?  
 Inference of product defect may b permitted in a strict liability case, where the
type of incident usually is assoc. with a product defect, and was not solely the
result of causes other than product defect existing at the time of its sale or
distribution.

ÿ ÿ
1
6    

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6
7
  !'    B
Consumer expectation tests (outer limits) test treats a design as defective if the
product fails to perform as safely as an ordinary consumer would expect when
used in an intended or reasonably foreseeable manner.

   

 

 

( 


 

  


( 
 
Utility of product.
Likelihood and seriousness of injury.
Availability of safer substitute products
Ability to eliminate danger without impairing utility or raising price too much.
Users ability to avoid danger.
Users awareness of danger.
Feasibility of manufacturers loss spreading.

5      c  
The risk benefit test characterizes a design as defective if its risk outweigh its
benefits. A seven factor analysis can organize application of the risk benefit
test.

Factors under the Risk Benefit Analysis o<<<
 < < 
( <  ' 

1) vailability of safer substitute products

2) easibility of manufacturer¶s loss spreading
3) <tility of Product
4) <ser¶s ability to avoid danger
5) <ser¶s awareness of danger
6) ikelihood and seriousness of injury
7) bility to eliminate danger without impairing utility or raising price too
much

5


 
 

8

ÿ   7
  
A product may satisfy the risk utility test and yet be defective under a
consumer expectation test. A warranty claim might permit recovery where a
strict liability products claim might not.
 
67 
 è 
 
 6

  7
  :  A
Requirement that plaintiff show evidence of a safer alternative design can be
met with an experts opinion testimony about alternative even if the alternative
design has not been tested or been subject to peer review.

5   c 

 

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Manufacturer is required to provide warnings of dangers that are reasonably
foreseeable in light of the intended use of the product.

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All types of plaintiffs negligence in connection with a product related injury
will be treated under comparative fault principles.

ÿ   7
  
Misuse of a product may prevent imposition of design defect liability.

  ('    
Crashes are within the foreseeable uses of motor vehicles. In a
crashworthiness case, one plaintiff shows that the design was a substantial
factor in producing injuries greater than those probably caused by the initial
impact, the defendant has the burden of showing which injuries were
atributable to the initial impact.

  A (  ( 

The plaintiff sought damages on behalf of a young child who was injured in a
fire started by another child's use of a disposable cigarette lighter. The plaintiff
alleged that the lighter was defective because it was not childproof. The trial
court granted summary judgment for the defendant, on the ground that the
defendant had no duty to incorporate features that would increase safety only
for unintended users of the product.

.
  
 
  
 


 
   
 
   
B'

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16 

  
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 + '1GGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGGG


 ± an amount awarded to a complainant to compensate for a

proven injury or loss; damages that repay actual loss

  
 0damages sufficient in amount to indemnify the

injured person for the loss suffered.


 .

è 
 ± Damages awarded in addition to actual damages when the

defendant acted with recklessness, malice or deceit.

5

   8 To deter antisocial behavior

&
 - Get in the mind of the wrongdoer

!&
 - The reasonable person

ÿ

-intend contact plus that the contact be harmful or offensive (to the
dignity of a reasonable person)

ÿ 
 

1A tort involving injury to one¶s reputation or honor. In the few
jurisdictions in which courts use the phrase dignitary tort(such as Maine )
defamation is commonly cited as an example.

1.? Survival damages are awarded to the estate of the person whose death is caused by
the tortfeasors act.
2.? Wrongful death damages are awarded to those who depended on the decedent for
emotional or financial support.

ö
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'
8
-Pain and suffering: per diem calculations in some jurisdictions but are based on
nothing. Two different types one is objective and one is subjective.
Break arm is objective.
Headaches from a knee injury is subjective. Where no physical manifestation
can be seen. Not readily apparent to most jurors. Must be proven by expert.

?
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