Torts Fall 2002/Cupp

TORTS
Tort = a civil wrong, other than a breach of contract, for which the law provides a remedy. - purposes of tort law: 1. to provide peaceful means for adjusting rights of parties who might otherwise take law into their own hands 2. to deter wrongful conduct 3. to encourage socially responsible behavior 4. to restore injured parties to their original condition by compensating them for their injury

I. INTENTIONAL TORTS TO THE PERSON AND TO PROPERTY A. The Meaning of Intent

- INTENT = desire to do an act or substantial certainty that action will result in harmful or offensive conduct - OBJECTIVE STANDARD reasonable person {approach to torts} vs. SUBJECTIVE STANDARD did D act with intent

Garratt v. Dailey {defines intent} 5 year old Dailey pulls chair from under his aunt was there intent by infant to cause harm? did D know with substantial certainty that P would try to sit (=>battery)? act must be done with purpose of causing contact or with knowledge that such contact is certain to be produced Spivey v. Battaglia intentional friendly unsolicited hug => paralysis; not intended to cause harm, but intended to cause contact assault = intent to commit an act, or substantially certain that particular result would follow negligence = knowledge & appreciation of only a risk, unintentional reasonable man in Ds position would not have thought outcome was substantially certain to follow, but D negligent McGuire v. Almy insane person who attacks her nurse is liable for her torts where insane person by his act does intentional damage to person/property of another, he is liable for that damage Talmage v. Smith D throws stick at boys on his roof to scare them down; stick hits a boy D had not even seen and boy loses his eye transferred intent D had the intention to hit & injure one of boys (result); no matter that it happened to another - TRANSFERRED INTENT A intends to harm B but unintentionally harms C As tortious intent towards B applies to C cts want to punish A trespass torts to which transferred intent applies: 1. Battery situations in which transferred intent applies: 1. same tort, different person A shoots gun at B, hits C

2. Assault 3. False Imprisonment 4. Trespass to land (real property) 5. Trespass to chattels (personal property)

2. different tort, same person A shoots B, hits Bs house 3. different tort, different person A shoots B,hits Cs house

B. The Intentional Torts Plaintiffs Case 1. Battery

1. an ACT assertion of will manifested in external world seizure = no will; thoughts of killing = no manifestation 2. with the INTENT to cause a contact with a person which is harmful or offensive, or with the intent to cause the imminent apprehension of such contact intent = desire or substantial certainty - hypersensitivity situation: if you know person will be scared/offended ct will think you are a jerk 3. CAUSING; cause-in-fact Ds act was a cause of harm to P w/out which event would not have occurred; but for proximate cause cause that is not too remote; legally liable; should we allow this action to take place 4. a HARMFUL OR OFFENSIVE CONTACT with the person can result directly or indirectly intentional contacts may result w/anything so connected to body as to be regarded as part of others person *offensively knocking/snatching anything from persons hand or touching anything concerned w/person = battery awareness not necessary; judged by TARP

2. Assault
1. an [overt] ACT; physical act; obvious/open/manifest; words alone are not assault unless accompanied by conduct; high standard 2. with the INTENT to cause a contact with a person which is harmful or offensive, or with the intent to cause the imminent apprehension of such contact intent is same as battery; motive does not matter 3. CAUSING; 4. a reasonable, imminent APPREHENSION of such contact not necessary that D have an actual ability to carry out threatened contact, if victim has apprehension of contact - if someone hits P from behind, P had no apprehension => no assault (but there is battery) imminent = near, at hand, close, impending, threatening, menacing (not future threats) apprehension = expectation, not necessarily fear; must be reasonable assault = unlawful, intentional offer to touch person of another in rude/angry manner under circumstances that create in mind of party a well-founded fear of an imminent battery

3. False Imprisonment
1. an [overt] ACT;

2. with the INTENT to confine within boundaries; desire or substantial certainty of confinement; motive does not matter direct restraint of person of physical liberty 3. CAUSING, 4. the CONFINEMENT of plaintiff within boundaries; 1- physical barrier 2- force or threat of force against a person 3- force or threat of force against property

{one of 3 required}

5. Ps AWARENESS of the confinement [or Ps harm from such confinement] Rest. 42: there is no liability for intentionally confining another person unless person physically restrained knows of confinement at the time or is harmed as result - if only means of escape could cause physical danger to P, and staying imprisoned has no risk, P cannot recover for injuries suffered in making escape - means of escape is not reasonable if P does not know of its existence & it is not apparent false imprisonment - P submitting merely to persuasion, w/out any implied threat of force false imprisonment - D intends to trap man in room & ends up trapping another man false imprisonment (same tort, different person) - like assault, threat of future action is not sufficient for false imprisonment - if P has to humiliate himself to escape false imprisonment Big Town Nursing Home, Inc. v. Newman Parvi v. City of Kingston Hardy v. LaBelles Distributing Co.

4. Intentional Infliction of Emotional Distress (IIED)

1. an extreme & outrageous ACT; conduct must be so extreme/outrageous as to go beyond societal decency bounds, & shock; TARP hypersensitivity if D aware; only allowed in extreme cases; more than mere threats/insults 2. INTENTIONALLY [or recklessly (Rest.)] intent = desire or substantial certainty recklessness = deliberate disregard of high degree of probability that action will lead to severe emotional distress expansion of substantial certainty; less knowledge than substantial certainty, more than negligence 3. CAUSING; there must be causal connection between wrongful conduct & emotional distress *D did not know P was present & witnessing beating (liable if they knew) no intent to cause IIED to P 4. severe emotional DISTRESS some jurisdictions need to have physical manifestation of harm - IIED is junk yard tort: easy to plead, difficult to recover on

5. Trespass to Land
1. an ACT; MOTIVE does not matter

every unauthorized & unlawful entry into close of another is trespass damages for recovery only not tort 2. with the INTENT to enter or remain on land; reasonable MISTAKE re: ownership of land is not defense to trespass to land *intrusion = invasion of property interest; Majority = tangible; Minority = intangible, must do damage trespass = intrusion interferes w/right to exclusive possession of property; invasion must be tangible/physical nuisance = intrusion interferes w/use & enjoyment of property; actual damage; social utility of land = factor 3. CAUSING; 1- cause in fact: factual, scientific causation 2- proximate/legal cause: policy question; in intentional torts, courts often relax restrictions more than negligence 4. the ENTRY or REMAINING on land in which P has a possessory interest by D/3rd person/thing interferes w/ quiet, undisturbed, peaceful enjoyment of P Air: trespass if it 1) enters into immediate reaches of air space next to land, & 2) interferes substantially w/others use & enjoyment of land Below: urban vs. rural jurisdictions - trespass may be committed by the continued presence on the land of a structure/chattel/other thing which actor has placed therein a) w/consent of person then in possession of land if actor fails to remove it after consent has effectively terminated, b) if actor fails to remove it after conferred privilege has terminated by accomplishment of its purpose - ejection: trespass if D is in possession of land and P warns him that he wants him off - quiet title action: P is in possession of land, but D is claiming it as his - possession ownership

6. Trespass to Chattels
1. an ACT;

(little brother of conversion)

2. with INTENT to affect a chattel; chattel = moveable or transferable property, especially personal property not attached to land 3. CAUSING; 4. DAMAGES to a chattel in which plaintiff has a possessory interest or LOSS OF ITS USE for a substantial time or INJURY to plaintiff or a person or thing in which plaintiff has a legally protected interest - there must be a damage or interference or disposition though not as serious *4 yr old P attacked by dog, not engaged in trespass to chattel bc too young to intentionally hurt dog - no harm/damage to dog = no trespass to chattel One who w/out consensual or other privilege to do so, uses or otherwise intentionally intermeddles with a chattel which is in possession of another is liable for trespass to such person if a) chattel is impaired as to its condition/quality/value, b) possessor is deprived of use of chattel for substantial time, c) bodily harm is caused to possessor or 3rd party

7. Conversion
1. an ACT;

(forgotten tort)

2. with the INTENT to exercise dominion or control over a chattel; intent = desire or substantial certainty

exercising dominion/control physical possession not required good faith: stolen (title never passes) vs. fraudulently obtained chattel (can pass title) Bona fide good faith purchaser defense to stolen chattel 3. CAUSING; 4. an INTERFERENCE with the right of the P to control the chattel;

5. and the interference is so serious that the D may be justly required to PAY the P the full value of the chattel. factors considered in determining the seriousness of interference may include the following: a) the Ds exercise of dominion and control for a substantial amount of time; b) substantial harm done to the chattel; c) substantial inconvenience and expense caused to the plaintiff d) the Ds intent to assert a right that defendant knows is inconsistent with the plaintiffs right to control *P lost chattel, D took chattel and converted it to his own use but P not deprived of value of his documents - conversion occurs when one authorized to use chattel uses it in manner exceeding authorization - conversion vs. trespass to chattel conversion is more substantial interference with chattel [Ct: you break it, you buy it] w/intent - act done in good faith will not eliminate liability but lessen seriousness - forgotten bc it is hard to prove

C. Privileges
- even if prima facie elements of tort have been met by P, D may prevent recovery w/defense to cause A. Substantive defense equivalent to saying no; rebuttal of one or more prima facie elements B. Affirmative defenses (arranged in descending order) (yeah, but) it does not matter defense; nah nah nah defense; D has burden of proof; does not require each element

1. Consent

(strongest affirmative defense)

- usually implied by conduct; would TARP think that consent has been offered? - 2 branches: expressed - playing sports implied - more frequent ; objective vs. subjective manifestation of consent (hard to prove) *Ds conduct was lawful and reasonable in light of circumstances, Ps overt acts indicated consent & no objection *- Majority rule: when engaged in anger, consent does not preclude recovery Minority rule: both parties consented to encounter, therefore no recovery for damages

- medical care providers may act in absence of express consent if: a. patient is unable to give consent (intoxicated, unconscious, mentally ill) b. there is a risk of serious bodily harm if treatment is delayed c. a reasonable person would consent to treatment under circumstances d. this patient would consent to treatment under circumstances - Limitations - coerced consent - fraudulently induced consent - mentally retarded persons consent - minors consent account (age, intelligence, experience) - consent is nullified if Ds conduct violated a criminal statute designed to protect certain persons - D tells P he is going to punch him; P just stands there

2. Self-Defense
1. privilege to use reasonable force to defend oneself against an immediate threatened battery 2. retaliation is not a valid self-defense when battery is no longer threatened, privilege terminates 3. reasonable belief (reasonable mistake) privilege when person reasonably believes that force is necessary to protect himself 4. provocation is not a self-defense insults/verbal threats do not justify self-defense unless abusive words accompanied by conduct or threat reasonably warranting self-defense 5. amount of force privilege limited to amount that appears reasonable/necessary for protection 6. retreat majority: John Wayne, South/West stand your ground minority: Sissy Rule, Northeast must retreat if you can do so safely where attacker has gun, point is moot retreat is not safe retreat not required within ones home 7. injury to 3rd party privilege of self-defense carried over & emergency/necessity of defense considered (if you see someone getting mugged & jump in to help)

3. Defense of Others
- whether D used reasonable force in circumstances - MISTAKE: Majority: mistake is no defense stand in shoes jurisdiction: intervener is only privileged if person he is defending would have been privileged himself Minority: reasonable mistake defense (modern trend)

4. Defense of Property
- privilege to defend property limited to use of force reasonably necessary to situation unless threat to life - NO reasonable mistake - upon peaceful entry to land, request is necessary before use of force {cannot throw Jehovahs Witness off porch}

*value of human life/limb so outweighs interest of a possessor of land in excluding trespassers that possessor of personal property has no privilege to willfully/intentionally use force intended to cause death or serious injury against another, unless trespasser was endangering human life by his act [Katko v. Briney]

5. Recovery of Property
- privilege of owner disposed of chattel to use reasonable force to recapture it if FRESH PURSUIT *right to retake property if it can be done w/out unnecessary violence to person or w/out breach of peace - reasonable merchant privilege

6. Necessity

(weakest affirmative defense)

- tort can be justified if it is for greater public interest - privilege never extends to taking of life A. Public Necessity - mistake tolerated if reasonable & in good faith - cts protect champion of public - use of deadly force is ok for public good B. Private Necessity beneficiaries of tortious behavior are sufficiently few in number use of deadly force is not ok person not held liable if damage resulted from forces beyond human control times of need, necessity may require taking of private property, but compensation due

II. NEGLIGENCE A. Overview Negligence Formula 1) Duty of Due Care {duty to use reasonable care} 2) Breach 3) Cause-in-Fact {reasonably close causal connection} 4) Proximate Cause 5) Damages

- n egligence negligent conduct elements = duty & breach not cause of action - how do we decide if D acted REASONABLY? sense of fairness & morality ; jury question * level of DANGER influences harm that is going to take place * FORSEEABILITY of harm * SPECIAL KNOWLEDGE => higher level of foreseeability & responsibility * UTILITY is a factor in evaluating negligence dont want to burden it utility outweighs risk

LEARNED HAND TEST = REASONABLENESS negligence = burden of prevention < probability (foreseeability) * gravity of injury - low utility, not strong burden of prevention ; high burden of prevention no negligence

- Learned Hand FACTORS: 1) PROBABILITY OF HARM (FORSEEABILITY) 2) GRAVITY OF HARM 3) BURDEN OF PREVENTION {EXAMPLE: driver hits pedestrian}

B. Limited Duty
- situations where Learned Hand might => negligence, but PUBLIC POLICY considerations prevail - areas where cts may limit duty where gravity & danger are very high

1. NIED
- NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS NIED there was duty of due care to P, duty was breached, breach proximately caused emotional distress pure emotional distress; no direct physical injury hard to prove; floodgates of litigation; fraud - PHYSICAL IMPACT RULE (Minority) when theres physical injury, emotional distress is parasitic dont need to think about NIED as separate issue - PHYSICAL MANIFESTATION RULE dont have to show physical impact as result of negligence, but must show physical manifestation

1) DIRECT ACTIONS most frequent; Ds negligence more closely directed toward P

A. Zone of Danger (Majority) most common type; allow recovery if P was in zone of danger of Ds negligence B. Special Cases mishandling of corpses & erroneous claims of death C. Special Relationship Cases (Minority) if there is high foreseeability of harm, cts will hold there is special relationship between cases

2) BYSTANDER ACTIONS
P witnesses 3rd person suffering harm bc of Ds negligence and P suffers emotional distress one step removed, less frequently allowed A. Zone of Danger (Majority) P is in zone of danger & concerned w/own safety; no physical impact required B. Thing Approach (Minority) i. P closely related to injury victim, & ii. P present at scene of injury producing event and is then aware it is causing injury to victims, & iii. P as a result suffers serious emotional distress, that is not abnormal and that is worse what would be anticipated in a disinterested witness

2. Failure to Act
- NONFEASANCE failure to act when a reasonable person would - MISFEASANCE affirmative negligent action; more likely to find negligence - absent a special relationship, no duty to rescue another - SPECIAL RELATIONSHIP => DUTY TO RESCUE (not necessarily successful) Learned Hand analysis duty to act w/due care (reasonably) toward person 1. common carrier & passenger (airline, RR) 2. jailor & prisoner 3. husband & wife 4. parents & children 5. employer & employee - business mutual beneficial relationship => duty - if D or his instrument even innocently creates dangerous situation => duty to rescue - if you voluntarily assume duty to take care of someone => duty to react reasonably - Abandonment of Rescue if D abandons rescue attempt, he may be liable if he places victim in worse position Child Abuse - Balancing: 1) sanctity of marital relationship, 2) safety of children (more important) - focus on spouse to take reasonable steps to warn if other spouse has history of sexual molestation Therapist/Patient - special relationship stems from level of CONTROL & MORAL RESPONSIBILITY - duty to 3rd party exists who may be potential victim of patient (Tarasoff)

3. Unborn Children
- WRONGFUL DEATH attached to some other cause of action mechanism for allowing recovery - Majority: recovery for injuries to fetus regardless whether fetus is born alive or not; very limited Minority: recovery for injuries to fetus only if born alive (?Common Law abandoned) - WRONGFUL LIFE childs cause of action P saying his existence is wrongful/painful/costly, should have been aborted special damages medical expenses only not allowed in most cts affirming premise that person better-off dead parents cause of action for costs incurred from Ds negligence in prohibiting their choice of abortion special damages medical expenses only more jurisdictions allow this

- WRONGFUL BIRTH

- cannot have double recovery [wrongful life + wrongful birth] - no recovery for healthy born children

4. Duty Owed by Owners/Occupiers of Land

- no duty of care to TRESPASSERS EXCEPTIONS: 1. places where it is highly anticipated that public will be present {RR tracks crosses highway} 2. where landlords conduct is willful & wanton {man stuck in tracks, speed up train} 3. active operations after actual discovery of Ps presence {passive failure to warn, hidden pit} - LICENSEE one who is on property w/permission but is not an invitee; social guest similar to duty to trespasser; active operations - actually discovered or presence Rx anticipated licensee must take premises of host as he finds them; owner must warn licensee of hidden dangers - INVITEE extended to persons brought onto property for business purposes no limited duty routine Learned Hand analysis focus on profit motive - stores have duty to customers bc of economic motive usually business, but any place that is public

- REJECTION OF CATEGORIES: some jurisdictions => trespasser/invitee/licensee treated as INVITEE such attitudes toward private property dont apply in modern society Learned Hand analysis - liability if D failed to act REASONABLY under circumstances

C. Duty & Breach

[usually go together] [negligence]

- DUTY = when TARP in Ds shoes would foresee that conduct would create an unreasonable risk of harm to others

1. The Reasonable Prudent Person [TARP] - objective test to measure duty/breach

- TARP = AVERAGE LEVEL OF INTELLIGENCE & MINIMUM LEVEL OF KNOWLEDGE Knowledge = intelligence applied to experience - lack of knowledge/intelligence excuse/defense - circumstances are taken into account * if you have SUPERIOR KNOWLEDGE, you are responsible for that knowledge {Jeep Wrangler} * you must CONFORM to your environment to some extent {Eskimo in NYC; purple traffic lights}

i) Relevance of Custom
* CUSTOM is some evidence of negligence not dispositive, merely evidence subject to reasonableness test - custom = experience & judgment of many - TARP following safety standards

ii) Reasonable Person in Emergency

* emergency circumstances taken into account as factor when asking if D acted reasonably - when emergency is created by persons own negligence, emergency circumstances not taken into account

iii) Reasonable Person w/Physical Disability

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- physical characteristics rule Take into account a physical challenge or a superior physical attribute * blind man must take precautions that an ordinary reasonable man would take if he were blind dont make it harder or easier for people w/disabilities, just take disability into account - voluntary intoxication physical disability

iv) Reasonable Prudent Child

1) AGE 2) INTELLIGENCE 3) EXPERIENCE - brighter child will be held to a higher standard than average child w/less experience (subjective) - EXCEPTION: child liable as an adult if he is engaged in inherently dangerous adult activity discourage

v) Mental Deficiencies
* Majority: do not care about insanity, judge D by TARP standard [different from intentional torts] Minority: sudden insanity is taken into account {i.e. driver wants to fly to God like Batman}

2. Standard of Care for Professionals

* OBJECTIVE STANDARD: must have minimum skills of ordinary professional in good standing difference between competent & average cts want COMPETENT - higher standard applied to persons who hold themselves out as having a certain level of knowledge/skill/training Legal Malpractice professional: 1. learning/skill/ability of member of a profession in good standing 2. exercising of own best judgment 3. use of reasonable due care - legal malpractice P must show: 1) lawyer was negligent, 2) if lawyer had not messed up, would have won case Medical Malpractice custom is dispositive; highly dependent on expert testimony; conspiracy of silence among doctors - even if vast majority of doctors would do something one way, minority is not negligent for doing it another way it if it respectable school of thought w/in community Informed Consent 1. failure to inform of material risk prior to obtaining consent Majority: is it material to TARP? Minority: is risk material to patient? human autonomy Cali uses reasonable patient rather than reasonable physician test 2. causation (would not have consented if knew of risks) 3. damages Moore v. Regents informed consent applies to anything material to patients decision risks & benefits

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Privileges: (where doctor not obligated to obtain informed consent): 1. Therapeutic Privilege 2. Emergency Privilege Good Standing Standard: 1. locality standard 2. national standard (Majority) 3. same or similar community (modern trend; only for doctors)

3. Sources for Standard of Conduct Used in Determining Breach of Duty

i) Reasonableness Determined by Trier of Fact Jury (if extreme goes to judge) ii) Reasonableness Determined by Judge as Issue of Fact Rules of Law Established by Appellate Cts (power of stare decisis) iii) Statute or Regulation Adopted by a Ct - statutes define precisely what conduct breaches duty reflect experience & judgment of many

1. Prerequisites to using Violation of Statute for Negligence:

1. injured party must be member of class of persons statute seeks to protect 2. type of injury that occurred must be one that legislature intended to prevent 3. violation of statute proximately caused injury ONCE ALL 3 PREREQUISITES ARE MET =>

2. Jurisdictional Approaches to Procedural Consequences of Violation of Statute in Establishing Negligence:

1. NEGLIGENCE PER SE (negligence in and of itself) liability by violation of statute if 3 prerequisites are met => negligence per se jury decides whether statute violated judge decides whether violating party has a recognized excuse Rest. 288A 2. REBUTTABLE PRESUMPTION APPROACH (CALI) switches burden of proof such that we presume negligence but allow accused party to attempt to rebut presumption jury evaluates excuse rather than judge 3. SOME NEGLIGENCE (Minority) violation of statute is just some evidence of negligence question of fact that goes to jury who has final say most pro-D approach - Violation of Statute does not replace Learned Hand normal reasonable prudent person approach rather serves as additional approach to establishing negligence - if you can't prove Violation of Statute to prove negligence, you move on to Learned Hand - or P may prove negligence w/Learned Hand + Violation of Statute - Public Policy concerns will sometimes prevent use of NEGLIGENCE PER SE

4. Proof of Negligence

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- how P proves negligence claim: 1. burden of pleading 2. burden of coming forward w/enough evidence to avoid directed verdict again him 3. burden of persuading trier of fact P must establish each element by PREPONDERANCE OF EVIDENCE above 50% - more likely than not

i) Direct Evidence
- actual knowledge; something very concrete; not always better than circumstantial {football field foot prints}

ii) Circumstantial Evidence

- evidence that INDIRECTLY allows trier of fact to INFER that something did/didnt happen

iii) Res Ipsa Loquitur (The Thing Speaks For Itself) (duh)
1. an event that does not normally occur in the absence of negligence 2. the instrumentality causing the injury must be under Ds exclusive management & control 3. injury must not be due to Ps conduct {banana cases circumstantial evidence that banana peel left on floor for a long time} - not direct evidence, just CIRCUMSTANTIAL EVIDENCE - common sense inference of negligence where there is no direct proof of negligence RARE CIRCUMSTANCES - merely makes a case for jury not dispositive - burden of proof on D to prove that injury was not caused by negligence o Byrne v. Boadle P walking down street, barrel of flour falls on him from window of a shop normally, things like this do not occur w/out negligence - occurrence is of itself evidence of negligence

o Larson v. St. Francis Hotel

P hit over the head by chair falling from hotel window no control over furniture => res ipsa loquitur o Ybarra v. Spangard P sues all nurses/doctors in room during her operation for injuries she sustained as result res ipsa loquitur usually not applicable to multiple Ds EXCEPTION: highly integrated services ONCE ALL 3 PREREQUISITES ARE MET => PROCEDURAL CONSEQUENCES: 1. Inference of Negligence (Majority Approach) creates some inference of negligence to get case to jury jury decides if inference is strong enough to get beyond preponderance of evidence judge then approves or disproves whether all elements met most pro-D choice weakest of all 2. California Weak Presumption Approach once P has proven 3 elements => weak presumption that D is negligent designed to force D to come up w/evidence to explain what happened presumption disappears to inference of negligence as soon as D asserts any facts 3 elements met, D burden of disproving negligence, go to majority approach

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3. Rebuttable Presumption Approach (Minority) start w/presumption of negligence on part of D D must give enough evidence to show that he is more likely than not not negligent D must prove, not just give evidence most pro-P choice

C. Cause in Fact
- small island of conceptual certainty in vast ocean of uncertainty - whether factually the misconduct caused harm - scientific question of fact rather than policy question (proximate) always a definite yes or no - only needs to be A cause in fact, not THE cause in fact

1. But for Causation

- most common approach to cause in fact - D is a cause in fact of injury if but for Ds misconduct P would not have been damaged - P burden to prove beyond preponderance of evidence that D was substantial factor in harm

2. Reduced Chance of Survival

- P has burden of proving by preponderance of evidence (more likely than not) that Ds misconduct was the cause in fact of Ps damages - however, in medical malpractice context, cts sometimes allow recovery for a reduced chance of survival or increased chance of harm, even if P would probably have died anyway in such cases, recovery is limited to special (out of pocket) damages Medical Expert Testimony DAUBERT APPROACH 1) testimony must be derived by the scientific method and reflect scientific knowledge, and 2) it must logically advance a material aspect of the proposing partys case

3. Concurrent Causes
- but for causation usually works even w/multiple Ds only ask if D was a cause - conduct considered cause if it is a substantial factor in bringing about harm - where separate acts of negligence combine to produce directly a single injury, each D is responsible for the entire result, even though his act alone might not have caused it

4. Traditional Substantial Factor Test

o Anderson v. Minneapolis D1 & D2 start fires at opposite ends of forest and Ps house in middle burns down cant use but for causation multiple independent factors 14

developed by cts where sense of justice tells us someone should be held responsible to P - P may prevail w/out proving but for causation if: 1) 2 or more forces combine to bring about harm, & 2) D is responsible for only one of them, which is a substantial factor in bringing about harm, & 3) each force would have been sufficient to bring about the harm done

5. Alternative Causation

[more than 1 D] - P may prevail w/out proving but for causation if: When: 1) P is injured by the negligence of only one of multiple Ds 2) all of Ds acted negligently toward P, and 3) P cannot establish which Ds negligence caused injury Then: burden of proof is shifted to each D to prove he did not cause injury

6. Enterprise Liability Test (Minority) limited context of DES cases

Where:

[more than 1 D]

1) P is injured by the negligence of a manufacturer making a product; 2) the market consists of goods that are identical in all material aspects; 3) P has named Ds representing a substantial share of the market, and substantial share of market depends on jurisdiction 4) P reasonably cannot establish which manufacturer made the product that injured him Then: burden of proof is shifted to each D named to prove it did not cause Ps injury But: assuming that Ds cannot prove they did not cause injury, each Ds liability is limited to its share of the market

7. California Substantial Factor Test

- simply asks whether Ds misconduct was a substantial factor in causing Ps harm does not require but for, but usually same result - does not require meeting elements of traditional substantial test

D. Proximate Cause 1. Defining PC

proximate cause whether LEGAL LIABILITY should be imposed where cause in fact established - must make policy judgments where answers are not nicely generated through scientific assumptions trying to decide what is FAIR & JUST Ryan v. NY Central RR Co. D carelessly starts a fire that spreads to house A and then to house B.NY rule one building rule D liable in damages for proximate results of his own acts, but not for remote damages Thin-Skull Plaintiff Rule w/re: to physical injuries, D takes P as he finds him & may be liable in

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damages for aggravation of pre-existing illness there must be some foreseeable harm for rule to come into play Minority: apply rule only to physical injuries Majority: D liable for all physical results, whether foreseeable or not, resulting from a foreseeable personal injury to P Ds duty of care is measured by TARP, but Ps injuries may not be does not apply to PROPERTY

APPROACHES TO DETERMINE WHEN A CAUSE WILL BE CONSIDERED PC: (none are rules)
1) Direct Cause Approach (Minority) PC exists if injury is a direct & natural consequence of Ds conduct under existing set of circumstances, rather than result of independent intervening cause direct chain of events w/no intervening causes 1) was there an intervening factor? 2) was it independent or part of the existing environment? second most frequently used overlaps w/reasonably foreseeable more P oriented ; broader scope of liability Wagon Mound I direct chain broken by intervening act 2) Reasonable Foreseeability Rule (Majority) PC exists only if Ps injury was reasonably foreseeable result of Ds negligence dont ask was there a reasonable chain of causation, but was Ps harm reasonably foreseeable to D some risk of harm is always foreseeable; focus on what is reasonably foreseeable Learned Hand injury must be freakish to be reasonably UNforeseeable {Doug driving, hits pedestrian Pete who is bringing Paula medicine; Paula sues Doug no PC Paulas injuries not reasonably foreseeable to Doug; unfair to hold Doug responsible} (Restatement 2nd) 3) Hindsight Reasonable Foreseeability Approach PC exists if, in hindsight, it is not extraordinary that Ds negligence brought about harm - more P oriented Wagon Mound II even though chance of fire very remote, looking back, ct ruled owners should have foreseen some damage 4) Rough Sense of Justice - Cupps favorite

Palsgraf v. Long Island RR - P waiting for train, passenger package explodes, impact => scale falls on P Cardozo: no PC bc no negligence (no duty/breach), no duty in absence of reasonable foreseeability when there is some foreseeable harm, you have duty to protect P from harm UNFORSEEABLE P PROBLEM no duty, no negligence Andrews (Minority): zone of danger approach - P was outside zone of danger duty in the air duty to everyone; if harm occurs, there was a duty ROUGH SENSE OF JUSTICE / PRACTICAL POLITICS => won't trace events back

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- concerns for judicial consistency will outweigh sense of justice {Wally Wonderful vs. Timothy Terrible} policy judgment only comes in on marginal cases - usually cts imposing DIRECT CAUSE or REASONABLE FORESEEABILITY

2. Intervening Causes
- an interrupting cause that comes into effect AFTER Ds negligence and has to be something that contributes to the accident/injury existing condition cannot be an intervening cause {wind} - if intervening cause is a normal or foreseeable consequence of the situation created by Ds negligence original D liable {girl kicked off RR foreseeable harm} - if intervening act is extraordinary under circumstances, not foreseeable in normal course of events, or independent of or far removed from Ds conduct original D NOT liable SUPERSEDING INTERVENING CAUSE - 1) was there a proximate cause? 2) was there an intervening cause? 3) was the intervening cause superseding? - Ps contributory negligence is intervening cause if it arises after Ds negligence - the more intervening causes, the less likely D will be liable [if some time has passed intervening] - EXCEPTION: intentional intervening acts considered intervening cause even though foreseeable jerk factor {elevator boy & shaft; lighting cigarette ignites at RR site} Social Host Liability When Serving Alcohol - like Palsgraf whether D has DUTY to P - MAJORITY: no liability for serving alcohol to social guests unless guest is a minor drunk drivers voluntary consumption was proximate cause - Dram Shot Statutes: liability on bar for serving an obviously drunk person if they later go out and injure another Rescuer - if there is imminent peril or reasonable appearance of imminent peril, a rescuers conduct is not a superseding intervening cause of harm to original P unless the rescuers conduct is RECKLESS - even if rescuer acting negligently, he would be able to recover, unless negligence rose to recklessness - rescuer must still show that his harm was reasonably foreseeable 2nd Injury Caused by Weakened Condition Resulting from 1st Injury - D liable for a weakened condition caused by Ds negligence - doctors malpractice NOT SUPERSEDING INTERVENING CAUSE

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 Suicide - MAJORITY: suicide = superseding intervening cause - Minority: superseding unless acting on irresistible impulse Danger - D who caused danger will be liable to a person who is injured trying to escape danger Unforeseeable Ps - Majority/Cardozo: was it reasonably foreseeable that P would be injured? no no liability Minority/Andrews: negligence in the air I. D is generally liable for the unforeseeable extent of a foreseeable personal injury to the P Thin-Skull P

PROXIMATE CAUSE: 1. Reasonably Foreseeable 2. Direct Cause 3. Hindsight Reasonably Foreseeable 4. Andrews Rough Sense of Justice - each one, think about INTERVENING CAUSES were they SUPERSEDING? Rule take P as you find him; D responsible for all resulting harm

II. Most courts hold D liable for all reasonably foreseeable consequences of Ds negligence, including all reasonably foreseeable intervening causes second accidents; escape attempts; negligence by doctors aggravating injuries; Wagon Mound III. If an intervening cause is not reasonably foreseeable it is generally deemed to be a superseding cause, and D is not liable IV. In special circumstances some courts find an intervening cause to supersede Ds original negligence even if intervening cause is reasonably foreseeable NY Minority Rule: Fire spreading to 2nd building Criminal/Intentional conduct {modern trend subject to reasonable foreseeability} Minority Rule: Serving alcohol Suicide superseding V. D is generally liable for a reasonably foreseeable injury even if it occurs in an unforeseeable manner RR going backward manner/amount of harm need not be foreseeable, if actual type of harm is foreseeable exception = criminal/intentional conduct VI. Some courts hold D liable if Ds negligence is a direct cause of Ps injuries, with no independent intervening cause of harm broader than reasonable foreseeability approach VII. Some courts hold D liable if Ps harm is not highly extraordinary in hindsight VIII. Under Andrews (Palsgraf), regardless of label a court attaches to its approach, PRACTICAL POLITICS in attaining a ROUGH SENSE OF JUSTICE regarding how far a causation should be extended in any particular case is key factor in a proximate cause analysis

E. Damages

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- P must prove more likely than not he suffered damages bc of Ds negligence 1. COMPENSATORY put P in position P was in before tort occurred SPECIAL: out-of-pocket losses ; economic damages med expenses/lost wages GENERAL: pain & suffering; can't take away pain but can give $; 3X special 2. PUNITIVE punish/deter D 3. NOMINAL used to vindicate rights; amount of award not important ATTORNEYS FEES American Rule each party bears own costs English Rule loser pays other partys attorneys fees Contingency Fees P does not pay anything unless he wins; 25-50% - REMITTITUR telling judge that jury has awarded more damages than reasonable jury could award under facts - ADDITTUR judgment is below what a reasonable jury would award - Collateral-Source Rule for purposes of mitigating damages, D may not introduce evidence that 3rd party provided P $ related to Ps injuries - Mitigation of Damages Rule if one is injured due to Ds negligence, one has duty to mitigate ones damages if it is reasonable

G. Negligence Affirmative Defenses Based on Ps Conduct 1. Contributory Negligence

- dropped by most jurisdictions as affirmative defense

- Common Law: if P contributory negligent at all => completely bars recovery - EXCEPTION (one of many): Last Clear Chance even if P was contributory negligent, if D had last clear chance to avoid accident, P can still recover

2. Comparative Negligence

- dominant defense

- P can recover even if he is partly at fault - percentage at fault can be recovered from other party 1) Pure Approach (California) even if P 99% at fault, P still awarded 1% Offset Approach (Majority) if both parties injured and allowed recovery, party w/high damages offsets low damage Rejection of Offset Approach (California) allow recovery for both parties each party - full damages minus their liability offset benefits insurance co. 2) Less Than Approach (49%) allow P to recover even if comparatively negligent, but only if P less negligent than D - less than 50%

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3) Not Greater Than Approach (50%) allow P to recover if he is not more liable than D, even if equally responsible Multiple Ds - split in jurisdictions: - contribution of each D vs. - (smarter) combine negligence of Ds in re: to P

3. Assumption of Risk

=> completely bars recovery

- may overlap w/comparative negligence - trend (Cali) to subsume implied assumption of risk to comparative negligence principles => comparative assumption of risk Elements: 1) P subjectively appreciated risk, & - whether reasonable/unreasonable irrelevant 2) P voluntarily encountered it - autonomy issue Types: 1. Express more of contract issue; seldom upheld by cts 2. *Implied no agreement but one is impliedly assuming risk

{walking in middle of street}

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