Torts Outline_Turley_Spring 2011 I.

Intentional Torts
o Intent refers to a) a persons desire that certain consequences result from his action; or P plans to harm someone

b) his knowledge that those results are substantially certain to occur as a result of his action (even if he doesnt intend those results) o Intent can also be established by violating a rule Vosburg v. Putney 11 years old boy kicks 14 years old below the knee; causes inability to use limb normally for the rest of his life Held: D did not intend to cause harm but he broke a rule. Liable If the tort had occurred on the playground and not during class decision may be different (violated a rule no implied license of playground Hockey Case In a hockey game, when you hurt someone, you are consenting to a rule

Transferred of Intent: a) Between victims: when an actor intends to commit a tort against one victim but injures another instead D intends to hit one person with a baseball bat and misses that person but hit another in the process, Ds intent will transfer from the intended victim to the actual victim

b) Between Torts (mostly assault and battery): when an actor intends to commit a specific tort, but commits another instead D intends to hit a person with a baseball bat (battery) but missed and instead only causes the imminent apprehension

of such harmful contact (assault) c) You can combine both in one case

An act is a voluntary muscular movement If you hit someone while sleeping or while having an epileptic seizure, you havent committed an act

1. o o

Battery An intentional harmful or offensive bodily contact Battery is an act (voluntary) with the intent to cause a harmful or offensive bodily contact, and a harmful or offensive to a reasonable sense of personal dignity results either directly or indirectly. Element a) voluntary act: Being pushed into someone or fainting and falling on someone is not voluntary

Element b) intentional: OR desire that certain consequences result from his action or

Know that those results are substantially certain to occur as a result of his action i. Intending to step off a busMaybe Intentional ii. IF intent is to step off onto someones footIntentional! iii. IF intent is to step off and D knows that stepping off at that moment will almost certainly injure someones footIntentional! iv. IF intent is simply to step off and walk to workNot Intentional! Might be Negligence, but not Battery Important: D just need to intend any harm, not the actual harm that takes place D intends to hit P over the head with a gun and the in the act of doing so the gun accidently discharges and shoots P,

D is liable for the gun shot under battery Element c) contact: D does not have to directly touch Ps body An indirect contact is sufficient (i.e., through Ps clothes, Pen he is holding or anything closely connected with his body, like a car she is in) D does not have to directly touch P with his body D hits P with a bat D sets a wire on the ground knowing that P will run over it (with the desire or substantial certainty that P will encounter it and fall down)

Element d) harmful or offensive to a reasonable sense of personal dignity (objective): o Causing illness or pain is harmful Spitting on someone is offensive Flicking someones ear possibly offensive Tapping someone on the shoulder is neither Rubbing against someone on the subway is neither

However, has a subjective element???? IS It?? Jon and Rob joke around all the time at work, one would not be justified to sue the other for flicking his ear

o 2. o

Eggshell-thin skull rule: take the victim as you find him; doesnt matter if D didnt know p was hypersensitive Assault D is liable for the tort of assault if: a) He acts intending to cause a harmful or offensive contact with another, or an imminent apprehension of such a contact; and

b) The other is thereby put in such imminent apprehension

o o Elements: a) D committed a voluntary act with intent b) to place P in apprehension of a harmful or offensive contact or to make such contact c) That Ds act created in P a reasonable apprehension of such contact

Element a) intent: D acts with the desire to cause apprehension of contact or knows that the apprehension of contact is substantially certain to occur as a result of his acts Transfer intent

Element c) reasonable apprehension of a harmful or offensive contact: Pointing a toy gun in someones face may be assault if the gun looks real Mere Words: mostly not if not accompanied with actions But could be depending on the circumstances: (i.e., P knows D is a hit mob, D tells him I will kill you now thats an assault even if P doesnt display a weapon. Conditional threats: usually not If you werent so old, I would knock your teeth not assault If you dont get off my block, I will beat you up assault Future threats: mostly not has to be imminent P doesnt have to afraid to prove assault confidence is

irrelevant P cant recover if the for threats made to third persons????? At tavern in middle of the night, D struck P with a hatchet but missed. Held: D is liable for assault 3. False Imprisonment D falsely imprisons P if D a) Acts intending to confine P within fixed boundaries, b) His act directly or indirectly results in such a confinement of P; and c) P is conscious of the confinement or is harmed by it Additional to consider: P has no knowledge of a safe (or reasonable) path to escape (the existence itself is not enough) Doesnt have to be a physical restraint; restraint can be in the form of imminent threats of force if P tries to leave (i.e., if you leave I will kill you The larger the area of confinement the more likely it is that there is a reasonable escape A mere moral or social threat is not enough if you leave I will tell everyone you are a liar Shopkeepers privilege: If someone is reasonably suspected of shoplifting, he can be held for a reasonable amount of time in a reasonable place D holds P an old man, suspecting he stole something, P gets a heart attack Held: Not enough evidence to make the suspicion reasonable and it was not reasonable to detain P because of the circumstances, including his age 4. If D holds Ps property, then Ds intentional act could be indirectly resulting in Ps confinement Intentional Infliction of Emotional Distress

 D is liable for intentional infliction of emotional distress if D commits a) An extreme or outrageous act b) with intentional or recklessness in causing P to suffer severe emotional distress; and c) the act causes P to suffer severe emotional distress

D is liable for intentional infliction of emotional distress if D by extreme or outrageous act intentionally or recklessly causes severe emotional distress to another, and if bodily harm results, the defendant is liable for this harm Element a) extreme and outrageous act: Rest Test: Must be severe and beyond all possible bounds of decency in society Not just insults, threats, etc. D tells P untruthfully that his son is dead

D, collection company, calls P every day in the middle of the night and threatens him to run an ad . The level of outrageousness is lowered for: a. members with heightened sensitivities (children, mentally ill, pregnant or elderly) b. When D knows of the victims special sensitivities

c. When D is a public utility (innkeeper or common carrier) and P is a customer Limited transfer of intent: Only applies to select third parties: 1. Immediate family members who are present at the time of the act; or 2. A third person who is present at the time of the act and suffers a bodily harm as a result of witnessing Ds act

 These cases are usually negligent infliction of emotional distress. o Mishandling of corpses is a classic example of IEID

Element b) intentional or recklessness: Recklessness could satisfy intent, even without actual intent Mere Words: mostly not if not accompanied with actions

5.

Trespass to Land Requires that D with intent: 1. Physically invades Ps land, or 2) remains on Ps land or 3) fails to remove something from Ps land Innocent trespassers are still liable if you dont know that the land belongs to P Its land possession, so P, lessee can sue for trespassing Physical invasion requires only that D set in motion something that physically invades Ps property (setting you dog, rats, loose; flooding P land, letting a tree overhang Ps land, chasing someone on Ps land) Even invasion above or below property constitutes trespass (i.e., plane below the lower limit of navigable airspace) Wind, vibration, smoke, light or noise dont qualify, see nuisance

6.

Trespass to Chattels It requires that D: a. intentionally interferes with personal property (chattel) b. in Ps possession, c. either by dispossession or by intermeddling Dispossession: taking physical possession of the chattel to the exclusion of the owner

Intermeddling: brief touching or harming the chattel w/out any disruption in possession Requires a showing of actual harm/damage as a result of intermeddling Ex: touching your car without causing harm is not trespass, but breaking your headlights is; or D sitting in Ps car w/out taking it even temporarily (temp is like preventing P from getting in)

7.

Even, if D returns the chattel w/out harm, D is still liable Applies to lessee, or any possessor of the chattel Conversion D is liable for conversion if Ds: a) Intentional interferences with Ps personal property b) Is so substantial that c) its fair to require D to pay the propertys full value

Mistaken belief in a right to take control is no defense, like trespass to land A conversion will result in a forced sale in that D will have to pay P the market value of his property and keep it Factors to consider when determining whether trespass to chattel or conversion 1. The extent of Ds dominion or control 2. The duration of loss 3. Whether D acted in bad faith 4. The degree of harm to the item; and 5. The degree of inconvenience and expense to P

D takes Ps hat for 6 months, thinking its his (good faith) still conversion You dont have ownership to your organs after they are removed, so

cant sue for conversion Poggi v. Scott

D sold barrels of wine that belonged to P to a 3rd party, unbeknownst that they belong to P Held: liable for conversion

II. Defenses to Intentional Torts

Mistake is not a defense in intentional torts Insanity is not a defense to intentional torts

1. Consent: a) Express consent: P tells D, its ok to come on my property

b) Implied consent: where P makes an objective manifestation that D reasonably interprets as consent (objective not subjective) Could be implied using custom or the circumstances

Even silence can constitute consent where a reasonable person would speak if she objected Ex: P takes part in a boxing competition, this constitutes implied consent to any contact normally associated with the sport

c) Consent implied in law/ emergency consent: in emergency situations, consent is implied if 1) P is unable to consent; 2) a reasonable person would consent in the circumstances; and 3) their is an indication that P would consent if able to

d)Substitute consent: the consent of a guardian of a

minor/incompetent may amount to consent by that minor/incompetent But if the guardian does not consent to a procedure that would save the life the of the minor, then a court might interfere and overrule guardians wishes

e)Medical/informed consent: doctors must get patients consent and make them aware of any risk involved in the surgery If during the surgery, the doctor need to do something critical outside the scope of the consent, he can get consent from: a) Substitute consent of a family member; b) If no family member, doctor can extend surgery within the area of the initial incision, so long as it does not destroy a bodily function

Ways to negate consent: a) Consent to criminal acts (consent to rape) (an illegal fighting game) b) Consent obtained by fraud (relating to an essential matter, not collateral) c) By duress (threat of imminent and serious harm to P or family) d) P didnt have capacity (drunk, infant, mentally incompetent) e) Outside the scope of consent (see above) Consent must be specifically to the act causing the tort P consents to have a tooth removed; doesnt consent to have 6 teeth removed Mohr v. Williams P consents to an operation on right ear; the doctor realizes left ear is the one infected and does a successful procedure; Battery no specific consent.

2. Self-defense Privilege Is the use of reasonable force to prevent threatened harmful/offensive contact or confinement Amount of force allowed: only what reasonably appears necessary to protect yourself Deadly force: you can use deadly force only if you reasonably believe that the other person is about to kill you or seriously injure you Threat must be immediate (and not just verbal threats)

You cannot use to retaliate after the other person commits the act Conclude with: Because D did not use more force than the situation reasonably required, she qualifies for the privilege of self-defense No duty to retreat??? 3. Defense of others privilege Is the use of reasonable force (same standard as self-defense) to protect third parties who are threatened with any kind of immediate harm Two views a) A person may defend a third party if he reasonably believes that defense is necessary to prevent the third party from getting harmed You defend someone in a fight and turns out he is the attacker, you are not liable as you reasonably believed he was going to get harmed

b) A person may defend a third party if the third party reasonably believes that defense is necessary to prevent the third party from getting harmed You defend someone in a fight and turns out he is the attacker, you are liable as he didnt reasonably believe it was necessary to avoid harm You try to defend someone against attack, but the reality

is he in the middle of an act scene, you are liable

4. Defense of Property Privilege It is a privilege to use reasonable force to defend property against intrusion as long as: a) The intrusion isnt privileged

b) You reasonably believe force is necessary to prevent or terminate the intrusion c) You demand that the intruder leave the property before you use force You dont have to make the demand if it appears that it would be dangerous or futile You cant use this privilege to regain property in dispute (not legally yours, or yours but lessor didnt pay) 5. Recapture of Chattels D can use reasonable force to recapture chattels if he is a) Entitled to immediate possession b) He has already demanded for their return c) force used is reasonable under the circumstances; and d) P who has the chattels is at fault He is the one who wrongfully disposed you of the chattels; or A Third party that knows or should know that the chattels were wrongfully taken from you No mistake is permitted (as opposed to defend of property) so you have to be sure the chattel is yours

6. Necessity a) Private necessity mainly trespass It involves an action taken to protect any person from death

or serious harm, or to protect specific land or chattels from injury You can trespass to avoid harm but you may have to pay for any harm you do to others property Ploof v. Putnam Family tied their boat to Ds during very bad storm Ds servant untied it ..Boat and its content got damaged Held: Entry upon land to save goods in danger of destruction is not trespass because of private necessity If the boat caused damages, then P has to pay for damages caused to the boat not trespass damages

b) Public necessity D may interfere with the land or chattels of others if doing so will prevent injury to the entire community D is not responsible for damages as long as the act is reasonable D follows a thug terrorizing the community in to Ps property and captures him no trespass; public necessity Government most commonly use public necessity Burning a house to stop a wild fire War time

III. Negligence:
o Negligent conduct may consist either of: 1) An act, or 2) An omission to act where there is a duty to act o

Elements of a prima facie case of negligence:

1. Duty: a duty to act as a reasonable person would act under similar circumstances, so as to avoid unreasonable risk of harm to others (The reasonable person standard of care). 2. Breach of duty: Breach is a persons failure to conform to the reasonable person standard of care, in a way that creates an unreasonable risk of harm to others. 3. Causation: There must be a causal connection between Ds act or omission and Ps injuries 4. Damages: P has to suffer actual damages (i.e., no nominal damage claims permitted for negligence)

A. Proving a negligence claim by direct evidence:

1. The standard of reasonable care:

o What a reasonable person would do under similar circumstances, so as to avoid unreasonable risk to others: 1) External circumstances: a) The environment or situation: o Reasonable person in a hospital in an small town o Driving fast to pick up more liquor v. driving fast to get a seriously injured person to the hospital b) Custom in a community or industry: relative but not conclusive cause the whole community might be negligent o Ex: A custom in the cruise industry to have lifeboats in a cruise for only half of the passengers might be unreasonable, despite that it is an industry custom c) Knowledge: what the person know about the circumstances o If you hold yourself to be a professional/expert and you are not, you are still held to the standard of a professional if you dont meet that standard, you are negligent o Driving fast to pick up more liquor v. driving fast to get a seriously injured person to the hospital 2) Personal circumstances or attributes: a) Physical attributes: o Blindness, retardation, deafness o The standard is for example, a reasonable blind person o The only exception is intoxication, the standard is a reasonable sober person b) Minors under 18: o Standard: a reasonable person of like age, intelligence,

and experience under similar circumstances o Exception when minor is engaging in adult activity like driving or firing a gun (i.e., usually requiring a license) c) Mental illness: o No consideration to mental illness; o Exception: Someone is overcome by unforeseen, sudden mental illness Breunig v. American Family Ins. Co. o D is driving overcome by sudden mental illness thinks god is driving the car crashes in to P o Because the mental illness is unforeseen, it is treated like a sudden disability (Ex. Seizure, Heart Attach) o D is not negligent d) Intelligence, poor judgment and old age: o Not considered Roberts v. Ring. o Elderly man hit a 7 year old with car o The man is negligent because he chose to engage in this activity knowing that his age might affect his judgment. He is held to a reasonable person standard. e) Examples: Vaughn v. Menlove: o D placed hay stack and cottage next to cottages that sat on Ps property o P asked D to remove haystack for risk of fire, but D refused o Ds haystack caught fire and spread to Ps property o Holding: A reasonable person would remove the haystack to ensure that Ps property is not endangered Stone v. Bolton: o D hit a cricket ball which struck P in the headonly 6-10 balls have ever been hit as far away as P was standing o Holding: Although the act was extremely rare, it was foreseeable and D is liable 2. Calculus of Risk: Pre-accident snapshot; keeping this picture in mind, what would a reasonable person do to avoid the accident? o Post-remedial repair rule: P cannot bring in post-remedial repair evidence against D (i.e., the second product is evidence that the first is deficient) - based on the idea that we want companies to repair or update technology (you can only use it in impeachment) Factors to consider: 1. Foreseeable risk of injury 2. The extent of these risks: how significant? How many people will

be affected? 3. The likelihood/probability that these risks will occur 4. The available alternatives 5. The cost of reducing risk o Cheapest Cost avoider factors: The one who 1) has the most knowledge about this specific situation or this type of situations, 2) has the best ability to use this information to prevent any harm, and 3) is most capable of spreading the cost (i.e., through insurance) 1. The who has more Knowledge about the specific/type of situation 2. The one most capable of spreading the cost 3. ,, ,, ,, ,, ,, of preventing the harm o Calculate Risk According to Normal and Usual Conditions, not extremes Blyth v. Birmingham Water Works (England 1856) D installed pipes in neighborhood; installation was professional and worked well for 25 years; one a night of one the coldest frosts on record, pipes burst and let water into Ps home. Held, D was not negligent. Standard is how a reasonable man would act w/reference to average circumstances of the temperature in ordinary years, not this very cold year. This was rather an accident. Also, Ds act must be unreasonable at the time, not in hindsight. o Emergency Eckert v. Long Island RR Ps decedent was killed by D RR when trying to rescue kid sitting on tracks. D argued that contrib Neg barred P from recovering. Ct ruled for P; Held, a Ps calculus of risk is not unreasonable if in time of emergency (w/o time to think) he puts himself at risk to save another as long as it was not reckless or clearly futile to an average person in his place. o Calculus of risk must consider related risks to others Cooley v. Public Service Co. (N.H. 1940) - D power company maintained power lines that were damaged in storm; caused loud noise in Ps ear; she suffered neurosis and physical injuries; P said D should have used safety measures that might have reduced her chance of emotional harm. Supreme Ct reversed trial Cts verdict for P b/c her suggested changes would have decreased her risk of emotional harm but increased risk of physical harm to pedestrians, which were a more foreseeable

class of plaintiffs. o THE HAND FORMULA: a. A reasonable person is expected to go through a calculation of risk and if the economic costs of taking a certain action are lower than the costs of not taking an action then negligence may exist. This is explained by the Hand Formula b. The Hand Formula if B < PL, D is liable Ds duty in controlling his barge is a function of 3 variables: - B the burden of taking adequate precautions to avoid the risk of harming another - P the probability that the accident will happen - L significance/seriousness of the resulting injury or loss - if B < PL, D is liable (if burden/cost of precautions is less than the probability of accident times the seriousness of the injury, then the reasonable person takes the precaution) c. Burden: it focuses on the actors level of care in carrying out an activity, rather than on the social utility of the decision to engage in an activity. D who carelessly engages in a socially useful (and low risk) activity is likely to be liable for negligence; whereas one who carefully engages in a risky and socially useless activity is not likely to be liable. d. Very popular with Posner and law/economics crowd they prefer this over Strict Liability: economic theorists, including Posner, prefer the hand formula as they see negligence as a means of regulating social conduct to promote efficiency, while strict liability advocates criticize the formula for being inefficient in that it does not consider the cheapest cost avoider, as it considers that the defendant is always the cheapest cost avoider. As such, they prefer strict liability which lowers costs dramatically by making people liable for torts on a much reduced scale e. Criticism: The formula is bloodless o Pinto case: Ford discovered that B was more expensive than PL (resulting in loss of life). They argued this in court; jury gave crazy punitive damages f. Calebresi says that B < PL is inefficient i. because if the plaintiff was contributorily negligent in any way then the plaintiff cant recover, which lets the defendant who might have been negligent off the hook. Thu contributory negligence should be removed ii. Additionally the Hand Formula only shows that the defendant could have avoided the risk at a low cost without looking to who could avoid the cost the cheapest iii. Calebresi would therefore ask for a strict liability regime which lowers costs dramatically by making people liable for torts on a much reduced scale. g. How to argues hand formula: o Expand or decrease any of P/L/B that benefit you o Sometime you dont have control over P. A lot of times L is

locked in. So, can only deal with B by showing that the costs are very high, or very low Andrews v. United Airlines o Woman hit in the head by falling luggage from overhead bin; airline not liable because the burden of having safety nets is very high U.S. v. Carroll Towing Co. (2d Cir. 1947) P (United States) lost one of its barges when D (Carroll) allowed it to break loose and sink b/c D did not have any employees on board at time to watch it. Harbor was crowded; it was foreseeable that work might not be done carefully. o The conditions at the time increased P o The risk of not having an employee (loss of barge) was high high L o The cost of having an employee on duty was low low B o D is negligent

3. Custom
1. General: o The majority rule Custom is not controlling just another piece of evidence. As customs are sometimes unreasonable The T.J. Hooper: o 2 Tugboats and their cargo were lost in a storm o All tugboats in the area received shelter after receiving storm warning on their radios; D did not have a radio o Holding: Although no law or industry custom requires radios, custom is not controlling. o Radios are inexpensive and risk is very high (Hand formula Analysis) o Injuries resulted directly from lack of radio; D is negligent 2. Malpractice: o The failure of one rendering professional services (i.e., doctors, lawyers, accountants) to exercise the level of skill commonly possessed by minimally qualified members of the profession in good standing. o Its about poor doctoring not poor outcomes. a) Locality: o Older cases compared doctors only to those in the same or a similar locality. But modern courts now tend to impose a national standard, especially for specialists. Why? More uniform standard of education for doctors National Journal and increased communication b) Duty to disclose: o Doctors have a duty to disclose to their patients all information that a reasonable doctor would disclose o Enables patients to give informed consent

o But, doctors dont have a duty to ensure that patients comprehend the info o Exceptions to disclosure (1) when theres no time to explain, and (2) when disclosure itself might harm health of patient. But doctor CANNOT simply avoid disclosure b/c it might make patient refuse surgery. Cantebury v. Spence (1972) D operated on P but did not tell him that the operation had a 1% chance resulting in paralysis P was left unattended and fell off the bed during operation is paralyzed Holding: D breached his duty to disclose and is negligent

B. Negligence per se
o Meant to promote safety by establishing standard of conduct for particular situations 1. Criminal Statutes o D complies: This is evidence that D acted reasonably, but its not conclusive o D violates: This will create negligence per se if 3 elements are met: 1. The statute provides a penalty 2. The statute was designed to prevent the kind of harm that befell P 3. P is a member of the class intended - by the legislature to be protected by the statute Fireman gets burned in building with malfunctioning fire sprinklers. There is a statute that requires buildings to have working fire sprinklers. Held: the Statute is intended to protect (1) Tenants from (2) Noxious gases, so does not apply to the firefighter or the harm that befell him. o D can avoid liability by proving either one of the following: 1. D was unaware of the need to comply Tailgate goes out before you realize it 2. Compliance posses higher risk than violation Driving on the left because there is construction 3. D reasonably attempted to comply but was unable Blizzard makes it impossible to keep driveway clear 4. D faced an emergency that prevented compliance swerve over center line to avoid hitting a kid 5. Incapacity Actor is a minor o Once youve established the standard of care, you have to determine if D breached that standard using the Hand Formula o If a statute is found not to apply, D can still be liable in negligence if he acted unreasonable using the Hand formula, but

cannot establish negligence per se in this case o A causal connection between negligence per se and the injury must be shown o Statutes can be used to establish Ps duty of care, or to establish contributory negligence Martin v. Herzog At night, D crashes in to P who is driving without headlights on Statute requires drivers to use headlights on cars at night Holding: Because there is a causal connection between having lights off and the accident, P is contributorily negligent. Creating a private right of action based on a statute????? Uhr v. East Greenbush Cent. Sch. Dist. (1999) Statute in NY public schools requires that all students between the ages of 8 and 16 be examined by the school annually for the Scoliosis At 14, P diagnosed with Scoliosis that was very serious due to late diagnosis. Holding: There is no private right of action against the school district, as private right of action would be inconsistent with Legislative Intent in enacting the statute which provided the Commissioner with authority to withdraw funds from school not complying. Cannot sue for Negligence.

C. Proving a negligence claim by circumstantial evidence (Res Ipsa Loquitur)

o o o The thing speaks for itself Allows P to point to the fact of an accident and create an inference that D was negligent with out showing direct evidence of negligence Elements: P must prove that: 1. There is no direct evidence of how D behaved in connection with the event that caused the injury; 2. The event is of a kind that would not normally occur but for negligence New born baby matched with the wrong mother Chunk of glass found in a can of tune A chair falls on P while walking (typical RIL) 3. D was in exclusive control of the instrumentality causing injury 4. P did not voluntarily contribute to the event that caused her injury RIP is not cause in fact: sponge left in body during procedure, there is res ipsa but the injury of cancer was not the cause of the sponge, If P proves res ipsa, then P met her burden of producing evidence of Ds negligence (presumption of negligence) and a jury can then decide

o o

whether D is negligent; in this case, no directed verdict can be issued for D. o RIP can be used to aid in determining whether a product was defective in Products liability. o If P can show that res ipsa loquitur applies to one or more D, but cannot definitively point to which D cause the injury, then all Ds may be determined negligent unless they can prove that they were not the cause of the injury during the period in question. Ybarra v. Spangard (P sued multiple Ds - doctors - for act of negligence while under anesthesia, court held RIL applies to the multiple Ds) IS THIS MAJORITY? Used to prevent conspiracy of silence in environments such as medicine, police enforcement, fraternities, religion and military Colmenares Vivas v. Sun Alliance Insurance Co. (1986) Facts: P suffered injuries while riding an escalator at Port Authority (airport); the escalator was maintained by a 3rd party Held: D could not avoid liability by saying it had contracted out its maintenance duties; b/c D was a public entity (airport) and even if it contracted out, it could not as a matter of LAW delegate its duty to maintain. Control element in RIL is traced back to parent company. RIP applies even if D shares responsibility with another, or if D is responsible for the instrumentality even though someone else had physical control over it. PA is presumed negligent.

Independent contractors defense: Will argue that the independent contractor is liable as it has control over the instrument or event, and not the parent company o Can overcome by showing they arent truly independent parent company exercise direction, supervision or control o Also, cannot delegate maintenance duties in common areas Whether an employees act goes back to the employer? You can argue both ways, the employer can say the employee was acting outside his duties, etc

IV.

Causation:
o Both causation in fact and proximate causation must be established for D to be negligent.

A.
o

Cause in Fact:
Did D in fact cause Ps injury

o Cause in fact is the determination under either the but for test (single cause) or substantial factor test that (multiple causes) of whether D brought Ps injuries. 1. But for test: o Ds conduct is considered a cause in fact of an event if the event would not have occurred but for Ds conduct. o Take a look at the Snapshot. If you take Ds conduct away, would the accident still occur? o Expert witnesses help to lessen the speculation and improve certainty New York Central R.R. v. Grimstad (1920) P was on Ds barge which contained no lifejackets Ds barge was hit by another tugboat P falls offs and Drowns Held: The accident was not but for the lack of lifejackets. D is negligent but no factual causation Zuchowicz v. United States (1998) Calabresi. D negligently prescribed P an overdose of a drug; P suffered a lung disease and died after taking the drug Ps expert testified that the overdose likely caused the lung disease, but did not eliminate other factors Held: The court used a 2 part test to satisfy factual causation: (1) Ds negligence increases the chance of an injury; and (2) the injury actually occurs. So D was negligent as his negligence increased the chance of the lung disease a) Joint and Several Liability (Joint Tortfeasors) o Situations where an injury results from more than one negligent act(or) and if you were to remove just one of the acts, the accident would not have occurred o Rule: It is not necessary that the act of each D be the sole but for cause of the injury, so long as each act is a but for cause of the injury, they will be liable Ex: o Damages: Each joint Tortfeasor is liable for the undivided

consequences of his own actions If we can identify one Tortfeasor He is liable for all damages, then D can sue the other D to recover his share If we identify all Tortfeasors Damages divided appropriately Ex: Property destroyed by 20 cows trespassing. 15 cows owned by D1, 5 cows owned by D2. D1 pays 75% and D2 pays 25%. b) Two or more Ds; each D alone could have caused the injury???? o Either of Ds action would have accomplished the same result, so neither was truly a but for cause of the injury. o Test: Substantial Factor was Ds negligence a substantial factor contributing to Ps injury o Rational: Kingston v. Chicago (1927) D railway started one fire which united with another fire of unknown origin. The joint fire destroyed Ps property Held: So long as Ds fire was a substantial factor in the injury, D may be held liable for the injuries caused D is liable for full damages if neither of 2 wrongdoers is the but-for cause, they cant just get off the hook both are jointly liable (its not really a but for test here) Burden-Shifting or alternative liability: o Situations where more than one D is negligent but only one caused Ps injury and it is impossible to know which one of them caused the injury, the burden shifts to each individual D to prove that his action wasnt the cause-in-fact of Ps injury o If no D can meet the burden, all Ds will be liable Summers v. Tice (1948) Facts: Ds were both hunting quails. They accidently shot P in the eye and in the lip. It was unclear whose shot hit P in the eye. Both parties are individual tortfeasors but they will be looked at jointly because there is no way to determine whose shot was whose Held: The burden shifts to them to prove who is not liable. They did not meet the burden, so they are both liable. Public Policy: 1) This a remedy because of the practical unfairness of denying an injured person redress

c)

d)

e)

simply because he cannot prove how much damage each party did, when it is certain that between them they did all. 2) On the other hand, it is controversial because it makes one D who is might not be negligent bear the burden of showing that he is not liable; and it sometimes, a D that is not liable but cannt prove himself out might be screwed Market Share Liability DES cases -Sindell o DES was a chemical used in many different brands of a medicine taken by women and had negative effects on their daughters after birth o DES was fungible (a component chemically identical) and it is very hard to determine which brand was taken by each woman; with traditional but for, the women cant recover o Solution: P can sue all manufacturers who contributed to the creation of a general risk of energy, and divide damages based on the market share of each manufacturer. Michigan: any defendant may avoid liability by proving that it did not manufacture the product that injured the plaintiff California: regional market share is used NY: national market share is used, so the plaintiff can recover from any defendant who participated in the US market Sindell has forced companies to keep records of their sales so that they can limit their liability or sever liability; does this suffice, ask??? In contrast: Skipworth v. Lead Industries Association (1997) P, a baby, suffers lead poising from lead paint used in Ps house Unclear which brand of paint was being used Held: P cant use market share liability because: 1) Some Ds werent members of the industry when house was painted; and 2) Different Ds use different chemicals/methods (not fungible) Lost Chance doctrine: o Rational: We do not want to disincentive proper care of patients who are unlikely to be cured so we must hold individuals accountable for negligence regardless of a patients chance of survival

 Herskovits v. Group Health Coop. (1983) D diagnosed Ps lung cancer later than it should have, which decreased Ps chance of survival from 39% to 25%. P then dies. Rule: Cause in fact can be established if Ds negligence is the but for cause of a decrease in likelihood of survival (lost chance doctrine) D is liable. If the loss in chance is very slim, some courts will not apply it If the loss is great, you can use a substantial factor test P can only sue if the injury takes place (i.e., death), however, if no injury takes place, few courts recognize that P can recover for the loss of chance (i.e., recover 20% of death damage, for a 20% loss in chance) B.

Proximate Causation: General:

o Was Ps injury within the scope of the risk created by Ds negligence? o Working from the action forward: was the injury which resulted from Ds conduct foreseeable, natural or probable at the time D acted o Working from the injury backward: did anything occur along the chain of events from the injury to the act which would cut causation? Ex: Actions of 3rd party or P o If a foreseeable injury results from a negligent conduct, D is liable for the full extent of injury what matters is foreseeability of injury, not foreseeability of its magnitude o Rescuers are always foreseeable, so if D created a risk and a rescuer got injured, D is liable o Eggshell Thin Skull Plaintiff D takes P as he finds her If someone is particularly weak and fragile, and they get injured from a minor foreseeable harm, D is liable for all of the injuries suffered Ryan v. New York Central R.R. (1866) D created a large fire which spread to and destroyed Ps house two houses away. No liability too remote. D is only liable for damage that is the probable and natural result of his acts - foreseeable damage damage to ONE HOUSE was foreseeable, but damage to others required addl elements of wind, heat, conditions of houses, etc. P was second house so no recovery. MORE OF A POLICY CASE AS HE WOULDNT PAY

1.

FOR THE WHOLE CITY IF IT GETS

Berry v. Sugar Notch Borough (1899) P was driving a car when the wind blew down a tree that landed on Ps car. There was evidence that D was going over the speed limit D argued that speeding was the proximate causation Held: Court rejected Ds argument; said tree is prox. Cause - city liable for not trimming it Rule: An individuals ability to recover for injury caused by negligence is not automatically precluded by his violation of an ordinance Herbert v. Enos (2004) P was lawfully on Ds property to water flowers. Ds negligent repairs of toileT caused overflow, which resulted in water contacting electric system and shocks P Held: Ps injury was so remote and unforeseeable. No proximate cause. YOU COULD ARGUE BOTH WAYS

2.

Intervening/Superseding causes:
a) Intervening Causes: o Def: It is a cause: 1) Coming into active operation; 2) In producing the result; 3) After Ds negligence 4) From a source independent of Ds negligence o Ps negligence is a proximate cause, despite an intervening cause, if the intervening cause if foreseeable, that is: 1) A reasonable person would anticipate; or 2) D should reasonably anticipate under the circumstances o The intervening act itself must be foreseeable, not the result of the act b) Superseding Causes: o Def: An unforeseeable intervening cause that cancels Ds liability by breaking the chain of causation from Ds act to Ps injury. o It is not considered within the risk created by D o Usually you can argue both ways, as to whether the any act is intervening or superseding o All tortfeasors should anticipate further injury from medical malpractice, so they are liable for injury they caused and the malpractice injury (however, grossly negligent malpractice might not be foreseeable, and thus, not superseding) o Typical Superseding acts are generally: 1) Criminal or malicious, intentional tortious intervening acts, in some instances; 2) Intervention by one with higher ethical duty to the victim (i.e.,

parent or guardian);??? 3) Extraordinary negligent intervening conduct 4) Acts of God (i.e., floods, tornadoes) Brower v. New York Central (1918) P owned horse and cart that was struck by Negt train; driver was stunned and couldnt prevent theft of barrels. Ds detectives on the train did not stop theft.

Held: D is liable because natural and probable result is THEFT. Its a dangerous world. The risk of theft was foreseeable to D as D itself had detectives. Wagner v. International Ry. Co. (1921) Cardozo - Danger invites rescue! Ps cousin was thrown from Ds railway car D is negligent. P went to search for cousin and sustained injuries in the process Rule: Negligent parties are liable to those who are injured in the course of reasonable rescue attempt (when need to rescue was due to the negligence) 3.

Change of Harm:
o Majority Rule: D is liable for direct consequences of his act, foreseeable or not, if there are no other intervening causes (Polemis) liberal In re Polemis & Furness, Withy & Co. (England 1921) Ds servants negligently let a wood plank drop causing a spark, which ignited petroleum and burned Ps ship. D could NOT have reasonably anticipated that the falling plank would cause a spark. Held: It doesnt matter whether D could have anticipated the type or extent of damage resulting from his negligence; if he has acted negligently, hes liable for all direct consequences of the act. (And here, the Arbitrator found that the spark and fire were direct consequences of the negligence dropping). It is no defense to say that the damage was not the natural and probable result. Under Polemis, most courts will determine an act as a direct causation, despite the presence of a subsequent intervening act On the other hand, Wagon Mound accounts for intervening acts, because if it was not foreseeable, it will cut the chain of causation Most American JDs have adopted the Polemis rule Does this mean we dont need foreseeability, just direct cause????? o Minority Rule: D is liable only for direct consequences that are

foreseeable conservative Overseas Tankship v. Morts Dock & Engineering (Wagon Mound #1) (Australia 1961) Ds boat spilled oil, which damaged Ps dock; Wind brought oily water to another place and caused an explosion Held: P would be liable for damaging the dock, but not for the resulting fire, as this was not anticipated by D unforeseeable when he spilled the oil. No proximate cause (Polemis is wrong).

4.

Unforeseeable Plaintiff:

Palsgraf v. Long Island R.R. (1928) Employees of D railroad negligently pulled man onto speeding train as he tried to board; he dropped his box containing fireworks (which employees had no reason to think contained them); they exploded, tipping over scales in station and injuring P. Cardozo (Majority): D is only liable to all Ps within the reasonably foreseeable zone of harm a reasonable person wouldnt have seen the mere dropping of a parcel would result in this injury; no proximate cause. The man trying to board was a foreseeable P, but the injured man was an unforeseeable P Andrews (dissent): If the injury was a direct result of the negligent act, then there is proximate causation, even if P is not in the zone, or unforeseeable. Agrees with Polemis. DOES ANDREWS ALLOW AN INTERVENING CAUSE NEGATE NEGLIGENCE UNLIKE POLEMIS IF THE HARM IS A DIRECT CONSEQUENCE OF THE NEGLIGENCE V.

Negligence Infliction of Emotional Distress:

A. Elements: 1. P sees someone else become the victim of a tort \ Construction worker sees co-worker crushed by a crane Parent learns by telephone that his son has just been killed in a fire 2. Ps distress is both foreseeable and severe B. Additional one of 3 tests: 1. The Impact Rule (Traditional rule by early courts): NIED is limited to claims by those who were subject to physical contact by D. 2. Zone of Danger Rule: Someone who is not physically contacted, but is in the zone of danger at the time of the tort my collect damages for NIED 3. Limited Forseeability Rule (Dillon): for a D to liable to a 3rd party for

NIED: I. 3rd party actually witnessed the accident Is watching a video instantly enough? Is watching a video after a month enough? II. The distress results directly from witnessing the accident, and III. 3rd party is a direct family member to the victim

Dillon v. Legg (1968) P was hit by D while crossing a public street. Ps mum and sister were with her and witnessed the entire accident. They sued for NEID. Held: Used the limited Foreseeability test and held that D is liable for NEID. A reasonable person standard should be applied to the foreseeability of the injury. Driver would reasonably foresee that mother of a child he kills in front of her eyes will suffer from emotional distress.

Affirmative Duties:
o Situations where liability is established due to an individuals failure to act

A. No Duty to Rescue:
o Unless you are the cause of Ps harm or injury (whether you are negligent or not), you do not have a duty to rescue her o Critiques: Leslie Bender (Feminist): This bright line, individualist rule is a byproduct of male dominated legal theory; patriarchal emphasis on individual needs reflects a more masculine way of life. Women would care about the community. Posner: This rule is inefficient as it is causes a huge social loss and prevents people from using their information/ability to gain wealth (People would pay a lot of money to have their life saved). However, this approach seems infeasible because the market is not perfect in many situations (cant freeze the moment)

Yania v. Bigan: D urged P to get in to the water. The rocks around the water were so slippery that P couldnt get out. D refused to help him and P

drowned. Held: D has no duty to rescue. Not liable for Ps death.

Exceptions: a) Special relationship (see C below) or b) RST 324: When A starts rescuing by aid or protection B, A is liable to B for any injury caused to B by: 1. Failure to exercise reasonable care while rescuing; or

2. Discontinue the rescue, leaving B in a worse position than when he started rescuing him

B. BUT Duty to Warn:

o Rest. 39: When an actors prior conduct, even though not tortious creates a continuing risk of physical harm of a type characteristic of the conduct, the actor has a duty to exercise reasonable care to prevent or minimize the harm. Codified Montgomery. Montgomery v. National Convoy & Trucking Co. (1937) Ds truck stalled on an down the hill of an icy road w/out fault. Cars passing the crest of the hill would not have time to stop before hitting Ds truck because of the icy conditions. D did not put a warning sign by the crest. P crashed into Ds truck. Held: using the standard used in Rest. D had a duty to warn to prevent the harm, but D negligently failed to warn and therefore is liable (here the act of negligence was failure to act, as opposed to negligently performing an act that causes the accident).

C. Landowners Duty:
o A tenant is also considered a landowner

o A landowner duty to the people that enter her property is determined based on the status of the entrant; 3 levels of entrants: 1. Trespassers: have no permission/privilege to enter Duty: no duty to warn, inspect or repair

 I.

Except if: Under the attractive nuisance doctrine, which requires the landowner to: 1) Exercise ordinary care to avoid harm to children; 2) risk; Which is due to a reasonably foreseeable

3) Caused by a dangerous artificial condition on the land; 4) In an area where children are likely to trespass. 5) Also, the risk of injury must outweigh the cost of remedying the dangerous condition. II. If the trespasser is anticipated owner has knowledge of frequent use: Regular passage ways in ones property used by others Incentives companies to cut off passageways Duty: to warn of any known artificial conditions that are likely not to be discovered by the trespasser Is this the same as discovered trespasser???

III.

Witnessed trespassers (only in some states)

2. Licensee: A person who has express or implied permission by the owner to enter the land or remain on it, but does not have a business purpose for entering. Ex: social guests, emergency personnel (firemen, policemen), uninvited sales people and someone getting in the property to escape the rain. Duty: The landowner has a duty to warn them of hidden/latent dangers but not patent dangers, when you see an obvious danger say that it is unlikely that P

will be able to recover because the danger was obvious and D has no duty to warn of patent dangers Some courts reject the classification of firemen as licensees And a duty to avoid any acts of gross negligence with regard to any activities that the owner has undertaken on the premises But is not under a duty to licensee to repair or inspect any defects, only provide a reasonable warning

3. Invitee: either (a) enter land by express or implied invitation to conduct business; or (b) enters for purposes for which the land is held open to the public. Ex: Store customers and patrons of places open to the public (i.e., airport, museum, etc.), and non-emergency public servants, like postmen and garbage men. Duty: The landowner The landowner has a duty to warn them of hidden/latent dangers and patent dangers. And to remove the danger if a warning would not be sufficient And a duty to act with reasonable care regarding activities that the owner has undertaken on the premises

Although, firemen have been traditionally treated as licensees (as they are aware of the danger of their job), some jurisdictions are moving towards classifying them as invitees. Areas open to the public generally constitute nondelegable duties or duties that the owner cannot discharge through an independent contractor agreement. The trend is moving for a single reasonable care standard for both invitees and licensees.

Landowners liability to outsiders FC 295. 4. Easement: have express or implied permission to enter, but does not have a business purpose for entering.

D. Special Relationships:
o RST 315 General Principle (p. 548) There is no duty to control the conduct of a third party as to prevent him from causing physical harm to another unless: a) A special relation exists between the actor and the third party (i.e., Father: actor, Child: 3rd party) which imposes a duty upon the actor to control the third persons conduct, or b) A special relation exists between the actor and the plaintiff which gives the plaintiff a right to protection Respondeat Superior o Employers can be liable for accidents caused by their employees if the conduct that caused the accident was within the scope of employment Landlord-Tenant o No duty as a matter of law, but landlord has a reasonable duty to protect against criminal liability in the common areas o Landlord is responsible for criminal actions if they are foreseeable, but only liable if they are not reasonable (i.e., provide enough security in the lobby) o Standard of care is the level of security as when the tenant arrived (Kline v. 1500 Massachusetts Avenue Apartment Corp.) o Cheapest cost avoider? o Colleges and universities have a duty to protect students against reasonably foreseeable criminal assault o Kaldor-Hicks efficiency: net benefit even though individual landlords are losers prevents crime Doctor-Patient o There is a duty to warn another if one reasonably (held to standard of reasonable doctor) believes that a patient might cause harm to another (Tarasoff v. Regents of University of California) Tarasoff v. Regents of University of California (1976) Student told psychologist that he intended to kill P. Psychologist did not warn P and did not take further action. Held: The privilege of Psychologist/patient must be broken if it is essential to prevent dangers to others. The privilege ends where peril begins. Doesnt give doctors a very good standard from which to determine what is really dangerous, and what is actually just an empty threat (People often express anger by saying I am going to kill him all the time). Lawyer-Client o Attorney/client privilege, except:

A. B.

C.

D.

1. If you are withholding information about a crime or a fraud 2. If you know that your client is lying/guilty, you cannot put him on the stand o Journalists have same. But see shield laws (in state only, not fed) E. Promotional liability: Weirum v. RKO General Inc. DJ on a teeny bopper radio station announced that the first people to find him in his radio van would get concert tickets. Kids get in accident with P while speeding to get to DJ. P sues DJs employer. Knowing audience is all teenagers, and knowing they were going to try and get there ASAP, radio station should have reasonably known that they were creating a foreseeable danger by running this promotion. RKO has a special relationship with its audience. RKO is Liable! Filenes Basement Wedding Dress Sale It is Forseseeable that people are going to run around like crazy, creating a dangerBUT your company still wants this. What do you as a lawyer do? Get rid of glass displays, make aisles larger, have more security guards, have security and blankets outside for the people who sleep overnight outside your store, traffic directors, etc.Be Creative!!! F. Bailment: o When you handover goods to someone elses possession, though you retain ownership o Subject to Statutory Laws (Usually) Statutes require reasonable care by the party who takes temporary possessions Types: 1. Dry Cleaners 2. Parking Garages 3. Valets G. Dramshop Liability: o Liability for those who sever alcohol to, or encourage consumption of alcohol by others ExA bar shows someone the door who is too drunk to drivehe then gets behind a wheel and injures someone Allows For: 1. The Injured Person (Plaintiff) to sue the Bar 2. The Driver to sue the Bar (in a few states) o Person Bringing Suit Must prove negligence on behalf of the bar

because it was clear the individual was not fit to drive Typical Evidence: -I saw him talking to the bartender before he left -The waitress came over and took their order a dozen times o Traditionally, confined to bars, restaurants but has been expanded Sports Stadiums Liable for people drunk driving after sporting events Servers are required to know exactly who is getting each beerThey cannot use the excuse of I work an entire section, how would I know who got the drink Stadium DefenseHard to tell how drunk someone is when he is sitting in a seat

Defenses for negligence

o Contributory negligence Plaintiffs contributory negligence is a completer bar for recovery in contributory negligence jurisdictions o The only exception is under Last Clear Chance doctrine, under which if the defendant has the last chance to avoid the harm, but failed to do so, the plaintiffs contributory negligence will not be a bar for recovery (but the defendant must have a chance to be able to act) Plaintiffs contributory negligence is a completer bar for recovery in modified comparative negligence jurisdictions, if the plaintiff is more than 50% at fault Plaintiffs contributory negligence will not prevent recovery in modified comparative negligence jurisdiction, if the plaintiff in less than 50% at fault Comparative negligence In pure comparative negligence jurisdictions the plaintiff can recover damages for the percentage of fault attributed to plaintiffs negligence Implied Assumption of the risk: Requires that P had understood the risk and assumed it by his conduct Only applies in contributory negligence jurisdictions It is a complete bar to recovery Express Assumption of the risk: Requires that P had understood the risk and assumed it expressly (not just by his conduct) Applies in all jurisdictions It is a complete bar to recover

o o

o o o o o o

Strict Liability
o General situations in which strict liability will be imposed:

1) Animals 2) Ultra hazardous or abnormally dangerous activities 3) Defective, unreasonably dangerous products (products liability) o Purpose: a) Encourages people to avoid high risk activities, thereby limiting injuries and forces activities whose risks outweigh utility into insolvency b) Encourages those who continue high risk activities to take precautionary measures c) Forces the Least Cost Avoider (who can best spread the costs) to absorb the cost of the abnormally high risk Theories: a) Calebresi if we can be sure who the least cost avoider is, then we should SL b) L & E Activities for which risks outweigh benefits to society will not be able internalize/spread the costs, and will rightfully go into insolvency Internalization of costs allows the price to reflect the true cost of the activity

Contributory negligence is not a defense for SL, but assumption of risk is????

1. Animals

o The strict liability is limited to the kind of harm which makes the animals abnormally dangerous. A wild animal knocks over someone while chasing a cat. No SL

A. Domesticated Animals o The owner is strictly liable if he knows or has reason to know of the domesticated animals dangerous propensities (uncharacteristic of the species) If a domesticated animal has bitten someone before, the owner

is strictly liable for any further attacks One free bite rule If a domesticated attacks P, and the owner has no prior knowledge of any dangerous propensities, then P can only bring a negligence claim against the owner

B. Wild Animals o An owner of a wild animal is strictly liable for the damage caused by her animal, (regardless of the owners knowledge of the animals dangerous propensities) An animal is wild if not used in the service of mankind and will not come back if you let go (animus revertendi)

Claims for injuries by animals at zoos and national parks are brought under Negligence. Same for anyone keeping a wild animal as a part of public duty. Gehrts v. Batteen (2001) P asks D if she could pet her dog. D consents and the dog bites P. Held: No strict liability; the dag has never bitten anyone or should dangerous propensities before, so Negligence standard applied. D did nothing unreasonable. D is not negligent.

C. Cattle trespass: o An owner or possessor of livestock or other animals, except for dogs and cats, that intrude upon the land of another is subject to strict liability for physical harm caused by the intrusion. Res 21.

2. Ultra-hazardous or abnormally dangerous activities o One who carries on an abnormally dangerous activity is liable for the harm that results from the activity, even if he has exercised the utmost care to prevent that harm. Rest 519. o The strict liability is limited to the kind of harm which makes the activity abnormally dangerous. Ex: if train carrying dynamite runs over a person, the owner of the train is not strictly liable.

Madsen: Road blasting company not held liable for the loud noises they make which caused animal to eat its young.

o The following factors determine whether an activity is abnormally dangerous (sliding scale): 1) extent to which the activity involves a high risk of serious harm to people/property; 2) likelihood that the harm that result from it will be great; 3) inability to eliminate the risk by use of reasonable care; 4) the extent to which the activity is not commonly engaged in the particular community; and Blasting in desolate area v. blasting in urban area

5) the extent to which the activitys danger outweigh its utility to the community (i.e., balancing test). Least cost avoider argument (you lay out the elements, and say if D is liable he will have an incentive to fix the problem) o Efficiency argument: L & E Activities for which risks outweigh benefits to society will not be able internalize/spread the costs, and will rightfully go into insolvency o Contributing actions of others: One who carries out an abnormally dangerous activity is still liable for all resulting harm even it is caused by innocent, negligent or reckless conduct of a third party; an animal; or a force of nature. DOES THE EVENT OF THE INJURY HAVE TO BE FORESEEABLE??? A PLANE CRASHES IN A FACOTORY OF EXPOLOSIVES?? o o Ps assumption of risk of harm from an abnormally dangerous activity bars his recovery for the harm o If Ps activity is abnormally sensitive, D is not strictly liable for harm to P resulting from Ds ultrahazardous act. Rest 524A???? Ex: Blaster not liable if the neighbor next door is building a house of cards and it falls down. (1990) (Posner) Indiana Harbor Belt RR v. American Cyanamid Co.

D hired RR company to ship its chemical

 The chemical leaked and state ordered RR to pay for decontamination effort RR sues D under strict liability

Held: Transportation is the ultrahazardous activity not the manufacturing. Also, SL for ultrahazardous is meant to give an incentive to change/reroute/reduce the activity. Here, there is no incentive as rerouting would be too costly and might actually increase risk of accidents. D is not strictly liable. o o Plaintiffs assumption of the risk of harm bars him from recovery Contributory negligence is not a defense for strict liability unless the plaintiff knowingly and unreasonably subjected himself to the risk No strict liability for harm caused by the ultra-hazardous activity if the harm would not have occurred but for the abnormally sensitive character of the plaintiffs activity o China shop next to blasting site

Nuisance
o Nuisance is a conduct by a D that creates an unreasonable, substantial interference with Ps use or enjoyment of property (need not be intentional or negligent) Loud noise, noxious odors, smoke o Also suggests that rational actors, if left to their own devices, will reach inefficient societal outcomes. E.g. Tragedy of the Commons if people own land collectively, theyll exploit it; if you zone it for private use, people will preserve it more wisely b/c they realize the effects of their actions on their limited resource. o This is also an area that feminists love b/c it represents a jurisgenerative not jurispathic approach by a Ct; instead of simply declaring a winner, you create a solution. 1. Private Nuisance: o Rest 826, An invasion of anothers interest in the use and enjoyment of land is unreasonable if: a) The gravity of the harm outweighs the utility of the actors conduct; or b) The harm caused by the conduct is serious and the financial burden of compensating for this and similar

harm to others would not make the continuation of the conduct feasible o In a nuisance claim, whether the conduct is unreasonable depends on the burden on Ps enjoyment and use of his property versus the utility and necessity of the Ds conduct. Also it is an objective standard Church bells are not a nuisance according to a reasonable person standard. Rogers. An activity to be a nuisance must offend a reasonable person of ordinary sensitivities, not an abnormally sensitive plaintiff. Otherwise, factories would shut down every time a sick person passed by, etc. Industry could not prosper. Roger. o The difference between trespass and private nuisance is physical invasion. Trespass requires physical invasion (building an overhang over Ps property; sending ones child to P when P asked not to) Private nuisance does not require physical interference (strong lights, etc.) A conduct can both physically interfere with the use of property (trespass) and disturb the propertys owner use and enjoyment of her property (private nuisance) Ex: Ds cement plant sends massive dust onto Ps property o Protects occupants, not just owners. o 3 types of interferences that may constitute the basis of a private nuisance 1. Land itself (i.e., water pollution, ground shaking that damages building) 2. Health/comfort (i.e., air pollution, noxious odors) 3. Peace of mind (e.g., funeral parlor, leper, mental hospital, explosives factory) o Remedies in a claim for private nuisance: 1. Past and present damages, and possibly permanent. 2. Injunction Boomer v. Atlantic Cement (1970) P lives in a house next to Ds cement factory. Ps house always gets covered with dust and pollution from Ds factory. Because D has invested 45 million in plant and employs 350 workers, the court determines refuses to issue an injunction. Jurisgenerative Solution: D will pay damages to P but keep the factory open Rule: permanent damages may be awarded instead of injunction where the value of the activities in question is far greater than the relatively small damage they cause. Ct follows basic Coase analysis: factory v. homeowners (much like ranchers v. farmers). Here Ps would not prevail

b/c the transactional costs (of organizing many Ps with small amounts of damages) would make litigation not worth their time. You can argue efficiency in determining the type of remedy (Pareto or ) Caose Theorem Feminist theory: Feminists challenge laws that were written during a period that reflected a male dominated society, as being biased. They criticize the law as being jurispathic and they argue for a jurisgenerative approach. Here, P could use the feminist theory to argue that an injunction should be applied here, but that the relief should be for damages paid to the defendant. This would be a jurisgenerative solution. Also, Paretos efficiency theory, this would be an efficient solution as it will not produce any losers the landowner will get compensated and the [ ] will get to keep his [ ]. This solution will also be efficient under Kaldor-Hicks efficiency theory, even if P will be considered a loser by not getting an injunction, as this solution will produce more winners and net benefit to society, as D will be able to [ ]. Under Coase 1, regardless of the allocation of rights, the parties will reach the most efficient solution that is determined by the market, assuming there are no transactional costs. However, Coase 2 demonstrates that the assumption of no transactional costs is unrealistic; therefore, transaction costs could affect the outcome. In this case, if P will only get damages, transaction costs for litigation might stop him from suing. o Stray voltage from wires injuring Ps property was not a nuisance. It could be a nuisance if is unreasonable, but here it wasnt. Vogel. o D adds floors to his hotel that blocked sun, air and view from Ps property causing P to lose business. This conduct is not a nuisance. Fontainebleau Hotel. Exception: If a conduct is done with the malicious intent to harm the D (spite fence), then private nuisance could apply as it is likely that there is no utility or necessity to P from the conduct, while the conduct places a burden on Ps enjoyment and use of his property Ex: Painting a wall in yellow with obscene drawings facing Ps property to annoy him o Coming to the nuisance in and of itself, doesnt constitute a defense to a private nuisance, however, it is considered in determining the unreasonableness of the conduct) Ex: Moving to a house knowing that there is a mosquito ranch next to it, unless you intentionally moved to the house to bring a suit against the ranch owner.

2. Public Nuisance:
o A conduct or condition is a public nuisance, if it unreasonably

interferes with the health, safety, or convenience of the general public in public property. o Only the government can bring a public nuisance claim o Private citizens cannot bring a public nuisance claim unless they can show a special injury injured A condition that closes a road preventing you from getting to you house, is one that you can bring a public nuisance claim for, as opposed to closing the road where everyone cant get to work Partial loss of access to land is usually not a basis for public nuisance claim by a private citizen (i.e., the direct street to your home is blocked but there another street that will get you to your home) Personal injury from a condition 3. Takings:

Products Liability
o You can sue under negligence standard if you can prove that the manufacture or seller acted in an unreasonable way (was at fault) o Benefits/Purpose: 1. Manufacturers are usually the least cost avoider as they can redistribute the liability for injuries through insurance to all users of the product. Thus, the price of the product will reflect its true cost, rather than externalizing accident costs to innocent victims. Also they can anticipate all hazards more than the public 2. The risk of liability encourages manufacturers to make their products safer 3. Encourages innovation/product modification The one making the safest product for cheaper will be profitable The one who cannot internalize safety costs for a reasonable price will go in to insolvency (efficiency argument) o
Negatives: 1. Product release is much slower usually marketed outside the U.S. first to assess risks 2. Raises the cost of our products Law and Econ: Prefer the Hand formula because they think it is more efficient because it encourages Ds to make a calculation of utility every time they act Goal: Improve product safety until the point where the cost of the accident is less than the cost of improving the product We dont want every car to be a Volvo - in safety - because not everyone can afford Volvos.

o o

o Test: Under R2d 402A, a seller engaged in the business of selling a product is strictly liable for harm caused to a consumer, user or his property

caused by a defective condition in the product that is unreasonably dangerous to the consumer, user or his property, if the product has not undergone significant modifications after leaving the sellers control. o A plaintiff can bring a products liability claim based on strict liability if he was physically harm by a product that was sold by a seller, who engages in the business of selling the product, and the product has not been substantially modified after leaving the sellers control, as long as the harm was caused by a defect in the product that is unreasonably dangerous o Break it down: R2d 402A authorizes recovery: 1. By a user 2. From a seller, who engaged in the business of selling the product (i.e., a merchant, not a casual seller like eBay sellers or craigslist or seller of his car) Any merchant in the distribution chain (privity is not required)

Service providers who occasionally sells products are not merchants 3. For physical harm (i.e., economic loss like repairs or lost profits are likely not covered) 4. Caused by a defective product 5. That is unreasonably dangerous 6. If the product has not undergone significant modifications (to the defective aspect of the product) after leaving the Ds control (usually presumed if it goes down the distribution chain) 7. Additional: Foreseeable use Foreseeable misuse: If D should have reasonably foresee his product being used in another matter, he must build it to withstand such use Ex: Standing on a chair is a foreseeable misuse No privity required: everyone can use if harmed by a defective product Defenses: Substantial alteration of the product Unforeseeable misuse Getting cut by glass after throwing a beer bottle at the wall The defect is open and obvious Knife cutting someones finger Manufacturing Defects: A product has a manufacturing defect if departs from the manufactures own specification (design) for the product (different from the all the others that came from the same assembly in a way that makes unreasonably dangerous), and a result the product dangerously defective. You still have to prove the elements of product liability

o o 1. 2. 3. 1.

2. Design Defects: A product can be defective if its design makes it unreasonably dangerous to the

user The consumer expectation test: The product is unreasonably dangerous if its dangerousness is beyond the expectation of the ordinary consumer who is familiar with its characteristics Ps favor this test Doesnt place a burden on them to demonstrate a safer design, and its easier and cheaper as they need to show is that the product was less safe than a reasonable consumer would expect However, it doesnt always support broader liability (i.e., P thinks a machine with an exposed switch is a reasonable design satisfies the consumer expectation test, but it is easy to relocate it to avoid the risk fails the risk utility test) Critique: Its hard for a jury to judge the ordinary consumer Even if there is a cheap, safe alternative, a product can still pass this test OR The risk utility test: HOW IS IT DIFFERENT FROM THE REST 3RD??? Rest 402A has another test, the risk-utility test, while Rest 3rd uses a similar test. Under this test, a product is defective if its danger outweighs its utility, considering the feasibility of a less dangerous, alternative design, this test looks at several factors including, the gravity of the danger used by the challenged design, the likelihood that such danger would occur, whether the defect was known or should have been known to the manufacturer, and whether there is an alternative design that is safer, economical and practicable Factors to consider: 1. How useful is the Product? 2. How likely is it that those risks would occur? 3. How risky is it to use? 4. Is it Common? How many people use it? 5. Are their reasonable/not prohibitively expensive alternative designs? rd Rest 3 test: A product is defectively designed if it has a reasonable alternative design that is: a) Safer; b) economical (same or just a little bit more expensive); and c) practical (a dull version of a knife is not practical). Puts the burden of showing a reasonable alternative design on P 3. Defects due to Failure to Warn: A product is defective if a) It has residual risks that cant be eliminated by physical redesign; b) The user is unaware of these risks; and

It lacks adequate warnings about the risks An adequate warning is one calculated to clearly alert the user of the danger and how to avoid it Factors to Consider:

c)

(1) Extent and likelihood of the risk (2) Users likely understanding of the danger (3) Means available to convey a warning (4) The likelihood that too many warnings will decrease sales/effectiveness/utility o In these cases the user is the cheapest cost avoider, as she can avoid the risk posed by the product at a lower cost than the cost of redesigning the product (given the user has adequate warning) o Exception: Learned Intermediary: Warning may be given to a learned intermediary who is presumed to care for the consumer MacDonald v. Ortho Pharmaceutical P took birth control pill and developed a stroke The pills has warning for risk of death but not a stroke Held: D has a duty to warn users of birth control pills not just intermediary pharmacist/doctor, as birth control pills usually do not involve significant contact/consultation with doctor If a manufacturer markets directly to consumers, it cant pass off the duty to warn to a learned intermediary and must do the warning themselves o Comment K There are some products that are so beneficial to society, that even though they may cause some harm, it would be unfair and wrong to apply a strict liability test Because this is a pharmaceutical product, it falls under Comment K of rest. 402A, provides that some products, like pharmaceutical products, has a great social value thats why their manufacturers should not be held liable under a strict liability standard. Under, Kearl, if there is a product defect in a pharmaceutical product, a mini-trial will be held to determine whether to apply strict liability or negligence. Under Brown, any pharmaceutical product would fall under Comment K, and the manufacturers of this product will be held liable only under a negligence standard. Under the restatement 3rd view, a drug is not defective if any reasonable health provider would prescribe it to any class of patients Applied mainly for pharmaceuticals -Ex. Polio Vaccine

Plaintiffs conduct for strict liability

Implied Assumption of the risk:

Requires that P impliedly understood the risk and assumed it by his conduct Is a complete bar for traditional strict liability claim But for products liability claims: courts generally require a defendant to show that: 1. The plaintiff understood the risk and assumed it; and 2. Acted unreasonably in using the product Express Assumption of the risk: o Requires that P understood the risk and assumed it expressly (not just by his conduct) o A complete bar to all strict liability claims o o o

Defamation
Defamation requires the following: 1. A false statement by D tending to harm Ps reputation in a respectable segment of the community 2. Of or concerning P It doesnt need to refer to P by name, as long as it is reasonably understood to refer to him 3. Negligently or intentionally published (communicated) to at least one third person capable of understanding the statement Negligent publication is where D doesnt intend to communicate the statement to a third party, but it was foreseeable that a communication would occur. 4. Some degree of fault as to falsity 5. For slander, special harm Corporations and businesses can be defamed Opinion: a statement of opinion cant be defamatory, unless its backed by false facts Ex: if the listener to the statement thinks its based on an undisclosed fact, then its a fact Parody and humor are protected as a form of opinion If the statement is a matter of public concern, P has to prove its falsity, if not, P only has to allege falsity in the complaint, and D has to prove the statement was true in order to use truth as a defense. Under the single publication rule, a book or newspaper or radio/television broadcast are treated as a single publication Someone who repeats or republishes a defamation is liable as if he or she is the original publisher Someone who delivers a defamatory matter is not liable as long as he did not know or have reason to know of the defamatory content (a newspaper delivery service or library) Internet service providers are not liable You cant defame the dead General damages in defamation: a harm of a non-pecuniary nature Humiliation, harm to reputation w/out financial losses, etc. Court dismissed the argument about fiction, holding that if a character can be

reasonably construed to be that person, its defamation. Muzikowski If a word has a double meaning, the court will assume the less offensive one Large groups are generally unable to maintain defamation actions, but smaller groups are The smaller the group the more likely they can succeed in maintaining a defamation action The defamation matter should be about the whole group, not just some Intra-corporate communications are not treated as publications as long as within the scope of employment (i.e., CEO gives a letter to secretary that says P is a bad employee, not a publication) CEO gossiping with another employee and says P is a bad employee publication 1. Libel Is a publication of defamatory matter that is either written or in some permanent form Radio and television broadcasts are generally treated as libel Libel per se: is a statement that is libelous on its face When there is no additional facts required to establish its defamatory nature D names a person in the defamatory statement Libel per quod: is a libel that is not defamatory unless the statement is tied to some extrinsic facts. Some jurisdiction requires a showing of special damages (see below) for libel per quod A headline may be libelous even though the full story explains it, if a reasonable person would come to a different conclusion by reading the headline than the one in the story 2. Slander Is a publication of defamatory matter that is spoken by words or temporary For slander, P needs to prove special damages or harm (pecuniary losses) A lost job, gift or business opportunities If P cant prove them, he wont be able to recover at all Very hard to prove For slander per se, P doesnt need to prove special damages or harm Slander per se: a) Statement reflecting adversely on Ps business or profession Calling a doctor a butcher, a military person a coward b) Statement imputing a loathsome disease to P c) Statement accusing P of being a criminal d) Statement imputing a serious sexual misconduct to P
Non-constitutional defenses: 1. Consent 2. Retraction 3. Truth is a defense With a media defendant and a matter of public concern, P has to prove the statement is false, otherwise, P only has to allege falsity in his

4.

5.

6.

7.

complain, and D has to prove truth as an affirmative defense Absolute privileges (not abrogated by malice) a) Judicial proceedings b) Legislative proceedings c) Executive communications d) Communications that P consented to e) Communications between husband and wife f) Communications required by law to be published such as media broadcasts of political statements But if a person says the same thing outside these proceedings or communications, he might be liable Qualified privileges (abrogated by malice) a) Protection of the interest of the publisher b) Protecting the interest of the reader/listener (telling D that P is a thief to protect Ps interest) c) Protecting the interest of the public (reporting a crime) d) Family relationships (only immediate family members) e) Protecting a common interest (such as partners or business associates or members of a group) Most states take the position that qualified privileges protects only a person who reasonably believes that the defamatory statement is true It should be done to protect the interest New York Times privilege: for defamatory statements of public officials or public figures, P must show actual malice: knowledge of falsity or reckless disregard of the falsity Self-defense privilege: a person can make a publication in an appropriate manner anything that he reasonably believes to be necessary to defend his own reputation against the defamation of another, including a statement that the other is an unmitigated liar.

Privacy
1. Intrusion upon seclusion: A defendant is liable for invasion of the plaintiffs privacy if he intentionally intrudes, physically or otherwise, upon the seclusion or private affairs of another, if the intrusion would be highly offensive to a reasonable person. Has to be in a private place cant be in public Doesnt require a publication Must be highly offensive to a reasonable person (excludes highly sensitive individuals) 2. Public Disclosure of embarrassing private facts A defendant is liable for invasion of plaintiffs privacy if he gives

publicity to a matter concerning the plaintiff private life if the matter publicized a) would be highly offensive to a reasonable person and b) is not of legitimate concern to the public. Disclosure to a third person is considered publicity Applies to true facts, not just false ones as in defamation Must be highly offensive to a reasonable person (excludes highly sensitive individuals) Exception for media or others: if the publication is newsworthy that is of legitimate public concern or interest (mainly applied to public figures or officials) 3. False light o A defendant is liable for invasion of plaintiffs privacy if he gives publicity to a matter concerning another, which places the other in to a false light, if the false light would be highly offensive to a reasonable person, and the actor had knowledge of or acted with reckless disregard as to the falsity of the publicized matter and the false light o The information alleged must be false as in defamation o Must be highly offensive to a reasonable person (excludes highly sensitive individuals) o No exception for matters of legitimate public concern o Time requires a showing of known falsity or reckless disregard with respect to media publishing matters about public official and figures (but isnt this required in the restatement) 4. Appropriation of plaintiffs name or likeness D is liable for invasion of the plaintiffs privacy, if the defendant appropriates for his own use or benefit the name or likeness of the plaintiff. Many states require that the appropriation is done for a commercial or business use (like using Ps name or likeness in an advertisement) Unlike the rule that you cannot defame the dead, appropriation can be brought by the state If the plaintiff is a public figure or official, his name can be used in the media as long as it is not for advertising purposes or other commercial use