1

I. Establishing a Claim for Intentional Tort to Person or Property A. Battery Prima facie case: 1. Elements: a. Act committed by the defendant b. Intent to inflict harm or offensive touching physical invasion of the plaintiffs person i. Intent-Whether he acted with the desire to cause the result or believed that the result was substantially certain to occur c. Harmful or offensive touching contact occurs i. Harmful- Inflicts any pain, injury, disfigurement, or impairs any body organ/function ii. Offensive- Offends a reasonable persons sense of personal dignity d. Causation Ds contact must directly or indirectly cause/bring about the injury Restatement 13. Battery: Harmful Contact An actor is subject to liability to another for battery if: (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) a harmful contact with the person of the other directly or indirectly results. 1. Requiring Fault: Van Camp v. McAfoos *Case- Appeal from the granting of Ds motion to dismiss. *Facts- Defendant age three operated a tricycle on public sidewalk, struck, and injured plaintiffs Achilles tendon. Plaintiff never alleged McAffos had an intent to make contact. *Issue- Whether the plaintiff must plead a valid cause of action alleging ultimate facts from which the fact finder can conclude the essential elements of the cause remain present. *Rule of Law- A pleader must plead a valid cause of action alleging ultimate facts from which the fact finder can conclude the essential elements of the cause remain present. There must be intent in the claim for a battery action. *Holding- Intent remains a necessary element to give rise to a battery claim. 2. Elements of Battery: Snyder v. Turk Battery- an intentional, un-consented to contact with another. Offensive contact- contact which is offensive to a reasonable sense of personal dignity. *Case- Appeal from a direct verdict in a battery lawsuit. *Facts- Defendant doctor performing a gall bladder operation grabbed plaintiff nurse assisting in operation and pulled her face down toward the opening in the patient saying, Cant you see where I am working? Im in a hole. I need long instruments.

Bradney 2 *Issue- Whether a battery occurs when a person initiates contact with another that is offensive to a person of reasonable sense and dignity. *Rule of Law- Reasonable minds could conclude that a person intends to commit a battery when he initiates contact with another that is offensive to a person of reasonable sense and dignity. *Holding- Implements the reasonable minds test. Cohen v. Smith *Facts- Plaintiff admitted to hospital in order to deliver baby. Defendant male nurse defied plaintiffs religious beliefs prohibiting her from being seen unclothed by a male by observing and touching plaintiffs naked body. *Issue- Whether a person remains not only liable for contacts which do actual physical harm, but also for those relatively trivial ones which are merely offensive and insulting. *Rule of Law- A defendant remains liable not only for contacts which do actual physical harm, but also for those relatively trivial ones which are merely offensive and insulting, so long as there is contact. Defendant is laible for harms that are offensive and insulting so long as there is physical contact involved. Objective: reasonable person standard Subjective: individual o Its objective when defendants dont know about plaintiffs sensitivities. BUT o Its subjective when plaintiff knew it would be offensive to be touched. Leichtman v. WLW Jacor Communications Inc. *Facts- Plaintiff a nationally known antismoking advocate appeared on a radio program. Defendant repeatedly blew smoke into Plaintiffs face for the purpose of causing physical discomfort, humiliation, and distress. *Issue- Whether a relatively small degree of physical contact constitutes a battery if that contact was intended and deemed offensive to a person of reasonable sense and dignity. *Rule of Law- A relatively small degree of physical contact constitutes a battery if that contact was intended and deemed offensive to a person of reasonable sense and dignity. *Holding- Tobacco smoke is particulate matter and has physical properties capable of making contact. Mullins v. Parkview Hospital. Pg 41. *Facts- Mullins received surgery where she specifically said she did not want to be in the presence of healthcare learners. Mullins received assurance from anesthesiologist saying she would personally handle it. As soon as unconscious, asnestiosoligiest permitted EMT student VanHoey to practice intubation on Mullins. VanHoey lacerated the esophagus which required additional surgery. Plaintiff sues for battery. *Issue- Was Van Hoey intending to cause harm (required for battery) *Holding- B/c Mullins could not show that VanHoey acted intending to cause harm, no battery charge for VanHoey. VanHoey had no idea about Mullins consent form that anestiosoligst was acting under.

3. Re-focusing on Intent: Garratt v. Dailey *Facts- Defendant age five pulled a chair out from under plaintiff. Plaintiff fell and broke her hip. *Issue- Whether the intent element of a battery claim remains established if a defendant performs an act and knows with a substantial certainty that his act will result in an offensive contact. *Rule of Law- A battery remains established when a defendant performs an act and knows with a substantial certainty that his act will result in an offensive contact. *Holding- Substantial certainty test established in reference to intent Battery: 1. Touching 2. Intent to touch/ substantial certainty 3. Results in harmful or offensive contact. White v. Muniz Intended offensive or harmful consequences *Facts- Defendant age eighty-three struck plaintiff in the jaw when plaintiff attempted to change her adult diaper. Plaintiff sued Helen and White as her representative for assault and battery. *Issue- Whether an intentional tort requires some proof that the tortfeasor not only intended to make contact with another, but intended that the contact be harmful or offensive. *Rule of Law- A mentally deficient person can be held liable for an intentional tort if the actor intended offensive or harmful consequences. *Holding- Unless defendant can formulate dual intent, they cant be liable for battery under this jurisdiction. White had intent to touch, but not an intent to harm. No substantial certainty that harm would result. Dual Intent: to be liable for battery, both must occur: 1. He acts intending to cause harmful or offensive contact with a person 2. An offensive or harmful contact with the person directly or indirectly results. Insanity 1. Not a defense for intentional torts a. This encourages better care from guardian b. Difficulty in determining true v. fake insanity c. Innocent victim should not bear loss if insane person attacks. Single Intent: Wagner v. State. Pg. 50 *Facts: Wagner attacked from behind by mentally disabled patient who was brought to the store as part of a state program. Statute says state is not liable if patients conduct arose out of battery. Wagner says conduct was not battery b/c batter requires intention, which the retarded guy could not have.

Bradney 4 Holding: case dismissed. No battery b/c Conduct was not batter b/c this jurisdiction is single intent. Only intent to make contact is necessary, not intent to harm. Child Liability General rule: children may be liable for torts they commit as long as the injured person can prove the required elements including intent. Parents are not vicariously liable for the torts of their children by virtue of being their parents. Doctrine of Transferred Intent: Stoshak v. East Batton Rouge Parish School *Facts- Stoshak, a teacher was trying to break up a fight when he himself was struck. Stoshak says he was intended to be punched, but just got in the middle of it. *Issue: Can a person be held for battery even if the person they harmed was not the person they intended to harm? *Holding: If a person intended to inflict serious harm while trying to hit another person, but missed and accidently hit someone else instead, such intent is transferred to the actual victim. Because of this, Stoshak is a victim of battery. 2 transferred Intent: 2. Tort to tort 3. Victim to victim B. Assault Prima Facie Case: 1. Elements: a. Intent to place another in apprehension of an imminent harmful or offensive bodily contact i. Intent- Whether he acted with the desire to cause the result or believed that the result was substantially certain to occur b. Places another in apprehension* of an imminent harmful or offensive bodily contact i. Imminent- no significant delay *person is aware of the threat Restatement 21. Assault (1) An actor is subject to liability to another for assault if: (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension. Cullison v. Medley. Pg. 57 *Facts: Cullison was talking to 16yr old Sandy Medley and invited her over to his trailer for cokes. That night, Cullison opened his door to be surrounded by Mr. Medley who had his gun

5 and repeatedly grabbed it in a threatening way. Cullison suffered emotional trauma as a result of this and was not able to work his business for awhile *Issue: Did the Medley assault Cullison *Holding: If there is an imminent apprehension of harmful touching, assault occurs. An assault is a touching of the mind, if not the body. Assault damages for mental trauma nad distress are allowed. IT is an assault to hold a weapon in a threatening position. What you are holding counts as contact (if I knock a plate out of your hand=battery) Assault: have to feel threatened.

C. False Imprisonment 1. Elements: a. Intent to confine another b. Defendant confines another directly or indirectly c. Without lawful privelege d. Within a limited area e. For any appreciable time victim is either conscious of the confinement OR ELSE is harmed by the confinement. Restatement 35. False Imprisonment (1) An actor is subject to liability to another for false imprisonment if: (a) He acts intending to confine the other or a third person within boundaries fixed by the actor, and (b) His act directly or indirectly results in such a confinement of the other, and (c) The other is conscious of the confinement or is harmed by it. Restatement 36. What Constitutes Confinement (1) To make the actor liable for false imprisonment, the others confinement within the boundaries fixed by the actor must be complete. (2) The confinement is complete although there is reasonable means of escape, unless the other knows of it. (3) The actor does not become liable for false imprisonment by intentionally preventing another from going in a particular direction which he has a right or privilege to go. If you have a reasonable means of getting out, its not confinement. Exclusion is not confinement either. ***Actual harm is required to support a claim where the plaintiff was not aware of the confinement at the time it took place*** Restatement 42. Knowledge of Confinement

Bradney 6 There is no liability for intentionally confining another unless the person physically restrained knows of the confinement or is harmed by it. McCann v. Wal-Mart Stores, Inc. *Facts- Defendant falsely identified and stood guard over plaintiff for shoplifting, while waiting for a security guard to arrive. *Issue- Whether confinement for false imprisonment may be accomplished by a false assertion of legal authority. *Rule of Law- Confinement for false imprisonment can be accomplished by a false assertion of legal authority. *Holding- If victims believe they are being confined or else sustain actual harm false imprisonment occurs give the confiner intentionally does so without lawful privilege. The McCanns belived themselves to be falsely confined bc employees stood guard over themso false imprisonment. D. Torts to Property Intentional invasions of property interests 1. Trespass to Land (Requires an intentional entry upon the land of another.) a. The right of the landowner extends downward beneath the surface and at least a reasonable height above the ground. b. Intent- Either purpose to enter or substantial certainty that entry will take place. c. Damages without harm- Defendant is liable for damages even if no physical or economic harm is done. Parasitic damages: the trespasser whose bawdy songs upset the placid home life may be liable for mental distress. d. Punitive damages without harm- Courts frequently say that punitive damages cannot be awarded unless the plaintiff first shows actual loss or damages. The nominal damage award represents the recognition that, although immeasurable in mere dollars, actual harm has occurred. Punitive damages may be awareded if the trespass is deliberate or malicious. Extended Liability: trespasser is liable for damages inflicted even if he never intended harm and could not forsee it. Trespassing journalists are not liable for trespass if they discover the truth and publish it. If handglider knows there is strong wind, and lands in anothers property, he could be trespassing b/c he has substantial certainty which satisfies intent. Restatement 158. Liability for Intentional Intrusions on Land One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally

7 (a) enters land in the possession of the other, or causes a thing or a third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove. When physical harm is inflicted, the defendant is liable for damages measure either by the cost of repairing damage or by diminuition in the value of the premises resulting from tort. Restatement 329. Trespasser defined A trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessors consent or otherwise. 2. Conversion of Chattels- Trover (*Requires the intent to exercise substantial dominion over the chattel.)

Restatement 222A. What constitutes Conversion (1) Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel. (2) ONLY APPLIES TO TANGIBLES!!!!!!! Remedy for Conversions is damages: measured yb the value of the chattel at the time of conversion. Conversion: VALUE IS GONE!!! In Prosser v. Keeton, Keeton is a converter even if he is a bonafide purchaser for value and is liable. Since thief never had title over the goods. Keeton did not obtain title with the purchase. Defendant need not be conscious of the wrongdoing. Could have thought the watch was honestly his. But still a converter. (2) In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important: (a) the extent and duration of the actors exercise of dominion or control; (b) the actors intent to assert a right in fact inconsistent with the others right of control; (c) the actors good faith; (d) the extent and duration of the resulting interference with the others right of control; (e) the harm done to the chattel; (f) the inconvenience and expense caused to the other. 3. Trespass to Chattels (*No physical damage is required; damage is interference with use.)

Bradney 8 Restatement 218. Liability to Person in Possession One who commits a trespass to chattel is subject to liability to the possessor of the chattel if, but only if, (a) he dispossesses the other of the chattel, or (b) the chattel is impaired as to its condition, quality, or value, or (c) the possessor is deprived of the use of the chattel for a substantial time, or (d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest. School of Arts v. Kuprewicz. Pg. 70 *Facts: defendant, a former employee caused large amounts of pornographic email and unsolicited job applications to be sent to the plaintiff, causing computer problems and a loss of hard disk space. *Holding: One who intentionally interferes with anothers chattel is liable only if there results in harm to the owners materially valuable interest in the physical condition, quality, or value of the chattel, DEFENDANT MUST ALSO ACT WITH THE INTENT OF INTERFERING!!!! Examples: 1. if roommate takes volleyball on purpose and knows he will return it without me knowing, and returns it broke, it would be conversion. Recover market value. 2. If I take joyride in roomates car, trespass to chattels for car (even if car is unharmed) and conversion for gasoline. 3. if I steal confidential reports from filing cabinets and return them and put copies into the media, it would not be trespass to chattels b/c physical reports are ok. E. Forcible Harms as Civil Rights Violations II. Defenses to Intentional Torts- Privileges A. Affirmative defenses: The defendant must affirmatively raise these defenses, usually by answer to the complaint, and the proof must affirmatively convince the jury that the facts supporting the defense are established. 1. Self-Defense Self-preservation a. Constitutes a limited privilege privilege to forestall an impending intrusion b. Authorized solely to prevent a further intrusion that cannot be avoided by waiting or legal redress. c. Burden of proof resides with the defendant Restatement 63. Self-Defense and Defense of Third Persons (1) An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him.

9 Privelege covers only reasonable force. The defendant is not required to retreat or avoid the need for self-defense. Provocation is generally not sufficient to raise self-defense privilege.

Restatement 65. Self-Defense by Force Threatening Death or Serious Bodily Harm *An actor may use deadly force in self-defense only if she reasonably believes that she is threatened with deadly force which can be prevented only by the immediate use of such deadly force. Equivalency Rule- One remains justified in using force equal to that which is being employed against them. B. Defense of Third Persons One may generally defend others on the same basis that he may defend himself. Restatement 76. Defense of Third Person The actor is privileged to defend a third person from a harmful or offensive contact or other invasion of his interests of personality under the same conditions and the same means as those under and by which he is privileged to defend himself if the actor correctly or reasonable believes that: (a) the circumstances are such as to give the third person a privilege of self-defense, and (b) his intervention is necessary for the protection of the third person. AOne may be privileged to commit what otherwise would be an assault or a false imprisonment in self-defense. One may defend others on the same baiss that he may defend himself. Peters v. Menard. Pg. 80 *Facts- Wright a plain clothes security guard, pursued a shoplifter off the stores premises and shoplifter ended up jumping in the river where he subsequently drowned. *Issue: Is a merchant or its agents immune from liability for actions taken while attemptin to detain a suspected shoplifter by pursuing him or her off of the merchants premises? *Holding- Yes, shopkeepers are immune in actions taken to attempt to detain a shoplifter so long as it is reasonable. Cant detain a person for too long. Shopkeeper is liable for false imprisonment if they get the wrong person. Manner of detention must be reasonable, length of time of the detention and actions taken in an attempt to detain must be reasonable. It is good for the public policy that merchants be immune from actions that occur while attempting to detain a suspected shoplifter off the premises. D. Defense and Repossession of Property Katko v. Briney Excessive Force *Facts- Defendant installed a spring gun in a vacant house, which seriously injured a trespasser. *Issue- Whether a person may invoke the usage of deadly force to protect property absent a threat of death or serious bodily harm presented by the intruder.

Bradney 10 *Rule of Law- Absent a threat of death or serious bodily harm, a person may not invoke the usage of deadly force to protect property. *Holding- One is not privileged to use deadly force in the protection of real property. An owner of premises is prohibited from willfully or intentionally injuring a trespasser by means of force that either takes life or inflicts great bodily injury. Value of human life> property. Brown v. Martinez *Facts- Plaintiff was seriously injured while stealing watermelons when the property owner fired a rifle. *Rule of Law- Deadly force may not be used to defend property when there is no threat of physical harm to a property owner. *Holding- There is no privilege to use any force calculated to cause death or serious bodily injury where only the property is threatened. E. Consent Robbin v. Harris. Pg. 88 *Facts: plaintiff Robbins was an inmate at a jail. Soules brought Robbins into the shower room where she gave him a blow job. Robbins sues for battery. *Holding: inmates alleged consent to the sexual contact was no defense. When there is a disparity of power, consent is not a defense. Specific Consent :Ashcraft v. King Infected Blood *Facts- Woman consented to operation on condition that any blood transfusions be made from family donated blood. Doctor failed to honor patients wishes and used blood infected with HIV. *Rule of Law- Medical actions unreasonably exceeding the consent rendered by a patient remain unprivileged. *Holding- Transfusions exceeded the consent given. General Consent: Kennedy v. Parrott *Facts- Plaintiff consented to appendectomy. Doctor unexpectedly encountered ovarian cysts and punctured them. Consequently, plaintiff suffered medical condition. *Rule of Law- Where one has submitted herself to a physician for diagnosis and treatent of an ailment, in the absence of proof to the contrary, it will be presumed that the doctors actions were expressly authorized. *Holding- In an emergency situation a doctor is held to the standard of ordinary and prudent care a reasonable doctor would ordinarily use to remedy the problem. Whatever is in the general area of consent is up for grabs. Substitued consent: a patient can have implied consent through legal guardian. Dr.s can dispense treatment even without consent if patient is too intoxicated to understand. Factors to look at: nature and effect f patients understanding Minors can consent to touchings appropriate to their age: putting bandaid on.

11 For other touchings on minors:we look for substituted consent. For life saving and if parents are not present: implied consent is there in life threatening situations. Doe v. Johnson *Facts- Plaintiff consented to sexual intercourse with defendant. Defendant knowingly infected plaintiff with HIV virus. *Rule of Law- One who knows he has a venereal disease and knows that his sexual partner does not know of his infection, commits a battery by having sexual intercourse. If induced by false information, consent may not be valid even if one voluntarily participates in the touching. Subject to only the slightest qualification, the plaintiff can revoke consent at any time by communicating the revocation to the defendant. Consent produced by fraud is no consent at all.

F. Defense of Necessity Privileges Not Based of Plaintiffs Conduct An otherwise tortuous act is privileged, because it was done to prevent a greater harm. Surocco v. Geary *Facts- Defendant destroyed plaintiffs home while attempting to prevent a fire from destroying the entire town. *Rule of Law- A party will not be held personally liable if he destroys the property of another in good faith, and under the apparent necessity during the time of a conflagration, for the purpose of saving adjacent property and stopping the fire. *Holding- The individual rights of property give way to the higher laws of impending necessity. Compare the public interests as seen in Surroco with private interests seen in Wegner. Wegner v. Milwaukee Mutual Ins. Co. 98 *Facts- SWAT team damaged innocent third partys home in pursuance of criminal. *Rule of Law- The exercise of police power under public necessity over the property of a private citizen is considered a taking requiring just compensation. *Holding- Individuals should not be forced to bear public burdens alone. Private property shall not be taken, destroyed, or damaged for public use without just compensation, first paid or secured. If child gets sick with taking required immunizations, then no liability b/c its different when government intentionally imposes risk in Wegner and when they intentionally impse a risk that is not substantially certain to injure any particular or identifiable persons

Bradney 12 Vincent v. Lake Erie Transportation Co. *Facts- Defendants steamship was moored to plaintiffs dock for unloading purposes. Storm erupted and defendant engaged in great efforts to keep the boat attached to the dock in order to prevent the boat from being destroyed. As a result, the plaintiffs dock sustained $500 in damages. *Rule of Law- A party acting under private necessity is liable for damages incurred to the property of others. *Holding- Defendant prudently and advisedly availed itself of the plaintiffs property for the purpose of preserving its own more valuable property and the plaintiffs are entitled to compensation for the injury done. Court assigned liability without fault here (strict liability) Ploof v. Putnam *Facts- Plaintiff moored his boat to defendants dock in order to avoid being injured in a storm. Defendant unmoored the boat and plaintiff and his boat suffered damage and injury. *Rule of Law- An entry upon land to save goods which are in danger of being lost or destroyed by water or fire is not a trespass. *Holding- Necessity justifies entries upon land and interferences with personal property that would otherwise have been trespasses. In cases of necesiity, entries onto land and interferences with personal property that would have otherwise been trespass are justified! V. The Prima Facie Case for Negligence *The basis of liability in negligence is the creation of an unreasonable risk of harm to another. *Pro tanto and Recticum judicium- mutual insurance principle that divides damages when more than one party is at fault. The General Formula for Negligence Cases The plaintiff must allege and prove facts establishing five elements: (1) The defendant owed plaintiff a legal duty (2) The defendant, by behaving negligently breached that duty (3) The plaintiff suffered actual damages (4) The defendants negligence was an actual cause of this damage, and (5) The defendants negligence was a proximate cause of this damage Standard of care: Reasonable person standard. Duty changes! Reasonable person standard never changes!!! A. The General Duty of Care 1. The Due Care or Prudent Person Standard Restatement 2d 283C. Physical Disability If the actor is ill or otherwise physically disabled, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like disability.

13 Stewart v. Motts Reasonable care standard *Facts- Plaintiff offered defendant assistance in repairing an automobile fuel tank. Plaintiff suggested and then poured gasoline directly into the carburetor. Accordingly, defendant turned the key in an attempt to start the car. As a result, the car backfired, caused an explosion, and the defendant suffered serious burns. *Rule of Law- The standard of care applied to negligence actions is the standard of a reasonable person and never varies even for dangerous instrumentalities. However, the duty of care employed by a reasonable person must be proportionate to the danger of the activity. *Holding- Ordinary care is the care a reasonably prudent person would use under the circumstances. The care required is always reasonable care. The duty of care is what one actually does and it is subject to change. Bjornadal v. Weitman pg. 111. *Facts: plaintiff hit defendant who abruptly slowed in speed and turned left to find her dad. *Issue: Are emergency instructions ok to give to jury? *Holding: No. The usual instruction on negligence sufficiently covers what a reasonable, prudent person would do under all circumstances, including those of a sudden emergency. Negligence instruction already refers to facts that may create an emergency situation when it speaks of the dangers apparent or reasonably foreseeable when the events occurred. Shepherd v. Gardner Wholesale, Inc. pg. 115 *Holding: The conduct of a an actor with physical disability is negligent only if it does NOT conform to htat of a reasonably careful person with the same disability. When a persons alleged negligence is caused by a sudden physical incapacitation that is not foreseeable, no liability. Standard is that of a reasonable person. Restatement 2d 283B. Mental Deficiency Unless the actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable man under like circumstances. Creasy v. Rusk Main streaming *Facts- Plaintiff resided as a health care center staff member. The defendant, an elderly man with Alzheimers, struck the plaintiff as she attempted to place the defendant into bed. *Rule of Law- A person with a mental disability is generally held to the same standard of care as that of a reasonable person under the same circumstances without regard to the alleged tortfeasors capacity to control or understand the consequences of his or her action. *Holding- Defendant is deemed not liable as a matter of fact. Where a caretaker is concerned, the duty of care is a one-way street, from caretaker to patient. Therefore, the defendant was not liable on these facts. Restatement 2d 289. Recognizing Existence of Risk The actor is required to recognize that his conduct involves a risk of causing an invasion

Bradney 14 to anothers interest if a reasonable man would do so while exercising (a) such attention, perception of the circumstances, memory, knowledge of other pertinent matters, intelligence, and judgment as a reasonable man would have; and (b) such superior attention, perception, memory, knowledge, intelligence, and judgment as the actor himself has. Hill v. Sparks *Facts- Defendant, the operator of an earth-moving machinery, instructed his sister to stand on a ladder on the machine. Consequently, the sister was thrown off the machine and killed. Defendant had earlier instructed another of the dangers associated with such an act. *Rule of Law- The standard of the reasonable man required only a minimum of attention, perception, memory, knowledge, intelligence, and judgment in order to recognize the existence of the risk, however, if an actor has in fact more than the minimum of these qualities, he is required to exercise the superior qualities that he has in a manner reasonable under the circumstances. Robinson v. Lindsay snowmobile *Facts- Plaintiff, age eleven, lost full use of her thumb in a snowmobile accident. Defendant, age thirteen, was the driver of the snowmobile at the time of the accident. *Rule of Law- A minor must be held to an adult standard of care when engaging in adult or inherently dangerous activities. *Holding- When the activity a child engages in is inherently dangerous, as in the operation of powerful mechanized vehicles, the child should be held to an adult standard of care. As a matter of social policy is proves unfair to innocent victims if one does not apply such a standard of care to such activities. Hudson v. Putney golf cart *Facts: 14 yr old defendant allowed 11 yr old to operate the defendants golf cart. 11 yr old injured bystander. *Holding: Golf carts are not inherently dangerous. No adult skilsl were required. Since operation of a golf cart is not an adult activity, neither is entrustment of the cart to another minor an adult activity. Motor vehicles are not commonly used by children (snowmobile); but motor vehicles and snow mobiles are inherently dangerous.

2. Specification of Duties- Negligence as a Matter of Law Marshal v. Southern Railway Co. *Facts- Plaintiff was driving at night on a paved road about thirty feet wide. Defendants railroad trestle, located above the road, was supported by large timbers, which narrowed the road to fifteen feet. A cars bright lights blinded the plaintiff as he approached this point. Consequently, plaintiff collided with trestle supports. *Rule of Law- It is a general rule of law, even in the absence of statutory requirement, that the

15 operator of a motor vehicle must exercise ordinary care, that is, that degree of care which an ordinary prudent person would exercise under similar circumstances. *Holding- It is incumbent upon the operator of a motor vehicle to keep a reasonably careful lookout and to keep same under such control at night as to be able to stop within the range of his lights. Chaffin v. Brame *Facts- Plaintiff was driving on a paved highway at night. A cars bright lights blinded the plaintiff and he struck a truck left unlighted and blocking the entire right lane of the highway. *Rule of Law- A person must exercise ordinary care to avoid injury when he undertakes to drive a motor vehicle upon a public highway at night. *Holding- The law charges every man with the duty of exercising ordinary care for his own safety. Plaintiff was keeping a proper lookout and driving as a reasonably prudent person would under the circumstances. Verdict for plaintiff. *Negligence as a matter of law- When the court determines that a person was negligent as a matter of law, the court concludes, on the facts, that reasonable persons could not find otherwise and accordingly directs verdict for the opposing party on this issue. The judge determines the duty and the fact finder determines the possible breach. *Negligence per se- Negligence in itself substantially eases the burden of proof. The legislature determines the duty and the fact finder determines the breach. *The Requirement of Relevance- A statute is only relevant in establishing negligence if it is meant to protect persons like the plaintiff from the type of harm which actually occurred. *To determine Negligence per se: 1) Statute exists prohibiting conduct 2) Plaintiff resides within the class of persons protected by the statute 3) Injury proves the type which the statute was intended to prevent 4) Statutory violation remains casually related to the injury Restatement 2d. 286. When Standard of Conduct Defined by Legislation or Regulation Will Be Adopted The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purposes is found to be exclusively or in part (a) to protect a class of persons which includes the one whose interest is invaded, and (b) to protect the particular interest which is invaded, and (c) to protect that interest against the kind of harm which has resulted, and (d) to protect that interest against the particular hazard from which the harm results.

Bradney 16 Martin v. Herzog Negligence in itself *Facts- Defendant, while driving at night, crossed the center line and struck a buggy occupied by decedent, causing his death. The decedent proved in violation of a statute requiring the use of lights one hour after sunset to one hour before sunrise. Consequently, defendant claims decedent was liable for contributory negligence. *Rule of Law- Jurors have no dispensing power, by which they may relax the duty that one traveler on the highway owes under the statute to another. *Holding- The unjustified omission of the statutory signals is more than some evidence of negligence. Violation of statutes is subject to negligence per se. Restatement 2d. 288A. Excused Violations (1) An excused violation of a legislative enactment or an administrative regulation is not negligence. (2) Unless the enactment or regulation is construed not to permit such excuse, its violation is excused when (a) the violation is reasonable because of the actors incapacity; (b) he neither knows nor should know of the occasion for compliance; (c) he is unable after reasonable diligence or care to comply; (d) he is confronted by an emergency not due to his own misconduct; (e) compliance would involve a greater risk of harm to the actor or to others. Negligence per se: once its established that harm resulted as a result of breach of statute, duty and breach are already established. If cant prove statute, then its just a negligence case. Impson v. Structural Metals, Inc. Statutory negligence *Facts- Defendant attempted to pass a car within 100 feet of an intersection. Consequently, the defendants truck hit a car turning left at the intersection. A statute prohibited passing within 100 feet of an intersection. *Rule of Law- The mere fact that a driver has forgotten the existence of an intersection is not a proper defense to violation of a statute not to pass within 100 feet of an intersection. *Holding- The driver made his move deliberately, with knowledge of the law, and with at least notice of the presence of the highway intersection. *A defense to violation of statute and avoidance of negligence per se must be within the realm of impossibility, emergency, incapacity, or a greater risk of harm. *Licensing statutes- Does the statute create a duty of care? The statute must be specific. Only a few cases apply the negligence per se rule to particular licensing statutes. If there is a statute htat says cant practice medicine without being a licensed doctor, and harm results as a result of fake dr. practicing, then no negligence per se b/c statute says nothing about drs actions. Not specific enough

17

Haver v. Hinson Safety violation *Facts- Defendant drove over to plaintiffs house and parked on the left hand side of the street facing in the wrong direction. Defendant proceeded to drive away and ran over a child that had crawled under the car while parked. The defendant proved to be in violation of a safety statute. *Rule of Law- In order to invoke violation of a statute as negligence per se, a person must fall within the class of persons protected by the statute and the injury must be of the type which the statute was intended to prevent. *Holding- The class sought to be protected by the statute includes only pedestrians and drivers who act in reliance upon the orderly flow of traffic dictated by the statute. The risk of an accident of this sort would have been no less likely if the defendant had parked facing in the appropriate direction, because the child still would have resided underneath the car. VI. Negligence: The Breach or Negligence Element of the Negligence Case A. Breach: Assessing Reasonable Care by Assessing Risks and Costs *Negligence is conduct that imposes unreasonable risks of harm. The risk of harm is unreasonable when a reasonable and prudent person would foresee that harm might result and would avoid conduct that creates the risk. Piper v. Parsell. Pg. 140 *Facts: driver Parsell is accused of negligence b/c he did not do anything to prevent Beisel from grabbing the steering wheel a second time. *Issue: Did Parsell have a duty to Piper? Holding: Parsell took an unreasonable risk in not deterring Beisel. Parsell could forsee Beisels repeat conduct and Parsell breached his duty by preventing Beisel from grabbing the steering wheel a second time. When actions of a passenger that interfere with the drivers safe operation of the motor vehicle are foreseeable, the failure to prevent such conduct may be a braech of the drivers duty to either other passengers or to the public. Risk of doing nothing is also negligence. Romine v. Village of Irving. 2 police officers are negligent after kicking out drunk people from fair and they go and drunk drive and kill people. Police officers should have foreseen criminal activity. Indiana Consolidated Insurance Co. v. Mathew Lawn mower in the garage *Facts- Defendant entered his brothers garage and started a lawn mower. Consequently, the lawn mower burst into flames and burned down the garage. Plaintiff claimed that defendant remained under a duty to push mower out of garage. *Rule of Law- The standard of conduct for the measure of negligence is the exercise of due care that an ordinary prudent man would exercise under similar circumstances. *Holding- Human life is much more valuable that mere possession. One may be deemed negligent in voluntary risking life or serious injury for the purpose of saving mere property. It is common practice to start a mower in a garage.

Bradney 18 Stinnett v. Buchele Barn roof injury *Facts- Plaintiff repaired a roof located on defendants property and was severely injured when he fell from the roof. Plaintiff was an experienced roofer and the defendant was a physician. *Rule of LawThe liability of the employer rests on the assumption that the employer has a better and more comprehensive knowledge than the employees, and ceases to be applicable where the employees means of knowledge of the dangers to be incurred is equal to that of the employer. *Holding- There inherent risks associated with such a job. Plaintiff remained aware of the usage of belts and safety nets, however, he chose not to inform plaintiff of the existence of such devices . Plaintiff was in a better position to minimize the risk or loss. There are obvious risks in climbing a rooftop. Since Stinnet had been painting roofs for a long time, he should have known better. The obviousness of a risk may make the likelihood of its materializing so slight that there is no need to try to eliminate the risk. The other person should rely on themselves to avoid the risk on his own. Bernier v. Boston Edison Co. Utility pole *Facts- Plaintiff was seriously injured when a vehicle struck the defendants light pole causing the pole to collapse and fall to the ground. *Rule of Law- A product designer remains under a duty to consider the reasonable and foreseeable risks of injury associated with the use of his product. *Holding- The risk of auto collisions with utility poles was not only foreseeable but an inevitable well known risk. The likelihood of serious injury was equally high. The poles design should take into account foreseeable participation in automobile collisions. Restatement 2d. 292. Factors Considered in Determing Utility of Actors Conduct In determining what the law regards as the utility of the actors conduct for the purpose of determining whether the actor is negligent, the following factors are important: (a) the social value which the law attaches to the interest which is to be advanced or protected by the conduct; (b) the extent of the chance that this interest will be advanced or protected by the particular course of conduct; (c) the extent of the chance that such interest can be adequately advanced or protected by another an less dangerous course of conduct. United States v. Carroll Towing Co. Hands risk utility formula and the duty of care *Facts- Plaintiffs barge sunk when an employee left the barge unattended. The barge broke adrift from the tug, struck a tankers propeller, dumped cargo, and sank. *Rule of Law- A person retains a duty of care to prevent harm occurring to others when the magnitude of the risk exceeds the utility of the conduct. *Holding- There was a breach of duty in not having someone on the barge during normal

19 business hours. Where the costs of precaution prove less than the probability of injury multiplied by the gravity of the injury then it is reasonable to hold a person liable for negligence if they fail to take such precautions. *There are three variables to consider: B > PL 1) the probability that an event will occur 2) the gravity of the resulting injury 3) the burden of adequate precautions Restatement 2d. 291. Unreasonableness: How Determined: Magnitude of Risk and Utility of Concuct Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done. Restatement 2d. 293. Factors Considered in Determining Magnitude of Risk In determining the magnitude of the risk for the purpose of determining whether the actor is negligent, the following factors are important: (a) the social value which the law attaches to the interests which are imperiled; (b) the extent of the chance that the actors conduct will cause an invasion of any interest of the other or of one of a class of which the other is a member; (c) the extent of the harm likely to be caused to the interests imperiled; (d) the number of persons whose interests are likely to be invaded if the risk takes effect in harm. B. Assessing Responsibility When More Than One Person is Negligent 1. Comparative fault- The idea is that each party must bear his or her share of the losses. Plaintiffs recovery is not ordinarily reduced to reflect her fault when the defendant is guilty of an intentional tort, but they are nowadays generally reduced in negligence and strict liability cases. 2. Joint and Several liability- The plaintiff can enforce his tort claim against either tortfeasor. He can obtain a judgment against both, but the plaintiff cannot collect more than the full damages. If third party proves insolvent or immune then under this theory the solvent thrtfeasor remains required to pick up and pay the insolvent, uninsured, or immune tortfeasors share. 3. Contribution- Most states allow defendant to obtain contribution from third party as to make payments proportional to its fault. 4. Comparative fault apportionment- Under this rule no tortfeasor is liable for more than his proportionate share. The plaintiff would have to take his chances on collecting directly from the third party. C. Proving and Evaluating Conduct 1. Proving Conduct

Bradney 20 Santiago v. First Student. Pg 161. *Facts: defendant sued school bus driver b/c she hit her face against the seat in front of her. She did not see the accident, remember where it was, remember what happened, and she never saw the other car. *Holding: The fact that the plaintiffs case may be extremely difficult ot prove, does not relieve her of the burden of presenting sufficient evidence to demonstrate the existence of a material question of fact. Upchurch v. Rotenberry *Facts- Plaintiffs son was killed when the defendant lost control of her car and struck a tree 160 feet away from the road. Defendant proved the only witness to the accident. Testimony of police, defendant, and expert witnesses proved in conflict. *Rule of Law- The jury is the judge of the weight of the evidence and the credibility of the witnesses. *Holding- The jury makes fact determinations. The court will not intrude into the realm of the jury by determining the credibility of a witness and making findings of fact. The jury considered this evidence, weighed it, and found in favor of the defendant.

Circumstantial Evidence: evidence of one fact that permits an inference of another fact. The jury is the decisionmaker as to factual inferences. A judge may not substitute his or her conclusion for that jury merely b/c he or she would have reached a different result. Witnesses Opinions: Can only state the facts within his knowledge. Cannot express his opinion on ultimate issues. Experts are allowed to give expert opinion or conclusions within the field of their expertise, provided that the testimony is likely to be helpful to the jury on an issue in the case.

Thoma v. Cracker Barrel Old Country Store, Inc. *Facts- Plaintiff slipped and fell on a clear liquid located on the defendants floor. No one witnessed the defendants employee spill the liquid. Likewise, no individual knew how long the liquid remained on the floor before the accident. *Rule of Law- The fact that evidence suggests a plethora of reasonable inferences other than the inferences urged by a plaintiff, does not require a judge to grant a summary judgment. *Holding- The jury must determine whether a preponderance of the evidence supports the inferences suggested by the plaintiff. Restatement 2d. 295A. Custom In determining whether conduct is negligent, the customs of the community, or of others under like circumstances, are factors to be taken into account, but are not controlling where a reasonable man would not follow them.

21 Three common theories of liability: plaintiff can show negligence by proving 1. The defendant created and failed to take reasonable actions to abate the hazard, as where a waiter spills sauce on the floor 2. The defendant did not directly create the condition but discovered or should have discovered a condition created by others and failed to take reasonable steps to prevent injury from that condition 3. The defendants mode or method of business operations made it forseeable that others would create a dangerous condition, and the defendant failed to take reasonable measures to discover and remove it. Walmart Stores v. Wright. Pg.173 *Facts: woman slipped in a puddle in Walmarts outdoor garden area. Jury instructions say you can admit walmarts handbook in determining negligence. *Holding: The instruction was erroneous b/c walmarts rules and policies may exceed its view of what is required by ordinary care in a given situation. The manual is a subjective measure b/c it is established for many reasons that have nothing to do with safety and ordinary care, like a desire to appear clean to attract customers. Duncan v. Corbetta *Facts- Plaintiff was injured when he began to descent a wooden exterior stairway at the defendants residence and the top step collapsed. Plaintiffs expert attempted to testify that is was common practice to use pressure-treated lumber in the construction of such stairways, even though the nonpressure-treated lumber was permissible under the applicable building code. *Rule of Law- Proof of general custom and usage is admissible, because it tends to establish a standard by which ordinary care may be judged even where an ordinance prescribes certain minimum safety requirements which the custom exceeds. *Holding- The plaintiff failed to establish that the defendant had a role in the design or construction of the stairway. Ol ,m The T.J. Hooper Radio *Facts- Defendant, operator of tugboats, was sued under a towing contract when two barges were lost in a storm because they did not have effective radios. It was not customary practice to use such radios in the defendants area of work. *Rule of Law- If new technology is developed that would reduce the risk of loss or damages in a particular field, then it is negligent not to employ such devices. *Holding- There are some precautions so imperative that even their universal disregard will not excuse their omission. The standard is that of a reasonably prudent person whether it is usually complied with or not. Common sense dictates the necessity of radios on tugboats. Custom doesnt have to be the duty, but custom can be below the duty. D. Proving Unspecified Negligence: The Special Case of Res Ipsa Loquitur 1. Origins and Basic Features

Bradney 22 *Res Ipsa Loquitur- The thing speaks for itself. Some evidence is very strong, as when you find a trout in milk. H.D. Thoreau, Journal November 11, 1850.

Restatement 2d 328D. Res Ipsa Loquitur (1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when (a) the event is of a kind which ordinarily does not occur in the absence of negligence; (b) the other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the defendants duty to the plaintiff. (2) It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn. (3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached. *Proof of circumstances allows an inference of further facts. *Circumstantial evidence allows the jury to infer that the accident must have resulted from some negligence on the part of the defendant. Byrne v. Boadle Barrel of flour *Facts- Plaintiff was struck by a barrel of flour while walking on a public street under the defendants flour shop. *Rule of Law- The nature of an injury may yield a presumption of negligence. *Holding- It is possible for a presumption of negligence to arise solely from the type of accident that has occurred. It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and I think such a case would, beyond all doubt, afford prima facie evidence of negligence.

Note: Procedural Incidents and effects of Res Ipsa Loquitur 1. Res Ipsa Loquitur means will survive a motion for directed verdict and get to the jury, which can then decide case either way. 2. If has presented evidence from which jury could conclude Res Ipsa Loquitur, then trial judges give a Res Ipsa Loquitur instruction to jury. But instruction is not necessary. In cases on appeal, a court will uphold a jurys verdict for even though judge has not instructed jury on doctrine. 3. Even if brings in no evidence to defend against res ipsa loquitur, the inference of negligence in a res ipsa loquitur is merely permissible and does not shift the burden of persuasion from the .

23 Is negligence more probable than not? Koch v. Norris. Pg. 182. *Facts: Defendants high voltage line broke and fell, starting a fire that did considerable damage. *Holding: res ipsa instruction ok. Power lines do not normally fall without fault on behalf of the company that maintains them or w/o intervention of nature. Thus, if a line falls, it must have been negligently constructed or maintined. Cosgrove v. Commonwealth Edison. Pg. 182 *Facts: storm caused power line to fall in alley. The sparks ignited a leak in a buried gas line. Fire injured plaintiffs. *Holding: gas mains are buried deep beyond reach of general public. Res ipsa ok for gas co. but not for electric company since nature knocked it down. When a gas leak does occur, an inference of fault is justifiable. Look at the facts to show negligence is more probable than not. Warren v. Jeffries. Pg. 184 *Facts: terry a 6yr old, was crushed by a car after he jumped out of it while it started to roll backwards. The car was parked and not on. Plaintiff alleges defendant was negligent in not setting the handbrake. *Holding: res ipsa not ok in this case. b/c car was not examined afterward, so we dont know if the car had mechanical problems. The cause of the roll backwards is speculation. If a plaintiff relies on res ipsa and the defendant comes forward with an explanation that the accident was caused by something other than defendants negligence then the jury might decide case against plaintif.. Res ipsa does not apply when there is direct evidence as to the precise cause of the injury and all of the facts and circumstances attending the occurrence. Just b/c the plaintiff alleges specific acts of negligence, judge can still grant res ipsa instruction but its up to the jury to decide. 2. Attributing the Fault to Defendant Rather Than Others Giles v. City of New Haven Elevator operator injured *Facts- Plaintiff operated an elevator for 14 yrs. Elevator chain hooked on a rail bracket and broke. Defendant was responsible for maintaining the elevator which was installed 61 yrs. prior to the accident. Chain had to sway 18 inches to hook on to bracket. Normal sway was 1-2 inches. *Rule of Law- A showing of exclusive control over an instrument is not a necessary prerequisite to allowing the use of the res ipsa loquitur doctrine. *Holding- Defendants negligence was more probably than not the cause of the plaintiffs injuries. It is enough that the defendant is under a duty which he cannot delegate to another. Just b/c one uses an instrumentality of harm does not mean that they are in control. Escola and Giles show loose interpretation of exclusivity of control, meaning one can use the instrumentality and not be in control of it.

Bradney 24 3. Is Negligence More Probable Than Not? Warren v. Jefferies Rolling car *Facts- Defendants vehicle, a parked car, rolled down an incline towards a ditch, struck, and killed a six year old boy. There was no evidence as to the conditions of the brakes, whether the hand brake had been set, and whether the car was in gear. *Rule of Law- Before a party may invoke res ipsa loquitur they must be able to identify a specific source of harm when the exclusive control of the instruments is weak. *Holding- The car was not examined after the accident. It cannot be said that the plaintiff had the inability to identify a specific source of harm or presented evidence to the court that would preclude that possibility. The jury is in a better position to make credibility determinations. Collins v. Superior Air Ground Ambulance Service. 191 *Facts: ambulance and health care center were negligent and returned elderly, mute, bedridden woman back to her daughter in a dehydrated and with a broken leg. *Holding: Yes res ipsa. Where there are only two defendants who had consecutive control over plaintiff, and either one could have caused the palintiffs injuries, and both are named in the complaint, the complaint is sufficient for pleading purposes to raise the inference of negligence under the doctrine of res ipsa. Res ipsa loquitur does not help the plaintiff when there are 2 or more defendants in control of the relevant instrumentality at different times. Where 2 or more defendants have been in serial control, further info is needed in order to establish that any one of them was probably the negligent party, and the burden of coming forward with that info is on the plaintiff. If 2 or more parties have an ongoing relationship pursuant to which they share responsibility for a dangerous activity, and if an accident occurs establishingthe negligence of one of the two, you can impose res ipsa liability on both.

VII. Harm and Causation In Fact A. Actual Harm *Sine qua non- without which it is not; an indispensable requisite. Defendants act must be a sine qua non of the plaintiffs injury. Meaning: the injury would not have happened without the defendants act. Right v. Breen. Pg. 194 *Facts: plaintiff had stopped his vehicle at red light when he was struck from behind by the defendants vehicle. No harm done to him. Defendant argues that the alleged harm is from previous accidents. *Holding: Conduct that is merely negligent without proof of an actual injury is not considered to be significant with the public interest such that there is any right to complain of it or be free from it. A plaintiff cannot prevail in a negligence claim without alleging and proving actual damage. Plaintiff must establish all the elements of negligence including causation and actual injury to

25 recover. B. Cause in Fact *The fourth element in a prima facie case is cause in fact or actual cause. Plaintiff must prove, not only that he suffered a legally recognizable harm, but that the harm was in fact caused by the defendant. *Negligence in the air- negligence irrelevant to the injury suffered by the plaintiff, therefore, not actionable. 1.The But-for Test of Causation Hale v. Ostrow. Pg. 197 *Facts: Hale was walking down a sidewalk and stepped into the street b/c she noticed that there were bushes blocking the sidewalk up ahead. She stepped on crumbled sidewalk and fell and hurt herself. She sues owner of property of bushes, even though she didnt hurt herself on their property. *Holding: The plaintiffs cause of injury need not be the sole cause, just A cause. Given the evidence, it is possible that the plaintiff might not have tripped had the bush been there, but up to the jury to decide. Salinetro v. Nystrom Unknown pregnancy *Facts- Plaintiff was in an auto accident and underwent a medical exam. for back injuries sustained. Unknown to the plaintiff, she was pregnant. Defendant did not ask her if she was pregnant. Defendant failed to administer pregnancy test. Defendant administered x-rays, plaintiff was required to terminate the pregnancy, and fetus was born dead due to damages resulting from the x-rays. *Rule of Law- A party is not liable for negligence if their conduct failed to cause the injuries in question. *Holding- Under this approach, the court asks whether the plaintiff would not have suffered the harm but for the defendants negligence. Defendant found no evidence that plaintiff was pregnant. Plaintiff testified that if asked about being pregnant, she would have answered in the negative. Defendants omission was not the cause of her injury. The cause of her injury was her not knowing she was pregnant. 2. Problems With and Alternatives to But-for Tests *Fundamental fairness requires that a defendant only be held liable for injuries he actually caused to the plaintiff. 2 persons causing separate or divisible injury: liability can be apportioned by causation. Each tortfeasor liable for the harms that tortfeasor caused and no more. 2 persons causing a single indivisible injury: both are liable for a single injury.

Landers v. East Texas Salt Water Disposal Co. *Facts- Plaintiff owned a small lake stocked with fish. (D1)s pipe line broke and flooded salt

Bradney 26 water into the plaintiffs lake killing fish. In addition, (D2) caused large quantities of salt water and oil to flood into the plaintiffs lake. *Rule of Law- Where the tortious acts of two or more wrongdoers join to produce an indivisible injury, that is an injury which from its nature cannot be apportioned with reasonable certainty to the individual wrongdoers, both parties must be held jointly and severally liable for the entire damages. Cant use the but-for test here b/c both would escape liability. Restatement 2d 431. What Constitutes Legal Cause The actors negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Railway Substantial Factor Test *Facts- Defendant negligently started a forest fire in a bog which spread over a large area. Defendants fire merged with another fire of independent and unknown origin to burn the plaintiffs house. *Rule of Law- There is liability for a known force of destruction even if it combines with an independent and unknown force to cause an injury. *Holding- Defendants fire proved a material element in causing the damage to the plaintiffs property. Substantial Factor test widely accepted: if two or more causes concur to bring about an event, then cause-in-fact is established by the substantial factor test. When either the but for or substantial factor test is satisfied, a party has established that the other partys conduct was the cause-fact of the injury. It occurs whenever multiple causes of injury are present. If a negligent act is deemed wrongful b/c that act incrased the chances that a particular type of accident would occur, and b) a mishap of that sort did happen, this was enough to support a finding by a trier of fact that the negligent behavior caused the harm. 3. Proof: What Was Caused? Summers v. Tice Shifting the burden of proof *Facts- The plaintiff was hunting with the two defendants. Both defendants negligently pointed in the plaintiffs direction, fired at the same time, and struck the plaintiff in the eye. Plaintiff was unable to indicate which defendants pellet struck him in the eye. *Rule of Law- If two parties negligently thrust danger upon another that results in an injury that in the alternative one or the other would be liable for, then both will be held liable for that damage. *Holding- The innocent wronged party should not be deprived of his right to redress. The wrongdoers should be left to work out between themselves any apportionment. One tortfeasor caused the harm, the other caused spoliation of the evidence.

27 Lord v. Lovett. Page 210 *Facts: plaintiff suffered a broken neck in a car accident and was treated by the defendant doctors. She contends that she would have a substantially better recovery had the correct treatment been provided immediately. *Holding: The third approach permitting the plaintiff to recover for the loss of an opportunity for a better outcome, an interest that we agree should be compensable, while providing the proper valuation of interest should apply here. The loss of chance, lost hope is the injury of the tort. If plaintiff had 80% chance of recovery, and defendants negligence causes the survival to drop to 20%, the loss of chance is the injury. Plaintiff recovers 60% in loss of chances. Plaintiff must prove each element by a preponderance of evidencemore likely than not.

Alexander v. Scheid Increased risk of harm *Facts- Defendant ordered x-rays. Radiologist reported density in the upper lobe of plaintiffs lung and said that older films comparison would be of value. Defendant failed to follow up on this information. Inevitably, plaintiff suffered from advanced cancer that had metastasized. *Rule of Law- A negligent delay in diagnosis constitutes an increased risk of harm and a decrease in patients life expectancy, which proves a sufficient enough causation to allow recovery of damages for negligence. The loss of chance is better understood as a description of the injury . Dillon v. Evanston Hospital. Pg. 216. *Facts: a catheter was inserted into plaintiffs body, but when it was removed, a piece broke off and it floated into the plaintiffs heart. Dr. knew about this and did nothing about it and did not tell plaintiff. *Holding: judgment for plaintiff on increased risk is permissible. Evidence of increased risk of future harm AND damages proportioned to the probability that risks of future harm would materialize must be proven

Possible rule for liability without causation: 1.the defendant has acted negligently AND 2. the negligence created an identifiable risk AND 3.the plaintiff was one of the persons subjected to that risk AND 4. the plaintiff actually suffered harm of the kind risked by the defendant VIII. Negligence: The Scope of the Risk or Proximate Cause Requirement A. The Principle: Scope of Risk Medcalf v. Washington Heights Condominium Assn, Inc. *Facts- Defendant went to visit her friend, picked up the intercom, and called her friend. The

Bradney 28 friend attempted to buzz her in, however, the intercom security system failed. Consequently, plaintiff was unable to enter building, was attacked by a man, and suffered injuries. *Rule of Law- Proximate cause requires a reasonable connection between the defendants act or omission and the harm suffered by the plaintiff such that the injury occurring proves a foreseeable risk created by the defendants negligence. *Holding- Proximate cause remains defined as an actual cause that is a substantial factor in the resulting harm. As a matter of law, the mind of a fair and reasonable person could reach only one conclusion. The plaintiffs injury was not within the foreseeable scope of the risk created by the defendants conduct. AS a matter of law, there is linkage. The injury has to be with in the forseaable risk posed by defendants negligence. Abrams v. City of Chicago. Pg. 221 *Facts: plaintiff sued on behalf of herself and her deceased child, for negligence in that the defendant failed to send an ambulance whneher contracts were 10 minutes apart. Her friend had to take her in her car, and when they ran a red light, they were struck by a drunk driver. *Holding: The city could not have reasonably anticipated that a refusal to send an ambulance when labor pains are 10 minutes apart would likely result in plaitiffs driver running a red light at the same time that a drunk driver hit them. This harm is not forseable. The risks created by the failure to dispatch an ambulance did not include car collisions. The childs death and plaintiffs injury would not be within the scope or the risk, so NO PROXIMATE CAUSE *Rule of Law- If breach occurs, does plaintiffs injuries fall within the forseeable damages? If yes, then there is proximate cause.

Palsgraf v. Long Island Railroad Co.THE PROXIMATE CAUSE CASE *Facts- Plaintiff purchased train ticket and stood on a platform. Two men frantically ran to catch a train, a guard helped one man on the train, and he dropped a package onto the track. The package contained fireworks, an explosion erupted, and the plaintiff was struck by a railroad scale. *Rule of Law- A duty that is owed must be determined from the risk that can be reasonably foreseen under the circumstances. *Holding- Cardozo: The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension. The risk of foreseeable injury failed to extend beyond the package and passengers on the train. There was no negligence to begin with because there was no duty and no breach. There was nothing in the situation to suggest to the most cautious mind that the parcel would spread wreckage throughout the station. *Dissenting- Andrews: Everyone owes the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. In determining proximate cause the court must ask whether there was a natural and continuous sequence between the cause and effect. The explosion was a substantial factor in producing the result. A person who is negligent to any class of person is negligent to everyone who is injured.

29

INTEGRATING PALSGRAF AND MEDCALF The defendant is liable only for: a. Types of injuries foreseeably risked by his negligence and b. To classes of persons forseeably risked by his negligence.

Danger invites rescue.Rescue is forseeable as a matter of law. Rescuer can recover from defendant whose negligence prompts the rescue. B. Assessing the Scope of the Risk 1. Harm Outside the Scope of the Risk Because of the Manner in Which it Occurs? Hughes v. Lord Advocate Kerosine lantern *Facts- Post office employees repairing an underground cable negligently left a manhole open covered by a tent and surrounded by kerosine lanterns. Plaintiff, age eight, climbed into the hole and knocked over a lantern. Consequently, an explosion erupted because the kerosene vaporized and the plaintiff fell back into the manhole, and suffered severe burns. *Rule of Law- Where a known source of danger exists and a party fails to protect against it, that party remains liable for injuries resulting to another even if injuries remain caused in an unforeseeable way. *Holding- Although the fire took a different form, burning and fire was forseeable, and burns still resulted. Made no difference how the fire started. Only need to forsee the general character of the injury. The explosion did not fall outside the scope of the risk. Doughty v. Turner Manufacturing Co., Limited *Facts- Defendants worker accidently dropped a cover into an 800 degree vat of molten liquid. No splash resulted, however, a chemical reaction occurred, and explosion erupted, and plaintiff was injured. *Rule of Law- Defendants duty owed tot the plaintiff in relation only to the foreseeable risk, that is of splashing, was to take reasonable care to avoid knocking the cover into the liquid or allowin it to slip in such a way as to cause a splash which would injure the plaintiff. *Holding- The damage was of an entirely different kind from the foreseeable splash.

2. Is Harm Outside the Scope of the Risk Because Its Extent Is Unforeseeable? Hammerstein v. Jean Development West *Facts: plaintiff a 70 yr old hotel guest, was diabetic and could not walk up and down stairs. There were no ground level rooms available, but hotel thought he could just use elevator, so they gave him a 4th floor room. Hotel had faulty fire alarm and knew about it and didnt fix it; the fire alarm went off and plaintiff hurt ankle from walking down stairs and got a blister which later turned gangrenous as a result of the diabetes. *Rule of law: Defendant takes the plaintiff as he finds her, that is whatever extra damages the

Bradney 30 plaintiff might have b/c the plaintiff has a thick skull, or has diabetes, or is pregnant, or is otherwise pre-disposed to suffer more. Defendant is liable for injury caused even if plaintiff has a think skull that wouldnt cause damage to an ordinary person. The thin skull rule merely holds that the defendant does not escape liability for the unforeseeable personal reactions of the plaintiff. Burden of proof is still on plaintiff. A defendant may e liable for the full extent of a plaintiffs harm, even where the extent of that harm is unforeseeable.

An intervening act of an injury is that which in a natural and continuos sequence, unbroken by an efficient interveign cause, produces an injury and without which the injury would not have occurred. An intervening act of some second tortfeasor should relieve the first tortfeasor of liability only when the resulting harm is outside the scope of the risk negligently created by the first tortfeasore (superseding act) 3. Is Harm Outside the Scope of the Risk Because It Results Most Directly from an Acts of an Intervening Person or Force? Watson v. Kentucky & Indiana Bridge & Railroad *Facts- Defendant negligently derailed a gasoline tank car, the tank leaked, and a independent party threw a match into the area causing an explosion. The plaintiff was injured in the process. *Rule of Law- A party is not liable for negligence if the acts of an unexpected and extraordinary agency intervenes in causing an injury to another. *Holding- A party is not required to anticipate the criminal acts of others by which damages are inflicted.

Delaney v. Reynolds. Pg. 239 *Facts- plaintiff Delaney lived with defendant Reynolds. Delaney was on drugs, she knew that Reynolds stored his loaded gun in an unlocked, easily accessible place. Delaney got really high on cocaine, grabbed Reynolds gun, and tried to kill herself but the gun did not go off. She tried to kill herself again, but the gun misfired and she was severely injured. Reynolds claims that Delaneys intentional attempt at suicide was a superseding event. *Holding: It was forseeable on Reynolds part that failing to secure his gun would cause injury to Delaney especially b/c he knew of her problems. ****Rule of law: Most states follows that where a plaintiff intentionally attempts to commit suicide, that act is superceding cause of the plaintiffs harm, unless 1. The defendants tortuous misconduct induces a mental illness in the plaintiff from which the suicide attempt results. And 2. Where there is a special relationship b/w the 2 parties that presumes or includes the knowledge by the defendant of plaintiffs risk of commiting suicide.

31 Derdiarian v. Felix Contracting Corp. Human fire ball *Facts- Plaintiff was working at (D1)s excavation site. (D2) suffered an epileptic seizure and struck a kettle of boiling liquid enamel. As a result, the enamel splattered onto the plaintiff and he ignited into a human fire ball. Defendant failed to take adequate measures to insured the safety of workers on the construction site. *Rule of Law- The jury can conclude that the foreseeable, normal, and natural result of the risk created by Felix was the injury of a worker by a car entering the improperly protected work area. Any driver could have crashed through the barrier. *Holding- Liability turns on whether the intervening act is a natural, normal, and foreseeable consequence of the situation created by the defendants negligence. An intervening act may not serve as a superceding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk, which renders the actor negligent. Ventricelli v. Kinney System Rent A Car, Inc. Trunk lid *Facts- Defendant knowingly leased a car with a defective trunk lid to the plaintiff. Plaintiff was struck by another vehicle while attempting to shut the trunk lid after it flew open while driving. *Rule of Law- A party may reside as a cause to accident without being a proximate cause. *Holding- It was unforeseeable that the plaintiff would be struck by another driver while parked in a safe parking spot attempting to shut the trunk lid. Ventricelli parked in a safe place, only plaintiff was in wrong place at wrong time, not b/c of defendants negligence. Marshall v. Nugent Terminated risk? *Facts- Plaintiff was forced off the road by the defendant. Defendant attempted to help plaintiff retrieve his car from ditch and another vehicle struck the plaintiff while swerving to avoid striking the defendants truck. Plaintiff was walking to warn others about the roadblock when he was struck. *Rule of Law- Negligence does not end at the completion of a partys negligent conduct. Any extra risk created remains within the proximate cause of his negligence if it is reasonably foreseeable. All part of the same continuous, sequence of events. In this case, the truckers action put Marshall in a place of increased danger, where Marshall so that he was not negligent, had to go warn others about the danger. *Holding- Defendants particular act of negligence was not over when the cars did not collide, there was still extra risks that were created by the defendant that were not over. The unfolding of events between the culpable act and the plaintiffs eventual injury may be bizarre indeed; yet the defendant may be liable for the result. Termination of risk: defendants conduct created a risk but the risk so creates was no longer existent.. Rest 2d 435. Foreseeability of Harm or Manner of Its Occurrence (1) If the actors conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.

Bradney 32 (2) Hindsight Rule- The actors conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actors negligence conduct, it appears to the court highly extraordinary that it should have brought about the harm. IX. Defenses A. Contributory Negligence: The Common Law Rule Contributory negligence is incredibly harsh. Based on All or nothing recovery. If show plaintiff was a little liable, then no recovery. 2 ways to recover 1. Contributory negligence: all or nothing 2. Comparative negligence: % of fault 3. Modified negligence: if plaintiffs negligence exceeds the defendants: no recovery. Butterfield v. Forrester Horse and pole *Facts- Defendant placed a pole across a part of the road next to his house for the purpose of making repairs on his house. Plaintiff struck the pole while riding violently. *Rule of Law- A plaintiff is barred against recovery when his injuries prove a result of his own contributory negligence. *Holding- If the plaintiff had employed reasonable care he would not have struck the pole. Contributory negligence is a complete all-or-nothing defense. B. Contributory Negligence: Adopting Comparative Fault Rules to Permit Recovery Three Types of Comparative Negligence Systems: 1. Pure Comparative Fault system- Allows recovery for defendants apportionment of responsibility. 2. Modified Comparative Fault System- Plaintiff barred from recovery of damages if his fault is equal to or greater than the defendants fault. 3. Modified Modified Comparative Fault System- Plaintiff is not barred from recovery if defendants fault is equal to or greater than the plaintiffs fault. Wassell v. Adams Hotel rape *Facts- Plaintiff rented a hotel room from the defendant. Defendant failed to warn the defendant of crime problems in the neighborhood. Plaintiff negligently opened her door to a black man late in the evening. The black man raped the plaintiff. *Rule of Law- There is no fixed methodology for comparing the causal contributions of a plaintiff and defendants negligence. Such determinations must be left up to the jury and a jurys apportionment cannot be disturbed unless the trial judge abused his discretion in determining that the jurys verdict was not against the clear weight of the evidence. *Holding- Both parties were negligent. Plaintiff should not have opened her door to a stranger late in the evening. Using the risk utility formula, it would be cheaper if Susan used extra vigilance and due care than it would if hotel hired a security guard. Some risks are so obvious that one need not warn others of.

33

Christensen v. Royal School District *Facts: Diaz engaged in sexual activity with his 13 yr old student. Leslie brings charges against school district, principal, and Diaz *Holding: school district and principal are liable b/c they have a duty to protect their students b/c they are in a special relationship. Public policy is protecting from abuse in school setting. The child lacks consent and is under no duty to protect herself from being abused. LeRoy Fibre Co. *Facts: plaintiff owned land next to railroad and stacked combustible flax there. Sues b/c he alleges the railroads sparks created the fire that ruined his flax. **Holding: Landowners have a duty not to use property to injure antoher, but ALSO to prevent others from injuring his property. PROPERTY LAW EMPHASIZES THE OWNERS RIHT TO use PROPERTY AS SHE PLEASES IS SOMETIMES AT ODDS WITH NEGLIGENCE LAW WHICH EMPHAZISES SAFETY OF CONDUCT . Dont take unreasonable risks with 1. Last Clear Chance or Discovered Peril C. Traditional Exceptions to the Contributory Negligence Bar in a Comparative Fault Regime *Last Clear Chance Doctrine- Allows the negligent plaintiff a full recovery of damages when the plaintiff was left in a helpless position by his own negligence and the defendant, who had the last clear chance to avoid injury, negligently inflicted it anyway. Ass fettered in the road. Traiditonal system.This is not the case in a modified system of comparative negligence where the damages will be split up by a %. *Discovered Peril Doctrine- Applies rules only if the defendant actually did discover the plaintiffs peril. 2. Defendants Reckless or Intentional Misconduct Contributory negligence is no defense to wilful, wanton or reckless torts, defined as involving utter indifference to or conscious disregard for the safety of others. 3. Plaintiffs Illegal Activity Baker v. Kallash Pipe bomb *Facts- Plaintiff, age fifteen, purchased firecrackers from defendant, age nine. Plaintiff was injured when he used to firecrackers to construct a pipe bomb and it exploded. *Rule of Law- When a plaintiffs injury is a direct result of knowing and intentional participation in a criminal act he cannot seek compensation for the loss, if the criminal act is judged to be so serious an offense as to warrant denial of recovery. This case is good b/c it invokes criminal law and tort law. 2 different systems with 2 different aims.

Bradney 34 D. Causation and Comparative Fault * The plaintiff may recover full damages if her contributory negligence was not a cause in fact or a proximate cause of her own harm. E. Allocating All Responsibility to Defendant 1. Allocating Responsibility to Protect the Plaintiff from Plaintiffs Own Fault Bexiga v. Havir Manufacturing Corp. Power Punch Press *Facts- Plaintiff, a minor, was operating defendants power punch press when his right hand was crushed resulting in the loss of his fingers and the deformity of his hand. *Rule of Law- Considerations of policy and justice may dictate whether or not the defense of contributory negligence is available. An employer may retain a duty to protect an employee from his own contributory negligence. *Holding- Defendant negligently failed to install adequate safety devices. The asserted negligence of placing his hand under the ram while at the time depressing the pedal with his foot was the very eventuality the safety devices were designed to guard against.

F. Contractual Assumed Risk Boyle v. Revici Unusual cancer treatment *Facts- Plaintiff was diagnosed with cancer. Plaintiff consulted with defendant, a doctor, who purported to treat cancer, but not by any method accepted by the medical profession and not by surgery. Plaintiff placed herself in his care. Defendant warned her and told her of all the risks before the treatement and told her that none of this treatments were approved by the FDA. Plaintiffs condition deteriorated and she died. *Rule of Law- Voluntary assumption of risk constitutes a complete bar of recovery. Tunkl v. Regents of University of California Adhesion clause *Facts- Plaintiff was admitted to hospital on condition that he sign a release absolving the defendant hospital from any and all liability. Plaintiff suffered injury during surgery. *Rule of Law- An adhesion clause may be invalid if it proves in conflict with public policy and if the plaintiff fails to truly appreciate the risk. Medical services are essential for every member of the public. *Holding- Cant allow hospital in a position of power to do this when plaintiff is under duress and needs the medical treatement. Signing a realease in duress is not consent. This case is different from Boyle v. Revici b/c Boyle had choices. Tunkl didnt have a choice b/c he needed immediate hospital treatment. Tunkl was under duress. G. Implied Assumption of the Risk-Comparative Fault or Conteractual Limitation on Liability? Betts v. Crawford Housekeeper *Facts- Plaintiff, housekeeper, tripped on an item left on the stairs while carrying a pile of clothing. Defendant asked that the jury be instructed that a servant assumes all risks, which are known to him even if risks are due to masters negligence.

35 *Rule of Law- There is no distinction between contributory negligence and assumption of risk when raised as a defense to an established breach of duty. *Holding- Assumed risk has now merged into the comparative negligence system.

Moore v. Hartley Motors **Facts: Moore sues Suzuki after she took an ATV novice course and she rode over an unseen rock in tall grass and suffered injuries. She had signed a release. **Holding: The ATV course was laid out in an unnecessarily dangerous manner for novices and it was not obvious to novices and therefore not within the scope of the release. The release only refered to inherently dangerous and unavoidable risks of ATV riding. The person sigining the release has to have a clear idea of what they are signing for it not be a public policy violation. The court must determine whether the risk that caused the injury was within the scope of the release. Releases in recreational activities are usually upheld as long as they are clear. H. Assumed Risk as Limited Duty or No Defendant Negligence Sunday v. Stratton Corp. Snow bush *Facts- Plaintiff, a paying patron, was injured at defendants ski resort. Plaintiff struck a small bush concealed by snow within the ski trail. Injuries resulted in permanent quadriplegia. *Rule of Law- Where the evidence indicated existence or assumption of duty and its breach, that risk is not one assumed by the plaintiff. What he then assumes is not the risk of injury, but the use of reasonable care on the part of the defendant. *Holding- No claim advanced here, nor could there be, that the plaintiff expressly assumed any risk. Not every fall is a danger inherent in the sport. Avila v Citrus Community College District **Facts: Avila alleges negligence against school district for allowing him to get hit with a brushball in a baseball game. **Rule of Law: Primary assumption of risk is present b/c Avila knew that brush balls were inherent risks in the game of baseball. Although the rules were broken, these rules are a part of the sport, and its forseeable that rules could be broken for strategy. Primary assumption of risk or limited duty rules are applied to bar claims by spectatotors injured by risks inherent in the game. *Primary assumption of risk- Where, by virtue of the nature of the activity and the parties relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury complete bar to recovery. *Secondary assumption of risk- Where the defendant owes a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendants breach of duty merged into the comparative fault scheme.

Bradney 36 Gauvin v. Clark Willful, wanton, or reckless conduct *Facts- Plaintiff, hockey player, was butt-ended by the defendant in a college hockey game. The defendants conduct violated a safety rule. Plaintiff lost his spleen as a result of the injury. *Rule of Law- Personal injury cases arising out of an athletic event must be predicated on reckless disregard of safety. Defendant owes only the duty to avoid reckless or wanton injury. *Holding- Focus of analysis is toward the defendants duty under the circumstances and not the plaintiffs assumption of risk. I. Statute of Limitation Crumpton v. Humana, Inc. *Facts- Plaintiff underwent surgery and claimed to sustain hospital bed neck injury. The plaintiff failed to file suit before the applicable statute of limitations had run. *Rule of Law- The statute of limitations commences running from the date of injury or the date of the alleged malpractice. *Holding- The records indicated that the defendant did not fraudulently lead the plaintiff to believe that the case would be settled at some future date. Complaint proves frivolous and entirely without merit. Shearin v. Lloyd (This is not followed by jurisdictions anymore, as it is too harsh) *Facts- Defendant, surgeon, performed an appendectomy on the plaintiff. Plaintiff complained of pain near the incision. Inevitably, x-rays revealed that a sponge had been left in the abdomen. A severe infection resulted. The statute of limitation had already run before the plaintiff filed. *Rule of Law- A cause of action accrues so as to start the running of the statute of limitations as soon as the right to institute an action arises. *Discovery rule- the statute begins to run when the plaintiff discovered, or should reasonably have discovered, the injury. *Continuous treatment rule- the statute starts when the medical treatment for which the patient consulted the physician has been concluded. Schiele v. Hobart Corp. Meat wrapping machine/Discovery rule *Facts- Plaintiff, meat wrapper, began experiencing breathing problems upon installation of new meat wrapping machine. Condition worsened over an extended period of time. Plaintiff consulted physician after quitting her job and he informed her of the illness resulting from the harmful fumes released from the machine. The statue had run at the time of discovery. *Rule of Law- The statute begins to run when a reasonably prudent person associates his symptoms with a serious or permanent condition and at the same time perceives the role which the defendant has played in inducing that condition. *Holding- We reject the plaintiffs contention that nothing short of a positive diagnosis by a physician will have this effect. In addition, we reject the defendants notion that knowledge of symptoms and their causal relationship to the defendants action in and of itself initiates the running of the statute.

37 *Constructive knowledge- knowledge of injury and the defendants role in generating that injury. **Will a reasonable person have discovered sufficient facts and make the causal connection? Look at this to determine when to start the clock. McCollum v. DArcy Childhood sexual abuse *Facts- Plaintiff, age fifty, claimed that her parents, age eighty, sexually abused her as a child. *Rule of Law- The statute of limitation will be tolled under the discovery rule. *Holding- Defendants can, however, still argue that the plaintiff discovered or should have discovered the facts earlier. Doe v. Maskell Parochial school sexual abuse/Repression of memory? *Facts- Plaintiffs, both girls, contend that defendant, school chaplain, sexually abused them while they attended the parochial school. Plaintiffs claimed that they repressed rather than forgot all memories of the abuse and twenty years later recovered rather than remembered memories of the abuse. *Rule of Law- The mental process of repression of memories of past sexual abuse does not activate the discovery rule. *Holding- We are unconvinced that repression exists as a phenomenon separate and apart from the normal process of forgetting. The two processes remain indistinguishable scientifically. **Some courts hold that the stat. of limitations will be tolled only when a plaintiff completely represses all memory of sexual abuse, not simply when the victim cannot causally connect present injuries to past abuse. Other states have passed statutes liberalizing the statute of limitations in child abuse situations. ***Statute of limitatiosn may be tolled so that the clock is not running when the plaintiff is under disability such as minority or mental incompetence.

Dasha v. Maine Medical Center *Facts- Defendant, a surgeon, erroneously diagnosed the plaintiff as having a fatal brain tumor. The treatment administered by the defendant caused brain damage. Inevitably, the plaintiff was informed that her original problem was relatively benign tumor not calling for such treatments. Statute of limitations had run by the time the plaintiff initiated suit. *Rule of Law- The gist of an estoppel barring the defendant from invoking the defense of the statute of limitations is that the defendant has conducted himself in a manner which actually induces the plaintiff to take timely legal action on a claim. *Holding- Plaintiff relied on the defendants misdiagnosis to seek radiation treatments, but did not rely on a representation of defendant to decide to forego seeking legal redress. NO equitable estoppels applies b/c plaintiff could have sought legal redress while the courthouse doors remain open to him. The misdiagnosis by MMC is not the equivalent of fraud to support the assertion of equitable estoppels.

Bradney 38 *Statutes- some states have passed statutes liberalizing the statute of limitations in cases of childhood sexual abuse. *Equitable estoppel- If a molester prevented suit by physical force or threats, he might be estopped from pleading the statute of limitations as a defense. *Tolling- the clock stops running; constitutes a time-out. *Grace periods- extends the statute of limitations; it does not stop the clock.

Hoery v. United States. Pg. 306 **Facts: Hoery family bought home. Air Force dumped toxins that migrated underneath Hoery home. ***Holding: the ongoing presence and continued migration of toxins constitute a continuing trespass. Continuing; not permanent. Remediable. New cause of action each day the property invasion continues. Can only recover present damages. Not future damages or past damages b/f stat of limitations. Permanent: public policy favors the continuing of a permanent invasion. Cause of action occurs the date of the injury or when plaintiff should have discovered it.recovers all damages past and present and future. J. Compliance with Statute Miller v. Warren *Facts- Plaintiff awoke in his motel room to find it filled with smoke. Plaintiff suffered severe burns before rescued. Defendant, the motel owner, failed to place smoke alarms in the rooms. The fire code did not require such devices. *Rule of Law- If a person knew or should have known of some risk that would be prevented by reasonable measures not required by regulation, he was negligent if he failed to take such precautions. *Holding- Complaince with a statute reflects a minimum standard of care, not a maximum obligation. Still use the reasonable person standard. Circumstances may require greater care. X. Carriers, Host-Drivers and Landowners A. Carriers and Host-Drivers Doser v. Interstate Power Co. Duty to avoid unreasonable risks *Facts- Defendants bus was involved in an automobile accident. Plaintiff, a passenger, was injured. *Rule of Law- A carrier of passengers for hire must exercise more than ordinary diligence for their protection. Its duty stops just short of insuring their safety. *Holding- Defendant was bound to protect its passengers as far as human care and foresight will go and is liable for slight negligence. High degree of care must be exercised in foreseeing, as well as in guarding against, danger. B. Landowners Duties to Trespassers, Licensees, Children, and Invitees

39 *Invitee- privileged a person on the premises (a) for the benefit of the landowner or occupier, (b) or who was on the premises held open for the public generally. Ordinary care standard. Duty to inspect and discover dangers. Duty to take reasonable care to avoid unreasonable risks. *Social guests rule- excluded from the invitee category. Wilful, Wanton, or Reckless conduct standard. *Licensee- permitted one who is permitted to be on the land by the owners consent or the licensees privilege, but who does not qualify as an invitee. Wilful, Wanton, or Reckless conduct standard. *Trespasser- includes any person whos entrance is unconsented to and unprivileged. Wilful, Wanton, or Reckless conduct standard. *Attractive nuisance doctrine- turntable doctrine landowners owe a duty of care to trespassing children when (a) trespass by children is foreseeable, (b) landowner knows or has reason to know of the danger, (c) there is reason to think the child, by reason of his age, will not be able to protect himself from the danger. Shifts trespasser to invitee category. *Common hazard rule- common hazards such as fire and polls of water cannot be considered attractive nuisances and the trespassing child who suffers injury is entitled to no protection from the landowner. Gladon v. Greater Cleveland Regional Transit Authority *Facts- Plaintiff, initially an invitee, was injured when the defendant, operator of a rapid transit train, struck his legs that were extended across the track. Plaintiff became a trespasser upon entering the track area. *Rule of Law- A landowner owes no duty to a licensee or trespasser except to refrain from wilful, wanton, or reckless conduct which is likely to injury him. *Holding- When a trespasser or licensee is discovered in a position of peril, a land owner is required to use ordinary care to avoid injuring him. The status of an invitee is not absolute but is limited by the landowners invitation. OSullivan v. Shaw Open and Obvious Danger Rule *Facts- Plaintiff, defendants visitor licensee, was injured while diving into the shallow end of the defendants swimming pool. Plaintiff contended that the defendant was negligent in failing to warn him of the dangers associated with such activities. *Rule of Law- Landowners are relieved of the duty to warn of open and obvious dangers on their premises because it is not reasonably foreseeable that a visitor exercising reasonable care for his own safety would suffer injury from such hazards. *Holding- Where a danger would be obvious to a person of ordinary perception and judgment, a landowner may reasonably assume that a visitor has knowledge of it and, therefore, any further warning would be an empty form that would not reduce the likelihood of resulting harm. C. The Firefighters Rule Pinter v. American Family Mutual Ins. Co. *Facts- Plaintiff, firefighter and emergency medical technician, suffered an inguinal hernia while responding to an automobile accident. Defendant proves the driver who caused the accident that

Bradney 40 necessitated his response. *Rule of Law- A person is not liable for the negligence that creates the very need for a firefighter/rescue officers employment. *Holding- One who negligently starts a fire is not liable for that negligence when it causes injury to a firefighter who comes to extinguish the blaze. Firefighter already received compensation and assumes the risks. *Exceptions to Firefighters rule: 1. Intentional torts 2. Statutory violations 3. Risks not inherent in the job not paid to assume such risks 4. Increased risks dog dangers *The firefighters rule has no application to a professional firefighter/safety officer who is privately employed. D. Adopting a Reasonable Care Standard for Landowners Rowland v. Christian Rowland rule *Facts- Plaintiff was a social guest in the defendants apartment. *Rule of Law- A possessor of land retains a general duty employ reasonable care in avoiding unreasonable risks to all persons who have entered upon his land. *Holding- The court merges the invitee, licensee, and trespasser categories into one and applies the single standard of reasonable care to all three categories. A mans life and limb does not become less worthy of protection by the law nor a loss less worthy of compensation under the law because he has come upon the land of another without permission or with permission but without a business purpose. Scurti v. City of New York Reasonable care *Facts- Plaintiff, age 14, was electrocuted in a railroad yard after crawling through a hole in the defendants fence. *Rule of Law- A possessor of land has a right to use his property and to develop it for his profit and enjoyment, however, he must take reasonable measures to prevent injury to those whose presence on the property can reasonably be foreseen. *Holding- The law requires the exercise of reasonable care under the circumstances. In any negligence case the court must always determine as a threshold matter whether the facts will support an inference of negligence. E. Recreational Uses: Re-Creation of the Statutes Categories *Statute imposes liability only for gross negligence or willful and wanton misconduct of the owner, tenant, or lessee toward a non-paying person permitted to enter a recreational area. *Statutes enacted to limit liability in order to encourage landowners to make land available for recreation in a world becoming increasingly crowded.

41 F. Lessors Pagelsdorf v. Safeco Ins. Co. of America General rule of non-liability abandoned *Facts- Plaintiff, while assisting a person in moving out of his apartment, leaned against a wooden balcony railing. The railing collapsed, the plaintiff fell, and sustained injuries. The railing had dry rot and would not hold well, but this had not been apparent to the eye. *Rule of Law- A landlord is under a duty to exercise ordinary care in the maintenance of the premises. *Common passageway rule- a lessor is liable for injuries resulting from any place reserved in the lessors control but available for the tenants use. XI. Duties of Medical and Other Professionals A. Traditional Duties of Health Care Providers in Traditional Practice Rest. 2d 314. Duty to Act for Protection of Others The fact that the actor realizes or should realize that action on his part is necessary for anothers aid or protection does not itself impose upon him a duty to take such action. Walski v. Tiesenga *Facts- Defendant operated to remove the plaintiffs thyroid. There was scar tissue present as a result of earlier operations and treatments. The defendant, instead of locating the nerve, made a wide cut so as to avoid the area where the nerve was believed to be. As a result, the defendant severed the nerve and paralyzed the plaintiffs vocal chords. Plaintiff expert witness testified merely that he would have acted differently. *Rule of Law- The plaintiff has the burden of proof to establish a standard of care in malpractice suits. The plaintiff in a medical malpractice action must establish the standard of care through expert testimony. *Holding- It is insufficient for plaintiff to establish a prima facie case merely to present testimony of another physician that he would have acted differently fro the defendant, since medicine is not an exact science. It is rather a profession which involves the exercise of individual judgment within the framework of established procedures. Plaintiff failed to introduce evidence of the standard of care to which the defendant was bound to adhere to. *Where competent medical authority is divided, a physician will not be held responsible if in the exercise of his judgment he followed a course of treatment advocated by a considerable number of recognized and respected professionals in his given area of expertise. Medical standard of care: the care provided by other physicians. Whatever school of thought Dr. is a member of, then thats the standard we hold them to. Vergara v. Doan Birth injury *Facts- Plaintiff claims that the defendant doctors negligence during delivery caused severe and permanent injuries to her baby. *Rule of Law- A physician must exercise that degree of care, skill and proficiency exercised by

Bradney 42 reasonably careful, skillful, and prudent practitioners in the same class to which he belongs, acting under the same or similar circumstances. The court took away the locality rule for Indiana. Strict locality rule- The standard of care is that degree of care, skill, and proficiency which is commonly exercised by ordinarily careful, skillful, and prudent physicians, at the time of the operation and in the same locality/community. Modified locality rule- The standard of care is that degree of care, skill, and proficiency which is commonly exercised by ordinarily careful, skillful, and prudent physicians, at the time of the operation and in similar localities. Modified, Modified locality rule- National standards Specialties: Specialities are held to the standard of their specialities; thus, an orthopedic surgeon is held to a higher standard setting a fracture than a family doctor. Nonmecical Practitioners: Subject to the standards of the school they profess, not to medical standards. *When a nonmedical practitioner recognizes or should recognize that a patient has a medical problem, some courts hold that they must refer the patient to a medical doctor. Hirpa v. IHC Hospitals, Inc. Pre-existing duty rule/Good Samaritan statute *Facts- Plaintiff, a patient in active labor, became unresponsive. Her physician broadcasted a Code Blue over the hospital intercom. The defendant doctor responded and took over, however, the patient died several minutes later. *Rule of Law- If a doctor has no pre-existing duty to a patient and renders emergency care, he shall not be liable for civil damages as a result of any acts or omissions by such person in rendering the emergency care if he acts in good faith=Good Samaritan Statute. This does nto establish a standard of care; it just provides immunity. This is also known as the Good Samaritan Rule. Good Samraitans/ volunteer rescuers are immune so long as they act within their trainin. If a person who has not trainint gives the heimlech maneuver negligently, they will be held liable b/c they acted beyond their training. *Holding- Whether the doctor was under a preexisting duty to the patient could depend upon the doctor-patient relationship, his contractual duty to respond, hospital rules or other factors insufficient. B. Res Ipsa Loquitur States v. Lourdes Hospital. Pg. 358 *Facts: plaintiff underwent surgery to remove cyst. Anesthesiologist negligently hyperabducted her right arm beyond a 90 degree angle for an extended period of time, causing right throarcic outlet syndrome. **Ruling: Jury can hear plaintiffs expert testimony in order to determine whether the injury would normally occur in the absence of negligence. Expert testimony may be used to help the jury bridge the gap between its own common knowledge and the specialized knowledge.

43 Experts jub here it to educate the jury, Experts opionion does NOT negate the jurys ultimate responsibility as finder of fact to draw the necessary conclusion. Ybarra v. Spangard *Judgment for the , affirmed *Facts- Plaintiff was diagnosed with appendicitis and underwent an appendectomy. During surgery, the plaintiff was treated by several doctors, handled by several nurses, and now he has paralysis from the procedure. Plaintiff assert res ipsa loquitur. *Rule of Law- Where a plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those defendants who had any control over his body or the instrumentalities which might have caused the injuries ay properly be called upon the meet the inference of negligence by giving an explanation of their conduct. *Holding- The present case is of a type which comes within the reason and spirit of the doctrine more fully perhaps than any other. Every defendant in whose custody the plaintiff was placed for any period was bound to exercise ordinary care to see that no unnecessary harm came to him and each would be liable for failure in this regard. Note: first element of res ipsa is that there is negligence without knowing who caused it? In Summers v. Tice, both defendants actually acted negligently and shot even though only 1 caused the injury. Here, there are a ton of people who played a role and we dont know whose negligence is at fault. Notes: Classic Res Ipsa case for medical malpractice. This is a straight forward case goes in for one procedure and comes out with a different injury Doctors normally will not testify against other doctors because they have to continue working in the field . . . this is especially true with nurses. See Summers v. Tice joint several liability Burden of proof shifts from to the in res ipsa cases If nobody can distinguish who is at fault how do you split liability? o Sometimes a person speaks up to keep from paying liability o Absent of information showing that one person has more cause than another insurance agencies split liability equally amongst all parties

C. Informed Consent Schloendorff v. Society of New York Hospital Disclosure Rule/Materiality test *Holding- Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who perform an operation without his patients consent commits an assault, for which he is liable for damages. Cardozo Harnish v. Childrens Hospital Medical Center

Bradney 44 *Trial ct dismissed for inadequate proof, appeal for *Facts- Plaintiff underwent operation to remove a tumor in her neck. During the procedure, her hypoglossal nerve was severed, resulting in a loss of tongue function. Plaintiff sued the defendant for misrepresentation and negligence in failing to inform her before surgery of the risk of loss of tongue function, even though Dr knew about the risk. claims that if she knew about the risks she would not have went through the surgery especially since procedure was cosmetic. *Rule of Law- A physician owes to his patient the duty to disclose in a reasonable manner all significant medical information that the physician possesses or reasonable should possess that is material to an intelligent decision by the patient whether to undergo a proposed procedure.The Harnish rule focuses on the patient. What a reasonable patient would want to know. *Holding- An unrevealed risk that should have been made known must materialize, for otherwise the omission, however unpardonable, is legally without consequence. Plaintiff must also show that had the proper information been provided neither he nor a reasonable person in similar circumstances would have undergone the procedure. Defendant is liable for injury. Note: If a Dr does know that, a person has religious reservations about procedures and does the procedures anyways, is this informed consent? NO Woolley v. Henderson: CENTERS ON THE DR. Jury for , affirmed *Facts- Defendant operated on the plaintiffs back, but due to an abnormality in the spine, got the wrong interspace between the vertebrae. This resulted in a tear to the tissue encasing the spinal cord and numerous medical problems for the plaintiff. A tear of this kind was a normal risk of this procedure, but the doctor had not informed the plaintiff. *Rule of Law- The standard of disclosure is that of the reasonable medical practitioner and this will ordinarily require expert testimony. *Holding- Professional standard must be used. There might be therapeutic reasons for withholding information. The plaintiff in informed consent cases must also prove causation by the objective test, that is, that a reasonable person would have refused the treatment had full information been given, and that the plaintiff himself would have refused it. Note: This is an example of an objective test. This case is different than the test and requirements of Harnish o The standard of what a Dr. must disclose what a reasonable medical standard would disclose o Harnish deals with that the would consider materialize Marsingill v. OMalley pg. 366 **Facts: plaintiff Marsingill had a staple removed from her stomach 4 months earlier. Dr. told her to go to the ER and it was likely that they would use a nasogastric tube to relieve pressure. Marsingill disregarded OMalleys recommendation and she suffered permanent injury.

45 **Holding: The physicians duty of disclosure is measured by what a reasonable patient would need to know in order to make an informed and intelligent decision. Dr. gave Marsingill all the info a reasonable patient would want to know.

Wlosinski v. Cohn. Pg. 369 **Facts: Mike received kidney transplant from Dr. who said his success rate was good. Mike died. Plaintiffs expert inferred medical incompetence by saying that 5/87 kidney transplants Dr. Cohn performed had failed. Plaintiff contends that Dr. Cohn owed a duty to Mike to disclose his failure rate b/f obtainting consent to the procedure. **Holding: The doctrine of informed consent requires a physician to warn a patient of the risks and consequences of a medical procedure. By itself, Dr. Cohns success rate was not a risk related to the medical procedure. No duty to disclose his statistical history of transplant failures. Note How informed should a be? There is no real answer. Arato v. Avedon Written request Jury for the , affirmed *Facts- Plaintiff was diagnosed with cancer. Plaintiff submitted a written truth request to his defendant doctor. However, the defendant failed to inform the plaintiff that his chances of life expectancy were low. The defendant recommended post-operative treatment that had been experimentally successful with other forms of cancer. The plaintiff died and failed to arrange his economic affairs. Plaintiff sues for financial losses incurred. *Rule of Law- A doctor has no duty to disclose statistical life expectancy information, because it is not information about risks of the procedure. As to relevant information that is not about risks, the standard of disclosure is the standard of practice within the medical community. *Holding- A patient may validly waive the right to be informed, but we do not see how a request to be told the truth in itself heightens the duty of disclosure imposed on physicians as a matter of law. Note

Unless one could say that risk of death is a risk of the procedure then there is no duty to disclose since death is not a medical condition.

Truman v. Thomas Fiduciary Jury for , reversed for *Facts- Plaintiff consulted with defendant doctor over a period of six years. Doctor repeatedly advised her to have a pap smear, but never warned her of the purpose or of the dangers of not having one. The plaintiff died of cervical cancer. *Rule of Law- If a patient indicates that she is going to decline the risk-free test or treatment, then the doctor has the additional duty of advising of all material risks of which a reasonable

Bradney 46 person would want to be informed. When the risk is unknown to the patient there is a responsibility to disclose. *Holding- Defendant had a duty to inform the plaintiff of the danger of refusing the test, because it was not reasonable for the defendant to assume that the plaintiff appreciated the potentially fatal consequences of her conduct. Note: Dr. is required to disclose all potential risks to a patient for not having a Tx This case shows a better approach since the Dr encompass a certain level of trust from a person that the Dr. is tasked with looking after the well being of the patient Brown v. Dibbell Double mastectomy Judgment for a New trial *Facts- Plaintiff underwent a double mastectomy with some unfortunate results. Plaintiff sues under the informed consent theory. Jury found that the defendant was negligent in obtaining the plaintiffs consent, but found that the plaintiff was chargeable with 50% of the negligence for failing to exercise care for her own health. *Rule of Law- A defendant may invoke the comparative fault defense in an informed consent action. A patient may be charged with comparative fault for failing to give truthful and complete family history when it is material. *Holding- A patient may ordinarily trust the doctors information and except in a most unusual case could not be charged with fault for failure to ascertain the truth or completeness of the information presented by the doctor or to seek independent advice. Note

Comparative fault can be applicable in malpractice cases when a patient does not disclose other medications, symptoms, or family history when asked then patient can be partially negligent.

4 Changing medicine, Changing Law Is there really a medical malpractice crisis in the US? The reality is that very few cases actually receive high rewards Medical malpractice cases are often settled within the $50k range Some states have enacted legislation to limit recovery. . *Rule of Law- COBRAS treatment and transfer requirements are not limited solely to an emergency medical condition or active labor which has not been stabilized and which occurs in conjunction with initial admission to an emergency department, those requirements also apply when an emergency medical condition or active labor occur after the admission and initial stabilization of the patients condition. *Holding- When the words of the statue are plain and unambiguous we need not resort to rules

47 of statutory construction or legislative history. Note: - COBRA statute gives specific instruction that makes patient dumping illegal - Critics say that if the fed government requires hospitals to take on these indigent patients then the government should pay - What is appropriate medical screening? - How does a fed statute and state statutes work together? o Some may suggest federal preemption, however fed and state statutes often work together to provide duty ****Mandatory Emergency Treatment and Screening 42 U.S.C.A. 1395: Any person with or without health insurance comes to an ER and asks for treatement or an examiniation must be provided with an appropriate medical screening examination to determine whether or nto a n emergency medical condition exists. If there is an emergency medical condition, the hospital must provide treatement or stabilize the condition. Note: - EMTALA requires that hospitals screen patients to determine the necessary Tx or seriousness of ailments

Lewellen v. Schneck **Facts: Hospital failed to propertly examine drunk plaintiff and he suffered from permanent paralysis and brain problems. **Holding: The purpose of EMTALA is to prevent patient dumping while their conditions worsen. Patient must be given an appropriate medical screening and may not be discharged until he has received a stabilizing treatment. A hospital is only required to stabilize an emergency condition that they know about. IF through an appropriate screening, a condition is not found, the hospital will not be held liable. Horizon/CMS Healthcare Corp. v. Auld Jury for , Judgment affirmed *Facts- Martha Harry age 76 was a resident of the s nursing home. The nursing home neglected to provide Martha with medical care and Tx within acceptable standard of care. She suffered from pressure sores and contractures in all extremities from the lack of care provided by the home. *Rule of Law- a certified copy of a record of a public agency is admissible hearsay *Holding- Evidence of a s subjective knowledge of the peril his conduct creates is admissible to prove gross negligence, which was an issue at trial. Note: - What is the duty that the nursing home owes the ?

Bradney 48 o Give patient proper medical care, feed her, move her, etc. o 6. Intentional torts and Sexual Harassment by Professionals - There is no specific tort for clergy malpractice o This is normally tried under battery o In most instances if the defense is consent that defense will normally stand - Patients attempt to avoid the battery trap by asserting that the therapist was negligently mishandling the patient so that insurance can cover it. XII. Family Members and Charities A. Family Members *Spouses could not sue each other according to old common law. Except for property. *Children are allowed to sue parents in order to protect property interest. *Parental immunity may be limited to cases in which the parental conduct involves discretion in discipline or supervision, and does not apply to ordinary negligent accidents. *Justification for family immunity- to permit suits between family members would be to encourage fraud and collusion; would interfere with the family and disrupt family harmony. Goller v. White Goller formula *Summary Judgment for the , reversed and remanded *Facts- Plaintiff, a foster child, was living in the defendants home. The defendant permitted the plaintiff, age twelve, to ride on the draw bar of the defendants tractor without warning him of protruding bolts on the wheels. The bolts caught the plaintiffs trouser leg and caused him serious injuries. *Rule of Law- A foster parent or one who stands in loco parentis can claim the parental immunity. The immunity should be abrogated except in these two situations: (1) where the negligent act involves an exercise of parental authority over the child, (2) where the act involves an exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical, and dental services, and other care. The child is not allowed to sue for negligent supervision. *Holding- The existence of insurance in a particular case offers no ground for an exception to the immunity. Note: - The ct recognizes that parents discipline their children in different ways - The standard of reasonable care under the circumstances is well understood in tort law and does not require parents to meet an idealized standard of a father or mother Commerce Bank v. Augsburger *Facts- Plaintiff, age three, was confined in an enclosed space, described as the upper half of a wooden cabinets divided shelf inside a bedroom closet, by the defendant foster parent. *Rule of Law- Parental discretion in the provision of care includes maintenance of the family home, medical treatment, and supervision of the child. The defendant had discretion over

49 supervision of the child. *Holding- Plaintiff failed to allege an intentional tort. The defendants conduct, though severe, was the very kind to be protected under this standard. IMMUNITY APPLIES IN CASES OF SUPERVISION OF A CHILD. *Reasonable Person formula- requires parents to employ reasonable care under the circumstances. However, does not require parents to be infallible. *New York formula- indicates that parents have no duty to supervise children adequately. However, there is liability for willful or wanton misconduct. Hoppe v. Hoppe. Pg. 403 **Facts: father entrusted a hammer and an explosive nail gun to his infant son. Infant was injured and caused the cartridge to explose **Holding: While a child may not sue a parent for negligent supervision, the infant plaintiff possesses a cognizable claim that his injuries were proximately caused by defendants breach of duty of care owed to the ward at large, not just his family. The duty not to negligently maintain explosives is a duty owed to all and is not simply a duty emanating from the parent child relationship. **Courts are divided as to whether foster parents are entitled to parental immunity. Some courts have given step parents the same immunity as parents. Other courts hold that anyone who stands in the parents shoes should share the parental immunity. B. Charities *Charities are generally not immune from civil suits. *Charity could not claim the immunity against those who paid for its services *Intentional or reckless torts are not protected by immunity in some states XIII. Governmental Entities and Officers 1. Traditional immunities and their passing 1. Sovereign immunity The King can do no wrong meant that no one could sue the government in tort. The fed government and the states were immune from tort actions. 2. Taking of property the 5th and 14th amendments state that neither the state nor federal government may take property without just compensation. 3. Municipal immunities Municipalities are not sovereigns. They are corporations chartered by the sovereign but not agencies of the government. Municipalities are normally accorded an immunity from tort liability. However, they are held liable for torts committed in the course of proprietary actions. 4. Abolishing state and municipal immunity most states have enacted statutes that abolish the states immunity to at least some extent. 5. Abolishing federal immunity congress passed the Federal Tort Claims Act which abolished some but not all of the tort immunity.

Bradney 50 2. The Federal Tort Claims Act 28 U.S.C. 2671-2680 The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages. *Statute permits liability only for negligent or other wrongful acts. Strict liability is not permitted. *The FTCA waived federal immunity in numerous circumstances. Exceptions: interest prior to judgment, punitive damages, specific governmental activities. United States v. Olson pg. 407 **Facts: 2 injured mine workers and spouse sue U.S. claiming that the negligence of federal mine inspectors brought about a serious accident in a mine. **Holding: The FTCA authorizes private tort actions against the U.S. under circumstances where the U.S., if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. There are private persons in like circumstances to federal mine inspectors, namely private persons who conduct inspections. The claim is limited to the law of the state where the tort occurred.

Brooks v. United States *Facts- Plaintiff, a member of the armed forces, was on furlough (leave of absence). An army truck negligently struck the plaintiffs vehicle. The plaintiff was injured and his brother was killed. The government, defendant, argued that it should be immune from liability for its negligence when the injured persons were members of the armed forces. *Rule of Law- The FTCA excludes (ftca says cant bring) claims arising out of combatant activities of the military or naval forces, or the Coast Guard, during time of war. *Holding- The accident had nothing to do with the plaintiffs military career and was not incident to military duty. It would be absurd to believe that Congress did not have the plaintiff in mind when the FTCA was passed. No immunity. Their injuries were not caused by the service. Feres v. United States Feres doctrine *Facts- (P1) was killed in a barracks fire while on active duty. (P2) underwent an abdominal operation while in the army. Later, a doctor removed a 30 inch towel from his abdomen (Jefferson case). (P3) brought suit claiming that army surgeons were responsible for the death of a soldier *Rule of Law- The federal government is immune from actions arising out of injuries incident to service. *Holding- All claims are barred, because injuries received were incident to service. Reasoning behind the decision: no private persons operate armies; the FTCA invokes the tort law of the state where the injury occurred, thus, this would subject the unique government-to-soldier

51 relationship to the varied laws of the states; armed forces provide substantial compensation in the form of pensions or otherwise. *Military discipline- Policy concerns Suits based on service-related activity necessarily implicates the military judgment and decisions; military discipline involves not only obedience to orders, but more generally duty and loyalty to ones service and to ones country. *Feres- Fails to bar a recovery by a spouse or child of a person in the armed forces if the spouse or child is directly injured. A soldier injured on leave but still on active duty is barred from bringing his claim b/c still on active duty. Feres bars claims by active military personnel!!! Whisnant v. United States. Pg. 412 **Facts: plaintiff worked in seafood dept. on a naval commissary base. Toxic molds were present, the base knew about the toxic mold, but did nothing about it. Employees in meat dept get really sick. ***B/ c removing an obvious hazard is a matter of safety and not policy, the governments alleged failure to control the accumulation of toxic mold cannot be protected under the discretionary function exception. The court asked was the action a 1) discretionary and 2) whether the action involved a decision based on policy analysis? The design of a course of governmental action is shielded by the discretionary function, but the implementation of the course of action is not. Cleaning up mold involves professional and scientific judgment, not decisions of social and political policy, so claim in not barred. Loge v. United States Discretionary function *Facts- Plaintiff was exposed to shed virus after a physician inoculated her infant son with the poliovirus vaccine. As a result, the plaintiff became stricken with a vaccine-associated case of poliomyelitis and became a paraplegic. The gov. promulgated regulations pertainint to the safety and potency of these strains and required drug manufacturers to prove their productss conformity to these regulations before gettina license to manufacture.she alleged that gove. Was negligent in not requiring the drug manufacturer to comply with the governments own regulations and in licensing without additional safety regulations. *Rule of Law- The FTCA does not waive sovereign immunity from any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the federal agency or employee of the Government, whether or not the discretion involved be abused. *Holding- The plaintiff presented two causes of action. The government is immune from suit where the first cause is concerned, due to the discretionary function involved in deciding which vaccine to distribute. However, another cause proves valid. The agency failed to conform to governmental regulations concerning the release of untested products to the public. The government must follow its own rules. Discretionary choices are barred but statutory violations are not barred. Note: - HEW: Health & Education Welfare

Bradney 52 What was the basis for federal liability o The actions by the government were discretionary o Where there is a truly discretionary function the state or fed government cannot be held responsible o Where there is no discretionary function, a regulation or statute states what the state or government must do there is no discretion.

Note: - this is a discretionary policy because . Note: - There is a great deal of immunity given to police that embark on a high speed chase The Westfall Act: When a plaintiff sues a federal employee, the Attorney General may certify that the acts of the employee were within the scope of his federal employment. . XIV. Nonfeasance Nonfeasance- Omission failure to act properly when not obligated to do so. Misfeasance- Commission Acting improperly or a failure to act properly when obligated to do so. Yania v. Bigan Judgment for the , affirmed *Facts- Defendant operated a coal strip-mining operation. He dug trenches containing water 8 to 10 feet in depth with side walls or embankments 16 to 18 feet in height. The defendant installed a pump to remove the water. The plaintiffs husband drowned after jumping from one of the side walls. The defendant failed to render aid. *Rule of Law- A person owes another no duty to take active or affirmative steps for the others protection or rescue, unless the person was legally responsible, in whole or in part, for placing the other in the perilous position. *Holding- The plaintiffs husband was an adult in full possession of all his mental facilities and undertook to perform an act which he knew or should have known would result in death or injury. Note: - Taunting does not pose an unreasonable risk to someone who can fully appreciate the risks - When the s conduct poses an unreasonable risks to then there is a duty owed

53 B. Exceptions, Qualifications and Questions Rest. 2d 314A. Special Relations Giving Rise to Duty to Aid or Protect (1) A common carrier is under a duty to its passengers to take reasonable action (a) protect them against unreasonable risk of physical harm (b) give them first aid after he knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others. (2) Duty extends to innkeepers; possessors of land who hold it open to public; and one who is required by law to take or who voluntarily takes the custody of another. Rest. 2d 322. Duty to Aid Another Harmed by Actors Conduct If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm. Wakulic v. Mraz. Pg. 442 **Facts: Mraz brothers dare Wakulick to drink quart of vodka without passing out or puking. The observed her lose consciousness and vomit. They did not seek medical attention for her and prevented others from calling for help. They check on her, put a pillow under her head. Wakulick dies. **An actor who undertakes to render services to another, when the actor knows or should know that those services will reduce the risk of hamr to the other, has a duty to use reasonable care in rendering those services if the failure to exercise care would increase the risk of harm beyond which would have existed without the undertaking. **Holding: the boys acted negligently in discharging their voluntarily assumed duty, proximately leading to decedents death. Note: - The duty owed is to do anything within the scope of knowledge to help a person in which he caused injury to

Note: - Whenever a causes an injury he assumes a duty to help the person if he has knowledge to do so - The can not prevent others from others Farwell v. Keaton Jury for , appeal reversed did not assume any duty, reversed and jury award reinstated *Facts- Plaintiff, age eighteen, and the defendant drank a few beers and flirted with a few girls while waiting for a friend to finish work. The girls informed their male friends of the boys advancements. Consequently, the male friends battered the plaintiff. The defendant found the plaintiff badly injured and hiding under a car. The defendant drove the plaintiff to his grandmas house and left him sleeping in his vehicle, without informing anyone of his injuries or

Bradney 54 whereabouts. The plaintiff died three days later. *Rule of Law- There was a special rlealtionship between the parties b/c they were friends who understood that if one was in trouble, the other would help him out. If a person attempts to aid another in a position of peril, takes charge, and control of the situation; he is regarded as entering voluntarily into a relationship, which is attended with responsibility. *Holding- The plaintiff and defendant were companions on a social venture. There was a special relationship between the parties. Note: - A special relationship exists once a person attempts to aid another and therefore assumes a duty to help the other Other special relationships: defendant is under a duty of reasonable care for the plaintiffs safety, including reasonable affirmative efforts to rescue. 1. Carrier-passenger 2. Innkeeper- guest 3. Landowner- lawful entrant 4. Employer- employee 5. School-student 6. Landlord-tenant 7. Custodian-person in custody Podias v. mairs. Pg. 446 **Facts: college students were drinking and driving home when they hit a motorcyclist. They did not check on the motorcyclist, instead, they made phone calls to other people and decided to drive away. Cyclist was run over by another car and died. **Holding: Mere knowledge of serious peril, threatening death or great bodily harm to another, which an identified defendant might avoid with little inconvenience, creates a sufficient relationship to impose a duty of action. The risk of harm to the injured victim lying helpless in the middle of the road from failure of defendants to summon help or take other precautionary measures was forseeable. Defendants had opportunity and ability to prevent an obviously forseeable risk, but chose not to. DeShaney v. Winnebago County Dept. of Social Services Rest. 2d 323" Trial ct summary judgment for *Facts- Plaintiff, age four, was severely beaten by his father. During the course of 3 years the Department of Social Services received numerous reports from physicians concerning the fathers suspected abuse of the plaintiff. However, the defendant, Department of Social Services, failed to separate or remove the plaintiff from the abusive father. Inevitably, the child suffered severe brain damage from the fathers abuse. *Rule of Law- The affirmative duty to protect arises not form the states knowledge of the individuals predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf. The purpose of the due process

55 clause is to protect people from the state, not to ensure that the state protected them from each other. Due process is not triggered when in custody of private citizens. Due process only protects affirmative actions, not inactions. *Holding- The due process clause does not require the state to assume liability for the actions of a third person. Aggressive social work could infringe upon the rights of the father. The present fact failed to satisfy the governing rule. Had Joshua and his mother pleaded that by voluntarily undertaking to protect Joshua against a danger it played no part in creating, the state acquired a duty under the state trot law to provide him with adequate protection against that danger. Note: - The majority states that there is no special relationship between the DSS and the o Reasoning was that the state did not have custody - The due process clause has two purposes o 1. the clause protects people from state action o 2. - There is evidence that there is a relationship however, this is not a custodial relationship Dissent The states knowledge of [an] individuals predicament [and] its expressions of intent to help him can amount to a limitation of his freedom to act on his own behalf or to obtain help from others. Inaction can be every bit as abusive of power as action, that oppression can result when a state undertakes a vital duty and then ignores it. Active state intervention that triggered a fundamental duty to aid the boy once the State learned of the severe danger to which he was exposed

Note: - Foster care differs because there is a special relationship with the state since they regulate the system - The child is considered a ward of the state XVI. The Duty to Protect From Third Persons A. Defendants Relationship with the Plaintiff Posecai v. Wal-Mart Stores, Inc. Balancing Test *Facts- Plaintiff was robbed by a man in the defendants parking lot. The robber was hiding under the plaintiffs vehicle and the defendant failed to provide security guards in the parking lot. Three other robberies had occurred on the premises throughout a six year period. *Rule of Law- In determining the duty that exists, the foreseeability of harm and the gravity of harm must be balanced against the commensurate burden imposed on the business to protect against that harm.

Bradney 56 *Holding- The greater the foreseeability and gravity of harm, the greater the duty of care that will be imposed on the business. Defendant failed to possess the requisite degree of foreseeability for the imposition of a duty to provide security patrols in its parking lot. A very high degree of foreseeability is required to give rise t oa duty to post security guards. There is a special relationship: invitor/invitee Note: - Types of test used to determine duty o Specific harm rule A landowner does not owe a duty to protect patrons form the violent acts of third parties unless he is aware of specific imminent harm about to befall them o Prior similar incidents Foreseeability is established by evidence of previous crimes near on or near the premises, the idea that past history of criminal conduct will put the landowner on notice. o Totality of circumstances Takes additional factors into account, such as the nature, condition, and location of the land as well as any other relevant factual circumstances bearing on foreseeability. o Balancing test Test seeks to address the interest of both business proprietors and their customers by balancing the foreseeability of harm against the burden of imposing a duty to protect against the criminal acts of third person. - If a business is to be held liable what specific duty is breached? o The duty to exercise reasonable care o A sign located on the premises that reads danger high crime area beware Rest. 2d 344. Business Premises Open to Public: Acts of Third Persons or Animals A possessor of land who holds it open to the public for business purposes is subject to liability to members of the public for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (a) discover (b) give a warning Marquay v. Eno *Facts- Plaintiffs, three women, were students at the defendant high school. The plaintiffs were harassed, assaulted, and sexually abused by one or more of the employees of the school. Plaintiffs sued the district and its allegedly abusing employees. *Rule of Law- One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a duty to the other. A duty of reasonable supervision is owed to each student.

57 *Holding- This is a question for the jury. A child while in school is deprived of the protection of his parents or guardian. Schools share a special relationship with students entrusted in their care, which imposes upon them certain duties of reasonable supervision. Child abuse statutes does not support a private cause of action, unless you are alleging negligent supervision. Notes: - The s in this case alleges that the school employees including other teachers, coaches, superintendents, principals and secretaries either were aware or should have been aware owed a duty to the s. Note; - What if the school does not know then what o If the party does not know or should not have known then there is no duty, no supervision is required

*Employers are normally liable for the torts of their employees, provided the torts are committed within the scope of their employment. *Molestation is an infringement of a liberty interest protected by the due process clause; it is sexual harassment and a denial of equal protection. Young v. Salt Lake City School District pg. 490 **Facts: Young was riding his bike to afterschool PTA meeting when he was hit by a car at a crosswalk. Young sues the school claiming that the school should have informed the city of dangerous parking conditions, supplied a crossing guard, or provided flashing lights. **Holding: When a school district lacks custody, it has no protective obligation. No duty owed to Young. Youngs injury did not not occur at a school sponsored event, he was only traveling to such an event. Courts do not impse a duty on universities to protect or guide new students with respect to sex, alcohol, drugs, or overstudy. Children, however, have to be protected They are not adults. College students do not have a special relationship with colleges. Note: - Normally these types of cases do not go to ct due to limited liability or immunity - What happens if a teacher knows that a student is bringing a gun to school? o Duty owed is to inform and protect students against claim - Student comes up and states ex-boyfriend has suicidal tendencies what duty is owed o Duty owed is that of reasonable care because you believed the threats to be credible, where a reasonable person could see the threats to be credible a duty is owed. - Most jurisdictions make a distinct difference in the duty of care owed to college students the fact that most college students are of the age of majority and should be able to

Bradney 58 determine what is reasonable Funchess v. Cecil Newman Corp. pg. 492 **Facts:decedent was killed by intruders who gained access to his apt. intruders came in b/c security door was not working properly. **Holding: landlord under no duty of care to the tenant with respect to these attacks. Landlord was in no position to protect from criminal attacks. Transforming a landlords gratuitous provision of security measures into a duty to maintain those measures would tend to discourage landlords from institution security measures for fear of being held liable for the actions of a criminal. Notes 1. Courts emphasize the control the landlord had over common passageways and the tenants lack of power to control them or to protect themselves there. The The court stated that the applicable standard of care in providing protection for the tenant is the standard which the landlord himself was employing when the appellant became a resident. 2. Many cases impse a duty of reasonable care on landlords to maintain common areas in a reasonably safe condition for tenants. 3. If a landlord negligently creates or enhances a risk that someone will criminally attack the plaintiff, he will be laible only for his own proportionate share. Dudley v. Offender Aid and Restoration of Richmond, Inc. Half-way house *Facts- Plaintiff was raped and murdered by a convicted felon living in a half-way house. The defendant is the operator of the half-way house. Security was nonexistent at the halfway house. *Rule of Law- If the defendant is in a special relationship to either the plaintiff or the third person, the defendant is under a duty of care. *Holding- The halfway house, upon receiving the felon, became a custodian in charge. The defendants duty ran not only to victims that might be identified in advance but to all those who are directly and foreseeably exposed to risk of harm from the defendants negligence. The decedent was within the area of danger. Notes: 1. Parents are liable only for failing to control some specific dangerous habit of a child of which the parent knows or should know in the exercise of reasonable care. 2. A plaintiff must show the parent had reason to know with some specificity of a present opportunity and need to restrain the child to prevent some imminently foreseeable harm. 3. Other courts have absolved parents b/c liability would pose the risk of transforming parents from care givers and disciplinarians into jailors and insurers of their minor children. 4. Duty arises when defendant has some sort of control over the person. Generally, parents are not liable for children, except for motor vehicles. 5. If parents know of dangerous propensities on the part of their children, then they

59 must control the forseeable harm of those propensities. *A plaintiff must show that a parent had reason to know with some specificity of a present opportunity and need to restrain the child to prevent some imminently foreseeable harm in order for that parent to be held liable for their childs actions. Tarasoff v. Regents of University of California Tarasoff duty *Facts- Plaintiff was killed by a person named Poddar. Two months earlier, Poddar confided his intention to kill the plaintiff to, Dr. Moore, a psychologist employed by the defendant. The campus police briefly detained Poddar; however, he was later released when he appeared rational. *Rule of Law- Once a therapist does in fact determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger. *Holding- A therapist owes a legal duty not only to his patent, but also to his patients would-be victim and is subject in both respects to scrutiny by judge and jury. Once a therapist does in fact, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger. Where public peril begins, privilege ends. Factors considered: foreseeability of harm, degree of certainty, closeness of the connection between the defendants conduct and the injury suffered, moral blame, policy of preventing future harm, the extent of the burden on the defendant, and the cost of insurance for the risk involved. Note: - When there is a specific threat against a person they then owe a duty to protect or warn that individual Brigance v. Velvet Dove Restaurant, Inc. Serving minors *Facts- Defendant served alcohol to a group of minors. Defendant knew that the minors drove to the restaurant. Plaintiff was injured in an accident when one of the intoxicated minors crashed. *Rule of Law- One who sells intoxicating beverages for on the premises consumption has a duty to exercise reasonable care not to sell liquor to a noticeably intoxicated person. *Holding- Under the circumstances we are compelled to widen the scope of the common law. A plaintiff must still show the illegal sale of alcohol led to the impairment of the ability of the driver which was the proximate cause of the injury and there was a casual connection between the sale and a foreseeable ensuing injury. Taverns can forsee that selling alcohol to a minor or to an intoxicated person increases the risk of harm to others who may be injured by the person the vendor should know is already intoxicated.

Bradney 60 *The adult drinker is responsible for his own injury and the provider owes him nothing. However, a few courts have said the providers duty runs to the drinker as well as to others. Note: - The legislature up to this point had not passed a Dram Shop statute, but the court decided to rule as there was one - Social host immunity is normally given in most jurisdictions - Texas has stated that dram shop immunity goes to employees who get intoxicated as well XVII. Emotional Harm A. Intentional and Reckless Harm Rest. 2d 46. Outrageous Conduct Causing Severe Emotional Distress (1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, such bodily harm. (2) Where the conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress. (a) to a member of such persons immediate family who is present at the time, whether or not such distress results in bodily harm, or (b) to any person who is present at the time, if such distress results in bodily harm. Plaintiff must prove conduct was: 1. Extreme and outrageous 2. Resulting harm is severe 3. The injured person might still be able to prove negligence, but a person who cannot recover for intentional infliction of emotional disturbance usually faces substantial obstacles to recovering on a negligence theory. 1. Intentional Infliction of Emotional Distress GTE Southwest, Inc. v. Bruce Extreme and Outrageous Conduct Jury for the , *Facts- Plaintiffs ,several employees of GTE, alleged that, over an extended period of time, their supervisor engaged in a pattern of grossly abusive, humiliating, harassing, intimidating, threatening, and vulgar conduct. *Rule of Law- Plaintiff must prove that: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the defendants actions caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe. *Holding- The workplace environment provides a captive victim and the opportunity for prolonged abuse. An employee must prove the existence of some conduct that brings the dispute outside the scope of an ordinary employment dispute and into the realm of extreme and outrageous conduct. Occasional malicious and abusive incidents should not be condoned, but must often be tolerated in our society. However, a regular pattern of behavior is intolerable. Note;

61 The most common fact patterns involve conduct that is o Repeated out over a period of time o An abuse of power o Directed at a person known to be especially vulnerable. You can satisfy the requirements if the abuse is prolong or continuous The does not have to be in a position of power The inequity of the position of the factors in to the overall determination Although the rule does not require physical harm the harm must be severe, normal dayto-day annoyances do not count

Taylor v. Metzger Trial ct dismissed, appellate affirmed, reversed remanded. *Facts- Plaintiff, an African American female officer in the sheriffs office, was called a jungle bunny by the sheriff her superior officer and received harassing phone calls. *Rule of Law- The conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. *Holding- A racial slur uttered by a sheriff directed against a subordinate officer is not, as a matter of law, a mere insult or triviality. A jury should determine whether the defendants remark was outrageous or merely an insult. Racial slurs have an even greater potential for harm than other insults. However, a single racial slur spoken by a stranger on the street does not amount to extreme and outrageous conduct. However, a jury could determine that the power dynamics of the workplace contribute to the extremity and the outrageousness of the defendants conduct. Note: - A racial epithet is not normally considered enough - A person whom should no better and should act better will normally be held responsible

Homer v. Long Present *Facts- Defendant, a therapist, seduced the plaintiffs wife into sleeping with him. The marriage ended in divorce. *Rule of Law- Where conduct is directed at a third person, the actor is subject to liability, if the plaintiff was present at the time. Plaintiff must show: (1) conduct is intentional or reckless; (2) conduct is extreme and outrageous; (3) a causal connection between the wrongful conduct and the emotional distress; (4) the emotional distress is severe. *Holding- No liability. The plaintiff failed to satisfy the presence requirement. Although substantial certainty, doesnt qualify for transferred intent Note: - Engaging in relationships with a married spouse is reckless and could suffice the intent requirement

Bradney 62 A therapist who messes around with a married person, is considered extreme and outrageous conduct to only to the person in which the therapist is messing around with The outrages conduct is not transferred from one spouse to the other The only way that a spouse could recover is if he/she was present at the time of the extreme and outrages conduct Presence rule: o You must be present to be able to claim extreme and outrages conduct occurred

Subchapter B Negligent infliction of distress or emotional harm 2. Fright or Shock from Risks of Physical Harm a. Development of Liability for Fright Mitchell v. Rochester Ry. Co. Impact Rule *Facts- Plaintiff was in the street about to board a railway car; the defendant drove a team of horses at the plaintiff and stopped short of striking the plaintiff. Plaintiff claimed that she suffered shock and a miscarriage as a result. *Rule of Law- There can be no recovery for fright or the consequences of fright alone. *Holding- No liability. Without a physical injury, the negligence of the defendant would not be a proximate cause. Note: - Courts are moving away from the Mitchell rule and allow a stand alone negligent infliction of emotional distress claim. - Most state: dont need physical contact but you need a physical ailment like and ulcer.

*Physical Manifestation Rule- plaintiff cannot recover unless she produces evidence of physical harm resulting from the shock or some kind of objective physical manifestation of the shock or fright occurring after the events in question. In a jurisdiction requires physical manifestation o Nightmares every night could satisfy this requirement o Simply fainting or getting a rash is as well sufficient it does not have to be great physical peril

2. Emotional Harm or Loss Resulting from Injury to Another (a) The General Mental Distress Claim Grube v. Union Pacific R.R. Zone of Danger Test *Facts- Plaintiff was employed by the defendant railroad. Plaintiff was working as an engineer when the train collided with an automobile. The one of the occupants of the automobile died. The plaintiff sustained no physical injury and testified that he had no thoughts of fear of personal injury at the time of the accident. At the scene however the exhibited physical manifestations

63 of his emotional distress because he feared for the victim of the collision. *Rule of Law- Plaintiff must prove that: (1) he was within the zone of danger; (2) he suffered imminent apprehension of physical harm; (3) the harm causes or contributes to the emotional injury. *Holding- No liability. There was no evidence that this action caused the plaintiff any physical or emotional injuries. Fear for ones safety is an essential element of the zone of danger test and must be expressed at or near the time of the danger in order for the plaintiff to prevail in the action. Note: - This case established the zone of danger, you feared for your life or danger *Dillon v. Legg- Foreseeability test factors considered where you are not in the zone of danger however: (1) plaintiff was located near the scene of the accident; (2) shock resulted from a direct emotional impact upon the plaintiff from the sensory and contemporaneous observance of the accident (3) plaintiff and the victim were closely related. Thing v. La Chusa Thing rule *Facts- Plaintiff rushed to an accident scene upon hearing that her son had been struck by automobile. She found her bloody and unconscious child lying in the road. She believed him to be dead. She neither saw nor heard the accident. *Rule of Law- A plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if but only if, the plaintiff: (1) is closely related to the injured victim; (2) is present at the scene; (3) suffers serious emotional distress- a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances. *Holding- No liability. Plaintiff was not present at the scene when the accident occurred. Note: - This case incorporated the rules established the Dillon rule, and made it a requirement in order to recover Burgess v. Superior Court *Facts- Plaintiff received prenatal care from the defendant. The defendant diagnosed a prolapsed cord. The plaintiff was aware of this diagnosis. When she was sedated for a cesarean she knew that something was wrong with the child. The child suffered severe brain damage. *Rule of Law- During delivery, a physician owes a duty to both the mother and child. *Holding- Liability. Thing rule failed to apply, because the plaintiff was a direct victim. Liability is limited by the relationship established between the parties themselves. Note: - Thing does not apply in this case because there is a pre-existing relationship in this case - The Dr. already owed a duty to the mother and child based on this relationship

Bradney 64 (b) The Loss of Consortium Claim *Consortium includes not only loss of support or services, it also embraces such elements of love, companionship, affection, society, sexual relations, solace and more. Note: - In the old time if the servant was injured then the master lost the use of the servant and therefore suffered a recover loss Boucher v. Dixie Medical Center *Facts- Plaintiffs child, age eighteen, was admitted into the defendants hospital after suffering a hand injury. After surgery, the son fell into a coma he awoke ten days later severely brain damaged and quadriplegic. Parents sue for loss of filial consortium and infliction of emotional distress on their part. *Rule of Law- A parent cannot recover under a loss of consortium claim when the loss is based on the parents relationship with an adult child. *Holding- No liability. The plaintiff cannot recover for negligent infliction of emotional distress, because they were not in the zone of danger. Loss of consortium claims are based on the recognition of a legally protected interest in personal relationships. Note: - Normally the relationship between a spouse versus a child the cts normally sees the relationship between spouses as more significant than that of a relationship between parents and adult children *Contributory Negligence- will bar or reduce the consortium claim just as it will bar or reduce the injured spouses claim. C. Duties of Care to Protect Emotional Well-Being Independent of Physical Risks Washington v. John T. Rhines Co. Decomposing relative *Facts- Plaintiff contracted with the defendant funeral home. The defendant was required to transport the plaintiffs husband and casket to a funeral home in El Paso, Texas. Upon arrival, the body was determined to have been negligently embalmed. The body had begun to decompose and the plaintiff was required to cancel an open casket memorial service. *Rule of Law: *Holding- No liability. The plaintiff was not within the zone of danger. Note: - Although the cannot recover by this tort it may be possible to recover under contract law - A dead body in most cts are considered property therefore the zone of danger does not apply - An animal or pet is considered the same as property therefore no recovery under

65 emotional distress Heiner v. Moretuzzo AIDS testing *Facts- Defendant tested plaintiff for aids on two occasions and indicated that the plaintiff tested positive. However, the plaintiff later discovered that diagnosis was wrong. Plaintiff sued for negligent infliction of emotional distress. *Rule of Law- A person is not liable for the negligent infliction of emotional distress where the distress is caused by the plaintiffs fear of a nonexistent physical peril. *Holding- No liability. The claimed negligent diagnosis never placed the plaintiff or any other person in real physical peril. Note: - If a person is misdiagnosed, and later engages in unsafe sexual practices with another who is actually positive, could there be recovery? One would like to believe that the court would allow it. Boyles v. Kerr Sex tape/parasitic tort *Facts- Plaintiff, age nineteen, was secretly videotaped by the defendant while engaged in sexual intercourse. Later, the defendant distributed the tape amongst his friends and throughout the college. *Rule of Law- There is no general duty to avoid negligent infliction of distress, absent a risk of physical harm. *Holding- Intentional or negligent infliction of emotional distress is not recognized as an independent cause of action. It is recognized as a parasitic tort. Note: - The statute of limitations on any other tort that the could have used had elapsed, - Negligent infliction of emotional distress is a parasitic tort that requires another tort to attach it to in order to recover

Camper v. Minor *Facts- Plaintiff, a cement truck driver, was involved in an accident with the defendant, age sixteen. Accident was the result of the defendants negligence. Plaintiff suffered from posttraumatic stress syndrome due to viewing the defendants dead body. *Rule of Law- Plaintiff must present material evidence as to each of the five elements of general negligence in order to avoid summary judgment. The claimed injury or impairment must be supported by expert medical or scientific proof. *Holding- The law ought to provide a recovery for serious or severe emotional injury. A serious or severe emotional injury occurs when a reasonable person, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case. The claimed injury or impairment must be supported by expert medical or scientific proof.

Bradney 66 *Malicious prosecution- defendant is liable for causing the criminal prosecution of another when: (1) the defendant instigated the prosecution; (2) the prosecution was initiated or pursued without probable cause; (3) the prosecution was terminated favorably to the plaintiff. D. Toxic Exposures: Fear of Future Harm: Limits on Recovery? Potter v. Firestone Tire and Rubber Co. More likely than not *Facts- Defendant improperly disposed of hazardous waste products. These chemicals where known human carcinogens and leaked in to the plaintiffs water supply. Plaintiff sued the defendant although he had no current physical injuries. *Rule of Law- In the absence of a present physical injury or illness, damages or fear of cancer may be recovered only if the pleads and proves: (1) the plaintiff is exposed to a toxic substance which threatens cancer; and (2) the s fear stems from a knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that the plaintiff will develop cancer in the future due to exposure exception: a plaintiff is not required to meet the more likely than not threshold when the plaintiff proves that the defendants conduct in causing exposure amounts to oppression, fraud, or malice. In addition, the threshold need not be met in an intentional infliction claim. *Holding- Liability established. The defendants conduct falls under the oppression, fraud, or malice exception. A carcinogenic or other toxin ingestion or exposure, without more, does not provide a basis for fearing future physical injury or illness which the law is prepared to recognize as reasonable. Note: - The court stated that there must be a greater then 50% chance before you could recover o They held 3 public policy reasons for this determination In the absence of meaningful restrictions might compromise the availability and affordability of liable Norfolk Western Railway v. Ayers **Facts: plaintiffs bring a FELA action against the railroad, their employer for negligent exposure to asbestos and that they had contracted asbestosis as a result. They claimed mental anguish based on their fear of developing cancer. **Holding: A plaintiff suffering bodily harm need not allege physical manifestations of mental anguish. A negligent actor is answerable in damages for emotional disturbance resulting from bodily harm or from the conduct that caused it. The physically harmed plaintiff need not prove physical symptoms of his emotional distress, only that the emotional distress is both genuine and seirous. Notes 1. Plaintiffs in almost all states who seek substantial damages for emotional harm for fear of contracting some disease have an incentive to pled their cases as involving actual physical injury, with the emotional distress as a parasitic element of damages. 2.

67 XVIII. Prenatal Harms A. Prenatal and Preconception Injury *Liability can be imposed for death of a fetus that was never viable if it was born alive, that is, had an instant of life outside the womb even though it was incapable of sustaining life apart from the mother. Likewise, action is allowable when a fetus is stillborn, at least when the fetus was viable at the time of injury. Viable Not Viable

Born Alive Not Born Alive

Remy v. McDonald. **Facts: plaintiff seeks to recover damages based on the negligence of her mother, the defendant. **Holding: There are policy issues if we allowed a fetus to sue mother b/c we would be invading the personal choice of pregnant women.` Renslow v. Mennonite Hospital Genetic damage *Facts- Plaintiffs mother was exposed to Rh-positive blood at the age of thirteen. This was incompatible with her blood. Years later, when she became pregnant she found out that this exposure sensitized her blood. As a result, the plaintiff was born jaundiced and suffering from hyperbilirubinemia (the presence of an excessive amount of bilirubin [a reddish yellowish pigment occurring in bile, blood, urine, and gallstones] in the blood). Plaintiff sued defendant for damages. *Rule of Law- A duty of care may be owed to one who may be foreseeably harmed, even if the person is unknown or is remote in time or place. *Holding- Liability established. The judiciary will effectively exercise its traditional role of drawing rational distinctions . . . between harms, which are compensable, and those, which are not. Like Andrews dissent in Palsgraf. All those who are affected by the negligence are owed a duty of care. Note: - This establishes that while it is not foreseeable that every women will have children however, the effect is reasonably foreseeable Albala v. City of New York *Facts- Plaintiffs mother underwent an abortion at the defendants hospital four years before the plaintiffs birth. During the abortion, the mothers uterus was perforated. As a result, the plaintiff suffered severe brain damage. *Rule of Law Foreseeability alone does not establish a duty to the plaintiff *Holding- No liability. Recognition of a cause of action under the circumstances of this case would have the undesirable impact of encouraging the practice of defensive medicine.

Bradney 68 Foreseeability alone does not establish a duty to the plaintiff. This would place physicians in a direct conflict between their moral duty to patients and the proposed legal duty to those hypothetical future generations outside the immediate zone of danger. Note: - A perforated uterus is a foreseeable risk in this procedure B. Wrongful Life, Birth, or Conception Note: - Three different claims in Greco claims o Wrongful Birth: when brought by a parent, parents state that our child should have never been born. o Wrongful Life: when child brings suit, basically stating that I should have never been born (The courts generally do not recognize this kind of claim the value of life is to great, the courts that do recognize the amount of damages allowed are only economic damages) o Wrongful Conception: birth of unwanted healthy baby o Wrongful Fertilization: There is no tort by this name, therefore, the courts do not allow a claim here. *The courts generally do not recognize wrongful life claims. In addition, most courts have denied recovery, in wrongful birth cases, for the cost of rearing a healthy but unwanted child. Chaffee v. Seslar. Pg. 550 **Facts: Dr. performed a procedure to prevent conception of children. Procedure was unsuccessful and plaintiff bore a healthy child. **Holding: A parents injury is not the birth of her child, but the invasion of her interest in the financial security of her family and the desire to limit her family size and the deprivation of her right to limit procreation. Damages are to be reduced only to the extent of the benefit received by having a healthy baby. Parents should not be faced with abortion or adoption for the negligent Dr. This would inflict more emotional distress. Courts allow recover for the mothers pain in pregnancy and medical costs of pregnancy, abortion, or birth as well as any lost wages during this period.

XIX. Death Survival Act- Provide that the cause of action survives the death of the or the or both. Brought by the personal representative for the value of life. Had the plaintiff survived, he would have brought suit. Non pecuniary claims. The decedents own claim is being pursued, not a claim for beneficiaries. Suit on behalf of the decedents estate. Includes medical expenses; wages lost before death; pain and suffering. .

69 Wrongful Death Statute- Lord Campbells Act Best viewed as an independent action on behalf of beneficiaries for pecuniary loss and loss of support. These kinds of claims follow the same substantive law of negligence, cause in fact, and proximate cause we see in other tort actions. These offer the salary of decedent-living expenses. Weigel v. Lee. Pg. 556 **Facts: Rogers sued the hospital after being admitted to regular room in hospital when she was critically ill. Her adult children sue for wrongful death, emotional distress, and loss of consortium. ***The wrongful death act does not exclude the decedents children from parties entitled to damages under the statutes and because the requested damages are allowable within the statute, the Weigels claim should not have been dismissed. Weigles could have sought damages on Rogers own behalf as well. . *Holding- The fundamental purpose of a wrongful death action is to compensate survivors for the pecuniary losses they suffer because of the tortious conduct of others. A claim for punitive damages may lie only where there is a valid underlying cause of action. Chavez v. Carpenter. **Facts: Altie died. His daughter Jazmin died 2 months later. Altie gave his parents money. His parents brought suit for his death. Jazmins mother brought suit on behalf of Jazmins estate. **Holding: parents cannot recover as heirs b/c the decendents child survived him at the time of death. Parents can recover only if they were dependents of Altie. Notes: Most courts hold that stepchildren do not qualify as heirs. Neither do unmarrieds.

Note: - What are the different types of claims here? - Two causes of action o Wrongful death: action on behalf of beneficiaries for pecuniary loss and loss of support o Survivors act: Provide that the cause of action survives the death of the or the or both. Note common law rule stated that the cause of action died with the or the , this was changed by this act. - Every state has a survivors act and the elements vary with each state, the survivors act and wrongful death dont overlap each other they both stand alone

Note: - If there is not a legally defined relationship cts would have to try and decide if relationship A is worthy of recovery or is B a better relationship. The cts have decided to

Bradney 70 draw a line somewhere? Wrongful death statutes are primarily constructed for next of kin, this next of kin is meant to be biological (or adopted) and not stepchildren or parents.

*A Texas court concluded that a transsexual could not sue because his/her marriage to the decedent male was invalid. *A wrongful death action, as distinct from the survival action, does not pass through the estate. The recovery does not pass through the estate; it is not subject to the debts of the decedent, but goes directly to the survivors designated by the state. Note: Defenses *Under most death statutes, the action may be brought for wrongful death only if the decedent could have sued had he lived. *The wrongful death action, a new and independent action, for the protection of survivors, may be permitted in spite of the contributory negligence of the decedent. If there is but one beneficiary, and he was guilty of contributory negligence, the common law rule barred his recovery for wrongful death. *Some courts hold that the statute of limitations begins running at the time of death and that the death claim is not barred even if the decedent would be barred had he lived. XX. Vicarious Liability A. Respondeat Superior and Scope of Employment *A limited form of strict liability in which one person or entity is held legally responsible for the fault-based torts of another. *The goals of vicarious liability: (1) The prevention of future injuries (2) The assurance of compensation to victims (3) The equitable spreading of losses caused by an enterprise Note: - Two reasons why an employer would be held liable o Spread losses caused by enterprises o Employment / fair, employer is benefiting from employers action o Assurance of compensation o Prevent future accident o Control over future loss with training, safety procedures, etc. - Serving gratuitously it does not make a difference since the organization is benefiting from the actors actions Riviello v. Waldron Bar and grill *Facts- Defendant employed as a cook at a bar and grill was talking to a customer while flipping an open knife. The accidentally struck the customer in the eye. *Rule of Law- The test has come to be whether the act was done while the servant was doing his

71 masters work, no matter how irregularly, or with what disregard of instructions. *Holding- Owner is liable. The employer could exercise close control over his employees during the period of their services. Employee was acting in furtherance of the employers interest. Modern economic devices permit most employers to spread the impact of such costs. Fruit v. Schreiner Convention *Facts- Defendant, a life insurance salesman, attended a convention which Involved social and business events. Defendant drove to a bar to find some colleagues, skidded, and struck the plaintiffs car. The plaintiffs legs were crushed. *Rule of Law- The doctrine of respondeat superior has been correctly stated as the desire to include in the costs of operation inevitable losses to third persons incident to carrying on an enterprise, and thus distribute the burden among those benefited by the enterprise. *Holding- Employer liable. The employee was within the scope of his employment. The extra cost of doing business may be reflected in the price of the product. Drinking and networking are part of the natural practice of salesmen, so within the scope of employment. Businesses are in a better position to pay. Enterprise Liability: 1. Consumers are influenced by prices. Holding an enterprise strictly liable for harms it causes internalizes the costs, which in turn reduces the costs of accidents. Lower costs: more supervision of employees and lower insurance costs so lower prices. When one employer loans one of its employees to another employer, the traditional approach is that the first employer is vicariously liable, while the borrowing employer is not. Look at the facts to see who has more control and supervision over person causing the injury. Hinman v. Westinghouse Electric Co. Travel expenses *Facts- Plaintiff, a policeman, was struck by the defendants employee while inspecting a road hazard in the freeway. Employee did not check in at an office; he drove directly from his home to the job cites. His employment contract provided for carfare and travel expenses. Employer did not control the method or route of transportation. *Rule of Law- Where an employer and employee have made travel time part of the working day by their contract, the employer should be treated as such during the travel time, and it follows that so long as the employee is using the time for the designated purpose, to return home, the doctrine of respondeat superior is applicable. *Holding- Employer liable. An exception is made to the going and coming rule where the trip involves an incidental benefit to the employer, not common to commute trips by ordinary members of the work force. Employers reaching out to larger market increases the risk of injury in transportation; the employer should be required to pay for the risks inherent in his decision. *Going and Coming Rule An employee going to and from work is ordinarily considered outside the scope of employment so that the employer is not liable for his torts.

Bradney 72 *An employee is outside the scope of employment when frolicking on his own. However, some courts will hold an employer liable if the departure constitutes a mere detour. Faul v. Jelco, Inc. *Facts- a construction worker was coming home from job site with tools he required to have on the job. was driving back to show-up location when he crossed center line and struck s vehicle. was not paid for his travel (no compensation for his out of pocket travel expenses) *Rule of Law- As a general rule an employee is not within the scope of employment while commuting to and from work *Holding- Distance alone does not constitute a special hazard. Note: These acitivities fall within the scope of employment, - The dual purpose exception o Applies when merely commuting, the employee performs a concurrent service for his employer that would have necessitated a trip by another employee if the commuting employee had not been able to perform it while commuting - Special hazards exception o When travel to and from work involves special hazards

Ahlstrom v. Salt Lake City Corp. pg. 572 **Facts: plaintiff was injured in a collision with Ross, who was driving home in her cop car. Officers allowed to use marked cars coming and going if they paid a small fee and agreed to be on call on such occasions. **Holding: no liability. It is unfair to impse unlimited liability on an employer for the conduct of its employees over which it has no control and from which it derives no benefit. We weight the benefit and control against the personal nature of the trip. Although the city received some benefit from Ross trip home from work on the day of her accident, the defendant was not on city business. No dual purpose rule.

Exceptions to the Coming and Going Rule: Respondeat superior has been held to apply to a situation involving commuting when: 1. The employee is engaged in a special errand or mission on the employes behalf. 2. The employer requires the employee to drive his or her personal vehicle to wrok so that the vehicle may be used for work related tasks. 3. The employee is on call. 4. No vicarious liability if employee is on a personal mission (frolic) when theyre supposed to be on the job. a. A frolic ends when an employee is once again performing the assigned work and taking acitons incidental to it, or when an employee has taken action consistent with once again resuming work. b. Employee must have formulated the intent to act in furtherance of the employers

73 business AND the intent must be coupled with a reasonable connection in time and space with the work in which he should be engaged. c. If the employee is on a detour: employer is held liable still. Edgewater Motels, Inc. v. Gatzke Scope of Employment *Facts- Defendant, a district manager for Walgreens, negligently burned down the plaintiffs motel. Employee was viewed as a 24 hour-a-day man. Employee consumed several drinks at a bar and then retired to his motel room to complete his expense account/smoke a cigarette. *Rule of Law- It must be shown that the employees conduct was in furtherance of the interests of his employer. An employer can be held vicariously liable for his employees negligent smoking of a cigarette if he was otherwise acting in the scope of his employment at the time of the negligent act. *Holding- Employer liable. Completion of the expense account was for the employers benefit. *An employer may be held accountable for an employees actions in doing something necessary to the comfort, convenience, health, and welfare of the employee while at work thout strictly personal and not acts of service, as long as the employee is either combining his own business with that of the employer or attending to both at substantially the same time. Lisa M. v. Henry Mayo Newhall Memorial Hospital *Facts- Plaintiff, age 19, pregnant and injured in a fall, sought treatment in an emergency room. Defendants employee placed an ultrasonic probe and his fingers in the plaintiffs vagina. *Rule of Law- If an employee inflicts an injury out of personal malice, not engendered by the employment, the employer is not liable. Tortious conduct must be a foreseeable consequence of the activity. Vicarious liability will exist when an intentional tort occurs that arises out of the conduct of the enterprise and if its forseeable. *Holding- No liability. A sexual tort will not be considered engendered by the employment unless its motivating emotions were fairly attributable to the work related events or conditions. If the assault was not motivated or triggered off by anything in the employment activity but was the result of only propinquity and lust, there should be no liability. Employees actions are not a risk predictably created by or fairly attributed to the nature of the technicians employment. Note: - Acts were not forbidden acts - Unless acts are foreseeable the employer will not be liable - If the employee has a history of a specific type of conduct then this conduct is foreseeable, this concept would be negligent entrustment ***3 tests for Vicarious Liability 1. Restatement: vl for a desire to serve masters interest 2. CA: were motivating emotions generated by the work? Was it forseeable? 3. MN (fahrendorff): well known hazard? Its a jury question.

Bradney 74 Rodebush v. Oklahoma Nursing Homes, Ltd. *Facts- A nurses aid struck an elderly patient suffering from Alzheimers disease. Aid was intoxicated and had a criminal record. *Rule of Law- If the act is one which is fairly and naturally incident to the business, and is done while the servant was engaged upon the masters business and arises from some impulse which naturally grew out of or was incident to the attempt to perform the masters business, the employer is liable. *Holding- Employer is vicariously liable.

Fahrendorff v. North Homes, Inc. *Facts- Plaintiff was placed in a temporary group home. Defendants employee, a counselor, made sexual advances toward the plaintiff consisting of touching and inappropriate language. *Rule of Law- Vicarious liability is a jury question. *Holding- Evidence indicated that inappropriate sexual contact or abuse of power in these situations, although infrequent, is a well known hazard in this kind of enterprise. *Owners and licensees of nursing homes are liable to a resident for any intentional or negligent act or omission of their agents or employees which injures the resident. Boy scout organization held liable for the sexual torts of boys scout leader b/c building of relationships was part of the program. B. Employers Who Are Not Masters Note: - Borrowed servant rule o A servant who is loaned by one master to another is regarded as acting for the borrowing master, and the loaning master is not held responsible for the servants negligent act. o A servant may act for two simultaneously o Only one master is held vicariously liable for the servants tort o Not used now days most contracts include an indemnify clause District of Columbia v. Hampton *Facts- Defendant removed the decedent, age two, from her home and placed her in the care of Mrs. Stevenson, a foster parent. Mrs. Stevenson left the decedent with her two sons. One son beat the decedent to death. *Rule of Law: An employer is not vicariously liable for the torts of an independent contractor.An employer is vicariously liable for the torts of its agents in a principal/agent relationship. Whether a master-servant relationship exists in a give situation depends on the particular facts of each case. Factors considered: (1) selection and engagement of the servant (2) payment of wages (3) power to discharge

75 (4) whether the work is part of the regular business of the employer (5) most importantly, power to control the servants conduct *Holding- No liability. Without actual evidence indicating that the defendant actually controlled the manner in which Mrs. Stevenson cared for the decedent, no reasonable juror could have found that Mrs. Stevenson was the defendants agent. Pusey v. Bator. Pg. 586 **Facts: Bator assigned as a security guard for YSP who contracted him out to work at Greif. Bator not licensed for a gun; he shot and killed a thief. Pusey, theifs mom, sues Bator, YSP, and Greif. **Holding:when an employer hires an independent contractor to provide armed security guard to protect property, the inherelty dangerous work exception is triggered such that if someone is injured by the weapon as a result of guards negligence, the employer is vicariously liable even though the guard responsible is an employee of the independent contractor. An employer is generally not liable for the negligent acts of independent contractor, but there are excpetions. Non delegable duty doctrine: duties imposed on the employer that arise out of the work itself b/c its performance creates dangers to others, inherently dangerous work. Employer can delegate the work but not the duty. When Grief hired YSP, it was forseeable that armed guards might be injured yb the inappropriate use of a a weapon. OBanner v. McDonalds Corp. Apparent agency theory *Facts- Plaintiff slipped and fell in a McDonalds restaurant bathroom. Plaintiff initiated suit against McDonalds and certain unknown owners. *Rule of Law- A principle can be held vicariously liable in tort for injury caused by the negligent acts of his apparent agent if the injury would not have occurred but for the injured partys justifiable reliance on the apparent agency. *Holding- No liability. The plaintiff failed to show that he actually relied on the apparent agency in going to the restaurant where he was allegedly injured. Note: - In order to make a claim of this nature you have to show that you relied on the advertisement of the company in making the determination to enter that particular store Boroughs v. Joiner Crop dusting *Facts- Defendant landowner employed a person to apply a dangerous substance to his crops. The chemical contaminated the plaintiffs pond, killing his fish and depreciating the value of his land. Plaintiff sued the defendant for damage to property. *Rule of Law- A person is responsible for the manner of the performance of his nondelegable duties, though done by an independent contractor. An employer cannot delegate his duty of care to another person, but must guarantee that care is provided. *Holding- Defendant is subject to liability for physical harm caused. Aerial application of insecticides falls into the intrinsically or inherently dangerous category and the landowner cannot

Bradney 76 insulate himself from liability simply because he has caused the application of the product to be made on his land by an independent contractor. Liability is not absolute but is imposed on the landowner for his failure to exercise due care. Note: - This scenario is similar to the Stinnett case (when the painter fell off of the roof . . . had extra knowledge to minimize the risk) - There is a nondelegable duty rule to inherently dangerous activities - Nondelegable duty applies to cases of poison, explosives, fireworks, strong acids, where the instrumentality is dangerous by natur Puckerein v. ATI Transport **Facts: puckereins were killed when their car collided with an uninsured, unregistered tractor who was contracting work for another company. **Holding: An employer may be charged with negligence in hiring an independent contractor where it is demonstrated that he should have known or might by the exercise of reasonable care that the contractor was not competent. **An employer is liable if it negligently hires, supervises, or retains a dangerous or incompetent employee who harms the plaintiff as long as the employers negligence was the cause of the harm. (like not doing a background check so you end up hiring a babysitter whose a sex offender)

C. Other Forms of Vicarious Liability *partnership: both partners are personally liable for the other partners torts. Each partner is a general agent of the other partner. *Joint enterprise- Courts have imposed liability upon all members of a joint enterprise when persons outside the enterprise are injured. This is said to exist where there is: (1) an agreement, express or implied (2) common purpose (3) community of interest; and (4) equal right of control. XXI. The Development of Common Law Strict Liability A. Strict Liability for Trespassory Torts And the Advent of Fault Theory Note: - Strict liability found its self under o Trespass included both force and direct injury o Case the force having dissipated and the injury being indirect Weaver v. Ward

77 *Facts: plaintiff injured and brought action of trespass and assault and battery against Ward b/c defendant was involved ina military skirmish with another captain. *Rule of Law: no man shall be excused of a trespass except it may be judged utterly without his fault Brown v. Kendall Fault based liability *Facts- Defendant was beating two fighting dogs with a stick attempting to separate them. In the process, he struck the plaintiff in the eye. died pending the suit, the executor was summoned in his place. *Rule of Law- There has to bean element of fault involved. If the act was unintentional on the part of the defendant in doing a lawful act and if he was exercising due care, plaintiff cannot recover. Burden or proof is on the plaintiff to prove that defendant should be chargeable with some act. *Holding- Ordinary care the kind and degree of care, which prudent and cautious men would use, such is required by the exigency of the case, and such as is necessary to guard against probable danger. No liability. B. Strict Liability After Brown v. Kendall 1. Trespassing Animals Rest. 2d 504. Liability for Trespass by Livestock (1) A possessor of livestock intruding upon the land of another is subject to liability for the intrusion even if he exercised the utmost care to prevent them from intruding. (2) The possessor is liable for any harm which might be reasonaly expected to result from the intrusion of livestock. (3) Liability does not extend to harm (a) not reasonably to be expected from the intrusion (b) done by animals straying onto abutting land while driven from the highway (c) brought about by the unexpected operation of a force of nature, action of another animal or intentional, reckless or negligent conduct by a third person. 2. Nuisance Rest. 2d 821B, 821C, 821D, 821F, 822, 826, 840. Bamford v. Turnley *Facts- Plaintiff initiated suit against the defendant neighbor, because the defendants brick kilns were creating a foul odor causing the plaintiff illness. *Rule of Law The invasion is a nuisance if the profts are more than the loss to the public. *Holding- Unless the defendants profits are enough to compensate the plaintiffs loss, the court denies that it is for the public benefit he should do what he has done; if they are, he ought to compensate. Even if activity performedon ones land is necessary or for the public benefit, one cannot infringe on the rigst of another individual. If he does, he must compensate to the other for damages.

Bradney 78 Note: - There must be a substantial invasion of property for there to be recovery Risk Utility Formula: the invasion is a nuisance if the gravity of harm to the plaintiff outweighs the utility of the defendants conduct. The invasion must also be unreasonable If you come to the nuisance, no cause of action against the nuisance.

Rylands v. Fletcher Non-natural *Facts- The plaintiff, a mine owner, initiated suit against the defendant, mill owner, for damage to the plaintiffs property caused by flooding. The defendant constructed a pond upon his own land. However, the pond was constructed above an old mine shaft. The defendants pond collapsed into the mine below and the water flowed into the plaintiffs mine. *Rule of Law- If a person brings or accumulates on his land anything which, if it should escape, may cause damage to his neighbor he does so at his peril. *HoldingNote: - If the non-natural use of land causes damage the . . . will result in strict liability - Justice Blackburn o His rule of law is that the person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the consequence of its escape - Lord Cairns o Non Natural use of his land can impose strict liability in a case where you put something on your land that was not there before. - If you have knowledge of an animals vicious propensity and the animal bites a person the owner in most cts will be held strictly liable Thomalen v. Marriott Corp. *Facts- The defendant hotel hosted a murder mystery entertainment conference. One member of the group attempted to perform a fire eating act. In the process, the person became engulfed in flames. A second member attempted to assist the flame eater and knocked over a can of lighter fluid. The can ignited and the plaintiff, a hotel guest, was burned. *Holding- Not liable for strict liability. There was no escape of a dangerous instrumentality from the defendants property. However, the plaintiff may pursue a claim based on regular negligence. Note: - If the dangerous instrumentality is not under the land owners control then strict liability does not apply - Strict liability comes from something inherently dangerous on the land that the owner of

79 the property has control over. 3. Slouching Toward the Abnormal Danger Conception Sullivan v. Dunham *Facts- The decedent was on a public highway. The defendant was blasting to get rid of stumps and the stump flew through the air, and struck the decedent causing death. *Rule of Law- Where blasting throws rocks or trees onto the lands of another, there is liability for trespass. *Holding- Defendant liable. If the injury had been indirect, from concussion and shaking of the earth, there would not have been a trespass. Exner v. Sherman Power Construction Co. *Facts- The defendant was blasting for a hydroelectric development. As a result of concussion and shaking of the earth, the plaintiff was thrown from her bed and sustained damage to her property. *Rule of Law- There is an absolute liability without regard to fault in blasting cases. When the defendant, though without fault, has engaged in the perilous activity of storing large quantities of dangerous explosive for use in his business, there is no justification for relieving it of liability, and that the owner of the business, rather than a third person who has no relation to the explosion, other than that of injury, should bear the loss. *Holding- Defendant liable. If damage is inflicted there is liability in the absence of excuse. Note: - This ct states that it does not make a difference how the damage occurred as long as it is a result of the activities. C. Strict Liability Today Rest. 2d 519. General Principle (1) One who carrier on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. (2) Strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous. Rest. 2d 520. Abnormally Dangerous Activities In determining whether an activity is abnormally dangerous, the following factors are to be considered: (a) existence of a high degree of risk (b) likelihood that the resulting harm will be great (c) inability to eliminate the risk by exercise of reasonable care (d) extent to which the activity is not a matter of common usage (e) inappropriateness of the activity to the place where conducted (f) extent to which the value to the community is outweighed by its dangerous attributes.

Bradney 80 Cts. Refuse to apply SL to utilities. Very few courts uphold Rylands today, except in the case of noxious substances. Toxic substances, blasting= sl. Congress provide for tort liability limiting the total liability of private industry to 560 million. Courts impose strict liability for abnormally dangerous activity in pest control and fumigation cases. Defendant is liable for only forseeable harms of the dangerous activity. Difference b/w strict liability and negligence=dont have to prove fault in strict liability. Rest. Says that the plaintiffs assumed risk and also any contributory negligence is a defense. Juries should assign liability to each party regardless of the legal theory of liability. Juries should assigne percentages of responsibility even when one party is strictly liable and the other negligegent. *Refer to Rest. 2d 520A-524. XXII. Tort Liability For Defective Products A. Excluding Stand-Alone Econoic Harm Moorman Manufacturing Co. v. National Tank Co. *Facts- The plaintiff purchased a steel grain storage tank from the defendant. Inevitably, a crack developed in one of the steel plates of the tank. Plaintiff sued on the theory of strict tort liability, misrepresentation, negligent design and express warranty. *Rule of Law- A manufacturer is strictly liable in tort for a product that has a defect that causes injury to the person. Where only the defective product is damaged, economic loss caused by qualitative defects falling under the ambit of a purchasers disappointed expectations cannot be recovered under a strict liability theory. *Holding- No liability. When the defect is of a qualitative nature and the harm relates to the consumers expectation that a product is of a particular quality so that it s fit for ordinary use, contract, rather than tort, law provides the appropriate set of rules for recovery. However, when a product is sold in a defective condition that is unreasonably dangerous to the user or consumer or to his property, strict liability in tort is applicable to injuries occurring to plaintiffs property when accompanied by personal injury to the plaintiff. B. Manufacturing Defects Lee v. Crookman Coca-Cola Bottling Co. *Facts- The a waitress at a steak house was injured when a Coca-Cola bottle exploded in her hand. Evidence showed that it had not been struck on anything nor subjected to temperature extremes or mishandling *Rule of Law- the is not required to prove specifically what defect caused the incident, but may rely upon circumstantial evidence from which it can reasonably be inferred that it is more probable than not that the product was defective when it left defendants control *Holding- TO PREVAIL ON MANUFACTURING DEFECT PLAINTIFF MUST PROVE:

81 THAT THE DEFECT WAS THE PROXIMATE CAUSE OF THE INJURY, THE DEFECT EXISTED WHEN IT LEFT DEFENDANTS CONTROL, AND THE PRODUCT WAS DEFECTIVE OR UNREASONABLY DANGEROUS. Note: - With a products liability claim you will most often incorporate a res ipsa claim as well - If a cannot provide evidence to exclude other possible causes then the has a valid defense that something other than manufacture defect caused the failure of the device Mexicali Rose v. Superior Court Foreign-Natural Doctrine *Facts- the ordered a chicken enchilada and while eating it he swallowed a chicken bone contained in the enchilada, sustaining a throat injury. *Rule of Law- where the injury that occurred is natural versus unnatural there is no recovery *Holding- since a chicken naturally has bones it is not a manufacturer defect Jackson v. Nestle-Beich, Inc. Broken tooth *Facts- Plaintiff broke a tooth on a hard pecan shell embedded in a pecan-caramel candy that was manufactured by the defendant. *Rule of Law- The consumers reasonable expectation is the test of defectiveness. *Holding- The foreign-natural doctrine is unsound and should be abandoned. Note: - This ct held that it is relative to the reasonable person standard. If the reasonable person knows of the risk then no recovery C. Design Defects Leichtamer v. American Motors Corp. *Facts- Plaintiff was injured when the Jeep they were riding in flipped over. The driver of the vehicle was negotiating hills and terraces when the jeep flipped back-to-front. The jeeps rollbar displaced toward the passengers and severely injured the plaintiff. *Rule of Law- A product may be found defective in design if the plaintiff demonstrates that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. *Holding- Defendant liable. The vehicle was manufactured exactly in the manner it was designed to be manufactured. In addition, the vehicles condition was not altered. While a manufacturer is under no obligation to design a crash proof vehicle, and instruction may be given on the issue of strict liability in tort if the plaintiff adduces sufficient evidence that an unreasonably dangerous design proximately caused or enhanced plaintiffs injuries in the course of a foreseeable use. Punitive damages are warranted. Note: - In this case there is an addition of consumer expectation applied

Bradney 82 *Manufacturers are liable for harms caused by defective products that are put to foreseeable uses, even if unintended by the manufacturer. Knitz v. Minister Machine Co. Risk-Utility Balancing *Facts- Defendant manufactured a punch press machine. The plaintiff tripped the foot pedal tripping device and the press amputated two of her fingers. Plaintiff established that a barrier or interlock gate guard was available that would have prevented entry of the operators hands. *Rule of Law- A product may be found defective in design, even if it satisfies ordinary consumer expectations, if through hindsight the jury determines that the products design embodies excessive preventable danger or, in other words, if the jury finds that the risk of danger inherent in the challenged design outweighs the benefits of such design. *Holding- Defendant liable. SDA product is in a defective condition unreasonably dangerous to the user or consumer if it is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. Factors considered: (1) more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner; (2) the benefits of the challenged design do not outweigh the risk inherent in such design. Note: - The consumer expectation rule was not used for this case and a risk utility test was used instead. Carroll Towing *A product is defective in design when the seller could have reduced or avoided the products foreseeable risks of harm by the adoption of a reasonable alternative design, and the omission of the alternative design renders the product not reasonably safe. Barker v. Lull Engineering Co. Burden of proof *Facts- Plaintiff was injured while operating a high-lift industrial loader. The ground was uneven, the loader began to vibrate, lumber fell from the loader and struck the plaintiff. The loader had no protective canopy and no outriggers to steady the loader. *Rule of Law- A product is defective in design (1) if the plaintiff demonstrates that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner or (2) if the plaintiff proves that the products design proximately caused his injury and the defendant fails to prove that on balance the benefits of the challenged design outweigh the risk inherent in such design. *Holding- The court shifts the burden of proof to the defendant to justify its design by pointing to a suitable risk-utility balance. Note: - This case shifted the burden from the to the , the chooses which test that he feels will work best in the particular case. - Where the situation shows that the is in a better position to state the condition then they should bear the burden

83

TO PROVE DESIGN DEFECT: HAVE TO PROVE THAT THERE WAS 1. A SAFER ALTERNATIVE 2. THE SAFER ALTERNATIVE WOULD HAVE PREVENTED OR SIGNIFICANTLY REDUCED THE RISK OF INJURY 3. THE SAFER ALTERNATIVE WAS BOTH TECHNOLOGICALLY AND ECONOMICALLY FEASIBLE WHEN THE PRODUCT LEFT THE CONTROL OF THE MANUFACTURER. Note: - Restatement 3rd states that even if the consumer expectations test is rejected, the jury might properly infer that safer and reasonably feasible alternative designs were available without explicit evidence, this thought is called Manifestly unreasonable designs o Examples Toy gun that shoots hard bullets at a force strong enough to injure a child Exploding cigar that has enough powder to burn a person McCarthy v. Olin Corp. Bullet case/Primary purpose *Facts- The plaintiff was severely injured in a vicious subway attack. A commuter opened fire on the subway passengers using Black Talon ammunition. The ammunition was designed to bend upon impact into six ninety-degree angle razor-sharp petals or talons that increase the wound power of the bullet by stretching, cutting and tearing tissue and bone as it travels through the victim. Plaintiff sued the defendant claiming that the bullet was defectively designed and inherently dangerous. *Rule of Law- A plaintiff must prove that product is unreasonably dangerous for its intended use. The mere fact of injury does not entitle the person injured to recover, there must be something wrong with the product, and if nothing is wrong, there will be no liability. *Holding- No liability. The primary function of the Black Talon bullets was to kill or cause serious injury. The risk arises from the function of the product, not by any defect in the product. There is no cause of action for an unreasonably dangerous per se product. The defendant did not owe the plaintiff a legal duty to protect against the attack. Note: - The ct stated that there was no special relationship and that it was the legislatures job to show a special relationship - It is the legislatures job to determine that a weapon is unreasonably safe and to take it off of the market *Some courts will hold a defendant liable for the negligent distribution and marketing of a product. However, not the majority. *Tobacco- safer design? *Drugs- Test Whether products are dangerous because they fail to perform in a manner reasonably to be expected in the light of their nature and intended function.

Bradney 84 D. Warning or Information Defects Liriano v. Hobart Corp. Duty to warn/Shifting burden of proof *Facts- Plaintiff, an employee, was injured when he caught his hand in a meat grinder. The safety guard was removed. The defendant did not place a warning label on the machine. *Rule of Law- When a defendants negligent act is deemed wrongful precisely because it has a strong propensity to cause the type of injury that ensued, that very causal tendency is evidence enough to establish a prima facie case of cause-in-fact. The burden then shifts to the defendant to come forward with evidence that its negligence was not such a but-for cause. *Holding- Defendant liable. A warning can do more than exhort its audience to be careful. It can also affect what activities the people warned choose to engage in. A manufacturers failure to provide appropriate information about a product may make an otherwise safe product dangerous and defective. Note: - This ct believes that a warning that states something to the nature of dont operate without safety guard installed would have been enough. - If there is an insufficient warning this ct has held that this could be a defect in itself. *Open and Obvious Danger rule- if the danger is foreseeably obvious in a significant degree, then the product is not defective at all for lack of a warning. *Comparative fault and assumed risk is a possible defense. Carruth v. Pittway Corp. *Facts- A family was killed in a house fire. Two days prior, the victims father installed a smoke-detector near a ceiling-wall junction. The instructions warned against doing so. The plaintiff sued the defendant manufacturer. *Rule of Law- Warnings must be reasonably clear, and of sufficient force and intensity to convey the nature and extent of the risks to a reasonably person. *Holding- For the jury. A fair minded person could reasonably infer that a user would be induced to only scan the pamphlet and thereby not get from the pamphlet the information about dead-air-space. Note: - The warning must be sufficient (reasonable in content and location) *Learned Intermediary doctrine- drug manufacturer issues warning to the doctor learned intermediary, not directly to the patient. If there is a person in between the manufacturer and the consumer the duty to warn is left to the Dr. or pharmacist. Note that not all cts abide by this rule. Some cts leave the status of the learned intermediary up to the jury. *Warnings about the health risks of prescription drugs and medical devices must be given directly to consumers only when the manufacturer knows or has reason to know that the learned intermediary will not be in a position to reduce the risks of harm in accordance with the instructions or warnings.

85 *Direct marketing- Texas court held the learned intermediary doctrine precluded manufactures duty to warn consumers, despite aggressive marketing of the public. Focusing on Post-Sale Warnings Comstock v. General Motors Corp. Brake problems/Duty to warn *Facts- Friend purchased a vehicle manufactured by the defendant. Shortly after, manufacturing the vehicle the defendant became aware of problems with the vehicles brake system. However, the defendant failed to warn the purchasers instead they told service stations to fix the problem whenever a person brought their car in for any type of service. Friend experienced brake failure and dropped the vehicle off with the dealer for repair. An employee forgot that the brakes were faulty and struck the plaintiff while attempting to drive the vehicle into a service stall. *Rule of Law- If there is a duty to warn of a known danger exists at the point of sale, a like duty to give prompt warning exists when a latent defect which makes the product hazardous to life becomes known to the manufacturer shortly after the product has been put on the market. *Holding- Defendant liable. The facts in the case impose a duty on the defendant to take all reasonable means to convey effective warning on those who had purchased the vehicle with power brakes when the latent defect was discovered. Note: - This case places a continuing duty to warn on when the defect occurs at the point of manufacturer even if the manufacturer is not aware of this defect. Gregory v. Cincinnati, Inc. Thumb amputation/Point of manufacture *Facts- Defendant designed and produced a sheet metal press. Plaintiff was injured in using the press, which necessitated amputating the plaintiffs thumb. Plaintiff was allowed to introduce evidence indicating that seven years after the machines production, OSHA required safety devices that would have avoided the injury and evidence that such devices were developed after the press was made. *Rule of Law- There must be a defect or an actionable problem at the point of manufacture before there can be any continuing duty. *Holding- Post-manufacture evidence was erroneously admitted. The duty to warn did not exist at the point of manufacture. A duty to warn or even to recall might be found on the basis of a unique relationship between parties, but otherwise such a duty will be recognized only if imposed by statute or regulation. Knowledge increases over time. Have to prove that there was a defect when the product left the manufacturer. Note: - This ct held that there is no post manufacture duty to warn arising from subsequently discovered knowledge unattributable to a defect at the time of manufacture. *If the danger is sufficient and the cost is limited, the manufacturer might even be obligated to provide a corrective device or make a repair itself.

Bradney 86 F. Comparative Fault and Assumption of Risk Note: - This is a minority decision most states now recognize contributory negligence in a products liability case - With regards to products liability the general rule is that one can take into account contributory negligence - The policy reason for not allowing contributory negligence in a strict liability case is that the is in the best position to protect against such accident *Texas rule- a plaintiffs recovery will not be reduced when his negligence consisted solely of failure to discover or guard against the products defect. G. Distinguishing Defenses from Failure to Prove Defect: Proximate Cause and Misuse Hughes v. Magic Chef, Inc. Exploding stove *Facts- Plaintiff was severely injured when the defendants product a stove exploded. The plaintiff refilled the propane tank the evening before and did not re-ignite a third pilot light. *Rule of Law- As part of his prima facie case, the plaintiff must establish that the product was unreasonably dangerous in a reasonably foreseeable use. *Holding- Defendant liable. Misuse of product is no longer to be considered an affirmative defense in products liability actions but is rather to be treated in connection with the plaintiffs burden of proving an unreasonably dangerous condition and legal cause. In some situations, negligent use of a product by a consumer is reasonably foreseeable by the producer and is not misuse for liability purposes. The plaintiffs knowledge is one factor to be considered in determining whether the manner in which the plaintiff used the product was reasonably foreseeable. Jury can take plaintiffs misuse into account in determining if product was defective. Note: - What if the manufacturer places a large warning on the item, would it still be reasonably foreseeable that an average person would misuse the product? - The idea factors in at the time of trial to show whether the product is actually defective o If it is still found to be defective the misuse is not a factor that the ct will look at in a strict liability case However in a products liability case the ct will take the s contributory negligence into account o If the product is found not to be defective then there is no liability on behalf of the *Unforeseeable misuse means that, with respect to harms caused by the misuse and that would not have been caused by a properly used product, the product simply is not defective at all.

87 *For liability to exist, there must be a defective product. Reid v. Spadone Machine Co. Guillotine machine *Facts- Defendant manufactured a guillotine-type cutting machine for cutting blocks of molded plastic. Originally the machine could be operated only when activated by pressing two buttons simultaneously, thus requiring the operators hands to be out of the blade area. The machine was intended as a one-person cutter, but some workers would, at times, work together on the machine, one pushing the side-button and one turning the blocks of plastic. The plaintiff lost three fingers. *Rule of Law- Before a defendant may successfully argue a third persons negligence or misuse as a superseding cause, he must prove that the negligence or misuse was not reasonably foreseeable. Manufacturer liable for forseeable misuses when this design will result in a particular injry when used in a particular way. Design defect. *Holding- Defendant liable. The two-person use was foreseeable. Note: - If a product is still defective even though the manufacturer has made a change to the design, the manufacturer is still liable if it is reasonably foreseeable that an accident will occur, or the misuse will still occur *A manufacturer must design a product reasonably in light of known or foreseeable misuses. *Foreseeability- those harms that are foreseeable and also unreasonably risky under the circumstances. Product is not necessarily defective merely because harm can be foreseen. *Substantial modifications of a product from its original condition by a third party are not the responsibility of the manufacturer. *No products liability for manufacturers of alcohol when Vaughn v. Nissan Motor Corporation In U.S.A *Facts- Defendant manufactured a vehicle purchased by the plaintiff. The vehicles voltage regulator failed, caused an excessive current, and caused to battery fluid to boil. The plaintiff/driver claimed that fumes entered the vehicle, caused her severe vocal chord dysfunction and reactive airway dysfunction, a severe asthma. Defendant claimed that the plaintiff suffered from a psychological tendency to generate illnesses that have no apparent physiological cause and that there was no physical basis for the plaintiffs injury. *Rule of Law- If a manufacturer should be aware that an appreciable number of consumers are unusually susceptible to injury from the product, it is under a duty to warn those with such unusual reactions. *Holding- Defendant liable. The ordinary consumer is the test of a defect. However, if a defect exists, the plaintiff need not be an ordinary consumer or suffer only damages that an ordinary consumer would suffer. Manufacturer is under a general duty to design his product reasonably safely or the uses which he can foresee. Thin skull rule: take victims as you find them. Note:

Bradney 88 This case is the same as the thin scull cases, you take the as you find them. Disclaimers on new products will not normally relieve the of liability, however, in an old product it might be a defense Compliance with a statutes will not conclusively demonstrate the absence of negligence. The statute provides a minimum standard, a floor not a ceiling on the s duty. Evidence showing compliance with statutes is admissible although it is not itself a defense.

*Consumer expectation test- not appropriate for determining damages. *A manufacturer generally cannot avoid liability by using disclaimers. *Compliance with statute does not conclusively demonstrate the absence of negligence. Ramirez v. Plough, Inc. Duty to warn non-English *Facts- Defendant manufactured aspirin for children. Defendant gave warning concerning the risks associated with the use of aspirin by children under certain circumstances Reyes syndrome. Defendant used Spanish-language advertisements to reach the Hispanic market. However, the defendant failed to issue a warning in Spanish. The plaintiff suffered severe neurological damage, blindness, and mental retardation as a result of ingesting the defendants product. The FDA only required a warning in English. *Rule of Law- The task of specifying language of warnings is best left to legislators and administrators. *Holding- No liability. The legislature has deliberately chosen not to require that manufacturers also include warnings in foreign languages. *Preemption- Congress may preempt state law by: (1) occupying the field with heavy regulation so that there is no room left for state law; (2) by passing laws that actually conflict with state laws; (3) by providing for preemption in particular cases, either expressly or by implication. G. Compliance With Specifications: Government Contractors and Others Boyle v. United Technologies Corporations Federal contractors/Military Contractor Defense *Facts- The decedent, a Marine helicopter pilot, was killed when his helicopter crashed. The plaintiff, decedents father, initiated suit against the defendant, which built the helicopter for the United States. *Rule of Law- Liability for design defects in military equipment cannot be imposed, pursuant to state law, when (1) the U.S. approved reasonably precise specifications; (2) the equipment conformed to those specifications; (3) the supplier warned the U.S. about the dangers. *Holding- No liability. If what was done was within the constitutional power of Congress, there is no liability on the part of the contractor for executing its will. The selection of the appropriate design for military equipment to be used by the Armed Forces is assuredly a discretionary function within the meaning of FTCA. Note: - The appeals ct stated that Sikorsky because it was protected by what the ct called the

89 military contractor defense Statutes of Repose: some legislatures impose a statute of limitations XXIX. Communication of Personally Harmful Impressions To Others A. Defamation- Libel And Slander *Intentional tort- Tortfeasor intended to publish the defamatory falsehood. *Defamation suits rarely succeed. Cassidy v. Daily Mirror Newspaper, LTD. Unchastity to a woman *Facts- The plaintiffs husband, famous in racing circles and in women, posed for a pic with a girl he said was his fiance. He was married though. Newspaper published, and wifes friends dont like her anymore b/c they think shes unchaste. *Holding- Plaintiff has an action for damages. Words were capable of defamatory meaning by suggesting that the plaintiff was not married to the man who stayed at her flat. The publisher must take the consequences even if it has no intent to speak about the plaintiff at all. Plaintiff only had to prove that the defendant published the defamatory material and it concerned the plaintiff. *Loathsome disease- some courts will treat such a defamatory statement as libel per se. *Libel per se- damages are presumed in libel and in some slander cases. *Truth defense- the truth will set you free. The burden of proof resides with the plaintiff. *Media publications are treated as libel. *Single publication rule- each edition or issue of a book, newspaper or magazine is treated as giving rise to a single cause of action. *Privileges- official privilege, executive privilege, reporter privilege. Stanton v. Metro Corp. pg. 891 **Facts: plaintiff was pictured in a magazine article describing teen sex and debauchery. Magazine had a small disclaimer in the corner stating that the individuals pictured were unrelated to people or events described in the story. **Holding: a reasonable jury could find the publication defamatory meaning that it had a reasonable tendcy to injure her reputation and could find that she was one of the teens described in the story. Mass defamatory rules: plaintiff must prove that defendant negligently published false and defamatory statement of cand concerning the plaintiff. Priveleges: judges and lawyers and witnesses have an absolute privilege todfame when they communicate in the course of and in realtion to thesubject matter of litigation. Legistlators may also defame in their work. Exectuvive officers may defame except if they do so maliciously. A person is privelged to comment about accurately stated facts. There is a privilege to report a document, meeting or activity so long as its accurate. Statutes create additional priveleges that

Bradney 90 give internet providers or message board operators imunity from liability for allegedly defamatory postings made by 3rd party subscribers. New York Times Co. v. Sullivan Actual Malice/1st Amendment *Facts- Defendant published an advertisement requesting donations to help defend Dr. Martin Luther King, Jr. in a perjury indictment. The article indicated that the Alabama police were engaging in dehumanizing behavior. Plaintiff was the City Commissioner and is in charge of the police department. The plaintiff was not specifically named in the article. However, the plaintiff argued that the defendant accused him of intimidation and violence by making reference to the police. *Rule of Law- A public official is prohibited from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice, that is, with knowledge that it was false, or with reckless disregard of whether it was false. *Holding- No liability. Debate on public issues should be uninhibited, robust and wideopen even if that includes criticism for the government. Would be critics would otherwise be deterred from voicing their opinions if if they believed them to be true. The proof presented to show actual malice lacks the convincing clarity which the constitutional standard demands, and hence that it would not constitutionally sustain the judgment for respondent under the proper rule of law. Public officials have greater access to channels of effective communication. *recklessness= Requires a high degree of awareness of probable falsity or that the publisher in fact entertained serious doubts as to the truth of his publication. *The plaintiff must prove that the published statements are false; the burden is no longer on the defendant to prove truth. *Elements: (1) false statement; (2) knowledge of falsity or reckless disregard for the truth; (3) defamatory content; (4) referring to the plaintiff. Gertz v. Robert Welch, Inc. Actual damages *Facts- Plaintiff is a lawyer. A police officer was prosecuted for killing a young boy. The defendant published an organ known as American Opinion, representing the views of the John Birch Society. The publication referred to the plaintiff as a communist saying that he as a lenninist attacking the police community. *Rule of Law- Private persons are not required to satisfy the Times-Sullivan test actual malice. Private persons must prove fault, to be specified by the states under state tort laws, and actual damages. *Holding- Defendant liable. The legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted on them by defamatory falsehood. Private individuals are more vulnerable to injury, because they lack sufficient access to channels of effective communication. The state interest in protecting private persons is greater. Absent clear evidence of general fame and notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life. One must examine the nature and extent of an individuals participation in the particular

91 controversy giving rise to the defamation. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. Private matter/Punitive damages *Facts- Defendant supplied plaintiffs confidential credit rating report to five subscribers. The report was negligently compiled by a reporter who stated that the plaintiff filed for bankruptcy. Plaintiff requested a correction and the names of the five subscribers. The defendant complied with the correction request. However, the defendant refused to supply the plaintiff with the subscriber names. *Rule of Law- Where a private person is libeled on a private matter, damages are presumed. If public official/figure=prove actual malice. If private person/public concern=prove fault and damges. If private individual and private concern= prove fault. Damages are presumed. *Holding- The speech here is not a matter of public concern. The speech is hardy and unlikely to be deterred by incidental state regulation, because profit motive is involved. B. Malicious Prosecution and Other Abuses of the Legal System False imprisonment- direct interference trespassory tort, involving direct physical detention of the person. Malicious prosecution- indirect interference intentional but non-trespassory. Elements: 1) There is a prosecution 2) Defendant in the malicious prosecution suit instigated the prosecution 3) Defendant acted maliciously ill-will, improper purpose 4) Defendant acted without probable cause reasonable cause 5) Criminal action is terminated in favor of the present plaintiff. Defenses: (1) Judges and prosecutors have absolute immunity when acting in their judicial and prosecutorial capacities; (2) Guilt-in-fact. *Factual issues about which reasonable people could differ are left to the jury. *When a citizen petitions a governmental entity for redress of grievances, the citizens protection is absolute and the governmental entity may not sue him at all. Malicious civil prosecution- If the defendants civil action was brought without probable cause, was malicious, and was terminated in favor of the person who is the current plaintiff, there may be cause of action. Friedman v. Dozorc Special injury rule *Facts- Plaintiff, a surgeon, sued the defendant/attorney for a failure to reasonably investigate the facts presented by his client in a civil suit directed against the surgeon. The surgeon claimed that the defendant/attorney owes his adversary a duty to reasonably investigate his clients claim against an opposing party. *Rule of Law- In the absence of a seizure of property, seizure of person, or repeated re-litigation the plaintiff lacks a cause of action under malicious civil prosecution.

Bradney 92 *Holding- No liability. A lawyer who brings a baseless claim should not be subject to another tort action. The preferred remedy for a wrongful tort action is not another wrongful tort action. Abuse of Process: misuse of legal process for an ulterior motive or improper purpose. The defendant may be held liable even if he rightly invoked the process and even if the person against whom it is invoked is in fact guilty of the crime or civilly liable. The gist of the tort is misuse of the legal system for some personal end. *Slapp litigation- suits against critics for defamation to discourage lawsuits against them. These are illegal in some states.. *Most American courts reject the special injury rule. *Abuse of process- involves misuse of legal process for an ulterior purpose. Courts have often said that some act, threat or demand must be made after process has issued in order to support recovery. C. Privacy 1. Intrusive invasions 2. Commercial appropriation/ Right of publicity 3. False light 4. Public revelation of private facts Solano v. Playgirl **Facts: playgirl magazine featured a cover photo of Solano with the heading young stars exposed. Solano had not given interview with magazine nor did he pose. He sues for creating false impression that he was willing to degrade himself by posing nude. **Holding: To prevail on false light claim, Solano must prove that 1. Playgirl disclosed to one or more people info concerning Solano that was presented as factual but was false. 2. The information was understood by one or more persons to whom it was disclosed as stating or implying something highly offensive that would have a tendency to injure Solanos rep. 3. By clear and convincing evidence, playgirl acted with constitutional malice. 4. Solano was damaged by the disclosure. False light differs from defamation b/c it focuses on the plaintiffs own hurt feelings.

Several courts have rejected false light claim arguing that it wholly dup;icates defamation claims or needlessly raises free speech problems. Florida star v. B.J.F **Facts: plaintiff was a rape victim. Paper released plaintiffs name, location and violated a florida statute which says this is unlawful. **Holding: Where the publisher lawfully obtains the truthful information about a matter of public significance, state officials may not punish the publishers, except when the publication involves a state matter of the highest order (pentagon top secret stuff).

93

XXX. Communicaton of Commercially Harmful Impressions To Others *Tortious interference with contract XXXI. Misrepresentation And Other Misdealings A. Theories of Liability And Their Consequences *Misrepresentation- (1) Misrepresentation of a material fact by Defendant; (2) Scienter knowledge of falsity; (3) Intent to induce Plaintiffs reliance; (4) Causation-Actual reliance; (5) Justifiable reliance; (6) Damages *Negligent misrepresentation- concerns economic loss in a bargaining transaction. 1. Misrepresentation by the Defendant 2. Negligence toward particular group 3. Cause in Fact-Actual Reliance 4. Justifiable Reliance 5. Proximate cause 6. Damages *Fraudulent concealment- active concealment *Failure to disclose no duty Rest. 2d 552. Information Negligently Supplied for the Guidance of Others (1) Course of business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. (2)Liability is limited to loss suffered. (a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and (b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction. (3) The liability of one who is under a public duty to give the information extends to loss suffered by any of the class of persons for whose benefit the duty is created, in any of the transactions in which it is intended to protect them. *Defendant is liable not only to the person to whom the representation is made, but also to third persons if he intends or has reason to expect that its terms will be repeated.