BATTERY 1) Intent harmful or offensive contact 2) Harmful or offensive contact results NECESSITY Necessity gives privilege to use land

d Conditional Privilege - liable for harm THE REASONABLE PERSON Objective standard. Ordinary person Lower standard for children But, not when doing adult activities Insanity a defense if Lack of control or understanding of duty, AND Lack of forewarning Disability lowers standard to reasonable person with that disability (Fletcher) CALCULUS OF RISK Burden < Probability x Loss (severity) CUSTOM Relevant & persuasive, not dispositive Departure from custom can show neg. Same for s private rules of conduct Dispositive in medical malpractice Doctors: Duty to inform of risks if knowledge would affect his decision STATUTES/REGULATIONS Negligence per se if Law designed to protect against type of harm that occurred, AND in class of people protected by law Defenses: Necessity and Capacity Two ways of predicting result Legislative history, or does violation of law increase risk of harm to Courts liberal in interpreting purpose Compliance with law relevant, not disp. RES IPSA LOQUITUR 1) Event usually doesnt occur w/o neg. 2) Cause within exclusive control of 3) Not due to voluntary act of Shifts burden to for circum. evidence Smokes out evidence w/ multiple s CONTRIBUTORY NEGLIGENCE Affirmative defense, burden on Excuse for private necessity Harm must be within the risk (causal) COMPARATIVE NEGLIGENCE Comp. negligence, NOT causation Pure or Modified ASSUMPTION OF RISK Primary: breached no duty, not neg. Secondary: Unreasonable, is ContN Waiver: Tunkl factors (see reverse) Reasonable assumption: fork fork! DUTY TO RESCUE No duty to rescue, unless law imposes, special relationship, or if caused the harm (even if non-negligently). SPECIAL RELATIONSHIPS Generally, no duty to control 3rd party Exception: Exclusive control of , e.g. landlord (Kline). Must be foreseeable Exception: Necessary to avert danger Target IDed by 3rd party (Tarasoff) facilitated commission of crime breached promise to warn (Long) LANDOWNER LIABILITY Traditional Categories Invitees: remove traps Licensees: warn of traps Trespassers: dont set traps Rowland Factors (see reverse) Attractive Nuisances (see reverse) CAUSE-IN-FACT

But for s conduct, what happens? Burden shifts to if lack of proof due to s negligence (Lone Palm Hotel) Increased chance of harm - liable if: Act wrong b/c it chance of harm AND, that type of harm occurs Joint Liability - All s fully liable if: Joint tortfeasors 2 independant tortfeasors, harm indiv 2 subsequent torts, harm indivisible Lost chance of survival (Herskovitz) Alternative Liability (Summers) Market Share Liability (Sindell) PROXIMATE CAUSE Three views 1) Harm within the risk (fseeability) 2) Causal connection 3) Policy judgment (Andrews) For proximate cause 1) Must increase risk of harm, AND 2) Harm must be within the risk This test is sufficient but not necessary Intervention of 3rd parties Liability only if ordinary and natural 3rd party act must be foreseeable Usually for neg., not for int. torts Foreseeability of rescue, s reaction Four Categories of Unforeseeability Extent of harm: liable (eggshell ) Manner of harm: liable (Nugent) Waters must become placid again Plaintiff: not liable (Palsgraf) Type of harm: Fork! Factors Directness of harm Degree to which it resembles an unforeseeable type or extent If s negligence caused other harm for which he is liable, thereby not totally clearing him from liability EMOTIONAL HARM Impact Rule: Physical harm required Zone-of-Danger Rule: must be in zone of danger of being harmed by Closely Related Bystander (Dillon) 1) located near accident (proximity) 2) witnessed accident (visibility) 3) and victim closely related ECONOMIC HARM No liability except spec. relationship, public nuisance, intentional harm Each piece of harm must be fseeable PAIN AND SUFFERRING Cognitive awareness required? Goals, commensurability, etc. PUNITIVE DAMAGES Malicious intent necessary BMW v. Gore Three Guideposts 1) Reprehensibility of s conduct 2) Disparity b/w harm & pun. award 3) Diff b/w award & civil penalties Multiplier cant exceed single digit STRICT LIABILITY Key: Uncommonness, dangerousness Natural vs. Unnatural, acts of God Harm must also be foreseeable ABNORMALLY D. ACTIVITIES See outline for RSTs factors Social utility as a consideration? VICARIOUS LIABILITY Int. torts: characteristic to workplace Scope of Employ: Detour vs. Frolic Independent Contractors Apparent and Implied Authority

PRODUCTS LIABILITY Manufacturing Defects: must show (1) It departed from intended design (2) It caused injury Failure to Warn: Foreseeable risks could have been prevented by warning Design Defects Consumer Expectations Test: Product defective if it fails to perform as safely as a consumer in s position would reasonable expect it to Allows Open & Obvious exception Risk-Utility Test: Product defective if benefits of design outweighed by costs Must show reasonable alternative? Hal li day: Test not used for gun Which test will court use? (or both?) Foreseeability of harm, not intended use, is what matters (Volkswagen) Wades Unreasonable Dangerous Factors (see reverse) RST Comments (see reverse) Federal Preemption Nature of duty: Floor vs. ceiling TERRY: 5 FACTORS OF NEGLIGENCE 1) The magnitude of the risk. 2) The value or importance of that which is exposed to the risk, which is what law seeks to protect 3) The value of what the person taking the risk is pursuing 4) The probability that it will be attained by the conduct which involves risk (utility of the risk) 5) The probability that it would not have been attained without the risk (the necessity of the risk) RST 339: ATTRACTIVE NUISANCE Landowner liable for harm caused byart if i ci al conditions if: Owner knows or has reason to know children are likely to trespass, AND, Owner knows or has reason to know condition involves unreasonable risk of harm, AND Children, because of their age, wont realize the risk, AND Burden of eliminating danger slight compared to risk to children, AND Owner fails to exercise reasonable care to eliminate danger or protect children Note: Most courts do not apply this tonat ural conditions ROWLAND FACTORS Foreseeability of harm (breach) Degree of certainty of harm (damages) (causation) Closeness of connection b/w s conduct and s harm Moral blame of s conduct (fairness) Prevention of future harm (deterrence) Consequences to and community by imposing duty Availability and cost of insurance (compensation) FACTORS FOR MARKET SHARE LIABILITY All named s are potential tortfeasor

 Harmful products identical, share same qualities (fungible) unable to identify particular who caused her harm through no fault of her own Substantially all manufacturers who created product during relevant time are named as s BMW v. Gore : Degree of Reprehensibility of s Conduct Harm is physical as opposed to economic Conduct evidenced indifference or reckless disregard for human health and safety Target of conduct has financial vulnerability Conduct involved repeated actions, not an isolated incident Conduct was the result of intentional malice, trickery, or deceit, instead of just a mere accident 520: ABNORMALLY DANGEROUS ACTIVITIES a) Existence of a high degree of risk of some harm to another person or his property b) Likelihood that the harm that results will be great c) Inability to eliminate the risk by the exercise of reasonable care d) Extent to which activity is not a matter of common usage e) Inappropriateness of the activity to the place where it was carried on f) Extent to which its value to the community is outweighed by its dangerous attributes RTT scraps social utility (f) as a consideration. RST COMMENTS ON PRODUDCTS LIABILITY f) Seller must be in the business of selling. Does not apply to the occasional seller g) Must be in defective condition when it reaches buyer, not by subsequent acts h) Seller not liable if injury results from abnormal handling i) Product must beunreasonabl y dangerous . Must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it j) Seller must give warnings for dangers that are not generally known and recognized. If warning given, and product is safe if followed, it isnt unreasonably dangerous k) If product is unavoidably unsafe, but prevents a greater harm (e.g. a rabies vaccine), it is not defective or unreasonably dangerous. Seller not liable n) ContN of is not a defense, but if sees danger and unreasonably continues use, this is an assumption of risk,

and is a defense. If discovers a defect and continues unreasonably to use the product and is injured, hes barred from recovery Note: Although RST took no position on bystanders recovery, law now allows it FACTORS IN RISK-UTILITY TEST Gravity of danger posed by challenged design Likelihood such danger would occur Mechanical feasibility of a safer alternative design Financial cost of an improved design Adverse consequences to product and consumer that would result from an alternative design Unreasonably Wades Factors in Determining if Product is Dangerous Usefulness and desirability of the product utility to user and public as a whole Safety aspects of the product likelihood it will cause injury, probable seriousness of injury Availability of a substitute product that would meet the same needs and not be unsafe Ability to eliminate unsafe trait without impairing usefulness or making it too expensive Users ability to avoid danger by exercise of care in use of the product Users anticipated awareness of dangers inherent in the product (general public knowledge) Feasibility of manufacturer spreading loss by setting price or carrying insurance TUNKL FACTORS (for voiding liability waivers) Business generally though suitable for public regulation Importance of s service to the public holds itself out as willing to provide service to any member of public who seeks it Essential nature of services gives great bargaining strength Public faced with adhesion contract; cannot pay reasonable fees for negligence protection Purchaser placed under s control, subject to risk and carelessness by