Rainey 1 Torts Course Outline Professor Fedtke- Fall 2010 I) Tort Law a) The difference between tort law

and contract law is that a person does not have to enter into a contract against their will. b) A person has to enter into a tort law relationship. c) Duty, Breach (Would a reasonable person, considering the circumstance included exceptions like child, etc. have acted the same way), Causation- But-For, Alternatives to the But-For Test, Proximate Cause, Damages, Defenses II) Negligence a) Four basic elements of negligence: i) Duty ii) Breach iii) Causation iv) Harm v) Then consider defenses- Must have Negligent D to consider defenses III) Reasonable Person Standard a) A defendants duty in most causes of negligence is to act as a reasonable person in the circumstances that led to an injury. Where there is a duty, there is a standard of care for the jury to decide upon. b) To show that a party failed to behave as an ordinary reasonable and prudent person, P must show that D created significant risk and reasonable person would have avoided it. c) Common standard of care- reasonable person standard where we assume that a person will act with reasonable care to prevent injuries to others. d) Vaughan v. Menlove- Court had to decide whether jury should be given reasonable person standard or if the defendant should be held to a standard of the best of his own judgment. Court decided that the jury should be given the standard of a reasonable person because it is too difficult to determine that defendant acted in good faith of their abilities that would cause a new standard to be used for every case. e) Parrot v. Wells, Fargo & Co.- Defendants must take the usual precautions that a reasonable man would do to avoid accidents under similar circumstances. No one is responsible for injuries resulting from an unavoidable explosion where the contents of a package were unknown and exploded. The reasonableness of an actors conduct will usually depend on the knowledge the actor had about the riskiness of the activity. Unless package is suspicious, it is not the duty to known the contents of the box. IV) Range of Reasonable Person Standard a) Standard of care has to be modified in some cases to be made more lenient or stricter depending on the circumstances. Standard of care can be lax or higher. b) If standard of care is high and more care is required, the more the system moves towards no fault. c) Amount of care considered reasonable care changes with circumstances. d) What constitutes ordinary care varies according the particular circumstances and conditions existing then and there e) Especially Dangerous Instrumentalities

Rainey 2 i) 2nd Restatement on Torts 298- The care required is always reasonable care. The standard never varies, but the care which it is reasonable to require of the actor varies with the danger involved. The greater the danger, the greater the care exercised ii) Steward v. Motts- Court held that there is not a separate standard for especially dangerous instrumentalities like gasoline in this case. There is only one reasonable care standard but the care employed by a reasonable man must be in proportion to risk of activity. The reasonable care should be of a higher degree because of the risk involved. f) Emergencies i) Some jurisdictions have a sudden emergency doctrine to supplement the reasonable person test. ii) An emergency is a sudden and unexpected encounter with danger. If person encountered such an emergency and acted reasonably to avoid harm, can find person was not negligent even if in hindsight there was a better course of conduct could have been taken iii) Myhaver v. Knutson- The Court upheld an emergency instruction to the jury because a person encountering an emergency cannot act with same reaction time and cannot be held liable to same standard of care as one who has time to think about the action. However, it can confuse jury so needs to be used rarely. It also must be explained that sudden emergency is only one of the factors in determining reasonable conduct under circumstances. iv) Emergency had to: (1) Be sudden without warning (2) Person could not have been negligent before emergency (3) Reaction to emergency was spontaneous g) Actors Knowledge and Skill i) Restatement 289- Actors conduct involves a risk of causing an invasion of anothers interest if a reasonable man would do so while exercising such superior attention, perception, memory, knowledge, intelligence, and judgment as the actor himself has ii) Cervelli v. Graves- Court held that a tort-feasorss knowledge, skill, and superior intelligence compared to an ordinary man will demand conduct in line with this extra knowledge. A jury must consider all the circumstances surrounding an occurrence including the characteristics of the actor. h) Youth: Special Treatment for Minors i) All jurisdictions use a special standard of care for childrens conduct. ii) There are 3 different approaches: (1)regular standard of care for adults (2) regular standard of care for youths (3) youths involved in inherently dangerous activities- adult standard iii) Can also do Illinois type rule- No liability as a matter of law for children under 7. (1) Robinson v. Lindsay- *Exception to Standard of Care for Children*- When the activity is inherently dangerous, a child should be held to an adult std of care. This helps to discourage children from engaging in activities that are inherently dangerous. (2) Motor vehicles such as snowmobile should be operated with the normal degree of care and competence of an adult

Rainey 3 (a) What is inherently dangerous? Motor vehicles where the risk is higher with some activities. (3) Peterson v. Taylor- To determine how a reasonable child in plaintiffs position would act must look towards age, intelligence, and experience considering subjective and objective factors of what plaintiff knew and what others in plaintiff same situation would know- Reasonable child std is different from that of adults in that the circumstances are broader to include these considerations not present in adult standard of reasonable care. (a) 1st- determine what was the capacity of particular child to perceive and avoid the results of the case (b) 2nd- how would a reasonable child under the like capacity act? (4) Policy- Why sue a child? iv) Physical Disabilities and Mental Disabilities (1) When a person with a physical disability needs to be examined, tort law evaluates conduct by comparing it with how a person with same physical disability would act. (2) When a person with a mental disability needs to be examined, tort law evaluates that conduct by comparing it with a reasonable person without the mental disability would act. Courts hold that adults with mental disabilities have same duty of care towards others as those without. (3) Poyner v. Loftus- Physical disability- P is legally blind and he was found to be contributory negligent even though legally blind when he fell and suffered injuries. P could have used a cane or seeing eye dog to avoid the fall. Due care includes a reasonable effort to use artificial aids to compensate for affliction. (4) Creasy v. Rusk- Mental disability- D has Alzheimers and kicked a nurse when she was putting her to bead. Patient was in nursing home so he would be limited in harm he would cause to society. P, nurse, was not a member of the public at large unable to safeguard herself. P knew of nature of patient. D did not owe a duty to P. There is a reason why patient is there in the first place. (a) To determine whether an individual owes a duty, consider relationship between parties, reasonable foreseeability of harm, and public policy concerns. (b) Judges can use duty as a tool to limit liability. Without duty, there is no negligence. (c) Restatement says that there is nothing harsh in holding a person responsible for harms that person may cause by substandard conduct. (5) Policy- Why treat physical handicapped different? Why treat mentally handicapped the same? (a) It allocates loss to the one who caused the loss if both parties are innocent. (b) It establishes incentive to those in charge of people with disabilities to prevent harm and restrain those who are potentially dangerous. (c) Stops tortfeasors from faking disability (d) Forces people with disabilities to pay for the damage they do if they are going to live in this world- hold them accountable for harm V) Reasonable Conduct as a Balancing of Cost/Benefits

Rainey 4 a) McCarty v. Pheasant Run, Inc.- One way a court determines negligence is through determining whether burden of precaution is less than magnitude of accident. The D is not found negligent in failing to warn plaintiff about door in room which later resulted in assault because plaintiff could not show accident could have been avoided by precautions of reasonable cost. b) The Hand Formula (US v. Carroll Towing) i) Means of quantifying personal injuries so jury can make reasonable estimates ii) Conduct negligent if B< PL iii) B= burden of precaution iv) P= Probability of Loss v) L= magnitude of loss that would have been avoided with prevention VI) Recklessness a) Reckless is a type of unintentional tort. b) Recklessness falls in between negligence and intention torts. c) Recklessness embraces all unintentional torts other than neg, including wanton misconduct and gross neg. Sometimes punitive dmgs can be available. d) Examples of cases with recklessness- concrete details where there is immediate danger and individuals are aware of i) Cases with no recklessness- general danger that is dormant for a long period of time and then something happens, less concrete cases, likelihood of something happening is low ii) Cases with recklessness- more concrete details where there is immediate danger and individuals are aware of presence of others and yet actor continues despite high risk of serious injury and high likelihood of something happening. e) Sandler v. Commonwealth- Risk of death or grave bodily injury must be apparent. Recklessness is close to intent. f) For recklessness, use the restatement rule, then look at hypothetical that might merit legal theory of recklessness, and then use cases to decide which group your facts are more closely related to. i) P. 130 cases- a lot of reckless conduct involves cars ii) 3rd Restatement of Torts defines reckless conduct as: iii) A person acts with recklessness in engaging in conduct if: (1) The person knows of the risk of harm created by the conduct or knows facts that make that risk obvious to anyone in the persons situation and (2) The precaution that would eliminate or reduce the risk involves burdens that are so slight relative to the magnitude of risk as to render the persons failure to adopt the precaution a demonstration of persons indifferent to the risk g) Negligence is easier to prove than recklessness. h) Balance between cost of avoidance and magnitude i) Magnitude- severity of the loss and magnitude of it happening i) Recklessness v. intent- Intent is the desire to cause consequences of his action or believes they are practically certain to result. While recklessness involves intentional or unreasonable disregard of a risk that presents a high degree of probability of substantial harm. j) Plaintiff must prove the existence of serious risk that presents a high probability that substantial harm will result. P must prove that D had some subjective knowledge. k) It is the combination of likelihood and seriousness that makes a risk a serious one. l) What is the difference between recklessness and intentional torts?

Rainey 5 VII) Proving Breach of a Duty (Violation of a Statute, Industry Custom, and Res Ipsa Loquitur) a) To recover damages, P must prove breach of duty. b) These doctrines below help to define the standard of care. These are differ in respects of who defines each of these doctrines. c) Violation of a Statute i) Statutes can be considered as proof of how a reasonable person behaves. ii) Courts can treat the violation of a statute as both establishing a standard of care and proving negligence. iii) Helps us determine if there was a breach- whether the reasonable person standard was violated iv) Breaking a statute does not automatically translate into liability unless statute calls for strict liability. v) If the statute was supposed to protect the party from the harm, the proof of violation will establish a standard of care and be evidence that the opponents conduct was negligent. vi) Negligence Per Se- Martin v. Herzog- An unexcused statutory violation can be conclusive proof of negligence. However, the violation of the statute must be a contributing cause of the harm. vii) Some states refuse to use negligence per se when it involves a statute that fails to provide a clear cut statement of the conduct it requires. When statute incorporates some discretion like prudent person standard of car instead of clear cut conduct to be taken, negligence per se does not apply. Clear cut conduct v. conduct of reasonable person (1) Statute must be specific with enough details to describe what types of behavior is proscribed. viii)Thomas v. McDonald- In order for negligence per se to apply, P must show that he was under class that statute was meant to protect and harm suffered was the kind that the statute meant to protect. ix) Wawanesa Insurance Co. v. Matlock- Providing cigarettes to a minor and later trying to find D liable for fire (1) Neg per se doesnt apply if the plaintiff isnt in the class designed to be protected or if the type of harm wasnt one the statute was designed to prevent even though the statute has been broken. (2) The statute that is broken must be designed to protect against the kind of harm that occurred. If not, there is no negligence per se. (3) Here, statute of giving cigarettes to a minor was not designed to protect the prevention of fires but to prevent minors from addiction to cigs. x) HYPO- What happens if the intent of statute is enacted for a particular reason, but the court attaches a new meaning to the statute. (1) Some argue that the intent changes over time and courts can address this change. (2) Some argue that the original meaning is determinative unless the law actually changes. i) Sikora v. Wenzel- Lack of knowledge can excuse from the liability imposed by neg per se if he neither knew nor should have known of the circumstances causing the violations. (1) Notice to the condition is a pre-requisite for liability.

Rainey 6 (2) Statutes suffer from the problem of not being able to take into account detailed factual variations that real cases present. xi) Hypo- What is driver gets into a wreck and does not have drivers license? (1) Driving without a drivers license is not negligence per se because no drivers license is not causation for the wreck? (2) When statutory requirement for licensing is done for regulatory approval, it is not a breach of the standard of care. (3) However, when getting a license can prevent the occurrence of dangerous conduct like when do not have license to operate a breach and some gets hurt, it can be negligence per se. (a) Not getting a general license can be negligence per se if dangerous conduct was trying to be prevented by license- like license to build a facility xii) Ways to deal with possible treatments of statutory violation: (1) prima facie= on its first appearance or at first sight (2) Some evidence- Excuse offered or no excuse offered- some can treat violation of a statute as some evidence (3) Prima facie evidence- no excuses offered- some courts treat violation of a statute as prima facie evidence of duty and breach (4) Prime facie evidence- no excuses offered- some courts refer to proof of violation as creating a presumption of negligence- issues are decided against tortfeasor unless rebutted (5) Negligence per se jurisdictions- no excuse offered where violation of a statute is treated as negligence per se- proof of a statutory violation is conclusive on the issues of an actors duty and breach (a) Not necessarily liable- still need to prove damages and causation (6) Some jurisdictions allow excuses and some do not with prima facie evidence of negligence. d) Industry Custom i) Compliance with an industry custom is relevant but not conclusive. ii) Negligence per se involves breach of a statute set by the legislature. iii) Industry custom does not bind the court while legislation does. iv) Custom means professionals acting in a particular field have abided by rules set upon themselves. v) Failure to follow an industry custom is not necessarily a failure to exercise ordinary care. vi) An industry code provides support for the proper standard of care. It is not law. It is just evidence of a std of care. vii) A whole occupation may have lagged in the adoption of new and available devices. It may never set its own test, however persuasive their uses. This makes them liable. viii)This rule encourages the best practices without establishing them as the legal norm. ix) The T.J. Hooper- A whole industry can be lagging and the universal disregard of not including radios in boats will not excuse their omission. (1) Cost-benefit logic still applies- small cost of radios for large benefit of weather reports. x) Elledge v. Richland/Lexington School District Five- Industry standards, customs, and practices are often very telling when defining standards of care. The standards are not conclusive, but they are just offered to demonstrate an applicable standard

Rainey 7 of care. A safety code usually represents a consensus that shows safety practices of rules generally prevailing. National protocols do not have to be adopted before admissible. xi) Evidence here was just offered as an applicable standard of care. xii) Wal-Mart Stores, Inc. v. Wright- A jury can learn about the rules of custom in a store but cannot treat a violation of these rules as unreasonable conduct. We do not want to hold these industries to a higher std of care than the reasonable man std. Wal-Marts policies are precautionary steps- they do not necessarily mean Wal-Mart failed to exercise ordinary care when they are not followed. (1) Higher standards set by companies should not work against them. e) Res Ipsa Loquitur (Circumstantial Evidence) i) Circumstantial evidence is information a fact-finder may use to make inferences about past events in the absence of direct evidence, the thing speaks for itself. ii) Most common elements: (1) Type of injury is usually associated w negligence (2) D had exclusive control over whatever caused the injury (a) Trying to exclude other causes (3) P made no causal contribution. (4) Ds access to info was superior to Ps. (a) The core justification for this rule is that there is a difficulty to provide evidence despite discovery. P has an inability to prove what happen. iii) P gets a jury instruction with this doctrine that states despite Ps evidence to offer direct evidence of what D did wrong, the jury may infer defendant was negligent. iv) 3rd Restatement of Torts- The fact finder may infer that the defendant has been negligent when the accident causing the plaintiffs physical harm is a type of accident that ordinarily happens because of the negligence of the class of actors of which the defendant is the relevant member. v) Byrne v. Boadle- P was walking down street and struck by a barrel from a 2nd story window. Typical injury is a result of negligence. Accident alone would be prima facie evidence of negligence. If there are facts inconsistent with negligence, it is for the defendant to prove them. (1) D was more likely than not negligent even though P could offer no explanation of his injuries. ii) Shull v. B.F. Goodrich Co.- Exclusive control is a commonly objected to element. Court should have given jury instructions. It has to be more likely than not the accident was caused by Ds negligence. Exclusive control usually flexible- it does not necessarily mean literal control of the instrumentality. Unexplained malfunction in machinery is ordinarily attributable to a defect or improper maintenance- P must show accident was one which would not ordinarily occur in the absence of proper care on the part of those who maintain the instrumentality. (1) P is not responsible for eliminate with certainty all possible causes and inferences. vi) Ways for Determining Exclusive Control: (1) Exclusive control is a relative concept. (a) Ex: If a chair collapses when you sit on it, this is a presumption of negligence on people who provided these chairs. It depends on the access of others. (2) 2 Step Method for Determining Exclusive Control: (Indiana)

Rainey 8 (a) 1. Was the instrumentality under the exclusive control of the defendant (b) 2. The accident is one which in ordinary course of things does not happen if those who control the instrument use proper care (c) *Exclusive control can sometimes be fault* like with driver of a car whose breaks do not work. Driver is in exclusive control but not drivers fault. (3) Some jurisdictions raise the question of contributory negligence to eliminate the plaintiff as the responsible party. (4) Some jurisdictions apply a variation where the plaintiff has to show that the evidence of the explanation for the harms occurrence is more accessible to the defendant than to the plaintiff. iii) Dover Elevator Co. v. Swann- The use of direct evidence of an expert witness precludes the use of the doctrine of res ipsa loquitor. (1) The idea is that the true cause of the accident is accessible to the D but not victim. Cannot use res ipsa if negligence on part of the defendant could have properly been drawn by the jury from the evidence in the case (2) in medical negligence cases where general background information is necessary. vii) Policy Argument for Res Ipsa Loquitur (1) It helps the plaintiff more because the facts can speak for themselves. It is a rule of evidence- it does not necessarily decide the case. (2) It helps to protect a directed verdict in favor of the defendant because plaintiff did not have direct evidence about the precise shortcomings of the Ds actions. Causation VIII) a) b) c) d) Cause in Fact Causation connects a defendants conduct to a plaintiffs harm. P must show there is a causal connection between the Ds conduct and Ps harm. Causation and duty are limitations on tort liability. The But-For Test i) Exam: Always start with the but-for test before moving on to alternative liability. ii) The But-for Test Whether P would have been free from harm but for Ds negligent conduct. iii) It focuses only on scientific and historical facts. iv) P must present evidence that the jury could conclude from the Ds negligence more likely than not caused Ps injury. v) In the case of circumstantial evidence, it must be more than 50% that the defendants actions caused Ps harm. P must prove by a preponderance of the evidence vi) Even if there is negligence on behalf of one party, is the negligence the cause of the injury? (Lyons v. Midnight Sun Transportation Services) Alternatives to the But-For Test: e) 1. Multiple Sufficient Causes- More than one D, each ones conduct was sufficient to cause the harm. Burden of proof shifts and each D must prove its act was not a substantial factor in producing the harm. Cts must determine which defendants are liable and for how much. i) The risk is that the but-for test allows D to say that there would be the same loss with or without the other partner. 2 views on multiple sufficient cause rule: (1) Some courts say that D will not be liable unless all Ds acted tortiously.

Rainey 9 (2) Some courts and Rst says that any D whose tortious act was independently sufficient to produce the harm may be liable even if other sufficient acts were innocent. ii) Kingston v. Chicago & Northwestern Railway Co.- Case of 2 fires- When 2 or more tortfeasors act in negligence, they are each individually responsible for the entire damage from their joint acts of negligence. Whole loss must be treated as an entirety. (1) D has to be responsible for the entire amount of the loss because 2 wrongdoers cannot plead the wrong of the other party as a defense to escape and penalize the innocent party. (2) Natural Causes Exception: If accidental human fire joins a fire by natural causes, then they are no liable. This situation does not involve natural causes. (a) Some jurisdictions do this differently. (Colorado p.184) iii) Substantial Factor Test: The cause must be a substantial factor in bringing about the harm. To determine if it is a substantial factor, consider the number of other facts which contribute and the extent of their effect. (a) 2nd View: Restatement 433(2)- If two forces operating, one because of negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about harm to another, actors negligence MAY be found to be a substantial factor in bringing it about. (b) Test of substantial factor can limit an actors liability. (c) The more causes and actors involve- less likely to prove liability. iv) Brisboy v. Fibreboard Paper Products Corporation- Asbestos case where even one month of exposure to asbestos is enough to ultimately result in the victims death especially when dusty. (1) If two forces are actively operating, and each is of itself sufficient to bring about harm, Ds neg may be found to be a substantial factor in bringing it about. (2) Substantial Factor: One consideration is the number of other factors which contribute to producing the harm and the extent of the effect they have. One may be so predominant as to make another actor (P)s negligence insignificant. (3) Dilute Effect: None of the contributing factors has a predominant effect and the combined effect dilutes the actors neg and prevents it from being a substantial factor in bringing about the harm f) 2. Concert of Action- Allows P to impose liability on someone in addition to D. The additional person may not be but-for, but the theory makes them liable anyways. How substantial must the involvement be to meet the concert of action requirement? There needs to be first be a negligent defendant to bring someone in under concert of action. Restatement (second) of Torts, Sect. 876 Persons Acting in Concert. i) For harm resulting to a 3rd person from the tortuous conduct of another, one is subject to liability if he: (1) (a) does a tortuous act in concert with the other (or) (common plan, common motive, common execution) (2) (b) knows that the others conduct is a breach of duty and gives substantial assistance or encouragement (or) (3) (c) gives substantial assistance to the other while his own conduct is a breach of duty to the 3rd person.

Rainey 10 ii) Five factors for Substantial Assistance: 1) Nature of the wrongful act 2) Kind and amount of assistance (Weighed most heavily) 3) Relationship of the parties- no special relationship -can be modified if under power relationship or relationship of dependency 4) Presence or absence of the defendant 5) Defendants state of mind iii) Shinn v. Allen- D passenger in car w/ drunk driver, hits another car sued for negligence in encouraging drunk driver to drive under concert of action (2). D did not provide substantial encouragement. Non-acting person must give substantial aid to the tortfeasor mere presence not enough. iv) HYPO- Drag racing case as concerted action- Two cars drag racing are racing down a public road. One of them hits another car and kills himself and the other driver. Is the other racer liable even though he is not involved in the accident? Yes other driver may be liable. g) 3. Alternative Liability- Conduct by each D could have cause Ps harm. Conduct of all Ds combined to produce Ps harm. This theory exposes an actor to liability even where there is a possibility that Ps harm was entirely caused by someone else. Only one or some of them (not all of them) caused the harm. Alternative liability theory exposes an actor to liability even where there is a possibility that the Ps harm was caused by someone else. i) Alternative liability becomes harder when the numbers of defendants increase. In alternative liability. Justification for alternative liability shrinks as the defendants increase in number because the chance that the D actually did cause harm shrinks when it should be high. ii) Summers v. Tice- Two others, both discharged guns at quail near P. P struck in face, unknown by which shooter. (1) Burden of proof on P is relaxed. Burden shifts to D. They are both wrongdoers and negligent towards P. One of them injured P, and it rests with them to absolve himself. If each can escape than the plaintiff is remediless. (2) Each joint tortfeasor is responsible for the whole damage. This is practical because there is unfairness in denying the injured redress simply because he cannot prove how much damage each did. (3) It is fairer under some circumstances to require negligent defendants rather than the innocent plaintiff prove who caused the harm. (1) The plaintiff must prove: (1) that two or more Ds committed a tort, and (2) that P was injured as a proximate result of the wrongdoing off one of the Ds. iii) Burke v. Schaffner- Alt Liability does NOT apply when there is no proof that the conduct of more than 1 defendant has been tortious. P struck by truck D riding in, alleging D stepped on accelerator pedal while climbing in back seat. Only 1 defendant possibly committing tortuous act and one of one two candidates was not negligent, so no Alternative Liability. (1) NEED TO BRING ALL TORTFEASORS TO COURT IF WANT TO INVOKE PRINCIPLE OF ALTERNATIVE LIABILITY (2) EACH DEFENDANT HAD TO CREATE A SUBSTANTIAL RISK OF HARM (3) EACH DEFENDANT CREATED A SIMILAR RISK OF HARM TO p AND EITHER COULD HAVE CAUSED THE HARM.

Rainey 11

h) 4. Market Share Liability- P has no way of identifying sources of the product used and cannot be sure that he has sued the actor who caused the injury. In cases where a victim has been harmed by a product that was produced by a number of manufacturers to identical specifications, plaintiffs can instead use an alternative liability theory. i) Also known as modified alternative liability in that it modified alternative liability in two ways: (1) A substantial share was sufficient (2) By limiting a defendants liability to its market share ii) Hymowitz v, Eli Lilly and Company- DES manufacturers (1) Can bring a substantial share of wrongdoers before court instead of all possible wrongdoers. It is impossible to bring in all wrong doers because some of the companies do not even exist anymore as would be required in regular alternative liability. (2) It is difficult here for plaintiffs to identify with certainty which particular manufacturer made the pills they took. Statute of limitations is also a problem but legislature stepped in. (3) Each D who cannot prove that it did not injure P will be liable according to their market share. (4) Normally national market share provides best results. (5) Joint & Several Liability: P cannot collect more than full amount but can choose which D will pay (6) Several Liability: Each D is responsible for only an individual share of Ps total damages (7) The probability that one of D did it is low. Still, the loss should be borne by one of the manufacturers. iii) Black v. Abex Corp- Asbestos not typically brought under market share liability. (1) If there is not a similar risk of harm between the products, it is unfair to use market share liability. (2) It is based on the fact that defendants have produced identical defective products which carry equivalent risks of harm. (3) Requirements for Market Share: (4) Injury by a fungible product made by all defendants in the suit (5) Injury or illness due to a design hazard; with each having been found to have sold the same type product in a manner that made it unreasonable dangerous (a) P must demonstrate singular risk factor (6) Inability to identify the manufacturer of the products (7) Joinder of enough of the manufacturers to represent a substantial market share. i) Some policy issues behind market share liability: Tort law gives incentives for producers to be more careful. There is an interest in society to hold these defendants liable because they caused a risk to society at large and this needs to be covered by tort law. Alternatives to this theory: better regulation or society can step in j) In market share, D can completely exonerate themselves because there is no evidence, but court says producer cannot escape liability solely because it appears not to have caused that particular plaintiffs injury. k) Some jurisdictions allow the defense that the company did everything they could do and could not reasonably foresee the damage.

Rainey 12 l) Policy Reasons for Alternatives to the But-For Test i) There are some cases where a but-for test would prevent plaintiff from recovering where most people believe that a defendants actions actually did harm plaintiff ii) Multiple actors could have caused harm but it would be hard for plaintiff to prove that conduct by any one of them was a but-for cause iii) Alternative liability and market share liability- a group of defendants could have caused a plaintiffs injury but the plaintiff cannot show who caused it, these variations help to resolve these cases iv) Expand pool of possible defendants in order to improve chances of recovery Liability for Lost Chance of Recovery or for Increased Risk of Eventual Harm (1) Lord v. Lovett- The loss of a chance of achieving a favorable outcome or of avoiding an adverse consequence should be compensable and should be valued appropriately When those preexisting conditions have not absolutely preordained an adverse outcome the chance of avoiding it should be appropriately compensated, even if that chance is not better than even. (2) Loss of opportunity doctrine: medical malpractice form of recovery allowing P whose illness is aggravated by the negligence of a physician or worker to recover for the lost opportunity to obtain a better degree of recovery. (3) Three approaches to loss of opp claims: (a) Traditional tort approach: P gets full recovery for all injuries if P proves with misdiagnosis and doctors negligence, P was deprived of at least 51%+ chance of a more favorable outcome. (all or nothing) (b) Relaxed Standard: P can submit the case to the jury upon showing that Ds neg more likely than not increased the harm to P or destroyed a substantial possibility of achieving a more favorable outcome. (arbitrary) (i) This approach is criticized because (c) Loss of Opportunity itself if the injury- The lost opportunity for a better outcome is the injury for which P may recover. May recover if less than 51%. Does not receive whole dmgs, just the loss of opportunity. This is the most fair approach for both parties- it is more likely for plaintiffs to succeed but damages are less. (4) Alberts v. Schultz- Damages should be awarded on a proportional basis as determined by the percentage value of the patients chance for a better outcome prior to negligent act. Percentage probability- say if patient had 60% chance of full recovery and doctors negligence moved this to 40% chance. The recoverable amount would be 20%. (a) It is difficult to calculate the loss of chance, but a price tag must be put on difficult things. (5) Petriello v. Kalman- P who has established a breach of duty that was a substantial factor causing a present injury which has resulted in an increased risk of future harm is entitled to compensation to the extent the future harm is likely to occur. (a) No loss at the moment but working with 51% of future harm. (b) These damages are hard to forecast with certainty. D should pay damages for a future loss based upon the probability that such a loss will be sustained rather than loss is a certainty because it is more likely than not. (c) Some courts use doctrine that instead of statute of limitations, if future event occurs, then P can get the actual money.

Rainey 13 IX) Duty (Limit on Liability)a) Exam: Assume there is a duty unless can point to a no-duty scenario. Foreseeability alone does not provide answer- focus primarily on foreseeability but can run through other factors to argue if there is a duty. b) D will not be liable if he did not owe a duty or if his act was not a proximate cause of Ps harm. c) In modern tort law, duty has acquired a different role because of expansion of negligence. Initially, very few duties existed. Traditional common law had specific tort relationships that are relevant in terms of liability. d) The judge decides duty- it is a question of original law. The judge is supposed to recognize the communitys coordinating conventions or practices. Just because there is a duty does not necessarily mean liability. Some factors judges consider: i) Judges sense of morality ii) Foreseeability of and extent of likely harm iii) Burden that the new duty will impose on the D (1) However, courts are hesitant to create duties that impose excessive burdens on actors. iv) Increased safety likely to result v) Administrative problems of enforcing the duty e) However, the jury decides proximate cause. f) At some point, justice requires us to state that it has gone too far because things are not foreseeable anymore. a) Two types of harm: i) Harms the defendant should be required to pay for ii) Harms whose cost the victims should bear themselves b) Duty and proximate cause are both concerned with foreseeability. c) Palsgraf v. Long Island Railway Co- P was standing on Ds railroad platform. Two men were rushing to get on the train and guard grabbed one of the men to get on the train causing him to drop his package with fireworks in it. Scales fell down and injured P. Should P be able to recover against the train station? No, D did not have a duty to P. There was nothing to suggest that the package would blow up even to the most cautious person. i) No duty based on proximate cause, so no recovery. ii) Train station given no notice. iii) Factors considered for proximate causation: iv) (1) but-for cause, (2) natural and continuous sequence between cause and effect v) (3) substantial factor, (4) directness w/out too many intervening events vi) (5) attenuation, (6) likelihood of injury, (7) foreseeability, (8) remoteness in time, and (9) remoteness in space (Generally, courts only focus on one of two of these at a time) vii) Majority- (Cardozo) (1) Duty as those who are in reasonably foreseeable zone of danger (2) Before negligence can be proven, there must be a duty. (3) The risk reasonably to be perceived defines the duty to be obeyed. (4) Risk imports relation- It is the risk to another or to others within the range of apprehension. (5) An act is wrongful in relation to other travelers- only because the eye perceives the risk of damage. (6) Must be able to see those injured. viii) Dissent- (Andrews)

Rainey 14 (1) Andrews has a broad view of duty- there is a general duty not to harm others. (2) Negligence involves a relationship between him and those whom he does in fact injure. (3) Everyone owes to the world at large the duty of refraining from those acts that may unreasonable threaten the safety of others. (4) Tort law has moved towards the Andrews dissent. (5) Have to make a rule that is keeping with general understanding of mankind d) Hegyes v. Unjian Enterprises- Ps mother injured in car accident 18 months before conceived. Ps growth compressed shunt in mother from accident, delivered early to avoid further harm to mom. Court ruled generally no duty to child as result of hitting a pregnant driver not reasonably foreseeable, unless special circumstances like fertility clinic. i) There must be a matter of some relation between the parties, some duty, which could be founded only on the foreseeability of some harm to P. ii) A P is wronged if they are harmed when the D breaches a social convention whose purpose is to protect people like the P from that kind of harm. iii) Decide whether there is a duty in keeping with the standards of society iv) D must foresee that his or her negligent conduct could cause some harm to P injured. e) Dykema v. Gus Macker.- A duty may be found if there is a special relationship with P and D. i) Some examples of special relationships- landlord/tenant, employer/employee, common carrier/passenger, innkeepers/guests ii) These special relationships all involve a relationship where one person entrusts himself to the person in control because he is in the best position to provide a place of safety. iii) In order to determine whether there is a special relationship, Court held it necessary to balance social interests, risk, likelihood of occurrence, defendants ability to comply, victims inability to protect himself iv) Here, there was no duty with basketball tournament and harm that later happened to P after D failed to warn about upcoming storm. P did not pay to get into tournament or did not entrust himself to the control of D. v) P never lost ability to protect himself. vi) Even if there is a special relationship, court still has to look at social considerations to see if imposing a duty would be sensible. f) Graff v. Beard- SOCIAL HOST- NO DUTY The host has no duty towards the person who drinks the alcohol. The person drinking is best able to avoid the foreseeable risks of their behavior. i) hard to control conduct of other people- ultimate responsibility to guest ii) hard to tell when guests are intoxicated iii) Policy argument in dissent: Risk of damages caused by drunk drivers is so high that social hosts should be held liable and there should be a duty. There is little difference between commercial vendors and social hosts. g) Eisel v. Board Education Montgomery County- SCHOOL COUNSELOR- DUTY- School counselors have a duty to use reasonable means to attempt to prevent a suicide. One of the factors analyzed was foreseeability. i) A tort duty is an expression of the sum total of those considerations of policy which lead the law to say that the P is entitled to recovery. ii) To determine whether a tort duty should be recognized, consider these variables: (1) Foreseeability of harm to the plaintiff

Rainey 15 (2) Closeness of connection between defendants conduct and injury suffered (proximate cause) (3) Moral blame (4) Preventing future harm (5) Extent of burden to defendant and consequences for the community iii) Foreseeability is the most important variable in determining duty. II) Proximate Cause (Limit on Liability) a) Exam: Causation- But For Cause, Proximate Cause, Directness Test/Foreseeability Test/Substantial Factor Test- Go through all 3 tests, and then always mention superseding/intervening event regardless of what test is used in proximate causation i) Combining Approaches- If substantial factor test, then go back to foreseeability to exclude extraordinary consequences. b) Proximate cause is decided by the JURY. Most courts use a general jury instruction about proximate cause and appeals on grounds of PC will be rejected if jury properly instructed and have some evidence that supports verdict. c) It would be unfair to make defendants pay for all of the harms associated with their actions. d) Ds conduct as too remote from a Ps injury to justify holding D liable. e) Ds conduct and Ps harm must have a connection hat is reasonably close in order to justify imposing liability on the defendant. f) Superseding cause- D does not have responsibility because an actor other than the D will be treated as the superseding cause. g) Three main approaches to proximate cause: i) directness (no intervening forces) ii) foreseeability (cause-in-fact if Ps harm was reasonably foreseeable) iii) substantial factor test (conduct is important enough compared to the other causes of the harm iv) These tests are all means to limit an actors liability under proximate cause. h) Directness Test- An act that is a cause in fact of an injury will be the proximate cause if there is a direct connection between the act and the injury with no intervening forces. i) In Re Polemis- The fact that the result was unexpected does not relieve the person who was negligent from the damage his negligent act directly caused. Plank lead to destruction of the whole ship by fire. Damages to ship from falling board could have been foreseeable. The damages claimed were not too remote. The fire was directly caused by the falling of the plank. Would any reasonable person foresee that the act would cause damage? (1) If not, then no negligence. ii) Laureano v. Louzoun- Boiling water case- Sometimes intervening acts bring about the injuries. Thus the injuries do not result from Ds acts alone, and D cannot be found liable. The act cannot be classified as injuries normally to have been expected to ensue from the landlords conduct. iii) An act is a direct cause of Ps harm when all would agree that the connection between Ds conduct and Ps harm was so close that the D should be liable. i) Foreseeability Test- Was Ps harm reasonably foreseeable? (p.252- IMPORTANT)

Rainey 16 i) Linking Liability to Foreseeability - Treated as the proximate cause if the possibility of that harm was within the range of risks that supported the original characterization of Ds conduct as negligent (a) Even though the exact sequence of the events may be unforeseen, the consequences of the negligent act may be foreseeable. (b) Precise manner in which injury occurred or its exact extent or chain of events does not have to be foreseeable. ii) Foreseeability Under Duty v. Foreseeability Under PC (1) Duty- general zone of threat, general risk must be foreseeable under the duty analysis- A legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others. (2) PC element- when it comes to pc, zooming in, whether and what extent Ds conduct foreseeably and substantially caused the specific injury- not generally but specific defendant and specific injury (3) Reasonable person in position of actor iii) What type of risks fall within the scope of duty? Limit liability within the usual risks that the duty is trying to prevent (1) Look at the foreseeable risks that are usually prevented by the rule and then compare general set of foreseeable consequences with what actually happen. (2) Decide whether event is highly unusual and outside the scope to make it not a proximate cause or does fit within the risks covered by the original duty. iv) Tieder v. Little- It is about common sense/fairness to stop liability where results of Ds conduct seems beyond the scope of any fair assessment of the danger created by Ds negligence. (1) Good case for exam set-up. i) McCain v. Florida Power (1) A harm is proximate in a legal sense if prudent foresight would lead one to expect that similar harm is likely to be substantially caused by the specific act or omission in question (a) It is immaterial that D could not foresee the precise injury. The extent of liability is for the jury to decide. (2) Duty proper inquiry for the court is whether Ds conduct created a foreseeable zone of risk, not whether D could foresee the specific injury (3) There is a duty to provide security around power lines. A reasonable jury could have concluded that the injury fell in zone of risk. (a) P argue wide duty. (b) D argue narrow duty. (c) Court will define the duty. (4) Risk comes from the duty- Duty is trying to cover particular risks. ii) Court can intervene in area of proximate cause where there is no question where no reasonable jury could come to any other result- only one possible inference. a) Eggshell Plaintiff: Must take plaintiff as found-Conduct that would ordinarily be negligent can create unforeseeably large damages if the victim had an unusual weakness or susceptibility. Rule applies to the extent of harm while foreseeability applies to the type of harm. Negligent actor bears the risk that liability will be greater because of a particular vulnerability of the victim

Rainey 17 i) 2d Restatement of Torts 461- A negligent actor must bear the risk that his liability will be increased by reason of the actual physical condition of the other toward whom is act is negligent. ii) Thin skull jury instruction and eggshell plaintiff rule as a limitation on the foreseeability rule. (1) Jury instruction is only appropriate if D tried to avoid liability by pointing towards Ps pre-existing conditions. iii) It is unforeseeable but there is still liability. iv) Schafer v. Hoffman- A tortfeasor cannot seek to reduce the amount of damages owed to the victim by spotlighting physical condition of injured part before tort occurred. Does not matter if plaintiff had a prior fragile condition making her more susceptible to injuries v) Calculation of damages can mitigate the severity of the eggshell plaintiff rule. vi) Difficulty in applying Foreseeability Analysis (1) Directness Test- too much liability where an actor who fears tort liability cannot make any changes in behavior other than a general decreased in his or her level of activity. Directness test does not really add much- ties in with intervening and superseding causes. (2) Foreseeability Test- hard to apply sometimes, conduct is proximate cause if the possibility of harm was within the range of risks that supported the original characterization of defendants conduct as negligent, involves descriptions of type of harm defendant risked and type of harm plaintiff suffered (3) Petition of Kinsman Transit- They just applied liability to the person who was negligent so that the innocent parties werent hurt. Even though there was no real foreseeability of danger. Barge negligently tied up breaks free, hits other boats, causes bridge to collapse and general flooding. Court held even though not readily foreseeable about bridge collapse and floods, foreseeable about ship breaking free and hitting something. Foreseeable that some harm caused, so liable for all harm caused. (a) Court sees no reason why an actor engaging in conduct which entails a large risk of small damage and a small risk of other and greater damage of the same general sort form the same forces should be relieved of liability. (b) An injury does not have to be likely or probable in order to be foreseeable in proximate cause analysis. (c) Courts distinguish unforeseeable consequences of a negligent act from consequences that are foreseeable but take place in an unusual manner. (4) Un-foreseeability of exact developments and of the extent of loss will not limit liability. b) Substantial Factor Test- Proximate cause if conduct is relatively important enough compared to other causes of but-for harm to justify liability. It generally ignores foreseeability. i) American Truck Leasing v. Thorne Equipment Company- Ds negligence here was passive and harmless until acted upon by an independent force. Negligence was too far removed factually and chronologically from Ps harm. (1) Considerations in whether negligence is a substantial factor in bringing about the harm (a) Number of other factors contributing and their extent

Rainey 18 (b) Whether the actors conduct created a force in continuous and active operation up until time of the harm (c) Lapse of time if it is evident that action is SF, lapse of time doesnt matter iii) Chelcher v. Spider Staging Corp.- Court analyzed cause-in-fact and proximate cause individually (1) Cause in fact considered a factual question (2) Proximate cause Considered a policy judgment. There may be numerous substantial factors so there need not be only one proximate cause. iv) Mere lapse of time is not the ultimate factor. It is not sufficient to excuse a particular activity as a substantial factor. Taylor v. Jackson (1) Lapse of time- As the length between an act and an injury increases, more time is available for other independent acts to contribute significantly to the harm. If more acts contribute to the harm, the original act is less likely to be a substantial factor. (2) In addition, the determination of whether an actors conduct was a substantial cause of injuries not be taken away from the jury if the jury can reasonably differ about whether the conduct of the actor has been a substantial factor in causing harm. c) Combining Approaches- Can combine Directness, Foreseeability and/or Substantial Factor test in establishing proximate cause. i) Two elements of causation: (1) Actual cause of the harm: cause in fact (2) Legal cause of the harm: proximate cause ii) The substantial factor test and foreseeability can be joined to analyze proximate cause, but they should be considered separately. (1) Substantial factor test The purpose of which is to impose liability on D whose conduct has such an effect in producing harm as to lead reasonable minds as to regard it as cause (2) Foreseeability Reflects a legal judgment and is rooted in social policy. iii) Sumpter v. Moulton-. If the city would have done what is was supposed to do under the statute, then P would not have gone in there and then had a heart attack. Highly unlikely, the city will have to pay whole damages because of pre-existing condition. (1) 1st look at substantial factor test (2) 2nd look at foreseeability (3) Keep two tests apart. (4) If it a substantial factor, then go back to foreseeability to exclude extraordinary consequences. Foreseeability comes into play after a determination has been made that the defendants conduct was a substantial factor in producing plaintiffs injury. d) Intervening and Superseding Cause- Analysis of superseding cause comes after proximate cause test. i) Exam: Always start out with the general rule. 3rd party intervenes with criminal act and usually that is the end of it. ii) In General (1) Intervening act that is foreseeable will not protect D from liability. (2) If the intervening act was not reasonably foreseeable it will be characterized as superseding and will protect the defendant. Severs chain of prox cause (3) Superseding cause unforeseeable act by a third party that comes between Ds act and Ps harm. Superseding events breaks the directness test.

Rainey 19 (4) Courts say that the act is foreseeable if it is a normal act, an act reasonably to be expected, or an act that is within the scope of the risk created by defendants act When Is an Intervening Force Treated as Superseding (1) Mcclenahan v. Cooley (a) If intervenor and original D both breached a duty to P, and intervening act is not a superseding cause, both will share liability. Negligent Treatment of a Plaintiffs Injury: Intervening or Superseding? (a) When Ds conduct requires P to get medical care, courts do not like to treat the medical care as a superseding act. (b) The restatement imposes liability on the original tortfeasor for additional harm from neg medical care because the human fallibility of health care providers means that the risks are within the scope of the risks created by Ds negligence. Price v. Blaine Kern Artista- Criminal 3rd party conduct typically severs the chain of causation; however, the chain remains unbroken when act is reasonably foreseeable. D should have foreseen the possibility of some sort of violent reaction ignored by the sign of an oversized caricature of a prominent political figure. McClenahan v. Cooley- LEAVING KEYS IN CAR CASE-Cost benefit analysis- D left his keys in car. Someone stole car and hit family. (1) Approaches to Leaving Keys in the Car (a) Some courts have held owners liable for leaving keys in vehicle. Owner has no duty and that theft and subsequent negligence could not be reasonably foreseen. (b) Another group of courts say that the intervening criminal act does not automatically break the chain of causation. (Minority view) It is reasonably foreseeable that the theft of an automobile can happen and increased risk that public could be harmed. This court in this case takes up the minority view here.

iii)

iv)

v)

vi)

Restatement 447 The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor's negligent conduct is a substantial factor in bringing about, if (a) the actor at the time of his negligent conduct should have realized that a third person might so act, or (b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or (c) the intervening act is a normal consequence of a situation created by the actor's conduct and the manner in which it is done is not extraordinarily negligent. vii) Negligent Treatment of a Plaintiffs Injury- Courts are reluctant to treat medical care as a superseding act. Risks created with receiving medical attention are within the scope of the risk created by Ds negligence. (1) Weems v. Hy-Vee Food Stores- An intervening act is a normal (and foreseeable) consequence of the original tortfeasors negligence if it is normal to the situation which the tortfeasor created. Medical treatment is a normal consequence of injury not superseding act to go to the doctor if injured. It is unnecessary that original tortfeasor foresee the specific conduct which makes up the intervening force. It is sufficient that harm attributable to intervening act is foreseeable

Rainey 20 (a) A D will be liable for the adverse results of medical treatment unless the treatment if extraordinary or the harm is outside the risks incident to treatment. (2) Corbett v. Weisband- Experts said that no sane doctor would do this to a patient with this knee condition. Was this negligence so highly extraordinary despite the evidence to constitute a superseding cause? This should be a question for the jury. Foreseeability test for superseding cause asks whether the intervening act that contributed to Ps injury was foreseeable. Precise act does not have to be foreseeable. Three ways that intervening acts are not superseding causes: o It is a normal response to the negligent act that is reasonably foreseeable and a substantial factor in bringing about the harm o It could reasonably have been anticipated o The intervening conduct could have been anticipated and taking the risk of it was unreasonable (Scope of risk test) was intervening act among the foreseeable circumstances that made the defendants conduct blameworthy. Defenses Several defenses to protect a defendant from liability for negligence. - plaintiffs negligence - assumption of risk - plaintiffs failure too minimize consequences - plaintiffs failure to protect against loss - governmental immunities - family immunities - statutes of limitations II) Plaintiffs Fault a) Exam: Before going to defenses, still need to go through and establish negligence of the tort-feasor. b) Tort law recognizes a number of defenses that protect a defendant from liability. c) From an economic perspective, it is sensible to encourage parties who can avoid accidents at the least cost to do so. Even if either P or D could have avoided the accident acting alone, it might have been easier (less costly) for one to do so than the other. d) Common Law Contributory Fault i) Common law made any contributory negligence a complete bar to a plaintiffs recovery no matter how small a contribution that negligence made to Ps injury. ii) Wright v. Norfolk and Western Railway Co.- Virginia still uses common law contributory fault. It does not matter how much negligence on behalf of P. Five states still have all or nothing approach. e) Justification for Common Law All or Nothing Approach: i) Justification because want to punish P for misconduct. The P negligence supersedes the Ds negligence so as to render Ds negligence no longer proximate. ii) Question of whether victims behavior supersedes that of Ds so award nothing iii) Comparative fault began with the federal rule in cases involving injuries of railroad carriers, injured seamen. These involved hazardous position where workers could not

Rainey 21 recover if they or their fellow employees were negligent at work for workers compensation even when railroads are very inherently dangerous. f) Modern Comparative Treatment of Plaintiffs Negligence: i) Exam: State all 3 differences unless it is specifically stated. ii) Pure Comparative- P is only barred if responsibility is 100%. Total dmgs awarded to P are reduced to reflect Ps % of responsibility iii) Modified Comparative (1) Modern approach requiring jury to assign a % to Ps share of responsibility. P is only barred if responsibility is greater than 49 or 50% (2) Types: (3) 49%- P can recover dmgs only if his neg is less than the defendants (a 49% or less share). (4) 50%- P can recover dmgs only if his neg is less than or equal to the defendant(s). iv) McIntyre v. Balentine- Tennessee adopts 49% rule because court does not want a party to be able to recover in tort if they are 80/90% at fault as under pure comparative system. The 49% rule requires more responsibility on side of D than side of victim. v) Dobson v. Louisiana Power and Light Company(1) Use of the Learned Hand method to determine how negligent a person is compared to another, as opposed to just whether or not a party was negligent. (2) Hard to tell difference between 49/50/51 (3) In most states the apportionment is left to the trial court. Here, LA so different. (4) Factors used to determine degree of fault (a) Whether the conduct resulted inadvertently or involved awareness (b) How great a risk was created by the conduct (c) Significance of what the conduct sought (d) Capacities of the actor (e) Extenuating circumstances (f) Costs to avoid the risk would have been greater for P than D (i) Disparity is heightened in this case because D, electric company, was in a superior position to avoid the danger than P tree trimmer. (5) There is a division about whether the CAUSAL contribution of the parties should be considered along with the relative negligence (fault). Basically, comparative fault vs. comparative contribution vi) Jensen v. Intermountain Health Care- Case of Multiple Ds (1) If there is more than one D, should the neg of each D be compared to P or the total neg of all Ds to determine whether a particular D is liable? (2) Approach #1: Unit Rule All defendants taken together in comparing neg (3) Approach #2: Wisconsin Rule Each Ds negligence is compared to Ps neg to determine whether a particular D is liable. Plaintiffs negligence can be used multiple times and the total negligence of the parties can end up totaling more than 100%. Many have criticized Wisconsin rule. It is minority because it requires the negligence of all parties to add up to 100% but this is hard to do with multiple defendants. (a) There have been some situations where the unit rule leads to unfair results as well. The situation in this case is one of them where the negligence of the plaintiff is more than any of the individual defendants. also unfair with 2

Rainey 22 defendants and one plaintiff where each are 33.33% liable and so with only one other defendant, plaintiff would not have recovered. (b) Unit rule problem with aggregate defendants does not arise in pure systems because no defendant escapes liability on the basis of having a lesser of equal degree of fault. vii) Attributing responsibility- economic analysis look at ability to prevent and cost of preventative measures. viii)States are divided over including relative casual contribution ought to be considered along with relative negligence of the parties. Some say that once causation is found, the apportionment must be made on the basis of comparative fault- rather than comparative contribution. ix) Policy- Draft rules to target actor that is the most able to avoid the damage. Modified comparative approach is also a powerful inventive for the victim to be careful. x) Idea that US is headed towards more pure comparative negligence systems. It makes better sense. xi) Criteria of fault system if allow recovery when a P who was more at fault than defendant. g) Reckless Conduct (1) General Rule: Reckless defendant overcomes any negligence of the defendant. (2) Common law rule: Contributory negligence is no defense to defendants recklessness. Negligent plaintiff can recovery with reckless D. (3) There are a number of rules to remove the effect of Contrib Neg (a) When a Neg P seeks dmgs from Reck D, Neg P is protected from the effect of his neg (b) Last Clear Chance Neg P can recover if injured in circumstances where Ds failure to act carefully was especially egregious ii) Coleman v. Hines- Someone accepts a ride in a car and knows/participates in drinking with D. However, if negligence on P is actually reckless, then reckless defendant can use the behavior of P as a defense again. Even if drivers conduct here was reckless, so was plaintiffs- so no recovery. If both reckless, playing field is even again. (1) Contributory neg, even if admitted, is no defense to willful and wanton injury by D (2) However, if Ps negligence rises to a similarly high degree of contributory neg as Ds conduct, then Ps claim is barred. (3) Doctrine of Last Clear Chance P must allege and prove that (a) P, by neg, put himself in a position he couldnt escape (b) D saw the perilous position of P (c) D had the time and means to avoid the accident (d) D failed or refused to use every reasonable means to avoid injury to P (e) P was injured as a result of Ds failure or refusal (4) Under last clear chance doctrine, P may recover full damages by showing that D had the LCC to avoid injury to P. If P fails with last clear chance doctrine, then P receives nothing.

Rainey 23 iii) Downing v. United Auto Racing Association(1) General Rule: Contributory negligence is not a defense if the defendant was reckless. Illinois says that contributory negligence can be a defense if Ds act is reckless. (2) Should a jury be able to apportion dmgs between a neg P and a willful and wanton D? (3) Reckless is so wide- it can be close to intentional tort or very close to mere negligence. (4) Pure comparative jurisdiction- recklessness would only be a fact in coming up with the numbers of fault. (5) Here, court decided that trial court properly permitted the jury to consider the Ps comparative fault as an offset to compensatory damages for defendants recklessness. (6) Two different views were adopted: (a) The equitable principles of comparative fault outweigh the social opprobrium associated with willful & wanton acts, because of the think line between ord neg & willful and wanton (b) The social stigma attached to willful and wanton conduct override the equitable principles of comparative fault, because of the large difference in degree of culpability. iv) Question of apportionment with a negligent P and an intentional tort- Illinois said no. v) Fault acts or omissions of a person which are a proximate cause of injury. vi) Recklessness is based on acts done while aware of serious risks, on the conscious ignoring of serious risks, on ignoring the reasonable conclusion from known facts that there is a serious risk associated with ones conduct III) Assumption of Risk a) Express Assumption of Risk i) Involve agreements by P to accept risks created by D. Almost always written releases. ii) Enforceability of release involves 2 questions (1) Does public policy permit releases in connection with the activity? (2) If it does, does the particular release provided by P merit enforcement? iii) Wagenblast v. Odessa School Districtiv) Element #1: General rule: Courts have generally recognized that subject to certain exceptions, parties may contract that one shall not be liable his or her own negligence to another v) Element #2: Policy considerations can limit freedom to waive liability because it is an area where D cannot opt-out. Look to see if there are public policy considerations that outweigh our traditional regard for the freedom to contract where public policy reasons for preserving an obligation to care owed by one person is more important (1) Ex: banks cannot exculpate their negligence for safety deposit boxes (2) Common carrier (3) Employer-employees (4) Factors to Consider: (a) 1. Endeavor of a type generally thought suitable for public regulation (b) 2. Party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public.

Rainey 24 (c) 3.Party is willing to perform this service for any member of public who seeks it or meets certain standards (d) Such programs are open to all students who meet certain skill and eligibility requirements (e) 4. Because of essential nature of service, party invoking exculpation possesses a decisive advantage of bargaining strength. (f) 5. In exercising a superior bargaining power, party confronts public with a standard adhesion contract and makes no provision where a purchaser may pay additional fees and obtain protection against negligence. (g) 6. The person or property of members of the public seeking such services must be placed under the control of furnishes of services subject to risk of carelessness. (h) The more characteristics, the more likely that waiver is invalid or release is against public policy. vi) Element #3: Public policy does not prevent you from opting out but the specific waiver is invalid because the parties intentions are not clear and specific. It needs to be clear language that is negotiated. Negotiation is important because a party needs to be able to bargain. vii) Turnbough v. Ladner-Those who wish to relieve themselves from responsibility of lack of due care or neg should do so in specific and unmistakable terms. Scuba diving focuses on circumstances of contractual waiver. Even if policy considerations do not require a limitation of a general rule, question is rather contract agreement can stand. (1) Words should express clearly and precisely as possible the extent to which a party intends to be absolved from liability (2) Clear and concise waiver (3) Has to be negotiated- Especially when there is not a balance of power- it would be unfair to allow the employer to use power to force signing of waiver b) Implied Assumption of Risk i) P has not made an explicit agreement to excuse Ds negligence but P has acted if he or she was willing to encounter the risks presented by the negligence. ii) Primary implied assumption of risk is not a true defense, but a challenge towards the initial determination of a duty. Can protect defendants from liability where risks cant be eliminated or prohibitively expensive AND those risks are obvious to those that encounter them. (1) Primary assumption of risk involves no duty to protect plaintiff from that danger because it is intricately and inherently linked to the activity. (2) If risk is inherent to activity, there may not even be a duty to protect by the defendant. EX: injured while watching softball game, student injured in collision during football drill. iii) Second implied assumption of risk- NEED NEGLIGENCE OF THE D AS WELL IN ORDER TO USE DEFENSE OF SECONDARY ASSUMPTION OF RISK iv) General Rule: The general rule was that contributory negligence and secondary implied assumption of risk were complete bars to recovery. v) Secondary implied assumption of risk zooms in on particulars of that case. vi) Risk is not an inherent part of the activity. vii) There is a duty to protect but P actively takes on a risk himself at the same time. viii)Secondary implied assumption of risk is a true defense. ix) It arises when the P knowingly encounters a risk created by the Ds negligence.

Rainey 25 x) Implied Assumption of Risk Requires knowledge and appreciation of the risk and a voluntary choice to encounter it xi) Schroyer v. McNeal- overlap of assumption of risk & contrib. neg (a) P has duty against herself not to violate her own interests. P as a matter of law is responsible for her own injuries. She knew area was covered with ice and was slippery. She took an informed chance. (b) The difference between the two is that contrib. neg is a proximate cause of the injury, and AOR of accident defeats recovery because it is a previous abandonment of the right to complain of the injury.. (c) Secondary IAR is A DEFENSE. It requires D to prove P (1) had subjective actual knowledge of the risk, (2) had subjective actual appreciation of its nature and extent, and (3) voluntarily accepted it. (i) Secondary Qualified AR adds 4th req D was required to show that it was objectively unreasonable for assumption of risk in order to bar recovery 1. Almost no difference b/w contrib. negligence. Every case of SQIAR is also a case of cont negligence. (d) Contrib Neg is objective. Negligence that contributes to a particular accident which occurs. Requires only to prove that P should have known the risk and that a reasonable person would not have behaved as P did (i) Objective standard What would reasonable person do in the situation of the victim? (e) Secondary Unqualified Implied Assumption of Risk bars or reduces Ps recovery even if P acted reasonably. (Schroyer case) (i) Subjective standard to look at what P actually knew or what she should have known in the circumstances of that particular P (f) Both defenses apply when a plaintiff knew and appreciated and voluntary accepted risk and a reasonable person either would not have accepted risk or would not have behaved as plaintiff behaved. They both are complete bars in contributory negligence jurisdictions. (g) Usually, application of either defense will produce the same result but this is not the case here because contributory negligence could have been a question for the jury while assumption of risk was decided as a matter of law because P was fully aware of dangerous condition of premises. xii) Davenport v. Cotton Hope Plantation- Only some jurisdictions keep assumption of risk when comparative negligence is adopted. (1) distinguishing between AOR and Cont Neg (a) Rhode Island Distinguishes between AOR and Cont Neg. AOR is measured by a subjective standard while contrib. is a reasonable person standard. (i) Justification: Assumption of risk focuses on subjective while contributory negligence focuses on objective standard. (ii) Doubt with RI approach- it can give a careless victim better treatment than a careful victim in majority of jurisdictions (b) West Virginia Abolished AOR. It found AOR incompatible with the comparative fault system. The court adopted a comparative assumption of risk rule: P is not barred from recovery by AOR unless his degree of fault arising therefrom equals or exceeds the combined fault of D

Rainey 26 (i) Absolute defense of assumption of risk was not compatible with fault system. (c) Conclusion: West Virginia had the best model. It does not matter if P is knowing or negligent, but as long as they are 50% or less at fault- should not bar recovery. c) The main reason for having the defense of assumption of risk is not to determine fault but to prevent a person who knowingly and voluntarily incurs a risk of harm from holding another person liable. d) Difference between primary assumption of risk and secondary assumption of risk e) HYPO- P did not see the risk. i) There is no assumption of risk but there can still be contributory negligence. Different Approaches to Contributory Negligence Some jurisdictions with contributory negligence treat assumption of risk as an absolute bar. Some jurisdictions have moved on to comparative jurisdictions and kept assumption of risk as a complete bar because there are two different tests between subjective and objective. Some jurisdictions appreciate the conceptual difference between the two defenses of contributory negligence and assumption of risk but use them both as factors to determine negligence of the plaintiff. The majority of states will say that assumption of risk is factored into general balance exercise in determining negligence between parties IV) Mitigation and Avoidable Consequences (335) a) General Rule: Plaintiffs actions AFTER encountering the Ds injurious conduct can affect the plaintiffs recovery with mitigation. b) Failure to mitigate precludes recovery of any additional damages caused by aggravation of the injury. c) Victims have already suffered a loss and now courts are imposing duties on the victim. d) In determining percentages of fault, failure to mitigate is fault against oneself that should have an impact on recovery. e) Negligence v. Mitigation i) Mitigation does not serve as a complete bar unless failure to mitigate is so overwhelming that it blocks out claim completely. ii) Negligence usually happens before the event while mitigation happens afterwards. iii) Mitigation is looking at damages- not questioning ability to recover. f) Miller v. Eichhorn- The term fault includes unreasonable failure to avoid injury or to mitigate dmgs. This clearly provides that the unreasonable failure to mitigate dmgs means fault as used in the statute. When determining fault according to statute, the trier of fact should consider the nature of the conduct of each party and extent of causal relation between conduct and damages claimed. i) D proves that regular doctor visits by P would have caused her condition to be better. a) Klanseck v. Anderson Sales & Service, Inc.- An injured party has a duty to exercise reas care to minimize dmgs, including obtaining proper medical or surgical treatment. b) Law v. Superior Court- Seatbelts i) Legislature distinguished between unreasonable failure to avoid an injury and mitigation of damages.

Rainey 27 ii) Court sees failure to use seatbelts is not so much as failure to use care to avoid endangering others but part of obligation to conduct oneself reasonably to minimize damages and avoid foreseeable harm to oneself. iii) Comparative negligence statutes apply the doctrine of avoidable consequences to preaccident conduct because fault includes any unreasonable failure to avoid an injury or to mitigate damages. iv) P uses 3 arguments- 1. Seatbelt defense would confer a windfall on tortfeasors because tortfeasors will pay less than otherwise would. 2. It would be difficult to prove whether or not seat belt would have made a difference. 3. Seat belt defense would open up whole area of unforeseen consequences like lack of airbags to avoid injury. (1) Court says that are just considering seat-belts here. (2) Court says that seatbelt defense can be considered by the jury due to the fault of the plaintiff. c) A majority of decisions have rejected the decision of the Law Ct saying that a duty to mitigate arises only after a tortfeasors negligent act. Ps pre-accident failure to fasten a seatbelt contributes nothing to the transpiring of the accident itself Different Ways of Handling Seatbelts: o 1. Prohibit introduction of seatbelt non-use for any purpose o 2. Some states have imposed precise limits on percentage of responsibility a jury is permitted to assign to a plaintiffs failure o 3. Imposing a 1 percent limit on that liability example o 4. Using duty analysis to say that there is no statutory or common law duty to wear a seatbelt in the backseat of a vehicle. II) Immunities a) Sovereign Immunity i) Give definition but WILL NOT BE ON EXAM ii) Generally, Federal and State governments waive their immunity. Municipalities generally allow themselves to be sued for proprietary activities, but not governmental activities. b) Interfamilial Immunity i) General Rule: Common law rules traditionally prevented suits by one family member against another. This bar was meant to preserve family harmony, to protect insurance companies from false claims, and to avoid using judicial resources just to transfer wealth from one family member to another. ii) Common law immunities have been widely modified. iii) Boone v. Boone(1) General Rule: Interspousal immunity is a common law doctrine based on the legal fiction that husband and wife share the same identity in law. At common law, it was both morally and conceptually objectionable to permit a tort suit between two. Reasons for having immunity: (a) 1. Suits between spouses were fictitious and fraudulent (b) 2. Interspousal suits would destroy domestic harmony (2) Georgia recognizes interspousal immunity, barring personal injury actions between spouses except where there is no marital harmony to be preserved and where there exists no possibility of collusion between spouses. (3) SC finds it contrary to natural justice to hold that the wife is precluded from action against her husband because of marital status.

Rainey 28 (a) There is no reason to presume married couples are likely to engage in collusive action (b) Insurers can investigate claims and find out if parties are committing fraud. (c) Precluding claims does not foster domestic harmony. (4) Conflict of laws here between Georgia and SC. Foreign law may not be given effect in state if it is against good morals or natural justice. iv) Broadwell v. Holmes(1) Although states have continued to modify parental immunity, they have established no uniform std for imposing parental liability. (2) Goller Std: No immunity except in those cases involving the exercise of parental authority over the child and/or the exercise of ordinary parental discretion w respect to the provision of care. (3) Parental relationship is unique and trad neg concepts cannot be applied in relationship situations. There are minor variations: (4) Reasonable Parent Approach: What would an ordinary, reasonable, and prudent parent have done in similar circumstances? (5) Holodock Approach: When there is a breach of a recognized duty ordinarily owed apart from the family relationship, the law will not withhold liab merely because the parties are parent and child. (6) This ct holds: The court system is not an appropriate or effective forum for resolving controversies between parent and child, when such controversies necessarily involve ethical, religious, moral, or cultural values. (7) TN adopts same standard and negligent operation of an automobile is not protected conduct under the standard. (8) Policy- Families operate according to very different values. There are so many different perspectives on raising children that society is reluctant to impose one standard on all. There must be a scope of freedom that is protected so parents are free to act without society interfering via social agencies or via tort law. Parental Immunity is limited to conduct that is 1) exercise of parental authority 2) performance of parental supervision 3) provision of parental care and custody Different Approaches to Parental Immunity: 1. In Illinois, the court limited immunity to conduct that concerns parental discretion in discipline, supervision, and care of the child. 2. California- reasonable parent standard- What would an ordinary reasonable and prudent parent have done in similar circumstances? 3. New York- Negligent supervision of children was not a tort actionable by the child because it is virtually impossible to supervise a child 24 hours a day. No reasonable parent standard should be applied a uniform standard of parental conduct across spectrum of different backgrounds. 4. Wisconsin- Exercise of discretion in care of child, immunity should protect conduct inherent to the parent-child relationship like provision of good, clothing, housing, medical and dental services, and other care 5. A small number of states have no parental child immunity.

Rainey 29 III) Statutes of Limitation and Repose a) Both designed to ensure that memories are fresh- evidence, minds of witnesses, finality b) Applies to intentional torts as well c) Statute of Limitation- the time P should reasonably have known that he had a legal claim i) Hanley v. Citizens Bank of Massachusetts- Statute of Limitation begins running from the date the PLA discovered the injury or SHOULD HAVE discovered the injury. P required to be reasonably prudent in investigating cause of injury. ii) Kern v. St. Josephs Hospital- Doctrine of Fraudulent Concealment may toll the SOL. (1) Fraudulent Concealment d) Statute of Repose- Time when a D committed the act or omission that is the basis for Ps claim and bars the claim unlessit is filed w/in a certain period after that time, even if SOL would not bar i) Sedar v. Knowlton Construction Companyii) A statute of repose potentially bars Ps suit before the COA arises iii) SOL begin to run from the time a person could have discovered their claim iv) SOR begins to run from the time of the tortuous conduct v) States have different interps about whether FC tolls SOR. SOR may also reduce the effect of the disability exception. (Time of legal disability is not included in a SOL) Damages Compensatory, punitive, and nominal. Nominal are needed to get punitive in some instances. Compensatory Meant to be value of actual harm caused by D. Can be either general or special General dmgs (noneconomic) includes loss of consortium, pain and suffering. Difficult to quantify Special Dmgs known as economic dmgs. For readily calculable expenses like med, funeral expenses, and lost earnings. IV) Apportioning Damages Among Liable Defendantsa) Involves situation where tortious actions are caused by multiple defendants b) General Rule- In common law, the doctrine of joint and several liability is the norm. Defendants fault could weigh differently but common law approach says that A can recovery everything from each defendant as long as it does exceed awarded damages. A can choose which defendant to get damages from. c) When there is more than one D responsible there are 2 solutions: i) Joint & several liability P is entitled to settle his entire judgment against any one of the Ds whose negligence was a proximate cause of his harms. This means P could get entire sum from one of them or could collect part from one and part from another. After this redistribution, one D could sue another for contribution. ii) Several liability Each D is assigned an individual obligation to P. P may collect only that amount from each D and there are no redistribute procedures. This is now common. d) Joint and Several Liability i) At common law, there was strong emphasis on maximizing likelihood that the P would be able to collect the full amount. P could enforce entire judgment against each one of the defendants. ii) P could not collect amount greater than the full amount. iii) Originally, no recovery from other defendants when the D pays everything when he does not have 100% fault. The theory was that the law should not aid wrongdoers.

Rainey 30 (1) But then, common law developed contribution. (2) The next rule was to equally divide the judgment by the number of debtors who were liable on the judgment. The defendant who pays everything can recover only enough to make everyone pay equally. (3) D who is targeted by P pays everything with no contribution allowed Contribution allowed At first, damage divided equally between all defendants where person who pays can recover only enough so he pays his equal share Comparative contribution iv) Lacy v. CSX Transportation- Jurisdictions are divided about whether or not to inform jury about potential consequences of allocations of fault in J&SL situations. The Court decides that it is generally an abuse of discretion for the trial court to instruct the jury/ permit argument by counsel regarding operation joint and several liability where the purpose is to communicate to the jury the potential post-judgment effect of their assignment of fault. (1) Jury instructions about how a particular D will ultimately bear a greater portion of Ps loss are speculative. i) Sitzes v. Anchor Motor Freight- Issue: Comparative contribution makes the right of contribution equitable to the degree of fault between each tortfeasor. This is in keeping with the trend toward reducing the unfairness in tort law. (2) What happens to joint and several liability when comparative fault systems are adopted? (3) In West Virginia, after adopting 49% comparative negligence scheme, the Court decided that it also needed to adopted a comparative contribution scheme where defendants damages are based upon their relative degrees of primary fault of negligence. (4) joint and several liability was still maintained, but actual damages that each defendant owed was done not by divided overall damages by number of defendants but upon relative degrees of primary fault or negligence and defendants could settle contribution in court v) Problem with Joint and Several Liability: Even with minimal responsibility to defendants like 1%, 1% and 97% (1) In Lacy, jury solved this problem by saying that driver was sole proximate cause of all the others. (2) Joint and severally liability becomes especially hard when fault greatly differs (3) 1% can trigger full liability under joint and several liability. Policy: With joint and several liability, tort law is protecting plaintiff. With several liability, tort law is protecting the defendants. Plaintiff is a victim after all and joint and several allows plaintiff to recover in total from a defendant who does have the money. Several Liabilitye) States have mostly eliminated or modified joint and several liability. f) Several liability is a system in which each defendant is assigned an individual obligation to the plaintiff and plaintiff may only collect that amount from each defendant. No procedures exist under several liability where defendants can sue each other because no defendant could have paid an amount in excess to share.

Rainey 31 g) Several liability is there general rule with joint and several liability as the exception for specific cases where multiple defendants have contributed to a single indivisible injury. Policy Implications and Alternatives to Several Liability Intermediate solution between joint and several liability: p.381- NJ Statute that allows for full amount to be recovered from any party whose negligence is over 60% or use several liability unless P cannot recover at least 50% then go to joint and several liability. Some states like Hawaii have retained joint and several liability for some parts of tort law like intentional torts and strict liability. These activities and dangerous, and there is more incentive to protect the victim. h) Piner v. Superior Ct- Problem of indivisible injury- One loss, Two events: P suffered two car crashes in the same day, both of them resulting in an indivisible injury. The injury could not be attributed to any specific crash i) Old Arizona General Rule: If cannot apportion, it can serve as a bar to recovery. If P cannot divide the indivisible injury, then P was denied relief and the culpable parties were relieved of responsibility. ii) Holding: The rule of indivisible injury is left intact. P is relieved of apportioning dmgs according to causal contribution. The entire amt of dmg resulting from all contributing causes is the total amount of dmgs recoverable. iii) The fault of all actors is compared and each D is severally liable for dmgs allocated in direct proportion to that Ds % of fault. iv) The burden of proof should be on defendants. v) Divisible Injuries It is possible to establish which actor caused which harm. The butfor test for causation could assign responsibility for each injury. Each D pays for the injury he causes. P must establish which D caused which harm or recover nothing vi) Indivisible Injuries Lack of precise info about who caused what part of an injury. The general rule is that where injuries are indivisible, the traditional rule in several liability as established by Piner is that Ds must share the liability between them or can later apportion damages if defendants want to argue their actual shares. vii) Courts justify the abolition of joint and several liability with requiring defendants who cause indivisible harm to share liability because it cannot be the case where an innocent victim is denied any relief bc damages caused by independent wrongdoers resulted in an indivisible and un-apportionable injury. i) Roderick v. Lake- Alternative Liability- 1 loss, one event- 2 horse owners, 2 different horses i) Wrongdoers should be left to work out between themselves any apportionment and the burden shifts to each defendant to absolve himself relieving the wronged party of the duty of apportioning fault. ii) Owners found jointly and severally liable. iii) Hold: Where Ds are independent but concurrent tortfeasors and each liable for the dmg caused by him alone, but apportionment is incapable of proof, the innocent party should not be deprived of redress. iv) The burden shifts to Ds to absolve himself, thereby relieving the P of apportioning fault. v) Concerted Action and Apportionment of Liab: Some think of concerted action as a single action and conduct and therefore all Ds are liable for entire amount. Other states have dealt with it by assigning only joint liab for their assigned percentage of fault. There is justification to protect the victim with concerted action on the other side.

Rainey 32 vi) What if the shares cannot be identified by the plaintiff? (1) With joint and several, the defendants problem is to apportion. (2) In several liability, plaintiff must apportion shares of liability. What if is there is an injury that cannot be divisible and can be apportioned? Then courts may revert back to joint and several (3) General rule- if cannot apportion, it serves as a bar to recovery with joint and several liability vii) Several liability is more fair in bulk of cases. Concerted action is an unusual case. j) Absent or Immune Actors (386) i) Sometimes, it is impossible for all actors who are engaged in tortious activity to be identified and be sued because actors identity is unknown or because that actor is immune from liability. ii) How to treat a missing actors conduct in allocating responsibility for Ps injury? iii) JSL obviously it doesnt matter if there is an absent actor because only one D can be wholly responsible. iv) However, some states now allow the conduct of an absent (immune) tortfeasor to be evaluated where jury assigns a share of responsibility to immune actor even though he will never pay dmgs. This places the cost on P. v) Immunities are specific because D has a special relationship with P like family member or governmental immunity. vi) Rule: No defendant is liable to any person seeking recovery for any amount in excess of the proportion of fault attributable to that defendant. vii) If missing parties are not included, the remaining defendants will be potentially liable to plaintiff for an amount in excess of their proportion of fault. viii)Sullivan v. Scoular Grain Company of Utah(1) Issue: Can a jury apportion fault to Ps employers that contributed to accident even though employers are immune from suit under Act (2) The intention of the comparative neg statute is to limit Ds liab to his proportion of fault. Therefore, failing to include employers violates purpose of Act by subjecting other Ds to liab in excess of fault. (3) D cannot be liable to any person seeking recovery for any amount in excess of proportion of fault so apportionment should involve all even if that particular defendant is no present. (4) Going back to making D pay more than liable goes back to joint and several liability which Utah abolished. (5) P is not required to join all Ds in single action. P may join a previously omitted D to share liab w other D. D may also join other D to spread liab. ix) Some states allow apportionment of non-party fault. x) Some states still have joint and several liability but allow the consideration of non-party negligence for the limited purpose of determining whether all or none of the total fault can be attributed to non-party. xi) Some states refuse to allow a jury to consider the fault of non-parties in apportionment. xii) Modern Trend with it comes to immunity and insolvency: (1) Evaluate share of absent parties and then re-distribute with absent parties included so that defendant does not pay more than its proportionate share of plaintiffs damages and Include non-party in apportionment

Rainey 33

k) Intentional Conduct as Comparison with Negligent Conduct (391) i) Referring to relationship between Defendant #1 and Defendant #2 ii) Sometimes there is negligence on the part of one actor and an intentional tort on the part of another. Some jurisdictions ignore Ps neg conduct if D committed an intentional tort. Others permit a comparison. ii) Slack v. Farmers Insurance Exchange- intentional and negligent tortfeasors who jointly cause indivisible injuries. (1) Here, negligent tort-feasor created risk for intentional tortfeasor. (2) Fault contemplates more than mere negligence, and includes intentional acts. Accordingly, we conclude that several liability by degree or percentage even when one of several tortfearsors commits an intentional tort that contributes to an individual injury. (3) A negligent actor is only responsible for his contribution to an injury, irrespective of whether the other tortfeasor accidentally or purposefully injured the victim. Fault is distributed and liability is only based on degree of fault, so the result is not different when there is an intentional wrongdoer. (4) Fedtke believes dissenting opinion here makes more sense. Dissent: (a) Should be NO differentiation between intentional acts and negligent acts in its mandate to apportion liability among tortfeasors (b) A tortfeasor should not be allowed to reduce his liability by shifting some or all of the blame on to an intentional tortfeasor who actions constitute the precise risk for which negligent tortfeasor has been found liable for not preventing. iii) View #1: Some jurisdictions continue the idea that Ps contributory negligence is ignored if the D was an intentional tortfeasor. iv) View #2: Other jurisdictions permit a comparison of negligent and intentional tort conduct. v) View #3: Another view is that when a negligent tortfeasor breaches a duty to protect a plaintiff from an intentional tort is liable, a negligence defendant could be assigned responsibility for intentional tortfeasor and negligent defendant could collect on contribution judgment later. vi) Most states do not allow apportionment of exemplary (punitive) dmgs. They require an amount of punitive dmgs be determined for each D l) Risk of Insolvency i) Under several liab, without special rules for insolvent Ds, if one D is insolvent (or unidentifiable), P will not be able to collect that share. Some cts call these orphan shares ii) A few states use reallocation rules to spread the insolvent Ds share either among the solvent Ds or among P & solvent Ds. iii) Under several liab, without special rules for insolvent Ds, if one D is insolvent (or unidentifiable), P will not be able to collect that share. Some cts call these orphan shares iv) A few states use reallocation rules to spread the insolvent Ds share either among the solvent Ds or among P & solvent Ds. v) Nominal difference between immunity and insolvency (1) Insolvency- cannot enforce judgment because there is no money

Rainey 34 (2) Immunity- cannot be brought to suit vi) In simple two party scenario, between A and insolvent tortfeasor, then A would not recover. vii) Problem with indivisible injury does not really apply in joint and several liability. The general rule is that where injuries are indivisible, the traditional rule is that defendants must establish which defendant caused which harm or share the liability between them. viii)Statutes for Insolvency in textbook V) Vicarious Liability a) Vicarious Liab Actor is responsible for someone elses tortious conduct. i) Types: Respondeat Superior and vehicles owners for driver of their car ii) At common law, no vicarious liability for parents for children with some exceptions.

Respondeat Superior (399) iii) A plaintiff injured by an employee may seek damages from the employer for two causes of action. (2 DIFFERENT ACTIONS) (1) That employer is vicariously liable for the employees tortious conduct. (2) That the employer is responsible for some other negligent conduct, such as negligent supervision or negligent hiring. (a) Here, must shot that employers supervision was worse than the supervision of a reasonable employer. Employer can be negligent himself. (b) There is potential dual liability for his own negligence and indirect vicarious liability for employees action if the employee was acting within the scope of employment. iv) Employer cannot escape liability- It is not about causation just the fact that the employee acted within scope of employment. v) Employer can be totally free from negligence, but tort law still subjects employer to liability for negligent acts by an employee committed within scope of employment. VI) The main difference between vicarious liability and other cases of apportioned liability discussed in the chapter is that in those other cases, each of the multiple defendants acted tortuously. i) Trahan-Laroche v. Lockheed Sanders(1) Respondeat superior - empr may be held vic responsible for the tort acts of an empee within the scope of employment (2) The employers duty to exercise reasonable care to control its employee may extend to activities outside the scope of employment. His activities were not closely supervised and he was involved in several accidents. His equipment and vehicle was not regularly inspected. (a) More flexible ordinary negligence of the employer (b) Vicarious liability ONLY operates within scope of employment. (3) An empr may be directly liable for damages from negligent supervision of its employees activities. (4) To prove RS, P must show that employee acted negligently. (5) There is no req that P show anything about employers conduct other than employers participation in the employer-employee relationship. (a pseudo-SL)

Rainey 35 (6) P who wins RS judgment is entitled to enforce judgment against empr and/or empee. (7) Most states hold that there can be no right to contribution between employer and employee. (a) Indemnification is Ds right to full compensation for all dmgs paid due to the tortuous conduct of some other actor. (b) Some states employer may sue employee to recover all of the dmgs. (c) Other states allow an employee to indemnify employer only if employees conduct was reckless/intentional. ii) OConnor v. McDonalds Restaurants of California(1) The master is only liab where servant is acting in the course of his employment. (a) Going and Coming Rule Empr is ordinarily not liable for empys negligence while commuting to and from work, unless part of duties or on request from empr (2) Special errands, outside the regular scope of employment, may be covered under employment when authorized by employer. (3) In determining whether an empee has abandoned his business errand for a personal objective, some of the following factors are considered. (4) Rule: Where the employee may be deemed to be pursuing a business errand and a personal objective simultaneously, he will be acting within the scope of his employment. (5) Test for complete abandonment pursuit of business errand (a) 1) Intent (b) 2) Nature, Time and Place of Conduct (c) 3) Work hired to do (d) 4) Employers reasonable expectations (e) 5) Employees freedom in performing duties (f) 6) Amount of time consumed in personal activity iii) Alternative Tests for Scope of Employment: (a) ROT2nd: 228. 2D Restatement of Agency (1) Conduct of a servant is within the scope of employment if, but only if: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; (c) it is actuated, at least in part, by a purpose to serve the master, and (d) if force is intentionally used by the servant against another, the use of force is not unexpected by the master. (2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master. b) Foreseeable: i) Whether the tortuous conduct was foreseeable in light of the duties the employee was hired to perform. Conduct is not so unusual that it would seem unfair to include the loss in cost of employers business. It needs to be typical or broadly incidental to enterprise of employer. ii) Santiago v. Phoenix Newspaper- General Rule: Parties have a perfect right in their dealings with each other, to establish the independent contractor status in order to avoid the relationship of employer-employee.

Rainey 36 (1) Whether the employee was an independent agent (No Vic Liab) or an employee. (a) Restatement of Agency a servant is a person employed to perform services in the affairs of another who is subject to the others control or right to control. (b) Contractual language is not determinative of the parties. The objective nature of the relationship is determined upon the analysis of the totality of the facts and circumstances (c) In determining whether an employer-employee relationship exists the factfinder must evaluate a number of criteria (i) 1. Extent of control exercised by master over details of work and degree of supervision (ii) 2.Distinct nature of particular business (iii) 3. Specialization or skilled occupation- Jury is more likely to find a masterservant relationship where the work does not require the services of highly educated or skilled. Employees services were not specialized. (iv) 4. Materials and place of work- if employer supplies tools and employer is on fixed route, then likely find master-servant, plaintiff provided some supplies but company provided route (v) 5. Duration of employment- continuous working relationship- more likely 6. Method of payment 7.Relationship of work done to regular business of employer- if work is part of regular business, more likely to find an worker an employee instead of consultant 8. Belief of parties and community belief An exception to the rule precluding Vic Liab for independent contractors applies where they are hired to perform an inherently dangerous task. When independent contractor is performing work that is inherently dangerous (EX: demolitions), employer cannot claim protection from respondeat superior. Do intentional torts change the situation? Should the employer bear responsibility for intentional torts? The employer may be opening the opportunity door. View #1 One approach is that California has held that a sexual tort will not be treated as within the scope of employment unless its motivating emotions were attributable to work-related events or conditions. o Negligence opens the door to intent- dissent got it right in Slack case View #2: In some cases, courts have held that the circumstances of employment create a special risk of intentional tort and for that reason will impose respondeat superior liability. o Example: manager of an inn raped a guest- employer sets scene Relationship of power- young person who was victim sexual abuse by a member of the clergy Was tortious act primarily employment rooted? An intentional tort has the potential to break vicarious liability. There are different exceptions with opportunity, power, etc. Policy Justifications for Employer-Employee Liability Employers should pay because she can select and control her employees, and thereby prevent injuries due to negligence.

Rainey 37 Employers are in a position to spread the costs of accidents by purchasing liability insurance and raising the price of their products to reflect the inherent accident costs of the enterprise. This doctrine encourages employers to ensure- the cost of insurance gets incorporated to the price of the product, which consequently reflects more accurately the actual costs of producing it. The employee acts for the master in the performance of the masters work. In the course of that work, he creates risk to further the masters goal, including the risk of injuries due to negligence. Where such risks are created for the masters benefit, it seems intuitively fair to ascribe the conduct to the party for whose benefit it was undertaken. On the simplest level, if the master did not have the work done by another, he would have to do it himself, and would be liable for any torts committed in doing so. Under respondeat superior, the acts done at the masters bidding are treated, for liability purposes, as though he had performed them himself.

1. Deep Pocket Theory- ensures that a plaintiff can sue someone who is likely to have assets or insurance 2. Risk Spreading Theory- employer is better situated than either the employee or the plaintiff to cover the loss by reimbursing itself through higher prices etc. Typically, employer is better situated to cover the loss by charging higher prices. If employee has to carry the loss- it is much harder. 3. Enterprise Theory- theory reflects the view that even though an employer was not at fault for the way in which it engaged in a particular activity, the activity ought to pay its own way by paying for risk it creates 4. Risk Avoidance Theory- if an employer is required to pay for tortious acts of its employees, it will have an incentive to discover ways to minimize those acts and minimize harm Vicarious Liability for Vehicle Owners (411) c) State statutes make vehicle owners vic liab for the tortuous conduct of all users of their vehicles. d) Levitt v. Peluso- (EXAMPLE OF IMPORTANCE OF INSURANCE CONSIDERATIONS) Statute imposes civil liability on absent owner of a negligently used or operated vehicle when the use results in death or injury. P pedestrian blinded by egg thrown from moving car, sues car owner by vicarious liability for negligently allowing use of the car. Court found that being hit by an egg is not part of the use and operation of a car, cause was throwing the egg. i) The court stated that the broadening of the statute to include things like an egg being thrown should be accomplished through legislation ii) Holding: In order to impose vic liab under Vehicle and Traffic Law the operation of driving function of an auto or the condition of the vehicle itself must be the prox cause iii) Has to arise out of inherent nature of automobile iv) Insurance is a factor in swaying policy decisions. In absence of car owner, liability can be imposed when: 1) death/ injury of person/property 2) harm is result of operators negligence 3) negligence arose from use/operation of the vehicle 4) operator had owners permission to use

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To establish causal connection between the injury and liability, Use and operation test: 1) accident arises from inherent nature of automobile; 2) accident arises within the territorial limits of the car while being used/loaded/unloaded; and 3) car must produce or be a proximate cause of the injury, not merely contributed. Gholson Test- A bus driver was stabbed with he refused to let someone get off at an unmarked spot. He was not injured as part of the use and operation of a motor vehicle. 1. Accident must have arisen out of the inherent nature of the automobile 2. Within natural territorial limits of an automobile and the actual use 3. Automobile must not have contributed and but itself must be a proximate cause of injury Policy behind vicarious liability for vehicles: The rationale behind the desire to compensate the victim for imposing vicarious liability to vehicle owners who are likely to have insurance. Limits on scope of coverage of automobile insurance suggested to this court that similar limits on vicarious liability might be appropriate.