Prima Facie Case Battery a) An act by the defendant which brings about harmful or offensive contact to the plaintiffs

s person b) Intent on the part of the defendant to bring about harmful or offensive contact to the plaintiffs person; and c) Causation

Prima Facie Case Trespass to Chattels a) An act of defendant that results not too remotely in something physically contacting property possessed by plaintiff; b) Intent to perform he act bringing about the interference with plaintiffs right of possession; c) Causation; d) Damages(more than nominal)

Prima Facie Case Assault a) An act by the defendant creating a reasonable apprehension in plaintiff of immediate harmful or offensive contact to plaintiffs person b) Intent on the part of the defendant to bring about in the plaintiff apprehension of immediate harmful or offensive contact with the plaintiffs person; and c) Causation Prima Facie Case Conversion a) An act by defendant interfering with plaintiffs right of possession in the chattel that is serious enough in nature or consequence to warrant that the defendant pay the full value of the chattel; b) Intent to perform the act bringing about the interference with plaintiffs right of possession; and c) Causation

Prima Facie Case False Imprisonment a) An act or omission to act on the part of the defendant that confines or restrains the plaintiff to a bounded area b) Intent on the part of the defendant to confine or restrain the plaintiff to a bounded area; and c) Causation Defenses/Privileges to Commit Intentional Torts a) b) c) d) e) f) g) h) Consent Self-Defense Defense of Others Defense of Property Recapture of Chattels Privilege of Arrest Necessity Discipline

Prima Facie Case Intentional Infliction of Emotional Distress a) An act by defendant amounting to extreme and outrageous conduct b) Intent on part of defendant to cause plaintiff to suffer severe emotional distress, or recklessness as to the effect of defendants conduct c) Causation d) Damages severe emotional distress.

Prima Facie Case Negligence

a)

Prima Facie Case Trespass to Land a) An act of physical invasion of plaintiffs real property by defendant; b) Intent on defendants part to bring about a physical invasion of plaintiffs real property; and c) Causation

The existence of a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury; b) Breach of that duty by the defendant; c) That the breach of duty by the defendant was the actual and proximate cause of the plaintiffs injury; and d) Damage to the plaintiffs person or property.

Defenses to Negligence a) Contributory Negligence b) Assumption of Risk c) Comparative Negligence

Assumption of Risk a) An affirmative defense to a negligence suit by the defendant contending that the plaintiff knowingly and voluntarily subjected himself to the hazardous condition wholly absolving the defendant of liability

What does fault mean? Intention or Negligence

What does intention mean? Subjectively intending harm

Calculus of the Risk B<PL There is a duty of care when the burden is less than the product of the probability of resulting harm and the magnitude of the loss What does negligence mean? Not taking the care a reasonable person would under the circumstances to avoid harm though not consciously intending harm

Professional Standard of Care That degree of care as reasonable person in the particular profession would exercise.

Dumbass Rule When the judge believes rational people would have to come to the same conclusion regarding a fact, he may dismiss a case, tell the jury what they have to find, or rule against the jurys verdict

Legal Malpractice A lawyer will be held liable when a loss to a client is the proximate result of a want of a degree of knowledge and skill ordinarily possessed by others in the profession similarly situated, from an omission to use reasonable care and diligence; or from failure to exercise good faith in making a best judgment. Fisher v. Carrousel Motor Hotel A battery may be committed even though there is no physical contact with the persons body, so long as there is contact with something that is attached to, or closely identified with, the body

Res ipsa loquitur When it is highly probable that an injury is due to negligence of the defendant, and the defendant has better access to the evidence concerning the injury, the doctrine of res ipsa loquitur creates an inference that the defendant was negligent, and puts the burden on defendant to introduce contrary evidence.

Assault and Words Alone Unaccompanied by gestures, words alone are usually not enough to give rise to an objectively reasonable apprehension of imminent bodily contact (but words can make otherwise non-assaultive gestures reasonably appear assaultive)

Assault and Conditional Threats Post Hoc Ergo Propter Hoc The doctrine that because an occurrence followed a prior occurrence, it must have been the result of that prior occurrence. Threatening gestures by D accompanied by words of his that declare P will not be immediately stricken unless will usually not give rise to objectively reasonable apprehension of imminent physical contact

Dispute among authorities re: False Imprisonment Is it the mental interest in knowing you are free? Or the freedom itself? Some say that instances when people are unknowingly imprisoned are covered by a tort only if physical harm (which is not normally required) ensues

Trespass to Land by Industrial Emission a) Actual and substantial damage must be done before there is cause of action AND there must be knowledge (or reasonable foreseeability that someones land will be invaded) b) Only if the particle accumulate on the will a court allow a trespass action to be brought, otherwise it must be nuisance or negligence

Does damage to/detention of property qualify as a sufficient force for false imprisonment? Depends on the jurisdiction and the severity.

Nuisance a) Redresses the loss of use and enjoyment of the land and does not require physical trespass

Degree of actions necessary for intentional infliction of mental distress? Outrageous actions grossly impacting mental tranquility.

Actual Consent If plaintiff, in his mind, actually assented to the invasion, defendant is excused.

Restrictive requirements for intentional infliction of mental distress: 1) 2) 3) 4) 5) 6) Some kind of physical injury Mental distress must be, and must have intended to be, very severe Ds conduct must be outrageous, surpassing all bounds of decency P must be present during the conduct and (in some jurisdictions) known to D Transferred intent has NO applicability Enhanced proof requirements

Implied Consent 1) If reasonably appeared to the defendant that the plaintiff assented, whether or not plaintiff actually did, defendant excused 2) If it reasonably appeared to defendant that plaintiff would have assented had plaintiff been able to address himself to the matter, defendant is excused regardless of what plaintiffs wishes really were or would have been

Exceptions to Implied Consent Mens Rea for Intentional Infliction of Mental Distress Somewhat counter tendency found in some states (even restrictive ones) to expand the mens rea to include knowledge of a substantial certainty OR knowledge of a very high probability. 1) Blanket Rule: Consent is destroyed whenever tort is criminal 2) Breach of People -- Protected Class Rule: Consent is destroyed if act breaches the peace or violates the protection of a certain class (statutory rape) 3) Protected Class Only destroys consent when breach is of a protected class

Consent by Force of Law (or Public Policy) Law deems defendants conduct, otherwise tortious, to be socially permissible regardless of real consent (usually when defendants conduct will be a reasonably expected part of a broader conduct to which the P did consent (ie, football)

Self-Defense: Aggressor/Non-Deadly Force 1) He has clearly communicated (and the message in fact received) that he is withdrawing, OR 2) There is an escalation by the other a. Aggressor started fray not intending death/grave bodily injury b. P reasonable appeared to D to be employing deadly force c. The force D used in defending himself reasonably appeared necessary

Situations where Consent May be Destroyed a) b) c) d) e) f) Acts exceeding the reasonable scope of assent Material mistake or ignorance of fact/law Duress Material Fraud Consent secured through failure to inform of certain material matters Incapacity to consent

Self-Defense: Aggressor/Deadly Force 1) Fight is over, OR 2) There was an escalation a. Aggressor started fray not intending death/grave bodily injury b. P reasonable appeared to D to be employing deadly force c. The force D used in defending himself reasonably appeared necessary d. There was no reasonably safe opportunity for retreat

Person with Consent Powers for Others In certain situations someone in a position of responsibility over another may be able to grant or withhold consent

Self-Defense: Non-Aggressor/Non-Deadly Force Stand his ground/reasonable force Self-Defender and Retaliation Privilege is always lost if self-defenders act is not selfdefensive, but retaliatory. It must reasonably appear to the defendant that the fight is not over.

Self-Defense: Non-Aggressor/Deadly Force 1) 2) 3) Reasonable to use that force, and Under apparent deadly attack, and Took every opportunity for safe retreat (West/SW rule says you dont have to retreat every state has that for homes, only some for other places)

How is the self-defender judged? Not on what the facts turn out to be, but how they reasonably appeared to him Privilege of Private Necessity

Privilege of Public Necessity Where the act is done in the interest of a large number of people rather than purely private Reasonable mistake allowed Death/significant bodily injury is not allowed Plaintiff gets no compensation If damage to/loss of property is all that is being avoided by the exercise of the privilege, compensation needs to be paid by the benefited person Mistake may or may not be permitted

1) Aggressor 2) Deadly Force Defenses of Insanity in SOME Jurisdictions 1) One whom the court finds to be at fault in some way in starting the affray that led to the need for selfdefense 2) Force calculated or likely to result in death or grave bodily injury, independent of result (Guns/knives = deadly force)(fists = non-deadly force) A.L.I Test asks if D lacked ability to appreciate the wrongfulness of the act or lacked ability to conform to the law Bear McNaughton Test Did defendant know right from wrong? Irresistible Impulse Test Did defendant have the ability to control himself? Was the act a product of mental illness? ** Some jurisdictions confine tests to sudden mental illness with no warning

Elements of Negligence 1) Conduct on the part of D which a reasonable person would not have engaged in under the circumstances in view of the risk and the lack of sufficient reason to undertake the risk 2) Physical Cause 3) Proximate Cause 4) In injury to plaintiffs person or property 5) With no defense

Children and Negligence Children in non-adult activities standard: reasonable/ordinary child of like age, maturity, training, intelligence, experience Children in adult activities standard: Adult standard Below a minimum age absolute defense based on incapacity 7-14 Some jurisdictions have a rebuttable presumption of due care for non-adult activities

Negligence = ? Conduct below that of a reasonable person.

Miscalculations that make a defendant negligent: 1) 2) He did not discover/perceive the risk a reasonable person would have He discovered/perceived a risk a reasonable person would have, but ran the risk anyway

Involuntary/Unknowing Intoxication and Negligence Standards Reasonable personin circumstances of being so intoxicated The Tests of High Negligence (aggravated negligence recklessness gross negligence) Perceived Risk Test: actor perceived the unjustifiable risk and went ahead anyway (though if actor doesnt know of risk, just ordinary risk then) Gross Departure Test: Actor departs grossly from what reasonable people would do, regardless of whether he perceived the risk. Original Restatement Test: (1) defendant knew or (2) had reason to know facts which would lead a reasonable person to know (a) his conduct creates an reasonable risk of bodily harm to plaintiff that is (b) highly probable and (c) substantial.

Learned Hands Risk Formula B<PL Breach of duty of care if burden is less than product of probability of loss and magnitude of loss

Good Samaritan Statutes Relieve medical people in some jurisdictions from liability for negligence if they volunteer to treat injured people in an emergency

Effect of Criminal Violation on Negligence Different in each jurisdiction 1) Negligence per se 2) Evidence of Negligence 3) Rebuttably presumed negligent presumed negligent unless and until circumstances which would make a reasonable person feel justified in taking those action 4) Negligence per se unless excused has to be a very compelling reason (excuse is not that a reasonable person would, but that most people would)

Contexts Where Distinction of Degree of Negligence is Neceessary 1) Some comparative negligence jurisdictions 2) In contributory negligence, contributory negligence is no defense to aggravated negligence 3) In some jurisdictions, punitive damages might not be awarded for ordinary negligence 4) Under dome guest statutes an automobile driver is not liable to a passenger who is his gratuitous guest for negligence, unless it is aggravated 5) Under some good Samaritan statutes, the medical persons will be liable if they are negligent at the higher level 6) In certain circumstances land owners are not liable to trespassers/licensees for ordinary negligence, but are for aggravated 7) Courts tend to find proximate cause more easily in cases of higher negligence 8) In some jurisdictions, rights to contributions are different with joint tortfeasors depending on degree of negligence

Statutory Purpose/Purview Doctrine When the harm resulting from the statutes violation is not within the statutory purview/purpose, breach of the statute may be declared irrelevant Reasons to be Outside of Scope of Statute 1) 2) 3) Remote as to Person Remote as to Interest Invaded Remote as to Manner Coming About

Circumstantial Evidence Cases: 1) Goddard -- woman slips on banana peel at train station but no evidence it had been there a long time 2) Anjou -- woman slips on banana peel at train station, but it was gritty, flat, etc., indicating it had been there a long time and ignored by staff 3) Joye Issue of constructive notice. Man slipped on peel at store, but it couldnt be proven that the employees were aware, or should have been aware, of it, thus no negligence 4) Jasko Pizza fell on the floor and someone slipped on it. The restaurant was found negligent for serving it the way they did.

Proofs of Negligence 1) 2) Direct Evidence Circumstantial Evidence a. Regular b. Res Ipsa Loquitor

Contributory Negligence

It is plaintiff's conduct, not defendant's, that constitutes a legal cause of plaintiff's own injury. Restatements Formula for Risk

Doctrine of Constructive Notice

"Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done."

If the defendant would have been aware of the condition by being reasonably attentive, the defendant has constructive notice.

Res Ipsa Loquitor

To show cause (ordinary cases)

The event speaks for itself. The mere happening of the event or accident itself can furnish the inference of unreasonable conduct by defendant The Justified-Inference Theory of Res Ipsa Loquitor The accident or event allegedly giving rise to the inference of negligence must be an occurrence which a jury could rationally feel ordinarily does not occur in the absence of negligence Allows P to get to jury If inference is inescapable, P could win as a matter of law

McDougald (tire chained to underside of truck breaks loose and injures other driver) holds that doesnt ordinarily happen without defendants negligence = that of all the possible explanations for what happened, most of them (51%+) would have involved defendants carelessness.

1) But for test was there most probably (51%+) a causal but for connection between the injury and Ds conduct 2) Reynolds (fat lady down unlit stairs) Ds conduct greatly multiplies the chances of the injury happening 3) Daubert -- (minors sue drug company because of birth defects they claim were caused by drug taken by mothers during pregnancy) When epidemiological studies show that introduction of defendants manufactured substance into a population increases (more than double) incidence of plaintiffs type of malady compared to natural rate of malady, then physical cause may be inferred 4) Kramer (cut from glass caused cancer) The burden is on the plaintiff to show the event more than doubles the rate of incidence (cancer) to prove causation. If expert is expressing a generalized conclusion of causation, the conclusions should be invalid if based on experiments/observations/opinions that there is merely a possibility. Needs to show it more than doubles the incidence.

Late Diagnosis Cases When the Patient Dies (Herskovitz)

Res Ipsa Loquitor -- The Access-to-Proof Theory

Byrne -- if greater accessibility to proof of what happened is available to the defendant than the plaintiff Ybarra v. Spangard -- Court ignored mere inferential theory and relied on access to proof. Without this expanded notion, the plaintiff would not have met burden to get the case to the jury. Larson v. St. Francis -- Res Ipsa Loquitur does not apply unless the object that caused the accident is under the exclusive control of the defendant

Joint and Several Liability A judgment is entered against them all for the full amount of plaintiffs damages. Plaintiff can collect money however he wants, up to the awarded amount. After collections, the defendants can sue each other for compensation if some didnt pay their fair share.

1) Ds negligence reduces patients chances of living from above 50% to below 50% = No problem with traditional proof-of-cause (but for) requirements. Damages are for death 2) Ds negligence reduces patients chances of living from above 50% to still above 50%, but not as high = Problem with traditional proof-of-cause concepts. Action is still for death, but damages will be reduced. OR could claim death is not the injury, but loss of percentage points of survival 3) Ds negligence reduces patients chances of living from below 50% to even lower = Problem with traditional proof-of-cause concepts because patient was most likely going to die either way. Action is still for death, but damages will be reduced. OR could claim death is not the injury, but loss of percentage points of survival

Cause (Extraordinary Cases) 1) Anderson (two fires case) -- Where two independent negligent or intentional (or even if one is natural/accidental in origin) causes conjoin, inflicting damage simultaneously, and each alone would have caused the same damage (so neither is a but for cause), the court may shift to a fuzzy substantial contributing factor test making them both liable a. This gets to the philosophical foundations of what, if any, sort of relationship, causal or akin to causal, should be required between wrongful conduct and injury. Deterrence, compensation, morality, economics, difference between civil and criminal law are relevant Summers (two people shoot negligently, but victim is injured by only one bullet, BOTH are held liable) Retained the but for definition of cause, but lowered the proof requirement to 50% and shifted burden to both defendants to show who was the but-for cause

Facts judge may consider when deciding if an act is a proximate cause of an injury 1) Distance between cause and effect 2) Time between 3) Features of the injury that resemble/dont resemble the risk unjustifiably undertaken 4) Number, quality, independence, important of other events/condition/causes/steps before and after Ds act that had to conjoin to produce the injury (ones that are independent/subsequent to Ds have more force) (as of events of human choice) 5) Similarity of P to class of person foreseeably put at risk by Ds conduct 6) Similarity of interest risked/invaded

2)

Formulas for Establishing Proximate Cause 1) Direct Cause Test: Polemis (minority) 2) Natural/Probable/Usual a. As viewed beforehand b. As viewed in hindsight 3) Foreseeability (most common) 4) Scope of Hazard Eggshell Skull Test D is responsible for all of what actually happened, even if it was unforeseeable in degree/detail/manner or coming about. D gets no benefit from arguing that P had a pre-existing condition Proximate Cause of Suicide

Theory of Concert of Action exists where there is a concert of action between defendants so neither could get off the hook

Sindell v Abbott Labs/Market Share Liability

1) Theory of this case takes Summers (which it interprets as no applying unless all defendants are joined by plaintiffs in the lawsuit) a step further, creating a new theory under which all defendants do not need to be joined in the suit 2) Like Summers because we do not know whose pills caused the injury, but all the manufacturers might have been a but-for cause 3) Why special leniency? Because more defendants here so likelihood of each being responsible much lower than 50%? Otherwise could potentially pay for more injuries than they could have caused? 4) Possible Limitations? Cases where a small number of defendants control a very substantial share of the market? Only a small piece of the market missing as not in the lawsuit?

If defendant negligently inflicts injury and plaintiff commits suicide because of mental illness or depression over injury, there is a tendency to hold defendant liable.

Proximate Cause and Rescuer

If a defendant negligently puts someone in peril, and a rescuer gets injured in the course of the rescue, defendant is usually held responsible
Proximate Cause and Botched Medical Treatment If defendant negligently inflicts injury, and plaintiff gets more injured as a result of treatment, defendant is often held liable for ultimate consequence

Proximate Cause of Negligent Professionals Whose Patients Injure Others

Tendency is to NOT make the professional liable (except where a specific danger to a specific person is clear and the professional does not act). This rule is in the process of change toward more liability.

Restatement (Second) on Duty

The fact that the actor realizes or should realize that action on his part is necessary for anothers aid or protection does not of itself impose upon him a duty to take such action

The last clear chance doctrine Proximate Cause of Jailers/Law Enforcers Transporting Criminals If negligence allows an escape, there is a tendency to hold them liable to those injured by escapees
If defendant still had chance to avert the catastrophe through the exercise of due care, after plaintiff (through lack of due care) lost all chance, defendant is said to have had the last clear chance to avoid the catastrophe and defendants negligence supersedes plaintiffs negligence 1) 2) 3) 4) Helpless P, Knowledgeable D Helpless P, Inattentive D Inattentive P, Knowledgeable D Inattentive P, Inattentive D

Proximate Cause of Security-Negligent Landlords Tendency to make such landlords liable to tenants injured by criminals.

Exceptions to Contributory Negligence Proximate Cause of Negligent Servers Giving Alcohol to Obviously Drunk People
Tendency to make them liable to other persons injured by drunks bad driving.

1) Last Clear Chance 2) The aggravated negligence of defendant doctrine. If the defendant is guilty of aggravated negligence and plaintiff of only ordinary negligence

a. Most frequently for professional servers. b. Less frequently for social server (ie, someone having a party),
but modern authority accumulating in some states to make them liable.

Types of Comparative Negligence Jurisdictions

1) FELA (Pure) Type Statute Plaintiffs recovery is reduced by % of fault 2) Wisconsin-Colorado (50/50) Type Statute Contributory negligence is a complete bar if plaintiffs fault is equal to or greater than defendants fault 3) South Dakota (Slight-Gross) Type Statute Plaintiff only gets recovery if negligence was slight in comparison to defendants negligence 4) The Old Admiralty (or Equal Division) Rule Where both are at fault, divide the damages equally between them (some talk of returning to) 5) The Margaret (or Ceiling) Rule There is straight or pure apportionment between plaintiff and defendant, UNLESS both are damaged, in which case the one more at fault may not recover more than the other is recovering

Proximate Cause of Car Keys Negligently Left in Car, Car Stolen and Damage Done to Others Tendency to hold key-leaver liable.

Factors judges consider when considering Duty

sense of morality, the foreseeability and extent of the likely harm from the defendants conduct, the burden the new duty will impose on the defendant, alternative ways of protecting the plaintiffs interest, likely increased safety, likely chilling effect, administrative problems for the courts in enforcement, problems of proof, etc.

Express Assumption of Risk An oral or written agreement to assume the risk

No Breach of Duty for NOT Acting, except 1) When D has control of an instrumentality, he has the duty to aid a helpless person (Ayers Dept. Store) 2) When omissions are part of a larger specific activity (driving) 3) Some relationships: parent/babysitter/custodian; hotel; 4) Some relationships (some courts): government; social visitor on Ds property if problem is not of Ds making; business relationship if problem is not of Ds making; 5) Still no duty: landlord-tenant (if problem is not of landlords making) 6) Defendants instrumentality/conduct puts plaintiff in predicament. Disputed if there is no wrongful part of defendant, probably if there was wrongful behavior 7) Express promise. Defendant says, I will do X, but then fails to do it, causing harm. Usually left to contract law, not tort law though more lenient standards when harm is personal, not to property a. Thorne Case Friend doesnt get insurance for boat as promised, boat crashes, no liability b. Marsalis cat bites man, cats owner promises to hold cat until rabies testing, cat escapes, man has to get rabies shots, owner is liable

Implied Assumption of Risk

1) Plaintiffs conduct may indicate he assumed the

risk. 2) It must be both knowing and voluntary a. Knowing. The plaintiff must know that doing what he is about to do will incur a risk of approximately the dimensions, kind, and scope of the real risk posed by defendant b. Voluntary. The plaintiff must accept the risk voluntarily must not be coerced by force or circumstance

Not Liable for Breach of Duty Involving Third Persons Except 1) (1) defendant has a relationship to the third party, (2) foreseeability of third partys act 2) Parents Responsibility or Acts of their Children a. When a parent knows the minor child has a tendency to act in a particularly dangerous way, he is bound to take responsible steps to curb/guard against it. BUT the dangerous habit must be very specific, there is no general responsibility for the rearing of difficult children 3) Psychiatrists Responsibility for Acts of Patient Harmful to Others a. Tarasoff Before there is a duty by the psychiatrist to the third party to take any precautionary measure to protect, the patient must have indicated that he (1) poses a specific threat of danger to (2) a particular individual. b. Only a duty to warn the potential victim

Exceptions to Owners Lack of Duty to Trespasser 1) Duty to refrain from aggravated negligence 2) Discovered trespasser doctrine 3) Implied license or permission (owner must 4) 5) 6) 7)

have/should have known of trespasser) Tolerated trespass Obvious conditions Trapped trespasser in peril Trespassing children

Discovered Trespasser Doctrine 1) 2) 3) 4) Different in different jurisdictions Owner must actually have discovered Only notice of required Constructive notice of will do the trick

Duties Owed to Licensees

Rowland Rejection of categories of people on property owner owes full duty all the time to everyone

Conditions Duty to warn if D KNOWS (in some jurisdictions should have known) of the danger, and also KNOWS (in some jurisdictions should have known) that the guest doesnt. NO DUTY TO USE REASONABLE CARE TO DISCOVER THE CONDITION OR TO FIX IT. Operations Full reasonable person duty owed

Safeguards Against Suspicions (of Negligent Infliction of Mental Distress) Does the occurrence on its face scream out gross, extreme, severe, extraordinary mental distress as an objective matter? Was the mental distress suffered by plaintiff in fact gross, extreme, severe, extraordinary? Was there physical impact on plaintiff (immediately in advance of the distress)(but not so much that would be another tort)? [not required in all jurisdictions] Was plaintiff in zone of danger? [not required in all jurisdictions nor in all situations] Did plaintiff suffer physical sequellae (physical consequences following from the mental distress)? [not required in all jurisdiction] Was plaintiff present at the scene (as opposed to hearing about it later or seeing it on TV)? Did plaintiff directly observe the event (as opposed to being told or figuring out what just happened, etc)? Was there a close family relationship between plaintiff and anyone injured? Can plaintiff survive special scrutiny of his proof of mental distress and causation? Does the egg shell skull principle apply? Gross, extreme, severe, extraordinary is as calculated without regard to any special sensitivities of plaintiff

Duties Owed to Invitees Full reasonable person duties

Factors to Consider when unclear about if Invitee or Licensee Are the premises open to the public? Is there an express or implied public invitation? Is there repetitive commercial operation going on? Is the defendant making money? Would it be fair to them to bear the cost? Do visitors/customers have a justifiable expectation that the premises be safe?

Children Trespassers 1) Under certain conditions (knowledge or reason to know that children will trespass) a duty is owed to trespassing children But a. Liability only for physical harm b. Foreseeable risk must be of death or serious bodily harm c. D must know CHILDREN are LIKELY to trespass d. (some courts) Children must have been attracted onto the land by the dangerous thing that did the damage e. (some courts) Natural hazards may be excepted from the duty

2)

Cases where the only one of the negligent mental distress safeguards present on the facts is the aggravated nature of the happening itself. The principle cases allowing recovery here have been cases involving negligent mishandling of corpses, mistaken telegraphs of death, and a few others. This list of kinds of cases shows signs of growing.

Cases where the only safeguards on the list that are present on the facts are that plaintiff was impacted and/or in the zone of danger. Usually no recovery. Exception: Usually recovery if plaintiff narrowly escaped imminent and very serious harm, as where nearly missed by speeding car (negligently driven) or brushed by it.

Cases where mental distress comes from plaintiffs awareness of negligent personal injury inflicted on someone else 1) Courts are especially suspicious here primarily
because of a worry that liability may go beyond what is reasonably related to the risk posed by defendant.

2) there is usually no liability imposed unless there are

physical consequences plus some form of all three of the following proximities: a. Plaintiff must have had spatial proximity to the event injuring the other. Different varieties of the requirement of spatial proximity are found i. Physical impact (prior to the mental upset) on plaintiff is required (in impact states) or ii. P must have been in the zone of danger (some states) or iii. P was at the scene (some states) plaintiff not quite as close or involved as in zone of danger b. Plaintiff must also have had temporal proximity to the event. He must have directly observed the event at the time it was happening, as opposed to becoming aware of it later. c. There must be relational proximity between plaintiff and the victim. They must be close family relatives (close being variously defined)

Cases where there are physical consequences following the distress (such as heart attacks, miscarriages or, in some jurisdictions, nervous disorders or conditions.

1)

2)

Usually recovery only if there is also impact (in many jurisdictions), or plaintiff in zone of danger (in some jurisdictions), but sometimes, in some jurisdictions, in some aggravated situations, there may be recovery where there are physical consequences without these additional safeguards of impact or zone of danger Ever more evanescent contacts or manifestations are being recognized as impact and/or physical sequellae in many jurisdictions, preparatory to abandon the respective requirement altogether

(Third) Restatement Liability for Emotional Harm Negligent Conduct Directly Inflicting Emotional Harm on Another. An actor whose negligent conduct causes serious emotional harm to another is subject to liability to the other if the conduct: Places the other in danger of immediate bodily harm and the emotional harm results from the danger; or Occurs in the course of specified categories of activities, undertakings, or relationship in which negligent conduct is especially likely to cause serious emotional harm. Negligent Infliction of Emotional Harm Resulting from Bodily Harm to a Third Person. An actor who causes sudden serious bodily injury to a third person is subject to liability for serious emotional harm thereby caused to a person who: Perceived the event contemporaneously, and Is a close family member of the person suffering the bodily injury

Manufacturing Defect
Where a product did not conform to its blueprint (its plan/design) courts have tended to focus on the word defective in the original restatement, and have said there is strict liability for this, regardless of whether it is reasonable or unreasonable. Cause, proximate cause, and no defenses such as those based on contributing bad conduct of plaintiff must still be shown. Design Defect Where the product conforms in every respect to its intended design, but it is alleged that the design itself is unreasonably dangerous. The question is whether the design poses an unreasonable danger, compared with its usefulness.

Warning Defect Better warnings should have been provided concerning the product. This also requires a balancing using ordinary negligence (in some courts) or a modified negligence riskutility analysis.

Defenses to Strict Liability

1. 2. 3. 4. 5. 6.

Contributory conduct of Plaintiff Comparative conduct Failure to heed warning Plaintiff using product for unintended use Assumption of Risk Use of product beyond reasonable life-time of product