Defined: A tort is a civil wrong, arising from a breach of duty imposed outside contractual obligation, for which the

law provides a remedy. Three Major Classes of Torts (1) Intentional/Fault: ie. Battery, Assault, Conversion, Trespass (2) Negligence/Fault: Acting unreasonably in a breach of duty. (3) Strict Liability/No fault: Liable only for causing harm, doesnt matter if care is proper or behavior was reasonable. ii) Sources of Duties Under Tort Law/Theories of Duty Corrective Justice: Righting a wrong which is, in most instances, morally faulty, intentional or unreasonably risky. Holding accountable to . Distributive Justice: Justice owed by a community to its members, including the fair allocation of common advantages and sharing of common burdens. Note: Justification for strict liability torts. Deterrence: Promotes people being more careful; affects fault-based torts only Process: Creating workable court rules Rules v. Standards Rules: Specific and inflexible. Usually provide bright lines that define acceptable conduct Ie. Speed Limits, one can never go above 40mph Standards: These define general behavioral schemes, but leave some room for interpretation based on the fact pattern. Ie. Reasonable Man Standard Sources of Tort Law: Common Law: This is how courts have defined different standards in different scenarios and torts. Like criminal law, jurisdictions vary in places, but some general standards have been set. Secondary Sources (Treatises and Restatements): These attempt to codify the already established common law into general guidelines. Who Decides Tort Law? Judge: if reasonable person could not find otherwise, judge rules as a matter of law Jury: if reasonable persons could differ (matter of fact) Policy Considerations of Tort Law -Critics contend: 1) Liability insurance costs too much; 2) Insurance has or will become unavailable for some; and 3) Tort liability is driving some products out of the markets (e.g. vaccines) -Response is that data shows a lot of people are being injured and seriously so. Compensation on tort claims is not that egregious considering estimated damages. Number of repeat offenders shows theres a need, too. 9 Problems w/ Torts: 1) Under-compensation - many claimants not adequately compensated 2) Overcompensation - some claimants are grossly overcompensated 3) Misuse of limited resources - too much goes to pain and suffering not enough to economic damages 4) Inefficiency of tort-liability insurance system - too much doesnt go to actual compensation 5) Delay in payment under tort system - claimant cant recover when needs the money most 6) Failure to deter or compensate - neither of the goals being met stuck in middle 7) Participation in the insurance fund-lack of reciprocity - some w/ no insurance can recover a lot but cannot be recovered against for a lot 8) Tort system lottery - can hit it big when you shouldnt, can lose when you shouldnt (all by chance), lawyers can press with litigation when they shouldnt w/ hopes of winning big $$ 9) Are lump-sum award and pain and suffering compensation justifiable? Money can be wasted, too much money paid for non economic damage.

INTENTIONAL TORTS
Single vs. Dual intent: Rule A (Single Intent): D intents to touch and it turns out harmful or offensive Rule B (Dual Intent): D intends to touch, and appreciates or intends harm or offense

Transferred Intent Two Forms: (a) A tortfeasor intends a tort on one person, but commits a tort on another. (b) Tortfeasor intends one tort, but accomplishes another. (c) Applies to all intentional torts except for conversion of chattels b/c of historical roots. Battery:
RS 18: Battery - Offensive Contact - need requisite intent RS 19: What Constitutes Offensive Contact - if it offends a reasonable sense of personal dignity)

must demonstrate both intent and action/result elements (Element 1) Intent: must: (a) intend to cause (b) contact that is harmful or offensive to or a third party (transferred intent) (a) Intent to cause contact is satisfied if either: (i) desires to cause the contact; or (ii) Knows w/ substantial certainty that the contact will occur; or (iii) As a result of transferred intent from assault: 1. desires to cause imminent apprehension of such a contact; or 2. Knows w/ substantial certainty that the apprehension will result. (b) Intent to cause harmful or offensive contact, satisfied if either: (i) desires harmful or offensive contact, or; (ii) is substantially certain the contact will harm or offend the Note: Single/Dual - Some jurisdictions require only single intent, some require dual. Single Intent: Intent to cause contact only Dual Intent: Intent to cause contact and harm Note: Desire/Substantial Certainty Distinction: Desire: desires the consequences of their acts, which constitute a tort. Substantial Certainty When the is substantially certain that her acts will cause the elements of the tort to occur. Sub-note: Not to be confused w/ recklessness, then tort would go under negligence. Recklessness is when they just dont care what consequences occur.

(Element 2) Action/Result: must actually: (a) either directly or indirectly, cause the (b) contact(with s body or items closely associated with) to result; and (c) this contact must be harmful or offensive (see below), Note: Contact must be tangible, as in the Smoke in the Face Case (Leichtman); however, this case only received nominal damages. (b) (i) Contact is harmful if it is a physical impairment of the condition of s body, or physical pain or illness. (b) (ii) Contact is offensive if it would offend a reasonable sense of personal dignity. It must be one which would offend the ordinary person, not a person unduly sensitive to their own personal dignity. May be something a reasonable person would find nauseating or disgusting. Note: Even if the contact would not offend a reasonable persons sense of personal dignity, but the is aware of s hypersensitivity, the contact is offensive.

Battery Case Examples:

Van Camp v. McAfoos - Mark McAfoos (aged 3) was riding his tricycle on a public sidewalk and drove his tricycle into the rearof Ms. Van Camp, wrecking her Achilles tendon. -No allegation that Mark did anything wrong, no liability without fault -Case was dismissed; went after Marks parents, too, because 3rd party liability homeowners insurance Snyder v. Turk Facts: Turk was performing a gall bladder surgery and was becoming frustrated. He thought that Snyder was making mistakes and making things worse. Finally when the handed the an instrument he didnt think was right, he grabbed her shoulder and puller her face down to the patients wound and yelled at her. Case went on directed verdict to Turk but was remanded. -A person is subject to liability for battery when he acts intending to cause a harmful or offensive contact and such contact results. Contact which offends a reasonable sense of personal dignity is offensive. - Person does not have to be physically harmed for a battery, and the intention of the actor does not have to be physical harm. Offensive contact is enough. Cohen v. Smith -Religious beliefs prevented a male from seeing Mrs. Cohen naked during child birth. Cohens told their doctor this who told the hospital, and they were assured their beliefs would be respected. The male nurse Smith helped in the babys delivery. At TC, dismissed, remanded by AC. - Religious beliefs, when made known (as they were here), are always to be respected by medical professionals. Because of their beliefs, Smiths contact was non-consensual to and offensive making Smith liable for battery - Harmful and offensive are mutually exclusive, its either harmful or offensive, not both (shot in the head is harmful). Leichtman v. WLW Jacor Communications (Smoking case - Leichtman sues for battery because Furman blows smoke at Leichtman. Trial court dismissed, appeals remanded. -No matter how trivial the incident, a battery is actionable -An employer is not legally responsible for the intentional torts of its employees that do not facilitate or promote its business -Issue of particulate matter, very slippery slope: Particulate matter here is subject to a breaking point. At some point the matter has to be too small to count Garratt v. Dailey - The default at trial is non-jury trial but if either party asks for a jury they are constitutionally obligated to receive (if the case involves amounts over $10) -Brian moves chair and Ruth falls, injures herself badly. Unclear if Brian did it to hurt Ruth or was trying to move chair for her to sit into. Judge sides with Brian (age 5). -The judge found that Brian did not want (desire, aim, purpose, goal) to hurt Ruth. Nor did he have knowledge (to a Substantial Certainty) that her injury would result (should be virtual or near certain certainty not substantial)So there are 2 types of intent, purpose and knowledge Hall v. McBryde -Marcus McBryde fired shots in retaliation at a car passing in front of his house, his neighbor (Hall) was wounded -If the bullet that hit Hall was fired by Marcus, Marcus will be liable under RS 16 for transferability of intent to commit a battery (try to hit a 3rd a party but someone else is hit, actor is liable to that someone else as if it were the 3rd party) -Case remanded to see whose bullet hit Hall - committed Tort X against Eric (Victim A) when he intended to commit Tort Y against gangbangers (Victim B) -In most states children, with the exception of the very young because they are incapable of harmful intent, may be liable for torts so long as necessary elements are proven. -The CL rule is that parents are not vicariously liable for the torts of their children (unlike employers for employees); so need statute to go after parents unless they were somehow at fault. Polmatier v. Russ -Norm Russ beat his father-in-law Arthur with a beer bottle, then got a gun and shot him dead. Norm was acquitted of criminal charges because he was insane. -Though insane, Russ knew what he was doing and was held liable for his battery. Question is whether the defendant had requisite intent. -CT court looked to KS Seals v. Snow case for 2 reasons to hold insane liable: 1) where one of two innocent persons must suffer a loss, it should be burn by the one who occasioned it; and 2) public policy requires the enforcement of liability on the insane or else that person can be manipulated to do horrible acts, be immune from redress for injuries caused, and a defendant could pretend to be insane to avoid culpability. - Still the case that damages for death tend to be less than those for maiming -Wrongful death is not a tort, its a procedure to claim a tort (here its battery) and theyre usually claimed by close family (here its Dorothy, the wife)

Assault: must demonstrate that committed:

An act intended to put in apprehension of harmful or offensive contact, and that creates in s mind a reasonable apprehension of an imminent battery. (Element 1): Intent: satisfied if has (i) A desire to cause the apprehension, or; (ii) Knows with substantial certainty that apprehension will result. (Element 2): Apprehension: Awareness of an imminent touching that would be a battery if completed. Note 1: Apprehension =/= fear. Note 2: As in battery, hypersensitivity of that is aware of can be sufficient to establish apprehension. Note 3: Mere words can be sufficient to create apprehension. (Element 3): Imminent: Contact will occur without significant delay. *Misc Assault/Battery Note: Battery may occur without assault; ex. Sneaking up on someone, battery while theyre asleep, etc. RS 21: Assault - Act intending to cause harmful/offensive contact and person is put in imminent apprehension RS 22: Attempt Unknown to Other - Intended victim must become aware of assault before terminated RS 30: Conditional Threat - option of escape not good enough if a command of obedience required RS 31: Threat by Words - words alone cannot constitute an assault

False Imprisonment An is subject to liability to another for false imprisonment if:

(i) acts intending* to confine** the , or a third person, within boundaries fixed by the , and; (ii.) s acts directly or indirectly result in such a confinement, and; (iii.) is conscious of the confinement, or is harmed by it. * Intent element can be established if the knows with substantial certainty that confinement will occur. ** Confinement is achieved if the is not able to escape the boundaries set by through reasonable means (Note: if reasonable means exist, but the is unaware of them, this element is satisfied). Confinement does not have to be solely achieved through physical means or barriers. It can also be achieved through threats of physical force against /third party (both implicit and explicit), false assertion of legal authority, or other unspecified means of duress. - This has usually been held to mean that confinements is largely reliant on the situation as perceived by . Duress can also be achieved by duress of goods, ie takes possession of something valuable to and refuses to return it. Note: The does not become liable for false imprisonment by intentionally preventing another from going in a particular direction to which he has a right or privilege. Note 2: Since False Imprisonment is a Continuing Tort, the statute of limitations for legal action does not begin to run until the tort itself is complete.
Assault Cullison v. Medley -Cullison was confronted by Medley family after hanging around their 16 year old daughter. Ernest Medley had a gun, and Cullison was afraid that during the episode he would get shot. Later, Ernest glared at Cullison in a restaurant and Cullison learned that Earnest had previously shot a man. -Cullison claimed to suffer chest pains, sought psychiatric care, had depression, etc -Summary judgment for D was wrong here because reasonable could find that an assault occurred False Imprisonment McCann v. Wal-Mart Stores, Inc. -Family not allowed to leave store because son was thought to be a shoplifter. Wouldnt even let son go to the bathroom, and he only had 1 kidney. -There was no actual physical restraint but that was unnecessary (only need threat of physical force or lawful authority (Wal-Mart said they had called the police)) - Case removed to federal court. The jury pool in federal court is the same as the state jury pool, but the judges may be less biased toward local residents because theyre not elected

Intentional Infliction of Emotional Distress (or, IIED)

IIED is actionable if: (a) Conduct of was extreme and outrageous*, and; * Rst.2nd defines as: An average member of community would think detest the behavior and exclaim outrageous! * As a result, this is usually going to be a jury question. (b) intended to cause severe distress, or at least was reckless in risking that distress, and; (b)(i) Intent: desire/purpose, or knowledge w/ substantial certainty that this is going to happen. See Battery/Assault for more. (b)(ii) Reckless: has knowledge of the risk of severe emotional distress but disregards that risk consciously. (c) s conduct actually results in severe emotional distress. Note: Because of the nature of the damage, this is a fact intensive inquiry; the must prove that the distress was so severe that no reasonable person would be expected to endure it. Note: Prove that distress was so severe that no reasonable person would be expected to endure it. (2) Third Persons: where extreme and outrageous conduct directed at third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress to: (a) A member of such persons immediate family who is present at the time (no bodily harm required) (b) Someone who is present and not family but results in bodily harm (c) This limits transferred intent
RS 46: Outrageous Conduct Causing Severe Emotional Distress - needs to be intentional or reckless; for transferability, must be present at the time of the outrageous conduct and the distress must result in bodily harm, unless a member of victims immediate family, who must be there but doesnt have to suffer bodily harm
GTE Southwest, Inc. v. Bruce (p.561-63) -Ps are employees who worked under Morris Shields, and Shields verbally threatened/terrorized them, would charge at employees stooping very close to their faces, made them vacuum, and even made one employee stand in his office for 30 min while he just stared at her -A claim for intentional infliction of emotional distress will not lie if it is not the intended or primary consequence of the D -Conduct must really be outrageous and extreme, Shields was, affirmed -Dont sure Morris because his pockets arent as deep at GTEs, and they can go after GTE under the principle of Vicarious LiabilityRespondeat Superior - Let the boss pay/respond a) The employee has to be acting in the scope of employment, this is a key issue b) Cant go for Workers Comp because that is only for negligent torts -Outrageous behavior include: Continuous or Repetitive, Abuse of power/captive victim, Unusual or Atypical, Exploiting sensitivities, and Public humiliation. Insults are not enough. Taylor v. Metzger (p. 563) -Sheriff called female officer a jungle bunny -Racial slur uttered by a superior at work cannot be viewed as just an ordinary insult Jones v. Clinton (p.13 of Supp) -While Clintons sexual encounter with Jones was an odious one, it did not meet the level of extreme and outrageous conduct necessary for a claim of intentional infliction of emotional distress; nor did Jones emotional distress seem so severe that a reasonable person couldnt be expected to endure it. Summary judgment was granted. -Judge here may have given a blueprint for how to fake an outrage claim (miss work, consult a psychiatrist, etc) -Where the P can assert an intentional infliction of emotional distress claim, the fact that the battery claim is barred by the statute of limitations is irrelevant (Winkler v. Rocky Mtp.566) Homer v. Long (p.567-69) -Ps wife was hospitalized for depression, her therapist used confidential information to take advantage of her condition and seduce her, the husband and wife eventually had to get divorced -P could not recover because he was not present at the time this happened -In hostage situation, only immediate family could recover under IIED (Bettis v. Iran p.568)

Trespass to Land (1) Intentional entry to land or unintentional entry and refusal to leave. (2) Transferred Intent applies if someone intends to trespass and commits other tort, etc. Trespass to Chattels - Intermeddling w/ the chattel of another, at times even dispossession, but not complete conversion. Liability based on actual damage, rather than total value of chattel. Tangible? Doesnt have to be anymore, now clogging email works. (a) Ways to commit trespass to chattels (i) A trespass to chattel may be committed by intentionally: 1. Dispossessing another of the chattel, or; 2. Using or intermeddling with a chattel in the possession of another (b) Liability to Person in Possession (i) One who commits a trespass to a chattel is subject to liability to the possessor of the chattel, if, but only if: 1. He dispossess the other of the chattel, or; 2. The chattel is impaired as to its condition, quality, or value, or; 3. The possessor is deprived of the use of the chattel for a substantial time, or; 4. Bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest. must show (a) some type of cognizable harm, or (b) some type of dispossession Note: Intentional Tort: not dual intent type, dont have to know what youre doing is wrong, so long as you have intent to dispossess or intermeddle. Conversion of Chattels must intend to exercise substantial dominion over another persons property (chattel). Restatement (a) What constitutes a conversion? Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes w/ the right of another to control it that the actor may justly be required to pay the other the full value of the chattel. (b) In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important: 1) s intent to assert a right to the property; 2) Extent and duration of control; 3) s good faith (this factors relevance has been wondered aloud by Sup Ct.); 4) The harm done; and 5) Expense or inconvenience caused Intangible Property: (a) Used to have to be tangible, now stock and such can be considered property capable of conversion. (b) Pearson v. Dodd put docs back before anyone noticed. could have sued for defamation. (c) Kreman v. Cohan and Network Solutions sex.com. Intangible but converted nonetheless. Damage Remedies b/w conversion of chattels and trespass to chattels: (a) Book worth $100. If I spill ink on the first 20 pages Ive lowered the value of the book. Now its worth $80. I owe you $20 for trespass to chattels. (b) Book worth $100. If I spill ink and the entire book is ruined, I owe the whole $100.

Defenses to Intentional Torts

Self-defense and the Defense of Others RS 63: Self-Defense by force not threatening death or serious bodily harm RS 65: Self-Defense by force threatening death or serious bodily harm - Duty to retreat except if in castle) Self-Defense is triggered if you actually believe that the other person is intentionally or negligently either: (i) Imminently going to cause a harmful or offensive contact to yourself or a third person (reasonable apprehension, actual threat not necessary); or (ii) Imminently going to confine or imprison yourself or a third person If privilege is triggered, you may: (i) Use force against another person, or; (ii) Cause an apprehension of imminent harmful or offensive contact to another person, or; (iii) Imprison or confine another person Force that may be used: You may only use an amount of force/confinement that is reasonably necessary to prevent or repel the impending contact or confinement Note: You may threaten (but not actually use) an amount of force or confinement that would exceed what is reasonably necessary. When retreat is necessary: In some cases, if a safe and reasonable retreat is available, you must retreat rather than stand and defend yourself. (a) If the impending threat is one that would not, in the mind of a reasonable person-cause death or serious bodily injury-you may stand your ground and defend yourself with whatever is permitted under; you are not obligated to use a safe and reasonable retreat. (b) If the impending threat is one that could cause death or serious bodily injury-in mind of reasonable person-and there is a safe and reasonable retreat available, then In most jurisdictions, you must: (1) use that escape, (2) limit you actions to threats intended to cause apprehension, or (3) limit your use of force/confinement to s/t less than that intended or likely to cause death/serious bodily harm. Exception: Unless you are in your home, in which case you may use force/confinement intended or likely to cause death/serious bodily harm. In some frontier jurisdictions, you may stand your ground, defend yourself and use force/confinement intended or likely to cause death/serious bodily harm. In some jurisdictions, if you are aware that the impending harm is one only negligently made by the person, you must retreat if it is safe and reasonable to do so. Spousal abuse cases: when abused kills/injures abuser while actual act is not occurring. Could one argue that the abused was being falsely imprisoned and that it was self-defense? One might also attempt to change the concept of battery in such cases to continuous tort. Touchet v. Hampton -Touchet verbally threatened and provoked Hampton, who beat the shit out of him -Hampton has no SD claim here because there was no actual or reasonably apparent threat to Hamptons safety (Touchet was at office, sitting in chair when pummeled) You can only defend against an: (1) imminent physical threat; if (2) Retreat is not possible; you cant use excessive force ever Note: Retreat is not always an element for self defense; majority rule in US is stand your ground and not retreat. You never have to retreat in your own home There is a trend toward retreat as our society gets more urbanized.

Transferred Intent in Self-Defense: Is an assault privileged by self-defense a battery if transferred intent? Other Defense of Third Persons: same basis as one can defend themselves. Defense and Repossession of Property; etc.: (1) Defense of Property: (a) Can use force to defend property, but it must be reasonable amount of force, incapable of causing death/serious bodily harm. (b) No booby trap guns (2) Recapture of Chattels: (a) One can regain possession of chattels of s/t right after it was converted or in hot pursuit. After that, one cannot recapture it by force, one has to invoke criminal process. (3) Repossession of land: some courts allow force, if reasonable. (4) Value human life over property every time

Misc. Defense Cases:

Katko v. Briney -Marvin Katko and friend (McDonough) had been to the house before and went back to steal old bottles and jars. Marvin went into the bedroom, a shotgun trap went off, and Marvins leg was badly damaged. Jury for Marvin for $30k, verdict affirmed. -Rationale: Society values human life and limb greater than propertyuse of force must be proportional to the threat of the property ownera possessor of land cannot do indirectly and by a mechanical device something he could not do immediately and in person. RS 85 -Even with signs, the spring trap would be illegal -This would be a moral argument under Boyles rubric -A difference in settings/context (NYC might have decided this case differently) Brown v. Martinez -Two boys went into Martinezs melon patch while Brown stood at the SE corner of the property. Martinez heard the boys, came out with a rifle, saw the running toward the SW, and fired his rifle in the opposite direction, whereby he hit Brown in the lower leg, breaking the bone -Reversed because: Reasonableness of force used is usually a question for a juryforce used must be appropriate in defense of propertythe law places a higher value upon human safety than propertyno privilege to use force that could kill or cause serious bodily injury when only property threatened. -Can recapture stolen property immediately or in hot pursuit. Once possession has been lost, one cannot forcibly recapture property (like a week later)

Defenses, continued; Consent

- Did consent? They can revoke at any time. Consent is an affirmative defense against all intentional torts. Exceptions: Consent through Fraud Consent through Duress; Note: Economic Duress is hard to prove. Can be incapacitated and unable to give consent (psychiatrists and incapacitated patients) Subjective inquiry into consent; not based on reasonable man standard Instead, the question is whether the plaintiff consented. OBrien v. Cunard -P sued for D for battery claiming that she did not consent to a vaccination shot, which she got quite ill from, when coming into Boston. D says that she got in line with everybody else for the shot and did not object when he gave it to her. Court found for D. -This is a case of implied consent based on Plaintiffs objective conduct -Whats the Default Rule here? If you dont say anything, consent or not? Presumably the D is obligated to bring some reasonableness to bear; also have to factor in social norms

Necessity:
Defined - the justification of an otherwise tortious act because of emergency/act of God/whatever Rule: Individuals are privileged to damage or destroy private property when public necessity demands it. Typically the actor needs to have a reasonable belief that some action was needed and the course of action must also be reasonable. Common Law: If you take it for public necessity, the injured party doesnt have to be compensated Note: Gets complicated when actor that is destroying the property is a private person. Defense to Battery: It would need to be a public necessity; there is no defense under private necessity. Private v. Public Necessity: Public Necessity May require the taking of private property for public purposes; but compensation must be made. Example: Police dept messes up property based on necessity. Court says it was a justified taking but still should be compensated b/c the act was for the public good. Wegner v. Milwaukee Mutual Ins. Co. Private Necessity - Cant kick someone off your land if they truly have a private necessity. Note: Not a complete defense. 1. If you harm the other person you may have to pay damages. Just ensures that you wont be removed from land. 2. Private necessity is never a defense for negligence

Necessity Cases
Surocco v. Geary -A fire was raging so he ordered Pascal Suroccos house torn down to prevent further conflagration. The house was torn down before all the property could be removed, and even when it was destroyed, the fire continued to burn. Surocco sued for the tort of trespass the land. -Surocco won a jury trial. The SC of CA reversed the decision. -The right to destroy property to prevent a conflagration has been traced to the highest law of necessitythe individual rights of property give way to the higher laws of impending necessity, there was clearly necessity in this case. The legislature possesses the power to regulate this issue better

Wegner v. Milwaukee Mutual Ins. Co -Police stormed Wegners house to get a suspected drug dealer, house was trashed -Harriet sued the city of Minneapolis and the Milwaukee Mutual Ins. Co., which was Harriets homeowner insurance (cities dont carry insurance because they just tax to make up) a) The insurance company probably excluded Harriets claim based on acts of war, civil insurrection, something along those lines -The district court granted Milwaukees motion for summary judgment and found for them. The appeals court affirmed. The MN SC reversed the lower courts and remanded for the issue of damages. -MNs constitution provides that private party shall not be taken, destroyed, or damaged for public use without just compensation, first paid or secured. The court found the police action to be a public use (unlike may other states) and therefore a taking occurred and therefore Harriet deserved compensation. -Where an innocent 3rd partys property is damaged by the police in the course of apprehending a suspect that property is considered a taking. If you apply the doctrine of public necessity (which privileges Minneapolis to destroy property to avert disaster RS 196) there could be no taking or else there would be a contradiction. -individuals should not be forced to bear public burdens alone -One difference is in Surocco an individual was sued for damages whereas in Wegner the city was sued (individual v. communal liability) -No matter what Suroccos house was going to get torched, while Wegners house wouldnt have been destroyed if it werent for the police Ploof v. Putnam -P was justified in mooring his sloop on the dock of the D. You can trespass out of necessity and the D had no right to unmoore the sloop, which was a trespass against it, because of the storm. -Under RS 197, to seek shelter and protect goods you are allowed to trespass Vincent v. Lake Erie Transportation Co. -Ds steamship moored on Vincents dock. Unloading finished but there was a heavy storm. The steamship remained dock because of the poor weather conditions. The ship caused $500 worth of damage to the dock, which Vincent wants to recover -Public necessity may require the taking of private property for public purposes; but compensation must be made, especially since the D availed himself to Vincents property. -Issue in this case is Private Necessity -In an emergency you can trespass to protect yourself and goods, but if you damage the land you trespass on, youre obligated to pay for it -In the world of public necessity, an actor who destroys for the greater good isnt liable -In the world of private necessity, an actor has a privilege to trespass for refuge but you must pay for damage you inflict -Say the boat is worth $200 and the dock is $500 a) Efficient outcome let boat be destroyed b) Externality: Cost you impose on somebody else (pollution from a steel plant that it doesnt have to pay for); flower garden is a positive externality 1) The boat owner is imposing a cost on the dock owner -To take care of an externality, you need to internalize it, make the boat owner pay for the damage the boat does -In the end, all the boat owners who visit the dock will pay more, no matter if the boat owner or dock owner has to pay; seems like the law creates a rational world either way -In an emergency can you hurt someone? Case where the captain of a lifeboat threw 6 people overboard to keep the boat from sinking? Does the necessity doctrine apply to the situation? RS 196-197 only speak to property; the privilege is not about this kind of fact pattern. In the actual case, convicted of homicide but only sentenced to 2 years.

Negligence
Plaintiff bears the burden of proof on the following elements of the prima-facie case. 1. Duty 2. Breach 3. Legally Cognizable Harm 4. Cause In Fact 5. Proximate Cause (Scope of the Risk) I. Duty The issues of whether a (1) duty exists; if so, what is the (2) applicable standard or duty of care 1) Whether owes a legal duty to ; this is a binary issue, yes or no. a) Always yes, unless a special no-duty rule says otherwise. 2) What standard of care the law prescribes: Generally, to act as a reasonable and prudent person would under the same or similar circumstances to avoid or minimize a risk of harm. Note: Sometimes this standard is modifiedmore or less. Other times the standard is not modified but the evidence which may be admitted on breach, infra II, to satisfy the standard is broadened. Sometimes the standard is prescribed by statute or regulation, i.e., negligence per se. II. Breach - Breach issues are for the fact finder (the jury, in a jury trial), unless there is no triable issue of fact. Ex. Summary Judgment or JMOL. Once the judge decides on the proper standard of care for the case (see supra I.[2]), the fact finder must determine whether the has failed to conform to the applicable standard of care. That is, was the negligent? or has breached their duty of care? For example: has created an unreasonable risk of harm in light of the applicable standard; or, In a negligence per se case, has violated the applicable statute or regulation (without a legally recognized excuse) III. Legally Cognizable Harm Harm is a mixed question of fact and law: Whether the has actually suffered any harm is an issue for the fact finder, unless there is no triable issue of fact. But whether the harm suffered is legally cognizablethat is to say one the law will recognizeis an issue for the judge only. 1) Traditionally, the must suffer actual injury, harm, or damage to self or property. Note: Some exceptions exist where the rule is relaxed and other harms become cognizable. IV. Cause in Fact Actual cause issues are for the fact finder, unless there is no triable issue of fact. 1) In the vast majority of cases, the must show that but for s breach, would not have been harmed. That is, if the had done what a reasonable person would have done under the circumstances, the would not have been harmed. 2) In some limited circumstances or jurisdictions, the may instead show that s breach [i.e., negligence] was a substantial factor in causing s harm. V. Proximate Cause (Scope of Risk) Scope of risk issues below are for the fact finder, unless there is no triable issue of fact: 1) Type of harm suffered by must fall within the scope of the risk the negligently created i.e., a reasonable person would have foreseen harm of the same general type; and, 2) must fall within the class of persons risked by s negligence i.e., a reasonable person would have foreseen harm of the same general type to a class of persons to which belong. Note: An intervening act or force (even an intentional or criminal one) can fall within the scope of the risk the negligently created if it is foreseeable. Note: The precise manner in which the harm occurs nor the extent of the harm suffered by need be foreseeable.

I.

Duty

Note: Duty issues are legal determinations for the judge only owes a duty to . Always yes, unless a special no-duty rule says otherwise. No Duty Rules: (a) No duty if is involuntarily committed (b) No duty to protect people from open and obvious dangers. (c) No duty of mother for prenatal harm (doctors do have duty) (d) No duty to protect people from acts of third persons, Except when: 1. Statutorily imposed duty 2. Undertakings (ie, promise) to do so 3. Special relationships (implicit control component) a) Between and 3rd person b) Landlord-tenant w/ right to control c) Employer-employee w/ facilitation i. Implicit right to control ii. Negligent hiring iii. (employer) owes duty to prevent harm caused by employee when employment facilitates employees ability to cause harm d) Custodian-ward Strict custody not required (policy call) e) Parent-dependant Child must be a minor f) Therapist-patient; with actual or constructive knowledge g) Providers of Alcohol Negligent Entrustment When someone ends up providing instrumentality to someone knowing they suffer from an incapacity (youth, mental or physical handicap, intoxication, etc.)
Stewart v. Motts -To start and move the car without its gas tank, Stewart suggested and then proceeded to pour gas in the carburetor. Motts was suppose to turn the car on at a certain time (the sequence of what happened is contested), the car backfired, an explosion happened, and Stewart suffered horrible burns on his upper body. -Is there a higher standard of care when using dangerous instrumentalities? No, only one standard of care, that of the reasonable man, but what a reasonable man would do varies depending on the circumstances -Some courts have departed from this orthodox view, and require a higher standard of care under more dangerous circumstances Wilson v. Sibert -The car in front of Sibert started to backup toward him. He, without looking or any type of consideration, threw his car into reverse and hit Wilsons car behind him -Did the TC court err in giving a special emergency instruction (D won case)? The court found that you dont have to give an additional sudden emergency instruction because the general negligence instruction is sufficient, but to give one is not prejudicial -This is no longer the case; the emergency instruction is now not given as its a useless appendage of the law/serves no positive action

Negligence; Duty, continued:

Nonfeasance: The No-Duty-to-Act Rule RS 314: Duty to Act for the Protection of Others - Though an actor may realize that action may be necessary to aid another, theres no duty for him to act. Basic Rule: No duty to act if nonfeasance applies; Exceptions and Qualifications 1) Innocent Conduct causes harm to Ex. jumps out of car to commit suicide and you hit him; your part in the harm creates a duty. 2) Prior Innocent Conduct Creates Risk to Ex. Someone walks out onto fairway after youve hit ball. Yell Fore! 3) Statutorily Imposed Duty (Good Samaritan Laws) 4) Voluntary Undertaking Really Misfeasance Ex. Once you start to help someone, you have duty to finish w/ reasonable care. 5) Common Undertakings; Co-Venturers If you are on an adventure together, companions. 6) Special Relationships a) Innkeeper-guest b) Landowner-entrant - once a duty begins, define by status in some jurisdictions c) Carrier-passenger d) Employer-employee e) School-student f) Custodian-person in custody g) Researcher-subject Other Undertaking/Promise Rules: 1) who undertakes, gratuitously or for consideration, to render services to which knows or should know would reduce the harm to or her things, owes a duty to if: a) s failure to perform those services would increase the risk of harm to or her things beyond that which would have existed w/o the undertaking, or; b) relies on the undertaking (kid and crossing guard) 2) who undertakes, gratuitously or for consideration, to render service to another which knows or should know would reduce the risk of harm to third person or her things, owes a duty to that third person, if: a) s failure to perform those services would increase the risk of harm to the third person or her things beyond that which would have existed w/o the undertaking b) has undertaken to perform a duty owed to the third person by another, or; c) The person for whom the services are rendered, the third person, or another relies on the undertaking. 3) Any rules that arise from covenant in a lease to repair defects on premises. Note: Must determine action or inaction: If it is a part of a greater action, generally liable.
Yania v Bigan Facts: Yania et al came to Ds property, which had deep coal seems filled with water. D allegedly verbally accosted P, the P then jumped into a coal seem and drowned. Breach: Bigans taunting and failure to rescue Holdings: No need for Bigan to protect Yania/no duty to Yania who was a fully cognizant adult Landowner case as well. Yania was likely a licensee, but was fully aware of the condition of the property Bigan had no duty to rescue -D had no duty to aid P because he was not legally responsible for causing him to jump or end up in the whole. Wakulich v. Mraz -P (under 21) gets wasted at Ds house, Ds father knew about this. P was vomiting and unresponsive. Ds cleaned her up, propped a pillow under her head and left her. Next morning father told sons to get her out of house. Later P pronounced dead. Holding: Court found Ds negligently discharged their voluntarily assumed duty of taking care of P -Like driving example, once you start to rescue you have to rescue like a reasonably prudent -Problem here is that this may deter people from rescuing at all

To comport with the standard of care prescribed by law:

Thus, to act as a reasonable and prudent person would under the same or similar circumstances to avoid or minimize a risk of harm, also termed due care. However: Sometimes the standard is modified somewhat from Objective (reasonable man) to subjective. This can be from: 1) External Circumstances b) No instruction to use extraordinary caution. Care is proportionate to the inherent danger of the activity Stewart v. Motts a) Emergency Situation Instructions given to jury that emergency must be considered in determining reasonable care. 2) Actors Characteristics a) Physical Disability Held to standard relevant of a person with their disability Example: Blind person should act like a reasonable blind person. b) Mentally impaired/disabled held to normal standard. Why: i. Two innocent parties, lets make the one who caused loss pay ii. Provides extra incentive for caretakers to prevent harm. iii. Takes away incentive to fake mental disability iv. Avoids the administrative problem of determining mental illness v. If they are to be rehabilitated/live in the world they must be held liable.
Creasy v. Rusk Rusk had Alzheimers; Creasy was a nurse putting him to bed when Rusk kicked her and caused her back to go out. Rusk found not liable because though mentally disabled are held to the same reasonable person standard, a caretaker has no complaint because duty in this situation is a one-way street from Creasy to Rusk. Justified on public policy grounds that Indiana has encouraged deinstitutionalizing people and reincorporating them into society. Breunig v. American Family Ins. Co -Veith (the D) suffered a mental delusion causing her to crash headfirst into Breunig. Veith had forewarning about these delusions and had gone to a psychiatrist about them before. -Though her delusion was sudden, Veith did know about them and therefore it was no defense to her liability, she is subject to default standard

3) Children have a modified standard of care, unless involved in an activity that is: (1) inherently dangerous, and (2) meant for adults.
Robinson v. Lindsay -13 yr old was allowed to drive a snow mobile, Robinson as passenger lost use of her thumb b/c of it -Issue in this case was whether the jury should hear the child standard of care (the care of a hypothetical child of similar age, experience, intelligence, and maturity acting under the circumstances) or the reasonable adult person standard -Because the boy was operating a powerful motorized vehicle, the standard of care should be that of a reasonable adult (such a rule discourages immature individuals from engaging in inherently dangerous activities) In Hudson-Connor v. Putney s conduct in crashing golf cart was to be considered under child standard because it was not an adult activity -We give kids a wide berth when we see them doing adult activities. But if kids are doing an adult activity (e.g. driving a car), you may not know theyre kids doing an adult activity and wont give them/wont be able to give them a wide berth -Rule of Sevens: a few courts still say that minors over 14 are capable of negligence, 7-14 incapable of it, and under 7 are incapable of it as a matter of law

In some cases, Standard is not modified per se, but evidence may be admitted to affect standard/jury inst.

Negligence Per Se Legislature can do two things by creating a statute: 1) Civil cause of action; legal duty Statute outlines what can do if their right has been violated 2) Penal Statute Courts create legal duties; can sue on the statutes and then the court decides. Failure to Exercise Due Care - is negligent as a matter of law if: 1) Without excuse, the actor violates a statute, ordinance, or regulation of a public entity: 2) The violation proximately caused death or injury to person or property; 3) That is designed to protect against the type of accident that the actors conduct causes, and; 4) If the accident victim is w/in the class of persons the statute is designed to protect. Rains v. Bend of the River Wright v. Brown -D sold ammunition to handgun to a normal appearing 18 yr old. -D was to suppose quarantine dog for 14 days by The Ps son then killed himself. Its against federal law to sell statute; didnt do it and the dog bit Wright ammo to someone under 21. -D alleged that P was not class of persons that the -Negligence per se doesnt equate to liability to per se -Two threshold questions (other questions do follow): 1) Does P statute intended to protect(alleged it was only for belong to the class of persons the statute was designed to protect those bitten by diseased dogs). Court disagreed and and 2) Is the Ps injury the type the statute was designed to said that the statute was intended to protect the prevent? public at large. P case was allowed to proceed. -The courts belief that act wasnt likely to cover this scenario is
weak because then you could never borrow a statute -The court assumes that D was negligent per se with its sale but that the Ds violation was not the legal cause of Ps sons death

Duties Owed to Passengers - Common Carriers Usually, apply reasonable standard of care Note: Some states have a heightened standard of care, OR, WA & CA Host Drivers Reduced standard of care (guest statutes) Note: Some states lower it to normal standard of care: OR, WA & CA Almost all jurisdictions have followed this approach Misc. Special Duty Cases
Tarasoff v. Regents of UC -P was killed. Ds psychologist treated murderer and thought he posed credible threat to P. Campus security detained murderer but let him go because he seemed rational, then he killed P. -Cant really control here like in the previous relationships but can warn here, and thats the alleged breach -Concern that you would be violating doctor-patient relationship. But public interest in safety from assault greater than confidentiality in medicine. -Based on foreseeability of threat, Ds owed duty to warn P of murderers threat Posecai v. Wal-Mart (p.524) -P robbed by guy hiding under. Sues D for AUC of failure to provide security guards in the parking lot -Question is if D had a duty, matter of foreseeability here -Four basic approaches: 1) Specific Harm - only owe a duty if landowner knows of specific harm to P 2) Prior Similar Incident Test - Look at foreseeability based on evidence of previous crimes son or near the premises 3) Totality of Circumstances (most common) - looks at everything, priors, condition, Criticized for being too broad 4) Balancing Test - balances foreseeability of harm against the burden of imposing a duty to protect against criminal acts of 3rd person. Court likes this test the best -Businesses are generally not responsible for the endemic crime -Greater the foreseeability and gravity of harm, the greater the duty Farewell v. Keaton -P&D were hitting on some chicks when the girls told their friends who beat the crap out of P while D escaped. -D found P, took care of him (ice, drove around and got food). P then blacked out and later died. -Every person has duty to not take affirmative act to make situation worse. When voluntarily assume duty, must use reasonable care. Here, court finds special ad hoc relationship from the boys common undertaking, and that D shouldve gotten medial aid.

Brigance v. Velvet Dove -Minor gets wasted at D bar. Drives home and injures P. -AUC was letting kid get drunk and then drive home -Dram Shop Laws should apply; in light of todays automotive society, wrong to hold barkeep immune (duty of reasonable care to person bartender knows or should know is already intoxicated) (RS 308 and 390) P must show connection between sale of booze and foreseeable ensuing injury

Landowners/Possessors; Duties owed to persons on land Note: Does NOT APPLY TO LESSORS Common Law Status Approach ex. OR or WA 1. Trespassers a. Undiscovered Trespassers Reduced Standard of Care b. Discovered or Frequent Trespassers Ordinary, Reasonable Standard of Care. Discovered - knows or should have known was there; and, knows or should have known that was at risk of harm. Frequent - knows or should have known that their land is trespassed frequently; and, knows or should have known that was at risk of harm. c. Child Trespassers - Attractive Nuisance doctrine may apply depending on jurisdiction. Attractive Nuisance is a special duty where: (a) Kids are likely to trespass; and, (b) the owner knows of the unreasonable risk to children; and, (c) children dont know of the risk naturally; and, (d) the owner fails to address danger. 2. Licensees a. Undiscovered Licensees Conditions of Home/Apt Reduced Standard of Care. Activities Ordinary, Reasonable Standard of Care b. Discovered/Frequent Licensees Ordinary, Reasonable Standard of Care Discovered: (1) knows or should have known that was there; and, (2) knows or should have known that was at risk of harm. Frequent: (1) knows that an area is frequently used by licensees; and, (2) knows that a licensee could encounter risk of harm there. Child Licensee Ordinary, reasonable standard of care. 3. Invitees Majority have adopted a reasonable std. of care approach Note: Trespassers continue to be treated differently in many places. Lessors (Duties Owed to Tenants and Guests) Traditionally - Lessors owe no duty under negligence to their own tenants and the tenants guest Exceptions that impose a duty to act w/ reasonable care: a. If the landlord has contracted to repair defects, and knows or should have known about the defect b. If the landlord knows that a defect exists at the time the tenant takes possession; c. If premises are specifically leased for public use; d. If the premises are retained in the landlords control; e. If the landlord undertakes to make a repair Adopting the Ordinary, Reasonable Standard of Care 1. For all persons regardless of entrant status 2. Trespassers continue to be treated differently in many places Contractual Duties: Tort duties can be created, modified and limited by contracts, informal undertakings and mutual and reasonable expectations between the parties. Direct Contract No reliance needs to be shown; contracts will be strictly construed If A, by contract or other understanding, shifts duties they have to C to another, B; then: C is entitled to the same care from B that it would be owed by A B now has a duty A may or may (or may not) be relieved of the duty A owed prior to the K Increased Risk - Reliance If conduct has gone forward to such a state that inaction would commonly result in an injury, then there is a duty. Ex. If a greater danger is created by partys action than if nothing had been done. Action as a Promise or Undertaking For example: where inspection occurs, this could indicate that inspector has assumed a duty Question: Is there reasonable reliance upon either a promise, a K, or b/c of actions already taken by A?

Restatement Special Duties of Land Occupiers

RS 329: Trespasser One who enters land without consent RS 330: Licensee One who is privileged to enter based on owners consent; social guests are licensees RS 332: Invitee A public or private business visitor, public where land held open to the public RS 333: Generally, possessor not liable to trespassers for physical harm for failure to exercise reasonable care RS 334: Activities Highly Dangerous Requires reasonable care in activities if possessor knows trespassers frequent a part of his land. RS 335: Artificial Conditions Highly Dangerous Requires reasonable care if possessor knows trespassers frequent a part of his land could be liable for dangerous artificial condition) RS 339: Artificial Conditions Highly Dangerous to Trespassing Children - Possessor could be liable if he knows children trespass on a part of his land and could be hurt by an artificial condition; Attractive Nuisance RS 341: Activities Dangerous to Licensees If a possessor fails to use reasonable care, he should expect licensees will not realize their danger or just dont know of activities and risk involved
Cause of Ps injury Activity Undiscovered Trespasser No Duty Discovered or Anticipated Trespasser Ordinary Care (reasonable care under the circumstances Limited duty to protect against (1) serious bodily harm from a (2) concealed (3) man-made condition (4) the existence of which is known by the landowner. Sometimes phrased as a duty to protect willful or wanton injury. Licensee Ordinary care (Reasonable care under the circumstances) Limited duty to protect against harm from a (1) concealed condition (2) the existence of which is known by the landowner. Sometimes phrased as a duty to protect only from willful or wanton injury. If hazard is obvious, no action may be necessary unless entrant is likely to be distracted. Invitee Ordinary Care (Reasonable Care under the circumstances) Ordinary care, including a duty to conduct a reasonable inspection to discover and correct hazards; if hazard is obvious, no action may be necessary unless entrant is likely to be distracted.

Static Condition

Generally No Duty. Sometimes phrased as a duty to protect only from willful (i.e., intentional) or wanton (i.e., reckless) injury. For children of tender years, duty or reasonable care to protect from artificial conditions if trespassing can be anticipated and children cannot appreciate danger for themselves

Attractive Nuisance
Bennett v. Stanley - had an unprotected pool that they let turn into a pond pretty much. Ds knew next door neighbors had young children. s son and wife drowned. Breach: was negligent; pool created an unreasonable risk of harm to children who would not realize the danger -Court adopts RS 339 for Ohio, children entitled to greater level of protectionthe key element should be whether there is foreseeable, unreasonable risk of death or serious bodily harm to children; court also found mom assumed status of child in attempting rescue

Licensee/Trespasser Standard of Care/Duty

Gladon v. Greater Cleveland RTA -P was a little tipsy. Got off at the wrong train stop and was attacked on platform. Ends up on tracks (doesnt know how), while on the track his legs are crushed by an oncoming train. Breach: Operator was negligent by failing stop the train after the point she perceived or shouldve perceived the Ps peril Holding: P was not an invitee on the track, regardless of how he got there; as trespasser or licensee then the possessor only owed him to refrain from willful, wanton, or reckless conduct likely to injure him. Owner has no duty to anticipate or prevent Ps presence. -When a possessor discovers a trespasser or licensee in peril there is a duty to use ordinary care to avoid injuring him

Duty to Invitees
Rowland v. Christian Facts: P was guest of D. Handle in bathroom broke and damaged Ps hand. D knew of the problem but gave no warning to him. -Reasonable people do not ordinarily vary their conduct depending upon such matters and do not focus upon the status of injured partycategories of people obscure rather than help; duty is just that of reasonable care, regardless of the status of the injured person (Modern of Approach) -Mans life or limb doesnt become less worthy of protection because of how he comes on anothers land (life worth more than property)

Asif Tufal

THE TORT OF NEGLIGENCE

DEFINITION - 1 The breach of a legal duty to take care, resulting in damage to the claimant which was not desired by the defendant: L.B. Curzon, Dictionary of Law.

DEFINITION - 2 Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Per Alderson B., Blyth v Birmingham Waterworks Co. (1856)

1. DUTY OF CARE

A duty of care was originally established by applying Lord Atkins Neighbour Test from: Donoghue v Stevenson (1932). The modern three-stage test was laid down by the HL in: Caparo Industries v Dickman (1990). The court must now consider:

(A) Whether the consequences of the defendants act were reasonably foreseeable. For example, damage or harm was held to be reasonably foreseeable in: Kent v Griffiths (2000); and Jolley v Sutton LBC (2000). But not in: Bourhill v Young (1943); or Topp v London Country Bus Ltd (1993)

(B) Whether there is a relationship of proximity between the parties, ie a legal relationship or physical closeness. For example, there was proximity in: Home Office v Dorset Yacht Club (1970). But not in: Caparo v Dickman (1990).

(C) Whether in all the circumstances it would be fair, just and reasonable that the law should impose a duty. It was held not to be fair, just and reasonable to impose a duty on the police in: Hill v C.C. of W. Yorkshire (1988). However, a duty was imposed on the fire brigade in: Capital v Hampshire County Council (1997).

1 www.lawteacher.net

II. Breach of Duty

Note: Almost all breach questions are issues for jury unless no triable issue of fact (summary judg.) Once judge decides proper standard of care for case, jury must determine whether has failed to conform to applicable standard. Each duty breach must be outlined separately! Unreasonable Risk: has created an unreasonable risk of harm in light of the applicable standard. Burden of Proof Must be persuaded by evidence that claim or affirmative defense is more probably true than not. Preponderance of the Evidence; at least 51% likely. bears the burden of proving facts or elements that show prima facie case has to prove by a preponderance of the evidence that he has an affirmative defense. Standard of Proof: Usually, a Preponderance of the Evidence; meaning, more likely than not Evidence, Generally - Sworn testimony of witness, exhibits received in evidence, stipulated facts. Note: No distinction is made direct and circumstantial evidence to the jury; its up to the jury to decide how evidence is weighed. Direct Evidence: Proof of fact, testimony of witness about what they personally saw or did. Circumstantial Evidence: Proof of one or more facts from which you could find another fact. Evidence for Limited Purpose: some evidence may only be considered for a limited purpose. Witnesses and Credibility - Jury may consider how they know what they are testifying to, memory, manner, interest in outcome of case, evidentiary contradictions w/ testimony, reasonableness, any other factors in determining believability.
Indiana Consolidated Ins. Co. v. Matthew -Ds brother was out of town, so he was going to mow his lawn. D started mower in brothers garage, fire started, D tried to put it out, D left and called 911 but the whole garage was burnt down. -Alleged unreasonable conduct in Matthews case by the : 1) D either overfilled tank or spilled gas on floor 2) D started the mower inside the garage 3) D did not push flaming mower outside -Court found that D was not negligent in filling gas tank, was not negligent in starting mower inside (AC found it reasonable, people start vehicles in garages all the time. Reasonable people ignore remote risks and conform to customary practice), and under emergency doctrine (emergency not of his own making), he acted like a prudent person as we value safety over property. Stinnett v. Buchele -Buchele hires Stinnett to repair his barns roof. Stinnett fell and argues that Bucheles AUC was negligent in not providing safety equipment (no workers comp in agriculture) -Stinnett was an experienced painter, didnt ask for safety equipment without Bucheles knowledge, no evidence of negligence - General Rule: Reasonable people dont take precautions to protect people who can protect themselves, but will take more precautions to protect those who cannot protect themselves (e.g. the mentally disabled and children) -The obviousness of a risk may make the likelihood of it materializing so slight that there is no need to try to eliminate it

Breach of Duty, continued:

Evaluating the Underlying Conduct Does it Constitutes an Unreasonable Risk B < P x L In the Carroll Towing case, Learned Hand establishes this formula. B Burden of Avoidance In other words, how much would avoidance of harm cost? What are the alternative courses of action and their feasibility? P Probability of Harm What is the likelihood of the harm occurring? L Magnitude of the Loss What harm would occur? Note: This is not an analysis of what could occur; just what a person could reasonably expect. The focus is on the likely harm, not the actual harm that occurs. Formula is supposed to be flexible; not meant to quantify harm Liability is found if B < P x L; or: If the Burden to avoid is less than the likelihood of a foreseeable harm times the magnitude of that harm will have acted unreasonably where the burden of avoiding the harm is less than the probability multiplied by the likely seriousness of the harm if it does occur. Its a relative formula, so: The greater the harm, the less probability necessary to deem negligence, and vice versa.
Notes: Virtually all activity holds some risk. Liability is typically imposed when there is a reasonable means to make the activity safer. Calculation changes w/ the times, technology, etc. Jury does not expressly consider these factors. The factors are those that the jury deals w/ when considering a s negligence. But Judges do use them to review jury verdicts on the other hand.

Common Knowledge - When expert testimony, etc. is not needed b/c unreasonable risk is obvious. duh Of course kids will stick their fingers in small holes on a slide in a playground s Own Rules of Conduct: such as manuals, or company standards Can be entered into evidence but do not replace standard prescribed by law. Industry Custom Whatever is considered reasonable conduct within that industry. Note: Industry may be behind the times; reasonability may not be industry standard, so an industry standard does not replace reasonable standard Note: Proof of a general custom is admissible b/c it tends to establish standard by which ordinary care may be judged, like if industry custom exceeds minimum safety requirements by law. Parties may show that industry norm is unreasonable if industry standard is lagging.
Thoma v. Cracker Barrel (p.178-80) -Thoma slipped and fell on floor at Cracker Barrel. Thoma claims that for 30min the area she slipped in was not attended to. -The breach was that it was unreasonable in failing to clean up a spill within 30 minutes -For slip n fall, P must show owner either created a dangerous condition or had knowledge of a dangerous condition. Notice may be established by circumstantial evidence, such as substance was on floor for sufficient length of time that in the exercise of reasonable care, the condition should have become known to the premise owner. Wal-Mart v. Wright -Wright slipped on water in outdoor lawn center. Alleged breach was negligent in maintenance, care, and inspection of premises, and company violated its own policy manual. Wrights argument is that reasonable people follow their own rules. -A s belief that it should perform at a higher standard than objective reasonable is irrelevant

Note: Complying w/ statute does not mean reasonable/not negligent! Superior Knowledge (i) Actor is required to exercise superior qualities that the actor has in a manner reasonable under the circumstances. (ii) Doesnt change standard but is relevant on breach.
RS 289: Recognizing the Existence of Risk - Standard becomes reasonable man with such superior attributes
Cervelli v. Graves -Graves was a class A truck driver who tried to pass Cervellis swerving pickup on icy roads in WY. -Under RS 289 Jury should not have been instructed to disregard Graves skill and experience but jury should not have been instructed to hold Graves to a higher standard

Breach of Duty, continued: Negligence Per Se: has violated the applicable statute or regulation w/o a legally recognized excuse.
( bears burden of proof for any excuse, shift burden) Negligent as a matter of law. Instruction to jury. IF held to standard in statute (see duty/standard of care) Did the actually breach the standard of care set forth in the statute? Excused (not negligent per se) if: 1. The person acted as would be expected of a reasonable person who desired to comply w/ the law.
Note: Dont forget adult standard for children doing adult activities

2. The violation is reasonable in light of the actors childhood, disability, or physical incapacitation; 3. The actor exercises reasonable care in attempting to comply w/ the statute; 4. The actor neither knows nor should know of the factual circumstances that render the statute applicable; 5. The actors violation of the statute is due to the confusing way in which requirements of the statute are presented to the public; or 6. The actors compliance w/ the statute would involve greater risk of physical harm to the actor or to others than noncompliance. Getting a Negligence Per Se Instruction to the Jury: Judge decides through legislative history: a. Does the statute have a c/a specified w/in it? (if it does, this is the remedy) b. Statute must specify conduct which is prohibited c. Statute must protect against the type of harm in this case d. Statute must protect class of persons to which the victim belongs Judge also decides if the jury gets to hear legally cognizable excuses and which ones. Jury Decides: a. Given the instruction, has to decide if the statute was violated, and if so, find the defendant negligent b. If the jury is given excuses, they have to decide whether the act was excused by the statute. c. Court will (if asked for by the ) give the jury an alternative, usually the common law default standard of due care. Note: If the is not found to be in violation of the statute, they can still be liable, just more work for the RS 288A: Excused Violations Negligence per se (violations) can be excused for incapacity, unaware and shouldnt be aware, unable to after reasonable diligence, emergency, compliance would pose a greater risk of harm) Impson v. Structural Metals, Inc. -D tried to pass P within 100ft of intersection. The P made a left and collided with Ds truck. -D offered excuses such as: forgetting the existence of the intersection, intersection sign was small, no lines to indicate it was a no passing zone, and was watching the car ahead drift right. -None of these fit the excusable reasons offered by the RS

Breach of Duty, continued: Res Ipsa Loquitur: the thing speaks for itself
When the facts of the case alone prove negligence Test for Res Ipsa Loquitur: 1) The occurrence must be one which ordinarily doesnt happen without negligence. Facts as we know them, combined with common knowledge and experience, and sometimes expert testimony, give rise to an inference that someone must have been negligent. 2) Other possible responsible causes, such as or third persons, have been sufficiently ruled out. Note: Does not require that other potential causes be completely ruled out; think of discussion on comparative negligence. What we want to know is whether the or a third persons contributions lessen the probability that the negligence was likely that of the . Exclusive control by the is one way to strengthen the inference, but under the modern, and more correct trend, such control is not required. Note on Control: is under a duty he cannot delegate to another, must be found negligent if there is negligence found, even when there is contributory negligence. See Giles v New Haven beloew 3) The must demonstrate that obtaining specific evidence/proof was not possible. Note: Res Ipsa can satisfy s burden of proof but does not shift burden of proof to . Most courts agree.
Giles v. City of New Haven (p.193-96) Facts: Elevator user (P) injured when elevator crashed and she had to jump out. D contends that the only way for the elevator to crash like it did is for P to have been negligent in using it. -The Ps use of the instrument does not necessarily bar a res ipsa loquitur claim -Despite D not have exclusive control of instrumentality, court finds P entitled to have jury hear RIL claim Persinger v. Step by Step Facts: Infant broke his left femur at daycare, alleges twisted in crib slat or fall from great height Elements: (1) kind of injury happens when negligent, (2) exclusive instrumentality, (3) no P contribution) Alleged breach - allowed him to climb up high and fall from great heights / left the child unattended in a crib; didnt see him get foot caught in slat Possible explanation - the kid fell by himself and it was bad luck Expert witness reasoned backward from the accident, and said explanation was very unlikely Widmyer v. SE Skyways, Inc. -Plane crash killed Ps. P expert says that it was pilot error, D contends it was bad weather. -Ps shouldnt be barred from using RIL even though they offered another explanation (pilot error) -The D lacked superior knowledge but not reason to bar RIL -RIL allowed because with todays aviation crashes usually dont just happen, even in bad weather -Theres weak evidence of pilot error (flying too low, stalling the plane), but its not a complete explanation In Alaska you can send the case to the jury on 2 issues. You can conclude from the limited evidence that there was pilot error or you could find RIL and conclude there was negligence -Does the P have to show the Ds superior knowledge to allow for RIL? In Alaska, no -The more access to RIL the more power given to the jury

Warren v. Jeffries Facts: Boy crushed and killed when he jumped out of Ds moving car. Car was parked but when kids piled in, it started rolling. Breach: failure to set hand brake, failure to engage transmission, and failure to maintain brakes -When you have no evidence, fuck it: RIL Possible explanations: Unknown Mechanical defect -Under RIL you need to be able to make inferences that the accident more probable than not occurred from negligence - Seems like it is more probable than not that the D parked the car negligently but whats missing is any type of investigation The more non-negligent explanations you can rule out increases your chances to win.

Two Approaches; varying by jurisdiction 1. Permissible inference of negligence: Jury can still say no negligence even if provides no evidence or explanation whatsoever 2. Presumption of negligence: Jury has to find that theres negligence unless the offers some explanation or evidence that theyre not negligent

Asif Tufal 2. BREACH OF DUTY

The Standard Expected Negligence is falling below the standard of the ordinary reasonable person. Specific rules apply if the defendant is a child, a learner or a professional: * For children, see: Mullin v Richards (1998); * For experts: Bolam v Friern Barnet Hospital (1957); * For learners: Nettleship v Weston (1971), and Wilsher v Essex Health Authority (1986). In all other cases, the court will consider the following four factors in deciding if there has been a breach of duty:

(A) The degree of risk involved. Here the court will consider the likelihood of harm occurring. There was either no known risk or a low risk in: Roe v Minister of Health (1954) Bolton v Stone (1951). There was a known risk in: Haley v London Electricity Board (1964).

(C) The seriousness of harm. Sometimes, the risk of harm may be low but this will be counter-balanced by the gravity of harm to a particularly vulnerable claimant. See, for example: Paris v Stepney Borough Council (1951).

(B) The practicability of taking precautions. The courts expect people to take only reasonable precautions in guarding against harm to others. See, for example: Latimer v AEC Ltd (1952).

(D) The social importance of the risky activity. If the defendants actions served a socially useful purpose then he may have been justified in taking greater risks. See, for example: Watt v Hertfordshire County Council (1954).

PROOF OF BREACH The claimant must produce evidence which infers a lack of reasonable care on the part of the defendant. However, if no such evidence can be found, the necessary inference may be raised by using the maxim res ipsa loquitur, ie the thing speaks for itself. See: Scott v London & St Katherine Dock Co (1865)

2 www.lawteacher.net

III. Legally Cognizable Harm

Question of fact and law: Fact: Whether the has suffered any harm is an issue for the jury unless there is no triable issue of fact. Law: But whether the harm suffered is legally cognizable harm the law recognizes is an issue for the judge only. Traditionally, the must suffer actual injury, harm, or damage to self or property, Note: Emotional distress is generally not legally cognizable harm, but it is occasionally recognized as such. See below. Some exceptions exist where the rule is relaxed a bit and other harms become cognizable: Special Types of Harm 1) Emotional Harm Negligent Infliction of Emotional Distress a) Duty is just the reasonable man standard b) Breach (negligent act) c) Harm Serious emotional distress Ordinary reasonable person wouldnt be able to cope a. Must also have: i. Physical impact Traditional Rule - liability is found for suffering that flows from the physical impact. Example: fright, pain/suffering, anxiety, etc. Zone of Danger Test Liability is found if: is w/in zone of danger, and; suffers imminent apprehension of physical harm (fear?) which causes/contributes to physical injury ii. Physical manifestation of distress iii. Emotional distress alone (rarer than previous two) Pure distress rule: by putting a person at immediate risk of personal injury at definite time and place = reaction of fright and shock (few jurisdictions consider this alone as a cognizable harm) d) Cause in fact of emotional distress e) Proximate Cause of Emotional Distress f) OR: Special Bystander Test (Thing v La Chusa) Liability may be found if: i) is closely related to injury victim ii) is present at the scene of injury-producing even and is then is aware that act is causing injury to person iii) suffers serious emotional distress (beyond that which would be produced in a disinterested witness) g) Duty to Protect Emotional Well-Being Independent of Physical Risks Where NIED claims are going: Cause of Action for NIED will arise under circumstances where serious or severe emotional distress to the was the reasonably foreseeable consequence of s negligent act or omission.

Legally Cognizable Harm, continued:

Pre-Natal/Conception Torts Can fetus recover for mothers negligence? No. Slippery slope, almost anything could give rise to liability. Rights of child shouldnt supersede rights of mother Can injury to mother before conception give rise to liability later? Yes. Can owe duty to someone who may foreseeably be harmed even if that person is remote in space and time. Note: Like scope of the risk, this is a jury question NY Rule: Foreseeability alone doesnt est. duty to ; would lead to defensive medicine Cause of Action largely denied because not around at the time of negligence. Note: Gomez disagrees Wrongful Birth/Life/Conception Can mother recover for wrongful birth? (Negligently performed sterilization) Yes. Framed as invasion of moms financial security interest (b/c having healthy baby shouldnt be legally cognizable harm) Note: Though there is a duty to mitigate damages, a court is not going to impose abortion/adoption on mother. Address these with regular negligence rules i. Be careful of causal difficulties ii. Some courts requiring evidence of how often people would abort in circumstances (like child born w/ condition x) iii. No claims by children for wrongful life Wrongful Death

Traditional Rule
If victim died before recovering for tort the claim died as well. No one could step in as If suing and dies, claim is over Relatives couldnt bring claims on account of what they suffered from the death

Modified Survival Statute

Family can sue for the estate of the deceased.

If dies, then estate becomes the and suit continues. Separate cause of action that certain types of beneficiaries can bring. Typically children and spouses, maybe parents.

Survival Statutes: Dead s estate vs. Preserves to decedents estate any cause of action decedent would have had if shed survived Settlement goes first to pay debts and liabilities of estate, then to kids If all elements of tort are met but cant prove damages, well give them to you. Just need nominal to get punitive. Wrongful Death Statutes: Deads beneficiaries (s) v. Damages to provide replacement for what decedent would likely have provided but no more Money goes right to kids, no filter of estate Limited to pecuniary damages, no punitives

Legally Cognizable Harm, continued:

Loss of Consortium Loss of services is legally cognizable harm Types of relationships in Loss of Consortium causes of action: a) Spousal: Can recover almost always b) Children: Parents cannot claim for loss of children c) Unmarried co-habitants: Can almost never recover Note: Courts that do allow it require relationship is as close as youre going to come to marriage. Trends: Courts have moved away from loss of economic services; now LoC is more like emotional distress. The harm is basically loss of companionship, sexual relations, etc. Note: Doesnt have to satisfy emotional distress rules because the doctrine developed separately
Medley v. Strong -Ds botched priapism treatment with Ps live-in lover resulting in penectomy; CL wife sues for loss of consortium -Carolyn doesnt win because she was not married to Oscar; court only recognized loss of consortium among married couples, and Ill. didnt recognize common law marriage To recognize loss of consortium would be to undermine legislatures abolition of marriage; harm institution of marriage generally; judicial administration of having decide peoples relationships who were unmarried would be a bear/could lead to a torrent of litigation -Depending on the court, engaged couples are given consortium Boucher v. Dixie Medical Ctr. Facts: Ps sue for loss of consortium with their son who was turned into vegetative state by malpractice -Utah doesnt recognize LoC among spouses and wouldnt want to create a filial loss of consortium rule -Policy concerns about judicial administration (torrent of litigation), rising insurance costs, and usurpation of legislative power if filial consortium allowed -Outside UT, as a practical matter the parents would get the money and not the son anyway; filial consortium would allow for double recovery

Affirmative Defenses for Wrongful Death Causes of Action: can raise any defense that they ordinarily would be able to based on victims own negligent contribution to the risk. See below section.

IV. Cause in Fact

Note: Actual cause issues are for the jury, unless there is no triable issue of fact.

Tests for Showing Cause in Fact But-For Test: Used in a vast majority of cases The must show that but for s breach [i.e. negligence], would not have been harmed in the manner complained of by . If you can satisfy this, there is causation. Generally: The event/harm would not have occurred w/out s conduct. 1. Causation is satisfied if passes but-for test 2. Would the untaken precaution have prevented the harm from occurring? Substantial Factors Test Multi But-For Causes Independently Sufficient Causes If two or more s are the cause of the damage: a. If the damages are divisible, the s will pay for their part of the damage. b. When there is an indivisible injury, joint and several liability doctrine applies. Extending a Finding of Cause in Fact to Others Conspiracy/Concert of Action: two actors doing something together for a common purpose; example, drag racing Partners in a company Respondeat Superior: if x commits negligence tort and x is an employee of y, then y is responsible Proof of Causation Preponderance of the Evidence 51%, more likely than not that they were cause of the harm Remember: evidence may be direct or circumstantial; see above. Causation may be inferred from (1) the common knowledge of the jury; (2) experts; (3) Res Ipsa Alternative Causes and the Shifted Burden of Proof Redefining the harm: to permit recovery when adherence to regular tests would fail the claim. (a) must prove that s negligence more likely than not caused the s injury or condition (b) must prove that s negligence more likely than not decreased the chance for a better outcome. Notes: Doesnt limit damages; usually requires expert testimony (c) must prove that s negligence substantially increases the chance of harm. A can only recover damages for lost opportunity. Example: If injury for death is 100k and shows that negligent doctor reduced chances of survival from 40% to 10%, then can only recover 30k. Other possibilities to shift causation: Loss of an already endangered life Apportionment of Fault (1) Joint and Several Liability; or (2) Proportionate Share Liability

Asif Tufal

3. DAMAGE CAUSED BY Ds BREACH

(A) Causation in Fact The claimant must prove that harm would not have occurred but for the negligence of the defendant. This test is best illustrated by: Barnett v Chelsea & Kensington Hospital (1968).

(B) Multiple Causes Where there are a number of possible causes of injury, the claimant must prove that the defendants breach of duty caused the harm or was a material contribution. See: Wilsher v Essex AHA (1988).

(C) Remoteness of Damage The opinion of the Privy Council was that a person is responsible only for consequences that could reasonably have been anticipated: The Wagon Mound (1961). The defendant will be responsible for the harm caused to a claimant with a weakness or predisposition to a particular injury or illness. See: Smith v Leech Brain & Co (1961). If harm is foreseeable but occurs in an unforeseeable way there may still be liability. See: Hughes v Lord Advocate (1963). However, there are two cases which go against this decision: Doughty v Turner Manufacturing (1964); and Crossley v Rawlinson (1981).

3 www.lawteacher.net

V. Proximate Cause; Scope of the Risk

Scope issues are for the jury, unless there is no triable issue of fact. Jury must find that the harm done to was a foreseeable consequence of s negligent act. RS 435: Foreseeability of Harm or Manner of Its Occurrence If actors conduct is a substantial factor in bringing about harm to , the fact that the actor neither foresaw nor shouldve foreseen the extent of the harm doesnt prevent liability; actors conduct may not be legal cause of harm if its highly extraordinary that it shouldve brought about the harm. So, Proximate Cause is established if both of the following are met: 1) The type of harm suffered by falls within the scope of the risk the negligently created, AND i.e., a reasonable person would have foreseen harm of the same general type; and, 2) falls w/in the class of persons risked by s negligence i.e., a reasonable person would have foreseen harm of the same general type to a class of persons to which belongs. Special Rules and Notes:
(a) An intervening act or force (even an intentionally tortuous or criminal one) can fall w/in the scope of the risk the negligently created so long as the intervening act or force, or one of the same general type, is foreseeable. (b) The precise manner in which the harm occurs need not be foreseeable. Example: Kerosene explodes instead of catching fire. (c) The extent of the harm suffered by need not be foreseeable. Example: False fire alarm forces diabetic down stairs, falls.

Rescue Doctrine: Cryptic Cardozo opinion. Rescue is not always foreseeable, just use reasonableness. Suicide: There used to be no liability for suicides. Example: Jailor forgetting a belt in cell not liable. Now there are some exceptions for special relationships. Medical Malpractice Always foreseeable! Note: If injures and then is injured additionally by malpractice, is also liable for malpractice damages.
Metcalf Foreseeable Risk
Medcalf v. Washington Heights Condo -Condo buzzer system didnt work, P was then attacked before her friend could come down and let her in -Was the harm which occurred of the same general nature as the foreseeable risk created by the Ds negligence? If so, proximate cause is established. -The AUC is not maintaining a working buzzer when they say that they will (reasonable people keep their promises) BUT, the type of risk associated with not fixing the buzzer is not a mugging (not in the scope of risk) -Have to look at the breach and what risk it creates

Palsgraf Foreseeable Victim

Palsgraf v. Long Island RR (p.239) -Man getting on train is pushed by a conductor, man drops a package filled with fireworks, the explosion causes some weight scales at the other end of the platform to fall and injure Palsgraf -Breach is shoving a passenger onto the train, and the foreseeable risk was knocking the passengers package loose - is not the class of persons youd be expected to be affected by the breach; Palsgraf was not a foreseeable victim. -Court finds no duty to and doesnt even consider proximate cause here because s conduct is not a proximate cause when the D couldnt foresee harm to persons situated like the P -Duty is usually a matter of law Risk: says being hit by the molten lava explosion says getting hit by the initial splash Holding: only owed duty to foreseeable risk of splash, not explosion.

Doughty v. Turner Manufacturing Facts: Worker knocked lid into vat of liquid. Nothing happened at first (no splash). 2 minutes later lids chemical makeup reacted and exploded causing the P to get burned. Breach: Knocking the lid into the boiling vat

Proximate Cause, continued:

Proximate Cause v. Breach Test DONT MIX THESE UP!
Breach: Did create unreasonable risk of harm? Proximate cause: Was s harm w/in scope of risk which created?

Intervening/Superseding Causes: Intervening: If there are two tortfeasors and the second ones action is a more direct cause of the harm, does not always mean there is no proximate cause for first tortfeasor. Superseding: When a second action is enough to break the proximate cause of the first action Example: If 1 is negligent and 2 commits intentional tort, 2s tort rises to level of superseding cause. Note: If your conduct creates or increases risk of the second action (a criminal act for instance), you may still be liable. Can use B<PL to decide if intervening or superseding. Most courts just use foreseeability.
Foreseeable Where
Derdiarian v. Felix Contracting Corp. Facts: P was burned by vat of hot sealing liquid when D insisted he setup his operation on a part of the highway facing traffic and the D afforded him little protection from that traffic; Dickens suffered an epileptic seizure crashed through Felixs barricade and P was burned by liquid -P must show that Ds negligence was a substantial cause of the events which produced the injury (RS 435) -Dickens was not a superseding cause because a car improperly entering the worksite was the risk Felix had a duty to protect against and it didnt (should have had truck in the way)(risk=worker hit by negligent driver) -Workers Comp is an exclusive remedy, if you accept it you cant sue your boss -Evidence of what other companies would have done is custom, good evidence as what a reasonable person would have done Sheehan v. City of NY -Sheehan did not pull his bus over to the curb. Instead just stopped in land and let passengers off, violating traffic regulations. Then a sanitation truck smashed into the bus, claime the brakes failed. -Court finds that bus would have been there if it had first pulled over and let people off or did as it did in real life. Bus had a right to be in travel lane. So sanitation truck was sole proximate cause of injuries, in addition if the bus was viewed as a proximate cause of the accident, the trucks brake failure would be an independent supervening cause. -Alleged breach was not pulling into the bus lane to let people off This case is distinguished from Derdiarian because the risk created by the AUC is not the one realized in the accident (its unreasonable to not pull to the curb because passengers could get hurt alighting/the bus would congest traffic); could be argued there was no breach

Foreseeable When
Marshall v. Nugent -Truck driver pushes Ps car off road. Trucker stopped and went to help P get back on road, thus blocking the road which caused another car to swerve to miss truck and then strike P D drives on the wrong side Nugent swerves Marshall hit Holding: Nugent is not negligent here, behaved as a reasonably prudent person (arguable emergency doctrine), truck driver is negligent though -The risk here was present until the cars were back to normal driving Pittsburg Reduction Co. v. Horton -The risk here was that an unsupervised child would find the caps and be injured; that risk was terminated once the mother found out about them; so guy who left caps out in beginning would not be liable (termination of risk) -RS 451: D can escape liability if harm done is different from the harm that was risked by the Ds conduct in the first place (Intervening forces of nature, p.267) -No litmus test to determine when a risk ends, dont have firm statements to give to the jury -Who What How When and Where all important in figuring this all out

Other notes in Proximate Cause Thin Skull Cases RS 461 Harm Increased in Extent by Others Unforeseeable Physical Condition Amount of harm is something youre responsible for no matter how minor the initial harm you inflicted (knocking someone over who has osteoporosis) RS 435(1) Liability is not avoided because harm extended beyond foreseeability.

Affirmative Defenses for Negligence I. Contributory Negligence II. Comparative Negligence III. Assumption of the Risk
I. Contributory Negligence Not really used much anymore; most courts adopt Comparative Neg.
cannot recover at all if they are contributorily negligent in a traditional jurisdiction. Its an all or nothing defense, so if is contributorily negligent, they get nada. has to show their own prima-facie case for negligence i) Duty: owed duty to himself; default standard of reasonableness ii) Breach of that duty iii) Legally cognizable harm and, did reduce his own chances for better outcome? iv) Cause in fact: was contributory negligence a but-for or substantial factor of s harm? v) Proximate Cause: is harm that befell w/in scope of risk that he created? Exceptions to Complete Bar on Claim 1) Last Clear Chance Doctrine: a) must negligently place her/himself in peril b) Peril must be something from which the cannot reasonably escape c) was aware of, or should have been aware of s peril d) s negligent act, follows s negligence e) could have reasonably avoided the negligence. 2) Recklessness If s mental state was worse than negligent; ie. reckless 3) Intentional Tort - s contributory negligence is irrelevant.
Butterfield v. Forrester Facts: P riding horse violently crashed into Ds pole on the road, causing him to fall from his horse -Gives birth to traditional CL rule that P must exercise reasonable prudence for his own safety; back then, contributory negligence was a complete bar to recovery -Some US jurisdictions still do not acknowledge comparative negligence (complete bar to recovery) -The conceptual failure before comparative fault was that the law was a zero sum game Sollin v. Wagner -Wagner was loading bale of straw when it dropped on Sollin. Sollin sued, Wagner alleged contributory negligence because Sollin was working on grinder while the machine was operating -TC should give an ultimate outcome instruction in a comparative fault case if requested. In ND, P who is 50% at fault gets nothing, and jury here found that Wagner should pay half of Sollins damages but assigned 50-50 responsibility, so no recovery

II. Comparative Negligence Adopted by a vast majority over contributory neg; 46 states
In a comparative fault jurisdiction, s recovery may be lowered by the percentage that they are found to be negligent. Exceptions from Contributory Negligence: 1) Most jurisdictions wont consider s negligence if commits an intentional tort. 2) Recklessness is just factored in when apportioning damages 3) No doctrine of last clear chance Pure Comparative Negligence - may recover damages minus their negligence Example: If they are 20% negligent, they can only recover 80% of damages Modified Comparative Negligence Sometimes, is barred from recovery if:

negligence > negligence

In other jurisdictions, if is equally negligent, they are barred. Note: Juries just assign 50% blame without realizing they bar recovery. Aggregating fault Some jurisdictions aggregate s fault. Apportionment of Fault Sometimes done with a cost-benefit analysis. Example: running away costs nothing, providing a security guard is expensive. NOTE: Rescuers can NOT be held to be comparatively/contributorily negligent Jury may disregard s claim on a Cause in Fact or Proximate Cause basis Example: Patients are entitled to subsequent non-negligent medical treatment, and to an undiminished recovery if such non-negligent treatment is not afforded. Note: Even if the injury was the plaintiffs own fault, subsequent negligent medical treatment is still a valid cause of action. When to Allocate ALL Responsibility to Examples: 1) Manufacturing machine smashes hands not held negligent for sticking hand in, that is intervening cause which could be expected to occur. No defense of contrib. neg.
Bexiga v. Havir Manufacturing -Ps right hand was crushed by Ds machine. Machine lacked basic safety devices to prevent exact type of injury P suffered. Contributory negligence isnt a defense because Ds negligence allowed for Ps alleged negligence. Duty: to protect the user from his own carelessness - Unfair for them to then assert Ps negligence as a defense -Arguable Bexiga not negligible at all, this type of accident happens all the time and is to be expected in a factory setting (Reminder of the Emergency Principle, reasonableness depends on the circumstances)

2) Suicide in state hospital. No contributory neg. when s duty of care includes preventing selfdestructive acts. Probably a scope of the risk problem; use B < P x L test. 3) Personal Use of Property Negligent burning hay on side of train tracks, causes big fuckfest. Railroad is still held liable b/c s property interest.

III. Assumption of Risk Two main types: (1) Contractual (or, Express); and (2) Implied
(1) Contractual/Express Assumption of Risk (CAoR) - agreed with for no liability Survives as a separate, complete defense everywhere K must be expressed in writing, orally, or by conduct; standard contract shit. RSAL 2: Contractual Limitations on Liability - Contracts can be complete bars to liability CAoR completely bars s claim unless: 1) The harm is outside the scope of the contract Example: K says no liability for one kind of risk; is injured in some other way. 2) Contract is voided as a matter of policy. Factors to consider: i) Is the business of a type generally suitable for public regulation? ii) s service is of great importance to the public, and perhaps a practical necessity. iii) is holding itself out as performing the service generally for the public. iv) The need for the service and the economic setting gives the decisive advantage of bargaining strength to avoid liability. (2) Implied Assumption of the Risk (IAoR) - is aware of the risk before participation. Note: Decide this with subjective test; see Crews case IAoR occurs when voluntarily exposed themselves to the risk; ex. Dangerous job In a contributory negligence jurisdiction, IAoR is a separate and complete defense Note: Unless its against some public policy In most comparative negligence jurisdictions, IAoR is NOT a defense. (See Betts) Note: IAoR still relevant in determining both 1) The duty/standard of care for the ; see Siragusa. 2) Whether has imposed an unreasonable risk of harm. Agreement to Accept Responsibility for s negligence or as Comparative Fault In a comparative negligence jurisdiction, there is no consideration given to s assumption of the risk when raised as a defense to an established breach of duty. Assumed risk is just incorporated into the comparative negligence test.

Special Forms of Liability

I. II. III. Multiple Tortfeasors (aka mad-feasin) Vicarious Liability and Respondeat Superior Strict Liability

I. Multiple Tortfeasors
a) Joint and Several Liability If multiple tortfeasors are held jointly and severally liable for a s harm, then: Each tortfeasor alone is liable for the entire injury; and, can collect all her damages from just one of them. Example: She can sue one of them for all damages; or, both of them for a portion of damages from each. Indemnity and Contribution: If either of the above scenarios happens, and a thinks that they have paid more than her fair share of the damages, the law will sometimes allow them to recoup some of the money from the other through indemnity/contribution. This can happen in several ways, most commonly: 1) sues 1 or 1 and 2; then, 1 files third-party claim impleading 2; OR, (b) After losing to , 1 can file a separate lawsuit against 2 for contribution. b) Proportionate Share Liability A jury assigns a percentage amount of fault to each , BUT if one is broke and cant pay, cant get that share from another .

II. Vicarious Liability and Respondeat Superior

Justifications for Vicarious Liability 1) Distributive Justice A form of strict liability because youre holding employers liable even if theyre not at fault. Employer can also handle costs; deep pockets 2) Corrective Justice Although employer isnt at fault, they are getting benefit from the employee. Thus, someone is harmed at their benefit True Corrective Justice Innocent v Wrongdoer/Tortfeasor Corrective Justice Light Innocent v Benefit Receiver 3) Deterrence Public policy argument; injuries will be prevented because enterprises have an interest in being safer, having fewer accidents, keeping prices lower. Policy Question You have cheaper products because of lower litigation costs, but what if its cheaper to just pay the (settle the claim) than to fix the danger? Vicarious Liability Rules: Basic Principle a is responsible for harm if: 1) Tortfeasor is in an actionable relationship with the ; and, 2) The harms occurred while the tortfeasor was acting in the scope of the relationship Defining Actionable Relationship A) 1st Degree Master-Servant - If the did have the right to control how the tortfeasor performed the work, rather than just the right to specify the result, then actionable B) 2nd Degree Master-Servant - If the DID NOT have the right to control the performance of the work, but DID have the right to specify the result, then the following factors must be considered: i) Did the supply the equipment, tools, or place of work? ii) Was the tortfeasor being paid by the hour rather than by the job? iii) Was the work being done part of the regular business of ? iv) Did have an unlimited right to end the relationship with the tortfeasor? v) Was the work being done by the tortfeasor their only occupation/business? vi) Was the kind of work being performed by the tortfeasor usually done under the direction of a supervisor rather than without supervision? vii) Does the kind of work performed by the tortfeasor usually require a specialized or professional skill? viii) Were the services of the tortfeasor performed over a long period of time? C) Borrowed Servants (See Kastner): A tortfeasor may simultaneously be in an actionable relationship w/ more than one master. In determining liability, consider: i) Who has control of the tortfeasor? Who has the power to discharge? ii) Who benefits? (See Corrective Justice above) Note: Most of the time, just use dual liability for both masters. D) Apparent Relationship (See OBanner) the acted as if they were in a masterservant or principle-agent relationship with the tort-feasor. To be actionable, all of the following factors must be present: i) intentionally or carelessly created the impression that the tortfeasor was s employee or agent; and, ii) reasonably believed that the tortfeasor was s employee or agent; and, iii) was harmed because the tortfeasor reasonably relied on this belief E) Partnership The and the tortfeasor were partners in an active partnership. F) Conspiracy - The and the tortfeasor were acting in concert w/ the common purpose of committing an act.

Vicarious Liability and Respondeat Superior, continued:

Defining the Scope of the Relationship (SotR) Generally, a tortious act occurs within the scope of the relationship if: A) The act is reasonably related to the kinds of tasked that the tortfeasor was employed to perform or expected to perform; or, B) The act or harm is reasonably foreseeable, either in light of the s business or the tortfeasors assigned job responsibilities. Exceptions to the above rule: 1) Prohibited Acts - The fact had prohibited the tortfeasor from engaging in the act that caused the harm is not dispositive. Note: A tortfeasors unauthorized or criminal conduct is sometimes held to be within the scope of the relationship. Example: Sexual Assault (see Henry Mayo Hospital) An employer is usually not liable for a sexual tort unless the motivating factors are attributable to the work relationship. 2) Deviations A tortfeasors conduct that slightly deviates from their work is to be expected; acts that are necessary for an employees comfort, health, or convenience, performed while at work, are still within the scope of the relationship. 3) Coming and Going/Commute Generally, a tortfeasor is not acting within the scope of their relationship while traveling to and from work, except if: a) The tortfeasor, while commuting, performs a concurrent service for the that would have necessitated the trip had they not performed it; or, Risk Justification: Hinman Case, The tortfeasor, while commuting benefits the by working in a distant labor market and which is reflected by the fact has paid for both the tortfeasors travel time and expenses. It is uncertain whether the Hinman rule would apply in a control justification jurisdiction. b) The requires the tortfeasor to drive his or her personal vehicle to and from the workplace so that the vehicle may be used for work-related tasks. 4) Frolic - Trivial detour from job, doesnt affect the analysis. Example: If youre coming back from doing shit outside of work. 5) Detour More substantial deviation from your job; usually not within SotR Example: Youre on your way to do some shit outside of work. 6) Social and Recreational Activities - Social or recreational activities that occur after work are within the scope of the relationship if: a) They are carried out w/ the s stated or implied permission, and; b) They either provide a benefit to the or have become customary.

Special Kinds of Liability, continued: III. Strict Liability

History of Strict Liability omitted because seriously, who gives a fuck? Contemporary Strict Liability Post-Brown v. Kendall Common Strict Liability Situations: 1) Trespassing Animals a) Intrusion by Livestock or Other Animals - An owner or possessor of livestock or other animals, except for dogs and cats, which intrude upon the land of another, is subject to strict liability for physical harm caused by the intrusion. b) Wild Animals - An owner or possessor of a wild animal is subject to strict liability for physical harm caused by the wild animal. Note: A wild animal is any animal that: (a) belongs to a category of animals that have not been domesticated; and, (b) is likely to cause personal injury unless restrained. c) Abnormally Dangerous Animals An owner or possessor of an animal that the owner knows or has reason to know has dangerous tendencies abnormal for the animals category is subject to strict liability for physical harm caused by the animal if the harm ensues from that tendency. Note on Comparative Responsibility with Animals- If the has been contributorily negligent in failing to take reasonable precautions, the s recovery in a strict liability claim for physical harm in accordance w/ the share of comparative responsibility assigned to the . 2) Non-Natural Uses - If someone has something unnatural on their property, which would cause damage if it escaped, they may be held strictly liable. 3) Abnormally Dangerous Activities - An actor who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity. An activity is abnormally dangerous if: (a) The activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors, and; (b) The activity is not one of common usage; ie, not carried on by a large number of people in the community Example: Driving a car would fail this test, because although it is dangerous, it could cause an accident even when using reasonable care, and it is carried on by a large number of people.

Damages
I. II. III. Compensatory Damages Adjustments in Damages Punitive Damages

Damages, Generally Damages are the result of a successful cause of action; they are either pecuniary (the costs incurred or to be incurred by the ), or punitive (damages intended to deter further tortfeasance). Note: Damage amounts are almost always selected by the jury. Nominal Damages are given when the jury finds the liable but there is no real harm done.

I. Compensatory Damages
a. Pecuniary/Economic These are damages that are easily quantified/tangible. These damages can be either past damages or future damages. Past Pecuniary Damages Damages incurred before and up to trial; Usually includes: 1) Reasonable medical expenses 2) Lost wages 3) Cost of Medical Monitoring Future Pecuniary Damages Damages likely to be incurred even after judgment; Future damages usually include: 1) Cost of continued medical care 2) Future lost wages 3) Any other reasonable costs that stem from the s tortfeasance. Because future damages are inherently speculative, they are controversial. Notes: The further into the future, the more speculative; Future damage speculation usually requires expert testimony Solutions? Some courts periodically revisit cases to ensure that damages were correctly allocated. b. Non-Pecuniary/Non-Economic These are damages that are subjective and qualitative. Non-pecuniary damages are inherently difficult to quantify: They usually include: 1) Pain and Suffering 2) Loss of Enjoyment of Life 3) Loss of Consortium (see Infliction of Emotional Distress above) Note: Pain and suffering is sometimes held distinct from Loss of Enjoyment of Life on the grounds that you have to be conscious and aware of your pain and suffering. For example, a comatose patient cannot collect for pain and suffering, but may be able to claim damages for loss of enjoyment of life. Note: Some courts have held that the two should be aggregated because they dont trust the jury. Because they are retards usually.

Damages, continued:
II. Adjustments in Damages
In some cases, even when liability is found and the cause of action succeeds, damages can be mitigated by several factors; they are mostly based on the s behavior. Avoidable Consequences Rule This rule serves to deny recovery to the extent that damages should have been, but were not, reasonably minimized or avoided by the . Note: This is distinct from contributory negligence because it is after s initial harm, and only impacts damages, not the negligence analysis. Contributory negligence is a factor before or during s negligent behavior. Example of difference: was not wearing a seatbelt and was hit by . Contributory negligence is either not liable, or less liable, by s behavior Avoidable Consequences - is still liable, but damages are lessened by s behavior Three Part Test: 1) Always look for a clear case of causal apportionment; 2) If theres no causal apportionment, reduce the amount of divisible items of injury; 3) If 1 or 2 doesnt work, then fuck it; comparative fault, split by percentage. Collateral Source Rule The other sources which cover expenses, such as insurance, are not deducted from damages paid by defendant. The should be held liable for all damages he caused. Criticism It could be a windfall, if is getting everything paid by insurance that they originally paid for, and then they get damages on top of that. Double recovery! Subrogation Insurance can get money from s insurance, or just . They can recoup some of the money they had to pay out to NOTE: Almost half of the states have abolished this rule.

II. Punitive Damages Punitive damages are those that are added on top of compensatory.
Note: They arent based on actual damages. Why have punitive damages? 1) Deterrence Specific Deterrence We want to deter from doing this again General Deterrence We want to deter society from being like . 2) Punishment We want to suffer for being such a douche about things. 3) To Fund Litigation So that can pay their attorneys fees; fewer suits will be dropped due to lacking financial resources Punitive Damages are usually decided by Jury and the instructions they receive Some courts hold that wanton/reckless behavior is required for punies. Others only require malice. Note: ordinary negligence is never enough, but sometimes gross negligence is. They are determined by the following factors: 1) Reprehensibility of s conduct 2) s wealth 3) Profitability of the misconduct. 4) s actual or potential harm Example State Farm case. Compare punitive w/ civil penalty amount and the ratio between comp damages and punitive damages; there shouldnt be more than single digit multiplication. Procedure: (1) Some jurisdictions require permission from judge before asking for punitive (2) Pleading requirements (cant ask for punitive damages unless judge allows you to amend complaint) Policy interest in trying to scare s away from asking for them. Cant find out how much they are worth in discovery.

Misrepresentation and Fraud

Misrepresentation - Representing or failing to represent something orally, in writing, or by conduct that causes economic damage to i) must, w/ the requisite level of culpability as to the truth of the matter,
(1) Fraud (a) Level of culpability (i) Knowing or reckless (a.k.a. Scienter) (b) Privity (i) is going to be liable to the entire class of person he intends or has reason to expect will rely upon the representation (third parties too) (c) Damages: (i) For fraud, you would generally choose the benefit of the bargain if the deal would be a good deal (ii) However, if it was a bad bargain, you would want to choose the out of pocket. (2) Negligence (a) Breach of duty (b) When makes statement in course of business, profession, or employment, or; (c) In any other transaction in which the has a pecuniary interest (d) Liability extends to those in a limited group of persons for whose benefit and guidance the defendant intends to supply the information, or knows the recipient intends to supply. (e) Negligent misrepresentations work in two ways: (i) Add into negligence and recognize economic loss as a legally cognizable harm (ii) Add negligence into fraud/misrepresentation. (f) Damages (i) Can only ask for out of pocket + consequential, not benefit of the bargain (3) Strict Liability (a) represents s/t and has given the representation that he has knowledge (b) must expect to gain some economic benefit from the transaction (c) Privity must be in privity for strict liability (d) Damages (i) At most going to get out of pocket, cannot also get consequential ii) Misrepresent or omit to state (like nonfeasance) (1) Duty to disclose? (a) Traditional Rule Just like nonfeasance No duty to disclose (b) Changing Rule (i) Special Relationships 1. Fiduciary/confidential relationship (ii) Half-truth (iii) Active concealment (misfeasance, not failure to represent but actually representing s/t) iii) A Material Fact (1) Representation is material if reasonable person would attach importance to its existence or non-existence in determining whether to enter the transaction iv) Upon which the actually and justifiably (or reasonably) relied (1) Reasonable reliance/Justifiable reliance (2) Subjective (3) Much like contributory negligence (a) Even if is in fraud case, if they have unjustifiably relied, they will probably lose v) And that proximately caused (1) Lost causation actually caused to lose money vi) Pecuniary injury to the vii) Damages Rules (1) Benefit of the bargain (a) Trying to put the in the position she would have been in if the representation was true (b) Only fraud cases, not negligence (c) Cannot get consequential damages on top of benefit of the bargain. (2) Out-of-Pocket loss (a) Designed to put in the position she would have been in had the transaction not occurred (b) Either fraud or negligence