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Torts Fall 2011 Professor Slater

Introduction to Torts
1. Common law subject, dictated by case law 2. Torts: a. Wrongdoings recognized by law as grounds for a lawsuit b. Conduct that falls below some legal standard, criminal is typically dealt with outside of torts law but some torts are also crimes (e.g. punching in the face is battery: both a crime and tort) c. Misc. civil wrongs that have little in common, best defined by what it isnt: criminal law, statutory law, property, contracts. It is all of the other types of civil wrongs d. E.g. blowing smoke in someones face, intentional grabbing of someones plate, 3. Torts law aims at vindicating individual rights and redressing private harms a. Harm required i. D is at some sense, at fault, either because he intends harm or because he takes unreasonable risks of harm ii. Injured person has a cause of action 4. Sometimes courts will pass statutes in order to address things that are not covered in tort common law 5. Questions to ask: a. What conduct counts as tortious or wrongful? b. Did the conduct cause harm that the law will recognize? c. What defenses can be raised against liability if the D has committed a tort? 6. Aims and Approaches in Tort Law: Justice and Policy, Compensation and Deterrence (thoughts on these concepts in common law and legal rules) a. Justice, Policy, and Process i. Morality or corrective justice ideals/policy hold Ds liable for harms they wrongfully caused 1. By making the wrongdoer compensate the P, the accounts are righted between the parties 2. Society may wish to compensate injured people by the use of public funds but it cannot force one to compensation another without fault 3. Individual accountability for fault, individual freedom to act without fault 4. Fault is judged by the fairness of imposing nonreciprocal risks or as judged by deviations from accepted norms ii. Social utility or justice good for all view, system of law that rules toward the good of the society iii. Potential conflicts between justice and policy one must prevail or both will be compromised

b. Compensation i. Some harm can be righted with compensation (e.g. loss of income, medical expenses) and others cannot (e.g. psychological, emotional distress) ii. Tort liability should be strict or expansive in order to secure compensation for more injured persons iii. Ds are seen as risk distributors who should be liable for any harms they cause regardless of fault because they can distribute the costs of paying compensation iv. Compensation is not more important than corrective justice or strict liability v. Judges feel heavily committed to a system of corrective justice and turn to social policy only when they feel social policy and corrective justice coincide and least in part. vi. If compensation is the most important goal, tort system is not the best way because other means are cheaper c. Deterrence/Punishment i. Deter certain kinds of conduct by imposing liability when that conduct causes harm ii. All persons, recognizing potential tort liability, avoid conduct that could lead to this d. Efficiency considerations of costs and utilities, greatest net good for the community (contrasted with fairness and justice) e. Process i. Rules that judges and juries can understand and apply in a practical way, and not leave too much to the judges or jurys discretion ii. Loose rule formulation may fail to constrain the judge or the jury iii. Tight rule formulation eliminates needed flexibility iv. Rules guide lawyers investigation and arguments f. No-fault model of torts i. Alternative to torts law. This can make things simpler ii. Modern tort law some things in modern tort law are still strict liability

Intentional Torts
1. Intentional torts are intentional bad acts a. Effects of Classifying a Tort as Intentional i. Intentional torts are generally deemed considerably more serious than torts of mere negligence. And yet, in certain circumstances, P is worse off if the tort committed against Ps is classified as intentional rather than negligent 1. Many insurance policies pay judgments for negligent and reckless acts but do not cover intentional torts thereby limiting the Ps potential source of recovery. 2. Another reason is that statutes of limitation for intentional torts are often much shorter than the statutes of limitation for negligent torts.

3. Ps sometimes underplead intentional torts to negligent torts to help the P 2. Battery a. Elements of Battery (need 1 and 2) i. 1 - Intent to touch 1. Subjectively wanted to accomplish a result 2. Substantially certain that an act will have a certain consequence ii. 2 - Touch with either an intent to harm OR offend b. Intent to touch i. 1 - Subjectively wanted to accomplish a result OR ii. 2 - An act must be done with substantial certainty that the contact or apprehension will result. 1. Substantial certainty more than just realizing it is a very grave risk. a. Grave risk may be negligent, but it is not intent. iii. Damages - P will almost always be able to receive damages whether or not there was harm in an intentional tort iv. Dual-intent requirement (old, not modern) 1. Intent to contact 2. Intent that the contact be harmful or offensive v. Single-intent requirement (new) 1. If one does something that society views as offensive in order to signify intent vi. Insanity/Incapacity 1. Whether courts adopt a single or dual intent rule may be important to cases involving children with diminished mental capacity where intent is hard to establish. 2. The US refused any blanket statement immunity for persons with mental disabilities. Might be worried about people faking it. 3. A mentally ill person may have an intent to invade the interests of another even though his reasons and motives for forming that intention may be entirely irrational vii. Child Liability 1. In most states, children may be liable for torts they commit as long as the injured P can prove the required elements including intent. In most states, a child cannot simply escape tort liability because of young age. Age 7 is typically used as the cut-off point. 2. Parents are not liable for the torts of their children simply by the virtue of being their parents, unless: a childs tort was committed willfully or wantonly and damages that may be obtained are limited 3. Parents are commonly alleged for negligent behavior not intentional torts

4. Often parents insurance policy may well cover minor children living in the household. Such a policy would pay any judgment rendered against the child. viii. Transferred intent the tort of battery or assault and battery may be committed, although the person struck or hit by the D is not the one whom he intended to hit. 1. Person to person - (if I intend to assault A but actually batter A, you have intended to batter A) ix. Trespassory tort to trespassory tort (for all intentional torts except for IIED) 1. Intend to assault someone but end up committing a battery, D will be liable for the battery 2. Can also work the other way intend to batter someone but only end up assaulting them defendant will be liable for the assault x. Extended liability (eggshell rule) D who commits an intentional tort, at least if it involves conscious wrongdoing, is liable for all damages caused, not merely those intended or foreseeable. xi. Thin skill plaintiff rule if D only means to offend but actually ends up harming P, they are liable for all damages c. Intent to touch i. Touching has to occur that is either harmful OR offensive ii. Touching cannot be accident or involuntary iii. What is an offensive touching? 1. Something that is offensive to most people (spitting, hitting, throwing items) 2. OR if you have been told that something is offensive. Other things may be offensive, subjective, and may not be shared by the general public. One must inform others that the behavior is offensive to them that would otherwise be unknown a. Therefore, intent to offend has been established because one knew that the action would offend prior to 3. You are responsible for knowing what is offensive to most reasonable people 4. Example - Touching can be smoke blown in someones face (due to particles of the smoke), grabbing someones cane, intentional grabbing of someones plate/snatching of an object from ones hand as an invasion of his person 3. Assault (need 1 and 2) a. 1 Put P in reasonable apprehension of imminent touching that would be a battery or other trespassory tort (all intentional torts e.g. battery, false imprisonment) AND b. 2 - D accomplishes in putting P in apprehension of imminent touching i. Imminent: if the conditions are those that the D does not have the right to impose.

1. Not imminent I would beat you up but my wife is here 2. Imminent - I will beat you up if you dont give me your wallet. c. Most common form of assault - make you afraid that I am going to hit you or make you fear that I am going to falsely imprison you d. NO TOUCHING REQUIRED, touching of the mind, invasion of the Ps mental peace e. Courts have sometimes said that courts alone do not make the actor liable for assault unless together with other acts or circumstances they put the other in reasonable apprehension. P must reasonably apprehend an immediate touching and that in most cases words alone will not suffice to create such an apprehension. f. Not assault: i. Conditional language: 1. Im going to shoot you - not reasonable that you are going to do it unless you actually have a gun. 2. If the police officer was not here, I would punch you. - there are no facts to make it reasonable to believe that the D will strike you in spite of the officers presence. ii. Long term threats (because they are not imminent) g. Transferred intent also applies to assault 4. False Imprisonment (trespassory intentional tort) a. A person confines another intentionally without lawful privilege and against his consent within a limited area for any appreciable time, however short b. Requirements: i. 1 - D intends to and does in fact confine P within fixed boundaries ii. 2 - P is conscious of confinement or harmed by confinement 1. Confinement P must feel as if they realistically cannot leave and will be restrained if they try to leave. 2. Confinement implies limited range of movement and is not enough to exclude the P from some place such as a bar or restaurant (this is not confinement from a fixed boundary) c. False imprisonment is a trespassory tort - P can recover damages even if she sustains no harm. Actual harm is required to support a claim where the P was not aware of the confinement. d. Duration: even when an arrest and detention are originally justified, the legal justification may dissipate over time. e. Storekeepers privilege have the right to do reasonable investigations and confine people when they are doing such investigations. i. Storekeeper must have good faith belief that someone stole something ii. Can only take as much time as is reasonably needed to determine if the person has stolen something or not. Once you have made a determination about the person, the privilege no longer holds. iii. Cannot make excessive threats or use excessive force f. Damages

i. Ps can get damages from false imprisonment (and all other trespassory torts) even if they cannot prove harm. The law provides ones right to be undistributed from trespassory torts. ii. You must be AWARE of the confinement in order to receive damages iii. If suffer from harm, you dont need to prove awareness iv. Conclusion need to suffer harm or be aware of confinement g. Transferred intent applies here as a trespassory tort to trespassory tort a person intends to commit battery but ends up falsely imprisoning, person is liable for false imprisonment 5. Torts to Property a. Trespass to Land i. Intentional entry upon land of another 1. Can be personal entry or intentionally causing an object to enter the land ii. Entry must be intentional 1. No defense if you believe it is their own land or that there is a right to be there 2. Also includes substantial certainty of the consequences of trespass iii. Trespass and nuisance 1. Trespass is an invasion of the Ps interest in the exclusive possession of his land 2. Nuisance is an interference with his use and enjoyment of it iv. Injunction and damages 1. When physical harm is inflicted, D is liable for damages measured either by the cost of repairing damage or by the diminution in the value of the premises resulting from the tort depending on the circumstances 2. Punitive damages- if the trespass is deliberate or malicious. Liable for unexpected harm (trample rare and precious flowers) 3. Nominal damage award represents the recognition that although immeasurable in dollars, actual harm has occurred. v. Transferred intent applies here if you intend to enter Bs land but end up on Cs you will be liable vi. Reasonable space above and below the land no bright line rule for height but at a certain height, becomes navigable air space by federal law b. Conversion of Chattels/Trover i. Requirements: 1. D must intend to exercise substantial authority/dominion over the Ps chattel (item of tangible movable or immovable property except real estate connected with real property) a. Authority/Dominion - Do something significantly harmful to Ps chattel or right to chattel, significantly damaging, significantly destroying, restricting access

2. Actually did exercise authority over Ps chattel. There is no requirement that the D be conscious of wrongdoing. ii. Conversion factors: 1. Extent and duration of control 2. Ds intent to assert a right to the property 3. Ds good faith 4. Harm done 5. Expense or inconvenience caused iii. May be accomplished by aiding and abetting anothers conversion (someone stole a car, and you stored the car) iv. Remedies: usually the value of the chattel at the time of conversion or actual return or replacement c. Trespass to Chattels i. Interference of a persons chattels ii. Something short of a conversion iii. Liability is based on actual damage 6. Intentional Infliction of Emotional Distress (IIED) a. Can have IIED without assault or battery, fairly limited tort. Can also be added on to other torts but mostly IIED claims occur when no other tort claim is available b. Courts have to balance between preventing serious emotional harm and not making trash talking a tort c. Requirements: i. P must prove that the Ds conduct was extreme and outrageous 1. Ongoing, severe, regular, repeated acts 2. Abuse of power related to the relationships between the parties (e.g. relationship between boss/employee). Some states will provide more protection for employees in this situation 3. Often fact-sensitive and judged on case by case basis 4. Reckless conduct, not just intentional conduct can support a claim ii. Emotional distress must be severe or even debilitating iii. P must prove sufficient causal link between the Ds conduct and Ps distress iv. When applicable - knowledge of Ps vulnerability: if D knows that I am exceptionally sensitive and continues to act, he/she will be liable d. A person cannot be liable for this tort for mere exercising legal right, even where he is substantially certain that it will cause emotional distress such as filing for divorce, firing an employee, debt collection e. State and federal statutes may come into play to provide causes of action for Ps who might otherwise be limited to common law recover for IIED. i. Sometimes provide causes of action for discrimination against persons suffering from disabilities ii. Sexual harassment can be redressed under federal or state anti-discrimination statutes

iii. Employment discrimination - most commonly protects economic rights rather than rights in emotional tranquility. Can sometimes recover limited emotional harm damages. f. Common carriers are held to a higher standard in IIED cases i. E.g. buses, trains, anyone offering transportation for money g. Transferred intent applicable based on presence requirement. When conduct is directed at a 3rd person, the actor is liable when: i. Immediate family member present at the time whether or not such distress results in bodily harm of the immediate family member ii. Any other person who was present if such distress results in bodily harm of this person (ulcers, night sweats, tremors, etc) iii. D has to know that the person is there iv. These requirements help to limit the number of Ps for lawsuits

Defenses to Intentional Torts


1. Protecting Against the Apparent Misconduct of the P a. Self Defense i. One is privileged to use reasonable force to defend against harmful or offensive bodily contact and against confinement ii. An actor is privileged to use that amount bodily harm or confinement in selfdefense which the actor correctly or reasonably believes to be necessary for his protection iii. Depends on the apparent necessity of self-defense, not on actual reality 1. Thus, if the D believes she is being attacked, she is privileged to use reasonable force to forestall the attack or minimize its effects 2. Retreat D who is attacked is not required to retreat or otherwise avoid the need for self-defense a. In minority jurisdictions (Ohio), you must attempt to retreat if it is safe and reasonable and if threat is deadly or would result in serious bodily harm 3. When a D is threatened with sexual attack or force likely to cause death or serious harm. Some states require reasonable retreat before deadly force is used when the D is not at home. 4. Excessive force privilege only covers reasonable force. Any excessive force is unprivileged. D who retaliates or continues the defense after the fight is over is also liable. Excessive force is negligence and allows P to reach to Ds insurance 5. Provocation one MAY be privileged to commit what otherwise would be an assault or false imprisonment in self-defense. D may be privileged to put the P in apprehension of a harmful or offensive bodily contact even though the contact itself would not be privileged.

b. Defense of Third Persons most courts believe that the privilege is covered to other third persons as long as the Ds belief was reasonable that the third person caused the harm c. Arrest and Detention i. Allows a merchant who has a reasonable cause for believing that a person has violated this section in his or her presence to detain the person in a reasonable manner for a reasonable length of time to deliver the person to a peace officer. Provides immunity from civil or criminal liability to any merchant, merchants adult employee, or merchants security agent who acts in good faith. Three reasonable requirements: 1. Reasonable cause to believe the person violated a law 2. Manner of the detention and actions taken are reasonable 3. Length of time of the detention and actions taken to detain must be reasonable 4. No opinion whether there may be circumstances under which this privilege may extend to the detention of one who has left the premises but is in their immediate vicinity ii. Public policy supports construction of detain and supports the shopkeepers d. Defense and Repossession of Property i. An owner is prohibited from willfully or intentionally injuring a trespasser by means of force that either takes life or inflicts great bodily injury. 1. Value of human life and limbs greatly outweighs someones chattels or possessions. There is no privilege to use force or cause death in trespass. 2. Force used must be a kind of appropriate to the defense of the property. 3. Must also be in hot pursuit(immediate situation, cannot go over to someones apartment three days later and hit them in the face after a bar fight). ii. Can use transferred intent for defense of property 1. E.g. if shoot a gun in the air to perform assault if someone is on your property but instead you do actually hit someone, can help D iii. One cannot use force in the repossession of consumer goods such as automobiles even though the buyer is in default. Car seller may repossess the car from the defaulting buyer only if he can do so peaceably. Buyer may defend his possession with reasonable force. e. Discipline of Children i. In states where children are permitted to sue parents, parents still have a privilege to discipline and to use force and confinement to do so. ii. Parents may use reasonable force as they reasonably believe necessary for discipline and can also be extended to teachers, babysitters, school bus driver, etc

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iii. Need to consider childs age, gender, physical and mental condition, etc Consent i. Actual consent one explicitly says that you can do something (verbally or inviting) ii. Apparent/effective consent facts are such that a reasonable person would believe that they have consent. Behavior makes it reasonable for those around me to assume that I consent. 1. Exception if person is mislead as to what they are consenting to iii. Requirement - Demonstrate that the harm done to you is more than normal conditions would expect (shoving during a basketball game might be okay, stabbing would not be okay) iv. Minors - It is generally assumed that minors may consent to a number of touching appropriate to their age v. Abortion States can require notification to parents of a proposed abortion but must leave room for a minors abortion when the minor is fully capable of consenting and also when an abortion is needed because of the minors life or health. vi. Intercourse Many states impose criminal liability for sexual conduct with a minor, the minors consent is ineffective and provides no defense. vii. Incapacity Incapacity of an adult is usually established only by showing that the adult could not manage his own affairs or in consent cases, that he did not understand the nature and character of the act and thus cannot provide consent. viii. Medical in a situation where there was consent given for a certain procedure, if one exceeds that consent, battery claim is typically found. Rule those undergoing medical procedures typically have the ability to give consent or not given consent. 1. Absence of proof to the contrary will be construed as general in nature and the surgeon may extend the operation to remedy any abnormal or diseased condition in the area of the original incision whenever he determines there is a required extension of the original operation. a. Law assumes that patient would have consented to other operations as well 2. Emergencies Consent does not apply ix. Substituted consent when someone is appointed as a guardian for a person who is incompetent or unable to give or without consent should make the decision. x. Incompetence to give consent competence to consent should be measured by the Ps ability to understand the condition, nature, and effect of the proposed treatment or its rejection (e.g. intoxicated patient) xi. One who knows he has a venereal disease and knows that his sexual partner does not know of his infection commits a battery by having sexual intercourse.

xii. Consent by fraud is no consent at all xiii. To avoid the effect of a manifested consent the Ps mistake must be about the nature and quality of the invasion intended by the conduct xiv. P can revoke consent at any time by communicating the revocation to the D xv. Consent to crime/illegal acts consent is generally effective and neither A nor B is liable to each other. (e.g. A and B engage in an illegal boxing match, neither can sue each other.) Victims are often induced to consent by pressures against which the legislature wishes to protect and in such a case the expression of consent is ineffective. 2. Defenses not based on Ps actions a. Public necessity i. Arrests and searches officers are privileged to enter land to execute a search or arrest warrant. But they are not privileged to invite the news media to cover their heroics ii. Majority Rule: if it is apparently necessary to stop harm to the public, a D does not have to compensate a P whose property was converted or trespassed. 1. Ps cannot recover for the value of the goods which they might have saved. They were as much subject to the necessities of the occasion as the house in which they were to situate. 2. One is privileged to enter the land in the possession of another if it is, or if the actor reasonably believes it to be, necessary for the purpose of averting an imminent public disaster. 3. Must prove strong necessity to perform this activity. a. Actual Necessity: prove that you needed to harm Ps property. b. Apparent necessity: had an objectively reasonable, good faith belief that you needed to harms Ps property. iii. Minority rule Ps can recover for the value of goods if trespassed against in a necessary action to stop harm to the public b. Private necessity i. One may sacrifice the personal property of another to save his life or the lives of his fellows. An entry upon land to save goods which are in danger of being lost or destroyed by water or fire is not a trespass. ii. When injury is inflicted because D prudently and advisedly availed itself of the Ps property for the purpose of preserving its own more valuable property not allowed, must pay damages

Negligence: The Prima Facie Case


1. Problems with negligence law a. Litigation finance attorneys fee b. Liability insurance policy limit likely does not cover serious injury c. Settlement almost all injury claims are settled without trial

2. Elements of a Prima Facie Negligence Case a. Duty: D owed P a duty b. Breach: D breached the duty by behaving negligently c. Damages: P suffered actual damage(s) d. Actual Cause: Ds act was an actual cause of the damage (see 3) e. Proximate Cause: Ds act was a proximate/immediate cause of the damage (see 3) 3. Duty: D owed P a duty a. General duty of care: prudent person standard - what a reasonable person would do under the same circumstances i. Care which is reasonable of the actor varies with the danger involved in this act and is proportionate to it. The greater the danger, the greater the care which must be exercised. What a reasonable person would do under the circumstances. b. Exceptions: i. Emergency care - lowers the standard for what a reasonable person would do. Courts are increasingly skeptical of this rule because negligence standard can already be applied (e.g. what would a reasonable person do in an similar situation or in this case, an emergency situation?) 1. Emergency: sudden, unexpected and unforeseen happening or condition that calls for immediate action that was not created by the party seeking the instruction. ii. Physical disabilities DOES count as a circumstance and one should act with care such as one in the same circumstance. iii. Sudden incapacitation DOES count, alleged negligence is caused by a sudden physical incapacitation (seizure, heart attack) that is not foreseeable, there should be no liability iv. People with additional training/experience DOES If the actor has in fact more than the minimum of these qualities, he is required to exercise superior qualities that he has in a manner reasonable under the circumstances. 1. Example - A doctors special training will certainly be taken into account where the doctor is a D in a medical malpractice case. c. Other special circumstances i. Mental disability - A person with mental disability is generally held to the same standard of care as that of a reasonable person under the same circumstances without regard to the alleged persons capacity to control or understand the consequences of his or her actions. Mental disability is NOT a circumstance. 1. Court is concerned about people faking mental disability. 2. Mental disability: defined by the amount of care required by caregiver to disabled individual 3. Policy reasons for equality for people with mental disabilities: a. Want to treat disabled people the same as non-disabled. b. Want to integrate them into the least restrictive environment.

c. Ensure people are not faking mental illness d. Avoids admin issues to ID and assess significance of actors disability e. Forces persons with disabilities to pay for the damage they do if they are to live in the world. 4. Insanity, mental deficiency relieves the actor from liability and his conduct must conform to the general standard of care of a reasonable personal under similar external circumstances 5. Low intelligence and other mental or psychological limitations are treated the same way ii. Children - required to exercise same duty of care of a reasonably careful child of the same age, maturity, intelligence, training and experience, etc. 1. Majority rule - children of very young years, 3 and under are simply incapable of negligence. Restatement - children under 5 are incapable of negligence. 2. Minority rule - Rule of 7s to determine a childrens duty to care (e.g. under 7, 7-14, 14& above) 3. EXCEPT: In dangerous situations, children should be held to an adult standard of care. a. This protects need of children to be children but discourages immature individuals from engaging in inherently dangerous activities. Children are still free to enjoy traditional childhood activities without being held to an adult standard of care. 4. Breach of Duty: a. Negligence Per Se i. Courts only use negligence to describe the first two elements, duty and breach. This doesnt prove the entire prima facie case. ii. If you do X action, as a matter of law you have breached your duty of care (breach and duty elements of negligence). iii. Legal doctrine in which an act is negligent because it violates a law or statute 1. Ps like this because it alleviates the necessity to prove negligence, but disfavors Ds 2. Shifts power from jury to judge. Judge takes away ability of jury to determine duty and breach regarding negligence 3. Makes law more predictable 4. Courts have started making exceptions negligence per se rules in order to avoid harsh and unfair results iv. Example breaking a criminal law is always a breach of duty and therefore always negligence per se v. Negligence per se is not applicable to all statutes. It only applies to statutes that provide for criminal liability (fines, imprisonment) but not civil penalties

vi. Majority rule once you establish negligence per se, this is irrefutable and breach of duty is found vii. Minority rule negligence per se can be entered into evidence but does not necessarily prove breach of duty and is refutable viii. Elements of negligence per se, statute/regulation: 1. Must clearly define the required standard of conduct 2. Must have been intended to prevent the type of harm the Ds act or omission caused 3. P must be a member of the class of persons the statute or regulation was designed protect 4. Violation must have been the proximate cause of the injury ix. Licensing 1. Majority dont grant negligence per se for licensing statutes 2. Minority exception A few states till apply licensing statutes to negligence per se x. Excuses/Justifications 1. Violation is reasonable because of the actors incapacity (unexpected heart attack, seizure) 2. Actor does not know nor should know of the occasion for compliance (taillight going out and actor doesnt know) 3. Unable after reasonable diligence or care to comply (applies to an impossible situation, cannot stop passing once started once the 100 feet rule applies) 4. Emergency situation (child in middle of the street) 5. Compliance would involve a greater risk of harm to the actor or to others (guy walking on the wrong side of the road) a. Example - Ipson v. Structural Metals D attempted to pass a car within 100 feet of an intersection. Another car turned left into the intersection and was struck by the D. There is a statute prohibits passing within 100 feet of an intersection. 6. Children a minors violation of a statute does not constitute proof of negligence per se, but may, be introduced as evidence of a minors negligence 7. If a party fails to prove negligence per se, they should try to prove duty and breach through a traditional negligence case b. Foreseeable Risks and Costs i. Questions to think about: 1. Risky certain harms are foreseeable, potential, could happen and a reasonable person should know this 2. How likely is it that this will go wrong? 3. How bad will the harm be if it actually happens? 4. What do expect a reasonable person to do to avoid the harm?

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5. What benefits come with doing this action? Some courts hold that foreseeability of harm is necessary for a duty of care to exist at all Other courts and Restatement disagree and state that foreseeability of harm on the duty issue usurps the jurys function to decide as a factual matter whether a duty was breached No disagreement that foreseeability of harm is central to the issue of whether a persons conduct fell below the standard of reasonable care 1. Just because something is POSSIBLE, doesnt mean it is reasonably foreseeable. One is not required to anticipate what is unlikely to happen. Obviousness of danger obviousness of a risk may make the likelihood of its materializing so slight that there is no need to try to eliminate the risk. It is not unreasonable to fail to take action to lessen a risk to someone that is so patently obvious that the other person can be relied up to avoid it on his own. Children/parents - If parents or caregivers are unaware of a particular danger, it is reasonably foreseeable that they will fail to prevent a minor child from encountering that danger. No liability for failing to protect a child visiting in the company of a parent from the dangers posed by ordinary household objects When injuries might be serious, the likelihood of accidents need not be high to warrant careful consideration of safety features. Criminals - during pursuit of criminals, no negligence in harm done while in pursuit. You have to balance pursuit of criminals and the good of citizens. Carroll Towing rule 1. Probability*Liability(Loss) > Burden(of avoiding injury) Breach duty 2. Probability*Liability(Loss) < Burden (of avoiding injury) No breach 3. Example - US v. Carroll Towing Collision and sinking of a barge. D did not have a bargee on board that may have prevented this. a. Court concluded that in this case, the burden of having a bargee on board is less than the probability and liability of a collision. b. The party asserting negligence first identifies some specific act of negligence, by pointing to what the D did or did not do and identifying some specific safer conduct that might have been pursued. If alternative was safer, court will want to know how much safer and information about its costs. Major factors in foreseeability: 1. Foreseeable likelihood that conduct will result in harm 2. Foreseeable severity of any harm 3. Burden of precautions to eliminate or reduce the risk of harm Actor only needs to consider those risks that would be taken into account by a reasonable person. This is why courts discuss whether harm is foreseeable.

They limit liability to cases in which the actor can recognize a risk or danger. Information about the existence and degree of risk is itself an item of cost. c. Assessing Responsibility When more than one Person is Negligent i. Cases in which both P and D are negligent and liability of one person does not necessarily exclude liability of another. ii. Comparative fault each faulty party must bear his or her share of the losses iii. Apportionment among multiple Ds damages/recovery spilt according to amount of fault 1. Majority rule: Joint and several liability Ds are all liable. P can enforce tort claim against any tortfeasor. P can actually obtain a judgment against both or just one but cannot collect more than her full damages a. Contribution Allow one negligent party to obtain contribution from other negligent party. You sue D1 and D1 collects from D2 and D3. 2. Minority: several liability Spilt payment among Ds. d. Conduct i. Negligence must be shown to be more probable than not, facts must reasonably show that the probability of negligence exceeds one-half. ii. Witness opinions 1. Non-expert opinion witnesses are not usually permitted to give opinions on ultimate issues that would be reserved for jury decision. Witness is required to instead state facts within his knowledge. 2. Expert opinion Allowed to give expert opinion or conclusions within the field of their expertise. a. Experts often disagree and juries have little basis for resolving such conflicts of opinion iii. Rule: To recover for injuries, P must show that the premises owner either created a dangerous condition or had actual or constructive knowledge of a dangerous condition iv. Three common theories of liability (especially relating to spills/slip and fall cases) 1. D created and failed to take reasonable actions to abate the hazard (waiter spills sauce on the floor) 2. D did not directly create condition but discovered or should have discovered a condition created by others (constructive notice) and failed to take reasonable steps to prevent injury from that condition 3. D mode or method of business operations made it foreseeable that others would create a dangerous condition and D failed to take reasonable measures to discover and remote it v. When should D have discovered a possible hazard and mitigated the risk?

1. If hazard has been there for a long period of time, then jury is permitted to conclude that a reasonable person would have discovered and remedied it 2. If D was on constructive notice of the danger, meaning that he should have discovered it (this is difficult to prove) 3. D may be found negligent for a repeated offense, pattern of conduct, or general or continuing condition vi. Rule regarding standards/manuals: You can set standards for care for yourself that exceed ordinary care and the fact that youve done that shouldnt be used against you. Rules in the manual may be established for any number of reasons having nothing to do with safety and ordinary care (e.g. clean appearance) 1. Failure to follow a partys precautionary steps or procedures is not necessarily failure to exercise ordinary care vii. General Custom Rule: Proof of a general custom and usage is admissible in proving negligence because it tends to establish a standard by which ordinary care may be judged even if the custom exceeded a statute or ordinance for care 1. What does custom prove? a. Harm was foreseeable b. Activity was recognizably risky c. D knew or should have known of the risk d. Risk was an unreasonable one unless the customary precaution is taken or at least that it was unreasonable in the opinion of the community in general e. Res Ipsa Loquitur - proving unspecified negligence i. Res Ipsa Loquitur the thing speaks for itself ii. Exception to the general rule, where P cant come up with the type of evidence to get past motion to dismiss or summary judgment iii. Majority rule - Allows for indirect evidence and at least get case to get to the jury, allows for inference of negligence, doesnt necessarily mean that P will win iv. Minority: presumption of breach of duty in res ipsa, if D puts forward no evidence then P will likely win v. Res ipsa does not shift the burden of persuasion from the P. Thus, even if D introduces no evidence at all, jury may reject inference and bring a verdict for D. vi. Res ipsa typically comes into play because there is an imbalance of knowledge between P and D. P doesnt know something and D knows how the accident occurred 1. Some courts say that res ipsa cannot be invoked unless D has superior knowledge vii. Elements of res ipsa: 1. Accident which produced injury was one which does not happen in the absence of negligent

viii. ix. x. xi.

xii.

2. Other responsible causes including the conduct of the P and third persons are sufficiently eliminated by the evidence (what caused the injury was in exclusive control of the D) 3. Negligence is in scope of Ds duty to P (P did not cause any part of the incident) To invoke res ipsa, P must first show that negligence is more probable than not or that the event does not ordinarily occur without negligence of someone. Res ipsa is not typically applicable to ordinary accidents (e.g. rear end collisions, slip and fall accidents, etc). For res ipsa to apply, Ps need to sufficiently exclude inference of the responsibility of others besides D in causing the accident If P relies on res ipsa, and D comes forward with explanation that it was not the Ds fault, allows P to put a burden of proof on the D particular negligent conduct while relying on res ipsa in the alternative as long as the specific evidence does not provide a complete explanation. Attributing fault to D rather than to others 1. Res ipsa can apply to a case even where the Ps negligence contributed to the injury as long as D was negligent in duty or control 2. When there are two Ds who had consecutive control over P and either one could have caused Ps injuries, both are named in the complaint, then there is a res ipsa case a. Res ipsa does not normally help P when the two parties had control at different times b. If two parties have an ongoing relationship pursuant to which they share responsibility for a dangerous activity, and if an accident happens establishing negligence of one of the two, you can impose res ipsa on both

5. Damages/Harm a. P must suffer legally cognizable harm, frequently referred to as actual damages b. Rule: P must prove actual damage. Conduct that was merely negligent, without proof of an actual injury, is not considered to be a significant interference with the public interest such that there is any right to complain of it, or to be free from it. c. Real damages: i. Medical expenses ii. Lost wages, earning capacity iii. Pain and suffering (including emotional harm) iv. Damages for any other specifically identifiable harm (travel expenses for health care) v. Punitive damages are usually not available (looking for D with bad intent) 6. Cause in Fact/Actual Cause a. P must prove not only that they suffered harm, but that the harm was in fact caused by the D. (Did As negligence lead to Bs harm?)

i. Negligence requires both actual cause and proximate cause and are different. Both must be proven by the P by a majority of the evidence. ii. General rule - But for test: but for Ds negligence, would P injury have been avoided? 1. It is not necessary that the Ds act be the SOLE cause but only that it be a cause. 2. If Yes no cause in fact, P would have gotten hurt anyway 3. If Yes is cause in fact 4. For difficult cases, imagine what would have happened if D had not breached duty a. Determine duty, if D breached duty, and if that breach was the actual cause of the injury b. Would things have ended up differently if D had not been negligent? iii. Respondeat superior liability/liability without but-for causation under some circumstances, D is liable for harm to the P even though the D is negligent or illegal conduct was not a but-for cause of the harm 1. If tortious conduct of A (R.R. company fire started from sparks in engine) fails to but-for test only because there is another set of conduct also sufficient to cause the harm (larger city-wide fire in Anderson), As conduct is still a cause in fact. iv. More than one person causing an injury 1. Separate or divisible injuries a. Each tortfeasor will be liable for the harms that tortfeasor caused and no more. b. All of the wrongdoers will be held jointly and severally liable for the entire damages and the injured party may proceed to judgment against any one or separate or against all in one suit. 2. Single indivisible injury a. Depends on the fault-apportionment rule (joint and several liability with possible contribution or proportionate fault liability). If you cannot apportion liability by causation, must use some form of fault apportionment. b. Sole tortfeasor is solely responsible, not the innocent party v. Substantial factor test D action needs to be a substantial or material factor in Ps harm. Ds acts need to cause substantial harm on their own vi. Increased risk showing causation If Ds act increased risk of a harm when there was always some risk of the harm, and then the harm occurred. Courts permit juries to find that the D negligent act or omission was a cause in fact of Ps harm. b. Proof: What was caused? i. Liability for negligence attaches only when actual cause links the Ds negligence to Ps injury. ii. How Ps injury and Ds negligence are defined are important parts of the causation.

iii. Burden of Proof Shift to Ds in Single Injury Rule: Ds who are action in concert and create a single injury (injury that only one could have really caused), court will shift burden of proof to Ds to determine who DID NOT cause the harm. Different from above rules. iv. Loss of opportunity doctrine medical malpractice form of recovery which allows a P whose preexisting injury or illness is aggravated by the alleged negligence of a physician or health care worker, to recover for her lost opportunity to obtain a better degree of recovery. The rule varies according to jurisdiction 1. Approach 1 preponderance test (traditional rule followed by minority of courts) P must prove each element of her case by a preponderance of the evidence. Greater weight of the evidence - more likely than not. Require P to persuade the trier that the probabilities are greater than 50% that each element is established. a. P must prove that as a result of the Ds negligence, P was deprived of at least 51% chance of a more favorable outcome than actually received. b. May recover damages for the entire preexisting illness or condition. 2. Approach 2 relaxed causation test ease Ps burden of proof in cases when a physician causes the loss of a chance of 50% or less. Courts permit juries to award full damages as if the P had proved causation by preponderance of evidence a. P submit their cases to jury upon demonstration that a Ds negligence more likely than not increased harm to the P or destroyed a substantial possibility of achieving a more favorable outcome b. P not precluded from recovering simply because a chance of a better recovery was less than 51%, so long as she could prove that the D negligence increased harm to some degree. Precise degree required depends on the court jurisdiction. c. Once P meets burden, recovers damages for the entire underlying preexisting condition or illness rather than the loss of opportunity 3. Approach 3 lost opportunity/lost chance approach (emerging majority rule) If P can establish the causal link between the Ds negligence and the lost opportunity, the P may recover that portion of damages actually attributable to the Ds negligence. a. Permits P to recover for the loss of an opportunity for a better outcome, an interest that courts agree should be compensable while providing for the proper valuation of such an interest b. E.g. if chance of survival was 40% and D negligence more than likely than not eliminated that chance, D would be liable for the loss he has caused the chance of 40% survival. c. Example of 3 approaches: Each patient had a 1/3 of 33.33% chance of survival if properly treated. D treats each one and all 3 die. In each

case, damages for wrongful death would have been $100,000 if negligence was a cause of harm. Rule Traditional Rule Relaxed causation Lost chance Omniscient trier Recovery $0 $100,000 $33,333.33 each $100,000 to one estate Total Liability $0 $300,000 $100,000 $100,000

Cause in fact rule c. P must prove not only that they suffered harm, but that the harm was in fact caused by the D. (Did As negligence lead to Bs harm?) d. Negligence requires both actual cause and proximate cause and are different. Both must be proven by the P by a majority of the evidence. e. Cause in Fact exceptions: Parties If two or more wrongdoers not in concert Two or more wrongdoers One wrongdoer, one innocent/unknown Two or more wrongdoers acting in concert Two or more wrongdoers acting in concert One wrongdoer and one innocent Type of Injury Separate injuries Indivisible Indivisible Separate or indivisible One single injury One single injury Liability Separate liability Joint and several liability All on wrongdoer Joint and several liability Shift burden of proof No shift in burden of proof

7. Proximate Cause reasonable minds can differ on what encompasses a foreseeable injury from the negligence a. WHENEVER there is a third party involved, there will be a proximate cause issue b. Scope of Risk Element/Foreseeability i. Harm that occurred to the P must be of the same general nature as the foreseeable risk created by Ds negligence 1. Liability must be rejected unless a reasonable person would have reasonably foreseen and avoided harm of the same general kind actually suffered by P 2. D who negligently creates a risk to the P is subject to liability when that risk or a similar one results in harm but not when some entirely different risk eventuates in an entirely different harm ii. How to ID proximate cause: 1. ID risks that called for more care would a reasonable person think that: a. If I do/dont do A, this will happen. 2. Scope of risk could reasonable people think that, negligence alleged results in the result of the situation?

iii. Reasonably foreseeable - risk to another or to others within the range of apprehension. If a reasonable person would foresee no harm to anyone as a result of his actions, we do not need to reach the proximate cause issuer. (Similar to negligence per se but that is about breach of duty) iv. Two rules reflect the two ways to look a proximate cause question: 1. Cardozo/Majority Rule - D is liable only for: a. Type of injuries foreseeably risked by his negligence and b. To classes of persons foreseeably risked by his negligence c. Question of whether or not there was a duty by D d. Risk reasonably perceived defines the duty; whether harm was apparent to the eye of ordinary vigilance 2. Andrews/Minority Rule - Person who is negligent to any class of persons is negligent to everyone who is in fact injured and proximate cause is not a matter of foreseeability alone a. D had a duty, but was the harm foreseeable? b. Have a duty to all people in the world to not unreasonably participating in risky acts, negligence toward one is negligence to all c. proximate cause depends upon these factors, look at these factors together i. whether the action was interrupted (was it a natural event without intervening causes) ii. if it was too remote in time and space (was there distance in time and space) iii. was the harm a likely or usual result of a negligent act iv. was the negligent act a substantial factor in the harm v. Rule: Where a Ps injury is foreseeable, but the injury is caused in a unique way or manner which could not have been foreseen, the result is within the chain of proximate causation and that element of negligence is satisfied. 1. Type of harm (matters) 2. Manner of harm (doesnt matter) 3. Extent of harm (doesnt matter) vi. Rescue Doctrine 1. Danger invites rescue rescue attempts are reasonably foreseeable 2. D is liable to the third party vii. Extended liability (eggshell rule) (same as intentional torts!) D who commits a negligent tort is liable for all damages caused, not merely those intended or foreseeable 1. Does not impose liability without fault. Ds act must have been one that would cause some harm to a normal person or D must have been at fault he knew or should have known of the Ps susceptible condition.

2. D does not escape liability for the unforeseeable personal reactions of the P, once negligence or intentional fault is established c. Intervening Acts/Forces & Scope of Risk i. Superseding cause something that is so unlikely or so unpredictable that it breaks the proximate cause chain ii. Intervening cause - A cause which supersedes a prior wrong as the proximate cause of an injury by breaking the sequence between the prior wrong and the injury. Lies within the scope of the foreseeable risk or has some connection to the foreseeable act iii. D will likely argue that intervening acts superseded their negligence and the causal chain is broken 1. Intervening cause and criminal acts a. Minority/old rule criminal acts of third parties always broke the proximate cause chain b. Majority Rule criminal acts may in themselves be foreseeable and so within the scope of the created risk (this rule is evolving). i. If D creates an increased risk for the criminal act to take place, they can be liable if the harm is foreseeable from their actions iv. Suicide as a superseding cause Where a P intentionally attempts to commit or commits suicide, the act is a superseding cause of Ps harm, freeing D from any liability for negligence. (Generally A does not have a duty to protect B from harm) Except: 1. Where the Ds tortious conduct induces a mental illness or an uncontrollable impulse in the P from which the suicide attempt results 2. Where there is a special relationship between the two parties, that presumes or includes knowledge by the D of Ps risk of committing suicide v. Negligent Intervening Acts 1. A negligent intervening act may not serve as a superseding cause, and relive an actor of responsibility 2. An intervening force which falls squarely within the scope of the original risk will not supersede Ds responsibility. a. Example Derdiarian v. Felix Contracting D was doing roadwork. There was a very hot vat of liquid which was protecting by a single road barricade and a single flagman. A car hit the liquid and splattered on the P. i. P wins because the fact that the car hit the liquid, that was a foreseeable injury/harm. The fact that the driver was negligent or even reckless does not insulate D from liability. Manner of the event need not be anticipated (driver forgot to take his seizure medication).

d. Enhanced harm all courts agree that when a D causes harm to a person, that D will also be liable for any enhanced harm caused by the later negligent provision of aid, including negligent medical treatment. i. If the original tortfeasor is liable for injuries or death suffered during the course of treatment, the original tortfeasor is liable for injuries or death suffered during the transportation of the victim to a medical facility for treatment of the injuries resulting from the accident. e. Termination of the risk Ds conduct creates a risk but the risk is no longer existent. P has reached apparent safety

Defenses to Negligence
1. Contributory negligence a. Minority Rule - Contributory Negligence i. Complete all or nothing defense, even relatively minor failure of the P to exercise ordinary care for their own safety would completely bar recovery. Even if the Ds negligence was so extreme, so long as it fell short of a reckless or wanton act. b. Majority rule Comparative Negligence i. Pure comparative fault negligence % of fault = % of award ii. Modified comparative fault negligence P can only recover if Ps negligence is not greater than Ds negligence. 1. E.g. if P was 75% negligent, they get nothing c. Reciprocal and Non-reciprocal risks i. Reciprocal risk D is negligent and P is negligent and their negligence risk harms to themselves and to each other. ii. Non-reciprocal risk P negligence risks harm to P only. D risks harm to P only. 1. D imposes a risk upon the P but that the Ps fault imposes no similar risk to the D. d. Res Ipsa i. Traditional cannot use comparative negligence in res ipsa case ii. Modern allows comparative negligence in a res ipsa case but still problems in calculating fault iii. Restatement look at nature of persons risk creating conduct including awareness or indifference, intent, and the strength of the connection between persons risky conduct and the harm e. Factors for Assigning Shares of Responsibility i. Nature of the persons risk creating conduct, awareness or indifference with respect to the risks created by the conduct and any intent with respect to the harm created by the conduct 1. How unreasonable the conduct was under the circumstances 2. Extend to which the conduct failed to meet legal standards 3. Circumstances surrounding conduct

4. Each persons abilities and disabilities 5. Each persons awareness 6. Intent/Indifference to the risk ii. Strength of the casual connection between the persons risk creating conduct and the harm 1. How attenuated the causal connection is 2. Timing of each persons conduct in causing the harm 3. Comparison of the risks created by the conduct 4. Actual harm suffered by the P f. All or Nothing Judgments after Comparative Fault When you cannot use Comparative fault i. If P is not negligent or if her negligence is not the actual or proximate cause of the harm. No comparison is necessary ii. If P negligence does not reduce her damages any more than it would make them liable for the Ds injuries iii. P injury is not within scope of risk created by Ps negligence iv. D is not negligent when an element of Ps prima facie case against the D fails, comparative fault is irrelevant and the P recovers nothing v. When both P and D are at fault, court will leave the apportionment of responsibility to the jury (alternative to comparative fault). Ps fault can be a superseding cause vi. Mitigation of damages / avoidable consequences rule - traditionally required P to minimize her damages by reasonable efforts and expenses. Excludes all recovery for a particular item of harm when the court concluded either that the D was not a but-for cause of that harm or that the harm was outside the scope of risk negligently created by the D. g. Allocating Full Responsibility to the D because of Policy or Justice i. Policy: Interests of justice dictate that contributory negligence be unavailable as a defense to either the negligence or strict liability claims (cannot use contributory negligence defense) ii. Mentally ill people can be comparatively negligent in some circumstances; there can be no comparative negligence where the Ds duty of care includes preventing self-abusive or self-destructive acts that caused the injury. iii. P negligence that provides only the occasion for medical treatment may not be compared to that of a negligent physician 1. Patients who may have negligently injured themselves are entitled to subsequent non-negligent medical treatment and to an undiminished recovery if such subsequent non-negligent treatment is not afforded. iv. Statutes sometimes impose a duty upon the D to protect Ps who are vulnerable or disabled v. Policies involved when judges limit comparative fault defenses include: 1. P incapacity P lacks total or partial capacity for self-care

2. Structural safety due to systematic differentials in knowledge, experience, or control. D can be expected to take better care of Ps safety than can the P themselves 3. Role definition Ds obligation is to care for even a negligent P because of Ds responsibilities as a professional rescuer 4. Process values litigating the comparative fault defense would harm litigants, create unmanageable litigation, or produce statements of relative fault where such statements are problematic 5. Fundamental values determination of comparative fault would encroach on fundamental, sometimes constitutional 6. Autonomy Ps conduct risk only harm to self and as such receives more latitude for choice 7. Self-risk (Ps conduct risked only harm to self and as such receives more latitude for P choice) vi. Rule Child lacks the capacity to consent to the sexual abuse and is under no duty to protect themselves from being abused (public policy rule). 1. Contributory fault may not be assessed against a 13 year old child based on the failure to protect themselves from being sexually abused when the D stands in a special relationship to the child and have a duty protect the child. h. Exceptions to Contributory Negligence i. Rescue Doctrine 1. Traditional rule contributory negligence could not be applied to someone who is rescuing another because of someone elses negligence 2. Modern rule can be liable if you rescue the person negligently ii. Last Clear Chance or Discovered Peril 1. Traditional under old contributory negligence negligence P could recovery anyway if D had the last clear chance to avoid injury anyway and did not 2. Modern in states that have adopted comparative fault systems, the last clear chance and discovered peril doctrines have been discarded, mostly on the grounds that they were attempts to aid the P in a harsh system and not needed once comparative fault rules apply (no more last chance doctrine) iii. Ds Reckless or Intentional Misconduct 1. Contributory negligence was historically no defense to an intentional tort if D was guilty of a fault WORSE than negligence (reckless or intentional). a. Essentially not a defense to intentional torts iv. Ps Illegal Activity 1. When a Ps injury is a direct result of his knowing and intentional participation in a criminal act he cannot seek compensation for the loss,

if the criminal act is judge to be so serious an offense as to warrant denial of recovery. a. Illegal activity does not preclude recovery when the crime is NOT serious. 2. Assumption of Risk P, either by express agreement or implied agreement, has relieved D of this obligation against risk. a. A complete defense for the D b. Contractual or Express Assumption of Risk i. Expressly stated that P has relieved D of risk and P is barred from recovery. Doesnt have to be written. ii. Valid if clear, voluntary and explicit, not to contrary public policy iii. Hospital cannot exempt themselves from liability via a contract (against public policy). Enforceable express assumption of risk must be voluntary (not obligatory). iv. Preinjury releases are unenforceable if they offend public policy or if they are unclear, ambiguous, or involuntary. Releases are usually upheld as long as they are clear and unambiguous in recreational activities. v. Most courts hold that a contractual assumption of the risk clause barring recovery for recklessly or intentionally caused injury would offend public policy. vi. Inherent risk danger that cannot eliminated or mitigated through the exercise of reasonable care, necessary danger of an activity. c. Implied Assumption of Risk based on conduct i. Some implied assumption of risk are better understood as comparative negligence cases or no breach of duty cases ii. Imply from conduct that risk is assumed by P iii. Traditionally court looked at implied assumption as the same as implied consent iv. Modern approach - Dont need this anymore, everything that courts used to do in these cases, can be done with: 1. No breach of duty OR 2. Comparative negligence v. In some situations, contributory negligence and assumption of risk are merged together (both sides are negligent). vi. If P Is reasonable in facing a risk, they are not negligent but that when they unreasonably confront a known risk, negligence in doing so reduces recovery of damages vii. Two types of implied assumption of risk primary and secondary 1. Primary/Breach of Duty whether D owes no duty to protect a P from particular harm, precludes liability for injuries arising from those risks deemed inherent in a sport, others have no legal duty to eliminate those risks or otherwise protect a sports participant from them a. Where primary assumption of the risk exists, no liability to P, because no negligence on the part of the D to begin with,

danger to P is not one which D is required to extinguish or warn about, having no duty to begin with, no breach of duty to constitute negligence. b. Old - courts utilized assumption of risk D had to prove assumption of risk) c. Modern use primary assumption of risk with focus on breach of duty. P has the burden of proof to show that there was a breach of duty. If D prevails, no recovery for P d. Burden of proof is on the P and if D prevails, P will recover nothing 2. Secondary/Comparative negligence D still owes a duty of care but P knowingly encounters the risks attendant on the Ds breach of that duty. Can reduce Ps recovery if assessed as comparative negligence, if analyzed as assumption of risk, P gets no recovery a. Burden of proof is on the D to show that P was comparatively negligent, P can still recover something 3. How to tell the difference between implied assumption of risk v. duty? a. Did P do something negligent as well as voluntarily get themselves into a risky incident? i. If P was negligent, damages are reduced. d. Special cases i. Sports agree to normal risks of the sport, other players only violate their duty of care if they behave outside the normal risks of the sport 3. Defenses not the Merits a. Statute of Limitations i. Almost every kind of claim must be brought within a period of time specified by statutes of limitation. ii. Torts is a common law subject but SOL is dictated by statues of state legislatures iii. Purposes 1. Bar stale claims presentation of which might be unfair or costly because evidence is lost or subtly altered with time 2. Permit both personal and business planning and to avoid economic burden that would be involved if D and their insurance companies had to carry indefinitely a reserve for liability that might never be imposed 3. After a certain amount of time, will be difficult to get reliable evidence 4. Want to encourage Ps not to sleep on their rights iv. SOL commences running from the date of injury or the date of the alleged malpractice v. Attorneys responsible for failure to file a meritorious suit (or a defense) in time are subject to liability to client for malpractice. vi. (MAJORITY) Discovery rule delays the accrual of the claim until: 1. All the elements of the tort are present

2. P discovers or a reasonable person should discover, both the injury and Ds role in causing it 3. A number of states have adopted a rule that delays the start of SOL until the medical treatment for which the patient consulted the physician has been concluded. 4. P whose condition has not yet been diagnosed by a physician can have or, in the exercise of reasonable care, could have access to information which requires or would require a reasonable person to conclude she is being seriously or permanently injured. 5. SOL does not begin to run when a reasonably prudent person associates his symptoms with a serious or permanent condition and the same time perceives the role that the D has played in inducing the condition. a. Court doesnt want people filing suits for temporary illnesses. 6. Often presents an issue of fact with respect to whether a reasonable person would have discovered sufficient facts to start the SOL clock vii. (MINORITY) SOL starts when aware of the injury and possible cause of it even though not aware of the possible negligence (Ds cause of injury) viii. Partial injury, future harms 1. Traditional make P file within SOL (know of harm done) and then P can file for future harms that havent happened yet only if it was more likely than not that these future harms would occur 2. Modern Allow present damages and leave open the possibility for a second suit if substantially different kinds of damages occur ix. Exposure without symptoms varies with jurisdiction 1. P could recover now for the costs of medical monitoring and that an additional suit could be brought later if cancer or other serious disease actually occur 2. Reject claims for medical monitoring damages in the absence of proven physical injury x. Mental harm issues/repressed memory about of states allow repressed memory xi. Tolling for Disabilities 1. SOL may be tolled so that the clock is not running while P is under disability such as minority or mental incompetence. State laws generally toll SOL on a childs injury claim until the child has breached the age of majority (18). b. Preemption with Compliance of Statute i. Compliance with statute or regulation is not a defense. Statutory requirements usually reflect a minimum standard of care, not maximum obligation. Compliance with statute is evidence of reasonable care, even though it is not conclusive.

ii. Statutory requirements usually reflect a minimum standard of care, not maximum obligation.

Limiting or Expanding the Duty of Care According to Context or Relationship


1. Limiting duties According to Class or Status of the Parties a. Carriers and Host-Drivers carrying passengers and goods who hold themselves for hire by the public i. Carrier of passengers for hire must exercise more than ordinary diligence for their protection. Its duty stops just short of insuring safety ii. High degree of care must be exercised in foreseeing as well as guarding against danger iii. Not all states use this rule but many do iv. Guest statute 1. Old rule if not getting paid as a common carrier, you are held to a normal standard of care 2. Modern rule has been abandoned b. Landowners Duties to Trespassers, Licensees, Invitees, and Children i. Duty owned depends on their legal right to be on the land. 1. Invitee person who rightfully come upon the premises of another by invitation, express or implied, for some purpose which is beneficial to the owner. Limited to invitation by the landowner. Typically has to a be a business or financial benefit. Others can be invitees to general public areas (park, street, bus station, department store, etc). a. Duty Reasonable/ordinary care b. If landowner knows of a dangerous condition, must basic check/inspection of land to prevent such conditions 2. Licensee Permitted to be on the land, legally on the land due to owners consent or privilege to go onto the land (mailman, meter reader, garbage man), social guests a. Duty Lower duty of care, avoid intentional, wanton or reckless acts except in the situation of peril (when landowner is aware of their presence) have an ordinary duty of care (same as owed to trespasser) 3. Trespasser No legal right to be on land and enters without consent a. Duty - if you see trespasser in a position of peril, ordinary duty of care. No duty owed when not in a position of peril except to refrain from wanton or willful acts i. If a landowner knows that they have a dangerous condition on their property but does not know about a

trespasser, they only owe a duty not to act maliciously or intentionally ii. Some courts say that an ordinary duty of care is owed in a situation in which trespassers frequent use a limited area b. Child Trespasser i. Children have a special status in tort law and the duties of care owed to children are different from duties owed to adults. 1. Duty owed to a child of young age is greater than that owed to adult under the same circumstances. 2. Entitled to a degree of care proportioned to their inability to foresee and avoid the perils that they may encounter c. Attractive Nuisance doctrine - A possessor of land is subject to liability for physical harm to children trespasser thereon caused by an artificial condition (something that may be attractive to children to play with e.g. a pool) upon land if: i. Children are likely to trespass ii. Condition poses an unreasonable risk of death or serious bodily harm could result to children iii. Children (because of their youth) do not discover the condition or realize risk d. Consequences of this doctrine/duty owed reasonable duty of care to children under same circumstances ii. Owner owes no duty to warn or protect others from a defective or dangerous condition on neighboring premises unless the owner had created or contributed to it iii. Where a natural condition on the land creates a risk to persons outside the land, the cases may be moving toward a duty of ordinary care iv. Obvious danger rule - Landowners do not have a duty to protect against obvious danger 1. Not a matter of contributory negligence or assumed risk, instead a no duty rule creates as a matter of policy 2. If you see the issue as one of negligence rather than duty, the trier of fact will decide whether the risk of harm was in fact foreseeable to the D even if the danger is obvious 3. E.g. Dont have to warn to not dive into a shallow end of a pool c. Firefighters rule majority precludes a firefighter and certain other public employees from recovering against D whose negligence caused the firefighters on the job injury.

i. Has been applied to EMT, police officer, lifeguard (does not apply to private parties engaged in rescuing!) ii. Some courts state that it does not protect all wrongdoers 1. Not foreclose suit against an intentional or willful wrongdoer 2. Not foreclose suit for injuries arising from violation of a fire-safety statute or ordinance 3. Not foreclose suit for harms resulting from risks no inherent in the job undertaken or risk officer was not paid to assume (hurt by an attack dog while fighting fire) iii. Rationale for majority 1. Aware of the risks inherent in their chosen profession and have assumed these risks 2. Should not be allowed to recover when injured as a result of confronting these known and accepted risks 3. Public policy a. Injures to these individuals are compensable through workers comp b. Enter at foreseeable at times and areas not open to the public, not reasonable to require the level of care for invitees or licensees iv. Exceptions to majority 1. If D is negligent unrelated to the specific for the which the officer or firefighter was originally summoned 2. Willful and wanton acts resulting in an injury v. Minority rule firefighters are owned an ordinary duty of care d. Adopting a Reasonable Care Standard for Landowners i. Everyone is responsible, not only for the result of willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has willfully or by want of ordinary care brought the injury upon himself abolished categories of different classes of people and substitute a general duty of reasonable care 1. By now, about half of the states had either included social guests in the invitee category or had completely or partly abolished the categories with the result that all or most non-trespassing entrants upon land are entitled to reasonable care under the circumstances. 2. Many courts have retained the limited duty to trespassers rule even though they have dropped the licensee-invitee distinction. 3. All entrants are owned a reasonable duty of care except in exceptional cases then provides that land possessors owe flagrant trespassers only a duty not to intentionally, willfully, or wantonly injure them. e. Duties of Medical and Other Professionals

i. Medical standards almost always reflect particular customs or procedures under very particular circumstances. Standard what about the average qualified physician would do in a particular situation. ii. Higher than others expect those who are doing heart surgery have a standard similar to other cardiologists not in relation to the average person iii. Historic: Modified locality rule standard of care at time of operation and in similar localities no longer valid iv. Modern: Modified national standard - Physician must exercise care that is reasonably careful, skillful, and prudent according to practitioners in the same class to which he belongs, acting under the same or similar circumstances 1. Specialists are held to the standard of their specialties 2. Non-medical practitioners (chiropractor) held to the standard of their discipline 3. Hospitals are held to reasonable care under national standards 4. Other classes afford the complete custom defense nurses, lawyers v. Expert Testimony 1. Require expert testimony: need to support a charge of malpractice to jurors are not skilled in the practice of medicine and would find it difficult without the help of medical evidence to determine any lack of necessary scientific skill on the part of the physician 2. Where competent medical authority is divided, physician will not be held responsible if in the exercise of his judgment he followed a course of treatment advocated by a considerable number of recognized and respected professionals in his given area of expertise vi. Duty to refer 1. No duty to refer by other medical professionals (chiropractor) to a medical professional. However, some courts state that you have the duty to refer f. Good Samaritan statute No person licensed under this chapter who in good faith renders emergency care at the scene of the emergency, shall be liable for any civil damages as a result of any acts or omissions by such persons in rendering the emergency care i. Intended to encourage aid without fear of liability ii. Does not apply when doctor already had a duty to aid the patient iii. If you are in hospital and not regular patient, some jurisdictions hold that this rule applies, some hold that it doesnt (statute may or may not apply depending on who the doctor is treating regular patient or not) g. Res Ipsa Loquitor i. May use res ipsa to allow the jury bridge the gap between its own common knowledge which does not encompass the knowledge and experience necessary to reach a conclusion that the occurrence would not normally take place in the absence of negligence

ii. Res ipsa may be involved to allow the fact finder to infer negligence from the mere happening of an event iii. Where a P receives unusual injuries while unconscious, all Ds who had control over Ps body or instrument that could have caused the injury are subject to inference of negligence 1. P needs to show strong evidence of negligence during an operation and Ds were in the position to know what happened h. Informed consent i. Every competent adult has the right to forego treatment, or even cure, if it entails what for him are intolerable consequences or risks however unwise his sense of value may be in the eyes of the medical profession. This right requires knowledge of the available options and the risks attendant on each ii. Majority rule 1. Doctors owes to his patient the duty to disclose in a reasonable manner all significant medical information that the doctor possesses or reasonably should possess that is material to an intelligent decision by the patient whether to undergo a proposed procedure a. Materiality significance a reasonable person would want to know in deciding to have an operation or treatment 2. Purpose patient should be able to decide for themselves whether or not to undergo a operation iii. Minority rule 1. Duty of informed consent is only obligatory if other doctors would do so 2. This creates more certainty in the delivery of knowledge of the risks associated with various operations iv. To show causation in informed consent cases 1. P must show that they would not have had the operation or a reasonable person in their position would not have the operation 2. P must show that the harm that was not warned about was the actual harm that occurred v. Negligence v. battery informed consent cases are treated as negligence not battery vi. Informed consent rules imply that patients may refuse treatment vii. No duty to report success rates of doctors viii. Doctors must disclosure 1. Material risks of the operation 2. Alt procedures 3. Benefits/changes of success from the procedure 4. dangers of refusing an operation or treatment/test ix. Typically no duty to obtain consent in emergency situations where immediate action is necessary for protection of life (e.g. if you are wheeled into the unconscious, doctors can treat how they would treat a reasonable person)

x. When considering consent think about: 1. Severity of consequence 2. Likelihood that consequence will occur xi. Doctors can use comparative negligence defense if patient provides inaccurate medical information 2. Nonfeasance a. Generally people cannot be liable for nonfeasance (doing nothing) but can be liable for misfeasance (doing something badly) b. No duty rule (depends on jurisdiction) i. One person owes another no duty to take active or affirmative steps for the others protection UNLESS: 1. You are legally responsible by a tortious act for placing the person in the perilous position OR ii. Restatement 2d rule One is liable to take action for the steps of anothers protection if one knows that their conduct innocently or tortuously has caused the position of peril iii. Principle should be responsible for their own actions and should not be liable for others independent conduct iv. Rationale 1. People should not count of nonprofessionals for rescue 2. People would be deterred by threat of liability from putting themselves in a position where they might be called upon to attempt a rescue especially since a failed rescue could give rise to liability v. Exceptions to the general no duty rule 1. Social host rule eliminates liability for hosts when providing alcohol at a social function 2. Undertaking/beginning care rule one who undertakes care to another person has a duty to provide reasonable care if failure to exercise care would increase the risk of harm beyond what would have happened without undertaking care a. Rationale reason to not undertake care is that it can interfere with competent help (e.g. a medical doctor or qualified professional) 3. Special relationships place D under a duty of reasonable care for the Ps safety including affirmative efforts to rescue a. Carrier-passenger b. Innkeeper-guest c. Landowner-lawful entrant d. Employer-employee

School-student Landlord-tenant Custodian-person in custody Business or other possessor of land that holds its premises open to the public with those who are lawfully on the premises i. Employer-employee only if the employee comes into a position of imminent danger j. (not exclusive and court can identify additional relationships when necessary) i. Companions engaged in common undertaking (friends) ii. Parent-child iii. Store owner-customer 4. Duty not to interfere with someone who is helping another person or who would attempt to help another person. Cannot prevent others from giving care (calling 911, etc) 3. Duty to Protect from Third Persons a. General rule: A is attacking B, C has no duty to help B b. Exceptions: i. Duty to warn or protect against the criminal conduct of a third party if there is a special relationship between the parties ii. Duty by business owners to protect customers courts will look at how foreseeable the attack was and will use a narrow or broad approach to what is foreseeable. If the crime was foreseeable, had a duty to do something reasonable to prevent it 1. Narrow approach to foreseeability if there have been very similar crimes on this particular property 2. Broad approach to foreseeability different kinds of crime on the same property and/or similar crimes on adjacent property iii. Negligence per se use of a statute to establish the standard of care is limited to situations where common law cause of action exists and if the statute is applicable. iv. Schools have a duty to protect students from violence of third parties v. Employers are typically liable for the torts of their employees when the torts are committed within the scope of their employment vi. Duty of school to students no bright line rule. Some courts say that school duty is limited to hours of school day others state that the school does have duty after school hours. However, a sensible school administration would take some precautions if not to provide supervision then at least to warn students and their parents about its absences before a designated hour 1. College/University - courts have generally refused to impose upon universities any duty to protect or guide new students with respect to the pleasures and dangers of sex, alcohol, drugs, over study

e. f. g. h.

vii. Landlord/tenant relationship - impose a duty of reasonable care on landlords to maintain common areas in a reasonably safe condition for tenants 1. Landlord is liable for attack on residential premises if: a. Control over common passages b. Knew types of crimes occurred c. Reduced security 2. Landlord is liable if they bring dangerous people onto the property as tenants or visitors (e.g. one part of a building houses a mental health clinic who treats violent criminals. Patient of mental health clinic attacks another tenant) c. Relationship with dangerous persons i. General rule one owes no duty to control the conduct of a third person for the benefit of the P 1. However, if the D is in a special relationship to either P or 3rd person, the D is under a duty of care to protect to victims that might be identified in advance but to all those who are directly and foreseeably exposed to risk of bodily harm from the Ds negligence 2. Considerations a. Foreseeability of harm D owes a duty of care to all persons who are foreseeably endangered by their conduct with respect to all risks which make the conduct unreasonably dangerous b. Degree of certainty that P suffered injury c. Closeness of the connection between Ds conduct and injury suffered ii. Exceptions: 1. Duty to control children parents are not liable for a childs torts on basis of parental relationship alone or liable for failure to control a child merely because the child is known to be rough. a. However, parents are liable only for failing to control some specific dangerous habit of a child of which the parent knows or should know in the exercise of reasonable care 2. Duty of a Therapist most courts hold that a therapist owes a legal duty to disclose information in the event that it would avert danger and in a fashion that would preserve the privacy of his patient to the fullest extent possible. Also have a duty to warn will exist but only where the patient communicates a threat to an identifiable person a. Most states have adopted a similar rule by statute and almost all other courts that have considered the issue have accepted such a duty. b. Courts are split on when the patient is threatening to harm him/herself

c. Courts are split on whether or not doctors have a duty to warn patients of the effects of a drug or treatment the doctor has administered on a third party (e.g. taking a drug will impair driving and may hurt another person on the road) 3. Duty of Restaurants/Bars Serving Alcohol a. Common/Minority law tavern owner who furnishes alcoholic beverages to another is not civilly liable for a 3rd persons injuries that are caused by the acts of an intoxicated patron. There is no proximate cause because of the intervening acts of the driver. b. Modern/Majorty law One who sells intoxicating beverages for on the premises consumption may have a duty to exercise reasonable care (under certain facts including that the patron was visibly intoxicated, patron was a minor, more likely to cause an accident, harm was reasonably foreseeable) not to sell liquor to a noticeably intoxicated person c. Most jurisdictions distinguish between social and commercial providers of alcohol d. Majority cannot sue the bar if you hurt yourself after leaving e. Minority can sue the bar iii. Negligent Entrustment person in control of a chattel owes a responsibility not to entrust that chattel to a person who the entruster knows or should know is apt to use in a dangerous way 1. Regarding alcohol let someone drive your car when they are drunk and they kill someone 4. Negligent Infliction of Distress or Emotional Harm a. Old rule if the D negligently causes physical injury to P, P can recover all damages that result, including damages for pain, suffering and emotional harm. There is no recovery for fright alone and there could be no recovery for consequences of right even physical consequences (because no proximate cause) b. Minority rules i. Must have a physical impact, no injury required (a small minority still use this rule) ii. Can only recover if there is an objective physical manifestation of the emotional harm (e.g. reason for miscarriage because of stress) c. Current majority rule no requirement for injury or impact. A person whose negligent conduct causes serious emotional disturbance to another is liable if: i. Ds negligence places P in immediate danger of bodily harm OR ii. Negligence occurs in: 1. Performance of particular categories of undertakings such as caring for and disposing of dead bodies OR

2. Power or authority over the P or in which serious emotional disturbance is otherwise likely d. Emotional Harm Resulting from an Injury to Another Person (Bystander rules) i. Zone of danger rule person within the zone of danger of physical impact will be able to recover for emotional injury caused by fear of physical injury to themselves, whereas a person outside the zone of danger will not 1. Recovery only where the Ds negligence placed the P in danger of physical injury, and because of that danger, the P suffered emotional harm 2. P within the zone of danger who reasonably feared for their own safety could recover for the distress of witnessing serious bodily injury to the person in a close relationship with them (e.g. mother-child) ii. Dillon rule D might owe a duty to protect not only the injured person but those who might foreseeably suffer emotional harm because of the injury. Foreseeability: 1. Whether or not the P was located near the scene of the accident 2. Whether the shock resulted from a direct emotional impact upon the P from the sensory observance of the accident as contrasted within learning of the accident of others 3. Whether P and victim were closely related 4. More flexible than Thing/Bystander rule iii. Thing rule REQUIRES, can only recover IF: 1. Whether or not the P was located near the scene of the accident 2. Whether the shock resulted from a direct emotional impact upon the P from the sensory observance of the accident as contrasted within learning of the accident of others 3. Whether P and victim were closely related (mother, father, sister, etc) 4. More rigid than Dillon/Foreseeability rule iv. Most court are split between zone of danger, Dillon/foreseeability and Thing/bystander rule e. Harm to direct victims bystander rules do not apply. Direct victim is based on a breach of duty assumed by the D or imposed on the D as a matter of law, or that arises out of a relationship between the two. i. E.g. Woman giving birth to a child claims emotional harm because child was deprived of oxygen and suffered brain damage. Dillon/Thing rules do not apply because woman is a direct victim. Doctor owed a duty to woman not only the fetus. f. Loss of Consortium intangible loss of support services, love, companionship, affection, society, sexual relations, solace, etc. i. Traditionally allowed for spousal relationships

ii. Legally protected interest in personal relationships, if one member of a relationship is tortuously injured, the noninjured party has a cause of action to recover for damage to their relational interest 1. Before 1950 only men could claim loss of consortium 2. After 1950 courts began to allow women to also claim loss of consortium 3. Some states have loosened this rule lately to include un-married cohabitants, gay and lesbian couples who dont have the right to marry iii. Parents, Children, and Loss of Consortium 1. Majority - allow loss of consortium for parents for minor children because the child performs some service around the house 2. Courts are split on whether to allow loss of consortium for minor children for the loss of their parents iv. Animals courts generally do not allow a loss of consortium claim for injury to a pet 5. Prenatal and Preconception Harm a. Traditional/Old rule no recovery for prenatal tort claim b. Modern/rule allow prenatal tort claim i. Factors 1. Time during pregnancy when injury occurs (before or after the fetus is viable) 2. Whether child was born alive or not c. Modern Rule 1 Child Born Alive i. Majority - court will allow recovery for harm that occurred before birth ii. Minority court will not allow recovery for harm that occurred before fetus was viable, can only recover for injury after fetus was viable d. Modern rule 2 Child Not Born Alive i. Majority court will allow recovery when a fetus is stillborn at least when the fetus was viable at time of injury. Most courts will not allow recovery if fetus was not born alive AND was not viable. ii. Minority court will not allow recovery when a fetus is stillborn even if viable at the time of injury e. When harm is done by childs own mother (not a third party) courts are split i. Not allow suit for harms against mothers (no liability) ii. Allow the suit just like any other negligent person harming the fetus (liability) iii. Allow suits based on some sort of the mother negligence but not others (limited liability) 6. Wrongful Life, Birth, or Conception a. Situation doctor has negligently failed to diagnose a serious condition with a fetus b. Wrongful life an action by a child who is disabled because of Ds negligence; essentially a claim that I should not have been born this way i. Courts do NOT accept this type of claim

c. Wrongful birth an action by the mother/parents of a disabled child claiming the mother would have terminated her pregnancy had she been properly advised. Now mother/parents must care for a seriously disabled child due to Ds negligence i. Most courts do recognize wrongful birth claims d. Wrongful conception or wrongful pregnancy mother and/or father sue after mother becomes unexpectedly pregnant after a negligent sterilization, essentially a claim that the child would not have been born but for the doctors negligence i. Most courts do recognize these claims e. Damages i. Full recovery rule/minority parent may recover all costs of rearing the child ii. Benefit rule/minority parent may recover the cost of rearing the child offset by the benefits the parent will incur as a result of having the child iii. No recovery rule/Majority parent may not recover the costs of rearing the child. You do get costs of birth/delivery, medical expenses, loss of compensation due to missed work 7. Death a. Survival action When an injured person dies before receiving judgment or defendant dies before judgment. i. E.g. drop bowling ball on foot and breaks it you have a tort claim, the next day you get hit by a car and die. Can still sue for bowling bowl tort claim ii. Injury does not have to be anything to do with the death iii. Estate of injured person (also decedent) can sue for the tort action that happened before death 1. Estate is stepping into the place of the decedent and suing as if they were the injured party iv. Cause of action survives the death of the plaintiff or defendant or both, plaintiff is personal representative of the decedents estate, claim is debt owed to the estate just as any other claim and recovery is paid to estate. Estate pays the debt of the deceased person and the costs of administering the estate and any money leftover to the beneficiaries of the decedents will. v. Damages most states allow for recovery of punitive damages b. Wrongful death statutes suits against a person who wrongfully killed the decedent i. E.g. Run over Timmy and kill him, suit is for running over Timmy. ii. Brought for the wrongful act that lead to the death. Damages go to heirs of the decedent. iii. Economic damages due BECAUSE of death to survivors (loss of income, etc) iv. Recovery does not pass through the estate but goes directly to survivors, no claim by the estate v. Loss of consortium only for spouses, not children vi. Spilt among courts whether emotional harms are allowed wrongful death statutes

1. Majority cannot get punitive damages for mental stress, allows for loss of consortium (loss of intimacy, moral support, companionship) vii. How to calculate damages in wrongful death 1. Loss to survivors measure (majority) add up the money that the decedent was spending on supporting survivors (food, clothing, housing) 2. Loss to estate measure (minority) even if you are not supporting anyone, survivors can get damages by determining lifetime earnings of decedent, subtract amount of estimating spending on decedent during that time, what is left is what the estate would have been which becomes the measure of damages. Heirs can still recover if not currently being supported 3. Majority do not allow non-economic damages in wrongful death suits, minority does viii. Who can sue in wrongful death 1. Parents only if dependent on the child 2. Mostly heirs and children can recover for death of parent 3. Step-children are mostly barred 4. General rule is that un-married cohabitants cannot sue for wrongful death but a few states allow this 5. In general, states award larger damages to female spouses who have lost a husband than for male spouses who have lost a wife c. Sometimes there can be both a wrongful death and survival action i. If the person died from another persons negligence, the children can bring a wrongful death suit for harms done to them and a representative can bring a survival action for the negligence to the decedent

Strict Liability
1. Overview a. In some cases, if D causes Ps harm, D is liable no matter what b. P does not have to show that D intended the harm nor negligence behavior 2. Development of Strict Liability a. Old Common Law strict liability for almost everything, did not have to show damages/harm i. Brown v. Kendall first clear articulation of the shift from strict liability for direct, forcible harms to a fault-based liability, applied a universal fault formula. If an act was unintentional and done in doing a lawful act, D is not liable unless D wasnt using reasonable care, burden of proof is on the P. b. Now, strict liability is the exception not the rule. After Brown universal fault formula has an exception in some cases (trespass animals & land, product) 3. Ultrahazardous Materials Strict Liability

a. History/Overview i. Rylands v. Fletcher English court case that established that are still somewhat valid in U.S. modern law 1. Strict liability for uses of land that are inconsistent or unusual and interfere with use of land with others 2. Strict liability when storing dangerous materials on land 3. Majority of courts in the US have adopted this rule but limited its use to materials that are inherently dangerous 4. Some U.S. courts have rejected, modified, others use it. 5. Rylands and Restatement are somewhat different and US courts use both rules b. Modern rule for Hazardous/Abnormal Danger Conception (courts are split between three approaches) i. Approach 1 - First Torts Restatement for Ultrahazardous Activities 1. Strict liability if ultrahazardous. Ultrahazardous if: a. Especially dangerous AND b. Could not be made safe even if using the utmost care ii. Approach 2 - Second Torts Restatement 1. Strict liability for abnormally dangerous activities. Abnormally dangerous factors a. Whether the defendants activity creates a high degree of risk of some harm to people, land, or chattels of others b. Likelihood the harm that results from it will be great c. Inability to eliminate the risk by the exercise of reasonable care d. Whether the activity is uncommon e. Inappropriateness of the activity to the place where it is carried on f. Extent to which its value to the community its outweighed by tis dangerous attributes iii. Approach 3 - Third Torts Restatement 1. Liability without proof of negligence if: a. Defendants activity creates a reasonably foreseeable and highly significant risk of physical harm even where reasonable care is exercised by all actors AND b. Activity is not one of common usage 2. Emphasizes an additional matter, that strict liability is appropriate whether the activity causes harm without meaningful contribution from the conduct of the victim or of another actors. Victim is uninvolved and innocent party who is nothing 3. No strict liability if reasonable care to a less than significant level would reduce the risk iv. Defenses

1. Majority assumption of risk 2. Minority - Comparative or contributory negligence v. Policy/rationale 1. If you are doing something really dangerous, want to deter people from doing it 2. Incentivize people who do it as safely as possible 3. Commercial activities companies are profiting vi. Types of ultrahazardous materials subject to strict liability 1. Poison 2. Waste 3. Explosives 4. Nuclear energy 5. Toxic substances 6. NOT = electrical power 7. If you store materials that are harmful when they escape by either direct harm to a party or percolate through the soil, water, etc and harm someone usually held to strict liability vii. Limitation to strict liability for ultrahazardous materials 1. Defendant is not liable for all harms caused by the abnormally dangerous activity but only those the possibility of which makes the activity abnormally dangerous. 2. Strict liability is typically limited to those harms that result from the risks justifying strict liability 3. Case for strict liability is strengthened when the D has actual knowledge of the risky quality of the activity in which the D is engaging 4. If a D sincerely and reasonably believe that his activity is not harmful, there is an inadequate reason to impose strict liability 4. Strict Liability for Animals a. Trespassing livestock (cattle, sheep raised for profit, not domestic pets) i. Traditional Rule strict liability for anything your animal does, even if its just wandering onto the land or if you intentionally put them there ii. Modern/Majority Rule you are liable if your animal causes some sort of harm 1. Justifications keeping livestock is an economic activity, inevitable that the business may impose costs on society iii. Minority rules, alter the rule by statute 1. Fencing in laws no strict liability if the defendant puts a fence around his property to contain his animals that meets certain statutory standards even if the livestock somehow manages to get out 2. Fencing out laws in order to make a strict liability claim, plaintiff must have a fence around plaintiffs property built to statutory regulations (Arizona, dry areas) b. Pets

i. Wild (non-domesticated) animals 1. Animals not typically kept as pets, wild as a species lions, tigers, bears 2. Owner is strictly liable for all foreseeable harms (something that is typical of owning a pet tiger or lion) 3. No fencing rules, cannot avoid liability if you treat the animal as a domestic pet ii. Domestic pets known to be dangerous 1. If the owner knows or reasonably should know that the animal is dangerous, they are strictly liable for the harm that comes from that danger (e.g. dog that always bits people) 2. The one bite rule if a dog bites a person, but has never done that before, the owner probably wont be liable 3. You are strictly liable if you know or should have known that your pet poses an abnormal danger to others iii. Defenses 1. Majority assumption of risk 2. Minority - Comparative or contributory negligence 5. Vicarious Liability/Scope of Employment - limited form of strict liability in which one person or entity is held legally responsible for the fault-based torts of another a. Through something or someone else A is strictly liable if B commits an intentional tort because of their relationship with B b. A has not done anything tortious themselves c. Does not exclude liability of the employee, P may sue the employee directly either alone or joined with the employer d. Respondeat Superior employers/employees i. Employers are strictly liable for the intentional or negligent torts of their employees if the employee committed the tort in the scope of the employment ii. DIFFERENT THAN negligent hiring fault by the employer for not adequately acknowledging background of employees iii. Enterprise liability/policy reason price of goods and activities should accurately reflect the accidents they cause. Holding an enterprise strictly liable for harms its causes facilitates internalization of costs which in turn reduces the costs of accidents. Companies will have an incentive to make their products and activities safer to compete in the marketplace iv. Requires 1. Employer/employee relationship 2. Is employee doing something that is of benefit to his employer? 3. The employer must take benefit of employees along with the cost 4. Employee committed a tort while doing his duties under the scope of employment 5. What is within the scope of employment? a. Attempting to further employers business

i. Trying to do your job, person would not have committed the tort but for trying to further their employers interests ii. Employee may still be acting within the scope of his employment even if he forbids the action iii. Employer is liable if employment motivated or triggered the tortious act b. Commuting To and From Work i. General rule - Normal commuting is not under the scope of employment ii. WHY? Dont want to impose unfair liability on an employer for conduct of its employees over which it was no control and from which it derives no benefit. iii. Exceptions 1. Where the trip involves an incidental benefit to the employer (dual purpose doctrine, most courts use this rule) 2. When paid specifically for commute 3. Some courts - that if an employee gets extra compensation for the commute (not paid specifically for the commute but a part of compensation package) 4. Some courts (rare) - when traveling involves special and dangerous hazards (extremely rugged terrain, extremely frequent issues with weather emergencies hurricanes, monsoon, etc) c. Frolic and Detour deviation from normal path during working hours i. Detour still within scope of employment ii. Frolic not within scope of normal employment 1. Need to assess - amount of time and distance traveled, the farther away and the more time spent makes an activity less within the scope of normal employment d. Incident to employment/temporary deviations i. Majority employer may be liable when employee does something necessary to the comfort, convenience, health and welfare of the employee while at work, though strictly personal and not acts of service (smoking, getting coffee, etc)

1. Need to consider the benefit to the employer weighed against the personal nature of the act in determining whether it is within the scope of employment 6. Minority rules that goes against furthering the employers interest rule a. NOTE - If it is furthering the masters interest, it will ALWAYS be within the scope of the employment. Following minority rules add some additional conditions that would also be considered within the scope of employment i. Lisa M minority approach - Risk is not predictably created by or fairly attributed to the nature of the employees employment (e.g. ultrasound tech sexually assaulting a pregnant woman was not within the scope of employment) is not in the scope of employment ii. Fahrendorff minority approach inappropriate sexual conduct or abuse of power is not within scope of employment iii. Other minority views: 1. Employee attacks another employee because of something that happened outside of work (bet made) this is not within scope of employment 6. Products liability imposes liability without fault upon manufacturers and distributors of defective products even when the manufacturer or distributor is not negligent a. ONLY available for physical harms or property beyond protective product itself (must harm something else) b. History of products liability i. 1 - Privity Requirement 1. Could only sue those who are in privity 2. Then got rid of privity but must have negligence ii. 2 - Misrepresentation 1. Reject privity but must have fault on the part of the manufacturer iii. 3 Warranty 1. Rely on express warranty 2. Rely on implied warranty but the problem is that this theory originates in contract law 3. Then got rid of privity requirement in implied warranty cases iv. 4 Modern development of Strict Liability 1. Made product liability a tort doctrine and beyond a contract doctrine 2. Strict liability in torts for manufacturers who made defective products v. Policy/rationale for making product liability strict liability 1. Consumers reasonably expect to get a product that is not defectively dangerous

2. Practicality if product is dangerous, it is probably because the manufacturer did something wrong and consumer can usually get at the same defendants under theories such as warrant, indemnity, contract theories 3. Justice and fairness D is in the best position to absorb and spread the cost 4. Deterrence strict liability is an incentive for manufacturers to be extra careful with their products. For those who are not, there will be more products liability suits and the costs of their products will subsequently go up c. Courts are split between 2nd and 3rd Restatement d. 2nd Restatement 402(a) strict liability for products that are defective (unreasonably dangerous to consumer, consumers dont have to prove fault), privity no longer applies i. Defendants are strictly liable if they manufacture or sell a defective product, unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused the ultimate user or consumer or to his property IF 1. Seller is engaged in the business of selling such a product AND 2. It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold (must leave the defendants hand in the defective condition, cannot be altered along the way) ii. This rule applies although: 1. Seller has exercised all possible care in the preparation and sale of his product AND 2. The user or consumer has not bought the product from or entered into any contractual relation with the seller iii. Dont have to show negligent act that caused the product to be defective, dont have to show intent iv. Product must be defective, not necessarily defective just because it causes harm, it has to be unreasonably dangerous v. Test for Liability - Consumer Expectation Test vi. User or consumer can be a plaintiff 1. Dont have to be a consumer yet (could get injured in the store while looking at a product) vii. Defendant/seller 1. Manufacturer 2. Wholesaler 3. Retailers (P may not know who the manufacturer or wholesaler is, retailer can sue the manufacturer/wholesaler) a. Some states say that a retailer is not liable if the product that they are selling comes in a sealed container

viii. Limitations 1. The defective product must leave the manufacturer or wholesaler in the defective condition 2. Must be in the business of selling or manufacturing the product rd e. 3 Restatement i. Retains strict liability only for products flawed in manufacture and adopts a negligence standard or design and warning defects ii. Does not focus on various theories of liability but rather on whether the products are defective or not f. Establishing a Prima Facie Case for Products Liability i. Defendant made or sold defective product ii. Defendant was in business iii. Defendant was actual and proximate cause to harm of persons or property iv. Major issue was product defective? E.g. guns are not defective because they can kill people. Old products are not defective because they have suffered normal wear and tear g. Manufacturing Defects product was made incorrectly i. Can occur even if there is nothing at all wrong with the products design ii. Typically only affect a small percentage of manufacturers product iii. 2nd Restatement - Consumer Expectation Test imposed strict liability when the product was defective and unreasonably dangerous. It tested defect/unreasonable danger by asking whether the product was dangerous beyond the contemplation of consumer iv. 3rd Restatement Products Liability a product contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product 1. Focuses on what a reasonable manufacturer intended v. Hasnt been much of a practical difference between 2nd and 3rd Restatement tests. Typically because either the manufacturing defect exists or not, most times the defect satisfies both test 1. Often, the case is about proving whether or not the product left the defendants hands in a defective state vi. Can draw an interference of the defect even if you dont know what it was (like res ipsa) 1. Product defect existing at the time of sale or distribution caused Ps harm when the event was of a kind that ordinarily occurs as a result of a product defect AND was not solely the result of causes other than the product defect vii. Food Products 1. Minority rule if you are eating food and damaged by a natural substance (bone in chicken), then you dont have strict liability claim. If

it is a foreign substance in the food, then you do have a strict liability claim (e.g. nail in chicken) 2. Majority rule 2nd Restatement, use consumer expectation test 3. 3rd Restatement Uses 2nd restatement and consumer expectation test viii. Defect and negligence 1. Negligence focuses on Ds conduct, strict products liability focuses on the product itself 2. Strict liability is cheaper to use 3. This kind of liability may be considered a shortcut to the same result a negligence rule would ordinarily achieve but without the necessity of long detailed trials over the fault issue h. Design Defects product was made correctly but the design was defective (bar in car locks child in during a car accident), concept of product is flawed i. To have a design defect product must be unreasonably dangerous for its USE ii. If a product is poorly designed, every one of the products represents a potential lawsuit against the manufacturer (recalls) iii. Number of products liabilities cases have gone done, but the awards have gone up. This means that the cases that win have significant design defects and are valid cases iv. Issue how to make the product safer? What is the cost? v. Approach 1 Consumer Expectation Test (provides that a product would be considered defective if it was more dangerous than the ordinary consumer would expect) 1. What does a reasonable consumer expect? a. Use the product as it is made to do without defect (e.g. can use a hammer to hammer nails, cannot use a doll or hammer nails) 2. Majority burden on P 3. Minority - shift the burden to the defendant to justify its design vi. Approach 2 Risk Utility Test product may be found defective in design even if it satisfies ordinary consumer expectations, if through hindsight the jury determines that the products design embodies excessive preventable danger or in other words, if the jury finds that the risk of danger inherent in the challenged design outweighs the benefits of such design 1. Burden is always on plaintiff 2. Requires that the P prove that a reasonable alternative design (RAD) was or reasonably could have been available at the time the product was sold or distributed. RAD is not enough, evidence must also show that the product was unreasonably dangerous and foreseeably would cause harm similar to that suffered by the P 3. Exception design of some products is manifestly unreasonable because of their negligible utility and high risk of danger that defectiveness could be found even without proof of an alternative

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a. Example toy gun that is actually dangerous b. P have had limited success in design defects against gun manufacturers where properly working guns were at issue nd vii. 2 Restatement - can use Consumer Expectation Test or Risk Utility Test 1. Some products are incapable of being made safe in their intended ordinary use (e.g. drugs). If the product falls in this category, P can only use Risk Utility Test 2. Some liability for unknowable or unforeseeable risks (minority approach) as Super Strict Liability rd viii. 3 Restatement only use Risk Utility Test 1. Reject 2nd Restatement that some products are incapable of being made safe in their intended ordinary use 2. Manufacturers of drugs and related products need not exercise reasonable care under a risk utility test to make a safer drug. To get this protection, the drug must provide benefits in excess of harms but still need not be as safe as it could be with reasonable cost or effort. (due to the Risk Utility Test) 3. Rejects liability for unknowable or unforeseeable risks with respect to prescription drugs (majority approach) 4. More defendant friendly and more like negligence alw ix. Bystanders and strangers can be plaintiffs as well but the issue is how can a bystander have an expectation about a products safety? Warning Defects product is as safe as it could be, but there are some dangerous aspects of it. Require a warning when you buy the product (e.g. gun) i. Distinct from defective design, cannot protect oneself from a defective design case with a warning ii. Causation unless the P would have read, understood, and heeded the warning, the failure to warn cannot be a cause of harm. But the courts usually presume that the P would have read and heeded the warning leaving it to the D to otherwise iii. 2nd Restatement 1. Comment J in order to prevent the product form being unreasonably dangerous, the seller may be required to give direction for warning 2. Comment K relates to products that are inherently dangerous products are not defective if properly prepared and come with proper directions and warnings rd iv. 3 Restatement same as 2nd!! 1. Product is defective when seller fails to provide reasonable warning for a reasonable harm 2. Danger could be minimized by giving people warnings 3. No duty to warn when there is an obvious danger and the danger should be obvious to a reasonable person

v. When to give warning? 1. General rule - Only have to give warning if its reasonably foreseeable that there will be harm 2. Point of Sale 3. Post-Sale 4. Obvious Danger Rule no duty to warn of dangers that are obvious or should be obvious a. To define an obvious danger, use the consumer expectation rule 5. Failure to give a warning may make an otherwise safe product dangerous and defective 6. Post-sale Warnings (Recall) a. ALL COURTS - Duty to warn if you put a product on the market and soon after that, it is discovered that there is a defect b. Courts are divided about what companies have to do if the product was not defective at the time of sale but later a defect is discovered c. Some courts say that if the danger is high and the cost is limited to warn, then there is a duty to warn d. 3rd Restatement have to be post sale warnings if a reasonable person would provide the warnings i. When the manufacturer knows or should know that there is a substantial risk ii. Can ID those to who a warning could be given iii. A warning can be effectively communicated iv. Risk of harm outweighs the burden of giving the warning vi. What constitutes adequate warning? 1. Warnings must be reasonably clear, noticeable and with sufficient force to be effective. 2. If it's foreseeable that someone will scan and not read the manual, it's enough to get to the jury. a. If P admits that he didn't read the manual at all, then there's no causation. 3. Sometimes the warning must not only alert the user to danger and how to avoid it but also to the extent of harm that can result 4. If there is a serious harm (death) you must specify that type of harm in the warning 5. Foreign Consumers a. No court has required a warning in another language even when the product is advertised in that language. b. However, some courts have required pictures and symbols where illiterate users are foreseeable. vii. Who must give warning?

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1. Manufacturer typically has to give warning 2. Retailer has to pass along the warning viii. To whom must the warning be given? 1. Ultimate consumer of the product 2. Exception: a. Learned intermediary doctrine i. Manufacturer of prescription drugs generally only has to give warning to the doctors who prescribe the drugs, this is sufficient to warn the patient ii. Learned intermediary doctor will then warn the patient iii. Similar rules apply to sophisticated users e.g. those who are already aware or should be aware of the products dangers such as members of a trade or profession in which such knowledge is widespread rd b. 3 Restatement warning about the health risks of prescription drugs and medical devices must be given directly to the consumers only when manufacturer knows or had reason to know what the learned intermediary will not be in a position to reduce the risks of harm in accordance with the instructions or warnings (e.g. mass vaccination) Liability for Intangibles i. 2nd and 3rd Restatement say that products liability rules apply to products but that services are not products 1. 3rd Restatement defines product as commercially distributed tangible personal property, items are that sufficiently analogous to that definition (electricity) a. D is not liable for delivering defective services, dentist not liable for defective needle (could sue for medical malpractice but are harder to win than strict liability) ii. Courts look at what predominates in the transaction (is it predominately a service or providing a product?) 1. Courts almost always find that in medical procedures when a piece of property is defective, service predominates a. E.g. Defective breast implants doctors are not liable for the defective silicon iii. Media that communicates dangerous ideas liability? 3rd Restatement states that information contained in communications is NOT a product iv. Blood & other bodily fluids Statutes typically provide directly or indirectly that suppliers of blood and related products such as body organs or tissues are not strictly liable

1. 3rd Restatement imports statutory rules, treating them as a common law rule by providing that human blood is not subject to rules of restatement k. Defenses to Products Liability i. In all other strict liability cases - comparative negligence not a defense but assumption of risk is ii. Extended liability (eggshell rule) applies D who commits a products liability is liable for all damages caused, not merely those intended or foreseeable iii. 2nd Restatement 1. Misuse can be a complete defense 2. Can use assumption of the risk but not comparative negligence 3. Some courts have allowed comparative negligence defenses (MINORITY) 4. Known dangers are not subject to liability (alcohol, sugar, caffeine) rd iv. 3 Restatement 1. Misuse can be a complete defense 2. Allows assumption of the risk and comparative negligence 3. Even jurisdictions that allow comparative negligence do not allow if the negligence is that the P did not discover the defect 4. Known dangers are not subject to liability (alcohol, sugar, caffeine) 5. Compliance with a statute is considered but does not preclude a finding as a matter of law that the product was defective in particular cases v. Misuse different than traditional defenses, look into the mind of manufacturer of the product 1. Attacking something that P must prove, which is better for the D 2. If you prove misuse, then that is a complete defense and there is no need for assumption of the risk or comparative negligence 3. If you determine misuse, this means theres no causation, and plaintiff hasnt even made out his prima facie case. a. However, if there is a defect that is established, it doesnt matter that the harm the person suffered isnt the one that would normally be expected from the defect, they are still liable 4. Addresses whether or not the product was defective in the first place? 5. Was the use of the product reasonably foreseeable to the manufacturer? a. If yes, then there may not be a defense to products liability b. If not foreseeable, then the defendant may have a defense to products liability c. Foreseeability does not necessarily mean that the plaintiffs use was not negligent some negligent use by consumers is still foreseeable. What is foreseeable? i. Courts are split

1. Manufacturer must ordinarily design a product reasonably in the light of known or foreseeable misuses not merely for intended uses a. E.g. If a car will collapse when it is in a foreseeable collision, it may be defective, even though the manufacturer never intended it to be crashed 2. Even though the use was foreseeable, if the P disabled safety devices or materially altered the product, the manufacturer is no longer liable a. More steps people take to intentionally get around safety devices that are defined by the manufacturer, it is not fair to hold manufacturers liable for that d. Liability according to users i. Majority must make things safe for foreseeable users including children ii. Minority Only have to make things safe for intended users 6. Courts will use this in different ways a. 1 product not defective because wasnt a foreseeable use of the product b. 2 Similar proximate cause, wasnt a foreseeable use of the product c. 3 overlap with assumption of the risk/comparative negligence cases, what the user did was negligent, consider Ps behavior i. Did P knowingly assume a risk? ii. Manufacturers must assume that some plaintiffs will use the product in a negligent way if the use if foreseeable, they are liable 7. Misuse, Defectiveness, Warnings, and Disclaimers a. Makes it less foreseeable that people will do these things, help on misuse argument b. Distinct from a warning defect c. What is a warning? i. If you use this product in this way, you will cause harm, so dont do that d. What is a disclaimer? i. This product is dangerous, use at your own risk. ii. Ineffective in new goods

1. Just because you say it is dangerous, and you are not liable, there is no legal effect for new items iii. Used goods 1. Sellers of used goods can use disclaimers to make assumption of the risk defenses or misuse because it wasnt foreseeable vi. Compliance with statute 1. Traditional rule compliance with a statute is not a complete defense. Statute provides a minimum standard (a floor, not a ceiling) a. Some states/federal law have enacted specific statutes about warnings and can have the following effects: i. Generic effect if you comply, there is good evidence in defense to PL ii. Specifically have to provide this type of warning, safety is required and is ALL that is required 1. To have a preemptive effect you have to meet this safety standard as a minimum or maximum 2. Cases depend on the wording of the statute 7. Misrepresentation a. ONLY economic harm, no physical harm b. Traditional rule no negligent misrepresentation, just intentional c. Modern rule recognize negligent misrepresentation and intentional misrepresentation d. Intentional Misrepresentation Requirements: i. D has a pecuniary(monetary) interest in the transaction AND ii. D intentionally supplies false information for the guidance of others in their business transactions iii. This information is intended to and does induce reasonable reliance by plaintiff AND 1. Reliance requirements rule: a. Misrep is not actionable unless P can prove that they in fact relied on the false statement AND b. False statement was about the material fact AND c. Reliance was justifiable iv. This causes harm to P e. Must be material misrep i. Opinions are not actionable, must be statements of fact f. Misrep of law i. Traditional rule no liability if you dont settle youll probably be liable in court

ii. Modern rule specific claims that are no knowingly and provably false by way of giving legal advice can also be misrep 1. Im in law school and its legal to drink if you are 18 g. Differences between intentional and negligent misrepresention i. Third party involvement 1. All courts believe can be liable for intentional misrep. Split of courts on whether or not there is liability under negligent misrep 2. Minority/Traditional rule - A makes misrep, B hears it, B repeats it, C relies on it to their detriment there will be liability if As original misrep was intentional or reckless but no liability for negligent misrep 3. Majority/2nd restatement rule Liability for intentional misrep BUT can be liability for negligent misrep but this is limited. a. Limited by - No liability to general public but if D knows or reasonably should know that there client is going to supply their opinion to a small group, and P is the type of person that would be in this group, they can be liable to members of that group even if that misrep is negligent. ii. Damages 1. Intentional misrep damages are typically more than negligent misrep damages 2. Intentional benefit of the bargain, need to put P ahead financially as much as P thought they would be ahead based on the misrep a. Ex P thinks is getting bowl worth $90 but it was only worth $5. P paid $80. He is entitled to recover a sum sufficient to give him the benefit of the bargain. Since if the bowl had been as represented, would have made a gain of $10, he is entitled to recover a sum sufficient to put him in that position. This will require $85 in damage. This $85 added to the value of the bowl which he has ($5) equals $90. 3. Negligent out of pocket loss, P is entitled to the loss of the bargain a. Ex - P thinks painting is worth $250. He buys it for $200. Its only worth $175. He bought it for $200 thinking he could sell it for $250. Out of pocket cost is how much he lost - $25. h. Strict liability in misrepresentation (not all courts use this theory) i. D is liable for misrep if they make a rep of their own knowledge, ii. Claim they have the knowledge, iii. D has economic interest in transaction, AND iv. buyer justifiably relies on information v. Example - Seller of staples honestly and reasonably represents them as safe for a staple gun. In fact they are not safe, a small piece breaks off and puts out the Ps eye.

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