Torts 1 Liu OutlineJuan Castro

Torts= Common law, have to prove more often than not, preponderance of evidence 2 kinds of liability: Fault based o Intentional tort o Negligence Not fault based o Strict liability (in limited areas)

Intentional Torts

PRIMA FACIE CASE To establish a prima facie case for intentional tort liability, it is generally necessary that plaintiff prove Act by defendant, Intent, and Causation. Act by defendantthe act requirement for intentional tort liability refers to a volitional movement on defendants part. INTENT o Purpose or Knowledge o Specific Intentan actor intends the consequences of his conduct if his goal in acting is to bring about these consequences. o General Intentan actor intends the consequences of his conduct if he knows with substantial certainty that these consequences will result. Garret v. Dailey. Boy pulls out chair from under lady. He knew with substantial certainty that she was going to sit down o Intent to do harm is not required. Intent to make contact is sufficient. Vosburg v. Putney. Child kicked other child in the shin in the classroom.

Eggshell (Thin) Skull Doctrine=The defendant takes the plaintiff as he finds him.

Lambertson v. United States. D pushed P into meat hooks. P intended to make contact. P not required to prove that D intended to injure him.

Ranson v. Kitner. D shoots Ps dog on accident thinking it was a wolf. D is liable for damages caused by mistake, notwithstanding he was acting in good faith.

Transferred Intent o Transferred intent doctrine applies where the defendant intends to commit a tort against one person but instead (1) commits a different tort against that person, (2) commits the same tort as intended but against a different person, or (3) commits a different tort against a different person Keel v. Hainline. Students throwing erasers accidently hit a student sitting down not involved in the roughhousing. Willful and deliberate throwing of erasers not a lawful pastime, even though done in sport. D is liable because he was aiding and abiding the students that hit P with erasers. o Limitations on use of Transferred Intent Transferred intent may be invoked only where the tort intended and the tort that results area both within the following: Assault Battery False Imprisonment Trespass to land; and Trespass to chattels

Brudney v. Ematrudo P was hit accidently by Ds (policmans) blackjack. D intended to strike someone else and actually did hit that person but on the way down the blackjack glances off of Ps head. Officer acted in good faith and gave verbal warning prior. Injury was mild in degree.

o Minors and Incompetents can have requisite intent

Intentional Torts to Person A. BATTERYIntentional infliction of harmful or offensive contact with plaintiffs person without consent or privilege. a. Prima Facie CaseTo establish a prima facie case for battery, the following elements must be proved: i. An act by the defendant which brings about harmful or offensive contact to the plaintiffs person; ii. Intent on the part of the defendant to bring about harmful or offensive contact to the plaintiffs person; and iii. Causation b. Harmful or offensive contact i. Whether any given contact is to be construed as harmful or offensive is judged by whether it would be considered harmful or offensive by a reasonable person of ordinary sensibilities. 1. Contact is deemed offensive if the plaintiff has not expressly or impliedly consented to it ii. Meaning of plaintiffs person 1. For purposes of a battery, anything connected to the plaintiffs person is viewed as part of the plaintiffs person. a. Picard v. Barry. D placed finger on Ps camera. Ds contact with camera is sufficient to constitute a battery. iii. Causation 1. The defendant is liable not only for direct contact, but also for indirect contact; it will be sufficient if he sets in motion a force that brings about harmful or offensive contact to Ps person. a. Moore v. El Paso CC. D was chasing P through a store to rope her during rodeo week and P smashed her hand through a door. iv. Apprehension not necessary
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1. A person may recover for battery even though he is not conscious of harmful or offensive contact when it occurs. 2. Respondeat Superior employers liable for torts committed by their employees acting in scope of their employment. a. Western Union v. Hill. D was under contract to repair Ps clock. Allegedly D, assaulted P. Capacity element, no way D could have carried out intention. Not within scope of Emp. Thrown out. B. ASSAULTAn act by the defendant creating a reasonable apprehension in plaintiff of immediate harmful or offensive contact to plaintiffs person; a. Defendant i. Intent ii. Conduct 1. Words alone = no assault but sometimes depends on circumstance. 2. Future threat = no assault 3. Conditional threats = depends on Ds legal rights b. Plaintiff i. Aware of the danger ii. P believes that D has the ability to commit the threatened contact. iii. Imminent Apprehension 1. Imminent: without delay 2. Fear is not required 3. Reasonableness of Reaction a. R2T: it is irrelevant if a person of ordinary courage would have been put in apprehension; subjective standard b. Most courts: reasonable person standard iv. Knowledge of act required v. Requirement of immediacy C. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS a. IIED= An actor who by extreme and outrageous conduct intentionally or recklessly causes severe emotional disturbance to another is subject to liability for that
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emotional disturbance and if the emotional disturbance causes bodily harm, also for the bodily harm. i. Intentional and Reckless ii. Extreme and Outrageous Conduct iii. Casual Link iv. Emotional distress b. Defendant i. Intentional or Reckless ii. By extreme and outrageous conduct c. Plaintiff i. Severe emotional distress 1. Harris v. Jones; a GM supervisor viciously taunted the plaintiff because of a speech impediment which he had been afflicted with for many years. The plaintiff testified that he was shaken up and felt like going into a hole and hiding 2. Court held that his testimony was weak at best and denied recovery. 3. What was necessary was to prove the intensity and duration of the emotional distress. d. Must have a causal link between b. and c. e. Insulting language is unlikely to be sufficient to give rise to liability for IIED. i. Slocum v. Food Fair Stores of Florida; a woman was told by a grocery clerk, If you want to know the price, youll have to find out the best way you canyou stink to me. ii. P was not permitted to recover for IIED, even though she suffered mental anguish and a consequent heart attack. iii. Exceptions 1. If D is an employee of a common carrier or public utility; 2. If D has special notice of Ps unusual sensibility. f. Four avenues for recovery: i. As a parasitic claim incidental to a tort involving physical injury; 1. Attached to and dependent upon bodily harm.
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2. Law recognized that personal injury is often accompanied by mental suffering, and thus the claim is likely genuine. ii. As an element of recovery in an action for non-physical injury torts (libel, slander etc.); iii. As an independent action for IIED; iv. As an independent action for Negligent infliction of Emotional Distress (NIED) 1. Tort of outrage g. IIED3rd party i. R2T 46 (2): IIED Directed at a 3rd person to recover 1. Immediate family member present at time. NO bodily harm is required 2. Other persons present at time. Bodily harm is required h. Difference Between Assault i. Assault = Apprehension of contact ii. IIED= Apprehension of contact not needed iii. Tort of Outrage scope is bigger than assault 1. Only tort that has reckless element D. FALSE IMPRISONMENT a. Following elements required: i. An act or omission to act on the part of the defendant that confines or restrains the plaintiff to a bounded area; ii. Intent on the part of the defendant to confine or restrain the plaintiff to a bounded area; and iii. Causation b. Defendant i. Intent ii. Conduct confinement by 1. Physical barriers a. Bird v. Jones; part of highway blocked off for race. Plaintiff climb over barriers but officers told him he could only go the
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other way. No imprisonment because he could have gone the other way. Has to be clear boundaries that prohibit movement except by prison break. 2. Use of force 3. Threat of force (including to a third party, or property), or 4. Assertion of authority a. False Arrests: a variety of false imprisonment in which the defendant unlawfully asserts legal authority in order to confine the plaintiff. b. Enright v. Groves; a cop took the P into custody after she had refused to produce her DL. i. Court found that the assertion of authority was unlawful because there was not law in the jurisdiction stating that P had to produce DL under the circumstances in question. c. shoplifting detentions are privileged i. There must be a reasonable belief as to the fact of theft; ii. The detention must be conducted in a reasonable manner and only nondeadly force can be used; and iii. The detention must be only for a reasonable period of time and only for the purpose of making an investigation. 5. Johnson v. Barnes &Noble Booksellers, Inc.; A sales clerk who was allegedly touched inappropriately by a customer called other personnel who detained P from more than an hour. a. Court held the store was liable for false imprisonment b. Alleged misdemeanor was not committed in the presence of personnel who detained the P and there was no imminent threat of a breach of peace. c. Plaintiff
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i. P is aware of the confinement or harmed by it ii. P believes that there is no reasonable means of escape iii. No consent d. Morales v. Lee; P worked in Doc office. Doctor went crazy, threw things and told her not to leave or hed call the cops. Judgment in favor of D. Threat of future action to call cops is not sufficient for false imprisonment charge. e. There is privilege to disclose potentially useful information to law enforcement officers; there is no privilege to supply information that is known to be false. f. Peterson v. Sorlien; held that parents acting under the conviction that the judgmental capacity of their adult child is impaired, limitations upon the childs mobility do not constitute meaningful deprivations of personal liberty sufficient to support a judgment for false imprisonment. E. TRESPASS TO LAND a. Tort of trespass to land protects a possessors interest in exclusive possession of real property. b. Person who intentionally and without consent or privilege enters on, under, or above the land of another commits a trespass. c. One who enters property with the permission of the possessor commits a trespass by failing to leave once the consent has expired. d. All that is required is the intent to be present; intent to be present on someone elses land is not necessary. e. Trespass to land is best considered in tandem with the tort of nuisance. F. TRESPASS TO CHATTELS a. Intentional tort of trespass protects a possessors interest in freedom from minor intentional interference with personal property. b. Elements of Ps prima facie case; R2T 218: i. Intent (purpose or knowledge) to affect the chattel; ii. Minor interference with the Ps possessory interest by: 1. Dispossession; 221 a. Taking a chattel from the possession of another without the others consent, or
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b. Obtaining possession of a chattel from another by fraud or duress, or c. Barring the possessors access to a chattel, or d. Destroying a chattel while it is in anothers possession, or e. Taking the chattel into the custody of the law 2. Use; or 3. Intermeddling (meaning physical contact); iii. In the absence of dispossession (from which damage may be inferred), proof of damage in the form of: 1. Substantial loss of use; or 2. Impairment of condition, quality or value. c. CompuServe Inc. v. Cyber Promotions, Inc.; the Ds sent unsolicited e-mail ads to thousand of internet users, many of whom were customers of Ps online computer service, notwithstanding repeated demands by the plaintiff to cease those activities. i. Ds conduct = trespass to chattels because it diminished the equipments value by demanding disk space and draining its power. ii. Also it harmed Ps relationship with its customers, for many had objected to receiving unsolicited email. G. CONVERSION a. Major interference b. Conversion is more serious then trespass. The difference is a matter of degree. c. Restatement, Second of Torts 222A i. Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel. ii. In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important: 1. The extent and duration of the actors exercise of dominion or control 2. The actors intent to assert a right in fact inconsistent with the others right of control.
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3. The actors good faith (was it a reasonable mistake?) 4. The extent and duration of the resulting interference with the others right of control 5. The harm done to the chattel; 6. The inconvenience and expense cause to the other. d. Zaslow v. Kroenert; the court rejected the plaintiffs argument that the defendants removal and placing of the Ps furniture into storage constituted a conversion. i. Ds asserted no claim of ownership ii. Had warned the P in advance of their proposed action iii. Furnished notice of new location iv. And of how goods might be claimed e. Russell-Vaughn Ford, Inc. V. Rouse; the Ds salesman intentionally refused to return the Ps car keys despite repeated demands to do so. i. The court held the facts justified a finding of conversion ii. Court stated it was irrelevant that the P could have called his wife to bring another set of keys 1. nothing in our caseswould require the plaintiff to exhaust all possible means of gaining possession of a chattel which is withheld from him by the defendant, after demanding its return iii. The retention of the keys constituted a conversion of the entire car iv. Bad faith figures into the balance. f. Demand for Return i. The mere retention of good which the defendant obtained legitimately does not constitute conversion unless the plaintiff demands their return, and the demand is refused. g. Qualified Refusal i. A person does not become a converter merely by making a qualified refusal to surrender a chattel under circumstances making immediate surrender unreasonable, as in the case of goods not readily accessible or a demand made after business has closed. h. Bona Fide Purchasers
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i. A person who obtains property through theft or fraud is liable for conversion ii. One who later acquires the goods with notice of their illegitimate origin is liable for conversion. iii. A defrauder has voidable title to goods acquired by fraud. iv. Bona fide purchase cuts off any equitable rights and precludes suit by the fraud victim against the good faith purchaser, but not against the person who committed the fraud. i. Damages for Conversion i. Time and place 1. P is entitled to recover the market value of the chattelwhat a willing buyer would pay a willing seller when neither is compelled to buy or to sellat the time and place of the conversion. 2. Damages for conversion may be recovered only once. ii. Unmarketable and irreplaceable items 1. Damages are limited to replacement value, less an amount for depreciation. 2. If a chattel cannot be replaced, the owner may recover an amount for its special value to the owner, as evidenced by its original cost and its condition at the time of the loss. 3. Sentimental value has been disregarded in calculating damages iii. Commodities 1. Commodities which fluctuate in value, most courts agree that the plaintiff may recover the highest value of the commodity between the date of the conversion and a reasonable time for replacement. iv. Mental Distress 1. Damages for mental distress may be awarded if the D should have foreseen that psychic suffering would follow from the tort. v. Punitive Damages may be awarded in cases involving outrageous conduct j. Replevin

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i. Someone whose property has been converted may wish to recover the chattel itself rather than receive the proceeds of the forced judicial sale which is the usual result of a conversion action. ii. Allows the P to recover possession of the chattel in specie k. Intangible Property i. Some courts say the taking of intangible property is a conversion only if the property is of the type that is customarily merged in, or identified with, some document. ii. Some recent decisions have permitted a conversion action where an intangible interest is represented by an electronic computerized entry, rather than by a paper document. iii. Kremen v. Cohen; a third person fraudulently induced a domain name registrar to cancel the Ps registration of the name sex.com and transfer the name to him. 1. Court concluded that the registrar was liable for conversion because it gave away the Ps intellectual property. 2. Requirement at most only some connection to a document or tangible object 3. Court held that the electronic database that associates domain names like sex.com with particular computers connected to the internet satisfied the document requirement. 4. That the document was stored in electronic form rather than on ink and paper was immaterial. H. DAMAGES AND PRIVILEGES a. Consent = Capacity + Scope i. Total Bar to Liability 1. Ps consent to an otherwise tortious act negates the wrongful element of the defendants conduct and prevents the existence of a tort. 2. Volenti non fit injuriato one who is willing, no wrong is done. ii. Burden of Pleading and Proving
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1. Burden of proving lack of consent is upon the plaintiff for each of the basic intentional torts, except for trespass to land. iii. Three Kinds of Consent 1. Actual consentexists if the plaintiff is in fact willing that the conduct occur. 2. Apparent consentis found whenever the plaintiffs conduct reasonably leads another to believe that the plaintiff has consented, even though the plaintiff did not actually consent. 3. Implied consentlegal fiction which the courts indulge in the absence of consent to justify desirable conduct which would otherwise be tortious. iv. Relation to Assumption of Risk 1. Consent in Fact = Actual Consent a. Davies v. Butler; held consent must be (a) by one who has the capacity to consent, and (b) to the particular conduct, or substantially the same conduct (reasonableness). b. Fraternity Hazing i. Usually by classifying the conduct as a criminal misdemeanor unless the acts would otherwise constitute a felony. ii. Hazing may give rise to tort liability c. Manifestation of Consent i. Consent in fact may be manifested by word, by affirmative action, or by silence or inaction under circumstances showing that the silence or inaction gives consent. d. Capacity to Consent i. Consent is ineffective if youth or mental deficiency precludes a person from appreciating the nature, extent, and probable consequences of the conduct allegedly consented to.
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e. Scope of Consent i. An action will be barred only if the invasion is within the scope of the plaintiffs consent. v. Actual consent 1. Consent in fact means that the plaintiff actually is willing for the conduct (but not necessarily the consequence) to occur. 2. May be in words go ahead, hit me 3. Affirmative action (pointing to shoulder to indicate where the blow should be) 4. Or by silence or inaction (sitting quietly and not objecting to romantic advances) 5. Consent is valid whether communicated to defendant or not vi. Apparent consent 1. Objective manifestation rule the question is whether a reasonable person would have understood the plaintiffs conduct to indicate willingness. 2. Apparent Consent a. OBrien v. Cunard S.S. Co.; held that implied consent led doctor to believe that it was okay to give shot to passenger. b. Objective Manifestation Rulequestion whether a reasonable person would have understood plaintiffs conduct to indicate willingness. vii. Implied Consent a. Law holds that consent is implied because the interests to be furthered by the invasion are more important than those which will be sacrificed, which completely bars liability. b. Miller v. HCA, Inc.; held that it was not HCAs policies that permitted doctor to treat baby without consent, it was the emergent circumstances that caused that to happen. i. Prior refusal to provide consent for resuscitation was irrelevant because the child could not be fully
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evaluated for medical treatment until birth and, therefore, the parents earlier decision was not fully informed. c. Implied consent in Medical Emergencies i. In case of emergency a surgeon may lawfully perform such operation as a good surgery demands even when it means extending the operation further than was originally contemplated for doing so he is neither to be held liable in damages, nor denied recovery of his fee. 2. Consent Given Because of a Mistake a. DeMay v. Roberts; held that patient has legal right to privacy when being examined. Doctors friend assaulted patient because he shouldnt have been there. b. Consent Given Because of a Mistake i. 3 Types: 1. Mistake resulting from fraud by the defendant; 2. Mistake resulting from the defendants negligence; 3. Mistake not culpably caused by the defendant. ii. Under both the traditional and modern views, consent will be invalidated only if the D knows that the P has labored under a misconception. c. Mutual Mistake i. Doesnt invalidate consent d. Consent and Duress i. Consent is not effective if it is given under duress e. Consent to a Criminal Act

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i. Split authority as to whether consent to a criminal act bars tort liability. f. Deterrence of Criminal Acts

g. Parties not in Pari Delicto i. In pari delicto parties are equally at fault. I. DEFENSE OF SELF AND OTHERS a. Self-Defense i. The person must reasonably believe that force is necessary to protect oneself from bodily harm, and the force that is used must be reasonable under the circumstances. ii. Age, size, and relative strength of the parties should be taken into consideration. iii. Common law: deadly force may be used only to defend against deadly force. iv. Silas v. Bowen; the court held that because of the disparity in the size of the parites, the belligerence of the plaintiff, and the plaintiffs physical abuse of the defendant, it was reasonable for the defendant to fear serious bodily injury at the hands of the latter. v. Self-defense privilege does not permit retaliation; once there is no threat vi. Verbal threats not amounting to an assault are insufficient vii. But provocative words or actions to induce an attack, that amount to a challenge to fight, can constitute consent and bar an action for intentional tort. b. Defense of others i. May be invoked by anyone who reasonably believes that force is necessary to protect another from physical harm. ii. Force used by intervenor must be reasonable. iii. Drabek v. Sabley; the defendant had apprehended a young boy who had been throwing snowballs at passing cars and who might have been expected to continue to do so. Court held that it was unreasonable as a matter of law to drive the child several miles to the police station after taking him into custody.
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1. Alternatives were availableturning over child to parents or just reporting child to police. c. Defense of Property i. Possessor may use reasonable force to defend property. ii. Deadly force may never be used to repel a threat against land or chattels, unless there is also a threat to the safety of the defendant and others. iii. A person cannot do indirectly that which the person is not permitted to do directly. 1. Katko v. Briney; the defendants had rigged a spring-gun to protect an unoccupied farmhouse from break-ins. They were held liable to a trespasser who was injured by the gun, for deadly force may not be used if there is no threat to personal safety. 2. Giving notice of the intended use of a mechanical device does not enlarge the privilege. 3. Question is whether the invasion was reasonably believed to pose a threat to persons. J. RECAPTURE OF CHATTELS a. An owner or possessor of a chattel, wrongfully dispossessed of that item by fraud or force, has a privilege to take prompt action and use reasonable, non-deadly force to recapture the chattel. b. Fresh pursuit is required, no unreasonable delay. c. Hodgeden v. Hubbard; the plaintiff had purchased a stove on credit by making false representations as to his creditworthiness. Because defendants promptly discovered the fraud, quickly pursued the plaintiff, and did not initiate the use of deadly force, their recapture of the chattel was privileged. d. Privilege to Detain for Investigation i. Shopkeepers Privilege 1. To detain temporarily; 2. In or near their store; 3. One reasonably suspected of theft; 4. For purposes of reasonable investigation.
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ii. Dillard Department Stores, Inc. v. Silva; the court held that the failure of store personnel to accompany a suspect to his car to see whether he had a receipt, as he maintained, and instead using force to handcuff the suspect until police arrived, was unreasonable. Store was liable for false imprisonment. K. PUBLIC AND PRIVATE NECESSITTY a. A person may interfere with the real or personal property of another where the interference is reasonably and apparently necessary to avoid threatened injury from a natural or other force and where the threatened injury is substantially more serious than the invasion that is undertaken to avert it. i. Public Necessity Where the act is for the public good (shooting a rabid dog), the defense is absolute. 1. Surocco v. Geary; the blowing up of the plaintiffs house did not stop the spread of conflagration, but the privilege of public necessity precluded a suit in tort by the owner of the destroyed dwelling. 2. All that is required for the privilege to apply is that the actions reasonably appear to be necessary. 3. Wegner v. Milwaukee Mutual Insurance; a city was required to reimburse a homeowner whose house had been destroyed by a police SWAT team in the course of apprehending a suspect. 4. Fairness and justice, the court found, required that an innocent homeowner not be forced to bear the entire cost of a benefit conferred on the entire community. ii. Private Necessitywhere the act is solely to benefit a limited number of people, the defense is qualified; the actor must pay for any injury he causes. 1. Exception: the defense is absolute if he act is to benefit the owner of the land. 2. Ploof v. Putnam; a landowner had cast adrift a boat which had attempted to tie up at his dock during a storm. The landowner was held liable for the consequent injuries and damages suffered by the occupants of the vessel.
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3. In the absence of such resistance, a landowner may recover for the damages actually inflicted by anothers assertion of private necessity. 4. Vincent v. Lake Erie; where damage was caused to a dock by a ship that was moored there during bad weather. a. Defendant held liable for damages to dock because of their deliberate and direct efforts to hold ship fast to dock. b. Unlawful Conduct i. Some states hold that the plaintiffs unlawful conduct is a total bar to recovery if: 1. The conduct constitutes a serious violation of the law 2. The injuries for which recovery is sought were a direct result of that violation. ii. Barker v. Kallash; a fifteen year-old boy who was injured while constructing a pipe bomb was precluded from recovering from a nine-year-old boy who had supplied the gunpowder. iii. General Rule: A person is not denied the right to sue in tort merely because that person was engaged in illegal conduct when the tort occurred. 1. Exception: unlawful conduct defense is a limited exception to rule, which should be reserved for cases in which the violation of the law is particularly serious and the relationship between the injuries and the violation is direct. L. DAMAGES a. Likely object of tort action is monetary award of damages. b. Controlling Excessive and Inadequate Damages: Remittitur and Additur i. Remittiturwhen a court finds an award of damages to be excessive, a common practice is to order a new trial unless the Plaintiff agrees to accept a smaller sum fixed by the court in place of the jurys award. ii. Additurallows a court to award the plaintiff a new trial on damages unless the plaintiff agrees to pay a larger amount than the jury awarded; can only be done if the award is against the weight of the evidence.
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iii. In the absence of consent to an additur/remittitur order by the affected party, courts lack the authority to increase or decrease jury damage assessments iv. Judges are not to set aside damages awards merely because they would have reached a judgment different from that of the jury. c. Anderson v. Sears; denied a motion for remittitur because it found that a $2 million award to a seriously burned infant girl was less than the highest possible award supported by the evidence. i. Maximum recovery rule the amount offered to the plaintiff is equivalent to the highest award the jury would have been justified in making. d. Pain and Suffering i. Some courts allow for physical and mental pain and suffering on per diem arguments. ii. Counsel reduces discomfort to small units, such as minutes, hours, or days and then multiply unit value by the number of units of time that the suffering may be expected to take continue. e. Hedonic Damages i. Award for the plaintiffs loss of the ability to engage in enjoyable activities, such as sports, travel, and even sexual relations. ii. Some courts reject this type of award. f. Damages for Loss of Consortium i. Consortiumis a spouses legal right to the company, affection, and service of the other spouse ii. Must be tried together with the principal action g. Medical Monitoring i. A claim for medical monitoring seeks recovery of the cost of future periodic medical examinations that are intended to facilitate early detection and treatment of diseases caused by exposure to toxic substances. ii. Meyer v. Fluor Co.; a case involving pollution from a lead smelter, the court held that a class of children who lived in that area could recover medical monitoring damages even though they had not yet suffered a physical injury.
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iii. Other courts treat proof of physical harm as a pre-condition to recovery of medical monitoring. h. Collateral-Source Rule i. Holds that a plaintiffs recovery from the defendant shall not be diminished because the plaintiff has received benefits covering some aspect of damages from a person other than the defendant or one acting on the defendants behalf. ii. Fact that P has been compensated by personal insurance or received gratuitous nursing services from a spouse or neighbor is not taken into account. iii. Reason is because amounts are normally the result of the plaintiffs own hard work or foresight. iv. Helfend v. Southern California Rapid Transit District; the plaintiffs medical expenses had already been paid by his insurance company, but the court declined to bar recovery of the same amounts from the defendant. v. The collateral-source rule, the court held had the salutary effect of encouraging persons to look out for their own best interests by purchasing insurance, and it served the function of compensating plaintiffs for expenditures on attorneys fees which are otherwise not recoverable in the absence of statute. i. The Avoidable-Consequence Rule i. A plaintiff may not recover compensation for any aggravation of damages which could have been avoided by the exercise of reasonable care after the legal wrong was committed by the defendant. ii. If a persons recuperation is prolonged by unreasonable failure to obtain medical assistance, recovery will be limited to the amount of damages that would have been incurred if the person had reasonably sought treatment. iii. Zimmerman v. Ausland; the question was whether the plaintiff could recover for an impairment in physical condition which could have been remedied by an operation. j. Survival Actions and Wrongful-Death Actions
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i. Survival Statutesstatutes which prevent a lawsuit from coming to an end when one of the parties dies ii. Wrongful-death Statutecreates a cause of action for the benefit of a defined class of persons left behind when the defendant has tortiously killed someone. iii. Gonzalez v. New York City Housing Authority; a wrongful-death award to the independent, adult grandchildren of a brutally murdered woman was affirmed. The grandchildren, who had received meals, advice, and other forms of help from the grandmother who had raised them, were deemed to have suffered pecuniary injuries within the meaning of the statute. iv. Pecuniary loss generally proceeds by determining the amount of support the decedent would have provided to the plaintiffs, but for the death. k. Wrongful-Death Damages for Grief i. To allow consortium recovery is not necessarily to allow recovery for grief or anguish of survivors ii. By 1990s many states were permitting recovery for emotional harm or anguish in wrongful death actions. iii. Damages, Deterrence, and Compensation 1. 2 goals commonly assigned to the tort system are a. Deterrence of dangerous activities b. Compensation of victims 2. Possible objection to using damages to deter accidental death is that people will take precautions anyway, out of simple morality. 3. How are damages for purposes of deterrence calculated? a. Looking at the amount people are willing to spend to protect themselves against small risks of dying b. The amount of higher pay received by those engaged in dangerous occupations. 4. Value of lifeshorthand way of expressing the value of taking precautions against small risks of death. Current value = $7.5 mil

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5. Tort system cannot effectively pursue both deterrence and compensation at the same time. iv. Hoyal v. Pioneer Sand Co., Inc; Court found that evidence relating to the decedents future tax status was inappropriate for purposes of calculating the survivors net pecuniary loss because future tax rates are a matter of speculation and allowing such evidence would unduly complicate tort lawsuits. l. Punitive Damages i. Imposed in cases involving egregious conduct to punish or make an example of Plaintiff. ii. Types of Wrongdoing Required 1. Some states limit punitive damages awards to intentional acts of malice 2. Other states may require only willful indifference, wanton or reckless conduct or gross negligence. iii. State Farm v. Campbell; a large punitive award was based on evidence that for over 20 years, an insurance company had adhered to practices that were calculated to underpay legitimate claims iv. Used 3 guideposts from Gore to determine punitive damages 1. Degree of reprehensibility 2. Disparity between the actual and potential harm suffered 3. Difference between punitive damages awarded and penalties in comparable cases. v. Few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree will satisfy due process.

M. NEGLIGENCE a. Negligence is conduct which poses an unreasonable risk of harm to others. b. 4 elements of cause of action: i. Duty
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ii. Breach iii. Causation iv. Damage c. Negligence is not directly concerned with the Defendants state of mind, concerned with the character of the Ds conduct. d. Conduct that poses an unreasonable risk of harm to others is negligent. e. General RuleForeseeable Ps i. A duty of care is owed only to foreseeable plaintiffs. f. Palsgraf v. Long Island Railroad Co. i. Most famous tort case of all time. ii. Railroad guards had attempted to boost a passenger safely onto a slowly moving train that he was running to catch. In the process, a package was dislodged from the mans arms. It fell to the tracks and exploded. The question was whether a woman who was standing on the other end of the platform could recover from the railroad for the injuries she sustained when the shock of the explosion caused scale to fall. iii. Judge Cardozo; writing for majority: 1. risk reasonably perceived, defines duty to be obeyed 2. The second P can recover only if she can establish that a reasonable person would have foreseen a risk of injury to her in the circumstances, i.e., that she was located in a foreseeable zone of danger 3. Because there was no reason for the guards to foresee the possibility of injury to Helen Palsgraf or to others similarly situated, there was no duty to her and therefore no liability for negligence. iv. Judge Andrews; minority view 1. Everyone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. 2. Rubric is under proximate cause and not duty. g. The Negligence Balancing Test

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i. Question arises as to how foreseeable a harm must be before liability will be attached. ii. Nussbaum v. Lacopo; the plaintiff, whose property abutted a country club, was injured by a stray golf ball. 1. The court held that although the defendant golfer had played the course before and was aware of the location of the plaintiffs property, and although golf balls had landed there on previous occasions, the possibility of harm to the plaintiff was too small to give rise to liability. 2. A person cannot be expected to guard against harm from events which are so unlikely to occur that the risk, although cognizable, would commonly be disregarded. iii. Gulf Refining Co. v. Williams; a spark caused by a defective cap on a gasoline drum started a fire, which injured the plaintiff. The defendant supplier argued that there should be no liability when an occurrence is unusual, extraordinary, and improbable. This contention was rejected by the court which found that the test is not whether damage was more likely than not to occur, but whether the risk was of sufficient weight and moment that a reasonable person would have avoided it. 1. Indicates that opinion in Nussbaum goes too far when it states that, for negligence to lie, harm must be not merely possible, but probable. h. U.S. v. Carroll Towing Co.; a barge belonging to the P had broken away from its moorings because of the negligence of the Ds employees in moving the ropes i. Defense = P had comparative negligence according to rule of admiralty for not having a bargee on board to take corrective action. Court agreed. ii. According to Judge Hand, liability exists if the burden the D would have to bear to avoid the risk (B) is outweighed by the gravity of the loss (L) times the probability (P) of the threatened harm 1. B<LP

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2. Formula indicated that some measures to reduce the costs of accidents are not worth taking, because the benefits of added safety would amount to less than the costs. 3. Should ask whether an additional dollar will produce more than an additional dollar in safety benefits. If yes, then spend dollar. i. Chicago, B&W Railroad v. Krayenbuhl; a four year old child was injured while playing on an unlocked railroad turntable. The court, focusing on the utility of the defendants conduct and on the availability of the alternatives, held that while railroad turntables serve an important public interest, the use of a lock would have interfered only slightly with the pursuit of that goal, therefore D was negligent. i. Takes into account utility of Ds conduct and available alternatives. ii. Utility of a give course of conduct is function of: 1. The social value of the interest the D seeks to advance 2. Likelihood that the conduct will advance the desired objective 3. Availability of alternatives iii. Gravity of the threatened harm is a function of: 1. Social value of the interest imperiled 2. Extent of the harm that is threatened 3. Number of persons who are likely to be affected j. The Reasonable Person Standard i. RST 285, the conduct of a reasonable person may be established in any of 4 ways: 1. Finder of fact, guided by rules of law determines on an ad hoc bases whether D acted reasonably under circumstances of case. 2. Standard of conduct of a reasonable person established by judicial decision. Court states as a matter of law. 3. Standard of conduct or a reasonable person defined by legislative body through an appropriate enactment 4. Court may define the standard of care with reference to the legislative enactment ii. Young v. Clark; (can driver be negligent in emergency; car ahead swerves)
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1. Court held that Ps injuries were not caused by negligence on Ds part. 2. Sudden Emergency doctrine appliedactor cannot reasonably be held to the same judgment as one who has had full opportunity to reflect on situation. iii. Emergency as a Relevant Factor 1. Most courts hold that evidence of an emergency does not require the application of a different standard iv. Creators of emergencies 1. An instruction on sudden emergency generally is not available where the crisis is of the Ds own making v. Competence 1. The ability or capacity of the individual to use care. 2. On can hardly he held negligent for failure to have more competence than one actually has 3. An actors competence, or lack of, may be the key fact in determining whether it was reasonable for the actor to attempt an activity. 4. An emergency may well justify an attempt to do something despite incompetence. k. Religious Beliefs i. Williams v. Bright; issue was whether the P had unreasonably failed to mitigate damages due to her religious beliefs as a Jehovahs Witness, which allegedly precluded her from having a knee operation because the procedure would require a blood transfusion 1. Court held they had no business endorsing or condemning the truth or falsity of anyones religious beliefs. l. Age i. Goss v. Allen; whether a child should be held to the same standard of care as an adult. 1. P was injured when she was struck by a 17-year-old, first time skier
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ii. Childrens Standard 1. A child must normally exercise the degree of care that would be observed by children of similar age, intelligence, and experience. 2. Some courts apply a non-adult standard only to children below 14 years of age. iii. The Dangerous or Adult Activities Exception 1. R3T 10cprovides that a child will be held to an adult standard of care when the child is engaging in a dangerous activity that is characteristically undertaken by adults. iv. Presumed Incapacity of Children 1. Considerable minority of jurisdictions take a different approach to addressing the liability of children for negligence. a. Children above 14 there is a rebuttable presumption in favor of the childs capacity to commit negligence; b. Children between 7 and 14, there is a rebuttable presumption against capacity; c. Children under the age of 7 are deemed incapable of committing negligence. 2. R3T 10(b)rejects this minority approach but endorses a rule that a child who is less than 5 years of age is incapable of negligence. m. Mental Deficiencies i. Generally 1. No allowance is made in the adult standard of care for mental deficiency of a relatively minor nature. 2. As to more severe mental problems, the actor is not relieved from liability for conduct that does not conform to the standard of the reasonable person under like circumstances. ii. Breunig v. American Family Ins. Co. (believed God was driving her truck; crashed) 1. Found that a different rule should apply in cases of unanticipated, sudden insanity.
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2. Because there was evidence to show that the D had reason to believe that hallucinations might occur, the unexpected insanity rule is inapplicable. n. Superior Knowledge, Training, or Skill: Professional Malpractice i. The actor will be found negligent for failing to perform with the degree of knowledge, skill, and diligence possessed or exhibited by an ordinary member of the profession in good standing. ii. An attorney owes a duty of care to anyone who becomes a client. iii. Biomet Inc. v. Finnegan Henderson LLP 1. Reasonable exercise of judgment will not give rise to liability o. Legal Malpractice and Medical Malpractice i. Hodges v. Carter; (P claimed improper service to 4 different insurance co.) 1. Court held that attorney acting in good faith could not be held liable ii. Failure to consider debatable questions 1. An attorney is obliged to undertake reasonable research in an effort to ascertain relevant legal principles and to make an informed decision as to a course of conduct based upon an intelligent assessment of the problem. iii. Lawyers Liability To Third Parties 1. A duty of care may extend to intended third party beneficiaries of the attorney-client relationship. 2. A duty may extend to persons who foreseeably rely on documents provided by an attorney. iv. Russo v. Griffin; an attorney was charged with malpractice, based on failure to advise his client of the desirability of obtaining a covenant not to compete from the party who was selling the client an interest in a paving business. 1. Held that trial court erroneously applied locality rule in defining the applicable standard of care 2. The relevant frame of reference was state-wide 3. The testimony by attorneys from another, much larger city in the state was sufficient to support the Ps cause of action.
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v. Punitive Damages for Malpractice 1. If the facts are egregious and therefore establish more than mere negligence, punitive damages based on attorneys misconduct may be recovered in malpractice action. vi. Liability for lost punitive damages 1. Permitting recovery of lost punitive damages would also violate the public policy against speculative damages, necessitate an excessively complex standard of proof, and exact a significant social cost in terms of the cost availability of malpractice insurance. vii. Boyce v. Brown (doc leaves screw in womens ankle 1. Court considered two questions: a. What was the treatment which P gave Boyce? b. What was the medical standard which he was required to conform to? 2. Held court properly instructed a verdict for D, Doc viii. Informed Consent 1. A doc may be held liable for negligence, even if the doctor obtained the patients consent to treatment and exercised all due care in performing medical services, if in procuring the consent the doctor failed to disclose the material risks of, and relevant alternatives to, the proposed course of treatment. 2. Test of materiality is often easily satisfied a. Requires simple that the matter be likely to affect the patients decision, not that it be the determinative or controlling consideration. 3. Scott v. Bradford (woman received vesico-vaginal fistula; claimed doc failed to advise her of risks) a. Court applied subjective test which asks whether there is credible evidence to support a finding that this particular patient would not have consented.

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b. Most jurisdictions have rejected subjective approach for an objective test which asks whether a reasonable person would have consented to the treatment if the risks and alternatives had been disclosed. c. Defenses. No disclosure need be made if: i. The risk ought to be known by everyone or was in fact already known to patient. ii. There is an emergency and the patient is in no condition to determine whether treatment should be administered; or iii. Based on specific facts, full disclosure would be detrimental to the patients care and best interests. 4. If consent to treatment is procured but uninformedaction is one of negligence. (No disclosure) 5. If treatment is completely unauthorized and without consent at all the action is battery. 6. Punitive damages available for battery, NOT for negligence. ix. Judge Made Standards 1. Helling v. Carey (Womans eyes painful; doctor finally does pressure test after 10 years) a. Court held that issue was a matter of law for the judge to decide; test should have been given. b. Mindful of the grave and devastating nature of the potential harm and of the slight burden that administering the test would impose, the court held that it was negligent as a matter of law not to give the test. x. Statutes Adopted by Courts to Set the Standard of Care 1. Court may adopt requirements of statute not intended to establish standard of care if: a. The P is within the class of persons the statue was intended to protect; and
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b. Whether the harm is of the type that was intended to be prevented. 2. Gipson v. Kasey; held that a party-goer who violated a statute prohibiting distribution of prescription drugs to persons lacking a valid prescription could be liable for the death of another party guest that resulted from the decedents ingestion of the drugs along with alcohol. a. This was one of the types of harm that the distribution prohibition was intended to prevent, and the decedent was a member of the class intended to be protected. 3. Wrong Class of Person or Wrong Type of Harm a. Even if a statue is held not to set the standard of care on the grounds that it was intended to protect a different class of persons or prevent a different type of harm, negligence may be found under the reasonable person standard applied to the facts of the case. 4. Stachniewicz v. Mar-Cam Corp (P gets into fight with Injuns in a bar brawl) a. Court held that the P wouldnt have been injured if D would have obeyed commissions regulation b. Ignored statute but followed regulation 5. Brown v. Shyne; (P injured after chiropractor holds out to be doctor and treats her) a. Court held that license was not related to skill of chiropractor i. Jury had to decide if care and skill exercised was adequate. 6. Licensing statutes a. The absence of a license to drive a car or to practice a profession shows nothing about whether the car was driven carefully or the profession practiced acceptably

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b. R3T 14the immediate reason for the persons lack of a license is unrelated to the states general safety purpose. p. The Effect of an Unexcused Violation of a Standard-Setting Statute i. 3 schools of thought on the effect of a violation of a standard-setting statute. 1. Negligence per se a. Violation conclusively establishes that the D breached a duty of reasonable care to P b. Jury is told what the statute requires and what, if anything, constitutes an acceptable excuse. c. Evidence of due care which does not amount to an excuse for violating the statute will not preclude a finding of negligence per se d. Martin v. Herzog; (buggy with no lights struck by car) i. Holding that the unexcused violation was negligence in itself. ii. Evidence which a causal connection may be inferred between the collision and the lack of signals. 2. Prima Facie Negligence a. Evidence of the violation raises a presumption of negligence b. If the presumption is not rebutted by proof of an excuse or other evidence of reasonable care, a breach of duty is established. 3. Some evidence of Negligence a. Holds that an unexcused violation does not supplant the jury inquiry into the reasonableness of the Ds conduct. b. The unexcused violation is merely some evidence of negligence and jury is free to accept or reject q. Excused Violations of Statute i. R3T 15An actors excused violation of a statute is not negligence. Violation excused when:
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1. Violation is reasonable because of the actors childhood, physical disability, or physical incapacitation a. Ranard v. Oneil (child jumps out of car and runs across the street without looking; hit by car) 2. The actor exercises reasonable care in attempting to comply with the statute a. snow falls faster than owner can shovel to keep sidewalk clear 3. Actor neither knows nor should know of the factual circumstances that render the statute applicable a. tail light burns out while driving 4. The actors violation of the statute is due to the confusing way in which the requirements of the statute are presented to the public 5. The actors compliance with the statute would involve a greater risk of physical harm to that person or to others than noncompliance. a. Zeni v. Anderson; (P failed to comply with law requiring pedestrians to use sidewalks. It was argued that she was therefore contributorly negligent. b. However evidence of excuse shows that using the sidewalk, which was covered with snow and ice, would have been more dangerous than walking on the roadway. c. Found for P r. Compliance with Statute i. Montgomery v. Royal Motel (P attacked because hotel did not have selflocking doors) 1. Court held that P failed to present facts which would indicate that the case posed special circumstances requiring affirmative action beyond the requirements of the ordinance. 2. May have been different if motel was in bad neighborhood and had history of break-ins. s. Statutes Allowing No Excuse or Defense
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i. Certain statutes do not permit excuse and impose strict liability ii. Within this limited class may be laws: 1. Setting a minimum age for employment in certain hazardous occupations 2. Prohibiting the sale of adulterated food; 3. Specifying requirements for safety of employees, tenants or patrons of businesses open to the public; or 4. Prohibiting the sale to minors of firearms and other dangerous articles. iii. It is often held that defenses of contributory negligence and assumption of risk are unavailable iv. Seim v. Garavalia (girl bitten by a dog tied in Ds backyard) 1. Dog bite statute in state was intended to impose absolute liability on the owner of the animal 2. Statute intended to protect class of members from inability to protect themselves N. PROVING NEGLIGENCE a. Evidence of Custom i. T.J. Hooper (Tugboat loses barge with cargo; radios necessary to hear weather report?) 1. Proof of adherence to or departure from custom is not an indispensable part of a negligence case. 2. Ones adherence to custom does not necessarily mean that on was not negligent a. As a whole calling may have unduly lagged in the adoption of new available devices. ii. Low v. Park Price Co. (D repairs cars; Ps transmission stolen from car parked at D while outside) 1. Court held that inference arising from conformity to custom may be so strong that the issue of negligence may be determined as a matter of law.
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b. Circumstantial Evidence i. Direct evidenceevidence that directly supports the finding of a fact in issue, such as eyewitness testimony that the Ds vehicle was traveling in the wrong lane at the time the accident occurred. ii. Circumstantial evidenceevidence not of a disputed fact, but on one of more other facts from which the existence or non-existence of the fact in issue may reasonably be inferred. 1. i.e. evidence of skid marks may be used to prove circumstantially that the Ds car was traveling faster than the speed limit. iii. Goddard v. Boston & M.R.Co. (P slipped on banana) 1. Jus. Holmes said it may have been dropped within a minute by one of the persons who were leaving the train. 2. If P cannot prove facts to establish that it is more likely than not that the dangerous condition existed long enough that a proprietor should have known of its presence, there is simply no basis for recovery. iv. Anjou v. Boston E.R.Co. (P slipped on banana which looked as if though it were there for a while) 1. Court held there was negligence on the part of the D, which should have been submitted to the jury. 2. Discoloration a. Court may differ as to what inferences may be drawn from relatively similar sets of facts i. Minor differences in factual detail may precipitate different results. 3. Proximity and Opportunity to Discover a. Some courts seem to hold that proximity to the site of the danger is a basis for concluding that the danger should have been discovered and remedied. 4. Absence of Inspections

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a. The absence of an inspection is sometimes relevant to the issue of constructive notice. b. Notice (whether actual or constructive) is not an essential element in a negligence action c. Notice is required only if the dangerous condition is out of the ordinary d. If Ds mode of operation makes injury otherwise foreseeable, the failure to take precautions may give rise to liability, even in the absence of notice of the specific condition which cause harm to the P. v. Mode of operation 1. Corbin v. Safeway Stores (P slipped on grape in grocery store) a. Held that reasonable minds could conclude that D didnt use reasonable care to take some preventive measure against a foreseeable harm. 2. Foreseeability of Danger a. Basic notice requirement springs from the thought that a dangerous condition is somewhat out of the ordinary i. However when the operating methods of a proprietor are such that dangerous condition are continuous or easily foreseeable, the logical basis for the notice requirement dissolves. 3. In any civil action for negligence involving a foreign object on business premises, the claimant shall have the burden of proving that: a. Entity or control of the business premises acted negligently by failing to exercise reasonable care in the maintenance. b. Actual or constructive notice is not a required element of proof to this claim. c. Res Ipsa Loquitur i. In General
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1. Definitions and Examples a. Res ipsa loquiturthe thing speaks for itself i. Form of circumstantial evidence which may satisfy the Ps burden of proof on the issues of breach of duty and causation. b. Facts establishing special nature of the accident and the Ps relationship to it may justify a jurys decision that the D more likely than not was negligent. c. The event giving rise to the harm must be of the type which does not ordinarily occur in the absence of negligence. i. Made on the basis of past experience or general knowledge common to the community. d. Res ipsa doesnt apply to accident which occur frequently enough without anyones fault. 2. Exclusive Control a. Res ipsa does not require a showing that the D was in exclusive control of the dangerous instrumentality. b. Mobil Chemical Co. v. Bell (workers were injured when acid spewed from a rupture in chemical processing system. c. To make res ipsa case, P was required to show that the instrumentality (pipe) was under the control of D. 3. Superior Knowledge a. It is not necessary for RI that the D have superior knowledge. b. Mahowald v. Minnesota Gas Co. (a gas main exploded, injuring persons and property 4. Multiple Defendants a. Ybarra v. Spangard (P awakens from surgery with damaged shoulder muscles) b. Issue: whether the P had to show, as in the usual case, that the negligence was attributable to a particular D.

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i. Held that where a P receives unusual injuries while unconscious and in the course of medical treatment, all those D who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct. ii. Court held that it would be unreasonable to require a person who was unconscious at the time of injury to identify the wrongdoer. c. It determined that the P could rely on the doctrine to raise a presumption of negligence as to each D, but that any D could meet that presumption by giving a satisfactory explanation of his/her conduct. d. Joint control is the key test for determining whether res ipsa will apply against multiple D. ii. Some states have limited the use of res ipsa in certain types of cases, such as those involving medical malpractice. d. Spoliation of Evidence i. Tort of spoliation of evidencealtering the evidence for the purpose of misleading a fact finder is plainly fraudulent. 1. May well subject the D to criminal as well as civil sanctions ii. Trevio v. Ortega (birth records disappear after suit is brought forward) 1. Court held that spoliation is best remedied within the lawsuit itself, not as a separate tort. 2. Some spoliation claims against third-parties fail because the thirdparty has no legally enforceable duty to preserve the evidence in question. O. FACTUAL CAUSATION a. The But-For Test and Alternatives i. Causation divided into 2 different aspects:
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1. Factual causation 2. Proximate or legal causation ii. Factual causationinquiry into what actually occurred 1. Focuses on whether the Ds conduct in fact precipitated the injury to the P. 2. But for the Ds conduct the harm would not have occurred. iii. Proximate Causationconcerned with issues of policy 1. Whether, even if there is a factual-cause relationship between the Ds conduct and Ps injury, there is good reason that the D should not be held liable. 2. Is it fair? 3. Test of proximate causation is foreseeability iv. Williams v. Steves Industries, inc. (held that damages for the death of Ps children had to be reduced by reason of Ps comparative negligence, since but for the Ps negligent failure to keep gas in car, the car would not have stalled on the highway and gotten hit by the truck. v. Even if the requirements of but-for rule are not met, factual causation is established if two or more causes concur in bringing about harm, and either one alone would have been sufficient to cause the result. 1. I.e. stabbing of Caesar vi. 3 tests: 1. But-for 2. Independently sufficient 3. Otherwise substantial a. Used in cases involving multiple causes vii. Anderson v. Minneapolis (two fires) 1. Ds property was destroyed by a. A fire negligently started by the D b. Another fire of uncertain origin c. Or a combination of the two fires

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2. To recover from the D, the P was not required to prove that but for the Ds negligence the harm would not have occurred. 3. If the Ds fire was a substantial element in causing the Ps damage, liability could be imposed. viii. Reynolds v. Texas & Pacific Railway Co. (a woman fell down and unlighted train station stairway and sustained injuries.) 1. P is not required to establish causation in fact with absolute certainty 2. It is sufficient that the evidence shows that the Ds conduct more likely than not brought about the accident. 3. In determining whether a given act more likely than not caused an injury, a jury can look to circumstantial evidence and can usually rely upon its common knowledge 4. In some cases expert testimony may be required. ix. Kramer Service, Inc. Wilkins 1. Held that P failed to provide sufficient evidence to support jury finding that a negligently cut on Ps head caused cancer. 2. Based on the evidence and conflicting expert testimony, the jury could not find that the cancer more likely than not was caused by the Ds conduct. 3. Dont confuse the but-for test with the evidentiary standard applicable to proving factual causation. x. Saelzler v. Advanced Group 400 (assault and rape of delivery person at apartment complex) 1. Absent identification, it could not be said that the attack was more likely than not perpetrated by intruders, rather than by other tenants who had been responsible for a substantial number of incidents and disturbances at the complex. b. The Loss of a Chance Doctrine i. The loss of a chance to cure a disease or other medical problem qualifies as a type of harm for which recovery is available. ii. Matsuyama v. Birnbaum
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1. Court found that medical science now makes it possible to estimate a patients probability of survival with reasonable certainty and therefore recovery for the lost opportunity of curing a disease was particularly appropriate. c. Multiple Fault and Alternative Liability i. Normally P must prove causation by a preponderance of the evidence. ii. Summers v. Tice (P got his eye shot out during a hunting party and it was uncertain which one of two D was responsible) 1. Relying on fact that both Ds were negligent in firing, the burden of proof on issue of causation shifts to Ds 2. Each would be held responsible unless he could prove otherwise. 3. The burden of proof will shift only in cases where it is shown that all Ds are negligent. d. Enterprise Liability and Market-Share Liability i. Sindell v. Abbott Laboratories (P claimed to have contracted cancer as a result of prenatal exposure to the drug DES) ii. Market-Share Liabilityshifts to the Ds the burden of disproving factual causation iii. Alternate liability (Summers) was inappropriate in this case because only five of the nearly two hundred manufacturers of DES were before the court. iv. Factors in shifting burden of proof to the Ds: 1. The unavailability of proof as to causation was at least as much the fault of the Ds as it was of the P 2. The Ds could better absorb or spread the cost of the injury 3. Placing the burden of proof on the Ds would be an incentive to safety in the future. v. If the P fails to prove that it did not manufacture dosages consumed by Ps mother, it would be liable only for that proportion of judgment equivalent to the Ds share of the overall DES market. vi. Hymowitz v. Eli Lilly and Co.

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1. Held that to reduce the burden on litigants and ensure a greater degree of consistency between individual cases, market shares should be calculated on a national basis. 2. To apportion liability so as to correspond to the overall culpability of each D, measured by the amount of risk of injury each D created to the public at large. vii. R3T 11Market share liability whether to adopt rule of proportional liability, courts have to consider: 1. The generic nature of the product 2. The long latency period of the injury 3. The inability of Ps to discover the identity of the D even after exhaustive discovery 4. The clarity of the causal connection between the defective product and the injury suffered by Ps 5. The absence of medical or environmental factors that could have caused or materially contributed to the injury; 6. The availability of sufficient market share data to support a rational apportionment of liability. e. Concerted-Action Liability i. Under concerted action, suit may be maintained against a person who stood in a particular relationship to the actual wrongdoer. ii. Herman v. Westgate (P was thrown overboard during a floating stag party and sustained injuries) 1. Court refused to allow the complaint to be dismissed against certain Ds merely upon a showing that they were not the parties who laid hands upon the P. 2. If these Ds encouraged or otherwise aided the misconduct of the primary actors, they could be held fully responsible for the resulting injuries to the P. 3. Question of fact for the jury to determine. iii. Civil Conspiracy
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1. An agreement between two or more persons 2. To participate in an unlawful act, or in a lawful act in an unlawful manner 3. An injury caused by an unlawful overt act performed by one of the parties to the agreement; 4. Which overt act was done pursuant to and in furtherance of the common scheme. Element of agreement is a key distinguishing factor for a civil conspiracy action. Proof of a tacit (as opposed to explicit) understanding is sufficient to show agreement. Proof that the P was injured by an unlawful overt act is essential in a tort action for civil conspiracy. iv. Aiding-and-Abetting 1. The party whom the defendant aids must perform a wrongful act that causes an injury 2. The D must be generally aware of his or her role as part of an overall illegal or tortious activity at the time the assistance is provided; and 3. The D must knowingly and substantially assist the principal violation v. Advice or encouragement to act operates as a moral support to a tortfeasor and, if the act encouraged is tortious, it will support a finding of liability 1. Liability for aiding-and-abetting often turns on how much encouragement or assistance is substantial enough vi. 5 considerations: 1. The nature of the act encouraged 2. The amount of assistance given by the D 3. The Ds presence or absence at the time of the tort; 4. The Ds relationship, if any, to the tortfeasor; and 5. The Ds state of mind. vii. Principal distinction between civil conspiracy and aiding-and-abetting is that a conspiracy involves an agreement to participate in wrongful activity.
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viii. Halberstam v. Welch (wife had for years helped husband to dispose loot he had stolen) 1. Held liable under both theories of concerted action for a murder he committed during a burglary, even though she did not specifically know that he was committing burglaries. 2. Use of violence to avoid detection and apprehension was foreseeable risk in his field of work. P. PROXIMATE CAUSE a. A policy on Fairness i. PC is a policy determination on the issue of how far liability should extend for harm factually caused by tortious conduct. ii. Limits liability iii. If tortious conduct which meets the requirements of factual causation is not also a proximate cause of the harm, there is no tort liability. iv. Proximate cause = scope of liability b. Different Ways of Talking about Fairness i. Directness ii. Foreseeability iii. Risk iv. Normality c. Direct Causation Versus Foreseeability i. Under direct cause, liability extends to any harm which flows in an unbroken stream from the actors tortious conduct, no matter how unforeseen the harm may have been at the moment the acts occurred. ii. Assessment from hindsight. iii. Contrast to foreseeability where assessment is prospective, and the liability is limited to those damages which were, or should have been, foreseen by the actor. iv. The Polemis case (A plan was negligently knocked into the hold of a ship.) 1. In the course of falling, the plank struck a spark which ignited petroleum vapor, and the resulting fire destroyed the entire vessel.
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2. Court held that although the spark couldnt have been anticipated, the D was still liable. 3. The fact that the damage was not one that would be expected is irrelevant, so long as the damage was directly traceable to the negligent act, and not due to the operation of independent forces. v. Some statesa proximate cause is one that produces an injury through a natural and continuous sequence of events unbroken by any effective intervening cause. vi. Wagon Mound No. 1 (careless discharge of furnace oil in to waters near the Ps wharf.) 1. In contrast to Polemis 2. Liability depends upon the reasonable foreseeability of the damage which in fact occurs. 3. Since the fire was not foreseeable, the D was not liable for damages. d. Modified Foreseeability i. A tortfeasor need only foresee the broad outlines of the harm in order to be held responsible. ii. It is never necessary for the D to foresee the identity of the P. it is enough that there is danger to the class of persons iii. D need not anticipate the precise manner of the occurrence iv. Merhi v. Becker (P was injured at a union picnic) 1. Risk of physical harm was foreseeable consequence of Ds failure to provide adequate security. 2. It made no difference that the precise manner of the injury, being struck by a car, was not foreseeable. v. Foresight of a remote possibility of harm may be sufficient to establish proximate causation. vi. Wagon Mound No. 2 (same facts as WM1) 1. Suit was brought by the owners of the two ships which were destroyed by the fire while docked at the wharf.

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2. In contrast to WM1, the court determined that there was a duty to anticipate even remotely possible risks and that the damage was foreseeable to the engineer. vii. A defendant need not foresee the exact extent of harm, so long as the harm which ensues is of the same general sort that was risked by the Ds conduct. viii. Kinsman No. 1 (Ship broke away from its dock and proceeded downstream, toppling a drawbridge and causing water to back up behind a dam formed by the wreckage) 1. Foreseeability of danger is necessary to render conduct negligent 2. Case may be interpreted in either of two ways: a. Either it endorses the direct causation view of proximate causation, with the important limit that the harm in question must be of the same general sort that was risked by the D; b. Or it loosely interprets the foreseeability view so that foreseeability of the full extent of the harm is not required ix. With regard to personal injuries, the D takes the P as is and need not foresee the full extent of the resulting injuries in order to be held liable. x. McCahill v. N.Y. Transportation Co. (the Ds taxi negligently struck the Ps intestate; the man later died of delirium tremens) 1. Eggshell Skull doctrine 2. Once a P suffers any foreseeable personal injury, even a trivial one, the D is liable for all physical consequences, even unforeseeable injuries, so long as they do not stem from superseding causes. 3. Some courts have declined to find proximate causation, despite the presence of foreseeability. xi. Kinsman No. 2 (Same facts as Kinsman No. 1; the Ps were the owners of wheat stored aboard a ship) 1. Court held that relationship of the costs to the Ds negligence was too tenuous and remote to permit recovery. 2. Temporal remoteness (passage of time) figures into the assessment of proximate causation.
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xii. Summarization of modified foreseeability view of proximate causation: 1. P must fall, at least generally, within the class of persons foreseeably endangered by the Ds conduct 2. The broad outlines of the harm must be foreseeable, but the precise details or manner of its occurrence need not be anticipated by the D. 3. Foresight of a remote possibility of harm may be sufficient to impose liability if the gravity of the threatened harm is great and the cost of adequate precautions is minimal. 4. In the case of personal injuries, if some physical harm is foreseeable, it is irrelevant that the full extent of the injuries is not foreseeable. 5. Foresight of the complete extent of harm is not required if the damage that ensues, though other and greater than expectable is of the same general sort which was anticipated and required precautions. 6. In the rare case, even if there is foreseeability of the harm that results, proximate causation may be found wanting on the ground that the injury is too tenuous and too remote to require the D to pay compensation. e. Result Within the Risk i. Another way to talk about PC is to say that the result must fall within the scope of risks that made the Ds conduct tortious. If not, there is no liability. ii. DiPonzio v. Riordan (The D operator was negligent in warning customers at his gas station to turn off car while pumping gas) 1. P was injured when car that was on rolled backward and hit P 2. There is a foreseeable risk that a car that is on will explode or burn but not that it will roll back and hit someone. 3. D not liable. 4. A difference in manner of occurrence is irrelevant only if the result was within the risks that made the Ds conduct negligent. f. Superseding Causation i. Distinguishing Intervening and Superseding Causes
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1. Intervening Causeforce which comes into play after tortious conduct has occurred and actively contributes to the production of the harm for which recovery is sought. a. Some, but not all, intervening causes are sufficient to prevent the antecedent tortious conduct from being PC of related injuries. i. In such case, the intervening cause is called a superseding cause, since it supersedes or cancels the antecedent actors liability ii. If either (a) the intervening force or (b) the harm which ultimately ensues is reasonably foreseeable, the actors liability for subsequent consequences of antecedent tortious conduct is not superseded. iii. End Results Within the Risk 1. Derdiarian v. Felix Contracting Corp. (P was injured when a car crashed into the site after its driver suffered an epileptic seizure) 2. Held not a superseding cause because jury could find that risk was foreseeable. iv. Exception to the Rule 1. Liability is superseded even if the intervening force is foreseeable, if the Ds conduct in no way increases the risk of harm by the intervening force. (Car wreck and lightning striking) v. Intervening Criminal or Intentionally Tortious Conduct 1. Spears v. Coffee (violent attack by one minor guest on another was unforeseeable therefore owners of home where attack occurred could not be held liable for alleged failure to protect injured guest from harm. a. Attackers intentional criminal act was found to be a superseding cause of the victims injuries. 2. Where criminal conduct is foreseeable it is not a superseding cause (rape at abandoned warehouse where other violent crimes had been committed liable for damages)
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vi. The Rescue Doctrine 1. Normal rescue efforts do not break the chain of PC between the tortfeasor who created the peril and the victim, even if negligence on the part of the rescuer aggravated the Ps injuries; and 2. An injured rescuers claim against the creator of the peril cannot usually be frustrated by claims of lack of PC. 3. Altamuro v. Milner Hotel, Inc. (decedents re-entry into a burning hotel did not constitute contributory negligence) 4. In order for the rescue doctrine to apply, there must be: a. Risk of imminent peril to the person or property of another b. An act of intervention in response to the peril by the purported rescuer c. If the tort action is against the creator of the peril, P must establish that the peril resulted from the creators tortious conduct, rather than from an unavoidable accident vii. Intervening Acts of the Victim 1. A tortfeasor may be liable for injuries sustained by another in an effort to escape threatened harm, and this is true even if the victim, as a result of fright, frenzy, or panic, adds to the danger by an act which in a later serene moment may seem to have been unwise. 2. Suicide a. If Ds negligence renders victim delirious and in that state he commits suicide, D may be liable b. However if the risk of suicide is unforeseeable to the D, most states will hold that the death was not proximately caused by the Ds negligence. viii. Shifting Responsibility 1. In extraordinary circumstances, and for varying reasons, a determination may be mad that all duty and responsibility for the prevention of the harm has passed to the third person 2. Factors for this determination include:
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a. The existence of a contract between the D and the third party indicating, expressly or by implication that the third party is to assume full responsibility. b. The degree of danger and the magnitude of the risk of harm c. The character and position of the third person d. The third persons knowledge of the danger e. The likelihood that the third person will or will not exercise proper care f. The third persons relationship to the P or the D

g. The lapse of time 3. Goar v. Village of Stephen (power company negligently installed electrical lines for a village) a. Relying on the fact that the contract expressly stated that the village had exclusive control of the property, that the eighteen months had passed, and that there had been a complete failure on the part of the village to perform its duties, court held that responsibility had shifted from company to village. 4. Bailey v. Lewis Farm, Inc. (negligent maintenance of tractor-trailers axle that later detached and struck Ps vehicle) a. Held that the sale did not shift responsibility to prevent harm solely to the buyer of the tractor-trailer b. The mere sale of a dangerous instrumentality to another ordinarily dos not, as matter of law, relieve the seller of liability for injuries caused to third persons after the sale. Q. LIMITED DUTY: FAILURE TO ACT a. No Duty to Act i. General Rulethere is no duty to render assistance to another who is in peril, no matter how easily aid might be furnished, and regardless of whether the failure to act is inadvertent or intentional ii. Mere knowledge of the accident gave rise to no affirmative duty of care
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iii. Johnson v. Minnesota (halfway house under no duty to inquire why parolee had not reported to facility and not liable for a murder committed by said parolee) b. Relationship to the Victim i. Family members, companions, and businesses 1. An important group of exceptions to the CL no duty to rescue rule includes situations where there is a special relationship between the D and the one in peril. a. i.e. spouse, children etc. 2. Rescue obligations are imposed on carriers, innkeepers and other businesses if a patron or employee becomes ill or injured or is under attack. a. De Vera v. Long Beach Public Trans. Co. (carriers duty to passengers extends to investigating an accident cause by a third-party tortfeasor so that passengers claims against the tortfeasor will be facilitated.) b. Wolfe v. MBNA America Bank (Bank issued a credit card bearing the Ps name to an unknown person who messed up real owners credit) i. Rejecting other precedent that had found that a business owed no duty to exercise reasonable care to protect a non-customer from identity theft, court held that the P stated a c/a for negligent failure to verify the authenticity and accuracy of a credit application before issuing a credit card 3. Possessors of Land a. A person who holds land open to others is under a duty to protect those who enter from unreasonable risks of physical harm and to render assistance if they become ill or disabled. b. Duty continues so long as the guest is on the premises within the scope of the invitation
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c. A landlord has a duty to protect tenants against foreseeable attacks by third persons in areas under the landlords control i. Kline v. 1500 Massachusetts Ave. Apt. Corp. (P criminally assaulted and robbed in hallway of apartment house) 1. Landlord not obligated to provide protection commonly afforded by police, but has duty to take precautions as are within landlords power and capacity. c. Relationship to Tortfeasor i. Exception to general rule also states that D and the tortfeasor stand in a special relationship ii. Duty of care is normally to control the tortfeasor or to warn the prospective P of the danger the third party poses. iii. Parents and Custodians of Dangerous Children 1. Parent may have duty to exercise reasonable care to control a child. 2. Information Providers a. A person who provides information about an individual to a third person under circumstances where it is foreseeable that the third person may use the information to harm the individual may have duty to exercise reasonable care in making the disclosure. b. Remsburg v. Docusearch, Inc. (man obtained womans workplace info from internet based info service provider and went to where she was and fatally shot her) i. Held that info provider has a duty to third party to exercise reasonable care in disclosing that info. d. Mental Health Care Professional i. Peck v. Counseling Service of Addison County (therapist was told by a patient that the intended to burn his fathers barn)

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1. According to the court, once a therapist determines, or reasonably should have determined, that a patient poses a serious risk of danger to another, the therapist must take whatever steps are reasonably necessary to protect the foreseeable victim from danger. 2. There was not statutory law during Peck. Would have been different if there had been. 3. Relationship between a clinical therapist and his or her patient is sufficient to create a duty to exercise reasonable care to protect a potential victim of anothers conduct. (Tarasoff 1976) 4. The therapist must exercise that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of that professional specialty under similar circumstances. e. Involvement in an Accident i. If a persons actions, whether tortious or innocent, have rendered another helpless or susceptible to harm, the person is under a duty to provide remedial assistance. ii. This is true even if contributory fault on the part of the injured person would preclude or reduce any recovery for the harm originally inflicted. iii. La Raia v. Superior Court (A tenant became ill after an employee of the D apartment complex sprayed her unit with an improper pesticide) 1. Court held that the Ds involvement in the accident gave rise to a duty to furnish correct information to medical personnel 2. Spoliation of Evidence 3. R2T 322must exercise duty if either tortious or innocent contact. iv. The rule is the same if the harm is caused not by some action on the part of the D, but by an instrumentality under the Ds control. f. Creating a Dangerous Situation i. One who innocently or tortiously creates a dangerous situation must exercise reasonable care to prevent harm from occurring. ii. Rocha v. Faltys (Student encourages other student who cant swim to jump from a cliff into a body of water and he drowned)
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1. Held that because the D student had not actively encouraged, urged, pressured, forced, or coerced the decedent into jumping from the cliff, he had not legal duty such that a cause of action for negligence could be maintained. g. Voluntary Assumption of Duty i. While there may be no duty to render aid to a person in distress, if one does so, one must use reasonable care to avoid conduct making the situation worse. ii. The person may be liable for the extent to which the second accident aggravates the original injuries. iii. Coffee v. McDonnell-Douglas Corp. (Company administered a blood test to a prospective test pilot, but negligently failed to read the test results and did not inform P of serious condition the test revealed) 1. Generally, employers do not have duty to make sure that employee is healthy. 2. The duty to administer and evaluate the blood examination was accepted or assumed when the company chose to give the P the test. (R2T 323). 3. Even when duty is assumed it is not absolute but merely to exercise reasonable care. a. Which they did not because the blood test was never seen by the doctor yet they still approved P for work. 4. The Co. could be held liable to the extent to which the Ps condition was aggravated by nondisclosure.

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