Intent = desire or knowledge w/ substantial certainty result will occur; want elements of tort, not just results; subjective

up to fact finder Mistake, Infancy, or Insanity are not defenses only in so far as lack capability for intent Mistake Doctrine SPLIT Some jxs not privelge to say made mistake of person/prop RS trespass allowed for mistake o Policy: Strict liability on d for who interferes with anothers person/prop; deterrent Transferred Intent Intent to commit one =intent to commit another: (1) battery, (2) assault, (3) false imprisonment, (4) trespass to land, (5) trespass to chattel.; between people, torts, and torts and people SPLIT RI not adopt except for battery/assault; c/l - all Battery = D intentionally causes: (1) Harmful, OR offensive (2) contact with person or extension (doesn't matter if asleep; if D special knowledge that P considers what is normal touching to be offensive then is battery) a. Policy personal dignity of ordinary guy (societal standard/ not actually need to get hurt) Assault = D intentionally causes: (1) subjective apprehension of (SPLIT Maj-reasonable apprehension; RS Not reasonable) (2) imminent threat of (NOW, not future) (has to be conscious) (3) Harmful OR offensive (offensive by society standards, not economic threat) (3) Contact with person or extension a. SPLIT c/l Mere words not enough, must be followed by overt act RS Verbal statements okay Third Party not actionable b/c not recover for threat to someone else Policy- wrong to affront victim, comp for pure psycho harm when intentional False Imprisonment = D intentionally and unlawfully: (1) confines OR restraints plaintiff, (2) in a bounded area (not go in any direction), and (3) plaintiff is aware of confinement (split : c/l conscious; RS liable also if not conscious, but harm) Means of Confinement: physical barriers, force, threat of immediate force (can be against family, companions, or property but not economic), omission where duty to act, false arrest (arrest w/o legal auth and submit to arrest) No reasonable exit (Blocking preferred path FP) Coercion must be immediate & physical econ/firing/threat of disclosure doesnt work; does work if against family Policy: Deprivation of liberty, no felxibilty impinge on freedom * Distinction from False Imprisonment to Malicious Prosecution = Malicious is lawful procedures Malicious Prosecution = D wrongfully sues P, after termination of suit (1) institution of a crim/civil proceeding against the victim (2) termination favorable to victim (based on merits) (3) absence of probable cause (4) improper purpose (5) damages [this is not based on motions but rather whole process]

 Judges/prosecutors immune Abuse of Process = D uses legal process for purpose not designed. [misuse of legal process for ulterior purpose, filed any time] (Subpoenas, attachments, legal processes within litigation) same as above but: termination/ lack of probable cause not required; no malice, just misuse Intentional Infliction of Emotional Distress = Defendant engages in: (1) Outrageous AND extreme conduct that (objective test) (2) Intentionally OR recklessly (unjustified risk of distress will occur/disregard/high degree of prob) (3) Causes plaintiff extreme mental distress [some j want parasitic] (4) Plaintiff actually suffers extreme mental distress (more than anger; need mental proof) Spilt: Maj/RS- no physical manifestation; Min physical manifestation Outrageous/Extreme = intolerable in civ soc; look at conduct, period of time, relation, Ds knowledge of susceptibility 3rd Party recovery (SPLIT): Maj in addition to elements, 1. Immediate/close family of primary IIED victim, 2. Present at scene of outrageous, and D knows close relative present. RS- Intentional or reckless to immediate family who is present whether or not physical manifestation OR to any person who has bodily harm d hurt p, need: intent to iied, family member present, d knows relative is there Sexual Harassment Public Figure req NY Times Malice = knowledge or reckless disregard toward truth or falsity of the statement; c/l malice = ill will, hatred, reckless disregard of rights Policy Constitutional free speech higher value than IIED to public figures Private does not require NYT malice, prove everything else; IIED when outweigh public interest Malice intent to cause harm, intention to commit wrongful act Exception to outrageous conduct: Common Carrier/Inn Keeper/Public Utilities: only req gross insult to patron, not full IIED Not available for employees, if receive workers comp Intentional Interference w/ Contract or Econ Expectancy (1) Valid contract or economic expectancy b/t P and 3rd party. Existing contract, not future/prospective/hopeful (2) D has knowledge of the legit contract or economic expectancy (can also be inference), (3) D intends to interfere ( **SPLIT** Intent v purpose only Ca req purp) (4) D causes interference (w/o privileges/justifications) (5) P suffers damages. Recovery: Economic, mental distress, punitive if malice Burdens of proof: SPLIT : C/L D prove defenses; Modern P prove no defenses; RS no side Justifications for interference (for K or EE) Stating truthful info or if asked, honest advice Protecting anothers welfare if responsible for it Contract illegal or against pub policy Good faith assertion of bonafide interest Catch All conduct, motive, others interest, social context, remoteness, relationship.

 Privileges/Defenses for Econ Expectancy only Fair competition b/t competitors (Lowell not so since have no economic interest yet) Ethical action protecting own financial interest in business by NO wrongful means Factors to decide not improper interference: Actor motive, protecting social freedom: k or free speech, remoteness of the actors conduct to the interference, relations between parties Boycotts Environmental not like editorial policies, told ppl to boycott business advertised in paper protected since no economic gain and politically protected by first amendment Sports Results Maj: Allows Min(Ca): disallow Elections Maj: Need proof of EE Min: Even if no EE Wrongful Termination of Employment Contracts = D discharges an employee Which contradicts public policy; Ca say find it in (1) Listed in constitution/statutes, affect public, well established at time of discharge, substantial Types failing to report criminal activity, refusing to commit perjury, filing worker comp, join union, disclose illegality to authorities, serve on jury Recovery: Consequential economic loss, mental distress, punitive damages (4) Split proof burden on P in CA, most other states on D Breach of the Covenant of Good Faith & Fair Dealing = D breaches Implied covenant of good faith which constitutes breach in contract and lead to liability. Elements: 1. Special relationship 2. Unequal bargaining power 3. Fiduciary (exercise high standard of duty in managing anothers property/$. Requires BAD FAITH; insurance wrongfully denies claim; fail to investigate claim Policy: Ensure fair competition in terms of K, incentive for performance, protect weak, deter wrong Recovery: Punitive damages for ecn loss, mental distress when malice proven Intentional Misrepresentation = D makes a false (1) Material representation of present/past fact *SPLIT*: Objective std RP attach importance; Subj. Std Maker knows likely seen as important (2) D knew was false or reckless disregard to the truth (intentionally not learning truth scienter) (3) Intent to induce reliance by victim (intended victim, one who D had reason to expect misrep be relayed to and then they would rely for same transaction (broad; Limit 3rd party; not unforeseen) (4) Causation Victim relies (if victim not deceived then no tort), need close proximity to injury (5) Justifiable reliance by P upon misrepresentation (SPLIT Subjective v Objective) (6) Economic Damage suffered: only liable for damages reasonably foreseeable from deceit Recovery: SPLIT: Maj Pecuniary benefit of the bargain, as if rep true, consequential, punitive; Min Out of pocket costs, consequential, punitive Material Fact what RP would use to make decision o Affirmative = misrepresentation o Fraudulent = concealment o *SPLIT*: Maj: past/present fact, not future Min: present intent (CA) 3 Opinion counts fiduciary, expert to non expert,

 Failure to Disclose not element unless a duty to disclose (fiduciary & recognized unintentional mistake; when misleads, duty to correct, custom to trade, know other making mistake, RP disclose) Defenses to Intentional Torts 1) Self-Defense = reasonable force in response to sincere belief of immediate threat or fear of harm; only to extent harm/threat still continuing Deadly force/serious bodily injured justified against same force Exception: Retreat from deadly force SPLIT: Maj: no requirement of retreat; Min/RS: requires retreat if deadly force is needed as self defense, not required to retreat from dwelling, unless assailant also lives there 2) Defense of Others = reasonable force in response to an immediate threat to third person. a. *SPLIT*: Limited Privlee: only if 3rd party has that same right of self-defense. RS: reasonable force if you reasonably believe 3rd party entitled; mistakes ok, gross not ok (good Samaritan) b. Citizens Arrest = reasonable force & reasonable belief of arresting right person 3) Defense of Property = non-deadly force (no SBI/deadly) allowable (mistake that person has no right to prop no excuse) o Possibly sue if necessity situation and they dont allow you to access their property Defense of Habitation SPLIT: C/L/Modern: no deadly force unless intruder threatens occupants safety by committing or intending to commit a dangerous felony on the property. RS: Okay deadly force when needed to prevent breaking and entry into dwelling Recovery of Personal Property: may use reasonable force to recover when in hot pursuit Privilege to Arrest = reasonable force to arrest on belief of theft Private Citizen felony occurred + rzblbelief he did it, or misdemeanor if; Police Rzbl belief he did felony (no felony req) (4) Private Necessity = can interfere to save property of greater value, but must compensate for loss (partial defense) Have to make sure yours is worth more Landowner can't say no or else sue them for?? (5) Public Necessity = interfere with property to prevent injury/death for public good, no compensation required (Complete defense) (6) Consent = if consent, act is privileged and not tort Express, implied in fact (silence, custom), implied in law (emergency) Exceptions: Incapacity, action beyond scope, fraud (fail to inform risks), duress, illegality o *SPLIT*: Maj/Cl cannot consent to a criminal act; Min/RS: Consent shield from liability unless criminal law violated meant to protect members of the victims class

NEGLIGENCE
Essence of negligence is that harm has to be foreseeable and the D has to behave in a unreasonable manner. Negligent act involves an unreasonable risk of harm. BURDEN: P must prove by preponderance all the elements
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DUTY (legally recognized relationship between parties) To whom D owes obligation to conform to a minimum std of care Foreseeability *SPLIT* o Maj: foreseeable victim Zone of Danger Cardozo o Min: Everyone in the World to refrain from unreasonable threats Andrews o Palsgraf foreseeable zone as to whom is owed a duty LIMTS ON DUTY: Limits on duty to act reasonably LIMIT ON DUTY OWED No duty to Rescue/Help Aid o Do not help strangers even if help with little effort o Policy: Individualism, deter people not force to do good, liability of # ppl not act o Exceptions: Special relationships (common carriers/possessor of land/required by law/custody/business/employer/employee/teacher student) D or instrument under their control created the peril Not matter if innocent; responsible for harm has responsibility to assist/avoid further. Liable for not correcting/warning of danger even created by victim conduct o D voluntarily acts and puts victim in worse position *SPLIT*: Trad- when choose to give aid, duty not to put in worse condition by harming them, preventing other aid from another source, induce victims reliance and forgo other help Most jxs Good Samaritan exempted from liability resucers not acting in their employment Sub jxs: Only for professional rescurers Failure to Control Actions (generally no duty) o No general duty to control actions and behavior of others; no duty to prevent a third person from injuring another o Exceptions: Parental liability: C/L not automatically liable for children torts, but can be if negligent of supervision of child, or failed to prevent same type of harm that was previously demonstrated. Special relationship: relationship between D and third party, knowledge of need of control, D can control the third person for protection (psychiatrists in Ca) Psychologists to victims (not property) Tarasoff extended special relationship to duty to warn third party SPLIT: duty to warn only readily identifiable victims, in others, all foreseeable victims must be warned Policy: Confidentiality respected, but yield when known danger to others
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 Failure to Protect: (generally no duty) o No general duty to protect another from harm o Exceptions: Special relationships: if defendant is obligated to take affirmative steps to protect plaintiff (Parent-child, teacher-student, landowner, business) Reliance: where one undertakes to protect, and relies on protection o Police Duty: No duty to protect plaintiff unless follow exceptions D undertook act and created reliance, enlisted the aid of P, increased risk of P Fall under special relationship if puts in danger or offers specific promise Supervising Officers: Fail to intervene, then duty o Public Duty : Gov official performing in aspect is okay LIMIT DUTY BY KIND OF HARM NIED Cannot recover usually for pure mental distress SPLITS o Physical Impact Rule(min): If physical harm by negligent act, recover emotional harm parasitic to injury o Zone of Danger(maj/NY): recover limited to P who was in the zone of physical risk of impact/feared for life *SPLIT*: Maj Require physical manifestation of stress; Min No manifestation o Dillion Rule(substantial minority): Expand liability to include those not in zone of physical risk Near scene of accident Shock from direct emotional impact upon P from contemporaneous sensory perception *SPLIT*: Maj Direct sensory perception; Min(Mass) direct perception of accident of aftermath Closely Related to victim of tort Spilt: Maj Close blood relatives(spouse, kids, parents, no cohabitants); MinCohabitants okay *SPLIT*: Maj - Physical manifestations of stress; Min- No manifestations o Thing v. La Chusa(Ca)- narrowed Dillon guidelines to the following in CA: plaintiff must be closely related to the victim must be present at the scene of the event at the time it occurs and is aware that it is causing injury to the victim and as a result suffers serious emotional distress. o Foreseeability approach(some jxs): liable for any foreseeable emotion distress from action Case where man recovers for NIED for flooding of new home o Direct(Ca) D direct conduct toward P, and special relationship exists between the two Husband recovers when told by doctor that his wife had syphilis o Restatement approach: requires the plaintiff be in the zone of danger, and suffer bodily harm or other compensable damage (immediate family) o Fear of Future Harm to recover, P must prove that Ds negligent breach of a duty owed, exposed P to toxic substance, which threatens cancer, and Ps fear stems from a knowledge, medical opinion, of increased risk of 50% or more. Potter no recovery for toxic exposure, future harm of cancer, only if NIED over 50% 6 o Exceptions (need no physical manifestation/zone of danger):

Negligent handling of a corpse, negligent handling of sentimental prop, and inform negligently of death

NOTE: BRING PERSONAL INJURY, WRONGFUL DEATH, BYSTANDER, SURVIVAL, LOSS C Wrongful Death (Note usually also find NIED) o Lost suffered due to tortuously inflicted death of relative; if contributory negligent harder to bring suit o Who bring it: *SPLIT*: Maj Spouse/Kids; Min/Ca: Stepkids, gpas, cohabitants o Recoverable Damages *SPLIT* Maj: only pecuniary loss Monetary loss that P would gave received from deceased (blood relative) Pecuniary look at life expectancy, income potential, generosity, value of services Kids add possible later benefits and subtract causes of raising Min/Ca: pec + loss of companionship for blood relatives Ca punitive damages if die in felon; more subjective Extreme Min/FL: Recovery pecuniary, companionship, and pain and suffering Punitive damages for all wrongful deaths Survival Actions Continuation of decdents action, pre death claims o Tortious conduct need not cause victims death; just contributes o Who bring it: Heirs o When defendants tortuous conduct leads to instantaneous death no survival action, if there is time in between then okay to bring. o Recovery: *SPLIT*: o Maj Prop damages, personal (econ, p/s), medical costs, loss wages, funeral, NO PUNITIVE, NO INTANGIBLE DAMAGES (defamation, mal. Pros) i o Min Intangible allows (small #) as well CA: Personal injury, loss wages, medical, prop, no p/s only economic, PUNITVE DAMAGES only if claim personal injury/property and WD Loss of Consortium loss of companionship, comfort, sex o Must prove loss and Ds conduct must be tortious o No amount of time is too short to recover o *SPLIT* Maj: legal spouses only; Min: kids also o Recovery: Economic, intangible companionship, services, sex Wrongful Life/Birth/Conception o Life childs claim for own birth *SPLIT*: Maj: Not allowed; Min: yes Recovery: Any extra costs for being born with disability parents not recover Policy: Cant go back as if no tort b/c then not alive o Conception parent claim for unwanted healthy child; Recovery: SPLIT: Maj: cost directly associated with pregnancy and birth/cost and pain associated with pregnancy and birth, mothers lost wages, fathers loss of Consortium. Min: Cost of raising child if for financial reasons avoided pregnancy, weighs in benefit 7

rule; Benefit rule where offset costs w/ benefit of child o Birth parent claim for unwanted unhealthy child must show but for defendants negligence they would had terminated. Recovery: *SPLIT* Maj: extraordinary expenses with birth defect; Min: some courts allow emotional distress. Landowners & Occupiers o *SPLIT*: Maj: 3 visitor categories Min: RP, unless trespass commit felony (CA) o Condition warn depending on status, activity rzbl std o Trespassers visitors w/o privilege Unanticipated: no liability for accident; Duty: *SPLIT*: Trad No willful or intentional injury; Modern make known or warn of knoewn concealed artificial conditions which involve risk of SBI/Death no willful injury; no duty to inspect or repair hazards; requires warning about traps Exceptions Frequent/known: if aware of presence and knows they are approaching non-evident artificial conditions; obligated to warn if serious bodily harm or death. One who knows required to use reasonable care for protection in carrying on activities. Child Trespassers: *SPLIT*: o Maj/RS- Child trespasser owed duty of ordinary care if: Place where condition exists is where possessor knows kids hang, Involves unreasonable risk of death/serious bodily injury B/c of age would limit ability to recognize/realize risk Requires landowners when burden of eliminating condition is slight compared to harm/likehood to fix it Does not apply to natural, nor when child should appreciate at this age o Min Attractive nuisance doctrine Artificial hazard attracts kids o Licensees express or implied consent, privileged, social guests; Duty: *SPLIT*: Trad Only avoid willful/wanton harm; Modern: Act like reasonable person when engaging in active operations, give reasonable victims, warning of all know concealed conditions (artificial and natural) posing and unreasonable risk; inspection/repairs not required; no duty to warn of obvious dangers o Invitees business guests/open to public; even home if business conducted there o Duty No limit to act reasonably to protect invitee (std is reasonable care); Act reasonably when engaging in activities, act reasonably to ensure land is safe, not just warn but fix and discover hazards where mere warning would be inadequate; act like reasonable person o CA(Min) Rowland combined all three, so owe a generalized reasonable person standard o Ca Statute that limits duty in committing felony: in case of burglary/crime jury can still find unrzbl Landowners to Ps Off Land *SPLIT*: o Maj: Liable for artificial conditions only
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o Min: urban trees; rural & urban trees; all natural o Natural conditions: land was not changes by any acts of humans including any predecessors Limit type of ECONOMIC Harm Negligently Inflicted Econ Loss o In case where it is pure loss, that is no personal/prop damage, just econ o Kinsman II: Econ damages for diverting crashed ships not foreseeable o Pure loss: business losing profits, workers losing jobs, delayed drivers o *SPLIT*: Maj: Generally no recovery; Min: Based on foreseeability (CA) o Elements for interference with prospective economic advantage Risk must be foreseeable Closely connected with defendants conduct Damages not wholly speculative Injury is not part of business risk Negligent Misrepresentation/Information Suppliers o Elements Course of business D supplies false info to others as a guide to business transactions, They justifiably rely on falsity (subjective, can be fool and rely) Damages result due to reliance o To whom owe duty: *SPLIT*: o Privity - close relationship/agreement (most strict) D must have been aware that report was to be used for a particular purpose, know that they would rely on it o Foreseeability foreseeable reliance; (loose standard) o Intent(Maj/RS): intends to benefit person or know recipient intends to share it to limited group in same transaction it was created for Narrowly defines a class of ppl for whom representations were made o IF third party and not directed toward you, cannot recover STANDARD OF CONDUCT Level of conduct demanded of a person so as to avoid liability for negligence Reasonable Person Standard reasonably prudent in same sit; consider physical limits (blind, deaf) but not psychological (clumsy) o Exceptions: Emergency Doctrine RP in emergency; unavailable when def. tortuous conduct contributed to creation of the emergency Mental Conditions *SPLIT*: Maj Unless D is a childIrrelevant; policy: someone has to bear harm; hard to measure Min(Wisconsin) Sudden insanity absolves harm when 1. Illness affects persons ability to understand responable duty of care 2. Sufficiently unforeseen 9 able and cannot be avoided 3. No prior knowledge

o o o o o

Some jxs: Use a dual stanards Modern trend: evaluate contributory negligence/comparative negligence in light of Ds mental capacity Hand Formula reasonable person will address prevention of risk if it is less burdensome than likelihood of harm times its severity Custom Reasonable behavior determined by whether it conforms to societys standards Takes into account communitys understanding of where burden and risk lie Still up to jury to see if reasonable Posner Economic what is most beneficial Foreseeable Danger- liable for anything possible that is foreseeable Strict liability: cause accident must pay for it

Child Standard of Conduct (Under 18) o Reasonable child of like age, intelligence, experience; take into account subjective o Exceptions: *SPLIT* Maj- Use child standard except if child is engaging in an actitivity normal engaged by adults and adult activity that requires adult skill to perform Min Child not apply if activity engaged in is inherently dangerous; still use child in guns; adult in driving o Usually below 7 not negligent, and presumptive standard for 7-14 o Golfer is adult, based on qualifications should have know better Professional Standard o Exercise skill/knowledge possessed by members of the prof. (Dr, law, architect. Maybe acct, engineer) o Custom is binding to set std of care (expert testimony) General drs local community or similar comm SPLIT* local community vs similar community vs national standard Specialists @ national std o Need expert in same field or else no range of what is considered reasonable; not what expert thinks but community think o Takes away jurys power to decide what is a standard of duty but instead evaluates based on the range presented by expert testimony o Consent failure to inform is negligence; req material misrep/non inform, failure to inform caused injury *SPLIT* Battery if misrep procedure; really bad Maj: Physician Rule med custom to inform Elements o Expert must determine standard of duty owed according to community o Determine doctors failure to inform of risk/negligent procedure was a breach of that standard compared to doctors in good standing o And damages are result of that breach Min: Patient Rule jury decides reasonable dr; need to prove no consent if knew Elements o Jury will determine what the reasonable standard should be for disclosure 10 of risk, if the particular nondisclosure was of a material risks

 Material defined as gavity and probability of harm o Had there been proper disclosure P would have rejected risk *SPLIT*: Maj Objective patient; Min Subjective o Consequences did occur o Exceptions: Emergency, patient incapable, patient waives right, minimal risks, patient cant evaluate risks, therapeutic privilege, Dr. wouldnt know of risk too technical Cobbs v. Grant simple surgery led to several more and internal bleeding o Extension (Minority CA): Expands informed consent to obligation to disclose risk of forgoing medical procedure. Rules of Law judge sets rule for pre-set std of conduct; takes away from jury; Policy: Sets a standard to be followed Negligence per se jury uses legislative statute def of std of care not RP; Policy: Allows consistent standards o Elements Show statute was violated Cause in fact, proximate, damages and P has to be in the class of persons & type of harm statute protects o Ex: Sue bar owner for not kicking out drunkies and then getting in fight o Unattended vehicles: *SPLIT* o Licensing statutes: Not Negligence per se, have to prove negligence first o Exceptions: Excuses *SPLIT* Maj- allow excuses for violation if compliance with the statute would be more dangerous than non compliance or impossible (emergency, greater danger than if violate, did not know of diligence, some sort of incapacity, try to comply but cant) Min Statute just a presumptive standard have to overcome Sub Min: No excuse at all

BREACH OF STANDARD OF CONDUCT Failure to act as a reasonable person would; generally determined by jury/ customs) Risk Calculus: o Learned Hand = B < PL (Risk v Utility) P probability of injury, L economic loss Role of Custom: Deviation from defined and consistent way of performing a certain activity Res Ipsa Loquitur the thing speaks for itself o Elements: In order to prove to jury negligence through Res Ipsa Loquitur, P must prove Accident is not of such nature that it does not usually occur in absence of negligence Instrumentality was in exclusive control of D *SPLIT* Traditional: Exclusive control Relaxed Traditional: Evidence shows that others were probably not the

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responsible party and the defendant probably was (nexus) P was not at fault o Multiple Defendants not all negligent, only one *SPLIT* o Minority: Ybarra exception to rule with multiple D having exclusive control over instrumentality, Requires that you designate the allegedly culpable party; to prove not negligent, must come forward and disprove Multiple D, code of silence, lots of different levels of control over the body, limited to medical Superminority: Martinides + Car two in car and got in accident, no way to prove who was driving o Strict liability eliminates this factor but still have to prove everything else CAUSE IN FACT But For Test(Maj) o But for Ds neg, injury would not have occurred (P has burden of proving and threshold is more likely than not) o Can have multiple for situations like car accidents classify as intervening since occur after, but unless superceding both still liable If one of them did not happen, then no injury o If selecting a single but for cause will immunize one d if multiple ds, then use substantial factor test as supplemental evaluation of cause in fact Substantial Factor Test o If multiple redundant factors, even if one did not occur, then damage still would have resulted o Used to supplement but for when the two negligent actions caused the same tort All liable; Ds joint and several liability. Simply requires that defendant materially contributed Substantial: D action was material cause of injury; increase chances, then cause o Redundant = either would have caused harm on own o Fire case both would have destroyed, held jointly liable o Restatement uses wording of substantial factor in context of but for when only one cause, then goes to substantial factor for two causes o Think Anderson: House destroyed from fire due to natural cause, and sparks of train o Think Northingston: Prison guards rumors were not but for, but substantial factor since others already spreading rumors Burden Shifting o P must prove all Ds breach duty of care, shift burden to Ds to disprove liability o Elements: Small number of D acted tortuously toward innocent (all breached) Example two cars crashing where both negligent P cannot show which was the but for cause (no sure which one did it) Performed similar torts, cannot distinguish resuting harm If not for one of those causes, no damage, but they all were negligent o Some courts require all held jointly

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o Policy: Avoid occurrence of no recovery when someone was guilty Summers v Tice both acted negligently in shooting in direction of P, so burden shifted to both. liable for all damage When Shifting Invoked: o Concerted Action: two or more encouraging each other, both liable o Industry Wide Liability Whole industry should be liable due to industry wide standard that has been breached 6 blasting cap companies o Market Share Liability(Min) Allows recovery when producers all negligently produced a product that caused the harm; question is who? Ordinary causation/pleading rules would not allow bc identify of supplier unknown; must have large part of the market share Hold responsible for market share. *SPLIT* Some jx: National market; Some jx: Local Market Most states reject, only used in DES litigation Excuses: *SPLIT* Ca: Allowed to prove not one liable NY: Not allowed to prove not one liable, still breached, caused someone harm in this class Each D pays the damage of its culpable conduct has inflicted proportional to its share of the market Sindell manufacturers found jointly liable Did not hold all sellers liable under Summers bc sellers not concert in action/jointly liable [therefore Ds in suit dont have to pay for all damages, just market share] o Med Malpractice Rule *SPLIT* Maj: negliegence is but for cause of Ps injury (no recovery if <50% chance) Emergency situation Recovery: Not unless cross threshold of 50% ; more likely than not caused death Relaxed But For (Reduction of Chance of Survival): jury determines whether malpractice was a substantial factor causing death (Herskovits - % case, when chance was under 50%, went from 39% to 25%) even if malpractice was but for cause of patients death (looks at this is a substantial factor causing death) (courts can give full wrongful death damages or limit) (Damage is based off death here) Modern Trend (Lost opportunity to Survive): Compensates P for lost chance of recovery Recovery limited to the % loss of survival even though likely to die. % is appropriate compensation Compensate for damage of loss of opportunity, not based on your death Problems in Proof o Toxic Causation Elements Prove P was actually exposed to substance

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That D is responsible for that contact with substance Toxic substance caused harm Policy: Difficult since long time for the damage to actually arise, never know if there was a superceding but for cause Recovery: Due to difficult cause in fact, increased risk cannot be recovered, medical monitoring can be recovered (Ayers towns water infected by waste and ppl tried to recover for increased risk); Note, can recover NIED if can prove that was D that exposed you to the toxic waste and as a result you chance of survival (based off medical experts) decreased by below 50% (more likely than not) no comp for enhanced risk, med monitor ok! (Ayers) Problems with longevity of case, intervening factors, latency makes the toxic exposure less of a direct cause

PROXIMATE CAUSE (Reasonable Consequences defendant should have anticipated)

Limits type of harm to D can be liable for; LEGAL CAUSE

Direct test(Traditional) o If direct cause of harm, no type of harm is not foreseeable; In Re Polemis drop plank into ship and cause massive explosion drop of plank started it all o Replaced by foreseeability. if direct cause, responsible for all resulting harm (just has to prove no superceding intervening forces) o Minority: Duty to the world to act responsibly b/c any negligent act is a wrong to public at large Policy: Only foreseeable in hindsight Foreseeable Consequence Test Foreseeability(Majority) o Consequences that were suffered by P were foreseeable, and there is already a duty. Type of harm must be foreseeable, not extent/manner of injury No longer care bout those outside zone of danger, harm not foreseeable to them Wagon Mound I Spill oil on water and cotton filling cause it to ignite and burn wharf not foreseeable since not know catch on fire; liability depends on reasonable foreseeability of consequent damages Bigbee foreseeability not to be measured by what is more probable than not, includes whatever is likely enough that a rzbl person would take account of o Exceptions: Indirect Causes Happen after Ds tort and joins into injury Intervening forces do not get rid of proximate cause; only way to cut off legal cause is if it is so bizarre that superceding o foreseeable intervening cause does not cut off liability o Unforeseeable intervening may cut off if too remote like chain reactions, usually car thefts unforeseeable (*SPLIT*) Superceding intervening: highly improbable o Criminal acts o Forces of nature still allow recovery since want to hold someone 14

DAMAGES

responsible o Forces: Dependent out of Ds conduct, Independent Not associated w/ D All that matters is if force is UNEXPECTED Egg Shell P Personal Injuries D responsible for Ps injuries even if P fragile so cause any injury, liable for all results; not need to be only cause, but the but for triggering event *SPLIT*: Some jxs: No psychological Some jxs: Yes pscycho Damages takes life expectancy and health into account. Strict liability Mere economic harm no allowed cause even if foreseeable not okay Medical malpractice these technically are foreseeable in that you exposed to risk of harm and then taken to hospital (too much time pass and recover, not liable) Rescuers Foreseeable since in the zone of danger

DEFENSES (NOT AVAILABLE FOR INTENTIONAL TORTS) Contributory Neg if P at fault for creating situation then no liability for D; completely bars recovery o Work through DSBCPD for the plaintiff Plaintiff had duty to himself, std was reasonable person, breached that, cause in fact substantial factor, proximate, damages o Last Clear Chance: if D negligence happened after P, then instruction to ignore P contributory negligence; last chance to avoid harm, you 100% responsible Comparative Neg Assign liability based on proportion of fault; partial defense o *SPLIT*: Maj: Modified *SPLIT* 50% or greater approach: P barred if equal to or more negligent than D; 50% liable, not recovery Greater than 50% - recover if 50% negligible or less Amount reduced by assumption of risk if jurisdiction which combines them Min(CA): Pure exact % of how much harm done; 99% liable, recover 1% Assumption of Risk (complete defense) o Elements (1) Knows particular risk (2) voluntarily (3) assumes it (the particular risk) Express assumption Ps waiver releases Ds liability; complete defense unless violates public policy Implied assumption Ps conduct in relation to risk may remove some liability; partial defense o Know of risk: one where average person clearly appreciate (going in ride 15

called flopper and being tossed) o Voluntarily assumed: voluntary face risk Exception: No other alternative o Girl uses outhouse from landlord, not assume risk b/c not other choice o How affects Ds liability: *SPLIT* Maj(CA) Comparative fault, partial defense, merges into comparative negligence; PARTIAL RECOVERY Min (OH) Reasonable AoR no recovery Unreasonable AoR recovery Min (RI)- Implied AoR completely bars recovery o assumption of risk and comparative negligence- 3 approaches assumption of risk remains a complete defense to negligence. assumption of risk should be divided into reasonable and unreasonable assumptions of risk. Unreasonable is absorbed into comparative negligence as a partial defense. Reasonable does not overlap with contributory, and so is a complete defense- if you assume a reasonable risk, you are completely barred from recovery. o Majority Trend: allows both unreasonable and reasonable assumption of risk to be absorbed into comparative negligence. For unreasonable assumption, there would be an appropriate reduction of recovery Strict Liability o regardless of Ds standard of care, D still held liable for any resulting damage based on the ultra-hazardous quality of the activities undertaken; abnormally dangerous status. The liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous. Wild animals Requires this. Unnatural danger that is virtually impossible to be reduced even by Ds utmost amount of care Takes away evidence of breach it clearly happened Also replaces proximate cause Still have to prove limited duty Defense to Strict Liability: Comparative: modern trend to allow some Assumption of Risk: Yes

JOINT AND SEVERAL LIABILITY

tortfeasors are traditionally jointly and severally liable under common law for the damages they wrongfully inflict on . All liable s are each fully responsible for the entire injury. Three theories to find that multiple tortfeasors are joint tortfeasors: o acting in concert: if one person gives aid or encouragement to another to commit a tort. does not have to be a but for cause of tort, just some sort of aid that was a factor ex. passenger A in Bs car encourages him to speed; A is acting in concert with Bs negligent driving. If accident results, both are fully liable

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o Independent torts causing indivisible injury: separate torts are committed which combined to produce a single, indivisible injury to . ex. if A drives negligently, B drives negligently, and they both crash into C simulatneously. Both are fully liable for injury to C. o vicarious liability: a person responsible for or in charge of someone who commits a tort may be held liable, even if they neither acted nor intended the action Respondent Superior, or let the employee answer. Most common form of vicarious liability, holds employers liable for actions of employees within the scope of their employment. But employers not generally liable for torts of independent contractors they hire unless situations are inherently dangerous or if activities are closely supervised. partners and those in joint enterprises are vicariously liable some states impose limited liability on parents when children intentionally harm others or their property. Allocation of Responsibility: each individual is fully liable to for 100% of damage award, although cannot collect 100% from each . can only collect damage award once. o Pro-Rata (traditional approach) each pays a pro-rata share of damages based on the number of tortfeasors (ex. 2 tortfeasors = 50/50, 3 tort-feasors = 1/3 each) o Comparative responsibility (modern approach) Liability is divided by the proportion of responsibility each tortfeasor owes to (ex. A is 60% liable, and B is 30% liable and C is 10% liable; so if total damage is $100, then A pays $60, B pays $30 and C pays $10) problem with it is that if a tortfeasor who is 60% liable cannot pay, the other s must make up his share (so in example above, B and C would have to make up As $60 Courts also allow tortfeasors to pay the missing share in proportion to their own liability. in the case above, B would pay 3/4 and C would pay 1/4 of As share. California Approach: Joint and several liability only exists for economic damages, including medical expenses, lost income, and damaged property. For pain and suffering, loss of consortium, and other intangible damages, the Ds are only liable for their percentage share (i.e., if one tortfeasor cannot pay, the other(s) are not responsible for his/her share). o P is not compensable for a Ds share of the intangible loss, if he is unable or unavailable to pay it. Policy Pro/Cons: o Affords the P a greater likelihood of full recovery and leaves it to the culpable Ds to worry about their individual shares of liability o Often results in a deep pocket D paying large amounts that are far out of proportion to their level of culpability American Motorcycle Association v. Superior Ct: was a teenaged boy who entered a cross-country motorcycle race sponsored by and was injured (lost his legs and the use of sexual functions sues organizers for pain and suffering and loss of enjoyment of life, medical expenses, etc), arguing failure to give reasonable instructions, didnt check to see who was competent o ct held that parents had a better idea if was competent so s could bring in the parents as joint s to divide up negligence percentage-wise

TRADITIONAL STRICT LIABILITY

based on the type of activity engaged in by , which (depending on jurisdiction) must be characterized as abnormally dangerous or ultrahazardous o must still establish that owed a duty and that activity was actual and proximate cause of harm assigns liability where there was no fault (person could have been using the optimal level of care) 17 o if the risk could have been eliminated due to someones carelessness, then regular negligence

standard would apply instead Abnormally Dangerous or Ultrahazardous Tests (RS 2d 520): o activity must involve a serious risk of harm o likelihood that resulting harm will be great o inability to eliminate the risk no matter how much care is taken o it must not be a commonly engaged-in activity by persons of the community o activity must be inappropriate to the place where it is carried out o extent to which its value to the community is outweighed by its dangerous attributes Siegler v. Kuhlman: driver killed when car was hit by a trailer of gas that came loose from a hitch. Court said that hitching of trailer posed a great risk of harm and was ultrahazardous (used test above) Indiana Harbor Belt RR Co. v. American Cyanamid Co.: manufactured acyrlonitrile, a chemical, and had it transported by train through s RR. The chemical leaked and was forced to pay almost a million dollars for decontamination measures by the state o Posner says that in strict liability someone is doing something reasonable but something still goes wrong; here there was optimal use of the RR, so no strict liability Animals: RS separates animals into two classes: o Domesticated: owner is strictly liable only if he knew or should have know of a dangerous propensity in the particular animal; otherwise only subject to regular neg. standard of liability. o Wild: always strictly liable for any harm that results from a dangerous propensity, even if possessor has exercised the utmost care (b/c magnitude of the risk outweighs social utility) Who may recover? o Forseeable s, or persons to whom a reasonable person would have foreseen a risk of harm under the circumstances o limited to normally dangerous propensity. Damage must be the type of harm that causes the activity to be ultrahazardous or abnormally dangerous Foster v. Preston Mill Co: sued (mill co.) claiming that blasting at s site frightened his pet mink and forced her to eat her kittens. Risk of harm claims does not make blasting ultrahazardous (maybe flying debris, but not kittens eaten by mother), so court found that could not recover for damages. Defenses o Contributory negligence not a defense to tsl o comparative negligence is a partial defense in states that use comparative negligence. o assumption of the risk yes. If knows of the danger and his unreasonable conduct is the cause of the activity, tsl is a defense.

DEFAMATION
defamatory statement: one that harms reputation by injuring a persons general character or causing personal disgrace o RS: statement defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from dealing with him Slander: spoken words, transitory gestures (RS 568(2) o generally must meet the substantial burden of pleading and proving special damages o but some statements so horrible that injury to s could be presumed w/o proof of special damages (slander per se). Categories: slanderous communications that directly call into question the s competence to perform adequately in her trade or profession statements claiming has a current, loathsome disease (ex. syphilis or aids) allegations of serious criminal behavior by involving moral turpitude 18 suggests a lack of chastity in a woman

Libel: physical (written/printed words) -- more permanent expression, such as a writing, photo, statute or sculpture (RS 568(1) o may recover general (presumed) damages o split: some states have narrowed this to two categories: libel per se (libel on its face) may recover general damages libel per quod (libel that requires extrinsic evidence such as inducement/innuendo) must show special damages burden of (today): o show that a substantial and respectable minority or a right-thinking minority would comprehend the defamatory nature of the communication o must establish that the defamatory communication was published must reach someone other than the (only a single third party required) at C/L: Defamation was a strict liability tort could recover without proving any fault on part of o falsity of damages were presumed, so only had to prove: a defamatory statement about the that was published then had opportunity to try to assert a defense (like the truth about the statement) damages today o general damages given provide compensation for emotional trauma and harm suffered by whose reputation was besmirched o must prove and plead special damages sometimes in order to prevail specific economic losses flowing from the defamation (such as lost profits). if proves these special damages, then she may recover general damages. but special damages often hard to prove Public Officials: those positioned to affect policy o must show actual or NY Times Malice (more strict than regular defamation) must prove by clear and convincing evidence that either had actual knowledge that the statement was false or acted recklessly in not ascertaining whether it was false must be proven with convincing clarity requires to establish actual malice by the heightened burden of clear and convincing evidence o NY Times Co. v. Sullivan: NY Times published an ad paid for by distinguished citizens for civil rights which listed other citizens from whom they claim they received permission from. The ad contained inaccuracies regarding events of the civil rights movement. Sullivan, an elected official for city of Montgomery, AL sued NY in Alabama court for defamation Public Figures: o two types that court can establish all-purpose public figure (ex. nationally known celebrity) public figure for a limited purpose (ex. someone well known in the context of a specific public issue or controversy) o must prove actual/NY Times malice for all-purpose: must prove malice for all matters for limited purpose: limited matters o Gertz v. Robert Welch, Inc: police officer was convicted for murder; his family retained to represent them in a civil action (torts). s magazine, American Opinion, published an article claiming was a communist and that the testimony against the officer was false, and that his prosecution was part of the communist campaign against the police ct held that the attorney was not an all-purpose OR a limited purpose public figure, so 19 not covered according to NY Times

Private Persons o law requires that the subject matter of the defamation be analyzed to discern whether it deals with matters of public concern or matters of private concern o in Gertz above, ct held that private persons should be able to recover more readily than public s for defamation b/c they have better access to the media to set things straight

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