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I. Intentional Torts: Interference with Persons and Property A.

INTENT: X is subject to liability if X acts with

(1) purpose/motive to harm OR (2) substantial certainty that harmful contact will take place (or contact turns out to be harmful).

1. Purpose and knowledge can occur without each other.

a. You can act with motive to harm but without substantial certainty that harm will occur (e.g. you ask God to smite someone and believe the person will die) b. You can act without motive to harm (e.g. purpose for removing chair is to have the chair in your possession), but harm occurs.

2. Intent to harm not necessary. All that is required is intent to contact and it turns out to be harmful. a. Garratt v. Dailey (1955). 5 y.o. child pulls chair away and P fell to ground when she tried to sit. Trial
court found no liability because child did not intend to hurt P (#1). Appeals court remands and states that child liable if acted with substantial certainty (#2) that by moving the chair, P would try to sit. Child is liable for battery, even if child had no intent to harm.

b. Ranson v. Kitner (1889). D killed Ps dog, mistaken for wolf. He intended to kill wolf, regardless of
whether wolf was a dog. D still liable even if he acted (1) without intent to harm AND (2) reasonably.

3. Transferred intent: 3 different types of transferred intent. a. Intent to commit tort on different person. When act with intent to commit intentional tort to A, but
instead commits tort on B, intent transferred and D liable. i. Talmadge v. Smith (1894). D throws stick at boy who was with friends on roof. Stick misses boy1 and hits P whom D never saw. D still liable because intent to hit on person in crowd transferred to actual victim. If D intends to hit somebody, D is liable for hitting anybody.

ii. HYPO 1: If D intended to frighten boy (assault) and hits P not liable iii. HYPO2: If D intended to hit boy (battery) AND his act was reasonable but hits P not liable iv. HYPO3: If D intended to hit boy (battery) AND his act was NOT reasonable but hits P liable.
b. Intent to commit different tort on same person. c. Intent to commit different tort on different person. If intent to commit tort on A, but the act causes another tort to B, then still liable. Torts are: i. Assault ii. Battery iii. False imprisonment iv. Trespass to land v. Trespass to chattel

B. BATTERY: (PHYSICAL TORT) X is liable for battery if X

(1) acts with intent to cause harmful/offensive unpermitted contact or cause imminent apprehension of contact AND (2) a harmful/offensive contact directly or indirectly results.

1. Offensive Contact must be reasonable. For a contact to be offensive, it must offend a reasonable sense of
dignity (objective, societal standard). Reasonable question usually decided by jury.

a. Brzoska v. Olsen (1995). Dentist with AIDS sued by patients who did not know about his condition and
were afraid of contracting AIDS (no actual harm). No battery contact not offensive because it was unreasonable to fear infection when there was no exposure to the disease.

2. Physical contact with items closely associated with Ps body. Unpermitted and intentional contact of Ps
person or objects closely associated with Ps person is sufficient to for liability.

a. Fisher v. Carrousel Motor Hotel (1967). D, employee of hotel, snatches plate from black guys hands at a
corporate luncheon and says the hotel doesnt serve Negros. D liable for battery even though black guy was not apprehensive of physical injury (i.e. can have battery without assault).

3. Eggshell Rule. Once tort has been established, D is liable for any damages that result from the tort, no matter
how unforeseeable they happen to be.

C. ASSAULT: (MENTAL TORT) X is liable for assault if X

(1) acts with intent to cause harmful/offensive contact or an imminent apprehension of such contact to person AND (2) person is put in imminent apprehension (e.g. cant assault a sleeping person)

1. Imminent apprehension must be reasonable. a. Western Union Telegraph Co. v. Hill (1933). Woman comes in to fix clock. Man (D) reaches over counter
and says leering, sexual words. Woman was proven reasonably apprehensive but man did not INTEND to do so.

2. Words alone are not enough. Most courts will say words alone will not constitute an assault. AT thinks that
CIRCUMSTANCES AND WORDS may constitute an assault.

D. FALSE IMPRISONMENT: X is liable for false imprisonment when X (1) intends to confine another in fixed
boundaries and (2) person is aware of confinement. Elements: (1) willful detention (intent to imprison) (2) without consent (3) and without authority of law

1. Shopkeepers Defense/Privilege: Merchants have special common law privileges to detail shoplifters if
(1) they have a reasonable belief that the person stole/attempted to steal, (2) detention is for a reasonable amount of time (usually 10-15 minutes) and (3) detention is made in a reasonable manner However, if person did not actually steal, then even though it was a reasonable belief, merchant may be held liable for false imprisonment. Employees acting within scope of employment may be liable too (e.g. security guards)

a. Grant v. Stop-n-Go Market of Texas, Inc. (1999). Store owner accused P of shoplifting, grabbed P and told
him he was calling the cops. P said he was afraid to leave for fear of getting into trouble with cops and stayed for two hours. Court remanded. Two jury questions: - Did P stay against his will? - Did D intend to keep him there against his will? AT says that if P wanted to clear his name with the cops, then its not false imprisonment because he couldve left.

E. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: X is liable if the following elements are ALL
satisfied: (mostly decided by JUDGE) (1) Conduct must be intentional or reckless (2) Conduct must be extreme and outrageous (3) There must be a causal connection between wrongful conduct and emotional distress (4) Emotion distress must be severe*

1. Emotional Distress must be SEVERE. This is often construed very narrowly and is very hard to prove. AT:
why does a victim have to suffer severely in order to have a remedy? Policy concern being upset is easy to fake.

a. Harris v. Jones (1977). P was teased at work by D because of his speech impediment. Court held that there
was no causal connection between Ds conduct and Ps emotional distress (#3) and that P had pre-existing mental distress before Ds teasing (#4). Legally insufficient evidence for #4.

F. TRESPASS TO LAND: X has committed the tort of trespass to land if he intentionally enters land in possession of
another, even if he reasonably thinks its his own. Only intent required is the intent to step onto the land.

1. Trespass by continued presence. If you fail to remove an object from persons property after expiration of
permission/license, you may be held liable for trespass.

a. Rogers v. Kent County Board of Road Commissioners (1947). Govt failed to remove a post (part of a
snow fence) as agreed, Ps husband ran into it with mower and died. D is guilty of intentional tort even though D did not intentionally leave the post in court looks at intent to put the snow fence in and says intent transferred to leaving it there. AT thinks this should be negligence and does not agree with Restatement. G. TRESPASS TO CHATTELS & CONVERSION 1. Trespass to chattel: An intentional interference to personal property of another (minor offense). X is liable for trespass of chattels if and only if X: a. Dispossesses owner of chattel (even if reasonable mistake) OR b. Harms chattel (condition, quality or value) OR c. Deprives owner of use of chattel for substantial time OR d. Bodily harm caused to owner or something that the owner has a legally protected interest in Elements: (1) Intent to take chattel (even if reasonable mistake) AND (2) Damages occurs

2. Conversion: There must be damages or serious interference with chattel for a cause of action. P can either (1)
retain chattel and D pays value of harm or (2) give chattel to D and recover fair market value.

a. Seriousness of Interference. Following factors are important:

i. ii. iii. iv. v. vi. The extent and the duration of the actors exercise of dominion or control The actors intent to assert a right inconsistent with the others right of control Actors good faith The extent and duration of the resulting interference with the others right of control The harm done to the chattel The inconvenience and expense caused to the other

b. HYPO 1: You mistakenly take someones book for an hour and then return it no trespass c. HYPO 2: You mistakenly take someones book and cause damage to it trespass to chattels d. HYPO 3: You mistakenly take someones book, dont cause any damage, but decide to keep it for
yourself, knowing that it is not your property conversion

e. Intel Corp. v. Hamidi (2003). Former employee sent mass solicitous emails to firm, criticizing firm. Court
said no trespass to chattels because there is no damage to the computer system. AT agrees with dissent, which points out that perhaps this should be a trespass to land (where damage doesnt need to be shown) or that server is the chattel and couldve been slowed down because of the emails and therefore, its quality/value was harmed.

H. UMBRELLA INTENTIONAL TORT: An actor who intentionally causes physical harm is subject to liability for that
harm. This does NOT include assault (mental tort), not all of battery (not always intentional), and probably does not include false imprisonment. AT doesnt like this umbrella tort.

II. Privileges/Defenses
Used when the conduct in question is normally be prohibited but under certain circumstances, is permitted. D bears the burden of proof to support privilege/defense and to persuade trier of fact.

A. CONSENT: (COMMUNICATION TORT) P consents to Ds conduct:

(1) Subjective: If P is willing for that conduct to occur - willingness can be action or inaction and does not need to be explicitly communicated to D

(2) Objective: If words or conduct are reasonably understood by D to be intended as consent. Consent is NOT an affirmative defense cuts off Ps case entirely.

1. Apparent consent. How much communication is needed for consent? Policy: depends on the underlying

a. OBrien v. Cunard (1891). Dr. gave smallpox vaccination to girl on ship. Girl did not say anything, but
raised her arm for the shot. Dr. made reasonable mistake in interpreting Ps actions as implied consent. P sued for battery and negligence. Court held that Ps conduct indicated consent and Dr. was reasonable.

2. Implied consent. (1) Implied in law based on general situations (e.g. football and consent to general violent
action), (2) Implied in fact based on specific situations, case-by-case (e.g. friends who share history of horseplay; consent is given due to shared history)

a. Hackbart v. Cincinnati Bengals, Inc. (1979). Football player was deliberately hit by another player 2
seconds after whistle was blown. P sued for battery. By participating in violent sport, players give implied consent to violence. Appeals Court ruled that because game was over (whistle was blown), it is sufficient to constitute a battery. AT thinks this is ridiculous and sports injuries should be dealt with contractually instead of in a tort case. What if D hit P 2 secs before the whistle was blown? Not a battery then?

3. Informed Consent (Medical Malpractice).

No consent Battery Consent but breach of duty to inform Negligence To prove cause of action for lack of informed consent: (1) Duty to inform (2) Causation (3) Injury Question 1: Duty to inform how much is adequate information for consent? i. Reasonable doctor test: what is the custom in the medical community? Or what would a reasonable doctor have told the patient? (problem: leaves answer to medical community). USUALLY REJECTED. ii. Reasonable patient test: what would a reasonable patient want to know? (too open-ended and subjective) CORRECT iii. Therapeutic privilege: right to withhold info if it would severely affect patients emotional wellbeing. VERY RARE. Question 2: Causation would patient have made a different choice had she been informed of risks? i. Objective Standard/Reasonable Person what would a reasonable person have decided knowing the risks? MAKES NO SENSE. Every person has own individual right to decide what they want or dont want to do to their own body. ii. Subjective Standard CORRECT - what would the actual patient have wanted? Problem of patient lying, but can be solved by cross examination and jury can reject ridiculous claims.

a. Scott v. Bradford (1980). P signed routine consent to have hysterectomy and suffered horrible bladder
complications. Sued Dr. for medical malpractice claiming that he did not properly inform her of the risks. Had she known about the risks, she would not have undergone the procedure. Jury didnt buy this and Dr. won.

b. NY uses (1) Reasonable Doctor Test & (2) Reasonable Patient Test for Causation. Worse possible law
for patients (Policy reason: NY wanted to cut back on malpractice suits).

c. If patient consents to treatment consents to lesser treatment

i. Christman v. Davis (2005). Dentist got consent for one treatment, performed a lesser treatment.
Treatment failed and dentist was sued for battery. Court ruled no battery. Policy: If doctors were subject to battery when choosing less invasive procedures, it would deter them from freely exercising medical judgment. AT: Physician could have had the patient sign a consent form that would give him greater latitude. d. Consent invalidated by: i. Fraud ii. Duress (e.g. threaten with physical harm) iii. Lack of capacity (drunk, mentally incompetent) 1. DeMay v. Roberts (1881). Dr. brings assistant to house of woman in labor. Woman assumes assistant is medical professional and sues for battery when she finds out he is not. D has duty to disclose info did not give P sufficient information to make informed decision consent invalidated by fraud.

(1) Self defense by force not threatening death or serious bodily harm: - if you reasonably believe that another person is about to intentionally inflict harm upon you - then you can use reasonable force - and you dont have to retreat (2) Self defense by force threatening death or serious bodily harm: - if you reasonably believe that another person is about to intentionally inflict harm upon you AND - you are put in peril of death/serious bodily harm - you can use equal force - but you must retreat if there is a way to (exception: dont have to retreat if youre attacked in your home) 1. You can use REASONABLE force to protect yourself even if you miss and hit a bystander, you are not liable if force was reasonable.

a. Talmage. If the court had found D used reasonable force when throwing stick at boys, then he would not
have been found liable because he has a right to protect himself and his property.

b. Courvoisier v. Raymond (1896). Group of rioters broke into Ps jewelry storefront with P living upstairs.
D (cop) came to help but P mistakenly shot him, believing him to be a rioter. P acted in self-defense because he acted honestly in using force and fears were reasonable under the circumstances.

C. SELF-DEFENSE OF PROPERTY: Cannot use deadly force in defense of property. Reasonableness depends on
attendant circumstances, case-by-case basis. Variables to consider include: (1) location (2) type of warning (3) difficulty in protecting (4) seriousness of unlawful activities

1. Katko v. Briney (1971). Trespasser was intending to steal antique jars from abandoned house and loaded spring
gun shot & deformed his leg. Owners of the house, who had set up the trap, were liable could not use self defense of property because it was not reasonable. Life is more valuable than property.

D. NECESSITY: You can take someones property to save your life, but you will have to pay for it, if there are damages. 1. Vincent v. Lake Erie Transportation Co. (1910). P sued D for damages to his wharf caused by D tying his boat to
the wharf during a storm. He re-attached the boat with a stronger cable, which he knew would harm the wharf but it would save his boat. a. D had the privilege of necessity to tie his boat to the dock, exercised reasonable care, but still had to pay damages b. Policy: if dock owners were held liable, they would make it very hard for ships to enter the harbor during storms. Ship owner was in the best decision to make economical choice by tying his ship to the dock, he was making the conscious choice of choosing his property over the dock.

E. UMBRELLA JUSTIFICATION: All-encompassing justification for action if you acted reasonably under the
circumstances. *AT thinks this runs counter to everything weve learned so far e.g. Ranson acted reasonably, but was still liable for killing the stupid wolf-dog.

1. Sindle v. NY Transit Authority (1973). Rowdy students on bus destroy property on bus. Bus driver tells them hes
driving to police station and kids jump out of the window. One student escapes and is run over by the bus. Privilege of justification, provided bus driver had taken reasonable measures for the protection of his passengers and his property. Case remanded. III. Negligence A. To establish a cause of action in negligence, you must prove all 5 elements: 1. Duty Members of society owe to each other a duty to act reasonably to avoid harming others. 2. Breach of duty P must establish that D failed to act reasonably. Jury Questions: (1) What constitutes reasonable care? and (2) did D breach that standard? 3. Cause-in-fact P must prove that breach of duty caused harm 4. Proximate cause D is liable for foreseeable injury only (limited scope of liability) 5. Harm P must have suffered actual harm B. RISK UTILITY BALANCING 1. 1-2 = Negligence. Judge will direct verdict. 2-8 = Judge will give the case to the jury. 8-10 = No negligence (reasonable behavior). Judge will direct verdict. 1---2------------------------8---10

a. Lubitz v. Wells (1955). Dad left golf club in backyard. His son picked it up and swung at his playmate,
injuring her. P sued for negligence (D should have known). Court said NO DUTY golf club is not obviously & intrinsically dangerous. Court is trying to lean towards a rule lots of common objects could be dangerous in the right situations.

2. Learned Hand Formula: B < P x L

B = Burden of adequate precautions P = probability of harm L = magnitude (or cost) of injury Formula is for THE JUDGE TO DIRECT A VERDICT (never disclosed to the jury). Formula is also subjective we look at formula through Ds eyes.

a. High B + Low PL No negligence.

Low B + High PL Negligence U.S. v. Carroll Towing Co. (1947). D, tugboat, was trying to get through harbor and refastened another ships moorings (ties). Bargee was not on the ship when the ship broke free and caused damages to other ships. Bargees contributory negligence reduces recovery it is more efficient to have injury than to hire more bargees. B = burden of hiring another bargee is high P = probably of ship breaking away is low L = injury may be high

b. Economic efficiency in B<PL formula sometimes goes against policy.

Washington v. Louisiana Power & Light Co. (1990). Guy (P) dies from touching antenna to naked

electrical wire. Had survived previous incident and called electric company (D) many times but refused to pay to have wire insulated. Judge directed verdict for D burden is very high for D to insulate every naked wire out there and possibility of injury is low.

C. QUALITIES OF A REASONABLE PERSON: The P in B<PL is different for each person e.g. hayrick case where
stupid guy builds a chimney. His P is very low while the P of a reasonable person is high. (1) With the knowledge that you have, did you do what a reasonable person wouldve done? (2) Would a reasonable person have sought more data? (should have known)

1. Knowledge of a reasonable person: a. Should D have known? Same outcome if D acted on new data? (if same, then no negligence) i. Delair v. McAdoo (1936). Ds tire blew out on the highway and he collided with Ps car. P claims D
was negligent in driving with defective tires. Court held that all reasonable drivers should know if their tires are worn through and that it is dangerous (jury can determine if negligent). Must take reasonable steps to find out whats wrong.

b. Experts held to a higher standard i. HYPO 1: Twerski and Mario are traveling in their own cars on a wet slick road and see an object
200 feet ahead. Twerski and Andretti both begin braking at 100 feet. Assume that Mario, because of his vast knowledge of driving and braking, knows that if he begins braking at 100 feet there is a 1 in 5 chance that he will hit the object. Twerski (ignorant as he is) believes that he will stop 20 feet in front of the object. Is it possible that Mario is negligent and Twerski is not? Mario: B < P L negligent P of injury 1/5 = high L injury is high Twerski: B< P L not negligent (should T have known? No..) Thinks P is low 2. Emergency doctrine: there is no reasoning in emergencies! (Case law split on whether to tell jury about this doctrine) Can look at it as B<PL: B and P unclear when there is only a split second to decide (lousy data + no time to acquire more data).

a. Cordas v. Peerless Transportation Co. (1941). Robber holds gun to cab drivers (D) head. D jumps out
while car is still moving to save his own life and cab runs over sidewalk, slightly injures woman and her infant children.

b. HYPO 1: If cab driver saw a crowd of people and he jumped out of the car knowing that the car would kill
people liable (save himself at the cost of other people, think Vincent case). 3. Customary Practice. shown to be negligent, is RELEVANT but NOT binding (decided by jury). Sometimes court will use custom, other times B<PL. Still use B<PL to figure out if custom was negligent. If judge decides to allow industry custom argument: (custom has to be on-point) and - If D did not comply with the custom D is mostly likely liable - If D did comply with custom and custom was actually negligent D might get off the hook AT doesnt like custom powerful, prejudicial evidence for jury. What if you conform to custom, but allege that custom sucks and everyone in the industry is negligent?

a. Trimarco v. Klein (1982). Glass shower door shattered. P sued D, landlord for negligence, that D should
have replaced his shower door before the accident with shatterproof glass/plastic. It was customary for the landlord to replace old glass shower doors with shatterproof glass. Did landlord have a legal duty to change the glass? Remanded on issue of whether or not there was a custom.

4. Physical and Mental Attributes of the Reasonable Person a. Physically Handicapped - no different standard of care might have to be more careful, but not more reasonable (e.g. if blind, court looks to what ordinary precautions a blind man would take). i. William C. Roberts v. State of Louisiana (1981). Blind man bumped into P (frail old man) who broke his hip. P sues D for not walking with cane and taking adequate precautions. Court found reasonable blind man did not need to rely on cane for short trips no negligence. If using the B<PL formula, B is high burdensome to force blind people to use canes. b. Mentally Ill - held to reasonable person standard of care. Courts can either ignore disability or give them a free pass. Cannot use B<PL because mentally ill people cant weigh risks and burdens. 5. Children are held to a modified B<PL formula Age, Experience and Intelligence Test (AEI). a. Restatement: i. When actor is a child, the actors conduct is negligent if it does not conform to that of a reasonably careful person of the same age, intelligence and experience, EXCEPT that ii. A child who is less than 5 years of age is incapable of negligence; and iii. The special rule does not apply when the child is engaging in a dangerous activity that is characteristically undertaken by adults.

b. Stevens v. Veenstra (1998). 14 y.o., while taking drivers ed course, hits D with his car. Court held that
driving a car is a dangerous activity undertaken by adults and found D liable. 6. Professionals held to standard of reasonable professional most of the time, need expert testimony as to what the established standard of care is in that community.

a. SPECIAL RULE for medical community: Custom IS BINDING. Courts do not want the jury to
second-guess why these customs/standards are in place. (In Trimarco, custom is relevant and not binding)

i. Boyce v. Brown (1938). P complained of pain in ankle. Doctor #1, D, bandaged ankle but P was still
in pain. P consulted another Dr. who took an x-ray and discovered necrosis. Removed screw and ankle healed. P sued D. Court held that D did not deviate from standard medical procedure.

ii. Clergy courts have refused to acknowledge cause of action for clergy malpractice (dont know
what standard to hold them to), e.g. rabbi talks to depressed girl, tells parents shes going to be fine and then girl commits suicide rabbi not negligent because rabbi does not have a duty. D. JUDICIALLY DETERMINED STANDARDS OF CARE

1. Judicially Determined Standards of Care (B<PL). Much more fact-sensitive than statutory standards of care. a. 1-2 = Standard of care met (reasonable persons cannot differ) D not negligent. Judge will direct
verdict. 2-8 = Judge will give the case to the jury. 8-10 = Standard of care not met D negligent. Judge will direct verdict. 1---2------------------------8---10 b. Juries function: i. Resolve conflicts as to what occurred (fact q) ii. Set the standard of reasonable care under the circumstances

c. Helling v. Carey (1974). P, over the course of 10 years, suffered from glaucoma but Dr. never gave her a
simple pressure test necessary for diagnosis. P sued D for negligence. It is not customary to test for glaucoma in people under 40 y.o. Liability can be imposed if D failed to exercise the skill, care and learning possessed by others in the profession, whether customarily used or not in similar circumstances. B is very low and L is very high.

2. NEGLIGENCE PER SE: Statutory standard of care

(1) Judge decides whether statute is applicable to case if conduct clearly falls short of or meets statutory standard of care (0-2, 8-10) Judge directs verdict. If 2-8 (2) Jury decides whether (a) D violated statute negligence per se (b) whether negligence per se caused harm suffered 3rd Restatement 14: An actor is negligent, if without excuse, the actor violates a statute that is designed to protect against the type of accident the actors conduct causes, and if the accident victim is within the class of persons the statute is designed to protect.

a. Example: Martin v. Herzog. P was driving buggy at night without lights on. D was speeding. Both parties
violated statutory standard of care negligence per se. b. Statute must establish a RELEVANT duty of care, i.e. what type of harm is the statute trying to protect ppl from? What kind of ppl is the statute trying to protect? i. Reque v. Milwaukee & Suburban Transportation Corp. (1959). P fell getting off a bus and sued because bus violated Wisconsin statute that required parked vehicles to be less than 12 from the curb. Court did not apply statute because: 1. Statute was intended to keep buses closer to the curb to allow traffic to flow through 2. Statute was intended to protect drivers, not P (people getting off buses) ii. HYPO: Statute you cant leave your keys in an unattended car. A leaves key in car and asks Policeman B to watch while she runs into the store. B is distracted and car is stolen. Should the judge direct a verdict using statute as standard of care? Is this a risk contemplated by the statute? Judge has to figure out the legislative intent. If intent was for safety and to deter crime, then perhaps judge should direct a verdict. c. Judge will determine whether or not a statutory standard of care applies.

i. Stachniewicz v. Mar Cam Corp. (1971). D is injured in a bar brawl and sues bartender for serving
someone who was already intoxicated. Judge had 2 sources of authority: 1. Statute: Thou shalt not serve someone who is already drunk Judge doesnt use this because its impossible to prove causation how can you tell drunk from super drunk? 2. Regulation: Prevent rowdiness, dont let people get out of hand Judge uses this standard of care. Statute protects bar clientele from abusive conduct. Bartender is negligent per se.

ii. Licensing statutes: Absence of license does NOT equal negligence per se (can be used as evidence
to point to negligence). 1. Licensing statutes dont set the standard of care because it says nothing about how good a person is at their profession. 2. License = knowledge. If it can be proven that harm happened because you didnt have knowledge to attain a license, then you are negligent. d. Negligence Per Se eases burden of proof for P, but statutes do not always apply perfectly to factsensitive situations (e.g. importing of criminal statute into a civil negligence case) COMPLIANCE WITH STATUTE IS RELEVANT, NOT BINDING (minimum standard).

i. Impson v. Structural Metals, Inc. (1972). Criminal statute: Thou shalt not pass within 100 feet of
intersection. D tried to pass P by going into the left lane but P turns left. D hits P and kills 3 people in the car. D argues I made a reasonable mistake but reasonableness is NOT A DEFENSE. Problem: D is acting reasonably (if statute wasnt there, he wouldnt be negligent). At what point is the case so fact-sensitive that you have to hear facts and disregard generalized (statutory) standard of care?

e. Excuses: If D violated a statute, then he can be excused from negligence per se if: i. Violation is reasonable because of actors incapacity (e.g. young child) ii. He neither knows or should knows of the occasion for compliance (e.g. drivers tail light goes out unexpectedly) iii. He is unable after reasonable diligence or care to comply (something is impossible) iv. He is confronted by emergency not due to his own misconduct (e.g. blowout tire, unexpected failure in braking system) v. Compliance would involve a greater risk of harm to the actor or others

E. RES IPSA LOQUITUR (the thing speaks for itself): Negligence cases without evidence
2nd Restatement: It may be inferred that harm suffered by P is caused by negligence of D when: (1) The event is of the kind which ordinarily does not occur in the absence of negligence (2) Other responsible causes, e.g. the conduct of P and 3rd persons, are sufficiently eliminated by evidence 1. To instruct jury on Res Ipsa Loquitur, 3 elements of case must be satisfied: a. The event must be of a kind which ordinarily does not occur in the absence of someones negligence b. Event must be caused by an agency or instrumentality within the exclusive control of D i. AT HATES THIS. Should be: was there negligence? was it more likely than not Ds? c. P cannot have contributed to the event (if P reacted negligently, she still might be able to recover)

i. Stelter v. Chiquita Processed Foods (2003). P, food inspector, fell through defective grate at Ds
factory. Res Ipsa elements satisfied: (1) P would not have fallen if grate was in place, (2) only workers in Ds plants have control over how the grate is placed, and (3) no evidence that P touched the grate case goes to jury. 2. Ds defense: can give non-negligent alternative OR that D acted with due care (e.g. quality control)

3. IF ISSUE IS 50/50 CASE DOES NOT GO TO JURY. We dont give jurors a case where the only way
they can come to an answer is to flip a coin. 4. Res Ipsa Presumption of Ds guilt: Courts will create shift burdens to D if it is obvious P should recover.

a. Ybarra v. Spangard (1944). P went in for appendectomy and came out with shoulder problems and lost
feeling in his arm. Problem arises for P when he cant prove which of the many doctors or nurses actually caused his injury. Also, couldnt sue hospital because some of the doctors were not employed by hospital. Cant prove element #2 to pass Res Ipsa test, so court does the following: i. Shifts burden of initial explanation to D D has to say I didnt do it ii. Shifts burden of proof to D unless somebody confesses, then D has to prove by a preponderance of evidence that it wasnt D (forces doctors to be snitches). LIMITED TO CASES WITH MALPRACTICE + UNCONSCIOUS PATIENT Lots of controversy over this. 5. Res Ipsa Inference: a. Sullivan v. Crabtree (1953). Parents of P, passenger of truck who was killed when driver swerved off the highway and overturned, sued driver, D. D did not know what happened. Res Ipsa applies inference is that generally, trucks do not run off highway unless theres some negligence on Ds part but it also could have been failure of brakes, of the wheel, etc. Jury rejects inference. ON TEST: DISCUSS WHETHER THERE WAS PRESUMPTION OR INFERENCE OF GUILT IN RES IPSA INSTRUCTION? IV. Actual Causation

A. BUT-FOR CAUSATION: Did Ds negligent conduct cause Ps harm? But for Ds negligent conduct, would Ps harm
have occurred? (1) If yes P has no case.

(2) If murky jury decides if P has proven burden of more probable than not (3) Cheating on But-For Causation: where conduct was the cause of the harm (yet no negligence) P has to prove conduct caused harm 1. P must prove more probably than not that Ds negligent behavior caused harm

a. Perkins v. Texas & New Orleans R.R. Co. (1962). Train was speeding, struck car at intersection and killed
passenger. Was trains speeding the cause of the accident? Not enough evidence for causation. D contends that even if it was going at the speed limit, it wouldve struck the car anyway. CANT PROVE ESCAPE THEORY that if train were going at correct speed limit, P wouldve passed on by before the train ever got there (TOO SPECULATIVE).

b. Ford v. Trident Fisheries Co. Ford was employed on a boat and fell overboard, sank and drowned without
anybody noticing. P sues for negligence, claiming that rescue boats were improperly lashed onto the deck and had 1 oar instead of 2 which hindered rescue efforts. Even if there was negligence, very remote chance that it contributed to Fords death need more probably than not.

c. Lyons v. Midnight Sun Transportation Services, Inc. (1996). P pulling out of parking lot, D was speeding
and swerved to the left but P kept pulling out. D hit and killed her. No causation: if D had not been speeding, he wouldve still hit her because she kept pulling out.

2. If Ds negligence greatly multiplies the chances of harm to P there is causation

Policy: When D breaches duty that was designed to protect against the very type of risk to which P was exposed courts will send causation issue to jury even when evidence on causation does not measure up.

a. Reynolds v. Texas & Pacific Ry. (1885). Fat woman falls down stairway which was unlit and lacked
handrail. P sued D. D claimed no causation because fat woman couldve fallen down a well-lit stairway. Court said sure, its possible but unlit stairwell w/o handrail multiples chance of harm to P causation.

3. Failure to warn: In cases where D failed to warn and P was harmed, courts will presume that if P were warned,
then P wouldve heeded warning. B. Special Problems of Proof

1. Kramer Service, Inc. v. Wilkins (1939). P suffered cut on head when glass piece on door fell on him. 2 years after
injury, he was diagnosed with skin cancer. Medical experts said youre ridiculous. Very little possibility no causation 2. Judges determine the RELIABILITY of the expert testimony and Juries decide the PERSUASIVENESS (i.e. whether or not D is negligent).

3. Judge (gatekeeper) must decide if evidence is up to legal standard before going to a jury: a. DAUBERT TEST:
i. Testimony must be scientific knowledge: 1. Can theory be tested? 2. Has it been subject to peer review by other scientists? 3. What is the known rate of error? 4. Is theory/methodology employed generally accepted in relevant medical community? ii. Testimony must assist trier of fact to determine a fact in issue

b. Daubert v. Merrell Dow Pharmaceuticals (1993). Mothers took Benedectin for morning sickness and
children were born with birth defects. Court said: causation if risk is doubled. In toxic tort cases, there are always background risks (1/1000 babies are born with birth defects).

c. Rider v. Sandoz Pharmaceutical Corp. (2002). Ps took drug Parlodel to suppress lactation after childbirth.
They suffered hemorrhagic strokes. Ps used Daubert factors but proof was not strong enough to prove causation. AT thinks this should be a question of informed consent if Ps were warned of risks, they wouldnt have taken drugs. (NOTE: minority of courts follow the general acceptance test) 4. Harm = loss of chance

a. Herskovitz v. Group Health Cooperative of Puget Sound (1983). P complained of symptoms for a year but
Dr. D failed to diagnose his 5 year survival rate went down 14%. Dr. isnt negligent because P died, but he is negligent because his conduct caused a decrease in Ps chance of survival. Damages = full damages X 14% difference in chance of survival had doctor not been negligent. Policy: Dr. should not be able to escape liability just because patient already had a small chance of survival.

C. When 2+ Negligent Actors Concurrently (or Successively) Cause Ps Harm

If 2 forces are actively operating, one because of the actors negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about harm to another, the actors negligence may be found to be a substantial factor in bringing it about. Joint liability. Ds who are jointly liable can be joined in a single action, although P is not required to join them. Severally liable. Ds who are severally liable are each liable in full for Ps damages. Joint and Several liability: (1) Acted in Concert harm is caused by both (2) Acted Individually acted independently but caused indivisible harm

1. When you have 2 but-for causations, both tortfeasors are liable.

If you are negligent and you are the but-for-cause of the harm, you ARE NOT off the hook just because someone else is also the but-for-cause. a. Hill v. Edmond (1966). Drivers negligence (swerving) + Truckers negligence (parked in middle of the road) = Harm to P. Both acted independently and caused indivisible harm. Trucker dismissed. AT DISAGREES WITH OUTCOME. 2. Exception: Act of God precludes joint liability (example of when a but-for-causation doesnt work) a. Kingston v. Chicago & N.W. RY. (1927). NE Fire started by D (railroad) + NW fire of unknown origin destroyed Ps property. Court said D is 100% liable because D couldnt prove NW fire was started by nature. Court substituted but-for with substantial factor test AT thinks this doesnt make sense. 3. When one of several negligent actors clearly harmed P but we cant tell which one:

a. Alternative Liability Theory: If there are 2+ negligent Ds, then all Ds held liable.
Summers v. Tice (1948). 2 Ds fired shots to hit quail and hit Ps eye. Burden of proof on Ds. If Ds couldnt tell which D actually caused harm to Ps eye, then court held both D liable as joint tortfeasors. Wouldnt be fair to the P otherwise.

b. Market Share Liability Theory: If there are many negligent Ds (industry), then % market share =
% liability (no JSL) HARD TO APPLY. Sindell v. Abbott Laboratories (1980). P sued 200 manufacturers of DES, a drug that mothers took to prevent miscarriages but resulted in the child developing possibly malignant tumors in early adulthood. Although DES was definitely the cause of cancer, courts refused to shift burden of proof on 200 Ds because then each one would be 100% liable unfair to Ds since they were just following FDA standards of industry. Summer rule too rigid. To avoid placing 100% of the damages on one D, % market share = % liability. i. NY = no JSL.

ii. This is special case because it was 1 drug (pill) delivered to a certain group of women in a short period of time.

V. Proximate Causation
There was duty, breach of duty, and but-for cause of harm. Now, proximate cause limits the scope of liability. Negligence Q: Are you negligent? Did you create the risk? Proximate cause Q: JURY QUESTION. Was this risk reasonable (does it belong to the scope of risk caused by your behavior)? Are you negligent for this risk alone? B<PL formula doesnt work here. Weve already established negligence. Proximate cause is talking about BUNDLE OF RISKS whereas formula only takes into account 1 risk. That 1 risk might have a very low P so the formula will always say no. Summary (1) Do not ask if there was negligence. Already established. (2) No BPL for particular risk (doesnt work, often P is very low) (3) Manner of harm doesnt get you off the hook unless its really outrageous (4) Policy final check for court to ask is it fair to impose liability?

A. Result within the Risk Rule: When the P and kind of harm is reasonably foreseeable liable (98% of the time,
it doesnt matter how the harm took place, i.e. details) 1. Marshall v. Nugent (1955). Car accident occurred because of Ds negligence. After accident, P walked out to warn incoming traffic about road blockage and was struck by another car. P sued the driver of the car and D for negligence. D liable because Ds negligence created a bundle of risks. P was reasonably be expected to get out of the car and lend a hand in getting other cars around the accident (within the bundle) Ask: Was Ps harm is included in Ds bundle of risks created by his negligence? i. If risk was a low probability event (on the outskirts of scope of risk), then judge can direct verdict. ii. If risk was within the scope, then jury will decide on reasonableness. 2. HYPO. P received a potted plant with wooden stick holding it up. Wooden stick was shoddy and prone to splintering. P threw the stick in the garbage can and a splint hit P in the eye, blinding her. Theres a case for proximate cause although how it happened may be improbable, the wooden stick splintering was within the scope of the risk of a shoddily made stick. 3. HYPO. P works in a poorly ventilated room with gas tanks. Foreseeable that fire would occur due to leaking gas. A gasoline soaked rat catches on fire and runs into the tanks, creating an explosion that harmed P. The WHO and the WHAT are foreseeable, but the HOW is not OUTCOME?

4. HYPO. Buffalo River case D negligent allows ship to break loose, barge collided with another and hit a bridge,
damming the river and causing heavy flooding. Court held D liable WHO and WHAT foreseeable but the HOW was not foreseeable. Policy: D engaging in conduct which entails a large risk of small damage and a small risk of other greater damage, of the same general sort, from the same forces, and to the same class of persons should not be held liable simply because the chance of less likely occurrence would not have required a greater exercise of care.

5. Palsgraf v. Long Island R.R. (1928). Guy drops package while conductor trying to help him on a moving train
leaving the station. Package is dynamite and explodes, tips a scale, scale hits and injures P. Judge says no liability because D does not owe a duty to P P was not foreseeable. USED DUTY ANALYSIS BECAUSE DUTY PUTS CONSIDERABLE POWER IN HANDS OF JUDGE. AT thinks this is wrong. If you shoot a bullet into the air and it hits some random person, you are still negligent and there is actual and proximate cause even though P was not foreseeable. You do NOT apply a B<PL formula for a PARTICULAR risk you have to ask (1) negligent? Yes, but not sure for what for pushing a man onto a moving train? Moving train itself? (2) but-for cause? Yes, (3) proximate cause within scope of the risk? No, P is outside the range of risks 6. Thin Skull Rule: Tortfeasor must take his P as he finds him (exception: doesnt count for Ps who suffer special injuries as a result of religions beliefs or past mental trauma)

a. McCahill v. New York Transportation Co. (1911). Cab hit P. P died of delirium tremens, an alcoholic
condition. Although P wouldve probably died anyway later on, cab hastened Ps death. D appealed, saying that it wasnt foreseeable that he hit a guy with special condition. Court said, too bad and slapped him with negligence. Ps condition can factor into damages, but is not viable as a defense. Still a result within the risk since there are many different Ps in the world. 7. Harm to Property: Must be foreseeable for recovery. a. Overseas Tankship (UK) Ltd. v. Wagon Mound 1 (1961). Ship discharges oil, workers on wharf working with torches fire erupts. Fire was not foreseeable (very low probability of happening) so court said ship only liable for foreseeable consequences of releasing the oil. Also didnt push the foreseeability argument because wharf owners didnt want to be contributorily liable.

8. However, even if the risk is foreseeable, if risk is small such that a reasonable man would ignore D not
liable. Wagon Mound 2 (1966). Same facts as Wagon Mound 1 except ships chief engineer could have foreseen consequences. It was a low risk but court said the engineer should have known that there was a risk and that that risk would cause great harm. AT thinks this is a retarded decision. If every little risk is within bundle of risks, then every proximate cause case would let P win. B. Superseding Causes

1. If intervening act is within the scope of the risk created by Ds negligence D liable.
If intervening act is extraordinary under the circumstances and not foreseeable superseding act breaks up causal nexus D not liable WHETHER OR NOT INTERVENING ACT IS EXTRAODINARY = JURY ISSUE a. Derdiarian v. Felix Contracting Corp. (1980). P is contracted to work at excavation site which is not properly barricaded. Epileptic driver crashes into site, sends 400 degree liquid enamel to splatter on Ps face and body. P sues contractor for negligence in not barricading site. D argued epileptic driver = superseding/intervening cause. Court said D liable because intervening act is a normal/foreseeable consequence of the situation created by Ds negligence. General risk of car crashing through site and harming workers was foreseeable (it was not foreseeable that driver would be epileptic doesnt matter because this falls into the HOW)

2. Barry v. Quality Steel Products, Inc. (2003). Ps were standing on planks manufactured by D while working on
roof of house. Planks gave way and Ps fell. Evidence that Ds planks were badly manufactured. D argues that P not following instructions and using weak nails to secure planks = superseding cause. Court said superseding cause is just proximate cause when there is more than one alleged act of negligence. 3. Willful/wanton intervening cause can bar recovery. a. Watson v. Kentucky & Indiana Bridge & R. Co. (1910). RR negligently spilled gasoline. Guy lit and threw a match, car exploded and injured P not sure if deliberate or not. Whether or not deliberate = q for jury. If not deliberate RR is liable because P and resulting fire is foreseeable If deliberate RR can be liable, because P and resulting fire is foreseeable (HOW is not), but POLICY Q: do we want to include arsonists (malicious people) in RRs scope of risk? Twerski says NO. 4. Can be liable for an unforeseeable consequence a. Fuller v. Preis (1974). Dr. gets into car accident resulting in seizures and brain atrophy. He commits suicide (allegedly because of irresistible urges due to his accident). Jury issue: is suicide within the scope of risk that D created? is suicide a superseding cause? Twerski says, if you push a mentally ill person to suicide liable. Varying facts lead to different outcomes. On the day of Ps suicide, he had an abnormal amount of seizures so you can say his suicidal behavior was because of his brain atrophy caused by Ds negligence. 5. RESCUE - D is liable for injuries sustained by a person who is trying to rescue D from his own negligence, but depends on how reasonable the rescue is.

a. Wagner v. International Railway (1921). Ps cousin is thrown from moving train while crossing bridge. P
goes to find the body but falls off bridge. P sues RR for negligence. Was Ps fall the result of RRs negligence? Rescue efforts within the scope of risk, but depends on how REASONABLE rescue efforts were (jury Q). b. Rescue doctrine only available to those who actually attempt to rescue someone (not for those who arrive on the scene and get hurt) i. P was told his wife got into accident. P rushed to scene of accident, slipped and injured himself. D, the cause of wifes accident, not liable for Ps injuries. P didnt actually rescue. ii. Mother saw car hit person, thought person was her son and ran to the scene. Next day, she died of cerebral hemorrhage allegedly triggered by the event. D, driver of the car, not liable for her death. C. Playing the DUTY Card 1. In deciding whether Ds negligent conduct is cause/proximate cause of Ps harm, courts may look to define the obligations that each person (or CLASS of people), at a minimum, owes to others in society. a. Hamilton v. Beretta U.S.A. Corp (2001). Ps sued 49 gun manufacturers for the death of family members by hand guns. But-for negligent distribution of guns, family members might not have died? Court held no duty of care because even though manufacturers might be negligent, courts cant deal with this no market share liability possible. Cant prove which guns killed family, no way to determine the # of guns each D sold, not every gun caused harm (unlike DES case where everyone who took pill suffered harm).

VI. Limited Duty Rules: Non-liability for Foreseeable Consequences

Duty = category sensitive (meat cleaver) and not fact-sensitive. A. Limitations on Duty to Rescue 1. No duty to rescue if P got into situation by himself (no matter how unreasonable your behavior) a. Yania v. Bigan (1959). Coal-mining accident where B encouraged Y to jump into trench, Y jumped and drowned. Business-invitee relationship, but court held NO DUTY TO RESCUE because Y decided to jump on his own. 2. Cant start and then abandon rescue once you start, you prevent other people from helping so you have a duty to FINISH rescue. a. Wakulich v. Mraz (2003). Guys forced P to drink lots of alcohol via peer pressure. They didnt have a duty to rescue until they propped drunk P to prevent her from choking on her own vomit (started the rescue). P died, guys liable. 3. 3-Factor Balancing Test: a. Relationship between parties b. Reasonable foreseeable of harm to injured person c. Public policy concerns 4. Businesses have duty to rescue customer, P (business invitee). a. Restatement: Business is not required to take any action beyond that which is reasonable under the circumstances. In the case of an ill/injured person, the business will seldom be required to do more than give such first aid as it reasonably can, and take reasonable steps to turn the sick man over to a physician, or to those who will look after him and see that medical assistance is obtained. (Basically, businesses do not have to hire specially trained employees to deal with sick customers).

b. Baker v. Fenneman & Brown Properties, LLC (2003). P faints in Taco Bell and suffers convulsions, twice.
First time, Taco Bell employee helped him and he said he was alright. Second time, nobody helped him and he suffered severe injuries. Did Taco Bell have a duty to rescue P? YES P was business invitee, good social policy to assume affirmative duty to help customers who become ill as a cost of business. Was there a breach of duty? Q goes to jury. 5. If there are better non-tort (non-duty) alternatives, then no duty to rescue. a. Stockberger v. U.S. (2003). Hypoglycemic guard (P) had episode, co-workers gave him Ensure to drink. P insisted on driving home despite his condition and against co-workers advice, crashed and died. Court

held NO DUTY TO RESCUE despite employer-employee relationship because policy P couldve informed employer how to handle his episodes (contract) instead of imposing a duty to rescue every time he had one (tort). AT says: Court overlooked fact that employees had initiated the rescue (giving P Ensure to drink and making him half better so that he thought he was ok to drive). Mightve come out the other way because by helping P in the past, they may have established a duty to rescue, especially since they knew he was not OK to drive. 6. Statutes may impose duty to rescue (even in non-relationships). (Although AT thinks that it is very hard to determine a standard of care/causation in these cases). a. J.S. and M.S. v. R.T.H. (1998). NJ statute anyone who has a reasonable cause to believe that a child is being abused must report it immediately. Husband sexually abused neighbors 2 daughters, wife knew about it but did nothing. Ps added wife as defendant, claiming negligence that she knew or should have known that her husband was sexually abusing the children. Court held YES DUTY TO RESCUE, 3-factor test: i. D had ability to foresee potential injury to P (needed more evidence on this point) ii. D couldve exercised care to prevent harm iii. Public policy theres a duty of care to report sexual abuse of children if there is reasonable belief (NJ statute) 7. 3 principles for enabling a duty to rescue: (1) If D is strategically placed to take precautions to reduce risk of victim (social hosts dont count) (2) Existence of a pre-existing relationship (not Tarasoff) (3) Cost of precaution is slight (e.g. phone call)

a. Tarasoff v. Regents of Univ. of CA (1996). D confessed to psychiatrist at college that he wanted to kill P.
Psychiatrist warned police, but police had to let him go because of lack of evidence. D, two months later, killed P. Ps parents sued college, claiming college negligently failed to warn (proximate cause of Ps death). Court held YES DUTY because: i. Doctor-patient relationship: Once a therapist does in fact determine [know] or reasonably should have determined [should have known] that a patient poses a serious danger of violence, then therapist bears duty HOWEVER, because T has a duty to an unknown party, this conflicts with his obligation to maintain confidentiality with his patient. ii. Harm was foreseeable iii. Public Policy court was ready to impose a duty on therapist because someone had died. AT thinks this is stupid: These cases are hard to make. Wheres the causation? Court should have looked at causation and come out with no duty. Should have known standard not practical. B. Economic Loss 1. Bright-line Rule: No recovery for PURE economic loss (if no rule, then scope of risk would be limitless and judgments would be arbitrary). a. State of Louisiana, ex rel. Gust v. M/V Testbank (1985). Collision of 2 ships caused toxic chemical spill and gulf was closed down for 3 weeks for clean-up, suspending all fishing and related activities. Many lawsuits filed fishermen, businesses, etc. filed for negligent infliction of economic loss. Court refused to give $ to those without property damage, except fishermen (quasi-property interest in the fish) business losses are infinite, unforeseeable and unpredictable. Need an end to damages take out business-interruption insurance (plaintiffs). 2. Yes recovery for economic loss if there is a foreseeable P however, AT thinks most Ps are foreseeable so this case should be interpreted NARROWLY. a. People Express Airlines, Inc. v. Consolidated Rail Corp. (1985). RR caused dangerous chemical leakage right next to airline (P), resulting in economic loss for P (no property damage). Court held YES duty because: i. D owes duty of care to Ps in a particular class that D knows or has reason to know will likely suffer damages from Ds conduct. ii. Proximate cause: did breach of duty cause losses?

C. Emotional Distress
Question: What kind of injury are you going to recognize from negligent infliction of emotional distress? - emotional distress - serious emotional distress - physical manifestation (what is a physical manifestation?)

1. The Impact Rule (only a few jurisdictions use this): No recovery for emotional distress without impact
(impact is a flexible term, but generally means no recovery for any resulting physical manifestation of fright such as nervous disease, blindness, insanity or miscarriage).

2. Zone-of-Danger Rule (NY): P can recover (with or without physical injury) if

a. P is physically in danger of impact and b. Reasonably fears for her own safety (or fear of immediate family member) and c. Suffers serious emotional distress because of fear

3. 3rd Restatement of Torts (draft): adopts Dillon Rule. 4. If you suffer from physical injury that is foreseeable from emotional distress caused by negligence YES
recovery (Policy: can apply to mass tort claims) a. Daley v. LaCroix (1970). D drove off cliff, snapped power line and caused an electrical explosion, resulting in property damage and emotional distress for Ps. YES RECOVERY because Ps suffer physical consequences resulting from ED (inconsistent with Restatement). Policy: Court can use this rule in mass tort claims, e.g. asbestos cases where victims with physical symptoms get $ first and victims without physical symptoms are herded to the back of the line.

5. Dillon Rule: P can recover for emotional distress from witnessing injury to 3rd party when:
a. b. c. d. P is closely related to injured victim P is present at scene of injury when event occurs and is aware that it is causing injury to the victim P suffers from emotional distress as a result (beyond that of a disinterested witness) And is not an abnormal response to the circumstances (e.g. thin skull rule)

i. Thing v. LaChusa (1989). P came upon accident scene a few seconds after car hit her son, saw her
son badly injured and sued for ED. Court denied (b) not fulfilled she was not there at the time of the accident.

6. Direct Victim Rule: Some Ps are direct victims to whom Ds owe duties of care directly when ED is
inflicted directly on the bystander a. E.g. When hospital calls a family to tell them a family member died, and it turns out to be the wrong person. D. Harm to Unborn Children 1. Parents can bring wrongful death action for unborn child as long as fetus is viable a. Some courts, such as NY require live birth) b. Some courts do not allow parents to bring mental distress claims in addition to wrongful death actions in order to prevent duplicate recovery.

i. Werling v. Sandy (1985). P brings wrongful death action on behalf of fetus, claiming it was Ds
fault. Court said fetus was viable and allowed wrongful death action since they have allowed similar actions on behalf of child who dies shortly after birth. 2. Wrongful Life Injuries a. Courts recognize causes of action for parents alleging that, but for Ds negligence, P would have had an abortion or P would not have become pregnant at all b. Usually brought to recover cost of pregnancy, lost wages, medical expenses, emotional distress, costs of raising child i. Procanik By Procanik v. Cillo (1984). P, infant, brought wrongful life claim (through his mother) against D, doctor, who failed to diagnose mother with Rubella during 1st trimester P born with congenital rubella syndrome.

Court: P can recover for extraordinary medical care, but not damages for diminished childhood (child cannot recover for ED, but parents can bring another claim for their own ED). Cant compare defective life vs. no life at all what the hell are the courts supposed to say to infant who claims I would have been better off dead? ii. AT thinks cause of action should be INFORMED CONSENT: it doesnt matter what decision I wouldve made if I had the information I just didnt have the info so I should have a cause of action but you would still have to prove that you wouldve said no. VII. Owner and Occupiers of Land A. Categories 1. Trespassers: No permission. Duty to warn, if discovered. 2. Licensees: Social guests. Duty to warn about known dangers. 3. Invitees: 2 categories. Full duty of reasonable care. a. Business invitees b. Public invitees 1. Status of entrant determines standard of care i. Gladon v. Greater Cleveland Regional Transit Authority (1996). Drunk guy was attacked by people on train platform (invitee) somehow ended up on the tracks. Court said when P got on the tracks, he was a trespasser. No liability because: (1) RTA does not have duty to discover trespasser, just a duty to not behave in a willful/wanton conduct (jury question) (2) When trespasser is discovered, then RTA has to use ordinary care

2. Categories Rejected (1/5 states rejected categories): If D, occupier of land, knew about danger but did not
warn P D is liable. Factors that determine scope of Ds duty: i. Foreseeability of harm to P ii. Degree of certainty that P would suffer injury iii. Closeness of connection between Ds conduct and injury iv. Moral blame of conduct & injury suffered v. Policy of preventing future harm

1. Rowlnad v. Christian (1968). D, social guest, knew about broken porcelain facet but didnt tell P.
P used the bathroom, faucet broke in his hand and caused severe injuries. Court adopted REASONABLE-CONDUCT-UNDER-THE-CIRCUMSTANCES standard and held D liable. 3. Most states kept categories: Old rules are simple and bright-line, work 90% of the time. Good enough. Reasonable duty of care standard takes power out of judges hands and places power in the hands of jury (violins). i. Carter v. Kinney (1995). D hosted bible study in his house and invited Ps over. P slipped on ice in driveway and broke his leg, sued for negligence. Court held P = licensee (a social guest) because D did not derive any material benefit from P and the bible study was not open to the public (invitation to home does not equal invitee). Therefore, D had no duty to warn because he did not know about ice. Court: Distinction between licensee & invitee makes us look at Ds intentions. B. Special Landowner Rules Limits to Liability

1. Firefighers Rule: Limits liability of landowners to negligence claims from firefighters/police who enter on
their premises to perform job. Initially treated as licensees but now tons of exceptions courts recognize that public servants cant assume the risk of every possible harm that might result from their duties. E.g. paramedic is riding in an ambulance that a tree falls on paramedic should be able to recover

2. Recreational Use Standard: Most states have statutes that partially immunize owner for accidents that take
place on property open for recreational use to public (doesnt apply to people who make money, e.g. Six Flags).

Policy reason.

3. Duties owed to those outside premise: Landowner liable for harm for artificial conditions created on premises
to persons injured off premises (exception: natural conditions, e.g. snow melts off driveway onto sidewalk and reforms as ice and someone slips) E.g. Owner of baseball stadium liable for injuries caused to P when baseball struck her while she was walking on sidewalk next to stadium. 4. Urban vs. Rural / B<PL Lower standard of care for rural landowners because more trees = higher burden (cant inspect every tree) a. Taylor v. Olsen (1978). P, driving, struck a tree that had fallen across road and sues for negligence. Court said D not liable because: i. No causation even if D breached a duty to inspect, he could not see damage because tree was rotting on the inside. Short of cutting it down, he couldnt have known. ii. Do B<PL if burden is too great, courts will direct a verdict. iii. There is a duty to inspect trees in urban areas, but not rural areas. AT: We can simply do a B<PL instead of relying on the urban vs. rural standard of care. Here, B is very high (have to cut a hole in the tree to see if its rotting), higher than P and L. C. Duties Owed by Lessors (Landlords) 1. Sargent V. Ross (1973). Ps 4 y.o. daughter fell down stairs and died stairs were steep and rail did not prevent her from falling over. Common law said lessor had no duty. Court abolished common law rule and instituted reasonable care standard. However, D not liable, parents are. Common law: Liability for landlords: (1) warn of hidden dangers, (2) full duty for common areas, not private areas, and (3) if premises are negligent repaired. Reasonable care: Full duty. D. Premises Liability: Securing against crime 1. Posecai v. Walmart Stores, Inc. (1999). P robbed of expensive jewelry by thief who hid under her car. P sued D for negligent failing to provide adequate security in the parking lot since surrounding neighborhood was ghetto. Causation is impossible would security have made a difference? Court said, business owners have duty to reasonably protect patrons from foreseeable criminal acts. 4 tests: i. Specific harm rule: no duty to protect unless aware of specific harm. ii. Prior specific incidence test P must say these crimes happened before and then argue reasonableness iii. Totality of Circumstances test B<PL (jury) iv. Balancing Test foreseeability vs. burden of duty to protect (judge) this sounds like B<PL Court chooses Balancing Test and says foreseeability is low, burden is high so therefore, D does not have a duty. Courts are all over the place with directed verdicts.

VIII. Affirmative Defenses

Once P has established a prima facie case for recovery against D, then question becomes: Did Ps conduct contribute to her injury and if so, should P be barred from recovery or have her recovery reduced?

A. Defenses Based on Ps conduct

- D may claim that P failed to act reasonably - D may claim that P assumed the risk of injury - D may claim that P has failed to undertake ameliorative action that would lessen injury that P may have incurred.

1. Contributory Negligence: Common law (not used anymore courts created all these exceptions because they
hated this rule) a. If P is negligence and her negligence is the proximate cause of her injuries, then P is totally barred from recovery. i. Limitations:

1. Last clear chance if D had an opportunity to prevent harm, then this cancels out Ps effect 2.
of contributory negligence (i.e. if P was negligent but was frozen in position of peril and unable to get herself out of it but D was in a position to help her) If D committed intentional tort or was reckless/wanton, then Ps contributory negligence is not a defense.

b. Butterfield v. Forrester (1809). Horse-rider was galloping too fast and didnt see a pole lying in the road
and crashed. Court held that the horse-riders negligence (going too fast) barred recovery since it was entirely his own fault had he been going slower, he wouldve seen the pole and avoided the accident.

2. Comparative Negligence: Divides liability between P and D in proportion to their relative % of fault. Ps
recovery is reduced by (negligence/total negligence)%. NOTE: WE ARE LOOKING AT FAULT, NOT CAUSE.

a. Pure CF: Damages = Ps recovery - % Ps fault (NY & 13 other states). P can collect total sum from any
1 D (joint & several liability) i. E.g. P = 40% negligent D1 = 30% negligent D2 = 30% negligent Then: P can collect 60% from either D. b. Modified CF: (varies from jurisdiction to jurisdiction) i. Ps fault has to be less than Ds in order to recover, but if both are 50% at fault then P cannot recover. 1. E.g. P = 49% negligent D1 = 51% negligent Then: P recovers 51%

ii. Ps fault has to be less than Ds in order to recover, but if both are 50%, then P can recover 50%.
iii. Ps fault must be greater than EACH of Ds faults (minority rule) 1. E.g. P = 40% negligent D1 = 30% negligent D2 = 30% negligent Then: P collects nothing because her 40% is greater than that of either Ds.

c. 3rd Restatement proposal: Argues in favor of pure CF; Factors for assigning % of responsibility include:
i. The nature of persons risk-creating conduct including intent, recklessness, etc. ii. The strength of the causal connection between the persons risk-creating conduct and harm

1. HYPO: Derdiarian. P is working on a construction site with hot liquid and not wearing
goggles (goggles are standard). D failed to properly barricade the site. Epileptic driver crashes through, hits pot of hot liquid and it sprays into Ps eyes, blinding him. P not wearing goggles and getting hit in the eyes with something dangerous = highly foreseeable risk, high proximate cause. D not properly guarding worksite and having epileptic drive into site = lower risk Therefore, P probably gets the higher % of fault. 2. JURY DECIDES where all the risks fall on the proximate cause scale and take them into account when comparing fault.

d. P CANNOT recover if
(1) P is in serious violation of the law and (2) the harm is the direct result of that violation.

i. Alami v. Volkswagen of America, Inc. (NY 2002). P, drunk driving in a Volkswagen, crashed into a
steel pole and died from resulting injuries. Ps wife sues for defective design of car it did not properly protect her husband. Court said, YES P can recover because injuries were the direct result of defective car and not his drunk driving. Crashworthiness has nothing to do with how the accident

came about. 1. 2. This is the minority rule most courts will take Ps conduct into consideration to reduce recovery even if conduct has nothing to do with the claim of crashworthiness. In states with modified comparative fault, drunk drivers rarely get recovery because juries will find drunk drivers to be > 51% liable.

e. Effects of Comparative Fault Doctrine i. Last clear chance: pretty much dead, but can be given to jury to decide % fault.

ii. Multiple tortfeasors (Ds):

Common law: joint & several liability where P can recover full amount from 1 D and let the Ds work it out amongst themselves Majority Rule now: No JSL. AT doesnt like this because if P = 0% fault, D1 = 80% fault (Joe Schmoe), D2 = 20% fault (Big Sugar Daddy), then P can only get 20% of what owed while the rest has to come out of her pocket.

she is

3. Assumption of Risk
When P voluntarily assumes a known risk, then courts refuse recovery.

a. Express (Exculpatory agreements) not really a problem.

Usually strictly construed against D and are enforceable if: (1) clearly spells out intention of the parties (2) act of negligence must be reasonably related to the object or purpose of release (3) not against public policy* (or when D is grossly negligent)

i. Evans v. Lima Lima Flight Team, Inc. (2007). P died of an airplane crash with another pilot during a
practice session with Lima Lima, a formation flight team. P sued individual pilots and LL. Court held that LL may be liable for negligence in not having emergency procedure in the event that visual contact was lost since LL did not sign exculpatory agreement. The agmt was only for the individual pilots.

b. Implied (AT likes to avoid this) no need to talk about implied assumption of risk because if P was not
careful, then we are under comparative fault regime and this will reduce his recovery. - Is there a duty? (Is there an imposed duty or duty under B<PL?) - If there is a duty, then was P a risk-lover and/or retarded? ( AT doesnt think D should be held liable for Ps risk-loving actions, even though they may be reasonable) - If P was not, then we do comparative negligence (jury most likely find high % of fault and reduce Ps recovery) 1. HYPO1: P falls into pool at friends house because he was looking at the scenery and didnt notice it there. a. If P is in jurisdiction that recognizes categories, then P is licensee (social guest) so D has duty to warn about hidden dangers. However, pool is not a hidden danger, so D has no duty. b. If P is in B<PL jurisdiction, then have to decide standard of care. HYPO2: Same as 1, except P says he can handle the risk because hes an Olympic swimmer a. Risk taking does not mean that you are negligent because there is nothing unreasonable about taking risks.


ii. Turcotte v. Fell (1986). P, jock, is injured when his horse clips another horses heels and horse
throws him off during race. P sues other jock (Fell), owner of the jocks horse, and the racetrack for negligent maintenance. Court held NO DUTY because jokey consented to risk? Court did not want P to recover. Participants may be properly held to have consented, by their participation, to those injury causing events which are known, apparent, or reasonably foreseeable consequences of participation.

4. Avoidable Consequences
After injury, P may fail to take reasonable steps to avoid aggravation of injury. D is only responsible for the injury that he caused to P and P is responsible for further damages she caused to herself. a. Seatbelt Rules i. Most jurisdictions do not allow D to introduce evidence that P failed to wear seatbelt. Refuse to reduce Ps damages for failure to undertake pre-accident preventives steps to lessen injury. ii. Some states apply avoidable consequences doctrine to failure to use seat belt (NY & NJ) iii. Other states use the doctrine and cap the % reduction.

b. Novko v. State of New York (2001). P rear-ended by police vehicle. P sued state for damages that restricted
him as working as a dairy farmer. Trial court initially said P failed to mitigate damages by continuing to work as dairy farmer (heavy labor) but P had made changes (stress-reducing) to lifestyle Appellate court said it was unreasonable to believe that P shouldve switched professions. B. Non-Conduct-Based Defenses 1. Immunities 2. Statutes of Limitation 3. Statutes of Repose

IX. Joint Tortfeasors

3 situations where a tortfeasors can be held responsible to pay all of Ps damages even though other tortfeasors were also responsible for the harm where Ds: 1. Acted in concert to cause the harm 2. Held liable by law 3. Cause single, indivisible injury B. Concerted Action

1. Restatement 876 Persons Acting in Concert: For harm resulting to a 3rd person when the tortuous conduct of
another, one is subject to liability if he: a. Does a tortuous act in concert with the other or pursuant to a common design with him or b. Knows that the others conduct constitutes a breach of duty and gives substantial assistance to the other or c. Gives substantial assistance to the other in accomplishing a tortuous result and his own conduct separately considered constitutes a breach of duty to the 3rd person

d. Herman v. Wesgate. 2 Ds threw Herman off a boat stag party against his will, suffered injuries. Liability of
Ds depends on participation in activity (not on actually pushing P into the water) 2. Liability by Operation of Law (e.g. Employer liable for employee) a. Landowner not liable for independent contractor unless on own land b. Car owner is held liable if he lends it to someone else 3. JSL and comparative fault can co-exist (some states differ) a. AMA v. Superior Court. P, teenager, participates in cross-country motorcycle race and injuries result in paraplegic. AMA (D) negligent in supervising race + P contributory negligence (parents).