Torts Final Outline Fall 2009

I. General Overview
A. Intent Torts (battery, assault, false imprisonment, intentional infliction of emotional distress)
1. Purpose, not necessarily for the resulting harm, but purposeful conduct (Vosburg v. Putney kicks during class, aggravating a bone condition which causes to lose the use of his leg) 2. Knowledge with substantial certainty that harmful or offensive contact will occur (Garratt v. Dailey moves chair as is about to sit in it; falls and breaks her hip)

B. Negligence- Doe v. Roe has asymptomatic herpes, transmits to )

1. Prima facie elements: a. Duty to another (foreseeable) b. Breach-in-duty c. Causation d. Damages 2. Comparative (sometimes contributory) Negligence a. Pure can recover for all damages not caused by self (if is 65% responsible, can recover 35% of damages) b. Modified if is more than 50% negligent, cannot recover; if is less than 50% negligent, can recover the difference; also variations from forum to forum (p 19) 3. Defenses a. Comparative, or contributory, negligence b. Assumption of the risk i) appreciates danger ii) freely confronts the danger iii) relieves s duty of care

C. Strict Liability defendant is liable UNLESS the law excepts under certain circumstances (absolute liability no defenses or privileges); dangerous activities and products liability

II. Intentional Torts

A. The Concept of Intent
1. Intent to Injure: (Lambertson v. U.S. USDA meat inspector jumps on back of meat handler and inadvertently forces him into meat hooks, causing severe damage to mouth and teeth of meat handler) a. Intent to cause the resulting injuries is NOT necessary b. Intent is present were D acts with substantial certainty that injuries could occur as a result of their action

 intent to touch is all you need for battery, if you intend to act you are responsible 2. Intent and Mistake: mistake does not defeat intent to commit an act (Ranson v. Kitner D is hunting wolves and shoots Ps dog, which looks like a wolf) a. Intent to do action is enough to make liable 3. Intent and Insanity: insanity does not defeat intent (McGuire v. Almy insane person strikes care worker in the head) 4. Transferred Intent: (Keel v. Hainline boys are engaged in horseplay in a classroom, throwing erasers among other things; a nearby girl is struck in the face and loses use of her eye) a. Prima Facie elements: i) Unlawful ii) Unprivileged iii) Contact with iv) The person of another v) Not originally intended for that person b. Writs Trespass on the case You could only win if actual damages exist transferred intent as applied to trespass on the case: o battery - (1) intent that harmful or offensive contact will result,(2) harmful (any alteration of bodily structure) or offensive (would offend a reasonable sense of dignity) contact to occur, (3) lack of consent o assault - (1) intent to make harmful or offensive contact OR to cause apprehension of imminent harmful or offensive contact, (2) reasonable apprehension of imminent battery, (3) lack of consent o trespass to land - (1) intent to be present on/under/over the land of another, (2) presence on/under/over the land of another, (3) lack of consent o trespass to chattles - (1) intent, (2) minor interference [conversion-major interference] in possessors interest in chattel o false imprisonment - (1) intent to confine, (2) confinement within a boundary w/no apparent reasonable exit, (3) lack of consent, (4) unreasonable force, threat of force or assertion of a legal authority, (5) P must be harmed or have knowledge of confinement Transferred Intent - if you intended to commit on of trespass on the case torts, you are liable for the consequences no matter what occurred. NONE if initial tort was not 1 of 5

B. Battery and Assault

- Battery: the intentional infliction of UNCONSENTED harmful or offensive

bodily contact which is

- Assault: the intentional creation of apprehension of imminent 1. Battery: (Noble v. Louisville Transfer Co. cab driver props up P as she is vomiting next to his cabfound that just intentional touching does not constitute battery): a. ELEMENTS: o intentional infliction of a- intent to cause contact o harmful or offensive- alters the structure or function of a body even if health is not affectedconsider: time and setting social acceptance is it reasonable o contact with o the person of another o without that persons consent b. includes indirect contact by defendant, includes intimately close objects (camera) 2. Assault: Western Union v. Hill worker wanted to sex up a woman who needed her clock fixed) a. ELEMENTS: o an act o intending to create (and which does create) o apprehension of an o imminent battery (contact) b. Creates apprehension no contact necessary, apprehension must be REASONABLE (courts will not protect exaggerated fears), not to be confused with fear or intimidation, apparent ability of contact is enough c. Of an Immediate Harm or Offensive Contact words alone cannot constitute an assault, C. Intentional or Reckless Infliction of Severe Emotional Distress 1. In General: (Harris v. Jones stuttering P is verbally and physically derided by his supervisor) a. ELEMENTS: o Intent or recklessness o Extreme and outrageous conduct (or defendant knows plaintiff is hypersensitive) o Causation o Severe emotional distress b. Extreme and Outrageous atrocious, intolerable, in civilized society; beyond decency c. Emotional distress must be severe and not trivial 2. Abusive language: not sufficient for I.I.E.D. unless exploiting a known sensitivity or coming from those employed in certain professions (Slocum v. Food Fair woman in a grocery store asks for help and employee verbally abuses her) new standard

3. Bystanders and Third Persons: have cause if assailant/batterer knew of their presence or were reasonably certain of presence (Taylor v. Vallelunga girl witnessed the beating of her father but assailants did not know she was there)

D. False Imprisonment

1. ELEMENTS: a. intent to confine b. confinement within fixed boundries c. unlawful force, threat of force, or assertions of legal authority d. lack of consent - P must be aware or suffer harm - No time cutoff - Being forced to follow is just as good as being locked in a room - Modes of confinement: physical barriers, use of force, threat of immediate application

E. Trespass to Land

1. ELEMENTS: a. Intent to be b. Directly or Indirectly present on, under or above land of another c. W/out consent of possessor or privilege - Objects on possessors land may constitute trespass - Mistake of ownership not a defense - Benign motive not a defense - Anything attached to land = land 1. In General: a. Conversion = Major intrusion (so substantial) justifying damages of full present value Legitimate purchase of stolen goods Transfer to 3rd person not entitled Refusal to return in reasonable time Destruction or fundamental alteration b. Tr. to Ch. = Minor intrusion justifying damages proportionate to intrusion c. Factors = duration, good/bad faith, harm, inconvenience

F. Trespass to Chattels or Conversion

III. Defense and Privileges

A. Consent
1. Actual Consent (Consent in Fact) a. Capacity to Consent (Davies v. Butler: -Even though plaintiff originally consented, he was too intoxicated to be considered consenting at time of death) youth sometimes precludes capacity mental deficiency sometimes precludes capacity

b. Manifestation of Consent spoken word affirmative action silent or inaction that indicates consent (a reasonable person would have spoken up if they did not consent in a situation) 2. Apparent Consent -conduct reasonably leads another to believe that consent has been given (OBrien v. Cunard- women and the vaccine on the ship) 3. Implied Consent- given the circumstances, a reasonable person would consent (Kozup v. Georgetown University) emergency medical care 4. Mistake Consent- DeMay v. Roberts (Dr. brought non-Dr into delivery room of woman): a. conduct induced by material mistake is valid where: D must have induced or known of mistake and failed to correct the mistake AND The mistake was sufficiently material to play a role in Plaintiffs decision to consent b. ALSO: Mutual mistake does not invalidate consent Consent is not effective if given under duress

B. Defense of Self and Others

1. Defense of Self (Silas v. Brown: case where the guy in charge of parking lot shot the big guy in the footneeded gun because plaintiff was big and size and drunk) Plaintiff must offer physical violence not merely words Use of force in self defense must be reasonable under circumstances Defendant must not provoke/retaliate Duty to retreat before using forces EXCEPT: o Attacked at home or work o Retreating will bring a greater harm Deadly force only to be used against deadly force Reasonable mistake does not bar defense 2. Defense of Others (Drabek v. Sabley: little boys throwing snowball and then defendant taking one of the boys to the police station) Once the danger of harm to ones self or others has passed, the tortious behavior of the D is no longer justified and the D can be liable for that behavior. The danger is deemed to have passed when it is no longer reasonable for the Ds behavior to be necessary. Reasonable mistake does not qualify for defense

C. Privileges Relating to Property

1. Defense of Property (Katko v. Briney: the oldwarehouse with guns if someone comes in and tries to steal) Reasonable forces Not deadly force (death or serious bodily injury) unless owner is present and feels that she is in deadly danger 2. Recapture of Chattels- property has already been taken; reasonable, nondeadly use of force to recapture PROMPTLY AND FRESH PURSUIT Dispossession must be discovered promptly Wrongdoer must promptly be pursued Unreasonable delay destroys the privilege Mistake destroys privilege unless induced by plaintiff 3. Detention for Investigation Shopkeepers are allowed to reasonably detain for the purpose of investigating a reasonable belief of shoplifting Detention is only for the time necessary for a reasonable investigation Use of force is a privilege when detention is resisted A reasonable mistake does not undermine the privilege

D. Public and Private Necessity

1. Public Necessity (Surocco v. Geary: mayor said to demolish plaintiffs house because of greater fire affecting the community prevent greater harm to public; Wegner v. Milwaukee Mutual: felon was hiding out in plaintiffs home so city destroyed home) Complete privilege to use the degree of force necessary to prevent a greater harm to the public Apparent reasonable necessity (imminent peril) not invalidated by mistake 2. Private Necessity (Vincent v. Lake Erie: ship damaged dock during storm; Ploof v. Putnam: Dock owner tried to prevent boat from landing) nec. to prevent harm to individual or property or 3rd persons person or property. Justified when a lesser harm is invoked to prevent a greater harm; especially where human life is concerned Ordinary prudence and care must be exercised A legal justification, but a PARTIAL defense (does not completely alleviate liability) Resistance from P against exercising the lesser harm alleviates liability (changes from PARTIAL defense to COMPLETE defense)

E. Unlawful Conduct (Barker v. Kallash: kid who made the bomb with the pipes)
1. ELEMENTS: Serious violations that contribute to or cause the injury Recovery is usually denied when claims arise from ones own illegal act

IV. Damages
Nominal damages intentional tort of trespass plaintiff has burden of proof to prove damages

A. In General
1. Introduction (Anderson v. Sears: little girl was burned in fire caused by radiator by defendant if jury awarded more money) a. Maximum Recovery Rule: the trial judge looks at each element of damages and determines the maximum amount a reasonable jury would award based on the evidence presented at trial b. Remittitur: the trial judge gives the choice of new trial based strictly on damages or accepting a reduced amount of damages (if award is in excess of estimated maximum recovery) c. Additur: the trial judge feels that a higher award is justifiably reasonable and offers a new trial if will not accept increased award (only available in State courtsnot Constitutional in Federal courts) 2. Collateral Source Rule (Helfend v. Southern California Rapid Transit District: plaintiff collected money from defendant and insurance company ) a. Award is not reduced by benefits already received from an independent source (insurance pay-out or veterans benefits, for example) o court does not want to deter people from buying insurance b. Does not apply to payments already paid by tortfeasor c. Considerations: plaintiff must pay lawyer fees, abrogation, does not deter the purchase of insurance 3. Avoidable Consequence Rule (Zimmerman v. Ausland: lady did not get surgery for knee that would have prevented further damages, because she did not know it would help her) a. D should not have to pay for Ps own failure to reduce her damages burden is on D to show that P unreasonably failed to mitigate Ps damages

B. Survival and Wrongful Death Actions

1. Survival cause of action survives the death of the decedent (a statute in most, if not all, states now) 2. Wrongful Death cause of action brought for the benefit of those left behind (i.e. family members) when D tortiously kills someone (Gonzalez v. New York City Housing Authority: old lady murdered in projects) a. Pecuniary Damages- anything measurable by money b. Distributees- those who would have been heirs in the absence of a will (spouse, parents, children, grandchildren)

c. Usually damages for loss of companionship are not allowed, although some states (Massachusetts and Texas, for example) do allow recovery for loss of companionship or society

C. Damages for Loss of Earning Capacity

1. Take into account inflation (OShea v. Riverway Towing Co: plaintiff who fell off of boat and became disabled) 2. Taxation of awards a. Non-taxable: compensatory damages for physical injuries and future wages b. Taxable: punitive damages, damages for past wages, some nonphysical damages

D. Punitive Damages

- used to punish defendant

V. Negligence
A. The Concept of Duty
1. Four ELEMENTS: Duty Breach Causation o Factual: did Ds actions in fact cause the damages in question o Proximate: was there a sufficiently close connection between Ds actions and Ps damages. Damages 2. General Duty (Palsgraf v. Long Island: scale fell on lady at rail road station) One owes a duty of reasonable care to those who may be harmed by ones actions if harm is foreseeable (majority held that D had no duty to P) Conduct which foreseeably subjects another to an unreasonable risk of harm B. The Negligence Balancing Test 1. Foreseeability is crucial for, without it, there arises no duty (Nussbaum v. Lacopo: plaintiff was struck by golf ball on his house)

2. Foreseeability: the existenceof some real likelihood of some damage and the likelihood is of such appreciable weight and moment as to induce, or which reasonably should induce, action to avoid it on the part of a person of a reasonably prudent mind (Gulf Refining Co. v. Williams: bunghole broke causing gas to ignite) 3. Judge Learned Hands formula (not really used at trial): a. Burden < Loss x Probability of Harm (United States v. Carroll Towing Co: tow boats without radio) b. Utility x Burden < Loss x Probability of Harm (Chicago, B & Q. R.R. Co. v. Krayenbuhl: boy cut foot off on RR turntable utility added to question) the greater the utility, the less burden D must show SIDEBAR: however, ALL methods of burden must be taken into account (for example, failing to utilize the option of a pad-lock by assuming that the only option is to stop using railroad turntables) c. Judge Hands formula really describes the way a reasonable, objective person would look at things C. The Reasonable Person Standard 1. Considerations the Jury May Take into Account: a. Emergencies (sudden emergency doctrine) (Young v. Clark (Lady crashed into car because she was looking over her shoulder at the time of the accident however the cars infront of her braked because another unknown vehicle was changing lanes) o Sudden or unexpected circumstances o Not arising from Ds own actions o Requires necessary immediate action o Still requires D to respond in the same manner as a reasonably prudent person under the circumstances b. Physical Disabilities o Physical handicaps do not change the standard of care (reasonably prudent person under the same circumstancesfor example, if is blind, what would a reasonably prudent blind person do?) o o Intoxication is no excuse (except in the highly unlikely scenario that the intoxication is involuntary) illness, it is negligent if the sudden incapacitation was reasonably foreseeable

c. Religious Beliefs (Williams v. Bright:Jehovahs Witness who didnt want a blood transfusion): o can be considered by jury? Very iffy case d. Age (Goss v. Allen:17 year old skier injured girl at ski hill): o Age should be considered up to adulthood, where everyone is looked at the same. o Standard for children- what a reasonable person of like age, intelligence, and experience would do. o Held to adult standard when engaged in adult or inherently dangerous activity. e. Mental Deficiencies (Breunig v. American Family Insurance: lady who thought she was Batman in a car and that she could fly): o Permanent Insanity not a defense; the incapacitated is liable Where one of two innocent persons must suffer a loss it should be borne by the one who occasioned it to induce those interested in the estate of the insane person to restrain and control him the fear an insanity defense would lead to false claims of insanity to avoid liability. o Exception for Permanent Insanity see Gould v. American Family Mut. Ins. Co., where a family had done everything reasonable to prevent an institutionalized family member from harming another o Temporary or Sudden Insanity sudden mental incapacity is equivalent in its effect to sudden physical incapacity not liable o Mental Deficiency and Contributory Negligence usually mental incapacity is taken into account because the mental incapacity may preclude the ability to understand the actions undertaken f. Superior Knowledge: In general, if an actor has skills or knowledge that exceed those possessed by most others, these skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a reasonably careful person. o Malpractice suits and Legal malpractice cases e. Gender 2. Judge Made Standards (Helling v. Carey: lady had very uncommon case of Glaucoma at young age):

o o

Reasonable prudence on the part of the professional is expected, but only REASONABLE, it was very uncommon for someone under 40 to have glaucoma. Court says now it is reasonable so give it everyone. The burden was less than the injuries sustained

3. Standards Expressly or Implicitly Created by Statute a. Expressly Legislative Intent written right out b. Implied (shortcut to prove breach of duty instead of using reasonable person standard) interpret it: o Statute was designed to prevent this type of harm o Class of people it is suppose to protect 4. Standards Adopted by Courts Based on Legislation a. Unexcused Violations of Statute: The unexcused violation of a statutory duty is negligence per se and a jury may not relax the duty that one traveler owes under a statute to another. Negligent conduct is not actionable by itself unless there is a showing that such conduct was the cause of the injuries incurred. b. Excused Violations of Statute: o Children usually not held to adult standardactors reasonable incapacity (Ranard v. ONeil) o Excuse based on circumstances, i.e. ice-covered sidewalk in Michigan made walking on the sidewalk not only impractical, but dangerous, defeats negligence or contributory negligence (Zeni v. Anderson) o Excuses based on sudden emergency defeats negligence or contributory negligence o Some statutes permit no excuses (for example, statute prohibiting employment of children under a certain age in occupations involving dangerous machinery) c. Compliance (Montgomery v. Royal Motel: Couple robbed in unlocked hotel room): o Statute is a minimum standard, but there were no special circumstances that would require a higher level of care o Because motel had complied w/ the statute, it met the minimum standard of care. o Compliance is proof that one has met the standard of care, unless there are special circumstances

D. Special Standards of Care - common carriers are subject to special standards of care

V. Proving Negligence
A. Evidence of Custom
1. The T.J Hooper case: barge capsized in storm because tugboats had no radios: a. Court found that there was no custom of having radios at all (they were wrong because the captains actually brought their own radios) b. Jury can find that custom is unreasonable. c. Compliance with a custom it raises inferences of reasonableness, non-compliance raises inferences of non-reasonableness 2. Low v. Park Price Co.: transmission stolen while the car was the shop: a. Garage did what every other garage did, so court did not find them liable b. Plaintiff could show evidence that greater than usual caution is necessary (high crime rates, dangerous area, ect)

B. Circumstantial Evidence
1. Constructive Notice: what they should have known (then they have a duty) a. Goddard v. Boston & M.R. Co.: banana peel on train that had been there for a little while: o Exercise of ordinary care and prudence a person would observe under similar circumstance. o A reasonable railroad would not have someone picking up trash ALL the time. b. Anjou v. Boston Elevated Ry. Co.: old banana peel o Since an employee walked right past it, they are liable o Can prove it by showing the banana peel was old in color and figuration 2. Mode of Operation a. Sheehan v. Roche Brothers Supermarkets, Inc.: plaintiff slipped on grapes in a grocery store o focuses on the nature of the defendants business that gave rise to this type of injury can occur. o A focus on foresee ability

 this piece of fruit was on floor for x hour another approach is the nature of way the defendant runs its business 3. Direct Evidence evidence which tends directly to support a finding of a fact in issue, such as a witness testimony 4. Circumstantial Evidence- evidence not of a disputed fact, but of one or more other facts from which the existence or non existence of the fact in issue may reasonably inferred. (tends to suggest but does not directly state)

C. Res Ipsa Loquitur (circumstantial evidence)

1. In General a. Definition: the thing speaks for itself (basically common sense) if you successfully prove res ipsa then you have successfully proven breach and causation b. Doctrine: facts establishing the special nature of the accident and the Ds relationship to it may justify a jurys decision that D more likely than not was negligent o accident would not have occurred without negligence o instrumentality was under control of the defendant at the time of negligence c. Procedure (can help jury infer negligence but not establish it): o Rebuttal Presumption I: If requirements of the doctrine have been proved by the evidence, jury must find for P unless D introduces evidence (burden of production) to rebut a finding of negligence (D must produce contradictory evidence) burden of proof shifts to defendant o Rebuttal Presumption II: ): D has burden of proving (burden of proof) she was not negligent if P establishes the elements of the doctrine (D must disprove negligence) persuasion o Prima Facie: establishing the elements of res ipsa loquitur normally creates only a prima facie case of negligence (MAJORITY RULE) 2. Control (Mobile Chemical Co. v. Bell) Incident would not normally happen without negligence (breach of duty) o Other possible explanations do not necessarily defeat the res ipsa doctrine

Fact finders may infer negligence, but are not compelled to do so (does not definitively establish negligence) Circumstances were under control of D at the time negligence occurred (causation) o

3. Greater Access of Information (Mahowald v. Minnesota Gas Co: homeowners' house exploded as a result of a natural gas leak) Trial court found exclusive control missing/ lack of extreme control Responsibility- at times is found interchangeable w/ control by defendant 4. Multiple Defendants (Ybarra v. Spangard: patient developed paralysis after surgery; many people involved with surgery so could be pinpoint who was solely responsible) a. Joint Control (usually key issue): o Working in concert (as a team) o with joint control o for mutual benefit b. Independent forces: usually defeats res ipsa (for example, two drivers unknown to each other injure a pedestrian as a result of their accident), because none of the independent forces were in exclusive control of the instrumentalities

VII. Factual Causation

- Can be shown in 3 ways: (1) But-for test (2) Substantial Factor (3) Independently Sufficient Causes

A. The Traditional Rule of Factual Causation

1. But For Test (Sine Qua Non) (Reynolds v. Texas and Pacific Railway Co.: Fat lady fell down unlit stairs at night): Post Hoc ergo Poster Hoc- Just because something happens after something else does not mean it happened because of it. o The unlit stairs were a substantial factor in the fall. (even though cant use but for) o Cant use but, for because of this (accident could have happened even during the day when there was light). o Some courts do not recognize substantial factor.

2. Kramer Service, Inc. v. Wilkins: guy who got a cut on his shoulder and then cancer developed there: Plaintiff would have to show that its more than likely that negligence caused his injury- Dr. said 1 in 100 people would have gotten cancer from cut. Substantial Factor has to be more likely than not

B. Independently Sufficient Causes

- If 2 or more causes concur to bring about an event, and any one of them, operating alone, would have been sufficient to cause the identical result, some other test is needed. 1. Anderson v. Minneapolis, St P. & S.S.M. Ry. Co (property was burnt by either bog fire or independent fire. Bog fire was caused by plaintiff) As long as 1 of causes was a substantial factor (even if you dont know for sure it was cause) it can be seen as the cause. All Ds actions would have been capable of causing damage

C. The Loss of Chance Rule

1. ELEMENTS: There was a certain chance of survival The tortfeasors negligence caused a loss of chance of survival The loss of chance of survival was substantial 2. Some jurisdictions do not acknowledge this rule

D. Modifications of the Traditional Approach

1. Multiple Fault and Alternative Liability a. Under certain circumstances the burden of proof shifts from plaintiff to defendant b. CRITERIA (Summers v. Tice: 2 guys shot in direction of plaintiff and plaintiff was struck by either one of them): o More than 1 defendant o Evidence is more accessible to D then P o All defendants must have acted tortiously c. Policy reasons someone needs to be held liable otherwise plaintiff would have no recourse; different then res ipsa because defendants need to act as a team 2. Market Share Liability and Enterprise Liability a. Market Share Elements (Sindell v. Abbott Laboratories: Lady tired to sue all companies that made D.E.S.):

D is liable to P for its share of the market Unless D can show that its product did not cause the damages (not in every forum) o Product must be fungible o Industry wide standards contradict joint control by manufacturers how much damages can be collected? Proportional to market share b. National Market Share (I DONT KNOW) o o E. Liability Based on Concerted Action (vicarious liability, such as respondent superior or agency) 1. Civil conspiracy (concerted action by agreement; Herman v. Wesgate: guy was thrown off boat at bachelor party and got spinal injury- wanted to sue everyone) There is no duty to act, intervene, or stop others from wrongful acts unless you are part of the cause.: a. An agreement between two or more persons b. ..to participate in an unlawful act, or a lawful act in an unlawful manner c..an injury caused by an unlawful overt act performed by one of the parties to the agreement d which overt act was done pursuant to and in furtherance of the common scheme. 2. Aiding and Abetting ((concerted action by substantial assistance, such as by encouragement or advice; Halberstam v. Welch: mob guy murdered someone and his girlfriend knew he was a criminal): a.The party whom the defendant aids must perform a wrongful act that causes an injury b. ..the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance c..the defendant must knowingly and substantially assist the principal violation.

VIII. Proximate Causation

A. Introduction
1. Policy where does the chain of liability stop? For example, Ds negligence causes a minor injury to P; on the way to the hospital, the ambulance is hit by a train, resulting in major injuries to P; but for Ds negligence, P would not

have been injured by the train; however, should D be held liable for the injuries arising from the train wreck? 2. Proximate Causation Overview: a. Direct Causation Polemis case: if it foreseeable it will cause some damage then the defendant will result from ALL the resulting damage that occurs focuses on the directness of the consequence. b. Foreseeability Wagon Mound I case: oil on water ignited, water burned, and destroying wharf: o If defendant cannot foresee harm (no one could have seen it coming), they are not liable o Modified foreseeability: Wagon Mound II case: boat owners employees were welding and caused fire Even if outcome is really high you might be found as proximate cause. Modified foreseeability cost benefit analysis. Cost of not welding was less than damages c. Results Within Risk (followed by majority of foums) d. Not too remote or tenuous 3. Direct Causation: Ds negligence is the direct cause of Ps injuries (versus foreseeability, where it was foreseeable that Ds negligence might cause Ps injuries) 4. The broad outlines of harm must be reasonably foreseeable (see Wagon Mound I, p 403, effect must be reasonably foreseeable and direct result of cause, and Wagon Mound II, p 406, effect must be moderately foreseeable) 5. Foreseeability of What: a. D does not have to foresee precisely everything that might happen (Palsgraf) b. P must fall within the class of persons endangered by Ds conduct (Palsgraf) c. The broad outlines of the harm must be foreseeable (Merhi: picnic and one old police officer) d. Specific details/manner of occurrence do not have to be foreseeable (Merhi) e. Remote possibility of harm may be sufficient to: o Establish duty (Gulf Refining Co. v. Williams)

Establish proximate causation (if the gravity of the threatened harm is great and the cost of adequate precautions is minimal; Wagon Mound II) f. The full extent of the resulting harm need not be foreseeable if it is the same general anticipated harm (Kinsman I: the boat and the dam causing back up for the whole town) o

B. Results Within the Risk (of what could have been reasonably expected)
1. In General a. Line between remotely possible and foreseeable: no person can be expected to guard against harm from events which areso unlikely to occur that the riskwould commonly be disregarded. (Di Ponzio v. Riordan: guy didnt turn his engine off while pumping gas and it went out of park and smooshed him) the injury was not in the category of risk b. Statutory Violations: o Within intended purpose of statute o Class intended to be protected c. Negligent Medical Treatment: original tortfeasor is liable for damages arising from negligence AS WELL AS for damages resulting from medical negligence that arose from the treatment (reasoning: P would not have required treatment but for original tortfeasors negligence EXCEPTION: P does not go for treatment or the malpractice is so extraordinary) 2. Policy and Proximate Cause a. If you are injured during treatment for tort, person who committed tort to you is liable for it. Except extraordinary medical misconduct OR if you dont pursue med attn. b. A result that would be in the risk is being injured more after going to hospital, after P hurt him 3. The Eggshell Doctrine: P is taken as is; once P suffers any foreseeable physical injury, even a trivial one, D is liable for all physical consequences, even unforeseeable injuries, so long as they do not stem from superseding causes

C. Intervening and Superseding Causes

-Superseding Cause: works to break chain of intervening causes - Intervening Cause: occurs after negligence and aids in causing injury 1. Definitions:

a. Intervening Cause: anything that happens after Ds negligence, and which participates along with Ds negligence in causing injury to P o Not superseding if: Intervening cause is foreseeable OR General nature of resulting harm is foreseeable Superseding if:

Situation has returned to normal Ds action did not increase risk of intervening cause occurring Intervening cause is unforeseeable criminal or intentionally tortuous act b. Superseding Cause: a type of force that breaks the chain of proximate causation between the Ds negligence and Ps harm and absolves Ds liability 2. Foreseeable End Results (Derdiarian v. Felix Contracting Corp. (Man drives car into another guy during a seizure and he gets boiling enamel all over himself): a. Contractor did not have barriers up b. General nature of resulting harm is foreseeable, then still liable under intervening cause. 3. Foreseeable Intervening Acts 4. Special Applications of the Rules on Intervening and Superseding Causes a. Rescuers (Alamaturo v. Milner Hotel, Inc.: man died trying to save people from burning hotel) o As a matter of law- it is foreseeable that people will try to rescue others in an emergency o Standard of care: not to act rashly or imprudently (no comparative/contributory negligence unless actions are rash/imprudent) o Negligent tortfeasor will be liable to rescuer for damages

IX. Limited Duty: Failure to Act

Our duty to others is limited to those who harm is foreseeable, in a special relationship

A. Traditional Rule of No Liability for Nonfeasance

1. Failure to Act or Failure to Rescue: no duty to render assistance to another who is in peril, no matter how easily aid might be furnished, and regardless of whether the failure to act is inadvertent or intentional a. Johnson v. Minnesota: Inmate goes on crime spree instead of going to halfway house o He had no special relationship w/ halfway house because he never showed up o No duty to act unless special relationship.

B. Qualifications and Exceptions

1. Duties Based on Defendants Relationship to the Victim or the Injurer a. Where P was guest of D b. Where P was a student of D, a school c. School personnel may extend beyond class day d. Warden has duty of reasonable care to prevent harm to a prisoner e. Close family members f. Where one parent knows or suspects that the other parent is sexually abusing their child g. Companions on a social venture h. Landlords duty to provide adequate security in common areas (Kline v. 1500 Massachusetts Ave. Apartment Corp., p 464) i. Condominium associations have same duty as landlords j. Employer has a common-law duty to provide employees with a reasonably safe workplace k. Parent may have a duty to control a child i. Spouse who has actual knowledge or special reason to know that her spouse is engaging in sexually abusive behavior against a particular person has a duty of care to take reasonable steps to prevent or warn of the harm 2. Liability Based on a Defendants Involvement in an Accident (La Raia v. Superior Court: LL used really strong pesticide and lady got sick): a. If you have something to do w/ creating harm, you must do something to prevent further. b. Exception to no duty to act. 3. Voluntary Assumed Duties (Coffee v. McDonnell-Douglas Corp: guy went through physical and Dr.s didnt notice cancer in blood test.) a. If employer assumes duty of medical care, they must do it responsibly b. If you start to act, you must complete the act it doesnt count that you left

someone better off than they were. 4. Statutes Related to Rescue no duty unless local law says so. (Dean Soloman has heart attack) 5. Negligent Entrustment- Giving someone a chattel when the supplier knows the recipient of the chattel is likely to cause harm the case of giving drunk daughter the car

X. Limited Duty: Premises Liability

A. The Tradition Categories: Trespassers, Licensees, Invitees
Trespasser W/out Consent of Privilege Licensee w/ consent (for own purpose) - family members - Social Guests Duty to refrain from wanton, willfull, and reckless acts Duty to warn of known hidden hazards Duty to exercise care in conduct of active operations Treated as Licensee 1. Child/Dangerous artificial condition Invitee w/ consent (for possessors purpose) - Business Invitee - Public Invitee Duty to inspect and make safe (Reasonable Care)

2. Discovered trespassers 3. Constant (known) trespassers

1. Trespassers a. Definition: persons on land without consent b. Duties to trespassers are limited (Bonney v. Canadian National Railway Co.: boy fell off RR bridge and died police officer dies while trying to save him) o Refrain from wanton, willful, or reckless acts o But in cases of discovered trespassers or constant trespass (licensee level), a duty arises to take reasonable care for that persons safety, including a duty to warn the trespasser of concealed artificial conditions which create danger c. The Attractive-Nuisance Doctrine where the owner maintains a device or machinery on his premises of such an unusually attractive nature as to be especially alluring to children of tender years, he thereby impliedly invites such children to come upon his premises, and, by reason of such invitation, they are relieved from being classed as trespassers, but are in the attitude of being rightfully on the premises: o Attraction: trespass can be anticipated (foreseeability) o The place where the condition was maintained was one upon which the possessor knew or should have known that small children would likely frequent the place and play about it; o The condition was one of which the possessor knew, or should have known, involved an unreasonable risk of death or serious bodily harm to such children; o The child, because of its tender years, did not realize the risk involved; and o The utility, if any, to the possessor of eliminating the danger was slight as compared to the probability of injury resulting therefrom o Vacated parks can be an example

2. Licensees and Invitees a. Invitee: owed the ordinary duty of reasonable care (refraining from actively endangering; warn of hidden hazards that are known to the possessor); duty to inspect or repair Campbell v. Weathers (Guy is injured in bathroom at lunch restaurant he frequents---- he wasnt eating): o He is an invitee because its a business and the bathroom was not expressly private o If you have a business open to the public, bystanders and buyers are treated the same o Permission to enter can be limited in scope- to places and times where it is appropriate that the public is there. Public invitee those who enter as members of the public for a purpose for which the land is held open to the public Business invitee those who enter for a purpose connected with the business of the possessor (or possessors interest or benefit) b. Licensee: owed the ordinary duty of reasonable care (see invitee); NO duty to inspect for and repair hazards: o Presence is for own purposes (possessor has no interest) o Members of the possessors household o Social guests (Carter v. Kinney, p 517) o Salespersons and loiterers are considered licensees unless the possessor has taken affirmative steps to notify them to the contrary

B. Rejection and Reinstatement of the Traditional Approach (the California exception) C. Lessors and Lessees a. Mathews v. Amberwood Associates Ltd. Partnership, Inc. (Pitbull
killed baby): o LL was negligent because he had a no pet rule and he knew there was a dog and it was dangerous This puts LLs in a spot to uphold their policies It may give rise to strict liability LL has no duty to tenants guests - EXCEPT: If she has retained control but does not exercise care If they say they will repair something and dont

o o

 Violations that violate statutory regulations

XI. Limited Duty: Negligent Infliction of Emotional Distress

Intentional
Intentional, extreme or outrageous conduct

Negligent
Physical Impact- must have physical Impact to bring suit (prob- can have mental suffering w/out impact (traditional rule) Physical Consequences You have a physical reaction to emotional distress Objective/ person of ordinary sanities

Causation Severe Distress

Collecting damages for emotional distress assault, NIED, physical injury/add-on, outrage/severe infliction of emotional distress

A. Serious and Genuine Harm (Lewis v. Westinghouse Electric Corporation:

claustrophobic lady was stuck in elevator) create emotional distress to a person of ordinary sensibilities 1. Is the harm genuine (not fabricated; serious, not trivial)? 2. Is the scope of liability sufficiently limited? 3. Objective/Ordinary Sensibilities Rule whether the conduct was sufficient to inflict emotional distress on a person with ordinary sensibilities (counter to eggshell skull doctrine) 4. Physical Impact Rule emotional harm must be accompanied by some sort of physical trauma 5. Physical Consequences Rule physical consequences must derive from the physical impact 6. Prima Facie elements: a. Unreasonable conduct b. Causation c. Severe emotional distress

B. Some Special Cases (Johnson v. New York: daughter got telegram that her
mother was dead and it was the wrong person) 1. Limited to the recipients of information/notice and those within the orbit of danger 2. Mishandling the corpse of a close relative 3. Negligently informing of the death of a close relative

C. Distress Occasioned by Harm to Another

1. The Zone of Danger Rule (being dropped in many forums) a. bystander is within physical zone of danger b. bystander feared for his or her own safety c. bystander suffered physically manifested mental or physical injuries as a result of their fear 2. Foreseeability (adopted by more states) a. Plaintiff was located near the scene of the accident b. P directly and contemporaneously, or very soon after, observed the accident (not indirectly informed) c. P and victim must be closely related (marital or intimate family member) d. Victim must have been killed or seriously injured e. Physical consequences are not necessary, but severe mental consequences are requisite 3. Damages: NIED damages = emotional distress death Loss of consortium damages= loss of companionship and enjoyment of relationship and services provided Wrongful death damages= pecuniary damages

XII: Limited Duty: Alcohol Related Injuries

- Common law rule: traditionally, sellers and donors of alcoholic beverages were not liable to third persons for injuries caused by the drunken behavior today it is a complicated field that varies from state to state.

A. Liability under Dram Shop Acts

1. Dram shop acts: makes some sellers of alcoholic beverages liable to those injured by the buyers intoxication. dram shops are commercial entities. 2. Applies only to real victims, not those who are drunk 3. Varies state to state

B. Liability of Social Hosts

1. Common Law (Kelly v. Gwinell: Kelly was seriously injured by Gwinells drunk driving host did not stop him from driving, encouraged it) a. Under traditional common law Hosts are not liable because they had no duty But hosts had reasonable foreseeablity because it was foreseeable that he would injure someone No Proximate Cause But there could have been several proximate causes o Why Common Law? So blame doesnt go to 3rd party Because the DRIVER was the one who did it b. Damages are foreseeable where: o Social host directly serves a guest o Continues to serve the guest when the guest is visibly intoxicated o Knows that the guest will soon drive home

C. Other Theories of Liability

1. Negligent entrustment knowingly entrusting a vehicle to someone who is likely to drive intoxicated can confer liability 2. Assumed Duty voluntarily assuming a duty of responsibility by action (owner of a bar assumes a duty of responsibility by inducing a patron to drink by taking her keys and promising to provide a ride) 3. Duty to Invitees duty to protect patrons if fight breaks out (except where sudden and unforeseeable) 4. Public Duty municipality may be liable for the negligent failure of its police officers to remove from the highway an intoxicated motorist who subsequently causes injuries to other travelers 5. Intentional Tort recipient of alcohol may be able to state a claim for battery

6. Respondeat Superior employer can be held liable if intoxication occurred in the course and scope of employment (see McNair v. Lend Lease Trucks, p 587, where a truck driver stopped on his route to drink alcohol for three hours and caused an accident when he resumed his route); and also if: a. Employer exercises control over an employee b. Employee is incapacitated c. A reasonably prudent employer would act to prevent employee from causing an unreasonable risk of harm to others

XIII. Strict Liability

A. Generally
1. Defendants are sometimes held liable for injuries despite their not having been at fault in any sense. 2. Policy basis: a. It achieves more effective deterrence than a negligence standard b. Increases the likelihood that injured persons will be compensated c. It may be effectively employed as a device for spreading losses or shifting losses to deeper pockets d. It can be used to ensure that persons who benefit from dangerous activities bear the burden of resulting losses e. It is easier to apply than the negligence standard 3. Categories of Strict Liability: a. Workers comp liability of employer to injured employees b. Respondeat superior liability of employer to those injured by the torts of their employees c. Dangerous animals liability for harm done by certain kinds of animals kept by D d. Traditional strict liability liability for conducting abnormally dangerous activities B. Employer and Employee 1. Workers Compensation- defined severally among the states by statute (eliminates litigation) intentional torts are not covered under workers comp. a. Requirements (Smith v. Lannert: supervisor spanked employee to discipline her) o Tortfeasor must be an employee of the employer (independent contractors are deemed to not be under the control of the employer)

Tortfeasor must be doing normal activities within the scope of their employment b. Does not necessarily apply when an employer has conferred authority upon the employee (as in John R. v. Oakland Unified School District: teacher molested child; although in John R. the employee was deemed mainly to have acted in his own interests) o Where did the burden (of preventing this kind of activity) actually lie? o Raping the student was not considered to be within the scope of the teachers employment c. Scopes of Employment when: o Conduct is the kind he is employed to perform o Conduct occurs substantially within the authorized time and space limits o Conduct is actuated, at least in part, by a purpose to serve the master/employer o Force is used by the servant/employee against another and the force is not unexpectable by the master/employer o d. In some states employer can seek indemnification e. Vicarious Liability of Partners partners can be held liable where one partner is negligent and is acting under the authority of the partnership f. The worse the tort, the less chance of holding the employer liable under respondeat superior

XIV. Products Liability

A. Historical Background
1. From no liability to negligence 2. From negligence to strict liability (Escola v. Coca Cola Bottling Co. of Fresno: coke bottle exploded on waitress) a. Safety of the product in normal and proper use b. No extension to injuries that cannot be traced to the product as it reached the market c. Restatement 2d of Torts 402A o One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his

property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if The seller is engaged in the business of selling such a product, and It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. The rule above applies although

The seller has exercised all possible care in the preparation and sale of his product, and The user or consumer has not bought the product from or entered into any contractual relation with the seller d. Forums are divided on whether sellers of used products can be held strictly liable e. Sellers of services are not usually held strictly liable

B. Manufacturing and Design Defects (negligence finds its way back into
products liability in 3d Restatement) 1. P must show she was using the product as the manufacturer intended 2. Manufacturing Defect the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product 3. Design Defect foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor o In some cases, such as when a new car explodes, P can invoke res ipsa loquitur instead of establishing a reasonable alternative design o A change in design may not be a reasonable alternative if it impairs the utility of the product (Wilson v. Piper Aircraft Corp., p 680) 4. Barker v. Lull: lumber falling machine where burden of proving that a design is reasonable shifts to D is a minority view

C. Failure to Warn (Goins v. Clorox Co.: ladies mixing cleaners and it exploding)
1. Warning Inadequacies o Fail to adequately specify risks o Fail to communicate properly 2. Failure to warn must be foreseeable

3. If it complies with federal standards that is enough. However plaintiff can argue that the federal government did not address the issue enough: o Any expert can come in and present scientifically valid evidence in attempts to persuade court to contradict generally accepted scientific beliefs. To prevent summary judgment. 4. Damage to property- No remedy is available if product ruins itself under tort law.

D. Defenses
1. State of the Art Defense: The manufacturer did the best that they could at the time, product was new and ramifications were more severe than they thought; given technology, skill, and info. 2. Mis-use and Other Plaintiff Conduct a. Plaintiff misuse- Burden usually goes to plaintiff to show they were using product as it was supposed to be used may be able to use assumption of the risk, cant use contributory negligence. b. User modification- A manufacturer has no duty to prevent modifications UNLESS these modifications are foreseeable. 3. Preemption by Federal Law- When there is a clear indication that Congress meant to pre-empt state law federal law pre-empts. Federal standards set out in statutes are not found to pre-empt state tort law unless it is found to have Congressional intent to do so.

E. Policy Issues
1. Liability and Safety 2. Product-Category Liability

XV. Defenses Based on Plaintiffs Conduct

A. Traditional Contributory Negligence
1. In General:- test for determining contributory negligence: failure to exercise reasonable care for your own safety and defendant has to show the plaintiffs failure to exercise reasonable care was the factual and proximate cause of the plaintiffs harm. 2. Imputed contributory negligence (Western Union Telegraph Co. v. Hoffman : boy broke arm & Dr. didnt get telegram for days):

a. P is not barred from recovery by the negligent act or omission of a third person b. Contributory Negligence unreasonable action on part of plaintiff and proximate and factual cause of the incident c. Would bar recovery COMPLETELY traditionally 3. Last Clear Chance Doctrine (p 728) a. P will not be barred from recovery under contributory negligence if D had the last chance to avoid the harm b. D must have sufficient time and ability to avoid accident c. Does not apply in forums that have adopted comparative negligence B. Comparative Negligence (Hilen v. Hayes: lady was in car w/ Dr. Driver and crashed..driver was intoxicated 1. Pure Comparative Negligence: P recovers whatever percentage of damages correspond to percentage of Ds fault a. Driver A $100k damages; 49% at fault; collects $51k from B; total loss of $49k b. Driver B $100k damages; 51% at fault; pays $51k to A; total loss of $151k 2. Modified Comparative Negligence: Ds negligence is not equal to or greater than Ps negligence (less than or equal to 50%) (plaintiff cannot collect then public policy reasons of someone who is more at fault) a. Driver A - $100k damages; 49% at fault; pays $49k to B; collects $51k from B; total loss of $98k b. Driver B - $100k damages; 51% at fault; pays $51k to A; collects $49k from A; total loss of $102k

C. Assumption of Risk- assumption of risk is matter of knowledge of the danger

and intelligent acquiescence in it, and that to the extent that this could be found recovery will be denied 1. Express: if a plaintiff agrees with the defendant that the plaintiff is not going to hold the defendant liable then the court will hold that as a waiver of liability barred from recovering 2. Primary Implied: By participating in activity at all, you assume some of the risk (No Duty Rule) barred from recovering

3. Secondary Implied: risk is created by Ds negligence and that P voluntarily encountered and embraced the risk this about being a risktaker/dare devil while contributory negligence is about the plaintiff being reckless and careless) partial bar to collection a. Subjectively appreciated the risk b. Voluntarily confronted the risk c. Relieves liability Coleman v. Ramada Hotel Operating Co.: lady sprained ankle at company picnic primary implied assumption of risk Gross v. Sweet: guy hurt himself parachuting after signing waiver Court said he is not barred from suing because release did not include negligence claims When Express Assumption of the Risk is void because of Public Policy: i. Disparity in bargaining power ii. Monopoly iii. Whether there is an alternative Turcotte v. Fell: jockey was injured in race court found that these are the kinds of risks associated with the sport Primary Implied Assumption of the Risk 1. Is a NO DUTY rule, so it hasnt been absorbed into comparative negligence 2. Things that are part and parcile to the activity 4. Firefighters Rule: these rescuers cannot recover from someone who negligently caused a fire or emergency. a. EXCEPTIONS: When its an unexpected/unforeseeable in the line of work When its a intentional or reckless wrongdoer

D. Comparative Fault
- compares plaintiffs negligence and second implied assumption of risk conduct the defendants negligent conduct (wider scope of comparison) 1. In products liability: a. Mfg cannot avoid strict products liability merely because P contributed to his own injury b. Mfg cannot assume that the user of a defective product will be blameworthy 2. Negligence by P is a defense in actions based on strict liability

3. Ps unreasonable conduct should mitigate Ds liability for recklessly inflicted harm (most forums) mitigates compensatory damages not punitive 4. Negligence by P is not usually a defense in actions based on intentional torts

XVI. Joint Tortfeasors

- remember that P is not required to sue all joint tortfeasors