TORTS I

TABLE OF CONTENTS [1.0] Introduction [2.0] Intentional Torts [2.1] Intent [2.2] Battery [2.3] Assault [2.4] False Imprisonment [2.5] Intentional Infliction of Emotional Distress [2.6] Trespass to Land [2.7] Trespass to Chattel [2.8] Conversion [3.0] Defenses & Privileges to Intentional Torts [3.1] Consent [3.2] Self-Defense [3.3] Defense of Property [3.4] Necessity [4.0] Negligence

TORTS I
OUTLINE

1.0 Introduction
Tort - A collection of legal principles that determines when one persons conduct affects another persons interest, and entitles the other person to legal remedy, usually in the form of damages The courts have developed a complex network of liability rules for determining the allocation of losses in cases of unintended harm. Categories of tort cases: 1. Intentional torts 2. Negligent torts 3. Strict liability 4. Special (miscellaneous) areas of tort (e.g., defamation, privacy, private nuisance, misrepresentation)

2.0 Intentional Torts

2.1 INTENT [A] Overview and Definition Intentional torts share the requirement that the defendant intentionally commit the elements that define the tort. Most contemporary courts adhere to the Restatement definition, which defines intent to mean either that the defendant desires or is substantially certain the elements of the tort will occur. [See Restatement 3d 1; Garratt v. Dailey, 279 P.2d 1091 (Wash. 1955).] Restatement Third: Liability for Physical Harm 1: 1. the person acts with the purpose of producing the consequence, or 2. the person acts knowing that the consequence is substantially certain to result 3. Transferred Intent (person intends to contact A, but contacts B) actually this refers to the transfer of intent from one intentional tort to the next (e.g., intending to commit an assault, but actually committing a battery; the courts will transfer the intent from assault to satisfy the battery case). Applies to five torts (battery, assault, false imprisonment, trespass to chattel, and trespass to land) All you need is one of these to have negligence Notes: Vosburt v. Putney (never read). Thin-skulled plaintiff rule (eggshell plaintiff rule): requires the defendant to take his plaintiff as he finds him, even if that means that the defendant must compensate the plaintiff for harm an ordinary person would not have suffered. Intent and insanity. Insanity does not establish a defense to liability policy: to impose liability on an insane person rather than leaving the loss on the innocent victim. Williams v. Kearbey (never read) Infancy is not a defense against intentional tort either. Although if a defendant is insane or an infant, there is a great possibility that they will not possess the requisite knowledge to prove intent.

2.2 BATTERY [A] Overview and Definition Battery occurs when the defendants acts intentionally cause either harmful or offensive contact with the victims person. [See Restatement 13, 16, 18; see Wishnatsky v. Huey] Accidental contact, by contrast, must be analyzed under negligence or strict liability. Elements for Battery: (1) Volitional conduct intending to: (2) cause contact, and intending (meaning purposely or knowingly) that such contact be (3) harmful or offensive, or intending contact that society deems impermissible, and (4) there is causation between intentional conduct and result, and (5) absence of consent [B] Intent Required Intent to cause either (1) harmful or (2) offensive contact [R2d 18] >> Garratt v. Dailey, 46 Wash.2d 197, 197 P.2d 1091 (Wash. 1955) see case brief >> Picard v. Barry Pontiac-Buick, Inc. (see case brief) issue involved assault and battery and damages awarded. Important issues: intent to injure not required, if defendant willfully sets in motion a force in its ordinary course causes the injury. Also, items grasped in the hand or attached in some way someone is construed as a part of the person and therefore under statutory protection. [C] Offensive Contact [Restatement 2d of Torts 19] 19 What Constitutes Offensive Contact: A bodily contact is offensive if it offends a reasonable sense of personal dignity. >> Wishnatsky v. Huey (see case brief) - issue involved battery. Battery requires (1) intent to cause harm and (2) offensive contact be made. Even trivial offensive contact can constitute a battery. Court held that a battery had not occurred, because Wishnatsky was unduly sensitive as to his personal dignity. 2.3 ASSAULT [A] Overview and Definition Assault is committed if the defendant intentionally creates in the plaintiff a well-ground apprehension of imminent, unconsented, bodily contact. Elements of Assault: 1. Intent (purpose or knowledge) to cause apprehension of contact; 2. Present apparent ability to cause contact; 3. A threatening gesture by the defendant (at least in most instances); and 4. Well-grounded apprehension of imminent, unconsented contact There is no assault if the plaintiff learns only long after the fact that the defendant had previously pointed a gun at the plaintiffs back.

Verbal qualifications may prevent what otherwise would appear to be threatening gestures, from being grounds for assault. 2.4 FALSE IMPRISONMENT [A] Overview and Definition In false imprisonment, the defendant unlawfully acts to intentionally cause confinement or restraint of the victim within a bounded area. Accidental confinement is not included and must be addressed under negligence or strict liability. [See Restatement 35-45A.] R2d 35 False Imprisonment: (1) An actor is subject to liability to another for false imprisonment if (a) he acts intending to confine the other or a third person within boundaries fixed by the actor, and (b) his act directly or indirectly results in such a confinement of the other, and (c) the other is conscious of the confinement or is harmed by it. (2) An act which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for a merely transitory or otherwise harmless confinement, although the act involves an unreasonable risk of imposing it and therefore would be negligent or reckless if the risk threatened bodily harm. Elements for False Imprisonment: (1) Intent (purpose or knowledge) to confine; (2) unconsented detention within boundaries fixed by the defendant; (3) apparent lack of a reasonable exit; (4) use of unreasonable force, threat of force, or assertion of legal authority by the defendant; and (5) harm to the plaintiff or knowledge by the plaintiff of the confinement [B] Bounded Area The victim must be confined within an area bounded in all directions [R2d 36]. The bounded area can be, however, a large area, even an entire city. Although, the Taiwanese governments refusing to permit plaintiff to leave the country did not constitute false imprisonment too great an area. [C] Means of Confinement or Restraint For false imprisonment to exist, the victim must be confined or restrained. The confinement may be accomplished by (1) physical barriers [R2d 38]; (2) force or threat of immediate force against the victim, the victim's family or others in her immediate presence, or the victim's property [R2d 39, 40]; (3) omission where the defendant has a legal duty to act; or (4) improper assertion of legal authority [R2d 41]. The improper assertion of legal authority can unlawfully restrain a victim. This form of false imprisonment constitutes false arrest. The victim must submit to the arrest for it to constitute imprisonment. The arrest is improper if the actor imposing confinement is not privileged under the circumstances. [See Restatement 41] [D] Consciousness of Confinement False imprisonment requires that the victim be conscious of the confinement at the time of imprisonment. The Restatement 42 modifies this requirement and would find liability for false

imprisonment, even when the victim is not aware of the confinement, if the victim is harmed by the confinement. Contrary to the Restatement, some authorities hold a child can be subject to false imprisonment even if the child was neither aware of the confinement nor harmed. >> Lopez v. Winchells Donut House (see case brief) issue involved false imprisonment. Discusses the type of actions brining about false imprisonment court held that moral pressure to not ruin ones reputation is not a compelling force resulting in false imprisonment 2.5 INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS [A] Definition Intentional infliction of mental distress exists when the defendant, by extreme and outrageous conduct, intentionally or recklessly causes the victim severe mental distress. Most states no longer require that the victim suffer physical manifestations of the mental distress. Elements: 1. Intent (purpose or knowledge) to cause emotional distress or recklessness with respect thereto; 2. The conduct is outrageous and intolerable in that it offends against the generally accepted standards of decency and morality; (extreme and outrageous conduct) 3. There is a causal connection between the conduct and the emotional distress; and 4. The emotional distress was severe The Restatement defines extreme and outrageous conduct as behavior which is beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community. [Restatement 46 cmt. d.] The vulnerability of the victim and the relationship of the defendant to the victim can be critical. R2d 46 Outrageous Conduct Causing Severe Emotional Distress: (1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. (2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress (a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or (b) to any other person who is present at the time, if such distress results in bodily harm. >> Womack v. Eldridge (see case brief) involves the issue of whether there can be liability for emotional distress, absent physical injury? Court held that there could be. - a picture was taken of the plaintiff by a private investigator and his picture was used in a child molestation case - Is one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another subject to liability for such emotional distress absent and bodily injury? SC of VA held that it does (overturned trial court) >> McDermott v. Reynolds (see case brief) involved the issue of whether plaintiffs cause of action is barred by a VA statute barring causes of action dealing with adulterous relationship, despite plaintiffs claim that the issue was one of emotional distress. VA SC held that the

legislature intended to exclude adulterous relationship from civil liability altogether and therefore barred plaintiffs action. [B] Constitutional Limits >> Hustler Magazine, Inc. v. Falwell (see case brief) In Hustler Magazine v. Falwell, 485 U.S. 46 (1988), the United States Supreme Court held unconstitutional the determination that a parody advertisement in Hustler magazine could result in liability under intentional infliction of emotional distress. The majority held that a public figure could not recover without proving such statements were made with New York Times malice, i.e., with knowledge or reckless disregard toward the truth or falsity of the assertion. [See New York Times v. Sullivan, 376 U.S. 254 (1964).] As the parody was never asserted to be truthful, and as it would not reasonably be interpreted as truthful by an ordinary reader, the court found there could be no liability. 2.6 TRESPASS TO LAND Elements: (a) Entry to land in the possession of another or cause a thing or another to enter the land (b) Intentional (intent to enter land; no requirement for that defendant intended to trespass) (c) Non-consent >> Baker v. Shymkiv (see case brief) - case involved defendants digging a trench across plaintiffs driveway and then arguing with plaintiffs husband, which resulted in husband having a heart attack and dying. Three fundamental rules of trespass can be derived from this case: (1) one is subject to liability to another for trespass, irrespective of whether he causes harm(R2d 158) interest is to protect exclusive possession. Trespass to land observes a simple technical trespass (2) one is subject to any harm done while trespassing, regardless of whether the act was accidental (Rule of Extended Liability) (3) Proximate cause (foreseeability) is not needed (once youve crossed the line) With respect to property tort we assume no consent (defense must bring up issue) as opposed to other intentional torts (where plaintiff must raise issue) 2.7 TRESPASS TO CHATTEL [A] Overview Trespass to chattel and conversion are two separate intentional torts that protect personal property from wrongful interference. The two torts, which overlap in part, are derived from different historical origins. In many, but not all instances, both torts may be applicable. [B] Definition of Trespass to Chattel Trespass to chattel is the intentional interference with the right of possession of personal property. The defendant's acts must intentionally damage the chattel, deprive the possessor of its use for a substantial period of time, or totally dispossess the chattel from the victim. [See Restatement 217, 218.]

Trespass to chattel does not require that the defendant act in bad faith or intend to interfere with the rights of others. It is sufficient that the actor intends to damage or possess a chattel which in fact is properly possessed by another. R2d 217 Ways of Committing Trespass to Chattel A trespass to a chattel may be committed by intentionally (a) dispossessing another of the chattel, or (b) using or intermeddling with a chattel in the possession of another. R2d 218 Liability to Person in Possession One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if, (a) he dispossesses the other of the chattel, or (b) the chattel is impaired as to its condition, quality, or value, or (c) the possessor is deprived of the use of the chattel for a substantial time, or (d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest. Intel case - Employee sending out e-mails to thousands of employees and is sued by Intel for trespass to chattel: California SC says trespass to chattel fails, because it failed to prove injury to personal property (does not encompass electronic devices that does not impair the use of the system). Contrast Intel with the case regarding spyware which infected computers was upheld as a trespass to chattel (harm from pop-ups, waste of time and loss of productivity) 2.8 CONVERSION [A] Definition of Conversion The Restatement 222A defines conversion as an intentional exercise of dominion and control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel. [See, e.g., Moore v. Regents of the University of California, 793 P.2d 479 (Cal. 1990).] Only very serious harm to the property or other serious interference with the right of control constitutes conversion. Damage or interference which is less serious may still constitute trespass to chattel. Purchasing stolen property, even if the purchaser was acting in good faith and was not aware the seller did not have title, constitutes conversion by both the seller and innocent buyer. R2d 222A What Constitutes Conversion (1) Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel. (2) In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important: (a) the extent and duration of the actor's exercise of dominion or control; (b) the actor's intent to assert a right in fact inconsistent with the other's right of control;

(c) the actor's good faith; (d) the extent and duration of the resulting interference with the other's right of control; (e) the harm done to the chattel; (f) the inconvenience and expense caused to the other.

3.0 Defenses & Privileges to Intentional Torts

Privileges (R2d 10): Even if the defendants conduct would otherwise be actionable, were not going to impose liability here, because there are competing interests (based on circumstance) we refer to it as a privileged occasion R2d 10 Privilege: (1) The word "privilege" is used throughout the Restatement of this Subject to denote the fact that conduct which, under ordinary circumstances, would subject the actor to liability, under particular circumstances does not subject him to such liability. (2) A privilege may be based upon (a) the consent of the other affected by the actor's conduct, or (b) the fact that its exercise is necessary for the protection of some interest of the actor or of the public which is of such importance as to justify the harm caused or threatened by its exercise, or (c) the fact that the actor is performing a function for the proper performance of which freedom of action is essential. 3.1 CONSENT [A] Overview Consent is a defense to intentional tort liability. If the asserted victim gives permission, what would otherwise be tortious is instead privileged. [See Restatement 892.] Consent checklist (where we may join issue with consent) These are not elements - Willing (actual willingness, apparent willingness [D says this person appeared to be willing to engage in this contact; see OBrien v. Cunnard], implied consent [emergency situation]) - Potentially Invalidating Circumstances o incompetence (minor or mentally impaired) o duress o abuse of power relationship (e.g. school teacher, clergyman, healthcare provider) o misrepresentation (essential nature of what is about to happen is misrepresented) o mistake (about the essential nature in a situation where the D is aware but P is not) o crime (parties at the time were engaging in crime, therefore plaintiffs consent is invalid) - Scope of Consent (see Barbara v John (p. 934) consent to sexual intercourse was made on the condition that defendant could not impregnate her; she became impregnated) >> Hart v. Geysel (see case brief) court maintained that one who engages in a prize fight cannot recover for damages sustained in combat, because his consent precludes him from relief. - Majority view is that consent to combat made in anger does not preclude parties from civil liability (they may still sue in tort)

- This court maintained, however, that one who consents to engage in an illegal prize fight cannot be awarded for their wrongdoings by being able to hold another civilly liable [B] Express and Implied Manifestations of Consent An individual can convey consent expressly in words or through pictorial gestures. Alternatively, an individual can imply consent. Consent is implied when, under the circumstances, the conduct of the individual reasonably conveys consent. [See, e.g., OBrien v. Cunard S.S. Co., 28 N.E. 266 (Mass. 1891).] [C] Consent by Law Consent can also be implied by law. Generally courts recognize by law consent to emergency medical treatment by health professionals when a victim is unconscious and unable to provide consent. [D] Invalidating Manifestations of Consent [1] Incapacity Both express and implied manifestations can be held invalid. An individual can be held to lack capacity to consent. A child, depending on her age, may consent only to less significant matters. An individual without sufficient mental capacity due to insanity or retardation may not legally consent. Incapacity can also be the result of drug ingestion (including alcohol). [2] Action Beyond Scope of Consent Consent is also invalidated if the action goes beyond the consent manifested. What constitutes the dimensions of the consent can often be a different issue of fact. [See Barbara v John (p. 934) consent to sexual intercourse was made on the condition that defendant could not impregnate her; she became impregnated] Since medical treatment requires consent, the determination of the effective actual consent is critical in this context. A medical procedure without the patient's consent can constitute a battery. The failure to inform the patient of risks when procuring consent is now, however, usually treated under negligence. [3] Fraud Consent is invalid if it is induced by fraud that misrepresents an essential aspect of the interaction. [4] Duress Consent procured under physical threat is invalid. However, as a general rule, economic pressure, while coercive, does not negate consent. [5] Illegality The traditional majority rule holds that a person cannot consent to a criminal act; the consent is always invalid. Taking the minority position, the Restatement holds that a person can consent to a criminal act for purposes of tort liability [See Hart v. Geysel, case brief]. The consent is still valid except where the criminal law is specifically designed to protect members of the victim's class. [See Restatement 60, 61.]

3.2 SELF-DEFENSE [A] Overview and Definition Self-defense constitutes a defense which can justify and therefore negate intentional tort liability. In essence, reasonable force can be used where one reasonably believes that such force is necessary to protect oneself from immediate harm. [See Restatement 63.] Prerequisites need: 1. Good faith belief that you are in danger, and 2. Reasonable appearance of danger (or actual necessity), and 3. Plaintiff was not privileged, unless (R2d 72) 4. Threat must appear to be imminent 5. Level of force used by D must have been reasonable R2d 63 Self-Defense By Force Not Threatening Death or Serious Bodily Harm: (1) An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him. (2) Self-defense is privileged under the conditions stated in Subsection (1), although the actor correctly or reasonably believes that he can avoid the necessity of so defending himself, (a) by retreating or otherwise giving up a right or privilege, or (b) by complying with a command with which the actor is under no duty to comply or which the other is not privileged to enforce by the means threatened. >> Courvoisier v. Raymond (see case brief) SC held that the trial court erred in omitting whether the defendant, in an action for damages resulting from a gun shot, was justified by selfdefense under all the circumstances. - ask yourself: what would have happened in this case if the police officer had tried to rely on R2d 72 (i.e., I have a privilege, and it trumps yours) [B] The Threat Must be Immediate Self-defense must be in response to an immediate threat of harm. [C] The Victim's Response Must be Reasonable Self-defense is only justified if the individual reasonably believes that force is necessary to avoid an unlawful attack. The belief need not be correct, however. Force intended to inflict death or serious bodily injury is only justified if the individual reasonably believes she would suffer serious bodily injury or death from the attack. [D] The Obligation to Retreat From Deadly Force There is general agreement that there is no obligation to retreat from force not threatening death or serious bodily injury. There is disagreement among jurisdictions whether retreat is required where self-defense would require the use of force intended to inflict serious bodily injury or death. The traditional and still majority common law position does not require retreat, assuming the threatened individual has the legal right to be present or to proceed.

The minority position, endorsed by the Restatement 70, requires retreat where serious bodily injury or death would otherwise be required in self-defense. The minority position would not, however, require retreat from the victim's dwelling. [E] Defense Against Privileged Action R2d 72 Defense Against Privileged Action: The actor is not privileged to defend himself against any force or confinement which the other is privileged for any purpose to inflict upon the actor except where the other's privilege is based upon a reasonable mistake of fact not caused by the fault of the actor. 3.3 DEFENSE OF PROPERTY [A] Overview An individual is privileged to use reasonable force to prevent a tort against her real or personal property. However, unlike self-defense, a reasonable mistake will not excuse force that is directed against an innocent party. [See Restatement 77.] 77 Defense of Possession by Force Not Threatening Death or Serious Bodily Harm An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to prevent or terminate another's intrusion upon the actor's land or chattels, if (a) the intrusion is not privileged or the other intentionally or negligently causes the actor to believe that it is not privileged, and (b) the actor reasonably believes that the intrusion can be prevented or terminated only by the force used, and (c) the actor has first requested the other to desist and the other has disregarded the request, or the actor reasonably believes that a request will be useless or that substantial harm will be done before it can be made. >> Katko v. Briney (see case brief) issue: Whether an owner may protect personal property in an unoccupied boarded-up farm house against trespassers and thieves by a spring gun capable of inflicting death or serious injury. SC held that an owner may not use force such that would cause death or serious bodily injury for mere trespass, unless owners life was in danger. The general principle being that personal rights are more highly valued than mere property rights. [B] Reasonable Force Only reasonable force can be exercised in protection of property. Force intended to inflict death or serious bodily injury is never reasonable to protect merely property. The law values personal property higher than private property. Even slight force is unreasonable in defense of property if it is excessive. Consequently, if a verbal request would suffice, no force is justified. [C] Force Against an Innocent Party Force in defense of property is only a defense when it is actually directed at a wrongdoer. A reasonable mistake that an individual has wrongfully interfered with property is not an excuse. [D] Defense of Habitation

The modern view is that the use of deadly force or force likely to cause serious bodily harm is not justified unless the intruder threatens the occupants' safety, by committing or intending to commit a dangerous felony on the property. Additionally, the homeowner may not eject a nonthreatening trespasser or invited guest when doing so would subject that person to serious physical harm. The traditional common law view, still reflected in the Restatement, but increasingly discredited, would authorize the use of deadly force when needed to prevent mere intrusion into a dwelling. [See Restatement 143 and caveat.] [E] Mechanical Devices Intentional mechanical infliction of deadly force, such as by the use of spring guns, is not privileged unless, in fact, such force was justified to defend oneself or another from deadly force. [See, e.g., Katko v. Briney, 183 N.W.2d 657, 659 (Iowa 1971); see case brief] Barbed wire fences and similar deterrents to enter land unlawfully are not generally perceived as intended to inflict death or serious bodily injury but are often designed only to deter entry. Whether liability ensues depends on whether the method of protecting the property under the circumstances was negligent. R2d 85 reasonable is not enough, you better be right (actual necessity instead of apparent necessity) (even if you could have been reasonable if you were present) R2d 85 Use of Mechanical Device Threatening Death or Serious Bodily Harm The actor is so far privileged to use a device intended or likely to cause serious bodily harm or death for the purpose of protecting his land or chattels from intrusion that he is not liable for the serious bodily harm or death thereby caused to an intruder whose intrusion is, in fact, such that the actor, were he present, would be privileged to prevent or terminate it by the intentional infliction of such harm. d. The user of a device likely to cause death or serious bodily harm is not protected from liability merely by the fact that the intruder's conduct is such as would justify the actor, were he present, in believing that his intrusion is so dangerous or criminal as to confer upon the actor the privilege of killing or maiming him to prevent it. 3.4 NECESSITY [A] Overview and Definition Necessity is a defense which allows the defendant to interfere with the property interests of an innocent party in order to avoid a greater injury. The defendant is justified in her behavior because the action minimizes the overall loss. The defense is divided into two categories: public and private necessity. [B] Public Necessity Public necessity exists when the defendant appropriates or injures a private property interest to protect the community. Public necessity is a complete defense. [See, e.g., Surocco v. Geary, 3 Cal. 70 (1853) mayor of San Francisco ordered the destruction of plaintiffs house to prevent the spread of a major fire. Plaintiff sued for damages resulting from destruction of chattel plaintiff claims it could have removed before the house caught on fire. The court denied recovery, saying that in such situations individual rights of property give way to the higher laws of impending necessity.]

Public Necessity (complete privilege: no liability incurred for damages): (1) Good faith belief that you are acting to protect the public; (2) Reasonable belief in necessity of averting imminent public disaster (IPD); (3) Reasonable means [C] Private Necessity Private necessity exists when the individual appropriates or injures a private property interest to protect a private interest valued greater than the appropriated or injured property. [See, e.g., Vincent v. Lake Erie Transportation Co., 124 N.W. 221 (Minn. 1910); see case brief] Private necessity is an incomplete defense: the defendant is privileged to interfere with another's property, but is liable for the damage. Private Necessity (incomplete privilege: may incur liability for damages: (1) Good faith belief that you have to act (2) Reasonable appearance of the necessity to protect (3) Risk must reasonably appear to outweigh risk to plaintiffs property (4) Privilege exercised in Reasonable Means Notes: Leading case: Ploof v. Putnam: plaintiff moored his sloop at a dock on defendants private island in order to avoid the hazards of a storm. Defendants servant cut it loose and it was damaged in storm. The court awarded damages to plaintiff, recognizing a privilege, born of necessity, to use defendants property. According to R2d 77(a) plaintiff decided itself on the basis that a defendant could not use force to protect his property if the intrusion is not privileged Also, it can be argued under 77, that untying the plaintiffs boat was unreasonable >> Vincent v. Lake Erie Transportation Co. (see case brief) Majority in SC held the circumstances surrounding defendants ship and the storm were not beyond defendants control, therefore, he is liable for damages done to plaintiffs dock, even though he acted out of necessity to preserve his own property. SC said that defendant deliberately positioned his ship at plaintiffs dock in such a way to protect his ship at the expense of the dock. Dissenting opinion, stated that the defendant could not with due care have moved his ship out of harms way; therefore, the injury to plaintiffs dock should be attributed to the storm and not the defendant. Reconciling Ploof and Vincent, the privilege of private necessity seems to suggest that a defendant may use or destroy anothers property in order to avoid greater injury, but will be held liable for any damages sustained [See Vincent v. Lake Erie Transportation Co.]. Consequently, as a result of such privilege, the plaintiff is barred from preventing defendants use [See Ploof v. Putnam] [D] Personal Injury or Death An unresolved issue is whether necessity should ever justify inflicting intentional injury or even death. Some historical precedents would so authorize. [See, e.g., United States v. Holmes, 26 F. Cas. 360 (C.C.E.D. Pa. 1842).] The Restatement takes no position. [See 199 and 262.]

4.0 NEGLIGENCE

[A] Overview R3d 3 Negligence A person acts with negligence if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person's conduct lacks reasonable care are (1) the foreseeable likelihood that it will result in harm, (2) the foreseeable severity of the harm that may ensue, (3) and the burden that would be borne by the person and others if the person takes precautions that eliminate or reduce the possibility of harm. Negligence creates an unreasonable risk. One may be liable for Negligence for creating an unreasonable risk of harm to the property or person of another. Elements of Negligence: (1) Act or Omission (2) Duty of care (duty to everyone not to create foreseeable risks to others; maybe even duty to act to render care when they already put them at risk; special relationships may create a duty to act; assumption of duty; a statute may create a duty to act [See, Tarasoff]) (3) Substandard Care (heart and soul of negligence; addressed under the standard of care; what is the standard care of a healthcare provider?) (4) Causation (about physics: cause and effect relationship between an event and its result cause in fact) (5) Proximate Cause (the result must be a proximate result; about policy, not physics: basically means that even if all the ducks are lined up there still might not be liability, because certain harms are deemed to be outside the risk that is created [e.g., Memphis car-dog example) (6) Compensable harm (different from trespass to land where there doesnt have to be harm) >> Brown v. Kendall (see case brief) 1850 landmark case that establishes the Fault Principle. SC held that defendant was not liable for an unintentional infliction of harm on plaintiff resulting from a lawful act performed under ordinary care. Historically, tort has been a fault-based system of liability Negligence law is based on objective criteria: did your conduct conform to a reasonable person? >> Adams v. Bullock (p.40) New Yorks highest court reversed (as a matter of law) lower courts which found negligence on the part of a Trolley line operator. The court maintained that the trolley operators behavior was not negligent because: (1) in the course of a lawful act (2) did not ignore its duty to adopt reasonable care to minimize harm (3) even though a high degree of vigilance is required of those in use of a destructive agency, the defendant would have to have the gift of prophecy to predict at what point an accident would occur (4) no custom had been disregarded >> United States v. Carroll Towing Co. (p.44) case involved a tug boat that was holding a barge, Anna C, with lines in order to drill out another barge in New York Harbor. The lines broke as a result of the negligence of the defendant (Carroll Towing), causing the barge to run into a another ship, which put a hole in the barge (Anna C), but the defendants alleged that the plaintiff

was negligent for not being on board when he should have in order to sound a warning signal. Justice, Learned Hand set forth his famous Leonard Hand Formula: B<PL (B = burden of adequate precautions; P = probability that injury will occur; L = the magnitude of the injury, the loss). If B < PL, liability should be imposed. - Basically, if the benefit from taking precautionary measures exceeds the cost of doing so, the court should impose liability for not taking the precautionary measures. If the cost of taking precautionary measures is greater than the benefit to be derived from preventing injury, then the courts should not impose liability on an actor for not taking the precautionary measures. Imposing liability encourages an inefficient allocation of resources. - Leonard Hands Risk Calculus: B < PL = Negligence >> Pokora v. Wabash Railway Co. (see case brief) SC held that in light of the difficulty in establishing standards of behavior, the issue of whether the plaintiff took ordinary safeguards in proceeding over a railroad track on sound alone (his vision was obstructed by several box carts), is for the jury to decide not the judge. - cited the unfortunate dicta in Goodman, which imposes a specific duty on drivers at grade crossings (getting out of vehicle to observe) - What constitutes reasonable care under the circumstances ordinarily is a question for the jury. - The wisdom of eschewing such blanket rules where negligence is concerned is obvious. - Some use the paradigm: Reasonable Person standard [B] The Characteristics of the Reasonable Person The reasonable person possesses those attributes that a jury decides represent the community norms. The reasonable person is no real person nor any member of the jury. While the reasonable person's qualities are those the jury determines are the expected attributes of those in the community, the reasonable person cannot be expected to be infallible. Further, the objective standard assumes that the reasonable person possesses the general experience of the community. It is the knowledge and understanding generally held by members of the community that is relevant. [C] Flexibility in the Reasonable Person Standard Using the standard of the reasonable person under the same or similar circumstances, flexibility can be added through the circumstances part of the analysis. Ultimately, in most jurisdictions, a jury will be permitted to consider the physical conditions of the defendant and that the defendant was acting under emergency conditions. Most other characteristics, such as mental conditions or inexperience, are not taken into account. [1] Emergency Nearly all states permit the jury to consider in its determination of the defendant's reasonableness evidence that the defendant was acting under emergency conditions not of the defendant's making. The fact that the defendant was acting in an emergency does not necessarily exculpate the defendant from liability. Emergency Doctrine - 9 [2] Physical Conditions As a general principle, because they are easily measured and perceived as tangible, the defendant's own physical qualities may be taken into account by the jury in the breach determination. Just because the party's physical condition is taken into account does not mean

that she will be exonerated, however, as sometimes the physical condition of the party requires the use of greater care. [3] Mental Conditions Most courts treat mental conditions as wholly irrelevant for purposes of negligence liability. The insane are held to a standard of sanity and people with cognitive disabilities are held to a level of normal intelligence. [4] The Effect of Superior Abilities, Skill or Knowledge The standard of care does not change for those with superior skills although the defendant's special skills may affect the jury's breach determination. The reasonable person standard sets the minimum of community expectations, and those able to provide more are expected to do so. [5] Child Standard of Care Most jurisdictions hold children to a variation of a standard that compares their conduct to other reasonable children of the same age, experience, and intelligence under like circumstances. While it is objective in that it compares the child to an external standard of other children, it is far more subjective than the adult reasonable person standard as it allows the jury to consider the child's specific qualities such as experience and intelligence. [D] The Jury Role Where reasonable minds could disagree, the jury decides whether the defendant acted unreasonably. The notion (once favored by Justice Holmes) that courts should create standards of conduct to be used in similar cases has largely been repudiated. Restatement (Third) 8: If reasonable minds can differ as to either: a) Facts (what happened), or b) Whether the conduct lacks reasonable care Then the jury should make the determination 4.1 Proof of Negligence Custom conformance with custom raises an inference of reasonableness, and departure from custom raises an inference of unreasonableness, but either inference may be rebutted by other facts Statutory Violation an unexcused violation of statute establishes negligence per se Direct Evidence evidence which directly supports a finding of a fact in issue, such as eyewitness testimony that the defendants vehicle was traveling in the wrong lane just prior to the accident. 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 be inferred Res Ipsa Loquitur a kind of circumstantial evidence, in which the jury may reasonably infer both negligence and causation from the mere occurrence of the event and the defendants relation to it [A] Role of Custom

Custom is not a conclusive guide, but it is a useful guide for deciding whether defendants actions were reasonable - 13 >> Trimarco v. Klein (see case brief) SC held that defendant failed to conform to a customary practice and was thus liable [B] Statutory Violation >> Martin v. Herzog (see case brief) Court held that violating a statute (statutory signals) amounted to negligence per se. > Clinkscales v. Carver (p.77) The decision as to what the civil standard should be still rests with the court, and the standard formulated by a legislative body in a police regulation or criminal statute becomes the standard to determine civil liability only because the court accepts it. - court has discretion to accept statute as standard of care Negligence per se rule (violation of statute) 14 (1) Type of accident the statute was designed to prevent (2) Victim must be within the class of person the statute was to protect The general rule with respect to compliance with statute: Compliance with a statute does not automatically preclude an imposition of liability. Three exceptions: (1) sometimes a statute expressly states that if you do this you will not be held liability (judge cannot disregard this statute) (2) Preemption this statute expressly preempts any kind of state action. Conflicts preemption if state rule conflicts with federal statute, then federal statute preempts a conflicting state rule (3) Cannot be held liable where the allegation is that you failed to violate a statute (16(b)) > Sweet v. Sisters of Providence in Washington (p.78) Even if the criteria of section 286 are met, the trial judge retains discretion to refuse to adopt the law as the standard of careFor example, rejection of the legislative enactment is appropriate when the law is so obscure, unknown, outdated, or arbitrary as to make its adoption as a standard of reasonable care inequitable. > De Haen v. Rockwood Sprinkler (p.82) Judge Cardozo: Although the statute had been violated, that violation does not establish liability if the statute is intended to protect against a particular hazard, and a hazard of a different kind is the occasion of the injury. [C] Circumstantial Evidence [1] Slip and Fall Cases In slip and fall cases there are four ways an attorney can establish negligence: (1) Whether employees actually created the dangerous condition (proved directly or circumstantially) (2) Whether employees had actual knowledge of condition (3) Constructive Knowledge based on specific conditions (e.g. Negri case) (4) Constructive Knowledge based on Mode of Operation Mode of Operation (Business Practice) Rule: Constructive knowledge is imputed based on the mode of operation has generated in past

TN Supreme Court repudiates the rule as too narrow and states (Blair v. West Town Mall) Constructive knowledge exists if: (1) dangerous condition existed for length of time that merchant should have been aware of it, or (2) by showing a pattern of conduct, or a continuing condition, indicating the dangerous conditions existed

>> Negri v. Stop and Shop, Inc. (p.87) Plaintiff claimed that defendant was negligent for having constructive notice (knowledge a person using reasonable care should have) of a slippery condition which existed in defendants store where plaintiff slipped and hit her head on the floor. Court concluded that there was sufficient evidence that a slippery condition could be inferred from circumstantial evidence. Duty to discover and remedy - constructive knowledge [plaintiff has to show through the circumstances that this dangerous condition was present long enough and in a form apparent enough that jury could conclude defendant was negligent in not discovering and taking steps to remedy it >> Gordon v. American Museum of Natural History (p.88) - Constructive notice: a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendants employees to discover and remedy it. [D] Res Ipsa Loquitur Res Ipsa Loquitur The Thing Speaks for Itself Simply a rule of evidence that allows inference of negligence Restatement (Third) 17 Res Ipsa Loquitur The factfinder may infer that the defendant has been negligent when the accident causing the plaintiffs physical harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which the defendant is the relevant member. - conflates the two requirements from McDougald >> Byrne v. Boadle (1863) (p.92) Trial court declared a nonsuit (negligence issue did not reach jury). Court of Exchequer reversed lower court in favor of plaintiff. Court held that in a case involving a barrel of flour falling on top of plaintiff in front of defendants shop: A barrel could not roll out of warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous. [t]he accident alone would be prima facie evidence of negligence. - [B]ut if there are any facts inconsistent with negligence it is for the defendant to prove them. - There are certain cases of which it may be said res ipsa loquitur, and this seems one of them. In some cases the Courts have held that the mere fact of the accident having occurred is evidence of negligence, as, for instance, in the case of railway collisions. - We dont know how the barrel fell, and were not trying to specify that (as in the Negri case); the only thing we have to go by is the fact that the barrel fell >> McDougald v. Perry (see case brief) SC held that the spare tire escaping from the cradle underneath the truck, resulting in the tire ultimately becoming airborne and crashing into McDougalds vehicle, is the type of accident which, on the basis of common experience and as a matter of general knowledge, would not occur but for the failure to exercise reasonable care by the person who had control of the spare tire. (1) the instrumentality causing his or her injury was under the exclusive control of the defendant, and that (2) the accident is one that would not, in the ordinary course of events, have occurred without negligence on the part of the one in control. (only more likely than not that defendants actions were negligent)

>> Ybarra v. Spangard (see case brief) Three crucial aspects to extend scope of Ybarra: a. In Ybarra we had a pre-existing caregiver relationship b. In Ybarra we had participation (control) by everyone c. In Ybarra these caregivers rendered plaintiff unconscious and had a duty to make sure nothing happened to him Res ipsa does not require that the jury using its common sense, that the accident is the only consequence of negligence. (Must be more likely than not) Procedural effect of applying res ipsa? Majority rule is that res ipsa creates a permissible inference that jury is free to accept, but is not required to. [think of it as an engraved ticket to get it to the jury] Some jurisdictions allow plaintiff to plead acts of negligence and res ipsa loquitur. Majority rule also allows an attempt to prove acts of negligence without harming your reliance on res ipsa loquitur. - not so in TN (Jones v. Metro Elevator, 2001) judge said that plaintiff lost right to rely on res ipsa because he also pleaded that a dirty switch was the culprit of negligence.

4.2 Medical Malpractice [A] Standard of Care Standard of Care: whether defendant acted in conformity with the common practice within his profession. The courts have required that the specialized knowledge and skill of the defendant must be taken into account. Common knowledge rule: if conduct is so clearly negligence, then expert testimony is not required to establish medical malpractice >> Sheeley v. Memorial Hospital (see case brief) standard of care in medical malpractice cases - Establishes three dimensions for testing defendants conduct: Professional (SC said that any doctor with the knowledge, experience should be admissible) Geographic (same local) Time (standard of care at the time of incident) Standard of Care (Jury Instructions) what is the standard against which defendants conduct will be compared 1. Professional (Sheeley - standard of degree and skill expected of a reasonably competent practitioner of the same class, not specialty) compare with 29-26-115 (a) (1) 2. Geographic (Sheeley SC does not limit geography) compare 29-26-115 (a)(1) 3. Time of defendants conduct (Sheeley having due regard for the state of scientific knowledge at the time of treatment) compare with 29-26-115 (a)(1) Competency (Admissibility) standard that satisfies whether an expert witness can testify

1. Professional (Sheeley Any doctor with knowledge of or familiarity with the 2. 3.

procedure, acquired through experience, observation, association, or education, is competent to testify) compare with 29-26-115(b) Geographic (Sheeley Area of practice is only relevant for jury to decide level of qualification) compare with 29-26-115 (b) Time (Sheeley length of time he has been practicing is only an issue for jury to decide level of qualifications) compare with 29-26-115 (b) [B] Informed Consent >> Matthies v. Mastromonaco (see case brief) SC maintained that informed consent is required for both invasive and noninvasive treatment cases. Physicians have a duty to inform their patients of: (1) medically reasonable alternative treatments, even if they do not recommend them, and (2) must disclose the material risks inherent in a procedure or course of treatment. This is so that the patient may make an informed decision regarding a course of treatment. - you can have informed consent complaints even when physicians course of action was reasonable and prudent - difference between this case being negligence and not a battery is that in battery no consent is given, here no informed consent is given - half states use the reasonable patient standard and the other half, including TN, uses the acceptable professional practice standard - Plaintiff must show decision causation however, the court uses an objective test (a reasonable patient) usually if life-saving (and not elective) causation may be absent Causation issue whether the cause of physical injury to patient was the result of the lack of information provided by defendant physician. Some suggest that the causation issue would be obviated by focusing not on personal injury damages from the hypothetical but for causation, but on the value of the decision rights of the plaintiff which the defendant destroyed by withholding adequate information. The legal system should protect these rights and provide significant recompense for their invasion, rather than continue its single-minded an ill-considered attention to personal injuries allegedly caused by the lack of information (Twerski & Cohen, Informed Decision Making and the Law of Torts: The Myth of Justiciable Causation, 1988 U.Ill.Rev. 607). 4.3 Premises Liability (Limited Duty) Owners and Occupiers We determine liability in premises liability by a classification system:

1. Trespasser a person who comes on land without consent a. Duty owed: no duty to make premises reasonably safe, nor conduct activities with
due care, subject to many exceptions the possessor must only refrain from wanton, willful, or reckless acts i. Constant trespassers on area creates a duty to warn Licensees a person who comes on land with permission a. Duty owed: no duty to inspect the premises to discover dangerous conditions or to make the land safe, but the possessor is obliged to warn of known latent dangers that the licensee is likely to encounter but not discover, and to exercise reasonable care in carrying on activities b. The consent to ones presence that makes one at least a licensee may be manifested by words or acts, or even by a failure to object to an established custom

2.

3. Invitees a person who comes on land for purposes directly or indirectly connected with the
business interests of the possessor (a business visitor), or one who enters upon land that is held open to the public generally (a public invites) a. Duty owed: duty to use reasonable care to inspect for unknown dangers, to make the premises safe or provide adequate warnings of danger, and to prevent harm from being caused by active operations b. Either a business invitee or a public invitee Child Entrants sec. 339 of Restatement Officially Privileged Entrants and Contractors recently weve developed special doctrines a. Must make land reasonably safe for contracts, but youre not liable for conditions you call contractors to address Recreational Users most states have Recreational Use statutes created to encourage owners who have nice tracts of land to open those tracts open to recreational use statues will specify what these are, and limits the liability of the landowner who opens them up for public use, except for gross negligence or willful and wanton (Tenn. Code Ann. 70-7-101-05)

4. 5.

6.

Hudson 675 S.W.2d 699 (1984)TN statute that does away with distinction between licensee and invitee >> Heins v. Webster County (p. 201) We conclude that we should eliminate the distinction between licensees and invitees by requiring a standard of reasonable care for all lawful visitors. We retain a separate classification for trespassers because we conclude that one should not owe a duty to exercise reasonable care to those not lawfully on ones property. >> Posecai v. Wal-Mart Stores, Inc. (see case brief) Louisiana SC held that Sams did not owe customer who was robbed in the parking lot a duty of care to protect against harm, because under a balance test rule the foreseeability of harm was low. - the big difference here is that we have criminal conduct by third parties causing harm on an owner/occupiers premises; what duty of care should the owner owe? This is a new dimension.

5.0 DEFENSES TO NEGLIGENCE

[Entry Points handout] [A] Contributory Negligence Contributory Negligence (Plaintiffs negligence) [all or nothing]: (1) Plaintiffs conduct must be a proximate cause of the plaintiffs harm a. Hightower v. Paulson Truck Lines, Inc. (2) Defendant has burden of proving contributory negligence (3) Statutes may be interpreted as barring a defense of contributory negligence a. Chainani v. Board of Education no CN defense b. Feisthamel v. State CN defense (4) Limitations on contributory negligence (invoked by plaintiff): a. Recklessness b. Last clear chance (sure the plaintiff behaved carelessly, but the defendant had the last clear chance to avoid the injury) [Davies v. Mann] c. Refusal to impute contributory negligence (imputing negligence to defeat actions had the effect of leaving innocent victims uncompensated) d. Jurys often refused to return a defense verdict if they found any contributory negligence (they often simply reduced the plaintiffs damages)

[B] Comparative Negligence Comparative Negligence (a negligent plaintiffs recovery depended on how serious plaintiffs negligence was compared to the defendants) (1) Pure comparative negligence the plaintiff who is 90% to blame for an accident can recover 10% of the damages from the defendant who was found to be 10% at fault [about 12 states have adopted this approach] (2) Not as great as comparative negligence can recover as in pure system, but only if plaintiff negligence is not as great as the defendants (49%) (3) No greater than comparative negligence can recover as in pure system, but only if plaintiffs negligence is no greater than the defendants (50%) >> McIntyre v. Ballentine (see Supplement p.16) TN case *Two core holdings: (1) comparative fault (49 percent rule); (2) replaced joint and several liability with the concept of several liability >> Fritts v. McKinne (see case brief) Court of Appeals Oklahoma reversed lower court, holding that defendant physician simply may not avoid liability for negligent treatment by asserting that the patients injuries were originally caused by the patients own negligence. [C] Imputed Contributory Negligence Generally, a plaintiff will not be barred from recovery by the negligent act or omission of a third person. Thus a parents negligence will not be imputed to a child, and a drivers negligence will not be imputed to a passenger. [D] Avoidable Consequences Avoidable Consequences: [entry point #4] [Illustration #4] the usual standard is a duty to act as a reasonable person under the circumstances to mitigate damages. There are four ways to deal with this problem: (1) Ignore it: plaintiff receives all of the damages [$100,000] (2) Causation: knock of the part that was avoidable [$10,000] (3) Straight comparative fault analysis: Combo: [award plaintiff $10,000 and then do straight comparative fault analysis afterwards] [E] Assumption of Risk Assumption of risk is free and knowing consent to taking ones chances in the face of danger, regardless of whether such consent is reasonable. Assumption of risk is a hydra 1. Express (exculpatory agreements) look at scope; look at validity of agreement (challenge validity by (1) public policy issue, (2) whether parents can bind their minor children [p.473, note 10 parents usually cannot bind their minor children, but other jurisdictions allow it]) (importance in being able to tell your story find the moral imperative; dont just throw out a bunch of facts and precedents Hunt for the Winning Story, Jim Mackelhaney) 2. Limited Duty (owed to the victim; e.g. owners/occupiers) limits liability at the outset 3. Implied (there are three ideas of what happens to this in the era of comparative negligence) [1] Express Assumption of Risk Generally, courts will not enforce exculpatory agreements if they: (1) interfere with public policy interests,

(2) involve gross negligence or recklessness on behalf of the defendant, (3) involve a disparity of bargaining power (such that defendant places plaintiff at the mercy of defendants misconduct) (4) have ambiguous terms, or (5) are unilateral disclaimers that are not brought to the attention of the plaintiff (e.g. posted signs). >> Dalury v. S-K-I, Ltd. (see case brief) SC of VT refused to enforce an exculpatory release it felt interfered with a public policy interest to keep accidents to the minimum level possible where a sporting business invites the general public on its premises - public policy interest arose out of the necessity to require landowners that invite the general public on their property to manage the risks of that property; exculpatory releases would decrease the incentive of landowners to make their land safe to the general public, thus making the public bear the cost of resulting injuries. [2] Implied Assumption of Risk Primary Implied Assumption of Risk a duty concept which means that the defendant is under no duty to protect the plaintiff from risks which are inherent in a particular course of endeavor and to which the plaintiff consents by reason of participating in the activity. (e.g. recreational activities) - There is no duty of care to protect another from the risks inherent in a voluntary activity - Frequently described as a no-duty rule because the plaintiff, by engaging in a known and potentially risky activity, has relieved the defendant of the duty of care normally owed to the plaintiff - Does not focus on the Ps conduct in assuming the risk, but on the Ds general duty of care Secondary Implied Assumption of Risk arises when the plaintiff knowingly encounters a risk created by the defendants negligence (e.g. plaintiff dashing into a burning house to save a hat; attempting to fix anothers negligent acts) - An affirmative defense to an established breach of a duty, based on a claim that the plaintiff acted unreasonably in encountering a known risk - With secondary assumption of the risk, the fact-finder considers the reasonableness of the plaintiff's conduct in the particular case, balancing the risks and utilities under the circumstances. - Folded into comparative negligence fault system (not a complete bar, unless more at fault than defendant) >> Murphy v. Steeplechase Amusement Co. (see case brief) Highest court in NY (Cardoza) held that the plaintiff impliedly assumed a duty of risk when he rode the Flopper at Coney Island. The evidence suggests that the plaintiff had knowledge of the risks and willfully proceeded to assume such risks by riding the Flopper. - ask yourself is this case limited duty, or implied assumption of risk? Why does it matter? Look at Davenport case. this is a case of primary implied assumption of risk which prevents the plaintiff from ever establishing a duty of care owed to him by the amusement park (is this what Professor King means by limited duty?) no recovery. If it was a matter of secondary implied assumption of risk, the plaintiff would be able to recover damages only if his degree of fault is not greater than the negligence of the defendant >> Davenport v. Cotton Hope Plantation Horizontal Property Regime (p.482) Supreme Court of South Carolina abolishes the common rule law of assumption of risk (secondary implied assumption of risk) as contrary to the premise of their comparative fault system that a plaintiff who is less than fifty percent at fault to have to bear all the costs of the injury. The Court adopts a

comparative assumption of risk rule which basically allows the fact finder to compare the plaintiffs conduct in assuming a risk with the defendants fault as part of the comparative fault system. - TC directed verdict against plaintiff; App. Ct. reversed; SC remanded for new trial

6.0 CAUSATION
6.1 Factual Causation (Cause-in-Fact) But-For Causation (if X had not occurred, Y would not have occurred). Factual causation is about physics. Causation (four dimensions): (1) Test (usual test is: But-For Test: when the harm would not have occurred absent the conduct R s26) (a) exception in Rs27: multiple causes, dont need but-for, (e.g., two fires hypo), independently sufficient causation is sufficient (e.g., 20 senators stab Caesar) (2) Burden of Proof (usually on plaintiff) (3) Standard of Proof (what degree of certainty must plaintiff establish his case? Preponderance of the evidence (more likely than not)- whether we need expert witness testimony; what kind of lingo must the expert use: formed an opinion with reasonable medical certainty that it is more likely than not ) (4) Sufficiency of the Evidence (Stubbs argues that circumstantial evidence was not sufficient) To prove causation: More likely than not, the harm would not have occurred but for the conduct of the defendant. >> Stubbs v. City of Rochester (p.340) - Highest court in NY reversed lower courts, holding that a nonsuit should not have been granted because I do not believe that the case on the part of plaintiff was so lacking in proof as matter of law that his complaint should be dismissed. Water was contaminated, plaintiff drank the water, 60 witnesses had planned to testify that they had contracted typhoid fever as well - If two or more possible causes exist, for only one of which a defendant may be liable, and a party injured establishes facts from which it can be said with reasonable certainty that the direct cause of the injury was the one for which the defendant was liable the party has complied with the spirit of the rule. - All things considered, the evidence was sufficient - Primary focus in this case is on the sufficiency of the evidence (enough to reach the jury; that it is more likely than not the defendants negligence caused the disease) - Involved the sufficiency of evidence Epidemiology study of disease occurrences in human population Relative Risk: basically the strength of the association (defined as the ratio of disease rate with factor compared with ratio of disease rate without the factor) Relative risk of 1 means no association; relative risk of 2 means 50/50; in order for a relative risk to be probative, you need a relative risk larger than 2 (it must more than double the risk) Separate in your mind (1) sufficiency of evidence, and (2) admissibility - If all you have are statistics, and the relative risk is not more than 2, the statistics will not be admissible

A relative risk of not better than 2 may be admissible when combined with other evidence suggesting causation

>> McCarley v. West Quality Food Service (Supplement p. 13) concerned with the sufficiency of the evidence 6.2 The Loss of Chance Doctrine What qualifies as harm? Prove by a preponderance of the evidence that the defendants negligence actually deprived her of a substantial possibility of avoiding further complications or survival. >> Alberts v. Schultz (see case brief) Court adopts the Loss of Chance rule Future Consequences (e.g. suffers head injuries, misdiagnosis head injury; risk of future seizures; or exposure to asbestos): 1. Enhanced Risk (of something happening in the future; even modest risk, say 5% risk; should we compensate plaintiff for current enhanced risk that has not materialized?) 2. Medical Monitoring (important in area of toxic torts; handy avenue to do end-run around causation; plaintiff wishes to have condition monitored even with small risks; dangerous theory because it side-steps causation and the costs can be substantial) - Andrew Kline, Rethinking Medical Monitoring, 64 Brooklyn LR, 1 (1998) (requires relative risk of better than 2) 3. Emotional Distress (claims where we have plaintiff that worries that something will develop; e.g., cancerphobia) 6.3 Multiple Tortfeasors (1) 2 (or more) but for causes (e.g., joint and several illustrations) (2) One but for cause, 2 or more tortfeasors (e.g., Summers) (3) 2 (or more) forces that combine (e.g. Mary camping with friends at one end of park and Marty half a mile away; two force fires start and converge to burn Paulas cabin liability if any one alone would have caused it R2d 27) (4) Concerted action (e.g., drag racers) (5) 2 (or more) tortious conducts that cause some overlapping harm (e.g. one tortfeasor hits someone into the path of another that hits them the first defendant is responsible for the whole thing; the second is responsible for the second impact; usually burden of proof switches to defendants to unscramble) [A] Two or More But For Causes Joint and Several Liability Each tortfeasor is liable equally for the full amount of the judgment against them (plaintiff may obtain multiple judgments up to the full amount, but can only recover the total of the full judgment). The tortfeasors who pays more than his fair share may be entitled to recover from the other tortfeasors under the doctrine of contribution. - Illustration #6: 2 tortfeasors; Alice is liable for $100,000, and Brad is liable for $100,000: Under J&S - Under Several liability: A= $20,000 and B= $80,000 Several Liability Each tortfeasor is liable only for his fault

Has changed the whole landscape. After several liability, defendants come into court pointing fingers at each other. (in this way it may help plaintiff, by getting the defendants feuding with each other)

>> McIntyre v. Ballentine (see Supplement p.16) Replaced joint and several liability with several liability The debate between J&S and S, is that under S, the plaintiff risks getting stuck holding the bag (see Illustration #6) Exceptions to several liability: - phantom tortfeasors (Brown) wont let defendant impute unless can identify other tortfeasors - TN takes position that were not going to allow the negligent tortfeasors to reduce his fault by pointing his finger at the intentional person, because that is part of the foreseeable risk (e.g. negligent psychiatrist) look at Limbaugh v. Coffee 57 Sw.3d 73 (2001) Where someone is being held vicariously liable, wont allow the employer to reduce his fault by pointing his finger at employee (it is Joint and Several to this extent) (Alley v 145 Sw3d 557 2004) [B] One But For Cause, Two or More Tortfeasors Alternative Liability >>Summers v. Tice (p.375) SC of CA affirmed lower court, holding that the case is based upon the legal proposition that, under the circumstances here presented, each defendant is liable for the whole damage whether they are deemed to be acting in concert or independently. TC found both defendants liable. - It has been held that where a group of persons are on a hunting party, or otherwise engaged in the use of firearms, and two of them are negligent in firing in the direction of a third person who is injured thereby, both of those so firing are liable for the injury suffered by the third person, although the negligence of only one of them could have caused the injury. The rationale: To hold otherwise would be to exonerate both from liability, although each was negligent, and the injury resulted from such negligence. - Burden of proof is shifted to defendants to absolve themselves (cites Ybarra) - Paradigm of alternative liability Market-Share Liability >> Hymowitz v. Eli Lilly & Co. (see case brief) - (1) market share theory using national market for determining liability was appropriate method for determining liability and apportioning damages in DES cases in which identification of manufacturer was impossible, and (2) revival for one year of actions for injuries caused by DES which were previously barred by statute of limitations was constitutional. - Hymowitz limits market share (p.383) to singular characteristics: 1. manufacturers acting in a parallel manner 2. to produce an identical, generically marketed product, 3. which causes injury many years later 4. which has evoked a legislative response reviving previously barred actions - Rule of thumb (p.389, n 7a) essential condition required for market share treatment was fungibility 6.4 Proximate Causation [A] Overview and Definition

Proximate causation is a policy determination on the issue of how far liability should extend for harm factually caused by tortious conduct. Sets a limit on liability when you have all other elements of negligence satisfied. Proximate cause refers to a cause that is legally sufficient to result in liability. It is not causation as much as a limitation on causation. It answers the question: To what extent should an actor be responsible for the actual consequences of his conduct? - As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability. Some boundary must be set to liability for the consequences of any act, upon the basis of some social idea of justice or policy. Proximate cause limits the defendants scope of liability. It requires that the harm must be within the scope of the risk that makes the act tortuous. See Restatement 3d 29
Cause in Fact

Proximate Cause (foreseeability; policy decision)

Proximate cause, or legal cause, concerns the determination of whether legal liability should be imposed where cause in fact has been established. The first step in analyzing any proximate causation issue is determining whether a defendant's conduct was a cause in fact of the plaintiff's injury; once it is established that the defendant's negligent conduct was, in point of fact, the actual cause of a plaintiff's injury or harm, the focus becomes whether a policy of law will extend responsibility for that negligent conduct to consequences that have occurred.

But For Causation

>> Palsgraf v. Long Island Railroad Co. (see case brief) Majority held that there was no negligence because there was no wrong in relation to the plaintiff. Dissenting claims that there was negligence, because the defendant owed a general duty to the safety of the plaintiff, and the defendants negligence in dropping a package on the deck was a proximate cause of the plaintiffs injuries. - Palsgraf's legacy has been a tension in tort law about the proper balance between duty rules and proximate-cause limits to circumscribe appropriately the scope of liability. - No-duty formula - Two yearnings in the law: one for certainty and predictability, and the other for flexibility - The risk reasonably to be perceived defines the duty to be obeyed. Restatement (Third) of Torts 29 - Limitations On Liability For Tortious Conduct An actors liability is limited to those physical harms that result from the risks that made the actors conduct tortious - Risk Standard the harm must be within the scope of the risk - The scope of liability is within the scope of the risk

Richard, a hunter, finishes his day in the field and stops at a friend's house while walking home. His friend's nine-year-old daughter, Kim, greets Richard, who hands his loaded shotgun to her as he enters the house. Kim drops the shotgun, which lands on her toe, breaking it. Although Richard was negligent for giving Kim his shotgun, the risk that made Richard negligent was that Kim might shoot someone with the gun, not that she would drop it and hurt herself (the gun was neither especially heavy nor unwieldy). Kim's broken toe is outside the scope of Richard's liability, even though Richard's tortious conduct was a factual cause of Kim's harm Common instructions on proximate cause that employ language requiring that the tortious conduct cause the harm in a "natural and continuous sequence," sometimes accompanied with the additional requirement that the causal sequence "be unbroken by any efficient intervening cause," do not reflect the risk standard adopted in this Section

Restatement (Third) of Torts 32 Rescuers Notwithstanding 29 or 34, if an actors tortious conduct imperils another or the property of another, the scope of the actors liability includes any physical harm to a person resulting from that persons efforts to aid or protect the imperiled person or property, so long as the harm arises from a risk that inheres in the effort to provide aid. - if the plaintiffs conduct is the child of the occasion [i.e., aiding another in peril], then the defendant will be liable for resulting injuries to plaintiff >> Polemis (1921; p.406) court affirmed the lower court, holding that the owner of a ship, which was chartered by defendants should be awarded full damages for defendants negligence in causing a board to be dislodged, fall in a hull, cause a spark and burn up the ship. - Defendants argued that extent of damage was unforeseeable. Court dismissed this argument: Once the act is negligent, the fact that its exact operation was not foreseen is immaterial. - So long as the damage is in fact directly traceable to the negligent act, and not due to the operation of independent causes having no connection with the negligent act, except that they could not avoid its results. - If the defendant is guilty of negligence he is responsible for all the consequences whether reasonably foreseeable or not. - The question is whether the type of result is foreseeable - Direct-causation view of proximate cause >> Wagon Mound expressly overruled Polemis - Liability depends upon the reasonable foreseeability of the damage which in fact occurs Palsgraf (class of persons) + WM (result) = 29 Restatement (Third) of Torts 30 Risk of Physical Harm Not Generally Increased By Tortious Conduct An actor is not liable for physical harm when the tortious aspect of the actor's conduct was of a type that does not generally increase the risk of that harm. - Risk Neutral Rule (no liable for conduct that doesnt have tendency to increase risks) - (e.g., speeding doesnt increase the risk of being struck by a falling tree, despite the fact that you would not have been struck but for being at that point because of your speeding) - If greater care by the actor would not reduce the frequency of such accidents, then it is not of the type referred to here. - This Restatement is in contradiction to Polemis, which held that a defendant is liable for all damages resulting from his tortious action if he is at least negligent to some degree, however trivial. R3d 30 limits liability to only those actions that generally increase the risk of the harm sustained by plaintiff.

[B] Unexpected Harm Eggshell Plaintiff Rule: (31) (1) Physical injuryPhysical consequence (2) Physical injuryMental consequence (3) Mental injuryMental consequence ([1] Is the initial mental injury even actionable? [2] And do we allow damages for the extreme aberrational mental consequence?) >> Benn v. Thomas (see case brief) SC of Iowa affirmed appellate court and reversed trial court, holding that the trial court erred in failing to charge the jury on the eggshell plaintiff rule in a case involving an automobile collision, in which the plaintiff, who had a history of coronary disease, later died as a result of the injury inflicted in the accident. The court maintained that the eggshell plaintiff rule is a rule of proximate cause, which rejects the limit of foreseeability that courts ordinarily require in the determination of proximate cause. >> Doe v. Manheimer (see case brief) SC of CT affirmed lower courts decision to set aside jury verdict on the grounds that reasonable minds could not find the defendants overgrown premises as proximate cause of plaintiffs rape. A rape is outside of the scope of risks expected from having an overgrown lawn, therefore, it cannot be a proximate cause of defendants injuries. - No proximate cause Tip: A good method of determining scope of risk is to ask yourself what is negligent about doing something or not doing something? If the resulting injury isnt connected with the expected scope of risk, there isnt proximate cause.

7.0 Negligent Infliction of Emotional Distress

[A] Overview and Definitions Different emotional distress permutations or types: (1) fear for ones own safety (e.g. Falzone) (2) emotional distress for the mishandling of dead bodies or false death notification (e.g. Gammon could have used this) (3) bystander rule: fear for anothers safety (e.g. Portee) (4) fear for future disease or conditions (e.g. Metro-North) (5) emotional distress for loss of consortium or property damage [1] Fear for Ones Own Safety >> Falzone v. Busch (p.264) rejected the impact rule, but required a resulting physical injury or illness as corroboration of sufficient fright and emotional distress [2] Emotional Distress for the Mishandling of Dead Bodies >> Gammon v. Osteopathic Hospital of Maine, Inc. (p.281) SC of Maine reversed the trial courts directed verdict for defendant, holding that the evidence in the case would support a jury finding that either or both defendants failed to exercise reasonable care to prevent the emotional distress caused by negligently sending a severed leg to the son of decedent. Courts have concluded that the exceptional vulnerability of the family of recent decedents makes it highly probable that emotional distress will result from mishandling the body. [3] Fear for the Safety of Another

>> Portee v. Jaffee (p.286) SC of NJ reversed lower court holding that the mother of a child who was stuck between an elevator door and the elevator shaft for over four hours, could recover for emotional distress. The court, basing its decision on Dillon, set out the following requirements for recovery from emotional distress: (1) close relationship (usually marital or familial relationship)-most crucial consideration to this court (2) contemporaneous observance (observed accident when it occurred) (3) physical proximity (debatable how relevant this is) (4) severity of physical injury or death to another is considered (5) severe emotional distress must result (to plaintiff) [4] Fear for Future Consequences >> Metro-North Commuter Railroad Company v. Buckley (p.273) the question is whether a railroad worker negligently exposed to a carcinogen (here, asbestos) but without symptoms of any disease can recover under the Federal Employers Liability Act (FELA), for negligently inflicted emotional distress. The SC of United States affirmed lower court which dismissed the case because the common law and policy concerns do not support symptom free recovery. The court stressed that it would b e difficult to determine from the external circumstance of exposure whether a claimed strong emotional reaction to an increased mortality risk is reasonable and genuine, rather than overstated. [5] Emotional Distress for Loss of Consortium or Property Damage Loss of Consortium A loss of the benefits that one spouse is entitled to receive from the other, including companionship, cooperation, aid, affection, and sexual relations. Contains all tangible and intangible benefits received from a marital or familial relationship. - sometimes a parent can recover from childs injury during childs minority; generally children cannot recover for injury to parents (when parent survives); if parent dies, children can often recover for loss of consortium - TN applies different approach to children depending on whether parent lives or dies - Professor King thinks we should get rid of loss of consortium (heartache and money are incommensurable) Loss of Property the traditional rule has been the difference between the fair market value between and after the defendants tortious conduct - what about companion animals?

8.0 WRONGFUL BIRTH AND WRONGFUL LIFE

>> Emerson v. Magendantz (p. 326) SC of RI held that (1) a defendant may be held liable for the negligent performance of a sterilization procedure, which resulted in the conception of a child; and (2) the majority adopted the limited-benefit rule, which allows plaintiff to recover for medical expenses of the ineffective sterilization procedure, the medical and hospital costs of the pregnancy, the expense of a subsequent sterilization procedure, loss of wages, loss of consortium to the spouse arising out of the unwanted pregnancy, and medical expenses for prenatal care, delivery, and postnatal care. However, no recovery for emotional distress will be allowed, unless the child is born handicapped. The majority also would offset against such liability any economic benefits derived by the parents from governmental or other agencies that might contribute to defraying costs. Potential damages: 1. child rearing costs 2. emotional distress (insurance co is scarred here, because its hard to place a price on emotional distress)

I. Healthy Child: 1. No child rearing costs (sounds like avoidable consequences doctrine) 2. No emotional distress 3. Loss of consortium for husband 4. Medical expenses II. Impaired Child: 1. child rearing costs (only special costs, unless the doctor should put on notice, then liable for full child rearing costs) 2. emotional distress (yes) 3. loss of consortium for husband 4. medical expenses

9.0 DUTY TO ACT

[A] Overview The general rule in US is that there is no duty owed by one person to come to the aid or take action to alleviate a risk that another person is threatened by (No-Duty Rule); there are many exceptions though. >> Harper v. Herman (p.134) SC of MN held that a boat owner who is a social host owed no duty of care to warn a guest on his boat that the water is too shallow for diving. Reversed the appellate court and reinstated the trial courts grant of summary judgment for defendant. - An affirmative duty to act only arises when a special relationship exists between the parties. The fact that an actor realizes or should realize that action on his part is necessary for anothers aid or protection does not of itself impose upon him a duty to take such action. Special relationships include: common carriers, innkeepers, possessors of land who hold it open to the public, and person who have custody of another person under circumstances in which that other person is deprived of normal opportunities of self-protection. - Superior knowledge of a dangerous condition by itself, in the absence of a duty to provide protection, is insufficient to establish liability in negligence. >> Farwell v. Keaton (p.140) SC of MI reversed Ct. of Appeals holding that Farwell and Siegrist were companions engaged in a common undertaking, so there was a special relationship between the parties. Because Siegrist knew or should have known of the peril Farwell was in and could render assistance without endangering himself he had an affirmative duty to come to Farwells aid. - The majority found that defendant owed victim a duty of care on two grounds: (1) that defendant came to the assistance of Farwell, and (2) defendant had an affirmative duty to aid victim on the basis of their pre-existing duty. - Pushes the envelope regarding special relationship - the dissenting opinion rejected the notion that mere companion relationships created legal duties. Existence of duty is a matter of law. - This case seems to suggest that mere companionship is a sufficient relationship to create a duty to act [B] Exceptions to No-Duty Rule * Special relationship (40) * Undertaking (assumption of duty) (42)

* Creation of risk (321 [p.138]; 39 [of a type characteristic of a conduct]) [B] Duty to Third Parties Duty to third parties not to misrepresent facts? >> Randi W. v. Muroc Joint Unified School District (p.148) SC of CA held that consistent with Restatement Second of Torts sections 310 [intentional misrepresentation] and 311, that the writer of a letter of recommendation owes to third persons a duty not to misrepresent the facts in describing the qualifications and character of a former employee, if making these misrepresentations would present a substantial, foreseeable risk of physical injury to the third persons. - in this case, the court found the letters of recommendations to be half-truths Duty to protect plaintiff against the actions of a third party? >> Tarasoff v. Regents of the University of California (p.156) special relationship between defendant and the source (not the victim) a different paradigm; - Whether therapist owed duty of reasonable care to the victim of a third persons conduct - Court decided that we could have a relationship not only with the victim but also with the source (broadens the notion of duty) - balancing test (between safety of life and limb and doctor-patient relationship[therapeutic relationship]) - How do you confront a balancing argument? No duty (patient-doctor confidentiality) v. Duty (safety of life and limb) Balancing test cannot be applied here because one of the interests is absolute BT doesnt work because the interests are incommensurable (comparing apples and oranges) BT doesnt work because the weights should be repositioned (safety doesnt necessarily have to be on the no duty side) Sometimes a statute may create a duty to act >> Uhr v. East Greenbush Central School District (p.168) Ct of Appls in NY held that the private right of action to enforce Education Law 905(1) is inconsistent with the statutes legislative scheme, and therefore there is no claim for common-law negligence. - negligence per se deals with establishing substandard care (the duty is already satisfied; e.g., not to speed) - this statute has to deal with establishing a duty of care Generally, no liability to social hosts who supply alcohol to third parties that cause plaintiffs injuries >> Reynolds v. Hicks (p.183) SC of WA does not recognize a cause of action in negligence for a third person injured by an intoxicated adult against the social host that served the person while in an obviously intoxicated state, but does recognize a cause of action against a commercial vendor in the same situation. - Defendants are bride and groom; minor nephew consumed alcohol and crashed on the way home - social hosts are not as capable of handling the responsibilities of monitoring their guests alcohol consumption, and

social host liability are so much more wide sweeping and unpredictable in nature than are the implications of commercial host liability

Negligent Entrustment >> Vince v. Wilson (p.188) SC of Vermont held that the evidence was sufficient to make out a prima facie case of negligent entrustment, and the trial court properly submitted the question to the jury. Verdicts should not have been directed in favor of defendants Ace and Gardner, however. - Issue: whether liability extends to a person who lends a car to another they know is incompetent, however, in this case, we have a sale can we extend negligent entrustment to a person who actually sales and parts with the chattel? The court says yes. - R2d 390 negligent entrustment (supplying chattel to an incompetent person) - Standard: is know or has reason to know (a little narrower than should have known) Have reason to know means you were on notice

10.0 ECONOMIC HARM

What do we do whenever we have free-standing economic loss, i.e., not accompanied by personal injury? >> Nycal Corporation v. KPMG Peat Marwick LLP (p.306) adopted the R2d 552, which holds a defendant liable for pecuniary harm resulting from misinformation relied on by those members of a group that the defendant knows will receive and rely on that information. Defendant does not need to know the actual person, only the group. - court found that defendant was not negligent - plaintiff sues for negligent misrepresentation >> 532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc. (p.317) Plaintiffs negligence claims based on economic loss alone fall beyond the scope of the duty owed them by defendants and should be dismissed. NO DUTY - no satisfactory way geographically to distinguish among those who have suffered purely economic losses - no personal injury, no property damage, no privity - reasons for no duty: would extend duty like a rippling effect far beyond zone of danger; cant distinguish between classes of plaintiffs, this would be arbitrary; shes worried about limitless liability Economic Loss Rule (p.324, n. 8) arises mostly in products cases, where the product just doesnt work, resulting in economic loss; court limits purchaser to his contract rights, and doesnt allow him to sue in tort - very fluid area Legal Malpractice liability (p.313, n.6d) in criminal cases, the defendant cannot sue his attorney, even if incompetent, if the defendant was actually guilty of the crime