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Fall 2010 Torts Outline Prof.

Torts: A tort is a civil wrong that the law provides a remedy Torts must be proven by a preponderance of the evidence Three Types: o o o (1) intentional (2) negligent (3) strict liability

Chapter 2: Intentional Torts Elements of an intentional tort: o (1) Intent intends the consequences of his conduct if: (a) his purpose is to bring about those consequences; OR (b) he knows with substantial certainty that the consequences WILL result from his actions. o Mistake does not vitiate intent irrelevant Insanity is also irrelevant, neither is recklessness

(2) do not require damages to establish liability

Five torts where intent transfers (under writ of trespass): battery, assault, trespass to land, trespass to chattels, and false imprisonment o Transferred intent (1)if intended to commit 1 of the 5 classic intentional torts and ends up committing another, the intent transfers Or (2) if intends to commit tort against one person, but commits it against another, intent transfers

Battery: o o (1) intent (2) to cause a harmful or offensive touching with another person, a third party, or an object one is holding incidental touching is not applicable if person is hypersensitive and doesnt know, they cannot be held liable o AND (3) that the harmful or offensive touching did occur.


(1) acted with an intent to cause a reasonable apprehension (means expectation) in of an imminent batter; AND (2) that intentional act caused to suffer a reasonable apprehension of an imminent battery.

False Imprisonment: o (1) acted with an intent to confine or restrain someone in a bounded area; types of restraint and reasonableness: physical barrier, actual or threat of harm, moral persuasion, and authority. o AND (2) the unlawfulness of such restraint. o Can be restrained by acts or words, that he fears to disregard Minority Rule for False Imprisonment: substitute actual harm instead of knowledge of confinement o Majority Rule for False Imprisonment: intent to confine, know that one is restrained (dont have to remember being confined) in a bounded area, without legal authority. o False Arrest: a subset of false imprisonment can show that an arrest was proper if there was lawful authority to arrest and was later convinced of the offense for which he was arrested. could also prevail by having a warrant, or probable cause

Intentional Infliction of Emotional Distress: o o o (1) extreme and outrageous conduct by the (2) with intent to cause to suffer severe emotional distress (3) causing severe emotional distress o no transferred intent Minority rule in some jurisdictions, recklessness suffices for intent

Trespass to Land o o o o Can occur above, below, and directly on the land (near the surface) (1) intent by to physically go on the land (2) physically invading s real property ( must be possessor or owner) (3) without s authorization

Trespass to Chattels classical intentional tort (allows transferred intent) o o o (1) intent by to use or intermeddle with a chattel (2) chattel is in possession of another (3) this results in either (a) impairing the chattels condition, quality, or value (b) depriving of the use of the chattel for a substantial period of time (c) completely dispossessing of the chattel; OR (d) harm to or a legally protected interest of s.

Conversion o An intentional exercise of dominion over a chattel that so seriously interferes with the right of the owner to control it that the may justly be required to pay the the full value of the chattel. Distinct from trespass to chattels recovery of total amount of chattel for conversion (full value of chattel) rather than just recovering amount of diminished value (the result of the harm) o Damages are a required element No transferred intent

Types of interferences that may constitute conversion: Wrongful acquisition, wrongful transfer, wrongful detention, misusing, severely damaging, substantially changing Good faith purchasers are not liable

Chapter 3: Privileges There are several privileges that a can establish as an affirmative defense for an action that would otherwise be an intentional tort. Mistake if reasonable, does not change anything. Doesnt have to be right, just reasonable, if unreasonable.changes everything. Consent: o o o is not liable for an otherwise tortious act if consented to s act Can be expressly spoken or written, or implied by context Consent given by mistake is valid unless induced the mistake (misrepresentation, fraud, or duress) or otherwise knew the was giving consent based on a false pretense

To a criminal act is not valid (can be justification or excuse)

Self-Defense/Defense of People o

is not liable for a tortious act if: (1) it was performed under a reasonable belief by that he is being or is about to be attacked; AND (2) constituted a reasonable force Reasonable to use force, and amount was reasonable Retaliation is not allowed Verbal provocation is irrelevant Reasonable mistake does not vitiate the privilege

o o

Some states require retreat when doing so is reasonably safe Typically not required to retreat when to retreat from his home

Defense of Others o If a 3rd party would have been privileged to use self-defense, is privileged to use reasonable force on the 3rd partys behalf. Reasonable mistake does not vitiate the privilege.

Defense of Property o is privileged to use reasonable force to prevent the commission of a tort against his property. o A mistake will vitiate the privilege, even if it was a reasonable mistake, if was acting pursuant to a privilege of his or her own (i.e. a repo man).

Recovery of Property o may be privileged to sue reasonable force to recover a chattel, as opposed to relying on legal process. o o must be in an uninterrupted fresh pursuit of . Mistake even a reasonable one vitiates the privilege, expect for shopkeepers who reasonably suspect shoplifting (Shopkeepers Exception)

Necessity / Public Necessity / Private Necessity o may commit an intentional tort against if reasonably necessary to avoid injury or damage. The threatened damage must be:

(1) natural/external (2) substantially more serious than the interference with interest AND (3) sudden, unexpected, and temporary.

Public Necessity: is acting to prevent threatened damage to the public at large, privilege is absolute and need not pay for damages caused to s property Private Necessity: is acting to protect a personal interest, he must compensate for actual damage to s property, but under the law he is still privileged to act as he did.

Authority of Law o Police officers, military personnel, prison officials, regulatory inspectors, or officials at mental health facilities may act under authority of law, engaging in conduct that otherwise would be tortious.

Discipline o Privilege of parents to discipline their children also covers those who are temporarily responsible for them. Amount of force that is acceptable would be less than what would normally be acceptable for a parent to use.

Chapter 4: Negligence A must generally prove that had a duty to to exercise some level of care, and breached that duty, causing damage to . The omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do. o Cannot be held liable for accidents Duty Breach Causation causation in fact and proximate cause Damages No nominal damages Classic Formula of Negligence: o o o o

Contributory Negligence the is claiming the s conduct was negligent and that the s negligent conduct also contributed to the cause of s injuries.

Standard of Care: o o Use subjective testing would I have known? Use Objective testing would the ordinary prudent person have known? The reasonable prudent person A person of ordinary intelligence, perception, and memory with the physical characteristics, abilities, and disabilities of the actor, and any relevant additional specialized knowledge, skills, or experience that the actor has. Mental characteristics are irrelevant Forgetfulness does not excuse negligence o Lapse of time causing forgetfulness = no negligence Constructive knowledge = what someone should have known (1) constructive knowledge (2) actual knowledge, skills & training

To establish the standard of care there are 2 elements:

The Sudden Emergency Doctrine o Event must be unforeseen, sudden, and unexpected Used by a majority of jurisdictions usually stated what is reasonable to expect of children of like age, intelligence, and experience. o Max. age is 17 MI age is 7. In many states children under a certain age cannot be held negligent o If child is engaged in adult activities, motorized vehicles or heavy equipment, are held to the more objective adult standard. For Children: mostly subjective standard o

The Learned Hand Test: to determine reasonable care o o Weighs the costs and benefits of the reasonableness of the action Conduct falls below reasonable care when B < PL B = burden (cost of precaution directly, reduced usefulness, societal costs) , P = probability of harm, L = magnitude of the injury if it were to actually occurred.

A Customary Practice (Custom) o Used as evidence of the care (or lack) exercised by a reasonable person in that context. Persuasive evidence, not necessary or sufficient

In Professional Cases, custom is the standard o Locality Rule: Majority similar community in similar circumstances test which is designed to balance the need to avoid evaluating a general practitioner in a rural area by the same standards as a specialist in an urban teaching hospital. Minority Some jurisdictions have adopted a national standard, especially for specialists who are certified by a national board within their specialty areas.

The reasonable prudent person standard is objective with some subjective components. A person of ordinary intelligence, perception, and memory, with the physical characteristics, abilities, and disabilities of the actor, and any relevant additional specialized knowledge, skills, or experience that the actor has. o General mental characteristics are not taken into account Insanity is not a defense in most states If you treat sudden mental incapacity like a physical cause, not negligent. I.E. Alzheimers (deformation of brain, physical not mental) o o Neither are deficiencies in the actors specific knowledge and experience. Voluntary intoxication is not a defense

Professionals (doctors, lawyers, pilots, and other jobs that require lots of training and education and have significant internal coherent standards) are subject to an objective standard that dispenses with the usual language of reasonableness. o Held to ordinary member of the profession (not average) They are expected to exercise the skill, knowledge, and care normally possessed and exercised by other members of their profession. Specialists are subject to the standards of other ordinary members of their specialty, if specialty is relevant to case. Standard must be established by an expert witness.

Medical Malpractice o Liability cannot be premised on a mere disagreement or a failure of technique or tactics

Most cases define the professional standard as that which doctors in the same or a similar locality do. Some states use a national standard. Elements of Negligence of Informed Consent: (1) the duty to inform (all material risks must be disclosed, no bright line rule separating the material from the immaterial). (2) causation requires that the plaintiff would have chosen not to receive the treatment or chose a different treatment had the alternatives or material risks been made known to him (3) injury risk must actually materialize, injured as a result to submitting to the treatment

Defenses to this: a physician may plead and prove plaintiff knew of risks, full disclosure would be detrimental to patients best interests, or an emergency existed requiring prompt treatment and there was no time to receive consent. In most states, doctors are held to the regular malpractice duty of care for professionals (we require plaintiff to show that the ordinary level of professional care (the customary practice) mandates disclosure.) A significant minority of states subscribe instead to a reasonable patient rule under which a doctor must disclose material risks. Doctors also have a duty to disclose any profit or research interests of theirs underlying their treatment.

Informed Consent Rule: Canterbury Duty Minority Rule, SIGNIFICANT o What the reasonable patient would like to know (material risks, not things patient should know) Baseline Duty Majority Rule, the reasonable doctor test o The information that the reasonable doctor usually tells patients about a particular procedure Baseline Causation Minority

If patient was going to have surgery anyway (w/o being told risks), result would have happened anyway Subjective the patient wouldnt have had the surgery, had they known the undisclosed risks normal human nature to not have had the surgery

Canterbury Causation Majority o Show patient wouldnt have had procedure and a reasonable patient wouldnt have had surgery had they known the risks.

Duty and the Role of The Legislature Negligence per se o o Act is negligent because it violates the statute Ordinances/Administrative Regulations treated in same way, lesser weight

The basis upon which a court seeks to select/reject a criminal statute as a standard of care for tort law is: o (a) the injury at issue is of the sort that the statute meant to prevent (the harm) (this sort of harm) o AND (b) that the victim is of the sort that the statute meant to protect o (this sort of victim) (c) must also decided if the statute is appropriate for translation into a civil duty. Some factors they must consider include: Whether it creates difficulty in proving causation; Whether it creates a new duty; Whether it provides liability that is too strict (detached from defendants level of care) Whether it provides for disproportionate liability; Whether it represents too vague of a duty.

Majority Opinion of NPS duty and breach are automatically established for unexcused violations of a usable statute. Minority Opinion defendant can do anything to prove he was not negligent. Excuses, which the defendant has the burden of proving include: o Incapacity or reasonable inability to comply, reasonable lack of knowledge of violation (ignorance of facts, not law), emergency, and greater harm from compliance than violation.

Minority Opinion 1 defendant can argue not just a specific excuse but generally that he exercised reasonable care. Minority Opinion 2 only evidence of unreasonableness, as if it were just a custom that was violated.

Proof of Negligence o o o Prove that (1) there was actual or constructive knowledge (2) the condition posed an unreasonable risk of harm (3) defendant did not exercise reasonable care to reduce or eliminate the risk, AND o (4) defendants failure to use such care proximately caused injuries.

Three Burdens of Proof for Plaintiff: o o (1) the burden of pleading allege sufficient facts in complaint (2) burden of producing enough evidence to avoid a directed verdict direct evidence is not required (makes it easier) circumstantial evidence is OK proves a point through inference If a reasonable jury could draw the inferences that a party is trying to establish, then it is permissible for the jury to rest its decision on the evidence that produced those inferences, however, circumstantial it may be. o (3)the burden of persuasion persuade that there is a preponderance of the evidence in their favor

Res Ipsa Loquitor Let the Thing Speak for Itself o o It is a negative inference. If plaintiff cannot show what exactly defendant has done, it may suffice to show defendants negligence through negative inference, namely that (1) the accident is of a type that normally would not occur unless someone was negligent; (2) AND defendant exercised substantial control over whatever caused the injury. Helps plaintiff survive a motion to dismiss for lack of evidence

Chapter 5: Causation in Fact Two tests: The But-For Test & The Substantial Factor Test Sine Qua Non Without which not o The but-for cause, negligence is a cause in fact of the harm to another if it was a substantial factor in bringing about the harm Compare: (1) world as it exists and (2) world which tort didnt occur, if both look the same, no cause o The fact that one thing is a cause-in-fact does not mean that a second thing isnt as well. IT doesnt matter whether a cause is sufficient or not; what matters is that it was necessary. o Could not have occurred without it. The negligence at issue must be something that makes the result more likely. A but for cause will not establish causation-in-fact if it is a mere coincidence o When is a but-for cause not sufficient to establish causation in fact? o When it is a mere coincidence! What are three instances in which a but-for cause is not necessary to establish causation in fact? Sufficient causes Substantial Factor Test Multiple Negligent Defendants Market Share Liability There must be a causal link

To Prove but-for Causation o Plaintiff must produce evidence to argue that defendant more likely than not caused the injury. Probable other causes are not irrelevant, but they are not enough to say it wasnt a but-for cause o Neither evidence that (1) defendant could possibly have caused the injury, nor (2) defendant was 50% or less likely to have caused the injury, will suffice by itself to get the case to a jury. o Mathematically, one can say that plaintiff must at least show that the probability of the harm that occurred was more than twice as high with defendants negligence than it would have been without it.

Post hoc ergo propter hoc not sound evidence or argument

Concurrent Causes - The Substantial Factor Test o o Two causes that are both sufficient causes of the injury A rare occasion in which when the two events cancel each other out so that no liability could be sought by plaintiff (neither are but-for causes is because both causes are sufficient, which is good enough to show that it is a substantial factor), causation can be based on whether an individual cause was a substantial factor in causing the harm. This is an alternative to the but-for test, and it avoids allowing a defendant who otherwise would be liable from getting out of it just because another defendant did something negligent too. Use only for a converging fires type example

Multiple Sufficient Causes o Where there are multiple possible negligent causes and no possible way for plaintiff to pinpoint which it was, the inability to sort out which it was will not necessarily deprive plaintiff of the ability to recover. Instead, a court may simply shift the burden of proof to the multiple negligent defendants.

Market Share Theory to apportion liability o Many ways to use it, used for Sindell, a drug liability in which there were 195 companies that manufactured it, but 5 companies accounted for 90% of the market. Those five companies were brought to court and each paid their share of the damages according to their market share percentage.

Chapter 6: Proximate Cause Is less a matter of fact and logic than it is a matter of how broadly the court wishes to allow a defendant to be held responsible for damages that he causesin-fact. Some courts will place limitations on liability in terms of duty. (1) Foreseeability what is the scope of the risk? o Whether the injury was a foreseeable result of the defendants negligence Within the scope of risk the defendant created? Often a jury question

In many states it is often asked if the type of accident was foreseeable rather than the way it occurred or the magnitude of the injury The more foreseeable it was, the more likely the defendant was the proximate cause. Following Palsgraf, (dynamite fell out of passengers hands at train station while worker was helping him on, fell and exploded, injured Palsgraf because a scale fell on her more than 30 feet away from the accident) we may also ask whether the scope of the risk extends to the plaintiff in a positional sense. i.e. if a defendant negligently crashes his car into another , a pedestrian who gets mangled on the sidewalk next to the accident is closer to the scope of the risk than is a person three blocks away that was hit with glass. In many cases, the jury could decide either way because they fall into the intermediate category and the jury will generally be given the chance to do so. The area within which liability is imposed is that which is within the circle of reasonable foreseeability.

(2) Directness the extent to which other causes intervene an Intervening cause is things that are second/subsequent causes of injury after the was negligent. o a cause in fact, some ICs are SCs

A superseding cause is an IC that is so responsible for causing harm that it cuts off s liability as a proximate cause. An IC that forces a conclusion that defendants negligence was not a proximate cause of the injury.

An IC is more likely to be superseding if it is unforeseeable. AN IC is more likely to be superseding if it is independent of s negligence as opposed to flowing from it. A criminal act or an intentional tort by a 3rd party is not necessarily SC, but they are likely to be. More likely does not mean certain, Foreseeable and dependent intervening causes may turn out to be superseding; extraordinary and independent ones may not.

The test to determine if an intervening force constitutes a superseding cause: o (1) is IC foreseeable from s negligence or w/i scope of the risk?

If NO, IC is more likely to be an SC If NO, IC is more likely to be SC If YES, much more likely to be SC

(2) is the IC dependent on s negligence? (3) is the IC a criminal or intentionally tortious act?

The Rescue Doctrine: o o Danger invites rescue; if reasonable, will never be a SC To be a rescuer: (1) the was negligent to the person rescued and such negligence caused the peril or appearance of peril to the person rescued (2) the peril or appearance of peril was imminent (3) a reasonably prudent person would have concluded such peril or appearance of peril existed, AND o (4) the rescuer acted with reasonable care in executing the rescue I.E. Attempt to alleviate harm caused by , go to hospital, doctor commits malpractice, original is liable. It is foreseeable Most of the time medical malpractice is not SC

Second injury caused by weakened condition resulting from first injury, it is foreseeable that if you injure someone, they will be in a weakened state, will not be a SC, and will be liable. Things to take into account in this situation are: (1) length of time, (2) location and nature of second injury, (3) reasonableness of s conduct, and (4) character of the second accident.

(3) Public Policy Exceptions o There are public policy exceptions in which there might otherwise be proximate cuase but the courts in some states declare that there is not, as a matter of policy. Most of these cases can also be understood alternatively as restricting not proximate cause, but duty. i.e. social hosts and victims of their drunk-driving guests, damages that will eventually occur to yet-to-be-conceived people Majority drinkers voluntary consumption of alcohol and negligence, means host is not liable Allows liability for serving liquor to a minor Minority liability for social host

Majority if did not exist (pre-conception), cannot be PC of injury Minority might be PC (difficult to establish)

Chapter 12: Defenses (1) Plaintiffs Conduct:

Majority: modified comparative negligence (both) Minority pure comparative negligence Smaller minority (4states) contributory negligence Mechanics of Apportionment jurors inform court to (1) what % of fault was attributable to each party and (2) how much damage each claimant suffered. o The Court then computes the damages.

(1) Contributory Negligence (4 States use) (AL, MD, VA, NC, & Washington D.C.) o bars plaintiffs recovery based on the fact that the plaintiffs negligence contributed to the happening of the accident. This is the common law adoption; burden of proof on . A complete bar to recovery for the . Not a defense to an intentional tort or when the engaged in intentional, wanton, or willful/reckless conduct. o Certain statutes abrogate the defense. Now rejected in the overwhelming majority of states, contributory negligence precludes from prevailing if he was at all a negligence cause of the injury, regardless of the extent of s negligence. Several exceptions are carved out, such as allowing to recover if had the last clear chance to prevent the injury. (1) The Doctrine of Last Clear Chance who had the last clear chance to avoid injury? Thought is that the had the opportunity to avoid the accident after the opportunity as no longer available to the , the is the one should bear the loss. Whole loss is placed on one party or another. Some courts restrict use to cases where was helpless and unable to avoid danger created by s negligence Others permit its use if was merely inattentive to the danger

(2) Remote Proximate Cause s negligence wasnt the proximate cause to the harm

(2) Comparative Negligence/Comparative Fault (46 States use some form) o the law compares s fault with that of and reduces s damages according to the measure of fault. o o Not a defense to an intentional tort. Three Types: Pure (13 States) s damages are reduced in proportion to the % negligence attributed to . ( responsible for 90% damages, can recover 10) Modified- (30 states) (a) not greater than: =50% form s responsibility is not more than 50%, s recovery is reduced by the % of fault attributable to as long as s fault is not greater than the fault of the s. if is greater than s, barred recovery. (b) not as great as: <49% rule- s responsibility is less than 49%, s recovery is reduced by the % of fault attributable of the as long as the s fault is not as great as s. o Most states now have some form of comparative negligence, whereby can still recover if she is negligent, but has her award reduced by the % of her fault. Some states use pure comparative negligence in which can recover something even if he is 99% responsible. Most states, however, use modified comparative negligence, in which plaintiff cannot recover anything if he or she is mostly at fault (more than 50% in some states, 50% or more in others).

(2) Assumption of the Risk (1) Express- defense usually does not work with intentional torts, contract valid you may use it as a defense, if not, it cannot be used. o if is injured but had contracted not to hold responsible for such injuries, the contract will be enforced to bar suit, unless: (1) the contract contravenes public policy

(2) s tort was an intentional tort (3) the injury was medical malpractice, OR (4) the contract waives application of a safety statute.

Comparative negligence statutes do not affect Express Assumption of the Risk, but may affect Implied Assumption of the Risk.

(2) Implied does not apply anywhere, except where contributory negligence is still allowed- almost all comparative negligence states thus almost all states have rejected the doctrine of Implied Assumption of the Risk, instead, they either say has no duty toward such a , or they subsume the question into the general comparative negligence analysis. Still valid in contributory negligence states (4). o o o (1) must have actual knowledge of the risk, (2) have an appreciation of its magnitude, and (3) must voluntarily encounter the risk. Encountering a risk while acting pursuant to a reasonable necessity means that the encounter was not voluntary and assumption of the risk does not apply. o o It is all or nothing, if it applies, is barred. Two Categories: (1) Primary Assumption of the Risk where the owes no duty to the or where the did not breach the limited duty owed to the rather than that assumed the risks inherent in the activitiy. was not negligent because he owed no duty or did not breach the duty to (2) Secondary Assumption of the Risk cases where the acts voluntarily but unreasonably to encounter a known risk an affirmative defense to a breach of duty owed to (1) Pure/strict Assumption of Risk o reasonable but bars recovery unreasonable but bars recovery (2) Qualified Assumption of Risk o o

Majority implied assumption of risk does not remain an affirmative defense separate and apart from contributory negligence.

(3) Statutes of Limitation

Procedural rules limiting the time has to file a lawsuit. The Statute of Limitations is subject to waiver ( it is a use it or lose it argument for the ), and equitable tolling. o I.E. In most states, the SOL clock begins only upon s constructive knowledge of the injury and s apparent negligent causation of it. o Some states require knowledge of s negligence; others require only constructive knowledge of the injury. o Other uses of tolling are where the victim is a minor child, and where has fraudulently concealed the injury or his own conduct.

Continuing Tort Doctrine allows suit for an entire continuous tort, starting the SOL count when the tort ends. One big violation, instead of multiple. Discovery Doctrine o The cause of action accrues and the SOL commences to run when the patient discovers or should have discovered the injury. o Many ways to distinguish the discovery. adopted by a majority of states, limits the application to foreign objects to all medical malpractice cases.

Tolling o o When the statue of limitation clock begins running Minors tolling stops when the minor reaches her majority or when incompetent becomes competent Some jurisdictions allows appointment of guardian to begin the tolling, some it does not because it does not remove the disability. o Some jurisdictions recognize equitable tolling where has fraudulently concealed the injury from the .

Statutes of Repose o Cannot be waived, no tolling. Time begins when acts, once time runs, the is no longer liable. o Give a firm outer bound for the timing of suits. They are not subject to the discovery rule or to waiver. They are substantive, where SOL is procedural. The clock for them starts when performs the action in question, regardless of when the injury occurs or is discovered.

(4)Immunity gets complaint dismissed even if liable. (1) Spousal Immunity:

o o

Most states have at least partially abrogated spousal immunity. Many eliminate immunity only for things like intentional torts, car accidents, and obvious exceptions where the beneficial relationship that immunity purports to protect is absent.

(2) Parent/Child Immunity: o o Most states have abrogated it, at least partially. Many keep the immunity (or limit the duty) for actions that are core parental activities. o Others eliminate immunity only for things like intentional torts, car accidents, and obvious exceptions where the beneficial relationship that immunity purports to protect is absent. o Parental Privilege - Universal concept that children may sue their parents for personal injuries caused by intentionally wrongful conduct. Majority hold parents are not liable for negligent supervision of their child whether stated in terms of a limited parental immunity, parental privilege, or lack of an actionable parental duty to supervise. Minority allow children to sue parents for negligent supervision under a reasonable parent standard.

Even in those situations where immunity has been abrogated, spouses and parents may face a LIGHTER DUTY in negligence cases. (3) Charitable Immunity: o majority of states have abolished this immunity making these institutions liable for their own negligence and for the negligence of their agents and employees when acting within the scope of their employment. o minority have made incursions, but have not abolished it completely. (1) abolished for charitable hospitals, but not for religious institutio (2) limit to recipients of charity (3) abolishes immunity if is covered by liability insurance

(4) Employer Immunity o worker compensation statutes confer immunity from tort liability on the employer and co-employees. Even if negligent, tort liability cannot be liable.

(5) State and Local Government Immunity o in most states, governmental immunity has been voluntarily waived, at least partially, by the government.

o o

Many states waive immunity for proprietary actions. Even when it is retained, governmental immunity is generally limited to discretionary duties. Immunity as to ministerial duties is rare. Discretionary duties are those where the government is acting to establish policy. Ministerial acts are proper duty from the manual.

Even without immunity, a government may not owe a duty to a particular citizen. When it undertakes a duty, it must perform it non-negligently. i.e. 911 call for assistance, must act on it.

(6) Immunity by the United States o The Federal government, like many states, has a general waiver of immunity, but with numerous exceptions. Where waiver applies, it allows suits against the government for negligence by public officials (suit is against government, not agent)

(7) Public Officers Immunity o Legislators and judges get absolute immunity for torts committed in the scope of their positions. Other officials typically only get qualified good faith immunity, though some states give total immunity to these officials. The immunity only extends to discretionary actions, not immune at all for their ministerial actions.

Chapter 7: Joint Tortfeasors (1) Joint and Several Liability o o each is liable for all the damages to the Three context in which J&S is applied if the jurisdiction allows J&S: (1) s acting in concert; (2) vicarious liability or (3) an indivisible harm. a concurrent tortfeasor i.e. the negligent conduct of more than one actor combined to cause an indivisible harm to . Man trips another man, he falls to ground, biker runs over him, breaking his leg. Both are responsible for the damages. o J&S has been scaled back because of comparative negligence. The most important issue in J&S liability is who bears the risk of an insolvent the other who is 100% liable for the damages to .

Many states still have J&S, many others restrict it only for non-economic damages; for s with less than a certain amount of fault. For certain torts, or for certain s (such as vicariously liable ones).

o (2) Satisfaction and Release o If has already collected full payment from one joint tortfeasor through judgment or settlement, there is full satisfaction and cannot proceed against any other joint tortfeasors. The settler may proceed against them though, to obtain contribution. o Partial satisfaction does not preclude s suit or collection against all remaining joint tort feasors, but the amount obtained from the partial satisfaction is subtracted from any judgment against them. Any partial satisfaction is credited to all parties who are liable. Collateral Source Rule payments not made by, or on behalf of the tortfeasor are not credited to the benefit of the tortfeasor. o This reduction may be pro tanto or by % (pro rata). Some states use one reduction method, some the other. Pro rata puts the risk of the initial settlement being good or bad on the plaintiff. Pro tanto puts it on the other defendants shoulders. I.E. if There is a $1M settlement. 1 is 40% liable, 2 is 60%. 1 settles for $300K. Pro Tanto 2 pays $1M-300K= 700K will only ever recover the judgment amount. Can be lower or higher, could recover more than the judgment o Test for full satisfaction: o (1) whole judgment money (2) what s thought they were settling for. Pro Rata 2 pays $1M -40%(amount 1 was liable)=600K

If has received money from a collateral source because of the injury, in most states this is not subtracted from a judgment as a partial satisfaction would be. Majority payments not made by or on behalf of party, not credited to the benefit of the tortfeasors. They dont from total. Minority payments made will subtract from total amount $ due.

In a majority of states, if settles with and releases one joint tortfeasor, this does not preclude suit against the other joint tortfeasors unless the release so specifies that it is a full release. The court will interpret the contract to determine the partialness of the satisfaction/release and whether it was in good faith. A joint tortfeasor is not released by a covenant not to sue.

o (3) Contribution and Indemnity o o Applies ONLY to jurisdictions that still have Joint and Several liability a who is J&S liabile can seek contribution for damages against other joint tortfeasors. It is not required that the have sued these other joint tortfeasors, but it is required that the could have sued them. i.e. if immune by , cannot sue for contribution. There is no right of contribution among intentional tortfeasors. In most states, a good faith settlement renders the settler immune from contribution from other joint tortfeasors. o Majority doesnt choose who to get suit, can seek contribution from all responsible parties. o o Minority chooses who to sue, can only seek contribution from them. Majority if they settle in good faith, also immune from contribution claims o Minority good faith doesnt matter, can seek contribution still

A joint tortfeasor who bears no fault can seek full reimbursement from the real bad guy, this is called indemnity. Examples include a negligence-free employer recovering from an employee for whose negligence he was held vicariously liable. A similar arrangement may be made through contract, for parties who have some fault from parties who have none but agreed to pay. o Occurs: (1) give rise to a cause of action for indemnity insurance contract i.e. a hold harmless clause in a contract i.e. employer for employee (2) a right to indemnity

(4) Apportionment of Damages

A will not be held J&S liable with another who causes a subsequent injury merely because it is difficult to apportion the causation of damages. The first will only be potentially liable for the second injury to the extent that his tort can be proven to have caused it (in fact and proximately) Where J&S liability may apply for an indivisible injury, the burden shifts to to establish apportionability and avoid J&S liability. To apportion damages, first reduce the damages into individual indivisible injuries. Then apportion liability separately for each one, so that no defendant pays for discrete injuries he did not cause. Apply J&S liability, if available, to applicable defendants and applicable injuries.

Chapter VIII: Duty of Care If he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger. o Three areas in which a duty of care is central to establish liability: (1) failure to protect plaintiff from a 3rd partys act (2) negligent act causes non-physical harm (3) negligent act causes loss to the unborn

1. Privity of Contract o it is no longer always impossible for plaintiff C to recover for the negligence of A when A breached only a contractual duty it owed to B. We now say that you owe a duty to those who might forseeably be injured by your negligent affirmative acts.

Nonfeasance (failure to perform an act that is required by law) not performing the contract gives a right to sue only in contract, not tort. o I.E. you do nothing, duty arose from the contract, no contract = no duty. Cannot sue in tort law. o Exceptions to treat nonfeasance as misfeasance when: A public utility or common carrier (has a general duty) A person entering into a contract in bad faith Special relationship establishes a duty

Misfeasance (the wrongful exercise of lawful authority) which includes performing the contract improperly, but also lying about nonfeasance, fraudulently entering a contract with no intention of performing, or partial performance can be addressed in a tort action. o Exception: o In most situations, lawyers owe a duty only to their clients. when the defendant misperforms the contract the possibility of recovery is greatly augmented. i.e. fulfill promise, just mess up contract in a way that injures plaintiffable to sue under that.

Failure to Act: No general duty to protect (Common Law), but there are exceptions: Moral and Humanitarian considerations may require one to render assistance to another who has been injured, even though the injury was not due to negligence on his part and may have been caused by the negligence of the injured person. Failure to render assistance in such a situation may constitute actionable negligence if the injury is aggravated through lack of due care. To determine if theres a duty: o Engage in analysis that weighs and balances factors of: The nature of the underlying risk of harm (forseeability and severity), the opportunity and ability to exercise care to prevent the harm, the comparative interests of and relationships between or among the parties, and the societal interest in the proposed solution. Consider scope of that duty (the risk of harm involved and practicality of preventing it). o In almost every state, there is no general duty to rescue. There are several significant exceptions, including: (a) business invitors, (b) bosses (c) person creating the harm (even if not negligent) (d) person controlling the instrumentality of harm (e) person who has induced reliance on an expectation of rescue and caused harm as a result.

The duty to take affirmative action to control the conduct of a 3rd person may arise when: o (1) the defendant stands in a special relation to the plaintiff that requires him to exercise affirmative care to protect him against the conduct of a 3 rd person. o (2) the defendant stands in a special relation to the 3rd person that gives him a power of control over that persons actions. He is required to use reasonable care to exercise that control to prevent the 3rd person from injuring the plaintiff. In all cases, the defendant is liable only for failure to exercise ordinary care. Either have no duty or ordinary care duty.

Defendant may have a duty to protect plaintiff from a third party, which can come from: (1) a special relationship between defendant and plaintiff (common carrier, customer on premises, inn keeper and guest, temporary legal custodian and the charge, parent), or (2) a special relationship of control or responsibility between defendant and the third party (i.e. psychiatrist and patient who kills plaintiff, boss, and worker who hurts customers) Once the duty applies, though, defendant only needs to be reasonable to avoid breach.

When a persons omission causes the plaintiffs personal injury, the courts have widely recognized the duty. If economic, no duty.

Emotional Distress: The Impact Rule where a definite and objective physical injury is produced as a result of emotional distress caused by defendants negligent conduct, the plaintiff in a properly pleaded and proved action may recover damages for such physical consequences to himself notwithstanding the absence of any physical impact upon plaintiff at the time of the mental shock. o Defendants standard of conduct is measured by reactions of a normal person. Most jurisdictions do not apply this rule. o Where a person has narrowly escaped imminent harm, the courts have allowed recovery upon a demonstration of ensuing mental disturbance. Minority must have physical harm to recover for emotional distress, no case of pure emotional harm. Need contemporaneous physical impact to recover.

Majority a causal relationship between fright and the injuries are definite physical manifestations of the emotional impact: two exceptions o (1) Minority rule death telegram rule (federal allowed if physical harm results) o (2) negligent interference with dead bodies Must HAVE: (1) plaintiff was so upset there was a physical manifestation of emotional distress, and (2) reaction was normal and reasonable. Once established the line to recover, hyper sensitivity may recover if thats something considered reasonable.

hypersensitivity does not apply here, must be reasonable o

To recover for negligent infliction of emotional distress (NIED), plaintiff no longer need to have a contemporaneous physical impact. However, if there are not contemporaneous physical injuries, the emotional reaction must manifest itself with definite and objective physical effects before plaintiff can recover. Additionally, it must be shown that a normal person would suffer an emotional reaction passing the same threshold (though once that is shown, plaintiff can recover for the entirety of his emotional reaction). Remember, though, that if there is contemporaneous physical harm, though, plaintiff can recover for the emotional harm if it is significant, but without these extra showings.

To recover for NIED from witnessing an injury to another, many states require that plaintiff herself have been in the zone of danger of physical injury (the Zone of Danger Rule thing that injured the 3rd party, could have injured you because of the proximity to the accident, if not in zone, then no recovery, Range varies). A strong trend, however, is for states to require instead that plaintiff witness the actual impact on the victim, be a close family member of the victim, and suffer more distress than a typical bystander would. (must witness the accident happening, be present and observe the impact, 3rd party must be a close relative, not a friend of coworker, and the reaction must be worse than a normal person would have.) (I.E. watch your kid get hit by a bus, or watch the neighbors kid).

Unborn Children o Injuries Suffered in Utero: Majority a viable fetus can typically recover for injuries sustained in utero if it is born alive. (Viability Rule) (exception of

Viability rule is that a mother does not owe general duty to her fetus). It can also recover (through a wrongful death action) if it is not born alive, at least for post-viability injuries. Parents can recover for the damages that they themselves suffer in either case. Minority death of a person applies only to include individuals who were born alive, and thus unborn children cannot recover. o Wrongful Birth Suits Majority if a child is born, and but for defendants negligence the parents would have aborted it because of a defect, allow parents to recover. Damages may include emotional injury, extra cost of child-rearing caused by the defect, or in some places the entire cost of child-rearing, but the plusses of parenting may be subtracted from these damages. o Wrongful Life suits: Minority:Only a small minority of states allow the child to sue for wrongful life suits. Those that do generally limit damages to the medical expenses presented by the defect. They do not allow recovery for the existential torment of a traumatic life, however, because the alternative of non-existence is considered to be even worse (or at least incommensurable) as a matter of law. o some allow for wrongful pregnancy some allow for child-rearing costs.

Majority: do not allow for wrongful life

Wrongful pregnancy usually from informed consent violations or botched sterilization. The damages typically include the costs (including pain and suffering) from pregnancy and labor. Some states allow damages for child rearing costs, but only when the parents reason for not wanting a child was economic.

Chapter 9: Owners and Occupiers of Land 4 Kinds of Plaintiffs, generally with a reduced duty. (1) Outside the Premises: o Majority Defendant landowner has no duty to protect a plaintiff off of the premises from natural occurrences on/from defendants land. Exception: for things involving human agency or trees, defendant owes a duty of ordinary care if he has knowledge or constructive

knowledge that a tree may cause damage. Liable if he knows or should have known that the tree is defective and fails to take reasonable precautions. Once a landowner alters a condition of his land, it becomes an artificial one for the purposes of tort law and the owner must exercise reasonable care for the protection of those outside the premises. o Ordinances requiring removal of snow and ice are construed to be a duty to the municipality, not any private individual. Some courts extend this liability to individuals. (2) On the Premises o o o (A) Trespassers generally no duty. Exceptions: All require at least ordinary care. Majority willful or wanton, anticipated/constructive knowledge owe duty of RPP. (1) Anticipated Trespassers - In most jurisdictions, defendant owes a duty of care to known or anticipated trespassers. Jurisdictions vary as to what duty is owed they range from a duty not to wantonly injure up to a duty of reasonable care, with many jurisdictions in between. A trespasser whose presence has been discovered. Defendant is liable for injury to a trespasser for conduct that is willful or wanton (failure to use ordinary care). Some states hold that there is no liability even to a discovered trespasser unless the defendants conduct is willful or wanton. Majority of states have now discovered willful and wanton as a limitation and have held that when a trespasser is detected, there is a duty to use ordinary care to avoid injuring him by active operations. Active operations are machinery in motion or a warning against it. (2) Trespassers on a limited area of the land exercise reasonable care. (3) Tolerated intruders RR company that fails to take steps to prevent trespassing, it would be burdensome, expensive, and perhaps futile, is not an indication that it consents to the entry. (4)

Dangerous conditions obvious to the owner and to trapped trespassers in peril (duty of rescue owed). Minority the courts have developed a special rule in RR cases requiring the defendant to be on the lookout for trespassers where their presence is foreseeable and the activity carried on involves a high degree of danger to them. (3) Licensees: o A licensee is someone on defendants property for his own purpose, though it is too easy to dispute whose purpose is being served, so it is probably best just to be categorical here: Licensees include social guests, solicitors, and basically anyone who is not an invitee. Two categories: (1) the bare licensee salespeople, social visitors who drop in without an express invitation. Less of a duty owed to ordinary licensees. (2) ordinary licensee social guests

takes premises of his host as he finds them. Owner has a duty to warn of any hidden dangers, unknown to the guest of which the owner has actual knowledge and to refrain from injuring his guest willfully or wantonly. If it is an open and obvious issue, then they cannot be held liable.

3 Parts to duty owed to a licensee: (1) warn of hidden danger, unknown to guest that owner has actual knowledge, (2) refrain from willful or wanton injury to visitors, and (3) active operations to exercise ordinary care. Majority the defendant, in conducting active operations, is under a duty of reasonable care toward licensees. Duty extends not only to licensees who are discovered, but to those whose presence might reasonably be anticipated. Minority no duty to a licensee except to refrain from inflicting willful or wanton injury. If defendant landowner knows about a dangerous, latent condition on his premises that a visitor is likely to encounter, he is under a duty to warn the licensee about it.

A social guest does not become an invitee merely by providing an incidental service to defendant.

Defendants duty to a licensee is to not be willful or wanton, and to warn of hidden dangers that are unknown to the licensee but actually known to defendant. A higher duty reasonableness is owed to an invitee.

When defendant is conducting active operations on his property, he owes a duty of reasonable care not only to invitees but to licensees, and to known trespassers.

Child licensee: there may be an obligation to inform a child licensee about a risk when there would be no duty with regard to an adult. If child is you, a warning may be in sufficient protection.

(4)Invitee: (things open to the public) business visitors: customers, employees, delivery, repair, etc. Note that despite the common use of the word business here, homeowners may have invitees too Goes on the land in furtherance of the owners business. Enters premises by permission, but for their own purpose. o o Duty owed to invitee is greater than a licensee. The owner of the premises has a duty to exercise reasonable care in keeping the premises reasonably safe for use by the invitee. o Duty may be extended to include the responsibility to protect the invitee from criminal acts by 3rd parties. Invitee status has limits. If you stay past the basis of your invitee status, and/or go past the physical area of your invitee status, you may become a licensee (or maybe even a trespasser). o Sometimes there is an unreasonable risk of harm to an invitee even with a warning. A warning by defendant of the presence of a hazard will not necessarily make defendant free of liability. Ordinary care might require more than that. The Attractive Nuisance Doctrine a defendants limited duty to trespassers may be heightened to children under this doctrine. The danger must be artificial and cause physical harm. Defendant must have constructive knowledge that (1) children are likely to be on the premises (attracted by the attractive nuisance,

which is not necessarily the thing that is dangerous); and (2) the dangerous condition must present a very unreasonable risk of serious bodily harm. The child must be unaware of the hazard or the level of risk it presents because of his or her youth. This only establishes duty, though: if the doctrine applies, defendant need only exercise reasonable care. Applies to artificial conditions highly dangerous to trespassing children Cannot be a natural condition on the land.

Many states have abolished the categories of licessee versus invitee and just apply a duty of reasonable care to both. o Minority abolish categories of trespasser or non-trespasser. Reasonableness still varies by context, so this does not set trespassers and licensees on exactly the same footing as invitees

Persons Privileged to Enter Irrespective of Landowners Consent: o Public employees or officials are privileged to enter and could insist upon doing so even if the landowner made an objection. Emergency services licensees Meter readers invitees.

Some jurisdictions get rid of the distinction between licensee and invitee.

Lessor and Lessee: Majority: a general rule of no duty from lessor to lessee, modified by a series of exceptions. It is sufficient that the lessor has information that would lead a reasonable person to conclude that the danger may exist, and that if he does he must disclose the information to the tenant. Number of courts have utilized an implied warranty of habituality to create a duty on the part of the lessor to deliver the premises in a habitable condition. o o Exculpatory clauses put forth by lessor is void. Landlord liable to tenant when: Few courts have extended the warranty of habituality to include security. Some courts have focused exclusively on similar incidents, and others look to totality of circumstances to determine forseeability.

Undisclosed dangers conditions constructively known to lessor and unknown to the lessee Conditions dangerous to persons outside the premises Premises leased for admission of the public Common areas of use for the lessee Where lessor contracts to repair Negligence by lessor in making repairs

In most jurisdictions, landlords owe no duty to guests of their tenants other than in certain exceptional situations. Taken together, we will say for our class that these exceptions translate into something like the landlord owing the guest the duty when the tenant doesnt know about or lacks control over the danger. In some states, this has been largely swept away and the landlord owes a general duty of reasonable care. o Minority: landlord must exercise ordinary care toward his tenant and others on the premises with permission.

Damages: Three kinds of monetary damages (1) Nominal Damages a small sum of money (usually $1) awarded to prove he won the case. (2) Compensatory Damages intended to compensate the victim for the injury o o Economic (Specific), non Economic (general) collateral source rule is applied when the plaintiff receives compensation from any source collateral to the tortfeasor. o Apply discount rate, plaintiff wants low DR, high inflation; defendant wants high DR and low inflation ($1 worth more today than a $1 tmw) (3) Punitive Damages intended to punish the defendant and to deter others o o do not reflect plaintiffs loss. ARE TAXABLE. Majority a standard of clear and convincing evidence required. For negligence establish willful and wanton conduct by C&C evidence. Same for strict liability. o o o A necessary but not sufficient one. Available for intentional torts, generally not awarded Discretionary damages, dont have to be awarded by jury. Must win inorder to get punitive damages.

Violates Due Process to have a punitive damages award disproportionate to compensatory damages. Good proportion is 4 CD to 1 PD. Can only punish for what was done to a specific plaintiff. Plaintiffs wealth could be relevant to P.Damages. If wealth is relevant then it is admissible. I.E. Google v. Kalt, PD for Google, $1000 not a deterrent but to Kalt it would be. Some courts allow insurers to pay PD, but MANY dont.

Tort law attempts to redress injury only through the rough method of lump-sum money damages. Upon an arguably excessive damages award, on defendants motion, a court can order a new trial or remittitur (giving plaintiff the option of accepting a lower, reasonable award, or rejecting it and opting instead for a new trial). The standard for excessiveness is whether a reasonable jury could have awarded this amount. Courts might also put this as whether the award shocks the judicial conscience, or if the award was a result of passion or prejudice by the jury.

Future damages typically require expert testimony on likely future needs, counterfactual career paths, discount rates, etc. Experts also may testify on the reasonable value of services, for both past and future damages. Some courts fix the discount rate, usually between 0-3%. Others calculate it ad hoc.

Personal injury damages generally are not taxable, but other compensatory damages are, and punitive damages generally are. If plaintiff unreasonably fails to mitigate damages, he cannot recover that increment. Damages for physical harm to property are based on FMV assuming an open market, voluntary sale, leisurely seller, and willing buyer at time and place of injury. A reasonable additional amount is allowed for sentimental value for some items.

Doctrine of Avoidable Consequences a rule that does not allow recovery of those damages that plaintiff could have avoided by reasonable conduct on the part of the plaintiff after a legal wrong has been committed by defendant.

Chapter 11: Wrongful Death And Survival Every state now allows for wrongful death suits. Depending on the jurisdiction, either the personal representatives of the estate or the next of kin bring the suit. Damages may be measured, respectively, from the decedents perspective

(mainly lost earnings) or from survivors (mainly lost of support and services, and in some cases, emotional damages). Most states no longer terminate a cause of action upon the death of one of the parties. This applies both to cases in which the death is related to the issue of the suit, and those where it is not. In the former cases, some states combine survival and wrongful death to allow decedent to recover in a single case for losses and suffering before death as well as post-mortem damages. Survival statute reverses the common law rule by providing that a cause of action for personal injury survives the death of the plaintiff or the defendant or both. Majority of states allow the action to survive. Few states allow IIED. Wrongful death a new cause of action created by the death of an individual due to the tortious conduct of another. o Comparative Negligence plaintiff or decedents % of fault is subtracted from the defendants % of fault and that is the award. In modified comparative negligence systems, recovery by that beneficiary is precluded if the threshold is reached. Chapter 13: Vicarious Liability Often called imputed negligence A is negligent, B is not, C is injured by As negligence by reason of some relationship between A and B, B is responsible for As actions, although B has played no part in it, has done nothing to aid or encourage it, and in fact may have done all that he possibly could to prevent it. Liable for torts committed when lending someone your car. Respondeat Superior look to the person higher up o An employer may be liable for the tort of his employee, regardless of whether or not the employer is free from tortious conduct himself. The employees negligence must arise within the scope of the employment. Dont forget that the employee can be sued for the tort as well. This is where people lose points of exam! o Vicarious liability for the torts of the employee when the employee was acting within the scope of employment at the time of the tort: (1) prove person was employee (2) acting w/n scope of employment (3) prove person committed tort

Generally a short answer question on exam, usually about the 3rd element.

As a separate (non-vicarious) matter, the employer may be liable under a regular negligence theory (i.e. negligent hiring or supervision) in addition to or instead of vicarious liability.

If the employees negligence occurred on a frolic during work hours, but too far outside the scope of the enterprise the employer is not liable. But the employer will be liable if it is a minor detour of a sort that the employer expects and or tolerates. o Frolic abandonment of employers business while in pursuit of employees own personal business o Detour slight deviation from employers own business for employees own reasons LIABLE.

There is only vicarious liability for an intentional tort by an employee when it was more directly within the scope of the employment than with negligence. o I.E. battery by a bouncer at a bar.

Independent Contractors o Not subject to supervision, dominion, or control of the main corporation or person, and therefore, the employer is not liable for the ICs torts. Exceptions: (1) nondelegable duties, liabile only within scope of the contract o o o for example, car brakes cannot escape liability by hiring an IC I.E. car safety, proper maintenance, building design, crimes, etc. (2) apparent authority, one who expressedly or impliedly represents that another party is his servant or agent may be held vicariously liabile for the latters negligent acts to the extent of that representation (3) inherently dangerous activities

the exception for inherently dangerous activities does not apply when the independent contractors negligence is deemed collateral to the inherent risk of the activity.

If company is negligent in selecting IC, then liable.

Joint Enterprise to impose vicarious liability upon one person who is engaged in same activity with another person commiting the tortious act. o Not employee/employer relationship but a partnership I.E. car accident, mom dies, husband survives, had it been on ranch business, would have been liable if the wife were acting within the scope of the ranch business MAJORITY: must be a commercial enterprise, and must have had control over activities of enterprise, not a silent investor

Bailments o A bailment does not make a bailor vicariously liable for the acts of the bailee in the use of the chattel Exception : Most states make you vicariously liable for lending someone your car (generally by statute) o Not a car rental, but informal lending of the car Family Car Doctrine If parents furnished child with the car, then they are liable too.

Imputed Contributory Negligence o Contributory Negligence is minority rule. Exceptions: Driver and passenger Husband and wife Parent and child

The symmetry test, if negligence can be imputed, contributory negligence will be also. For comparative negligence still impute it, take % fault of victim away from the person, up until the 50% rule.

Vicarious liability not only imputes negligence but also may impute comparative negligence. That is, if X would be charged with Ys negligence vicariously were X a defendant, he will be charged with Ys negligence when he (X) is a plaintiffi too, and thus will have his recovery reduced or eliminated. X stands in Ys shoes either way. This is generally limited, however, to vicarious liability relationships involving control (i.e. respondeat superior, non-delegable duties, and joint enterprise, but not car owner/lender).

Chapter 14: Strict Liability The defendant must pay damages although the defendant neither intentionally acted nor failed to live up to the objective standard of reasonable care that traditionally has been at the root of negligence law. Remember that even if defendant is subject to strict liability for engaging in an activity, plaintiff still must establish causation in fact, proximate cause, and damages before defendant will be liable. Proximate cause is harder to establish for strict liability than it is for negligence. 3 Categories: Animals, Abnormally Dangerous Activities, and Defective Products Wild Animals o If the animal injured anyone and the animal must injure you in a wild animal way o I.E. a badger mauling you YES, tripping over a goat NO Generally, owners of wild animals are strictly liable for damage they do.

Domestic Animals o If the owner knows of should have known that a domestic animal has vicious propensitites abnormal to its class, this is sufficient to classify that animal with wild ones and impose strict liability. o There is also strict liability for domesticated animals of known (or constructively known) vicious tendencies. The damages must not be from something collateral, like tripping over the animal. It must be from something animal about the animal.

Abnormally Dangerous Activities

Conducting abnormally dangerous activities subjects the performer to strict liability for damages it causes. The determination of abnormal danger is generally based on Restatement 520, which looks to the risk and magnitude of harm, location, commonness, value to the community, and most importantly, whether reasonable care would not prevent serious harm. IN other words, we perform a society-wide cost-benefit analysis for the activity in question, and if the benefits are significant but the costs are great and hard to avoid, we impose strict liability for the activity. The person who for his own purposes brings on his lands and collects and keeps there any thing likely to do mischief if it escapes, must keep it in at his peril, if not, then liable. Natural v. non-natural Natural typical/usual way to use land, if natural to log on land, and someone is injured, not strictly liable If unusual/unnatural strict liability Majority - The Rule of Rylands the defendant will be liable when he damages another by a thing or activity unduly dangerous and inappropriate to the place where it is maintained, in the light of the character of that place and its surroundings. To determine if activity is abnormally dangerous: (a) existence of a high degree of risk of some harm to the person, land, or chattels of another (b) likelihood that the harm that results from it will be great (c) inability to eliminate the risk by the exercise of reasonable care (d) extent to which the activity is not a matter of common usage (e) inappropriateness of the activity to the place where it is carried on (f) extent to which its value to the community is outweighed by its dangerous attributes A-C = PL, D-F = B B<PL = negligence, B>PL strictly liable Firearms are not inherently dangerous, blasting is typically.

Limitations on Strict Liability o To be strictly liable, it must be a proximate cause of the injury.

Strict for SL > N > Intentional Tort

Comparative negligence and (in the rare places where it has not been abolished) implied assumption of the risk are defenses to strict liability. Contributory negligence is not.

Chapter 15: Products Liability The liability of a manufacturer, seller, or other supplier of a chattel, to one with whom he is not in privity of contract, who suffers physical harm caused by the chattel. Liability may be upon warranty, or it may be based on strict liability. Liability for dangerously defective products might be under a plain negligence theory, a warranty theory, or strict liability. Not all states allow all methods in all cases, but negligence is always available as a possibility. The negligence standard for products liability is that the manufacturer owes a duty of care to foreseeable users of the product, regardless of privity of contract, if the product would be likely to cause injury if negligently made. If that duty is breached, causing damages, defendant is liable. This doesnt really vary from our existing understanding of negligence (1) Manufacturers making material representations about their products that turn out to be false are strictly liable for damages caused by reasonable reliance on those representations. Privity is irrelevant. This is express warranty. o Liabile the original act of delivering an article is wrong, when, because of the lack of those qualities which the manufacturer represented it as having, the absence for which the consumer would ordinarily use it. Exception: When the case is not an isolated instance, but general in its character, and the existing rule does not square with justice. o For express statements to qualify and safety made in advertising, on labels, and in brochures or other literature accompanying the product, or documents shpped to be transmitted to the ultimate purchaser, there was an express warrantly to the purchaser. Contract always wins.

(2) Under implied warranty, a seller or manufacturer impliedly warrants that an item sold is reasonably fit for the general purpose for which it is manufactured and sold. The manufacturer is strictly liable for damages caused when this warranty is broken. Privity is irrelevant. A consumer can bargain away this

implied warranty (such as by buying a product with a very limited express warranty), but it must really be bargained away (that is, there must be some choice). In most states that use plain strict liability (discussed next), however, implied warranty is not really used anymore. o Implied warranty arises if the buyer, expressly or by implication, makes known to the seller the particular purpose for which the article is required and it appears that he has relied on the sellers skill or judgment, an implied warranty arises of reasonable fitness for that purpose. (3) Strict Liability in Tort A manufacturer is strictly liable in a tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human. o To establish liability just prove that he was injured while using the product in a way that it was intended to be used as a result of a defect in design and manufacture of which plaintiff was not aware that made the product unsafe for its intended use. o Only a few jurisdictions do not recognize a cause of action for strict liability for personal inury caused by a product. (2) Product Defects Manufacturing defects o Under both analysis, strict liability is there if it was there from the manufacturer. o The Second Restatement ( 402A) simplified strict liability for defective products by eliminating all vestiges of contract theory. In these states, a manufacturer is strictly liable for defective conditions in its products that are unreasonably dangerous and that damage plaintiff, and that were not materially altered after leaving manufacturers control (i.e., the defect must have been present when the product left the manufacturers hands). o The Third Restatement distinguishes between manufacturing, design, and warning defects. It maintains strict liability for manufacturing defects (which are defects in which there is a material deviation from the intended design of a product), but not for design or warning defects. Negligence is available for all three types of defects, though.

Design Defects o o If SL applies, no implied warranties. If negligence, maybe. Are those that stem from the manufacturing specifications; the inherent design of the product gives it dangerous propensities. Some states follow the Second Restatement and apply strict liability to design defects along the lines of 402A. 402A: Special Liability of Seller of Product for Physical Harm to User or Consumer (1) 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 (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contract relation with the seller. o Even under Second Restatement , strict liability for defective design is not available for widely used products with well-known risks, or other obvious risks. Negligence liability is still available for these categories, though.

Most follow reflect the Third Restatement and apply a negligence standard. o o Product Defectivenes 1: Liability of Commercial Seller or Distributor for Harm Caused by Defective Products (a) one engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect. o 2: Categories of Product Defect

A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product: (a) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product; (b) is defective in design when the 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, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonable safe; (c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.

Requires the plaintiff to prove that the product is defective in design. the idea that something is wrong with it that makes it dangerous. A plaintiff has the burden of proving: o o (1) the product was defective (2) the defect existed when the product left the hands of the defendant, and o (3) the defect caused the injury to a reasonably foreseeable user.

Widely distributed products could only be subject to liability for a defective design if a plaintiff proved that a reasonable alternative design was available. o Cannot say it is defectively designed if the risks are well-known, and have high utility of usage.

Design defect can be proven by the risk/utility balancing test. Most states use R/U. Althouh some use R/U in a strict liability analaysis, as a practical matter,

R/U just reduces the analysis to negligence. Some states use instead, or in addition, the consumer expectation test: there is a defect only if a consumer has a reasonable expectation as to use or performance or safety therein of the product, which the product fails to meet. Like res ipsa loquitor, defect may be established by evidence that the harm that occurred was of a kind that ordinarily occurs only because of a product defect for whith the manufacturer was probably responsible, and by sufficiently excluding other possible causes. Also, defect may be established in a way similar to negligence per se, by showing that a product violates some relevant safety statute or regulation. Most states require that before a design can be ruled defective, that there be a practically and economically feasible alternative design that would have avoided the risk in this case. The risk-utility analysis: o Appropriate when the product may function satisfactorily under one set of circumstances, yet because of its design present undue risk of injury to the user in another situation o Factors: The usefulness and desirability of the product The safety aspects of the product The availability of a substitute product The manufacturers ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility The users ability to avoid danger by the exercise of care in the use of the product The users anticipated awareness of the dangers inherent in the product and their avoidability, based on warnings or public knowledge The feasibility (on manufacturers part) of spreading the loss by setting the price of the product or carrying insurance Majority rule many use risk-utility analysis Minority rule some use the consumer expectations test o The consumers expectations test recognizes that the failure of the product to perform safely may be viewed as a violation of the reasonable expectations of the consumer

i.e. use a lawnmower as a hedge trimmer

Most jurisdictions require that the plaintiff prove an alternative feasible design in order to prove design defect. o o Majority no requirement for a reasonable alternative design Minority better way to make it and that way is non-negligent, but the way they are currently making it is negligent, liable for defect.

A few courts have held that open and obvious or patent danger is an absolute defense to a design defect case o Most reject and consider as one factor of the risk-utility test

Warnings Defect o A good warning has: o 1) stands out, ability to be noticed 2) notion of the 2 informed risks of harm (the what?) 3) usage to case harm (how?) inform to avoid/minimize risk

There is liability for inadequate warnings or instruction if there is a foreseeable risk of harm that could have been reduced or avoided by an adequate warning. Some states follow the Second Restatement (strict liability and negligence available) but most reflect the Third (negligence only). Adequacy of a warning is based on the warning getting peoples attention, informing them of the risk, and informing them how to avoid it. Lack of constructive knowledge of the risk is generally a defense (even to strict liability) for failure to warn. Conversely though, there is a continuing duty to warn of subsequently discovered damages, subject only to a negligence standard (even in strict liability jurisdictions). Risks that are obvious do not require an additional warning the obviousness of the danger is its own warning, by definition. For an individual plaintiff to establish causation, he or she must be able to show that an adequate warning would have prevented the damages. This means that a sophisticated user may not need as much warning. It also means that someone who doesnt follow directions may not be able to establish causation. Majority : Knowledge or knowability is a component of strict liability for failure to warn. Most find that there is no duty to warn of obvious dangers or of risks that are generally known. Inadequate warning plaintiff will lose if you cant show causation

Allows defendant to get to specifics on plaintiff. Directions count as warnings.

For pharmaceuticals: most courts hold that warnings and instructions should be provided to the physician, who is a learned intermediary between the drug company and the patient and the best person to understand the patients needs and assess the risks and benefits of a particular course of treatment Learned intermediary rule warning is for doctor not you, as long as it is sufficient for the doctor, it is fine.

In many jurisdictions, plaintiff is entitled to a presumption that the user would have read and heeded an adequate warning. Make warning for least capable foreseeable user. Post Sale Duty Many courts impose a duty on the manufacturer to provide post-sale warnings about risks that are discovered or that develop after the sale. Very few courts have extended a manufacturers post-sale obligations beyond a duty to take reasonable steps to provide warnings.

Proof: Uses quasi-res ipsa loquitor for the Third Restatement o Plaintiff must prove: (1) that the product that injured the plaintiff was, in fact, manufactured by defendant. (2) that the product was defective and plaintiff was injured as a result. (3) that the defect was present in the product at the time of the sale and was not introduced by a distributor or installer or repairer. o o Can use direct or circumstantial evidence. Most jurisdictions provide that violation of a product safety statute or regulation makes the product defective as a matter of law defect per se. The fact that the product went wrong may give rise to a permissible inference that it was defective and that the defect existed when it left the hands of the defendant.

Defenses for Products liability Claims

Contributory negligence is not a defense to SL, but implied assumption or the risk is (even though it is a null concept) Comparative negligence is a defense to SL, call it comparative fault. There is no duty to inspect by the plaintiff, it will not give rise to this comparative fault defense. Most states use comparative fault in products liability cases, even in strict liability cases, though plaintiffs negligence in not discovering the defect generally is not included in comparative negligence here.

Misuse can vitiate various aspects of a products liability claim. It can eliminate the notion that there is a defect (if the misuse is not reasonably foreseeable), or that there is proximate cause (if the misuse constitutes a superseding cause), and it can also be used to show comparative fault (if defendant is liable but plaintiff was negligent too). o The misuse of a product that amounts to unusual handling should not give rise to strict liability. o If misuse is abnormal (not foreseeable) then the manufacturer will not be liabile. Mostly about constructive knowledge of the manufacturer. o Misuse can be used as a defense for: (1) to show defect (2) causation possible (3) comparative negligence foreseeable? (doesnt need to be specific on the foreseeability) If Yes, Defect, defendant may not be cause, misusing by the plaintiff would be a superseding cause If NO, say plaintiff was negligent, reduce damages.

Commercial wholesalers and retailers (i.e. not occasional sellers) typically are subject to strict liability for defective products to the same extent as manufacturers. If found liable, they can generally seek indemnity or contribution form others high up the chain.

Sellers of used goods, however, are excluded from strict liability in some jurisdictions, either because the chain has been broken by the previous owner (who is presumably not a commercial retailer) or because the manufacturer is no longer strictly liable because the damages are not caused by a defect it caused.

Defendants Other than Principal Manufacturers:

(A) Other Suppliers of Chattels o SL applies to those who profit from defective good in the business of selling products o Majority no SL for retailers selling used products Can sue for SL to retailers, distributors, and wholesalers, and manufacturers As long as the chain is not interrupted, SL applies Minority some states will have rules about suing in the chain I.E. retailers can only be sued if manufacturer is bankrupt

Manufacturer of Component Parts or Raw Materials: o Can be subject to SL if defect were there when it left the component part maker

Indemnity or Contribution: o The retailer would be entitled to indemnity or full reimbursement from the manufacturer, unless the retailer was negligent. o The manufacturer would be entitled to indemnity from the maker of a defective component part unless the manufacturer was negligent. If negligent, can seek contribution.

Vicarious Liability for Sellers in Chain of Distribution Services There generally is no strict liability for defective products for providers of services (including those who sold a defective product, but only incidentally to selling the service). Remember though, that the negligence remedy is always potentially around for all of these situations. o Hospitals provide service and sells product that is incidental to service. no SL o If buy defective toy from hospital gift shop, then they can be SL When the transaction will have both a sale and service component, in those cases, the courts will not apply a strict liability if the transaction is predominantly a service, with only incidental transfer of goods. Books and games bad advice in books, not hold bad content because it does not give rise to products SL, but yes for negligence o i.e. toxic ink or razor sharp pages, then YES for SL Buy water heater at Sears, service is part of product SL If not in commercial context based on product, but for service then

Harm other than Personal Injury Consequential damages Pure economic loss contract remedy Federal tort reform home court advantage, easier to get large judgment from manufacturer v. normal plaintiff Plaintiff would want: A low discount rate Significant abrogation of governmental immunity Minority rule for informed consent cases Pure comparative negligence Shopkeepers exception to be irrelevant