Tort a civil wrong other than breach of K for which the law provides a remedy.

. Civil Who is the P? Burden of proof Remedy preponderance make person whole Criminal State is P beyond reasonable doubt punish

Modern tort law is usually about distinction between intention and negligence. Important b/c 1. No punitive damages if a neg. case 2. respondeat superior not imputed for intentional torts but is for neg. (meathooks case) 3. higher degree of responsility on intentional tortfeasor 4. If intential tort then no liability insurance coverage 5. Statute of limitations 6. Cause of action against US? Us only liable for the neg. acts of its employees NOT intentional torts. Lambertson v. United States, court did not permit P to recover by dressing up the substance of battery in the garments of negligence. Court did right thing here as opposed to Spivey. US generally allocate responsibility based on fault. Harm based: NZ, workers comp. And no fault insurance.

Intentional Torts Negligence Strict liability: subjects actor to liability due to public policy. Must still be a causal relationship between the action and harm. Spano v. Perini Corp. Master blaster. Blasting = abnormally dangerous activity. Neither intent nor negligence = strict liability. There are exceptions to strict liabliity: time passed and interruptions in causal chain. Strict liablity cases DO NOT entertain concept of comparative neg. Strict liablity DOES NOT deal with fault. Too far away in time or space = too remote and you cannot recover. 1st Restatement: UH (2) evolved into -->2nd Restatement: AD (6) 1. Not a matter of common usage to the locality (Piqua v. NYC) UH 2. Nature of enterprise is such you cannot act without risk UH 3. Is the harm great? 4. Is the risk high? 5. Inappropriate? 6. What is the benefit to the community?

EVOLUTION Trespass direct and immediate application of force to P's person or P's property Weaver v. Ward, skirmishing soldiers. Earliest known case in which it is recognized that D might not be liable even in a trespass action for a purely accidental injury. significance: D can make an excuse. Brown v. Kendal. Beating dogs, D using stick, hits P in eye. Burden of proof that used to rest with the D now moves to the P.

Action on the Case everything else

Log rolls off cart and hits me in leg = direct and forcible injury = trespass I come along road afterward and trip = action on the case Cohen v. Petty: O Tree, I feel sick. P cannot recover here. one who is suddenly stricken by an illness which he had no reason to anticipate while driving an auto is not chargeable with negligence. Squibs: D while sleeping pushed foot against back of car seat being driven by P, D not liable b/c he did not act with volition. INTENTIONAL TORTS Intent: either that the D desires or is substantially certain the elements of the tort will occur. Voluntary AND act with purpose/desire, or KWSC. Garratt v. Dailey hinged on this. Hypo: D threw stick b/c of twitch? Not voluntary = no intent to hit P. KWSC is judged on the reasonable person standard. Hypo: foreigner inappropriately kisses a woman = KWSC = battery. Non example: Spivey v. Battaglia risk short of substantial certainty is NOT the equivalent of intent. Transferred Intent Person to Person. A throws stick at B and hits C. Intent to batter transfers from B to C. Talmadge v. Smith Tort to Tort Only for 5: battery, assault, FI, trespass to chattels, trespass to land. Hypo: D shots at dog (trespass to chattels) and hits boy scout (battery) Both Tort to Tort AND Person to Person. A threw stick to scare B (assault) and hit C. intent transfers from B to C and tort assault to battery. Mistake Doctrine mistake is NOT a defense Ranson v. Kitner. Hunters thought P's dog was a wolf and shot it. Exception: privilege of self-defense and defense of others protects D from liability for reasonable mistakes. Reach into pocket reasonably believed reaching for a gun not a handkerchief, D attacks P to defend himself. Mistake v. accident Accident: you do not have the intent to cause the consequences of the act. You thought the gun wasn't loaded and pulled the trigger and shot someone; you are not subject to liability for an intentional tort b/c no purpose or KWSC. ACCIDENT IS A DEFENSE to intentional torts but P may still have an action for neg. Insanity, minors, infants neither insanity nor infancy is a defense for intentional torts Examples: McGuire v. Almy Where an insance person by his act does intentional damage to the person OR property of another he is liable for that damage in the same circumstance in which a normal person would be. Garratt v. Dailey: 5 years 9 months COULD form intent. the only circumstance where Brian's age is of any consequence is in determining what he knew and there his experience, capacity and understanding are of course material. Case notes: 4 yo COULD, 2 yo COULD NOT form intent. Exceptions: institutionalized mentally ill who cannot control or appreciate the

consequences of his conduct cannot be held liable for injuries caused to those employed to care for him. TORTS TO PERSON BATTERY D intentionally causes harmful or offensive contact with the P's person. Contact can be direct or indirect. Intent Phillips said, while discussing Fisher v. Carrousel and Western Union v. Hill even desire to cause contact was enough to prove intent. Hypo: I'm reaching out to grab you and would have but for the chair I trip over. Still a battery. Note 4, pg. 33 There is no battery when D negligently, or even recklessly, drives his car into P and injures him without intending to hit him. Harmful or Offensive Contact Battery is a dignitary tort. MUST BE unconsented P does not need to be aware of contact at the time (Mohr v. Williams) Contact DOES NOT need to cause harm Offensive means contact that would offend a reasonable sense of dignity not one who is unduly sensitive. Unintentional/socially acceptable contact is not battery. Cole v. Turner: If the touching is gentle without violence or design, it is not battery. Wallace v. Rosen: school firedrill: absent expression to the contrary, consent is assumed to all those ordinary contact which ae customary and reasonably necessary to the common intercourse of life... Monk PI getting on a crowded NYC subway, Monk is unreasonable if he thinks others can avoid touching him and has no cause of action for battery. OTOH Even trivial offensive contact can be battery when judged from the reasonable person standard. Flicking someones tie for example. Direct or Indirect Contact D need not actually contact the P. Can put something in motion as in Talmadge v. Smith Fisher v. Carrousel Motor Hotel, Inc. knocking or snatching anything from P's hand or touching anything connected with his person, when done in an offensive manner, is battery. Damages: nominal, punitive (if D acted egregiously) 3 cases cited in notes: D batters P resulting in injuries to P more extensive than reasonable person might anticipate, the D is still liable for the injuries.

ASSAULT a touching of the mind Western Union Telegraph v. Hill (with changes by Phillips): Assault is an intentional, unlawful, offer to touch the person of another under such circumstances as to create in the mind of the party alleging the assault a well-founded apprehension of an imminent battery, coupled with the apparent present ability to effectuate the attempt if not prevented. I de S et Ux v. W de S. Assault does not require physical harm Intent purpose/desire OR KWSC Reasonable Apprehension The victim must perceive that the harmful or offensive contact is about to happen. Subsequent knowledge is NOT sufficient. Apprehension = the likelihood or expectation. Fear is NOT necessary but if it is present that will prove reaosnable apprehension. Hypo: 6'10 WNBA player v. 5'0 Sapp. No fear but apprehension still present. Restatement: the requisite apprehension of imminent contact need not produce fear in the victim Note 7, pg. 39 it is NOT necessary that the D have the actual ability to carry out the threatened contact. what matters is what the P thinks. Words can modify actions. If P& D are arguing, I'll blow your brains out + reach into pocket = reasonable apprehension. Contrawise, conditional words can undo the apprehension. The qualifying statement must be unequivocal though. If it were not assize-time, I would not take such language from you. Is it assize-time? If yes, no reaonable apprehension. I have a great mind to hit you too vague and court found D assaulted P. of Imminent Battery Threat of future action NOT imminent enough to state a cause of action for assault. Brower v. Ackerley. D's apparent present ability to effectuate the attempt D threatens P with unloaded gun. This was held to be an assault. Requires an over act: words coupled with conduct. Mere preparation is NOT sufficient. Man brought gun to interview, court held that without phsical effort there was no assault. Motionless bandit, holding gun itself an overt act. words in themselves, no matter how threatening, do NOT constitute an assault Exception: camping trip snake hypo. Does not always precede a battery. A sneaks up behind B and hits B with a baseball bat. FALSE IMPRISONMENT unlawful acts to intentionally cause confinement or restraint of the P within a bounded area. Intent It is possible to negligently confine another but neg. action only available if some

actual damage occurs. Omission: D closed entrance gates to prevent injuries from crush of crowd, there was another exit but D failed to inform P of its existence. Unlawfulness of the restraint (Phillips: against the will, i.e. WITHOUT consent) Senator Abourezk v. NY Airlines: P consented to the 'restraint' by boarding the plane. Improper assertion of legal authority aka false arrest. It is NOT FI if the person has a valid warrant or probable cause or if you are convicted of the crime arrest for. Enright v. Groves: If you are arrest on invalid grounds it is FI even if you are guilty of a different crime. Conviction of the crime for which one is specifically arrested IS A COMPLETE DEFENSE to subsequent claim of false arrest. A private citizen who aids police in FI CAN be held liable. If PO requested assistance, the citizen WILL NOT be liable UNLESS he knows the arrest is an unlawful one. NO FI if statutory commitment procedures are followed. Restraint (Phillips: Physical or Other Confinement) Physical barriers Whittaker v. Sanford: cult leader. Boat is the key. Ocean was the physical barrier like 4 walls of a room. Force OR threat of immediate force against the victim, victim's family or others in her immediate presence OR the victim's property. Retention of P's property sometimes may provide the 'restraint' necessary. Purse snatcher hypo. Big Town Nursing Home, Inc. v. Newman FI by direct application of physical force. Restraint chair, incorrigibles, wing 3. Express or implied threat don't you dare move or else, you're under arrest versus implied don't move, you need to fill something out An individual may be restrained by acts or merely by words which he fears to disregard. Hardy v. LaBelle. Threats of future action NOT enough. Economic necessity (I'll lose my job) not sufficient. Courts not sympathetic to these kinds of cases. Hypo: stripped student Awareness of confinement OR harm FI requires that the victim be conscious of the confinement at the time of the imprisonment. Parvi v. City of Kingston: FI as a dignitary tort, is not suffered unless its victim knows of the dignitary invasion. There is no liability for intentionally confining another unless the person

physically restrained knows of the confinement OR is harmed by it. Restatement 42 would also find liability for FI if victim is unaware BUT HAS been harmed by the confinement. Million dollar prize cabin hypo. Baby at hospital for bill lost bonding hypo. Within a bounded area entire city or state, but country of Taiwan was found to bee too large. Not bounded if aware of a reasonable means of escape. Restatement 36 says escape is unreasonable if it results in exposure, material harm to clothin, or danger of substantial harm to another. If there is a means of escape but P doesn't know about it, still FI purse snatcher, boundaries set by pursuit. If the only means of escape would cause physical harm and the P could remain imprisoned without any risk of harm, he may not recover for injuries sustained in making his escape. Distinguish between reasonable or unreasonable means of escape. Inconvenience that puts victim at risk is FI. Length of time immaterial Keeping someone OUT is not confining so NOT FI. IIED parasitic damages led to recognition of a right to be free from serious, intentional and unprivileged invasions of mental and emotional tranquility. mistreatment of burial places and human remains. D, by extreme and outrageous conduct, intentionally or recklessly causes the P sever mental distress. 4 elements as defined in Harris v. Jones Intent or Recklessness Transferred intent not typically allowed. 3rd part can recover if: 1. close relative of the primary victim 2. present at the scene present = sensory and contemporaneous observance of the D's acts 3. D knows that the close relative is present Taylor v. Vallelunga D was not aware girl was watching him beat her father therefore no IIED. Recklessness slit throat in kitchen example. Estate sued for IIED. Extreme and Outrageous Conduct (objective) Phillips says focus on conduct first before harm comes into play. Conduct is beyond all bounds tolerated by society Notes 1-5, pp. 56-57 even racial and sexual slurs are not so outrageous as to be intolerable in a civilized society. Harris v. Jones does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.

Exception: Vulnerability of the Victim must subjectively tailor the outcome a bit to the person. Difference between vile profanity addressed to a lady versus Butte miner or US Marine. Known sensitivity (children, pregnant, elderly, rape victim, horse owner) Pot of Gold case Nickerson v. Hodges Severe Mental Distress (Objective) Note 10, Severe ED is frequently characterized as distress so severe that no reasonable person could be expected to endure it. Severity of damage determines not just how much P will get but whether P can recover at all. Slocum v. Food Fair Stores of Florida: cause severe distress to a person of ordinary sensibilities...no indication to include all instance of mere vulgarities Harris lost for a number of reasons including no proof of severe mental distress. Most states no longer require that the P suffer physical manifestations of the mental distress. Prove it (note 11, pg. 64) crying not enough fear of contracting disease NOT enough some jurisdictions require expert testimony or competant medical evidence but most do not. Evidence of physical injury NOT necessary Causal Connection There must be a causal connection between the wrongful conduct and the emotional distress per Harris v. Jones. Exception for Common Carriers and Innkeepers No requirement that D behave in extreme and outrageous manner No requirement that D suffer severe ED only game in town. Carrier doctrine is quite limited in scope and does not of necessity cover the are of business invitees generally. per Slocum Won't win Jones v. Clinton, mere solicitation of illicit intercourse. Will win woman juror put in jail cell for contempt with murderer she was trying TRESPASS TO LAND Interference with the right to exclusive possession of property, frequently to try title, vindicate a legal right (to prevent adverse possession) Adverse possession use or enjoyment of real property with a claim of right when that use or enjoyment is continuous, exclusive, hostile, open, and notorious. Intent to intrude without authorization and without privilege under law cause something to enter another's land. No such thing as negligent trespass. You have no right to retrieve chattels, you must ask before entering

Mistake not a defense Dougherty v. Stepp Entry onto Land (aka physical invasion) traditionally require a physical invasion. Lights from racetrack onto movie theater screen held no trespass. Airspace and underground Old rule: indefinite extent upwards as well as downwards shooting at ducks: Herrin v. Sutherland Particulates Bradley v. American Smelting and Refining: When particles or substance accumulates on land AND does not pass away then trespass. Transitory or quickly dissipate = nuisance. Require P to have suffered actual AND substantial damages for airborne particles. Continuing presence of Chattels or Other Rogers v. Board of Road Com'rs for Kent County Continued presence on the land of a structure, chattel, or other thing after the consent has been effectively terminated is a trespass to land. Exceptions: Air travel: Restatement 159 air travel is trespass ONLY if it enters into IMMEDIATE REACHES of the air space next to the land AND interferes SUBSTANTIALLY with the use and enjoyment of land Phillips calls this a strange amalgam of trespass and nuisance. Sewer line at 150' down not trespass b/c beyond where owner could reasonably use land. Mining: Some western states allow miners to follow vein whereever Anti-discrimination Freedom of speech: A private individual may control territory so extensive that it becomes public for the purposes of 1st Amendment. Company town, shopping center in CA. Of another (against their will) overstay your welcome. Vistor must be aware that he no longer has consent to remain. Privileged entry onto the land may be limited not only by time and space but also by purpose. Children yard, garage lit fire. Undercover news reporter. Damages: law infers some damage Dougherty v. Stepp Nuisance: use and enjoyment. Requires actual damages. TRESPASS TO CHATTELS Glidden v. Szybiak (1949) Toby bites Elaine: One who without consensual or other privileges uses or otherwise intentionally intermeddles with a chattel which is in the

possession of another is liable if the chattel is a) impaired as to its condition, quality or value b) OR the possessor is deprived of the use of the chattel for a substantial time c) OR bodily harm is caused to the possessor d) OR harm is caused to some person OR thing in which the possessor has a legally protected interest. In CompuServ intrusions...insofar as they harm P's business reputation and goodwill with its customers are actionable Intent mistake is no defense. Drove off P's sheep thinking they were his own Intermeddling defined by Restatement 217(e) as physical contact with the chattel CompuServ Inc. v. Cyber Promotions, Inc. electronic signals are sufficiently physically tangible. Damages A few decisions have held that you need proof of actual damages. Actual dispossession is regarded as damage in itself. No nominal damages, priv to use reasonable force to protect possession is sufficient protection. What won't win: 2 minute search of individual's truck did not amount to dispossession 6 email messages to entire company, not TTC CONVERSION mostly used to settle title to disputed goods
Definition: 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. 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. Elements: Intentional Exercise of dominion OR control Over 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. In determining seriousness of interference use these factors: a. Extent and duration of the actors exercise of dominion OR control b. Actors intent to assert a right in fact inconsistent with the others right of control c. Actors good faith (see below) d. The extent and duration of the resulting intereference with the others right of control e. Harm done to the chattel f. Inconvenience and expense caused to the other.

Anyone who was in possession of chattel at time of conversion can maintain action for it. Finder can recover for conversion. Bailee too, sheriff who has seized property, etc. Recovery has even been permitted when Ps possession is wrongful and in defiance of the true owner. Thus one converter may recover from another. Mortgagee after default, even though he does not have possession, can also sue for conversion. Effect of Good Faith: Individual can be liable even though not subjectively at fault. Good faith under mistake does NOT prevent liability for conversion Example: D delivers goods to imposter Example: Person who presented a stolen duplicate parking ticket Example: Steel sent to wrong company if both the true owner and converter claim from bailee, bailee becomes liable for conversion if he gives it to the wrong one. His only recourse is interpleader (let court decide) Good faith purchasers. An innocent purchaser cannot obtain a title from a thief. The purchaser acts at peril and may be sued in conversion by the true owner. Distinction between bona fide purchaser who acquires both title and possession from a party who has obtained the goods by fraud. Damages Measure of damages is market value determined at the time and place of conversion. Some courts, highest intermediate value between time of conversion and suit or judgment. Limited value = original replacement cost or cost of repair may be awarded Product of creative effort = time it took to create the chattel. 172 hours architect Examples: intentionally running over an animal and killing it, purchase from a thief, misdeliver it and it gets lost, bailee refuses to surrender, D removes furniture to warehouse at a distance so that the P is subject to substantial inconvenience and expense = conversion. Internet domain name. Intangible, even the rights of a stockholder (even if certificate not converted), sometimes when chattel used in a manner exceeding authorization. Non-examples: informed consent spleen = no conversion. Move furniture, not. Dispossession of real property no, but if you sever goods then they become chattels and CAN bring action for conversion. Pearson v. Dodd: not substantially deprived, papers had no info that had value like literary property, scientific invention, plans formulated for commerce. PRIVILEGES/DEFENSES Two step test: 1) was there a priv? 2) did D act within the scope of the priv? CONSENT P gives permission, what would otherwise be tortious is instead privileged. Would a reasonable person in the D's position believe that the P consented? Express the GR is that outward manifestations of consent are controlling even if the inward

desires are contrary. O'Brien v. Cunnard S.S. Co. In determining whether she consented he could be guided only by her overt acts and the manifestations of her feelings. Implied Silence and inaction can manifest consent when a reasonable person would be expected to speak up and negate consent Hypo: Young man on park bench in moonlight informs his fiancs that he is going to kiss her. She says and does nothing and he kisses her. Battery? No. On first date? Probably not. Stranger? 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. Incapacity Both express and implied manifestations can be held invalid. An individual can be held to lack capacity to consent. Children, mental capacity, drug ingestion, alcohol. P very intoxicated and wanted to Indian wrestle and got hurt. Consent ineffective if P incapable of expressing rational will. Action beyond scope of Consent sex P & D have intercourse + D's knowledge of an STD = P's consent does D no good sports Hackbart v. Cincinnati Bengals, Inc. Football is not a game where all reason has been abandoned and the only remedy is retaliation

Consenting to play a game with a lot of intentional violent contact is not the same as consent to be battered when the contact occurs outside the recognized rules of the game. Phillips says that in Hackbart conduct was so egregious it goes outside sanctions imposed by game and therefore warrants legal sanction.
Other examples: base runner intentionally colliding with catcher Medicine Consent is CRITICAL because the law recognizes the body's inviolability. A medical procedure without the patient's consent constitutes battery as in Mohr v. Williams. Failure to inform patient of risks when procuring consent is neg. Battery v. ordinary negligent medical malpractice battery is a slam dunk. Doctrine of informed consent. After 1960 this became a breach of professional duty and a matter of neg. Dr. exceeds boundaries of consent still battery.

Note 3, pg. 97 Medical care providers may act in the absence of express consent if 1) patient is unable to give consent (unconscious, intoxicated, mentally ill, incompetent) 2) risk of serious bodily harm if treatment is delayed 3) A reasonable person would consent to treatment under the circumstances
4) Physician has no reason to believe this patient would refuse treatment

under the circumstances. A hospital does NOT owe duty to patient to obtain consent for treatment when patient is under care of independent physician who has privs to use hospital. P can specify consent to go this far and no farther but Dr. might refuse to take case. Example: woman specifies certain pain meds offlimits and nurse gives to her anyway. Allergic reaction. Patients have right to refuse treatment even if condition is terminal. Statutes to protect Dr.s from claims for damages based on failure to withdraw life support w/o a living will. Dr. did not follow DNR, P entitled to ED damages. Minor child: consent of parent necessary except in an emergency. 17 or 18 can consent to minor procedures (smallpox vaccination) but nothing major (nosejob) Contraception/abortion usually governed by statutes. Parent refuses on religious grounds, courts will usually grant hospital ability to overrule if child has a life threatening condition. Fraud Consent is invalid if it is induced by fraud that misrepresents an ESSENTIAL aspect of the interaction. Prosser and Keeton: About the nature and quality of the invasion; it must go to the essential character of the act...[NOT] to some collateral matter which merely operates as an inducement. Restatement of Torts 2nd 892B: A substantial mistake concerning the nature of the invasion of his interests, or the extent of the harm to be expected from it. Example: dunking booth law school not really for debt reduction but for fancy graduation. Nature of act was dunking and was disclosed. Purpose cash was collected for was collateral matter. D can even invalidate consent if he fails to disclose a material fact. Example: DeMay v. Roberts: Scattergood. Other examples: Dr's drug sales rep at breast and lower ab exam. Dr. of theology. PrimeTime Live (test patients...real patients with additional purpose. Not trespass. PrimeTime Live and Food Lion, deli employees obtained employment by fraud = trespass. Duress Consent procured under physical threat is invalid. However, as a general rule, economic pressure, while coercive, does not negate consent. Illegality The traditional majority rule holds that a person cannot consent to a criminal act. Minority position (Restatement) holds that a person can consent to a criminal act for purposes of tort liability. Example: Fight clubs.

SELF DEFENSE reasonable force can be used where one reasonably believes that such force is necessary to protect oneself from immediate harm (threatened battery) Mistake Forgiven Reasonable Belief: Priv exists when D reasonably believes that force is necessary to protect himself against battery even though there is in fact NO necessity. This is an instance in which a reasonable mistake on the part of the actor will protect him. self preservation as the first law of nature. Amount of Force Must use reasonable force under all the facts and circumstances (Objective) Takes into account age, size, strength, and relevant prior experience. Phillips says someone who is particularly vulnerable is authorized to use more force to even up the playing field. Deadly Force 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. Provocation Almost every court has held that insults, verbal threats, or bad language DO NOT justify exercise of self-defense. Termination of Priv Once a battery is no longer threatened, the privilege terminates. Even if person was initially aggressor, once he has retreated, he has a right to self defense against the person he initially threatened.

Injury to Third Party

A attacking D. D unintentionally harms B instead of A. D held not to be liable to B in absence of some negligence toward him. The emergency and necessity of defense against A are considered. Obligation to Retreat GR: there is no obligation to retreat from force not threatening death or serious bodily injury. Disagreement whether retreat is required where self-defense would require the use of force intended to inflict serious bodily injury or death. Majority does not require retreat, assuming the threatened individual has the legal right to be present or to proceed. Minority position, endorsed by the Restatement 70, requires retreat where serious bodily injury or death would otherwise be required in self-defense. The minority does not require retreat from the victim's dwelling. Statutes: Castle doctrine = no retreat. FL statute (kill the Avon lady statute) 12 15 states have followed suit. No retreat anywhere and can use deadly force if you think you are at risk DEFENSE OF OTHERS reasonable force can be used where one reasonably believes that such force is necessary to protect a third party from immediate harm (threatened battery) Reasonable Belief Reasonable Mistake: the intervener steps into the shoes of the person he is defending and is privileged ONLY when that person would be privileged to defend himself. If it

turns out that he has intervened to help the aggressor he is liable in some jurisdictions. Restatement and other jurisdictions hold that if D used reasonable force to defend another he is ok if his mistake was reasonable and he accidentally intervened on the side of the aggressor. Reasonable Force majority: 1) standing in the shoes: use same force that the person at risk is permitted minority 2) you are allowed to do whatever you think is necessary or reasonable under the circumstances DISCIPLINE 1. Military officers over subordinates 2. Master of ship 3. Adults supervision children Generally priv applies to those who are temp responsible for children, but amount of force that is acceptable may be less than what would be acceptable for a parent to use. Teachers priv to discipline predicated on need to maintain reasonable order in classroom. Discipline may be exercised even though parent objects. Corporal punishment has been held not to violate the due process clause or 8th amendment priv against cruel and unusual punishment.

Factors of discipline (emphasized by Phillips) 1. Age 2. Sex 3. Condition of child 4. Nature of offense and apparent motive 5. Influence of childs conduct as example on other children in same family 6. Whether force or confinement is reasonably necessary and appropriate to compel obedience
7. Whether discipline is proportionate to the offense not unnecessarily degrading or likely to cause serious injury or harm. AUTHORITY OF LAW Police, military, prison officials , regulatory inspectors, mental health workersengaging in conduct that otherwise would be tortuous. D is duly commanded or authorized by law to do what he does, he is not liable.

General Officer uses excessive force = no priv Officer acts improperly = no priv Under Warrant Commonly held that invalid warrant = no priv Officer has valid warrant but doesnt carry out order given him even though he makes a perfectly reasonable mistake in good faith = no priv

Without Warrant Officer can arrest to prevent a felony or breach of the peace that is being committed or reasonably appears about to be committed in his presence. Officer may make arrest if info provides reasonable grounds.must take full risk if no crime has been committed.
Some jurisdictions allow officer to arrest for mere misdomeaners committed in his presence. JUSTIFICATION Justification seems to be for asserting a privilege that doesnt otherwise exist. Example: Sindle v. New York City Transit Authority P argue FI, D justification. Last day of term, vandalism, no evidence P took part. D say damage, told remaining students he was taking them to St. George police station.

D reasons by analogy his actions were like Privilege of defense of personal property and privilege of discipline. Reasonableness of Ds actions, as bearing on defense of justification, is to be determined from a consideration of all of the circumstances.
DEFENSE OF PROPERTY An individual is privileged to use reasonable force to prevent a tort against her real OR personal property. A reasonable mistake will not excuse force that is directed against an innocent party. Limited to unlawful intrusions. You cannot shoot workers trying to remove telephone

poles from an easement. Limitations on possessors priv: teenager stealing a ride on a train, you cannot throw him off at 30 mph. Cold winter evening, man overcome by illness, you cannot put him in a wagon and strand him on road toward town.
Reasonable Force GR: Even slight force is unreasonable in defense of property if it is excessive. If the invasion is peaceful and occurs in presence of the possessor, use of ANY force at all will be unreasonable UNLESS a request has been made to depart. Exceptions: No request necessary when intruders conduct indicates to a reasonable person that it would be useless or could not be safely made in time. Ps presence endangers personal safetyjustifies ejection. Sick woman case. Force intended to inflict death OR serious bodily injury is never reasonable to protect mere property. Exceptions: 1. Defense of Habitation Can use deadly force or force likely to cause serious bodily harm if the intruder threatens the occupants' safety, by committing or intending to commit a dangerous felony on the property. Tennessee v. Garner

Restatement view is that you can use deadly force when needed to prevent mere intrusion into a dwelling. This is becoming discredited. 2. State statutes extend the priv under certain conditions. 3. There is also a priv. To use reasonable force to prevent the commission of a crime. With serious felonies, some courts have permitted use of deadly force. Govt. lab. Phillips focuses on this. Chemicals that are dangerous and could make a WMD. 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. 4. Mechanical Devices

Katko v. Briney 3 conditions, none of which satisfied per Phillips because these devices do not discriminate against whom they apply deadly force; they cannot differentiate between a boy scout who lost his way and a burglar armed with deadly force. The only time when such conduct of setting a spring gun or like dangerous device is justified would be when trespasser was committing a felony of violence (or punishable by death) or where trespasser was endangering human life by his act reasoning is that D cannot gain a privilege to inflict by mechanical means and indirectly, harm which he could not, even after request, inflict directly were he present. Restatement says basically the same thing.
Restatement 79, No privilege to use force intended or likely to cause death or serious harm against another whom the possessor sees about to enter his premises or meddle with his chattel, unless the intrusion threatens death or serious bodily harm to the occupiers and users of the premises.

Intended only to frighten? Transferred intent assault to battery. Phillips: Appreciate escalated level of force you are authorized to use, if you had been there, and intruder had been armed. if Katko (P) was armed would the spring-gun be justified. Armed intruder = you can arm yourself.
RECOVERY OF PROPERTY An individual may use reasonable force to recover property when in hot pursuit of the wrongdoer. The individual acts at her peril because the actor is liable even if the mistake was reasonable Elements 1. One must act immediately fresh pursuit

Fresh pursuit is limited to prompt discovery of the dispossession and prompt and persistent efforts to recover the chattel. Any undue lapse of time during which the pursuit has not been commenced or has come to a halt, will mean that the owner is no longer priv'ed to fight himself back into possession but must resort to the law.

2. Reasonable force (Must first demand return if reasonable to do so)

Priv limited to force reasonable under circumstancesnot reasonable to use force calculated to inflict serious bodily harm to protect a property interest. If wrongdoer resists, owner may use force reasonably required to defend his own person. A resort to any force at all will not be justified until a DEMAND has been made for the return of propertybut this is not required when reasonably appears that demand would be useless or dangerous.
Escalation: Used to be common that escalation could provide for use of force as in Hodgeden

right to retake property if it can be done without unnecessary violence to the person or without breach of the peace Phillips:Ds escalated the fray (breaching peace) put everyone at risk. Should have lostwe dont want people getting hurt over property. Even a fistfight is breaching the peace, doesnt require deadly force. Clauses in contract giving seller right to use force to retake possession, usually not enforceable as prevailing view is that the clause is void as inviting a breach of the peace. Retaking of possession under conditional sale NOW CONTROLLED BY 9-503 of UCC. Phillips emphasized this. Secured party may procede without judicial process if this can be done without breach of the peace. Retake possession of real property: Minority of states permit this.
Most states provide forcible Entry and Detainer rightful owner can only retake if no force is used. Party in peaceful possession may have claim for A&B or trespass to his goods .and even IIED. Goes back to Richard II, making it a criminal offense for one entitled to possession of land to enter and recover it by force. Merchants Privilege Many states have adopted a merchant's privilege, which allows stores to use reasonable force to detain a person for reasonable periods to investigate possible theft. The merchant's privilege generally allows reasonable mistake, so an innocent customer cannot recover against the store, provided the store acted reasonably. Bonkowski v. Arlans Dept Store:

if D reasonably believed the P had unlawfully taken goods held for sale in Ds store, then he enjoyed a priv. To detain her for a reasonable investigation of the facts Court extends to the detention of one who has left the premises but is in their immediate vicinity.

Shopkeepers privs vary from from state to state, hazardous for attorney to advise a client about priv without research. Runs the gamut: Some stores dont even stop people from shoplifting. They put measures in place to deter the crime, but dont want to take the risk of being sued for FI. Blockbuster example from audience. Another example, gas station attendant required to leap over the

counter and get license plate number of cars stealing gas.

Some jurisdictions: suppliers of services too. Hypo: tanning salon

Unreasonable for second employee to detain P after first employee had questioned her and determined she had not stolen shoes. Reasonable time or manner of detention runs the gamut per Phillips.
NECESSITY 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. PUBLIC Public necessity exists when the defendant appropriates or injures a private property interest to protect the community. For policy reasons the public need overrides private rights. Public necessity is a complete defense provided there was: 1. good faith by the Da subjective test 2. Apparent necessity(objective test) Reasonable mistake does NOT defeat the privilege (again, look at all surrounding circumstances) Factors to determine reasonableness include: risk of occurrence, change of the action being successful and presence of alternatives Exceptions: 1. If official went beyond his public authority, then you might be able to bring suit. 2. Governmental immunity has not prevented liability; some jurisdictions have provided for compensation by statute. Surocco v. Geary (1853) Geary was Alcalde of SF, had building blown up to stop progress of conflagration. Individual rights of property give way to the higher laws of impending necessity. Private Actor Under Public Necessity Re 2nd 196(e) - If the public authorities have taken control of the situation, it would ordinary be unreasonable for a private individual to attempt to exercise the privilege on his own initiative. It may happen, however, that, in the absence of a public official competent to deal with the situation, or when the appropriate official unreasonably refuses to act, action by a private individual to avert a public disaster would be reasonable. PRIVATE 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. Private necessity is an incomplete defense: the defendant is privileged to interfere with another's property, but is liable for the damage.

Vincent v. Lake Erie Transp. Co.

Facts: steamship Reynolds (D) discharging cargo. Storm developed, wind up to 50mph. Reynolds signaled for a tug to take her from dock, but none came b/c severity of storm.

Lines kept fast, Reynolds was constantly being lifted and thrown against dock causing damage. 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. The Restatement takes no position.

Hypo: bank manager v. robber with a gun. If you dont do this Im going to plug you. Bank manager moves and uses another employee as cover when robber shoots. Puts person at risk manager not entitled to do that. NEGLIGENCE: 4 elements: Duty, Breach, Causation, Injury INJURY actual harm or damage. DUTY A duty to use reasonable care requiring you to conform to a standard of care for the protection of others against unreasonable risks.

Conduct that falls below the standard of care established by law for the protection of others against unreasonable risk of harm.

Restated: a duty can arise (1) from the common law; or (2) from statute pg. 403: If D should reasonably foresee that his conduct will involve an unreasonable risk of harm to others, he is then under a duty to them to exercise the care of a reasonable person as to what he does or does not do. For D to be liable in negligence P must show that P falls within the class of persons who foreseeably will be injured as a result of the D's act. Look for these: 1. A general duty is owed to avoid creating (through act or omission) an unreasonable risk of physical harm to others. 2. Wrongful act of a third party or natural event has caused physical harm to the P that the D has failed to take affirmative steps to prevent or ameliorate. I. STANDARD OF CARE STANDARD OF CARE IS NEVER GOING TO CHANGE. Amount of care required under circumstances may vary. Get this in your head now. A. THE REASONABLY PRUDENT PERSON Phillips: FOCUS ON WHAT 1. RPOP would do 2. UNDER same or similar circumstances Vaughan v. Menlove: hay rick. In all cases exercise caution such as a man of ordinary prudence would observe NOT based on the judgment of each individual b/c thats too variable. Doing the best you can do is NOT good enough. You will be held

accountable to the external standard of RPOP. Women in employment, standard in workplace most jurisdictions say no difference. There are facts that every mentally competent adult should know. Delair v. McAdoo (1936) Memory hook: D left rear tire blew out and he hit Ps car. Bad tire would have been disclosed by a reasonable inspection. Law assumes drivers know of the dangers ascertainable by such examination. And if you don't know you have a duty to find out! Hypo: purple traffic light. You think it means caution but you dont know for sure. You proceed and there is a collision. Pull over and find out. D's with superior abilities may be expected to use them Restatement says yes deliver what you are able to, no more no less. Youve got to exercise greater ability since youve demonstrated you have it. 289(b) and comment m. There is a split amongst courts. Hypo: chauefeur who has never had a ticket. Hold him to a higher standard of drivemanship ? Mario Andretti when driving on the highway? Fortuitous encounters Hypo: example of two skiers one who is a professional collides with a non-professional. Also, experts who hold themselves out as such Role of Custom Note 1, pg. 153: industry custom is one way to show the jury what a reasonable person would do under the circumstances. Caveats: 1. If the custom of industry is a careless one.Learned Hand, there are precautions so imperative that even their universal disregard will not excuse their omission 2. Custom so clearly unreasonable that they are NOT even to be admitted as evidence of due care. D mining company did not guard or even light ladder-holessince the days of Tubal Cain .doesnt matter. 3. custom violates a statute? JUST BECAUSE EVERYBODY DOES IT DOESNT MAKE IT RIGHT ESPECIALLY WHEN THERE IS A STATUTE THAT PROHIBITS IT Phillips: What role does custom have in establishing the standard of care? Point of this case: we can use custom in deciding what is reasonable. Occasionally, everyone makes a mistake and engages in conduct which is not reasonable. CUSTOM IS NEVER DETERMINITIVE OF WHAT HAS TO BE DONE. Some jurisdictions put a lot of weight on custom.

Hypo: car at garage for tune up, transmission stolen. Timarco v. Klein: shattering of bathtub's glass enclosure Poof of accepted practice accompanied by evidence that D conformed to it, this may establish due care. Proof of customary practice coupled with showing that it was ignored and that this departure was a proximate cause of the accidentmay serve to establish liability assumed customary practice need not be universal. Suffices that it be fairly well defined and in the same calling or business so that the actor may be charged with knowledge of it or negligent ignorance. Emergency Doctrine Cordas v. Peerless Transportation Co.: Shakespeare highwayman, cab The law...does not hold one in an emergency to the same exercise of that mature judgment required of him under circumstances where he has an opportunity for deliberate action. If under normal circumstances an act is done which might be considered negligent, it does not follow as a corollary that a similar act is negligent if performed by a person acting under an emergency not of his own making To qualify as a sudden emergency the event must be unforeseen, sudden, and unexpected. Blinding effect of suns rays common and expected. Encounters with black ice on street, falling boulders, swooping airplanes, and darting children and animals all sudden emergencies. There is general agreement that if the emergency is created by the negligence of the actor, the emergency doctrine does not apply. It is not the conduct after the emergency has arisen that the law does not excuse, but the negligent conduct that brought it about. One may be required to anticipate an emergency and be prepared to meet it as when D is driving past a school and child darts out on a bike. Conery v. Takmaier Driver did not see children. He was familiar with the neighborhood and knew that children of tender years played on that street. Phillips: Dont know what circumstances allow me to put others at risk to save myself. Court in Cordas gave driver a pass because it was only a possibility that pedestrians would be injured. Phillips argues that we ought to judge conduct irrespective of the actual result. You evaluate the probabilities up front. Hypo: cul-de-sac with playing 3rd graders and gunman puts a gun at your head while youre driving. Can you jump out? In this case, theres a foreseeable risk + sufficient probability+unreasonable risk of harm to the mom and 2 kids.

Is standard of care reduced in emergency? No, standard (RPOP) is the same, circumstances are what is different. Characteristics of the D physical handicap: applies to deafness, short stature, epilepsy, age, paralysis caused by polio. Roberts v. State of Louisiana: 75 yo very slightly built blind man post office. Prosser, modern standard of carecorrect statement is D must take the precautions, be they more or less, which the ordinary reasonable man would take if he were blind. intoxication:courts have consistently refused to make any allowance for D's intoxication where it is voluntary or even negligent. A voluntary intoxication does not vitiate intent. Don't confuse with P: A drunken man is as much entitled to a safe street as a sober one, and much more in need of it. minors: Maximum age to which the special rule as to children has been applied appears to be 17. Standard used by most jurisdictions usually is stated to be what it is reasonable to expect of children of like age, intelligence, and experience. Restatement says under 5 yo you cannot be held negligent. This is a difference between intentional torts (rule different in Garratt v. Daily) and negligence A few courts use arbitrary age limits. Phillips: Rule of sevens: 0-6 cannot be held, 14 and over you are presumed capable, 7-14 well look closer. Child testifies he understood the dangersmore may be required of him or child or superior intelligence. Phillips: if you are precocious we will take that into account and raise the amount of care required. Robinson v. Lindsay: 13 yo boy snowmobiles Ps thumb was severed In the past we have always compared a childs conduct to that expected of a reasonably careful child of the same age, intelligence, maturity, training, and experience. We believe a better rationale is that when the activity a child engages in is inherently dangerous, as is the operation of powerful mechanized vehicles, the child should be held to an adult standard of care. Restatement says 1) adult activity OR 2) activity identified as one that is inherently dangerous Examples: Driving an auto, motorcycle, motorboart, motor scooter, playing golf, bicycle riding, deer hunting, building a fire

outdoors, downhill skiing Note 7, pg. 164 Doesnt matter whether child is D or P when determining childs conduct. Dual standard of care: Principle is this, if you are situated as a D and you are a minor you are expected to exercise more care. If you are a P you are not expected to exercise as much care. That's why there was no contributory/comparative negligence here. Phillips says that it is a fiction that it doesnt exist. It does exist but it is not law. Elderly: Some decisions in which allowance has been made for the physical and mental deficiencies of old age, but all have involved Ps and focus on particular infirmities instead of age itself. Mentally ill: General rule: insanity is no defense to negligence cases. Phillips: holding you responsible for more than you can give in this case is driven by policy decision. D is still judged by standard of the RP. If an insane D knows about his condition and can make a rational decision to seek treatment/avoid situations where insanity will make him negligent then D must do so. Phillips emphasizes this note, hypo D has pedophilia. Judge by my condition? No. We do not lower protection for society. Seek treatment. Jurisdictions have carved out a narrow exception for institutionalized mentally disabled patients unable to control or appreciate the consequences of their conduct which results in injury to a paid caretaker. Breunig v. American Family Ins. Co.: Batman case Exception: We hold that a sudden mental incapacity it equivalent in its effect to such physical causes as a sudden heart attack, epileptic seizure, stroke, or fainting should be treated alike and not under the general rule of insanity. THIS IS A MINORITY OPINION. MOST COURTS DONT ALLOW THIS EXCEPTION. Compare to: Oh Tree Im sick Cohen v. Petty in intentional torts Alzheimers Disease? Depends on whether incapacity is categorized as physical or mental. Courts disagree. Mental illness (no exception made, held to RP standard) or physical condition (D held to standard of RP with Alzheimers). Limited Intelligence: Phillips: Restatement 283(B) there is no allowance made for lack of intelligence. Should we treat those with impaired mental capacity same as children? Few jurisdictions have adopted this view per Phillips. B. THE PROFESSIONAL

The law imposes a duty on professionals and their standard is expressed in objective form the knowledge, training and skill (or ability and compentance) of an ordinary member of the profession. NOT average member (implies half couldn't meet the standard), NOT in good standing P must offer expert testimony on the standard of care to win. Professional negligence is now commonly called malpractice. Specialists who hold themselves out to have higher skills are held to a higher standard Standard not modified for professionals offering services pro bono Applies to: attorneys, architect, engineer, doctors, dentists, veterinarians. Pharmacists (no general duty to warn customers of potential side effects, but if you provide a list of some you must provide a list of all. If pharmacist knows medication is contraindicated by patient's allergy he has duty to act) Does NOT apply to clergy, educators Heath v. Swift Wings, Inc.: Heath loads plane with his wife, son, and a family friend and crashed immediately after takeoff. While the standard of care of the reasonably prudent man remains constant, the quantity or degree of care required varies significantly with the attendant circumstances. Authorities support the application of a greater [amount] of care than that of the ordinary prudent man for persons shown to possess special skill in a particular endeavor. Attorneys P must show that but for attny's neg. the client would have been successful in prosecuting or defending the claim. Cause-in-fact is a huge hurdle in many attorney malpractice actions as the plaintiff must show that, had there been no malpractice, he would probably have prevailed in the underlying action. In essence, the legal malpractice action contains a trial within a trial. Hodges v. Carter: law changes, service not sent correctly, P loses case against 4 insurers. Lawyer goofed. Am attorney who acts in good faith and in an honest belief that his advice and acts are well founded and in the best interest of his client IS NOT answerable for a mere error of judgment or for a mistake in a point of law which has not been settled by the court of last resort and on which reasonable doubt may be entertained by well-informed lawyers. Attnys must: 1) Possess requisite degree of learning, skill, and ability 2) exercise best judgment in litigation 3) exercise reasonable and ordinary care and diligence in use of his skill and

application of his knowledge to his client's cause. 3 also stated as use of due care Attnys AND Doctors 1) Possession of knowledge or skill 2) Exercise Best Judgment = discretionary = not liable for mere error of judgment 3) Use of Due Care describes steps that are mechanical rather than discretionary. Examples of #3 (BREACH): Lawyers who fail to file suit before running of statute of limitations. For Dr's usually not gathering enough data to make a proper diagnosis. Doctors There are very few cases where the P has been allowed to recover despite the fact that the D health care provider complied with the customary practice of the profession. Boyce v. Brown: screw in ankle case Negligence is never presumed even if treatment was unsuccessful. Departure of standard of care must be established by expert medical testimony UNLESS the neg. is so grossly apparent that a layman would have no difficulty in recognizing it. Testimony that another Dr. would have used a different course of treatment IS NOT sufficient to establish malpractice UNLESS course of treatment deviated from methods approved by standard in that community. P must show that patient would have recovered. If Dr. does not possess the requisite skill and learning OR he does not apply it, he is guilty of malpractice. (BREACH) If Dr. did something during course of treatment that is forbidden by recognized standard of treatment in the community OR he neglects to do something the standard of treatment requires he is guilty of malpractice. (BREACH) Morrison v. MacNamara: rodded off the range issue: national standard of care v. local standard of care We hold that at least as to board certified physicians, hospitals, medical laboratories and other health care providers, the standard of care is to be measured by the national standard. The major underpinings of the Locality Doctrine no longer apply. Locality doctrine applies to medical malpractice only (old) strict locality rule hard to get professionals to testify against one another. Most jurisdictions have adopted similar community in similar circumstances test. Some jurisdictions as in Morrison adopt national standard of

treatment. Scott v. Bradford: uterus, hysterectomy, incontinence Doctrine of Informed Consent: "informed consent," is, legally speaking, as essential as a physician's care and skill in the performance of the therapy. The doctrine imposes a duty on a physician or surgeon to inform a patient of his options and their attendant risks. If a physician breaches this duty, patient's consent is defective, and physician is responsible for the consequences. In Scott this was NOT based on professional standard of disclosure in the community, but rather held that disclosere measured by patients need to know enough to enable him to make an intelligent choice full disclosure of all material risks incident to treatment must be made. A risk is material if it would be likely to affect the patients decision Note 4, pg. 190 Although the risk of a complication may be small, such risk may be significant to a patient's decision in light of the potentially severe consequences. Example squib in light of serious consequences, including death, a 1-3 percent possibility is [material] The physician is obligated not only to disclose what he intends to do, but to supply information which addresses the question of whether he should do it. Phillips says that discussions should include: Foreseeable risks non treatment alternative treatments prospects of success (courts disagree to some extent on this one) P's case In a medical malpractice action a patient suing under the theory of informed consent must allege and prove: (1) defendant physician failed to inform him adequately of a material risk before securing his consent to the proposed treatment; (2) if he had been informed of the risks he would not have consented to the treatment; (3) the adverse consequences that were not made known did in fact occur and he was injured as a result of submitting to the treatment. Regarding #2 Oddly enough the court looks to the subjective standard of care in Scott. THIS IS A MINORITY VIEW. Patients will usually testify that they wouldnt have gone through had they known. Jury might not believe them though. Majority of courts use the reasonable patient of ordinary prudence D's case 3 exceptions creating a priv of physician not to disclose, but burden of proving the priv. rests upon the physician as an affirmative defense:

1. No need to disclose risks that either ought to be known by everyone or already is known to the patient. 2. Do what is best for patient, when it is in the best interest of the patient to withhold disclose such as when disclosure would alarm an emotionally upset patient, then Dr. doesnt need to diclcse. 3. When there is an emergency and patient is in no condition to determine for himself whether treatment should be administered. Phillips summarizes: 1. emergency 2. theuraputic waiver (you cant handle the truth) 3. info known to general public (Phillips: whats the burden? The burden is so minimal why not do it?) Moore v. Regents of the University of California: spleen, cell line In soliciting the patient's consent, a physician has a fiduciary duty to disclose all information material to the patient's decision. Driven by patients right to be free of any reasonable suspicion that his Dr's judment is influenced by a profit motive. This overrides concern that such disclosure may corrupt the patient's own judgment and work against patient's best interests. A physician who is seeking a patient's consent for a medical procedure must, in order to satisfy his fiduciary duty and to obtain the patient's informed consent, disclose personal interests unrelated to the patient's health, whether research or economic, that may affect his medical judgment. Tort reform acts are meant to protect Drs and impose caps, require arbitration, impose contingent fees, etc. Reduce recovery from D by monies P received from their insurance company. Joint and several liability eliminated where D's ABC&D had each been responsible to P for ENTIRE damages. All these are efforts to protect interests of Drs. so the profession is not at risk. C. AGGRAVATED NEGLIGENCE Spectrum (fool, damn fool, goddamn fool) Negligence Gross negligence an extreme departure from ordinary standards of conduct. Willful and wanton misconduct (= recklessness): a deliberate and conscious disregard for a known high degree of probability of harm to another. KWSC Intent (purpose/desire) Automobile guest statutes 2 categories: you are either a paying passenger or a guest. If you are guest and Im negligent and you are hurt you have to prove

that I was grossly negligent. If you are a paying passenger you can recover by only proving negligence. So...always pay a buck for gas. These statutes were meant to 1) encourage hospitality (Im protected unless Im grossly negligent) 2) Eliminate prospect of collusion to bilk insurance company. The words gross negligence in the context of these statutes either means absence of slight care or as a synonym for recklessness Most jurisdictions say you dont need this statute b/c insulating drivers from liability based on paying v. non-paying is too arbitrary. In most cases, there is no compelling state interest to classify people based on paying/non-paying so statutes were struck down. II. FORESEEABILITY J.S. And M.S. v. R.T.H.: Although this case has to do with failure to act, it has a great explanation of foreseeability. Foreseeability of risk of harm is the foundational element in the determination of whether a duty exists...the ability to foresee injury to a potential P is crucial in determining whether a duty should be imposed. Foreseeability as a component of a duty to exercise due care is based on the defendant's knowledge of the risk of injury and is susceptible to objective analysis. That knowledge may be an actual awareness of risk. Such knowledge may also be constructive; the defendant may be charged with knowledge if she is in a position to discover the risk of harm. In some cases where the nature of the risk or the extent of harm is difficult to ascertain, foreseeability may require that the defendant have a special reason to know that a particular plaintiff or identifiable class of plaintiffs would likely suffer a particular type of injury. Further, when the risk of harm is that posed by third persons, a plaintiff may be required to prove that defendant was in a position to know or have reason to know, from past experience, that there was a likelihood of conduct on the part of a third person that was likely to endanger the safety of another. Lubitz v. Wells: P argues dad knew or should have known neg. use of golf club by children would cause injury to a child, he failed to removed the club or caution his children. Court held that golf club was not intrinsically dangerous (not addressing foreseeability but addressing unreasonable risk of harm) Blyth v. Birmingham Waterworks Co. Frozen pipes. D's cannot be held liable for contingencies against which no reasonable man can provide. Phillips notes that just b/c something never happened before doesn't mean D is absolved of liability. Gulf Refining Co. v. Williams. Bunghole. Rule in case: General language, that unless such a foreseeable consequence is one which is more likely to happen than not to happen, there can be no liability.

Phillips says the court does away with this and says it isnt as simple as saying probable (more likely) > possible (less likely). This is not a 50% test. When we say probability we DO NOT mean more likely than not. The test is NOT the balance of probability, but the existence of SOME probability of sufficient moment to induce action to avoid it on the part of a reasonable mind. Tullgren v. Amoskeag Mfg. Co, (1926) FORESEEABILITY TEST NOT the balance of probabilities [or possibilities], but the existence, in situation at hand, of 1. some real likelihood of some damage AND 2. likelihood is of such appreciable weight and moment 3. as to induce, or which reasonably should induce, action to avoid it on part of 4. a reasonably prudent mind. III. UNREASONABLE RISK OF HARM Restatement 2d 291: the risk is unreasonable...if the risk is of such magnitude as to outweigh what the law regards as the utility of the act... 292(c) one of the factors to consider when determining the utility of the actor's conduct is if the D's interests could be adequately advanced or protected by another and less dangerous course of conduct. IV. BURDEN OF PRECAUTION Chicago B& Q.R. Co. v. Krayenbuhl: RR employees knew kids played there. The companys own standards required lock. Phillips said lock was not burdensome, public good demands the use of the lock. Turntable doctrine: precautions v. relation of precautions to benefit of use of premises. Phillips, significance is the adoption of court of a risk benefit analysis. Hypo: dangerous fan, sign STAY AWAY FROM FAN chops Phillips head off. Guards on fannot a stupid sign. Sign is insufficient. Burden should be evaluated based on the circumstances at the time, not necessarily precedent. Davison v. Snohomish County (1928) risk benefit analysis again about guardrails on roads. Pg. 141 Note 1.40 years later almost identical facts practicality of engineering and prohibitive costs..previous decision in Snohomish not necessarily authoritative on the engineering and financial phases of the same problem today. Calculus of Negligence US v. Carroll Towing Co.: D Carrol towing. Anna C broke away. 21

hours. Bargee had no excuse for his absence.

BURDEN OF PRECAUTION (gt/lt) PROBABILITY * L (extent of injury) $42 (2/hr * 21 hours) < 1/100 chance of slipping moorings AND cause damage * $100,000 cost of barge and cargo if 42<1000 then there is negligence liability depends upon whether B is < P * L Difficulties: Burden (marginal sense) what if it only matters the $2 paid for the hour in question when barge broke away Hypo: What B does it cost to pay attention?

BREACH failure to conform to the standard of care D's failure to act as a RPOP would have under the same or similar circumstances To demonstrate a breach of duty (other than when duty is spelled out in a statute), the P must usually show that the D did not use some specific precaution, the burden (or cost) of which was less than the amount by which the same untaken precaution would have reduced the risk of injury. Kinds of Evidence There are two key forms of evidence that a plaintiff can use in attempting to establish negligence by the defendant: direct and circumstantial. Direct evidence is evidence that comes from personal knowledge or observation. Circumstantial evidence is proof that requires the drawing of an inference from other facts. Breach of duty analysis asks whether the D omitted some cost-effective precaution. Relevant time frame is before the accident occurred, when the D should have looked ahead and considered (foreseen) what further precautions might be useful. I. VIOLATION OF A RULE OF LAW A rule of law can be determined by judicial decision. A rule of law means reasonable persons CANNOT disagree. In principle case of Pokora v. Wabash Ry. Co. (get out and reconnoiter) Justice Cardozo essentially says judges have to be very careful in establishing rules of law that establish a duty. It is usually still negligence as a matter of law not to look and listen when approaching a known railroad crossing and not to slow down or even stop when obstructed vision or something else in the situation calls for it. II. VIOLATION OF STATUTE (NEGLIGENCE PER SE) Makes an act negligent which otherwise might not be. There is no doctrine of negligence per se in federal law. The well-settled rule is that compliance with a statute is merely relevant evidence of reasonableness. Compliance DOES NOT establish due care. Book implies that it is a matter of law to decide whether the statute applies to the conduct as in snowmobile on wrong side of trail case. Court decided to apply rules of the road.

Court has a wide degree of latitude and can chose to interpret the statute to have multiple purposes: cut-out, statute was interpreted both as being for noise reduction AND to eliminate noises that would prevent driver from hearing traffic hazards. Car struck a train. Even if you cannot establish negligence per se, you can still maintain a cause of action for regular negligence and the fact that a statute is inapplicable does not necessarily rule it out as evidence bearing on the issue of negligence. 2 prong test: 1) is P in class meant to be protected by the statute? 2) was P injured in the way the statute was written to prevent? Caveats: The 2 prong test PRESUMES there is a duty but the court is reluctant to impose a duty where one does not already exist (see Restatement 287 and 288). 2 prong test is a shortcut to prove duty and breach but you STILL NEED causation. In theory, there should be no problem of proximate cause if the event is within the hazard that the statute is intended to avert. Example: Stachniewicz v. Mar-Cam Corp (Indians on warpath) Was patron in protected class? Yes. Harm suffered statute meant to prevent? Yes. Hypo: D Indian leave the bar intoxicated and D hits P's car on the highway. Can driver of other car use the statute? No, not in class meant to be protected. Non example: OK city bombing victims suing mfg of ammonium nitrate b/c they didn't label the product correctly. Phillips says they aren't going to pass the 2 prong test. 3 different ways to attach weight to criminal statute: negligence per se presumption of negligence evidence of negligence 4 reasons for adopting criminal statute 1. The reasonable person will always obey the criminal law 2. The legislature intended, or is presumed to have intended, a civil remedy 3. The statute gives rise to a right. A right without a remedy is useless and the court supplies an appropriate remedy. 4. The court adopts the standard of conduct from the criminal statute and lays it down as a rule of law in the civil action. Non-example: Perry v. S.N. And S.N.: child abuse at a day care. D's (friends of the abuser) witnessed abuse and failed to report it. P tried to argue neg. per se but court did not agree. The mere fact that the Legislature adopts a criminal statute DOES

NOT mean that this court must accept it as a standard for civil liability. The Court must determine whether it is appropriate to impose tort liability for violation of the statute and this determination is informed by a number of factors. Recognizing a new purely statutory duty can have an extreme effect upon the common law of negligence. The absence of a relevant common law duty should be considered when deciding Some penal statutes may 1) be too obscure to put the public on notice 2) may impose liability without fault or 3) may lead to ruinous monetary liability for relatively minor offenses

Not limited to criminal statutes. As we see in Osborne v. McMasters: failure to label poison. Where a statute or municipal ordinance imposes upon any person a specific duty for the protection or benefit of others, if he neglects to perform that duty he is liable to those for whose protection or benefit it was imposed for any injuries of the character which the statute or ordinance was designed to prevent, and which were proximately produced by such neglect. Generally ordinances have been treated in the same manner as statutes but a few states give lesser effect to ordinances, similarly regulations promulgated under authority of administrative agencies are sometimes given lesser effect. Most courts have refused to use licensing statutes to establish standard of care. Ney v. Yellow Cab Co. (thief steals unattended taxi. Leaving it unattended was violation of statute. Was statute a public safety measure or an antitheft measure? Ney illustrates the difficulty of judiciary interpreting legislative intent of statute when P attempts to prove negligence per se. Effect of Statute In other cases, it is crystal clear as in Martin v. Herzog where buggy was driving without lights in violation of a statute and was struck by a car coming in the opposite direction. Zeni v. Anderson nurse struck while walking on snow covered street. Provides an overview of the three ways jurisdictions treat violation of statute. 1. The majority of courts take the position that when a statute applies to the facts, an unexcused violation is negligence per se which must be declared by the court and NOT left to the jury. 2. A few states treat violation of a statute as giving rise to a rebuttable presumption of negligence. Excuses 1. The usual grounds for rebuttal is sudden emergency. The evidence required to rebut this presumption should be positive, unequivocal, strong, and credible.

2. Restatement 288A(2) excuses include: actor's incapacity; actor neither knows nor should know of the occasion for compliance; he is unable after reasonable diligence or care to comply; he is confronted by an emergency not due to his own misconduct; compliance would involve a greater risk of harm to the actor or to others. This list is not intended to be exclusive. No Excuse Some statutes are interpreted to make D liable without regard to any excuse including: Child labor acts Pure Food Acts Federal safety Appliance Act (interstate commerce, railway cars, good operating condition) Safe Place statutes requiring lights and other protection in tenement houses, or premises open to the public Statutes prohibiting sale of firearms and other dangerous object to minors 3. A minority of states hold that the violation is only evidence of negligence that the jury may accept or reject as it sees fit. Phillips says the distinction is that the D can provide: 1. Excuse 2. Justification 3. evidence of due care III. CIRCUMSTANTIAL EVIDENCE Evidence based on inference and not on personal knowledge or observation. Infer to conclude from facts or from factual reasoning So long as the jury can draw a reasonable inference (as opposed to speculate) the circumstantial evidence will be admitted. Goddard v. Boston & Maine R.R. Co.: P arrived at terminal, slipped on bananna peel and fell. Court had no evidence so they inferred that the peel may have been dropped within a minute by one of the persons who was leaving the train. Anjou v. Boston Elevated Railway Co.: P slipped on a peel that was black, flattened out and gritty. Duty of employees at the station to observe and remove whatever was upon the platform that would interfere with the safety of travelers. Court infers from the appearance and condition of the banana that it had been upon the platform a considerable period of time in such position that it would have been seen and removed by the employees of the D if they had been reasonably careful in performing their duty. Joye v. Great Atlantic and Pacific Tea Co. P slipped and fell on peel in supermarket. Court held that P's case turns on sufficiency of evidence to establish constructive notice and failed to find in the record sufficient evidence in the record to present a jury issue as to constructive notice to D of a dangerous condition b/c it cannot be determined from the evidence how long the banana may have been on the floor.

Constructive notice: notice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of. A person has notice of a fact or condition if that person 1) has actual knowledge of it; 2) has received information about it 3) has reason to know about it 4) knows about a related fact Actual Notice: notice given directly to, or received personally by, a party. Ortega v. Kmart Corp.P slipped on puddle of milk and could not present evidence showing how long the milk had been on the floor. Manager testified that in light of the staffing it would be hard for something to be on the floor for more than 15 or 30 minutes. P has the burden of showing that the owner had notice of the defect in sufficient time to correct it P may demonstrate the storekeeper had constructive notice...if P can show that site had not been inspected within a reasonable period of time so that a person exercising due care would have discovered and corrected the hazard. H.E. Butt Groc. Co. v. Resendez P slipped near two grape displays ad alleged that the sampling display posed an unreasonable risk of harm that caused her injuries. Nice summary of negligence: For P to recover she had the burden to prove that HEB had actual or constructive knowledge of a condition that posed an unreasonable risk of harm and that HEB did not exercise reasonable care to reduce or eliminate the risk AND HEB's failure to use such care proximately caused her injuries. No evidence that the manner of the display created an unreasonable risk [of harm] Exception to Constructive Notice Jasko v. F.W. Woolworth Co. P injuried when she slipped on a piece of pizza. Dangerous condition was created by the store's method of sale. The basic notice requirement springs from the thought that a dangerous condition when it occurs is somewhat out of the ordinary. However, when the operating methods of a proprietor are such that dangerous conditions are continuous or easily foreseeable, the logical basis for the notice requirement dissolves and actual or constructive notice of the specific condition need not be proved. IV. RES IPSA LOQUITUR RIL is circumstantial evidence. RIL has nothing to do with causation, this has to do with breach of due care Was based in part on D's supposed superior access to evidence. Today, discovery process removes this rationale for the RIL doctrine

The more direct accessible evidence applies to a particular D. The more you know, the better you can plead your case, the less you can/should use RIL. Most, but not all, courts permit the P to use expert witness testimony even though this means that the thing is hardly speaking for itself. In other jurisdictions, RIL can only be used when the matter lies within the ken of a layperson. Some states have written statutes to limit RIL's use to specific types of medical mishaps as part of medical malpractice reform legislation packages. Common Carriers: When one of the vehicles is operated by a common carrier and the injury is to its passenger, some courts apply RIL against the carrier alone since the carrier is held to the highest degree of care, it is more probable that the collision was due to some negligence on the part of the carrier than the other driver. 2 Elements of RIL: 1. an accident that normally does not happen without negligence; 2. exclusive control of the instrumentality by the defendant; 3. and absence of voluntary action or contribution by the plaintiff. (Some courts state #3, but Note 4, pg. 239 says res ipsa loquitur applies even if P's conduct contributed to the injuries; jury to apply comparative neg. principles to account for P's conduct) Phillips says don't worry about #3. Hypo: plane goes in the drink. Can you use RIL? The more unanswerable questions the more likely P needs to use RIL. Flight so common now and in most cases where plane goes down this doesnt ordinarily happen in the absence of negligence. Its more probable than not that there was something wrong with the plane or pilot. In RIL 3 different choices based on which jurisdiction youre in: 1. Inference of negligence 2. Presumption of negligence (It is incumbent on the D to come forward and prove not neg.) 3. Change burden of proof to the D. If youre a P, this is the jurisdiction you want to be in. Example of #3 is Byrne v. Boadle (flour barrel falls on P). In recognition of the dilemma the P is in, the presumption is that the D's servants were engaged in removing the D's flour; if they were not it was up to the D to prove it. McDougald v. Perry (broken chain, spare tire came loose) The P is not required to eliminate with certainty all other possible causes or inferences...All that is required is evidence from which reasonable persons can say that on the whole it is more likely that there was negligence associated with the cause of the event than that there was not. Example Note 3G pg. 245, experienced skier falls on his first run down the mountain tries to invoke RIL that equipment was negligently maintained. Court

held that falling while skiing is an extremely frequent incident that can occur without any negligence. Larson v. St. Francis Hotel VJ day celebration, chair strikes P on head. Failed the 2nd prong b/c the chair (instrumentality) was not in the exclusive control, either actual or potential, of the hotel. Guests have at least partial control. OTOH Hypos: spring break, hotel owners have to protect against some things PASSENGER IN CAR: Guest passenger status (seems like an exam question) Driver had complete control of the instrumentality Car goes into a ditch, pretty good choice for application of RIL against the driver as in Sullivan v. Crabtree. OTOH, P and D autos collide, you cannot use RIL because the thing cannot speak for itself (2 instrumentalities, who struck whom) Sullivan v. Crabtree: truck lost control for unknown reason, passenger killed in the crash Importance: outlines 3 jurisdictional selections for RIL Negligence per se, similarly, had jurisdictional selections. DON'T GET CONFUSED If you have direct evidence, none of this applies (RIL and NPS). But when you only have circumstantial evidence, then you need to know how burden is weighted for your jurisdiction. Inference of neg. which the jury may draw on or not Presumption of neg. which requires the jury to find negligence if D does not produce evidence sufficient to rebut the presumption. Raises presumption AND burden of proof (B/P) shifts to D (only 2 jurisdictions share this view. Ps love to be in this jurisdiction) A defendant has not automatically lost on the issue of breach of duty once a jury finds the res ipsa loquitur elements have been proven. The defendant's evidence of her reasonable conduct may be persuasive enough for a jury to conclude that the defendant was probably not at fault. Examples: Spoliation of evidence intentional destruction mutilation, alteration or concealment of evidence. Ybarra v. Spangard (1944) P to have appendectomy came out with neck and right shoulder injury. None of the 6 D's were talking. For this case of RIL we see shift burden to Ds. Problem with that case, how would you (as a D) like to prove a negative? If all 6 honestly believed that nothing wrong was done then it looks like a conspiracy even if it isnt. Similar fact pattern: Turkey salad case. Each of the 9 Band moms cooked a turkey. Nobody else knew what other person was doing.

They were each in their own kitchen and their turkey meat was all used to make the salad. CAUSATION cause in fact AND proximate cause NEGLIGENCE ESSAY: points are on causation, not necessarily duty and breach Practice torts exam so you dont run out of time. Phillips designs to run you out of time. Cause in fact the sine qua non = but for = the cause without which the event could not have occurred. One common test of cause in fact is whether an untaken precaution constituting the D's breach would have prevented the action. This is an after the fact analysis. Example: But for the fact that D didn't set the parking brake (thus breaching the standard of care of an ordinary driver of reasonable prudence by creating a foreseeable, unreasonable risk of harm to people downhill from the car), the D's car rolled down the hill and injured the P. Simpler: but for the conduct of the D, the P would not have been harmed Another way to look at but for: if you take away the conduct, would the injury have still occurred? but for test does not apply to concurrent causes. Sometimes cause-in-fact analysis uses a substantial factor test when the D's conduct is an important or significant contributor to the P's injuries. When analyzing concurrent causes, use the substantial factor test. In California this has been clarified best, they use the but for test for all negligence cases except those involving concurrent independent causes where the substantial factor is what must be used. Proximate Cause a cause that directly produces an event and without which the event would not have occurred. Other terms we'll need Concurrent Cause One of two or more causes that simultaneously produce a result. Intervening Cause An event that comes between the initial event in a sequence and the end result, thereby altering the natural course of events that might have connected a wrongful act to an injury. If the intervening cause is strong enough to relieve the wrongdoer of any liability, it becomes a superseding cause. Immediate Cause the last event in a chain of events though not necessarily the proximate cause of what follows. Superseding Cause an intervening act or force that the law considers sufficient to override the cause for which the original tortfeasor was responsible, thereby exonerating that tortfeasor from liability. CAUSE IN FACT:

Perkins v. Texas and New Orleans Ry. Co.: Mile long train traveling 37mph (12mph in excess of speed limit), car across intersection (3 25mph) collides. D argues excessive of speed has nothing to do with result that ensued. Element of causation not proven. P was contributorily negligent. P argued escape theory. Court doesnt consider speed of car getting across track versus speed of train. Court doesnt consider that train wouldnt even have been there if it had been going speed limit. But for the excessive speed would the result have occurred. Was it the cause in fact? It need not be the sole cause. Neg. is a cause in fact of the harm if it was a substantial factor in bringing about the harm. Hypo: I fail to signal left turn. Other driver (not looking) hits me. Even though I failed to signal and violated a statute, my conduct doesnt matter b/c you werent looking. Ajax bottle: no label, mixed with something else and explosion ensues. Person never reads directions anyway. Is it neg. not to have warning on bottle? Yes. Is it the cause in fact? No b/c P never reads warnings. Person falls overboard and sinks like a rock. Lifeboats not quickly and easily accessible. You were negligent, but did not cause the death. But for the lifeboats not being accessible is not the reason person sustained his injuries. He would have sunk and drowned no matter how fast you got in the water to help him. Proving Cause in Fact One Extreme (PROOF) Reynolds v. Texas & Pac. Ry. Co. (1885) Fat lady falls down unlighted stairwell with no handrails while being rushed to get on train that is running behind time. Where the negligence of a defendant greatly multiplies the chances of an accident to a plaintiff and is of a character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of cause and effect between the negligence and the injury. Courts, in such matters, consider the natural and ordinary course of events and do not indulge in fanciful suppositions D argued that even if neg. P might have made the misstep and fallen anyway. Court held that what D did multiplied the chances that injury would be caused by your breach of duty. To Another (NO PROOF) Kramer Service, Inc. v. Wilkins (1939) Piece of glass fell down, struck P in head. 2 years later cancer appears at point of cut. D says, yes neg. and responsible for cut but doesnt want to pay for cancer. D wants a different jury instruction. D brings in 2 expert medical witnesses. One says 1/100 and other says no connection whatever between trauma and cancer. It is not enough that negligence of one person and injury to another coexists, but the injury must be caused by the negligence. Post hoc ergo propter hoc is not sound as evidence or argument.

Nor is it sufficient for a plaintiff, seeking recovery for alleged negligence by another toward the plaintiff, to show a possibility that the injury complained of was caused by negligence. Possibilities will not sustain a verdict. It must have a better foundation. Gentry v. Douglas Hereford Ranch, Inc. (1998) Question: state of disrepair of step when he lost balance and discharged rifle that caused death of Ps wife. Ive stated umpteen numerous times that I dont remember if I tripped or if I was just clumsy or if I missed the step or hit it or whatever. Ive stated that and stated that and I dont recall. Court: P Gentry has offered no substantial evidence that any condition on the property of Ds caused Bacon to stumble and fall immediately before his rifle discharged. a party's conduct is a cause-in-fact of an event if "the event would not have occurred but for that conduct; conversely, the defendant's conduct is not a cause of the event, if the event would have occurred without it. In an action for negligence, a plaintiff must produce evidence from which it can be reasonably inferred that negligent conduct on the part of the defendant or its agents was the proximate cause of the plaintiff's injuries. Circumstantial evidence: woman on a cruise ship slips in the shower, antiskid strips were far enough apart she could have put her foot between the strips but apparently did not directly testify to that effect. Court ruled that because here feet could have fit between the strips is not an appropriate inference to be drawn. The possibility of the existence of an event does not tend to prove its probability. If you are the D, you need not prove another cause, only persuade the trier of fact that the P's putative cause was NOT the probable cause. Malpractice Civil: 1. The majority of jurisdictions require P to prove he would have won the case, how much the award would have been, and that the award was collectible. 2. A minority of states allow the D to plead and prove uncollectibility of judgment as an affirmative defense. Criminal: A client convicted of criminal offense must obtain reversal of conviction or other exoneration by postconviction relief to establish proof of actual innocence in subsequent malpractice action. Lost Chance Doctrine Almost all loss of chance cases involve medical malpractice. Courts are loath to apply this doctrine to lawyers and P has to prove what difference a lawyer's negligence made in the actual outcome of a trial or other adversary proceeding. There is no correct outcome to a negotiation.

Phillips says for damages there are 3 options: 1) You can recover full value of what your life is worth. 2) We can give you nothing. 3) We can try to identify the amount of your loss by relating diminution of your chance of survival to value of your life. Some courts believe that once you fall below 50% you are not given chance to prove lost chance. If you arent above 50% chance to start with you cannot bring suit. Example hypo: Dr. that specializes in less than 50% chance of survival b/c he knows no one can successfully bring suit against him. Contrary argument: the loss is NOT the death. The loss is correctly identified as the lost chance.

39% to 25% = 14% lost chance. My life is worth $1M. $140,000 is what Im seeking in damages for diminution of my chances. Herskovits v. Group Health Cooperative of Puget Sound (1983) We hold that medical testimony of a reduction of chance of survival from 39 percent to 25 percent is sufficient evidence to allow the proximate cause issue to go to the jury. (Phillips says that this still a cause in fact inquiry) Causing reduction of the opportunity to recover (loss of chance) by one's negligence, however, does not necessitate a total recovery against the negligent party for all damages caused by the victim's death. Damages should be awarded to the injured party or his family based only on damages caused directly by premature death, such as lost earnings and additional medical expenses, etc. (Phillips says, this eliminates pain and suffering. Court is trying to limit elements of damage. Only damages we can get a handle on) Gatekeeper Function for Expert Testimony Daubert v. Merrell Dow Pharmaceuticals, Inc. Bendectine birth defects case covered 25 years. The only real evidence available was statistical. Supreme Court undid Frye doctrine and imposed a 2-part test. After that, P's expert testimony was analyzed under 2-part test and found to be NEITHER reliable NOR relevant. Daubert gives Federal judges a significant role as gatekeeper of scientific/medical evidence. State courts arent obligated to follow Daubert rule, but most do if theyve adopted the Federal Rules of Evidence. Reliability of Methodology (both Frye and Daubert) Old rule was Frye Test: scientific evidence was admissible if it was based on a scientific technique generally accepted as reliable within the scientific community. Daubert new rule: Must determine whether the experts testimony reflects scientific knowledge, whether their findings are derived by the scientific method, and whether their work

product amounts to good science. (Factors when considering if the theory or technique is acceptable as scientific knowledge, it must have been subjected to peer review or come out of prelitigation research, etc. Relevance to Issue in case at hand (Daubert only) Must ensure the proposed expert testimony is relevant to the task at hand. fit test. Applied CA tort law when considering fit of statistical evidence and found P's case wanting. Concurrent Causes Hill v. Edmonds: Truck on stormy night left without lights on in middle of road. Pc care fails to swerve (even though there should have been time) and hit it. If you apply but for test to both actors then you come up short b/c neither one acting alone could have caused the injury. Where separate acts of negligence combine to produce directly an single injury, each tortfeasor is responsible for the ENTIRE RESULT even though his act alone might not have caused it. Anderson v. Minneapolis, St. P. & S. St. M. R.R. Co.: Again, the but for test wont work. 2 fires, one caused by D, one by unknown cause combine to wipe out Ps house. D liable. Court held that: where Ds actions are a material or substantial element in causing the Ps damage then we are holding D responsible. Phillips says material AND substantial element. You need simultaneity to find responsibility. Hypo: fire of unknown destroys house first, then fire by D comes through. D not liable. Who Caused the P's Injury? Summers v. Tice: two hunters shoot a a quail simultaneously and P was struck in the eye by a shot from one gun. No other satisfactory evidence. Court shifted the burden to the D to absolve themselves if they could. Phillips says this is just a variation on joint and several liability. Later he calls this case an example of Alternative Liability. Michigan has adopted alternative liability. Shifts burden. If Ds cannot prove themselves out of case, joint and several liability apply. Sindell v. Abbott Laboratories: DES case wherein the P trying to identify who is negligent. Court adopts market share liabilitytheory in determining who caused the P's injuries. Phillips: Make no bones about it. This is a SUBSTITUTE for proving causation. It reflects % of chances you were the seller. Whole thing based on a law review article by a student. Over 200 Ds but only 5 actually involved in the suit. The assumption in market share liability is that all the products are indistinguishable Court says you have to have a substantial section of market. How do you identify the market? How do you define substantial? When do you define the market? B and C are no longer in market. Companies

dissolved. You see problems with application of a simple rule to resolve the problem? Market share liability 1. Products are indeed identical 2. We cannot identify wrongdoer 3. There was a harm suffered by the P

PROXIMATE CAUSE Sometimes referred to as legal cause as in RII of Torts OR scope of liability If the cause in fact is not present, then there is no need to inquire whether there is proximate cause. Remoteness in time and distance complicates proof of proximate cause Proximate cause is a policy decision made by the legislature or the courts to cut off liability even though there is a cause in fact. Note 1, pg. 305 The area within which liability is imposed is that which is within the circle of reasonable foreseeability 1. Unforeseeable Consequences 2. Intervening Causes & Shifting Responsibility 3. Public Policy 1. Unforeseeable Consequences Ryan v. NY Central RR.: Fire, mere 130 feet. First house rule. Better that you obtain your own insurance rather than impose cost on D for full extent of the fire. accidental and varying circumstances such as the degree of the heat, the state of the atmosphere, the condition and materials of the adjoining structures and the direction of the wind: The D has no control over them and is not responsible for their effects Remoteness of the damage forms the true rule on which the question should be decided. Where is the limit where A recovers and Z fails. Where to draw the line. Remote = no recovery Note 2, pg. 296. Fire in KS RR sets fire, burns field of grain and spreads to house 4 miles away. P recovers. 130 in NY too remote but 4 miles in KS isn't. Eggshell skull theory While foreseeability of consequences is generally required to find liability, courts make an exception and do not require that the type of personal injury suffered by a victim be foreseeable. The defendant is liable even if the victim suffers physical injury far more severe (e.g., heart attack) than the ordinary person would be anticipated to have suffered from the accident. Hypo: you strike a 92yo who is so infirm and he suffers a serious of complications and leads to his death. How much was his life

worth? Damages will be tailored to reflect his age and ill health when calculating value of life lost. Notes say most courts include the fragile psyche as well. Phillips: Some jurisdictions limit recovery for psychological problems precipitated by physical injury. Bartolone v. Jeckovich: Psychotic breakdown due to auto accident. D deprived him of the coping mechanism P used to avoid fear of contracting cancer like his mother and sister. A life lost b/c his whole lifestyle changed. D must take the P as he finds him, and hence may be held liable in damages for aggravation of a pre-existing illness. Direct Traceability The Direct Test would find proximate cause satisfied whenever the defendant's negligence caused the injury without any intervening force. While once very widely accepted, it is questionable whether the direct test has any viability in contemporary law. In re: Arbitration Between Polemis and Frness, Withy & Co., Ltd: Petrol in the hold of a ship, heavy plank fell into hold and caused exposition leading to fire that destroyed the ship causing $800,000 in damage. Given breach and given damage as a direct result of neg. the anticipations of the person whose negligent act has produced the damage is irrelevant. Rule: Once the act is negligent, the fact that its exact operation was not foreseen is immaterial. Example: Note 3: Driver that negligently backed into a building severing natural gas line of air condition unit was responsible for the explosion that destroyed building even though he might not have foreseen the exact manner in which damage from his negligent driving would occur. Direct Traceability Rule: So long as 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 [proximate cause is proven] Note 1, pg. 301 consequences which follow in unbroken sequence, without an intervening efficient cause, from the original negligent act are natural and proximate. Examples of unforeseeable consequences: foul smelling shrimp risk causing patrol illness but not causing someone to slip on her vomit unreasonable speed in snowstorm you risk collision not creating snow swirl that will blind driver following in your wake Mfg supplies defective ring on dog collar risk dog getting lost not P will be bitten by dog Gas station employee allows person to pump gas while engine is running risks fire

and explosion, not that car would roll backward and injure P Contractor improperly welded angle iron risked injury to foreseeable occupants of room not injuries of maint worker who fell from ladder while replacing angle iron Fail to post warning about bacteria in water of pond you risk that swimmer will get sick, not that he will drown

Wagon Mound No. 1: D discharges furnace oil ->welding sparks->ignite cotton in furnace oil->fire->wharf burns. Welders were wharf owners employees. Wharf owner denied recovery. Court only took into account foreseeability without much discussion. Phillips said big distinction between wagon mound 1 and 2 is that welders were employees of the wharf owner and there was contributory negligence. It is not the act but the consequences on which tortuous liability is founded...If the damage is unforeseeable then no liability can attach. General Rule (note 2 pg. 306) for those using Wagon Mound I as the general approach to proximate cause A negligent actor is legally responsible for that harm, and only that harm, of which the negligent aspect of his conduct is a cause in fact. Wagon Mound No. 2. (1966) Phillips: Significance is that Reasonable foreseeability replaces directly traceable as the rule. Was foreseeable recovery permitted? Yes, other innocent ship damaged by fire and was allowed to recover b/c the burden on the ship discharging the furnace oil was slight. The essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen A reasonable man would only neglect such a risk if he had some valid reason for doing so, e.g., that it would involve considerable expense to eliminate the risk. He would weigh the risk against the difficulty of eliminating it. The most that can be said to justify inaction is that he would have known that this could only happen in very exceptional circumstances. But this does not mean that a reasonable man would dismiss such a risk from his mind and do nothing when it was so easy to prevent it. If it is clear that the reasonable man would have realized or foreseen and prevented the risk, then it must follow that the appellant is liable in damages. Phillips: You must prove that the type of harm produced is naturally follows from type of enterprise engaged in. Palsgraf v. Long Island R.R. Co.: Italian trying to catch a train carrying fireworks. One RR worker pulling onto train, other pushing him on. Box falls->explosion->Helen (P on nearby train platform) struck by scale causing physical injury. Judgment was $6k MAJORITY ADOPTS THIS POSITION: Cardozo: DUTY is critical. If you arent a person to whom a duty is owed you won't recover. Zone of danger (Phillips calls this the promised land. If judge finds a duty you are in the zone) In every instance before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which would have averted or avoided the injury. Phillips: this is an illusion of actually being a test. Even if you are 3 away, the reasonable foreseeability is who gets injured if the box gets dropped on them NOT that the box will explode. You just need to expand the definition of what is reasonably

foreseeable and then presto youre in the zone of danger. Hypo: box has caution written on it. Box has Danger written on it. Box has TNT written on it. MINORITY POSITION: Practical Politics and Rough Sense of Justice Test Justice Andrews considered the appropriate tests for proximate cause. Ultimately he concluded that proximate cause is a question of public policy, fairness and justice, which cannot be reduced to any mechanical formula. Judge Andrews (DISSENTING): Due care is a duty imposed on each one of us to protect society from unnecessary danger, not to protect A,B, or C alone. Driving with reckless speed, negligent whether strike someone or not. The act itself is wrongful. The proposition is this. Every one owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. Such an act occurs. Not only is he wronged to whom harm might reasonably be expected to result, but he also who is in fact injured, even if he be outside what would generally be thought the danger zone. Return to Directly traceable Phillips says that this might be the best idea, to judge on a case by case basis. Phillips doesnt like Cardozo decision because 7-6 does not mean that reasonable people cannot disagree. Andrews is more honest in his approach. 8 factors 1. The proximate cause, involved as it may be with many other causes, must be, at the least, something without which the event would not happen. 2. The court must ask itself whether there was a natural and continuous sequence between cause and effect. 3. Was the one a substantial factor in producing the other? 4. Was there a direct connection between them [C and E], without too many intervening causes? 5. Is the effect of cause on result not too attenuated? 6. Is the cause likely, in the usual judgment of mankind, to produce the result? 7. Or by the exercise of prudent foresight could the result be foreseen? 8. Is the result too remote from the cause, and here we consider remoteness in time and space. but for natural and continuous sequence substantial factor direct connection between C & E without too many intervening causes cause attenuated (weakened,diluted, reduced, diminished)? Foreseeable result? Remoteness in time and space (BF.NCS.SF.DC&IC.CA.FR.RTS) Ben Franklin, North Carolina Society, San Francisco,District of Columbia, Integrated Chip, California, France, Return to Sender . Ben Franklin, founder of the North Carolina Society, with branches in San Francisco and the District of Columbia, is the forefather of the Integrated Chip used extensively in California and France. As first postmaster general, Franklin often handled correspondence marked Return to Sender.

Aftermath of Palsgraf Cardozo question of duty translates to reasonably foreseeable based on facts (look forward from position of D). Contradiction to Andrews not a duty question, one of proximate cause. Was it highly extraordinary circumstance? (hindsight) Reduces to a jury instruction natural and probable result natural = directly traceable probable = reasonably foreseeable Yun v. Ford Motor Co.: 65yo Chang retrieves spare tire. Majority opinion of facts was that he ran across two lanes of the dark rain-slicked parkway and was struck on return trip. Previously, Ms. Youn had told Kim Service Center not to fix the bent spare tire assembly. Dissent view said the traffic was very light and the visibility is good. On further appeal, dissent was affirmed by NJ Supreme Court. Phillips says this decision uses a strange amalgam of Andrew's and Cardozo's view on proximate cause. Reflective of Andrews: Proximate Cause is any cause which in the natural and continuous sequence, unbroken by an efficient intervening cause, produces the result complained of and without which the result would not have occurred. Proximate cause need only be a cause which sets off a foreseeable sequence of consequences, unbroken by any superseding cause and which is a substantial factor in producing the particular injury. Focus must be on whether Chang's conduct was reasonably foreseeable [Cardozo] versus highly extraordinary [Andrews] thereby breaking the chain of causation. Majority opinion thought crossing the street both ways under circumstances was highly extraordinary if not suicidal. They concluded as a matter of law that Universal (who mfg'd the tire assembly) were off the hook because both of Ms. Yun's actions and Changs were superceding so no need to send proximate cause to the jury. A tortfeaser will be held responsible for his negligent conduct if it is a substantial factor in bringing about the P's injuries. [Phillips: allow for concurrent effect of multiple D's with this language. Seem to prefer using the term substantial factor] RII 435(2): The actor's conduct is not the proximate cause where after the event and looking back from the harm to the actor's negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm. Dissent said that if reasonable people disagree about proximate cause it is left to the jury. A jury could find that it was reasonably foreseeable the tire would dislodge and fall onto the roadway while the van was in operation and that the operator or passenger might sustain injuries in his or her attempt to retrieve it. Even though a negligently performed sterilization may lead to conception and birth of an unhealthy child, proximate cause is NOT established b/c it contemplates a probable or likely result, not merely a possible one.

2. Intervening Causes & Shifting Responsibility D was negligent EVERYTHING that happens afterward are intervening Only SOME of which are superceding If something supercedes, then D may be off the hook Exam tip: Always analyze the intervening events to see if they are superceding An intervening force is generally characterized as superseding only when its occurrence appears extraordinary under the circumstances. Shifting Responsibility: Generally, when the D has negligently created a risk of harm to the P, the failure of a third person to intervene will not affect liability of D. This applies even if the third person was under a duty to the P to intervene (put out a fire for example) and would also be liable to P for his failure to do so. Exception: there are a few cases in which the conduct of the 3rd person, whether action or inaction, has been held to relieve the D because the responsibility has been shifted from his shoulders. Example in book: D construction company left blasting caps out where a child got them, parents discovered kid had them and took them away but didn't get them out of the house. Kid found them and blamo. In this case, parents intervening action was found to be superceding and D was off the hook. A person must foresee the normal consequences of his conduct, but is not responsible for extraordinarily negligent intervening acts of third persons. One standard type of intervening force is called an act of God. Restatement 451 outlines the consideration that will make the force of nature a superceding cause. Remember there may be more than one proximate cause of an injury b/c multiple D's = multiple proximate causes. Jury instruction of the proximate cause is prejudicial. THE RESULT WITHIN THE RISK Doctrine. In Derdiarian, P worker was injured b/c of D's negligence. The result (worker injury) was within the risk (not protecting the worksite). It doesn't matter how the injury came about. What matters is the foreseeability of the intervening force. Derdiarian v. Felix Contacting Corp: First: D negligent for not protecting worksite with barrier. Second: Person chose to drive car, did not take meds, had epileptic fit and crashed into worksite. Third: P human torch Where the acts of a third person intervene between the D's conduct and the P's injury, the causal connection is NOT automatically severed. That the driver was neg. or even reckless does not insulate Felix from liabilitity. Nor is it decisive that the driver lost control...through a neg. failure to take meds. The precise manner of the event need not be anticipated. An intervening act [driver plowing through worksite] MAY NOT server as a superseding cause...where the risk of the intervening act occurring IS

THE VERY SAME RISK [Felix not protecting the worksite] which renders the actor [Felix] negligent. Hypos: Plane running out of gas. Pilot sees an island but theres a volcano that destroys plane. Risk of running out of fuel is death. Result was within the risk. Stranded on an island b/c of lack of fuel. Passengers starve to death. Intervening Criminal Acts GR: If criminal act is intentional then it is superceding upon the premise that such acts are unexpected and extraordinary. Watson v. Kentucky & Indiana Bridge & R.R. Co.: D Railroad negligently derails a tank car full of gasoline and the gasoline spills into the street. X then throws down a lighted match, which ignites the gasoline, leading to an explosion, which injures P. Some witnesses said X said Let's go set the damn thing on fire. Held, if X acted merely negligently, D is liable, since the risk of such a casual act by someone was one of the risks, which made Ds derailment negligent. But if X set the fire intentionally, such an intervention was so unexpected or extraordinary that D could not reasonably have been expected to guard against it. Exceptions: If you are supposed to protect against criminal acts, or if the criminal act was reasonably foreseeable. Hypo: woman has no ticket, RR puts her off at hobo junction and she gets raped. Phillips says that burden was slight for RR to put her off elsewhere. What if woman asked to not be let off there? Sometimes this is even extended to a 3rd party's intentional but non-criminal conduct. Suicide Fuller v. Preis: Auto accident causes head injuries to a Dr. who has several epileptic seizures before he finally commits suicide. Case hinges on whether the suicide was an irresistible impulse. ii = recovery, planning = no recovery An act of suicide is NOT a superseding cause in neg. law precluding liability. An initial tort-feasor may be liable for the wrongful acts of a third party if foreseeable. There is neither public policy nor precedent barring recovery for suicide of a tortiously injured person driven insane by the consequences of the tortious act. In tort law there is recognition that one may retain the power to intend, to know, and yet to have an irresistible impulse to act and therefore be incapable of voluntary conduct. Most courts find an irresistible impulse only when decedent acted in a sudden frenzy; if decedent left a note or purchased poison or otherwise evidenced

planning, the courts find the decedent was in control and denied recovery. Rescue Doctrine McCoy v. American Suzuki Motor Corp.: lit flare in his roadside hand. Cardozo: danger invites rescue Rescue doctrine premised on ideas that 1) tortfeasor owes the rescuer a duty similar to the duty he owes to the persons he imperils and 2) negates the presumption that the rescuer assumed the risk. P must show proximate causation under the Rescue Doctrine. In Maltman v. Sauer, rescue helicopter crashed on the way to accident scene. This was found to be too remote. To achieve rescuer status: 1) D was negligent to the person rescued and 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 4) the rescuer acted with reasonable care in effectuating the rescue If you put yourself in harms way you still invite rescue. Hypo: suicide attempt car garage asphyxiate, son rescues dad and cuts tendon severely. Sues dad to recover. Hypo: Company picnic 10 hotdogs and 12 beers. Then I go for a swim and need help. Good swimmer (decedent P) tries to rescue and drowns along with D. Ps estate sues Ds estate. firefighters rule youve got to be harmed by the nature of the risk you expect to be exposed to. Does not apply if alleged neg. was independent and not related to situation requiring rescue. In cases where there is a second injury caused by weakened condition resulting from first injury, the P rescuer can usually recover. If tort liability already exists between the parties, the court may be more ready to extend it to additional or augmented harm than if there had been no liability. Examples: rescuer may injure himself, the rescued person, or a third person or even create a rescuer of the rescuer situation. Still usually left to jury to decide proximate cause issues. 3. Public Policy PUBLIC POLICY transcends the analysis of proximate cause Any time you talk about public policy there are often countervailing arguments. Look on public policy with skepticism. Social Hosts Kelly v. Gwinnell You are responsible as a host if you serve alcohol to a guest you know is inebriated and is going to drive a car. Better that you assume such a duty than have carnage on highway. Public policy argument. SOCIAL HOST LIABILITY IS A MINORITY POSITION

Any host who serves liquor to an adult social guest knowing both that the guest is intoxicated and that he will thereafter be operating a motor vehicle, is liable for injuries inflicted on a third party as a result of the negligent operation of a motor vehicle by the adult guest when such negligence is caused by the intoxication. Dissent raised several issues: legislature should be making law, not the judiciary; social hosts are not experts at discerning intoxication; guests may serve themselves and guests may serve other guests; how can/must the social host police his guests?; social hosts, unlike commercial licensees, cannot spread the cost of liability b/c the social host is self-insured;homeowners policy won't help the social host who is negligent under this rule of law.

Majority (traditional) view: the drinker's voluntary consumption and subsequent negligence was the sole proximate cause of the third party's injury and that a person who sold or gave liquor to an intoxicated adult drinker was NOT liable for subsequent injuries caused by his intoxication. It is usually considreed that the consumption of alcohol, rather than the furnishing of the alcohol, is the proximate cause of any subsequent occurrence. In contrast, if the guest is a minor the court imposes liability on the adult social host. If both are minors, at least one decision declines to impose liability on social host who is a minor. Dram Shop Acts and other alcohol beverage control laws provide a basis for negligence per se when the commercial furnisher of alcohol fails to stop serving to intoxicated guest they know is going to drive home. Some courts also have imposed liability on employers where employees became intoxicated at work or at a work-related social event and then injured someone while driving intoxicated. Zone of Danger Enright v. Eli Lilly & Co.: Daughter under DES case market share liability CAN recover but Granddaughter CANNOT recover for public policy reasons, generations not yet conceived are too remote. Perforated uterus case (Albala) claim not allowed. It is our duty to confine liability within manageable limits. Hard cases make bad law. Phillips: Nobody is going to deny that this is probably causally related but court had a draw a line someplace. Granddaughter is outside the zone of danger aka range of apprehension. Imposition of a duty does not turn merely on foreseeability of the harm but also public policy considerations. Phillips emphasizes Soldier of Fortune hitman note 5A pg. 354; and books, movies, video games other notes 5B,5C,5D where public policy of 1st Amendment rights are butting up against tort liability. Phillips emphasizes Note 5E pg. 355 Jenny Jones ambush case. Majority held no duty but Disent would hold that as a matter of public policy, if Ds for their own

benefit wish to produce 'ambush' shows that can conceivably create a volatile situation they should bear the risk if a guest is psychologically unstable or criminally dangerous by being charged with that knowledge in the context of any foreseeability analysis. DUTY OF CARE Overview Duty of Care an attempt to limit liability. Many of these policy driven. These are clusters of cases that lend themselves to a rule. 1. Privity of K mostly insulates nonfeasors and attorneys 2. Duty to Act relationship, undertaking or understanding between parties is basis of the duty. 3. Economic Loss if you do not suffer physical or property damage, you arent going to get relief for EL. 4. ED limitations on bystanders being able to recover for ED 5. Unborn if youre not a person within the legal definition you get no recovery Privity of Contract Election and Gravamen many cases it is possible to maintain action in either K or tort. One set of courts allows P to chose type of action. Other courts determine the gist (gravamen) of the action for the P. Little consistence in the decisions even in a single state.

Nonfeasance where D had done no more than make a promise and break it. In general, when there is only the promise and breach, only the contract action will lie. Exceptions: Public utility or common carrier because they have undertaken the duty of serving the public, become liable in tort when it fails to do so whether or not it has made a contract. Contract without the intention to perform it is regarded as committing a form of misrepresentation or fraud for which a tort action of deceit will lie. Examples Winterbottom v. Wright : D Wright contracted with Postmaster General to keep coaches in safe and secure condition. D failed to comply. P mail coach driver seriously injured when vehicle broke down due to disrepair. This is a case of nonfeasance. There is no instance in which a party who was not privy to the contract entered into can maintain an action. Damnum absque injuria - A loss or damage without injury. Although it is a hardship upon the P to be without remedy, too bad. Hard cases make bad law. Phillips: doesnt like that employee (person who was most at risk) wasnt under the tent. Also thought it was absurd that not performing your duty under a K gets you off the hook. MAJORITY RULE (nonfeasance = no liability) H.R. Moch Co. v. Rensselear Water Co. (1928) D waterworks company with K with city of Rensseear. P warehouse owner had a

building that caught fire and was destroyed. P alleges that D supplied water to fire hydrants, charged city for this service, K was in force, and that D omitted to furnish sufficient or adequate quantity of water with adequate pressure to stay, suppress or extinguish the fire before it reached the Ps warehouse. Holding: action not maintainable b/c liability would be unduly and indefinitely extended by an enlargement of the zone of duty. The law does not spread its protection so far. This case was applied to NYC power failure in 1977. Phillips says the court characterizes this as nonfeasance. Withholding a benefit = nonfeasance. Did not launch an instrument of harm = nonfeasance. D says omitted..failure of D to fulfill the provisions of the K between it and city = nonfeasance. Failure of telephone company to render service under K with private individual, 3rd party injured, D not liable. Same reasoning applied to fire alarm companies MINORITY: some cases have allowed recovery on theory that the P is a 3rd party beneficiary of the K with the city.

Misfeasance where D had attempted performance but done the wrong thing (misperforms). Historically, based on common carrier that negligently injured a passenger or lost his baggage. Now extended to virtually any type of K. Has D gone beyond mere preparation and begun performance. With MacPherson v Buick Motor Co., Cardozo overturned privity of contract for a small set of cases involving misfeasance. The privity limitation lasted longer with regard to services. Today, however, an individual who undertakes to make a repair owes a duty to use care to those who may be foreseeably injured in case the repair is negligently made. Other examples: inspection of an elevator was enough for court to find an undertaking and a misfeasance. If the repairer had done nothing at all, the case might have been deemed one of nonfeasance and the privity limitation might have applied. Note 4, pg. 414 If defective water is in fact supplied under a K with the city, the D may be liable to an individual for resulting injury, such as typhoid fever. Hayes v. Torrington Water Co. (1914) GR: If D does begin performance and then fails to act, he is liable. When there is an assurance to an owner that a repair has been made, even though nothing has in fact been done, many modern courts have found misfeasance and thus a breach of duty even to third parties. Example: MacPherson v. Buick Motor Co. (1916) D sold auto to a retail dealer who resold to P. P was in car when it suddenly collapsed b/c one of the wheels was made of defective wood. Wheel not made by D but there was evidence defects could have been discovered by reasonable inspection and the inspection was omitted.

Inherently dangerous: some courts confine this classification to guns, poisons, or other products whose normal function is to injure or destroy. Whether a given thing is dangerous may sometimes be a question for the court and sometimes a question for the jury. Liability of mfg of finished product who puts it on the market to be used w/o inspection by his customers. There must be knowledge of a danger, not merely possible but probable. Holding: If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. D not absolved from a duty of inspection. It was responsible for the finished product and not at liberty to put finished product on the market without subjecting the component parts to ordinary and simple tests. Phillips: Despite privity of K between Buick and retail dealer, court found duty existed b/c MacPherson was clearly a foreseeable P. Significance of case is that privity of K is no longer a limitation on liability for misfeasance.

Attorneys and other Professionals The privity duty limitation has also been used by attorneys when they have committed an act of professional negligence. In many jurisdictions the privity limitation is still strictly applied. Clagett v. Dacy: privity of K survives. GR: Only client can sue his attorney. An attorney's duty of diligence and care flows only to his direct client/employer, and that, whether in an action of contract or tort, only that client/employer can recover against him for a breach of that duty. Exception: Whenever an attorney's work product is primarily for the benefit of a third party, potential liability can arise. A common example is beneficiaries of wills. Hypo: lawyer draws up a will incorrectly. Decedent dies. People who were to receive inheritance were the intended beneficiaries. They can sue and recover. Court found contractor had duty to complete construction in a manner that would have avoided unnecessary injury to restaurant owner, even though construction contract was with owner of the mall rather than with the restaurant owner (tenant). Court held it was settled that contractor owed a duty to avoid injury to the person or property of third parties. Court held risk of harm was foreseeable and injury should not go uncompensated merely because it was unaccompanied by any injury to his person or property (i.e. This was for economic loss only). Liability in these cases generally does not depend on Ps reasonable reliance.

Failure to Act Sad fact: as a GR you dont owe a duty unless there is a special relationship, or undertaking or understanding between the parties. There is no general duty to go to the rescue of a person who is in peril. Not even if you are a Dr. To encourage doctors to help out, many states have passed Good Samaritan statutes to protect them from some liability. Hegel v. Langsam: Parents (P) sued University of Cincinnati (D), b/c their 17yo daughter during her time as a student became associated with criminals, was seduced and became a drug user. Holding: Ps completely misconstrue the duties and functions of a university. Ps failed to state a cause of action. Exception #1: special relationship maritime law: ship master is required to make reasonable efforts to rescue seaman who falls overboard. This has been extended to other employers. Duty is limited to situations where the employee is unable to look after himself and is also limited to actions taken during course of employment. Common carriers auto owner and driver temporary legal custodian and his charge (jailor/prisoner, school teacher/student) occupier and entrant onto land husband/wife, parent/child Negligent D (hit and run, etc.) after accident has occurred, D owes duty to P to help him. Farwell v. Keaton: Plaintiff filed a wrongful death action against defendant for failing to exercise reasonable care after voluntarily coming to the aid of his son who was beaten while out with defendant, who was his friend, and later died in the back of defendant's car. Plaintiff appealed a ruling from the appellate court which held that defendant did not assume a duty to aid his companion, and defendant neither knew nor should have known of the need for medical treatment. The court found that defendant had an affirmative duty to come to his friend's aid, because he had a special relationship (Phillips: companions on a social venture) with the deceased, he knew or should have known of the peril the deceased was in, and he could have rendered assistance without endangering himself. Court found that duty was incurred when he reached back to wake his friend up. Additionally, he DEPRIVED OTHERS OF OPPORTUNITY TO RESCUE, by taking on role of rescuer he established the special relationship. If he would have woken the grandparents the responsibility might have shifted to them. L.S. Ayres & Co. v. Hicks: Kid got fingers stuck in escalator at D's store. D unreasonably delayed stopping the escalator and aggravated the P's injuries. D's late response was a failure to act. Special relationship was that P was an invitee. Aggravation of harm If you are in charge of the instrumentality (and there was no neg. it was in working order) that is doing the harm, you have a duty to come to the assistance of the person being harmed. J.S. and M.S. v. R.T.H.: Imposed duty on wife to watch her husband if she has particularized foreseeability that his actions will cause injury to a third party (in this case

teenage girls in the horse barn) Requirement of special relationship + particular forseeability and it is this foreseeability that triggers the duty. |Particular knowledge OR a special reason to know| that a |particular P or class of Ps| would suffer a particular type of injury. Basically, this is Phillip's recommended analysis for the Zone of Danger. Terasoff v. Regents of University of California: Poddar tells his therapist he's going to kill his former girlfriend and does. Once a therapist does in fact determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger. the therapist need only exercise that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the professional specialty under similar circumstances. Warn the potential victim: cause emotional distress. Police? They dont have the resources Break patient Dr. confidentiality and undermine relationship between the two. Psychiatry inexact science, cannot accurately predict CA has a statute which says that psychotherapists are immune from liability to warn except where the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonably identifiable victim or victims. Some have followed CA. Other courts have found no reason to support a duty to warn solely based on the psychiatric-patient relationship. Not a special relationship: Bigan entices his friend Yania to jump into water at a quarry. Yania drowned. Bigan made no rescue attempt. Court found no duty. Defendant was in engaged in a coal strip-mining operation whereby trenches were dug in order to remove coal deposits. On trench contained several feet of water, and defendant had placed a pump in the trench to remove the water. The defendant asked the widow's husband to assist him in starting the pump. According to plaintiff, defendant taunted and urged the husband to jump into the water. He jumped into the water and drowned. The widow initiated wrongful death and survival actions against defendant, alleging that defendant taunted her husband, failed to warn him of the danger, and failed to rescue him. The trial court sustained defendant's demurrer and dismissed the widow's actions. On appeal, the court affirmed, holding that the husband was a reasonable and prudent adult and performed an act which he knew or should have known was perilous; it was the performance of that act and not defendant's conduct which caused the husband's death. Exception #2: Undertaking D assumes a responsibility to act and such undertaking increases the risk of such harm or is relied upon by the P to his detriment. Undertaking: half-attempted rescue abandoned mid-way. There is no duty to rescue but, having effected it, the rescuer is NOT entitled to harm the person whom he has rescued. Pure Economic Loss Pure economic loss arises when a person suffers pecuniary loss not consequent upon injury to his person or property. In this chapter we're only concerned with negligent acts that cause

economic loss. GR: no recovery. State of La. Ex Rel. Guste v. M/V Testbank:Court upheld summary judgment for the , who was responsible for a toxic spill at the opening of the Mississippi River, regarding the claims for pure economic losses. Court reaffirmed the bright line rule that said that there could be no recovery for pure economic losses unless there is physical damage as well. Phillips hit on these reasons for preventing recovery: insurance will be expensive or not available at all burden on individuals to insure themselves much lower than on D extending scope of liability may destroy businesses Emotional Distress Don't confuse with IIED Old rule (minority): Impact with P otherwise P may not recover. Majority rule: Daley v. LaCroix D was traveling down a road outside Ps house. Ds car became airborne, sheared off a utility pole, snapping wires which made a loud noise. P claimed she suffered traumatic neurosis and emotional disturbance from the event and sued D for negligent infliction of emotional distress. New rule: Where a definite and objective physical injury is produced as a result of ED proximately caused by D's negligent conduct, the P may recover notwithstanding the absence of any physical impact upon the P at the time of the mental shock. The term physical is not used in its ordinary sense for purposes of applying the physical consequences rule. Rather, the word is used to indicate that the condition or illness for which recovery is sought must be one susceptible of objective determination. Hence, a definite nervous disorder is a physical injury sufficient to support an action for damages. (from notes not the case) Phillips says there are 2 limitations to this rule take the P as you find them is not used here physiological manifestation Where the P has narrowly escaped imminent and serious harm to his own physical well being, the courts have readily allowed recovery upon a demonstration of ensuing mental disturbance (pedestrian almost struck by automobile)

Most states retain the physical manifestation requirement except for 2 well recognized exceptions: 1. Death-telegram rule (recovery for ED resulting from negligent transmission by a telegraph company of a message announcing death) 2. Negligent interference with dead bodies (even casket substitution of dead cat v. beloved dog) Bystanders Direct victim, unique connection between mother and baby allows mother a direct claim for ED, father's claim limited by the bystander requirements.

Dillon Test (vague) 1. Was bystander near the scene of the accident or a distance away? 2. Was ED caused by sensory and contemporaneous observance of the accident or did bystander learn of accident from others? 3. Relationship of bystander to the victim close or distant or non-existent? Thing v. La Chusa: More precision than Dillon. A boy was struck by Ds car. The boys mother, P, was nearby but did not see or hear the accident. Because she was not present when the accident occurred, she was not allowed to recover for her emotional distress. Held, a plaintiff who is not within the zone of danger must satisfy three requirements to recover: 1. Be closely related to the victim 2. Present at the scene of the injury producing event at the time it occurs and is aware that it is causing injury to the victim 3. Suffer serious ED, reaction beyond that which would be anticipated in disinterested witness and which is not an abnormal response to circumstances. Unborn Children GR: to recover you must be born alive Endresz v. Friedberg P, 7 months pregnant, was injured in an automobile accident. P gave birth to two stillborn children. P brought wrongful death claim against D. Held, a wrongful death action may not be maintained for the death of an unborn child. The law has never considered the unborn foetus as having a separate juridical existence or legal personality or identity until it sees the light of day To make viability rather than birth the test would not remove the difficulty but merely relocate it and increase a hundredfold the problems of causation and damages. Wrongful life: a cause of action brought by or on behalf of a defective child who claims that but for the D's negligent advice or treatment of its parents, the child would not have been born. (Most states don't allow it) Example: negligent failure to detect Tay-Sachs Syndrome. In the few jurisdictions that recognize wrongful life, the damages have been curtailed as to include only extraordinary expenses arising from the condition with which the child is afflicted. No general damages for P&S are awarded. Parents have not been held liable for wrongful life Procanik By Procanik v. Cillo Ps mother contracted German Measles during her first trimester of pregnancy. P was born with birth defects. P contests that had Ps mother known about the risks to P from the German Measles, Ps mother would have aborted the pregnancy and P would have never been born. Wrongful life claim. Held, A child may not recover for wrongful life, emotional distress, or impaired childhood, but may recover for extraordinary medical costs to the child. Child's only choice is no choice at all: impaired existence or no existence. No chance of normal existence. The only proximate result of Dr's neg. was the

birth, not the life so damages limited. Wrongful birth: cause of action of parents who clam that negligent advice or treatment deprived them of the choice of avoiding conception or terminating the pregnancy. The appropriate inquiry is whether the D's negligence was the proximate cause of the parents' loss of the option to make an informed and meaningful decision either to terminate the pregnancy or to give birth to a potentially defective child. Neither are the same as situation in which negligent injury to a fetus causes an otherwise normal child to be born in impaired condition. OWNERS AND OCCUPIERS OF LAND Outside the Premises With regard to most conditions on land that arise in the state of nature most courts have held that there is no duty upon the landowner. Exception: Landowner is liable for negligence if he knows that a tree is defective and fails to take reasonable precautions. Taylor v. Olsen: Taylor P was driving auto and struck a tree that had fallen on a well traveled public highway. Olsen was the landowner who had been logging on the property from which the tree had fallen. The tree was rotted from the inside, but there was no way to find out b/c rot wasnt apparent by looking at the outside of the tree. You have to have constructive notice that the tree was defective and are required to use common and ordinary method of examining trees on your property. Once a landowner alters a condition of his land it becomes artificial and the owner must exercise reasonable care for the protection of those outside the premises. Examples: Not liable for the natural flow of surface water but if you dam a stream and create a hazard then you are liable. Salevan v. Wilmington Park, Inc.: In the first case (Taylor v. Olsen) the D did not create the risk. Trees were naturally occurring. In this case the hazard was artificial. Putting the baseball field on your property creates risk from balls flying out of the park. Most courts agree that a landholder owes a duty to a traveler who accidentally falls into excavations on land immediately adjoining the highway. On the Premises Always try to get your client in the invitee category if you are Ps lawyer. If D lawyer go for trespasser or licensee. Your status as a trespasser, licensee, and invitee CAN change. Whelan v. Van Natta: Came into store to buy cigarettes, then asked for a box for his son. Went to back room (may have been unlit) and fell down stairwell. Man started as an invitee but when he went to the back room for his own purposes he became a licensee. Alternatively when he went from area that was open to the public and went to back room that was not open to public.

Hypo: If Whelan found a stairwell in that backroom going up into owner's residence above the store and cracks his head open when he trips while snooping around, no recovery b/c now Whelan is a trespasser. Some courts are rejecting the 3 categories as in Rowland v. Christian. Hypo: burglar crawling across your roof falls through skylight and breaks every bone in his body. In jurisdictions where classification system: no recovery. What if youre skylight is in violation of building code? If there is no classification system, the robber might recover. Those that continue to use them make exceptions for: 1. Children Attractive Nuisance/Turntable Doctrine: when a landowner sets before young children a temptation that he has reason to believe will lead them into danger, he must use ordinary care to protect them from harm. (trespasser) RII: Artificial Conditions Highly Dangerous to Trespassing Children Child Licensee: warning a child of a hidden danger won't discharge your duty the same way you could with an adult. 2. Persons Privileged to enter irrespective of landowner's consent Whether they are considered a licensee or invitee varies Police and firemen: when they get hurt on your property there is a huge difference of opinion over how to treat them. For full-time police/firemen they often have duty disability pensions 2/3 pay while recovering from injury, generally free from income-tax. Big city usually = licensee. In smaller communities with volunteers not same level of benefits and have been treated as invitees so they can more easily recover against homeowner or his insurance company. 3. Private Persons entering the premises for self-protection or rescue A. Trespassers If youre an undiscovered trespasser the land the landowner/occupier owes the trespasser no duty. Sheehan v. St. Paul & Duluth Ry. Co.: Cardozo point of view: is the trespasser in the foreseeable zone of danger? 90% of people in this room had walked on a RR track. No way to determine on a case by case basis, without a rule. The obligation of the company and is operatives arises at the moment of discovery. Frederick v. Philadelphia Rapid Transit Co.: P fell from subway platform onto track, train stopped by tripper but crew drove on without inspection. Train company liable.

Rule in principal case is commonly applied to a wide variety of dangerous conditions on the land, including dangerous machinery and defective construction. Children outside of this rule. Minority: it is held that there is no liability even to a discovered trespasser unless the Ds conduct is willful or wanton defined as failure to use ordinary care AFTER discovery of the trespassers presence. Majority of courts have discarded willful and wanton limitation. Duty to use ordinary care to avoid injuring him by active operations. Includes control of operating forces such as machinery already in motion or a warning against it.

Second exception frequent trespassers on a very limited area of the land. Existence of a well-defined path across the land was held to be sufficient evidence of frequent trespass. D is expected to anticipate the trespassers and exercise reasonable care in his activities for their protection. Third exception TOLERATED INTRUDER Ds continued toleration of trespasses amounts to permission to use the land so the P becomes a licensee.

B. Licensees licensee: one who enters the premises of the owner by permission, but for the licensee's own purposes. Must take the premises of his host as he finds them. However, the owner of the premises has a duty to warn the licensee of any hidden dangers which are unknown to his guest, of which he, the owner, has knowledge, and to refrain from injuring his guest willfully or wantonly. A social guest is a person who goes on another's property for companionship, diversion, or entertainment and is considered a licensee. An incidental service rendered to an occupier by a social guest dos not make that social guest an invitee. C. Invitees A person is an invitee on the land of another if "(1) he enters by invitation, express or implied, (2) his entry is connected with the owner's business or with an activity the owner conducts or permits to be conducted on his land and (3) there is a mutuality of benefit or a benefit to the owner." In order for a person to be classified as an invitee it is sufficient that he go on the land in furtherance of the owner's business. It is not necessary that the invited person gain an advantage by his entry on the land. The duty owed by the owner of premises towards an invitee is greater than that owed towards a licensee. Towards an invitee, the owner of the premises has a duty to exercise reasonable care in keeping the premises reasonably safe

for use by the invitee. There may be circumstances by which this duty is extended to include the responsibility to protect the invitee from criminal attacks by third parties. Sub prof: Business, invitees you are trying to get economic benefit from them. Because of this, you have a duty to make things safe for them. Its the cost of doing business. Campbell v. Weathers If one goes into a store with a view of then, or at some other time, doing some business with the store, he is an invitee. Public Land Most courts have rejected the old rule that Ps status on public land depends on whether he was entering for purpose for which they were open to the public (invitee) or whether he entered the premises for an unintended purpose (licensee) Attending free public meetings: Salvation Army, literary society, social meeting at church Spectators at public amusements entering on a free pass Free use of a telephone provided for the public Entering a bank to get change for a $20 bill Coming to get things advertised to be given away Use of state or municipal land open to the public: park, golf course, swimming pool Visitors in national parks Lessor and Lessee Borders v. Roseberry Social guest is visiting the apartment of a tenant. Guest slipped on ice that had accumulated on the porch of the apartment building. The tenant was aware of the condition but the landlord was not. A landlord generally does not have a duty of care to the social guest of a tenant with 6 exceptions: (1) Undisclosed or dangerous conditions known to the lessor and unknown to the lessee. (2) Conditions dangerous to persons outside the premises. (3) Premises leased for admission of the public. (4) Parts of land retained in lessors control which lessee is entitled to use. (5) Where lessor controls to repair, he must repair. (6) Negligence by lessor in making repairs. Pagelsdorf v. Safeco Ins. Co. of America P was helping tenant move furniture. He leaned against a railing, it snapped, and he fell to the ground below. The railing was dry rotted latent defect. Held, D owed ordinary care to his tenant and to others on the premises with permission. Since modern social conditions no longer support special tort immunity for occupiers of land, there is no logical basis for a general rule of non-liability for landlords either. (1) Classifications dont provide the right incentives. (2) There is an implied warranty of habitability a continuing duty to the tenant.

(3) Owner has the most control over the maintenance of the building. Kline v. 1500 Massachusetts Ave. Apartment Corp. P, a tenant, was assaulted and robbed in the common area of the building. Landlord had notice that there were an increasing number of assaults in the building. A landlord has a duty to protect tenants from foreseeable criminal acts committed by 3rd parties in areas of the building where the landlord has control over security (common areas, lobbies, etc.). Professor Jason thought the court's holding was too vague. Hypo: I lease a building to a law office (4th floor) and state mental health office (5th floor). Mental patient stops at floor 4 and attacks legal secretary. Preventing it: put clinic on 1st floor. Have guards. Court said lessor was liable. Fallout, I'm not going to lease to people I think are going to cause harm. modification: unsavory looking other tenants complain. Lessor meets with tenants: 30% off your rent if you assume responsibility for your own security in the common areas. Safety as a Warranty of habitablity: some courts don't let you parcel this out, others will allow this. DEFENSES Plaintiffs Conduct Law has four approaches to Ps conduct 1) Bar the Ps claim (contributory negligence) 2) Ignore the Ps culpable conduct. Workmans Comp and No-fault insurance are examples. 3) Adopt #1 or #2 and carve out exceptions 4) Compare Ps fault with that of D and reduce Ps damages according to the measure of fault. (Comparative Negligence aka Comparative Fault) A note on phraseology: Contributory negligence: breach of duty of care: D to P and P to himself. Doctrine of Contributory negligence: precludes any recovery When you describe conduct of P, you can use the generic phrase P was contributorily negligent Contributory Negligence (bars Ps recovery) NOT a defense to an INTENTIONAL TORT NOT a defense to Ds wanton and willful OR reckless conduct CAN be a defense to negligence per se. NOT available if a statute explicitly abolishes is, or P falls under a statute to protect a P from himself (firearms to minors, child labor laws, sale of liquor to intoxicated persons, safety devices to protect factory workers) Theories: o penal basis, P denied recovery as punishment o P required to come to court with clean hands. Youve injured yourself, too bad. o Encourages optimal care by both parties o Ps neg. is an intervening, superceding cause which makes Ds

neg. not proximate. Often led to unjust decisions. Today, only used in 4 states: Alabama, Maryland, VA, NC Burden of pleading and proving contributory neg. is on D Deciding if P is contributorily neg. is most often left to jury. Phillips says often judge winks at jury to reduce harshness of the contrib neg rule if there is a sympathetic P. Causation in Fact: contrib. Neg. must be a substantial factor in bringing about the result. Contrib. Neg. must also be a proximate cause. Examples: Danger of falling but not of falling upon a hook. Danger of slipping off an unguarded icy ledge but not of wall collapsing on P. Butterfield v. Forrester (1809) P was riding hard along a road and didnt see a pole obstructing road 100 yards distant. Although the D had negligently left the pole in the road, the Ps lack of ordinary care led the court to find the accident was the Ps fault. One person being in fault will not dispense with anothers using ordinary care for himself. Doctrine of Last Clear Chance: If D had an opportunity to avoid the accident AFTER the opportunity was no longer available to the P, the D is the one who should bear the loss. Application of the doctrine may depend on whether the P is 1) helpless, unable to avoid the danger OR 2) merely inattentive. Good: Permits P to recover under doctrine of contributorily negligence. Bad: shifts entire burden to other side D. Is a function of what P knows and when they know it. Davies v. Mann (1842) Ps donkey was grazing off side of road. Ds wagon with team of three horses came down a hill at a smartish pace and ran over the donkey. Trial judge instructed jury If accident might have been avoided by the exercise of ordinary care on the part of the driver, they should find for the P. Jury found for the P. Holding: As D might by proper care have avoided injuring he animal and did not, he is liable for the consequences of his negligence, though the animal may have been improperly there. EXAM TIP: Always look at D's conduct first Mann driving too fast Davies' donkey in the road Mann had last clear chance to avoid (LCC)

Helpless Hypo: car (brakes don't work), P negligently hops into road without

looking, D Cases have become split into 2 categories D didn't know so couldn't exercise LCC Even if you knew about it, was D able to exercise LCC or not (b/c of prior neg.) Inattentive Hypo: cop writing citation, was in road. Truck driver saw him, tried to get over and didn't. Mirror strikes the cop. In the fact pattern in class, cop was merely inattentive. D doesn't know P inattentive BOTH had LCC so doctrine doesn't apply. Assumption of Risk (FULL DEFENSE) Phillips: assumption of risk requires SUBJECTIVE knowledge and appreciation of the risk AND MUST be voluntary. Example: P had dentist appointment but neighbor's vicious boar blocked the way to his pickup truck. He knew of the vicious propensities of the boar but decided to try to get to the truck. Found not voluntary b/c his only choices were to remain prisoner in his own house or to try to make it to the pickup truck. (No I so no FI) assumption of risk does NOT give D license to dispense with ordinary care P assumes foreseeable risks, not unforeseeable ones. Example: P purchases a ticket to Piston's game and fight breaks out in stands due to player striking a spectator. You assumed the risk of getting hit with a basketball, not player in the stands creating a melee. The difference between assumption of risk and contributory negligence is P's venturousness Are other alternatives are available? This is the issue in Rush v. Commercial Realty Co. Mrs. Rush had no choice when call of nature came. Ask yourself: Is it the only game in town? Express = oral or in writing (not the same meaning as K law) Seigneur v. National Fitness Institute, Inc: P injured her shoulder while undergoing an initial eval at a fitness club. The exculpatory clause in the contract was found to be valid. Unambiguous exculpatory clauses are generally held to be valid in the absence of legislation to the contrary UNLESS there is a public interest which renders it unenforceable. 1) when the party protected by the cluase intentioally causes harm or engages in acts of reckless, wanton or gross negligence 2) twhen the bargaining power of one party to the K is so grossly unequal so as to put that party at the mercy of the other's negligence 3) when the transaction involves the public interest

Two basic issues: 1. Was risk that injured P within the unambiguous terms of the agreement? 2. Whether the K itself violates pulic policy. Considerations here (from Tunkl v. Regents of the Univ. of California): 1. business is of a type generally thought suitable for public regulations 2. service is of great importance to the public 3. paty holds himself out as willing to perform the service for any member of public that seeks it 4. possesses decisive advantage of bargaining strength against any member of the public 5. makes no provision whereby a purchaser may pay additonal fees and obtain protection against negligence 6. person or property of the purchaser is placed under the control of the seller and is subject to the risk of carelessness by seller or his agents Implied Rush v. Commercial Realty Co.: went into privy, fell 9' into the accumulation at the bottom b/c the floor gave way. Held not to be assumption of risk. Blackburn v. Dorta: most courts have said that P's conduct is same whether you call it assumption of risk or comparative negligence primary implied Phillips says forget about it, this is failure to prove a prima facia case for neg. Primary means D was not negligent either b/c he did not owe a duty or did not breach a duty that was owed. secondary implied assumption of the risk pure (reasonable) run into burning building to save a child qualified (unreasonable) run into burning building to save your hat P brings case against D who started the fire pure = assumption of risk, barred from recovery qualified = contrib. Neg., able to recover court thought this was stupid so they get rid of assumption of risk and just attach a number to it under comparative neg. Significance: No reason to keep assumption of risk around under rules of comparative neg. avoidable consequences in mitigation of damages: seatbelt rule, you don't have it on. D strikes your car and was entirely at fault. Broke your leg, but you also flew through the windshield. Basically, flying through the windshield was avoidable consequence of not buckling the seatbelt so damages should reflect. Don't confuse this with contributory negligence (adjective) Failing to fasten your seatbelt was not contributory negligence b/c that's not why you had a collision...remember? it was entirely the D's fault.

Comparative Negligence (PARTIAL DEFENSE) Criticisms of Comparative Negligence too confusing: requires math discourages settlements: turned out not to be the case increases insurance rates: turned out not to be the case unnecessary b/c of no-fault leglislation: this is limited to autos poor reason not to adopt fact finding is difficult: bogus argument conflicts with other rules: LCC for example. Function of damages A 90% at fault B 10% at fault plug in damages on both sides (big damages v. small damages) and look at the effect McIntryre v. Balentine: Court in TN replaced the contributory negligence system with a comparative negligence system. There are two basic forms of comparative fault which are referred to as either "pure" or "modified." "pure" form, a plaintiff's damages are reduced in proportion to the percentage negligence attributed to him; for example, a plaintiff responsible for 90 percent of the negligence that caused his injuries nevertheless may recover 10 percent of his damages. About of the states have adopted this form. "modified" form, plaintiffs recover as in pure jurisdictions, but only if the plaintiff's negligence either (1) does not exceed ("50 percent" jurisdictions) or (2) is less than ("49 percent" jurisdictions) the defendant's negligence.

The Supreme Court of Tennessee rejects the pure form of comparative fault and adopts a system of modified comparative fault, the "49 percent rule." So long as a plaintiff's negligence remains less than the defendant's negligence the plaintiff may recover; in such a case, the plaintiff's damages are to be reduced in proportion to the percentage of the total negligence attributable to the plaintiff. The adoption of the comparative negligence system in Tennessee makes the doctrines of remote contributory negligence and last clear chance obsolete. In cases of multiple tortfeasors, plaintiff will be entitled to recover so long as plaintiff's fault is less than the combined fault of all tortfeasors. Also, the doctrine of joint and several liability is rendered obsolete. permitted to allege, as an affirmative defense, that a non-party caused or contributed to the injury or damage for which recovery is sought. In cases where such a defense is raised, the trial court shall instruct the jury to assign this nonparty the percentage of the total negligence for which he is responsible.

Who can sue whom (the aggregation issue) 49% = NAGA. Under NAGA (Not as great as), if P's % is greater than D's then he cannot bring suit. P cannot be more than 49% at fault. Hypo 1: P 20% D1 10% D2 30% D3 40% Under NAGA, P cannot bring suit against D1, but can against D2 and D3 Hypo 2: P 40% D 10% D 30% D 20% Under NAGA, P cannot bring suit at all even though 60% of the fault belongs to the D's! 50% = NGT (No greater than). As above, only P cannot be more than 50% at fault. Aggregation Theory (P's should love it) P is 40% aggregated D's are 60%, P CAN bring suit. If you find a judgment proof D, then P cannot be made whole b/c damages for each D capped based on % of fault for each D. Not the same as joint and several liability. Many jurisdications had a Uniform Contribution Statute whereby if there were 4 D's each paid 1/4th. Empty Chair defense: if you don't know who one of the D's (mystery person) responsible for let's say 40%. In this case If there is nobody against whom you can proceed, P eats the missing %. Looking at the handout, depending on the mechanism used you get different amounts for missing D's. Phillips believes reallocation does the most justice. EXAM SYNTHESIS Every Ds conduct creates risks of something happening Exam: identify the type of injury likely to be created by Ds conduct Class of person likely to be injured (proximate cause scope of liability) Proximate cause is a LIMITATION on liability You should be uneasy with proximate cause b/c there isnt the kind of hard and fast rules wed like Reasonably foreseeable or extraordinary? How do we handle intervening and superceding causes? How to determine if intervening forces are superceding Zone of Danger: This type of risk This type of harm To this type of person Phillips likes this Issue, Conclusion, Analysis upfront. Don't decline the invitation.